# FILED
July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

JUNE 1997 SESSION AT JAC KSON

STA TE OF TENN ESSEE, ) ) C.C.A. N o. 02C01-9612-C R-00479 Appellee, ) ) Shelby C ounty V. ) ) Honorab le Bernie W einma n, Judge ) DWAYNE E. ANDERSON, ) (Bur glary) ) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Gerald Stanley

Green John Knox Walkup Attorney at Law Attorney General & Reporter 301 Washington Avenue, Suite 302 Memphis, TN 38103- 1911 Elizabeth T. Ryan Assistant Attorney Gener al At Trial 450 James Robertson Parkway Lenal Anderson, Jr. Nashvil le, TN 37243-0493 Attorney at Law 100 North Mai n Building, Suite 3300 William L. Gibbons Memphis, TN 38103 Distric t Attorney General Perry S. Hayes Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 301 Memphis, TN 38103- 1947

OPINION FILE D: ___________________
AF FIRMED
PAU L G. SUMM ERS, Judge1 Th e ap pellan t’s cou nse l, during his m otion for a co ntinu anc e, state d tha t the sta te ha d failed to tim ely resp ond to his m otio ns fo r disc ov ery. H e cla im ed tha t the stat e p oss ess ed a sh irt fou nd at th e crim e sc en e a nd ph oto gra ph s of t he crim e scene. These i tems, he al leges , were n ot t imely deli vered t o him. The t ri al j udge st ated t hat t he appel lant 's counsel was dilatory in w aiting u ntil the trial d ate to com plain a bou t disco very p roblem s. Ne verth eless , the sh irt was not intro duc ed in to ev iden ce a t trial a nd ap pa ren tly, no ph oto gra ph s exis ted . Fu rthe rm ore , the trial ju dg e d id no t find the shirt to be excu lpat ory in nature. In fact, at

the hearing on the m otion for new trial , he allowed the appe llant' s attorney one week to review the evidence to det ermine i f i t was ex culp ator y i n any way. Nothi ng in t he rec ord su ggeststhatappell ant' s counselfound any thi ng that wo uld h ave help ed h is client. -2- O P I N I O N The appellant, Dwayne E. Anderson , was convicted by a jury of burglary and two counts

of theft of property over $1000. He was c lassified as a career offende r and received an effective sente nce of 12 years incarceration. He appeals alleg ing that he received in effective assistance of counsel. U pon revi ew, we affirm.
The appellant contends that his tri al counsel's

inadequate pr

eparation dep rived him o f a f air tr ial. Spec ific ally, he cla ims t hat h is cou nsel did n ot ha ve an adeq uate amo unt of ti me to "i nvestigate and explo re any of the i tems discovered" in his cas e. 1

Prior to trial, the appell ant's counsel moved for a conti nuance. He based his motion on the fa ct that the prosecution had only responded to his discovery request three days before trial. Also, he stated that he n eeded more time to explore a p ossible ali bi defense. The judg e denied the conti nuance.
At the hearingon the motion for new trial, cou nsel reiter

ated the fact that he was not pr

epared for trial . He claimed that his lack of preparation deprived the appellant of his

constitutiona lly g uaranteed rig ht to effective assistance. The trial judge deni ed th e mo tion find ing th at th e app ella nt re ceive d ef fec tive assistance. Furthermore, the trial j udge stated that the appellant had failed to show that hi s counsel's actions or i nactions prej udiced him in any way.

The test to de term ine wh ethe r or no t cou nsel provid ed ef fec tive assista nce at tr ial is wheth er or not h is or her pe rform ance was with in the ra nge2 The appell ant was i denti fi ed by a pol ice off icer pushi ng a groc erybasket b ehind abuil ding t hat had j ust bee n burgl ari zed. The groce rybasket contai ned sto len merc handis e taken f rom the bui ldi ng. Upon s eeing t he poli ce, t he appel lant aba ndo ned the sto len g ood s an d fled. H e w as fo und lying in the grass close to the buildin g an d w as a ppre hen ded

. -3- of competence demanded of attorney s in crimi nal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washingtion , 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed. 674 reh'g denied , 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984 ). Under Stricklandthere is a t wo-prongtest whi ch places the burden on the appell ant to show that (1) the r epresentation was deficient, and (2) the deficient repr

esentation prej udiced the defense to t he point of depriving the defendant of a fair trialwith a reliable res ult. Id . at 687. However, if this Court finds that the app ellant suffered no prejudice, any deficiency in his trial counsel is considered harmless. Strickland , 466 U.S. at 693. Therefore, even if the appellant’s counsel was ineff ective, he must show that “there is a reasonable probability

that, but for couns el’s unprofessi onal errors , the result of the proceeding would have been diff erent.” Id . at 693.

The reco rd reve als th at th e app ella nt's trial coun sel p rovid ed ef fec tive representation. His attorney cross-examined all of the state's witnesses. He effectively questioned and cast doubt on a poli ce officer's abil ity to i dentify the appellant. He elicited the fact that the appell ant's fingerprints were not found on the stolen merchandise or on anything associated with the burglary. His performance was within the range of com petence deman ded of attorneys in criminal trials. Unfortunately, for the ap pellant, the state had a substantial case again st him

. 2
The appellant has n ot carried the burden of p roving that the results of his trial would have been d ifferent had he recei ved more effective representati on. In fact, at the hearin g on the motion for new tri al, the trialjudge asked the appellant's trial counsel what he would have done dif ferently if he had been more prepared. He was unable to articulate a reasonable st rategy. The appellant received effective assistance an d was not prejudiced by his counsel's representation . We affirm the judgment of the trial court.-4- ________________________________ PAUL G. S UMMERS, Ju dge
CONCUR:

___________________________ DAVID H. W ELLES , Judge

___________________________ JOE G. RILEY , Judge