### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE February 7, 2

001 Session
DANNY RAY HOUSE v. STAT E OF TENNESSEE
Appeal from the Co

urt of Criminal Appe

als Criminal Court for Davidson County No. 96-A-70 Seth W. Norman, Judge

No. M1998-00464-SC-R11-PC - Filed May 16, 2001

A DOLPHO A. B IRCH , J R ., J., dis senting. Assuredly, trial counsel’s failure to ascertain the identity of the State’s informant rendered his performance deficient under the first prong of the test established in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (198 4). Unlike the majority , however, I

would further hold that this case

presents suffic

ient evi dence of prejudice to satisfy the second prong of Strickland

. As a consequence, I do not agree that an in camera hearing is neces sary. Instead, I would vacate Hou

se’s conviction a

nd remand the ca

use for a plea or

a trial.

As noted by the

majority, the

test for determin

ing prejudice in

cases at the ple a stage is whether “there

is a reasonable p

robability th

at, but for counse

l’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59, 106 S. Ct

. 366, 370, 88 L. E d. 2d 203 (1985); see also State v. Garrison , ___ S.W.3d ___ (Tenn. 2000). The “reasonable probability” contemplated in Hill has been defined as a “pro babil ity sufficient to undermine conf

idence in the outc

ome” of the proce

edings. Henley v. Sta

te , 960 S.W.2d 572, 579 (Tenn. 1997) (

quoti ng Strickl and , 466 U.S. at 694, 104 S. Ct. at 2068). The majority’s holding assumes that it is necessary, in order to determine prejudice, to first ascerta in what the informant’s testimony would have been. This assumption, in my view, is misplaced, for H ouse’s conduct prior to his guilty

plea leads me to c

onclude there is a

reasonable pro

babilit y that Ho use would have insisted on going to trial had the informant’s identity been available.

This Courthas given dispositive weight to the conduct of the defendant in another rece

nt case involving a claim of ineffec tive assi stance of counsel. In State v. Garrison , we held that trial counsel’s fa ilure to communicate a plea offer to the defendant did not result in prejudice. ___ S.W.3d at ___. In so holding, we rested our decision on the defendant’s repeated insistence that he wished to go to trial and that he would not accep t anyplea offers. Id. at ___. This insistence, we held, distinguished the case from a prior case in which the defendant’s ignorance of a plea offer was sufficient to demonstrate prejudice. Id. at ___ (discussing State v. Harris , 875 S.W.2d 662, 663-66 (Tenn. 1994)).-2-

House’s conduct in

this case strong

ly sugge sts that the result likely would have been different had counsel’s performance been effective. House repeatedly asserted his innocence and insisted that the informant would exonerate him. Only after House’s counsel told him that the informant’s identity was unavailable did House decide to enter a guilty plea. Eve n then, House refused

to admit guilt. Instead, he entered a “best interest” plea. See generally North Carolina v. Alford , 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (discussing b

est interest

pleas). Clearly, House believed that he
co uld prevail at trial were the informant available to testify, and his decision to enter a ple a was basedlargely o

n counsel’s failu

re to obtain the inf

ormant’s i dentity . Although counsel suggested at the post-conviction hearing that the informant may not hav e pro vid ed u sef ul t est imo ny, the record does not suggest that House shared this belief. To the contrar y, House’s conduct and assertions suggest that he likely would have insisted upon a trial hadhe known the informant’s identity, even
were there no opportun

ity before hand to interview

the informant. Thi

s likelihood, in my view, is sufficient to undermin

e my co nfidence in the outcome of this case. Accordingly, I conclude that House suffered

prejudice as a r

esult of counsel’ s failure to asce rtain the identity

of the informant.

Because I find that both prongs of the Strickland

test have been satisfied, I would not order
an in camera

hearing to investigate what the informant’s testimony might have bee n. Whether or
no t House ha d an opportunity to explore the infor

mant’s testimony

prior to trial, he l

ikely would have refused to plead guilty if the option of calling the informant as a witness were

available to him. Con seq uen tly, I would hold that House has suffered prejudice, and I would remand the cause to the trial court so that House may obtain the identity of the informant, as he would have been entitled to do prior to a trial.

He would then be a

ble to evaluate a

new how he would c

hoose to d ispose of his case in light o

f this new knowledg

e. Accordingly

, I dissent.

___________________________________ ADOLPHO A. B IRCH, JR., JUSTI CE