### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J anuary

6, 2004 CHRISTOPHER A . WILLIAMS v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County

No. P 21727 J. C. McLin, Judge

No. W2003-00676-CCA-R3-PC - Filed May 6, 2004

T he Appellan

t, Christopher A. Will iams, brin gs this a ppeal as of righ t from the

Sh elby Count

y Criminal Court’s de

nial of his

petition f

or post-c onviction

relief. Willi ams was convicted of atte mpted aggra

vated robbery

and felony murde

r. On appeal, he argues that the post-c onviction court erred by denying his motion for an ex parte hearing and for investigative servi ces. After a review of the record, we af firm the judgment of the post-conviction court. Tenn. R. App. P. 3; Judg ment of the Crim inal Court Affirme d.
D AVID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOM AS T. W OODA LL , JJ., joined.
Paul K. Gu

ibao, Mem

phis, Ten nessee, for the A

ppellant , Christopher Williams

. Paul G. Summers, Attorney Gene ral and Repo rter; Mi chael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; WilliamL. Gibbons, District Attorney Gene ral; and Ray Lepone, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION
Factua l Background

The Appellant, who was fourteen ye ars old a

t the time o f the off

enses, was indicted for f

irst degreemurder, felony

murder, and attempted aggr avated robbery

and was tried as an

adult. His

first trial resulted in a hung jury . In his second trial, the jury could not reach a verdict on eit her of the murder indictments but found

the Appellant

guilty of attempted a

ggravated robber

y. The Appellant was sentenc ed as a

Range I off

ender to six years in the County Workhouse and fined $1,000.00. At a third trial, the Appellant was convicted of felon y mu rder, and he was sentenced to life imprisonme

nt. The Appellant’s convictions were affirmed on dire ct appeal. See State v. Chris topher1 Th e cou rt reaso ned that:

I would want to have a hearing. I want to hear f rom the lawyer, what

he was a sked t o do by the client and wha t he , i n fa ct, did. And at tha t poi nt w e’l l mak e a det ermi nati on and i f we need t o pro ceed further, I w ould n’t cut you off at that p oint. -2- A. Williams , No. 02C 01-971 1-CR-00440 (Tenn. Crim. App. at Jackson, Dec. 10, 1998), perm. to appeal denied , (Tenn. 1999) (f

elony murder c onviction

); State v. Christopher A. Williams , No. 02C01-9711-CR-004 27 (Te nn. Crim. App. at Jackson, July 29, 1998), perm. to appeal denied, (Tenn. 1999) (attempted agg ravated robbery

conviction).
The relevant facts, as summarized by this court in the Appellant’s direct appeal of his murder conviction, reflect that

the Appellant, in the presence of his mother and brother, ga

ve a stat ement to the police admitting his involvement in the crimes. According to the statement, he a nd a man called “Black” were walking together when they saw

a man walking toward them. “Blac k” said to the Appellan t, “let’s r ob that m an,” and handed the Appellant a pistol. The Appellant called the man over to him and when the man approached, he

putthe pi stol up and poin ted at this man's up pe r b od y. [The victim] pushed the pistol in my hand down toward his leg s, then I pulled the trigger and he was shot in the leg. Then [the victim] started running towards the church. I blasted the g un three (3) more times. Then the [victim] was still r

unning a nd I r an out o f bull ets and th e [victim] kept running to the side of the church and the [victim] fell face down inthe gra ss on the si de of the church. I saw

him on th e ground crawling[.] Christopher A. Williams , No. 02C01-9711-CR-00440.
OnAugust 6, 1999, the Appellant filed a petition for post-conviction relief. F ollowing the ap pointmentof counsel, an amended petition was filed, wherein he a lleged that he re ceived t

h e ineffective assistanc e of coun sel and w as denie d a prope r juvenile transf e r hearing. Thereafte

r, counsel filed a “Motion for Order Authorizing Expenditure of Funds.” On December 18, 2001, a hearing was held on the motion, and the post-conviction court took the motion u

nder adv isement. Prior to the presentation of proof at the evidentiary hearing, the post-conviction court orally advised the parties that the motion was denied but provided that this ruling could be revisited subject to the proof presented. 1
OnAugust 22, 20 02, an evidentiary hearing was held, at which the Appellant, the A ppellant’s mother, and tria

l counsel testifie d. The pos t- conviction court denied relief by written order on February 6, 2003. This timely appeal followed.-3- ANALYSIS
The Appellan t argues that the post-conviction court erred in de nying his re quest for funds “[f]or purposes of hiring an invest igator to conduct a factu

al investi gation i

nto this ca se in orde

r to meet the requ ireme nts of Bax ter v. Rose , 523 S.W.2d 930 (Tenn. 1975), up to $1,000.00.” The Appellant seeks investig ative fu

nds to loca

te three witness in

order to support hi s ineffe ctive cla im. He asse rts that Me lvin Bell

and Gre g Fra

nklin would support hi s alibi def

ense and could disc

redit a portion of his statement. With regard to a third witness, Brody

Moore, the Appellant contends that Moore was resp onsible

for the murder and attempted robbery . The post-conviction court remained unconvinced and

denied the Appella

nt’s req uest.
Ini ti al ly, we are constrained to note that the issue r aised by the Appellant is not proper f or review within a Rule 3 appea l as of right. Tenn. R. App. P. 3. Post-conviction proceedings are availab le only to challeng e the abridg me nt of a constitutional right within the conviction or sentencingprocess

at the tri al level. Tenn. Code Ann. § 40-30-103 (2003). The alleged error her e occurred not within the trial process but within t

he post-c onviction

process
. As such, this ancillary issue should have been pursued within the context of a n interlocut ory appea

l, as provided by Tennessee Rules of Appel late Procedu re 9 and 10, prior to the presentation of proof. Notwi thst andin g, we elect review o f the issue, which is performed under an abuse of discre tion standard. State v. S

cott , 33 S.W.3d 746, 752 (Tenn. 2000).
Section 5(a) of

Tenness ee Supre

me Court Rule 13 give s disc reti on to a tria l cou rt to a uthor ize expertservices only in “the trial and direct appeal s of al l crimina l cases in which the

defenda nt is entitled to appointed counsel and in the tria

l and appe als of post-conviction proceedings in capital case s[.]” R. Tenn. Sup. Ct. 13, § 5(a). In State v. B arnett , 909 S.W.2d 423, 431 (Tenn. 1995), our supreme court conclude d that the

federa l constitut ion entitle d a defe

ndant in a noncapit al case to a state-funded

psychiatric e

xpert and established the procedures for doing so. Generally , the trial court is require d to conduct an ex parte hearing on such a request after a n indige nt defen dant “in a written sealed motion to the trial court al leges p articula r facts and circumstances that raise the question of the defendan

t's sani t y.” Id . at 429-30. However, in Davis v. State , 912 S.W.2d 689, 695 (Tenn. 1995), in response to a post-convi ct ion petitioner's request, following a rape conviction, for a “scient ific analysis of

petitioner's bodily fluids,” the court concluded that he was not entitled to such testing at state expense. The cour t stated “ that the st ate is not r

equired to provide expert assistance to indigent non-capital post-conviction petitioners.” Id . at 696-97. Furthermore, when, as in this case, a claim of ineffective assistance of counsel is predicated on a failure to investigate, the Appe llant is obligat ed to show

what a re asonable

investig ation wou

ld have revealed. Richard Leonard Mendoza v. State , No. M2001 -01855-C CA-R3-CD ( Tenn. Cri m. App. at Nashville, Mar. 28, 2003), perm. to appeal denied, (Ten n. 200 3) (ci ting Owens v. State , 13 S.W.3d 742, 756 ( Tenn. Cri m. App. 1999)). The Appellan t failed t o make the

requisite showing in connection

with his claims. As the Appellant admits, it is unlikely that Brody Moor

e would have confessed to being the perpetrator

of the crime s. The App ellant pr esented his version of the e

vents to the jury, including tha

t Brody Moore

coerced him into confessing by t hr ea te ni ng hi s f

am il y. An-4-

alibi def ense wa s presen

ted to the jury throug

h the testimony of the Appellant’s mother a nd sister. Melvin Bell and Greg Fra

nklin would have been cumulative alibi witnesses, and the Appellan t could only hyp othesize a s to whethe r either of them ha

d spoken w

ithMoore about his involvement in the crime. Regar

ding the Appellan t’s asser tion that B ell and F ranklin c ould discr edit a portion of the Appellant’s statement, the portion re ferenced is in conse quent ial an d not outco me affe cting. “Unsupported

assertions that [an] e

xpert is nec essary

to counter

the State's proof are not sufficient.” Scott , 33 S.W.3d at 753 (quo ting Ba rnett , 909 S.W.2d at 431). Moreover, even if this indigent Appellant had the right

to the ser vices of an invest igator as a res ult of his post-conviction claim, we could not conclude that the post-conviction court erred in not pr oviding this service. Antoine Harbison v. State , No. M2001 -00887-C CA-R3-CD(Tenn. Cr im. App. at Nashville, Apr. 10, 2002), perm. to appeal denied, (Tenn. 2002).
The Appellant also argues that he wasdenied an ex parte hearing on this matter. However, nowhere inthe record does the Appellant request an ex parte hearing . This issue is without me

rit. Tenn. R. App. P. 36(a) (nothing in this rule shall be construed as requiring relief be gra nted to a p arty responsible for an error or who failed to take whatever action was re asonably ava ilable to prevent or nullify the harmful e ffect of an error).
CONCLUSION
Base d upon the foregoing authorities and re asoning, the judgment of the post-conviction court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE