# FILED
March 11, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1999 SESSION

CHARLES HA

YNES, ) ) C.C.A. NO. 01 C01-9803-CC-00142 Appellant, ) ) HICKMAN COUNTY VS. ) ) HON. CORNELIA A. CLA RK, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
JUDSON W. PHILLIPS JOHN KNOX WALKUP 315 Deaderick St., Suite 2395 Attorney General & Repor ter Nashville, TN 37238-2395 (On Appeal) DARYL J. BRAND Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 RON DAVIS District Attorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner was indic ted by the Hickman Countygrand jury for firstdegree murder. The petitioner’s first tri al resulted in a hung jur y. At his second tria l, he
was found gu ilty by a jury of the indicted char ge and sentenced to a

term of life in prison. On direct appeal, the

petitioner’s convic

tion wasaffirmed. The petitioner subsequently filed a petiti on for pos

t-conv iction relief. After a hearing, the post-conv iction court denied the peti tion. Th e petitioner now appeals an d contends that he did not receiv e the effect ive assistance of counsel and that new ly discovered ev

idence exists that would entitle him to a new trial. After a review of the evid ence and the applicable law , we find
no merit to the petitioner’s contentions and thus affirm the low er c ourt’s denial of his petitio n for pos

t-conv iction relief.

The petitioner’s convic tion stemmed from the murder of an inmate at the Turney Center correctional

facility. The proof at tria l established that the petiti oner and his cellmate, Nathaniel Fleming, approacheda newly transferred inmate, Alton Hunter, and while the petitioner held Mr. Hunter, Mr. Flemin g sta bbed Mr. Hunter once in the neckand once in the chest. After the s tabbing, the petitioner and M r. Fleming hid the weapon under

a nearby building and l eft the area. Mr. Hunter managed to st agger to a nearby correctional officer but he di ed en route to the hospital. At tr ial, the main witness forthe prosecution was an i nmate, Thomas Mitchell, who claimed to have seen the entire incidentfrom his cell window . Mr. Mitchell posi ti vel y identified the petitioner and Mr. Fleming as the assailants who killed Mr. Hunter.

Under the Post-Conviction Pr ocedu re Act of 1995, the petitioner has the burden of proving the factual all egations in his or her petition by clear and con v in cing evidence. T.C.A. § 40-30-210(f). Further more, the factual findings of the trial court in3

hearings “are conclusive on appe al unless the evidence pr eponde rates against the judgment.” State v. Buford , 666 S.W.2d 473, 47 5 (Tenn. Crim. App. 1983).

The petitioner now claims that he receiv ed the ineffective assistance of counsel. He contends that his attorney s failed to adequately inves tigate the facts of and the witnesses

to the case, that his attorneys’ cross-examination of the prosecution’s star witness was hindered by the tr ial court’s denial of a req uest for a copy of the transcri pt of the first trial, and that they failed to call a witness with ex culpatory information to the witness stand.

In reviewing the pe

titioner’s Sixth

Amen dment cl aim of in effect ive assistance of counsel, this Court must determine whether the advice given or s ervice s rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). T o prevail on a claim of ineffective assistance of counsel, a petitioner “must show that counsel’s representation fell below an objectiv e standard of reasonableness” and th at this performance prejudiced the defense. There must be a reasonable pr obability that but for counsel’s error the result of the proceeding would hav e been different. Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984) ; Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

In the case at bar, the petitione r fir st contends that his attorney s failed to adequately investigate the facts of the case and witnesses to the case. However, th e proof at the post-conviction hear ing showed that the petitioner’s attorneys w ent to Turney Center and inte rv iewed possible witnesses. The attorneys req uested, and received, a private investigator w

ho videotaped and took pictures of the view from Mr. Mitchell’s cell window while two men stood i n the same areawhere the pe titioner and Mr. Fleming4

supposedly stood during the commissio n of the cr ime. The attorneys used this videotape and the pictures at trial in an effort to discredit Mr. Mitchell’s i dentification. The attorne ys also procured Mr. Mitchell’s infirmary r ecords on the night of the inci dent in an
e ffort to discredit his testi mony. As Mr. Mitchel l had testified that after witnessing the murder he began to have stomach pro blems and w ent to the infirmary, the petitioner’s attorne ys tried to use that information to help prove that Mr. Mi tchell was

having problems with his ulcer as a result of drinking alcohol. The petitioner’s attorneys tried to establish that Mr. Mitchell had been drinking earli er that day and, as a result, was unable to make
a reliable identification of the assailants. At the post-conviction hear ing, Ms. Story, one of the petitioner’s attorneys, testified that she had worked “v ery diligently

” on this case. In light of the fo regoing, th e petitioner has failed to prov e by clear and convin cing evidence that

his attorneys did not adeq uately investigat e the facts and circumstances of his case or

that the evidence preponderates ag ainst the post-convicti on court’s finding that he received the effective assistance of counsel. As such, this contention is wi thout merit.

The petitioner further contends that he receive d the ine ffecti ve assistance of counsel because his attorney s’ cross-examination of Mr. Mitchell was hindered by the trial court’s denial of their r equest for a copy of the transc ript of the first trial. The S tate contends that this issue is waived as it was previously determined in the petitioner’s direct appeal. However, absen t waiver, this issue is with out merit. At the post-conv iction hearing, Ms. Story testified that although she did not have the actual transcript of the first trial, she did have the audio tapes of the first trial from which typed transcripts of the most crucial testimony were made. M s. Story also testified that even if the actualtrial transcript had been available to

her, she doubted that it would have r esulted in a different verdic t. Based on the forego ing, the pe titioner has failed to prov e by clear and convin cing evidence that his attorneys’ representation fell below an objectiv e sta ndard of5

reasonableness or that the result of the procee ding would have been di fferent. As such, this contention is without merit.

The petitioner

also contendsthat he received the ineffectiv e assistance of counsel because his attorneys did not call Willie Wilson, an alibi witness, to the witness stand. At the post-convicti on hearing, Ms. Story testified that shedid not call Mr. Wilson to the stand because his testimony was not as stable as the other alibi witnesse s’ testimony

and she did not want to put s everal witnesses on th e stand wh o would say essentially the same thing. In addition, she testified th at she did not want to give the district attorney the chance to expose any inconsistencies in the alibi witnesses’ stories, and she wanted to use the alibi witnesses with the least criminal history. Ms. Story also believed that Mr. Wils on had k nowledge of a possible motive behind the murder. Ms. Storyadmitted that her decision not to call Mr. Wilson as a witness was a tac tical decision based upon the facts and circumstances surrounding the case.

This Court has held that it shoul d not second-guess trial counsel’s tactical and strategic choices unless those choices were uninformed beca use of inadequate preparation, Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should n ot be deemed to have been ineffective merely because a different procedure or strategy might have produced a different result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). The petitioner has failed to prove by a preponderance of the evidence that his atto rneys’ decision not to call Mr. Wilson as a witness w as an uninformed cho ic e resulting from inadequate preparation. In addition, the petitioner has failed to prove that had Mr. Wilson been called as a witness, the result of the trial would hav e been different. Strickland , 466 U.S. at 668, 687-88, 692, 694. As such, this contention is without

merit.

The petitioner next contends that he is entitled to a new trial on the

basis6

of newly discover

ed evidence, the recanted tes timonyof Thomas Mitchell. At the postconviction hearing, Mr. Mitc hell testified that he had lied at trial, had been coe rced by correctional offi ce rs, and had received his information regarding the crime from those officers. However, relief under the Post-Conviction Procedure Act is granted only for the abridgement

of a constitutional right.T.C.A. § 40-30-203. This Court has previously held that recanted testimony “amounts to no more than a request to relitigate the sufficiency of the evidence at

trial, which a post-conviction pro ceeding may not be employe d to do.” George Massey v. State , No

. 1121, Knox County (Tenn. Cr im. App. filed November 5, 1987, at Knoxville); see also Jerry Dwaine C ammuse v. State , No. 01C01-9709-CR00440, Davidson County (Tenn.Crim. App. filed July 2,1998, at Nashville)(on rehearing). As a sufficiency of

the evidence issue does not rise to thelevel of a c

onstitution al claim, the petitioner’s contention does not state a proper ground for post-conv iction relief under T.C.A. § 40-30-203.

In sum, we find no merit to the petitioner’s cl a im of ineffective assistance of counsel or his request for a new trial on the basi s of newly discove red evidence. Accordin gly, we affirm the trial court’s dismis sal of th e petitioner’s post-conv iction petition.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ THOMAS T. W OODALL, Judge