### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs a t K noxv ill e Jul y 26, 200 5

DA NN Y JA MES MC ALP IN v. STA TE OF TEN NES SEE

Appeal f romthe Circ uit Court for Robertson County No. 8086 Jane Wheatc raft, Judge

No. M2004- 03043-CCA -R3-P C - F iled October 5, 2005

The pe titioner, Danny

J ames McA lpin, appeals the denial of post-conviction relief

. The single issue
pr e se nte d f

or re vie w i s w he the r h e wa s d e nie d th e e ff e c tiv e a ssi sta nc e of c ou ns e l. Th e jud g me nt i s aff irmed.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court is Aff irm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES a ndJ.C. M C L IN , J J ., joined.

Gre g ory D. Smith, C larksville, Tenne ssee, f or the a ppellant, Danny

J ames McA lpin.

Paul G. Summers, A ttorney Gene ral & Reporter ; Bre nt C. Cherry , Assistant Attorney Gene ral; and Dent Morr iss, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On June 23 , 1 99 1, th e petitio ne r w a s c ha rg e d w ith the fi rs t de g re e mur de r o f the vic tim
, Sandie Horton. He was tried, co n victed, and se ntence d to a term of life in prison. This court aff irmed the c onviction and sentenc e on dire ct appe al. State v. Danny J ames McA lpin, No. 01C01- 9310-CC-00344 (Tenn. Crim. App., at Nashville, J an. 26, 19 9 6). Ther e wa s no application for
pe rm iss ion to a

pp e a l to the su pr e me c ou rt

.

I n th e op ini on of

thi s c ou rt

on dir e c t app e a l, the fa cts are se t ou t in de ta il. I n s umm ary , it

app e ars the pe tit ion e r a ndhis so n, Sc ott Mc Al pin , me t th e vic tim a nd tw o o the r w ome n, Rita Sc ott and Te resa

Danielle Par

rish, at a bar in N ashville and later a rra ng ed to meet at the residenc e of the petitioner. When the vi ctim and Ms. Parrish arrived, Ms. Scott and her two minor daug hters we re

a lr e a dy pr e se nt. A day or tw o late r, the vic tim , w ho liv e d w ith Ms. Sc ott ' s mo the r, inf or me d M s. Sc ott that sh e ha d s e e n the pe tit ion e r' s so n, Sc ott Mc Al pin
, loo kin g a t Ms. Sc ott ' s tw o d a ug hte rs " in

a su g g e sti ve ma nn e r, lic kin g his lip s" a s the c hil dr e n w e re g e tti ng ou t of a sh ow e r. Whe n M s. Sc ott confr onted him with the accusation, Scott M cAlpin denied ha ving done so and on the following day-2-

ref used to allow the victim inside his apartment. Ms. Scott and her two daug hters, who wer e at the

apa rt me nt t o h a ve din ne r w ith the pe tit ion e r a ndhis so n, we re ins ide the apa rt me nt w hil e the vic tim

c ho se to re ma in in M s. Sc ott ' s c ar p ark e d o uts ide . A t on e po int , M s. Sc ott ov e rh e ardSc ott

Mc Al pin strike the wa ll of the apa

rtment and re mark that he would "like to kill" the victim.

After war d, the petitioner and his son discussed the acc usation the victim had made a nd then took turns walking to the car to confront he r. When Ms. Scott decided to g o to the car and wa rn the victim about the possibili ty of dang er, the petitioner stopped h er , ex p l ai ning that every thing wa s "unde r control." At that point, Scott McAlpin offe red to drive the victim to the hom e of one of her friends a nd the petitioner interr u p t ed s ay i ng , "N o, I ' ll take her out." The petitioner left with the vic tim fo r a pp ro xima te ly

fo rt y -f ive min ute s a ndup on his re turn w a s me t ou tsi de by his so n. Sc ott McAlpin then drove the petitioner to a c ree k wher e the pe titioner washed himself and disposed of a knife . Twenty

or thirty minutes la ter, the two men re turned to the pe titioner' s apartment car ry ing two paper bag s that contained the victim's clothing and her purse. A short while later , the petitioner direc ted his son to ge t rid of the bag s. After his return, the pe titioner took a shower with his clothes on. L ater , he admitted to Ms. Scott that he had killed the victim, slitt ing he r throat a nd cutting he r sto ma c h o ut. Ac c or din g to M s. Sc ott , h e a lso tol d h e r tha t he ha d s ta bb e d th e vic tim ' s le g s a ndarm s. He then w arne d Ms. Scott that he would come af ter he r and her children if she told any one about the inc ide nt.

Ms. Sc ott

re po rt e d th e inc ide nt t o th e Rob ert so n Co un ty She ri ff ' s D e pa rt me nt. Sc ott McAlpin also made a s tatement im plicating the petitioner. The murder w eapon w as re cover ed fr om the cr eek. The pe titioner admitted to police that he wa s ang ere d by the victim's de rog atory

rema rks about his son and that he took her to a roa dside and stabbe d h er t o d ea t h

. Whil e in jail, the petitioner, who wa s a musician, wr ote a song admittin g t o t h e killing a nd expressing his re morse. Of fi c e rs fo un d th e te xt of

theso ng in the pe tit ion e r' s c e ll.

At tr ia l, S c ott

Mc Al pin , w ho ha d b e e n c on vic te d o f v olu nta ry ma ns laug hte r f

or his ro le in the death of the victim, testified that he ha d lied to the police in h is earlier statements implicating the petitioner. He testified that he ha d stabbed the vic tim to death and tha t the petitioner wa s blameless. A ne urolog ist also testified for the defense, say ing that the petit ioner was wea ker tha n normal i n his right a

rm. On cr oss-examination, however, he acknow ledg ed that it was possible for the petitioner to have used the a rm to stab the victim.

Dr. Char les Har lan, who testified f or the state, a lso concluded tha t the petitioner had

su ff ic ie nt s tr e ng th i n h is rig ht a rm to ha ve inf

lic te d the fata l w ou nd s. I t w a s h is o pin ion that it c ou ld not be determined whether the wounds we re c aused by the rig ht or the left ha nd. Dr. Har lan, who perf ormed the autopsy , determined that there wer e thirty -eig ht separate stab wounds, a numbe r of which we re de fensive w ounds. He stated that a wound to the vi ctim's throat had caused he r death. I t was his opinion that she had re mained consc ious for as long as t wenty minutes after the wounds

wer e inflicted.-3-

On De ce m b er2
, 1 9 9 6
, t h e p et i t i o n erfi l ed t h i s p et i t i o n fo r p o s t -c o n v i ct i o n re l i ef al l egi n g, among other th i n gs, that he wa s denied the e ffe ctive assistanc e of c ounsel at trial. The petitioner

c on te nd e d th a t hi s tria l c ou ns el wa s in e ff e c tiv e in a

nu mbe r o f w a y s, inc lud ing his fa ilu re to

a de qu a te ly c on fe r wi th the pe tit ion e r in a dv a nc e of the tr ia l, h is f a ilu re to s e c ur e wi tne sse s v ita l to the def ense, his fa ilure to arr ang e medical and other expert testing in pre paration for trial, his failure to allow the petitioner to testify on his own behalf, a nd his failure to a dequate ly prepa re f or trial.

The trial c ourt appointed c ounsel who then withdre w af ter acc epting employ ment with the district attorney

g ener al' s office

. A second attorney had to withdraw afte r discovering a conflict of interest. A third a ttorney was a ppointed in 1999 but another c onflict deve lo p ed which require d withdrawa l. L ater , the petitio n er filed a leng thy motion in which he complained a bout lack of

c omm un ic a tio n a ft e r t

he app oin tme nt of a

fo urth atto rn e y , s e e kin g the app oin tme nt o f n e w c ou ns e l. Throug h the fifth counse l appointed for the petitioner, the pe tition was am ended to include alleg ations that trial counsel was ineffe ctive for not attempting to suppre ss the confe ssion that the
pe tit ion e r c on te nd e d w a s th e re su lt o f c oe rc ion by of fi c e rs a t th e Rob e rt so n Co un ty Jail

.

At the evidentiary

hearing, the petitioner, who a sserted tha t his trial c ounsel was inef fec tive fo r having fa ile d to int e rv ie w a ndpr e se nt a s w itn e sse s Fra nc e s V a lle e , h is e x-w if e , a ndKi mbe rl y F r a n z , h i s d a u g h t e r , o f

f e r e d t h e i r d e p o s i t i o n s i n l i e u o f l i v e t e s t i m o n y

. M s V a l l e e , wh o li ve d in Ore g on at the time of the victim' s death, re called tha t Scott McAlpin had telephoned he r on the nig ht of the stabbing say ing tha t his father ha d just done "something bad." She stated that she c ould hear who she be lieved to be Rita Scott in the backg round l aug hing. She rec alled that Scott McAlpin was laug hing a s well and she specula ted that it wa s beca use the petitioner "g ot coming w hat he de serve d a long time ag o." Ms. Va llee testified that she talked with Scott McAlpin ag ain in 2003, well af ter the fi lin g of

thi s p e tit ion , a ndthat he de nie d h a vin g a nythi ng to d o w ith the mur de r. She a lso

reme mbere d that a dete ctive had inter viewed her shortly afte r t he victim ' s murder. She stated that the petitioner' s trial counsel did not contac t her.

Kimberly Fr anz also lived in Oreg on at the time she g ave he r d ep o s i t i o n

. She stated that Scott McAlpin telephoned he r on the morning afte r the stabbing to inform her that the petitioner had killed someone. S he also testified tha t McAlpin and a f emale that she overhe ard in the ba ckg round

wer e laug hing, c huckling , and talking during the telephone conver sation. Ms. Fr anz specula ted that her br other ha d been drinking a nd was not completely stable. She stated that she did not believe that the petitioner wa s g uiltyof the murde r and w as a wa re t h at h er step-brothe r had e ntere d a plea of
g uiltyto voluntary manslaug hter. She unde rstood that Scott McAlpin, who was somehow pr otected by double j eo p ar d y , had cla imed responsibilityfor the mur der at her father' s trial. Ms. Fra nz confirme d that while s he had talked with a detective at Robertson County Sheriff' s Depa rtment, she ha d n ot t a lke d w ith a ny on e re pr e se nti ng the pe tit ion e r i n a dv a nc e of the tr ia l. She re c a lle d that in a later conver sation, Scott McAlpin stated that the petit ioner got what he deser ved " for e verything that he had done [i n the past]," appa rently ref erring to his shortcoming s as a f ather

. The p e ti ti o n e r c o mp la in e d th a t h is tria l c o u n s e l d id n o t me e t w ith h im p r ior to the preliminary

hearing a nd that he had no rec ollection of having such a hea ring . He state d that he met-4-

wi th h is c ou ns e l on ly th ree ti mes for no mor e tha n f

ive to t e n mi nu te s p ri or

to t ri a l. It w a s h is contention that an investigator met with him only once for ten minutes a nd that despite the fa ct that he had w ritten his trial counsel twenty times, he only

rec eived thre e re sponses. The pe tit i o n er claimed that his trial counse l did not supply him with copies of the pleading s, failed to file a motion
to s up pr e ss h is c on fe ssi on , a ndne g le c te d to c on ta c t a ny of his ou t- of

-s ta te fa mil y

or frie nd s, or

Sc ott McAlpin, who had se parate counse l, as potential witnesses. The petitioner conte nded that trial counsel fa iled to object to false testimony offe red by

a police of

fice r, wa s inattentive during the

c ou rs e of the tr ia l, a nda t on e po int c a lle d th e wr on g jur or a s a witn e ss a ft e r the jur or ha d p os sib le improper c ommunication with a prison g uard during the courseof the trial. The petiti oner state d that he did not sign a

waiver of his rig ht to testify

but ac k n o wl ed g ed that, base d upon advice of the of fi c e rs wh o h a d b e e n a ssi g ne d as hi s guards
, he c ho se no t to te sti fy . H e c omp la ine d th a t hi s confe ssion was coe rce d and that his trial counse l had a conflict of interest beca use he ref used to take action ag ainst the jailers that ha d beate n him during his pre trial incar cer ation. The pe tit i o n er contende d that his trial counsel should have asked for a my elog ram to support his claim that he wa s ph y s ically

incapa ble of c ommitt ing the multipl e stabbing s. He e x presse d conce rn that his trial counsel fa iled to utili ze either Ms. Vallee or Ms . Fr anz as witnesses and c omplained that his landlord and neig hbors s h ould have be en ca lled as witnesses to testify that Scott McAlpin had destroy ed much of the e vidence

.

Detec tive Ronnie Perry

of the Robertson County Sheri ff ' s Depa

rtment denied tha t the petitioner had be en mi streate d at t he jail and contended that the pe titioner had injured se vera l of the employ ees th er e. He r eca lled that he had r ece ived a note f rom the petitioner just befor e the tria l asking to make a statement. Detec tive Perry testified that the petitioner signe d a wa iver, wa s advised of his ri g hts , a ndwa s in fo rm e d th a t he ne e de d to ta lk with his at torne y be fo re makin g the state me nt. Acc ording t o the detec tive, the petitioner made a tape d statement, ag ainst the advice of his trial counsel, during which he a dmitted stabbing the victim, say ing, " [W ]hen she started mentioning that

. . . Sc ott wa s lo okin g at th is la dy ' s k ids wi th d e ro g a tory thi ng s, it t op pe d me of

f, ma n, a ndI

sa id "sc rew it." And I

took her al o n g side the roa d and stabbe d the s[***] out of her." The pe titioner de sc ri be d th e e ve nt a s f

oll ow s: I say s, "c ome o n o ut of the ca r." She stepped out of the c ar and I didn't e ven stop til [l] she wa s g on e

. I did n' t ta lk to he r abo ut it or no thi ng [,] I jus t di d it . T ha t f

a st.

. . . I g ra bb e d h e r b y

thehe a d o f the ha ir . I

g o li ke that. .

. . She pu t he r l e g on e tim e lik e that a ndthat w a s a ll s he wr ote . B ut tha t w a s li ke abo ut the for th or fi fth p a ss. And last eff

ort, but no she didn't fig ht. .

. . She wasn' t c lose to me enoug h to where I was ge tting b lo o d o n me

. I d o n ' t th in k

I g o t a n y b lo o d o n me a t a ll

. . . . I d rove straig ht to the house. . . . And Scott and Rita were both for this thing. Scott put the scabba rd on the belt and I put the belt on. . . . the only thing Scott didn' t do, ha, ha, is do the job. But he wanted her dead and so did Rita. And I mean, if I didn't ha ve that support behind me[,] I wouldn' t have e ven thoug ht about it. I mean I thought they , alrig ht, they ' re not g oing to be talking, I can g et this sill y bitch out of our life. I mean she was a

leac h on every

body , she wa s a drug g ie. She had pe ople af ter he r wanting to kill her. . . . and I come home, I

honked the horn and [Scott] came up and drove me [t o] another ar ea to whe re I could wash the blood of

f my arm. . . . I

fig ured-5-

if I w a s g o in g to g e t c a u g h t, I ' ll g e t c a u g h t.

. . . I ' m n o t th e k in d o f p e r s o n that can handle it any way

. I ' d of probably ended up coming to y ou g uy s afte r a little bit. But uh, I was just . . . enra g ed and as far as I was conce rned I was supporte d one hundre d
perc ent by

Scott and Rita. . . . [ Scott] took me to a pl ace wher e a cre ek[']s at. I

. . . wash ed i t o ff , sand and a ll that stuff, and I stepped on it. . . . Then g o back to the ho us e a ndI ' m ju st s c are d to de a th so I jus t take my c lothe s ju st l ike the y

are a ndjus t jumped in the shower just in ca se I had blood on me or something. And Ijust stood there with a b ar o f s o ap

. . . . and Scott said I ' m going to chec k her stuff out. He tho u g h t s h e h a d s o me mo n e y

. H e w e n t th r o u g h a n d c h e c k e d f o r mo ney . And he said, " Well she had some money , she must have ha d it on her."

Trial counse l, who was a

former public defe nder, testified that he re prese nted the petitioner at trial and on a

ppeal. He confirme d t h at h e h ad filed seve ral motions on behalf of the petitioner pri or to the tr ia l, i nc lud ing a mot ion to s up pr e ss t

he e vid e nc e . A c c or din g to t ri a l c ou ns e l, h e a lso f i l e d m o t i o n s f

o r a m e n t a l e v a l u a t i o n o f t h e p e t i t i o n e r a n d a m o t i o n f

o r a n e v a l u a t i o n b y a

ne ur os ur g e on , w ho se te sti mon y wa s late r p re se nte d a t tria l. T ri a l c ou ns e l c on te nd e d tha t ne ith e r M s. Fr anz nor Ms. Vallee had information helpful to the defe nse, that he ha d confe rre d with the petitioner i n advanc e of the trial, and that he was fully prepa red. H e ac knowledg ed that the pe titioner had continuously alleg ed that he had been beate n at the jail in Robertson County but denied that he ha d a ny c on fl ic t of int e re st a s to that iss ue . T ri a l c ou ns e l e xpla ine d th a t he fo un d n o r e a so n to c a ll neig hbors of the pe titioner because no evide nce ha d been de stroy ed at his residenc e. Tria l counsel
t e s t i f i e d t h a tD r

. K e r s h n e r

e v a l u a t e d t h e p e t i t i o n e r

a n d t h e n c h o s e n o tt o c o n d u c t a m y e l o g r a m

. It was trial c ounsel' s strateg y to challeng e the evidenc e prese nted by the state, re ly

upon the conf

ession offe red by

Scott McAlpin at the t rial, and, in the alternative, t ry to persuade the jury that beca use of the petitioner' s diminis hed capa city
, he was unable to form the requisite intent to commit first deg ree

mur de r. Tr ia l c ou ns e l e xpre sse d c on c e rn , ho we ve r, abo ut the str e ng th of the state ' s c a se , e sp e c ia lly with the petitioner' s confe ssion to the police and the incriminating song that he had w ritten and lef t in his jail cell. I t was hi s testimony that he and the petit ioner, after a discussion, mutuallyag ree d that i tw a s i n t h e b e s ti n t e r e s to f t h e p e t i t i o n e r

n o tt o t e s t i f

y.

At the conc lusion of the evidentiary hearing, the trial court e ntere d a memorandum opinion and orde r holding that trial counsel wa s prepa red, ha d filed all the a

ppropriate motions, had adequately

communicated w ith the petitioner, had prope rly moved to suppr ess the conf ession, and had then pr esente d the suppression issue on direct appea l. The post-convic tion court furthe r ruled that the evidenc e wa s so overwhe lming, particularly g iven the admissibilityof the c onfession and the inc ri min a tin g so ng le ft by the pe tit ion e r i n h is j a il ce ll, a ny de fi c ie nc ie s in pe rf

or ma nc e wo uld not have be en pre

judicial.

I n this appeal as of rig ht, the petitioner arg ues only that trial counsel' s failure to interview a nd
pr e se nt a s w itn e sse s Franc es Va lle e a ndKi mbe rl y F ra nz, wh o s po ke by

te le ph on e wi th S c ott Mc Al pin sh ortly

a ft e r the sta

bb ing a nd re c a lle d tha t he an d Rita Sc ott ha d lau g he d at i na pp ro pr ia te times during the ir conve rsation, should have be en ca lled as def ense witnesses at t rial. The pe titioner submits t hat Ms. Valle e co uld have testified that Scott McAlpin made the comment that the-6-

pe tit ion e r w a s " g e tti ng wh a t he de se rv e d" fo r ha vin g be e n a ba d fathe r. He ma int a ins that th e re su lt of the trial would ha ve bee n differ ent if this evidence had bee n introduced.

Un de r o ur statut ory la w, the pe tit ion e r b e ars the bu rd e n of pr ov ing the a lle g a tio ns in h is p os tconviction petition by clea r and convinc ing e vidence . See Te nn. Code Ann. § 40-30- 110(f) (2003). Evidence is clear

and convincing when there is no serious or substantial doubt about the a ccur acy of the c onclusions drawn f rom the evide nce. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 1998). On appeal, the finding s of fact m ade by the pos t-conviction court are conclusive a nd will not be disturbed unless the e vidence contained in the r ecor d preponde rate s ag ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988). The burden i s on the petit ioner to show that the e vid e nc e pr e po nd e rate d ag a ins t thos e fi nd ing s. Cle nn y v. Sta te , 576 S.W. 2d 12 , 14 (T e nn . Crim. App. 1978). The credibility of t he witnesses and the we ight a nd value to be a ffor ded their te stimony

are questions to be resolved by the post-conviction co u rt

. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997)

. When a petitioner see ks post-conviction relief on the basis of inef

fec tiv e as sistance of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er ed o r t h e ad v i ce gi v en wa s b el o w " t h e r an ge of compe tence demande d of attorne y s in criminal case s." B axter v. Rose, 523 S.W

. 2 d 9 3 0 , 936 (Tenn. 1975) . Second, he must show that the de ficienc ies "ac t u ally had an a dverse eff

ect on the de fe ns e ." Str ic kla ndv. Was hin g ton , 4 66 U. S. 6 68 , 6 93 (1 98 4)

. Th e e rr or mus t be so se ri ou s a s to rende r an unreliable result. I d. at 687. I t is not ne cessa ry , howeve r, that absent the de ficienc y , the trial would have resulted in an a cquittal. I d. at 695. Should t h e p et i t i oner f ail to establish either fa c tor , h e is n ot e nti tle d to re lie f. Ou r s up re me c ou rt de sc ri be d th e sta nd ardof re vie w a s f

oll ow s:

Be cause a petitioner must establish both prong s of the test, a fa ilure to prove either de ficienc y

or pre judice provide s a suffic ient basis to denyrelief on the ineffe ctive assistanc e cla im. I ndeed, a court ne ed not addre ss the components in any particula r order or even addre ss both if the [petit ioner] makes an insuff icient showing of on e c omp on e nt.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffe ctive assistance of counsel, the petitioner is not entitl ed to the bene fit of hindsight, may

not second-g uess a r easona bly based tria l strateg y , and ca nnot criticize a sound, but

unsucce ssful, tactica l decis ion made during the cour se of the pr ocee dings. A dkins v. St ate, 911 S.W. 2d33 4, 34 7 ( Te nn . Crim. Ap p. 19 94 ). Suc h d e fe re nc e to the ta ctic a l de c isi on s o f c ou ns e l, howeve r, applie s o n l y i f t h e choic es ar e made afte r ade quate pr epar ation for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

Cla ims of ine ff

e c tiv e a ssi sta nc e of

c ou ns e l are re g ard e d a s mi xedqu e sti on s o f l a w a ndfa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Te nn. 2001); State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). When revie wing the applica tion of law to the post -c o n v i ct ion court' s fac tual finding s, our revie w i s de novo, and the post-conviction court's conclusions of l aw a re g iven no pre sumption of-7-

corr ectne ss. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. Eng land, 19 S.W .3d 762, 766 (Tenn. 2000)

.

I n Bla ck v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1 9 9 0 ), t h i s court enume rate d the
st and ardfo r e sta

bli sh ing pr e

jud ic e by c ou ns e l' s f

a ilu re to s ub po e na

wi tne sse s. To e sta

bli sh prejudice , the petitioner must: "( 1) produc e the witness a t his post-conviction hearing; ( 2) show that thr ou g h r e a so na

ble inv est igat ion , tria l c ou ns e l c ou ld h a ve loc a te d th e wi tne ss; a nd(3 ) e lic it b oth favorable a nd materia l testimonyfrom the witness." Denton v. State, 945 S.W.2d 793, 802-03 (T e nn . Crim. Ap p. 19 96 ) ( c iti ng B la c k, 79 4 S. W.2 d a t 75 7) . T his sta nd ard re qu ir e s a pe tit ion e r t o pr od uc e the un c a lle d w itn e ss at th e po st- c on vic tio n p ro c e e din g so that th e c ou rt ne e d n ot s pe c ulate as to the materiality

of the testimony

or cr edibility of the missing witness. B lack, 794 S.W.2d at 758.

Wit h reg ard to the duties of defe nse counse l, our supreme court he ld in St ate v. White, 114 S.W. 3d46 9 ( Te nn . 2 00 3) , a s f oll ow s: "[T]he basic duty

defe nse counse l o we s t o the administration of justice and a s an

o ff i ce r o f t h e c o u rt i s t o s er v e as t h e acc u s ed 's co u n s el o r a n d ad v o ca t e w i t h co u ra ge and devotion and to r ender eff ective, quality

repr esenta tion." See A BA Standards for Criminal J ustice 4-1.2( b) (3d e d.1993). This duty require s defe nse counse l to ex ert

every rea sonable e ffort to protec t the client's i ntere sts, both in the investig ation and the tr ia l of

a c a se , b y int e rv ie wi ng the c lie nt; app ri sin g the c lie nt of his or he r rig hts ;

c on du c tin g a

tho ro ug h le g a l a ndfa ctual inv e sti g a tio n o f the c a se ; a tte mpt ing to obtain information in t h e possession of the prosecution and la w enf orce ment

a uth or iti e s; f

ili ng app ro pr ia te mot ion s f or the su pp re ssi on of

the e vid e nc e ; ra isi ng a ll available claims, issues and def enses; conduc ting e ffe ctive cr oss-examination of the State' s witnesses; and attempting to miti g ate punishment if the c lient is convicted. I d. at 478.

The pe titioner arg ues t h at the witnesses w ere materia l, at least in part, be cause Detec tive Perry chose to intervie w them. Trial counsel, who testified that he wa s awa re of the witnesses a nd wh a t the y kn e w, app are ntl y c ho se no t to i nte rv ie w e ith e r o f the wo me n a ft e r c on c lud ing that th e ir testimonywould not be helpful. The de position of Ms. Vallee esta blishes that in the initi al telephone

conver sation, S co t t M cAlpin i nformed he r that the pe titioner "ha d done something bad." Severa l
y ear s later, when he visited he r in O reg on, Scott Mc Alpin confirmed that despite his trial testimony
to the c on tr ary , h e ha d n oth ing to d o w ith the mur de r o f the vic tim

. Those st atements were consistent with what S cott McAlpin had told the police prior to the trial. Acc ording to Detec tive Perry , they wer e also consistent with the results of his investigation. Detec tive Perry could find no evidenc e that Scott McAlpin was at the crime scene at t he ti me of the murder. Mor eover , it wa s only afte r McAlpin had e ntere d a plea of g uilt to vol untary

manslaug hter that he re c a nte d h is s ta te me nt t o th e po lic e a ndte sti fi e d o n b e ha lf of the pe tit ion e r at hi s trial,

c l a i m i n g t h a th e , n o tt h e p e t i t i o n e r , h a d k i l l e d t h e v i c t i m

. A l t h o u g h t h e j u r y r e j e c t e d t h e t e s t i m o n y, it w ou ld h a ve ha

rd ly be e n h e lpf

ul f or tr ia l c ou ns e l to ha ve c a lle d M s. Va lle e a s a de fe ns e wi tne ss t o-8-

fu rthe r i mpl ic a te the pe tit ion e r an d co ntr a dic t Scot t McA lpi n' s "c on fe ssi on " a t the pe tit ion e r' s tria l.

Simi larly , Scott Mc Alpin te lephoned Kimberly Fr anz shortly afte r the murde r and informed her tha t the petitioner had killed the vic tim. That would not ha v e b een he lpful to the petitioner. Further, it is our view that even if Scott McAlpin and Rita Scott had laug hed inappr opriately during telephone c onversations with bot h Ms. Vallee a nd Ms. Fra nz, it would not have made a diffe renc e in the results of the tria l in the c ontext of the e ntire testimony . Nor would a ny implication that the petitioner wa s "g etting w hat he de serve d" for having been an inadequa te fathe r. Finally
, Ms. Fra nz testified that she ha d a conve rsation wit h Scott McAlpin in 2003 reg arding the ex istence of the tape

rec ording wher ein he admitted that he wa s responsible for killing the victim, not his father, a nd, "that tape is d e str oy e d,

. . . th e y c a n' t do a nythi ng abo ut the situa tio n b e c a us e

. . . it would b e do ub le jeopar dy ." This a

ppear s to be a ref

ere nce to Scott McAlpin' s testimony at trial. He did, of course
, admit at the petitioner' s trial that h e h ad killed the victim, a statement that conf licted with the

c on fe ssi on of

the pe tit ion e r, the inv e sti g a tio n mad e by the Rob e rt so n Co un ty She ri ff ' s D e pa rt me nt, and eve rything Scott McAlpin had said prior to the trial. Scott McAlpin, of course , having alre ady be e n c on vic te d o f v olu nta ry ma ns laug hte r f

or his inv olv e me nt i n the de a th of the vic tim

by the tim e of the pe titioner' s trial, was protec ted by double jeopar dy principles fr om being re- indicted for a ny g reater off

ense r eg ardle ss of the conte nt of h i s testimony . That the pe titioner made a taped confe ssion of the crime to of fice rs and then wrote a song about the extent of his remorse qualified as the most compelling evidenc e of his g uilt. W hen mea sured with that and the ot her e vidence at tr ia l, the de po sit ion s o f M s. Va lle e a ndMs. F ra nz, if a dmi ssi ble un der any e xce pti on to the ru le
ag ainst hear say , wer e neither so favor able nor so material a s to warr ant post-conviction re lief. The evidenc e does not pre ponderate ag ainst the judg ment of the post-c onviction court that the pe titioner fa ile d to e sta

bli sh that he wa s d e nie d th e e ff e c tiv e a ssi sta nc e of

c ou ns e l.

Acc ording ly , the judg ment of the post-c onviction court is aff irmed.

___________________________________ GARY R. WADE, PRES I DI NG JUDGE