# FILED
March 17, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1999 SESSION

LARRY E. D

AVIS, ) ) C.C.A. NO. 01C 01-9803-CR-00119 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RAND

ALL WYA

TT, JR., STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
LARRY B. HOOVER JOHN KNOX WALKUP 500 Church St., Suite 500 Attorney General & Repor ter Nashville, TN 37219 KIM R. HELPER Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General NICHOLAS D.

BAILEY Asst. District Attor

ney General 222 Second Ave., North Suite 500 Nashville, TN 37201-1649
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

I n 1993, the petitioner was c onvicted of aggravat

ed rape, aggravat

e d assault, aggravated burglary, and aggravated robbery. This Co urt affi rmed the petitioner’s convictions and sentence. See State v. Gregory Lamont Turner , No. 01C01- 9402-CR-00068, Davidson County (Tenn. Crim. App. filed November 1 5, 1995, at Nashv ille). Nine months later, the petitioner filed a petition for post -conviction relie f , alleging inter alia that his trial counsel r endered ineffective assistance and that the State violated his due process by wit hholding exculpatory evidence. After an evidentiary he aring, the post-conviction co urt denied the petitioner rel ief. We affirm th e post conviction court’s order.

The offenses underlying the petitioner’s convictions occurred at the

victim’s house. Se e Turner , No. 01C01-9402-CR-00068. According to the trial evidence, the petitioner and his three co- defendants forced their way int o the victim’s home. Each of the defendants searched and ransacked her hom e, repeatedly struck her, and demanded moneyfrom her. They wielded a gun, p assing it among themselv es and holding it to her head numerous times. The petitioner and two of his co-defendants repeatedly raped her, and when they left, a word processor and a television were mi ssing from her home. Even though the victim did not positively identify the petitioner prior to trial, s he positively identified him during

trial as a participant in the cri mes commi tted a gainst her. DNA evidence linked the petitioner’s co-defen dants t o the crime scene, but the petitioner’s DNA test results we re inconclusive. M oreover, his fingerpr ints were not found in the victim’s home.

The defense’s trial theory w as one of misidentification. A mannamed Larry3

Beddingfield was charged in a separ ate rap e case with one of the petitioner’s codefendants in the insta nt ca se. At the post-conviction hearing, the petitioner ’s trial counsel, George Duzane, testifiedthat he could not recall

when he fir

st heard the name “LarryBeddingfield,” although he indicated it m ight have b een prior to trial. He also recalled cross-examining a police officer during tri al about what was done to investigate Beddingfield as a suspect in the instant case. Mr.Duzane testified he did not pur sue the matter further because the petitio ner had told him he had been at the crime scene with hi s three co-defendants and had watch ed and had even begun to partic ipate in th e victim’s rape, but stopped short of actu ally penet rating the victim. Shortly after his arr est, the petitioner had given a similar statement, which was videotaped, to the police, except he omitted the details regar ding his desire to participate in the victi m’s rape.
Knowing this, and knowing that the State knew this, Mr. Duzane testified he could not in good faith argue that the petitioner had not been at the crime scene and that Beddingfield had been there instead. Mr. Duzane also testi fied that his only alternative, then, was to have argued that Beddingfield and the petitioner had both been a

t the crime
scene , but he h ad concluded that the petitioner would not have benefitt ed from him arguing that five people---the petitioner, his three co- defendants, and Beddingfield---had been at the crime scene instead of only four, as the victim had testified. Moreover, Mr. Duzane testified that

he was concernedthe petitioner would be found g uilty as an aider and abettor or as a co-conspirator if it w as revealed that the petiti oner wasat the crime
scene but did nothing to prevent the crime. In order to prevent his v ideotaped statement to the police from being introduced into evidence against hi m, the petitioner decided not to testify at trial.

Further, Mr. Duzane testified that he likely met with the petitioner twice at4

the jail and ev

ery time he

came to court in order to dis cuss the issues, update him on the case, and advise him what the other co-defendants were doing in the case. He testified he frequently spoke wi

th the petitioner and the petiti oner’s mother on the telephone. A time sheet ref lectin g almost 83 hours of work spent in connection with the case was entered into evidence, andMr. Duzane testified that the time sheet did not reflect all of his work on the case nor any of the work his law clerk completed. The petitioner admitted Mr. Duzane met with him fiv e or six times and that he was updated on his case dur in g those meetings.

The petitioner first argues t hat he wa s denied effective assistance of counsel because Mr. Duz ane failed to adequately advise hi m about his case and meet with him prior to trial. In reviewing a Sixth Amendment claim of ineffective assistanc e of counsel, this Court must determine w hether the advice giv

en or services

rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In order to prevail, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness” and that this performance prejudic ed the defense. There must be a reasonable probability

that but for counsel’ s error, the result of the proceeding w ould have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Bes t v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

According to the petitioner, M r. Duzane ’s failure to meet with him more fr equently made it “i mpossib le” for hi m “to assi st in the p reparati on of his trial.” Eve n assuming this was true, the petitioner has not shown a reasonable likelihood that but for Mr. Duzane’s actions, the outcome of the trial would have been different. Thus, the petitioner’s ineffective assistance clai m must fail. See Stricklan d , 466 U.S. at 687-88,5

692, 694 (1984); Baxter , 523 S.W.2d at 936.

The pe titioner also argues that he was denied effective ass istance o f counsel because Mr. Duzane failed t o adequa tely i nv estigate and prepare for trial. According to the petitioner, Mr. D uzane should have m ore fu lly investigated the theory that Larry Beddingf ield wa s involved in the i nstant case because he was c harged in a separate rape case with one of the petitio ner’s co-defendants in the instant case. The petitioner claimsthat if Mr. Duzane would have “raised the issue of Larry Beddingfield being a co-defendant with one of the Petitioner’s co-defendants in the instantcase, it would have certainl

y required at least a partial severance of thi s matter.”
Although it is a little unclear, it see ms the petitioner is arguing, at least in part, that Mr. Duzane should have pursued the theory that the petitioner had been confused with a

man named Larry Beddingfield a nd that Beddingfield, not the petitioner, actually committed the crimes at issue. The post-conviction cour t specifically found that Mr. Duzane “performed well within the range of competenc e demanded of criminal defense attorney s i n his handling of this parti cular case.” The petitioner has not
overcome

this factual finding by a preponderance of the evidence. See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). Even assuming that Mr. Duzane’s actions
can be faulte d, the petitio ner is still not entitl ed to relief because he has not show n a reasonable likelihood that but for Mr. Duzane’s actions, the result of his trial would have been different. Accordingto the evidence presented at the post-convi ction hearing, the petition er

had told police he had been at the s cene of the crime, and at trial, the victi m ident ified the petitioner as one of the men w ho entered her house, destroy ed he r belongings, held a gu n to he r head, and raped her. As Mr. Duzane stated, we fail to appreciate what benefit could have been derived f rom arguin g that five people rather than6

four were present at the crime scene. Accordingly, the petitioner’s argument must fa il.

The petitioner

does not explain why

he believes at

least a partial severance would have been required if Mr. Duzane hadargued that Beddingfield par ticipated in the crimes. The record is clear, how ever, tha t a severance would hav e carried several disadvantages. Mr. Duzane testified that had the petitioner’s case been severed, his codefendants, whose statements all implicated the petiti oner’s involvement i n the crimes, would have likely testified and other incriminating evidence to which the State had access would have likely been admitted into evidence against him. Thus, Mr. Duzane ag reed, joinder of the case gave the petitio ner the opportunity to pursue th e misidentification defense theory, whi ch would not have been possible with a severance. Because this Court will not second-g uess tactical choices unl ess those cho ice s were uninformed because of inadequate preparation, Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and because the petitioner has not show n that Mr. Duzane’s choic e of defense strategy was uninformed, the petitioner’s argument fa ils.

The petit ioner also argues that he is entitled to a new trial because th e State’s failure to disclose information concern ing Beddingfield viol ated his due process right to exculpatory evidence under Brady v. Maryl and , 373 U.S. 83 (1963). In order to establish a due process violatio n under Brady, the State must have suppressed material information that wa

s fa vor able to the accused. State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995)(as amende d on rehe aring). Ad ditiona lly, the de fendan t must ha ve requested the info rmation , unless t he infor mation wa s obviousl y ex culpatory, in which
case the State is bound to release the information regardless of whether the defendant requested it. Id.7 Here, Mr. Duzane testified that he could not recall when he first heard Beddingfield’s name, but he indicated it might have been prior

to trial. He also testified that he did not believe that the information concerning Beddingf ield was exculp ato ry in light of the fact that the petitioner had admit t ed being at the crime scene. The postconviction court found that the State did not supp ress any information conc erning Beddingfield and that even if it had, the petitioner “w ould not have been prejudiced by any late disclosur

e of the chall enged informa tion at tri al.” Th e post -conviction court furth er found that “based on the particular facts of this case . . . the Beddingfield i nformation was not necessarily favorable to the petitioner or material to his defense.” The petitioner has not overcome these findings, which are fully supp orted by therecord. Accordingl y, the petitioner’s argument must fail. See Edgin , 902 S.W.2d at 389; see also Buford , 666 S.W.2d at 475 (factual findings are c onclusive on appeal unles s overcome

by a preponderance of the evidence).

In sum, the petitioner has not show n entitlement t o post-c

onvict ion rel ief. Accordingly, w

e affirm the post-conviction c ourt’s order denying

his petition.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JERRY L. SMITH, Jud ge

______________________________ THOMAS T. W OODALL, Judge