# FILED
February 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 SESS ION

LUTCHER EIDSON, ) ) Appellant, ) No. 01C01-9607-CR-00295

) ) Davidson County v. ) ) Honorable Thomas H. Shriv er, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Geoffrey Coston John Knox Walkup 2813 West End Ave. Attorney General of Tennessee Nashville, TN 37203 and Clinton J. Morgan Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and John Zimmerman James Sledge Assistant District A

ttorneys General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Lutcher Eidson, appeals as of right from the denial of his petition for post-conviction relief by the Davidson County Criminal Court relative to his 1989 convictions for two counts of assault with intent to commit first degree mu rder, one of which resulted in bodi ly injury. The conv ictions were affirmed on appeal

. State v. Lutcher Eidson , No. 01C01-9004-CR-00097, Davidson County (Tenn. Crim. App. Dec. 12, 1990), app . denied (Tenn. Feb. 25, 1991). He is presently in the custody of the Department of Correction serving an effective sentence of forty-five years as a Range II, persistent offender. The petitione r contends that the trial court erred in
co nc lu di ngth at

he re ce iv ed th e e ffect iv

e a ss is ta nce of cou ns el at

hi s t ri al . We disagree.
In the direct appeal of the conv iction, this court succ

inctly stated the evidence as follows:

Several witnesses testified the appellant was one of two men who fired shots at a group of people w ho were st anding in a parking lot at a service station. One person was criticall y injured by the shooting

. There was no evidence s ubmitted to refute this evidence presented by the stat e. The appellant argues the evidence is insufficient because one of the state’s witnesses

gave testimony inc

ons ist ent with the testimony of other state’s witnesses. In this post-convicti on case, the petitioner mainly complains about his attorney ’s failure to interview or c

all as witnesses peopl e who would help the peti tioner’s case, includin g presenting an alibi. H e also complains about lack of cr oss-examination of certain state witnesses.
At the evidentiary hear ing, the petitioner testi

fied regarding named individuals who, he claimed, would support an alibi defense. His attorney acknowledged not interviewing the purported alibi witnesses, including the petitioner’s ex-wife, but testified that the petitioner admitted to him that he, the petitioner,3

committed the shootings. The attor ney stated that he was not going to assist in perjury. When questioned about not pursuing other potenti al witnesses to the ev ents, the attorney stated that the ow ner of a nearby book store w as uncooperative and that a severed codefendant also refused to talk to him.

Under the law gov

erning these proceedings , to establish that he recei ved the ineffective assistance of couns el at trial, it was

incumbent upon the petitioner to prove by the preponderanc e of the evidence that his couns el’s performance fell below the range of competence demanded of attorneys in criminal cases and that such improper performance prejudiced him so as to deprive him of a fair trial. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Cook , 749 S.W.2d 42, 45 (Tenn. Crim. App. 1987); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In this appeal, the burd en is upon the petitioner to demons trate that the evidence preponderates aga inst the trial court’s findings. See Rhoden v. State , 816 S.W.2d 56, 60 (Ten n. Crim. App. 1991).

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 preju dice 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.

In this respect, the cruci al defect in the petitioner’s case is that the potential witnesses and the unexamined witnesses w ere not called to testify at the postconviction evidenti ary hearing. It is imperative that the witnesses testify at the evidentiary hearing

in order for the trial co urt to determine the potential mer it of the evidence. See Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990). Thus, even if the attorney’s lack of witness investigation and lack of cross-examination were4

to be viewed as deficient performance, the petitioner has fail ed to show that any prejudice to him resulted from such deficiency.

The trial court noted that the pet itioner’s attorney had vigorously cont ested the iden tificat ion eviden ce presen ted by the state at t rial and h ad perfo rmed abo ve average in his actions. It concluded that the petitioner received the effe ctive assistance of counsel. With the record failing to show how the petitioner w

as prejudiced by the claimed lack of investigation and lack of cross-examination by his attorney, we are bound by the trial court’ s determinations. The judgment i s affirmed.

_______________________________ Joseph M. Tipton, Judge CONCUR:

__________________________ John H. Peay, Judge

__________________________ David H. Welles, Judge