### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 13, 2002 Session STATE OF TENN ESSEE v. RICKY BR ANDON and JIMMY

W. BRANDON Appeal from the Circuit Court for Coffee County No. 30,611 L. Craig Johnson, Judge

No. M2002-00073-CCA-R3-CD - F iled October 15, 2002

The Appellants, Ricky Br andon andJimmy

W. Brandon, were convicted by a Coffee County jury of misde mea nor assault. In this direct appea l of their convictions, the Appellants argue that they received ineffective assistance of

counsel at trial and, as such, their convictions should be vacated. After r eview, w e find no e

rror and affirm

the judg ment. Tenn. R. App.P. 3; Judg ment of t he Circui t Court A ffirmed.
D AV ID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined. Robert L. Hu sk ey, Manchester, Tennessee, for the Appe llants, Ricky Brandon a

nd Jimmy Brandon. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor G en eral; Kim R. Helper, Assistant

Attorney Genera l; C. Michael Lay

ne, District Attorney

General; and Doug Aaron, Assistant District Attorney Gene ral, for the Appellee, State of Tennessee.

OPINION
Factua l Background The Appellants’ convictions stem from an alter cation on April 5, 20 00, with

their neighbor, Fred Nash. The Appellants, who are brothers, wer e initially indicted for

aggravated

assault, along withtheir sister, Darlene Brandon, who was c harged with simple assault. Followinga jury trial, the App ellants were fo

und guilt y of the lesse r offen se of ass ault, and

Darlene was acq uitted of a

ll charge s. Ill- will between Nash a nd the App ellants w as appar ently firmly entrenc hed. This lates t incide nt followed a n episode where a drunken Jimmy B randon st

ruck Na sh in the e

ye and Nash reciprocated

by breaking

a glass over

Brandon’s head. On April 5 th , the victim, Nash, and his wife drove from thei

r driveway past the Appellants, who wereworking on Ricky ’s truck . Accor ding to Ricky Brandon, as thevictim

drove by him, “g

ravels was spray

ing all over my

truck.” In response,1 The se witnesses included both the Appellants, their si ster Darlene, Darlene’s boyfriend, and Ange l Bra ndo n’s

boyf rie nd. -2- Ricky Brandon “flipped the bird” at the victim. Nash stopped his truck, grabbed a can of mace and walkedback toward the Appellant, Ricky Brandon. From this point forward, there ar e material conflicts in the testimony of the prosec ution and defense witnesses.
In th e l ig ht mo st fa vo ra bl e t o t he St at e, th e p ro of es ta bl is he d t ha t R ic ky Brandon rushed toward the v ic ti m, hi tt in g h im in th e f ac e. Th e A pp el la nt , J im my B ra nd on , j oi ne d i n t he fr ay, helping his brother

“beat the soup” out of the victim. As a result of the beat ing, the victim lost two teeth and recei ved multipl e facia l abrasions and co ntusions, r esulting in two hosp italization s. At trial, the Appellan t, Ricky Brandon, admitted to striking the victim; however, he arg ued that his conduct was justified upon grounds of self-defense. The Appe llant, Jimmy Brandon, presented an alibi defense, which included five witnesses who testified that he wa s not present when the assault occurred. 1 Coffee County De puty Sheriff Danny

Ferrell testified

that he responded to the scene and took statements from those present. He also admitted taking possession of the mace can used in the altercation. Ferrell further testified tha tthe can a nd one sta tement we

re subsequently

lost, when a department sergea nt left the force. Analysis The Appellan

ts’ sole g round with

in their motion for new trial raises the issue of ineffective assistanc e of coun sel at tri al. We hav e repea tedly held that , [T]he practice of

raising ineffective assistance of c ounsel claims on direct appeal i s ‘fraught wi th pe ri l’ si nc e i t ‘ is vi rt ua ll y imposs ible to demonstrate prejudice as required’ without an evidentiary he aring. See Kirby George Wal lace v. S tate , No. 01C01-9308-CC-00275 (T enn. Crim. App. at Nashville, Sept. 15, 1994). Instead, ‘ineffectivea ssistance of counsel claims should normally be r aised by petition for post-conviction relief.’ State v. Derenzy Turner and Verno n We st , No. 02C01-9512- CR-00390 (Tenn. Crim. App. at Jackson, July 11, 1997) perm. to appeal denied , (Tenn.1998).
State v. Bobby Vincent Blackmon , No. M2000-03149-CCA-R3-CD (Tenn. Crim. App. at Nashville, Nov. 16, 2001). The in sertion o f an inef

fective assistanc e claim w ithin a moti on for new trial e ssenti all y transfo rms the he aring o n the m otio n int o a pos t-con victi on pro ceedin g. State v. Kathy Jane Giles , No. W2001-014 68-CCA-R3 -CD (Tenn. Crim. App. at Jackson, Apr. 2, 2002). In a post- conviction procee ding, the Appellant bears the burden of establishing his claims by clear and convin cin g evidence. Tenn. Code Ann. § 40-30-2 10(f) ( 1997). To prevail on appea l, the App ellant is required to demonstrate both that counsel’s performance was de ficient and that prejudice resulted from the-3-

de fi ci en cy. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (198 4). The reviewing court

need not determine whether counsel’s performance w as deficient before examining the prejudice suffered by

the Appellant as a result of the alleged de ficiency. Id . at 697. When review ing a claim of ineffective assistance, the court must decide whether counsel’s representationfell below the range of competence de manded by

attorneys in criminal ca ses. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). The issues of deficient performance by counsel and possible p

rejudic e to the de

fense a re mixed qu estions of

law and f act; thus, our review of the ca se is de novo

. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). With regard to their respective claims, the Appellants ar gue: 1. Was De fendant , Jimmy Brandon, denied eff ective assistance of counsel by counsel failing to present to the jury his employer whose testimony would be an alibi for the Defendant and

show that he was not present at the scene of the cr ime andfor failing to subpoena Richard Spence r who was present and could

verify Jimmy Brandon’s absence?
2. Was Ricky Brandon de ni ed ef fe ct iv e a ss is ta nc e o f c ou ns el wh en hi s a tt or ne y, despite his request, failed to submit into evidence the mace can that pro ved selfdefense and the e vidence of the sta tements taken at

the scene which w ould bring into question t he cred ibility of the alleged v

ictim?
At the motion f

or new tr ial, the A ppellant s call ed no witn esse s to suppor t either o f their claims. Ins te ad , t he y ea ch su bm it te d a ff id av it s, wi th th e A pp el la nt s a s t he af fi an ts , e ss en ti al ly se tting forth facts supporting their ineffectiveassistanc e of coun sel claim s. The af fidavit of the Appellant, Jimmy Brandon, in sum, asserts that “he was not at the scene of the incident of the alleged assault

” of the victim and that he requested that his attorney subpoena his e mployer and Richar

d Spencer as alibi witnesses at his trial. The Appellant , R icky Br andon, asserts that he requested his attorney obtain statements prepared by

the investigating deputy

sheri ff a nd the mace can for production at trial, which was not done.
Fi rst, we are

constra ined to not

e the following e stablishe d princip les rela ting toth e admissibility of affidavits as evidence : An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearin g, because it is not subject to cross e xamination a

nd would imp

roperly shift the burden of proof

to the adv erse pa

rty . . . . Aff

idavits a re ge nerally not compete nt evidence unless pr

ovided by statute. . . . As a

general rule, a

party is not per mitted to create an issue o f fact b y su

bmitting a [n] affida

vit w hose c onclusion s contra dict a pr io r d ep os it io n o r o th er sw or n t es ti mo ny.-4-

3 A M
. J UR . 2d Affidavits § 19 (2002 ). Moreo ver, af fidavits a re inca pable of cred ibility assessme nt, which is of

tentimes p ivotal in de

termining ineffe ctive as sistance

of counse

l claims.
It is a well-established principle that relief under the prejudice prong is contingent upon the Appellant produ cing material witnesses at the post-conviction hearing who would have testified favora bly in support

of his def

ense if c alled at t

rial. Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (emphasis added). Failure to prese nt such witnesses precludes satisfaction of the Strickland

standard. Id . at 758.
In the case before us, the only proof presented at the motion for new trial hearing was t he affida vits of the Appellants, whichthemselves contained no new information. We find the se fact s insufficient

and the use of the affidavits inappropriate in establishing the Appellants’ bur den of proof by clear and convincing evidence. The trial c ourt’s denial of post-conviction relief is affirmed.

___________________________________ DAVID G. HAYES, JUDGE