### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 9, 200 3

ED D IE HOW ARD PITT MA N v. STA TE OF TEN NES SEE

Appeal f rom the Circ uit Court for Madison Cou nty No. C02-131 R oger A . P age, Judge

No. W2002-02892-C CA-R 3-P C - F iled March 18, 2004

The pe titioner, Eddie Howa rd Pitt man, appe als from a judgme nt denying post-c onviction relief. A s g rounds for a new trial, the petit ioner asserts that he wa s denied the e ffe ctive assistanc e of c ounsel at trial and that there w as er ror in the instructions to the jury . The judg ment is affirme d.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P.J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH , J ., joined. J OE G. R I L EY , J
., filed a dissenting opinion.

J . Mike Mosier, Jackson, Tenne ssee, f or the a ppellant, Eddie How ard Pittman.

Paul G. Summers, A ttorney Gene ral & Reporter ; Bre nt C. Cherry , Assistant Attorney Gene ral; and Alfre d L . Earls, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The for ty -six -y ear -old petitioner wa s initi ally char g ed with attempted f irst deg ree murder,
ag g ravated burg lary
, ag g ravated assault, felony possession of a we apon, ag g ravated kidnapping , and
ag g r a v a te d

r a p e

. G r e g o r

y Lu s te r w a s th e v ic ti m o f

th e f ir s t f o u r c h a r g e d o f f e n s e s a n d h is w if e, B e c ky Lus te r, wa s th e vic timof the la tte r t

wo c ha rg e s. Af te r a prel imi na

ry he a ri nga t w hic h M s. Luster, who ha d appar ently been r omantically

involved with the petitioner for some time, testified that althoug h she had ha d sex wit h the petitioner, she did not c onsider her self to have been r aped, the kidnapping and ra

pe cha rg es we re dismissed. At trial, the state pr esente d evidenc e that the
pe tit ion e r u

nla wf ull y e nte re d th e vic tim ' s r e sid e nc e , c on fr on te d th e vic ti m, f ir e d a g un in h is direc tion, and forc ed the victim’s w ife to drive him from the sce ne. The petitioner conte nded that beca use he ha d been invol v ed in an af fair w ith the victim’s wife, the victim had fa bricated the char g es as a

n act of reta liation. At the conclusion of t he jury trial, the petitioner wa s convicted of attempted sec ond deg ree murder a nd fe l o n y possession of a we apon. The trial court or dere d

consec utive sentenc es of twe lve y ear s and six y ear s, respect i v ely . This court af firmed on dire ct appea l. See S tate v. Eddie H owar d Pitt man, No. W2000-01582-CCA-R3-CD (Te nn. Crim. App.,T h e ha n d w ritten sta te m e n t o f t h e vic tim d o e s n o t a p p e a r to h a v e b e e n m a d e a n e x h ib it a t t ria l b u t, a lo n g w ith 1

the sta te m e n t o f t h e vic tim ’s w ife, M s. L u ste r, a p p e a rs a s a n e x h ib it to the p o st-co n v ic tio n he a rin g tra n sc rip t.

-2- at Ja c k s o n , Se p t. 7
, 2 0 0 1 )

. O ur s u p r e me c o u rt d e n ie d a

p p li c a ti o n f

o r p e r mi s s io n to a

ppeal on Fe bruar y 11, 2002.

This case is complicated. The rec ord contains portions of t he pre liminary hear ing, the trial
te sti mony , a

nd , o f c ours e , the e vid e nti a ry he a ri ngon the pe tit ion

fo r p os t- c on vic tio n r e lie f. B e c a us e the outcome hing es larg ely on the cr edibil ity

of the victim and the pe titioner and bec ause of the rela t i o n s hip betwee n the petitioner a nd the victim's w ife, the vic tim’s first official re port of the offe nse is of some sig nificanc e. In a handw ritten statement dated May 20, 1999, at 8:40 a.m., the 1 victim provided the Jackson Poli ce D epar tment with the following infor mation:

On M a y 2 0
, 1 9 9 9 I w a s a t h o me w it h my w if e B e c ky Lu s te r

. A round 6:30 a.m. me and Be cky left the house a nd g ot into my

car 1987 Chevrolet 4 door in the back y ard. I looked and saw a police officer talking to some one in t he par king lot west of my

house. Be cky car ried me to wor

k at the new

school on Arli n gt o n S t ree t behind [i lleg ible] Mi ddle School. When Ig ot to wor

k my car was smoking and I

asked my boss if Icould take a fe w minutes to go a

nd chec k on my

car

. We left and we nt to W alg ree n and boug h t a l o af o f bre ad and c ame ba ck home. B ecky

parke d in front of the house . Ig ot out and started a round the house a

nd Isaw [ t h e petiti oner] standing in my front door looking out. Iwalked to the f ront do or a nd a sk e [d] [the pe tit ion e r w hat w a s h e do ingin my ho us e . [The pe tit ion e r] s a id that Ni**er I

am g oing to kill y ou beca use y ou have me ssed up my life. I looked and

s a w th a t [t h e p e ti ti o n e r ] h a d a g u n in h is h a n d

. [T h e p e ti ti o n e r ] w a lk e d o u t on the front porc h. He told me that he was going to kill me and pointed the gun at me and it clicked. The g un did not shoot. I talked to him and I opened the door and jumped into th e h o u s e a n d h e f

ir e d a s h o t a t me

. B e c ky w a s s ti ll s ta n d in g in the street. I looked out and saw[t he petitioner] g rab[] Becky and put the gu n to her he ad and fo rc e[ d ] h er i nto my

car and I saw he r leave in the ca

r. I don’t know how [the petitioner] got into my

house. [The petitioner] had a silver ty pe handgun.

I n a wr itten statement g iven on t h e s ame da y at 9:30 a.m., B ecky

Luster provide d the following repor

t to the police:

Me [and] m y

husband, g etting r eady t o go t o wo rk. My husband took out

s o m e g a r b a g e

. H e s a w a c a r t h a t [ t h e p e t i t i o n e r ] b e dr i v i n g i n a p a r k i n g l o tn e a r

b y. My husband .

. . come back in [and] told me he saw that c ar that [ the petitioner] was dr ivi ng[an d] th ink s h e wa s in it.-3- We l eft [an d] I

too k [th e vic tim ] to h is j ob . H e g ot o ut. He ta lke d to his

s u p e r v is o r abou t g e tt in g th e c a r

c h e c k e d o u t. I t w a s s mo k in g u n d e r th e h o o d

. We drove b ac k to the house to che ck to see if eve ry thing wa s alrig ht. We saw that the

car was still in the parking lot. I did not see anyone in the ca r. We parke d in the s tree t in front of our house. [The victim] g ot out [ and] then Ig ot out. [ The victim] had went up to the front porch. I saw [the petitioner] coming out the front door. He had a g un in his hands. I was still on the street. I

hear d a g un shot. [ The victim] had tried to g et in the house wher e [t he petitioner] couldn’t hurt him

. Iwa s sc re a min g a t [th e pe tit ion e r] to g o on [an d] no t to sta rt stu ff . H e c a me off the por ch [and] put t he g un on me. He ma de me g et in the ca r [an d ] drive. He
g ot in with me. I dr ov e do wn Ai rw a y s [and ] ou t in the c ountr y

. Th a t’ s w he re he tol d me to g o. We turned down by

the Airport. W e went out on a country road. We stopped. He g ot under the w heel [and] said he would drive. We drove to Roy Gra y ’s house. He g ot out. I stay ed in the ca r. He talked to Roy . He g ot back in the c ar. He dr ove down a littl e road. He forc ed me to ha ve sex with [hi m] . We left [and] went back over to Roy ’s house. He g ot out ag ain. He w as talking to Roy . Ig ot out to see what they

wer e talking about. Roy said he was c oming to town [and the
p e t i t i o n e r ] w a s g o i n g t o r i d e w i t h R o y. Iwas try ing to g et [the petitioner] t o just let me go. I beg an cry ing [ and] he jumped on me [and] bega n hitting me in the fa ce with his fist. W e we re outside the

c a r. Roy wa s w a tc hin g him

hit me . Ro y tol d h im n ot t o a c t l ik e th at be c a us e his

mama wa s in the house sick. H e qu i th i t t i n g m e [ a n d ] t o l d m e t o c a l m d o w n

. H e t o l d m e h e w a s s o r

r y. He g ot ba ck in my car

. I was driving

. Roy was following us. Idrove ba ck to Westover Rd. He g ot out [ and] got into the ca r with Roy

. Idrove stra ight to the police station. He still had the g un in his pants. The only time he pointed the g un at me was when he made me g et in the ca r at my house.

At the preliminary hear ing on Dec ember 30, 1999, the assistant district attorney repor ted that the ca se had been scheduled f or a pr eliminary

hear ing on two pr ior occ asions and the state witnesses did not appear , resulting in a dismissal of the war rants. L ater , the case was submit ted to the g rand jury , resulting in a true bill of indictment. A motion to dismiss the indictment unde r Rule 5(e ) of the R u l es o f C ri m i n al P ro ce d

u re wa s fi l ed b ec au s e t h e p et i t i o n er wa s n o t af fo rd ed a p re l i m i n ary

h ea ri n g. Th e Sta te a g re e d to a

pr e lim ina ry he a ri ng a nd the de fe ns e a g re e d to with dr a w the ir mot ion to d ism iss the ind ic tme nt. At the hea ri ng , the victim testified that he had know n the petitioner for y ear s and that the petitioner wa s the ex-boy friend of his wife, whom he ha d marrie d in the prior y ear . He r elated the

e ve nts le a din g up to t

he of fe ns e a s f oll ow s:-4-

Ig ot up that morning to g o to work, and . . . my car was smoking
, so Ig o to my job

a nd tol d my bo ss man tha t I ne e d to tak e my c a r to the sh op , I we nt w ithmy

wi fe to wher e she work at, cause it wa s smoking a[] littl e bit, I told him I ’d b e b ac k i n 45 minutes to an hour. He sa id “okay”. S o, I g ot in the car and stop at the g as station and they chec ked t h e ca r out and eve ry thing. I told her to stop at Walgr eens, a nd boug ht a loaf of

brea d and g ot in the car

. And . . . we pulled up a t the house, I

asked her, “ what y ou doing le aving the door open? , “why ’s the door ope n? ”. She said, “ I didn’t leave the door open”. And I said, “par k rig ht he re”

. So I g ot out of the c ar a nd

ever y thing . . . . * * * I. . . walked up on the steps and .

. . that’s when I found [ the petitioner] in my house. Is a i d
, “ w h a ta r e y o ud o i n g i n m y h o u s e , m a n ?” * * * Th en, he ope ne d my

do or . A nd

Isa id “ man, wh a t are y ou do ingov e r m y house, man? ”, he ope ned the door and eve ry

thing an d ca m e on out, I looked over beside him and he had a gun [i n his hand], I said “God” , y ou know. * * * An d .

. . wh ile he op e ne d the do or a nd e ve ry thi ng , Ia lw a y s le a ve my

ke y in the [out e r i ro n] do or

. . . a nd he op e ne d th e do or

a nd c a me on ou t. * * * [A] nd then he sa id “man, why y ou g o and marry my woman? And this-n-that, and I said “I don’t know what y ou’re talking a bout, man, like that.” * * * Yea h, he said “ y ou messed up my life”, you know, that kinda stuff. S o he point[ ed] the g un at me and w hen he c licked it, . . . it didn’t go off

. . . . * * * Ijust said, “Man, I don’t know what y ou’re doing, ma n”, y ou know what I ’m
saying, I ’m try ing to g et close to the phone, ‘ca use I alre ady

knew I was g one. I

was try ing to talk on the phone

. * * * Ialre ady knowed, I just had to take a chanc e, man. I ran into him, so we g ot to wrestling . . . with the g un, Isaid, “man the (unintelligible) one’s f or y ou”. He ha d the hammer
, I h ad t h e bar rel of the g un, we wr estled about 4 or 5 minutes on the floor, and a fter that Icouldn’t g et the g un out of his hand, so Ipushed him off of me, he broug ht it back up ag ain towar d my head, a nd Ijumped throug h the door.

Acc ording to the victim, his confrontation with the petitioner beg an at 6:45 a.m. He claimed that afte r he r etre ated into his residenc e, the petitioner ag ain attempted to fire the g un at him, the g un dis c ha rg e d, a nd the bu lle t lo dg e d in

a wa ll. Th e vic timte sti fi e d th a t the pe tit ion e r the n o rd e re d M s. Luster to drive him aw ay

from the scene

. The victim state d that he started to interve ne but chose not to t a ke the " c ha

nc e " :-5- Well, I stood on the steps for a minute and I

go t t o t h i n k i n g , Isaid “I don’t know what this fool is gonna do”, y ou know, with her a nd ever y thing, a nd Istood on the step and I

g ot to thinki ng

. So I walked up the street, I went by the school, whe n Ig ot by the school, . . . I walked back down to the house and I walked back up ag ain, Iwalked up by

the Dodg e store a

nd Iseen the police up ther e, and Itold them I had

a p ro b l em an d ever

y thing, they

asked me what y our problem is, I said “this man kidnapped my

woman”, that’s my wife.

. . . I said “I didn’t want to come to y a’ll like this but y ou know, I

g ot to come to y ou” . . . .

The victim related that later, police photogr aphed his r esidenc e and, afte r informing him that his wife

was at the police station, drove him ther e.
During the pre liminary

h e a r in g , B e c k y L u s te r te s ti f ie d that her r elationship with the petitioner had ende d in approxim ately 1997, when he was inca

rce rate d for an unrelated offe nse. She claimed that on the date of

the char g ed offe nses, the victim first strug g led with the petitioner a nd then fled into their residenc e whe n the petitioner, who was arme d, direc ted her to the car to drive. Ms. Luster stated that the p et i t i o n er had her dr ive into the country , stopping brie fly at the re sidence of Roy Gr a ve s, be fo re c on tin

uin g do wn

a ro a d, wh e re he " a sk e d [he r] t o h a ve se x, a nd [the y ] ha d s e x.” Ms. Luster testified that a fter inter course , they returned t o Graves’ r esidenc e, whe re she pled for he r release. Sh e c la ime d th a t th e pe tit ion e r s tr uc k h e r s e ve ra l ti me s w ithhis fi sts bu t r e tur ne d h e r t o J ackson a s Grave s followed in his own vehicle . Ms. L uster re called that the petitioner stopped and
g ot into Graves’ vehicle a nd that she drove to the pol ice station. Ms. Luster ini tially contende d that the vic tima nd

the pe tit ion e r h a d n e ve r p re vio us ly me t or spo ke n with on e a no the r an d th a t sh e did not know how the petitioner kne w wher e she lived. Ms. L uster admitted having had consensua l sex with the petitioner prior to his 1997 imprisonment but denied having r enew ed the r elationship when he wa s relea s ed

. S h e s t at ed that even thoug h she had the opportunity to drive aw ay

when the petitioner ente red the Graves' residenc e, she chose not to do so beca use the pe titioner was ar

med and might have shot at her. She a cknowledg ed that whe n one of the office rs asked that she submit to a medical e x amination, she dec lined “[b] eca use . . . to me, . . . it wasn’t rape.” At some point afte r the preliminary

hear ing, the char g es re lated to Ms. Luster – ag g ravated ki dnapping and ag g ravated ra pe

– wer e dismissed by

the state. The rec ord i ndicates that at trial, no evidenc e wa s prese nted about the alleg ed ra pe and kidna

pping.

At tr ial
, the v ic timte sti fi e d th a t on Ma y 20 , 1 99 9, Ms. Lus te r, wh o ty pic a lly dr ov e him

to work a nd then re turned to their r esidenc e to g et ready to be at her job by 8:00 a.m., s topped at her place of employ

ment betwee n 6:15 and 6:30 a.m. B eca use of e ng ine t ro u b l e, t h e v ictim rece ived permission to leave his wor kplace for thirty to f

orty -five minutes to arr ang e for repa ir of the ve hicle. He c la ime d tha t af

te r a me c ha

nic qu ic kly re pa ir e d the c a r, he c ho se to sto p at Walg re e n' s with Ms. Luster bef

ore r eturning to their reside nce a t betwee n 7: 1 5 an d 7:30 a.m. The victim claimed that when they

arr ived, their front door was open. He testified that as he a pproac hed the house , he saw the pe tit ion e r, wh om h e ha d n ot s e e n in y e a rs , s tand ingins ide a loc ke d ou te r ir on do or . T he ke y to the iron door was in the l ock on the i nside of t he door. Accor ding to the vic tim, the petitioner, who was holding a " silver-ty

pe handgun," w alked onto the por ch and sa id, “‘Man, w hat ar e y ou doing-6-

marry ing my woman? You know that’s my woman.’” The victim r eplied, “Ma n, Idon’t know what y ou talking a

bout,” as the petitioner pointed the g un at the victim’s fore head a nd pulled the trig g er. The victim c laimed that when the g un did not fire, he attempted to wrest it awa y from the pe titioner and they strug g led on the porc h for f our or f ive minutes while, ac cordingto the victim, the petitioner

re pe a te dly

sa id, “ ‘I ’m going to k ill y ou .’ ” Th e vic timte sti fi e d th a t w he n h e wa s una ble to g a in possession of the g un, he pushed the petitioner aw ay and opene d the iron door. He claimed the
pe ti ti on er again pu lle d th e tr ig g e r, thi s ti me fi ri nga sh ot t hat w e nt t

hr ou g h th e fr on t do or

g la ss, l o d gi n g i n a wall. Upon hea ring the shot, the victim “fell in the floor.” L ater , a spent bullet wa s

rec overe d from the wa ll by police.

Acc ording to the victim, Ms. L uster rema ined outside during the conf rontation. He c laimed that petitioner thre at en ed t o k i l l her a nd ag ain pointed the g un in his direction. The victim then
retre ated to the residenc e as the petitioner and Ms. L uster lef t in the vehicle. Af

ter c ontemplating his course of

action, the vict i m walked to a ne arby store whe re he repor

ted to a police of

fice r that his wife had be en kidnappe d. The victim e stimated that an hour had passe d befor e he c ontacted the police. He explained that he did not have a phone in his residenc e. The victim acknowledg ed that

on the da y fo llo wi ngthe of

fe ns e s, wh e n h e saw the pe tit ion e r b oa rd a c ity bu s, he ins tr

uc te d M s. Luster, who wa s driving the ir car , to f ollow. The victim a dmitted boarding the bus and c onfronting the petitioner, who r efuse d to respond, bef ore he was orde red to de board by the bus driver

.

Th e vic tim , who ha d be e n pre vio us ly c on vic te d of pos se ssi on of he ro in w iththe int e nt t o s e ll,

rec eiving a ten- y ear prison sentenc e, also had a prior conviction for posse ssion of hy dromorphone with the intent to sell for which he had rec eived a six -y ear sentenc e. At the time of trial, he wa s on parole

.

Offic er Te d Maxwell of t he J ackson Pol ice De partment testified at trial that he photog raphe d the vic tim ’s re sid e nc e a nd re c ov e re d a sp e nt b ull e t f ro m a wa ll i n th e fr on t r oo m. T he of fi c e r d id not testify as to what c aliber w eapon f ired the bullet. The re were no shell casing s found at the sc ene.

L ie ute na nt M ic ha e l H olt

of the Jac ks on

Pol ic e De pa

rt me nt t e sti fi e d that as the un it supervisor, he assig ned the c ase to I nvestig ator Doris J ackson, who had since retire d. He indicated that hi s in vo lve me nt wi th thi s c a se wa s to a pp re he nd the pe tit ion e r, wh o w a s e ve ntu a lly a rr e ste d in Westland, Michiga

n, on November

17, 1999, almost six months after the incident.

Henr y Cunningham, a J ackson Tr ansit Authority bus driver, r eca lled that on the day afte r the char g ed off

enses, the pe titioner had boar ded his bus and sat down in the r ear . He testified that when he sto pp e d at a

tr a ff ic lig ht, the vic timkn oc ke d o n the d oo r and
, up on be inga dmi tte d to the bu s, made thre atening rema

rks to the petitioner. Cunningham reme mbere d instructing the victim, who ini tiate d th e a lte rc a tio n, to l e a ve the bu s.
During the trial, the petitioner claimed that the victim fabricated the cha rg es af ter lea rning of his relationship wit h Ms. L uster. He testified that he f irst dated B ecky

Luster in 1992 and late r-7-

share d a re sidence with her until h e v i o l at ed his parole and wa s returne d to prison in 1997. The
pe tit ion e r i ns ist e d that Ms . L us te r h a d v isi te d h im w hil e he wa s in pr iso n a nd tha t th e y re su me d th e ir romantic re lationship when h e wa s re l eased. He c laimed that on ea ch morning , afte r taking the victim to w o r

k
, M s

. Lu s te r w o u ld e it

h e r me e t h im a t h is r e s id e n c e o r th a t h e w o u ld g o to the residenc e she sha

red w i t h the victim. The petitioner testified that on the morning of May 20, he dr ov e his br oth e r’ s c a r t o M s. Lus te r’ s r e sid e nc e a nd pa rk e d in a c hurc h p a rk inglot , a s w a s h is custom. He re called that a pol ice of fice r appr oache d his vehicle a nd questioned him. When he explained that he was w aiting on a friend, the office r aske d for identific ation and patted him down, fi nd ing no we a

po ns . T he pe tit ion e r s ta te d th a t he a lso g a ve the of fi c e r p e rm iss ion

to s e a rc h h is vehicle. A ccor ding to the petitioner, the office r informed him that neighbor s had complaine d about his parking in the lot a

nd that he would have to le ave. Be cause he did not have a driver’ s license, he chose to le ave on foot. The pe titioner contende d that Ms. L uster, who sa w him as she re turned to her re sidence , then picked him up in her vehicle. T he victim was not prese nt. He cla imed that afte r he e x plained what had happe ned in t he parking lot, Ms. Luster drove him to the residence of Roy Graves, who had ag ree d to help hi m find a construction job. The pe titioner denied that he was in the Lu s te r r e s id e n c e o n M a y 2 0

. H e c o n te n d e d th a t h e d id n o t s e e th e v ic ti m a t a n y time tha t morning and denie d car ry i ng a g un or firingshots at the victim. He ac knowledg ed that on the fo llo wi ngda

y , h e wa s r idi ngon

a bu s wh e n the vic tim ste pp e d on bo a rd a nd thr e a te ne d to kil l hi m for “ messing w ith” his wife. The petitioner insisted t h at he had la st seen the victim on April 18, wh e n he we nt to the vic tim ’s re sid e nc e a nd inf or me d h im that he a nd

Ms. Lus te r h a d r e su me d th e ir

re la tio ns hip

. He te sti fi e d that the vic tim or de re d him to le a ve the pr op e rt y a nd the n fi re d a g un

int o the g round as a warning

. The petiti oner testified that he then tele phoned 911 fr om a pay phone and
repor ted the incident. He claimed that he waited f or a police cruiser

but none ar

rived.

Upon t his evidenc e, the jury returne d g uilty verdic ts for attempted se cond deg ree murder a nd felony possession of a we ap o n

. T he other char g es we re dismissed. This court a ffirme d on direc t appea l. T h e p et i t i o ner the n filed a pr o se petition alleg ing that he had be en denie d the ef fec tive assistance of counse l. The post-conviction court appointed counsel a nd allowed a

n amendment of the petition asser

ting that the t rial court had erred by failing to char g e the jury

on attempted voluntary manslaug hter a s a lesser

included off

ense of attempted first de g ree murder.

At the evidentiar

y hear ing, tr ial counsel testified that he was a n assistant public defe nder when he was appointed to repre sent the petitioner in Mar ch of 2000. H e re called that the petitioner was initially

char g ed with attempted first deg ree murder, a g g ravated burg lary , rape , and possession of a wea p o n b u t t h at the ra pe cha rg e wa s later dr opped. Tria l counsel re membere d that he had discussed the nature of eac h char g e with the petit ioner, the possibl e pena lty rang es if convic ted, and the plea of

fer made by the state. He contende d that he had attempted to inter view all of the potential witnesses fr om the l ist provided by the petitioner a

nd had inspec ted the sce ne of the crime. Tr ial counsel spec ifically

rec alled that the pe titioner had “maintained his innoce nce” and had r ejec ted the
state ’s of fe r, c on te nd ing that the vic tim ’s c la ims we re fa br ic a te d. Tr ia l c ouns e l te sti fi e d th a t w hil e he wa s awa

re that the petition er h ad prior convictions that would be admissible for impea chment purposes, he considere d the petit ioner’s testimony nece ssary to contra dict the victims’ version of the events. I t was his opinion t h at t h e t ri al “was basically g oing to be a matter

of cr edibility .” Tria l-8-

counsel testified that upon revie wing the case file in prepa ration for his testimony at t he hea ring on the post-conviction cla ims, he beca me awa re for the first time that a police office r had sear ched the petitioner shortly

befor e the of

fense and ha d found no we apons. He could not reme mber having interviewe d the offic er, but a g ree d that his testimony would have c orrobor ated somew hat the petitioner' s claim that he wa s unarmed.

Acc ording to trial counsel, the state ’s discover y materia l did not include the prior convic tions of the victim or ot her of the prosecution’s witnesses. He rec alled that throug h his own investigation, he ha d d isc ov e re d th a t th e vic ti m had pr ior fe lony dr ugc on vic tio ns that w e re a dmi tte d o n c ro sse xami na tio n f or imp e a c hme nt p ur

po se s. Tr ia l c ouns e l c on fi rm e d th a t c ha rg e s a s to the fe ma le victim, Bec ky

Luster, we re dr opped prior to tria l beca use she ha d retre ated from her claim that the petitioner had r aped h er

. T ri al counsel testified that he had inter viewed the victims, but di d not

a tte mpt to s e pa rate ly int e rv ie w M s. Lus te r, wh o, a pp e a re d to be “ un de r t

he do min ion

a nd c on tr ol” of he r h us ban d. Tr ia l c ouns e l a c kn ow le dg e d th a t th e pe tit ion e r w ish e d to c a ll M s. Lus te r a s a witness at trial. He explained that he did not subpoena her beca use he “did not know what she wa s g oin g to s a y , a

nd [be c a us e , d ur inghis pr e tr ia l in te rv ie w] s he se e me d to sti c k w ithMr . L us te r i n a ll
respe cts at all times.” He rec alled that the de fense did present the te stimony of the bus driver w ho verifie d that the victim was the a g g ressor in a confr ontation on his bus.

Offic er Te rre nce Smith of the Jackson Poli ce D epar tment testified t h at in May of 1999, at
ap p ro x i m at el y

6 : 3 0 a. m

. , h e e n co u n t er edt h e p et i t i o n er af t er re s p o n d i n g t o a c al l re gar d i n g a suspicious vehicle in a c hurch pa rking lot. He re mem b er ed t h at he inspec ted the petitioner’ s ide nti fi c a tio n, c he c ke d for a ny ou tst a nd ingwa

rr a nts , a nd c on du c te d a

pat- do wn se a rc h f or we a po ns

. I t was Off icer Smit h' s rec ollection that he did not sear ch the petitioner’s vehicle. He did not find any

wea pons.
Evely n Donita Shaw, the pe titioner’s si ster, testified that at the petitioner’s re quest, she telephoned tr ial counsel a nd ask ed t o be subpoena ed so that she would be excused from he r employ ment for the tr ial. She contende d that she had informed trial counsel that she had te lephone bills t hat demonstrate d that in the wee ks and months a fter the offe nse, Be cky Luster had te lephoned her at her re sidence in Michiga n. Ms. Shaw claimed that Ms. L uster “w as ca lling and ta lking to [the petitioner], wanting to come t o Michig an where the petitioner was.” S he testified that Ms. L uster told her that she wa

nted “to be w ith” the petitioner a nd that the petitioner “didn’t do it.” Ms. Shaw
state d th a t sh e wa s n ot c a lle d to te sti fy a s a de fe ns e wi tne ss at tr ia l.

Eu g e nia Pha rm e r, a no the r o f the pe tit ion e r’ s sis te rs , te sti fi e d th a t sh e sp ok e wi th t he vic tim at her residenc e af

ter the pr eliminary

hear ing and that the victim indicated that he had not intende d for the pr osecution to g o “this far . . ., but he couldn’t ba ck out of it bec ause if he did, they was g oing to ge t him for false some thing.” She claimed that she had provided thi s information t o trial counsel
pr ior to t he tr ia l.

The pe titioner testified at the e videntiary hear ing that he met with his trial counsel thre e or four times bef

ore the trial and ha d also spoken with him by telephone. H e desc ribed trial c ounsel-9-

a s “ ho sti le ” bo th i n th e ir

me e tin g s and

ov e r t he ph on e , c la imi ngthat tr ia l c ouns e l “ thr e a te ne d to w a lk out” of the tria l if the petitioner did not testify

. The petitioner contende d that he had informed tria l

c ouns e l a bo ut h a vin g be e n stop pe d an d pa tte d dow n by Of fi c e r Smith

on the mor nin g of the of fe ns e b u t t hat trial counse l responded that the “Jackson Police Depa rtment don’t kee p rec ords of that,”

c la imi ngtha

t he wa s una

ble to “ fi nd

a nyth in g.” Acco rdin g to t he pe tit ion e r, he did

no t w ish to te sti fy a t tr ia l but wa s pr e ssu

re d int o do ing so by tr ia l c ouns e l, wh o ins ist e d that he ne e de d to te ll h is

“ sid e of the sto ry ,” no tw ith sta

nd ingthe prio r c on vic tio ns fo r w hic h h e wo uld be su bje c t to c ro ssexamination. He claimed t hat t rial counsel had agr eed to call Ms. Luster as a hostile witness after

rec eiving phone re cords de monstrating that she had tele phoned Ms. Shaw af ter the offe nse, but that he fa ile d to do so. Th e pe tit ion e r ind ic a te d tha t his bro the r’ s car ha d be e n impo un de d af te r t he patdo wn by Of fi c e r S mith a

nd that w he n th e le a d in ve sti g a tor , D or is Jac ks on , r e le a se d it , s he tol d h is br oth e r that “so me thi ng a bo ut [the vic tim ’s ] sto ry

is n ot a dd ingup .” He state d th a t a lth ou g h b oth he and his brothe r conf

err ed with trial counsel about Officer J ackson’ s comments, she wa s not called to testify at trial. Duringcross-e x amination, the petit i oner a cknowledg ed that he did not know of
any of the victim’s neig hbors who could have bee n called to testify that they had not hea

rd a gunshot on the morning of the off ense.

Be cky Luster, who did not testify at trial, did not testify at the post-conviction hear ing. Nor did the petitioner’s brothe r or Of fice r Jackson.

Wit hout addre ssing the petitioner’s claims indivi dually , the post-conviction cour t denied the
pe tit ion , s ta tin g a s f

oll ow s:

Al l matte rs of

wh ic h Pe tit ion e r c omp la ins a re e ith e r m a tte rs of tr ia l strate g y

or wo uld
not have ga

rner ed information helpful t o the P etitioner’s case. [ Trial counsel] di d a

rea sonabl e am o u n t o f pre paration in thi s case . The witnesse s who wer e not ca lled would likely

have be en unfa

vorable to the Petitioner. . . .

E v e n if th is Co u rt a s s u me s th a t c o u n s e l w a s [d e f ic ie n t in pe r f

o r ma n c e ], Pe tit ion e r h a s sh ow n n o pre jud ic e a nd ha s not co nv inc e d this Court that th e ou tc ome would have be en any

differ ent. This case was one of credibility of t he witnesses . .

. .

I I nitially
, the petitioner asser ts that he was denied the eff ective assistance of counsel at trial beca use trial counse l fail ed t o m ove for a mistrial afte r testimony reg ardingthe petitioner’s pr ior incar cer ation, failed to c all favorable witnesse s to testify , and fa iled to adequately investigate the

case

.

W h en a petitioner se eks post-convic tion relief on the ba sis of ineffe ctive assistanc e of

co u n s el
, h e m u s tfi rs tes t ab l i s h t h at t h e s er v i ce s re n d er edo r t h e a d v i ce gi v en we re b el o w “ t h e r an ge of compe tence demande d of attorne y s in criminal case s.” B axt er v. Rose, 523 S.W .2d 930, 936-10-

(Tenn. 1975) . Second, he must show that the deficienc ies “a ctually had an a dverse eff

ect on the de fe ns e .” Str ic kla

nd v. Was hin g ton , 4 66 U. S. 6 68 , 6 93 (1 98 4) . Sh ou ld t he pe tit ion e r f

a il t o establish either f

actor , he is not entitled to relief. O ur supre me court descr ibed the standa rd of r eview

a s f oll ow s:

Be cause a [petitioner] m ust establish both prong s of t he test, a failure to prove either de ficienc y

or pre judice provide s a suffic ient basis to d eny relief on the ineffe ctive assistanc e cla im. Indeed, a court ne ed not addr ess the compone nts in any particula r orde r or even address bot h if the [petitioner] m akes a n insufficient showing of on e c omp on e nt.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

On claims of ineffec tive assistance of counsel, the petit ioner is not entitled to the benef it of hindsight, may

not second-guess a r easona bly based tria l strateg y , and ca nnot criticize a sound, but

unsucce ssful, tactica l decision made dur ing the course of the proc eeding s. Adkins v. Sta t e, 911 S.W. 2d 33 4, 34 7 ( Te nn . Cr im. Ap p. 19 94 ). Suc h d e fe re nc e to t he ta c tic a l de c isi ons o f c ouns e l, howe v er , ap p l i es only

if the choic es ar e made afte r ade quate pr epar ation for the c ase. Cooper v. State, 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

Un de r o ur statut or y law, the pe tit ion e r be a rs the burd e n of p ro vin g the a lle g a tio ns in h is p os tconvi c ti o n p e ti ti o n b y

c le a r a n d c o n v in c in g e v id e n c e

. Se e T e n n

. Co d e A n n

. § 4 0

- 3 0 -210(f ). Evidence is clear

and convinc ing w hen there i s no serious or substantial doubt about t he ac cura cy of the c onclusions drawn f rom the evide nce. Hicks v. State, 983 S.W .2d 240, 245 (Tenn. Crim. App. 19 98 ). Cla ims of

ine ff e c tiv e a ssi sta

nc e of c ouns e l are re g a rd e d a s mi xed qu e sti on s o f law a

nd fa c t. State v. Honey cutt, 54 S.W .3d 762, 766-67 (Tenn. 2001); State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999). On appeal, t he findings of fac t made by the post-conviction cour t are conclusive a

nd will not be disturbed unle s s the evidenc e conta ined in the re cord pr eponder ates a g ainst them. Br ooks v. State, 756 S.W .2d 288, 289 (Tenn. Crim. App. 1988)

. The burden is on the petitioner to show that the e vid e nc e pr e po nd e rate d a g a ins t th os e fi nd ing s. Cle nn y v. Sta te , 5 76 S.W. 2d 12 , 1 4 ( Te nn . Cr im. App. 1978). The cre dibilit y of the witnesses and the weig ht a nd value to be aff

orded their testimony

are qu es t i o n s to be re solved by the trial cour

t. Bates v. State, 973 S.W .2d 615 (Tenn. Crim. App. 1997). When revie wing the application of law to those fa ctual finding s, howeve r, our r eview is de

nov o , a n d th e tr ia l c o u rt’ s c o n c lu s io n s o f la w a r e g iv e n n o p r e s u mp ti o n o f c o r r e c tn e s s

. F ie lds v. State, 40 S.W .3d 450, 457-58 (Te nn. 2001); see a lso St ate v. Eng land, 19 S.W.3d 762, 766 (Tenn. 2000).

The pe titioner first argues t hat t rial counse l was ineff ective f or fa iling to move for

a mistrial when it was r evea led during the testimony of the victim that the petitioner ha d previously been incar cer ated. The rec ord reflec ts that during cross-e x amination, the vi ctim ag ree d that he had not“C o o k e ” is no t i d e n tif ie d furth e r in the re c o rd , b u t i s p re su m e d to b e a c o rr e c tio n a l f a c ili ty. 2

-11- seen the petitioner in sever al y ear s an d stated that he kne w the petitioner “ was in Cooke.” The 2 victim also denied having ever shot at the petitioner, contending that he “didn’t know [the petitioner was] out of prison.” Finally
, the vi ctim acknow ledg ed that he had pr eviously spoken to the petitioner

ov e r t he te le ph on e : “ Ita lke d to him wh ile he wa s in

th[e ] pe nit e nti a

ry . H e c a lled

[Ms. Lus te r’ s] house.”

Th e purp os e of

a mis tr ia l is to c or

re c t th e dam age d on e to t he jud ic ia l pr oc e ss w he n s ome event ha s occur

red w hich would pre clude a n impartial verdic t. See Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977) . The de cision whether to gr ant a mistrial is within th e trial c ourt’s discre t i o n an d will not be disturbed absent a n abuse of

that discretion. State v. Millbrooks, 819 S.W. 2d 44 1, 44 3 ( Te nn . Cr im. Ap p. 19 91 ). “ Ge ne ra lly a mis tr ia l w ill be de c lare d in a c ri min a l c a se

on ly wh e n the re is a ‘m a nif e st ne c e ssi ty ’ re qu ir ing su c h a c tio n by the tr ia l jud g e .” I d. Th e a uth or ity to discharg e a jur

y is to be exercised only

when ther e is a cog ent re ason or manif est nec essity . J ones v. State, 218 Tenn. 378, 403 S.W.2d 750, 754 (1966).

I n our view, the rec ord does not pre ponderate ag ainst the post-conviction court’s f inding that trial counsel was not de ficient in his perf ormanc e for failing to move for a mistri al

. T h e v i ctim’s ref ere nces to the pe titioner’s prior inca rce ration, while pre

judicial
, wo u l d not have g iven rise to a “manife st nece ssity ” to stop the trial. No fur ther in fo rm ati on reg ardingthe petitioner’s c riminal history or prior bad acts was provided to the jury . Although it would have been a ppropriate for tria l counsel to have soug ht a cur ative instruction, it is unlikely that a mistrial would have be en g rante d. Additionally , by

testifying, the petitioner subjecte d himself to c r o s s

- e xa mi n a ti o n r e g a r ding f our prior th e f t c o n v ic ti o n s

. O n d ir e c t e xa mi n a ti o n , w h il e p r o v id in g th e ju r y w it h b a c k g r o u n d

in f o r ma tion

conce rning the nature of his relationship wit h the victim’s wife, the petitioner testified that she ha d visited him while he was incarce rate d. Thus, the j ury was fully awa re that the petitioner had pr ior

c on vic tio ns

.

The petitioner next contends that trial counsel was inef fec tive for f

ailing to c all as witnesses his sis te rs , E ve ly

n Sh a w a nd Eu g e nia Pha rmer. He cla ims that th e te sti mony of Ms. Sha w w ou ld have c orrobor a

te d h is r o ma n ti c in volvement with the victim’s wife a nd that Ms. Pharmer’ s testimony would have se rved to impea ch the victim. At the post-convic tion hearing , trial counse l was not asked to e x plain why these witnesses wer e not pr oduced at trial. As indicated, the bur den is on the petitioner t o prove his alleg ations in a clea r and c onvincing fashion. See T enn. Code Ann. § 40- 30- 210(f)

.

B oth

wi tne sse s c la ime d to have ta lke d w ithtr ia l c ouns e l and bo th we re pr e se nt a t the tr ia l. Ms. Shaw was subpoena ed by the def ense. Ms. Shaw w ould h ave te stified to her be lief that the petitioner wa s involved in a romantic r elationship with the victim’s wife, who tel ep h o n ed the petitioner at he r residenc e in Mic higa n during the wee ks and months a fter the offe nse and be fore the

arr est. Althoug h the petitioner ha s not established that any of Ms. Luster’s c omments to Ms. S haw would have qua lified as an e x ception to t he rule ag ainst hear say , see Te nn. R. Evid. 801, 802, the-12-

testimony of Ms. Shaw mig ht have be en mar g inally h el p fu l t o the def ense. That Ms. L uster repe atedly

telephoned the petitioner af ter the of fense would have c orrobor ated the de fense theory that th e pe tit ion e r a

nd Ms. Lus te r we re havin g a n a ff a ir a nd that th e vic timha d a

mot ive to r e ta liate in some manner. T he testimony of Ms. Shaw would have also demonstrate d that the victim’s wife had knowledg e of the petitioner’s wherea bouts, which mi g ht have rebutted testim ony that the police did not arr est the petit ioner im mediately afte r t he offenses because his wher eabouts were unknow n. No su c h e vid e nc e wa s o ff e re d b y a ny oth e r w itn e ss.

M s

. Ph a r me r w o u ld h a v e o f f e r e d te s ti mo n y

th a t t h e v ic ti m h a d

r e s e r v a ti o n s a b o u t the
p ro s ec u t i o n

. S h e c o u l d h av e c o n fi rm edh i s d es i re t o re ca n tb u tfo r f ea r o f r ep er cu s s i o n s

. Al t h o u gh such testimony

would have qua lified as hear say , its a dmission may never theless have been r equire d by due proc ess. See State v. B rown, 29 S.W.3 d 4 2 7
, 4 3 4 -3 5 (Tenn. 2000) . Additionally , the
statements to Ms. Pharmer would have had s ome i mpeac hment value a nd could have been pr oved by extrinsi c evidenc e had the defe ndant denied them during cross-e x amination. See Tenn. R. Evid. 613. Gi v en t he natur e of this ca se as a swea ring match betwe en the victim and the pe titioner, the testimony of Ms. Pharmer

might have offe red he lpful information for the defe nse.

On the other

hand, that the victim' s wife still pursued the pe titioner after his departur e fr om this jurisdi ction does not mean that the shooting incide nt never occur red. That the victim' s wife a nd the pe tit ion e r ha d a re la tio ns hip is n ot i nc on sis te nt w iththe the or y of the state . M or e ov e r, the vic tim did not admit to M s. Pharmer that he had fabr icated the events of Ma y 20, 1999. His statement was that the prosec ution had proce eded f ar too long for him to rec ant hi s alleg ations and that he fea red

re pe rc us sio ns if

he a tte mpt e d to wi thd

ra w the c ha rg e s. Th e vic timdid

no t a dmi t th a t he ha d li e d to police about the inc ident. Ag ain, the burde n in a p o s t -c o n v i cti on petition is t o prese nt clear and convincing evidenc e of defic iency in perfor mance and pre

judice in re sult. I n our view, the failure
to util ize the te sti mony

of the two sis te rs , w ho wo uld have a pp e a re d to have ha d a

natur a l bi a s in favor of their br other, doe s not preponder ate ag ainst the findi ng by the pos t-conviction cour t that trial counsel ha d met profe ssional standards.

The pe titioner also asser

ts that trial counsel was ineffe ctive for failing to interview Of fice r Smit h, failing to interview the victim’s wife separately from the victim, and failing to canva ss the victim’s neig hborhood for witnesses who would testify that they h ad n o t hear d a g unshot on the

mor nin g of the of fe ns e . A ll w ou ld q

ua lif y a s se ri ou s c la ims of de fi c ie nc y on the pa rt of tr ia l c ouns e l.

I n our view, tria l counsel s h o u ld have inter viewed O ffice r Smith, had he known about the pat-down se arc h, and perhaps shoul d have called him to testify as a w itness at trial. Trial c ounsel
te sti fi e d th a t he wa s una

wa re of Of fi c e r Smit h’ s inv olv e me nt un til jus t be fo re he te sti fi e d at th e po stconviction hea

ring . Whil e he ag ree d that the offic er’ s testimony would have be nefitted the de fense
, the post-conviction cour

t never theless ruled that any

failure of per formanc e by the failure to discover and produc e Of

fice r Smith at trial was not prejudicial. As indicated, Off icer Smit h did not searc h the petitioner' s car . The pe titioner had the opportunity to arm hi mself after the officer left and be fore he was seen by

the victim inside the residenc e of the victim. I f it was his custom to meet Ms. Luster

eac h morning afte r t he victim went to work, he likely had full acc ess t o the residence. Our scope of-13-

re vie w i s to o n a rr owto s pe c ulate that the te sti mony of the of fi c e r mig ht have c ha

ng e d th e ve rd ic t. Offic er Smith testified at the post-convic tion hearingthat at appr ox imately 6:30 a.m. in Ma

y of 1996, he re sponded to a dispatch r eg ardinga suspicious vehicle in a churc h parking lot. He enc ountere d the petitioner, c hecke d the petitioner’s ide ntification, che cked f or any outstand i n g wa rra

nts, and conducte d a pat- down for w eapons. A lthough the of fice r’s testim ony at t he post-convic tion hearing did not include the date that he enc ountere d the petitioner, the state conce des t hat i t was the morning of the off ense a nd both the victim and Ms. L uster told police in t heir ha ndwritten statements that they ha d s e e n an of

fi c e r in the pa

rk ing lot that mor

nin g

. Ha d O ff

ic e r S mith b e e n c a lle d a s a wi tne ss, his testimony would have c orrobor ated the pe titioner’s claim that he w as wa iting for Ms. L uster in a churc h parkinglot and was most likely unarme d at the time. That would not, howeve r, qualify as an alibi. Off

icer Smit h’s testimony

would have e stablished that there was approxi mately fiftee n minutes betwee n his e ncounter with the unarme d petitioner and the offe nse. The pe titioner testified

a t th e po st- c on vic tio n h e a ri ngtha t hi s b ro the r’ s v e hic le wa s im po un ded a nd the n late r r e le a se d to him by Offic er D oris J ackson. N either the petitioner’s brother nor Offic er J ackson were called a s wi tne sse s to su

bs tanti ate the c la im. Ha d th e ve hic le be e n im po un de d f

ro m th e c hurc h p a rk inglot
, any testimony

conce rning the circumstances of the i mpoundment and how the vehicle wa s secur ed might have been helpful. Yet the petitioner i s not entitled to a new trial based upon suc h speculation.

The petiti o n e r

a ls o c la im s th a t t

r ia l c o u n s e l w a s in e f

f e c ti v e f o r f a il in g to in te r

v ie w the victim’s w ife separ ately

from the victim. I n that reg ard, how ever , the petitioner ha s failed to prove
any resu l t ing pr ejudice. A ccor ding to tria l counsel, he did not attempt to interview Ms. L uster

se pa rate ly e ve n th ou g h h e be lie ve d h e r t o b e “ un de r t he do min ion

a nd c on tr ol” of

the vic tim . Wh ile
tr ia l c ouns e l shou ld have a tte mpt e d to in te rv ie w M s. Lus te r i nd e pe nd e ntl y of the vic timin o rd e r t o test her verac ity and commit ment to the vi ctim’s version of the events, ther e is littl e indication that the fa i l u re t o d o s o wa s so critical a s to call into question the verdict of the jury . I n Ms. L uster’s handwr itten statement to police, she r elated that the victim, who claimed not to have se en the petitioner in y ear s, was able to identify both the petitioner and a vehicle that he was known to have been dr iving. She r epeatedly stated that the pe titioner was ar med and f ired a shot at the victim. She also stated that she a

nd the victim drove ba ck to t heir re sidence “to che ck to see if eve ry thing wa s alrig ht,” per

haps imply ing a

n anticipated c onfrontation with t he petitioner. N ever theless, the petitioner has f

ailed to prove that t h e o u t co m e of the trial would have be en any differ ent had tria l

c ouns e l in te rv ie we d h e r se pa rate ly fr om the vic tim

. Tr ia l c ouns e l te sti fi e d that Ms. Lus te r sa t w ith the victim during the trial and a ppear ed “to stick with [the victim] in a ll r espec ts at all times.” The petitioner chose not to call Ms. L uster as a wit n es s at the post-conviction hea ring . There is no indication that she wa s separ ately interviewe d prior to the evide ntiary hear ing on the post-conviction

c l a i m

. W h e n a

p e t i t i o n e r

c o n t e n d s t h a tt r i a l c o u n s e l f a i l e d t o d i s c o v e r , i n t e r

v i e w , o r p re se nt a witness in support of his defe nse, he should present that witness at the evidentiar y hear ing. B lack v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990)

.

L ikewise, it is our conclusion that the petitioner has failed to de monstrate that trial counsel was inef fec tive for f

ailing to c anvass the neig hborhood for witnesses who would testify that they had
not hear d a gunshot on the m orning of t he offense. The petiti oner ha s failed to identify any witnesses that counsel should have found or to set for t h the testimony they may have of fer ed. See id. The-14-

re c or d sup po rt s th e po st- c on vic tio n c ourt ’s c on c lus ion that tr ia l c ouns e l w a s n ot d e fi c ie nt i n th is
reg ard.

Ne xt, th e pe tit ion e r a rgue s th a t tri al cou ns e l w a s in e ff e c tiv e fo r f

a ili ngto f ull y inv e sti g a te the cr iminal recor d of the victim and for failing to impeach the victim with his prior convic tions for the ft a nd fr a ud . A t th e po st- c on vic tio n h e a ri ng , tr ia l c ouns e l te sti fi e d that th e state ’s dis c ov e ry did not include information re g ardingthe cr imi n al records of a ny of the prose cution witnesses. Tria l

c ouns e l c on du c te d h is o wn inv e sti g a tio n f

or pr ior c on vic tio ns of the vic tim , h ow e ve r, a nd wa s a ble to find two prior felony drug convictions that wer e used at trial to impeach the vic tim. The rec ord
on appea l inc ludes a copy of the prese ntence repor t prepa red in c onnection with sentenc ing on the victi m ’s convictions for possession of he roin and hy dromorphone. T he victim’s cr iminal recor d, which is leng thy , also included a Fe bruar y 1995 misdemeanor c onviction for theft and a June 1990 misdemeanor c onviction for fr aud/bre ach of t ru s t. Both of these convictions, which involved dishonesty

and occ urre d within ten y ear s of the victim’s testimony , could have been utilized by the defe nse to impeac h the victim. See Te n n

. R

. E v i d

. 609(a) – (b). The re w ere also convictions for
p e t i tl a r c e n y: o n e i n 1 9 8 8 w h e n t h e v i c t i m w a s t h i rt y- s i x ; t h r e e i n 1 9 8 4 w h e n t h e v i c t i m w a s t h i rt yone; and one in 1982 when the victim was twe nty -nine. Although the petit larc eny convictions wer e

no t ne c e ssa

ri ly a dmi ssi ble , tr ia l c ouns e l c ou ld n e ve rt he le ss h a ve so ug ht to us e them fo r c ro ssexamination of the victim given that they wer e cr imes involving dishonesty committed while the victim wa s an adult and that the case hinge d on cre dibilit y

. See Tenn. R. Evid. 609( b) (“ Evidence of a c on vic tio n [g re a te r t

ha n te n y e a rs old ] is a dmi ssi ble if the pr op on e nt g ive s to the a dv e rs e pa rt y

su ff ic ie nt a dv a nc e no tic e of

int e nt t o u se su c h e vid e nc e

. . . a nd the c ourt de te rm ine s in

the int e re sts of justice that the pr obative v al u e o f t h e conviction . . . substantially outweig hs its prejudicial eff ect.” ). Tria l counsel, who did c ross-examine the victim about two serious drug convictions, was not questioned at the e videntiary hear ing r ega rding his knowledg e of the additional offe nses or whether he had o b t ai n ed a copy

of the pre sentenc e re port, which is dated O ctober 1, 1996. The

rec ord, howe ver, r efle cts that the re port was one of seve ral doc uments, including the handwr itt en

s t at em en t s o f t h e v i ct i m an d M s

. Lu s t er , t h at we re s u

b m i t t ed as ex h i b i t s af

t er t h e e v i d en t i ary

h ea ri n g. A cove r letter f

rom post-conviction counse l indicates that the petitioner “ insisted that [ he] ask [t hat the documents] be made a par t of the re cord.” Ag ain, the burde n is upon the petitioner to clea rly and convincing ly

establish the validity of the claims. The manner in which this testimony was made a part of the rec ord is not so persuasive a s to overturn the r ulings of the post-conviction cour t.

As indicated, trial counsel found the vi ctim’s two prior felony drug convictions. I n our view, the re c or d is no t su ff

ic ie ntl y de ve lop e d to e sta

bli shthat tr ia l c ouns e l wa s in e ff e c tiv e fo r f

a ili ngto discover the victim’s prior convictions for theft and f

raud or to c ross-examine him at trial reg arding those other c rimes. Althoug h the issue in this case wa s one of cre dibilit y , the jury saw a nd hear d the witnesses firsthand. L ater , the post-conviction cour t, having hear d additional witnesses, re jected the petitioner' s claims of defic iency in pe rfor mance and prejudice in r esult. That the victim ha d a history of cr imes involving dishonesty would have be en relevant but t o utiliz e the be nefit of hindsig ht is not permitted in the pos t -c o n v i ct i o n s et t i n g. A b et t er d ev el o p edre co rd i n t h e p o s t -c o n v i ct i o n p ro ce eding might have tipped the sca les more favor ably to the petitioner. This court is not, howeve r, per suaded that additional cross-e x amination on the add i t i onal prior of fense s would have ma de a dif fer ence

.-15-

F i n a l l y , t h e p e t i t i o n e r

c o n t e n d s t h a tt r i a l c o u n s e l w a s i n e f f e c t i v e f o r f a i l i n g t o a d e qu a te ly confe r with him reg ardingpossible defe nses. The r ecord ref lects that trial counse l met with the petitioner seve ral times and a lso talked with him by telepho n e p ri or to the trial. B ased on information provided by the petit ioner, trial counsel int ervie wed prospective witness and inspected the sce ne of the offe nse. Tria l counsel discussed with the pe titioner the cha rg es ag ainst him and the potent ial punishment rang es, as we ll as a plea offe r by the state. He rec alled that the pe titioner reje cted the of

fer beca use he ma intained his absolute innocenc e. T ri al counsel testified that he discussed potential def

enses wit h t h e petitioner and state d that he wa s “sure ” he disc ussed the
pe tit ioner’s test imo ny

wi th h im p ri or

to t ri a l. A lth ou g h th e re c or d r e fl e c ts t hat th e re wa s so me conflict be tween tr ial counsel a nd the petitione r, that does not mea n that trial counsel wa s ineffe ctive.

I n State v. Z immerman, 823 S.W .2d 220, 825 (Tenn. Crim. App. 1991) , this court explained the Str ic kla

nd te st a s f oll ow s:

A c on vic te d d e fe nd a nt m a kin g a c la im o f i ne ff

e c tiv e a ssi sta

nc e mus t identify the acts or om issions of counsel that are alleg ed not to have be e n th e re su lt of re a so na ble pr of e ssi on a l jud g me nt. Th e c ourt mus t then deter

mine whether , in light of a ll the circumstanc es, t he identif ied ac ts or omissions wer e outside the wide rang e of profe ssionally competent assistance

. I n making th at d eter mination, the cour t should keep in mind that coun s el 's function, as e laborated in preva iling prof

essi o n al n orms, is to make the adve rsar ial testing
proce ss work in the par

ticular c ase.
As to the second component, t here must be a rea sonable probability that but for c ouns el ’s u n p rofessional error , “the r esult of the proc eedingwould have be en differ ent,” not that it nece ssarily would have be en diffe rent. The proba ble re sult need not be an a cquittal. A re asonable probability of being found g uilty

of a le sser c harg e, or a shor ter sente nce, satisfies the second pr ong in Strickland.

(Citations and emphasis omitted.)

There is some leg itimacy

in the claims by

the petitioner. Ne verthe less, it is our view that the petitioner fa iled to clear ly and convinc ingly

establish that but f

or trial counsel' s omissi ons, there w as

a re asonable pro b ab ility

of a more favor able r esult. The re cord doe s not preponder ate a g ainst the trial court' s finding that the petitioner wa s not deprived of the ef fec tive assistance of counse l.

II The pe titioner also contends that the tria l court er red by fa i l i n g t o char g e the jury on attempt ed v o l u n t ary

manslaug hter a s a lesser included off

ense of attempted first de g ree murder. Th e re is n o a lle g atio n th a t tr ia l c ouns e l w a s in e ff e c tiv e fo r h a vin g fa ile d to re qu e st the c ha rg e or ra ise the issue on direc t appea l. The state c ontends that the evidence did not s upport such an instruc tion.-16-

“A g round for

[post -conviction] relief

is waived if the pe titioner persona lly or throug h an attorney failed to p re sent it for dete rmination in any proce eding befor e a c ourt of compe tent jurisdiction in which the g round could have b ee n prese nted.” Te nn. Code Ann. § 40-30- 206(g ). Be cause the petitioner fa iled to raise this issue in his direct appe al, it cannot provide a grounds f or relief in this post -convic tion procee ding.

Acc ording ly , the judg ment is affirme d.

___________________________________ GARY R. WADE, PRES I DI NG JUDGE