FILED

April 22, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

ALVIN SEAGROVES, ) C.C.A. NO. 01C01-9711-CC-00553

)

Appellant, )

)

) GRUNDY COUNTY

VS. )

) HON. J. CURTIS SMITH,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF GRUNDY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP A. CONDRA JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

P.O. Box 220

200 Betsy Pack Drive KAREN M. YACUZZO

Jasper, TN 37347 Assistant District Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

J. MICHAEL TAYLOR

District Attorney General

THOMAS D. HEMBREE

Assistant District Attorney General

Jasper, TN 37347

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Alvin Seagroves, appeals the trial court’s dismissal of his

petition for post-conviction relief following an evidentiary hearing. In 1974,

Defendant was convicted by a jury of three counts of first degree murder and one

count of assault with intent to commit first degree murder. He was sentenced to

life imprisonment for each murder and not less than six years or more than

twenty-one years for the assault. His convictions and sentences were affirmed

on appeal. State v. Alvin Seagroves, Nos. 730-733 (Tenn. Crim. App., Nashville,

Sept. 15, 1976). In 1981, Defendant filed a petition for post-conviction relief

which was dismissed by the trial court without an evidentiary hearing. The

dismissal of that petition was affirmed on appeal. Alvin Seagroves v. State, No.

81-182-III (Tenn. Crim. App., Nashville, Jan. 22, 1982).

In 1989, Defendant filed the petition for post-conviction relief which is being

considered in the case at bar. After conducting an evidentiary hearing, the trial

judge entered an order denying relief. It is from this order denying relief that the

Defendant appeals. In this appeal, he contends (1) that the State failed to

provide evidence favorable to the defense prior to trial in violation of Brady v.

Maryland, 373 U.S. 65 (1963); (2) that the court denied him a fair trial by

delivering erroneous jury instructions; and (3) that he did not receive the effective

assistance of counsel at trial. We affirm the denial of relief by the trial court.

If afforded a post-conviction evidentiary hearing by the trial court, a

petitioner must do m ore than merely present evidence tending to show
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incompetent representation and prejudice; the petitioner must prove factual

allegations by a preponderance of the evidence. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1974) (superseded by Tennessee Code Annotated § 40-30-

210(f) (requiring clear and convincing evidence)). When an evidentiary hearing

is held, findings of fact made by that court are conclusive and binding on this

Court unless the evidence preponderates against them. Cooper v. State, 849

S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990)).

I. BRADY VIOLATIONS

In order to prove a due process violation under Brady v. Maryland, 373

U.S. 83 (1963), Defendant must show that (1) he requested the allegedly

withheld information, (2) the State suppressed the information, (3) the information

was favorable to the accused, and (4) the information was material. State v.

Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). When there has been a general

request for information, as in this case, “the undisclosed inform ation is ‘material’

if it ‘creates a reasonable doubt that did not otherwise exist.’” Id. (quoting United

States v. Agurs, 427 U.S. 97, 112 (1976)). Therefore, “the omission must be

evaluated in the context of the entire record.” Agurs, 427 U.S. at 112.

Defendant claims that the State failed to deliver three pretrial statements

which would have been favorable to his defense—namely, statements made by

Phyllis Gregory, Emmett Paul, and Linda Nunley. On this issue, we find that

Defendant has failed to sustain his burden of proving his factual allegations by

a preponderance of the evidence.
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Defendant asserts in his brief that attempted murder victim Phyllis Gregory,

Defendant’s former girlfriend and mother of their child, failed to report to medical

personnel at Erlanger Hospital that she had been shot in the neck. According to

Defendant, this information could have been used on cross-examination to

contradict Gregory’s statement at trial that Defendant shot her in the neck before

he shot her in the abdomen. 

The medical records located in the technical record are for the m ost part

illegible. Furthermore, Gregory was not admitted to Erlanger until two days after

the incident at issue. It is unreasonable to imagine that Gregory postponed

treatment for two days; therefore, these records are incomplete for lack of entries

accounting her initial treatment. The absence of notation for a gunshot wound

to the neck in the Erlanger Hospital records does not constitute a statement

favorable to the defense. As the post-conviction court noted, “The record

contains no proof Ms. Gregory failed to report the neck wound upon her initial

admission to the Sewanee Hospital immediately after the shooting.”

In addition, even if Gregory’s statement at trial did constitute a statement

favorable to the defense, there is no evidence in the post-conviction transcript to

show that the State possessed the information but withheld it. Finally, the

statement is not material in the sense of creating a reasonable doubt. According

to the post-conviction court’s findings of fact, after Defendant shot the four victims

in this case, “[h]e then returned to his automobile, secured a carbine and returned

to the Metcalf car where all of the adults lay wounded or dead and proceeded to

empty the carbine into the autom obile.” 
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The next alleged, undisclosed statement is that of Emmett Paul. According

to Defendant, Paul stated that the car containing the victims was parked when

Defendant’s car pulled up beside it, exited the car, and began shooting. His

theory is that this statement would have shown the jury that the victims were

“lying in wait” for him. However, the statement was never introduced into the

post-conviction record. The only evidence tending to show that Paul’s statement

was made does not constitute “evidence” at all. Rather, post-conviction counsel

hypothetically inquired of Defendant’s trial counsel, “[I]f there was a witness that

said the blue Ford Torino was parked and sitting still when the red car drove up,

would that have been contrary to [testimony at trial]?” This, without more, does

not prove that the State possessed a statement which it withheld from the

defense; and Defendant provided nothing more.

Finally, Defendant argues that the State should have disclosed a statement

by Linda Nunley in which she stated that Defendant was shooting at their car at

the time the State alleged he shot victim Johnnie Metcalf in the back. Postconviction counsel asked Defendant’s trial counsel, “If this wom an said . . .

[Johnnie Metcalf] was running toward Geary’s holding her side hollering for help.

Alvin Seagroves was at this time firing the rifle towards the blue car . . . . [W]ould

this have been important information [to the defense] that he was too busy

shooting at the car to be shooting at her?” This statement by post-conviction

counsel while asking a question of trial counsel does not prove that the statement

was made by Nunley, nor does it prove that the State possessed such a

statement. 
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Post-conviction counsel repeatedly asked such hypothetical questions of

the trial counsel, but never introduced any of the alleged statements into the postconviction record. When one of Defendant’s trial counsel questioned the source

of the statement by saying, “If she, in fact, said what you said she said, and if, in

fact, I had that statement, I probably would have cross-examined her as to that

point.” Post-conviction counsel responded, “Surely you don’t think I just made

that whole conversation up?” This Court is not in a position to assume facts

where no evidence has been entered. 

II. JURY INSTRUCTIONS

Defendant contends that the trial court erred by improperly instructing the

jury. Specifically, he argues that the trial judge erred in its charge on (1) parole

eligibility, (2) reasonable doubt, (3) finding Defendant “innocent,” (4) definition of

“deliberate,” and (5) self-defense. The post-conviction court concluded, “These

issues have been waived, in that they were not raised on initial appeal or in the

first petition for post-conviction relief.” We agree, with the exception of the jury

instruction on parole eligibility, which was raised and decided on direct appeal;

therefore, this issue has been previously determined. See State v. Alvin

Seagroves, Nos. 730-733 (Tenn. Crim. App., Nashville, Sept. 15, 1976).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant asserts he suffered ineffective assistance of counsel at trial.

Defendant raised the issue of ineffective assistance in his first post-conviction

petition filed in 1981, a fact that would usually preclude the issue from being relitigated. See Cone v. State, 927 S.W.2d 579, 581-82 (Tenn. Crim. App. 1995).

However, because Defendant did not receive an evidentiary hearing, we find that
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he did not receive a “full and fair hearing” on the issue as required by Tennessee

Code Annotated § 40-30-112(b) before an issue may be considered previously

determined. See House v. State, 911 S.W.2d 705 (Tenn. 1995) (“[A] ‘full and fair

hearing’ sufficient to support a finding of previous determination occurs if a

petitioner is given the opportunity to present proof and argument on the petition

for post-conviction relief.”). Therefore, we will not consider the claims previously

determined.

To be entitled to post-conviction relief on the basis of ineffective assistance

of counsel, Defendant must show that his counsel’s representation was

“deficient” and that “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong,

counsel’s performance is not deficient when “the advice given, or the services

rendered by the attorney, are within the range of competence demanded of

attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

The second prong requires Defendant to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id.

With respect to rationalization of attorney conduct in an ineffective

assistance of counsel case, the Supreme Court instructed,

Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence. . . . A

fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.
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Id. at 688.

In this case, Defendant complains of ineffective assistance by his trial

counsel for failure to confer, advise, and investigate. In its order denying relief,

the post-conviction court concluded that Defendant failed to carry his burden to

prove ineffective assistance by a preponderance of the evidence. We find that

the evidence does not preponderate against this finding. Contrary to Defendant’s

testimony at the post-conviction hearing, his trial counsel testified that they met

with him on several occasions in preparation for trial. Furthermore, Defendant

has not produced any evidence tending to show how he was prejudiced by the

allegedly deficient representation at trial. This issue lacks merit.

Because Defendant’s claims of improper jury instructions have been

waived or previously determined, and because we find the evidence does not

preponderate against the trial court’s findings that allegations of Brady violations

and ineffective assistance of counsel lack merit, we affirm the trial court’s denial

of post-conviction relief.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JERRY L. SMITH, JUDGE