### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Novem ber 18, 200 3 Session

LARRY STEPHEN BRUMIT v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Rutherford County

No. F-51873 Don R. Ash, Judge

No. M2003-00488-CCA-R3-PC - Filed May 12, 2004

The petitioner, Larry

StephenBrumit, filed for post-conviction relief from 1996 convictions for two counts of first d

egree murder a nd one co unt of con spiracy

to commit first degree murder. The postconvictioncourt denied the petition. In this appeal, the pe titioner argues (1) that

the petition was not barred by the appli cable st

atute of limitations; and (2) that he was denied the effective assistance of counsel. The judgment is affirmed.

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

G ARY R. W ADE , P.J., delive red the o pinion of t he court , in which T HOM AS T. W OODA LL and N ORMA M C G EE O GLE , JJ., joined. W.H. Stephe

nson, II, Na shville, T ennesse e, for th e appell ant, L arry Stephen B rumit.

Paul G. Summers, Attorney Gene ral & Reporter; Helena Walton Y arbrough, Assistant Attorney Genera l; and William C. Whitesell, District Attorney General, for the a ppellee, State of Tennessee.

OPINION Following a jury trial, the pe titioner was convicted

of two counts of first degree murder, for whichhe received concurrent sente nces of life with parole, and one c ount of conspiracy to commit first degree murder, for

which he received a consecutive sentence of twenty-five

years. This c ourt
a ffirmed the convictions and sentences on direct appeal. See State v. Larry S. Brum it , M1999

- 00154-CCA -R3-CD (Tenn. Crim. App., at Nashville, Apr. 28, 2000). On Decem be r 4, 2000, our supreme court de nied per mission to a

ppeal. I n determ ining tha t the evid ence wa s suffici ent to support th e convictions, this c ourt summa rized the p

roof at tr ial as fol lows:

The charges . . . stem from the shooting deaths of two victims, James Albert “Bubba” Summar, II , and Brian Anthony Bettis. . . . [B]oth victims were discovered dead behind a trailer lo cat ed o n Li berty Gap Roa d in a remote area of Rutherford Co un ty.-2- * * * The [s]tate presented several witne sses who linked the [petitioner] socially to a “circle” of people

who deal

t m arijuana , including Wayne Cartwright and [codefenda nt] Mike Rhodes, with wh om he was known to be friends. Evidence presented at trial also established that [the vict ims] wer e kn own to be f rie nds . In addition, the [s]tate presented evidence that before his death, victim Summar worked as a polic e informa

nt and wa s named in

an indict ment ag ainst Car

twright

. Witnesses testified that both the [petitioner] andco-defendant Rhodes were upset that Summar had been working und er cover with police. Doug Bicknell and JoshSummar both testified that the [petitioner] and Summar did not like each other. Bickne ll quo ted t he [petitioner] as saying that Summar wa s a “punk” and that “he would se e tha t the little

punk would

get wha t was comi

ng to him”

because of his involvement

with police. Bicknell also quoted the [petitioner] as saying that “he let his gun do his fighting for him.” Furthermore, Martin Rhodes stated that he had seen the [petitioner] with a .38 caliber handgun, the same ty pe of weapon which was used to kill Bubba Summar.

Onthe even

ing of th e murders, Summar informed friends that he and Bet tis were to meet

with Rhodes. He took a box of marijuana with him to the trailer. At the same time, Rhodes, who was intoxicated, and the [petitioner] discussed meeting Summar and then went to the

trailer , where

the victim s’ bodies

were la te r f ound. Tabitha Rhodes testified when they returned, the [petitioner] and her husband pulled into her driveway

on the night of the murders so quickly that they startled her

. She stated that while

her husba

nd “rustl [ed] aroun

d on the fl o orb oard,” the [petitioner] “darted out to his car and

left.” B ettis’ pis tol was la ter foun d behind Rhodes’ home. Tabitha Rhodes also reported that the [petitioner] told her, “it did not have to happen that way, that they

drew on him first and he did what he had to do.”

The [p et it io ne r’ s] ro om ma te , D on al d Iv ey, testified that when the [petitioner] arrived home o n the nightof the shootings, he immediately began to wash clothes while he ran

water for a bath. When I

vey jokingly asked the

[petitioner] whether he had killed someone, the [petitioner] first did not respondbut lat er answered, “You can't help being in the wrong place a t the wrong time; can you?” Furthermore, the medical examiner who performed autopsies on the victims’ bodies testified that Bettis likely coug

hed up blood before his death and ag reed that a pe

rson in cl ose proximity to Bettis at the time would likely have been splattered with blood.

The [petitioner] himself admitted his presence at the trailer at

the time of the shooting s. He also presented inconsistent versions of the shootings to police, but insistedthat his co-defendant Rhodes actually fired the shots that k

illed both v

ictims. Inaddition, Lieutenant Detective Gage i ntroduced an audio tape of a conversa tion between the Defendant and co-defenda ntRhodes in which the Defendant made,-3-

among others, t he following statements: “If nothing had ever been said, we' d be walking out today”; and “What was originally agreed on was if they had me, that y ou would take responsibility.”

Id. , slip op. at 2,10-11.

OnDecember 27, 2001, ov er a y ear af ter the d enial of an applic ation for

permission to appeal, the petitioner filed a pro se petition f or post-c onviction

relief a lleging , among

other thin

gs, the ineffectiveness of trial counsel. The post-conviction court a ppointed counsel and set

the matter for a heari ng, expr essing c oncern i

n its writte

n order t hat the pe tition was filed outs ide the a

pplicabl e one-yea r statute of limitations. At the hearing, the post-conviction court initially heard te stimony concerning

the timeliness of the petition but also accepted proof on t he petitio ner’s substantive claims.

Withregar

d to the time liness issu

e, the pe titio ner testified that based on a letter he had received from his appellate counsel, he believed that he had unt il Decem ber 18, 2 001, to fil e his post-convictionpetition. The letter, which was dated December 18, 2000, contained the following information:

Ihave received notice that the [s]tate [s]upreme [c]ourt de nied o ur permission to a ppeal. T his will end my represe ntation of you in this matter. We have now appeale d as far

as I a m able to a

ppeal. You now have one (1) ye ar within which to file a [p]ost-[c]onviction petition. You must notify the trial court that you need the ne cessary document s with whic

h to file. You must also advise them (through the clerk’s office) that you are indig ent and need counsel appointed.

The petitione

r, who wa s in solitar

y c onfineme

nt at the ti me he pre pared hi s petition, testified that he initially tried to mail the petition on December 3. According to the petitioner, a notary public who visitedhis ce ll on t

hat date t o nota rize his signature, infor med hi m that she di d not “hand le” ma ilin g. The petitioner explained that he was on “lock down” twenty-three hours a da y a nd that an office r did notarrive to collect the petition for mailing until the 7 th , one yea r an d t hr ee da ys after the denial of the application for permission to appeal to our supreme court. He conte nded that althou gh th e petition had bee

n date sta mped by the cour t clerk a s havin g b een filed on December 27 th , he had received a return receipt indicating

that it had been delivered on the 10 th . The petitioner claimed that appella te counsel had not sen

t him a copy of

the supre me court ’s order

deny ing his application for permission to appea

l and ad am an tl y maintained that the document had not been enclosed in the letter. Appellat

e counsel testified that he represented the petitioner at sentencing and

at the motion for new trial as well as in his direct appeal t o this court. He confirmed sending the Dece mber 18, 2000, letter to the petitioner but could notrecall whether he had enclosed the supr eme court’s order-4-

denying permission to appea

l. He ac knowledg ed that th e failur e to have done so wo

uld have been “an omission on [his] part.”

Withregard to the petitioner’s substantiv e claims, the petiti oner’s t rial cou nsel, who was an assistantpublic defender, testified that his off ice wa s appointed to represent the petitioner at the inceptionof the case. He recalled that at their initial meeting, the petitioner insisted that he was not present at the time of the offenses. Trial counsel testified that at the preliminary he aring, however, the state produced a transcript of a rec orded conversation between the petitioner and his co- defendant Rhodes wherein

each ha d made inc

ulpatory statemen ts w hile s eated together in the back sea t of a police car. According to trial counsel, the pe titioner had also given videotap ed state me nts to the police and these

statemen ts were edited by

stipulation before being presented to the jury

. Alth ough he could spe cifical ly r

ecall ha ving re viewed a ll of co-d efenda nt Rhodes’ s unedite d vide otaped statemen ts with the petitioner, trial counsel could not remember whether they had reviewed the petitioner’s unedited

statemen

ts. Trial c ounsel expl ained tha t his file did not include any correspondenceto the petitioner because they usually communicated “f ace to face.” Although there
was nothing to indicate that he had sent the petitioner copies of the various motions and orders filed in the case, he insisted that “[a]t some point [he] gave [the petitioner] copies of every thing.”

Trial counsel testified

that the defense theory

at trial conceded that

the petitioner was present at the time of the offenses but argued that his co-de fendant Rhodes wa s the per

petrato r of the c

rimes. He denied having represented to the petitioner that it was important that the petitioner be jointly tried with Rhodes but acknowledged that “[i]t probably would have been better from our standpoint, I guesslo oki ng b ack on i t. If we would have had somebody else sitting there in the courtroom to point the finger at.” Trial counsel initially stated that he had opposed the state’s severance motion but he agreed tha t th e transc

ript indic ated tha

t the motion

had bee n attende d by

another assistant public defender who an nounced that the defendant was “taking no position in regard to [the severance] motion.” Trial counsel explained that he had a physica l ailment at that time. He agreed that there
were differences betw een the first and second versions of the cruiser c onversation transcript pro duced by the state and a

cknowledged that he did not object or otherwise dra w attent ion to th e differences. I

t was trial counsel’s opinion, however, that the transcript “didn’t . . . really hurt us.” While pointing out that he may ha ve gone to hear some of the testimony , trial counsel testified that he never planned

to attend the trial of co-defendant Rhodes and never promised the petitioner that he would. He acknowledged that he did not interview a ll of the persons identified on the state’s witness list and yet noted that ano ther assistant public defender working on the ca se had “interviewed some people on his own.” He rec alled that there was evidence that the victims were drug dealers and considered that to be favora ble for the defense: “I

felt like it was in . . . [the petitione r’s] best i nteres t[] for th e vict ims an d the m an tha t he wa s blam ing .

. . [to] be pres ented in the worst light possible.” Accord ing to tr ial couns el, a cla

im of self -defen se was not fe asible be cause the petitioner “said he didn’t do it.”

The petitioner testified as a part of the evidentiary hearing that he f irst met wi

thtrial counsel at the jail “a few

days” af ter his arrest and that they later met “a few times” before tria l. He claimed that trial counsel never provided him with paperwork and would not interview w itnesses . Th e-5-

petitio ner recalled that trial counsel’s initial defense theory was to discredit Rhodes because “he [had] told so many

lies in hisstatement to the police.” He contended that in February

of 1996, he
was “suddenly” br

ought to appear in court and that upon his arrival another attorney advised him that trial counsel “had to be somewhere else” and she would be repr esenting him. The petitioner asserted that they “g ot into an argument and the next thing I know she stands up and say s something to the [c]ourt, sits back down, it’s over with and we leave. I didn’t even know what we were there for.” He claimed that when he later discovered that the proc eeding had been a sever ance hearing , tria l counsel explained that he planned to attend the trial of co-defendant Rhodes inorder to learn the trial strategy of the prosecution. The petitioner stated that he and trial counsel ar gued “hot an d h ea vy” and yet claimed tha

t the only document

that he r eceive d from tri al counse l was a co py o f the fir st versionof the transcript

of his polic e-car

convers ation with

co-def endant Rhodes. According to the petitioner, trial counsel showed hi m a two-hour edited version of his videotaped statements to police butnever showed him the unedited videotapes. I t was his recollection that wh en trial coun sel attempted to get a transcr ipt of co- defenda

nt Rhodes’ s trial, he was permitted only por tions of the record. The petitioner acknowledged that he escaped from jail on January 29, 1996, returning two da ys later. It washis conte ntion that he did not in

itially lie to trial counsel regarding his involvement in the off enses. Appellat e counsel, who was appointed to represent the petitioner for purposes of the motion for new trial and direct appeal, testified that he initially asked for the file from the public defender’s office but was denied access because the pe titioner ha d filed a civi l lawsuit a gainst t rial cou nsel. Appellat e counsel r

ecalle d that he w as give

n the file , which he

did no t believe to be complete, approxima

tely one to one and one-half y

ears later. It wa s his opinion that there was “a complete lack of investig ation” by

trial cou nsel. Appellate counsel testifie d that he would have moved to su

ppress the petitioner’s squad-car conversation with co-def endant Rhodes on the grounds that it was not i

n furtherance of any conspira cy. He state d that he would have challenged the admissibility of the petitioner’s videotaped statements on the grounds that they were involuntary , and he contended that he would hav e object

ed to the t estimony of Bick nell. App ellate

counsel explained that he did not present the ineffectiveness of trial counsel on appeal because he did not want to adversely affect the petitioner’s potential post-conviction claims.

At the conc lusion of the heari ng, the post-con viction c ourt foun

d that the petitione r’s clai ms were barred by

the statute of

limitations . It a

lso held th at the petitioner had faile d to prove that he was entitled to relief on the grounds of ineffe ctive assistance of counsel.

I Ini ti al ly, the petitioner asserts that the trial court

erred byfinding that his claims were timebarred, contending that the “intere st[s] of justice ” requir e a dete rmination that his pe

tition was timely filed. The state argues otherwise.

The origina

l Post-Convi ction Proc edure A ct of 1967 did notinclude a

statute of limitations

. OnJuly 1, 1986, the General Assembly adopted a three-y

ear statute of limitations. See Tenn. Code Ann. § 40-30-102 (repealed 1995). I n 19 95, our legislature passed the new Post-Conviction-6-

Procedure Act, which is applicable to all petitions filed after May 10, 1995, and pr ovides, in pertine nt part, a s follows: (a) Except as provided in subsections (b) and (c), a person in custody under a senten ce of a c ourt of th

is state mu st

petition for post- convicti on relie f under t his part with in one (1) y

ear of t he date o f the fina

l action o f the hig

hest state appella te court to which an appeal is taken or, if no appeal is taken, within one (1) y ear of the date on whichthe judgment became final, or considera tion of such petition shall be barred. The statut e of

limitations shall not be tolled for any reason, including any tolling or saving

provision

otherwis e availa

ble at law

or equity . Time is o f the
essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter , and the one-year limitations period is an element of the right to filesuch an a

ction and is a condition upon its exe

rcise. E xcept as sp ecifica

lly provided in subsections (b) and (c), the right to file a petition fo r post-convi ction relief or a motion to reopen under this chapter sha ll be extinguished upon the expiration of the limitations period.

Tenn. Code Ann. § 40-30-202(a). In 2003, the Post-Conviction Procedure Act was r enumbered within the Code. It now appears at sec tions 40-30-101 through 40-30-122. Rule 2(G)

of the Te nnessee Rules of Po st-Convic tion Proce dure g overns f ilings:

Pa p ers required or permitted to be filed by the rules of post-conviction procedure, when filed by a n attorney or a pro se petitioner

who is not incarcerated, are file d when re ceived by th e clerk of court

. If papers required or permitted to be filed by these rule s are prepared by or on behalf of a pro s e petitioner inca

rcera ted in a correctional facility

and are not received by the clerk of

the court until after the time fixed f or filing , filing

shall be ti

mely if the papers were delivered to the appr opriate individua

l at the correctional fac ility within the time fixed f

or filing . . . . Should

timeliness of filing or service become an issu e, the burden is on the pro se petitioner to establish compliance with thi s provision.

Tenn. Sup. Ct. R. 28 § 2 (G) (emphasis added). Similarly , Tennessee Rule of Criminal Procedure 49(c) pr ovides, in pertine nt part, a s follows:

If p apers r equired or permit

ted to be f

iled purs uant to the

rules of crimin a l procedure are prepared by or onbehalf of a

pro se litigant incarcerated in a correctional facility and ar e not received by

the clerk of the court until after the time fixedfor filin

g, filin g shall b e timely

if the papers w ere del ivered t o the appr opriate indi vidu al at t he corr ectio nal fac ilit y within the ti me fix ed for f ilin g. Tenn. R. Crim. P. 49(c).-7-

Tennessee Code Anno tated se ction 40-30-202(b) establishes when a court may consider a petition f iled outsid

e the sta tutory limitations

period. T

hat statut e provide s as follow s: (b) No court shall have jurisdiction to consider a petition filed af ter such time unless: (1) The claim in the petition is based upon a final ruling of an appellate court establishing a cons titu tion al righ t that was not re cognize d at the time of tria l, if retrospective application of that right is required. . . . ; (2) The claim in the petition is based upon new scientific ev idenc e establishing that suc h peti tioner is actually innoce nt of the offense or offenses for which the petitioner was convicted; or (3) The clai

m asserte d in the pe

tition see ks relie f fr om a sentence that was enhanced because of a previous conviction and suchconviction in the case in which the claim is a sserted

was not a guilty plea with an agreed sentence, a nd the previous conviction has subsequently bee n held to be invalid. Tenn. Code Ann. § 40-30-202(b).

In Burfor d v. State , 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court he ld that in c ertain situatio ns appl ication o f the stat ute of limi

tations in a

post-con viction pr oceedin g might violate constitutional due process. In determining whether there has bee n such a violation, the essential question is whethe

r the time period al lowed by

law provides the p etitioner a fair a nd reasonable opportuni ty to file suit. Id. In Burford , the peti tioner could n ot have filed within the three-y ear limitation absent a determination on his prior post-conviction petition. Our supreme court ruled that Burford was “caught in a procedura l trap and unable to initiate litigation . . . despi te t he approach of the three-y

ear limitation.” Id.

Re ce nt ly, in Williams v. Sta te , 44 S.W.3d 4 6 4 (Tenn. 2001), our supreme court held that strict application of the statute of limitations to c ase s in which a petitione r has bee n unilate rally deprived of the opp ortunity

to seek se cond-tie

r revie w of his convictions

might vio late due process

. Williams’s attorney filed a motion to withdraw as counsel some nine months after his convictions
were affirmed by

this court. His motion included an assertion that he had timely sent a notifica tion of the disposition of

the appeal but later learned that Williams did not receive the notification. Counsel then aske d for add itional time

within which to file an application for permission to appeal to the supre

me court. The request was denied as untimely . Williams then filed a pro sepetition for post-convictionrelief outside the one-y ear statute of

limitations. Our supreme court ruled that “due pr ocess considerations may ha ve tolled the running of the statute of limitations for filing a pos t

convi ction petition” and remanded the case “for a n evidentiary he aring to determine the circumstances surrounding [Williams’] filing of his post-conviction petition.” Id. at 467.

In Williams , our

high court emphasized that an attorney ’s misrepre sentation , as oppos ed to
mere negligence, could result in due process tolling. Id. at 468-71. It determined that “an a ttorney’s misrepresentation

. . . would also be bey

ond a def endant’ s control ” and could preclude the defendant-8-

fromindependently see

king relief. Id. at 469. Specifically, the court concluded t

hat “[i]f Willi ams was under the

imp ression th at a Rule 11 application was pending during this time, then he was precluded from a cting pro seto pursue post-conviction relief while presumably being repre s ented by counsel.” Id

. at 471. Our supreme court observed that “[t]he question, then, is whether the appellee was, in fac t, mi sled to believe that counsel was continuing the appeals proc ess, thereby requiringthe tolling of the limitations period.” Id. The limitations period is tolled “during [the] time when the [petitioner] was unable to seek [post-conviction] relief.” Id. at 464.

At the close of

the hearing, the post-con

viction c ourt rule d on the time liness issu e as follows:
And . . . the case of Marc o D . Butler vs. State of Tennessee , which is a [s ]upreme [c]ourt ca se, . . . ta

lks about d

eliverin g to an a ppropria te indiv idual. . .

. And it s ays, . . . any

such cal culus shou

ld include

an acco unting of the rule s, guidelines and[/]orcustomary pra ctices relating

[to] the prison mail system used by the correctional fa

cility in questio n, as wel l as any other factor s deemed

appropr iate under the circumstances. And

[the petitio

ner] . . . pu

t on no proo f as to what those circumstances would be. . . . And I don’t believe that you di dn’t know it was December 4 th

. . . . Our supreme court denied the petitioner’s application for per mission to appeal on

December 4, 2000. Any petition for post-conviction re lief was, therefore, due to be filed on orbefore December

4, 2001. The petitioner’s signature on the pro se petition wasnotarized on December 3, 2001, the date

on which the petitioner claims to have initially pre sented the petition to the attesting notary public for filing. Thus, under Post-Conviction Procedure Rule 2(G) and Tennessee Rule of Criminal Procedu

re 49, the filing w ould have

been time ly if

the notar y pu blic wer e the “a ppropria te individual at the correctional facility ” to receive it for mailing. There is no evidence in the record regarding the prison’s mail system or the role of the notar y, i f any , therei

n. So, as ha

rd as the result may be, it appears that the tr

ial cour t corre ctly

ruled tha t the petit ioner fa iled to mee

t his burden of proof. In Butler v . State , 92 S.W.3d 39 1, 391 (Te nn. 2002) , our hig

h court st ated as f ollows:

Dete rmin ing who is an “appropriate individual” for purposes of filing post-con vi ction petitions under Rule 28 § 2(G) or Tennessee Rule of Criminal Procedure 49(c) will be a question of fact best resolved by the various trial cour

ts of this state. We decline to a dopt a bright-line rule in this regard be cause different correctional facilities may have divergent guidelines or customs reg a rding the appropr iate individua

l(s) to whom prisone

rs should f

il e lega l mail. However, any suchcalculus should include an accounting of the rules, guidelines, and/or customary practices relating to the prison mail sy stem us ed by the c orrect ional fa cility in question, as well as any

other fa ctor(s)deemed a

ppropria te under the circ umstance s.
With t he record devoid of any proof of the circumstances surrounding the ma iling of the petition, the petitioner has not demonstrated that his filing was timely by virtue of

his having presented

it to the notary public.-9-

Likewise, the petitioner’s claims are time-barred eve n if the statute of limitations was tolled by appellate counsel’s failure to fully advise th e petitioner reg arding the date that our s upreme court denied permission to appeal. In our view, the De cember 18, 2000, letter from appellate counsel was inadequa te to inform the petitioner of the statute of limitations. The letter di d not purpo rt to include a copy of the supreme court’s order deny ing permission to appeal and appellate counsel concede d that he did not recall having enclosed a copy . The letter did not contain the date of the order. Thus, by use of the Williams rationale, due process concerns may have tolled the statute of

limitations

until December

18, 2001. The post-conviction judge, however, who hea rd the testimony first-hand a nd
was able to observe the demeanor of the witnesses, conc luded that the petitioner had actual knowl edge of the correct st atute of limitations. See Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). Most importantly, any entitlement to tolling for reason s of due process would notbe of benefit to the pet itioner. Wh

ile claiming to have presented his petition to prison authorities for mailing on December 7, the petitioner was unab le to p roduce evidence as to the rules of the prison mail system, the identity of the person who accepted the petition for mailing , or any other factors that would explain the whereabouts of the petition between that date and Dec ember 27, when it was received by

the post-conviction court clerk. Although he contends that he received a return receipt indica tin g that the petition had been received by the court clerk on December 10, he ha s failed to produce the document. Accordi ngly, the tria l court’s determination that the petitioner’s claims are barred by

the one-ye ar statute of limitations is affirmed.

II The petit ioner also a ssert s that trial couns el was ineff ectiv e for fa ilin g t o a dequate ly investigate, failing to adequately research the applicable law, fa iling to seek

the admission of “vital testimony,”

and fail ing to obj ect to ina dmissible e

vidence . It is

our conc lusion tha

t e ven if th e petitioner’s claims were not time-barred, these g rounds would not be a basis for relief.

When a petitioner seeks post-conviction relief on the b asis of ineffective assistance of counsel, he mus t firs t esta blis h that the se rvices render ed or t he adv ice giv en were below “the ra nge of competence demanded of attorney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 9 3 6 (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). Shou ld the pet itioner f ail to establish either factor, he is not entitled to relief. Our supr eme court described the standard of review as follow s:

Becau se a [petitioner] must establish both prongs of the test, a failure to prove either deficie ncy or preju dice pro vides a suf

ficient basis to deny re lief on the ineffective assistance claim. Indee d, a court need not address the components in any particular order or even ad dress both if the [petitioner] makes an insufficient showing of one component.
Goad v. Sta

te , 938 S.W.2d 363, 370 (Tenn. 1996).-10-

Onclaims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of hindsigh t, may not se cond -gu ess a

reas onab ly

base d tria

l stra teg y, and c anno t criticiz e a

sound, but
unsucce ssful, tactical decision made during the course of the proceedings. Adkins v. Stat e , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such def e rence t o the tac tical dec isions of c ounsel, however, applies onl y if

the choic es are made after adequa te preparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Under our statutory law, the pe

titioner bears th e burden

of provin g the al legati ons in his postconvictionpetition by clear a nd convincing evidence. See Tenn. Code Ann. § 4 0-30-210(f)

. Evidenc e is clear and convincing when ther e is no serious or

substantial doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State , 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). Claims of ineffective assistance of counsel are r egarded as mixed questions of law and fact. State v. Honey

cutt , 54 S.W.3d 762, 766-67 (Tenn. 2 001); State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). On appeal, the findings of fact made by

the post-conviction court are conclusive and will not b e d isturbed unless the evidence contained in the record pr eponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderated agains t those findings. Clenny v. State , 576 S.W.2d 1 2, 14 (Te nn. Crim. App. 1978). The credibility of the w itnesses and the weight and value to be afforded their testimony
are questions to be res ol ve d b y the trial court. Bates v . State , 973 S.W.2d 615 (Tenn. Crim. App. 1997). When revi ewing t he applic ation of la

w to those f

actual f indings, however , our rev iew is de
novo , and the tr

ial cour t’s conclus ions of law are given no presumption of corre ctness. Fields v. State , 40 S.W.3d 450 , 457-58 ( Tenn. 200 1); see also State v. England , 19 S.W.3d 762, 766 (Tenn. 2000).

In thi s case, t

he post-c onviction

court ma de the fo llowing f

indings:

Base d upon the facts that I’ve se en on this record, I ca nnot find thatyo u carried your burde

n by clear a nd convincing pr

oof that [tr

ial couns el’s rep

resenta tion ] did fall below [th e Stri ckland ] standard. Somebody got killed. Obviously, [codefenda nt] Rhodes isn’t one of

th e g re at me n o f A me ri ca n H is to ry, but I don’t think [trial counsel’s] representation of [the petitioner] fell below that standard. And secondly, eve

n if it did, which I don’t think it did, . . . [t]he benchmark for judging any claim of i

neffective assis tance of

counse l, must be where the counsel’s conduct so undermined the proper functioning of the adversa

rial proc ess that the tr ial cannot be rel ied on as having produced a just res ult. [E]ven with the complaint that [the petitioner has], I do not think t hat [he] meet[s] prong two by

clear and convincing evidence

. Ini ti al ly, the petiti oner cla ims that tri al c ounsel failed to adequately investigate the case, alleging gener ally that “basic preparation was not performed.” More specifically , he complains that trial counsel failed to conduct any legal research and that trial coun sel failed to attend (and learn from) the trial of co-defendant Rhodes. Beca use the petitioner does not specify what legal research he contends should have been done and does not a ssert any par ticular prejudice as a result of any-11-

failure, this claim fails both prongs of the Strickland test. As to the other claim, trial counsel was
un ab le to recall whether he had attended anyof the Rhodes trial. While attendance at the codefendant’s trial may have be en helpful, it was not a requirement. Adequate prepa ration, no matter how it is accomplished, is the standard. It is unclear w hether trial counsel ever obtained any portion of the Rhodes transcript. The record contains a written motion for a copy of the

transcript as filed by trial counsel but

there is no indication of the trial court’s ruling. A transcript could have been as helpful to the defense as attendance at the tria l. On direct appeal, the petitioner contended that the trial court had erre d by failing to provide a “free, complete” transc ript. See Lar

ry S. Brumit , No. M1999-00154-CCA-R3-CD, slip op. at 16. That implies that trial counsel had somethingless than
a full record. It does appe ar that at some point trial counsel obtained the jury instructionsgiven in the Rhod es tri al. Ne verth eless , the p etit ioner does n ot all ege any specific prejudic e as a

result of trial counsel’s failure to either attend Rhodes’ trial or acquire a complete transcript. See id. (finding that the petitioner had

failed to demonstrate on

direct appeal how he was prejudiced by the trial court’s denial of the transcript). The record does re flect that trial counsel conferred with the petitioner, obtained discovery fr

om the stat e, interviewed numerous witnesses, filed pre-trial motions for suppressionof the petitioner’s statement, sequestered voir dire, and a chang e of venue, filed motions inlimine, an

d made spe cial jury

instructi on reque sts. From all of this, it i s our conclusion that the evidence does not preponderate against the post-conviction court’s determination that the petitioner has failed to

prove by clear and convincing evidence that trial counsel’s preparation was inadequate.
Next, the pe titioner asserts that trial counsel was ineffective for fa iling to oppose the
severance of co-de fendant Rhodes. The grant or denial of a motion for severa nce of de fendant s is a matter that

rests within the sound discretion of the trial court. State v. Burton , 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988). Rule 14 of the Ten nessee R ule s of Criminal Procedure governs
severa nce of de fendant s and prov ides in pe rtinent pa rt as foll ows: (2 ) The cour

t, on motion

of the Sta

te or on mo tion of the

defenda nt o the r than under subdivision (c)(1), shall grant a seve rance of defendants if: (i) before trial, it is

deemed necessary

to protect a defendant’s right to a speedy tria

l or it is deemed appropriate to promote a fair determination of the guilt or innocence of one or more de fendants; or (ii) during trial, with consent of the defendant to b e sever ed, it is deemed necessa ry to achie ve a fai r determination

of the guilt or innocence of
one or mor

e defen dants. Tenn. R. Crim. P. 14(c)(2).

Ini ti al ly, the petitioner fails to specify the ground s on whi ch trial counsel should have opposed the state ’s sever

ance mot ion or to de

monstrate that trial counsel would have been successful had he done so. Absent from the record is the transcript of the trial court’s hea ring on the motion to sever. I

t is, of co urse, the duty of the ap pellant to prepar e a compl e te and ac curate record on appeal. Tenn. R. App. P. 24(b). The failure to prepare an adequate record for revie w of an issue results in a waiver of

that issue. Thompson v . State , 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).-12-

Here, trial counsel testified that in hindsight it might have been beneficial for the petitionerand codefendant Rhodes to have been tried jointly. On claims of ineff ective a ssistance

of counse l, however, the defe

ndant is no t entitled

to the bene fit of hindsight, ma y no t second- guess a

reasona bly based trial stra tegy, and ca

nnot criti cize a sou

nd, but uns

uccessf ul, tactical decision made during the
course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Under thesecircumstances, this court cannot co nclude tha t trial co unsel wa s ineffe ctive fo r failing to oppose the state’s severance motion.

The petitione

r next cont

ends that tria l counsel was ineffective for failing to introduce evidence that a nine millimeter handgun had been recove red from behind the reside nce of codefendant Rhodes. He argues that

the evide nce woul d have be en rele vant and p

robative because a handwritten

sheriff’s department report indicates that the victim Summar was shot with a nin e millimeter

bu llet . The report, which is entitled “Victim Assessment Sheet Mortuary /Autopsy,” includes Summar’s identification infor mation and desc

riptions of

both the w ounds to an

d items recovered from the body. The r

e cord i s clear, however, that Tennessee B ureau of Investig ation testing established that the bullet was a .38 caliber. The medical examiner also testified at trial that the bulletthat killed

Summar was “either a .38 or .357.” See Lar ry S. Brumit , No. M1999-00154- CCA-R3-CD, slip op. at

9. Thus, introduc tion of the report would have

been of l ittle bene fit to the defense.

Next the petiti oner ar

gues tha t trial counsel was ineffective for failing to seek suppression of his conversation with Rhodes in the police cruiser. I nitially, the record

reflects that

trial counsel did, in fact, file a mot

ion to suppr

ess. The re is , ho wever, no transcript of any hearing and no indication of a rul ing. No testimony reg arding the motion was presented at the hearing . Again , it is the duty of the

appella nt to prepar

e a compl ete and a

ccurat e recor d for our review a nd failur e to do so will ge

nerally result in waiver . Tenn. R. App. P. 24( b); Thompson , 958 S.W.2d at 172. It is
our conclusion that trial counsel challenged the a dmissibil ity o f the cr

uiser conversat

ion, albe it
unsucce ssfully, and that

the claim by t he petitioner is wit

hout merit

.
Inconnec tion, the p etitioner also comp lains that

trial cou nsel shoul d have questioned certain inconsistencies between the first and second versions of the cruise r conversation transcript as pr oduce d by t he st at e. Th er e a pp ea r t o b e t wo di ff er en ce s b et we en th e f

ir st tr an sc ri pt , t ype d b y a sheriff’s department employe e and the second, prepared by a certified court re

porter. The firs t transcr ipt provid es, in per tinent pa rt, as fo llows:
[RHOD ES]: We’re both history if we d on’t get that [first degree murder ch ar ge ] o ff

us . W e a re a m em or y. [PETITI ONER

]: What was originally a greed on was to have me. [RHOD ES]: Well I know but that, . . . . * * * [RHOD ES]: And the truth L

arry if you hadn’t said any

thing to Bubba you would have walked. [PETITI ONER

]: . . . . Yeah it’s just . . .-13-

The sec ond trans cript indi cates th e same c onversa tion snippe

ts as follows: [RHOD ES]: We’re both histor y if we don’t get tha t [first degree
mu rd er ch ar ge ] o ff

of us . W e a re a m em or y. [PETITI ONER

]: Whatwas originally agree d on was if

they had me that you wo ul d t ak e t he re sp on si bi li ty – [RHOD ES]: Well, I know that . . . . * * * [PETITI ONER

]:

– and the tr uth was if you hadn’t have

said anything

to Bubba, we would have walked. Yea h, it’s just –

Ini ti al ly, the transcript of the petitioner’s trial is not included in the record and does not appear to have been introduced in the post-conviction court . In consequence , this court cannot ascert ain the method by which the tra nscript s were used at trial or what testimony may have been elicited about them. With the burden of proving his clams by clea r and convincing evidence, the petitioner should have assured

inclusion of the trial transcript. See Tenn. Code Ann. § 40-30-210(f). Ad di ti on al ly, the actual tape recording of the conversation, rather than thetranscripts, should have been entered into evidence for the jury ’s consideration. In our view, the discrepancies complained of by the petition er

are minor in the context of the entire transcript and the chang es in the second versioncould be read to benefit the petitioner. Under these c ircumstances, this court cannot conclude that the petitioner has satisfied either prong of the Strickland

test.

Fi na ll y, the petiti oner ass erts that trial cou nsel was i neffective for f

ailing to object to certain testimony from Doug Bicknell, thevictim Summars’s second cousin. Without the trial transcr ipt in the record , Bickne ll’s testimony is not bef

ore this c ourt. I

n the opini on on the p eti tioner’s dir ect appeal, this cour

t summarize d the rel evant por tion of Bi cknell’ s testimony as follow s:
After the [petitioner] began to work for Brentwood Log Homes, Bicknell, the [petitione r], and other employe es were sent to Ohio to build a log house, where they stayed at the same motel. Bicknell recalled an incident involving the [petitioner] that occurred while they wer

e in Ohio: He and the other Brentwood L og Homes employees

were sitting in the motel room drinking one day , and the [petitioner] and another employee ‘were talking

about [the

victim Summar] bei

ng a snit ch.” Bi cknell recalled t hat whe n he defended his cousin, the [petitioner] “said that he would see that the little punk would get wh at was coming to him.” Bicknell reported that he “told [the petitioner] if he messed with my cousin, me and him would have dealings,” and the [petitioner] “said he wa s get ting too o ld for all that fig hting.” Bickne ll testified that the [petitioner] then “reached in his bag and pulled his gun and said he let his gun do his fighting for him.”
Larry S. Brumit , No. M1999-00154-CCA-R3-CD, slip op. at 3. This court rejected the petitioner’s cha llenge to the test

imony on the g round tha t it was wa

ived by trial cou nsel’s fa ilure to make a contemporaneous objection. See id. at 13.-14-

The state contends that the petitioner has “put forth no proof that had such an objection been made, the trial

court wo uld have g

ranted i t.” We must

agree . The peti tioner does not assert the grounds on which he

claims B icknell’ s testimony should have been excluded, a rguing only that it was “pr ejudicia l.” Thus, the petiti oner is no t entitled to relief on this cla

im. Accordingly , the judgment of the post-conviction court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE