# FILED
July 23, 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
JIMMY R AY

POTTER, ) ) Appellant, ) C.C.A . NO. 01C01-9 702-CR-00039 ) (N o. 73 10Be lo w) VS. ) ) FENTRESS COUNTY STA TE OF TENN ESSEE, ) ) The Hon. Lee Asbury Appellee. ) ) (Dismissal of Post-Conviction ) Petition) )
O R D E R

This matter is before t he Court upon the state’s motion requestingthat the judgmentin the above-styled caus e be affirmed pursuant to R ule 20, Tennessee C ourt of Criminal Appeals Rules. Fin dingthat the t ria l co urt

pro perl y de nied post -co nvi cti on reli ef, we gran t the state’s motion to affirm the judg ment pursuant to R ule 20.

In his so le iss ue, t he pe titio ner c onte nds t hat h e rec eived inef fec tive assistance of counsel. Speci fically, h e contends that counsel was ineffective by failing to raise any gr

ounds to suppress the p etitioner’s second statement g iven to author ities. An And ers brief wa s submitted on this issue pursuan t to the United States Suprem e Court decision in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.E d.2d 493 (1967).

In seeking post-convic tion relief on t he basis of ineffective assistance of counsel, a petitioner must first establ ish that theservices rendered or the advice given was below "the range of compet ence demanded of attorney s in crimi nal case s." Baxte r v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the d ef iciencies"actually

had an advers e 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

thatbut for counsel’s error, the result of t he pr ocee ding wo uld h ave been different. Id . at 694, 104 S.Ct . at 2068.-2- When determ ining w hether counsel’s performance was deficient, “every effort [must] be made to eliminat e the distorti ng effects of hindsig ht, to reconstr uct th e circu mstances of counsel’s challenged cond uct, and to evaluate the cond uct fro m counsel’ s pers pective at the time.” Id . at 689, 104 S.Ct . at 2065. “Thus, the fact that a particular

strategy or tactic failed or even hur t the defense does no t, alone, support a claim of ineffective assistance.” Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Cri m. App. 1992). We must defer to tri al strateg y and tacti cal choices when they are informed ones ba sed upon adequate prepa ration. Id

.

On app eal, the findings of fact m ade by the post-conviction court are
conc lusive and will not be disturb ed unless the ev ide nce contai ned in the record preponderatesagainst them. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). The burden is on t he petitioner to show that the evidence preponderatesagainst those findings. Clenny v . State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 197 8), cert
. denied , 441 U.S. 947, 99 S. Ct. 2170, 60 L.Ed.2 d 1050 (1979).

The petitioner ar

gues that trial counse l was inef fective by failin g to challe nge the introduction of the petitioner’s second statement t o authorities . In this st atement, the petitioner

admitted to police that he had been in the victi m’s house. Tri al counsel testified at the post-conv iction heari ng that this second statement

was consi stent wit h the version of the facts relayed to him by the petitione r before trial. Moreover, trial counse l testified thatwhile t he victi m was unable to id enti fy the petitioner’ s face, her descr iption of the assailant’s clothing matched the petiti oner’s clot hing at the ti me he was ar rested a sh ort distance from the vict im’s hou se . As such, trial counsel indicated that the petitioner’s statement, take n sho rtly af ter t he of fen se an d with out c oun sel, wa s c onsistent w ith the defense’s theory that

the petitioner

had been in the hous e but that he had been drunk and had thought it w

as his friend’ s house. Moreover, tr ial counsel testified that he was unaware of any basis t o successfully challenge t he introducti on of the petitioner’s statement. The post-convi ction court did not find th e performance of defense counse l to be inadeq uate, nor did it find any reason to set aside the verdict and grant a new trial.-3- This Court has reviewed the record in this case, the petit ioner’s br ief, and the state’s motion, and we conclude that t his is an appr opriate case for

affirmance pursuant to Rule 20.

IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed pursuant to R ule 20, Tennessee C ourt of Crimina l Appeals Rul es.

ENTER, this t he ____ day of Jul y, 1997.

_____________________________ THOMAS T. WOODALL, JUDGE
CONCUR:

_____________________________ DAVID H. WELLES, JUDGE

_____________________________ JERRY L. SMITH, JUDG E