### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs N

ovember 8, 2000
ANTWAIN LAMAN SPEARS v. STATE OF TENNESSEE
Appeal from the Circuit Court for Carroll County No. 96CR0915 C. Creed McGinley, Judge

No. W2000-01167-CCA-R3-PC - Filed January 9, 2001

The petitioner appeals the trial court’s denial of his post-conviction petition, contend ing that he received ineffective assistance of counsel. We affirm the trial court’s denial of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the op inion of the court,

in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined.
Steven L. West, M

cKenzie, Tennes see, attorney for the appellan

t, Antwain Lam

an Spears.

Paul G. Summers, Attorney General and Reporter; Luc ian D. Geise, Assistant Attorney General; G. Robert Radford, Distric

t Attorney G

eneral; and Elea

nor Cahill, Assistan

t District Attorney

General, for the appellee, State of Tennessee.
OPINION

On Se pte mber 16, 1996, a jury convicted the petitioner, Antwain Lama n Spears, for possession of more than one- half gram of co

caine with intent t

o se ll or deliver, a Cl ass B fel ony; possession of less than one-h alf gram of mar

ijuana with intent to

sell or deliver, a

Cla ss E fel ony; and posse ssio n of dr ug para phern alia, a Clas s A mis demea nor. H e was s enten ced as a Rang e II , multiple offender to concurrent sentences of fifteen y ears incarceration, three yea rs, a nd eleven months, twenty-nine days, respec tively. The defendant appealed, and we affirmed the co

nvictions. See State v. Antwain Laman Spears , No. 02C01-9705-CC -00170, Carroll Cou

nty (Tenn. Cr

im. App. July 1, 1998), app. denied(Tenn. Jan. 11, 1999). The petitioner filed a petition for post-conviction relief, which the

trial court denie

d. From this

denial, he appeals and contends that he received the ineffective assistance of counsel. He argues that

because his tria

l counsel failed to

move for the state to disclose the identity of a confidential informant and to subpoena that individual to testifyat trial, he was denied the right

to cross-examine and confront his accuser. Because the petitioner has failed to show that his trial counsel performed deficiently, we affirm the trial court’s denial of the petition.-2-

At the evidentiary hearing, the petitioner’s trial attorney testified that he

could not deny that the petitioner may

have requested him to obtain the confidential informant’s presence at trial. He said that the affidavit underlying the search warra nt reliedupon a confidential informant and that the informant had been in the proximity during possession of or transaction with the drugs. He stated that he did not file a motion for disclosure of the informant’s identity but that he did raise the issue of the legality

of the search in a

motion to suppress a

nd also on appeal.

The petitioner testified that none of the contraband foun d during the sea

rch belonged to

him. He stated that he requested his attorney to obtain the confidential informant’s presence at trial and that he would like to

have the opportun

ity to cross-

examine the informa

nt, whose identity

he still did not know.

The trial court denied the post-conviction petition, finding that because “the issue of an unconstitutional search was act ively raise

d by counsel

for the defenda

nt a nd pursued comple

tely through the appellate pr

ocess to no avail, . . . any issues relating to the search hav

e been previousl

y determinedby [a] court of competent jurisdic

tion and therefor

e cannot provide

grounds f

or post

conviction relief.” The trial court further found that the petitioner was not deprived of the effective assistance of co

unsel. The court s

tated that

any actions by trial counsel

to force the disc

losure of a confi

dential informant

would have been fruitless. It is obvious that any information furnished by the confidential informant simply suppor

ted the probable c

ause for the issua

nce of a searc

h warrant. There is no indication that the confidential informant woul d have been a material witness or a “transacti

o nal witn ess” to the defen dant’s criminal a

ctivity. The

re is nothing in this record to i ndicate that the informant’s identity would have been required to have

been disclosed to t

he defendant or

defendant’s co

unsel.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is upon the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial was unreliable or the proceedings fundamentally unfa ir. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) ; see Lockhart v. F retwell , 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). The Strick land standar d has b een ap plied to th e righ t to co unsel under Artic le I, Section 9 of the TennesseeConstitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 9 30, 936 (Tenn. 1975), our supreme court decided that att orn eys sho uld be held to the general standard of whether the services rendered w ere within the range of competence demanded of attorneys in criminal cases. Further, the court stated tha t the range of competence was to be measured by the duties and criteria se t forth in Beasley v. United States , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCoster , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in

reviewing coun

sel’s conduct, a “

fair assessment of attorney performance requires that every effort be made to eliminate the distorting effec ts of hindsight, to reconstruct the circumstances of cou n sel’s challenged conduct, and to evaluate the conduct from counsel’s-3-

perspective at thetime.” Strickland , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). “The findings of fact of the trial judge on a petition for post-conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence in the record preponderates against those findings.” Henley
v. State , 960 S.W.2d 572, 578- 79 (Tenn. 1997) (citation omitted). However, we review the trial court’s conclusion reg

arding the eff

ectiveness of co

unsel de novo because it involves a mixed question of law and fact. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999)

. The trial court

found that the petitioner’s trial counsel was not deficient because any attempt to move for the state

to disclose

the identity o

f the confidentia

l informant would ha

ve been fruitles s. The petitioner

contends that if his trial counsel had mov ed fo r di scl osu re of the inf orm ant ’s i den tit y, the state would have been required to disclose

it because the informant was a material witness. See Statev. Brown , 823 S.W.2d 576, 586-8 8 (Tenn. Crim. App. 1991). He as serts in conclusory fashion that the inf orm ant was the onl y person who could link the petitioner to the drugs and drug paraphernalia. However, thedefendant did not present any evidence at the evidentiary hearing that the confidential informant was a material witness or that the informant participated in the criminal activity

. To t he contrary, the search warrant was issued “ for cocaine and drug paraphernalia seen in the residence by a confi dential inf

ormant.” Antwain Laman Spears , slip op. at 2 (empha sis added). Moreover, the trial testimony of the lessee of the residence connected the petitioner to the items in the bedroom in which the drugs and drug paraphernalia were found. Also, the def endant admitted at trial that he owned the baseball caps under which the drugs were found. I n sh ort, the informant was not t

he only person able to link the petitioner to the drugs and drug paraphe rnalia. The petitioner has offered no evidence which trial counsel could have used to argue that the informant’s identity should have been disclosed. Th e petitioner has failed to carry his burden of showing that the record p reponderates a

gainst the trial c

ourt’s finding t hat his trial counsel’s performance w

as not deficient.

Based upon the foregoing and

the record

as a whole, we affirm the trial court’s denial of the post-conviction petition.

___________________________________ JOSEPH M. TIPTON, JUDGE