FILED

January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1997

DERRICK RICHARDSON, ) C.C.A. NO. 03C01-9605-CR-00186

)

Appellant, )

)

) HAMILTON COUNTY

VS. )

) HON. DOUGLAS A. MEYER

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

11th Judicial District

ROBIN L. HARRIS

DONNA ROBINSON MILLER Assistant Attorney General

Assistant District Public Defender 450 James Robertson Parkway

Suite 300 - 701 Cherry St. Nashville, TN 37243

Chattanooga, TN 37402

BILL COX

District Attorney General

LELAND DAVIS

Assistant District Attorney General

City and County Courts Building

Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Derrick Richardson appeals the trial court's denial of his

petition for post-conviction relief. He presents the following issue for review: 

whether the trial court erred in finding that Appellant's counsel rendered

effective assistance both at trial and on appeal.

After a review of the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

On December 10, 1992, a Hamilton County Criminal Court jury

convicted Appellant of first-degree murder. The trial court imposed a life

sentence. On appeal, this court affirmed Appellant's conviction. See State v.

Derrick Richardson, C.C.A. No. 03C01-9305-CR-00165, Hamilton County

(Tenn. Crim. App., Knoxville, June 9, 1994), perm. to appeal denied (Tenn.

1994).

On July 20, 1995, Appellant filed a petition for post-conviction relief,

alleging ineffective assistance of counsel at trial. At the conclusion of the

hearing, the trial court denied Appellant's petition.

II. POST-CONVICTION RELIEF

Appellant contends that the trial court erred in denying his petition for

post-conviction relief based upon the ineffective assistance of counsel both at

trial and on appeal.

In post-conviction proceedings, the Appellant bears the burden of

proving the allegations raised in the petition by clear and convincing evidence. 
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Tenn. Code Ann. § 40-30-210 (f)(1997). Moreover, the trial court's findings of

fact are conclusive on appeal unless the evidence preponderates against the

judgment. Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1996); Campbell v.

State, 904 S.W .2d 594, 595-96 (Tenn. 1995); Cooper v. State, 849 S.W.2d

744, 746 (Tenn. 1993).

A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Appellant's only contention is that the trial court erred in finding that his

trial counsel rendered effective assistance. Specifically, Appellant alleges the

following deficiencies in his trial counsel's representation:

(1) failure to meet and talk with Appellant for a sufficient

amount of time prior to trial;

(2) failure to challenge the sufficiency of the evidence both

at the motion for new trial and on appeal to this Court;

(3) failure to inform Appellant of the minimum and maximum

potential sentences which Appellant would face by going to trial to

enable Appellant to intelligently decide whether to accept or reject

the State's plea offer of twenty years;

(4) failure to interview certain witnesses and to call

Appellant's mother and brother as trial witnesses; and

(5) failure to consult with Appellant before deciding to

appeal appellant's conviction.

The Sixth Amendment provides in part, "In all criminal prosecutions, the

accused shall enjoy the right. . . to have the assistance of counsel for his

defense." U.S. Const. amend. 6. Similarly, the Tennessee Constitution

guarantees an accused "the right to be heard by himself and his counsel. . . " 

Tenn. Const. art. I § 9. In Strickland v. Washington, the United States

Supreme Court articulated a two-prong test for courts to employ in evaluating

claims of ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). The Tennessee Supreme Court adopted Strickland's 
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two-part test in Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The

Strickland Court began its analysis by noting that "The benchmark for judging

any claim of ineffectiveness must be whether counsel's conduct so

undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result." Strickland, 104 S.Ct.

2052, 2064. When a convicted defendant challenges the effective assistance

of counsel in a post-conviction proceeding, the Appellant carries the burden of

establishing (1) deficient representation of counsel and (2) prejudice resulting

from that deficiency. Strickland, 104 S.Ct. 2052, 2064; Powers v. State, 942

S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appellant must prove that

counsel's representation fell below an objective standard of reasonableness. 

Strickland, 104 S.Ct. 2052, 2064. This Court is not required to consider the

two prongs of Strickland in any particular order. Harris v. State, 947 S.W.2d

156, 163 (Tenn. Crim. App. 1996). "Moreover, if the Appellant fails to

establish one prong, a reviewing court need not consider the other." Id. With

regard to counsel's deficient performance, the proper measure is that of

reasonableness under prevailing professional norms. Id. (citing Strickland,

104 S.Ct. at 2065). Put differently, counsel's performance is required to be

"within the range of competence demanded of attorneys in criminal cases." 

Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975); Harris, 947 S.W.2d 156,

163. Respecting the prejudice prong of Strickland, the Appellant must

establish that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in

the outcome." Strickland, 104 S.Ct. 2052, 2068.
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The Strickland Court emphasized that "Judicial scrutiny of counsel's

performance must be highly deferential." Id. at 2065. "A `fair assessment . . .

requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the time.'" Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at

2065). The mere failure of a particular tactic or strategy does not per se

establish unreasonable representation. Id. at 369. However, this Court will

defer to counsel's tactical and strategic choices only where those choices are

informed ones predicated upon adequate preparation. Goad, 938 S.W.2d

363, 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

With respect to Appellant's first alleged deficiency, Appellant submits

that prior to trial, Attorney Charles Wright met with Appellant only three times

for a total of one hour and thirty minutes. However, at the hearing on

Appellant's petition for post-conviction relief, Mr. Wright's records reflected

that he had spent 9.6 hours discussing Appellant's case with Appellant. 

Moreover, Mr. Wright further testified that he had devoted a total of 61 hours

of time out of court and 36.1 hours of time in court to investigating and

preparing Appellant's case. We, therefore, conclude that Appellant has failed

to carry his burden of proving either prong of Strickland. Appellant has failed

to demonstrate that Mr. Wright performed below the range of competence of

attorneys in criminal cases and that Appellant was prejudiced by his counsel's

allegedly deficient performance.

To bolster his second allegation of deficient representation, Appellant

complains that his attorney was ineffective because counsel determined not to

contest the sufficiency of the evidence either in the motion for new trial or on
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appeal to this Court. In his brief, however, Appellant does not raise any issues

that would have buttressed a sufficiency argument on appeal. At the postconviction hearing, Mr. Wright explained that he did not contest the sufficiency

of the evidence in the motion for new trial or in the appeal to this Court

because he believed such a contention to have no merit and because he

believed that "there was obviously evidence enough to sustain a jury verdict." 

In his direct appeal, the only issue presented was whether the trial court

improperly instructed the jury regarding criminal responsibility. State v.

Richardson, CCA No. 03C01-9305-CR-00165, slip op. at 1. This Court held

that the jury instruction was proper. Id. at 4.

Typically, the decision about which issues to raise on appeal is one that

is left to the professional judgment and sound discretion of appellate counsel. 

Porterfield, 897 S.W .2d 672, 678; Cooper v. State, 849 S.W .2d 744, 747. 

Additionally, Wright appears to have made a well-informed strategic decision

that it would not be in Appellant's best interest to contest the sufficiency of the

evidence. Review of the record evidence in Appellant's case demonstrates

that the evidence was more than sufficient to support the verdict. In light of

the testimony of trial counsel during the post-conviction hearing, we do not

believe that Appellant received ineffective assistance because of his attorney's

decision to refrain from raising a sufficiency of the evidence argument, nor are

we of the opinion that the outcome would have been different had this issue

been presented to this Court.

Appellant's brief is wholly devoid of any argument to buttress his third

allegation of ineffective assistance of counsel. Indeed, Appellant merely

asserts, "By failing to advise petitioner of the potential sentences he was

facing so that he might make an intelligent decision about whether to accept or
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reject the plea offered by the State, Wright deficiently represented petitioner." 

The State made a plea offer of twenty years incarceration in exchange for the

State's agreement to lower the charge to second-degree murder. However,

Mr. Wright stated that after discussing the felony m urder rule and the State's

plea offer with Appellant, Appellant still insisted upon proceeding to trial. 

Appellant's own admission at the post-conviction hearing indicates he does

not regret rejecting the State's plea offer. Nothing in this record indicates Mr.

Wright's advice was deficient. In addition, since Appellant has indicated he

would still reject the plea offer, he has not demonstrated that he was

prejudiced as a result of this alleged deficiency.

With regard to his fourth allegation of inadequate representation,

Appellant asserts that his brother, Tony Richardson, and his mother Ernestine

Richardson should have been called as witnesses. Appellant also complains

that his attorney was ineffective for failing to interview four witnesses named

by a co-defendant in a statement given to police by that co-defendant, Calvin

Johnson.

Appellant contends that Tony Richardson could have rebutted the

testimony of Lakeysha Davis, a crucial prosecution witness. At Appellant's

trial, Ms. Davis testified that she observed from her front porch the events

surrounding the robbery and subsequent murder of the victim. Tony

Richardson was prepared to testify that, at the time of the murder, he was

standing in the doorway of Lakeysha Davis' apartment and that she was

upstairs in her bedroom rather than on her front porch. However, Richardson

also testified 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 of the robbery and m urder. Mr. Wright explained that he opted not to
 

1

 Calvin Johnson, Appellant's co-defendant, was also Ms. Davis' boyfriend and the father of

her child.

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call Tony Richardson because Richardson had not observed the murder. 

Moreover, Wright claimed that no one had informed him that Tony Richardson

was prepared to refute Lakeysha Davis' statement that she witnessed the

murder from her front porch. Finally, Mr. Wright emphatically stated that had

Tony Richardson been able to clearly observe the robbery and the shooting of

the victim, W right definitely would have called Richardson as a witness. 

At the post-conviction hearing, Ms. Richardson stated that had she been

permitted to testify at her son's trial, she would have recounted a conversation

between herself and Lakeysha Davis which occurred approximately three days

before the commencement of the trial. According to Ms. Richardson,

Lakeysha Davis told her, "Mrs. Richardson, wait a minute, I have something to

tell you. I'm sorry, I didn't see nothing, I don't know nothing. Calvin1 told me to

get up there and lie like that, said if I didn't, he would have no more use for me

and my baby." At the post-conviction hearing, however, both Mr. Wright and

Mrs. Richardson testified that Mrs. Richardson never disclosed this

information to Mr. W right at any time prior to Appellant's trial. 

With regard to the four witnesses mentioned above, Mr. Wright

explained that he had not interviewed them because they could not be located

and because he "had no leads about finding any of them." Under these

circumstances, we find no deficient representation. Again, Appellant has also

failed to show a reasonable probability that the result of his trial would have

been different had these witnesses been called.

Lastly, Appellant asserts that Mr. Wright rendered ineffective assistance

by neglecting to consult Appellant before filing an appeal with this Court. Mr.
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Wright stated at the post-conviction hearing that Appellant "never purported to

add anything to the appeals process." The trial court held that although Mr.

Wright should have consulted with Appellant prior to filing an appeal, it was

not necessary that Mr. Wright do so. The fact that Mr. Wright failed to confer

with Appellant before perfecting an appeal to this Court is insufficient to render

his representation deficient. Mr. Wright appealed Appellant's conviction on

what he believed to be the only meritorious claim--the possible impropriety of

the trial court's jury instruction on criminal responsibility. Furthermore,

Appellant has failed to demonstrate what he could have added to the appeals

process had he been contacted.

Because we find that Appellant's attorney rendered adequate

representation both at trial and on appeal, we affirm the judgment of the trial

court denying his petition for post-conviction relief.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

CHRIS CRAFT, SPECIAL JUDGE