# FILED
February 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUARY 1997 SESSION

CHAD SWATZELL, ) ) NO. 01C01-9604-CC-00154 Appellant, ) ) WILLIAMSON COUNTY VS. ) ) HON. HENRY DENMARK BELL, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT : JOHN H. HENDERSON District Public Defender C. DIANE CROSIER Assistant District P ublic Defender 407C Main Street P.O. Box 68 Franklin, TN 37065-0068 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter SUSAN ROSEN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937

OPINION FI LED:

AFFIRMED

JERRY L. SMITH, JUDGE2 OPINION
The petitioner, Chad Swatz ell, appeals the dismissal of his petition for post-conviction reli ef filed in the Circuit Cour t of Williamson County. The petition er filed a petitio n for pos t-convict ion relie f based upon ine ffecti ve assistance of counsel. The tria l court dismissed the petition after a hearing. The judgment of the trial court i s affirmed.

I.
The petitioner was conv icted by a jury of firs

t degree murder, aggr

avated assault with the intent to commit armed robbery, and second degree burglary while in possession of a firearm. He was sentenced to an effect ive life term as a Range I Standard Offender. The petiti oner sought post-convi ction relief alleging ineffective assistance of counsel . Specifically, he all eges trial counsel failed to: (1) move to suppress peti tioner’s confession, (2) r elay any plea offers from the prosecution, and (3) proper ly investigate c

harges against the petitioner. An evidentiary hearing

was held, after whic

h the court dismissed the petition, finding petitioner’s trial cou nsel exceeded minimum constitutional levels of performance.

II.

The tria l judge's f indings of fact on p ost-convi ction hea rings are co nclusive on appeal unless the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App. 1995). The tr ial court’s findings of fact ar e afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the recor d preponderates against those findings. Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Cour t may not reweigh or reevaluate the evidence,nor substitute its inferenc es for those drawn by the trial3

judge. Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the weight and value to be given t

o their testimony are resolved by the t rial court, not this cou rt. Black v. State , 794 S.W.2d at 755. The burden of establishing that the evidence preponderates other wise is on petitioner. Id

.

III.

This Court review

s a claim of ineffective assist ance of counsel under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984). The petitioner has the burden to pr ove that (1) the attorney ’s performance was deficient, and (2) the deficient per formance resulted in prejudice to the defendant so as to deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). The test in Tenne ssee for determin ing whethe r counsel provided e ffecti ve assistance is whether the performance was within the range of competence demanded of attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner must overcome the presumption tha t counsel’s conduct falls within the wide range of acceptabl e professional assistance. Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams , 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to prove a defici ency, a petitioner must show that counsel’s acts or omissions wer e so serious as to fall below an objective standard of reasonab leness under prevaili ng professional norms. Strickland v. Washington , 466 U.S. at 688, 104 S.Ct. at 2065 ; Goad v. State , 938 S.W.2d at 369.4 In reviewing counsel's conduct, a "fair assessment . . . requires that every effort be made to eliminate the distorti ng effects of hindsight, to recons truct the circumstances of counsel's challenged conduct, and to e valuate the conduct from counsel's perspectiv e at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065. The fact that a particu lar strategy or tactic failed or hurt the defense, does not, standing alone,establish unreasonable repr esentation. However, deference to matte rs of strategy and tacti cal choices applies only if the choices are informed ones based upon adequate preparation. Goad v. State , 938 S.W.2d at 369; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v. State , 847 S.W.2d 521, 52 8 (Tenn. Crim. App. 1992).

IV.
Petitioner’s parents ini

tially retained Kentuck

y attorney, Marc A . Wells, to represent their son. Because of her experience in criminal law, Mr. W ells subsequently associated Tennessee attorney, Virginia Story. Mr. We lls remained as co-counsel, assisting Ms. Story in the preparation of petitioner’s defense.

A. Motion To Suppress At the evidentiary hear ing, Ms. Story tes

tified that she did not file a motion to suppress the petitioner’ s statement to police because she did not believe it to be legally sustainable. The record shows the petitioner was read his Miranda rights in the presence o f his parents before being ques tioned. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed .2d 694 (1966). The petitioner and his parents were informed several times during the questioning that they could request counsel at any time and questioning w ould cease until counsel ar rived. The record also shows the petitioner and his parents w ere asked if they understood these rights, t o which they responded affirmatively. After the petitioner gave his statement, he and his parents reviewed and signed it. Ms.5

Story stated that after making an investigation of these facts, she believed the petitioner’s only v

iable defense to be an insanity plea.

B. Plea Offers Ms. Story further testi

fied that she did not recall any plea agreements being offered by the Distri ct Attorney General’s office. There was no testimony offered by the petitioner to show that such an off er was ever made. The only mention of a plea agreement by anyone involved came from the petitioner’s mother. She stated Ms. Story briefly talked to them about pl ea negotiations, but suggested that an insanity plea was a better defense. The trial court foun d there was no evidence that any settlement offers were ever made by the state.
C. Pre-trial Investigation The petitioner claims that counsel was ineffective in failing to prope rly investigate his cas

e. Although counsel may not have thoroughly in

vestigated the crime scene, she concluded that it was not necessary

given the circumstanc es of this particular case (i.e., petitioner’s voluntary confession). Furthermore, there has been no showing as to what a further investi gation would have r evealed; thus, there has been no showi ng of prejudice. Counsel further testified that she interviewed all p

ossible witnesses i n this case including al l police officers, the autopsy specialist, the psychiatrist, the psy chologist, and severa l character witnesses.
D. Trial Court Findings In its order denying

the post-conviction peti tion, the trial court found the petitioner’s counsel subs tantially exceeded the constitutional standard of effective assistance. “[T]he Court is satisfied that def ense counsel were thoroughly prepared both with respect to antici pating the state’s evi dence, understanding the law app licable and the presentation of the evidence for the defendant.” The evidence does not prepon derate against these findings.6 V.

Petitioner’s counsel w

as presented with a difficult factual scenario. The defense, although ultimately unsuccessful, was found by the trial court to be a tactical decision based upon an informed opinion. We find the evidence does not preponderate against the findi ngs of the trial court. Accordingly, the judgment of the trial court is AFFIRMED.

__________________________ JERRY L. SMITH, JU DGE

CONCUR:

_________________________ JOHN H. PEAY

, JUDGE

_________________________ JOE G. RILEY, JUDGE