# FILED

November 25, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION
RICHARD NELSON, * C.C.A. # 02C01-9612-CR- 00472 Appellant, * SHELBY COU NTY VS. * Hon. Chris Craft, Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : Gerald Stanley Green, Att orney John Knox Walkup 147 Jefferson, Suite 1115 Attorney General and Repor ter Memphis, TN 38103 (on appeal) Deborah A. Tullis Assistant Attorney Gener al Willi am B. Sel igstein, A ttorney 425 Fifth Avenue North 100 North Main Bu ilding Second Floor, Cordell H ull Building Memphis, TN 38103 Nashville, TN 37243 Daniel R. Woody and James C. Beasley, Jr. Assistant District A

ttorneys General 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Richard Nelson, appeals the trial court's denial of his petition for post-convic

tion relief. The single issue presented for review is whether the petitioner was afforded the effectiv e assistance of counsel at his trial.
The petitioner was conv icted of attempt to commit the first deg ree murder of Tamara Rogers, based on a shooting incident whi ch occurred September 3, 1991. The trial court imposed a Range I sentence of 1 8 years. This court affirmed on direct appeal. State v. Richard Nels on , No. 02C01-9211-CR-00251 (Tenn. Crim. App., at Jackson,Oct. 13, 1993). There was no application for permission to appeal to the supr eme court.
On December 14, 1994, the petitioner filed this application for postconvictio n relief alleging, a mong oth er things, that his t rial coun sel was ine ffecti ve for failing to adequately cross-examine the victim, by failing to secure the presence of important defense witnesses, and by neglecting to place into evidence medical records which wo uld have substantiated a prior head injury. The trial court made extensive findings of fact i n denying relief and addres sed each allegation of deficiency in performance on the part of trial counsel:

[There was] nothing improper or seriously lacking with his attorney's cross-ex

amination of the victim at tr ial and ... [the] petitioner has not show n in the proof how any differ ent cross -examina tion in th is trial wou ld have affected the verdict.... The nex t allegation ... deals w

ith his attorney's failure to subpoena ... Ann Arnold, Shir ley Thompson, and Vera Weeks, which were all supposed to be alibi witnesses... . This court continued the hear ing ... to allow petitioner to ... call [them] to testify. ... [None] of them were ever produced by the petitioner to support his claims. Instead, the petitioner's ... brother, John Ne lson, was called ... and testi

fied that he was with peti tioner the night of the offense with James Nelson [and] Vera Weeks ... (in contradiction to Jame s Nelson's [trial] testimony that John was not present).... He also s tated that Vera Weeks ... did not get home until 10:30 P.M. the3 night of the offense.... There is nothing in the proof to show how the testimo ny of [the three wom en] would have helped petitioner at trial.... John Nelson placed Vera Weeks at work at 9:00 P.M., the time of the offense.... [T]he medical records ... w ere produced at the hearing .

.. [and] would have hurt the petitioner's ... defense. They show the petitioner was only hospitalized for two days, from July 13 ... until July 15, 1991.... C.T. scans ... were normal.... These records indicate that his family considered him back to normal on July 15, more than six weeks prio r to the sh ooting, a nd that h is injurie s, if any, were not serious....

In order f or the pet itioner t o be grant ed relief on the ba sis of ine ffecti ve assistance of counsel, he must fir st establish that the serv ices rendered or the advice given was below "the range of competence demanded of attorne ys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). There must be a reasona ble probabi lity that b ut for co unsel's e rrors, the results of the proce eding woul d have been different. Strickland , 466 U.S. at 694; Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the petitioner fa il to establish either factor, he is not entitled to r

elief.
When determining whether counsel's per formance was deficient, "every effort [must] be made to el iminate the distorting effects o f hindsight, to reconstruct the circumst ances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspecti ve at the time." Strickland , 466 U.S. at 689. "Thus, the fact that a particular str ategy or tactic failed or even hurt the defense does not, alone, support a claim of ineffectiv e assistance." Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). We must defer to trial strategy and tactical choices when they are informed ones b ased upon adequate preparation. Id.4 Moreover, in Black v. State , 794 S.W.2d 752 (Te nn. Crim. App. 1990), this court enumerated the standar d for establishing prejudi ce by counsel's failure to subpoena witnesses. To establ ish prejudice, the petiti oner must: "(1) produce the witness at his post-conviction hearing; (2) show that through reasonable investigation, trial counsel could have loc ated the witness; and (3) elicit both favorable and material testi mony from the witness." Denton v. State , 945 S.W.2d 793, 802-03 (T enn. Crim. App. 1996) (citing Black , 794 S.W.2d at 757). Th is standard requires petitioners to produce the uncall ed witness at the post-c onviction proceeding so that courts need not speculate as to the materi ality of the testimony or credibility of the missing witness. Black , 794 S.W.2d at 758.

On appeal, the findings of fact made by the post-conviction court are conclusive and will not be disturbed unless the evidence contained in the record preponderates against them. Rhoden v. State , 816 S.W.2d 56, 60 ( Tenn. Crim. App. 1991); Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderate s against those findings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

After carefully scrutinizing this record, it is our view that the evidence supports the conclusions of the trial court. The cross-examination of the victim w as within professional g uidelines. The petitioner fail ed to demonstrate how the witnesses not called at trial would have aided his defense. The medical recor ds would have tended to undermine the petitioner's claims about th e seriousness of his head injury. Thus we find nether deficiency in performanc e nor prejudice in result.
Accordingly, the j udgment is affirmed.5 ________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David G. Hayes, Judge

_____________________________ Joe G. Riley, Judge