1 The petit ioner noted t he exist ence of addit ional i ssues f or review, but

fail ed to enum erate them in his brief. The reply bri ef

indic ated th at the issu es w ere in clud ed in an ex hibit; h ow eve r, no a ttachm ent is in the reco rd. Beca use the peti ti oner di d not i denti fy any of thes e is sues, made no cit ati ons t o t he re cord , and fai led t o pres ent a rgument or refe rence a ny author it y for hi s posi ti on, waive r applies. See gen erally State v . Au coin , 75 6 S

. W. 2d 70 5 ( Te nn
. Cr i m. App . 1988). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Novem ber 6, 2001 Session
ERIC WALLACE v. STATE OF TENN ESSEE
Appeal from the Criminal Court for Shelby County No. P-20457 W. Otis Higgs, Judge

No. W2000-02854-CCA-R3-CD - Filed F ebruary 19, 2002

The petitioner, Eric Wallace, appeals the trial court's denial of his petition for post-conviction relief. The issues presented for review are ( 1) whether the petitioner received ef fective assistance of counsel; (2) whether the petitioner was denied the rig ht to a speedy trial; and

(3) whether

the state used imp ro per impeachment evidence. 1 Because the evidence doe s not preponderate against the findings of the trial court, the order deny ing post-conviction relief is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G A RY R. W ADE , P.J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T

. W OODA LL , JJ., joined. C. Anne Tipton, Memphis, Tennessee, for the appellant, Eric Wallace.

Paul G. Summers , Attorne y General a nd Report er; J. Ross Dyer, Assistant Attorney General; and Camille McMullen, Assistant District Attorney Gener al, for the appellee, State of Tennessee.
OPINION

On July 10, 1992, the petitioner and his brother, Percy Wallace, were walking along Woodlawn Street in Memphis when they enc ountered Jimmy Weddle, who was sitting on his front porch. The Wallac es asked W eddle if he knew a

nyo ne that wa

nted to pur

chase dr ugs. Wed

dle promised to send a couple, who he knew was interested in obtaining drugs, to the Wallaces. When the Wallaces reached the intersection of Woodlawn and L ooney, they

saw “Boo Boo” Fox, who was driving through

the neig hborhood . Fox stoppe d his car as Weddle

walked to

the intersection. Fox-2-

askedthe Wallaces for a $20 rock of crac k cocaine but gave them only $15. When the Wallaces informedFox t hat he had no t given them e nough mo ne y, Fox answered that he would go to his car for more money. When Fox reached inside his vehicle, he grabbed a pistol and robbed the Wallace s of their money and drug s. Fox fired several shots at the Wallaces as Weddle returne d to hi s residence. Believing that Weddle

had orch estrate d the robb ery , the Walla ces r an to their residence, obtained two loade d shotguns, and re turned to the Weddle

residence. Percy Wa

llace c alled Wed

dle “a dead man ,” fire d severa

l shots at the re sidence , and instr ucted the petitione r to rema in outside and shoot anyone who attempted to lea ve.
When the shooting began, Venita Swift, who was celebr

ating he r birthda y a t the Weddle residence, attempte d to escape to her ow n home

located across the street. As she ran, the pe titioner shouted, “Hold bitch.” Ms. Swift, w ho place d her hands in the a ir, contin ued to run. The petitioner then shot her one time in the back. She died several minutes later.

At the con clusion of his trial on March 31, 1996, the petitioner was convicted of the fi rs t degree felony murder

of Venita Swift and the attempted first degree murder of Jim Weddle. The trial courtim posed a life sentence for the murder c onviction and a sentence of fifteen y ears for t h e attempted murder c onviction . The sen tences w ere ord

ered to b e se rved co nsecutively. The petitioner appealed his convi ctions, alleging that the evidence was insufficient and contending that the trial cou

rt abuse d its discr

etion by orderin g the se

ntencesto be served

consecutively. This cour t affirmed. State v. Eric Wallace , No. 02-C-01-9604-CR-00125 (Tenn. Crim. App. , at Jackso n, July 28, 1997) . Permissio n to appeal to our supreme court was denied on April 6, 1998. L ater, the petitioner filed a p etition fo

r post-c onvictio n reli ef, raising a plethora of issues. The trial c ourt appointed counsel and ordered the filing of an amend ed pet itio n. Aft er an ev ident iary heari ng, the trial court denied relief.

In a post-conviction proceeding, the petitioner bea rs the burden of

proving his allegations by clear and co nvin cing evidence. Tenn. Code Ann. § 40-30-210(f). On a ppeal, the findings of fact made by the trial

court are conclusive

and will not be disturbed unless the evidence contained in the record prepond eratesagains tthem. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the e vidence prepond erated agains t those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn .Crim. App. 1978).

I The petitioner

first asserts that he was denied the effective assistance of counsel at tria l and
on direct appeal. He has attacked the e ffectiveness of his counselin sever al way s, which th

is court will address one issue at a time.

Several we ll-devel oped guidelines apply to our review. When a petitioner seeks post-conviction relief o n the basi s of inef fective assistanc e of coun sel, he mu st first establish that

the services rendered or the

advice given were

be lo w " th e r an ge of

co mp et en ce de ma nd ed of at to rn eys-3-

in criminal cas es." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, h e must show that the deficie

ncies " actually

had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Should the petitioner fail to establish either factor, he is not entitled to relief. Our supreme court de scribed

the stand ard of r

eview a s follows:

Becau se a petitioner

must estab lish both pr

ongs of the test, a failure to prove either deficiency

or prejudice provides a sufficient basis to d eny relief on the ineffectiveassistanc e claim. Indeed, a cour t need not address the components in any particular order or even ad dress both if

the defendant makes an insufficient showing of one co mponent.
Goadv. State , 938 S.W.2d 3 63, 370 (Tenn. 1996 ). On cla ims of inef

fective assistanc e of coun sel, the petitioner is not entitled to the benefit of hindsight, may not second- guess a reasonably based trial st ra te gy, and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v. St ate , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tacti cal dec isions of counsel, however , appliesonly if the ch oices ar

e made a fter ad equate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Ini ti al ly, Attorneys Caroly n Watkins and Ed Thompson, both of the Shelby County Public Defender’s office, represented the petitioner. When the state c hose no t to seek the de at h p en al ty, Attorney Thompson discontinued his representation. Attorney Watkins represented the petitioner until she left t

he public defende r’s offi ce seve

ral monthsbefore

his trial. Watkins was replaced by Attorney Betty Thomas, a

lso of the public defender’s office. Attorney Thomas repres ente d the petitioner throughout his trial. Attorney Mark Ward became the petitioner’s attorney shortly after the trial and continued his representation through the supreme court’s denial of permis sion to appeal.

The petitioner asserts that Attorney s Watkins and Thomas were ineffective because they failedto properly investig ate. At the evidentiary hearing the petitio ner claimed that Attorney Watkins failed to

interview Yvette Stewart, Dominique Beal, Marg aret Dowell and Linda Wallace, all of whom he identified as potential witnesses. According to the petitioner, Stewart would have testified that the petitioner asserted his right to counsel prior to being questioned by

police and giving his confession. The petitioner claimed that Dominique Beal would have confirmed that a th

ird party actually fired the sh o t that killed Venita Swift. Finally, the def endant contended that Dowell and Wallace, his sisters, would have provided testimony f avorable to the defense.

At the evidentiary he aring, Attorney Watkins testified at

the hearing that both she and Ralph Na ll y, an investigator with theShelby County Public Defender’ s office, attempted to interview the witnesse s. She reca lled tha t some potential witnesses who lived in the neighborhood where the murder occurred were reluctant to cooperate. She described others a s hostile. Attorney Watkins testified that she spoke with Linda Wallace and Marg aret Dowell and determined that neither had any releva nt informa

tion about

the crime s. Nally

testifie d that he d

id, in fact, locate

and interview Yvette Stewart, who was su

bpoenae d as a witness and was p resent a t a pre-t rial s uppre ssio n heari ng. Nally contended that the

informat ion provid

ed by the petiti oner as t

o names and addresses of other-4-

witnesses was largely

incorrect or incomplete. Attorney Thomas testified that she spoke with several witnesse s, including Yvet te Stewar t. She desc

ribed the informat ion she received a s unhelpf ul.

The petitioner also testified that neither Attorney

Watkins nor Attorney Thomas visited the crime scene or arrang ed for independe

nt ballistic s tests of

the gun or shotgun pellets, thereby rendering their assistance ineffective. Attorney Watkins countered that

both she a

nd Nally visited the crime sceneduring t

heir inve stigatio n. She test ified tha t she did not believe ballist

ics tests w ould be helpful because the defendant, who admitted shoot i ng the victim, cla

imed it wa s accide

ntal. Attorney Thomas confirmed that

the defense theory was tha t the shooting of the victim was an accide nt. Attorney Thomas stated that she was surprised

when the defendant ultimately testified at trial that a third person shot the victim.

At the conclusion of the hearing, the trial court accredited the account provided by d efense counsel and det ermine d that the failure to procure ballistics tests under those circumstance s was reasonable. The trial court also found that both Attorney Watkins and Attorney Thomas conducted an adequate investigation of the case.

In our view, the evide

nce doe s not prep onderat e aga inst those f

indings. The petitioner has failedto show that Attorney Watkins an d Attorne

y Thomas wer

e defic ient for t

heir fa ilure to adequa tely interview witness es or the ir failur e to arrange ballistics testing . Certain ly, he was un able to establish how more exten sive inter views would have a ssisted his defense and has b een una

ble to indi cate ho w he was preju diced by the fai lure o f his a ttorn eys to see k ball isti cs tes ting.

Ad di ti on al ly, the petitioner argues that Attorney Watkins was ineffective because she failed to file a moti on for spe edy

tria l. The petit ione r tes tifie d tha

t he a sked

Attor ney Wa tkins to file a motion for speedy

trial shor tly a fter his a rrest. When she failed to do so, the petitioner filed a pro
se motion for

speedy trial in Mar

ch of 1993. The motion was heard and denied by

the trial court in February of 1994. The record contains no explanation as to the delay in the hea

ring of the motion. Attorney Watkins tes tified tha

t, at the time of this proceeding, the petitioner had a diffe rent, unrelated murder case pending in another division of the Shelby County Criminal Court. She stated that she didnot file a motion for speedy trial because she wanted to insure that each c ase proceeded at the same speed. It was he r primary stra

tegy that the one case not be used in the trial of the other as an aggrava

ting circumstance. The trial court made no f indings of fact regarding

this issue.

Alth ough the trial

court should have s pecific ally addressed

this question, it is our view that
a strateg y th at aimed t

o prevent the dispos ition of one of the c ases fr om causin g a disa

dvantag e in the other would qualify a s sound. More importantly, the petitioner has f ailed to show that he was prejudiced

by counsel’sdecision not to seek an expedited trial. As more thoroughly discussed in the remaining portion of this opinion, the petitionerwas unable to establish that the delay led to the loss of evide nce, disa ppeara nce of w itnesses, or failur e of memo

ries.-5-

The petitione

r also arg ues that A

ttorney Thomas wa s ineffective be cause sh e failed to adequately

review the materials provided to her by Attorney Watkins, fa

iled to competently arg

ue his motion to sup

press, f ailed to o bject to a n amendme

nt of the indictment, failed to eff ectively contest the state’s theory

of transferred intent, and failed to adequa tely prepar

e jury instructions. The petitioner also claims that Attorney Thomas wa s prejudiced against him bec ause her brother was killed in a gang-related homicide. Attorney Thomas testified that she did, in fact, review all materials given to her by Attorney Watkins. She also st

ated tha t she lodg ed an objection tothe amendment of the indictment one week before trial and

tried to block a jury instruction on transf erred intent. Th

e trial c ourt over

ruled bot h of her objections. Attorney

Thomas co ntended t

hat her b rother’ s death

did not interfere in any

way with her representation of the petitioner.

The trial court accredited the account provide d by defense counsel and concluded that the petitioner had failed to present any evidence to subs tantiate his claims. In our view, the evidenc e does not preponderate agai nst the finding that the petitioner received the ef fective assistance of counsel a t trial.

The petitione

r asser ts th at his appel late counsel, Mark Ward, was also ineffective. He contends that Attorney Ward fa iled to maintain adequate communications during the course of the appea l. A ttorney Ward ref uted the claim, insisting that he spoke with the petitioner and communicatedby severa

l letters during the pendency of the appeal. Attorney Ward also produc ed the correspondence between he a nd the petitioner. All of the le tters, wh ich were signific ant in number, made ref

erence to the issue s to be pre sented on appeal.

The trial court found that

the petitioner failed to demonstrate that he was prejudiced by any limitations in the communications he had w ith hi s appellate counsel and concluded that the proof didnot suppor

t the c laim of a failure of communication. I n our view, the record supports the determination that there was adequate communication betwee n the petitioner and his counsel throughout the ap

pellate p rocess.
The petitioner also claims that Attorney Ward w as ineffective for failing to prese nt various issues on direct

appeal. Attorney

Ward, however, testified that he thoroughly reviewed the mater ials from the petiti oner’s t

rial and chose to p

resent o nly

the stron gest iss ues. I

n his opinion, the ot

h er issues the petitioner asked to raise lacked merit. Genera lly, the determination of the issues to present
on appeal addresses itself to the profe ssional jud gment a nd sound di scretion

of appellate cou

nsel. Cooper v. State, 849 S.W.2d 744, 7 47 (Tenn. 1993). The trial court accredited the testimony of appella te counsel, finding

neither deficie ncy in his per

formanc e nor pre

ju dice in the record. The petitioner has failed to show that any omitted gr ounds would have merited relief if timely presented on direct appeal. Thus, the petitioner is not entitled to relief.-6- II The petitioner next argues that he was denied the rig ht to a speedy trial in violation of the Sixth Amendment of the United States Constitution and Article 1, § 9 of the Tennessee Constitution. The defendant, as indicated, failed to raise this issue on direct appe al. Tennessee Code Annotated § 40-30-206 governs the concept of wa iver: (g) A groun

d for relief is waived if the petitioner personally or through an attorney fail ed to present it for determination in any proceeding before a c ourt of compete nt jurisdiction in whic

h the gr ound coul d have been prese nted unle ss: (1) The claim for

relief is based upon a constitutional right not recognized as existing at the time

of trial i f either

the fede ral or sta te constit ution requ ires retroactive application of that right; or (2) The failure to present

the ground was the

result of state action in violation of the federal or state constitution.

Tenn. Code Ann. § 40-30-206(g). Beca use the claim of a speedy trial violation was available on direct appeal, technic ally

speaking, the issue has been waived. More importantly, had the

issue been presented on direct appeal, the petitioner would not have been entitled to relief.

The right to

a speedy trial is, o f course , constitu tionally based. U.S. Const. amend. VI; Tenn. Const. art . I, § 9. Rule 48 o f the Ten nessee R ules of Cr iminal Proc edure pr

ovides asfollows:

If there is unnecessary

delay in prese nting the charg e to a grand jury

agains t a defendant who has been held to answer to the trial court, or if there is unnecessa ry delay in bring ing a de

fendant to tria l, the cour t may

dismiss the

indictmen

t, present ment, info

rmation or

complain t.
Tenn. R. Cr

im. P. 48(b) ; see also

Tenn. Code Ann. § 40-14-101.

In State v. Bishop , 493 S.W.2d 81 (Tenn. 1973), our supreme court adopted a four-fa ctor analy sis for determining whether one has be en den ied hi s enti tlem ent to a speed y trial. A dopt ing a test first established in Barker v. Wingo , 407 U.S. 514 (1972), our high court created a ba lancing test based up on the following f actors: (1 ) t he le ng th of

th e d el ay; (2) the r eason fo r the del ay ; (3) whether the defendant asserted a claim to his right; and (4 ) w he th er th e d ef

en da nt wa s p re

ju di ce d b y th e d el ay. Bishop , 493 S.W.2d at 84. The length o f the del ay is a trig gering

mechani sm. Until the

re is some delay which is presumptively prejudicia l, characterized in some federal and state c ases as being from
one to two y

ears, there is no

necessity f

or inquir y in to the othe

r facto rs. Barker , 407 U.S. at 530. Prejudice, th e most im

portant of the considerations, is assessed in light of three interests to the-7-

defenda nt: (1) to prevent

oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the accused; and

(3) to limit

the possib ility

that the d efense will be impaired. Id. at 532. “Serious crimes are . . . expected to take longer than ‘or dinary stree

t crime [s].’” State v . Thomas , 818 S.W.2d 350, 362 (Tenn. Crim. App. 1991) (quot ing Barker , 407 U.S. at 531) (alterationin original). Some courts have held that “a two-y ear delay is not inordinately long.” Id. at 363 . Other c ourts, however, have found

that a delay of

one yea r or longer “marks the

point at which courts deem the delay unreasonable enough to trigg er the Barker inquiry.” Doggett v. United States , 505 U.S. 647, 652 n.1 (1992). Because there was a twenty- seven-month delay from the p etitioner ’s arre st until his trial, thi s court mu st conside r the othe r facto rs.
The second Barker

factor, the reason for the delay , gene rally falls into four categories: (1) intentional delay by

the state to gain a tactical advantag e or harass thedefendant; (2) negligenc e; (3) delay necessary

to effectively

prosecute the case; and (4) delay caused b y or acquie sced in by the defenda nt. State v. Wood , 924 S.W.2d 342, 346-47 (Tenn. 1996). Intentional delay to g ain undue advan tage or

harass t he defe ndant we ighs hea vily agains t the s tate, whil e delay th rough t he sta te's negligence

is given sl

ighter weight

. The third type of de lay, that which is nece ssary to prosec ute the case, does n ot wei gh in favor of or against either party , while delay c aused by the de fendant weighs agains tthe defendant. Id. Here, the reasons for the delay are unc lear fr

om the re cord. Th

ere is lit tle which sugge sts th e st ate was res pon si bl e fo r th e de lay. In fact, Attorney Watkins testified that the delay was necessary

because the petitioner had two murder cases p endin g a t the same time. She stated that she wanted both charges to proceed at the same pace so that the petitioner would not have the disad vantag e of a pr

ior convi ction at th

e time of h

is trial. Because this court has accepted that position as a sound strategy , this factor weighs favorably for the state.

The third factor is the d

efenda nt's ass ertion of

his speedy trial rig

ht. Of course, the defendant is under no

duty to bring himself to trial. In conseque nce, the absence of a

demand for a speedy

trial does not amount to a waiver of the issue. Bishop , 493 S.W.2d a t 84. None

theless, the timelin

e ss of the demand is a factor to be considered when determining whether the defendant ha s been denied his right to a speedy

trial. Id. Here, the defendant filed a pro se motion for speedy trial in March of 1993, three months after his indictment. Thetrial was two yea rs later. In conseque

nce, this factor weighs in favor of the petitioner.

Fi na ll y, this court

must consider what prejudice, if any , the petitioner suffered because of the de la y. The petitioner was indicted on December 15, 1992, and tried on March 28, 1995, a delay of
sometwenty-seve

n months. The record contains no more than the bare accusations of the petitioner that evid ence has been lost, witnesses have disappeared, or memories f aded. The petitioner has offered no proof to show he suffered any disadvan tage in the presentation of his defense. Without condoning the lengthy

period of pretrial incarc eration , it is our view that the prejudice factor weig hs favora bly for the state. Overall, the Barker factors weigh f

avorabl y f or the sta te. Thus, the issue

is without me

rit.-8- III Las tl y, the petiti oner cla

ims that the

prosecu tion introd

uced as impeachm

ent evidence h is pending murder case in violationof his Fifth Amendment rights and in contravention of Tennessee Rule of Evidence 404(b). He has not explained why the evidence was admitted or cited any authority in support of his claim. Because this issue was available on direct appeal, but no t presented , the issue may be trea

ted as waived. See Tenn. C ode Ann. § 40-30-2 06(g). Further , the rec ord is inadequ ate for a re

view on the merits. The rec ord conta ins nothing

from whic

h this cour

t could glean the circumstances under which evidence of the petitioner’s pending murder case wa s admitted. It is the duty of the appellant to pre pare a comple

te and ac curate

record on appea l. Tenn. R. App. P. 24(b). Failure to prepare an a dequate record for

review r esu lts in the waiver of that issue. Thompson v . State , 868 S.W.2d 156, 172 (Tenn. Crim. App. 1993). Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE