IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 17, 2005

DONALD RAY EADY, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Bradley County

No. M-03-220 Carroll L. Ross, Judge

No. E2004-02396-CCA-R3-PC - July 29, 2005

The petitioner was convicted of second degree murder in July of 1998. He appealed his conviction

to this Court, and we affirmed his conviction. State v. Donald R. Eady, Jr., E2000-01152-CCA-R3-

CD, 2001 WL 1543472 (Tenn. Crim. App., at Knoxville, Dec. 4, 2001), perm. app. denied, (Tenn.

May 6, 2002). The petitioner then filed a petition for post-conviction relief. The post-conviction

court denied his petition. He appeals to this Court solely on the issue of ineffective assistance of

counsel. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.

WOODALL, JJ., joined.

Richard Elliston, Cleveland, Tennessee, for the appellant, Donald Ray Eady, Jr..

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; Jerry

N. Estes, District Attorney General; Shari Tayloe-Young, Assistant District Attorneys General, for

the appellee, State of Tennessee.

OPINION

Factual Background

The post-conviction court’s recitation of the underlying facts is as follows:

During the late evening hours of October 25, 1997, Tracey Green and Curtis Cronk

were returning from a bar in Polk County to their homes in Bradley County. Though

Cronk was a married man, he and Green were seeing each other and had gone to the

bar with another mutual friend.
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They stopped on the side of a road in Bradley County to discuss the future of

their relationship. A car driven by one Michael Shelton and in which the [petitioner]

was a passenger passed them, stopped, and then backed up, allegedly to see if they

needed any assistance.

While Shelton was backing up, he backed into the vehicle containing Green

and Cronk. An argument ensued, during which heated words were exchanged by

both sides. [Petitioner] pulled a handgun from his back pocket and shot Cronk.

Cronk died shortly thereafter as a result of the wounds, and the [petitioner] was

charged with homicide.

The petitioner was indicted for one (1) count of second degree murder in November of 1997.

He was tried in July of 1998 by a jury and was convicted of the indicted offense. The trial court

sentenced the petitioner to twenty-five (25) years as a Range I standard offender. The petitioner

appealed his conviction to this Court on a number of grounds. We affirmed his conviction in an

opinion filed December 4, 2001, and the Tennessee Supreme Court denied the petitioner’s

application for permission to appeal on May 6, 2002. State v. Donald R. Eady, Jr., E2000-01152-

CCA-R3-CD, 2001 WL1543472 (Tenn. Crim. App., at Knoxville, Dec. 4, 2001), perm. app. denied,

(Tenn. May 6, 2002). 

The petitioner then filed a petition for post-conviction relief on February24, 2003. The postconviction court held a hearing on this petition on May 21, 2004. The post-conviction court denied

the petition on July 16, 2004. The petitioner filed a notice of appeal on August 13, 2004.

ANALYSIS

The petitioner’s sole issue on appeal is whether the post-conviction court erred in denying

his petition for post-conviction relief based on the ineffective assistance of counsel. The petitioner

argues that his trial counsel was ineffective because he did not subpoena 911 emergency tapes of the

incident leading to his arrest and conviction for second degree murder.

The post-conviction court’s findings of fact are conclusive on appeal unless the evidence

preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review

of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court

is bound by the court’s findings unless the evidence in the record preponderates against those

findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138,

147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence, nor

substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54

S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are

reviewed under a purely de novo standard with no presumption of correctness. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001).
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When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel

were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942

S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the

petitioner must show that the services rendered or the advice given was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding would have

been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.

2d 674 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of

ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice

provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580. 

As noted above, this Court will afford the post-conviction court’s factual findings a

presumption of correctness, rendering them conclusive on appeal unless the record preponderates

against the court’s findings. See id. at 578. However, our supreme court has “determined that issues

of deficient performance by counsel and possible prejudice to the defense are mixed questions of law

and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of

correctness. Burns, 6 S.W.3d at 461.

Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to

the benefit of hindsight. See Adkins, 911 S.W.2d at 347. This Court may not second-guess a

reasonably-based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,

tactical decision made during the course of the proceedings. See id. However, such deference to the

tactical decisions of counsel applies only if counsel makes those decisions after adequate preparation

for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

The petitioner argues on appeal that his trial counsel’s failure to subpoena the 911 emergency

tape was indeed ineffective assistance of counsel. He argues that the 911 tape would have

demonstrated that Tracey Green was squatting beside the victim at the time of the arrival of the gold

minivan, whose driver placed the 911 call, instead of running from a nearby building. The petitioner

believes that he should have been afforded the opportunity to demonstrate a discrepancy of such

magnitude.

In the post-conviction court’s order denying the petition for post-conviction relief, the court

made the following findings:

This petition in this cause was filed by the petitioner, it seems, more from

boredom than from any genuine belief on his part that a cause for Post Conviction

Relief really existed. The paucity of proof presented by Petitioner at the hearing in

this cause failed to offer even minimal evidence to support many of the claims in his

petition.
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Petitioner complains about the fact that the 911 Tape was not subpoenaed by

his attorney. While hisreasons for this complaint were not exactly clear to the court,

Petitioner somehow thinks that the tape would have rebutted some of the statements

made by Green and would have shown her to be a liar.

None of the statements complained of, however, had anything to do with the

actual commission of the crime. Officer David O’Boyle, the first officer on the scene

after the commission of the crime, testified that Tracey Green was hysterical upon his

arrival. [See p. 76 of trial transcript.] Any discrepancies that may have existed

between the testimony of Tracey Green and the contents of the 911 tape could easily

have been explained by the excited state of the witness.

It really doesn’t matter if the defendant and his companion were still at the

scene when the 911 call was made; what does matter is that they fled the scene

immediately after the shooting, and proof of that fact was clearly in evidence.

The other matters complained of by Petitioner regarding the testimony of

Tracey Green were matters of proof to be resolved by the jury. The Petitioner

testified at his trial and offered different testimony from that of Tracey Green on

some of the issues. The jury chose to believe her version of the facts, and there was

ample evidence to support their decision.

While the Petitioner makes other vague complaints about the testimony of

other witnesses, he admits that he can’t think of any specific questions that counsel

should have asked these witnesses at trial.

Petitioner has not met his burden and has failed to show that trial counsel was

in any way ineffective either in the way he tried the case and any and all allegations

that trial counsel was ineffective are without merit and provide no grounds on which

Post Conviction Relief can be granted.

Asstated above, to prove that trial counsel offered ineffective assistance, the petitioner must

prove both that his trial counsel’s performance was deficient and that the deficient performance was

prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Having reviewed

the evidence presented at the post-conviction hearing, we conclude that the petitioner has not proven

that trial counsel’s performance was ineffective or prejudicial.

Trial counsel testified at the hearing. He stated that he did not remember the petitioner ever

asking him to subpoena the 911 tapes, contrary to the petitioner’s contention. We found no proof by

the petitioner at the hearing to prove that his trial counsel was ineffective. Even if the petitioner had

proven that his trial counsel was ineffective, he is absolutely unable to prove prejudice due to the 911

tape not being introduced into evidence. The post-conviction court stated that it was the petitioner’s
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contention that Ms. Green’s position next to the defendant instead of running from a building would

demonstrate that she was being untruthful. We agree with the post-conviction court’s finding that

Ms. Green’s position at the time of the 911 call is irrelevant to the defendant’s guilt or innocence.

The call was placed after the shooting and by someone who was not a witness to the shooting. The

discrepancy in Ms. Green’s position at the time of the 911 call is of de minimis importance and

would not have affected the verdict. The petitioner has not shown that there is a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding would have

been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). 

We also note that in the petitioner’s direct appeal to this Court, we included the following

statement in our recitation of Ms. Green’s testimony at trial:

Green stated that after the men left, she attempted to get the victim into her car, but

was unable to do so because she could not pick him up. She then ran to a nearby

building, hoping to find a phone, but she could not find anyone at the building.

Green stated that she returned to the victim, and when she reached him, a car drove

up. She told the driver to call 911 and then attempted to give the victim CPR. 

Eady, 2001 WL 1543472 at *3. This testimony directly correlates with what the petitioner claims

the 911 tape would have shown had it been introduced into evidence. 

The petitioner has not shown that his trial counsel’s performance was both deficient and

prejudicial. We find no reason to grant the petitioner’s petition for post-conviction relief.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

___________________________________ 

JERRY L. SMITH, JUDGE