# FILED
June 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION
JERRY LEE FINCH, * NO. 02C01-9707-CC-00293

Appellant, * LAUDERDALE COUNTY VS. * Hon. Joseph H. W alker, Judge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : D. Michael Dunavant John Knox Walkup Bank of Ripley Building Attorney General & Repor ter P.O. Box 150 Ripley, TN 38063 Elizabeth T. Ryan Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General Mark E. Davidson Assistant District A

ttorney General 302 Market Street Somerville, TN 38068

OPINION FILED:

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Jerry Lee Finch, appeals as of right from a judgment of the trial court dismiss ing his petition for post-conviction relief. The si ngle issue present ed for ou r review is whet her the pe titioner was denied the eff ective assistance of counsel. We find no error and affirm the j udgment of the trial court.

The petitioner was conv icted of aggravated robbery and sentenced as a Range II, multiple offender to tw enty years. This cour

t affirmed on direct appeal. State v. Jerry Lee Finch , C.C.A. No. 02C01-9309-CC-00224 (Tenn. Crim. App., at Jackson, June 7, 1995). Our supreme court denied permission to appeal. Later, the petitioner filed a timely petition for post-convic tion relief and was appointed counsel . The tri al cour t conduc ted an ev

identia ry hear

ing and denied r elief.
In this appeal, the petitioner contends the evidence preponder ates against the trial cour

t's findings that he was afforded effective assistance of counsel. He argues the evidence adduced at the evidentiary hearing shows that tr

ial counsel failed to properly inv

estigate his case, failed t o contact alibi witnes

ses, and failed to object to the phrase "moral cer tainty" in the jury instruction on reasonable doub t.
The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unles s the evidence preponderates otherwise. Butler v. State , 789 S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 354 (Tenn. Crim. App. 1994). The tr ial court’s findings of fact ar e afforded the weight of a jury verdict, and this Court is bound by the trial court’s findings unless the evidence in the record pr eponderates against those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Dixon v. State , 934 S.W.2d 69, 72 ( Tenn. Crim. App. 1996). This Court may n ot reweigh or reev aluate the evidence, nor subs titute3 its inferences for those draw n by the trial judge. Henley , 960 S.W.2d at 579; Massey v. State , 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of witnesses and the wei ght and value to be giv en to their testimony are resolved by the trial court, not this

court. Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755. The burden of establishing that the evidence preponderates other wise is on petitioner. Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755.

A claim of ineffective assistanc e of counsel is review

ed under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that ( 1) the attorney’s performanc e was deficient, and (2) the deficient performance resulted in prejud ice to the defendant so as to deprive him of a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2 064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Te nn. 1994); Butler , 789 S.W.2d at 899.

The test in determining whether counsel provided effective assistance is whether his performance was within the r

ange of competence demanded of attorneys in criminal

cases. Baxter v. Rose , 523 S.W.2d at 936. The petitioner must overcome the presumption t hat counsel’s conduct falls w ithin the wide range of acceptable professional assis tance. Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; State v. Willia ms , 929 S.W.2d 385, 38 9 (Tenn. Crim. App. 1996).

The petitioner has asserted that his counsel failed to locate and present alibi witness

es at trial. At the evi dentiary hearing, the petitioner testified that prior to trial he provided his trial counsel with the name of his brother who saw him4 washing a car in R ipley at the time the robber y occurred in Henning . The petitioner also testified that he informed his attorney that several young men were play

ing basketball across the str eet while he was w

ashing the car, but that he di d not know their names.
At the post-conviction h earing, the petitioner’s brother, Lee Andrew Finch, testified that when he arrived home between 4: 30 and 5:00 p.m. on the date in question, his brother was in the drivew

ay washing a car. The petitioner’s brother claimed that he was never contacted by anyone from the public defen der’s office in advance of the trial. Lee Fi nch also testified he did not atte nd his brother’s trial because he did not know w hen it was held. Duri ng questioning by the trial judge, Lee Finch remembered his brother was washing the c

ar on a Tuesday. In fact, the robbery was committed on a Wednesday. No other potential alibi witnesses testified at the post-con viction hearing.

The assistant district publ ic defender, Julia Pillow , testified that she tried to develop an alibi defense. She explained, howev er, that the store clerk had identified the petitioner as the robber from a ph otograph. The petitioner’s juvenile accomplice testified agains t him as well. Ms. Pillow stated that pri or to the trial she asked an investigator from the public defender’s off ice to locate the petitioner’s brother and any other possi ble alibi witnesses. None could be found. Ms. Pill ow explained to the court that it was her practice to note in her case file if w itnesses could not be located. She believ ed that since her file did not i ndicate the witnesses could not be located, the witnesses were contacted but not helpf ul to the petitioner.

The reco rd of the original tr ial indica tes that the trial c ourt held a juryout conference at the conclusion of the state’s proof. The petitioner st ated that he5 did not wish to testify . He confirmed that he had discus sed potential defenses with his trial counsel and w

as satisfied with her r

epresentation, including the efforts to locate potential witness es. He specifically a

cknowledged the inv

estigator “attempted to contact some people and ... [was] not able to come up with anything in that regard.”

The trial court observed that after the arrest and durin g the course of the investigation by

the defense, the petitioner’s br other did not offer to serve as an alibi witness. Mor

eover, he did not come forw ard at trial or within the days following the guilty verdict. In rejecting the petition, the trial court noted that the petitioner's brother came forward sev eral years after the conv iction; and even then the petitioner’s brother testified as to the wrong date. In summary, the trial court rejected the authenticity of the belated claim. In our v iew, the evidence does not preponderate against the findings of the trial court.

In addition to his contention ab out the failure to adequately investigate and present alibi witne

sses, the petitioner further asserts that trial couns el was ineffective by failing to object to the “moral certai nty” language in the jury instruction on reasonable doubt. The petitioner concede s, however, that the use of the phrase is insufficient, standing al one, to invalidate the ins truction. See Carter v. State , 958 S.W.2d 620, 626 (T enn. 1997). He does argue that the instruction coupled with his counsel’s failure to inv

estigate and call alibi

witnesses, resulted in representation which fell below acc

eptable standards. We disagree. In our as sessment, trial counsel was not ineffectiv e for failing to object to thi s portion of the jury char ge.
Accordingly, the j udgment of the trial court is affirmed.6 Gary R. Wad e, Judge CONCUR: (see below) Joe B. Jones, Pre siding Judge

Jerry L. Smith, Jud ge

Honorable Joe B. Jones died May 1, 1998, and did not participate in this Opinion. We acknowledge his faithful ser vice to this Court, b

oth as a member of the Court and as its Presidi ng Judge.