FILED

July 23, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JIMMY RAY POTTER, )

)

Appellant, ) C.C.A. NO. 01C01-9702-CR-00039

) (No. 7310 Below)

VS. )

) FENTRESS COUNTY

STATE OF TENNESSEE, )

) The Hon. Lee Asbury

Appellee. )

) (Dismissal of Post-Conviction 

) Petition)

)

O R D E R

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Finding that the trial court properly denied post-conviction relief,

we grant the state’s motion to affirm the judgment pursuant to Rule 20.

In his sole issue, the petitioner contends that he received ineffective

assistance of counsel. Specifically, he contends that counsel was ineffective by failing to

raise any grounds to suppress the petitioner’s second statement given to authorities. An

Anders brief was submitted on this issue pursuant to the United States Supreme Court

decision in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 

In seeking post-conviction relief on the basis of ineffective assistance of

counsel, a petitioner must first establish that the services rendered or the advice given was

below "the range of competence demanded of attorneys in criminal cases." Baxter v.

Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the

deficiencies "actually had an adverse effect on the defense." Strickland v. Washington,

466 U.S. 668, 693, 104 S.Ct. 2052, 5067, 80 L.Ed.2d 674 (1984). There must be a

reasonable probability that but for counsel’s error, the result of the proceeding would have

been different. Id. at 694, 104 S.Ct. at 2068.
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When determining whether counsel’s performance wasdeficient,“every effort

[must] be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689, 104 S.Ct. at 2065. “Thus, the fact that a

particular strategy or tactic failed or even hurt the defense does not, alone, support a claim

of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

We must defer to trial strategy and tactical choices when they are informed ones based

upon adequate preparation. Id.

On appeal, the findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App.

1991). The burden is on the petitioner to show that the evidence preponderates against

those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied,

441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979). 

The petitioner argues that trial counsel was ineffective by failing to challenge

the introduction of the petitioner’s second statement to authorities. In this statement, the

petitioner admitted to police that he had been in the victim’s house. Trial counsel testified

at the post-conviction hearing that this second statement was consistent with the version

of the facts relayed to him by the petitioner before trial. Moreover, trial counsel testified

that while the victim was unable to identify the petitioner’s face, her description of the

assailant’s clothing matched the petitioner’s clothing at the time he was arrested a short

distance from the victim’s house. As such, trial counsel indicated that the petitioner’s

statement, taken shortly after the offense and without counsel, was consistent with the

defense’s theory that the petitioner had been in the house but that he had been drunk and

had thought it was his friend’s house. Moreover, trial counsel testified that he was unaware

of any basis to successfully challenge the introduction of the petitioner’s statement. The

post-conviction court did not find the performance of defense counsel to be inadequate,

nor did it find any reason to set aside the verdict and grant a new trial.
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This Court has reviewed the record in this case, the petitioner’s brief, and the

state’s motion, and we conclude that this is an appropriate case for affirmance pursuant

to Rule 20.

IT IS, THEREFORE, ORDERED that the judgment of the trial court is

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. 

ENTER, this the ____ day of July, 1997.

_____________________________

THOMAS T. WOODALL, JUDGE

CONCUR:

_____________________________

DAVID H. WELLES, JUDGE

_____________________________

JERRY L. SMITH, JUDGE