# FILED

Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE APRIL 1997 SESSION

TO NY A. M AKO KA, ) ) Appellant, ) C.C.A. No. 01C01-96 0 3-CC-0012 4 ) vs. ) Rutherford County ) STA TE OF TENN ESSEE, ) Honorabl e J.S

. Daniel, Judg e ) Appellee. ) (Post-Conv iction) )

FOR TH E APPEL LANT: FOR THE APPELLEE: RUSS EAGLE (Appeal) JOHN KNOX WALK UP Attorney at Law Attorney Gen eral & Repor ter 401 W. Main St. Murfreesboro, TN 37130 DARYL J. BRAND Assistant Att orney Gener al JACK G. HE FFINGTO N (Hearing) Criminal J ustice Div ision Attorney at Law 450 James Roberts on Parkway 520 S. Church S t. Nashvil le, TN 37243-0493 Murfreesboro, TN 37130 W ILLIAM C. W HITESELL, JR. Distric t Attorney General Rutherf ord Co. Ju dicial Bld g. Murfreesboro, TN 37130

OPINION FILE D: ____________________
AF FIRMED
CURWOOD WITT JUDGE2 OPINION The petitio ner, Tony A. Makoka, appeal s the Rutherford County Circuit Court's denial of post-conviction relief. The petitioner w as convic

ted by a jury of his peers of attempt ed first degree murder of his par amour, Jane Rhodes , and att empted second degre e murder of her fri end, Dwig ht Cooper, follow ing a car chase and shooting incident w hich ended on the steps of theMurfreesboro Police Department. The peti tioner is serv ing concur rent 20 year and 10 year sentences forthese convi ctions. Stat e v. Makoka , 885 S.W.2d 366 (Tenn. Crim. App. 1994). In this appeal, t he petitioner r aises four

issue s per tain ing to inef fec tive assistance of counsel -- (1) failure to move for suppression of evidence obtained pursuant to
a warrant less search , (2) failure to adequately investigate, (3) failure to object to the prosecution's characte rizatio n s of the petitioner 's wife as untruthful, and (4) that counsel prevented th e petitioner fro m testifyingin suppor t of his defense. In addition, the petitioner

contends the tr ial court should have disqualified the district attorney's office from representi ng the state i n post-conviction proceedings because one of the polic e of fice rs who t esti fie d fo r the stat e at t rial i s now a member of the district attorney' s office and was called totest ify f or the defense at the p ostconv icti on hear ing. On review , we affirm.

The petitioner, mar ried and a father, was involved in an extr amarital relationship with one of the victims, Jane Rhodes. This relationshi p, tempestuous at time s, apparently

ended in late 1991, although the pe titioner and M s. R hode s attempted to maintain a pl atonic friendshi p. In December 1991, the petiti oner and Ms. Rhodes at

tended a Christmas party t ogether and exchanged gifts. However, they quarreled on atleast two occas ions prior to January

3, 1992. On that d ate, the petitioner

shot Ms. R hodes and Dwig ht Cooper, and as a result hefac ed tr ial f or two counts of attempted first deg ree murder. The pe titioner was represented at trial by attorney Rich ard McGee of Nashville. He was convicted of the attempted first1 The petitioner has made no allegat ion of ineffectivenes s with r espect to the s ervice s pro vided by Horn sby. 3 degree murder of Rhodes and attempted second deg ree murder of Cooper. That judgmentwas affirmed by this court, and the se nten ce wa s modified. The petitioner's appella te counsel in this court w as Karen Horn sby of Murfrees boro. 1 The supreme court denied the petitioner's pro se request for permission to appea l. The petitioner has

now broug ht a petition for post-convi ction reli ef, which was den ied b y the c ourt belo w. The matt er is b efo re us for a ppe llat e revie w.

I The Sixth Amendment of the United States Constitution and Article I, § 9 of the Tenne ssee Constitution both require that a d efendant in a crimina l case
rece ive effective assi stance of counsel. Baxter v. Ro se , 523 S.W.2d 930 (Tenn. 1975). W hen a def end ant c laim s ine ff ecti ve assistance of counsel, th e standard applied by the cour

ts of Tennessee is "w hethe r the advice given or the service rendered by the attor ney is within the ra nge o f co mpe tenc e dem and ed by a ttor neys in criminal cases." Summerlin v. Stat e , 607 S.W.2d 495, 496 (Tenn. Crim. App

. 1980).

In Strickland v. Washington , the United States Suprem e Co urt def ined the Sixth Amendment

righ t to effective ass istance of counsel . 466 U.S. 668, 104 S. Ct. 2052 (1984)

. First, the appellant must show that cou nsel's performance f ell below an objective standard of reason ableness under prevailing professiona l no rms and must demonstrate th at counsel made errors s o serious that he was not funct ioning a s "counsel" g uaranteed by t he Constituti on. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. Second, the petitio ner must show that counsel's performance prejudiced him and that errors were s o serious as to deprive the defendant of a fair trial, ca lling into questi on the reliabi lity of the ou tcome.2 It is clear from the context , howeve r, the petiti oner's alleg ation is one of erroneous admis sion of the evi dence by the t rial court

. 4 Strickland , 466 U.S. at 687, 104 S. Ct. at 20 64.

The petitioner' s burden of proof in all cases fil ed after May 1 0, 1995 is by clear

and convinc ing evi dence. Tenn. Code Ann. § 40-30-210(f) (Supp. 199 6). The court mu st indul ge a strong presumption that counsel's con duct falls w ithin the range of rea sonable profession al assistance and must evaluate co unsel's performance from co unsel' s pers pecti ve at the ti me of the alleged er ror and in light of the totality

of the evidence. Strickland , 466 U.S. at 690, 695, 104 S. Ct. at 20 66, 2069. The petitioner

must demonstrate t hat there is a reasonable proba bility that but for counsel's defic i ent p erf orma nce, the re sult of t he pr ocee ding wo uld h ave been different. Strickland , 466 U.S. at 695, 104 S. Ct. at 20 69. A trial court's findin gs of fa ct follo wing a post-conviction hearing have the weight of a juryverdict

. Bratton v. State , 477 S.W .2d 754, 756 (Tenn . Crim. App.1971). On appea l, those findin gs are conclusi ve unless the evidence preponderatesagainst thejudgment. Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

A In his first argument, the petitione r contends his trial c ounsel was inef fec tive because he failed t o move for suppression or otherw ise object to introduction of evidence obtained pursuant to a w arrantless search. This allegation pertain s to a search of the petitioner's truck w hich took place shortly afte r th e shooti ngs outside the Mu rfreesboro Poli ce Department. In the petiti on and at the hearing below, this issue was not raised as an ineffective as sistance cl aim. The pro se petition raises the i ntroduction of the ev idence as"judicial misconduct." 2 Counsel in the proceeding s below did notamend the petition to include er ror of trial counsel3 Counsel at the p ost-convi ction hearingmade the followi ng statement on

the record: The petition, y

our Honor, bei

ng all-incl

usive, cover

s several ar

eas. One is that it

covers the i

neffective ass

istance of counsel issue. It covers the search and seiz ure issue of the physical evidence. It also cover

s the sentencingof the Court. It also cove rs it.

. . . Your Honor , there is th e issue that he covered i n his petiti on as to his statements given to Detective Peel. His position is that those statements we re taken under s ome type of tric kery or coercion or certainly without his understanding that they would be used against him in a court

of law. The petition al so covers c

ertain things

that he calls inappr

opriate conduct

of the trial

judge, your H

onor. It also covers the inappropriate or prosecutorial miscon duct of the District Attorney. And that's basi cally th e things that he's cover

ed in the petition, and we would like, your Honor, to cover as many of those issues as the Court wou ld allow . (emphasis add ed) Additionally , post-conv iction counsel 's summation at t he hearing tr eats the search and seizure issue as a free-stand ing deprivation of constitutional rights, separate from the constitutional claim of inef fective assistance of coun sel. It is apparent from counsel 's statements th at the search and seizure issue was raised as a separate al legation and n ot as part of the i neffective assistance of trial counse l cla im. 5 in failing to pu rsue suppress ion of the evidence obtained in the search. 3 The postconvicti on cour

t foun d "norea sona ble basi s tocla im . . . t he de fe nda nt wa s convicted as a result of some constitutio nal right that he woul d have had asregards to evidence within t he vehicle. " The court went on to find the sear ch was j ustified
as a search incident to ar rest. Becausethis issue was not raised below , it is not a proper ground for relief in this court. Tenn. R. App. P. 36(a); Alon zo W illia ms v. State , No. 1100, slip op. at 2 (Tenn. C rim. App., Knox ville, Mar. 4, 1987) (in postconvicti on proceedings , "the rule is that questi ons not raised bythe plea dings and t he n litigated in the trial court are not reviewable on appeal") (citation omitt ed), perm. app. denied (Tenn. 1987). Thus, this issue is wit hout merit.

Even though the peti tioner failed to preserve this issuefor our review byfirst present ing it to th e trial cour t, we would nevert heless decli ne to grant t he requested relief if the issuewas proper ly before us.6 Th e record reflec

ts that wi thin moments of the shooti ngs, the a ppellan t
was detained in handc uffs, first in a poli ce cruiser and then in thebasement of the police station, unti l a detective arrived to question him. A ccor ding to both t he detective and the petitioner, the petitioner was not formal ly adv ised he was under arrest until after he was questioned, although he clearly was not free to leave. A t
some time during these events , in all likelihood before the pet itioner was formally placed under arrest , the passenger compartment of his tr uck wassearched. This search yiel ded amm unition matchingthat used in the shootings and a receipt for ammunition dated approxi mately two weeks pr ior to the shootings. The petitioner contends this searc h was impr oper either ( 1) because it was not a search incident to arrest, or alternatively, (2) even if it was a search incident to arrest, no exigent circumstances

existed. On the other hand, the state argues t he search was proper (1) as an inve ntory search, or (2) as a search i ncident to arrest. In our v iew, th e record supports a findi ng that the warrantless search wa s justified, al though not on either gr ound advanced by

the state.

The Fourth Amendment tothe United States Constitution and Article I, section 7 of the Tennes see Constituti on guarantee in dividuals the right to be free of unreasonable governmental sea rches and seizures. A warrantless search is per se an unreasonable s earch, unless one of the well- defined exceptio ns to the warrant requirement

applies. Katz v. United States , 389 U.S. 347, 357 , 88 S. Ct

. 507, 514 (1967); State v. Ty ler , 598 S.W .2d 798, 801 (Tenn . Crim. App. 1980).

In th is case, the petitioner's vehicle was parked in a public p lace, a public street immediat ely in front of the Murfreesbor

o police stati on, within the area in which the sh ooting h ad just taken pla ce. Two indi viduals were present at the
scene with obv ious gunshot wounds , and at least one pol ice officer saw the petitioner

standing in the area either ho lding a g un or near a g un that was on the4 The evidence is conflicting on this point . W hich version is correct is

immaterial to o ur determinati on.

5 The Leve ye holding i s not limited to contraband; i t extends to other types of evidence that may otherw ise be obtained by search warrant, as well. Stat e v. Ronald Edward Parrish , No. 0 1C01- 9309-C C-002 92, sl ip op. at 4 (Te nn. Cr im. App., Nashv ille, Nov . 16, 1995), perm. app. denied (Tenn. 1996).

6 Because Leve ye supports the warrantless search of the pe titioner's truck, we express no opinion regarding the applicability of the search incident to arrest and inventor

y search exceptions to the warr ant requirement. 7 ground. 4 A les s than full box of amm unition could be seen on the seat of the petitioner's truck. Asour supreme court has recently recognized, a warrantless search of a vehicl e in a public place, in the after math of a crime and w hen there is probable cause to beli eve the vehicle contains items that are subject to seizure 5 , is entitled to a conclusi ve presumpti on of exigenc y, permitt ing the warrantless search,
even absent actual l ikelihood of ri sk of delay i n obtaining a w a rrant. Stat e v. Leve ye , 796 S.W.2d 948 (Tenn. 1990 ) (a dopt ing the r ule of California v . Carney , 471 U.S. 386, 105 S. Ct. 2066 (198 5)). In this case, probable cause clearly existed because the crime was committed in the immediate area and t he box of ammunition
was in plain v iew, and the Le v eye/Carney exception a pplies to author ize a warrantless search under the vehicle- search exception to the warrant req uirement. See Carroll v. U.S. , 267 U.S. 132, 45 S.Ct. 280 ( 1925). 6 According ly, thereis no basis for an ineff ective ass istance clai m premised upon couns el's failure to challen ge this war rantless sear ch. If this issue were properlybefore us, we would find it wi thout merit.

B

The petitioner' s next cl aim is that h is att orney failed to conduct an adequate investi gation. First, he complains of tr ial counsel' s alleged fail ure to investig ate victim Cooper's criminal hi story and p ossible gu n ownershi p. Had such evide nce been u ncovered, i t presumably could have (1) been used for impeachment7 No physical evidence supported this theory at trial. The v ictims denied Cooper was

armed. No g un was ever recovered from the area w here the petitioner al leged he saw Cooper throw

the gun. The peti tioner clai med he sustained proper

ty damage to his truck a s a result of thealleged shot, but one of the p olice off icers test ifie d the dent in que stio n cou ld no t have been caus ed by a rece ntly f ired bulle t bec ause the d ent wa s rust y.

8 According to tri al cou nsel, Cooper refuse d to tal k to hi m. 8 purposes, and/or (2) would have supported the petitione r's claim Cooper shot at him during the car chase. 7 Second, the petitioner takes issue with trial couns el's alleg ed failure to investigate and bring to the court's attention his claim he told a police officer he did not want to make a statement shortly before he was interrogat ed by a detective.

At the hearing, trial couns el testified he investigated Cooper by talki ng with people who k new him, obtai ning a "rap" s heet, attempti ng to talk with him personally 8 and examininghim at the prel iminary he aring. The p etiti oner did not directlycontradict his former attorney' s testimony ; he merely alleged couns el never advised him of the result s of the investi gation. Moreover , the petitioner failed to presentany

evidence at

his post-conviction hearing regarding Cooper which would have supported his defen se, had his attorney discovered it and presented it at trial. The p ost-convi ction court found, "Mr. McGee performed a ver y thoroug h and eff ecti ve investi gation in th is cause and was very effective in rep resent ing [the petitioner]." We cannot say the evidence preponderates ag ainst this findi ng. Not onlyhas th e petitioner fail ed to establis h his attorney 's ineffective assistance, he has failed to demonst ra te a ny prejudi ce therefrom. See Strickland , 466 U.S. at 687, 104 S. Ct. at

2064.

The petitioner also complains his attorn ey failed to investig a te and bring to the cou rt's a ttention an inv ocation of Fifth Amendment p rivil ege the petitioner

alle gedly

ma de when he was detained outsi de the police station and9 It is not neces sary for us to determine at t his stage w hether the subsequent statement should have been suppressed if the facts are as the petitioner al leges. We express no o pinion in that regard.

10 If anything, the petitioner's state ment that was part of the sta te's evidence l ends support to t he self-defense theory he alleges should have be en more vig orously p ursued. Had counsel successfully chall enged the admiss ion of the statement, the pet itioner would likely be before us complai ning counsel shou ld h aveall owe d thestateme nt i nto evi denc e becauseit s uppo rte d a s elfdef ense theo ry. 9 placed in a police cruiser. The petitioner do es not deny he later waived his rig hts
a nd gave a statement after he was inside the po lice station. At the heari ng, th e petitioner

alleged he had signed a written statement invoking his rights while in the police cruiser a nd thathe had asked his trial attor ney tolook into thi s matter. Tri al counsel was not asked by either party w het her he had investigated the existence of such a wr itten or oral statement, althoug h he testified he w as given "the total open file" by the state months pri or to trial . Detective Eddie Peel, w ho interrog ated the petitioner i nside the poli ce station, testified he did not re call seei ng a document sign ed by the petit ioner statinghe did not want to give a statement and he had
nev er heard of the existence of any statement by the petitioner asserting Fi ft h Amendment privil ege prior to the post-conv iction hearing. The evidence does not preponderate against t he fin ding of the trial court th at coun sel cond ucted a thorou gh investig ation. The petitioner has brought forward no ev idence that his counsel did not investigate the alleged invocation of privilege, at least in the "open file" prov ided bythe state. Fur

ther, the petitioner has

failed to demonstrate that the suppression of his subseq uent stat eme nt would hav e resulted in a different outcome. 9 The evidence against the petitioner was overw helming. Both vi ctims testified in great detail about the pet itioner' s actions. P olice officers an d a police depar tment employee prov ided f urther corr oboration of the peti tioner's g uilt. The physical evidence po ints to the petitioner. The pe titioner's statement was essentially
cumu lati ve of the overwhelming evidence of his guilt. 10 According ly, neithe r prong of the Strickland

test has been sat isfied. This i ssue lacks mer it.10 C The petitioner' s next appel late argument is wit h h is trial counsel's failure to ob

jec t to the p ros ecut or' s al leg ed ch arac ter iz atio ns of

the p etit ione r'swi fe
as a liar . Thi s issu e was n ot ra ised belo w a s one of ineffective as sistance of counsel. Rather, the pro se petition raised it as an issue of "j udicial mis conduct" of the prosecutor. The petitioner's counsel made no co mment on the record i n th e court below indicating a desi re t hat this iss ue be considered as one of ineffectiveness of counsel. The post- convicti on court treat ed the issue as one of prosecutoria l misconduct and fo und "no basis for a find ing th at [t he di stric t att orne y] engaged in any act

of prosecutoria l misc onduct" and that th e prosecutor's "representation , statements and argument appear and are found to be well within the grounds of propriety in the prosecuti on of this case and in the argui ng of facts and issued rai sed by the pr oof to the jury ." Because the peti tioner did not raise this issue as one o f ine ff ecti ve ass ista nce i n the cour t bel ow, th at co urt d id no t have the opportunity

to make findings

of fact and rule o n it acco rdingly . As a court of appellate review, we are precluded from contravening the pro vince of the trier of fact. Tenn. R. App. P. 36(a) (part y who caused error or failed to take act ion to prevent error is not entitled to

appellate relief); Alonz o Williams , slip op. at 2. Thus, this issue is not properly before us.

Notwithstanding the petitioner's failure to properly present this issue in the c ourt belo w, we wou ld fi nd it witho ut me rit if it wa s p roperly before us. The trial record rev

eals that one of the p etitione r's strong est witnes ses was hi s wife, Wendy Makoka, and she was subject to v igorous c ross-examination by the district attorney. That questioning includes the f ollowing by the prosecutor: Q. Now, I don't mean to be ugly, but you don't have trouble remembering the answers to M r. McGee's questions. Why don't you remember the answer to that one? A. It all depends w ith, you k now, w hat type of question.11 Q. Yes, ma'am. A. Or how i t's asked. Q. Isn't it true it all depends on whet her it helps your husband or hurtshim? A. No, that's not true. Immediately thereafter, on redirect examination, defense counse l questioned Mrs. Makoka. Q. W ould you lie u nder oath, Ms. Makoka? That's just w hat he's accus ed you of doing , ma'am. Distric t Attorney: Your Honor , I haven't accused her of that. Defense Counsel: That's exactly what that q uestion was designed to do. Q. Would you lie under oath? A. I'm not here to li e. I'm not ly ing. I'm not here to lie. I wouldn't be here if I was going to tell you all lies. During closing argument, the di strict atto rney said , "And, ladies a nd gentlemen, contraryto what M r. McGee say s, I am not callingWendy Makoka a liar, bu t I do not understand her te stim ony -- m aybe you do . . . ." Late r, he said , "If I have insinuated she's a liar, I apol ogize to her, butI do not and am not asha med to tell you that I bel ieve the proof shows she is a bi ased witnes s. And if you show me a wi fe that's not bia sed in favor of her husband, then I' ll show you a wi fe that's not worth having." Defense counsel later address ed the issue i n his summation, acknowle dging, "[Y]esterday . . . I got angry when I felt Wendy Makoka w as being called a liar." He went on to argue the veracity of Mrs. Makoka's te stimony and why the jury should accept i t as reliabl e.

The issue thepeti tion er pre sent s is whe ther coun sel was inef fec tive forfailing to ob

ject to these statements. Whether there was prosec utori al misconduct is determinative of whether a v alid objecti on could be inter posed. The suprem e court has s aid a prosecutor is within the proper bounds where his11 As an aside, we note that trial counsel ef fectively dealt with any arguably

objectionable expression of personal opinion by addressing it on redirect examination of M rs. Makoka and in his cl osing arg ument. 12 argumentis based upon inferences supported by

the evidence of record, Stat e v. Brown , 836 S.W.2d 530, 552 (Tenn. 19 9 2), includi ng argument pertaining to the veracity of a witness' s testimony

. State v. Beas ley , 536 S.W.2d 328, 330 (Tenn. 197 6). Alth ough an attorney may not express his personal opinion of a witness's cred ibili ty, he ma y argue base d upo n his anal ys is o f the evidence and the conclusion su pported b y the evidence. Tenn. Sup. Ct. R. 8 (Code of Prof'l Responsibility), DR 7-106(C )(4); Lackey v . State , 578 S.W.2d 101, 107 (Tenn. Crim

. App. 1978). The tri al court found there wasno prosecutor ial misconduc t, and we cannotsay the evidence preponderates against this fin ding. 11 Absent prosec utorial miscondu ct, which w

ould have formed t he basis for a pr oper objection, there ca n be no ineffective ass istance of counsel . The petitioner would not b e entitled torelief on this issue if it was properly before us.

D In his final arg ument relatingto ineffective as sistance of counsel, the petitioner

cont end s his t rial c oun sel p reven ted h im f rom t esti fyin g in hi s own defense. The petitioner does not contend counsel refused to let him testify; rather, he says counsel convinced him not to take the stand and only gave him the option of testifyingless than 24 hour s before trial , at which ti me it was t oo late for him to prepare his testimony . Trial couns el testified he di scussed this issue w ith the petit ioner

at great leng th. Counsel w as concerned the petitioner mig ht fail to
conn ect with the jury, which would destroy the positive impact of Mrs. Makoka ' s testi mon y, as well as that of the petiti oner's treati ng psych iatrist. Counsel considered the testimony of Mrs. Mako ka and the psychiatrist to be p articularly strong for the petitioner's case. According to counsel, the ultimate dec ision wh ether12 Robinson's testimony was, at best, marginally relevant to the matte rs

before the post-conv iction cour t. 13 to testify was petitioner's. The post-conviction court fou nd, "[D]efend ant was clearly made aware of his

decision to t estify or

not to testify

and made a wise decision in not testifying ." Although nei ther party discussed i t in the brie fs to th is court, the record of trial memori alizes t hat the petitioner was examined outside the presence of the jury

regardingthis issue. He acknow ledged consul ting his attor ney an d expressed satis fac tion wi th his el ection not to testify. The ev idence does not p re ponderate against the determination of the p ost-convi ction court t hat the petitioner

mad e an i nfo rmed deci sion not t o tes tif y. Coun sel was not i nef fec tive in this regar

d.

II In his final issue, the petitioner co ntends the post-conviction court should have disq ua l ified the Rutherfo rd County District Attorney General's office from representingthe state in th is post-conv iction proc eeding. Acurrent member of the distri ct attorney 's office, Jack R obinson, was formerl y a police officer with the Murfreesboro Police Depar tment. In the latt er capacity , Robinson had s om e co ntact with the case.
Immediately followingthe offenses, Robinson res ponded to the scene outside the police st ation and coll ected the pet ition er's revo lver and som e ammunition shells from the ground near w here the vi ctim Rhodeswas ly ing. The petitioner

called Robi nson to testify about these facts at

the pos t-convict ion hea ring. Robinson was also questioned abou t the search of the peti tioner's tr uck, but he was unable to relay

any factsto the trial court wh ich are pert inent to resol ution of issue IA above. 12 Robinson wasnot cross- examined by the state at the post-convi ction hearing. Prior tothe post-conv iction hearing, the court ruled against the petition er's14

motion for disq ualification of the district attorney's office, reasoning W ell, I think that t he way t his is w ritten, DR5-102 envi sions a law yer acting as a witness

in their [s ic] own cause. And in thi s particula r case, th e lawyer is not being presented as a witness in their [sic] cause. You may

be callingthem but not by [sic] the Stat e.

The petitioner c ites Disc iplinary Rules 5-101 and 5-102(A) in support of his argument. Those rules provide in pertinent part Alawyer shall not accep t employment i n contemplated or pending litigati on if the lawyer knows or it is obvi ous that the law

yer or a lawyer in the la wyer's firm ought to be called as a w itness, except that the lawyer may undertakethe employment an d the lawyer or a law yer in the l awyer' s fir m ma y test ify: (1) If the testimony will relate solely to an uncontested ma tter. (2) If the testimony

will relate solel y to a matter of formality and there is no reason to bel ieve that s ubstantial ev idence wi ll be o ffered i n opp osit ion t o the test imon y. [other exce ptions omitted].

. . . If, after undertakingemployment in contemp lated or pendinglitigat ion, a lawy erlearns or i t is obvi ous that the law yer or a lawyer

in th e la wyer'sfirm ought to be called as a w itness on behalf of the client , the law yer shall wit hdraw

from theconduc

t of the t rial and thefirm, if any, shall not con tinue represen tation in the tr ial, exc ept that the lawyer may continue the representati on and the law yer or a lawyer in the lawyer's firm may testify in the circumstan ces enumerat e d [above]. If, after unde rtaking empl oyment in cont emplated or pendinglitigat ion, a lawyer l earn s or it is obvi ous that the lawyer or a law yer in th e lawyer's firm may be called as a witness o therthan on behalf of the client, the lawyer may

continue the representation until it i s apparent that the testimony

is or may

be prejudici al to the cli ent. Tenn. Sup. Ct. R. 8 (Code of Prof'l Responsibil ity), D R 5-101 and 5-102. The purpose of the rules on at torney and l aw firm dis qualificati on is not t o protect a litigant from opposing counsel, but to protect the attorney 's own cl ient. Coak ley v. Daniels , 840 S.W.2d 367, 371 (Tenn. Crim. App. 1992). An att orney w ho is called to the witnes s stand by h is client' s ad versary has no obligati on to withdr aw from representation until his t estimony is or may be prejudicial t o his client

. Stat e v.13 But see In Re Ellis , 822 S.W.2d 602, 605-06 (Tenn. App. 1991) . In Ellis ,

a civil case, the court applied a standard of review found in Rule 13(d), Tenn. R. App. P., de novo review with a pr

esumption of correc

tness. In the case now before us, the tri al court’s ruling on the disquali fication issue would be appr oved even under the less deferen tial scope of Rule 13(d). 15 Browning , 66 6 S.W.2d 80 (Tenn. Crim. App. 1983) ; see generally State v. Baker , 931 S.W.2d 232 (Tenn. Crim. App. 1996) , perm. app. denied (Tenn. 1996). The trial court's deter mination with respect to disq ualification of an at torney based upon undisputed facts and conduct not taking pl ace in court is a m atter wi th in the trial court’s sound discretion, and it is not to be disturbed on app eal absent an abuse of discretion. 13 State v. Baker , 931 S. W.2d 232, 238 (Tenn. C rim. App. 1996), perm. app. denied (Tenn. 1996) ,

In this case, R obinson, a state' s witnes s at the tria l, was called to test ify by the peti tioner

at the po st-convict ion hea ring. His testi mony was consistent with that whi ch he had gi ve n previous ly, and it was in no

way pr ejudicial t o the district atto rney g en eral's cl ient, the State of Tenness ee. It was within the trial court’s discretion to rule that the district attorney's office shou ld not be disqua lified from representingthe state in th e petitioner' s case.

In summ ary , w e fin d al l of t he pe tit ione r'siss ues i napp ropr iatefo r appellate rel ief. The judgment of the trial cour t is affirmed.

_______________________________ CURWOOD W ITT, JUDGE
CONCUR:

_______________________________ GARY R. WADE, JUDGE16

_______________________________ DAVID H. WELLES, JUDGE