### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M arch 19, 2002
WILLIAM BRIAN BELSE R v. STATE OF TE NNESSEE
Appeal from the Criminal Court for Knox County No. 70981 Ray L. Jenkins, Judge

No. E2001-01541-CCA-R3-CD July 9, 2002

The petitione

r, William B rian Be

lser, ap peals the trial cou rt’s den ial of his p eti tion for postconviction relief. In thi s appeal , the petitioner a sserts that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirme d.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT W. W EDEMEYER , JJ., joined. Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, William Brian Belser.

Paul G. Summers, A

ttorney Genera l & Repor ter; Jennif

er L . Bledso e, Assista

nt Attorne

y General ; and Robert L. Jolley , Assistant DistrictAttorney Gene ral, for the appellee, the State of Tennessee.
OPINION

The petitioner was convicted of second degree murder

for the 1993 shooting death of Brian Shaver. Because the trial court failed to instruct the jury on the les ser inclu ded offe nse of voluntary manslaughter, this court

reversed the petitioner’s conviction and remande d the caus e for a new trial

. See State v. Belser , 945 S.W.2d 776 (Tenn. Crim. App. 1996). On retrial , the petiti oner wa s again convictedof second degree murder and was sentenced to a ter m of 25 years. The

conviction and sentenc e were a ffirmed by this court. See State v. William Brian Belser , No. 03C01-9803-CR-00110 (Tenn. Crim. App., at Knoxville, Feb. 25, 1999). The petitioner then filed a timely petition forpostconviction relief alleging

that his trial counsel was ineffective for advising him against testifying

on his own behalf; failing to adequately consult with him prior to trial; failing to call Angela Barbea u, who had testif

ied at th e first trial, as a witnessin the sec ond trial; and failing to ef fective ly crossexamine witnesses for the state. At the evidentiary

hearing, the petitioner testified that his trial counsel, Thomas Slaughter, consulted with him for only seven hours prior to trial . The pet

itioner e xplained th at prior t

o his-2-

secondtrial, he

was inca rcera ted in a f ederal penitent iary in Atlanta . Accor

ding to th e petitioner, his trial counsel visited him once in Atlanta for approximately two hour s. After the petitioner was transferred to Knoxville for trial, trial counsel visited him twice for a total of four or f ive hours.

The petitioner also claimed that, while he expected to testify on his own behalf a s he had at the first tria

l, his tria l counsel advised h

im a gainst testifying. Ac cording to the petitioner, trial counsel believed that the state, at the close of its proof, had failed to dem onstrate the petitioner’s guilt beyond a re asonable doubt and that the best course of action would be t

o present no proof. The petitioner stated tha t he agr eed with h is trial counsel’s assessment of the case at that point, explaining that they both believed that the state had, at most, established a voluntary manslaug hter. The petitioner recalled that his trial counsel informed him that if he chose t o testify, he c ould be impeached

with the prior inconsistent statements he gave to police after his ar rest, his testimony at the first trial, and the two felony convictions he had rec eived since the first trial. The petitioner stated tha t while he wanted to

testify , he left

the deci sion up to hi s trial counsel.

Fi na ll y, the petiti oner cla imed that h

is trial c ounsel wa s ineffe ctive fo r failingto crossexamine certain witnesses for the state with their reported testimony from the first trial. According to the pe titi oner, even t hough he had pointed out to his trial counsel inconsistencies in the testimony of severa l witness es, couns el failed to question the witnesses regarding the inconsistencies. Trial counsel explained

that the inconsiste

ncies r ef erred to by

the petitioner were not damaging to the defense . It w as his vie w that he a dequate ly c ross-exa mined ea ch of the state’s witnesses.

Trial counsel testified at the evidentiary hearing that because he

had access to the record from the petitioner’s first trial, it was not necessary that he consult with the petitioner for a g reater length of time. While acknowledging that he wou ld have liked more time to consult with the petitioner prior to trial, he contended

that the brevity of their pr etrial contact

did not adv ersely

affec t his ability to effectively

repr esent the petitioner. Trial counsel also testified that he advised the petitioner agains ttestifying a

t trial due to h is pr ior convictions. He expressed concern that the petitioner’s testimonyat th e f

ir st tr ia l w as in co ns is te nt wi th a t he or y of se lf -d ef en se or de fe ns e o f a th ir d p ar ty, which was the th

eory that was r

elied on at the second trial. Trial counsel explained that the petitioner had testified at the first trial that he was neither angry at the victim nor

fearful of him on the night of the shooting. Moreover, the petitioner had de monstrated to the jury in the first trial how he had held the gun with both hands and used the laser sig ht to aim at

the victim , testimony that trial counsel believed was particularly damaging. Trial counsel further stated that

while it wa s difficult to present a theory of self

-defense without the petitioner’s testimony , he believed that the testimony would have been more detrimental than helpful. Trial counse l spec if ic al ly denied refusing the petitioner the right to testify . He conceded that some of his clients had taken the stand agains this advice. Trial counsel cou ld not rec all prec isely

the excha

nge he had with the pet itioner, but did remember that the petitioner did not insist on taking the stand.

The petitioner argued that his trial counsel was ineffective for fail ing to ca ll Angela Barbeau
as a witness. Accord ing to the pe titioner, Ms. Barbeau was the only witness to the shooting. He stated that he ha

d killed the

victim to pr

otect Ms. Barbe au. The p etitioner conced ed that Ms

.-3-

Barbeau had giv en numer

ous, incon sistent sta

te ment s regarding the shooting but insisted that her testimonysupported his theory of de fense. Trial counsel testified that he did not call Ms. Barbea u as a witness because she had been a terrible witness at the petitioner’s first trial. He contended that her testimony did not support either a theory of defense of a third person or an ac cidental shoot ing, which wa s the petit

ioner’s theory

of defe nse at the first tria l.

At the conclusion of the hearing, the trial court denied the petition for post-conviction relief, finding that the p etitioner

had fail ed to prov e his allegations by clear and convincing evid

ence. F irst, the trial court specifically

accredited

the testimony of trial counsel and de termined that he had not deprivedthe petitioner of

his right to testify. Secondly , the trial court determined that trial counsel’s decision to present no proof qualified as a sound trial strategy . Finally, the trial cour t found that trial counsel’s decision not to cross-examine the state’s witnesses with minor inconsistencies from the first trial was a tactical decision.

When a petitioner seeks post-conviction re lief on the basis of ineffective assistance of counsel, he must fir st establi sh that the services rendered or the advic e given were be low "t he range of compete nce dema nded of a ttorney s in crimin al case s. " Baxt er v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the defense." Strickland v. Washington , 466 U.S. 6 68, 693 (1 984). Should the pet itioner f ail to establish either factor, he is not entitled to relief. Our supreme court described the standa rd of review as follow s:
Becau se a petitioner must estab lish both prongs of the test, a failure to prove either de fi ci en cy o r p re

ju di ce pr ov id es a s uf

fi ci en t b as is to de ny r e lief on the ineffective assistance claim. Indee d, a court neednot address the components in any particular order or even ad dress bot h if the defendant

makes an insufficient showing of one co mponent.
Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffe ctive as sistance

of counse

l, the petitione

r is not en titled to the benef

it of hindsi ght, may

not secon d-gue ss a reaso nably based trial st ra te gy, and cannot criticize a sound, but unsuccessful, tactical decision made during the cour se of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tacti cal dec isions of c ounsel, ho wever, applies o nly if the ch oic es are made after a dequate preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Under our statutory

law, the petitioner bears the burden of proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of f act made by the trial court are conclusive and will not be disturbed unless the evidenc e containe d in the record preponderates agains t them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the pet

itioner to show that t

he evide nce pre pondera ted aga inst those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).-4-

As to the petitioner's primary complaint, that

he was deprived of the

op po rt un it y to te st if

y, it is well established that

a criminal defendant

has a con stitutiona

l right to give te stimony

under bo th the state and federal constitutions. Momon v. Sta te , 18 S.W.3d 15 2, 157 (Te nn. 1999) . Article

I, section 9 of the Tennessee Constitution has been interpreted to req uir e that “in all criminal prosecutions the accused

has the right to testify

as a witness in his own behalf and to be represented by counsel.” Id. (citi ng State v. Burkhart , 541 S.W.2d 365, 371 (Tenn. 1976)). In Rock v. Arkansas , 483 U.S. 44, 50

(1987), t he United

States Supr

eme Court declared that the right of a cr iminal defendant to testify in his own behalf was e ssential to the due process of law. Becau se the rig ht to testify is fundamental, it may only be waived by

the defendant. Momon , 18 S.W.3d at 161 (citing Jones v. Barnes , 463 U.S. 745 (1983 ); State v. Blackmon , 984 S.W.2d 589, 591 (Tenn. 1998); and Vermily e v. State , 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987)).

In M o mon , our supreme court held that as a procedura l safeguard, the waiver of the defendant’s right to testify should be a ttained through a voir dire of the defendant in open co

urt. Momon , 18 S.W.3d at 162. The court noted, however, that “neither the right to t estify discussed herein, nor the proceduralpr otections adopted to preserve that right are new constitutional rules which must be retroactively applied.” Id. at 1 62- 63. Moreover, our high court stated that the safeguards announced in Momon were prophy lactic in nature and not constitutionally required. Id.

The petitioner’s second trial occurred in 1997, some two y ears be fore the supreme court’s decision in Momon . At that t ime, a voi r dire of th

e defen dant reg arding

his waive

r of the r ight to testify was not required. Prior to the supreme court’s holding in Momon , a petitioner’s claim that his counsel prevented him from testify ing in his own behalf was treated like a ny other g round asserted for a cl a im of ineffective assistance of counsel. See, e .g. , Shone King v. State , No. 01C01-9709-CR-00408 (Tenn. Crim. App., at Nashville, Dec. 30, 1998).
Here, the trial court accredited the testimony of the petitioner’s trial counsel and determined that the petiti oner ag

reed to f ollow cou

nsel’s a dvice ag ainst te stifying in h is own behalf. The petitioner acknowledged that trial coun sel e xp lained hi s right to testify but advise d him aga

inst taking the stand due to the likelihood that he would be impeached with his pr ior inconsistent statemen ts. Further, he had been convicted of two c rimes since the first trial. It is undisputed that the petitio ner had committed two felonies, including the illegal purc hase of a weapon, while awaiting his first tria

l. In a ddition, the petition

er’s tes timony

at his fir st trial w as not con si stent with the theo ryof d efense presented at the second trial. While the defe ndant contended that he shot the victim in self-defense, he had demonstrated to the jury

at the fir st trial ho w he held the gun with both hands and used the laser sight to aim at the victim. Under these circumstances, counsel’s advice that the petitione

r refra in from ta king the stand did not rende r his per formanc e defic ient. Moreover, the petitioner failed to show that c ounsel uni laterally deprive d him of the

right to testify. See Gregory Morgan v. State , No. 03C01-9611-CR-00404 (Tenn. Crim. App. , at Knoxville, Jan. 15, 1999) (holding that petitioner

was not entitled to post-c onviction relief w here his trial cou

nsel advi sed him against, but did not prohibit him from, testifying in his own behalf).-5-

While the petitioner

ass erts that

the outco me of his tr

ial would h ave bee

n differ ent if Ms. Barbeau had testified, he did not call her as a witness at the post-conviction hearing or make any
ass ertion of what her testimony mig ht have been. It was unc ontroverted that Ms. Barbeau’s testimony at the petitioner’s first trial wa s more damaging than favora ble to the defense:

On cross- examination, M s. Barbeau admitted threatening to ha ve the victim’s “ass kicked .” She also c oncede d that af ter she a rgued with the vi ctim somet

ime earlier, an a c quaintance of the defenda nt’s had t hreate ned to bea

t the victi m. Ms. Barbeau also acknowledged several inconsistenc ies between her trial testimony and her pretrial statements to police. She conceded that the defendant was angry

when they went to the vic tim’s cond o that eve

ning an d that she

had over

heard th e defenda nt make ot

her thre ats aga

inst the victim.

Belser , 945 S.W.2d at 781. Under these circumstances, trial counsel’s de cision not to call Ms. Barbeau as a witne ss was a

sound tactical one and cannot serve as a basis for post-conviction relief. See Adkins , 911 S.W.2d at 347.

Fi na ll y, the petiti oner hasfailed to show that h

e was pr ejudice d, in any

way , by the cros sexamination of the wit

nesses f or the sta te or how any f

urther preparation may

have caused a different result. I n summary , the evid

ence do es not pre

pondera te aga inst the tr ial cour t’s findin gs. Accordingly , the judgment of the trial court is affirmed.

_________________________________ GARY R. WADE, PRESIDING JUDGE