### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 1, 200 6

LAR RY DIC KER SON v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Croc kett County No. 3006 Jer ry Scott , Senior Jud ge, Sitting by Designation

No. W2006-00223-C CA-R 3-P C - F iled Novem ber 15, 2006

The pe titioner, L arry

Dicker son, filed a pe tition for post- co n v iction relief f rom his conviction for fi rs t de g re e mur de r andre su lti ng lif e se nte nce. The tr ia l c ou rt dis mis se d h is p e tit ion . O n a pp e a l, the petitioner a

rg ues that he r ece ived the inef fec tive assistan ce of counse l at trial. We aff irm the judgme nt of the trial court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opinion of the court, in which D AVI D G. H AYES and R O BERT W. W EDEMEYER , J J ., joined.

L arry E. Copeland, Jr., Memphis, Tennessee , for the a ppellant, L arry

Dicker son.

Paul G. Sum me rs , Atto rn e y Ge ne ra l a ndRe po rt e r; Da vidH. F ind le y , A ssi stant A tto rn e y Ge ne ra l; C. Phi llip Bivens, District Attorney Gene ral, pro te m, for the a ppellee, State of

Tenne ssee.

OP IN ION

The fa cts underlying the petitioner’s c onviction were summarized by this court in the direc t appea l in affirming the conviction:

The de fendant and the victim wer e mar ried for 27 y ear s and worke d in the same fa ctory

. I n Au gu st 1997, the victim moved out of their home and eventua lly filed for divorce . Wit nesses familiar with the defe ndant testified the d efendant’s be havior c hang ed dr a matic a lly

a ft e r the se pa

ratio n. Th e de fe nd a nt s ta lke d th e vic tim from the time of the ir separ ation until the victim’s death. He interfe red w ith her work by fre quenting her w ork ar ea. When he was barr ed f rom her w ork ar ea, the defe ndant beg an hiding in the ventilation sy stem of the plant where h e could watch her throug h a

ve nt. Ou tsi de of wo rk
, the de fe nd a nt re pe a te dly fo llo we d th e vic tim

.-2- He bor rowe d a friend’s truc k in order to spy on her. O n one occ asion, he hid in her ve hicle while carry ing a pellet pistol in order to f rig hten he r. Th e de fe nd a nt wro te nu me ro us le tte rs a ndno te s to the vic tim during their sepa

ration.

I n O c tob e r 1 99 7, the de fe nd a nt p ur c ha se d th e ri fl e he us e d to kill the victim, whic h was the first firea rm he had ever

p u rc h as ed. J ust a few hours prior to the kill ing, the defe ndant telephone d his sonin-law and asked where he could purcha se ammuni tion for the rifle.

L arry De a n Di cker so n, the de fe nd a nt, sh ot andkil le d h is estrang ed wife during the ea rly morning hours of De cembe r 20, 1997. Ellen Nunnery , a friend of the vic tim, testi fied she ha d g iven the victim a ride home. A fter the victim ex ited the vehicle , she stooped to speak to Nunne rythroug h the window of the vehicle. N unnery hear d a shot, and the window s hattere d. A s econd shot rang out, and the victim collapsed be side the ca r. The medical examiner testified the vic tim ha d be e n sh ot tw ic e , on c e on the le ft fo re arm a nd a g a in i n the c he st, wi th the c aus e of de a th b e ing the wo un d to the c he st.

T h e d efendant admitted to law e nforc ement that he shot the victim. He said he pa

rked his car, t o o khis rifle, and w alked appr ox imately

200 y ards to a hiding place in the bushes ac ross the street f rom the victim’s home. F or an hour, he waited in the bushe s for the vic tim to return home. He admitted firing two shots. After shooting the vic tim, the d ef en d ant disposed of the w eapon and
tr a ve le d to se ve ra l di ff

e re nt l oc a tio ns , in c lud ing Jac ks on , M e mph is, Missouri, and I llinois befor e re turning to his home, where he wa s

arre s t ed s ev er al d ay s af

t ert h e k i l l i n g.
The prose cuti o n and the de fense eac h prese nted expert
te sti mon y reg ard ing the de fe nd a nt’ s c apa c ity to c omm it a preme ditated murder . Dr. Nat Wi nston, a ps y ch i at ri st, testified on be ha lf of the state that, i n h is o pin ion , th e de fe nd a nt h a d th e abil ity to pr e me dit a te the kil lin g

. Th e de fe nd a nt’ s e xpe rt wi tne ss, ps y c ho log ist Dr. John McCoy , stated th e d ef endant suffere d from obsessive compul sive disorder at the time of the off ense. H e opined the defe ndant was not c apable of pre meditation due to the disorder

.

The jury convicted the defe ndant of pre meditated first de g ree murder, and he re ceive d a life se ntence with the possibili ty of par ole.-3-

State v. L arry

Dea n Dicker son, No. W 2 0 0 0-02201-CCA-R3-CD, Crocke tt Count y , slip op. at 1-2 (Tenn. Crim. App. Sep. 10, 2001) , app. denie d (Tenn. Sept. 10, 2001)

. The pe titioner filed a r equest for post-conviction re lief on September 27, 2002. The c ourt appointed counse l, a petition was filed on J anuary 12, 2005, and an amended pe tition was filed later. At the post-conviction hea ring , the petitioner testified that he sig ned an attorney -client fee c ontrac t with his trial counsel that included a provision for a thirty -day notice before the attorney remove d himself from the case and a provision for counsel to repr esent the petitioner up to the appe als level at the state supr eme c ourt. The petitioner said counsel did not tell him about pre-tria l court date s or about any of the investig atio n b ei n g d o n e for his case. He said that counsel did not discuss the state’s evidenc e with him and that he did not see some c rucia l pieces of the state’s e vidence , such

a s a Te nn e sse e B ur e au o f Inv e sti g a tio n ( TB I ) r e po rt a ndso me ph oto g ra

ph s, un til the tr ia l. H e sa id that trial counsel ne ver co m m u n i ca t ed a ple a off er to him and that c ounsel told him, “They don’t want nothing . We’re g oing a ll the way .”

The pe titioner testified that counsel discussed with him his obsessive-c ompulsive disorder and Dr . McCoy ’s eva luation of him and testimony

. He sa id counsel re sted the entire case on the pe tit ion e r’ s ob se ssi ve -c omp uls ive dis or de r a nd dis c us se d no oth e r p os sib le de fe ns e or str a te g y wi th him. He said t hat at the t ime of t he kil ling he was taking two medications, Zoloft and codeine . The petitioner fe lt that counsel should have considered the eff ects of the medications and the ir interac tion in hi s d efen se. He al so sai d a gap o f fi ft een or si x tee n mi nu tes was in hi s t aped in ter vi ew wi th TBI Ag ent David Joll ey

that was play ed at tria l. He said that during this edited period, he discussed the

me dic a tio ns that he too k. He sa id that he inf orme d c ou ns e l abo ut thi s bu t that c ou ns e l di d n ot r a ise the issue at trial. The petitioner also fe lt that counsel should have subpoe naed some peo p l e fr om Ba ptist Hospit al, wher e he rec eived psy cholog ical treatment, in order to show the stress he wa s under leading to the homicide.

On cr oss-examination, the petitioner testified that the only person hired by his tria l counsel with whom he spoke wa s Dr. McCoy , but he later acknow ledg ed that he had a mee ting lasting

app ro xima te ly

thi rty min ute s w itha

ps y c hiatrist , D r. Willi a m D a nie ls. Th e pe tit ion e r a lso

a c kn ow le dg e d th a t he dis c us se d w ithc ou ns e l te n s pecifi c witne sse s w ho m he wante d c ou ns e l to int e rv ie w. He s a id, tho ug h, that he ne ve r h e arda nythi ng e lse fr om c ou ns e l a bo ut s ome of

tho se witnesses and that he was only told that others would not testify . He sa id he talked to counsel about his s t ay at Ba ptist Hospit al and that he looked at some of the rec ords counse l had obtained f rom there . He sa id that he wrote to counsel numerous times while i n jail and that counse l had re sponded a “c ouple of times.” The petit i o n er s ai d h e had give n a conf ession to Ag ent J olley

and

a c kn ow le dg e d th a t hi s c ou ns e l f iled a n u ns uc c e ssf

ul m oti on to s up pr e ss the c on fe ssi on . H e a lso acknow ledg ed that he ha d no alibi defe nse and that the def ense strateg y

was to prove that he did not have the mental ca

pacity to form the pre meditation require d for f irst deg ree murder.

The pe titioner’s trial counsel testified t hat he withdrew from the petitioner’ s case around the same time that he f

iled the not ice to appea l. Counsel testified t hat he r emember ed filing two motions to suppress in the petitioner’s case , althoug h the re cord showe d that he had f iled three . He sa id he-4-

reme mbere d talking to the pe titioner about potential witnesses, and his file inc luded four pa g es of hand-w ritten notes summarizing intervie ws that either he or his para l egal had with ten differ ent witnesses. He said he did not reme mber c onversations about specific w itnesses other than D r. McCoy and Dr . Daniels. He said he dis cussed with the petit ioner two of t he st ate’ s witnesses, Ag ent J olley and Dr . Nat Winston.

Counsel rea d a letter written by Dr. Daniels, which stated that, in his opinion, if the petitioner had re ceive d appropriate treat m en t, the homicide proba bly could have been a voided. Counsel acknow ledg ed that Dr. Daniels, who was not called to testify at t rial, was a psy chiatrist, wher eas D r. McCoy , who did testify

for the pe titioner at trial, was a psy cholog ist. Dr . Wins ton, the state’s e x pert witness at trial, wa s a psy chiatrist with sever al y ear s’ experienc e. Counsel testified that his trial strateg y was to prove that the petitioner wa s not c apable of forming preme ditation for first deg ree murder. H e said that while D r. Daniels ag ree d with D r. McCoy ’s evaluation “ [t ]o a certain extent,” Dr. Da niels woul d have te stified that the petitioner “ may or may not have ha d the ability

to form preme ditation.” Counsel acknowled g ed that he did not attempt to find anothe r psy chiatrist who would have testified favor ably for the pe titioner. He said he did talk to Dr. Danie ls and Dr. Mc Coy about the ef

fec ts of the petitioner’s obse ssive-compulsive disorder on his confe s s i o n and whe ther they could help in having the conf ession suppressed. H e said ne ither doctor c ould assist with t hat issue.

Counsel testified that althoug h he could not re member sp ec i fi c i nterview s with the state’s wi tne sse s, he kn e w that he ha d p re tr ia l di sc us sio ns wi th e ve ry wi tne ss w ho te sti fi e d at tria l. He sa id he did not object to Dr. Winston bein g d ecla red an expert based on not having any publications beca use he did not believe that alone wa rra nted an objec tion. He sa id he did not question Dr. Wins ton ext ensively on the methods used to e valuate the petitioner beca use he thought it would be foolish to do so. He said his strateg y was to attac k Dr. Winston’s ulti mate conc lusion that the petitio n e r c o u ldh a v e f

o r me d p r e me d it a ti o n b y

p o in ti n g o u t th a t th e p s y c h iatris t h a d n o t u s e d the leg al def inition of premeditation in forming his conclusion.

On cr oss-examination, counsel testified that he began prac ticing law i n 1983 and that he was involved in about 100 criminal jury trials and about a

dozen f irst deg ree murder trials. He said that he ha d th e pe tit ion e r sig n a c on tr a c t that sa id he wo uld on ly re pr e se nt the pe tit ion e r at th e tr ia l le ve l. He sa id that when he w as first re tained, he ta lked with the petit ioner about the petitioner’s ve rsion of what happene d and the f acts surr ounding the homicide and the pe titioner’s confe ssion. Counsel

sa id h e g ot the imp re ssi on th at th e pe tit ion e r’ s w if e ’s le a vin g him

in the sa me we e ke ndthat hi s daug hter g ot married and moved away had a dr amatic e ffe ct o n t h e petiti oner. H e said he interviewe d sever al people w ho confirme d this theory . He sa id the purpo s es of the psy cholog ical evaluations were to de termine whe ther the pe titioner was compe tent to stand trial
, wh et her a n ins a nity de fe ns e c ou ld b e su pp orte d, wh e the r the peti tio ne r c ou ld h a ve fo rm e d th e re qu isi te preme ditation for first deg ree murder, and whether the petitioner could have had a “know ing” mental state for second de g ree murder. H e said both Dr. D aniels and Dr. M cCoy opined that the petitioner

wa s co m p et en t t o s t an d tri al an d wa s n o t l ega l l y i n s an e at t h e t i m e o f t h e k i l l i n g. C o u n s el ’s s tra t egy was the n to n e g a te th e p r e me d it a ti o n e le me n t o f f ir s t d e g r e e mu r d e r

a n d h a v e th e p e ti tioner-5-

convicted of

a lesser offe nse. He said that he discussed this strateg y and the potential se ntence s for differ ent offe nses with the petitioner a nd that the petitioner a ppear ed to under stand.

Counsel tes t i fi ed that he did discuss a plea off er w ith the petitioner and the pe titioner’s brother. H e said both re

jected the forty -y ear offe r for second de g ree murder be cause they felt that

a fo rty -y e ar s e nte nc e , to be se rv e d at 10 0% , w ou ld amou nt t o th e pe tit ion e r s pe nd ing the re st o f h is lif e in p ri so n. He sa id h e c on ve y e d th e ple a of fe r t o th e pe tit ion e r the la st t ime he sp ok e to h im befor e trial, whic h was one or two day s befor e trial.

T h e t ri al co u rt d i s m i s s ed t h e p et i t i o n fo r p o s t -c o n v i ct i o n re l i ef
, fi n d i n g:

There was no proof

prese nted at the post c o n v i cti on relief he ari ng a s to a nythi ng mor e that def e ns e c ou ns e l cou ld ha ve do ne to

c on vin c e a

jury that th e Pe tit ion e r’ s c on fe ssi on wa s un true or that hi s mental state wa s such that he c ould not premeditate and deliberate. I t w a s ju st i mpo ssi ble to sa ve the Pe tit ion e r f ro m a ve rd ic t of

g uil ty of murder

in the first deg ree . The a dvice g iven and the se rvice s rende red by [defense counsel] w ere clea rly within the range of competenc e dema nded of attorney s in criminal case s in Tennessee or elsewhe re.
The pe titioner appea ls the trial court’s dismissal o f h i s petition and arg ues that he r ece ived the ineffe ctive assistanc e of c ounsel.

The burden in a post-convic tion procee ding is on the pe titioner to prove his g rounds for r elief by clea r and c onvincing evidenc e. T.C.A. § 40-30- 110(f) . On appe al
, we ar e bound bythe trial

c ou rt ’s fi n d i n g s o f

f a c tu n l e s s w e c o n c l u d e t h a tt h e e v i d e n c e i n t h e r e c o r d p r e p o n d e r a t e s a g a i ns t those finding s. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Be cause they relate to mix ed questions o f l aw an d fac t, we re view the tria l court’s c onclusions as to whether counsel’s pe rf orma nc e wa s d e fi c ie nt andwh e the r that de fi c ie nc y wa s p re judi c i a l u nd e r a

de no vo stand ardwi th no presumption of cor

rec tness. I d. at 457.

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of counse l is made, the burden is on the petitioner to show (1) that counsel’s pe rformance was de ficient a nd (2) that the de ficienc y was pre judicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see L ockhart v. Fre twell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 84 2- 44 (1 99 3) . In o the r w or ds , a sh ow ing that c ou ns e l’ s perf orm ance fa lls be low a

re a so na ble
stan d ar d is n o t e n o u g h ; r a th e r , th e p e ti ti o n e r mu s t a ls o s h o w th a t b u t f o r th e s ubstandard perf ormanc e, “the result of the procee ding w ould have be en diffe rent.” Strickland, 466 U.S. at 694, 1 0 4 S

. C t

. a t2 0 6 8

. T h e S tr i c k l a n d s t a n d ar d h a s b e e n ap p l i e d t o t h e r i g h tt o c o u n s e l u n d e r ar t i c l e I, section 9 of the T ennesse e Constituti on. State v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989)

.-6-

A petitioner will only

prevail on a claim of inef fec tive assistance of counse l after satisfy ing both prong s of the Strickland test. See H enley v. State, 960 S.W .2d 5 7 2 , 580 (Tenn. 1997) . The perf ormanc e prong require s a petitioner raising a claim of ineffe ctiveness to show that the c ounsel’s repr esentation fell below an obje ct ive standar d of re asonable ness or “ outside the wide rang e of profe ssionally

competent a ssistance.” Strickland, 466 U.S. at 690, 104 S. Ct . at 2066. The pr ejudice prong require s a petitioner to demonstrate that “ther e is a rea s o n ab l e proba bilitythat, but for

coun s el ’s professional err ors, the re sult of the proce eding would have be en diffe rent.” I d. at 694, 104 S. Ct . at 2068. “A r easona ble proba bilitymeans a p ro b ab i l ity sufficie nt to undermine confide nce in the outc ome.” I d. Fa ilure to satisfy either pr ong results in the denial of relief. I d. at 697, 104 S. Ct . at 2069.

I n Ba x ter v. Rose, 52 3 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decided that attorney s should be held to the g ener al standard of whether the service s rende red wer e withi n the

ra n ge o f c o m p et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e co u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a su re d b y the du tie s a ndc ri te ri a

se t f orth i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 ( 6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in revie wing counsel’s conduct, a “fair assessment of attorne y perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduct, and to eva luate the c onduct from c ounsel’s pe rs pe c tiv e at th e ti me. ” Stric kland , 4 66 U. S. at 68 9, 10 4 S. Ct. a t 20 65 . T hu s, the fa c t th a t a particula r strate g y or tac tic failed or

even hurt the defe nse does n o t, alone, support a c laim of ineffe ctive assistanc e. De fer ence i s made to trial strate g y or tac tical choice s if they are informed ones base d upon adequate pre paration. See DeCoster, 487 F .2d at 1201.

The pe titioner arg ues that his trial counsel wa s ineffe ctive by failing to: ( 1) advise the pe tit ion e r o f h is c ou rt

date s, vis it h im r e g ula

rl y in j a il, or c on ve y the state ’s of

fe r t o h im; (2 ) d isc us s the investig ation of the c ase and witness interviews with him; (3) discuss trial strateg y , other than attempting to negat e intent, and re viewing discovery with him; (4) pursue his use of Z oloft and codeine as a possible defe nse; (5) raise at trial the issue of the ta ped conve rsation betwe en him and Ag ent J olley ; and (6) c all Dr. Da niels, a psy chiatrist, in his defense

.

I.

The pe titioner contends that trial c ounsel “failed to establish a prope r working relationship” with him because counsel failed to inf orm him of court dates, visit him reg ularly in ja il, or convey a plea offe r to him. The petitioner’s te stimonythat counsel failed to visit him or convey a plea offe r

wa s c on tr a dic te d b y

c ou ns e l’ s te sti mon y

that he me t w ith th e peti tio ne r o n s e ve ra l oc c a sio ns , so me tim e s me t w iththe pe tit ion e r and the pe tit ion e r’ s br oth e r, a ndre la y e d to the pe tit ion e r andhis brother a plea offe r from the state that they reje cted. The only evidenc e that counse l did not inform the p e ti ti o n e r

o f c o u r t d a te s w a s th e p e ti ti o n e r ’ s te s ti mo n y th a t h e w a s u n a w ar e o f

a p r e tria l d ate. The petitioner did not explain how he was prejudice d by counsel’s alleg ed failure

. The trial c ourt

acc redited the testimony of counsel, and nothing in the r ecor d preponde rate s ag ainst the finding that-7-

c ou ns e l d id no t f

a il t o e sta bli sh a pr op e r w or

kin g re la tio ns hip wi th the pe tit ion e r. Th is i ssu e is without merit.

II.

The pe titioner contends that trial c ounsel was inef fec tive in f

ailing to discuss with him the i n v es t i gat i o n o f t h e c a s e a n d i n t er v i ew s wi t h p o t en t i al wi t n es s es

. At t h e p o s t -c o n v i ct i o n h ea ri n g, four pa g es of hand-written notes from counsel’s interviews with potential witnesses were introduced into ev i dence . These note s indicated that c ounsel had discussed pote ntial witnesses with the petitioner and ha d investigated whether those witnesses could be nefit the de fense . Counsel’s notes ref lected that the majority

of those witnesses c ou l d b e of no use to the de fense . The pe titioner

a c kn ow le dg e d that c ou ns e l int e rv ie we d the se wi tne sse s bu t c omp la ine d that c ou ns e l did no t di sc us s the interviews with him, althoug h he admitted that counsel told him that some o f t h e w i t n es s es

wou ld no t te sti fy

a t tria l. T he pe tit ion e r h a s f a ile d to sh ow ho w the a lle g e d f a ilu re of c ou ns e l to have more i n-depth discussions with him reg arding witness interviews and investigation prejudiced him

. O n ap p e a l, th e p e ti ti o n e r ar g u e s th a t h e “ c o u ld n o t ma k e in te ll ig e n t c h o ic e s r e g ar ding the de fe ns e a ndde cis ion to g o to tr ia l a s o pp os e d to try ing to w or k o ut a ple a ba rg a in. ” At

the po stconviction hea

ring , howeve r, the pe titioner did not testify that he would have insisted on arrang ing a plea barg ain if he ha d been be tter informe d about the status of potential witnesse s. I n fac t, the petitione r cl ai m ed t h at no pl ea of fer was re lay ed to him. We conclude that the pe titioner has not established that he w as pre judiced by

not rec eiv i n g more information from counse l on the inv e sti g a tio n o f the c a se a ndint e rv ie ws wi th w itn e sse s. Th e pe tit ion e r is not en tit le d to re lie f o n th is issue.

III

.

Th e pe tit ion e r c on te nd s th a t tria l c ou ns e l f a ile d to dis c us s tr ia l str a te g y or dis c ov e ry

wi th h im

a de qu a te ly

. Cou ns e l te sti fi e d, a ndthe pe tit ion e r a c kn ow le dg e d, that hi s tria l st rate g y wa s to ne g a te the petitioner’s a

bilityto form the mental state require d for f irst deg reemurder and that he discussed thi s st rate g y wi th the pe tit ion e r. Th e pe tit ion e r is app are ntl y un satis fi e d that c ou ns e l di d n ot d isc us s other possible strate g ies with him. Evidence at th e p o s t -c o n viction hearing show ed that the petitioner had no alibi de fense and that the state had proof, including the petitioner’s own c onfession, identify ing the petitioner as the person who killed his wife. Counsel te stified that focusing on the pe tit ion e r’ s o bs e ssi ve -c omp uls ive dis or de r andme nta l st a te a ft e r h is w if e le ft him in o rd e r t o n e g a te preme ditation wa s the best defe nse available to the petitioner. Counsel deve loped this strateg y afte r

e mpl oying the se rv ic e s o f t wo ment a l he a lth pr of e ssi on a ls andint e rv ie wi ng se ve ra l w itn e sse s. Moreove r, c o u n s e l t e s ti f ie d th a t h e a n d th e p e ti ti o n e r d is c u s s e d th e p e ti ti o n e r ’ s v ie w o f what happene d the nig ht the petitioner’s wife was killed. Counsel’s def ense strateg y

was informed and based on a dequate prepa

ration. Counsel was not def icient in focusing primarily on this strateg y

.

P eti ti on er al so con ten ds th at c ou ns el was in effect iv e in fai li ng to di scu ss wi th hi m t he T BI

re po rt us e d at tria l. T he pe tit ion e r p ro vid e s n o a rg ume nt as to ho w c ou ns e l w a s d e fi c ie nt i n th is reg ard and how he wa s prejudice d by this. There is no merit to thi s contention.-8- IV.

The pe titioner contends that counsel was ineffe ctive for failing to investigate the petitioner’ s presc ription drug use as a possi ble defense to murder. The pe titioner testified that at the time he shot his wife, he w as t aking both Z oloft and codeine. He said counsel failed t o consider the interac tion of these me dications an d

h o w the y aff ecte d his obsessive-compulsive disorder . Howeve r, aside f rom say ing he felt that counse l should have “c onsidered” this, he offe red no e vidence t h at a further investigation into t he ef

fec ts of his medications would have provided him with an ef fec tive defe nse. I n s h o r t , t h e p e t i t i o n e r f

a i l e d t o s h o w t h a t h e w a s p r e j u d i c e d b y t h i s a l l e g e d f

a i l u r e

. T h i s i s su e is without merit.

V.

The pe titioner faults trial counse l for not making an issue of the fi ft ee n -m i n u t e gap in the taped inter view between him and TB I Ag ent J olley . The pe titioner testified that during this edited portion, he discussed with Ag ent J olley the medications h e was taking . The pe titioner acknow ledg ed, howe ver, that counsel attempted, unsuc cessf ully , to have his stateme n ts to Age nt J olley suppressed. Moreove r, t he petitioner did not show how r aising the issue of the e dited portion of the tape hu rt

his de fe ns e ; he on ly

state s in his arg ume nt that me nti on ing the g ap in the tape c ou ld have made the jury “very suspicious a s to the acc urac y ” of the taped state ments. The petitioner ha s not established that he wa s prejudice d, and this issue is without m erit.

VI

.

F ina lly , th e pe tit ion e r a

rg ue s th a t tria l c ou ns e l w a s ine ff e c tiv e in fa ili ng to c a ll D r. Da nie ls to testify at trial. Counsel t estified that he e mploy ed both Dr. D aniels, a psy chiatrist, and Dr

. McCoy , a psy cholog ist, to evaluate the pe titioner and make conclusions as to the petitioner’ s mental
state . Co un se l ho pe d th a t th e do c tor s c ou ld s ub stanti a te the de fe ns e that the pe tit ion e r w a s u na ble to f orm th e pr e me dit a tio n r e qu ir e d f or fi rs t de g re e mur de r. Cou ns e l sa id that he dis c us se d th e re su lts of the e valuat ion with Dr. Danie ls and that Dr. Daniels was unable to say whether the petitioner

c o u l d h a v e f

o r m e d p r e m e d i t a t i o n a tt h e t i m e o f t h e k i l l i n g

. T h u s , c o u n s e l c h o s e t o c a l l D r

. M c C o y, who did testify that the petit ioner was unable to form pre meditation. The petitioner c ontends that
not c alling Dr. Daniels prejudice d him in that the state’s expert witness was a psy chiatrist, wher eas his ex pert witness wa s a psy cholog ist.

We c onclude that counsel was not de ficient in not c alling D r. Da niels to testify . Counsel had sound tactica l rea sons for calling Dr. McCoy and not Dr. D aniels. F urthermor e, the pe titioner has not shown how Dr. Daniels could have supported his defe nse. I f a pe titioner faults trial counsel for failing to call a known w itness, he must prove pre judice b y s h o wi n g t hat the witness had c ritical evidenc e that wa s not used. Bla ck v. State, 794 S.W.2d 752, 757 (Tenn

. C ri m. App. 1990). The letter written by

Dr. Da niels and introduce d into evidence by the petit ioner stated only that had the petitioner “r ece ived appr opriate tre atment for his menta l disorder, in all l ikelihood the homicide of Be linda Dicker son probably could have been avoided.” I t does not addre ss the issue of whe ther the-9-

pe tit ioner could h a ve fo rm e d p re me dit a tio n, wh ic h w a s th e iss ue abo ut w hic h c ou ns e l w a s mo st

conce rned. Counsel wa s not ineffe ctive in fa iling to ca ll Dr. Danie ls at trial.

CO NC LU SION

Ba sed on the forego i n g and the recor d as a w hole, we c onclude that no e rror exis ts in the judgme nt of the trial court. We a ffirm the trial court’s dismiss al of the petition for post-convic tion relief

.

___________________________________ J OSEPH M. TI PTON, PRES I DING JUDGE