1 See Stat e v. Geor ge Langford , No. 02- C01-9703-CR-00099, 1997 WL 632805 (Tenn. Cri m. App., J ackson,

Oct. 15, 1997 ).

2 See State v. Langford , 994 S.W .2d 126 (T enn. 1999 ). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs D ecember

4, 2001 GEORGE LANGFOR

D v. STATE OF TE NNESSEE Appeal from the Criminal Court for Shelby County No. P-23634 Chris Craft, Judge

No. W2001-00371-CCA-R3-PC - Filed February 7, 2002

The Defend ant, G eorge Langford, w as convicted of first degree fe lo ny m ur de r, ag gr av at ed bu rg la ry, aggravated

assault, and reckless endanger ment. He was sentenced to life without the possibility f or parole for the murder and to concurrent sentences of four, five, and two yea rs for the other crimes re sp ec ti ve ly. The Defendant appealed his convictions and this Court affirmed the convictions and the sentenc es. 1 Our supr

eme court granted the Defenda nt’s application for appeal and also affirmed his convicti ons and se

ntences

. 2 The Def

endant th en filed a petition for post- convicti on relief alle ging ineffective assistance of counsel. The trial court dismissed the petiti on. The D efenda nt now app eals to this Court alleging th at the tri al court erred i n deny

ing him relief. We affirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D AVID H. W ELLES , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and D AVID G. H AYES , J., joined. Juni S. Ganguli, Memphis, Tennessee, for the appellant, George Langf ord.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney Gen eral; William L. Gibbons, District Attorney General; and Katrina Earley, A ssistant District Attorney General, for the appellee, State of Te nnessee.

OPINION-2-

In the early

morning of

April10, 1995, t

he Defe ndant ar rived at the duple x he share d with his girlfriend, Diana Wilson, after having spent two or three weeks in Mississippi. The duplex was leasedto Ms. Wilson. When the Defendant requested permission to e nter the duplex to g et his clothes and see h

is childre n, Ms. Wilson

refuse d. The De

fendant became angry , suspect

ing that Ms. Wilson had a male visitor, and fired a shot through the living room window. The Defendant then directed one of his compa

nions to kic

k in the door, and entered the duplex. Ms. Wilson hid in her bedroom closet withfifteen-y ear-old Tamara Gay les, who was visiting. The Defendant entere d the bedroom a

nd shot two

or three times into th

e closet , striking

and killing

Miss Gay

les.
On direc t appeal

to this Court, the Defendant contended that the evidence was insufficient to support his aggravated burglary and f elony murder c onvictions because the State failed to prove that the duplex was not the Defendant’s residence and, alternatively, that the D efendant was entitled to a jury instruction on the lesser -included offense of criminal t respass. This Court affirmed the Defend ant’s convi ction s, and the su preme c ourt a ffirm ed thi s Cou rt’s r ulin g. The Defend ant now c ontends th at he wa s prejudi ced by his trial c ounsel’si n effective assistance both prior to and during trial. The Defendant arg ues that trial counsel was ineffective in failing to proper

ly p repare for tria l, negotia te a plea agree ment, inte rview po tential w itnesses, obtain a mental ev aluation

of the De fendant , and pro

perly advise him of the da

ngers o f testify

ing on hisown behalf.
To sustain a

petition f

or post-c onviction

relief, a defendant must p rove his orher factual allegations by clear

and convincing evidence at an evidentiary

hearing. See

Tenn. Code Ann. § 40- 30-210(f); Momon v. Sta te , 18 S. W. 3d 152, 156 (Tenn. 1999). Upon review, this Court will not reweigh or reev aluate

the evide nce belo w; allquestions concerning the credibility of witnesses, the weight and value to be given their testimony , and the factual issues raised by the evidence are to be resolvedby the trial

judge, not the appellate courts. See Momon , 18 S.W.3d at 156; Henley v. State , 960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fa ct on a petition for post

conviction relief are afforded the w eight of a jury verdict and

are conclusive on appeal unless the evidence prepond

erates agains t those findings. See Momon , 18 S.W.3d a t 156; Henley , 960 S.W.2d at 578-79.
Both the Sixth Amendment to the United States Constitution and A rti cle I, § 9 of the Tennessee Cons tit ution guarantee a defenda nt the right to representation by counsel. See State v. Burns , 6 S.W.3d 453, 4 61 (Tenn . 1999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1 975). Thi s righ tto counsel includes the right to effective counsel. See Strickland v. Washington , 466 U. S

. 668, 686 ( 1984); Burns , 6 S.W.3d at 461; Baxter , 523 S.W.2d at 936.
To determine whethe

r counse l provide d effectiv e assistan ce at trial, the court must decide whether counsel’s performance was within the rang e of compet ence de manded of

attorne ys i n criminal cases. Baxter , 523 S.W.2d a t 936; Hicks v. St

ate , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succeed on a claim that his or her counsel was inef fective at trial, a defendant bears the3 The Defendant als o raise d this iss ue on direct appeal and thi s Court

and our supre me court f ound suff

ici ent evidence to s usta in the convi cti ons for aggravat

ed burgl ary and f

elony mu rder

. See Stat e v. Langford , 994 S.W.2d at 127; State v. George L angford , supra, fn. 2. Our supreme court held that only t he Defendant ’s gi rlf

rie nd, Ms. Wil son, wa s in “law ful po ssession ” of th e pro perty , and thus sh e had the rig ht to re fuse th e D efen dan t entry

. Id. at 128. -3- burden of showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth Am endment and that the deficient representation prejudiced the defendant resul t ing in a failure to produce a reliable result. Strickland , 466 U.S. at 687 ; Burns , 6 S.W.3d at 461; Hicks , 983 S.W.2d at 245. To satis fy th e second prong, the defendant must show a reasona ble probabil

ity that, but for counsel’s unreasonable error, the fact finder would have had reasona ble doubt reg arding

the defe ndant’s g uil t. See Strickland , 466 U.S. a t 694-95. T

his reasona ble probabil

ity m ust be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v . State , 875 S.W.2d 6 62, 665 (T enn. 1994 ); Owens v. State , 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999).
When reviewing trial counsel’s actions, this Court should not use the benefit of hindsig

ht to second- guess trial str ategy and criticize counsel’s tactics. See Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Owens , 13 S.W.3d at 749. Counsel’s alleged errors should be judge d at the time they were made in light of all facts and circumstances. See Strickland , 466 U .S. at 690; Hic ks , 983 S.W.2d at 246.
The Defend ant first conte nds that tr ial couns el was ine

ffectiv e in her p

repara tion for tr ial. Sp ecifica ll y, the Defendant argues that counse l did not review discovery , interview witnesses, or subpoena a possibl e witness to testify on behalf of the Defendant. Trial counsel testified that she received and reviewed discovery

from the State. Trial counsel, who at the time of trial was the Coordinator

for the Capital Defense Unit of th e Shelby County Public Defender’s Office, further stated that she me

t with the D efenda

nt on eig hteen dif ferent occasio ns to discu ss his case and prepare for his trial. Accord

ing to tr ial couns el, investigators from the Public Defender’s Office interviewed all potential witnesses who could be located.
The Defendant’s central

complaint is thattrial counsel failed to subpoena and call a crucia l “alibi” witness to testify that the apartment the D efendant was accused of burglarizing was, in fact, his own residence. T he Defe ndant c ontends he could not have burglarized his own home, and, therefore, the felony murde r charge based on

the underlying

offense of aggr

avated burglary

must be reversed. 3 The Defendant believe s this witne ss’s testi mony was cru cial in

establishing his residence at the time of

the offe nse. Tria l counsel testifie d that the

Defend ant infor

med her o f this witne ss prior to tr ial. However, trial counselalso testified that the testimony of the Def endant’s girlfriend clearly established that the Defendant lived in the residence in question at the time of

the offense, and that issue was never

contested by the State. The refore, the witness’s testimony would have been cumulative.
The Defendant also contends that trial counsel was ineffe ctive in f ailing to effec tuate

a plea barga in on behalf of the Defendant. However , the Defendant concedes that he wa s unwil ling to-4-

pleadguilty to an o ffen se greater than second de gree murder, and trial counsel testified tha t the District Attorney, honoring

the wishes of the victim’s family , was unwilling to enter into a plea agree ment. Trial counsel stated and the Defe ndant con cedes th at an atte

mpt was ma

de to neg otiate a plea. Next, the Defe

ndant ar gues tha t trial counsel was ineffective by not requesting a mental evaluation of the De

fendant . The Def

endant ha s a

history of alc oholism in his family and was appare ntly intoxicated at the time of the offense. Trial counsel stated that i n her n umero us mee tings withthe Defe

ndant she never ob served a

ny indicatio n that a me

ntal eva luation wo

uldbe necessary or helpful. Furthermore, the Defendant’ s intoxication at the time of the offen se was a p art of the de fe ns e’ s “ ac ci de nt al ki ll in g” th eo ry o f t he ca se wh ic h w as re je ct ed by t he ju ry. Finally, the De

fendant contends that he was not properly advised about the possibility of a prior manslaughter

conviction being used for impeach ment purp oses. Thiscontenti on contra dicts the Defendant’s own testimony at the hearing on the petition fo r pos t-conviction relief. The Defendant

testified that tri al counse l informed him that the conviction could be used by the prosecution if the Defendant “opened the door.” The Defendant testified that the prior conviction was introduced during the sentencing phase of the Defendant’s trial, and not after the Defendant’s testimonyduring the guilt phase. Furthermore, trial counsel supported the Defendant’s testimony that she fully informed him of the a dvantages and disadvantage s of testifying on his own be half.
It is clear from the record

that the trial court credited the testimony of trial counsel with her extensive case file, and

not the factual allegations made by the Defendant. The trial

court stated that “[n]one of the allegations in the petition having been found to ha

ve merit, Defend ant has f ailed to carry his ‘burden of proving the allega tions of fact by cle ar and convincing evidence.’” See Tenn. Code Ann. § 40-30-210(f). We conclude that the record supports the trial court’s finding that trial counsel’s performance was within the rang e of competence demanded of

attorne ys i n crimina

l cases. See Baxter , 523 S.W.2d a t 936; Hicks , 983 S.W.2d at 245.

CONCLUSION For the foregoing reasons, we conclude that the trial court properly deniedthe Defendant’s request for post-conviction relief. The judgment of the trial court is AFFI

RMED.

___________________________________ DAVID H. WELLES, JUDGE