# FILED
June 6, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 1997

WENDELL KING, JR. , ) ) No. 01C01-9603-CR-00086 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Seth W . Norman, Judge STATE OF TENN ESSEE , ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : PAULA OGLE BLAIR CHARLES W. BU RSON 176 Second Avenue, North Attorney General and Repor ter Suite 406 Nashville, TN 37201 LISA A. NAYLOR Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 VICTOR S. (TORRY)

JOHNSON III District Attorney General RONALD E. M ILLER Asst. District Attor

ney General Washington Square, Suite 500 222-2nd Avenue, North Nashville, TN 37201-1649

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 All four of the appel lant' s issues rel ate eit her direct ly or indire ctly to the t wo missing witness es identified as "Dale " and "W allace." 2 OPINION
The appellant, Wendell King, Jr., appeals the Davidson County Cr

iminal Court's dismissal of his petition for post-convic tion relief. In this appeal, he raises the following issues: I. Wh ether tri al counse l was ineff ective fo r failing t o locate t wo witnesses; II. Whether the burden of producing witnesses at the postconviction hearing is "inherently unfair" to an i ncarcerated petitioner; III. Whether the trial court properly denied the appellant's motion for a continuance; and IV. Whether the post-conviction court was biased against th e appellant. 1
After a review of the rec ord, we conclude that the appellant's contentions are without merit. The ju dgment of the trial court is affirmed.

I. Background
The appellant was convic ted of the felony murder and aggr avated rape of Jeannie Barlow, who was eighteen years old at the time of her death. Alth ough no direct evidence connecting the appellant to the crimes was presented at trial, the scien tific evid ence was ove rwhelming . His hair, his semen , and his s aliva matched that left on the victim's body by the murderer. King v. State , No. 01C01-9310-CR-00366 (Tenn. Cr im. App. at Nashville, Aug. 4, 1994), perm. to appeal denied , (Tenn. Oct. 31, 1994). Moreo ver, the DNA testing

completed by an FBI technician excluded 99.9999 percent of the population as possible suspects. Id . As a result of these conv ictions, the appellant w as sentenced to2 At tri al, t he victi m's mother acknowledged that the appell ant and her daught er knew each other an d that the a ppellant pre viously had spent the night in her a partm ent. 3 life imprisonment plus thirt y years. His c

onvictions and sentences w ere affirmed on direct appeal by this court. See King , No. 01C01-9310-CR-00366. On March 21, 1995, the appellant fil ed a pro se post-conviction petition. Subsequently, the appellant was provided appointed counsel, who filed an amendment to the petition.
At the post-conviction h earing, the appellant testi fied that his trial counsel was ineffective for failing to locate and question two potentially favorable witnesses, "Dale" and "Wallace." Althoug h he did not know the surnames of these two men, the appellant di d know where they lived at the time of the murder and the type of cars they dr ove. The appellant argued tha t these witnesses would have established that the appellant and the vi ctim had previously engaged in consensual sexual intercourse. In addition, he contended tha t these witnesses would hav

e also discredited the testimony of the victim's mother who testified against him at trial. 2 The appellant stated that trial counsel was aware of these potential witnesses, but failed to conduct a proper investigation which would reveal their whereabouts. Moreover, he averred that the trial court wrongfully denied hi m a continuance on the first day of his trial so that "Dale" and "Wallace" could be located. Despite his al legations, the appellant con ceded that these men knew nothing about his actions on the day of the rape and murder of the victi m.
The appellant's trial counsel testified that the ap pellant did provide him with the names of the two potential witnesses identi fied only as "Dale" and "Wallace," however, all efforts to locat e them were unsuccessful. Tri al counsel indicated that two investigators with the Metro Public Defender's Office repeatedly attempted to locate the men during the pre-trial investigation of this4

case and throughout the trial , but were unable to do so. Counsel further testified that he met with the appellant on four or five occasions and pr ovided written evidence to further document the time spent on the appellant's cas e. With regard to the denial of the appel lant's motion for continuance, tr ial counsel stated that the trial court denied the motion on the ground that the appe llant had already had nineteen months to locate any potentially favorable witnesses.
At the conclusion of the hearing, the court dismissed the ap pellant's petition finding sufficient gr ounds existed for denying the appellant's motion for continuance and that trial coun sel's performance was not de ficient.

II. Ineffective A

ssistance
The appellant first alleges that he was denied the effective assistance of counsel because his trial counsel failed to locate two potentially favorable witnesses . To succe ed in such a challen ge, the ap pellant must sho w, by a preponderance of the evidence, Taylor v. State , 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994), first, that counsel's representation fell below the range of competence de manded of attorneys in criminal cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and, second, that, but for these errors, the result of the proceeding w ould have been different. Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989). On post-c onviction review, there is a strong pre sumption of satisfactory representati on, Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App. 199 5), and th e appella nt bears t he burde n of provi ng his alle gations b y a preponderance of the evidence. Taylor v. State , 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993). Moreov er, when this court under takes review of a low

er3 Among other reasons we note that Tenn.R.Evi d. 412(c)(3)permits int roduction o f the victi m's sexual behavio r with the accused only when the defendant relie s upon consent. Consent was no t relied upon by the app ellant in this ca se. See King , No. 01C01-9310-CR-00366. 5 court's decision on a petition f or post-convictio n relief, the lo wer court's findin gs of fact are given the wei ght of a jury verdi ct and are conclusive on appeal absent a finding the evidence prepon derates against the judgment

. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied , 441 U.S. 947, 99 S.Ct. 2170 (1979); Taylor v. State , 875 S.W.2d 684, 68 6 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994).
When an appellant contends that trial counsel fail ed to locate potential witnes ses in s upport o

f his defe nse, he bears the burden o

f presenting these witnesses at the evi dentiary hearing. Black v. State , 794 S.W.2d 752 (Tenn. Crim. App. 1990)(emphasis added). Before he can be entitled to relief on this ground, t he appel lant mus t produce a materia l witness(e s) who (1) co uld have been found by a reasonable investigation and (2) would have testified fa vorably in support of his defense if called. Black , 794 S.W.2d at 753. If the appellant fails to present such witnesses, he fails to establis h the prejudice prong mandat ed by Strickland v. Washington , supra . Black , 794 S.W.2d at 753. The appellant, in the case before us, did not present th e alleged material witnesses, identified as "Dale" and "Wallace." Moreove r, from the appellant's testimony at the hearing, it is impos sible to determine how the testimony of these witness es would have been relev ant to his case. 3 This issue is witho ut merit.
In a related issue to the appel lant's claim of ineffectiveness,he contends that production of the two w itnesses at the post-conv iction hearing unfairly

shifts the burden of proof upon him. The appellant ack nowledges that he bears the burden of proving his cl aims, however, he arg ues that, because of his continuous incarceration followi ng arrest, this burden is inherently unfair. It is well-settled within thi s state th at the de fendan t has the burden o f proving h is allegat ions by a4 W e not e tha t the a ppe llant's Sixth Am end me nt cla im o f a de nial of his rig ht to com puls ory pro ces s is m isplac ed. T he re cord reflec ts tha t com puls ory pro ces s to o btain witne sse s wa s in fa ct iss ued on be half o f the a ppe llant a t trial. 6 preponderance of the evidence, r egardless of the nature of the all egation and the custodial situation of the defendant. Taylor , 875 S.W.2d at 686; Black , 794 S.W.2d at 752. The appellant, in the present case, has failed to carry this burden. This contention is w ithout merit.

IV. Motion for Continuance
The appellant also contends that he was denied his right to compu lsory process by the trial court's refusal to grant a continuance so that witnes ses for the defense could be secured. 4 Specifically, he asser ts that, because he was incarcerated prior to his trial, he needed additional time to secure two witnesses, "Dale" and "Wallace," whom trial counsel had been unable to locate.
The decision whether to g rant a continuance "rests w ithin the discretion of the trial court." State v. Morgan , 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). A denial of a continuance w ill not be disturbed "unless it appears upon the face of the record that the trial judge abused his discretion and prejudice enured to the accused as a direc t result of the trial judge's ruling." State v. Dykes , 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990). Mor eover, in order to gain relief in the post-c onviction context, the

appellant must also demonstrate that the trial court's deni al abridged his constitutional right to fundamental fairness in the convicti on process. Conner v. Bowen , 842 F.2d 279, 283 (11th Cir. 1988). The granting or refusal of a continuance "rarel y reaches constitutional proportions ." State v. Harris , No. 03C01-9311-CR-00381 ( Tenn. Crim. App. at Knoxville, Feb. 28, 1996), perm. to appeal denied , (Tenn. Feb. 3, 1997) (citing Knighton v. Maggio , 740 F.2d 1344, 1350 (5th Cir. ), cert. denied , 469 U.S. 924, 105 S.Ct. 306 (1984).5 MS. BL AIR: No w, how w as Mr. M oore's re presen tation not up to par, not effective?

. . . APPELLANT: Well, . . . I kept repe atingmyself an d tell ing hi m that the se two witnesses was key

to my defense because t he DA's theory was that t he relati onship between me and the victi m wasn't the way Isaid it , which it was an intimate relationsh ip. So, they [sic] the ory was tha t I raped he r.

And thes e two witne sses c ould sho w that the n ight that I met t his victim, we had sexual i ntercourse, will ingly , the fi rst night . The mo ther a lso ha d sex with D ale an d W allace . Now , bein g tha t I can 't tell you their last name, I do n't know thei r last name. But I know where they

lived at. I know 7 After considering the merit s of this issue, we cannot conclude that the trial court's denial of the appellant's motion for ad ditional time to secure the presence of unlocated witnesses impli cates due process. In determi ning whether the tri al court's action rendered the appellant's trial fundamentally unfair, we must look for actual prejudice to the appel lant. Continuances may be g ranted for the purpose of securing the presence of identifiab le witnesses if their testimony is material and admissible. At the post-conviction hear ing, as well as before the trial court, the appellant failed to demonstrate that these w itnesses were material witnesses or that their

presence could have been secured at the trial if giv en additional time. According ly, the trial court did not abuse its discreti on by denying the appellant's motion for continuance. This iss ue is without merit.

V. Bias of Post-Conviction Judge
In his final issue, the appell ant asserts that he did not receive a full and fair hearing on all the g rounds raised in his post- conviction petition because the post-conviction judge was biased against hi m. He avers that the cour t denied him his right to testify as to the importance of the miss ing witnesses. Specifically, he complains that the trial court's comment that, " prior sexual

intercourse has nothing to do with the charge of rape," demonstrate d the court's bias agains

t him. 5the kind of cars th ey drive. . . . They c ould ha ve told th e Cou rt and p roved the DA 's theo ry that I did n't have to rape her . Do you underst and? That's what I 'm saying. MS. BL AIR: So , let me ju st reiterate . . . . COURT: Prior sexual i ntercourse has nothing to do with the charge of rape, Ms. Blair.

8 During the hearing, the appellant stated that the missing witnesses would have testified that, prior to the victim's rape and murder, he and the victim h ad engaged in consensual inte rcourse. This fact alone does not make the witnesses material, or

that, if produced, their testi mony would have been r elevant and, therefore, admissible. The standard employed in determining bias is an objective one. Alley v. State , 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). Moreover, adverse rulings by a court are not usually sufficient g rounds to establish bias. Id . at 821. The comment made by the post-conviction court does not indicate bias or that the trial court failed to consi der the appellant's testimony

. Accordingly, ther

e is nothing in the recor d to indicate that the post-con viction judge was biased or unfai r. This issue is wi thout merit.

VI. Conclusion

After a re view of the record an d the issu es presen ted by the appellan t, we conclude that the post-conv iction court properly

dismissed the petition for post
conviction relief. The ju dgment of the post-convicti on court is, therefore, affirmed.

____________________________________ DAVID G. HAYES, Jud ge9

CONCUR:

______________________________ GARY R. WADE , Judge

______________________________ J. CURWOOD WITT, JR., Judge