### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE May 15, 200 7 S es sio n
RO BER T EA RL JOHNS ON v. ST ATE OF TEN NES SEE Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 98-A- 87 J. Randall Wyatt, Jr ., Judge

No. M2006- 01651-CCA -R3-P C - F iled Jul y 18, 2007

I n J anuar y 1998, a Davidson County g rand jury indicted t he petiti oner, Robert Earl J ohnson, on one count of f i rs t deg ree preme ditated murder . I n November 1998, following a jury

trial in Davidson County Criminal Cou rt , t h e petitioner wa s convicted on the sole count of the indictment a nd sentenc ed to life imprisonment without the possibil ity of parole. This court af firmed the c onviction on appea l. See State v. Robert Ea rl J ohnson, No. M2000-01647-CCA-R3-CD, 2001 WL 1180524 (T e nn . Cr im. Ap p. Oc t. 8 , 200 1)

. I n De c e mbe r 200 2, the pe tit ion e r fi le d a pr o s e pe tit ion

fo r p os tc on vic tio n re lie f. Couns e l w a s a pp ointe d in

Janu ary 20 03 , a nd fo llo wi ngano the r c ha

ng e in c ouns e l,
an am en d edp et i t i o nwa s fi l edi nDe ce mb er 2 0 0 5

. I n J u l y 2 0 0 6 , fo l l o wi n g an ev i d en t i ary h ea ri n g, the trial cour

t denied the pe tition. The petitioner appea ls, alleg ing that he re ceive d ineffe ctive assistance of counse l and that his due proc ess rig ht to a fair tr ial was viol ated. After revie wing the
rec ord, we conclude that the trial cour t proper ly denied the pe tition and therefor e af firm the judg ment of the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt Aff irm ed

D. K EL L Y T HOMAS , J R ., J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. and R OB E R T W. W EDEMEYER , J J ., joined.
Paul Bruno, N ashville, Tenne ssee, f or the a ppellant, Robert Ea

rl J ohnson.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Cla re nc e E. Lutz, As sis tant A tto rn e y Ge ne ra l; Victor S. J ohnson, I I I , District Attorney Gene ral; Dan Ha

mm and L isa Nay

lor, Assistant District Attorney s Gene ral, for

the appe llee, State of Te nnessee

.T hi s s ummary of t he f act s o f t he cas e and of

t r i al cour t t es t i mo ny i s t ake n l ar gel y f r om t he op i ni on del i ver ed 1 b y t hi s co urt i n t he p et i t i o ner’ s d i rect ap p eal

. See R o b ert E arl Jo hnson, 20 0 1 W L 1 1 8 0 5 2 4 , at * 1

- * 6

. A cco rding t o t he

re c o rd , t h e p e tit io n e r a n d his b ro the r, R o d e ric k J o h n so n , w e re c o -d e fen d a n ts a t t ria l. Id . at *1

. -2- OP IN ION

The re cord indicates that shortly afte r 9:00 p.m. on October 24, 1997, sever al neig hbors of 1 Willi a m E dw in B ink le y

re po rt e d h e ari nga

lou d a rgument a

nd the so un ds of

a str ug g le ins ide his apar tment. Neig hbors indicated that someone was being phy sically thrown about the apa rtment, and that someone wa s shouting such thing s as “Where ’s my money ? ” and “ I ’m g oing to shoot y ou.” One of the ne ighbor s repor

ted the victim crying out, “ Oh God, help me. T hey ’re killing me. Oh God, he lp m e .” 91 1 r e c or ds ind ic a te that at le a st thr e e re sid e nts fro m ne arb y a pa rtme nts c a lle d 9 11 to repor t t h e s t ru g g le. Vickie Miller, one of the victim’s neig hbors, testified she c alled 911, but frustrated by

what she pe rce ived to be a slow police response , she ca lled the victim’s mother, Fr ance s Hampt on, and told her to c ome home immediately . Hampton rushed to the sc ene a nd kn oc ke d o n th e do or . T wo me n e xite d th e a pa rtme nt a nd wa lke d p a st h e r. On e of

the me n w a s ta ll and thin, the other shor

t and stocky

. Hampton di d not rec og nize the thin man, but she later identified the stocky man as the petit ioner, Robert Earl J ohnson. Upon enter ing he r son’s apa rtment, Hampton found he r s on

wi th h is n e c k c ut. Th e vic timwa s tr ans po rt e d to Va nd e rb ilt Un ive rs ity

Ho sp ita l, wh e re he die d thre e da

y s late r. Th e c a

us e of de a th wa s de te rm ine d to b e fo rt y -o ne sta b w ound s to the he a d, ne c k, tor so , and e xtre mit ie s. Th e do c tor wh o te sti fi e d at tr ia l r e g ard ingthe c a us e of de a th op ine d th a t mo re tha

n o ne we a

po n w a s p ro ba

bly us e d to kil l th e vic tim

. Another ne ighbor , Der

rick B arr ett, testified that while standingby a ca r conta ining a

n abandone d infant, he saw two men—one thin, one husky —walking hurriedly toward the car , acting
su sp ic iou sly . T he tw o me n th e n e nte re d th e c ar a nd dr ov e awa

y . B arrett

g a ve the ta g numbe r t o police. The vehicle w as re g istered to Roderic k J ohnson, the petitioner’s br other a nd co-de fenda

nt at trial, who testified at trial that he wa s car ing f or his fianc e’s f

ifteen- month-old daug hter that nig ht and ofte n trave led with a baby ’s ca r seat in his vehicle. A third neig hbor, B randy Stoops, t estified that the nig ht of the murder , she saw two
me n— on e thi n, on e hu sk y —p us hin g t hro ugh a

c ro wd of pe op le outsi de the vic tim ’s a pa rtme nt. Stoops t e s ti f

ie d th a t s h e c o u ld c le ar ly s e e th e h u s ky ma n ’ s f a c e

. St o o p s late r id e n ti fied the petitioner’s photog raph in a n arr ay , stating that he was the husky man she ha d seen that night. The police wer e unable to r ecove r any fing erpr ints fr om the scene , but they did rec over the victim’s blood from Roderick Johnson ’s ca r. Additionally , a we ek later , while clea ning out the victim’s apar

tment, Hampton, the vi ctim’s mother, discover ed a sc rew driver jammed under a coff ee table. The scre wdriver

was t est ed for

blood, and the tests re veale d that the tool contained the victim’s blood. Acc ording to Jeff West, the le ad dete ctive in the ca se, both Stoops and the victim’s mother identified the pe titioner from phot og raphic arr ay s but did not identify his brother. None of the oth e r w itn e sse s w a s a ble to i de nti fy

e ith e r Johns on

br oth e r i n th e arr ay s.A re v ie w o f R o d e ric k J o h n so n ’s d ire c t ap p e a l i n d ic a te s tha t t h is c h il d w a s a c tu a lly h is fo u rte e n -m o n th-o ld 2

s t e pd a u g h t e r

. S e e S t a t e v

. Rode r i c k Jo h n s on , N o. M 19 99

- 00 60 5- CCA- R3- CD, 2000 W L 17 17 54 2, a t * 2 ( T e n n

. Cr i m. A p p

. N o v. 17 , 20 0 0 ).
-3- At trial, the petitioner testified in his own de fense , stating that he had a rathe r tumultuous rela t i o n s h i p wi th the victim. Many of their squa

bbles conc erne d illicit drugs and mone y . The petitioner said he had g otten into an argument with the victim the day befor e the victim died, but he was with his wife the night the vic tim died. The petitioner testified that he had wa nted the police to investigate wheth er his sister’s pa ramour, B aso F elder , was the ma n who was w ith Roderick John so n at th e vic tim ’s a pa rtme nt. Th e pe tit ion e r t e sti fi e d th at he and F e lde r were sim ila

r i n appea ranc e and wer e often seen with Rode rick J ohnson. Howeve r, whe n the victim’s mother wa s shown a photog raph of

Fe lder at trial, she denied se eingFe lder the nig ht of her son’ s murder. At the post-conviction hea ring , Roderick J ohnson testified that at trial, he ha d prese nted an al i b i d ef en s e f o r h i m s el f, p ar t i cu l ar l y , t h at h e w as at h i s s i s t er ’s h o u s e a tt h e t i m e o f t h e k i l l i n g. J ohnson stated that this a libi def ense was not tr

uthful testimony

. His “re vised” version of e vents was that one eve ning, he , his daug hter, and F elder (but not the petitioner) dr ove t o the victim’s 2 apar tment. Felde r we nt into the apartment; af ter a while, J o h n s o n l ef

t his daug hter in the c ar a nd went in to th e a

pa rtme nt t o d isc ov e r t

he vic timlyingon

the fl oo r a

nd F e lde r s tand ingov e r h im. When J ohnson asked F elder what was g oing on, Fe lder told J ohnson to be quiet, then knelt on the floor and stabbed the vic tim repeatedly with a knife, which J ohnson later de posited in a dumpster behind the victim’s apa

rtment. Ultimately , someone be g an knockingon the apa rtment’s front door, and both men lef

t the apar tment. J ohnson testified that he wa s in the apar tment with Fe lder a

nd the victim approxi mately

twenty to twenty -five minutes befor e he and F elder left. Johns on testified that t h i s w a s t h e f

i r s tt i m e h e h a d

r e c o u n t e d

t h i s r e v i s e d

v e r s i o no f

e v e n t s ; h e c l a i m e d

t h a t h i s a t t o r

n e ys a tt r i a l an d

o np o s t

- c o n v i c t i o nh a d

t o l d h i mn o tt o a d d

r e s s t h e i s s u e r e g ar d i n g h i s t r i a l t e s t i m o n y. The pe titioner’s three trial attorney s all testified at the he aring . One of the attorne y s testified that no mot ion to sup pr e ss the ph oto g ra ph arr ay s wa s file d, but the a tto rn e y s did ch a lle ng e the a bil ity of the witnesse s to identify the petitioner in the da

rk on cr o s s -e x am i n at ion. Counsel had no
rec ollection if the police investigate d Fe lder, but that the def ense attorney s “alwa

y s had thoug ht that [Felder] was the pe rson who had c ommitt ed the murder with Roderick or with whomever .” Counsel
rec all e d th a t o n e o f h e r ma in c o n c e r n s w a s “ th a t tw o p e o p le h a d p ic k e d [th e p e ti ti o n e r ] out of a lineup and two people wer e coming to Court and wer e g oing to identify him as having been the re.” The other two attorney s reiter ated c ounsel’s testimony , with one of the attorney s stating that ba sed on her e x amination of the photog raph a rra y s at the post-convic tion hear ing, “ there [does] not appea r to be any leg al basis for f

iling a lineup motion. I

wouldn’t file one just to file it.”

Detec tive West testified that Roderick Johnson became a suspec t based lar g ely on the ide nti fi c a tio n o f h is v e hic le in t he a pa rtme nt’ s p ark inglot

the night of th e kil lin g . D e te c tiv e Wes t stated t hat J ohnson had tol d police that he was not prese nt at t he victim ’s apartment the ni g ht of the murder, but that he did not believe J o h n s o n ’s al i b i . He a lso said that he did not place F elder ’s photogr aph in the arr ay s and did not interview Fe lder. Detec tive West said he pursued the Johnson-4-

brothers a s suspects rather than F elder based on phy sical desc riptions of t h e s u s pects a nd the prese nce of

Roderick Johnson’s car at the crime sc ene.
Th e pe tit ion e r te sti fi e d that in a dd iti on to his a tto rn e y s’ fa ilure to fi le a mot ion to s up pr e ss the ph oto g ra

pharr ay s, his ine ff

e c tiv e a ssi sta

nc e of c ouns e l c la ims we re ba se d o n the f act that hi s a tto rn e y s d id n ot c a ll h im t o te sti fy a bo ut h is w or

k h ist or y , h is lack of a

c ri min a l hi sto ry , a

nd his
r e lati o n s h ip w it

h h is c h il dr e n

. H e s a id th a t a p p e ll a te c o u n s e l f

a il e d to c h a ll e n g e the use of a “substitute” medica l e x aminer and failed to c halleng e the a bsence of F elder ’s photog raph f rom the
arr ay

. On cr oss-examination, the petitioner admitted that his parents did testify about the positive aspec ts of his chara cter

. Fe lder, who te stified for the state, denied involveme nt in the victim’s murder. He said that nobody had eve r conf

used him with the petitioner. He sa id he did not know the victim, de spite the fac t that he spent plenty of time with both J ohnson brothers a nd knew many

of their f riends. F elder
a dmi tte d th a t pr ior

to t he kil lin g , h e ha d a

n e xten siv e c ri min a l r e c or d. He h a d p le d n o c on te st t o attempted murde r af

ter be ing a ccuse d of shooting some one, and he had also a ccumulate d a drug conviction, domestic violence convictions, and an ag g ravated assault convic tion, for which F elder
was on c ommunity

corr ections at the time of the killing. Fe lder wa s a mec hanic by trade , and owne d
sever al scre wdriver s.
The victim’s mother r eiterated that the petitioner w as the one she had seen r unning f rom her son’s apa rtment the nig ht of the murder . She also denied se eingFe lder the nig ht of the murder

. STANDARD OF REVI EW: P OST-CONVI CTI ON PROCEEDI NGS

The burde n in a post-conviction proc eedingis on the petitioner to prove his g rounds for relief by clea r and c onvincing evidenc e. Te nn

. C o d e An n. § 40-30-110( f) ( 2006). On a ppeal, we are bound by the trial cour

t’s finding s of fa ct unless we c onclude t h at t he evide nce in the r ecor d pr e po nd e rate s a g a ins t th os e fi nd ing s. F ie lds v. State , 4 0 S.W. 3d 45 0, 45 6 ( Te nn . 2 00 1) . B e c a us e they relate to mix ed questions of lawand fac t, the petitioner’s claims are revie wed unde r a de novo standard w ith no presumption of corr ectne ss. I d. at 457.

I NEF FECTIVE ASSI STANCE OF COUN SEL

Th e pe tit ion e r c on te nd s th a t he re c e ive d in e ff e c tiv e a ssi sta

nc e of c ouns e l. H e c la ims he is entitled to relief because his attorney s at trial fa iled to cre ate r easona ble doubt by

prese nting sufficie nt evidence to show that Ba so Fe lder was the actua l pe rpetrator in the case . The pe titioner also bases his claim on his trial attorney s’ s upposed fa ilure to elicit testimony that the victim never ide nti fi e d th e pe tit ion e r a s th e perpetrator of the c ri me and

his a pp e llate a tto rn e y ’s fa ilure to r a ise both issues on appea l.-5-

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of counse l is made, the burden is on the petitioner to show (1) that counsel’s pe rfor mance was defic ient and (2) that the defic iency was prejudicia l. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984); see L ockhar t v. Fr etwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 84 2-4 4 (19 93 ). I n o the r w or ds , a sh ow ingthat c ouns e l’ s p e rf or manc e fa lls be low

a re a so na ble standar d is n o t e n o u g h ; r a th e r , th e p e ti ti o n e r mu s t a ls o s h o w th a t b u t f o r th e s u b s ta ndard perf ormanc e, “the result of the procee ding would have be en diffe rent.” Strickland, 466 U.S. at 694. The Strickland standa

rd has be en applied to the r ight of counsel u n d er Ar t i cle I , Section 9 of the Tenne ssee Constitution. S tate v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

The pe titioner must satisfy both prong s of the Strickland test to pre vail on a cla im of ineffe ctive assist ance of counse l. See Henle y v. State, 960 S.W .2d 572, 580 (Tenn. 1997) . The perf ormanc e prongrequire s the petitioner to show that the c ounsel’s re prese nt ation fell below a n o b j ec tive standard of

rea sonablene ss or “outside the wide rang e of pr ofessionally competent
a ssi sta nc e .” Str ic kla

nd , 4 66 U. S. at 69 0. Th e pr e jud ic e pr on g re qu ir e s th e pe tit ion e r to d e mon str a te that “ther e is a re asonable probability that, but for counse l’s profe ssional error s, the re s u l t of the pr oc e e din g wo uld have be e n dif fe re nt. ” I d. a t 694. “ A r e a so na ble pr ob a bil ity me ans a pr ob a bil ity sufficie nt to undermine confide nce in the outcome.” I d. Fa ilure to satisfy either prong results in the denial of r elief. I d. at 697.

I n Bax ter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), ou r supre me cour t decided that attorney s should be held to the g ener al standar d of whe ther t he ser vices re ndere d wer e within the
ra n ge o f c o mp et en ce d em an d edo f a t t o rn ey s i ncr i m i n al ca s es

. Fu rt h er , t h e co u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a sure d by the dutie s and c ri te ri a l se t f

or th i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F .2d 1197, 1202-04 (D.C. Cir. 1973). Also, in revie wing counsel’s conduct, a “fa ir assessment of attorney perf ormanc e re quires that ever y eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umsta n c e s o f c o u n s e l’ s c h a ll e n g e d

c o n d u c t, an d to e v a lu ate th e c o n d

u c t f r o m t h e c o u n s el’s perspe ctive at the t i m e.” Strickla nd, 466 U.S. at 689. Thus, the fa ct that a pa rticular strateg y

or tactic failed or even hurt the defe nse does not, a lone, support a claim of ineffect i v e a s s i s t ance

. De fe re nc e is m a de to t

ri a l strate g y or ta c tic a l cho ic e s if the y are inf or me d o ne s b a se d u

po n a de qu a te prepa ration. See D eCoster, 487 F .2d at 1201.

Failure to Present Evide nce that Baso Fe lder was the Perpetrator

Th e ma in c on te nti on

in t he pe tit ion e r’ s in e ff

e c tiv e ass is tance of

c ouns e l c la im i s th a t hi s attorney s failed to pre sent evidenc e that F elder was the ac t ual per

petrator in this case. As the petitioner ar g ues in his brief,-6-

tr ia l c ouns e l ma

yha v e be e n a ble to e li c it in f o r mati o n r e g ar d in g M r

. F e ld e r that would have be en helpf

ul to [ the appe llant’s] posi tion

. Fo r i nstance , trial counsel sh ou ld h av e sh own that Ba [s] o Fe lder kne w bot h [appellant] and [ his brother], and that . . . [Felder] is a mecha nic by trade ; that as a me chanic , Mr. Fe lder owns se vera l tools including wre nches and scre wdriver s, that the murder wea pon in this case was a scr ewdr iver; that the po lice neve r interview ed or e ven conta cted B a[s] o Fe lder when investiga t i n g this case; and that the police neve r pre pare d or pre sented a photogr aphic lineup in this case that included a photog raph of Ba [s] o Fe lder. . . . Tri al couns e l could havea ls o p r e s e n te d to th e ju

r y in f o r ma ti o nr e g ar d in g Mr. F e lde r’ s p a st, inc lud ingan a dmi ssi on fr om M r. F e lde r t hat hi s r e c or d s ho ws him

to be a ve ry violent person . . . .

(Emphasis adde d.)

The pe titioner’s argument, comprised of a ser ies of conc lusory

musin gs ab o ut what might have be en, does not be g in to approac h the “c lear and convincing” standard require d by statute. The pe tit ion e r fa ils to sh ow that the fa ilure of tr ia l c ouns e l to p ur su e B a so F e lde r a s a su sp e c t f e ll b e ne a th the standar d of car e expected of defe nse counsel or that this allege d failure prejudice d the petitioner in any way . As such, the pe titioner is not entitl ed to re lief on this issue.

Failure to Elicit T

estimony that Victim did not Identify Petitioner as Perpe trator

The pe titioner claims that his trial attorney s failed to elicit testimony that the victim did not identify the petitioner a s the one who committed the crime. This c ourt’s opinion in the petitioner’s direc t appea l indicates that the victim’s mother testified that shortly afte r ar riving at her

son’s apar tment the night of the incident, she saw him lying on the floor and ble edingprofuse ly . Robert Earl Johnson, 2001 W L1180524, at *2. At that poi nt, the vi ctim said, “Momma, I didn’t owe them any money . Ididn’t owe them a ny money .” I d. The victim’s statement did not indicate the identities of “them;” ther efor e, this testimony elicited the ver y information that the petitioner soug ht to introduce. F urthermor e, the pe titioner has fa iled to identify any other witness whose testimony would have y

ielded this information. As such, we conclude that the petit ioner is not entitled to relief on this iss ue. DUE PROCESS VI OL ATI ONS
The pe titioner claims that his due proce ss rig ht to a fair tr ial was violated ba sed upon (1) the perjure d tri al testimony

of his brother, Rode rick Johnson, (2) improper stateme nts made by the pr os e c uto r d

ur inghis c los ingargume nt at tr ia l, a nd (3 ) l aw e nf

or c e me nt’ s f

a il ure to in c lud e B a so Fe l d er ’s photogr aph in the ar ray shown to witnesses. We initially note that the petitioner r aised issues (2) a

nd (3) in his direc t appea l, and t his court denied the petit ioner relief on these iss ues. S ee Robert Ear l J ohnson, 2001 WL 1180524 at *14, *16-*17. Thus, in this post-c onviction appea l, we-7-

may not consider these previously deter mined issues. See Tenn. Code Ann. § 40-30-106( h) (2006)

. Th e re fo re , w e wi ll o nly

a dd re ss R od e ri c k Joh ns on ’s te sti mony a t th e po st- c on vic tio n he ari ng , in which he stated that his trial testim ony was pe rjured a

nd that the petitioner wa s not involved in the offe nse.
The petitioner did not raise the issue of the alleg edly perjure d testimony of Roderic k J ohnson on his direct appe al. Ther efor e, this issue is waived for purposes of a post-conviction appea l. See T e n n

. C r i m

. A p p

. § 4 0

- 3 0

- 1 0 6 ( g ) ( 1 )

- ( 2 ) ; S t a t e v

. B e n s o n , 9 7 3 S

. W

. 2 d 2 0 2 , 2 0 8 ( T e n n

. 1 9 9 8 )

. In the alter native, the petitioner claims that the per jured testimony

issue should be claimed be cause the te sti mony is ne wl y dis c ov e re d ev ide nc e . H ow e ve r, su bs e qu e ntl y

or ne wl y dis c ov e re d e vid e nc e in criminal ca ses is addre ssed by a writ of cor am nobis. See Tenn. Code Ann. § 40-26-105. T he re cord does not indica

te that such a writ has bee n filed. Reg ardle ss of the theory under which the petitioner seeks r elief, a

nd disco u n t i ng any

waiver issues, the petitioner has not shown that his brother ’s revised te stimony

would or even could have led the jury to f ind dif fer ently

. As the trial cour

t stated,

Roderick Johnson’s testim ony is in direct opposition to the unequivocal testimonies of Ms. Ha mpt on and Ms. Sto op s, bo th o f who m id e nti fi ed Pe tit ion e r at th e c ri me scene . I n fac t, . . . the Petitioner was the only individual identified at the scene , and
su c h ide nti fi c a tio ns we re c on fi rm e d b y the wi tne sse s nume ro us tim e s si nc e the de a th
o f t h e v i c t i m

. . . . R o d e r i c k Jo h n s o n ’ s c o n t e n t i o nt h a tt h e w i t n e s s e s m i s t a k e nly identified the Petitioner rather than Mr. Fe lder is tenuous, consider ing the ir obvious [dif ferences ] in a

pp e ara nc e

. . . . [T]he po lic e de pa rtme nt h a d ampl e op po rt

un ity to evaluate whethe r they

believed M r. Fe lder pe rpetrated the cr ime, and despite the Pe tit ion e r[’ s] and

Rod e ri c k Joh ns on’s c on te nti on [s], D e te c tiv e Wes t and his colleagues dete rmined he w as not involved. The Court finds that sufficie nt evidence does not exist to conclude that [ Roderick] J ohnson’s latest testimony is truthful and that the Petitioner’s fa ir trial rig hts were violated.

We a g re e wi th t

he tr ia l c ourt

and c on c lud e that th e pe tit ion e r’ s is su e is w ith out me ri t.

CONCL USI ON

I n consideration of the fore g oing and t he record as a whole, we conclude that the tr ial court pr op e rl y de nie d th e pe tit ion

fo r p os t- c on vic tio n r e lie f. Th e re fo re , th e jud g me nt o f t he tr ia l c ourt

is aff irmed.

________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ D. KEL L Y THOMAS, JR ., J UDGE