# FILED April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999
ALVIN SEAGROVES, ) C.C.A. NO. 01C01-9711- CC-00553 ) Appe llant, ) ) ) GRUNDY COUNTY VS. ) ) HON. J. CURTIS SMI TH, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF GRUNDY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : PHILI P A. CONDRA JOHN KNOX WALKUP Distri ct Public

Defender Attorney Generaland Reporter P.O. Box 220 200 Betsy P ack Drive KAREN M. YACUZZO Jasper, TN 37347 Assistant Distri ct Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 J. MI CHAEL TAY LOR Distri ct Attorney General THOMAS D. HEMBREE Assistant Distri ct Attorney General Jasper, TN 37347
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Alvin Seagroves, appeals the t rial cour t’s di smissal of his petiti on for post- convicti on relief followi ng an evide ntia ry heari ng. In 1974, Defendant was convicted by a jury of three counts

of fir st degree murder and o ne count of assau lt with intent to c omm it first degree murde r. He was senten ced to life imprisonment for each murder and not less t han six year s or more than twenty-oneyears for the ass ault. Hi s convict ions and sentences were affi rmed
on appea l. State v. Alvin Seagrov es , Nos. 730-733 (Tenn. Crim. App., Nashv ille, Sept. 15, 1976). In 19 81, Defend ant filed a petition for post-c onvicti on relief which was dism issed by the trial court witho ut an evidentiary he ari ng. The dismissal of that petition was affirm ed on a ppeal. Alvin Seagr oves v. Sta te , No. 81-182-III (Ten n. Crim. App ., Nashville, Jan. 22, 19 82).

In 1989, Defendant f iled thepetiti on for post- convicti on relief which is being considered in the case at ba r. After conducting a n evidentiary hearing, t he trial judge entere d an o rder de nying r elief. It is from th is order denyi ng relief that the Defendant appeals. I n this appeal , he contends ( 1) that t he State f a iled to provideevidenc e favorab le to the de fense p rior to tr ial i n violation o f Brady v. Maryland , 373 U .S. 65 (19 63); (2) tha t the court d enied him a fai r tri al by delivering erroneous jury instructions; and (3) tha t he did not receive th e effective assistan ce of cou nsel at trial. W e affirm the denial of re lief by the trial co urt.

If afforde d a po st-con viction e videntia ry hea ring by the trial c ourt, a petiti oner must do m ore than m erely present evidence tend ing to show-3-

incompetentrepresentat ion and prejudice; the petitioner must prove fact ual allegati ons by a prep ondera nce of the evidenc e. Clenny v. State , 576 S.W.2d 12, 14 (Te nn. Crim. App. 1974) (superseded by Tennessee Code Annotated § 40- 30 - 210(f) (requir ing clear and convinci ng evidence)). When an evidentiary hearing is held, fi ndings of fact made bythat court a re con clusive and b inding on this Court unless th e eviden ce prep ondera tes aga inst them
. Coop er v. S tate , 849 S.W.2d 744, 746 (Tenn. 1993)(citi ng Butler v. Sta te , 789 S.W.2d 898, 899 (Tenn. 19 90)).

I. BRADY VIOLATI ONS In order to prove a d ue proces s violation under Brady v. Mary land , 373 U.S. 83 (1963), Defendant must sh ow tha t (1) he r eque sted th e alleg edly withhe ld informati on, (2) t he S tate suppres sed the information, (3) the inf ormation
was favorabl e to the accused, and ( 4 ) the inform ation wa s mate rial. State v. Edgin , 902 S.W.2d 387, 389 (Tenn. 1995). When there has been a general request for inf

ormation, as in this ca se, “the undis close d inform ation is ‘mate rial’ if it ‘creates a reasonable doubt that did not ot herwise exist.’” Id. (quoting United States v. Agurs , 427 U.S. 97, 112 (197 6)). Therefore, “t he omission must be evaluated in the c ontext of the entire reco rd.” Agurs , 427 U.S. at 112.

Def enda nt c lai ms that the S tate failed to deliver three pretrial state ments which would have been favorable to his defense—namely, statements made by Phyllis Gregory, Emmett Paul, and Linda Nunley. On this i ssue, we fi nd that Defendant has fail ed to sustai n his burden of proving hi s factuala llegati ons by a preponderance of the evidence.-4- Defendant asse rts in hi s brief t hat attempted murder victi m Phyllis Grego ry , Defe ndan t’s former girlfri end and mother of t heir chil d, fail ed to report to medical personnel at Erlan ger H ospita l that sh e had been shot in the neck. Accord ing to Defen dant, this i nformation cou ld have been used on cr oss-examina ti on to contradictGreg ory’s statement at trialthat Defendant

shot her in the ne ck before he sho t her in the a bdom en.

The medical records located in th e technicalrecord are for the m ost part illegi ble. Furthe rmor e, Gre gory w as no t adm itted to E rlange r until two days after the incident a t issue. I t is un reasonable to imagine that

Gregory postponed treatment

fortwo days; therefore, these records are i ncomplete for lack of ent ries accounting her init ial tr eatment. The absence of notation for a gunshot wound to the ne ck in the Erlanger Hospital r

ecords does not constitute a statement favora ble to the defe ns e. As the post-conviction court noted, “T he record containsno proof Ms. Gregory fail ed to report the neck w ound upon h er init ial admis sion to the Sewa nee H ospital im media tely after the s hooting .”

In additio n, even if Greg ory’s statement at trialdid consti tute a statement favora ble to the defen se, the re is no evide nce in the post-con viction trans cript to show th at the Sta te posse ssed the informa tion but with held it. Finally, th e statementis not mater ial in the sen se of crea ting a reas onable doubt. According to the post-convicti on court’s finding s of fact, af

ter Defendant

shot thefou r v ict ims in this case, “[h] e then returned to his automobile, secur ed a carbine and r

eturned to the Metcalf

car where allof the adul ts lay wounded o r dead a nd proc eeded to empty the ca rbine into the autom obile.”-5- The nex t al leg ed, undi scl osedstateme nt i s th at of Emmett Paul . According to Defendant, Paul stated that t he car containing the vi ctims was parke d when De fen dant’s car pu lled up besid e it, exited the ca r, and b egan shoo ting. His theory is that th is sta tement wo uld have sho wn the jury that the victims were

“ lying in wait”

for him. However, the statement was never i ntroduced int o th e post-convi ction record. Theonly evi dence tending to show thatPaul’s statement
was made does n ot constitu te “evidence” at all . Rather, post-convi ction counsel hypot hetica lly inquire d of De fenda nt’s trial c ouns el, “[I]f there was a witness that said the blue Ford Torino was parked and sitti ng stil l when the red car drove up, would that have been contrary t o [testi mony at trial ]?” This, without more, does not prove that theState possessed a st atement which i t withhel d from the defense; and Defendant provided not hing more.
Finally, Defendant argu es that the State sh ould have dis closed a statement by Linda Nunle y in which she stated that Defendant was shooting at

their car

at the time the State all eged he shot victim Johnnie Metcalf in the back . P ostconvic tio n counse l asked D efenda nt’s trial coun sel, “If this wom an said . . . [John nie Metcalf] was run ning toward Geary’s hol ding her side holl ering for

help. Alvin Seagroves was at t his ti me firing the rifle towa rds the blue c ar . . . . [W ]ould this have been important inform ation [to the defense] that he was too busy shooting at the car to be shooti ng at her?” Thi s statement by post-convi ction counsel while aski ng a question of trialcounsel does not prove that the state ment
was made by Nunley, nor does it prov e that the State possessed such a statem ent.-6- Post-convi ction counsel repeatedly asked such hypothet ical questions of the trialcounsel, but

neverintroducedany of the alleged s tateme nts into the postconvicti on record. When one of Defendant’s trial counselquestioned t he source of the state ment by saying, “If she, in fact , said what you said she sai d, and if, in fact, I had that statem ent, I probably wou ld have cross-e xamine d her as to that point.” Post-convi ction counselresponded, “Sur ely you don’ t think I just made t hat whole conversat ion up?” This Cour t is not in a posit ion to assum e fact s where n o eviden ce has been e ntered.

II. JURY I NSTRUCTIONS Defendant contends that the tri al court erred by improper ly inst ructing t he jury. Specifically, he argues that the tri al judge er red in its char ge on (1) par ole eligibility, (2) rea sona ble doubt, (3 ) finding D efenda nt “innoce nt,” (4) defi nition of “delibera te,” and (5) self-defense. T he post-con viction court concluded, “These issues have been waived, in that they were not raised on initi al appeal or in the first petition for post-conviction relief.” W e agree, with the exc eption of the jury instruct ion o n pa role elig ibility, whic h was raised and d ecide d on d irect ap peal; therefor e, this issue h as bee n previou sly determ ined. See State v

. Alvin Seagroves , Nos. 730-73 3 (Tenn. C rim. App., Na shville, Sept. 15, 1976 ).

III . INEFFECTI VE ASSISTANCE OF COUNSEL Defendant asserts h e suffere d ineffe c tive ass istanc e of co unse l at trial. Defendant raised theissue of i neffective a ssista nce in his f irst post-convict ion petiti on filed in 1981, a fact that woul d usually preclude the issue fro m being reliti gated. See Cone v. State , 927 S.W .2d 579, 581 -82 (Tenn . Crim. App. 19 95). Howeve r, because Defendant di d not recei ve an evident iary hear ing, we find that-7-

he did no t receive a “full an d fair hearing” on t he issue as required by Tennessee Code Annotated § 40-30-112(b) before an is sue may be considered previo usly determined. See Hous e v. State , 911 S.W.2d 705 (Tenn. 1995 ) (“[A] ‘full a nd fair hearing’ sufficient to support a findin g of previous de term i nation oc curs if a petiti oner is given the oppor tunity to present p roof and argument on the petiti on forpost-c onvictio n relief.”) . Ther efore, w e will not consider the claim s previo usly determined.

To be entitl ed to post-convicti on relief on the basis of

ineffecti ve assistance of counsel, Defen dant must show that hi s counsel’s representat ion was “deficient” and tha t “the deficien t perform ance p rejudiced the defen se.” Strickl and v. Washington , 466 U.S . 668, 687 (1984). U nder the fir st prong,
coun sel’s perform ance is n ot defici en t when “the adv ice given, or the serv ices rendered by the attorney, are w ithin t he range of competence demanded of attorneys in criminal cases .” Baxter v. Rose , 523 S.W.2d 930, 936 (Ten n. 1975). The second prong requi res Defen dant to show a reasonable pr obabili ty that

the result of the trial woul d h ave been differ ent but for

the defic ient repr

esentation
. Strickl and , 466 U .S. at 694

. “A rea sona ble pro bability is a probabil ity suf ficien t to underm ine confidence in the outcom e.” Id.

With respe ct to ratio naliza tion of a ttorney cond uct in an inef fective assistance of

counsel case, the Supreme Court in structed, Judicialscrutiny o f coun sel’s pe rform ance mus t be hig hly defere ntial. It is

all too tempting for a defendant t o s econ d-guess coun sel’s assistance af ter conv i ction or ad verse se ntence . . . . A fair ass ess me nt ofattorney perform ance requ ires that every effort be made to eliminate the distor ting effects of hindsi ght, t o reconstructthe circ umstances of counsel ’s chall enged conduct, and to evaluate the conduct f rom counsel’s per spective at

the time.-8-

Id. at 688.

In this case, Defendant complai ns of inef fectiv e assistance by

his tri al counsel for failure to confer, adv ise, and i nvestigate. In its order d enying re lief, the post-conviction co urt concluded that Defe ndant fa iled to carry h is burden to prove ineffective assistance by a prepon deranc e of the ev idence
. We find that the evidence doesnot prep ondera te again st this fin ding. C ontrar y to De fenda nt’s testimony

at the post-convict ion hearing, his tri al counsel testifi ed that they met wit h him on several occasions i n preparati on for trial. Furthermore, Defenda n t has not produced any evidence tendi ng to show how he was prej udiced by t he allegedly d eficient rep resenta tion at trial. Th is issue lac ks me rit.

Because Defendant’s cl aims of improper jury i nstructi ons have been waived or previ ously de termin ed, and because we fi nd the evidence does not prepon derate against th e trial court’s find ings that a llegations of Bradyviolat ions and ineffec

tive assi stance of

counsel lackmerit, we af firm the t rial cour

t’s deni al of post-co nviction relief.

____________________________________ DAVID H. WELLES , JUD GE-9-

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE