IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 7, 2010
ANTONIO ARNOLD v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 02-07507 Carolyn Wade Blackett, Judge
No. W2010-00268-CCA-R3-PC - Filed March 31, 2011
The petitioner, Antonio Arnold, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief. The petitioner was convicted by a Shelby County jury of
felony murder, voluntary manslaughter, aggravated burglary, and aggravated assault. He was
subsequently sentenced to an effective term of life in prison. On appeal, he contends that the
denial of his petition was error because he received ineffective assistance of counsel at trial.
Following review of the record before us, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.
Andrew Hutchinson, Paul K. Guibao, and Matthew S. Lyons, Memphis, Tennessee, for the
appellant, Antonio Arnold.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Tracey Jones,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
The relevant facts underlying the petitioner’s multiple convictions, as recited on direct
appeal, are as follows:
The charges arose out of the [petitioner’s] entry into Sandra
Alexander’s home in the morning hours of October 21, 2001, and his
assaulting Ms. Alexander and shooting her boyfriend, Gary Colbert.
....
At trial, Diana Sample, Ms. Alexander’s mother, testified that she
talked with the [petitioner] about two weeks before the offenses giving rise to
this case. Ms. Sample recalled that the [petitioner] showed up at her house and
used her phone to call Ms. Alexander. According to Ms. Sample, the
[petitioner] told Ms. Alexander, “I’m going to kill your B.A. on your birthday.
. . . I want your momma to know,” and then left. Ms. Sample testified that she
called Ms. Alexander back and told her “we need to go downtown and put a
peace bond on him because he might hurt [you].” On redirect examination,
Ms. Sample testified that after the break-in and shooting, Ms. Alexander was
withdrawn, had a nervous breakdown, and tried to commit suicide.
Ms. Alexander testified that she used to date the [petitioner] and they
had a child together. She recalled that around [six] a.m. on October 21, 2001,
she got up to go to the bathroom when she noticed her bedroom door was
unlocked. As she opened the door, the [petitioner] burst into her room, pushed
her in the face, and said he was going to kill her. Ms. Alexander remembered
that the [petitioner] was wearing a utility belt containing an axe, gun, and
handcuffs when he entered the room. The [petitioner] ordered her to put
handcuffs on Colbert but she was not able to latch them. As she pled with the
[petitioner] not to hurt Colbert, Colbert got up off the bed and he and the
[petitioner] began tussling with the gun and the gun went off. Ms. Alexander
testified that she ran for help after the gun went off.
On cross-examination, Ms. Alexander testified that Colbert normally
carried a silver-gray gun with a broken handle, but she did not see him with a
gun the morning of the incident. Ms. Alexander reiterated that the last thing
she saw as she ran out of her bedroom was Colbert and the [petitioner] tussling
with a black gun that the [petitioner] had pulled out.
Cassandra Cooper, Ms. Alexander’s oldest child, testified that she was
sleeping in her bedroom on October 21, 2001, when she was awakened by “[a]
lot of noise and commotion, [and] arguing.” She recalled that she heard her
mother’s, Colbert’s, and the [petitioner’s] voices, so she called 911 “[b]ecause
[the petitioner] wasn’t supposed to be in the house.” Cassandra testified that
she ran outside and hid in the bushes. A short while later, Cassandra saw Ms.
Alexander run out of the house and down the street. Cassandra testified that
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the [petitioner] ran out of the house to his car that was parked next door, then
went to the side of the house and shot at a window. Cassandra explained that
she did not see the [petitioner] take the shot, but she heard glass break.
Cassandra testified that when the [petitioner] came out of the house he was
holding something to his side that she thought was a gun.
Tiara Cooper, Ms. Alexander’s second-oldest child, testified that she
awoke to the sound of gunshots on October 21, 2001. Tiara testified that she
got out of bed in time to see the [petitioner] exit the house. She remembered
seeing a lot of blood and Colbert on the kitchen floor breathing heavily.
....
Memphis Police Officer Russell Woolley testified that he received a
disturbance call on October 21, 2001, from Ms. Alexander’s residence.
Officer Woolley testified that as he approached the residence, a young girl
jumped out from behind some bushes and said, “don’t go inside. Don’t go
inside. He’s in there. He’ll kill you.” Officer Woolley recalled that upon
entering the house he saw a black ski mask on the floor and he smelled fresh
gunpowder, indicating that a weapon had recently been discharged. During his
canvas of the house, Officer Woolley saw a barely-alive naked male lying face
down on the kitchen floor with a gun in his hand. Office Woolley testified that
his partner recovered the gun for safety reasons and placed it on top of the
china cabinet.
. . . Officer Woolley testified that Colbert died while he was on the scene.
Outside, Officer Woolley noticed a white car parked in front of the house next
door.
....
Lieutenant Anthony Craig of the Memphis Police Department testified
that he was one of the homicide officers assigned to investigate the case.
Lieutenant Craig recalled that it appeared that the suspect gained entry into the
home through an open window or had pried open a window. Thereafter, the
suspect entered a bedroom, a struggle ensued, and shots were fired. Lieutenant
Craig testified that Ms. Alexander identified Colbert as the victim and the
[petitioner] as the possible suspect. Lieutenant Craig further testified that the
[petitioner’s] father showed up at the scene and indicated that the [petitioner]
had written some type of a list with Ms. Alexander’s name on it.
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Lieutenant Craig recalled that the [petitioner’s] abandoned vehicle was
towed to the storage lot where its contents were inventoried. In the vehicle,
Lieutenant Craig found a green and black duffle bag, “one stick, one cassette
tape, duck tape, garbage bag, plastic, ski mask, flexie cuffs, nine millimeter
ammunition, gray notebook, pagers, box cutters, screwdriver, and blue
bandana.” Lieutenant Craig testified that he listened to the cassette tape and
it contained two songs, then a male voice that said he was Captain Smith and
he was on a mission. The speaker on the tape also referred to himself as a
convicted felon. Lieutenant Craig was able to identify the [petitioner] as the
speaker. According to Lieutenant Craig, he did not formally interview the
[petitioner], but the [petitioner] spontaneously claimed that he was Captain
Smith with the Marine Corps and he was “coming back from a highly volatile
mission, and . . . he had encountered the enemy in which he had employed the
rules of engagement. . . . That at the time he took the enemy out. It was a
female involved with the enemy at which time he . . . could not . . . eliminate
her.” Lieutenant Craig stated that he believed the [petitioner] was “faking it.”
....
Tamala Arnold, the [petitioner’s] sister, testified that the [petitioner]
lived with her in October of 2001. Ms. Arnold recalled seeing the [petitioner]
with papers showing that he had taken out a loan to pay off Ms. Alexander’s
loan on her house. On cross-examination, Ms. Arnold admitted that she knew
about Ms. Alexander’s order of protection against her brother, yet she knew
they had seen each other on occasion. Ms. Arnold also admitted that the
[petitioner] was a convicted felon.
Adrian Arnold, the [petitioner’s] brother, testified that he was at Ms.
Alexander’s house along with his father shortly after the shooting. . . . Mr.
Arnold further recalled that he saw the [petitioner] the following day and he
was acting “[v]ery out of the ordinary,” like “he was in a military training
doing some kind of business.”
State v. Antonio Arnold, No. W2005-00119-CCA-R3-CD (Tenn. Crim. App., at Jackson,
Aug. 25, 2006).
Based upon this conduct, the petitioner was indicted by a Shelby County grand jury
for first degree premeditated murder, felony murder, aggravated burglary, and aggravated
assault. Following a jury trial, the petitioner was convicted of voluntary manslaughter,
felony murder, aggravated burglary, and aggravated assault. He was subsequently sentenced
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by the trial court to an effective term of life in prison. The petitioner filed a direct appeal to
this court, and his convictions were affirmed.
Thereafter, the petitioner filed a timely petition for post-conviction relief, alleging that
he was denied the effective assistance of counsel. The post-conviction court initially
dismissed the petition because it lacked any statements indicating the grounds upon which
relief was sought or any factual basis as required by statute. The petitioner appealed, and a
panel of this court reversed the summary dismissal and remanded the case for an evidentiary
hearing. Antonio Arnold v. State, No. W2007-02640-CCA-R3-PC (Tenn. Crim. App., at
Jackson, May 5, 2009). Thereafter, post-conviction counsel was appointed, and an amended
petition for relief was filed. An evidentiary hearing was conducted thereafter, at which the
following grounds for relief were presented: (1) whether trial counsel failed to elect a
defense strategy, namely diminished capacity; (2) whether trial counsel failed to present
expert testimony regarding mens rea; (3) whether trial counsel failed to present witness
testimony, specifically from the petitioner’s father, that could have refuted the underlying
felony and, therefore, removed liability for felony murder; (4) whether trial counsel failed
to attack the credibility of Ms. Alexander by introducing evidence of a prior nervous
breakdown; (5) whether trial counsel failed to introduce the protective order into evidence
for the purpose of demonstrating that the petitioner was not barred from entering the home;
and (6) whether trial counsel failed to introduce evidence showing that the petitioner had an
ownership interest in the house he was charged with burglarizing based upon his securing a
loan.
The first witness called was the petitioner. He testified that, during pretrial
preparations, he and trial counsel had repeatedly discussed the defense of diminished
capacity. Furthermore, the petitioner stated that he was sent to Midtown Mental Health
Institute for evaluation and, subsequently, was interviewed by a second doctor. However,
he noted that no mental health expert was called to testify at his trial and that the jury was
given no instruction regarding diminished capacity. The petitioner stated that, had a
diminished capacity defense been presented, he believed the mens rea elements of the
offenses could have been negated.
The petitioner also testified that he repeatedly informed his attorney that he had legal
access to Ms. Alexander’s house and that he felt this fact should have been established at trial
to negate the offense underlying the felony murder charge. He stated that he had secured a
loan on the house to keep Ms. Alexander from losing it. However, he was unable to recall
which financial institution he had used. The petitioner testified that he had informed trial
counsel of the loan but opined that no documentation regarding the loan was presented at
trial. He testified that, to his knowledge, trial counsel had made no attempt to locate the loan
documentation. The petitioner also faulted trial counsel for failing to introduce a copy of
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the protective order, which did not include specific language barring him from Ms.
Alexander’s home.
The petitioner’s final complaint was that the State presented evidence at trial which
showed that he had entered Ms. Alexander’s home through a window, evidence he claims
should and could have been negated. The petitioner testified that he informed trial counsel
that he did not enter the home through a window but, rather, entered through an unlocked
door. The petitioner testified that trial counsel should have put on evidence to establish this,
specifically, the fact that the window was painted shut, thereby precluding the petitioner from
being able to access the house through the window. He complained that trial counsel failed
to call his father who had direct knowledge of the window, as he had personally painted the
home shortly before the incident.
Trial counsel was the next witness to testify. He stated that he provided discovery to
the petitioner, reviewed the materials, and met with the petitioner on multiple occasions.
Trial counsel stated that his initial strategy was to pursue a defense of diminished capacity
based upon the petitioner’s erratic behavior at the time of the offenses. To further this
defense, trial counsel had the petitioner evaluated at Midtown Mental Health Institute. The
test results did not support a finding of insanity or incompetence. However, the testing did
reveal that the petitioner suffered from “mild abuse cerebral atrophy,” or shrinking of the
brain. Based upon this finding, trial counsel then employed a forensic neuro-psychologist
to determine if that condition could support a diminished capacity defense. After
interviewing the petitioner, the expert found no evidence of mental disease or defect. As
such, trial counsel stated that he was not able to pursue his initial strategy and had to pursue
a defense of reasonable doubt. Trial counsel testified that he informed the petitioner of the
findings.
Trial counsel acknowledged that the petitioner informed him that he had secured a
loan to help Ms. Alexander keep her house and that, based upon this ownership interest, he
felt he had the right to be there despite the restraining order in place. However, the petitioner
had no documentation to support this, and trial counsel, after searching county records, was
also unable to locate any supporting documentation. He noted that the information was put
before the jury by the petitioner’s sister, who testified at trial that this second mortgage
existed. Trial counsel further testified with regard to his intent to introduce the actual
protective order into evidence because the verbiage of it did not specifically prohibit the
petitioner from being in the home. However, trial counsel testified that he did not seek to
introduce the evidence after all because the State was prepared to call the commissioner who
had issued the protective order to testify that the petitioner had been verbally instructed to
stay away.
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Trial counsel also testified regarding the petitioner’s complaint that he did not present
evidence to rebut the State’s theory of how the petitioner had gained entrance into the home.
Trial counsel testified that he had spoken with the petitioner’s father and anticipated calling
him as a witness to testify that he had done work on the home and that the window in
question was painted shut. However, the petitioner’s father was taken into custody during
the trial and was not present. Moreover, trial counsel testified that after the State presented
its case, he did not believe that they had actually offered a firm explanation as to how the
petitioner had entered the home, so it really was not an issue which needed contradiction.
The petitioner also called both his mother and father to testify. The petitioner’s father,
David Arnold, testified that he had painted Ms. Alexander’s home and was personally aware
that the windows were painted shut. He acknowledged that he was arrested on the fourth day
of trial and held in the jail. Mr. Arnold was not aware of any efforts made by trial counsel
following his arrest to locate him for the purpose of testifying. The petitioner’s mother
testified and stated that she had personally informed trial counsel that Mr. Arnold had been
arrested and where he was located at the time of trial.
After hearing the evidence presented, the post-conviction court found that the
petitioner had failed to establish his entitlement to relief. The petitioner now timely appeals
that decision.
Analysis
On appeal, the petitioner contends that the post-conviction court erred in denying his
petition for relief because “trial counsel’s representation fell outside the standards set forth
in Baxter v. Rose and Strickland v. Washington.” To succeed on a challenge of ineffective
assistance of counsel, the petitioner bears the burden of establishing by clear and convincing
evidence the allegations set forth in his petition. T.C.A. § 40-30-110(f) (2006). The
petitioner must demonstrate that counsel’s representation fell below the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Under Strickland v. Washington, 466 U.S. 668, 687 (1984), the petitioner must establish (1)
deficient performance and (2) prejudice resulting from the deficiency. The petitioner is not
entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy,
and cannot criticize a sound, but unsuccessful, tactical decision made during the course of
the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992). An appellate court will not reweigh or reevaluate the evidence
below; all questions concerning the credibility of witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the trial
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judge, not the appellate courts. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997).
It is not necessary for a court to address deficiency and prejudice in any particular
order or even to address both if the petitioner makes an insufficient showing on either.
Strickland, 466 U.S. at 697. In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)
(quoting Strickland, 466 U.S. at 694).
The issues of deficient performance by counsel and possible prejudice to the defense
are mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying
a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard,
accompanied with a presumption that those findings are correct unless the preponderance of
the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn.
R. App. P. 13(d); Henley, 960 S.W.2d at 578). However, conclusions of law are reviewed
under a purely de novo standard with no presumption that the post-conviction court’s
findings are correct. Id.
Initially, we must note that we are somewhat unclear as to the exact argument being
raised by the petitioner. It is clear that he is asserting ineffective assistance of counsel but
what remains unclear is his actual contention of how trial counsel was deficient. Other than
a recitation of the applicable law, the petitioner’s brief contains the following:
The above standards used in Baxter seem to hinge on the involvement
of a defendant in his or her defense. This is because the right to trial exists for
the defendant and not trial counsel. To ignore, to not even further explore
information from your client, is preventing that defendant from participating
in their own defense. In this matter especially, where a killing was admitted
and the focus was as to mental state as to what type of killing or supporting the
underlying felony used to justify as charge of felony murder, the defendant
must be involved in his or her own defense. [The petitioner] submits that in
his matter, such deficiencies existed that it rendered counsel ineffective under
the first prong under Strickland and under Baxter.
The petitioner continues that the deficiencies were prejudicial because the “failures prevented
[the petitioner] from presenting existing evidence that would have almost certainly have
negated the [S]tate’s case against him.” Again, we are unclear as to the petitioner’s exact
allegations on appeal. The argument that he was not allowed “to participate in his own
defense” was not raised in either the petition for post-conviction relief or before the court at
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the hearing. As such, the petitioner has waived this issue, and we are precluded from review
as issues may not be raised for the first time on appeal. See T.C.A. § 40-30-106(g); see also
Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009).
The State notes that the petitioner “appears” to contend that counsel was ineffective
for six reasons, those specifically argued at the hearing: (1) failure to pursue a diminished
capacity defense; (2) failure to present expert testimony regarding mens rea; (3) failure to
present testimony to refute the underlying felony; (4) failure to attach the credibility of the
female victim: (5) failure to present evidence to show that the petitioner was not prohibited
from accessing the house; and (6) failure to show the petitioner’s ownership interest in the
house. As these issues were addressed by the post-conviction court, in the interest of justice
and finality, we will briefly review the court’s determinations.
In its order denying relief, the post-conviction court reviewed the evidence presented
with regard to each of the petitioner’s arguments and concluded that the petitioner had failed
to establish that he was denied the effective assistance of counsel. Following review, we
conclude that nothing in the record before us preponderates against the post-conviction court’s
findings.
I. Diminished Capacity Defense/Expert Testimony
The petitioner continues to maintain that trial counsel was deficient for failing to
pursue this defense and to call experts to the stand to support it. However, his assertion is
belied by the testimony of trial counsel at the hearing. Counsel specifically testified that he
considered and attempted to pursue a defense of diminished capacity. He retained experts to
examine the petitioner, and the conclusion reached following the examinations was that the
petitioner did not suffer from a mental disease or defect. This finding, alone, precluded use
of the defense. Trial counsel cannot be faulted for failing to present and prepare a defense
which was clearly not supported by the facts before him. Moreover, the petitioner’s complaint
that trial counsel failed to present expert testimony at trial is misplaced. Had trial counsel
called an expert to the stand to testify, the expert would have assumedly testified that the
petitioner did not suffer from a mental disease or defect, testimony which would have placed
before the jury direct evidence that the defense was not viable. Finally, we note that the
petitioner has failed to present any evidence to contradict the findings testified to by trial
counsel, thereby precluding relief pursuant to Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990).
II. Testimony to Refute the Underlying Felony, to Establish the Petitioner’s
Ownership Interest in the Home, and to Establish that he was not Prohibited
from Entering the Home
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To support the petitioner’s contention that he had entered the home through an
unlocked door, the petitioner testified at the post-conviction hearing that counsel was deficient
for failing to present testimony from his father that the window had been painted shut. He
further complained that trial counsel failed to locate and introduce loan documentation which
established that the petitioner had taken out a second mortgage on the home in order to
prevent Ms. Alexander from losing the home. Finally, he complained that trial counsel failed
to introduce the actual restraining order entered against the petitioner, as it did not contain
specific language prohibiting the petitioner from entering the home. Again, trial counsel gave
testimony with regard to each of these alleged deficiencies, and the post-conviction court
accredited that testimony. As has been noted on numerous occasions, it is not the function
of this court to reweigh or reevaluate credibility determinations made in the lower court. See
Henley, 960 S.W.2d at 578-79.
With regard to calling the petitioner’s father, trial counsel testified that he anticipated
calling him to testify that the windows of Ms. Alexander’s house had been personally painted
shut by him. Trial counsel intended to offer this testimony to counter the State’s assertion that
the petitioner had gained access to the home through the window. However, during the course
of the trial, Mr. Arnold was taken into custody on outstanding charges and taken to jail.
Although there was conflicting testimony as to whether trial counsel was aware of Mr.
Arnold’s whereabouts, that is not a determining factor in our review. Trial counsel testified
that the State did not rely on the manner in which the petitioner had gained entrance to
establish the elements of their case. The victim began her account of the events by stating that
she first saw the petitioner in the bedroom. While the detective did testify that it was their
theory that the petitioner had entered the home through an open window or pried a window
open, this is not sufficient to find deficient performance for trial counsel’s failure to rebut the
statement. The statement indicates that the petitioner might have pried the window open,
which is not in conflict with the fact that the window was painted shut. The State relied upon
the fact that the petitioner had entered the home, where he had no right to be, in some illegal
manner and had committed the crimes inside the home. Calling the petitioner’s father to
testify that he had painted the windows shut would not have negated any of the State’s
evidence.
Trial counsel also testified in contradiction to the petitioner and stated that he had
specifically tried to find documentation to support the petitioner’s contention that he had
secured a second mortgage on the home, thereby establishing a partial ownership interest in
the home. Trial counsel testified that he personally went to the court house and checked the
records but was unable to find any evidence of the loan. Nonetheless, trial counsel did
attempt to elicit the information through the petitioner’s sister, who testified at trial that the
petitioner had taken out a loan. The jury’s decision to discredit that testimony or give it little
weight does not equate to deficient performance on the part of trial counsel. Additionally, as
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noted previously, the petitioner failed to put forth any evidence at the hearing which would
lend credence to the fact that the documents exist. As such, he fails to establish his burden.
See Black, 794 S.W.2d at 757.
With regard to the order of protection issued against the petitioner, trial counsel
testified that he considered seeking to admit the document into evidence as it did not explicitly
state that the petitioner was barred from Ms. Alexander’s home. However, during the trial,
it became apparent that the State intended to call the commissioner who issued the order.
Trial counsel had a discussion with her and, based upon that conversation, made the decision
not to introduce the evidence, as the commissioner would have testified that she personally
informed the petitioner to stay away. This was clearly a reasoned strategic choice made by
trial counsel, and this court does not reexamine such choices. See Hellard, 629 S.W.2d at 9.
III. Failure to Attack the Credibility of the Victim
At the hearing, the petitioner opined that trial counsel was deficient in that, in order to
better impeach Ms. Alexander’s testimony, he failed to introduce evidence of a prior mental
breakdown suffered by Ms. Alexander. We are somewhat unclear as to the petitioner’s actual
contention with regard to this on appeal. Trial counsel testified that he chose to object to
testimony given by the Ms. Alexander’s mother regarding a breakdown that she has suffered
after this incident. The petitioner failed to put forth evidence which would bring into question
trial counsel’s decision not to cross-examine the witness about the prior breakdown or, if he
had done so, what effect it would have had on the outcome of the trial. As previously noted,
it is not the function of this court to second-guess trial tactics.
As noted above, we can reach no other conclusion in this case other than that the post-
conviction court properly determined that the petitioner failed to show by clear and
convincing evidence that he received ineffective assistance of counsel. He is entitled to no
relief.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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