# FILED
February 18,1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1997 SESSION

GARY T. DOTSON, ) ) C.C.A. NO. 01C 01-9607-CR-00318 Appellant, ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
DAVID A. DOYLE JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter 117 E. Main St. Gallatin, TN 37066 ELIZABETH B . MARNEY Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 LAWRENCE RA

Y WHITLEY District Attorney General DEE GAY Asst. District Attor

ney General 113 W. Main St. Gallatin, TN 37066

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The petitioner

was convicted of first

-degree murder and employi ng a firear m during the commission of a felony. These convictions were affirm ed on direct appeal. State v. Gary Thomas Dotson , No. 89- 262- III, Sumner County (Tenn. Cr im. App. filed Aug. 3, 1990, at Nashville). He i s serving a li fe senten ce plus fi ve ye ars for these offenses. In December 1992, he filed for post-conviction relief alleging that

his lawyers
were ineffective at both his trial and on direct appeal. The cou rt belo w denie d relie f, which he now appeals. He furt her alleg es that the post-conviction court erred when it denied his motion for forensic and psy chological evaluati ons. Upon our review of both the record below and th e trial rec ord, we affir

m.

The petitioner was initi ally tried before a jur y in January 1989

for the murder of his mother

on August 15, 1988. The jury was unable to reach a v erdict resulting in a mistrial. The petitioner was tried a second time before a jury in May 1989 and convicted. The petitioner was

represented by the same tw o lawyers at both tr

ials, aswell as on his direct appeal.
In this appeal, the petitioner contends that his lawyers were ineffective at his second trial in the following ways:

1. Fail ing t o object to the “State's impermissible use of [his] post- Miranda

silence”; 2. Failing to object to th e State's question to the arr esting officer whether the petitioner was in a state of shock whenhe was apprehended; 3. Failing to object, ask for a curative instruc

tion, and/or m ove fora mistrial in response to the State asking the petit ione r whether he had threatened to kill his mother, in contravention of an earlier co urt ruling;3 4. Needlessly limiti ng their questions to the peti tio ner about his mother's prior viol ent acts to the t wo to three year period preceding her death; 5. Failing to intr

oduce pr oof of the victim's prior violent act toward a neighbor; 6. Failing to request

jury instructions

on self-defense and defense of others; 7. Arguing inconsist

ent theories asto why the petitioner killed his mother; 8. Failing to call certain witnesses; 9. Failing to offer m edi cal proof as to the petitioner's knee problems; 10. Failing to make obje ctions to portions of the State's closing argumentment; and 11. Failing to object to certain questions the State asked him and another witness. With respect to counsels' presentation of his direct appeal, the petitioner argues that his lawyers were ineffective in faili ng to contest the sufficiency of the evidence and the trial court's denial of his motion for a forensic evaluation.

“In post-c onvict ion relief proceedings the petitioner has the burden of proving the a llegatio ns in his [or her] petiti on by a preponderance of the evi dence.” McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Further more, the factual findings of the trial court in heari ngs “are con clus ive on appeal unless the evidence preponderatesagain st the j udgment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

This Court should not second-g uess trial counsel’s ta ctical and str

at egic
c h oices unless those choices w ere uninformed because of inadequate pre paration, Hella rd v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to4

have been ineffective merely because a di fferen t procedu re or strat egy might ha ve produced a different result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980).

In reviewing the pe titioner’s Sixth Amend ment claim of ineffe ctive assistance of counsel, this Court must determine whether t he adv ice given or serv ices rendered by his attorneys are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffe c tive counsel, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness” and that this performance prejudi ced the defense. There must be a reasonable probability that but for coun sel’s error the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim.App. 1985).

After hearing two days of proof, during which the petitioner and both of his lawyers, among others, testified, the court below denied post-conv iction relief. In an eig ht page memorandum opinion containing detailed f indings of fact and conclusions of law, the court bel ow determ ined that “counsel in the ins tant case was effective, compet ent and zealous in its

defe ns e of t he

Peti ti on er

th ro ug h t he

tria l a nd ap pe ll at e p ro ce ss .” We agree. The petitioner's allegations agai nst his l awyers are based, by and large, on strategy calls. Our revie w of the transcripts of the s econd trial and th e post-conviction hearing convinces us that tri al counsel acted competently in their representation of the petitioner

at trial and that their strategic decisions were informed o nes and based on adequate preparation. Furthermor e, to the extent that any of trial counsel s' actions or omissionsdid fall below the lev el of competent representation as allege d by the petitioner, we are confident that the resul t of the p etitione r's trial was unaffe cted the reby.1 Ake was a capital case in which the Supreme Court held that “[ W]hen a defendant demonstrates to t he trial judge that

his sanit

y at t he time of the of fense is to

be a signi ficant f

actor at trial, th e Sta te m ust, a t a m inim um , ass ure th e def end ant a cce ss to a com pete nt ps ychia trist w ho w ill conduct an appropriate examinati on and assist i n evaluati on, preparat ion, and pr esentati on of the defense.” 470 U. S. at 83. 5 This issue is without merit.

We also agree with the court below that the petitioner 's legal representation
on direct appeal was w

ithin constitutional paramet ers. Counsel made

a specific decision to not ra ise the sufficiency issue, which we wil l not second-guess. Mor eover, we a r e convinced that, ha d the issu e been ra ised, thi s Court wou ld have found it without merit. Counsel also made aspecific decision to not appeal the tri al court's denial of their motion fora forensic evaluation of the peti tioner at State expense. When questioned about their decision on this matter at the post-conviction hearing, one of the petitione r's lawyers testified that, “Given the status of the record, the status of the law at that time , as I understood it, I think we made a cons ciou s decis ion not to pursue the denial of our request for the forensic evaluation, based on other issues being perceived as more likely to succeed.” This was a valid strategy decision at the time. It w as not until 1995that our SupremeCourt decided that “when a defendant in a non-capital case demonstrates to the trial court . .

. that his sanity at the ti me of the offense is to be a significant factor at trial, the federal constitution, at a minimum, requires the State to provide the defendant
access to a competent, independent psychiatrist who will condu ct an appropriate
e x amination and assist in evaluati on, preparation, and presentati on of the defense.” State v. Barnett , 909 S.W.2d 423, 43 1 (Tenn. 1995). This decision applie d the U nited States Supreme Court's holding in Ake v. Okl ahoma , 470 U.S. 68 (1985), 1 to non-capital cases. Prior to that time,this Court had, in dicta,indicated doubt about the application of A ke to non-capital cases. See, e.g. , State v. Lambert , 741 S.W.2d 127, 131 (Ten n . Crim. App. 1987). Given the stat e of the law as it exis

ted in 1989 and 1990, th en, we hold that defense counsel was not ineff ective in making the s trategic decision to not6

appeal this particular r

uling by the trial court. This issue is w ithout merit.

The petitioner next con ten ds that the court below erred in denying his motion in this proceeding for forensic and psychological evaluations. We disagree. Our SupremeCourt has held that “the st ate is not require d to provide expert as sistance to indigent non-capital post-conviction petitioners.” Davis v. State , 912 S.W.2d 689, 696-97 (Tenn. 1995). This issue is therefore without merit.

Although not set forth as a separate issue, the petitioner also complains in his brief about th e trial court 's denial of his motion for a transcript of the first trial. He notes, however, that “[t]r ial counsel argued this

issue on direct appeal and the appellate Court found same to be without merit.” Accordingly, this issue has been previously determined, T.C.A. § 40-30-112(a) (1990), and we nee d not con sider it f urther. S imilarly, the petitioner complains about the trial court's instr uctions to the jury about mal ice and its use of the terms “moral certainty ” and “let the mind rest easily on the certainty of guilt. ” Because these issues wer e not raised on the direct appeal, they are waiv ed. T.C.A. § 40-30-112(b) (1990).

The judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge7

______________________________ DAVID H. W ELLES, Judge