# FILED April 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999

MAJO R RIC HARD SON , JR., ) C.C.A. NO. 01C01-9803- CR-00111 ) Appe llant, ) ) DAVIDSON COUNTY V. ) ) ) HON. STEVE R. DOZI ER, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST- CONVICTI ON)

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, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III Distri ct Attor ney General PATTY S. RAMSEY Assistant Distri ct Attor ney General Washington Square, Suite 500 222 2nd Avenue North Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION
MajorRichard son, Jr., t h e Petitio ner, ap peals from th e orde r dism issing his petiti on for post- convicti on relief . Petit ioner was convicted of agg ravated robbe ry on June 26, 1992, and hi s convict ion was aff irmed on appeal by a pan el of this cou rt. State v. Major Richard son, Jr. , No. 01C01 -9301-C R-00016, Davidson Count y (Tenn. Cri m. App., at Nashvi lle, August 19, 1993). In hi s petiti on for post-co nviction relief, Petiti oner alleges t hat he receive d ineffective assistan ce of cou nsel at trial. W e affirm the tria l court’s judg ment.

While the new Post-Convi ction Procedur e Act went int

o effect as of May 10, 1995, its aut hority

only extends to peti tions fi led after thatdate. Tenn . Code Ann. § 40-30-201 et seq. At the ti me Petitioner’s post-convicti on petiti on was filed on July 12, 1994, th e bu rden of proving the allegations raised in the petition by a prepon deranc e of the ev idence was the Petitioner’s
. Clenny v. State , 576 S.W.2d 12 (Tenn . Crim. A pp. 197 8), cert
. denied , 441 U.S . 947, 99 S .Ct. 2170, 60 L.Ed.2d 1050 (1979); McG ee v. State , 739 S.W.2d 789 (Ten n. C ri m. App. 1987 ).Moreover, the t ri al court’s f indings of fact ar e conclusive on appeal unless the evi dence preponderatesagainst the judgm ent. Tidwe ll v. State , 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn. 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

In reviewin g Petitione r’s Sixth Amen dment claim of ineffective assistance of coun sel, this cour

t must determi ne whether the adv ice given or servi ces rendered by the attorn ey are within th e rang e of co mpe tence dem ande d of all a ttorney s in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on-3-

a claim of ineffe ctive co unse l, a petitio ner “m ust sh ow tha t coun sel’s representat ion fell below a n objective standa rd of reas onable ness” a nd that t his performance prejudicedthe defense. There must be a reasonabl e probability that but for coun sel’s error t he result of the procee di ng wou ld have b een differe nt. Strickl and
v. Washington , 466 U.S. 668, 687-88, 692, 694 , 104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (19 84); Best v. Sta te , 708 S.W.2d 421, 422 (Tenn. Crim . App. 1995 ).

This court should n ot second-g uess trial counse l’s tactical and stra tegi c choices unless those c hoices were uni nformed because of inadequate preparati on. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 19 82). Coun sel shou ld not be d eeme d to have been ineffective merely because a differ ent procedure or strategy migh t have produced a different re sult. William s v. State , 599 S.W.2d 276, 280 (Tenn. Cr im. App. 19 80).

Petition er’s trialcounsel was a Metro Public Defender assigned to r

epresent the Petit ioner f rom September 1 991 thro ugh May 1992 whe n his t rial wa s he ld. Counsel testif ied t hat s he met with Petitioner f or the fi rst ti me on September 29, 1991. She late r met with him on at least eleve n (11) oc casions for a total of 5.1 hours. Her co -coun sel was her supervi sor, who was the senior trial l awyer in t he Public Defende r’s Office. Prior to tri al, counselfiled various moti ons in li mine and a moti on tosuppr

ess t he id enti ficati ons of the Petit ione r. Co uns el conducted discovery, includi ng looking at eviden ce in t he police prop erty room. Prim arily, counsel determined the defense t heory for trialas a case of mistaken identi ficati on.-4- In prepara tion for trial, they fo cused on incon sistencie s betw een t he witness es’ descript ions of t he robber to t he police and t he Petiti oner’s act ual appearance. Trial counsel an d her assistan ts also interv iew ed ma ny of the S tate and defense wit nesses prior to tri al. In addition, she set up a chart f or tri al documenting State’s wi tnesses’ descriptions of the s uspe ct to the police in comp arison to th e true ap pearan ce of the P etitioner.

The inconsistencies in the descripti on of the suspect versus the appearance of the Peti tioner centered upon the fac t that Pet itioner

had a tatto o in the center of his c hest. In spi te of co unse l’s efforts to find s ome one p rior to tria l who c ould document that Pe titioner d id have a tattoo at the tim e of the robbe ry, she was u nable to identi fy anyone who co uld verify that fa ct. They d iscusse d the po ssibility of th e Petiti oner exhibiting h is tatto o at trial, but de bated wheth er that w ould w aive his rights regardin g testimo ny and im peach ment by his prior convictions. Ho wever, dur ing the trialcounsel did di scover a photogr aph taken of t he Petiti oner at the Health D epar tmen t after he was a rreste d whic h exhib ited his tattoo. T his photog raph wa s prese nted as evidenc e at trial.
During the trial, c ouns el reca lled tha t som e preju dic ial testi mony was given against the Petition er, but he r strategy was to “j ust let it go,” because she did not want to focus upon i t and all ow it to “stick i n the jury’s mind.” Prior to the trialdate, counsel and her a s sistan ts discu ssed with Pe titioner th e pros and c ons o f his testif ying. Trial co unsel advis ed him that i f he did testify then his pr ior recor

d, includi ng several conv iction s for fel ony crimes involv ing dishonest y, would be used to impe ach his te stimon y and tha t he wou ld not ma ke a go od witne ss.-5- Cou nsel’s supervisor

testif ied that s he s erve d as co -coun sel in th e Petitio ner’s case. While her supervi sor did not partici pate in th e questioni ng at the heari ng on the motion to suppr

ess, she beli eved that i t was a thorou gh h earing wit h counsel receivi ng information which assiste d her in prepa ring for c ross-e xamin ation a t trial. The majortopics i n the ident ificat ion issue r evolved aro und the inconsi stencies i n the State ’s witnesses’ testim ony. The su pervisor re cal led that t he Petiti oner’s tat too was particu larly central to th e identi ficati on issu e, with a n inves tigator fo r the P ublic Defe nder’s Office assisting cou nsel in attemp ting to locate family m embers or other witnesseswho could verify that Petiti oner had the tat too at the t ime of the robbery. She recalledthat a photograph was found l ate in thetrialwhich demonstrated the large tattoothat Peti tioner had on his chest and it was admitted at tri al as evid ence.

The supervisor

accompanied counsel to the scene of the rob bery d uring th eir preparati on for tr ial. She also assisted counsel in pre paring jur y instructions and variousmotions . They di scusse d the de cision of w hether P etitioner sh ould testify with the Pe titioner, a dvising him o f all the impl icatio ns based upon his substantial prior record. Thesupervisor stated th at she beli eved that “we prepared t he case and thatwe thoroughly investi gated the case and presented the best that anyonecould to the jury and they m ade their decision .”

Petiti oner testif ied that prio r to trial he met w ith his trial couns el “periodic ally.” He did not recall seei ng coun sel’s supervis or until “alm ost the da y of the trial.” Petiti oner had b een a dvised by cou nsel th at iden tification was th e big iss ue in h is case. At the ti me of his arrest, Peti tioner stated that hedid have two (2) tattoos on his ches t, the first h e got in 1974 a nd the se cond w as don e in the ea rly 1980's. He could not recall anyone other t han counsel coming to talk to him about his case prior-6-

to trial . The night b efore tr ial, counsel asked Petitioner about looking at

his medical record to see if he h ad tattoos
.
Petiti oner testif ied t hat his couns el advised him prior to trial not to testify because of his pr ior cri minal history, but that she di d not go into deta il asto how it could hurt him. However, counsel did tel l him that regardless of his prior convict ions, the decisio n to tes tify was u p to him . Petition er told h er he d id not wan t to testify if it was going to h urt him. He rec alled that they discussed his decisi on regarding whethe r to testify twice p rior to the trial an d once during the trial itself.

In an order denyi ng Petiti oner’s petition for post-convi ction rel ief, t he trial court held that the t rial r

ecord was abundantl y clear t hat “thejury was well i nformed of the issues in this case and resolved them against the Petit ioner.” The trialcourt fur

ther found that testimony re ve aled that “numerous hours had been spent with the Petiti oner in preparat ion for t rial and efforts had been made to locate i ndividual s that would confirm thePetiti oner ’s accou nt of when he recei ved his tat toos.” The t rial court reasoned that while trial counselwas unsuccessful in veri fying the Pe titioner’s account of his hi story of tattoos i n their ef

fort to disprove t he identi ty of Pet itioner as the perpetrator of t his o f fense, counselwas “stil l successfulin getti ng the proof before the jury

without hav ing to subject t he Petiti oner to cross -examinati on about his prior record.” I n addition , a ny claims the Petition er had re garding his right to testify were foun d to b e without merit as “test imony of trial counselfrom the pri or hea rings clearly in dicate [d] that th ere we re disc ussio ns ab out the [Petit ioner ] testifying and the risk there in.”-7- We agree with the trial cou rt thatPetiti oner’s al legation that counselwas not adeq uately prepa red no r did sh e fully inve stigate his case and interv iew witness es is without merit. The testimony of trial coun sel revealed that n umerou s hours we re spent in preparat ion for tr ial and efforts were made to locate witnesses to verif y when Petiti oner receive d his tat toos. Peti tioner al so contends that counsel fai led to fi nd evidence dem onstra ting the existen ce an d age of his tattoos u ntil nea r the end of the trial. It is

true that

the photographs

depicti ng the tattoos on P etitioner’s chest were not discov ered u ntil nea rly the end of t he State’s pr oof. However, testimony of tri al counsel indicated a great e ffort on b oth he r part an d her in vestiga tors in th eir attempt to locate someone who coul d verif y the exi stence and age of the Petitioner’ s tattoos prior to trial . The trial court found that tri al counsel was successf ul in admitting a photograph demonstrat ing the tattoos on Petitioner’ s chest, t herefore, we find that any error in the laten ess of the hour wa s harm less.
Regarding Petitioner’s decision of wheth er to testify at trial, the tria l court found that he “was extremely v ague on the number of di scussions he had with trial counsel about his testify ing at trial and was further unclear in his testimony about what informati on he had been provi ded.” From our revi ew of the recor d, it is clear thatPet it ion er’ s te sti mo ny ref lects t hat counsel di scussed the deci sion of whet her to testif y with Pet itioner

on at least three occasi ons, one of which occurred duri ng the course of the trial. Trial counsel indi cated that there were di scussions with Peti tioner during which the ris ks of test ifyi ng were discussed and that Peti tioner’ s prior deal ings with the crim inal ju stice system indicate that he was i nformed of the risks of goi ng to trial and testify ing. W h ile Pet iti oner may now wi sh he wouldhave testif ied, we cannot find an y preju dice in the advice of trial co unse l regard ing the poss ibility of his prior con victions be ing used to impea ch his tes timony.-8- After a tho rough r eview of t he record, briefs and t he law in t he case sub judice , we find that the Peti tioner has not proven his all egations by a preponderance of the evid ence . We agree with tha t trial cou rt that P etitione r’s trial coun sel’ s preparati on and performance di d not fallbelow an object ive standar d of reason ablene ss, nor pre judice the defens e provide d to Petition er.

We affirm th e trial co urt’s dis miss al of Pe titioner’s petiti on for post-convi ction relief.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge