IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1997

DONNIE LANE

THOMPSON , )

) No. 02C01-9602-CC-00059 Appellant ) ) HARDIN CO UNTY vs. ) ) Hon. C. CREED McGINLEY , Judge STATE OF TENN ESSEE , ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : WILLIAM JAY REYNOLDS CHARLES W. BU RSON Attorney for Appellant Attorney General and Repor ter 611 Court Street Savannah, TN 38372 LISA A. NAYLOR Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
G. ROBERT RADFORD District Attorney General JOHN OVERTON Asst. District Attor

ney General Hardin County Courthouse Savannah, TN 38372

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The a ppellant's c onvictions stem from five sepa rate crim inal episod es. See State v. Donnie Lane Thompson , No. 02C01-9401-CC-00007 ( Tenn. Crim. App. at

Jackson, May 11, 1994), perm. to appeal de nied , (Te nn. A ug. 2 9, 19 94). T he co nvictio ns fo r agg rava ted b urgla ry, agg rava ted a ssa ult, an d van dalism resu lted fr om the a ppe llant's unlaw ful en try of th e hom e of h is ex-g irlfrien d, his ass ault u pon her w ith a k nife in the p rese nce of the ir two c hildre n, an d his des truct ion of her p rope rty. Th e ass ault c onvic tion a rose from the a ppe llant's ass ault o f his girlf riend at that ti me. The evading arrest and escape convict ions invo lve separat e criminal incidents with local law e nforce men t. 2 OPINION
The appellant, Donnie Lane Thompson, appeals as of right from the denial of his petition for post-conviction relief. In August, 1993, a Hardin County jury found the appellant gui lty of aggravated bur glary, aggrav

ated assault, evading arrest, v

andalism, assault, and escape. 1 As a result of these convictions, he is currently serving an effective sentence of twenty-one years in the Department of Correction. H is convictions w ere affirmed on direct appeal to this court. State v. Donnie Lane Thompson , No. 02C01-9401-CC-00007. On March 2, 1995, t he appellant, proceeding pro se, filed this petition for postconviction relief. On M arch 10, the trial court appointed counsel to represent the appellant in the post-conv iction proceedings. On September 11, 1995, the petition was denied.
On appeal, the appellant raises three issues. First,he argues that he received the ineffective as sistance of counsel, allegi ng various areas of defici ent performance. Second, he contends that the district attorney general failed to provide him with cer

tain documents which impair ed his post-convictio n presentation. Finally , the appellant avers that the post-conviction jud ge abused his discretion in overruling the appellant's motion for recusal.

After a review of the rec ord, we affirm the order of the post -conviction court de nying

the appe llant r

elief.2 The record reflects that, at the time of the trial, the appellant's chil dren were ages twelve and fift een. 3

I. Post-Conviction Hearing
At the post-conviction h earing, the appellant testi fied to numerous areas wherein he contend s that tria l counsel 's perfo rmance wa s deficie nt. Speci fically, he testified that trial counsel failed to object to the testimony of his two minor children who testified against him. He alleged that their testimony at tri al was tainted by their presenc e at the preliminary hear ing. Moreover, he s

tated that no challenge was made to the c ompetency of his children w ho testified against him. The app ellant ad mitted, however, th at he did not know th e ages of his two children. 2 He also testified that counsel failed to investigate pen ding charges against two witn esses, Laura Davis and Danny Ray, for purposes of impeachment.
Next, the appellant alleg ed that trial counsel failed t o file a motion to sever the various counts of the indi ctment, and, consequently, breached confidential communications as to whether one witness, Barbara Cherry, wanted to press charges against Thompson on an unrelated case. Additionall y, although he argues that trial counsel failed to object to inaccuracies in the pre-senten ce report regarding pr

ior offenses, he did not challeng e the accuracy of the report at the post-conviction hear ing. Also, he alleges

that his trial counsel d id not effectively voir di re the jury and that couns el permitted a juror to r emain that was predisposed towards the pr osecution. He also complaine d that counsel failed to obtain a copy of potential jur ors and failed to discuss the r acial composition of the jury with him prior to trial.

Assistant Public Defender R ichard DeBerry testi fied that he represented the appellant at the trial l evel. He stated that he had s even years experi ence as4

a public defender. He conceded that his case load was heav y, yet, he maintai ned that this part icular cas e was given su fficie nt atten tion. Spe cificall y, he attested to meeting with the appellant regarding this case on numerous occasions. During these meetings, DeBerry informed the appellant of his constitutional rights.
Regarding the alleg ed charges against w itnesses Laura Davis and Danny Ray, trial counsel testified that forgery charges were still pending when their testimony was presente d, precluding impeachment under the rules of evidence. However, he did q uestion Davis as to w hether she had received any promise of leniency from the State for her t estimony. Moreover,trial counsel related that the forgery charges ag ainst Davis and Ray arose from a joint enterpris e and that Danny Ray was c

alled as a defense witness. Concerning the testimony of the appellant's children, DeBerry indicated that the children had no problem in communicatin g.
DeBerry related that he did file a motion to sever i n the instant case, however, after discuss ion with the appellant, dec ided to withdraw the motion for strategic reasons. Ad ditionally, DeBerry explained that he habituall y consults with clients rega rding the exercise of jury challenges. Tr ial counsel testified that the appellant was satisfied with voir dire and that the two were i n agreement as to the jury that was selected.
The post

-convi ction c

ourt den ied the appellant's peti tion for relief.

II. Ineffective A

ssistance of Counsel
Again, the appellant contends that he was denied effective r epresentation5

at the trial level due to his counsel's failure to (1) pursue a motion to sev er the various counts of the indic tment; (b) interview

witnesses; (c) obj ect to witnesses from testifying who w

ere present but did not testify at the preliminary hear ing; (d) object to the presentence repor t; and (e) explain v

oir dire and identify the racial mixture of the jury to the appellant.
When a petition challenges the effective assi stance of counsel, the appellant has the burden of establis hing (1) deficient repre sentation and (2) prejudice resulting fro m that deficiency. Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2064 (1984); State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874, 110 S.Ct. 211 (1989 ); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representati on occurs when counsel provides assistance tha t falls below the range of competence demanded of criminal defense attorneys. Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudi ce is the reasonable likel ihood that, but for deficient representation, the outcome of the pro ceeding would have bee n different. Overton v. State , 874 S.W .2d 6, 11 (Tenn. 1 994). On p ost-convi ction revi ew, there is a strong presu mption of satisfactory repres entation, Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995), and the appell ant bears the burden to prove his allegatio ns by a preponderance of the ev idence. Taylor v. State , 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993).

When this court undertakes review of a lower court's deci sion on a petition for post-conviction rel ief, the lower court's findings of fact are given the weight of a jury verdict and are conclusive on appeal absent a finding the evidence preponderates against the ju dgment. 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, 686 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994) . In its order, the post-conviction c ourt stated, af ter thorough6

consideration of all allegations relating to ineffectiveness: In conclusion, the petitioner asserts myriad gr

ounds which he suggests indicate ineffective assistance of counsel. The proof is overwhelming to the contrary. . . . None of the allegations, view

ed separately or in their

entirety, indicate tr

ial counsel did not meet the standard demanded of attorneys in criminal cases or that his performance in any manner prejud iced the appellant. The record supports the post-c onviction court's findi ng. As such, the appellant has failed to meet his burden. This issue is without meri

t.

II. Duty of the State to Furnish Relevant Portions of the Record

in Post-Conviction Proceedings

Next, the appellant contends that the district attorney general's failure to include the preliminary hearing transcript, the transcript of voir dire, and police reports with the resp

onsive pleadings, as mand ated by the Post-Convi ction Procedure Act, impaired his pre sentation at t he post-convictio n hearing.
Tenn. Code Ann. § 40-30-114 (1990) ( repealed 1995) obligates the State to file those parts of the record relevant to the issues raised in the postconviction petition. Allen v. State , 854 S.W.2d 873, 875 (Tenn. 1993); State v. Gilley , 517 S.W.2d 7 (Tenn . 1974). When ineff ective assistance of counsel is raised, either the transc ript or the testimony of trial couns el at the post-convicti on hearing is essential t

o a determination of whether coun sel's performance was deficient and prejudicial. See Bond v. State , No. 02C01-9412-CC-00274 ( Tenn. Crim. App. at Jackson, June 7 , 1995), perm. to appeal denied , (Tenn. Oct. 7, 1996); Rutherford v. State , No. 03C01-9306-CR-00186 ( Tenn. Crim. App. at Knoxville, Dec. 6, 1994) (citations omitted ). How

ever, the appel lant, i n his br ief, fails to specify how he was prejudiced from failure to receive the voir dire transcript, police repo rts, or preliminary hearing transcript. An issue is waiv ed7

when the appellant fails to ar ticulate reasons to support a conclusory statement. Tenn. Ct. Crim. R. App. 10(b)

.
In the present c ase, the transc ript of the prel iminary hearing, miscellaneous police reports, and the trial transcript are included in the record before us. The appellant's trial counsel testified extensively at the postconviction hearing. The purpose of the aforementioned material i s not altogether clear from the appellant's bri ef. We assume that the relevance of these records is, at least in part, based upon the appellant's attemp t to establish inconsistencies in the v ictim's testimony at tr

ial from previous statements given. Our review rev

eals no material inconsist encies. Moreover, the purpose of the Post-Conviction Act i s to determine whether ther e has been a deprivation of any constitutional right i n the course of a trial. Davenport v. State , No. 02C01-9307- CC-00151 (Tenn. Crim. App. at Jackson, Feb. 8, 1995) (citations om itted). Thus, before relief may be granted, the appellant must demonstrate that he h ad been prejudiced by the tardy response of the State. Id . We find that, from the material included, the appell ant has failed to establish defici ent performance on behalf of his trial counsel. Moreover, the appellant has fa iled to establish prejudice resulting fro m the alleged noncompliance of the di strict attorney general. See Hellard v. State , No. 1110 (Tenn. Crim. App. at K noxville, June 10, 1987), perm. to appeal denied , (Tenn. Sept. 14, 1987). Accordingly, this issue is without meri

t.

IV. Motion for Rec usal
In his last issue, the appel lant avers that the post-conviction judge abused his discretion by r

efusing to recuse himself from heari ng the post-convicti on petition. Specifically, he alleges that the post-conviction judge's prior exposure8

to the appellant in situations unfavorable to the appellant bi ased the outcome of the post-conviction hear ing.
A trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case, or whenever he believes his impartiality can reas

onably be questioned, State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993); see also Lackey v. State , 578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). Notwithstanding, the matter of recu sal is left to the sound discretion of the trial court and will not be reversed on appeal unless clear abuse appears on the face of the record. Cash , 867 S.W.2d at 749; Caruther s v. State , 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). In the pr esent case, the post-conviction judg e, in overruling the motion, concluded that, althoug h he had dealt with the appellant i n the past, he experienced "no personal animosity, no reason to be b iased or do a nything other than rul e as the evi dence would call me to rule." We find no abu se of the trial court's discretion, thus, the appellant's contention is without mer it. See State v. Hines , 919 S.W.2d 573, 578 (Tenn. 1995), cert. denied , -- U.S. --, 117 S.Ct . 133 (1996) (a judge is not per se disqualified because he presi ded over and made certain findings in a previous litigation).

V. Conclusion
In a post-conviction pr

oceeding, the appellant has the burden of proving the grounds raised in the petition by a preponderance of the evidence. State v. Clark , 800 S.W.2d 500, 506 (Tenn. Crim. App. 1990). The appell ant, in the present case, has failed to so demons trate. Moreover, the r

ecord supports the findings of fact by the post-conv iction court. See Butler v. State , 789 S.W.2d 898, 899 (Tenn, 1990); Vermilye v. State , 754 S.W.2d 82, 84 (Tenn. Crim. App.9

1987). Accordingly , we affirm the judgment of the post-conviction court. See Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

____________________________________ DAVID G. HAYES, JUDG E

CONCUR:

____________________________________ JOE B. JONES, PRESIDING JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE