FILED

April 21, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

MAJOR RICHARDSON, JR., ) C.C.A. NO. 01C01-9803-CR-00111 

)

Appellant, )

) DAVIDSON COUNTY

V. ) 

)

) HON. STEVE R. DOZIER, JUDGE 

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

THOMAS H. MILLER JOHN KNOX WALKUP 

P.O. Box 681662 Attorney General & Reporter

Franklin, TN 37068-1662

CLINTON J. MORGAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

VICTOR S. JOHNSON, III

District Attorney General

PATTY S. RAMSEY

Assistant District Attorney General

Washington Square, Suite 500

222 2nd Avenue North 

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

Major Richardson, Jr., the Petitioner, appeals from the order dismissing his

petition for post-conviction relief. Petitioner was convicted of aggravated robbery on

June 26, 1992, and his conviction was affirmed on appeal by a panel of this court.

State v. Major Richardson, Jr., No. 01C01-9301-CR-00016, Davidson County (Tenn.

Crim. App., at Nashville, August 19, 1993). In his petition for post-conviction relief,

Petitioner alleges that he received ineffective assistance of counsel at trial. We

affirm the trial court’s judgment.

 While the new Post-Conviction Procedure Act went into effect as of May 10,

1995, its authority only extends to petitions filed after that date. Tenn. Code Ann. §

40-30-201 et seq. At the time Petitioner’s post-conviction petition was filed on July

12, 1994, the burden of proving the allegations raised in the petition by a

preponderance of the evidence was the Petitioner’s. Clenny v. State, 576 S.W.2d

12 (Tenn. Crim. App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d

1050 (1979); McGee v. State, 739 S.W.2d 789 (Tenn. Crim. App. 1987).Moreover,

the trial court’s findings of fact are conclusive on appeal unless the evidence

preponderates against the judgm ent. 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).

In reviewing Petitioner’s Sixth Amendment claim of ineffective assistance of

counsel, this court must determine whether the advice given or services rendered

by the attorney are within the range of competence demanded of all attorneys in

criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on
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a claim of ineffective counsel, a petitioner “must show that counsel’s representation

fell below an objective standard of reasonableness” and that this performance

prejudiced the defense. There must be a reasonable probability that but for

counsel’s error the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80

L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1995).

This court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel should not be deemed to

have been ineffective merely because a different procedure or strategy might have

produced a different result. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

App. 1980). 

Petitioner’s trial counsel was a Metro Public Defender assigned to represent

the Petitioner from September 1991 through May 1992 when his trial was held.

Counsel testified that she met with Petitioner for the first time on September 29,

1991. She later met with him on at least eleven (11) occasions for a total of 5.1

hours. Her co-counsel was her supervisor, who was the senior trial lawyer in the

Public Defender’s Office. Prior to trial, counsel filed various motions in limine and

a motion to suppress the identifications of the Petitioner. Counsel conducted

discovery, including looking at evidence in the police property room. Primarily,

counsel determined the defense theory for trial as a case of mistaken identification.
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In preparation for trial, they focused on inconsistencies between the

witnesses’ descriptions of the robber to the police and the Petitioner’s actual

appearance. Trial counsel and her assistants also interviewed many of the State

and defense witnesses prior to trial. In addition, she set up a chart for trial

documenting State’s witnesses’ descriptions of the suspect to the police in

comparison to the true appearance of the Petitioner. 

The inconsistencies in the description of the suspect versus the appearance

of the Petitioner centered upon the fact that Petitioner had a tattoo in the center of

his chest. In spite of counsel’s efforts to find someone prior to trial who could

document that Petitioner did have a tattoo at the time of the robbery, she was unable

to identify anyone who could verify that fact. They discussed the possibility of the

Petitioner exhibiting his tattoo at trial, but debated whether that would waive his

rights regarding testimony and impeachment by his prior convictions. However,

during the trial counsel did discover a photograph taken of the Petitioner at the

Health Department after he was arrested which exhibited his tattoo. This

photograph was presented as evidence at trial. 

During the trial, counsel recalled that some prejudicial testimony was given

against the Petitioner, but her strategy was to “just let it go,” because she did not

want to focus upon it and allow it to “stick in the jury’s mind.” Prior to the trial date,

counsel and her assistants discussed with Petitioner the pros and cons of his

testifying. Trial counsel advised him that if he did testify then his prior record,

including several convictions for felony crimes involving dishonesty, would be used

to impeach his testimony and that he would not make a good witness. 
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Counsel’s supervisor testified that she served as co-counsel in the Petitioner’s

case. While her supervisor did not participate in the questioning at the hearing on

the motion to suppress, she believed that it was a thorough hearing with counsel

receiving information which assisted her in preparing for cross-examination at trial.

The major topics in the identification issue revolved around the inconsistencies in the

State’s witnesses’ testimony. The supervisor recalled that the Petitioner’s tattoo was

particularly central to the identification issue, with an investigator for the Public

Defender’s Office assisting counsel in attempting to locate family members or other

witnesses who could verify that Petitioner had the tattoo at the time of the robbery.

She recalled that a photograph was found late in the trial which demonstrated the

large tattoo that Petitioner had on his chest and it was admitted at trial as evidence.

The supervisor accompanied counsel to the scene of the robbery during their

preparation for trial. She also assisted counsel in preparing jury instructions and

various motions. They discussed the decision of whether Petitioner should testify

with the Petitioner, advising him of all the implications based upon his substantial

prior record. The supervisor stated that she believed that “we prepared the case and

that we thoroughly investigated the case and presented the best that anyone could

to the jury and they m ade their decision.” 

Petitioner testified that prior to trial he met with his trial counsel “periodically.”

He did not recall seeing counsel’s supervisor until “almost the day of the trial.”

Petitioner had been advised by counsel that identification was the big issue in his

case. At the time of his arrest, Petitioner stated that he did have two (2) tattoos on

his chest, the first he got in 1974 and the second was done in the early 1980's. He

could not recall anyone other than counsel coming to talk to him about his case prior
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to trial. The night before trial, counsel asked Petitioner about looking at his medical

record to see if he had tattoos. 

Petitioner testified that his counsel advised him prior to trial not to testify

because of his prior criminal history, but that she did not go into detail as to how it

could hurt him. However, counsel did tell him that regardless of his prior convictions,

the decision to testify was up to him. Petitioner told her he did not want to testify if

it was going to hurt him. He recalled that they discussed his decision regarding

whether to testify twice prior to the trial and once during the trial itself. 

In an order denying Petitioner’s petition for post-conviction relief, the trial court

held that the trial record was abundantly clear that “the jury was well informed of the

issues in this case and resolved them against the Petitioner.” The trial court further

found that testimony revealed that “numerous hours had been spent with the

Petitioner in preparation for trial and efforts had been made to locate individuals that

would confirm the Petitioner’s account of when he received his tattoos.” The trial

court reasoned that while trial counsel was unsuccessful in verifying the Petitioner’s

account of his history of tattoos in their effort to disprove the identity of Petitioner as

the perpetrator of this offense, counsel was “still successful in getting the proof

before the jury without having to subject the Petitioner to cross-examination about

his prior record.” In addition, any claims the Petitioner had regarding his right to

testify were found to be without merit as “testimony of trial counsel from the prior

hearings clearly indicate[d] that there were discussions about the [Petitioner]

testifying and the risk therein.” 
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We agree with the trial court that Petitioner’s allegation that counsel was not

adequately prepared nor did she fully investigate his case and interview witnesses

is without merit. The testimony of trial counsel revealed that numerous hours were

spent in preparation for trial and efforts were made to locate witnesses to verify when

Petitioner received his tattoos. Petitioner also contends that counsel failed to find

evidence demonstrating the existence and age of his tattoos until near the end of the

trial. It is true that the photographs depicting the tattoos on Petitioner’s chest were

not discovered until nearly the end of the State’s proof. However, testimony of trial

counsel indicated a great effort on both her part and her investigators in their attempt

to locate someone who could verify the existence and age of the Petitioner’s tattoos

prior to trial. The trial court found that trial counsel was successful in admitting a

photograph demonstrating the tattoos on Petitioner’s chest, therefore, we find that

any error in the lateness of the hour was harmless. 

Regarding Petitioner’s decision of whether to testify at trial, the trial court

found that he “was extremely vague on the number of discussions he had with trial

counsel about his testifying at trial and was further unclear in his testimony about

what information he had been provided.” From our review of the record, it is clear

that Petitioner’s testimony reflects that counsel discussed the decision of whether

to testify with Petitioner on at least three occasions, one of which occurred during the

course of the trial. Trial counsel indicated that there were discussions with Petitioner

during which the risks of testifying were discussed and that Petitioner’s prior dealings

with the criminal justice system indicate that he was informed of the risks of going

to trial and testifying. While Petitioner may now wish he would have testified, we

cannot find any prejudice in the advice of trial counsel regarding the possibility of his

prior convictions being used to impeach his testimony. 
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After a thorough review of the record, briefs and the law in the case sub

judice, we find that the Petitioner has not proven his allegations by a preponderance

of the evidence. We agree with that trial court that Petitioner’s trial counsel’s

preparation and performance did not fall below an objective standard of

reasonableness, nor prejudice the defense provided to Petitioner. 

We affirm the trial court’s dismissal of Petitioner’s petition for post-conviction

relief.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOHN H. PEAY, Judge

___________________________________

JERRY L. SMITH, Judge