# FILED May 11, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1998
GREG L. BAI NE, ) C.C.A. NO. 03C01-9806- CR-00201 ) Appe llant, ) ) ) POLK COUNTY VS. ) ) HON. CARROLL L. ROSS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conv icti on)

FOR THE APPELLANT : FOR THE APPELLEE : LEONARD M. CA PUTO JOHN KNOX WALKUP Phillips & C aputo Attorney Generaland Reporter 312 Vine Street Chattanooga, TN 37403 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JERRY N. ESTES Distri ct Attorney General SHARI TAYLOE 10th Judicial Dist rict P. O. Box 1351 Cleveland, TN 37364-1351

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION

The petitioner, Greg L. Baine, appeals the Po lk Cou nty Crim inal Co urt’s orderdenying his

petiti on for post- convicti on relief after an ev identiar

y hearing. Petiti oner was convicted in 1991 o f one (1) count of premeditated first degr ee murder and sentenced to life imprisonment. He filed a p ost-convi ction petiti on, allegi ng, inter alia , ineffective ass istance of coun sel. On appe al, pet it ion er c lai ms thattrial cou nsel was ine ff ective for failing to “properly utilize exculpa tory discovery material”

and for fai ling to speak with state offi cials before they conducted an uncounseled interview wi th the petitioner. After a thorough rev iew of the reco rd before this Cou rt, we affirm th e judgm ent of the tria l court.

I. A. Trial Petiti oner was co nvicted afte r a jury tr ial o f premeditated first degree murder and w as se ntenc ed to life impris onm ent. H is convicti on was affi rmed by this Court. State v. Greg Baine , C.C.A. No. 03C01- 9202-CR-43, 1992 WL 151403, Polk County (Tenn. Cri m. App. filed July 2, 19 92, at Kn oxville), perm. to app. d enied

(T enn. November 30, 1992) . We will recite the fac ts as set out

by this Co urt on d irect ap peal:

On December 24, 1990, at 8 :45 p.m., t he body of Ronn i e Laud ermilk was fou nd at th e Crestview C emetery in P olk County. It is undisputed that theappellant killed Mr. Laudermilk. His defense at tri al was that

of self-defense. Although the appell ant refer red to the decedent as alon gti me friend, the appell ant was having a n affair with the de cedent’s wi fe. The decedent had apparent ly learned about the af fair and ha d confronted the appell ant during the day he was ki lled. The appellant testif ied at tri al that duri ng this i nitialconfrontat ion, the d ecedent put1 Howe ver, the pe titioner testified a t trial that he we nt “[t]hrough the 12th g rade.”
2 Mich elle Lo ude rm ilk is th e dec ede nt’s wife . Al thoughthe de cedent ’s name was spelled “Lau dermil k” 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 willuse the “Loudermil k” spelli ng in thi s opinion. -3- a gun to the appellant’s chest and threatened h is li fe. No physi cal violence resulted f rom this meeti ng. Later t hat day the dece dent and appellant

met each other i n town. The d eced ent alle gedly told the appellan t that he wis hed to speak with hi m, but he desir ed to do so out of town. They bega n drivi ng, the appel lant leading the deced ent, with no app arent de stination. After d riving ap proxim ately fifteen miles, t hey approached Crest viewCeme tery. The decedent blew his horn and p ointed to the cem etery, indica ting his de sire to stop at the cemeter

y. The appell ant testified that after he st

opped, the decedent pull ed in behind him a ttemp ting to b lock his car from exiti ng. The decede nt exite d the car and t hrew a beer at t he appe llant’s windshiel d. After leaving hi s truck, the decedent allege dly kicked the appel lant’s car door shut

and would notlet him out of the car. According to the appellant ’s test imony the decedent then stated, “I’ m gonna ge t my shotgun out of the truck,” and “I’ve got you right wher

e I want you now.” The appell ant had a shotgun in his car and m ade c ertain that the de ceden t saw it. Acc ording to the appellant , the decedent then turned and walked to h is truck to get his shotgun. The appellant testifi ed t h at he shot t he decedent when th e dece dent turn ed awa y and sta rted towa rd the truck

. The appellant

stated that he coul d not see the decedent after the shot was fired because it was d a rk. He exi ted his car on the pass enge r’s side, wal ked around to t he front of the car, and saw M r. Laud ermilk on his hands and knees. The appell ant stated at tri al thathe saw Laudermilk r eaching into his pocket with his right hand. The appellant

supposedly was awar e that the d ecedent habi tua lly carried a pistol. He twi ce ordered Laude rmilk to sto p reach ing into his pocket, but

he paid no attention. Ther efore, appellant

shot the dec edent a second time wit h his 12-gauge shotgun. Laude rmil k died in the cem etery before be ing found by a p asserby. State v. Greg Baine , 1992 WL 151403 at *1. B. Post-Conv icti on Hearing The petiti oner was twenty-nine (29) yea rs old at the tim e of the po stconvicti on hearing

. He stated that he was t wenty-one (21)years old when t he shooting occurred and had an el eventh grade educat ion. 1 Althoug h both wer e marr ied to o ther pe ople, h e and Miche lle Lou derm ilk 2 becam e roman tically-4-

involved in Octo ber of 1 990. T hey co ntin ued to see each other after Mr. Loude rmilk wa s killed. T he petiti oner testified that , on the day of the shooti ng, Mr. Louder mil k confronted him about his affair with Mrs. Loude rmilk. Afterwards, the petit ioner went to a f riend’s h o me, a nd the y phon ed Mr s. Lou derm ilk. Mrs. L oude rmilk asked the petition er to meet her atthe cemetery at 6:00 p.m. that evening. Mrs. Loud ermilk arrivedat the cemeter y shortl y after

the petit ioner arr ived. They spoke in his car for approxi mately five (5) minutes until they observed the victim drivi ng into the cem etery. T he de cede nt exited his v ehicle and t hrew a can of beer at t he pet iti oner’ s win dshi eld. Mr s. Loudermilk j umped out of the petition er’s vehicle a nd began running towards hercar. The petiti oner attempted to get out of h is car, but M r. Loude rmilk k icked the do or shu t. Mr. Lo uderm ilk threatened t he petiti oner, and as he turned to walk to hi s vehicl e, the petit ioner shot him. Because the petit ioner coul d not see the v ictim, he w alked aro und to the front of

his vehic le and found Mr. Loudermilk on his hands and knees. Sudden ly, Mrs. Loudermilk gr abbed the shotgun f rom the petit ioner’s h ands and shot the v ictim the s econd time. The petitioner te stified th at his attorney never asked him whether Mrs. Loud ermilk or any other witnesses wer

e present at the sc ene of the shoot ing. Howeve r, he ackn owledg ed that h e lied t o his atto rney a nd als o lied in his testimony

at trial regarding Mrs. Lo udermilk’s invo lvement in t he sho oti ng. He stated that li ed to prot ect Mrs. Loudermilk because she had i nformed him that she was pregnant wit h his chil d. Mrs. Loudermilk threatened to abort the child if the petitione r implicate d her in he r husba nd’s dea th. The petiti one r also p resented the signed statement of Michel le Loudermilk. This statement was t he sec ond st atement give n by Mrs . Loude rmil k to TBI-5-

officers on De cem ber 25 , the da y followin g her hus band’s death. In Mrs. Loud ermilk ’s first

statement to the law enforcement authorities, s he claimed that she knew nothing about her husband’s shoot ing. In her second statement, Mrs. Loud ermilk admitted that sh e was pres ent in the cem etery du ring Pe titioner’s confrontat ion with the dece dent. Sh e stated th at she w ent to the cemetery to “put
a tree” on h er relatives’ g raves. When she arrived , the petitioner was t here. She and the petitioner spok e for a while until they saw M r. Loudermilk’ s vehicl e drivi ng into the cemetery. The victi m exited his vehicle whi le holdi ng a shotgu n. She stated that she t hen returned to hercar and left the cemetery. As she was drivi ng away, sh e heard a guns hot. With the excepti on of Mrs. Loudermilk’s pr esence at the scen e , t he petitioner d isputed th e veracity o f Mrs. Lou dermilk’s statem ent. The petiti oner testified that after hewas c onvicte d of m urder and w hile his
case was pending on appe al, Ass istant D istrict Atto rney Jo e Reh yansk y, the P olk Coun ty Sheriff

and a deputy sheriff met wit h him in pri son. He stated that the state representat ives expl ained to hi m that they believe d he wa s lying to protect Mrs. Lo uderm ilk. H e testified tha t they advise d him tha t if he would testify against Mrs. Loudermil k regarding her involvement in the shoot ing, he woul d be
a free man. The peti tion er testif ied that h e refused to talk to the authori ties becau se his atto rney adv ised him not to spe ak to any one. Petiti oner was rep resente d by Co nrad Fin nell at trial. A t t he t ime of the hearing, Finnell had practiced law for 36 yea rs, and a sub stantia l portion of his practice was c rimina l. Finnelltestified that, after hearing the pet itioner’s versi on o f the fa cts of t he case, he beli eved that t he shooting was i n self-def ense. P etiti oner never mentioned to Finnell t hat Mrs. Loudermilk was prese nt at th e cemetery at t he ti me of t he sho oti ng. Howeve r, Finnel l acknowledged t hat he3 The me eting took place appr oxim ately four (4) mon ths after the petitioner was convicted of first degree mu rder. -6- was unaware of Mrs . Loud ermilk ’s second statement t o TBI officers wherein she admitte d being prese nt durin g the in ciden t. Finne ll explain ed tha t, due to his heavy case load at the time, he w as una ble to perso nally rev iew the discov ery in this case. Instead, he reliedupon mem bers o f his staff to r eview the materials. A member of his staf f erroneously informed him that Mrs. Loudermilk was not presentduring the inc ident, a nd as a resu lt , Finne ll d id not purs ue the matter further. Apparently , the statement had been receivedfrom the state in disc overy and m isplaced in a “misc ellaneou s” sub-file. Finne ll testified that, wh ile the p etitione r’s case was pending on appeal , an assistant

district attorne y and th e Polk County Sherif f at the t ime conducted an uncounseled interview with the petition er in pris on. He did no t recall giving t he state authorit ies permissi on to speak wit h his cli ent alone and learned about the interv iew after

it occur red. Moreover, he could notrecall whether anyone f rom the Distri ct Attorney’s off ice atte mpted to contact him prior t

o the interview. How ever, bec ause the pe titioner’s statem ent to th e state agen ts was in conform ity with his testim ony at tr ial, Finn ell did not bel ieve that the petit ioner was harme d by the m eeting. Assistant Distri ct Attorney J oe Rehyansky test ifiedat the post-convict ion hearing. He stated that he was assigned to work on t he state’s c ase against Miche lle Loud ermi lk. In the course of his inve stigations, Rehya nsky, accompanied by the sheriff of Polk C ount y and his chi ef deputy, visited the petiti oner while he was i ncarcerated in th e penitenti ary in November 1991. 3 Rehyansky wished to speak with the petiti oner because he believ ed that the petit ionerha d not been fort hright wi th regard to Mrs. Loudermil k’s invo lvement4 Mrs. Lo udermil k was charged withconspiracy to commit first

degree murder, premedit ated fir st degree murder and accessory aft er the fact . However, due t o the state’s lack

of evidence,she was allowed to plead g uilty to acces sory after th e fact. -7- in the shooti ng and wanted the petiti oner to test ify agai nst Mrs. Loudermilk at her trial

. He tes tified tha t althou gh he attem pted to conta ct Finn ell prior to his meeting with the petition er, he w as un able to reach him. Rehyansky stated th at the petiti oner agreed to spe ak with th em, but the pet itione r gav e th e sa me version of

the story

as he testi fied to at

trial . Rehyansky went on to state: But what I thi nk I presented to him was thi s - and I made no promises. I said, “Maybe we can do this, Gre g, if, if you’re willing to tell the truth at

Michelle’ s trial . Maybe we can get t he judge to l et the partiesset asideyour premeditated murder convi ction and haveyou re-enter a plea to se cond deg ree.” . . . A nd I thin k I ma y have told him to discuss t hat with Conr ad. But he didn’t have anythi ng helpful to say at t he time, and I never heard back f rom him or Conrad. Howeve r, although he bel ieved that Mrs. Loudermilk was equal ly culpabl e for her h usband’ s murder, Rehyansky testifi ed that, i n his opini on, the petitioner was guilty of prem editated m urder. M rs. Loud ermilk su bsequ ently pled g uilty to accessory a fter the fact to first degree m urder. 4 At the conclusi on of the proof , the trial court denied post-con viction relief. In its written order

denying pos t-convi ction rel ief, t he trialcourt noted that the petiti on er d eliberately and repeatedly misl ed his attorney into believi ng that he
was the only person present duri ng the shooti ng. The tri al court f urther found thatthe petit ioner “not only gave false statements to theinvestig ating o fficers in this caus e but . . . a lso kno wing[ly ] and w illfully testifie d false ly during his testimony at

trial .” Addit ionall y, the t rial cour t observed t hat while thepetiti oner claimed th at his a ttorney was d eficien t for failing to read Mrs. L oude rmilk’s second statement, the petit ioner’s testi mony at the post-co nvicti on hearing indicated “that

every m aterial is sue in Miche lle Lou derm ilk’s statement was not true .” The trial co urt conclu ded tha t trial counse l was not d eficient for failing to5 Under the 1995 Post- Convicti on Procedure Act, the petitioner has the b urde n of p rovin g his claim s by clear and convinc ing eviden ce. Tenn. Code Ann. § 40-30-210(f). However , since t he presentpetit ion was filed in 1994, the petit ioner’ s claims must be proven by a preponderance of the evidence. -8- read the “second false statement,” and the pet itioner was not prej udiced as a result of an y alleged d eficiency. From the trial c ourt’s ru ling, the petition er bring s this ap peal.

II. A. Standard of Rev iew In post-convi ction proceedings, the petit ioner bears t he burden of prov ing the allegat ions rais ed in the pet ition by a preponderance of the evidence. 5 Tidw ell v. State , 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995). Moreover , the trial court’s fi ndings of fact are conclusive on appeal unless the evidence p reponderates agai nst the judgm ent. Tidw ell v. State , 922 S.W.2d at 500; Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

B. Ineffect ive Assi stance of Counsel The Sixth Amendment to t he United States Constitut ion provides , in part, “[i]n all cr iminal pro secutions, the accused shal l enjoy t he righ t . . . to hav e the assistance of couns el for his de fense.” Similarly, Arti cle I, § 9 of the Tennessee Constitut ion guarantee s an accus ed “the right to be he ard by him self an d his
c oun sel . . .” Additionally, Tenn. Co de Ann. § 4 0-14-102 p rovides, “[e]very person accused of any cri me or misdemeanor whatsoever is enti tled to counsel in all matte rs nece ssary for su ch pers on's defe nse, as w ell to facts as to law.” The United States Supreme Court ar ticul ated a t

wo -p rong tes t for courts to employ in evaluati ng claims of ineffective assistance of counsel in Strickl and
v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 67 4 (1984). Th e Court-9-

began its analysis b y noti ng that “ [t]he benchmark for judgi ng any clai m of ineffec ti veness must be whether counsel ’s conduct so undermined the proper functioni ng of the adver sarial pr ocess that t he trialcannot be rel ied on as having produced a just re sult .” Strickl and , 466 U.S. at 686, 104 S.Ct. at 2064. When challengi ng the effec

tive assi stance of counselin a post-convi ction proceeding, the petit ioner

bears the burden of establi shing (1) t he attorney’s represent ation
was deficie nt; and (2) the d eficien t perfor man ce res ult e d in prejud ice so as to deprive the defen dant of a fa ir trial. Strickl an d , 4 66 U.S. at 687, 104 S.Ct. at 2064; Powe rs v. State , 9 42 S. W .2d 55 1, 558 (Ten n. Crim . App. 1 996). T his Court is not required to consider the two p rongs of Str ickland i n any parti cular order. Harris v. S tate , 947 S.W .2d 156 , 163 (T enn. C rim. App. 1996 ). “Moreover, if the Appellant f ails to establi sh on e pr ong, a revi ewing court nee d not consider the other.” Id. The test i n Tennessee in deter mining whether counsel provided effective assistance at trialis whether counsel’s perf ormance was “withi n the range of competen ce deman ded of attorneys in criminal cases .” Baxter v. Rose , 523 S.W.2d 930, 936 (T enn. 1975 ); see also Harris v. State , 947 S.W .2d at 163 . In orderto demonstrate that counselwas defici ent, the pet itioner must show that
coun sel’s representat ion fellbelow an object ive standar d of reas onab le ness under prevailing p rofession al norm s. St r ickland , 466 U.S. at 688, 104 S.Ct. at 2064; Harris v. S tate , 947 S.W.2d at 163. Under the prejud ice prong of Strickl and , the petiti oner must establish that “there is a reasonable prob abilit y that, but for coun sel's unpr ofessionalerrors, the result of the proce eding would have been differen t. A rea sona ble probability is a probab ilitysufficient to underm ine confidence in the outcom e.” Strickla nd , 466 U.S. at 694, 104 S.Ct. at 2068.-10- In reviewi ng coun sel’s co nduc t, a “fair assessm ent . . . requires that every effort be made to eliminate the distorting ef fects of hindsight , to reconstruct t he circumstanc es of counsel ’s chall enged conduct, and to evaluate t he conduct fr om coun sel’s perspective at the time.” Strickl and , 466 U.S . a t 689, 104 S.Ct. at 2065. The mere failur e of a parti cular tac

tic or strategy

does n ot per

seestablish
unrea sona ble represe ntation. Goad v. State , 938 S.W.2d 363, 369 (Tenn. 199 6). Howeve r, this Court

will defer to couns el’s tacticalan d strateg ic choic es on ly where those choices are informed ones predicated upon adequate prepar ation. Id. ; Hellard v. S tate , 629 S.W .2d 4, 9 (Ten n. 1982).

C. State men t of Mic helle Lo uderm ilk In his first allega tion of ineffec tive assista nce of couns el, the petiti oner cla imsthat trial counselwas ineffective f or fail ing to readand “properl y util ize” the second statem ent of Michelle Loudermilk. The petiti oner contends t hat tri al
coun sel, by failing to rea d the state ment, was unable to prep are an effective defense as he did not have the ben efit of the state ment w hile questioni ng or advising his client . He asserts t hat Mrs. Loudermilk was a devi ous woman who manipulated the petitioner, and had tria l counsel ut iliz ed this statemen t properly, he could have argue d to the j ury that Mrs. Loudermil k lured bot h the peti tioner and Mr. Louderm ilk to the cemete ry in hopes of a fatal confrontat ion. He fur ther argues that trial counsel could h ave called Mrs. L oude rmilk to testif y at trialas a corroborat ing witnes s that thevicti m was the first aggressor i n the shooti ng. We agree that it

is certainly t he better pr actice for tri al counsel t o perso nally review all ma terials received in discove ry. However, in light of the fact thatthe petit ioner deli berately deceived his a ttorney in this regard, w e hesitate to find trial c ouns el’s performan ce defective. W e do not believe that trial counsel shou ld be saddled wit h the burden of forcing hi s client to be trut hful when that6 The petitioner testified that Mrs. Loudermilk fi rst inf ormed him of the pregnancy approxi mately t

wo (2) weeks prior to the shooting. However, the baby was born almost fourteen (14) m onths later. -11- client has will fully

and repetit ively

lied to the attorney at every stage of t he proceedings. Clearly, the petition er held his fate in his ow n han ds an d sho uld not be rewa rded for c hoosin g the pa th of dece it. Regardless of whether tri al c ounsel was deficient i n failing to read Mrs. Loud ermilk ’s second statement t o the TBI offi cers, thepetiti oner has not demonstrated how he was prejudiced by this a lleged def icienc y. First, th ere is
no evidence in the reco rd to sug gest that the petit ioner would hav e implicated Mrs. Loudermilk i n the shooting had he been confronted wi th the statement by his attorney. The p etitione r testified that, as a resu lt of her th reat to a bort the ir child if implicated in her husband’s sh o oting he l ied to hi s attorney and in his t rial testimony

regarding Mrs. Loude rmilk’s involveme nt. However, the child was born
on February 1, 1992, approx imately sev en (7) months after the pe titioner’s trial. 6 The petiti oner gives no i ndicati on as to how Mrs. L oude rmilk’s threat of abortion would have been lif

ted had tri al counsel r ead and confronted the petitioner w ith the statemen t. Finnell testified that had he c onfronted the p etitioner w i th the statementand the peti tioner deni ed Loudermilk’ s presence at t he scene, he “would have g one ahead and procee ded with this case just like [he] did .” In addition, there is no eviden ce in the record to sugg est tha t Mrs. L oude rmilk w ould have testified favorably forthe petit ioner had trial counselattempted to call her as a witness. Furthermore, as noted by the trial co urt, even thoug h the petitioner refers to Mrs. L oude rmil k’s s tatement as “exculpatory” in nature, he disputes al most every material aspect of the state ment. Specifi cally, Mrs. Loudermil k stated t hat her husband exited his v ehicle wit h a shotgun in hi s hands, whereas t he-12-

petiti oner stated t hat Mr. Loudermi lk was not armed while exit ing the vehi cle. Second ly, Mrs. Loudermil k stated t hat the petition er told h er that h e wou ld kill her husband if Mr. Loud ermilk w as abu sive to her. The petiti oner flat ly denied ev er making such a statement. Additionally, the petit ioner test ifie d that Mrs. Loud ermilk was seated insi de his car when the victim drove into the cemetery, but Mrs. Loude rmilk claimed th at she was s tanding outside of the car. Finally, and perhaps m ost importantly, Mrs. L oude rmilk stated th at she heard a shot as she was leaving t he cemetery. The pet itioner testified that Mr

s. Loudermil k was not only p resent d uring the shooting , but actua lly fired the sec ond sh ot. The petitioner g ave two s tateme nts to TBI offic ials on t he day foll owing the shooting. In one st a tement, he deni ed any invol vement in the s hooting. In the second, he claimed that he shot t he victim twice in self-de fense . Petition er’s testimony at

the post-con viction hea ring clearly c onflicts both statements given to the TBI agents. If the p etiti oner had testified at trial t hat Mrs. Loudermilk also fired the shotgun, the jury would have been faced with thre e (3) confl icting versionsof the fac

ts from the petiti oner. There i s lit tle doubt

that thepetition er’s credibil ity woul d have been serio usly questi oned. Moreover, the statepresented evi dence at tri al that th e petiti oner premeditated the shoo ting of Mr. Loud ermilk. There was testi mony at tri al that the victim did not have any weapons in his v ehicle appr

oximately

thirt y minutes prior to the shoot ing. However, law enforcement authorit ies found a sho tgun in the floorboard of the v ictim’s truck and a .22 caliber revolver in the glove comp artmen t. The revolve r was identi fied as previously belonging to the petitioner, and a .22 automati c weapon found on the v ictim’ s person was identif ied as belonging to Mrs. Loudermil k. Although the petit ioner test ified t hat Mr. Loud ermilk threw a beer can at hi s windshiel d, no beer can was found in the7 Petiti one r claims that Mrs. Louderm ilk informed him that she wa s in her thirties at the ti me of t h e incide nt. Ho wever, i t appears fr om the record that

Mrs. Loudermilk i s merely two (2) years older than the petitioner. The petitioner admit ted that he and Mrs. Loudermil k attended the same high school for a peri od of time. -13- cemetery by investiga tors. Significa ntly, TBI A gent Bro oks W ilkins testified th at, after an exam ination of tire tr ack s found at t he cemetery, t he law enforcement
a uthorit ies conclud ed that M ichelle Lo uderm ilk’s vehicle w as pres ent at th e ceme tery on the night of D ecem ber 24. The state’s evi dence presented at trial , co u pled w ith the p etitione r’s proposed testim ony tha t both h e and Mrs. L oude rmilk s hot the victim, c ould suggest that the petiti oner and Mrs. Loudermilk conspir ed to kil l the vic ti m. Although the petiti oner insists that Mrs. Loudermilk’ s statementis eviden ce that she is an older, 7 devious, manipulati ve woman who lured thepetitioner and M r. Loud ermilk to the cemeter y in hopes of

a fatal c onfron tation, it is equa lly plaus ible thatthe jury

would have beli eved the state’s theory that the petitio ner and Mrs. Loud ermilk lured the victim to th e cemetery and lai d in wait for him to arrive. Indeed, trialcounsel recognized t his possibi lity , as he testified, “t he implicat ions of her be ing there are obvio us und er these circums tances .” From a thorough rev iew of the r ecord, we concl ude thatthe petit ioner has not shown a “reaso nable p robability tha t . . . the result of the proce eding would have be en dif ferent.” Strickl and v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068. Therefore, we a gree with t he trialcourt that the petit ioner has not demon strated that he wa s prejudiced b y his attorney’s alleged deficiency. This issu e is withou t merit.

D. Uncounseled Interv iew In his second allegation of ineffecti ve assistance of counsel, t he petiti oner cla imsthat trial counselwas defici ent in allowing the state authorit ies to i ntervi ew-14-

his cli ent outsi de of his pr esence. Petiti oner maintains that he was depr ived of effective representat ion when tri al couns el faile d to return the assist ant distri ct attorne y’s phone ca lls . He argues that had trialcounsel been present at the meeting, he could have conv inced the pet itioner to testify at M rs. Lou derm ilk’s trial in exchange for a re duced plea to second d egree m urder. Trial counsel Conrad Finn ell coul d not recal l the deta ils regar ding t he assistant

distri ct attorney’s uncounsel ed visit with thepetiti oner while he was in prison. However, Assistant Dist rict At torney Joe Rehyansky test ified t hat he left several messages with Finnel l prior to the m eeting. After th e meeting proved
unsucce ssful, Reh yansk y spok e with F innell in an info rmal s etting, a nd Fin nell did not appear to be t roubled by t he meeting wit h his cli ent. Rehyan sky further recalledthat Finnel l was especial ly opti mistic t hat the petiti oner’s convi ction would b e overturn ed on a ppeal. We do not find that t rial coun sel provi ded defici ent perfor man ce in faili ng to return the assistant distri ct attorne y’s phon e calls. T rial cou nsel w as op timistic thathis cli ent’s convi ction woul d be overtur ned on appeal. Li kewise, counsel believed that the petiti oner shot the victi m in self- defense and was unaw are that Mrs. Loudermilk was pr esent at t he cemetery duri ng the shooti ng. Therefore, he had no reason to bel ieve that an interv iew with t he law enforcement authorit ies would have b een fru itful. In any event, the petiti oner has failed to demonstrate p rejudice. First, from his own te stimo ny it app ears th at the p etit ioner was st ill under the inf luence of Mrs. Loudermil k at the t ime the interview took place in November 1991. The-15-

baby she threatene d to abort was not born until Feb ruary of 1992. A dditionally, according to the peti tioner’ s mother, Mrs. Loudermilk cont inued to vi sit the petiti oner in pris on until she pled guilty in December 1991. As a result, th ere is
no evidenc e that tr ial couns el could h ave con vinced the petitioner to testify “truthfu lly” again st Mrs. Loud ermilk at her tria l. Furthermore, there is no evidence th at the state would ha ve agreed to set aside the petit ioner’s convicti on of fir st degree murde r and allow hi m to plead guilty to second degreemurder. Assistant DistrictAttorney Rehyansky stress ed thathe made no promises to t he petiti oner, but merely s tated, “ [m]aybe we can get the judge to let the parties s et aside your pr emeditated murder convicti on and have you re-enter a plea to second degree.” (Emphasis added). Nor is ther e any evidenc e that the tria l court wou ld have a pproved of such a n arrang emen t. The petiti oner has not demonstr ated that t rial coun sel’s per formance was defici ent or how he wa s preju diced by this alleged def iciency. This issue has no merit.

III.

The petiti one r in thi s case has repeatedly and will fully lied to his tri al attorney, not to menti on law enforcement authorit ies and in his testim ony at tr ial. Under these cir

cumstances, we cannot conclude that trial counsel’s performance was deficient. Moreover, the petiti oner has not demonstrated how he was-16-

prejudicedby the all eged defici ent performance of tri al coun sel. Accordingl y, the judgment of t he trialcourt denyi ng post-convi ction rel ief is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE