# FILED
June 19,1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION
JAMES POLK, ) ) C.C.A. NO. 01C

01-9709-CC-00391 Appellant, ) ) MAURY COUNTY VS. ) (No. 9305 Belo w) ) STATE OF TENN ESSEE, ) The Hon. Jim T. Hamilton ) Appellee. ) (Denial of Post-Conviction Relief)

FOR THE APPELLANT : FOR THE APPELLEE : HERSHELL D. KOGER JOHN KNOX WALKUP 131 North First Street Attorney General and Repor ter P.O. Box 1148 Pulaski, TN 38478 CLINTON J. MORGAN Assistant Attorney Gener al Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General JESSE DURHAM Assistant District A

ttorney General P.O. Box 459 Lawrenceburg, TN 38464

OPINION FILED _______________________
AFFIRMED LEE MOORE, SPECIAL JUDGE-1- O P I N I O N

The petitioner, James Polk, appeals the trial court's denial ofhis petition for post-convictionrelief. In 1 994, the petitioner was conv icted of aggravated robbery and sentenced as a standard offender to twelv e years in the Tennessee Depar tment of Correction. His conviction w as affirmed on direc

t ap peal to this Court. State v. James Polk , No. 01C01-9410-CC-00369 ( Tenn. Crim. App., at

Nashville, Nov. 21, 1995). In this post -convic tion petition , the pet itioner' s sole issu e is that h e was denie d effec tive assistance of counsel. An evidentiaryhearing was held on J uly 8, 1997, and the petitioner was denied post-convi ction relief. We affirm the judgment.

Initiall y, we note that the trial c ourt s ummari ly denied the post-conv iction petition. In doing so the trial judge failed to state any findings of fact and conclusions of law as is required by

T.C.A. § 40-30-211(b). The tr ial court, not the appellate court, has the d uty to weigh and ev aluate the evidence and to res olve questions reg arding the c redi bility

of witnesses. Black v. State , 794 S.W.2d 752,7 55 (Tenn. Crim. App. 1990). Factual issues raised by the ev idence must be resolved by the trial court and placed i n appropriate findings of fact. Absent such findings, it would ordinarily be inappropriate for this Court to determine contested fac tual issues from a printed rec ord. George Ta te v. State , No . 02C01-9108-CR-00170 (Tenn. C rim. App., at Jackson, May 20, 1992), perm . app . denied , (Tenn. 1992).

Regardless, this Court has held thateven if the trial court fails to comply with this duty, a reversal i s not warranted if the record sufficiently reflec ts the apparent reasons forthe tria l court's act ions so as to allow for mean ingful appellate review
. State v. Swanson , 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984). From a review of the record in this case, the trial judge' s reasons for dismissal of the post-conv iction petition are apparent, and therefore, we have addressed the issue on the merits.

The petitioner argues

that his attorney was ineffective because he failed to-2-

object or otherwise cross -examine the police officer r egarding the identificati on of a vehicle at the scene of the crime and its relationship to the petitio ner.

The proof at trial showed that the victim, a par t- time employee at a liquor store, observed a young black male enter the store near closi ng time. The victim, a former principal at a local school, thought he rec ognized the person’s face. The victi m gave a description of the person to the investi gating officer. The following week, the victim went to the police station and identified the petitioner while looking throug h a book o f photographs. Subsequently, when the petitioner was picked up for questioning , the officer told the petitioner that he had been id entified in a robbery. The of ficer tes tified that the petit ioner

r esponded “well, what’s the clerk’s name at the store. He said, he probably knows me from school. ” While ther e was conflicting testimony as to whether the victim positively

identified the petitioner at the preliminary hear

ing, he unequivocall

y identified the petitioner at trial.

The testimony regarding the vehicle was insi gnificant. Trial counsel objected on the basis of hears ay, however , the inves tigating o fficer wa s allowed t o testif y that h e was given a descriptio n of a vehicle that was seen in the vic

inity of the liquor s

tore and that he was able to

tie a vehicle of that descr iption with the petiti oner through the petitioner’s girlfriend. At th e post-conviction heari ng, trial counsel testi fied that the petitioner was identified by

the victi m a nd the car did not have any thing to do with that i dentification. Moreover, he testified that he did not pursue testimony regarding the car because it would have been detrimental to the case. Specifically, trial c ounsel noted that when the investigating officer

questioned thepetitioner’s girlfriend regardi ng whether she owned a m aro on Monte Carlo, she responded that she did “but it ain’t bee n used in no armed robbery.”

In order to receive post- conviction relief

on the ba sis of ine ffecti ve assistance of counsel, the petitioner must first establish that the ser vices rendered or the adv ice given was below "the range of competence d emanded of attorney s in crim inal cases." Baxter
v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies-3-

"actually had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 , 104 S. Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).Moreover, this Cour t will not second-guess valid strategic and tactical choices made by counsel, and counsel wil l not be deemed ineffective even if a different st rategy might have produced a different result. Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982).

In post-conviction proc

eedings, thepetitioner has the burden of prov ing the allegations

in his petition by a pr eponde rance of the evidence. McBee v. State , 655 S.W.2d 191, 195 (Tenn . Crim. App. 198 3), citing Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). From our review of the record , we do not find that the petitioner met his burden. According ly, the judgment is affirmed.

________________________________ LEE MOORE, SPECIAL JUDGE CONCUR:

________________________________ JOE G. RILEY, JUDGE

________________________________ CURWOOD WITT, JUDGE