# FILED
May 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON MARCH 1999 SE SSION
FREDDIE L. POLLARD, ) ) Appellant, ) No. 02C01-9802-CR-00042

) ) Shelby County v. ) ) Honorable John P. Colton, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Robert B. Gaia John Knox Walkup 100 N. Main Building Attorney General of Tennessee Suite 3201 and Memphis, TN 38103 Douglas D. Himes Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 William L. Gibbons District Attorney General and James Challen Assistant District A

ttorney General 201 Poplar Avenue - 3rd Fl oor Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Freddie L. Pol lard, appeals as of right fro m the Shelby County Crimi nal Court’s denial of his petition for post-convicti on relief. The petitioner seeks relief from hi s 1993 conviction for first degree murder, for whic h he received a life sentence. This court affirmed the convicti on in State v. Freddie L. Pollard , No. 02C01-9306-CR-00129, Shelby County (Tenn. Cr im. App. July 6, 1994). The petitioner now contends th at he received the ineffectiv e assistance of counsel because his trial attorney (1) failed to put on a defense, (2) failed to call the petitioner as a witness at trial , and (3) failed to present w itnesses at trial w

ho were at the scene of the inci dent. We affir

m the tri al cour

t’s deni al of rel ief.
At the evidentiary hear ing, the petitioner testi

fied that his attorney did not advise him of anything du ring the trial and that his attorney did not inv estigate his case. He said his attorney visited him once or twice for fifteen minutes before the trial. He said he was unaware of any motions filed by his attor ney on his behalf. He said the state never offered a plea barg ain. He admitted that he shot the victim, but he said he believed the defense of provocation was available because the victim threaten ed to kill him. He testified that before this offense, he had no criminal record. He stated that he thought his attorney shou ld have investigat ed or interviewed t

en to twenty witne

sses who were present at the shooting.

On cross-examination, the petitioner stated that he did not expect to be acquitted, but he thought he would receive a lesser sentence. He said he wanted his attorney to cross-ex

amine the state’s witness es regarding their backgrounds, but he admitted that he did not know how this could have helped his case. He said his attorney should have investigated the victim’s criminal history, but he did not know if it3

would have affected the outcome of the case. He said he thought his attorney should have offered a plea bargain, but h e admitted that the state did not offer one.

The petitioner’s attorney testified that he received open-file discovery fro m the district attorney’s office. He said he copied and reviewed all of the witness statements. He said the petiti oner never denied shooting the victim. He stated that the state’s only offer was l ife in prison, which w as the maximum punishment for whi ch the petitioner was elig ible. He said the petitio ner never provided th e names of any witnesses that could hav e exonerated him, nor did the petitioner indicate that he wanted him to investigate any specific areas of the c ase. He stated that his theor y of defense was that it was a case of second degree murder.

The trial court found that the petit ioner received the effectiv e assistance of counsel and denied the post-conviction petition. The trial court stat ed as follows:

There is no proof that counsel did not investigate the case and pursue all leads giv en to him by the petitioner.

. . . Counsel pursued all reasonab le defenses that the facts justified. . . .
The petitioner contends that he rec eived the ineffective assi stance of counsel because his trial attorney did not put on a defense, call the petitioner as a witness, or call w

itnesses who were a

t the scene of the offense. The state contends that the trial cour t correctl y determin ed that t he petit ioner rec eived the effect ive assistance of counsel. We agree.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the resul

t of the trial was unrel iable or the proceedings fundamentally unfair

. Strickland v. Washington , 466 U.S. 668, 687, 104 S.4

Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard has been applied, as w ell, to the right to counsel under Article I, Section 9 of the Tennessee Constituti on. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied , 493 U.S. 874 (1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert. denied , 444 U.S. 944 (1979). Also, in reviewing c ounsel's conduct, a "fair asses sment of attorney performance requir es that every effort be made to el iminate the distorting effects of hindsight, to reconstru ct the circumstances of counsel 's challenged conduct, and to evaluate the conduct from cou nsel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct wi ll not be measured by "20-20 h indsight"). Thus, the fact that a particular strategy

or tactic failed or eve n hurt the defense does not, alone, suppor t a claim of ineffective assistance. Deference is ma de to trial strategy or tactical choices if they are informed ones based upon adeq uate preparation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.

Also, we note that the approach to the issue of the inef fective assistance of counsel does not have to start with an analysis of an attorney's conduct. If pre judice is not shown, we need no t seek to determine the vali dity of the allegations ab out deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.5 The burden is on the petitioner in the trial court to pr

ove the factual allegations that woul d entitle him to relief by clear and convincing evidence. Tenn. Code Ann. § 40-3 0-210(f) (199 5). On appeal, we a re bound by the tri al court’s find ings of fact unless we conclude that the evidence in the record prepon derates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In thi s respect, the petitioner, as the appellant, has the burden of illustrating how the evidence preponderates against the ju dgment entered. Id.

First, the petitioner claims that his attorney was ineffective for failing to put on a defense. The petitioner’s attorney testifie d that in light of the petitioner’s admission to the shooting, he believed the best strateg y was to present a theo ry of second degree murder. This r epresents a tactical decis ion by the petitioner’s attorney that will not be second-guessed by this court

. Hellard , 629 S.W.2d at 9. Furthermore, “when a defendant has given counsel reason to believe that pursuing certain investigations w

ould be fruitless . . ., couns el’s failure to pursue those investigations may not later be challenged as unreasonable.” Strickland , 466 U.S. at 691, 104 S. Ct. at 2066. The petitioner has pres ented no evidence to show that his attorney was deficient or that he was pr ejudiced.
Next, the petitioner cl aims that his attorney w as ineffective for failing to call him as a witness . The petitioner has offered no evi dence to show that he requested to testify at trial or that his attorney interfered with that right. This issue is without merit.
Finally, the petitioner claims that his attorney was ineffective for failing to call witnesses w

ho were at the scene of the shooti ng. Although the petitione r testified that there were ten to tw enty people who witnessed the shooting, he has not presented any testimony by any

witness to the shooting

. See Black v. State , 794 S.W.2d 752, 7576

(Tenn. Crim. App. 1990) (holdi ng that petitioner should hav e the previously unca lled witness testify at the evidentiary hearing). In fact, the petitioner agreed that this court’s recitation of the facts on direct appeal was basically

correct. Furthermore, his attorney testifi ed that t he petit ioner neve r provided him with a li st of witn esses tha t could ha ve exonerated the petitioner. We conclude that the petitioner has failed to show that the record pr eponde rates aga inst the t rial court ’s judgme nt that h e received the eff ective assistance of counsel.

In consideration of the foregoing and the record as a whole , we affirm the trial c ourt’s denial of the pet ition fo r post- convic tion re lief.

__________________________ Joseph M. Tipto n, Judge

CONCUR:

__________________________ Gary R. Wad e, Presiding Judge

__________________________ Thomas T. Woodall, Judge