# FILED January 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1997

DERRICK RI CHARDSON, ) C.C.A. NO. 03C01-9605-CR-00186 ) Appe llant, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A.MEYER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conv icti on)

FOR THE APPELLANT : FOR THE APPELLEE : ARDENA J. GARTH JOHN KNOX WALKUP Distri ct Public

Defender Attorney Generaland Reporter 11th Judicial Dist rict ROB IN L. HA RRIS DONNA ROBINSON MILLER Assistant Attorney General Assistant Distri ct Public Defender 450 James Robertson Parkway Suite 30 0 - 701 C herry St. Nashvill e, TN 37243 Chattanooga, TN 37402 BILL COX Distri ct Attorney General LELA ND D AVIS Assistant Distri ct Attorney General City and County

Courts Buil ding Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

Appe llant De rrick R ichard son a ppea ls the tria l court's denia l of his petition for p ost-con viction relief. H e prese nts the follow ing issue for review: whether the t rial cour t erred i n findin g that Appell ant's counselrendered effective assista nce b oth at tria l and o n app eal. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL

BACKGROUND On De cembe r 10, 1992, a H amilton Co unty Criminal C ourt jury convicted Appella nt of first-deg ree mu rder. Th e trial court im posed a life senten ce. On a ppeal, this court affirm ed App ellant's con viction. See State v. Derrick Rich ardson , C.C.A. N o. 03C 01-930 5-CR -00165 , Ham ilton Cou nty (Tenn . Crim. A pp., Kno xville, June 9 , 1994), perm. to appeal denied (Tenn. 1994). On Ju ly 20, 199 5, Appe llant filed a pe tition for post-c onviction re lief, allegi ng ineffec

tive assi stance of counselat tri al. At t he conclusion of the hearing, t he trialcourt deni ed Appellant' s petiti on.

II.POST-CONVICTI ON RELIEF Appellant con tends that the tri al court erred in denyi ng his peti tion for post-convi ction rel ief based upon t he ineffec tive assi stance of counselboth at trial and on ap peal. In post-convictionproceedings, the Appellant bears the burden of proving th e allegatio ns raised in the petition by clear an d convin cing evide nce.-3-

Tenn . Code Ann. § 40-30-210 (f)(1997). Moreover, t he trialcourt's findings of fact are co nclusive on appeal unless the evidence prepond erates against the judgm ent. Tidwe ll v. State , 922 S.W .2d 497 , 500 (T enn. 19 96); Camp bell v. State , 904 S.W .2d 594 , 595-96 (Tenn . 1995); Coop er v. State , 849 S.W.2d 744, 746 (T enn. 1993 ).

A. EFFECT IVE ASSI STANCE OF TRIA L COUNSEL Appe llant's o nly con tention is that th e trial co urt erre d in find ing tha t his trialcounsel render

ed effective assistance. Specif icall y, Appell ant alle ges the followi ng defici encies in hi s trialcounsel's r epresentati on: (1) fai lure to meet a nd talk wi th Appellant for a sufficient amo unt of tim e prior to trial; (2) failure to c hallenge the sufficien cy of the ev idence both at the m otion for ne w trial and o n appe al to this Co urt; (3) fai lure to i nform Appellant of the mini mum and maximum potential s entenc es which Appella nt would face by g oing to trial to enable Appellant to intelligently decide whether to accept or rej ect the State's plea off

er of twenty years; (4) failur e to inte rview c ertain w itness es an d to ca ll Appellant' s mother and brothe r as tri al witnesses; and (5) failure to c onsult with Appella nt before deciding to appeal appell ant's convi ction. The Sixth Amendment provi des in part , "In al l crimi nal prosecut ions, th e accu sed s hall en joy the rig ht. . . to ha ve the a ssista nce o f coun sel for h is defense." U. S. Const. amend. 6. Similarly, the Tennessee Const ituti on guaran tees an accuse d "the right to be hea rd by him self and h is couns el. . . " Tenn. Const. art . I § 9. In Strickl and v. Washington , the United States Supreme Court arti culated a t wo-prong test

for courts to employ i n evaluati ng claims of i neffective assistance of counsel. 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) . The Tennessee Supreme Court adopted Strickl and 's-4-

two-part test in Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn. 19 90). The Strickl and Court began its analysi s by noting that "The benchmark f or judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functio ning of th e adversari al process t hat the trial
canno t be relied o n as ha ving prod uced a just result." Strickl and , 104 S.C t. 2052, 2064. When a convicted defendant challenges the effective assistance of counsel i n a post-convi ction proceeding, the Appellant carries the bu rden of establi shing (1) deficient representat ion of counseland (2) prej udice resul ting from tha t deficiency

. Strickl and , 104 S.C t. 2052, 20 64; Powe rs v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appel lant must pr ove that
couns el's repres entation fe ll below an objective s tandard of reaso nablen ess. Strickl and , 104 S.Ct. 2 052, 2064. This Court is not required to consider t he two pron gs of Strickl and in any pa rticular orde r. Harris v. S tate , 947 S.W.2d 156, 16 3 (Ten n. Crim. A pp. 199 6). "More over, if the A ppellant fa ils to establish one pro ng, a revie wing co urt need not cons ider the oth er." Id. With regard to counse l's def icient performance, t he proper measure is that of
reason ablene ss und er prevailing professio nal norm s. Id. (citi ng Strickl and , 104 S.Ct. at 2065). Put different ly, counsel 's performance is requir ed to be "within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s." Baxter v. Rose , 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d 156, 163. Re specting the prejud ice prong of Strickl and , the Appellant must estab lish tha t "there is a rea sona ble pro bability th at, but fo r coun sel's unprofe ssional e rrors, the re sult of the p roceed ing wou ld have b een differe nt. A rea sona ble pro bability is a prob ability su fficient to unde rmine confid ence in the outco me." Strickl and , 104 S.Ct. 2 052, 2068.-5- The Strickl and Cour t emp hasiz ed tha t "Judic ial scru tiny of co unse l's perform ance m ust be hig hly defere ntial." Id. at 2065 . "A `fair asse ssme nt . . . requires t hat every ef fort be made to eliminate the distorting ef fects of hindsigh t, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to e valuate th e cond uct from couns el's persp ective at the time.'" Goad v. State , 938 S.W.2d 363, 369 (Tenn. 19 96) (quoti ng Strickl and , 104 S.Ct. at 2065). The mere failure of a parti cular tacti c or strategy does not per se establish unreas onable represe ntation. Id. at 369 . How ever, th is Cou rt will defer to couns el's tactical and strategic ch oices only whe re those cho ices are informe d ones predicate d upon adequ ate prep aration. Goad , 938 S.W.2d 363, 36 9; Hellard v. S tate , 629 S.W .2d 4, 9 (Ten n. 1982). With respec t to Appe llant's first allege d deficien cy, Appe llant subm its that pri or to trial, At

torney Charl es Wright met with Appel lant onl y three t imes for a total of one hour and thirt

y minutes. However, at t he hearing on Appellant' s petiti on for post- convicti on relief , Mr. Wright' s records reflected that he ha d spen t 9.6 hour s discus sing Ap pellant's ca se with A ppellant. Moreover, M r. Wright furthe r testified that he had de voted a total of 61 ho urs of time out

of court and36.1 hours of time in cour

t to inv estigati ng and preparing Appel lant's case. We, therefor e, conclude t hat Appellant has fail ed to carry his b urden o f proving e ither pron g of Strickl and . Appellant has fail ed to demonstrate that Mr. Wright per formed below the r

ange of competence of attorne ys in crim inal ca ses a nd tha t Appe llant wa s preju diced by his c ouns el's allegedl y defici ent performance. To bolster hi s second allegation of def icient representat ion, Appell ant comp lains that h is attorney w as ineffec tive becau se cou nsel dete rmined not to contest t he suffi ciency of the evidence e ither i n the motion for new tri al or on-6-

appeal to t his Court. In his brief, however, Appell ant does not r aise any i ssues that wou ld have b uttressed a sufficienc y argum ent on a ppeal. A t the postconviction hearing, Mr. Wright explained that he did not contest the suffi ciency of the evidence in the motion for ne w trial or in the appea l to this Court because he believ

ed such a contenti on to have no merit and because he believed that "there w as obvio usly evide nce en ough to sustain a jury verdict." In his direct appea l, the only issue prese nted was w hether the trial court improp erly instructe d the jury re garding criminal re spons ibility. State v. Richardson , CCA No. 03 C01 -9305 -CR- 0016 5, slip o p. at 1. T his Co urt held that the jury in struction w as prop er. Id. at 4. Typicall y, the deci sion about whi ch issues to r aise on appeal i s one that is left to the pro fessiona l judgme nt and so und disc retion of ap pellate co unsel. Porte rfield , 897 S.W .2d 672 , 678; Coop er v. State , 849 S.W .2d 744 , 747. Additional ly, Wright appe ars to have made a wel l-informed strategi c decision that it would not be i n Appellant' s best interest to co ntest the suffic iency of t he evidence. Rev iew of the r ecord evidence in Appellant's case demonstrates that the evidence was more than suf ficien t to support

the verdi ct. In light of the testi mony of tri al counsel during the post-convict ion hearing,we do not believe that Ap pellan t receive d ineffe ctive as sistan ce be caus e of his attorne y's decision to refrain from raising a sufficiency of the e vidence argu ment, nor are we of the opi nion that the outcome would have been different had thi s issue been p resente d to this Co urt. Appellant's brief is wh olly devoid of any argu ment to bu ttress his third allega tion of in effective assista nce o f coun sel. Ind eed, A ppella nt me rely asserts, "By fail ing to advi se petit ioner of t he potentialsentences he was facing so t hat he might make an i ntelli gent decisi on about whether t o accept or-7-

reject the p lea offered by the Sta te, W right deficien tly represe nted pe titioner." The State made a plea off er of twent

y years i ncarcerati on in exchange for the State's agree ment to lowe r the charge to s econd-de gree mu rder. Howeve r, Mr. W right sta ted tha t after dis cuss ing the felony m urder rule an d the S tate's plea offer w ith Appe llant, Appe llant still insisted u pon pro ceedin g to trial. Appellant' s own admission at the post-convictionhearing in dicates he does not regret rejecting the State's plea offer. No thing in this record indica tes Mr. Wright's advi ce was defici ent. In add ition, since Appell ant has indi cated he would sti ll rej ect the pl ea offer, he has not demonstrated that he was prejudiced as a result of this alleged de ficiency. With regard to hi s fourth al legation of inadequate representat ion, Appellant ass erts that his brothe r, Tony Richar dson, and his mother Ernestine Richardson shoul d have been call ed as witnesses. Appellant a lso complains that his attorney

was ineffective f

or fail ing to i ntervi ew four wit nesses named by a co -defen dant in a state men t given to police by that c o-defe ndan t, Calvin Johnson. Appellant con tends that Tony Richardson coul d have rebutted the testim ony of L akeys ha Da vis, a cru cial pro secu tion witn ess. A t Appe llant's trial, Ms. Da vis testified tha t she obs erved from her front p orch the events surrounding t he robbery and subsequ ent murder of t he victi m. Tony Richardson was prepar ed to test ify t hat, at t he time of t he murder, he was standing i n the doorway of Lakeysha Davis'apartment and that she was upstairs in her bedroom rat her than on her f ront porch. However, Richar dson also testif ied that he could not see the events surrounding the murder because his view was obstructed by a van which was parked between himself and the location o f the robb ery and m urder. M r. Wrig ht explaine d that he o pted no t to1 Calvin Johnson,Appellant's co-defendant , was also Ms. Davis' boyfriend and the f ather of her chil d. -8- call Ton y Richard son be cause Richard son ha d not ob served th e murd er. Moreover, Wright c laimed that no one had informed him that Tony Richar dson was prepared to r

efute Lakeysha Davis' statement that s he witnessed t he murder from her f ront porch. Finall y, Mr. Wright emphaticall y stated t hat had Tony Richardson been abl e to clearly observe t he robbery and t he shooting of the victim, W right definitely w ould ha ve called R ichardso n as a w itness. At the post- convicti on hearing, Ms. Richardson stated that had she been permitted to testif

y at her son' s trial , she would haverecounted a conversation between h erself and Lak eysha Da vis which occu rred approxim ately three days before the commencement of t he trial . According t o Ms. Richardson, Lakeys ha Da vis told her, "M rs. Richa rdson, w ait a minu te, I have so methin g to tell you. I'm sorry, I d idn't se e noth ing, I do n't kno w noth ing. Ca lvin 1 told me to get up t here andli e li ke t hat , sa id if I did n't , hewoul d hav e no moreusefor

me and my baby." At

the post-convicti on hearing, howev er, both Mr.Wright and Mrs. R ichard son te stified th at Mrs . Richa rdson never disclos ed this informa tion to Mr. W right at any tim e prior to A ppellant's trial. With regard to the four witnesses mentioned above, Mr. Wright explained t hat he had not i ntervi ewed them because they coul d not be located and because he "had no leads about finding any of them." Under these circumstances, we find no defi cient representati on. Again, Appellant has also failed to show a re asonable p robability that the result of his trial would h ave been differ

ent had these wi tnesses been cal led. Lastly, Appellant

asserts that Mr. Wright rendered i neffective assi stance by neglecting to co nsult Appellan t before filing an appe al with this Court. Mr.-9-

Wrig ht stated a t the post-c onviction h earing th at Appe llant "never p urported to add anything to the appea ls process." The trial court held that although Mr. Wright should have cons ulted with Appellant prior to filing an appeal, i t was not necessary that Mr. Wright do so.The fact that Mr. Wright fai led to confer with Appell ant before per fecting an appeal to t his Court i s insuff icient to render his represent

ation defi cient. Mr. Wright appealed Appel lant's convicti on on what he beli eved to be the only meritorious clai m--the possibl e impropriet y of the tri al court' s jury i nstructi on on criminalresponsibi lity . Furthermore, Appe llant ha s failed to dem onstra te wha t he co uld ha ve add ed to th e app eals process had he been contacted. Becau se we find that App ellant's attorn ey rende red ade quate representat ion both at trialand on appeal, we af firm the j udgment of the t rial court de nying his p etition for po st-convictio n relief.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ CHRIS C RAFT, SPECI AL JUDGE