### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs O ct obe r 25, 200 5



### JA MES L. MCCURRY v . STATE OF TENNES SEE

Direc t Appeal from the Cr im inal Cou rt for Roane County

No. 12057 E. Eugene Eb len, Jud ge

No. E2005-00350-CC A-R3- P C - F iled Janu ary 9, 2006

The pe titioner appea ls the Roane County Criminal Court’s denial of hi s petition for post-conviction relief from his co n v i ct ion for first de g ree preme ditated murder and re sulting life se ntence . He contends that he rec eived the ine ffe ctive assistanc e of c ounsel bec ause h i s trial attorney (1) f ailed to f ile a motion to suppress his state ment to police ; ( 2) failed to schedule a hearing to se t bond; (3) fa i l ed t o o b t ai n a se co n d p s y ch o l o gi ca l ev al u at i o n fo r hi m ; an d (4 ) f ai l ed t o fi l e am o t i o n fo r c h an ge of ve nu e . U po n r e vie w o f the re c or d a ndthe pa rt ie s’ brie fs , w e a ffirm th e ju dg me nt o f the po stconviction court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which D AVI D G. H A Y ES and J OHN E VE R E TT W I L L I AMS , J J
., joined.

J e n n i f e r E

. R ab y, R o c k w o o d
, T e n n e s s e e , f o r t h e ap p e l l a n t , J a m e s L

. M c C u rr y.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Jenn if e r L . B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; J. Sc ott Mc Clu e n, Di stric t Atto rn e y Ge ne ra l; an d Fr a nk Ha rv e y , Ass ist a nt Dis tr ic t A tto rn e y Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

I. F ac tu al B ac kgr ound

This case arose from the pe titioner’s shooting his ex-wife, wh o h ad o b t ained an order of protec tion ag ainst him. A jury convicted the petitioner, and this court aff irmed the c onviction. See State v. J ames L . McCurry , No. E2001-01900- CCA-R3-CD, 2002 Tenn. Cri m

. Ap p . LEXI S 447 (Knoxvil le, May

20, 2002), perm. to appea l denied, (Te nn. 2002). On a ppeal, this court state d the fo llo wi ng fa c ts:

[O]n O c tob e r 1 3, 19 98 , th e Ap pe lla nt a wo ke , d re sse d in a su it a ndtie2 and drove 4 1⁄2 hours from Ta ccoa , Geor g ia, to King ston, Tennessee
, wher e he e ntere d the side door of the Re/Max R ealty Company . At trial, the Appe llant admitted that he wore a suit and car ried a briefc ase to c onceal his pist ol so he would n o t b e noticed upon
entering the building. As he enter ed the of fice , the vi ct i m and her

co-w orker , Peg g y

Giffin, we re discussing a pac kag e the victim had just rece ived by

mail. The pac kag e conta ined cig are ttes and a car d signe d by the Appellant. As the Appellant wa lked throug h the door of the off ice kitche n, he set his brief case on the table. The Appellant

remove d the pistol from the briefca s e an d pointed it straight at the victim. I n what Giff

in describe d as a “cold, calm, [and] determined”

ma nn e r, the Ap pe lla nt s ho t th e vic tim thr e e ti mes a s th e vic tim attempted to flee to her offi ce . The autopsy report determined the

cause of death to be a g unshot wound to the victim’s right temple.

As two other e mploy ees w ere calling for e merg ency assistance , the Appellant walked bac k to the office kitchen, plac ed the
g un in his briefc ase, left the building, and drove approximately 1200

m i l e s fr o mKi n gs t o n t o M em p h i s , T en n es s ee , t h en t h ro u gh Mississi p p i, A la

b a ma , a n d b a c k to G e o r g ia

. A s h e d r o v e , the A p p e l l a n t d i s p o s e d o f h i s b r i e f c a s e a n d t h e m u r d e r w e apo n in dif fe re nt l oc a tio ns

.

Th e Ap pe lla nt s ur

re nd e re d to la w en for c e me nt o ff ic e rs in Geor g ia and wa s returne d to Tennesse e.

I d. at **3-5.

At the post-conviction evidentiary hearing, the petitioner testified that afte r the shooting, he
turne d hims e lf in to Chip An g e l, an a tto rn e y in S te ph e ns Cou nty , G e or g ia , w ho ha d r e pr e se nte d h im in a bankr uptcy case

. Ang el contacted the Stephens County police, who took the petit ioner to the Ste ph e ns Cou nty

Jail on the mornin g of Oc tob e r 1 4, 19 98 . A ng e l to ld the pe tit ion e r n ot t o ta lk t o the police w i t h o u t co unsel prese nt, and Ang el told the Stephens County Police not to ask the petitioner any

questions without the petitioner’s at t o rney . That nig ht, Kingston police office rs

arrived in Geor g ia to drive the petitioner back to T ennesse e. During the drive, the petitioner told the of fi c e rs that he didno t w a nt t o g ive a state me nt. Th e pe tit ion e r te sti fi e d that the of fi c e rs tr ic ke d h im into talking to t hem by

telling him that the victim’s son would want to know why he shot her. T he
pe tit ion e r w a s c rying a ndup se t a nda g a in t oldthe of fi c e rs that he didno t wan t to sp e ak to the m. Howeve r, he f

inally talked to them about the shooting . The ne x t day , the offic ers showe d the
pe tit ion e r h is s ta te me nt, wh ic h th e y ha d w ri tte n o ut f

or him . T he y

didno t a sk

him to s ig n it . H e sa id that th e Sta te int

ro du c e d th e state me nt i nto e vid e nc e a t tria l.

The pe titioner testified that the trial court appointed an attorney to repre sent him and that he3

me t w ith his tr ia l a tto rn e y so on a ft e r h is a

rr e st. Th e y

dis c us se d th e c ha

rg e a g a ins t hi m a ndpo ssi ble

se nte nc e s. Th e pe tit ion e r tol d his a tto rn e y that be fo re the sh oo tin g , h e ha d b e e n d e pr e sse d, un able to sle ep, unable to e at, ang ry , and hear d voices. How ever , he and his attorney never discussed any defe nses. The pe titioner told his attorney that he had g iven a statement to the police, but the attorney did not go ove r the stateme nt with him an d d i d n ot file a motion to suppress the statement. The
pe tit ion e r d id n ot h a ve a ny prior c on vic tio ns a nd tol d his at torne y that he w a nte d to g e t ou t of ja il. Th e a tto rn e y

did no t fi le a mot ion to se t bo nd
, a nd the pe tit ion e r stay e d in ja il u nti l he we nt t o tria l. He sa id that if the tr ia l c ou rt ha d se t bo nd
, he c ou ld h a ve ma de bo nd wi th the a ssi sta nc e of

fa mil y and friends. Upon hi s rele ase from jail, the petit ioner could have sought medical car e, could ha ve fo un d w itn e sse s to te sti fy on his be ha lf, a ndc ou ld h a ve hir e d a n e xpe rt ps y c hiatr ist

. The pe titioner testified that a Chattanoog a doctor had presc ribed Prozac for him but that he stopped taking the drug about one we ek bef ore the s h o o t i n g. The pe titioner’s attorney knew the petitioner had be en taking Prozac for depre ssion. I n Aug ust 1999, ten months after the crime, the petitioner had a

psy cholog ical eva luation. The petitioner wa s interviewe d for one hour and did not
take a ny ps y c ho log ic a l te sts

. Th e re su lts of the e va luatio n s ho we d th e pe tit ion e r w a s c omp e te nt t o stand trial. T h e p e ti ti o n e r a n d h is f

a mi ly ta lk e d w ith h is a tt o rn e y ab o u t g e tt in g a

s e c ond
psy cholog ical eva luation to determine if the pe titioner was sane at t h e t i m e o f t he crime, but the attorney did not think a se cond evaluation wa s nece ssary

. The attorney never asked the petitioner

abo ut h is ch ild ho od or if he ha d pri or ps y c ho log ic a l pro ble ms. To the pe tit ion e r’ s k no wl e dg e , h is attorney never contac ted his Chattanoog a phy sician. The pe titioner and his attorney discussed the fa c t th a t st op pin g Pr oza c abr up tly c ou ld p ro vid e hi m wi th a po ssi ble de fe ns e to the c ri me , b ut h is attorney did not investigate possible defe nses. He stated that his fa t h er h ad b een phy sically and mentally abusive, that he had fa llen out of a swing as a child and had bee n knocked unc onscious, and that he suff

ere d head injurie s in a car acc ident in the 1960s. He state d that voices told him to kil l the victim but that he did not drive to Kingston on Oc tober 13, 1998, with the intent to kill her.

Th e pe tit ion e r d id n ot belie ve he c ou ld g e t a fair tr ia l in Roa ne Cou nty

be c a us e the vic tim had bee n a life- long c itiz en and be cause there was extensive publicity about the case

. Eig ht potential jurors we re dismissed from the j ury pool beca use they stated they

could not be fa ir. The pe titioner talked with his attorney

about see k i ng a chang e of ve nue, but his attorney never filed a motion. Ap pr oximate ly

on e we e k b e fo re tr ia l, the pe tit ion e r’ s att orne y ta lke d with him abo ut ple a din g g uil ty

a ndre c e ivi ng a

tw e nty -f ive -y e ar se nte nc e

. On the da y the pe tit ion e r wa s supp os e to ple a d g uil ty , h is attorney learned that a life sentenc e wa s mandatory and that the pe titioner would be re quired to ser ve the sentenc e at eig hty -five perc ent. The petitioner decide d he had nothing to lose by g oing to tria l

a n d d e c i d e d n o tt o p l e a d g u i l t y.

On cr oss-examination, the petitio n er ac k nowledg ed that he and his attorney discussed suppressing his statement and that parts of the s tatement reg arding the petitioner’s dr ug and alc ohol use could have been helpful to the defense. The petitioner also a cknowledg ed sig ning a waiver of ri g hts fo rm in Ste ph e ns Cou nty , Ge or g ia a nd that his tri a l atto rn e y ta lke d with a tto rn e y Chi p A ng e l. He state d th a t tw o w itn e sse s sa w h im w a lk i nto the vic tim ’s of fi c e a ndsh oo t he r, bu t he sa id tha t if his statement had bee n suppressed, the jury would not have lea

rned tha t he conf

essed to killing the4

victim. He ac knowledg ed that his d ef en s e at trial wa s that he wa s insane or suf fer ed fr om diminis hed ca

pacity at the time of the shooting , not that he did not shoot the victim. He acknow ledg ed that he and his attorney talked about bond and that his attorney told him t he amount

wo uldbe hig h. He state d th a t hi s a tto rn e y did no t te ll h im that th e a tto rn e y ha d s po ke n to his fa mil y and that they

had limited resourc es and limit ed will ingne ss to hire another psy cholog ical expert. He admitted that he neve r told his attorney he hea rd voice s or that his father abused him. He stated that he a ttended jury

selec tion and that he did not reque st for any of the sele cted juror s to be excused. The petitioner acknow ledg ed that the jurors swore they could decide his c ase fairly

. On redire ct

e xami natio n, the pe tit ion e r t e sti fi e d that he didno t w a nt any pa rt s o f h is s ta te me nt i ntr od uc e d in to evidenc e at tria l and that his attorney discourag ed him from see king bond.

Dr. Ke nneth Anchor , a clinica l psy cholog ist, testified that he eva luated the pe titioner’s mental conditi o n and re viewed the trial transc ript, the petitioner’s medic al re cords, a nd the petitioner’s post-c onviction petition. On November 6, 2003, Dr. Anc hor interview ed the pe titioner for f ive hours and g ave the petit i o n er p s y ch o logic al tests. He state d that the petitioner wa s cooper ative but see med withdraw n, detac hed, and f atig ued a n d t h at t he petitioner c omplained of nightmar es, alc ohol abuse, and hearing voices. The pe titioner told Dr. Anchor that he dra nk eig ht
to t en beers the nig ht before the shooting a nd that on the morning of the shooting , he dra nk more than one qua

rt of cof fee . The pe titioner told Dr. Anchor that at the time of the shooti n g, he wa s “foc used entire ly

upon doing w hat the voice s were instructing him to do.”

Dr. Anc hor testified that the results of the petitioner’s psy cholog ical tests re veale d that the petitioner w as “seriously

impaired,” had a sc hizoi d type of pe rsonality , and had ma jor depre ssive disorder. A n intelligenc e test reve aled that the pe titioner was in the “low a vera g e ra ng e,” c onsistent wi ths o me o n e h a v in g a n e ig h th

- g r a d e e d u c a ti o n

. F u r th e r te s ti n g r e v e a le dth a t th e p e ti ti o n e r h ad ill og ic a l or

ir ratio na l be lie fs , “ mark e d c og nit ive or me nta l im

p ai r m e n t , ” p s y c h o t i c th o ug ht p ro c e sse s, and mar g inal mental alertness. Dr. Anc hor conc luded that it wa s “somewhat doubtf ul” the petitioner had bee n competent t o s tand trial and state d that the petitioner may have me t the criteria for a n insanity defe nse. On cross-examination, Dr. Anchor testi fied that the petitioner’s a ctions befor e the shooting re fl ec ted that he ha d planned pa rts of the c rime. He acknow ledg ed that his conc lusions differ ed with t he petiti oner’ s prior evaluation and acknowledg ed that the prior evaluation was done closer to the date of the c rime. Howe ver, he said that no psy cholog ical testing was c onducted on the petitioner. He stated t hat he ha d previously testified in court, mainly

for de fenda nts, and that his fee in this case would be a

few thousand dollars.

The pe titioner’s trial attorne y testified that he met wit h t h e petiti oner shortly afte r the petitioner’s a

rre st and that his notes reve aled the meeting lasted two and one -half hour s. Counsel fi le d a mot ion to se t bond bu t did not re qu e st a he ari ng on the mot ion

. Th e pe tit ion e r’ s b on d w ou ld have be en at lea st o n e h u n d re d thousand dollars, and the petitioner’s c hance s of ra ising the te n thousand dollars nee ded in orde r to be re lease d would have be en “virtually nil.” The pe titioner indicated to counse l that ge tting out o f j ai l wa s not that important to him beca use the pe titioner wanted to “ build tim e.” T he petitioner ne ver told him that the petitioner would be able to find witnesses if he w as re lease d on bond.5

Counsel testified that he discussed the petitioner’s stateme nt with him i n det ail . The
p e t i t i o n e r h a d s i g n e d a

w a i v e r o f r i g h t s f o r ma t7 : 1 5 p

. m

. o n O c t o b e r 1 4
, 1 9 9 8
, i n S t e p h e n s C o u n t y, Geor g ia. Counsel talked with Chip Ang el, and Ang el neve r told him that the petitioner ha d invoked his right to counse l. The petitioner a lso did not te ll his trial attorney that he had invoke d his right
to c ou ns e l. H ow e ve r, the pe tit ion e r t old c ou ns e l tha t whe n he g ot to jai l, he tol d off ic e rs that he d id
not want to speak w ith any one. Counsel had no leg al basis to attack the waiver of rig hts form and, there fore , did not file a motion to suppress the petitioner’s stateme nt. He said that some of what the petitioner said in the stateme nt would have c ome out at trial any way and that the de fense wanted the jury to hear some of the state ment to show that the petitioner suff ere d from diminished capa city

. Counsel testified that the petitioner ha d led him to believe that the pe titioner was taking Prozac at the ti me of the s hooting. Howeve r, whe n the petitioner testified at trial, he said that he ha d stopped taking the drug two or three day s befor e the shooting and that he ha d n o t consum ed any alcohol. The petitioner never told c ounsel that he had been abused by his f ather or t h at h e h ear d voices. How ever , the petitioner wa s depre ssed, and counsel reque sted a psy cholog ical eva luation. Acc ording to the evaluati o n , t h e petiti oner w as compe tent and wa s not insane at the time of the crime. Counsel did not be lieve the trial court would allow a sec ond evaluation, and counsel did not
reque st one. Counsel could not find any one to pay for a secon d
, i n d ep endent psy cholog ical

ev al u at i o n

. He s t at ed t h at t h e p et i t i o n erd i d n o ts ee mt o h av e an y d i ff i cu l t y u n d er s t an d i n g t h e c h ar ge

or potential sentenc es. The petitioner wrote down information about the crime and, other than a few mis sp e lli ng s, the pe tit ion e r’ s w ri tte n s e nte nc e s w e re c oh e re nt. He state d th a t th e pe tit ion e r’ s c a se

wa s n ot as hig hly pu bli c ize d as som e oth e r mur de r tr ia ls, a ndhe didno t be lie ve the tr ia l c ou rt wo uld
g rant a motion for chang e of ve nue. I n the two y ear s betwee n the crime and the tria l, there w as no serious publicity

about the ca se.

O n c r o s s

- e x a m i n a t i o n , c o u n s e l t e s t i f i e d t h a th e h a d b e e n p r a c t i c i n g l a w f o r ab o u tt w e n t ythree y ear s and that he me t with the petitioner four or five times. He acknow ledg ed that during the drive fr om Georg ia to Tenne ssee, the pe titioner was cry ing and upset. The pe titioner told counsel that he did not rea d the waive r of rights form

. C o u n s el s t ated that at least four pote ntial jurors

a dmi tte d th e y

c ou ld n ot g ive the pe tit ion e r a fair tr ia l bu t tha t he an d the Sta te we re able to s e le c t a f a i r a n d i m p ar t i a l j u r y.

I n a written o r d e r , th e p o s t- c o n v ic ti o n c o u r t d e n ie d r e li e f

. A c c o r d in g to th e o r d e r , the
pe tit ion e r’ s a tto rn e y wo rk e d d ili g e ntl y on his c a se , a ndthe pe tit ion e r m isl e d c ou ns e l r e g ard ing his

us e of dr ug s a nda lc oh ol b e fo re the c ri me . Reg ard ing the pe tit ion e r’ s st a te me nt t o p oli c e , th e po stconviction court determined tha t c ounsel discussed the petitioner’s options with him, that a motion to suppress proba

bly would have f

ailed, and that there wer e portions of the stateme nt that counsel

a ndthe pe tit ion e r w a nte d b e fo re the jury . A s to bo nd , th e c ou rt fo un d “ no e vid e nc e wi th w hic h to believe that the rele ase of the defe ndant on bond pending trial would have aff ecte d the outcome of the trial in any

way .” Reg arding a sec ond psy cholog ical eva luation, the court co n cl u d ed that the petitioner withheld informa tion from his attorney about his men tal condition, that there w ere no private funds available for a second evaluation, a nd that another evaluation would not have a ffe cted the ou tc ome of

the c a se . F ina lly , a s to a chan g e of ve nu e , th e po st- c on vic tio n c ou rt he ld tha t a6

reque st for cha ng e of ve nue would have been de nied.

II. Ana lys is

The pe titioner claims that he re ceive d the i neff ective assistance of counsel because his trial attorney (1) f ailed to file a

motion to s uppress his statement t o police; (2) f ailed to sche dule a he aring to set bond; (3) fa iled to obtain a sec ond psy cholog ical eva luation for him; and (4) fa i l ed t o fi le a moti o n f o r c h a n g e o f v e n u e

. T h e St a te c laim s th a t th e p e ti ti o n e r d id n o t r e c e iv e the ineffe ctive assistance of counse l. We ag ree with the State.

To be succ essful in his claim for post-c onviction relief
, the petit ioner must prove a ll factua l alleg ations contained in his post-conviction petition by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30- 110(f) . “‘Clea r and c onvincing evidenc e mea ns evidenc e in w hich there is no serious or substantial doubt about the c orre ct n es s o f t he conc lusions drawn fr om the evidenc e.’” State v. Holder, 15 S.W .3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodg es v. S.C. Toof & Co., 833 S.W .2d 896, 901 n.2 (Tenn. 1992) ). I ssues reg arding the cre dibilit y of witnesses, the weig ht and value to be a ccor ded their te stimony , and the f actua l questions raised by the evidence adduced at trial

are to be re solved by

the post-conviction court as the trier of fa ct. See Henley v. State, 960 S.W .2d 572, 579 (Tenn. 1997) . There fore , we a ffor d the pos t-conviction court’s finding s of fact the we ight of a jury verdic t, w ith suc h finding s being conclusive on appea l a bsent a showing that the evidenc e in the rec ord pre ponderates ag ainst those finding s. I d. at 578.

A c la im o f ine ff

e c tiv e a ssi sta nc e of c ou ns e l is a mixe d que sti on of la w an d fa c t. S e e Sta te v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999) . We will review the post-c onviction court’s finding s of fac t de novo with a pre sumption t hat those finding s are corr ect. See Fields v. State, 40 S.W.3d 450, 45 8 (T e nn . 200 1) . H ow e ve r, we wi ll r e vie w the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w p ur e ly de novo. I d. “To e stablish ineffec tive assistance o f co unsel, the petitioner be ars the bur den of proving both that counsel’s pe rformance was de ficient a nd that th e defic iency prejudice d the defe nse.” G oad v. S tate, 938 S.W .2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U. S. 6 68 , 6 87, 10 4 S

. Ct . 2 05 2, 20 64 (1 98 4) ). In e va luatin g wh e the r the pe tit ion e r h a s me t th is burden, this court must determine whethe r counse l’ s p erformanc e wa s within the rang e of competenc e re quired of attorney s in criminal case s. See Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975).

Re g ard ing the pe tit ion e r’ s c la im that his a tto rn e y faile d to fi le a mot ion to su pp re ss h is
statement to police, the attorney testified t hat he discussed t he stateme nt with the petitioner and that the y wa nte d the ju ry

to h e ar p art s o f the state me nt. Th us , th e a tto rn e y ’s no t f ili ng a mot ion to

su pp re ss w a s a ta c tic a l dec isi on

. Th e a tto rn e y a lso te sti fi e d th a t he didno t f ile a mot ion to s up pr e ss beca use the pe titioner had sig ned a w ritten waive r of rights form. Although the waiver of rig hts form is n o t i n th e r e c o r d o n ap p e a l, th e f o r m w a s in tr o d u c e d in to e v id e n c e a t t r ia l, a n d w e ta

k e ju d ic ial notice of the rec ord in the di rec t appea l of t he petiti oner’ s conviction. See State ex rel. Wilkerson v. Boma r, 213 Tenn. 499, 505, 376 S.W .2d 451, 453 (1964). The wa iver of rights form shows that the petitio n er s i g ned it on October 14, 1998, in Stephens County , Geor g ia and that two King ston,7

Tenne ssee police office rs wit nessed the petitioner’s signing the form. Ser g eant Chris Woody of the King ston Pol ice De partment testified at trial that he and two other office rs drove the petitioner ba ck
t o K i n g s t o n , a n d S e r g e a n t W o o d y a c k n o w l e d g e d t h a tt h e p e t i t i o n e r w a s “ t a l k a t i v e

. ” T h e n e x td a y, Woo d y w r o te d o w n s tate me n ts th e p e ti ti o n e r h a d ma d e d u r in g th e trip

. O u r r e v ie w o f the
pe tit ion e r’ s d ir e c t app e a l re c or d re ve a ls that the Sta te didno t in tr od uc e Woo dy ’s writt e n n ote s in to evidenc e. Howeve r, W oody rea d from his notes some of t he st atements that the petitioner had made

. He state d that the petitioner c ried a nd seeme d remorse ful at times but ac k n o wl ed ged that the petitioner wa s able to spe ak clea rly and communicate eff

ectively

. The petitioner’s a ttorney testified that ne ith e r C hip An g e l no r the p etition e r t oldhim that th e pe tit ion e r h a d in vo ke d h is rig ht t o counsel. Thus, e ven if the pe titioner’s attorney had filed a motion to s uppress, ther e is no evidenc e that the petitioner invoked his rig ht to counsel or that the trial court would have g rante d the motion. The pe titioner has fa iled to show that he re ceive d the ineffe ctive assistance of counsel or that he wa s prejudice d by

the attorne y ’s not filing the motion.

As to the pe tit ion e r’ s c la im tha t he re c e ive d the ine ff e c tiv e a ssi sta nc e of

c ou ns e l be c a us e his trial attorney

failed to sche dule a he aring to set bond, we a g ree with the post-conviction court that the pe tit ion e r h a s ma de no sh ow ing that his be ing on bo ndwo uldha ve c hang e d th e ou tc ome of his

case

. Re g a

r d in g h is attorney ’s fa ilure to reque st a second psy cholog ical examination, the petitioner’s attorney testified t hat the re sults of the first exam, which was c onducted c loser to the date of the crime than Dr. Anchor ’s exam, showe d that the petitioner was sane and compe tent at the time of the crime. Mor eover , Dr. Anc hor did not testify at the post-conviction hea ring that the petitioner wa s insane a t the time of the crime or incompete nt to stand tria l, and the petitioner ha s failed to show that

a sec ond psy cholog ical evaluation would have chang ed the outcome of his case . Finally , as to the petitioner’s c laim that he re ceive d the ineff ective a ssistance of c ounsel bec ause his trial a ttorney fa ile d to fi le a

mot ion to c ha ng e ve nu e , th e pe tit ion e r h a s p re se nte d n o e vid e nc e to s up po rt his c la im that excessive cove rag e in the media made him unable to rec eive a fair trial in Roane County . The peti ti o n e r h a s in c lu d e d th e ju r y

v o ir d ir e tr a n s c r ip t i n th e ap p e ll a te r e c o r d

. O u r r e v ie w o f

the
t ra n s cr i p ts h o ws t h at n ea rl y al l o f t h e p o t en t i al j u ro rs h ad h ea rd ab o u tt h e p et i t i o n er ’s ca s e t h ro u gh the media a nd that sever al stated they co u l d n o t b e fa ir. Howe ver, those pote ntial jurors wer e dismiss ed fr om the jury

pool, and t he petitioner ha s prese nted no evidenc e that the r emaining jurors

wer e tainted by

the publicity

in his case.

III. Conclusi on

Ba sed upon the rec ord and the parties’ briefs, w e af firm the judg ment of the post-c onviction

c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE