James Lavell Carrethers v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 21, 2005 Session

JAMES LAVELL CARRETHERS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2000-A-495 J. Randall Wyatt, Jr., Judge

No. M2004-01792-CCA-R3-PC - Filed November 18, 2005

The petitioner, James Lavell Carrethers, appeals from the Davidson County Criminal Court’s
dismissal of his petition for post-conviction relief from his conviction for second degree murder, a
Class A felony. He contends that the trial court erred in instructing the jury and that he received
the ineffective assistance of counsel. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and J. C.
MCLIN , J., joined.

Charles E. Walker, Nashville, Tennessee, for the appellant, James Lavell Carrethers.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Michael Damian Rohling, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

A Davidson County grand jury indicted the petitioner for first degree murder, but the jury
convicted him of the lesser included offense of second degree murder. The trial court sentenced the
petitioner to eighteen years in the Department of Correction. The petitioner appealed, and this court
affirmed his conviction. See State v. James L. Carrethers, No. M2001-01503-CCA-R3-CD,
Davidson County (Tenn. Crim. App. Oct. 2, 2002), app. denied (Tenn. Feb. 24, 2003).

The evidence presented by the state at the trial showed that the victim’s live-in boyfriend,
Ronald Woodard, wanted her killed because she had threatened to inform parole officials of his drug
dealing after learning that he was involved in a romantic relationship with another woman. Mr.
Woodard told Johnny “Little Johnny” Maupin to kill the victim. The petitioner was to assist in
committing the crime in exchange for drugs.

The petitioner made a pre-trial statement to law enforcement, admitting that he and “Little
Johnny” went to the victim’s home on the night of the murder. He said he kicked down the door to
the victim’s home, but he claimed “Little Johnny” shot the victim. Shortly after the murder, the
petitioner went to a friend’s home where he was seen washing blood from a T-shirt. The next day,
he sold the murder weapon, which the police recovered during their investigation.

At the trial, the petitioner recanted his pre-trial statements, claiming he did not go to the
victim’s home that evening. He insisted that he sold the murder weapon because Mr. Woodard
asked him to dispose of it and that Mr. Woodard was attempting to frame him for the crime. He also
said he gave the pre-trial statement because the police led him to believe that he would be treated
as a witness rather than a perpetrator. The jury convicted the defendant of second degree murder.

On February 4, 2004, the petitioner filed a pro se petition for post-conviction relief in the
Davidson County Criminal Court alleging that the trial court erred by not instructing the jury on all
lesser included offenses and that he received the ineffective assistance of counsel. The trial court
appointed the petitioner counsel, and thereafter the petitioner filed an amended petition for post-
conviction relief containing the same two grounds for relief as in the original petition.

The petitioner contended in the amended petition that the trial court erred by not instructing
the jury on all lesser included offenses. The petitioner also alleged twelve instances of the
ineffective assistance of counsel: failure to challenge the trial court’s refusal to instruct the jury on
lesser included offenses; failure to inspect or develop footprint evidence on the door of the victim’s
home; failure to file a pretrial motion to exclude the introduction of testimony about the door; failure
to investigate, develop, and interview witnesses properly; failure to meet with the petitioner
adequately; failure to advise the petitioner of his constitutional rights; failure to develop potential
defenses; failure to discuss trial strategies and tactical matters with the petitioner; failure to impeach
prosecution witnesses by prior inconsistent statements; failure to introduce the prior criminal record
of Ronald Woodard; failure to interview, investigate, and subpoena a potential defense witness; and
failure to interview, investigate, and subpoena a 9-1-1 caller.

At the hearing for post-conviction relief, the petitioner’s trial attorney testified that he had
handled “probably a thousand criminal cases, [and] over fifty murder cases.” He said he met with
the petitioner at least twelve times. He said he obtained substantial damaging evidence through
discovery, including the petitioner’s videotaped admission of participation in the crime. In light of
this evidence, the petitioner’s attorney said that he “strongly encouraged” the petitioner to plead
guilty and that the petitioner came twice before the court to enter a guilty plea. The petitioner,
however, ultimately refused and requested a jury trial. The petitioner’s attorney said he and the trial
court advised the petitioner of the possible ranges of punishment for first degree murder, second
degree murder, and facilitation of first degree murder.

The petitioner’s attorney said that he moved to have the petitioner’s videotaped statement
suppressed but that the trial court denied the motion. He said he interviewed all potential witnesses
in preparation for trial with the exception of Lisa Hayes Sanders, whom he was unable to locate and
whom the state did not present as a witness at the trial. The petitioner’s attorney said that due to the
overwhelming evidence of the petitioner’s criminal responsibility in the murder, the petitioner was
very lucky not to have been convicted of first degree murder.

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 The petitioner’s attorney said he successfully convinced the trial court to apply mitigating
factors to the petitioner’s sentence. He said that the petitioner received an eighteen-year sentence
because of the mitigating factors and that the court otherwise would have sentenced the petitioner
to between twenty and twenty-five years.

On cross-examination, the petitioner’s attorney said the petitioner never denied kicking down
the door of the victim’s home. He said the state’s analysis of the door did “not come up with
anything, any prints that matched Mr. Carrethers, or anything.” The petitioner’s attorney said that
the state did not introduce the door as evidence at trial and that he had never personally inspected
the door in question. He repeated that he was unable to locate Ms. Sanders. He acknowledged that
Ms. Sanders would have been a helpful defense witness because her description of the assailant
fleeing the victim’s home did not match the petitioner. He said Ms. Sanders’ statement that she
knelt down beside the victim may not have been consistent with Mr. Woodard’s statement that he
was kneeling down beside the victim.

The petitioner’s attorney said he did subpoena Ronald Woodard to testify for the defendant
even though he knew Mr. Woodard had a criminal record and was currently incarcerated on drug
charges. He said he could not recall if the petitioner’s criminal record was mentioned at the trial but
that it “may have” been. The petitioner’s attorney said he could not recall whether he interviewed
an anonymous 9-1-1 caller.

Metropolitan Nashville Police Department Detective Roy Dunaway testified that he was the
lead investigator in the case. He said the police took into evidence the front door of the victim’s
home because there was a “clearly visible” footprint on the door. He said that the defendant’s shoes
appeared to match the footprint and that the defendant’s shoes were seized for comparison. He said
that Officer Ray Rader of the Metropolitan Police Department Laboratory concluded the defendant’s
shoe matched the footprint on the door but that the police apparently did not report this finding to
the prosecution. Detective Dunaway said that he did not testify at the trial about any testing of the
door, that he did not bring the door to trial, and that no other testing took place other than the
footprint comparison. He said that he remembered Ms. Sanders from the investigation but that he
could not recall whether he took her statement.

On cross-examination, Detective Dunaway said the defendant confessed to kicking in the
door to the victim’s home. He said the police recovered the murder weapon from the person to
whom the petitioner sold it.

The petitioner testified that he wanted the door in question introduced at trial. He said he
did confess to kicking down the door to the victim’s home but only because he felt coerced by the
police. The petitioner said that he wished he had not made this statement and that he wanted the
door to be introduced at the trial in order for the jury to consider whether his statement was truthful.
The petitioner claimed that the police performed further testing on the door and that his trial attorney
should have presented these arguments on his behalf.

On cross-examination, the petitioner repeated that he falsified his pre-trial statement and that
he only made the statement under duress. The petitioner stated that his trial attorney should have

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introduced the substance of other conversations he had with the police. The petitioner claimed that
the records of these particular conversations were destroyed by Detective Dunaway.

The petitioner testified that he only met with his trial attorney two or three times at the pre-
trial detention facility and a few other times at court appearances. He said his trial attorney did not
give him a copy of portions of his case file. The petitioner said he sent his trial attorney two letters
requesting information about his case but that since his appeal, he has not seen his attorney or
received the requested information.

In dismissing the petitioner’s petition for post-conviction relief, the trial court found that the
petitioner waived the issue regarding the failure to instruct the jury on the lesser included offenses
because he did not raise the issue in his direct appeal. With regard to the petitioner’s allegations of
the ineffective assistance of counsel, the trial court found that the attorney was not constitutionally
deficient for accepting the trial court’s jury instructions as to the lesser included offenses, for failing
to obtain the door and examine it for footprint evidence, for failing to file a motion in limine
concerning the footprint evidence, for his case investigation and witness preparation, for the number
of meetings he had with the petitioner, for his development of available defenses, for his tactical
decisions at the trial, or for his cross-examination of witnesses. The trial court also found that the
petitioner had failed to prove he was prejudiced by his counsel’s case investigation and witness
preparation, development of available defenses, tactical decisions at the trial, or cross-examination
of witnesses.

On appeal, the petitioner contends the trial court erred in dismissing his petition for post-
conviction relief. He maintains that the trial court erred in instructing the jury and that he received
the ineffective assistance of counsel. The state responds that the petitioner has waived the jury
instruction issue by failing to present it on direct appeal. Concerning the ineffective assistance of
counsel claim, the state contends that the petitioner’s attorney’s performance was not
constitutionally deficient and that the petitioner failed to prove any prejudice.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief
by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates against
those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo standard
with no presumption of correctness. Id. at 457.

I. JURY INSTRUCTIONS

The petitioner contends the trial court erred in instructing the jury. He claims that the trial
court should have charged the jury on the lesser included offenses of voluntary manslaughter,
reckless homicide, and criminally negligent homicide and argues that its failure to do so was not
harmless error. The state claims that the petitioner has waived this issue by failing to present the
argument on direct appeal. We agree with the state.

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 Initially, we note the petitioner did not raise this issue in his direct appeal. Our Post-
Conviction Procedure Act provides that absent certain circumstances inapplicable to the petitioner’s
case, a petitioner waives a post-conviction issue on appeal if he or she could have presented the issue
on direct appeal but failed to do so. See T.C.A. § 40-30-106(g). The petitioner has waived this
issue.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

The petitioner contends that he received the ineffective assistance of counsel. He claims his
attorney failed to preserve the jury instruction issue for appeal, failed to investigate or develop
evidence that the footprint on the door did not match the petitioner, failed to file a motion in limine
to exclude any testimony relating to the door until after the door had been admitted into evidence,
failed to investigate and interview potential defense witnesses properly, failed to develop potential
defenses, failed to discuss trial strategies with the petitioner, failed to meet with the petitioner
adequately, and failed to impeach Detective Roy Dunaway and Ronald Woodard with prior
inconsistent statements and attack the credibility of Mr. Woodard based upon his prior criminal
record. The state responds that the petitioner’s attorney’s performance was not constitutionally
deficient and that the petitioner has failed to prove the necessary prejudice. We agree with the state.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44 (1993). In other
words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather,
the petitioner must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to prove either
prong will result in a denial of post-conviction relief. See Henley v. State, 960 S.W.2d 572, 580
(Tenn. 1997).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. In reviewing counsel’s conduct, 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.” Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

A. Failure To Preserve Jury Instructions Issue For Appeal

The petitioner contends that he received the ineffective assistance of counsel when his
attorney failed to object to the trial court’s jury instructions on lesser included offenses and failed
to preserve the issue for appeal. He claims that the offenses of voluntary manslaughter, reckless
homicide, and negligent homicide are lesser included offenses of first degree murder and that his
attorney’s failure to request these instructions resulted in prejudice. The state agrees that voluntary
manslaughter, reckless homicide, and negligent homicide are lesser included offenses of first degree

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murder. However, it contends the petitioner did not receive the ineffective assistance of counsel
because no facts existed to support these lesser included offense instructions.

Voluntary manslaughter is a knowing killing resulting from “a state of passion produced by
adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” T.C.A.
§ 39-13-211. Reckless homicide is a reckless killing. T.C.A. § 39-13-215. Criminally negligent
homicide is a killing resulting from criminally negligent conduct. T.C.A. § 39-13-212.

In criminal cases, the trial court has the duty to charge the jury on all of the law that applies
to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a
complete charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,
737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). Our supreme court has held that an offense is a
lesser included offense if:

(a) all of its statutory elements are included within the statutory
elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it
contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of
culpability; and/or
(2) a less serious harm or risk of harm to the same person,
property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that
otherwise meets the definition of lesser-included offense in
part (a) or (b); or
(2) an attempt to commit the offense charged or an offense
that otherwise meets the definition of lesser-included offense
in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense
that otherwise meets the definition of lesser-included offense
in part (a) or (b).

State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).

If an offense is a lesser included offense, then the trial court must conduct the following
two-step analysis in order to determine whether the lesser included offense instruction should be
given:

First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In
making this determination, the trial court must view the evidence
liberally in the light most favorable to the existence of the
lesser-included offense without making any judgments on the
credibility of such evidence. Second, the trial court must determine

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 if the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser-included offense.

Burns, 6 S.W.3d at 469. In State v. Allen, 69 S.W.3d 181 (Tenn. 2002), our supreme court
continued to develop this area of the law and stated, “The trial court must provide an instruction on
a lesser-included offense supported by the evidence even if such instruction is not consistent with
the theory of the State or of the defense. The evidence, not the theories of the parties, controls
whether an instruction is required.” 69 S.W.3d at 187-88. The court then concluded that in the
context of Burns part (a) lesser included offenses, the “general rule” is that “evidence sufficient to
warrant an instruction on the greater offense also will support an instruction on the lesser offense
. . . . In proving the greater offense the State necessarily has proven the lesser offense because all
of the statutory elements of the lesser offense are included in the greater.” Id. at 188. The supreme
court in Allen also stated that a trial court’s failure to instruct on lesser included offenses is subject
to constitutional harmless error analysis. Id. at 190-91.

Our supreme court has previously held that an offense is a Burns part (a) lesser included
offense if the lesser included offense differs from the greater offense only in respect to the requisite
mental state:

Because lesser levels of the statutory hierarchy of mental states
(intentional, knowing, reckless, and criminally negligent) are
included within the greater levels pursuant to Tenn. Code Ann. §
39-11-301(a)(2) (2000), an intent element which differs from the
intent element of the charged offense only by one of these
lower-hierarchy mental states is not actually treated as a differing
element.

State v. Rush, 50 S.W.3d 424, 430 (Tenn. 2001). This court, citing Rush, has held that second
degree murder, reckless homicide, and criminally negligent homicide are all Burns part (a) lesser
included offenses of premeditated first degree murder. State v. Walter Wilson, No. W2001-01463-
CCA-R3-CD, Shelby County (Tenn. Crim. App. Sept. 4, 2002), app. denied (Tenn. Jan. 27, 2003).

Concerning the failure to instruct on the offense of voluntary manslaughter, we note that
voluntary manslaughter is a lesser included offense of premeditated first degree murder under Burns
part (b). See State v. Dominy, 6 S.W.3d 472, 477 n.9 (Tenn. 1999). Therefore, the mandatory
requirement of Allen does not apply, and the question on review is whether the evidence supported
the instruction. We conclude it does not. We note the record is devoid of any evidence that the
defendant or any of his confederates acted under “a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner” as required in
T.C.A. § 39-13-211. See Burns, 6 S.W.3d at 469. The petitioner has failed to prove by clear and
convincing evidence that he was prejudiced by his attorney’s failure to preserve the voluntary
manslaughter jury instruction issue for appeal.

Concerning the failure to instruct on reckless homicide and criminally negligent homicide,
we conclude that pursuant to our supreme court’s pronouncements in Allen, the trial court should

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have instructed the jury on these lesser include offenses. We hold, though, that the petitioner has
failed to prove prejudice because the trial court’s error in failing to instruct the jury on reckless
homicide and criminally negligent homicide was harmless beyond a reasonable doubt. At the trial,
the state’s evidence showed that the petitioner was a willing participant in a murder for hire scheme
and that the petitioner admitted his involvement. The petitioner defended by recanting his pre-trial
statements, claiming that he was not involved in the crime, that he had sold the murder weapon
because Mr. Woodard asked him to do so, and that Mr. Woodard had framed him for the crime. We
conclude that in this context, the trial court’s failure to instruct the jury on reckless homicide and
criminally negligent homicide was harmless beyond a reasonable doubt.

B. Failure to Investigate the Footprint Evidence Properly

The petitioner contends his attorney was ineffective for failing to investigate the footprint
evidence on the door. He claims that he told his attorney the footprint was not his and that his
attorney failed to introduce any evidence negating the state’s claim that the footprint on the door was
consistent with the petitioner. The state claims the petitioner has failed to show any prejudice
resulting from his attorney’s failure to develop evidence relating to the footprint. We agree with the
state.

A petitioner who asserts that he received the ineffective assistance of counsel based upon
his attorney’s failure to investigate a case properly bears the burden at the post-conviction hearing
of demonstrating what that investigation would have revealed. Owens v. State, 13 S.W.3d 742, 756
(Tenn. Crim. App. 1999). At the post-conviction hearing, the petitioner failed to present any
evidence indicating that the footprint on the door was not his. He has failed to carry his burden to
prove this allegation by clear and convincing evidence, and he is not entitled to relief on this issue.

C. Failure to File a Pre-Trial Motion to Exclude Testimony Concerning the Footprint

The petitioner contends his attorney was ineffective by failing to file a pretrial motion to
exclude any mention of the footprint evidence on the door until the door was properly admitted into
evidence. The state contends the petitioner has failed to prove prejudice. We agree with the state.

At the post-conviction hearing, the petitioner failed to explain how his attorney’s failure to
file a pretrial motion to exclude testimony about the door until it was admitted into evidence resulted
in prejudice. See Owens, 13 S.W.3d at 756. We conclude the petitioner has failed to carry his
burden to prove this contention by clear and convincing evidence, and he is not entitled to relief on
this issue.

D. Failure to Develop and Introduce Testimony

The petitioner contends that his attorney was ineffective by failing to develop and introduce
into evidence testimony from various potential witnesses. He claims testimony from Lisa Sanders
would have shown that her description of the suspect she saw fleeing the scene of the crime did not
match the description offered into evidence by Ronald Woodard. He also claims that testimony

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should have been introduced from the person who placed the 9-1-1 call. The state contends that the
petitioner has failed to establish that his attorney was ineffective or that he was prejudiced.

In Black v. State, 794 S.W.2d 752, 757-58 (Tenn. 1990), our supreme court stated the
following:

It is elementary that neither a trial judge nor an appellate court can
speculate or guess on the question of whether further investigation
would have revealed a material witness or what a witness’s testimony
might have been if introduced by defense counsel. The same is true
regarding the failure to call a known witness. In short, if a petitioner
is able to establish that defense counsel was deficient . . . the
petitioner is not entitled to relief from his conviction on this ground
unless he can produce a material witness who (a) could have been
found by a reasonable investigation and (b) would have testified
favorably in support of his defense if called. Otherwise, the petitioner
fails to establish the prejudice requirement mandated by Strickland
v. Washington.

Concerning the person who placed the 9-1-1 call, the petitioner failed to introduce testimony
from this person into evidence at the post-conviction hearing. We conclude that under Black, he has
failed to establish the necessary prejudice to prevail on this claim.

Concerning the potential testimony of Lisa Sanders, the petitioner failed to introduce into
evidence at the post-conviction hearing any testimony from Ms. Sanders. He did, however,
introduce the following statement of Ms. Sanders given to the police:

We were coming off of Muf. Rd, heard two gun shots, and someone
yelling. We turned to go see who was yelling got to Lincoln and
Trimble and seen [someone] laying in the yard/ Also as we were
coming down Licoln [sic] we / me and the boyfriend seen someone
a man run up the street up Licoln [sic] wearing light color or possibly
gray shorts a dark color shirt (Black male). I got out of the car sit
beside [the victim] and tried to get her stable.
x Lisa G. Sanders 9-2-99

The petitioner also introduced at the post-conviction hearing the following statement of Ronald
Woodard given to the police:

I was coming down Lincoln and heard gun shots. I seen Sarah
Owens, my wife, in the yard. So I went up the street (South on
Lincoln) to find him. He had on a white T-shirt - that’s about all I
saw.

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 Initially, we note that Mr. Woodard also testified at the trial that the person he saw was
wearing a white T-shirt. We conclude, though, that the petitioner has failed to prove by clear and
convincing evidence that his attorney’s performance was deficient. At the post-conviction hearing,
the petitioner’s attorney testified that he tried but was unable to locate Ms. Sanders, and the trial
court found that the petitioner had adequately attempted to locate Ms. Sanders. We conclude the
record does not preponderate against the trial court’s findings that the petitioner’s attorney’s
performance was not deficient. The petitioner is not entitled to relief on this issue.

E. Failure to Develop Potential Defenses

The petitioner contends his attorney was ineffective by failing to develop potential defenses.
The state does not respond to this contention. In any event, we note the petitioner has failed to
allege what, if any, defenses should have been developed or pursued. We therefore conclude he has
failed to carry his burden of proving by clear and convincing evidence that his attorney’s
performance was deficient. He is not entitled to relief on this issue.

F. Failure to Discuss Trial Strategies

The petitioner contends his attorney was ineffective by failing to discuss trial strategies
and/or tactical decisions with him. The state does not respond to this contention. We note the
petitioner has failed to argue this issue in his appellate brief. We conclude he has waived this issue.
See T.R.A.P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”).

G. Failure to Meet with the Petitioner

The petitioner contends his trial attorney was ineffective for failing to meet with him
adequately in preparation for trial. The state contends the attorney’s performance was not deficient.
We agree with the state.

At the post-conviction hearing, the petitioner’s attorney testified that he met with the
petitioner at least twelve times. The trial court found that the attorney’s performance in meeting
with the petitioner was adequate. We conclude the record does not preponderate against the trial
court’s finding, and the petitioner is not entitled to relief on this issue.

H. Failure to Impeach Witnesses

The petitioner contends his trial attorney was ineffective for failing to impeach the credibility
of certain witnesses for the state. He claims his attorney should have attacked the credibility of
Detective Dunaway and Ronald Woodard with prior inconsistent statements. He also claims his
attorney should have attacked the credibility of Mr. Woodard by introducing into evidence Mr.
Woodard’s prior criminal history. The state contends that the petitioner has failed to specify what
statements from either witness were inconsistent, that the attorney’s performance was not deficient,
and that the petitioner has failed to prove prejudice.

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 Concerning the attorney’s failure to attack the credibility of Detective Dunaway and Mr.
Woodard with prior inconsistent statements, the petitioner has failed to state in his brief what
statements were inconsistent with the trial testimony. We conclude he has waived this issue. See
Tenn. Ct. Crim. App. R. 10(b).

Concerning the issue of introducing Mr. Woodard’s prior criminal record into evidence, we
note that at the trial, the petitioner called Mr. Woodard to the stand to testify that although he saw
someone running from the scene, that person was not the petitioner. This testimony was favorable
to the petitioner. We are unable to discern why the petitioner believes his attorney’s failure to attack
the credibility of his own witness in this instance constitutes the ineffective assistance of counsel.
In any event, we conclude the record does not preponderate against the trial court’s finding that the
petitioner’s attorney’s performance was not deficient. The petitioner is not entitled to relief on this
issue.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial
court.

__________________________________
JOSEPH M. TIPTON, JUDGE

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