# FILED
April 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1998 SES SION

RICHARD STANLEY RUS SELL, ) ) Appellant, ) No. 01C01-9707-CR-00302

) ) Davidson County v. ) ) Honorable Seth Norman, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Thomas F. Bloo m John Knox Walkup 500 Church Street Attorney General of Tennessee Nashville, TN 37219 and Karen M. Ya cuzzo Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Kymberly Haas Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Richard Stanl ey Russell, appeals as of right from the Davidson County Cr

iminal Court's denial of post -conviction relief. The petitioner was convicted of first degree murder and sentenced to life in the Tennessee Department of Correction. His conv

iction was affirmed on direc t appeal to this court. State v. Richard Stanley Russell, Sr. , No. 01C01-9409-CR-00308, Davidson County (Tenn. Crim. App. Oct. 31, 1995), app. denied , (Tenn. Mar. 25, 1996). The petitioner contends that the trial court erred in concluding that he received the effective assistance of cou nsel at his trial. We disagree.

Although the record does not contain the details of the petitioner's charges or trial, thi s court’s opinion in the di rect appeal outlines the esse ntial events. On February 25, 1993, the police responded to a 9-1-1 call and fo und the petitioner's wife stabbed to death. The petitioner was at the scene and h ad blood covering his hands and clothes.

Testimony at the trial indi cated that the petitioner and his wife had an argument about her sexual p references. The petitioner testi fied that after arguing, he went into the kitchen and s tarted writing a not

e describing the details of the argument. The petitioner t

estified that aft

er the ar gument r esumed, h e picked

up a kni fe his wife kept with her, pointed it at his stomach and told her th at he might as well k ill himself and save her the trouble. H e stated that he did not remember w hat happened after that, but eventually he found himself in the kitchen with the note an d a bloody knife. He said t hat he then called his daughter and asked her to call 9-1-1 . He said that before he opened the door for the p olice, he hugged his wife's blo ody body.3 With this evidence, the petitioner w as convicted of first degr ee murder. On appeal, the petitioner clai med that the evidence was n ot sufficient and that the trial court erred in allow

ing a reference to a higher power during voi r dire and in excludi ng evidence of the victim's character. This court dete rmined that the evidence suppor ting the jury's finding that

the appellant was guil

ty of first degree murder beyond a reasonable doubt was over whelming and that the petitioner's claims wer e without merit.
The petitioner filed a pro se petition for post-convic tion relief. Appointed counsel filed an amende d petitio n, allegin g that the petition er receive d the ine ffecti ve assistance of trial counsel because his trial attorneys (1) failed to consult ade quately with the petitioner before t rial regarding the case theory, the petitioner 's charges, the state's plea offer, and the streng th of the state's case, (2) fail ed to object to the introduction o f the victim's blo ody T-shirt, which was h ighly prejudicial an d misleading, (3) faile d to cond uct an ad equate in vestigatio n and to in terview the petition er proper ly, (4) failed to employ experts such as a forensic pathologist, a mental health expert, or a handwriting expert, and (5) failed to use the 9-1-1 tape to discredit a police off icer's testimo ny.
At the post-conviction h earing, the petitioner's daughter testified that she met with the petitioner's trial attorneys before t rial. She testified that she knew that the state had made a plea offer, and on e of the attorneys discussed it with her just before the trial. She stated that she was not aware that the petitioner was indicted for first degree murder until the day of the trial, but she admitted on c ross-examination that during a meeting before tri al, the attorneys discus sed first degree murder as a potential outcome of the trial. She testified that a psychiatric ex amination of her father was nev er made, but she believed that he needed one for the trial.4 The petitioner testified that he was appointed an attorney, Barbara Futter, who met with him almost daily until he posted bond. He said that he met his second attorney, David Sieg el, about nine months later. The pet itioner said that after that meeting, he rarely met w ith his attorneys other

than for court hearings. H e testified that the weekend before the trial h e met with both attorneys for trial preparation.
The petitioner testified that he to ld Ms. Futter about the ev ents leading up to his arrest for the murder of his wife. He said that he told his attorney that he a rgued with his wife about her

plan for him to help her kidnap he r daughter. He said that he told his wife that he did not want to hear any of it. He testified that he went to the kitchen and started wri

ting a note. He said that the victim called him i nto the living room, and they started arg uing again. He testifie d that there was a knife on the footstool and that he pick ed it up and to ld the vic tim that she w

ould not hav

e to kill hi m, that he would do it himself. He said that he remembered her co ming toward him, but he did not remember anything after that until he foun d himself in the kitchen continuing his note. The petitioner testified that as he was writi ng the note, he saw the bloo dy knife. He said that he then called his daughter and told her to call 9-1-1. He said that he held his wife before he opened the door for the police.

The petitioner testified that he was trained in security and that the sta te’s contention that he stabbed the vi ctim three times in the chest and three times in the back could not be true. He s aid that he did not agree w ith an autopsy report that the victim was stabbed s ix times. The petitioner said that he believed that an autopsy was not performed.

The petitioner testified that he thought his atto rneys should have more thoroughly invest igated the victim's plan to kidnap her daughter. The petitioner did not know of any accomplices to the kidnapping scheme, but he said that th ree others were5

suppose d to be invo lved. The petition er testif ied that he was not a ware of hi s attorne ys contacting anyone involved in the alleged scheme. He said that he was unaware of his attorneys contacting any of the victim's friends or anyone the victim knew while in prison.
The petitioner testified that his attorneys did not show him any photographs of the crime scene befor e the trial started. He s aid that if they had, he would have been able to analyze them and testify during trial that the photographs were not accurate. He stated that one photograph showed a blanke t wrapped around the victim's legs as if the victim were hel pless at the time of the offense. He testi fied that the blanket was not in the h ouse at the time of the offense and that it had to have been brought in by either the police or the medical ex aminer. He further stated that the photograph showed that the bl anket had not been on the victi m long because the blanket had only spots of blood on it and was not soaked w ith blood.
The petitioner testified that the not e introduced as evidence at trial was not the original note that he was writing before and after the offense. He said that the copy of the note that was enter ed into evidence was w ritten on notebook paper, but the note he wrote was written on a legal pad. H e also said that the orig inal note had a bloodstain on it. The petitioner testified that alth ough he had a cut on his hand, his hands were not bloody w hen he returned to continue w riting the note after he blacked out. He said that it wa

s not until he hugged the v ictim that he got blood on hi s hands and clothes.
The petitioner testified that he di d not have any psychol ogical or psychiatric eval uations. He said that at the t ime he was released from jai l, his attorney suggested that he see a doctor, but he thought that she was recommen ding this because he was having a lot of trouble accepting w hat had happened. Additionally , the6

petitioner stated he thought that a handwriting ex pert should have examined the note. He said an expert wou ld have identified two di fferent writing styl es indicating that the note was written at two different times whil e he was in two v ery different emotional states.
The petitioner testified that he thoug ht an expert should have examined the murder weapon, a kitchen knife. He said that even thoug h he blacked out during the offense, he knew that if he did strike the victim, he would have struck out with his full force because he was afraid of her. He testified that the full l ength of the blade would have penetrated the victim and caused an entry wound in her chest and an exit wound in her back. He s aid that he did not stab the v ictim in the back and that an expert examination of the kni fe would have shown bl ood and tissue up to the knife’s hi lt. He testified that the photographs show that the knife went all the way through the victim because the photographs show the blood pooling underneath the victim as she lay on her back and little blood on her chest.

The petitioner testified that the 9- 1-1 tape made when his daughte r called the police should have been used to discredit the testimony of th e responding police officer. He said that the tape would have established the time o f the call and that this would have shown that the victim was dead when the police responded to the call. He said that the officer testified that he saw blood bu bbles coming out of the victim's nose and mouth when he arrived, indicating that the v ictim was still al ive and breathing. The petitioner said that testimony at the trial showed that the victim would have died within two to four minutes after being stabbed. He testified that the tapes would prove that sufficient time had elapsed for the victim to die be fore the testifying officer made his observation.7 The petitioner testified that his attorneys discussed the pe nalties for first degree murder, second degr ee murder, and manslaughter w ith him, but they did not discuss the elements of these offe nses. He said that he was given a copy of his indictment after he was indi cted.

The petitioner testified that he r eceived an offer to plead guilty to second degree murder with a fifteen- year sentence at thirty

percent. He said that this plea offer was made just after he was released on bond. He testified that af ter he rejected this offer, his attorneys said nothi ng more about a plea bargain.He said that just before trial, he asked his attor neys to ask if the state w ould accept a plea of manslaughter with a six-year se ntence, but they d id not. T he petit ioner tes tified t hat he wou ld have considered the plea offer more seri ously if he had known that the state was going to claim that the victim was stabbed three times in the chest and three times in the b ack and that the photographs and the v ictim's bloody T-shir

t were going to be us

ed as evidence.
David Siegel testified that he was assigned t o assist in the defense of the petitioner because he was charged with handling the more complex, difficult, or serious cases in the public defender’s office. He testified that he met and had tel ephone conversations with the petitioner several times before trial.
Mr. Siegel testified that one theory of the case was that the petitioner acted in self-defense. He said tha t the victim's histor

y of violence was i nvestigated, including her institutional record from the Department of Correction. He said tha t he was unsuccessful in get ting everything

that he wanted introduced i nto evidence during trial. He testified that the other theory of the case w as that the crime was one of passion because the petitioner was overcome by the victim's admission of mari tal infidel ity.8 Mr. Siegel testified that he discussed the theory of the case with the petitioner on several occasions. He said that the petitioner's explanati on of the events surrounding hi s wife's murder remained c onsistent during the cour se of representation and trial. He testified that he discussed with the petitioner the p ossibility of a mental evaluation but that the petitioner was not rece ptive to the idea at the time. He testified that he did not pres s the issue because he did not s ee any signs that the petitioner was mentally disturbed, other than the petitioner's extreme attraction to the victim. He said that i

t was not unusual for a defendant to s ay that he does not remember what happened.

Mr. Siegel testified that he and the petitioner discuss ed the note that the petitioner wrote. He said that he thought certain statements in the note could be used to show either premeditati on or a motive to kill the victim. He said th at the petitioner never questioned the authenti city of the note during c onsultation or during the trial.
Mr. Siegel testified that he thought the timing of w hen the petitioner wrote the note was significant . He said that he questione d the petitioner at length ab out the note. He said that the petiti oner told him that the note wa s written before the offense. On cross-examination, he testified that the petitioner mai ntained that the note was written before the stabbing despite vigorous q uestioning. He testified that the physical evidence suggested that the note was writt

en before the offense because it had an insignificant amount of blood on it

.

Mr. Siegel testified that he showed many photograph s to the petitioner. He said that when he show ed the more graphic photogr aphs of the victim to the petitioner, the petitioner became extremely upset and emot ional. He said that in or der to continue working w

ith the petitioner, he and Ms . Futter decided not to show the petitioner the graphic pho tographs, but they descr ibed their contents to him.9 Mr. Siegel testified that he spoke with the petiti oner about the state's plea offer. He said that he remembered ex plaining the possible outc omes of the trial to the petitioner. He testified that he explained what the s tate would have to prov e and the consequences of each possible outcome to the petitioner. He stated that he and Ms. Futter strongly encouraged the petitioner to accept the plea but that the pe titioner would not agree to any charg e of murder. He said that he felt that the state was offering the lowest level of punishment for what he and Ms. Futter thought would be the most likely result of the trial.

Mr. Siegel testified that he examined the physical evidence before trial. He said that he was unaw are of an objection that could hav e prevented the introducti on of the victim's bloody T-shirt. He testified that the evidence supported the state's contention that the victim was stabbed six times . He said that the petitioner 's claim that the petitioner stabbed the vi ctim only three times, w ith the knife entering her c hest and extending through her back, would not have been a productive issue to r aise during trial.
Mr. Siegel testified that he and Ms. Futter obtained the 9-1-1 tape, even though the trial court denied their motion requesting the state to produce it. He said that the tape’s only val ue was to show that the petitioner's daughter, w ho made the 9-1-1 call, thought that the petitioner might have been suicidal. He testified th at he did not need the tape because other evi dence showed that the petition er was on a suicide watch at the time of the murder.

Mr. Siegel testified that he did not remember interviewing any of the police officers about the murder. He sai d that he did speak to the vi ctim's mother to corroborate the petitioner' s claim of a kidnapping scheme a nd that he remembered contacting the prison chapl ain.10 Barbara Futter testified that she represented the petitioner and that she met with him the day after the murder and continued to me et with him almost daily while he was in jail. She s

aid that she saw him numerous times between the time he w as released and the trial.

Ms. Futter testified that s he and David Siegel i nvestigated the kidnappi ng scheme but could not find any cr edible information to support it . Ms. Futter testified that she discussed the theory of the case with the petitione r. She said that the theory of the case was a mixture of self-defense and passion and tha t neither one, by itself, was very strong.

Ms. Futter testified that s he discussed the state's plea offer with the petitioner before Mr. Sieg el became involved w ith the case. She did not remember the specific details of that conversation with the petitioner, but she said tha t it was her habit to discuss the offense charged, the lesser offenses, and what the se ntence would be, including parole, good and honor time, and other sentence r eductions. She testified that the petitioner stated that h e did not murder his wife and that he would not plead to murder. She testified that before the trial, she attempted to get the prosecutor to consider a lesser plea but had no success.

The trial court found that the petit ioner failed to prove any grounds for relief. It noted that all of the pet itioner's issues rel ated to the ineffective assistanc e of counsel claim, but it found that none of the attorneys’ conduct prejudiced the petitioner.

I. INEFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that he rec eived the ineffective assi stance of trial counsel because of trial counsel’s (1) failure to investigate adequately the petitione r's mental health to establish the abs ence of the requisite mens rea for first degree murder,11

(2) failure to investigate adequately the facts of the case, (3) failure to obt ain necessary experts, ( 4) failu re to obta in infor mation wit hheld by t he state , (5) fail ure to cal l two witnesses, (6) failur

e to communicate properly w ith the petitioner regar

ding the plea negotiations, (7) failur

e to provide the petitioner with sufficient information to make an informed decision on the plea offer, (8) failure to confer with the pe titioner about the evidence, (9) failure to conduct a reasonable investigation, (10) failure to object to the admission of the victim's bloody T-shirt, and (11) failure to suppress the pe titioner's confession and admissions. Cla ims (4), (5), (7), ( 9), (10), and (11) we re made by the petitioner in a pro se supplemental brief included as an appendix to the pe titioner's brief. The petitioner asserts that the individual and the cumulative effect of trial counsel’s failures caused hi m to receive the ineffective assistance of counsel.
The state initially notes that the petitioner failed to ci te to the record in the argument portion of his brief. The argument portion of an appellant' s brief must set forth the contentions with r espect to the issues presented on appeal with appropriate references t

o the record . T.R.A.P. 27 (a)(7). P ursuant to R ule 10(b), Te nn. Ct. Cri m. App. R., the petitioner's fail ure to cite to the record i n support of his argument constitutes a waiver

of the issue. However, despite this inadequacy , we will consi der the merits of the petitioner's issues.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to12

counsel under Article I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n. 2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). In reviewing couns

el's conduct, a "fair assessment of attorney performance requi res that every effort be made to eliminat e the distorting effects of hindsi ght, to reconstruct the circumstances of counsel's c hallenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone, suppo rt a claim of ineffective assistance. Deference is made to trial strateg

y or tactical choic

es if they are informed ones based upon adequate preparation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201. We note, as well, that the claim of ineffectiv e assistance of counsel can be defeated by the failure to make the requir ed showing of either defici ent performance or sufficient prejudice. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

The burden is on the petitioner t o prove his allegati ons by clear and convincing evidenc

e. T.C.A. § 40-30-210(f). On appea l, we are bound by the t rial court's findings unless we conclude that the evidence preponderates against th ose findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The petit ioner has the burden of illustrating how the evidence preponder ates against the judgment entered. Id.13 A. We will consider the petitioner's first five claims together beca use they are all resolved by the

same analysis. In his first claim, the petitioner contends that he received the ineffective as sistance of counsel because his attorneys failed to investigate adequatel

y the petitioner's mental health to establish the absence of the requisite mens rea for firs t degree m urder. Th e petitio ner argue s that his attorne ys gave no credible ex

planation as to why a ment al health expert was not retained to examine the petitioner's ob session with the vi ctim. The state responds that the petitioner's attorneys

testified that the petitioner ha d no history of mental ill ness, that he was resistant to undergoing an examination, and that they had no reason to believ e a mental evaluation was nec essary. The state further c ontends that the petitioner has not presented any evidence r egarding what a mental evaluation would hav

e revealed. The state argues that without such evidence, the petit ioner cannot show that he w as prejudiced by the lack of an evaluation.

In his second claim, the petitioner contends that he receiv ed the ineffective assistance of counsel when his attorneys fai led to investigate adeq uately the facts of the case. The petitioner argues that his atto rneys only made a cursory investigation of the v

ictim’s kidnapping sc

heme. The state responds that the petitioner's attorneys

met with the petitioner o n numerous occasions and interv iewed several others, incl uding the investigating officer, the medical exa miner, the prison chaplain, and the victim' s mother, grandmother and parol e officer. The state further contends that one of the petitioner's attorneys did inves

tigate the claim of a kidnappin g scheme but could not find any ev idence to support it. The state argues that the petitioner has not demonstra ted how this investiga tion could have b een more thoro ugh or what more his attorney s could have done.14 In his thi rd claim, the petit ioner con tends th at he rece ived the in effect ive assistance of counsel because hi s attorneys failed to obtain necessary experts. The petitioner argues that hi s attorneys should hav e had a forensic examination of the bloodstain on the note. He also argues that a handwriting expert’s ex amination of the note would have supported his claim that the murder w as not premeditated. The petitioner contends that porti ons of the note were written after the stabbing. The state responds that before the trial, the petitioner maintained that the entire note was wr

itten before the stabbing and that his at torneys therefore had no reaso n to have the note examined. The state argues that because the petitioner did no t have the note examined or present any e xpert testimony at the p ost-conviction heari ng, the petitioner has not shown how he w as prejudiced.

In his fo urth clai m, the pe titioner contend s that he received t he ineff ective assistance of counsel because hi s attorneys failed to obtain information withheld by the state. The petitioner argues that the 9-1-1 tape was w ithheld from his attorneys,and the state used information on the tape t o encourage perjury by the state's witnesses. He argues that his attor neys could have used the t ape to show his state of mind after the stabbing and to show that he was writing the note when he called his daughter. The state responds that testimony during the post-convi ction hearing reveal ed that the trial court denied the motion to provide the 9-1-1 tape but that th e petitioner's attorneys did obtain the tape. The state argues that the claim of perjured testi mony based on the 9- 1-1 tape was not raised at the post-conviction hear ing and is waive

d.

In his fif th claim, the petit ioner con tends th at he rece ived the in effect ive assistance of counsel because hi s attorneys failed to call the victim's parole officer and the petitioner's ex-w

ife to testify. The petitioner asserts that he requested that the victim's parole officer testify because she could testify to the victim's character. He asserts that he requested that his ex-wife testify because she would testify as to his15

good character. The state r esponds that this claim is waived because it w as not raised at the post-conviction hearing. The state also argues that the petitioner did no t call these two witnesses at the post-conviction hearing and without evidence of their testimony, the petitioner cannot show prejudice.

We note that the approach to the issue of the ineffective assistance of counsel does not have to start with an analysis of an attorney's conduct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.

The potential experts and w itnesses were not call ed to testify, and the 9-1-1 tape was not offered as evidence at the post-conviction evidentiary hearing. It is imperative that the witnesses testify and the petitioner offe r evidence at the evidentiary hearing in order for the tr ial court to determine the pote ntial merit of the evidence. See Black , 794 S.W.2d at 755. Thus, even if the attorneys' failure to seek a mental evaluation, investigate the kidnapping scheme further , call forensic and handwr iting experts, present the 9-1- 1 tape and call certain char acter witnesses w

as deficient performance, the petitioner has failed to show that he was prejudiced from such deficie ncy.

B.

In his sixth claim, th e petitio ner conte nds that he receive d the ine ffecti ve assistance of counsel when his attorneys failed to communica te properly with him regarding the plea neg otiations. The petitioner ar gues that if his attorney s had shared the state's evidence w

ith him, he would have ac cepted the second degree murder plea offer. The state responds that the petiti oner's attorneys had ex tensive settlement discussions with the state and strongly encouraged the petitioner to accept the off er.16 In his seventh claim, the petitioner contends that he rec eived the ineffective assistance of counsel when his attorneys fai led to provide him wi th sufficient information to make an informed de cision on the plea offer. He contends that his attorneys withheld evidence from him, failed to discuss potential def ense strategies, failed to conduct an appropriate investigation, and fa iled to advise him of the state's plea off er. The p etitione r asserts t hat with su fficie nt infor mation, he could h ave rebutted testimony that the v ictim was alive w

hen police officers arriv ed, that there was no struggle, that the w

ounds on the victim's hands were defensive wounds , and the state's depiction of the crime scene.

In his eigh th claim, the petit ioner con tends th at he rece ived the in effect ive assistance of counsel when hi s attorneys failed to confer w ith him about the evidence. The petitioner argues that hi s attorneys consulted mini mally with him and that they withheld certain informati on from him because of their concern for his fragile mental condition. The state responds that the petitione r's attorneys met with him frequently and that his attorneys testified that they discussed ev ery aspect of the case wi th the petitioner. The state admits that some photo graphs were not shown to the petitioner, but it notes that this occur red only when he became so emotional that he was unable t o aid in his defense because of them. The stat e argues that the petitioner has presented no evidence other than his ow n testimony to show that he was prejudiced.
The petitioner, his daughter, and his trial attorneys were the only witnesses to testify at the evidentiary hear ing. The petitioner's daug hter testified that the trial attorneys di scussed the case and the state's plea offer with her. Ms. Futter testified that she met with the petitioner frequently, discussed the plea offer wit h the petitioner when she first received it and agai n when Mr. Seigel bec ame associated with the case, and investigated the petitioner's claims but could not find any credible information to support them. Mr.Seigel testified that he dis cussed the plea offer with17

the petitioner when he star ted the case and again just befor e trial. He testified that the weekend before the trial, both attorneys met extensively with the petitioner to prepare him for trial.

In Lofton v. State , 898 S.W.2d 246 (Tenn. Crim. App. 1994), the petiti oner complained that his trial c ounsel was ineffective becau se counsel failed to explai n the elements of the crime to him and depri ved him of his right to ac cept a guilty plea offer. Id. at 248. However, the record showed that tri al counsel discussed the cas e with both the petitioner and his mother and discussed the state's plea offer with the petitioner. Id. This court held that even thou gh trial counsel did not take a position as to whe ther the petitioner should have acc epted the plea offer, trial counsel's conduct did not rise to the level of ineffective assis tance as set forth in Strickland and in Baxter

. Id. at 249.

As in Lofton , the petitioner in this c ase refused to accept the plea offer and "gambled and lost at trial ." Id. His bald assertion that he would have accepted th e plea offer if he had full and complete informationis insufficient to mandate postconviction relief. The peti tioner has not shown by a preponderance of the evidence t hat counsel's performance was deficient and that the deficiency was prejudicial.

C. In his nin th claim, the petit ioner con tends th at he rece ived the in effect ive assistance of counsel because his attorneys failed to con duct a reasonable investigation. The petitioner argues in his s upplemental brief that if his attor neys had properly investigated the case, they would have been able to impeach the police officer's testimony about the petitioner’s note. T he state responds that the petitioner's attorneys thoroughly

investigated the case and that nothing in the recor d indicates that the officer perjured himself.18 In the petitioner's supplemental brief, he comp lains that Exhibit 8, which was used by the state at trial, was not authenti c. Exhibit 8 is a tw o-page reproduction of the note that the petitioner wrote on the night of the stabb ing. At the evidentiary hearing, the petitioner w as shown Exhibit 8 and a photograph of the note taken at the scene after the stabbing. He t estified that Exhibit 8 w as written on notebook paper, and the note in the photograph w as written on a legal

pad. The petitioner testified that he used only legal pads. He testified that the photograph of the note showed a blood spot on the upper left corner. He tes tified that Exhibit 8 only had what appeared to be an outline of a stain.

The petitioner asserts that if his trial attorneys ha d sufficiently investi gated his case, they would

have been able to impeach the officer when he authenticated the note during the trial. The petitioner contends that Ex hibit 8 is not a copy of the n ote that he wrote. Howev

er, Mr. Seigel testi

fied that the petitioner never questioned the authenticity of the note before or during the trial.

We note that neither Exhibit 8 nor the photog raph were a part of the record provided to this

court. According to the petitioner's post-conv iction attorney, the photograph was never entered into evidence at the evidentiary hearing. As to this claim, the petitioner has not offered evidence that preponderates a gainst the trial court's conclusion that th e petitioner's trial c ounsel effectively repres ented the petitioner.

D.

In his ten th claim, the petit ioner con tends th at he rece ived the in effect ive assistance of counsel because hi s attorneys failed to objec t to the admission of the victim's bloody T-s hirt. The petitioner arg ues that the introduction of the T-s hirt was unfairly prejudicial and that his attorneys shoul d have objected to its admis sion. See19

Tenn. R. Evid. 403. The state r esponds that the shirt was probative because it show ed the location of the knife holes and hel ped the jury to determine w here the victim was stabbed. The state argues that the fact that the petitioner found the T-shirt personally upsetting does not render the evidence inadmissible.

During the evidentiar

y hearing, the petiti oner testified that all the blo od on the T-shirt was not there when the police arrived the night of the stabbing. He also testified that he would hav e pled guilty in or

der to prevent the prosecut or from using the bloody T-shirt during

the trial. Mr. Seig el testified that he did not know of any objection that he could have made when the T-shirt was introdu ced.

Evidence is releva nt if it has "any tendency to make the existence of any fact that is of consequence to the determina tion of the action more probable or less probable than it would be w ithout the evidence." Tenn. R. Evid. 401. Relevant evidence is admissible unless provided otherw ise by constitution, ev

identiary rule, or other Tennessee rule or law . Tenn. R. Evid. 402. Rel evant evidence, howev er, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues , or misleading the jur y, or by considerat ions of undue delay, waste of time, or needless presentation of cumulativ e evidence." Tenn. R. Evi d. 403.

As the state claims, the T-shi rt is probative becaus e it shows the number and placement of the holes made by the k nife. Furthermore, the probativ e value is not outweighed by the dang er of unfair prejudice. See State v. Cribbs , 967 S.W.2d 773, 793-94 (Tenn. 1998) (holding that admission of a videota pe showing "victim's brain matter separated from her skull and scattered across the kitchen floor" and "the shattered face and skull of the v ictim," was proper under Rule 403); State v. Cazes , 875 S.W.2d 253, 263 (T enn. 1994) (holding that the victim's cleaned and reconstructed skull20

was admissible pursuant to Rule 403). The record does not preponderate against the trial court's conclus ion that the petitioner's tr ial counsel effectively represented the petitioner relative to this cla im.

E.

In his eleventh claim, th e petitioner contends that he r eceived the ineffective assistance of counsel because his at torneys failed to suppress his confession and admissions. The petit ioner argues that his “ confession” was inadmissible and that trial counsel did not prevent its admission or try to defend against it. The petitioner asserts that he confessed when he respon ded to the officer's question, "Did you ki ll your wife?" by saying, "I was the only one in the house." The petitioner further asserts that a police officer's testimony of statements made by the petitioner at the scene were fabricated and that his attorneys did not p roperly impeach this test imony.

The state responds that these iss ues were not raised at the postconviction hearing and have been waived. We agree. In any event, we note that his statements were admissibl e as admissions by a party opponent. Tenn. R. Evid. 803(1.2)(A).

II. CUMULA TIVE ERROR The petitioner asserts that the cumulative eff ect of all constitutional errors at trial and on appeal war rant him relief. Because w e have concluded that no indiv idual constitutional error ex

ists, there is no improper cumulative impact upon the peti tioner. This issue is without merit.21 In consideration of the foregoing and the record as a whole , we conclude that the evidence does not prep onderate against the trialcourt's denial of postconviction relief. The ju dgment of the trial court is affirmed.

____________________________ Joseph M. Tipton, Judge
CONCUR:

_______________________________ John H. Peay, Judge

_______________________________ David G. Hayes, Ju dge