### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs S eptember 12, 2000 MICHAEL ADDISON v. STATE OF TE NNESSEE Direct Appeal from the Criminal Court for Shelby County

No. P-21047 Bernie Weinman, Judge

No. W1999-00432-CCA-R3-PC - Filed October 24, 2000

Because the evidence does not preponderate against the trial court's determination that the petitioner received t he effective a

ssistance of coun

sel at trial and on d

irect appeal, th

e order deny

ing postconviction relief is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.
G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID G. H AYES and T HOMAS T. W OODALL , JJ., joined.
Howard B. Manis (on ap peal)

and Jo hn Fulks (at trial

), Memphis, Tenne

ssee, for the app

ellant, Michael Addison.
Paul G. Summers, Attorney General & Reporter, Kim

R. Helper, Assistant Attorney General, John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee

. OPINION
The petitioner, Micha

el Addison, appea

ls the trial court's denial of his petition for postconviction relief. The single issue presented for review is whether the petitioner w as denied the effectiveassistance of counsel . Bec ause the petitioner received adequate representation, the judgment is affirmed.
The petitioner was convicted o f th e Ap ril 2, 1 993 , sh oot ing d eat h of Don ald Ray Ir by. During the course of the investigation, the petitioner admitted shoo ting the victim with a .357 Magnum. Annie Lee Fason was a witness to the crime. The trial court imposed a sentence of

life in prison. On direct appeal, this court affirmed. State v. Addison , 973 S.W.2d 260 (Ten n. Crim. App. 1997). Application for permission to appeal was denied June 29, 1998.
In an amended post-conviction petition, the petitioner alleged, among other things, that his trial counsel failed to

adequately

communicate with h

im; failed to adequ

ately investigate

the case; failedto properly

cross-examine wit

nesses; failed to

inquire as to his men

tal capacity ; and failed to-2-

request expert witnesses on his behalf. In addition, the petitioner alleged that his appellate counsel was ineffective by having failed to prop erl y r esearch issues which either were raised on appeal or could have been raised on

appeal and that his appellate counsel otherwise had failed to serve as an effective advocate.
At t he evidentiary

hearing, the pe

titioner testified

that he was initiall

y represe nted by both Attorney Ronald Johnson and Attorney Carolyn Watkins. The petitioner complai ned that he met withAttorney Johnson, whom he understood to be his lead counsel, only onc e and with Attorney Watkins, whom he identifiedas Attorney Johnson's assistant, only on three or four oc

casions. While conceding that Attorney Watkins provided witness statements and transcripts to him in advance of the trial, the petition

er also complaine

d that his trial counsel failed to adequately explain the state's evidence and failed to subp oena psych ia tric and medical r

ecords of Annie L

ee Fason for pos sible impeachment

purposes. The petitioner testified that his trial counsel were unable to locate any of his possible witnesses, whom he could identify only by their street

names. The petitioner also stated t hat his tr ial counsel never asked him to undergo a psychiatric or psy chological evaluation and implied that his trial counsel didnot adequately advise him on whether to testify a t trial. He testified that his appellate counsel was ineffective for having failed to challenge certain jury instructions on felony murder and premeditated murder.
Car olyn Watkins, who testified that she was lead trial counsel for the petitioner, explained that whe n th e dea th p enal ty wa s no t so ught by th e state, her co-counsel, Ronald Johnson, discontinued his participation in the defense. She recalled that she had both a criminal investigator and a social investigator who assisted in the preparation of the case and that she was unable to find any basis for a defense based upon a diminished mental capacity. Ms. Watkins stated that

she had met withthe petitioner on several occasions and that her investigato

rs had been unsuc

cessful in their attempts to locate the indiv iduals that the peti

tioner had identif

ied by use of their street na

mes. Ms. Watkins acknowledged that there had been no attempt to determine whether or not Ms. Fason had ever been treated for alcoholism. She did point out, however, that it was very clearly established by the d efense at trial t

hat Ms. Fason had b

een drinking on t

he day of th

e shooting. Ms.Watkin s described the defense strategy as one of self-def ense. Just prior to trial, the pet itioner rejected an offer to enter a plea of guilt in exchange for a Range II, 35-y

ear sentence. Ms. Watkins contended that she was adequately prepared to present the defe nse. At the conclusion of

the hearing, the trial court determined that tr

ial counsel had tho

roughly investigated

the case, int er viewed all witnes ses that could be lo cated, and had no

basis to call additional experts. The trial court concluded that the petitioner had received effective representation at trial and on app

eal.
When a petitioner see

ks post-conviction

relief on the bas

i s of ineffective assistance of counsel, he must first estab lish that the services rendered or the advic e given were be low "the range of competence demanded of attorney s in cr iminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn.1975). Second, he must show that the deficien cies "actually had an adverse effec t on the defense." Strickla

nd v. Wa shington , 466 U.S. 668, 693 (1 984). Should the pet itioner fail to-3-

establi sh either fac tor, he is not entitled to relief. Our supreme court described the standard of review as follow

s: Because a petitioner must establish both prongs of the test, a failure to prove either deficiency or prejudice provides a sufficient bas is to deny relief on the ineffective assistance claim. I ndeed, a court need notaddress the compo

nents i n an y p articular orde r or even addre

ss bothif the defen dant makes a n insuffic ient showi ng o f one component. Goad v. State , 938 S.W.2d 363, 370 (Tenn.1996). On claims of ineffective assistance of counsel, the petitioner "is not entitled to the benefit of hindsight, may not second-guess a re asonably based trial strategy . . ., and cannot criticize a sound,

but unsuccessful,

tactical decision made during the course of the proceedings." Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App.1994). Such deference to the tactical de

cisions of counsel

, however, applie

s only if th

e choices are made after adequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App.1992).
Under our statutory law, the petitioner bears the burden of proving his factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-21 0(f). On appeal, the findings of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (T

enn. Crim. App.1988). The burden is on the petitioner to show that the evidence preponder ated against those fi

ndings. Clenny v. Stat

e , 576 S.W.2d 12, 14 (Tenn. Crim. App.1978).
In our view, the evidence here does not preponderate against the findings of the trial court. As to witnesses sought by the petitioner to support his claim of self-defense, only their street names were available. The petitioner was unable to supp ly addresses. The proof was tha t trial counsel, through her investigato

rs, made her best efforts to locate the witnesses. Nothing more can be asked. Moreover, the petitioner was unable to produce these witnesses at the evidentiary hearing. Under such circumstances, it is impossible to conclude that the pe t itioner would have benefitted by the testimonyof any of these witnesses. The same is true regarding hi s claim that trial c

ounsel should have produced at

trial medical records of the witness Annie Lee Fason which might have pe rtained to alcohol treatment

or psychiat

ric treatment. Th

e petitioner fail

ed to produce any

such documents at the evidentiary hearing. It is, therefore, impossible to determine how such records, if they exist, might have assist

ed the defense o

r otherwise have

affected the r

esults of the trial

. Trial counsel att empted to f ind medica l records to support th e petition er's claim that he had had a head injury

in the past. Sh

e wa s unable to locate any such records and concluded, from her own perspective, that the petitioner had no basis for a claim of mental disease or defect. Further, the petitioner failed to produce

any eviden

ce of mental dise

aseor defec t at th e evid entia ry heari ng. In consequence, there was no proof that he was prejudiced by any deficiency on the part of his trial counsel. The petitioneracknowledged at the evidentiar

y hearing that it had been his

decision to-4-

testify at trial. Otherwise, the trial court accredited the testimony of trial counsel at the evidentiary hearing.
Fin all y, the petitioner has not argued in this appeal that he wasdenied the effective assistance of appella te counsel. It is not apparent from the record that petitioner was denied the effe ctive assistance of co

unsel either at tr

ial or on appeal. Accordingly, the judgment is affirmed.

____________________________________ GARY R. WADE, PRESIDING JUDGE