### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 11, 200 6

CHR ISTOP HERHOD GE v. STA TE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Laud erdale County

No. 7359 Joseph H. Walk er, III, Judge

No. W2005-01588-C CA-R 3-P C - F iled May 19, 2006

The petitioner, Christopher Hodg e, appea ls the dismiss al of his pe tition for post-c onviction relief,
arg uing that the post-conviction court e rre d in f inding that he rec eived eff ective assistance of trial counsel. F ollowing our

revie w, we a ffirm the dismissal of the pe tition.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J ., delivere d t h e o p i n i o n o f t he court, in which N OR MA M C G EE O G LE a ndJ.C. M C L IN , J J ., joined.

D. Michae l Dunavant, Ripley , Tenne ssee, f or the a ppellant, Christopher Hodg e.

Pa ul G. Sum me rs , At torne y Ge ne ra l a ndRe po rt e r; B ri a n Cl a y John so n, As sis ta nt A tto rn e y Ge ne ra l; Eliz abeth T. Rice, District Attorney Gene ral; and Tr ace y

A. B rew er- Walker, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

The pe titioner was convic ted by a L auder dale County

jury of the sec ond deg ree mur der of his W est Tenne ssee State Penitentiary cellmate, Ricky Ardd, and was sentenc ed by the trial court as a multiple offende r to thirty -five y ear s at 100%. His convic tion was aff irmed by this c ourt on direc t appea l, and his application for permission to appea l to the supreme c ourt was de nied. See State v. Christ op he r D a vidHo dg e , N o. W20 03 -0 15 13 -C CA -R 3- CD , 2 00 4 WL 22 90 49 5, a t *1 (T e nn . Crim. App. Oct. 11, 2004) , perm. to appe al denied ( Tenn. F eb. 28, 2005).

Th e pr oo f at the pe tit ion e r’ s tria l est abli sh e d th a t th e fi ve -f oo t, s ix-i nc h, 14 5- po un d v ic tim
was tra nsfer

red to the petitioner’s two-man cell on May 27, 2002. I d. at *1. At approximately 6:00 p.m. that same day , the petitioner c alled out to Correc tional Office r Sherry Cox that the victim was unconscious. I d. at *2. The victim, howe ver, was de ad. I d. Shelby CountyMedica l Ex aminer D r.-2-

O. C. Sm ith , w ho su pe rv ise d th e a uto ps y of the vic tim ’s bo dy , tes tif ie d at tri a l tha t the c a us e of de a th
was stra ng ulation by

use of a ligature. I d. When show n a torn be d strip attache d to a fork, w hich had been found in the petit ioner’s cell, Dr. S mith ag ree d that the victim’s injuries wer e consistent with strang ulation by

means of suc h an instrument. I d.

The pe titioner’s trial strateg y consisted of a n attempt to show that the killing oc curr ed in selfde fe ns e . O ur

dir e c t app e a l op ini on su mma ri zes the pe tit ion e r’ s te sti mon y a t tria l:

Th e [pe tit ion e r] t e sti fi e d th a t he wa s tw e nty -o ne y e ars old , s too d s ix fe e t, s ix inches tall, and w as a native of Knoxvil le. He sa id he was in the se g reg ation unit for ref usal to acc ept a c ell assig nment. He had not know n the victim prior to the transf er

on Ma y 27 th. He sa id the be dd ing strip, or fi sh ing lin e in pr iso n pa rl a nc e , wa s in his cell whe n he moved ther e. He said it was used t o s u s pend a she et to provide

r e s t r o o mp r i v a c y.

He testified the victim wa s s ta n d in g , r anting , and using obscenities af ter be ing moved to cell 24. During his showe r peri o d
, t h e [ petitioner] told Officer s Cox and Ca hil l a bo ut the vic tim ’s be ha vio r. L a te r, wh e n the [pe tit ion e r] as ke d the vic tim to be quiet, the victim spat in the [petitioner]’s face and tac kled t h e [petit ioner]. The [petit ioner] then place d the victim in a sleepe r hold and put hi m on the floor. The [petit ioner] said he did this four t imes and each tim e he w ould relea se the victim, the

v i c t i m w o u l d g e t u p a n d a t t a c k t h e [p e t i t i o n e r ] a g a i n

. A t o n e p o i n t , t h e vic tim attempted to stab the [petitioner] with an ink pen. During this ti me, the [petitioner] said he re peate dly

tried t o call out verba lly

to gua rds but the noise leve l from other in mate s w a s to o h ig h f

o r h im to b e h e ar d

. Wh e n th e [pet it io n e r ] s a w O f f ic e r Co x, he tol d her that medical attention was needed. The [ petitioner] said he had no idea that the sleepe r hold wo u l d kill the victim and he mere ly intended to re nder the victim unconscious. On cr oss-examination, the [ petitioner] said he rec eived no inj ury fr om the vic tim ’s a tta c ks

.

I d. at *3.

I n contra st to the petitioner’s testimony
, Corporal Donald East, the control room offic er f or the se g re g a tio n u nit

in wh ic h the pe tit ion e r’ s c e ll wa s loc a te d, te sti fi e d that th e no ise le ve l in the un it

a t 6: 00 p. m. wa s “ pr e tty qu ie t.” I d. F urthe rm or e , the e me rg e nc y c a ll b utt on in the pe tit ion e r’ s c e ll, which ale rted a

warning sire n and lig ht in the con t ro l room when pr essed, ha d not been a ctivated during Corporal East’s shift on May 27. Corporal Ea st testified that the ca ll button was in working condition when che cked the following day . I d.

On Februa

ry 3, 2005, the petitioner filed a pro se petition for post-conviction re lief in which he ra ised a number

of cla ims, inclu d i n g i n ef fe cti ve assistanc e of c ounsel. On May 20, 2005, fo llo wi ng the app oin tmen t of po st- c on vic tio n c ou ns e l, the pe tit ion e r f ile d a n a me nd e d p e tit ion in which he a g ain alleg ed inef fec tive assistance of counsel. Specifica lly , he asse rted that trial c ounsel-3-

fa ile d to a de qu a te ly

inv e sti g a te the fa c ts an d inte rv ie w m a te ri a l w itn e sse s in pr e pa ratio n o f p os sib le defe nses and mitigation in the case; fa iled to file a subpoena or otherw ise obtain discovery of the log book entries for the prison’s control booth, which would have shown that the petitioner’ s call button had bee n activate d near

the time of the victim’s death; failed to obtain independe nt forensic testing of the a lle g e d mu rd e r w e apo n an d ev ide nc e to sho w that the vic tim ’s inj ur ie s w e re c on sis te nt w ith
a tor n s h i rt cause d during an alter cation; fa iled to meet with the petitioner a n adequate number of times in order to pre pare a leg itimate defe nse; failed to se cure the petitioner’s pr esenc e at a Fe bruary 5, 2003, pretria l motion hearing ; and fa iled to pr operly object to the testimony

of Dr. O .C. Sm ith, the State’s surprise witness at trial. T he petitioner c ontended that the c umulative eff ect of trial counsel’s de ficienc ies in repr esenta tion prejudiced the outcome of his ca se.

At the June 10
, 20 05
, e vid e nti ary he ari ng , tr ia l c ou ns e l te sti fi e d s he wa s a n a ssi sta nt p ub lic defe nder a nd was a

ppointed in October

2002 to repr esent the petitioner in his second de g ree murder

ca s e

. Sh e s a id s h e r e p r e s e n te d h im th r o u g h th e f il in g o f h is n o ti c e o f ap p e a l, b u t another lawy er handled the a

ppeal. During the course of her repr esenta tion, she met with t h e petiti oner in prison four or five times, with ea ch m eeting lasting at least two hours, and she believed she spent an adequate amount of time with him t o discuss the fac ts and formulate their def ense strateg y , which consisted of a ttempting to show th at t h e victim was the first ag g ressor a nd that the petitioner ha d
acte d in self-de fense

.

Tria l c ou ns e l te sti fi e d that, a lth ou g h sh e re c e ive d dis c ov e ry fr om the Sta te , the pr iso n w ou ld not provide the re cords she h ad re q u es t ed from the se g reg ation unit where the petitioner a nd the victim had been house d. She, there fore
, filed a motion to compel dis covery of t hose re cords, but the trial court denied the motion. The issue was later raised on appea l, where this court ruled that the trial court’ s denial of her motion to compel constituted harmless err or. Trial counsel said she had no other mea ns of obt aining the names of t he inm ates in the seg reg ation unit, as the petitioner had be e n tra ns fe rr e d to the un it onl y a sh ort time be fo re the mur de r a ndc on se qu e ntl y didno t kn ow his fellow inmates. How ever , the petitioner did mention the name of one inmate , Telly J ones, whom trial counsel be lieved had be en a f ormer ce l l m ate of the victim. She stated that she interview ed J ones, who testified f

or the State a t trial. Trial counse l said she discussed with the pe titioner her inability to locate or interview the other inmates house d in the seg reg ation unit and that he did not

e xpre ss a ny

fr us tr a tio n to he r a

bo ut i t.

Tria l c ou ns e l a c kn ow le dg e d s he didno t me e t w ith the pe tit ion e r i n pe rs on a t the pr iso n u nti l sometime after

Dec ember

13, 2002. She identified a le tter that the petitioner sent her, dated Oc tober 30, 2002, in w hich he expressed his unhappine ss at her f ailure to mee t with him and requested that she file a motion to wit hdraw as counse l. She said she re sponded wit h a November 1, 2002, letter in w hic h she e xpla ine d tha t her wo rk a nd c ou rt sc he du le ha d pre ve nte d he r f ro m me e tin g wi th h im
y et, expressed he r h o p es t h at t h ey would be able to resolve their differ ence s when they

met, and included copie s of the pre trial motions she had alre ady filed in his case as w el l as the Court of Criminal Appeals opinion addre ssing a n issue he had r aised about not having rec eived a preliminary hearing. T rial counse l also identified another letter she sent to the petitioner on Dec ember 13, 2002, in w hic h s he a g a in a

po log ize d fo r no t y e t ha vin g me t w ithhim a ndsta te d th a t sh e wo uldme e t w ith-4-

him soon. S he testified that, a s she explained in her letter, her delay in meeting with the petitioner was due to her c ourt schedule and an illness whic h had kept he r out of the of fice for some time. She said she neve r filed the pro se motion to wit hdraw that the petitioner ha d attache d to his October 30 le tte r b e c a us e sh e be lie ve d th a t sh e ha d b e e n a ble to a lla y

the pe tit ion e r’ s c on c e rn s w he n th e y me t. She stated she c ould not recall the petitioner’s having ever rene wed his re quest that she withdra w

a s h is c ou ns e l. She , a dd iti on a lly , s ta te d th a t sh e fe lt p re pa re d to tr y his c a se wh e n it

we nt t o tria l in Fe bruary 2003 and would not have g one for war d to trial had she not bee n fully prepa red.

Trial counse l could not rec all why the petitioner wa s not present a t the Fe bruary 5, 2003, motion hearing , but speculate d that it mig ht ha ve been a last minute he aring reque sted by the State. She acknow ledg ed she ne ver subpoe naed the control room log book, in which emer g ency call button

a c tiv a tio ns we re do c ume nte d. She te sti fi e d, ho we ve r, that she a ssu me d tha t the log bo ok wo uldon ly have doc umented wha t the corr ectional of fice r testified a t trial, in that the petitioner’s c all button was
operational and had not bee n activate d. She said that she did not reme mber ha ving e ver discusse d th e i s sue with the petitioner, that she would have subpoe naed the control room log book had the petitioner broug ht it to her attention, and that she “ possiblyoverlooke d” that evide nce.

Tria l c ou ns e l said sh e did no t be lie ve sh e ha d re c e ive d a ny no tic e pr ior to tr ia l th a t D r. Smith would be testify ing in the place of Dr. Gar dner, who had perf ormed the actua l a

utopsy of the victim’s bo dy

. S he ag re e d D r. Smith’ s te sti mon y wa s th e mos t da ma g ing pa rt of the c a se be c a us e of

his conclusion that the victim had b een strang led by a lig ature consistent with the item that had bee n found in the petitioner’ s cell. She said she obje cted to his testimony o n t he basis that he ha d not perf ormed the autopsy

and moved to ex cl u d e him as a w itness, but the trial court over ruled he r objection. Trial c ounsel testified she did not r equest indepe ndent fore nsic testing of the victim’s torn t-shirt because she did not believe it would have helped the defense. She did not request independe nt fore nsic testing of

the “fishing li ne” because, prior to trial, she had “no inkling that Dr . Smit h was
g oing to take a piec e of c lothing item and make it the murder we apon in court.” She said she did not

mov e fo r a c on tin ua nc e to h a ve ind e pe nd e nt f or e ns ic te sti ng of

the a lle g e d mu rd e r w e apo n b e c a us e she did not believe tha t the trial court, at that late date in the middle of the t rial, would have g rante d

a c on tin ua nc e . O n c ro ss- e xami na tio n, tr ia l c ou ns e l c on fi rm e d th a t sh e ha d been invo lve d in numerous murde r trials in the past and te stified that she had ha ndled the unexpecte d m at ters that

arose during the petitioner’s tria l “[t] o the best of [her] abilities.”

Th e pe tit ion e r t e sti fi e d th a t he wa s tw e nty -thr e e y e ars olda ndha d r e c e ive d h is G ED . H e sa id he saw counsel a t his arra ignme nt, but, when he trie d to tal k t o her, she told him t hat “she didn’t speak to pe ople rig ht at that moment.” He te stified that he later wrote co u n s el sever al letters, but she wa s slow to respond and did not s eem very interested in his case

. He stated that he did not see counsel a g ain until three da y s befor e his trial when she finally came to vi s i t h i m i n p rison. The petitioner c o n c e d e d th a t c o u n s e l s e n t h im c o p ie s o f p r e tria l mo ti o n s s h e h a d f il e d in th e c a s e but complained t h at s h e never e x plained the motions to him. He said he g ave he r the na me of one inma te , T e ll y

Jo n e s , w h o m s h e in te r v ie w e d
, b u t h e w a s u n ab le to p r o v id e th e n a me s o f a n y o th er inmates bec ause he had only rec ently been moved to the seg reg ation unit. The petitioner testified that he a sk e d tria l c ou ns e l on se ve ra l oc c a sio ns to l oc a te the oth e r i nmate s w ho ha d b e e n h ou se d in-5-

the se g re g a tio n u nit

be c a us e the y wo uld be able to te sti fy on his be ha lf

. He sa id tr ia l c ou ns e l to ld him she would chec k into it and would “make every eff ort” to loc ate them, but she “didn’t re ally do
anything a

bout it.” He testifie d t h at o u t o f al l the inmates who had be en housed in the unit at the time of the incident, he believed “ sever al of them would have spoke[n] up and been able to testify on [hi s] behalf, and that it would have chang ed the outcome ” of the case

.

Th e pe tit ion e r t e sti fi e d he did no t bel ie ve that cou ns e l wa s pre pa re d to try his c a se . H e sa id he aske d trial counsel to obtain the c ontrol room log book, but she did not think i t wa s releva nt beca use of Corpor al East’s testimony that his call li g ht was never activated. He said he a lso asked her to obtain for ensic testing of the a lleg ed murde r we apon, but she told him that it was not possible. He state d that he never lea rned w hy he wa s not present a t the Fe bruary 5, 2003, pretria l hearing. H e te st i f i e d t h a t h e e xp r e s s e d h i s c o n c e r n s t o t r i a l c o u n s e l ab o u t h e r r e p r e s e n t a t i o n a n d t h a t he r o nly

re sp on se wa s to a ssu re him that sh e wo ulddo the thi ng s h e re qu e ste d, bu t sh e ne ve r d id. On c ro sse xami natio n, the pe tit ion e r a c kn ow le dg e d th a t he wa s n ot s ur e if a ny oth e r in mat es had ac tua lly witnessed the incide nt.

After taking the matter unde r adviseme nt, the post-conviction court entere d a det ail e d w ritten order on J une 13, 2005, denying the petition. Among other things, the post-c onvi ct ion court

acc redited trial co u n s el ’s testimonywith respec t to the number and dur ation of mee tings a nd

c omm un ica tio ns sh e ha d w ith the pe tit ion e r a ndhe r l e ve l of pr e pa ratio n f or tr ia l. T he po stconviction court found that trial counse l was not defic ient in her efforts to obtain the names of other
seg reg ation unit inmates, in her attempts to exclude Dr. S mith as a w itness, or in her ha ndling of Dr. Smit h’s cr oss-examination testim ony . The c ourt further found t hat t he petiti oner had failed to show
any prejudice as a r esult of t he fact t hat he ha d not been pr esent a t the pretria l motion hearing or as

a re sult of t ri al co u n s el’s delay in meeting with him in person. Accor dingly , the post-conviction
court c oncluded that the pe titioner had not me t his burden of demonstrating that he was denied the eff ective a ssistance of c ounsel.

AN AL YSI S

I. P ost-Conviction Standard of Review

The post-c onviction petit i o n er b ea rs t he burde n of proving his alleg ations by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30-110( f) ( 2003). When an e videntiary hearing is held in the post-conviction setting, the finding s of fa ct made by the court are conclusive on a ppeal unless the evidenc e pre ponderates ag ainst them. See Tidwell v. State, 922 S.W .2d 497, 500 (Tenn. 1 9 9 6 ). W h er e a p p el l at e r ev i ew i n v o l v es p u re l y fa ct u al i s s u es , t h e ap p el l at e co u rt s h o u l d n o tre we i gh

or ree valuate the evidenc e. See Henley v. State, 960 S.W .2d 572, 578 (Tenn. 1997 ). Ho we v er,

re vie w of a tr ia l c ou rt ’s app lic a tio n of the la w to the fa c ts o f the c a se is de novo
, with no presumption of cor rec tness. See Ruff v. State, 978 S

. W

. 2 d 95, 96 (Tenn. 1998) . The issue of ine ffe ctive assistance of counsel, which prese nts mixed que stions of fact a nd law, is revie wed de novo , with a presumption of correc tness g iven onl y to the pos t-conviction court’s finding s of fact. S ee F ields v. State, 40 S.W .3d 450, 458 (Tenn. 2001) ; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).-6- II. Inef fective Assistance of Cou nsel

To establish a c laim of ineff ective a ssistance of c ounsel, the petitioner ha s the burden to show both that trial coun s el ’s p erf ormanc e wa s deficie nt and that counse l’s defic ient perf ormanc e pr e jud ic e d th e ou tc ome of

the pr oc e e din g . Stri c kla ndv. Was hin g ton , 4 66 U. S. 6 68
, 68 7, 10 4 S. Ct. 2052, 2064, 80 L . Ed. 2d 674 (1984); see State v. Tay lor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 19 97 ) (n oti ng that sam e sta nd ard fo r de te rm ini ng ine ff e c tiv e a ssi sta nc e of

c ou ns e l th a t is app lie d in fe de ra l c a se s a lso app lie s in Te nn e sse e ). Th e Str ic kla ndsta nd ardis a tw o- pr on g te st:

F ir st, the de fe nd a nt m us t sh ow that c ou ns e l’ s p e rf or ma nc e was de fi c ie nt. Th is require s showing that counsel made err ors so s erious that counse l was not fu nc tio nin g a s th e “ c ou ns e l” g ua ra nte e d th e de fe nd a nt b y the Sixth A me nd me nt. Second, the de fenda nt must show that the deficient perf ormanc e pre

judiced the defe nse. This requir es showing that counsel’s e rror s were so serious as to deprive the defe ndant of a

fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct . at 2064.

The de ficient pe rfor mance prong of the test is satisfied by showing that “counse l ’s ac t s or omissions wer e so serious as to f all below an objec tive standard of rea sonablene ss under pre vailing
pr of e ssi on a l no rm s. ” Go a d v . St a te , 9 38 S.W. 2d 36 3, 36 9 (T e nn

. 19 96 ) ( c iti ng Str ic kla nd , 4 66 U. S. at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975) ). The pr ejudice pr ong of the test is satisfied by showing a re asonable probability , i.e., a “ probability sufficie nt to undermine confide n c e in

th e o u tcome,” tha t “but for c ounsel’s unprof essional er

rors, the r esult of the proc eeding would have be en diffe rent.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Be cause both prong s of the test must be satisfied, a failure t o show either de ficient perf ormanc e or r esulting pr ejudice r esults in a failure to e stablish the claim. See He nley , 960 S.W .2d at 580. For t h i s re as o n , co u rts need not a pproac h the Strickland test in a spec ific orde r or e ven

“ a d d r e s s b o th c o mp o n e n ts o f th e in q u iry if th e d e f e n d a n t ma

k e s a n in s u f

f ic ie n t s h o w ing on one.” 466 U.S. at 697, 104 S. Ct . at 2069; see a lso Goad, 938 S.W .2d at 370 (stating that “fa ilure to prove either de ficienc y

or prejudice provides a sufficie nt ba sis to deny relief on the ineff

ective a ssistance claim”)

. III. Allegations of Ineff ect ive Assistance of Counsel

On app e a l, the pe tit ion e r c on te nd s th a t tr ia l c ou ns e l wa s ine ff e c tiv e fo r fa ili ng to a de qu a te ly meet with him in order to formulate a de fense; faili ng to adequately investigate the fa cts and interview ma terial witnesse s in prepar ation of possible defe nses and mitigation in the case; fa iling
to o bta in d isc ov e ry

of the log bo ok

e ntrie s f or the pr iso n’ s c on tr ol bo ot h; fa ili ng to o bta in ind e pe nd e nt f

or e ns ic testing of

the a lle g e d mu rd e r w e apo n a ndthe vic tim ’s torn s hirt; f a ili ng to

secur e the pe titioner’s prese nce at the pretrial motion hearing; and failing to properly object to the-7-

surprise testimony

of Dr. O .C. Smith. As in the post-conviction court, the petitioner c ontends that the cumulative e ffe ct of these defic iencies in re prese ntation prejudice d the out come of his case a nd rende red tria l counsel’s re prese ntation ineffe ctive. The State responds by arg uing that the petitioner f a il e d to me e t h is b u r d e n o f p r o v in g h is a ll e g a ti o n s o f f a c t b y c le ar a n d c o n v in c in g e v id e n c e

. We ag ree with the State.

The rec ord in this case fully supports the post-conviction court’s finding that the petitioner

rec eived eff

ective assistance of counsel. Trial counsel’s testimony
, which was acc re d i t ed b ythe post-conviction court, established that she had a number of l eng thy meeting s with the petitioner a t the prison and that she responde d by letter to his corr espondenc e to he r. Tria l counsel testified that sh e me t w ith the pe tit ion e r a n a de qu a te a mou nt o f t ime to d isc us s th e fa c ts o f the c a se a ndto d isc us s and formulate their de fense . She rec eived discove ry from the State, took steps to compel the dis c ov e ry of inf or ma tio n th e pr iso n wou ld not pr ov ide , an d in te rv ie we d th e on e inm a te wh os e na me had bee n provided to her by the petitioner. How ever , she wa s unable to lo ca t e o r i n t ervie w the inmates who had be en housed in the s egr ega t i o n unit at the time of the incident be cause the petitioner could not tell her the ir names a nd the trial co u rt denied he r motion to compel that information. Trial c ounsel took rea sonable step s t o i dentify and intervie w these inmate s, and the petitioner has not shown that she w as def icient in her r epre sentation.

Th e pe tit ion e r a lso ha s no t me t his bu rd e n of de mon str a tin g that he wa s pr e jud ic e d a s a

re su lt of counse l’s alleg ed def

icienc y i n failing to locate the inmate s. At the evidentiary hearing, the petitioner testified only that he believed that some of the other inmates, if located, wo u l d h ave te sti fi e d in his de fe ns e . H e c on c e de d, ho we ve r, that he didno t kn ow if a ny of the m a c tua lly wi tne sse d th e inc ide nt. F urthe rm or e , h e didno t pr e se nt a ny of the se a lle g e d w itn e sse s a t th e po stc on vic tio n h e ari ng to sh ow that the ir te sti mon y

wo uld , in fa c t, h a ve be e n b e ne fi c ia l to his de fe ns e ha d th e y te sti fi e d a t hi s tria l. Th us , he ha s not s ho wn that he wa s p re jud ic e d b y

the fa c t th a t th e se inmates did not testify

at trial. See Bla ck v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990)

. The pe titioner further

contends that trial c ounsel was inef fec tive for failing to properly object to the testimonyof Dr. Smith, for fa iling to obtain forensic testing of the alleg ed murde r we apon and the victim’s torn t-shirt, for f ailing to se cure his presenc e at the pr etrial motion hear i n g, and for fail i n g to subpoena the log book rec ords for the control booth, which would ha ve shown the
pe tit ion e r’ s c a ll b utt on ha d b e e n a c tiv a te d n e ar the tim e of the mur de r. As no te d b y the po stconvic t i o n court, howe ver, tria l counsel objec ted to the testimony of Dr. Smith at trial but was

overr uled by th e t ri al co u rt. Furthermore , trial counsel pr ovided re asonable explanations for her failure to obtain forensic testing of the victim’s t-shirt or the alleg ed murde r we apon, testify ing tha t the pre sence of the victim’s DNA on his own t-shirt would not have helped the defe nse and that she had no adva nce noti ce , prior to Dr. Smith’s testimonyat trial, that he w ould identify the “f ishing line” in the petitioner’ s cell as the mur der w eapon.

Trial counse l conce ded that she mig ht possiblyhave ove rlooked the control room log book but expl ained that the corr ectional of fice r in cha

rg e of the unit, whom, we assume, would ha ve bee n the one to ente r the log book rec ords, testified at tria l that the petitioner’s c all button had not been-8-

activate d. Thus, even if counsel was defic ient for failing to r equest these re cords, the pe titioner has not shown that he wa s prejudice d as a r esult. Finally
, we also conclude that the rec ord supports the
po st- c on vic tio n c ou rt ’s fi nd ing that th e pe tit ion e r f a ile d to sh ow that he wa s p re jud ic e d a s a

re su lt of his failure to attend the pre trial motion hearing

.

CO NC LU SION

We conclude that the petitioner has failed to me et his bur den of demonstrating that he wa s denied the e ffe ctive assistance of trial counse l. Accor dingly , we a ffirm the post-c onviction court’s denial of the petition.

___________________________________ ALAN E. GL

ENN, JUDGE