FILED

May 11, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1998

GREG L. BAINE, ) C.C.A. NO. 03C01-9806-CR-00201

)

Appellant, )

)

) POLK COUNTY

VS. )

) HON. CARROLL L. ROSS

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

LEONARD M. CAPUTO JOHN KNOX WALKUP

Phillips & Caputo Attorney General and Reporter

312 Vine Street

Chattanooga, TN 37403 R. STEPHEN JOBE

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

JERRY N. ESTES

District Attorney General

SHARI TAYLOE

10th Judicial District

P. O. Box 1351

Cleveland, TN 37364-1351

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

The petitioner, Greg L. Baine, appeals the Polk County Crim inal Court’s

order denying his petition for post-conviction relief after an evidentiary hearing.

Petitioner was convicted in 1991 of one (1) count of premeditated first degree

murder and sentenced to life imprisonment. He filed a post-conviction petition,

alleging, inter alia, ineffective assistance of counsel. On appeal, petitioner claims

that trial counsel was ineffective for failing to “properly utilize exculpatory

discovery material” and for failing to speak with state officials before they

conducted an uncounseled interview with the petitioner. After a thorough review

of the record before this Court, we affirm the judgment of the trial court.

I.

A. Trial

Petitioner was convicted after a jury trial of premeditated first degree

murder and was sentenced to life imprisonment. His conviction was affirmed by

this Court. State v. Greg Baine, C.C.A. No. 03C01-9202-CR-43, 1992 WL

151403, Polk County (Tenn. Crim. App. filed July 2, 1992, at Knoxville), perm. to

app. denied (Tenn. November 30, 1992). We will recite the facts as set out by

this Court on direct appeal:

On December 24, 1990, at 8:45 p.m., the body of Ronnie

Laudermilk was found at the Crestview Cemetery in Polk County.

It is undisputed that the appellant killed Mr. Laudermilk. His defense

at trial was that of self-defense.

Although the appellant referred to the decedent as a longtime

friend, the appellant was having an affair with the decedent’s wife.

The decedent had apparently learned about the affair and had

confronted the appellant during the day he was killed. The appellant

testified at trial that during this initial confrontation, the decedent put
1

 Howe ver, the pe titioner testified a t trial that he we nt “[t]hrough the 12th g rade.”

2

 Mich elle Lo udermilk is th e dec edent’s wife. Although the decedent’s name was spelled “Laudermilk”

in this Court’s o pinion on d irect appe al, the dec edent’s w ife signed her statem ent as “L ouderm ilk.” Therefore,

we will use the “Loudermilk” spelling in this opinion.

-3-

a gun to the appellant’s chest and threatened his life. No physical

violence resulted from this meeting. Later that day the decedent

and appellant met each other in town. The decedent allegedly told

the appellant that he wished to speak with him, but he desired to do

so out of town. They began driving, the appellant leading the

decedent, with no apparent destination. After driving approximately

fifteen miles, they approached Crestview Cemetery. The decedent

blew his horn and pointed to the cemetery, indicating his desire to

stop at the cemetery. The appellant testified that after he stopped,

the decedent pulled in behind him attempting to block his car from

exiting. The decedent exited the car and threw a beer at the

appellant’s windshield. After leaving his truck, the decedent

allegedly kicked the appellant’s car door shut and would not let him

out of the car. According to the appellant’s testimony the decedent

then stated, “I’m gonna get my shotgun out of the truck,” and “I’ve

got you right where I want you now.” The appellant had a shotgun

in his car and made certain that the decedent saw it. According to

the appellant, the decedent then turned and walked to his truck to

get his shotgun. The appellant testified that he shot the decedent

when the decedent turned away and started toward the truck. 

The appellant stated that he could not see the decedent after

the shot was fired because it was dark. He exited his car on the

passenger’s side, walked around to the front of the car, and saw Mr.

Laudermilk on his hands and knees. The appellant stated at trial

that he saw Laudermilk reaching into his pocket with his right hand.

The appellant supposedly was aware that the decedent habitually

carried a pistol. He twice ordered Laudermilk to stop reaching into

his pocket, but he paid no attention. Therefore, appellant shot the

decedent a second time with his 12-gauge shotgun. Laudermilk

died in the cemetery before being found by a passerby.

State v. Greg Baine, 1992 WL 151403 at *1.

B. Post-Conviction Hearing

The petitioner was twenty-nine (29) years old at the time of the postconviction hearing. He stated that he was twenty-one (21) years old when the

shooting occurred and had an eleventh grade education.1 Although both were

married to other people, he and Michelle Loudermilk2 became romantically 
-4-

involved in October of 1990. They continued to see each other after Mr.

Loudermilk was killed. 

The petitioner testified that, on the day of the shooting, Mr. Loudermilk

confronted him about his affair with Mrs. Loudermilk. Afterwards, the petitioner

went to a friend’s home, and they phoned Mrs. Loudermilk. Mrs. Loudermilk

asked the petitioner to meet her at the cemetery at 6:00 p.m. that evening. Mrs.

Loudermilk arrived at the cemetery shortly after the petitioner arrived. They

spoke in his car for approximately five (5) minutes until they observed the victim

driving into the cemetery. The decedent exited his vehicle and threw a can of

beer at the petitioner’s windshield. Mrs. Loudermilk jumped out of the

petitioner’s vehicle and began running towards her car. The petitioner attempted

to get out of his car, but Mr. Loudermilk kicked the door shut. Mr. Louderm ilk

threatened the petitioner, and as he turned to walk to his vehicle, the petitioner

shot him. Because the petitioner could not see the victim, he walked around to

the front of his vehicle and found Mr. Loudermilk on his hands and knees.

Suddenly, Mrs. Loudermilk grabbed the shotgun from the petitioner’s hands and

shot the victim the second time. 

The petitioner testified that his attorney never asked him whether Mrs.

Loudermilk or any other witnesses were present at the scene of the shooting.

However, he acknowledged that he lied to his attorney and also lied in his

testimony at trial regarding Mrs. Loudermilk’s involvement in the shooting. He

stated that lied to protect Mrs. Loudermilk because she had informed him that

she was pregnant with his child. Mrs. Loudermilk threatened to abort the child

if the petitioner implicated her in her husband’s death. 

The petitioner also presented the signed statement of Michelle Loudermilk.

This statement was the second statement given by Mrs. Loudermilk to TBI
-5-

officers on December 25, the day following her husband’s death. In Mrs.

Loudermilk’s first statement to the law enforcement authorities, she claimed that

she knew nothing about her husband’s shooting. In her second statement, Mrs.

Loudermilk admitted that she was present in the cemetery during Petitioner’s

confrontation with the decedent. She stated that she went to the cemetery to “put

a tree” on her relatives’ graves. When she arrived, the petitioner was there. She

and the petitioner spoke for a while until they saw Mr. Loudermilk’s vehicle driving

into the cemetery. The victim exited his vehicle while holding a shotgun. She

stated that she then returned to her car and left the cemetery. As she was driving

away, she heard a gunshot. 

With the exception of Mrs. Loudermilk’s presence at the scene, the

petitioner disputed the veracity of Mrs. Loudermilk’s statement. 

The petitioner testified that after he was convicted of murder and while his

case was pending on appeal, Assistant District Attorney Joe Rehyansky, the Polk

County Sheriff and a deputy sheriff met with him in prison. He stated that the

state representatives explained to him that they believed he was lying to protect

Mrs. Loudermilk. He testified that they advised him that if he would testify

against Mrs. Loudermilk regarding her involvement in the shooting, he would be

a free man. The petitioner testified that he refused to talk to the authorities

because his attorney advised him not to speak to anyone. 

Petitioner was represented by Conrad Finnell at trial. At the time of the

hearing, Finnell had practiced law for 36 years, and a substantial portion of his

practice was criminal. Finnell testified that, after hearing the petitioner’s version

of the facts of the case, he believed that the shooting was in self-defense.

Petitioner never mentioned to Finnell that Mrs. Loudermilk was present at the

cemetery at the time of the shooting. However, Finnell acknowledged that he
3

 The me eting took place appr oxim ately four (4) months after the petitioner was convicted of first

degree mu rder.

-6-

was unaware of Mrs. Loudermilk’s second statement to TBI officers wherein she

admitted being present during the incident. Finnell explained that, due to his

heavy case load at the time, he was unable to personally review the discovery in

this case. Instead, he relied upon members of his staff to review the materials.

A member of his staff erroneously informed him that Mrs. Loudermilk was not

present during the incident, and as a result, Finnell did not pursue the matter

further. Apparently, the statement had been received from the state in discovery

and misplaced in a “miscellaneous” sub-file. 

Finnell testified that, while the petitioner’s case was pending on appeal, an

assistant district attorney and the Polk County Sheriff at the time conducted an

uncounseled interview with the petitioner in prison. He did not recall giving the

state authorities permission to speak with his client alone and learned about the

interview after it occurred. Moreover, he could not recall whether anyone from

the District Attorney’s office attempted to contact him prior to the interview. 

However, because the petitioner’s statement to the state agents was in

conformity with his testimony at trial, Finnell did not believe that the petitioner was

harmed by the meeting. 

Assistant District Attorney Joe Rehyansky testified at the post-conviction

hearing. He stated that he was assigned to work on the state’s case against

Michelle Loudermilk. In the course of his investigations, Rehyansky,

accompanied by the sheriff of Polk County and his chief deputy, visited the

petitioner while he was incarcerated in the penitentiary in November 1991.3

Rehyansky wished to speak with the petitioner because he believed that the

petitioner had not been forthright with regard to Mrs. Loudermilk’s involvement
4

 Mrs. Loudermilk was charged with conspiracy to commit first degree murder, premeditated first

degree murder and accessory after the fact. However, due to the state’s lack of evidence, she was allowed

to plead g uilty to acces sory after th e fact.

-7-

in the shooting and wanted the petitioner to testify against Mrs. Loudermilk at her

trial. He testified that although he attempted to contact Finnell prior to his

meeting with the petitioner, he was unable to reach him. Rehyansky stated that

the petitioner agreed to speak with them, but the petitioner gave the same

version of the story as he testified to at trial. Rehyansky went on to state:

But what I think I presented to him was this - and I made no

promises. I said, “Maybe we can do this, Greg, if, if you’re willing to

tell the truth at Michelle’s trial. Maybe we can get the judge to let the

parties set aside your premeditated murder conviction and have you

re-enter a plea to second degree.” . . . And I think I may have told

him to discuss that with Conrad. But he didn’t have anything helpful

to say at the time, and I never heard back from him or Conrad.

However, although he believed that Mrs. Loudermilk was equally culpable for her

husband’s murder, Rehyansky testified that, in his opinion, the petitioner was

guilty of premeditated m urder. Mrs. Loudermilk subsequently pled guilty to

accessory after the fact to first degree murder.4

At the conclusion of the proof, the trial court denied post-conviction relief.

In its written order denying post-conviction relief, the trial court noted that the

petitioner deliberately and repeatedly misled his attorney into believing that he

was the only person present during the shooting. The trial court further found

that the petitioner “not only gave false statements to the investigating officers in

this cause but . . . also knowing[ly] and willfully testified falsely during his

testimony at trial.” Additionally, the trial court observed that while the petitioner

claimed that his attorney was deficient for failing to read Mrs. Loudermilk’s

second statement, the petitioner’s testimony at the post-conviction hearing

indicated “that every material issue in Michelle Loudermilk’s statement was not

true.” The trial court concluded that trial counsel was not deficient for failing to
5

 Under the 1995 Post-Conviction Procedure Act, the petitioner has the burde n of p rovin g his claim s

by clear and convinc ing eviden ce. Tenn. Code Ann. § 40-30-210(f). However, since the present petition was

filed in 1994, the petitioner’s claims must be proven by a preponderance of the evidence.

-8-

read the “second false statement,” and the petitioner was not prejudiced as a

result of any alleged deficiency. 

From the trial court’s ruling, the petitioner brings this appeal.

II.

A. Standard of Review

In post-conviction proceedings, the petitioner bears the burden of proving

the allegations raised in the petition by a preponderance of the evidence.5

Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1996); Wade v. State, 914 S.W.2d

97, 101 (Tenn. Crim. App. 1995). Moreover, the trial court’s findings of fact are

conclusive on appeal unless the evidence preponderates against the judgment.

Tidwell v. State, 922 S.W.2d at 500; Campbell v. State, 904 S.W.2d 594, 595-96

(Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).

B. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution provides, in part,

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the

assistance of counsel for his defense.” Similarly, Article I, § 9 of the Tennessee

Constitution guarantees an accused “the right to be heard by himself and his

counsel . . .” Additionally, Tenn. Code Ann. § 40-14-102 provides, “[e]very

person accused of any crime or misdemeanor whatsoever is entitled to counsel

in all matters necessary for such person's defense, as well to facts as to law.”

The United States Supreme Court articulated a two-prong test for courts

to employ in evaluating claims of ineffective assistance of counsel in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court
-9-

began its analysis by noting that “[t]he benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. When

challenging the effective assistance of counsel in a post-conviction proceeding,

the petitioner bears the burden of establishing (1) the attorney’s representation

was deficient; and (2) the deficient performance resulted in prejudice so as to

deprive the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at

2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). This

Court is not required to consider the two prongs of Strickland in any particular

order. Harris v. State, 947 S.W .2d 156, 163 (Tenn. Crim. App. 1996).

“Moreover, if the Appellant fails to establish one prong, a reviewing court need

not consider the other.” Id.

The test in Tennessee in determining whether counsel provided effective

assistance at trial is whether counsel’s performance was “within the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975); see also Harris v. State, 947 S.W .2d at 163. In

order to demonstrate that counsel was deficient, the petitioner must show that

counsel’s representation fell below an objective standard of reasonableness

under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at

2064; Harris v. State, 947 S.W.2d at 163.

Under the prejudice prong of Strickland, the petitioner must establish that

“there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694, 104 S.Ct. at 2068.
-10-

In reviewing counsel’s conduct, a “fair assessment . . . requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at

2065. The mere failure of a particular tactic or strategy does not per se establish

unreasonable representation. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).

However, this Court will defer to counsel’s tactical and strategic choices only

where those choices are informed ones predicated upon adequate preparation.

Id.; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

C. Statement of Michelle Loudermilk

In his first allegation of ineffective assistance of counsel, the petitioner

claims that trial counsel was ineffective for failing to read and “properly utilize” the

second statement of Michelle Loudermilk. The petitioner contends that trial

counsel, by failing to read the statement, was unable to prepare an effective

defense as he did not have the benefit of the statement while questioning or

advising his client. He asserts that Mrs. Loudermilk was a devious woman who

manipulated the petitioner, and had trial counsel utilized this statement properly,

he could have argued to the jury that Mrs. Loudermilk lured both the petitioner

and Mr. Louderm ilk to the cemetery in hopes of a fatal confrontation. He further

argues that trial counsel could have called Mrs. Loudermilk to testify at trial as a

corroborating witness that the victim was the first aggressor in the shooting.

We agree that it is certainly the better practice for trial counsel to

personally review all materials received in discovery. However, in light of the fact

that the petitioner deliberately deceived his attorney in this regard, we hesitate

to find trial counsel’s performance defective. We do not believe that trial counsel

should be saddled with the burden of forcing his client to be truthful when that
6

 The petitioner testified that Mrs. Loudermilk first informed him of the pregnancy approximately two

(2) weeks prior to the shooting. However, the baby was born almost fourteen (14) m onths later.

-11-

client has willfully and repetitively lied to the attorney at every stage of the

proceedings. Clearly, the petitioner held his fate in his own hands and should not

be rewarded for choosing the path of deceit.

Regardless of whether trial counsel was deficient in failing to read Mrs.

Loudermilk’s second statement to the TBI officers, the petitioner has not

demonstrated how he was prejudiced by this alleged deficiency. First, there is

no evidence in the record to suggest that the petitioner would have implicated

Mrs. Loudermilk in the shooting had he been confronted with the statement by his

attorney. The petitioner testified that, as a result of her threat to abort their child

if implicated in her husband’s shooting he lied to his attorney and in his trial

testimony regarding Mrs. Loudermilk’s involvement. However, the child was born

on February 1, 1992, approximately seven (7) months after the petitioner’s trial.6

The petitioner gives no indication as to how Mrs. Loudermilk’s threat of abortion

would have been lifted had trial counsel read and confronted the petitioner with

the statement. Finnell testified that had he confronted the petitioner with the

statement and the petitioner denied Loudermilk’s presence at the scene, he

“would have gone ahead and proceeded with this case just like [he] did.” In

addition, there is no evidence in the record to suggest that Mrs. Loudermilk would

have testified favorably for the petitioner had trial counsel attempted to call her

as a witness.

Furthermore, as noted by the trial court, even though the petitioner refers

to Mrs. Loudermilk’s statement as “exculpatory” in nature, he disputes almost

every material aspect of the statement. Specifically, Mrs. Loudermilk stated that

her husband exited his vehicle with a shotgun in his hands, whereas the
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petitioner stated that Mr. Loudermilk was not armed while exiting the vehicle.

Secondly, Mrs. Loudermilk stated that the petitioner told her that he would kill her

husband if Mr. Loudermilk was abusive to her. The petitioner flatly denied ever

making such a statement. Additionally, the petitioner testified that Mrs.

Loudermilk was seated inside his car when the victim drove into the cemetery,

but Mrs. Loudermilk claimed that she was standing outside of the car. Finally,

and perhaps most importantly, Mrs. Loudermilk stated that she heard a shot as

she was leaving the cemetery. The petitioner testified that Mrs. Loudermilk was

not only present during the shooting, but actually fired the second shot.

The petitioner gave two statements to TBI officials on the day following the

shooting. In one statement, he denied any involvement in the shooting. In the

second, he claimed that he shot the victim twice in self-defense. Petitioner’s

testimony at the post-conviction hearing clearly conflicts both statements given

to the TBI agents. If the petitioner had testified at trial that Mrs. Loudermilk also

fired the shotgun, the jury would have been faced with three (3) conflicting

versions of the facts from the petitioner. There is little doubt that the petitioner’s

credibility would have been seriously questioned.

Moreover, the state presented evidence at trial that the petitioner

premeditated the shooting of Mr. Loudermilk. There was testimony at trial that

the victim did not have any weapons in his vehicle approximately thirty minutes

prior to the shooting. However, law enforcement authorities found a shotgun in

the floorboard of the victim’s truck and a .22 caliber revolver in the glove

compartment. The revolver was identified as previously belonging to the

petitioner, and a .22 automatic weapon found on the victim’s person was

identified as belonging to Mrs. Loudermilk. Although the petitioner testified that

Mr. Loudermilk threw a beer can at his windshield, no beer can was found in the
7

 Petitioner claims that Mrs. Louderm ilk informed him that she wa s in her thirties at the time of the

incident. However, it appears from the record that Mrs. Loudermilk is merely two (2) years older than the

petitioner. The petitioner admitted that he and Mrs. Loudermilk attended the same high school for a period

of time.

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cemetery by investigators. Significantly, TBI Agent Brooks Wilkins testified that,

after an exam ination of tire tracks found at the cemetery, the law enforcement

authorities concluded that Michelle Loudermilk’s vehicle was present at the

cemetery on the night of December 24. 

The state’s evidence presented at trial, coupled with the petitioner’s

proposed testimony that both he and Mrs. Loudermilk shot the victim, could

suggest that the petitioner and Mrs. Loudermilk conspired to kill the victim.

Although the petitioner insists that Mrs. Loudermilk’s statement is evidence that

she is an older,7 devious, manipulative woman who lured the petitioner and Mr.

Loudermilk to the cemetery in hopes of a fatal confrontation, it is equally plausible

that the jury would have believed the state’s theory that the petitioner and Mrs.

Loudermilk lured the victim to the cemetery and laid in wait for him to arrive.

Indeed, trial counsel recognized this possibility, as he testified, “the implications

of her being there are obvious under these circumstances.”

From a thorough review of the record, we conclude that the petitioner has

not shown a “reasonable probability that . . . the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at

2068. Therefore, we agree with the trial court that the petitioner has not

demonstrated that he was prejudiced by his attorney’s alleged deficiency.

This issue is without merit.

D. Uncounseled Interview

In his second allegation of ineffective assistance of counsel, the petitioner

claims that trial counsel was deficient in allowing the state authorities to interview
-14-

his client outside of his presence. Petitioner maintains that he was deprived of

effective representation when trial counsel failed to return the assistant district

attorney’s phone calls. He argues that had trial counsel been present at the

meeting, he could have convinced the petitioner to testify at Mrs. Loudermilk’s

trial in exchange for a reduced plea to second degree murder.

Trial counsel Conrad Finnell could not recall the details regarding the

assistant district attorney’s uncounseled visit with the petitioner while he was in

prison. However, Assistant District Attorney Joe Rehyansky testified that he left

several messages with Finnell prior to the meeting. After the meeting proved

unsuccessful, Rehyansky spoke with Finnell in an informal setting, and Finnell did

not appear to be troubled by the meeting with his client. Rehyansky further

recalled that Finnell was especially optimistic that the petitioner’s conviction

would be overturned on appeal. 

We do not find that trial counsel provided deficient performance in failing

to return the assistant district attorney’s phone calls. Trial counsel was optimistic

that his client’s conviction would be overturned on appeal. Likewise, counsel

believed that the petitioner shot the victim in self-defense and was unaware that

Mrs. Loudermilk was present at the cemetery during the shooting. Therefore, he

had no reason to believe that an interview with the law enforcement authorities

would have been fruitful.

In any event, the petitioner has failed to demonstrate prejudice. First, from

his own testimony it appears that the petitioner was still under the influence of

Mrs. Loudermilk at the time the interview took place in November 1991. The 
-15-

baby she threatened to abort was not born until February of 1992. Additionally,

according to the petitioner’s mother, Mrs. Loudermilk continued to visit the 

petitioner in prison until she pled guilty in December 1991. As a result, there is

no evidence that trial counsel could have convinced the petitioner to testify

“truthfully” against Mrs. Loudermilk at her trial.

Furthermore, there is no evidence that the state would have agreed to set

aside the petitioner’s conviction of first degree murder and allow him to plead

guilty to second degree murder. Assistant District Attorney Rehyansky stressed

that he made no promises to the petitioner, but merely stated, “[m]aybe we can

get the judge to let the parties set aside your premeditated murder conviction and

have you re-enter a plea to second degree.” (Emphasis added). Nor is there any

evidence that the trial court would have approved of such an arrangement.

The petitioner has not demonstrated that trial counsel’s performance was

deficient or how he was prejudiced by this alleged deficiency. This issue has no

merit.

III.

The petitioner in this case has repeatedly and willfully lied to his trial

attorney, not to mention law enforcement authorities and in his testimony at trial.

Under these circumstances, we cannot conclude that trial counsel’s performance

was deficient. Moreover, the petitioner has not demonstrated how he was 
-16-

prejudiced by the alleged deficient performance of trial counsel. Accordingly, the

judgment of the trial court denying post-conviction relief is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

JAMES CURWOOD WITT, JR., JUDGE