IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 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, contending 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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES

CURWOOD WITT, JR., JJ., joined.

Steven L. West, McKenzie, Tennessee, attorney for the appellant, Antwain Laman Spears.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General; G.

Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

On September 16, 1996, a jury convicted the petitioner, Antwain Laman Spears, for

possession of more than one-half gram of cocaine with intent to sell or deliver, a Class B felony;

possession of less than one-half gram of marijuana with intent to sell or deliver, a Class E felony;

and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced as a Range II,

multiple offender to concurrent sentences of fifteen years incarceration, three years, and eleven

months, twenty-nine days, respectively. The defendant appealed, and we affirmed the convictions.

SeeState v. Antwain Laman Spears, No. 02C01-9705-CC-00170, Carroll County (Tenn. Crim. App.

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

relief, which the trial court denied. From this denial, he appeals and contends that he received the

ineffective assistance of counsel. He argues that because his trial counsel failed to move for the state

to disclose the identity of a confidential informant and to subpoena that individual to testify at 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.
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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 warrant relied upon 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 and also on appeal.

The petitioner testified that none of the contraband found during the search 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 opportunity to cross-examine the informant, 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 actively raised by counsel for the defendant and pursued completely

through the appellate process to no avail, . . . any issues relating to the search have been previously

determined by [a] court of competent jurisdiction and therefore cannot provide grounds for postconviction relief.” The trial court further found that the petitioner was not deprived of the effective

assistance of counsel. The court stated that 

any actions by trial counsel to force the disclosure of a confidential informant would

have been fruitless. It is obvious that any information furnished by the confidential

informant simply supported the probable cause for the issuance of a search warrant.

There is no indication that the confidential informant would have been a material

witness or a “transactional witness” to the defendant’s criminal activity. There is

nothing in this record to indicate that the informant’s identity would have been

required to have been disclosed to the defendant or defendant’s counsel.

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 unfair. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under Article I,

Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within the

range of competence demanded of attorneys in criminal cases. Further, the court stated that the range

of competence was to be measured by the duties and criteria set 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 counsel’s conduct, a “fair assessment of attorney performance 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
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perspective at the time.” 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 regarding the effectiveness of counsel 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 of the confidential informant would have been fruitless.

The petitioner contends that if his trial counsel had moved for disclosure of the informant’s identity,

the state would have been required to disclose it because the informant was a material witness. See

State v. Brown, 823 S.W.2d 576, 586-88 (Tenn. Crim. App. 1991). He asserts in conclusory fashion

that the informant was the only person who could link the petitioner to the drugs and drug

paraphernalia. However, the defendant 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 the contrary, the search warrant was issued “for cocaine and drug paraphernalia seen

in the residence by a confidential informant.” Antwain Laman Spears, slip op. at 2 (emphasis

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 defendant

admitted at trial that he owned the baseball caps under which the drugs were found. In short, the

informant was not the only person able to link the petitioner to the drugs and drug paraphernalia.

The petitioner has offered no evidence which trial counsel could have used to argue that the

informant’s identity should have been disclosed. The petitioner has failed to carry his burden of

showing that the record preponderates against the trial court’s finding that his trial counsel’s

performance was not deficient.

Based upon the foregoing and the record as a whole, we affirm the trial court’s denial of the

post-conviction petition.

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JOSEPH M. TIPTON, JUDGE