### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MAY 2000 SESSION JACK LAYNE BENSON v. S TATE OF TENNESSEE Appeal from the Circuit Court for Bedford County

No. 8081 Charles Lee, Judge

No. M1999-01649-CCA-R3-PC - Filed August 2, 2000

The petitioner, Jack Layne Benson, ap p eals the trial cou rt's dismissal of his p

etition for postconviction relief. Convicte d in 1996 of first de

gree felo ny murder and especially aggravated robbery, and sentenced to consecutive terms of life and 24 years, the petitioner contended that he was entitled to post-conviction relief on the gr o unds that he was denied the effective assistance of counsel at trial andon direct appeal. In this appeal, the petitioner argues that trial counsel was ineffective for failing to adequately communicate, for failing to adequately investigate, and for failing to obtain a transcript of the preliminary hearing. The p etitioner a rgues that his appellate counsel was ineffective for

failing to presen

t additional issues o

n direct appeal.

Because the petitioner has been unable to establish both

deficiency in the performance of his counsel and prejudice in consequence thereof, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgm ent of the Trial Cou

rt Affirmed.
G ARY R. W ADE , P.J., delivered the opi nion of the court,

in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined. N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Jack Layne Benson.
Paul G. Summers, Attorney General & Rep orter , Marvin E. Clements, Jr., Assistant Attorney General, a nd Ro bert G. Crigler, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The pertinent fa

cts in this case ap

pear in the opinion

of this court on dir

ect appeal:
On January 10, 1996,

the defendant a

nd the victim, Jody Bu

tts, visited in the home

of Mitchell Sturdevant. At approximately 11:25 P.M., the victim a

nnounced that he intended to leave and the defendant asked for a ride. The two men left the Sturdevant residence together and, on ly a few minutes later, the body of the victim was-2- found lying in the street in front of the defendant's residence.
At 11:38 P.M., Officer Don Barber

. . . was responding to a radio dispatch when he discovere d the body in the street. Medical testimony established that the victim died as a res ult of three stab wounds. Either

of two of the stab wounds, one to the heart and one the lung, would hav

e been fatal.
Betwe en 11:30 and 11:40 P.M., Donna Addison noticed dark spot s on the front of the def

endant's jacket and saw the defendant drop some money which appe ared to be staine

d with blood. He also informedher that he could not give her a ride to the store because he was driving s om eone else's vehicle. Ms. Addison described the vehicle that the defendant was driving as a cream and red colored Chevrolet Blaz er with t inted windows, a description that matched that of the vehicle the victim was driving at the time heleft the Sturdevant residence.
Less than thirty minutes l ater, Calvin Har

ris observed the defendant driving the Blazer, a car he had never seen the defendant drive at a nytime before. When Harris asked where the defendant had a cquiredthe Blazer, the defendant simply laughed. The defend an t agreed to drive Harris to a motel, where police made the arrest. The vehicle in the defendant's possession was identified as that ownedby the victim. The glove compartment and the center console had been ransacked and part o f the console had been broken. Police found blood on the driver's side door of the vehic le. Several items belonging to the victim, includin g items of identification, were found scattered in the rear of the Chevrolet Blazer. Pol ice foun d the defendant in possession of the key to the Blazer. A piece of the broken console and $11.00 in bills and coins, splattered with human blood, were found in his right front pocket.
Statev. Jack Layne Benson , No. 01C01-9707-CC -00283 (Tenn. Cri

m. App., at Nashville, Aug. 25, 1998), slip op. at 2-3. The single issue prese

nted on direct app

eal was whe ther the trial court had erred b y ordering consecutive sentences. This court found no error. Id. at 7. Our supreme court denied application for permission to appeal on March 15, 1999.
There is a constitutional right to the effective assistance of counsel at all critical stages of a criminal prosecution. Tenn. Const. art. I, § 9; Powell v. Alabama , 287 U.S. 45 (1932). In order for the petitioner to be granted relief on grounds of ineffective counsel, he must es

tablish that the advice given or the services rende red were not with

in the range of co

mpetence demand

ed of attorneys in criminal cases and that, but for his counsel's deficient performance, the result of his trial would have been different. Strickland v. Wash ington , 466 U.S. 668 (1984) ; Baxter v. Rose , 523 S.W.2d 930-3-

(Tenn. 1975).
Under the terms of the Post-Conviction Procedure Act, a petitioner bear s the burden of proving his allegations by clea r and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The credibility

of the witnesses and the weight and value afforded to their testimony are appropriately addressed in the trial court. Bates v. State , 973 S.W.2d 615, 631 (Tenn. C rim. App . 1997). On appeal, the burden is on the petitioner to establish that the evidence prepon derated aga inst the findings of the trial judge. Clenny v. State , 576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherwise, the findings of fact made in the trial court are conclusive. Graves v. State , 512 S.W.2d 603 (Tenn. Crim. App. 1973). Further, this court may not second-guess the tactical and strategic choices of

counsel unless those choices are uninformed because of in adequate preparation. Hellard v. State, 629 S.W.2d 4 (Tenn. 1982). Counsel may n ot be deemed to ha

ve been in

effectiv e merely because a different procedureor strategy might have produced a different res ult. Williams v. State , 599 S.W.2d 276 (Tenn. Crim. App. 1980). Here, the petitioner first complained that trial counsel failedto adequately co mmunicate with him prior to the trial. At

the evidentiary h

earing, the petit

ioner agreed tha

t trial counsel met

withhim "maybe six times up here a t the cour thouse plus six to sev en times at the jail. " He specificall y complainedthat his trial couns el did not discuss possible

defense strate

gies. He conced

ed that their total meeting time

may have equale

d up to twelve hours but contended that the collective duration of their communication was not enough under the circumstances. The petitioner also asserted that his trial counsel failed to search for, locate, or

interview a possible witness, Cathy Chunn

, who ma y hav e burned some bloody clothes and who might have known the identit

y of another

suspect. Ms. Chunn was not called as a witness at the evidentiary hearing on the claim for post-conviction relief.
The petitioner also complained that his trial counsel was not present during his preliminary hearing and did not obtain a copy of the transc

ript, ther eby precluding use of the transcript for impeachment purposes at the trial. The petitioner acknowledged, however, that he did not have a transcript of the preliminary hearing and did not know whether one existed or if his attorney had a copy. The petitioner

further contended that trial counsel failed to gain access to an expert in DNA analysis. He submits that an expert could have provided possible defenses to the charge. Finally, the petitioner claimed that his appellate counsel, Gregory D. Sm ith, had only one discussion lasting approxima tely 20 minutes with h

im. The petitioner

pointed out that alth

ough his trial counsel had presented six possible grounds for relief in his motion

for new trial, his

appellate counsel only presented the issue of consecutive sentencing on direct appeal.
Mike Randalls, trial counsel for the petitioner, testified at the evidentiary hearing. He had-4-

documentedeleven meetings w ith the petitioner at the local jail and estimated that there were at least six other occasions where hecounseled with the petitioner at the county courthouse. Trial counsel asserted that he discussed w

ith the petitioner t

he facts of the c

ase, the petitione

r's prior soc ial and criminal history, the nature of the charges, the possible range of punishment, and the possibility of a negotiated plea a

greement. Trial

counsel also testif

ied that he revie

wed with th e petitioner the various photographs and lab reports which had been provi ded b y the state, as we ll as the autopsy report and the st

ate 's witness list. Trial counsel also discussed with the petitioner possible DNA testing and received

permission from the trial court for funds to be util

ized for expert

assistance in evaluating the state's DNA e vidence. In fac

t, a defense exper

t determined that t

he state had prop

erly conducted

the DNA analysis. Trial counsel also testified that the petitioner supplied the nam e o f Cathy Chunn after the trial. He explained that the petitioner wasrepresented by two other attorneys at the preliminary hearing, for which there was no transcript. Trial counsel could no t remembe r whether he had listened to a

tape of the preli

minary hearing, a

lthough "normally

that is what [he does]." It was trial counsel's recollection that "there wasn't a tape or if there was it was such poor quality you couldn'

t listen to it." Attorney Smith, the petitioner's counsel on direct appeal, testified that he hadreviewed six volumes of trial testimony which included approximately 1,000 pages. He described the record as "one of the cleanest trials I had ever seen." Appellate counsel testified that he did not challenge the sufficiency of the evidence due to the limited scope of review and the overwhelming nature of the circumstantial evidence. Appellate counsel testified that he considered raising as an issue the trial court's failure to charge the lesser offense of negl i gent homicide but after research concluded that there was no merit to such a claim: "Basically it was an up or down in this case, yes or no." Appellate counsel also considered and declined to present the trial court's failure to grant a change of venue as a basis for

appeal. He concluded that there was nothing in the record, such as affidavits in support of the pos sible prejudice, to support such a c

laim. Appellate

counsel also believed that there was no basis for a complaint about the failure to supply more expert services under the ruling of State v. Barnett

, 909 S.W.2d 423, 427 (Tenn. 1995). Finally, appellate counsel found no b asis to the complaint that the state had failed to provide notice of exculpatory evidence.
The post-conviction court found trial counsel's preparation "to be virtua lly fl awless." It classifiedthe degree of c ommunication between tri al counsel and the petitioner, the trial performance of defense counsel, and

the strategy during trial and on appeal as being well within the professional guidelines. The post-conviction court specifically ruled that the petitioner had failed to establish any prejudice due to the various deficiencies. We agree. Any factual disputes between the petitioner

and his trial counsel were resolved in favor of the state by the post-c onviction court. T

he accredited p

roof is that there

was adeq uate communication. Moreover, the pe titioner has faile

d to explain

how he might have been prejudiced by the absence of witness Chunn, who was not called to testify at the evidentiary hearing, or by the unavailabil

ity of a transcript of the preliminary hearing. This court may not speculate upon w ha t prejudices might have occurred. The burden is on the petitioner to provide proof. Additionally, the trial court provide d an expert to the d efense to revie

w the DNA evidenc

e the state propos

ed to present. Because the defense expert found no deficiency in the testing performed by the state, there-5-

was no particularized need for further funding. See Barnett , 909 S.W.2d at 430. Finally, the petitioner has failed to establish how the presentation of additional grounds for relief on direct appeal could hav e caused a different, more favorable result. Nothing suggests that a challenge to the su fficiency of the evidence, a claim that the state failed to produce exculpatory evidence, or a n appeal of the trial court's refusal to change venue c

ould have produce

d any possible reli

ef. Because the defense at trial was that the victim was alive when the petitioner left her, this qualified as "an all or nothing" proposition leaving the record devoid of any ev idence to suggest a charge of a lesser offense. See, e.g. , State v. Langford , 994 S.W.2d 126 (Tenn. 1999). In summary, the petitioner has failedto establish how an y possible deficie

ncies in the performance of either his trial counsel or his appellate counsel might have caused prejudice to his defense. Accordingly, the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE