# FILED
September 9, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLLE AUGUST SESSION , 1999

JERMAINE LEJUANE HUNTER , * * No. 01C01-9809-CR-00397 Appellant, * * DAVIDSON COUNTY vs. * * Hon. J. Randall Wyatt, Jr., Judge STATE OF TENN ESSEE, * * (Post-Conviction) Appellee. *
For the Appellant : For the Appellee : Jefre S. Goldtrap Paul G. Summers Attorney Attorney General and Repor ter 207 Third Avenue, North Post Office Box 190599 Elizabeth T. Ry an Nashville, TN 37219-0599 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Katy N. Miller

and Nick Bailey Asst. District Attor

neys General Washington Square, Suite 500 222 Second Avenue South Nashville, TN 37201

OPINION FILED: AFFIRMED
David G. Hay

es, Judge1 The facts underl ying t his conviction reveal that, o n November 8, 1993, the a ppellant murdered his ex-gi rlfri end approximately two weeks after the terminati on of thei r relat ionship. The twenty-year o ld victim su ffered m ultiple guns hot wou nds to he r forehe ad, torso , leg and ha nds. An eyewit ness, who had known the appel lant for fifteen years, identi fied the appellant as the shoote r. See State v. Jermaine Hunter , No. 01C01-9506-CR-00176 ( Tenn. Crim. App. at Nash ville, Aug. 22, 1 996), perm. to appeal de nied , (Tenn. Feb. 3, 1997). 2 OPINION
The appellant, Jermaine LeJuane Hunter, appeals the Davidson C ounty Criminal Court’s dis missal of his petition for post-conviction relief. On J anuary 11, 1995, the appellant was found gui lty by a jury of first degree murder and recei ved a life sentence in the Tennessee Depar tment of Correction. 1 His conviction and sentence were affirmed by thi s court on direct appeal. See State v. Jermaine Hunter , No. 01C01-9506-CR-00176 (Tenn. Crim. App. at Nashville, Aug. 22, 1996), perm. to appeal denied , (Tenn. Feb. 3, 1997). The appellant collaterally attacks his conviction for first deg ree murder upon grounds of ineffectiv e assistance of counsel. Specifically, he contends that trial counsel was deficient for (1) failing to ade quately prepare for trial and meet w ith the appellant; (2) faili ng to fully communicate w ith the appellant his vulnerabi lity regarding sentencing; and (3) faili ng to investigate and utilize all possible alibi witnesses.

After review of the recor d, we affirm the lower cour t’s denial of post-convic tion relief.

Analysis
On December 29, 1997, the appellant filed a pro sepetition for postconviction relief all eging that he had receiv ed the ineffective assistance of cou nsel and that the State had withheld exculpatory evidence. The post-conviction court appointed counsel on February 18, 1998. No amended petition w as filed. An evidentiary hearing

was subsequently held on May 20, 1998. On Jul y 24, 1998, the3

post-conviction court

entered an order addressing the appellant’s claims and denyin g the ap pellant

relief.
In dismissing the petiti on, the post-conviction c ourt found, in parts pertinent to this appeal: The petitioner contends that [couns el] did not have adequate ti me to prepare for trial and that he di d not conduct a competent pre-tri al investigation. [Cou nsel] testified that he was appointed to represent the petitioner approximately six (6) weeks before trial. [Counsel] indicated that such time ordi narily would hav e not been sufficient to prepare for a case of this nature. However, he asser ted that the petitioner’s prior att

orneys . . . had already thoroughly prepared th e case at the time he was appoi nted and that he largely just needed to review the investigative file and the audio tape of the preliminary hearing to prepare himself for trial. [footnote om itted]. [Counsel] also testified that he met with the petitioner and the petitioner’s family on occasions prior to tri al to discuss the case. [C ounsel] indicated that he was ready to proceed o n the day of trial and, accor dingly, did not seek a continuance. [footnote omitted]. . .

.

. . . [Counsel] testified that he dis cussed potential defense strateg ies with the petitioner prior to tr ial and ultimately, w

ith the approval of the petitioner, pursued an alibi defense. . . . The Court finds no re ason to second-guess the tactical and strategic decisions of counsel. The f act that the jury apparently did not accredit the alibi defense is not reflective on counsel’s efforts. The petitioner also contends that [counsel] f ailed to call certain witnesses who coul d have supported his alibi defense. However, the Court points out that the defense of ali bi had already been introduc ed through several family

members whom the jury appa rently did not find to be credible. Any additional testimony reiterating the petitioner’s claim would have been cumulative. Moreover, as [counsel] acknowledged, the state’ s evidence was simpl y too strong for any claimed alibi defense. In any event, the petitioner failed to . . . present any such witnesses a t the evidentiary he aring. In sum, the Court is satisfied that [counsel] handled th e petitioner’s case in a professional manner. The Court is of the opinion that [counsel] competently repr esented the petitioner at all stages of the case. [”Despite claims t o the contrary, the Cour t finds that the petitioner was wel l aware of the sentence he w ould face if convicted of first degree murder.”] The petitioner could not articulate with any specificity any cr

edible claims of deficient and prej udicial errors by counsel, and, accordingly, has failed to carry hi s evidentiary burden

. To succeed in a post-convi ction claim of ineffective assi stance of counsel, the appellant must show, by clear and convincing evidence, Tenn. Code Ann. § 40-3 0-4

210(f) (1997), that the serv ices rendered by tria l counsel were deficient and that, but for the deficient performance, the resul ts of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). For purposes of prov ing ineffective assistanc e of counsel, proof of deficient representation by omission requires more than a speculative showing of lost potential benefit. The post-conv iction court found that counsel w as not deficient and that counsel’s action did not prejudice the appellant. When this court u ndertakes review of a lower

court’s decision on a peti tion for post-conviction relief, the lower court’s findings of fact are g iven the weight of a j ury verdict and ar e conclusive on appeal absent a finding that the ev idence preponderates against the judgment. See Davis v. State , 912 S.W .2d 689, 697 (Ten n. 1995) . After re viewing the r ecord, we conclude that the evidence doe s not preponde rate against the detailed find ings entered by the post-conv iction court.
As a result, we find no er ror of law requiri ng reversal. The judg ment of the trial court dismissi ng the appellant’s petitio n for post-conviction r elief is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_____________________________________ JOE G. RILEY, Judge

_____________________________________ L. T. LAFFERTY, Senior Judge