IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JUNE 1998 SESSION July 14, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
THOMAS MICHAEL STONE, ) C.C.A. NO. 02C01-9711-CC-00433
)
Appe llant, )
) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF HENRY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
VICKI H. HOOVER JOHN KNOX WALKUP
123 N . Poplar S t., Ste. A Attorney General & Reporter
Paris, TN 38242
PETE R M. C OUG HLIN
Asst. Attorney General
425 5th Avenu e North
Nashville, TN 37243
ROBERT RADFORD
District Attorney General
P.O. Box 686
Huntingdon, TN 38344
OPINION FILED:____________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Thomas Michael Stone, was indicted for rape of a child,
rape, and incest, and convicted by a jury of all three charges. The convictions were
affirmed on direct a ppeal. State v. Thomas Micha el Stone, C.C.A. No. 02C01-
9503-CC-00063, Henry County (Tenn. Crim. App., Jackson, Dec. 13, 19 95). In th is
post-conviction relief proceeding filed on October 10, 1996, the Defendant
contends that he received ineffective assistance of counsel at trial and on appe al.
After an evidentiary hearing, the post-conviction court denied relief. Upon our
review of the record, we affirm.
The Defendant specifically alleges that his trial counsel was ineffective in the
following particulars:
(1) Failing to object to allege d hearsay tes timony;
(2) Failing to call a lab technician as a witness;
(3) Failing to call character witnesses;
(4) Failing to attack the credibility of two of the State’s witnesses;
(5) Failing to effec tively cro ss-exa mine the victim and the State’s ex pert
witness;
(6) Failing to offer an independent expert witness;
(7) Failing to move for a change of venue;
(8) Failing to m ove to dism iss the indic tment and to object to the
amen ded ind ictmen t;
(9) Failing to move to sever the charges; and
(10) Fa iling to a ssist him in prep aring h is app eal.
At the evidentiary hearing, the trial court heard testimony from the
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Defe ndan t's trial counsel (who also filed his direct appeal), the Defenda nt's mother,
and the Defe ndant. The trial c ourt also re viewed th e transcr ipt of the trial. In
denying the Defendant's claim for relief, the court ruled that no inadmissible
hearsay had been admitted as alleged; that the failure to call the lab technician was
irrelevant; that the pre judicial effec t of the failure to call character witnesses had
not been proved; that the credibility of one of the referenced witnesses had been
sufficien tly impeached and that the alleged impeachment evidence against the
other had not been prove n; that d efens e cou nsel’s cross-exam ination was pro per;
that the prejudicial effect of not calling an independent expert witness had not been
proved; that the Defendant had not proven any error in the appeal; that counsel
had no grounds for a change of venue or for a severance of charges; and that
defense counsel had not erred with respect to challen ging the in dictme nt. In
conclusion, the trial court stated that “trial counsel’s performance in every aspect
of this trial met and exceeded that range of competence dem ande d of atto rneys in
criminal c ases.”
W e first note that in reviewing the Defendant’s Sixth Amendment claim of
ineffective assistance of counsel, this Court must determine whether the advice
given or services rendered by the attorney are within the range of competence
demanded of attorneys in criminal c ases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To prevail on a claim of ineffective counsel, a Defendant “must show
that counsel’s representation fell below an objective standard of reasonableness”
and that this performance prejudiced the defense. There must be a reasonable
probability that but for counsel’s error, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694 (1984);
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Best v. State, 708 S.W .2d 421 , 422 (T enn. C rim. App . 1985). We note further that
in this post-conviction relief proceeding, the Defendant has the burden of proving
the allega tions in his petition by clear and convincing evidence, Tenn. Code Ann.
§ 40-30-210(f); and the factual findings of a trial court after an evidentiary hearing
“are conclusive on appeal unless the evidence preponderates against the
judgmen t.” State v. Buford , 666 S.W .2d 473 , 475 (T enn. C rim. App . 1983).
In this cas e, the D efend ant alle ged th at his tria l lawyer was d eficient by,
among other things, failing to call certain witnesses. Because he did not call these
witnesses to testify at the post-conviction e videntiary hearing, however, he
adduced no proof as to how th ey would have be en help ful to his cas e. Accordingly,
he has failed to prove any prejudice resultin g from his law yer’s de cision not to c all
them at trial. These allegations are, therefore, withou t merit. The remain ing
conduct of which the Defendant complains amount to tactical decisions and/or
strategy calls. This Court should not second-guess trial counsel’s tactical and
strateg ic choices unless those ch oices we re uninfo rmed b ecaus e of inade quate
preparation, Hellard v. S tate, 629 S .W .2d 4, 9 (Ten n. 198 2); and coun sel sho uld
not be deemed to have been ineffective merely because a different procedure or
strategy might ha ve produ ced a d ifferent resu lt. Williams v. State, 599 S.W.2d
276, 280 (T enn. C rim. A pp. 19 80). T he De fenda nt has simp ly failed to clearly and
convincingly prove that his lawyer’s performance was the result of inadequate
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preparation or that he failed in any o ther respect to m eet the “objective standard
of reaso nablen ess.” Th ese alleg ations are therefore also witho ut merit.
The trial court having correctly denied relief, we affirm the judgment below.
_________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________
PAUL G. SUMMERS, JUDGE
____________________________
JOE G. RILEY, JUDGE
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