        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE           FILED
                          JULY SESSION, 1999         September 10, 1999

                                                   Cecil Crowson, Jr.
BRE TT ALL EN P ATTER SON , )                     Appellate Court Clerk
                                   C.C.A. NO. 01C01-9805-CC-00221
                            )
     Appe llant,            )
                            )
                            )      MONTGOM ERY COUNTY
VS.                         )
                            )      HON. ROBERT W. WEDEMEYER
STATE OF TENNESSEE,         )      JUDGE
                            )
     Appellee.              )      (Post-Co nviction Re lief)




FOR THE APPELLANT:                 FOR THE APPELLEE:

JOHN J. HOLLINS, JR.               PAUL G. SUMMERS
Hollins, Wagster & Yarbrough       Attorney General & Reporter
424 Church Street
2210 SunTrust Center               KIM R. HELPER
Nashville, TN 37219                Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243-0493

                                   JOHN CARNEY
                                   District Attorney General

                                   ARTHUR BIEBER
                                   Assistant District Attorney
                                   204 Franklin St., Suite 200
                                   Clarksville, TN 37040



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


      On February 23, 1988, Petitioner Brett Allen Patterson was convicted of

two counts o f first degree murde r, one count of first degree burglary, and one

count of aggravated rape. On March 18 , 1988, Petitioner rec eived conse cutive

sentences of life, life, and forty years for the two first degree murder convictions

and the agg ravated ra pe con viction. Petition er also rec eived a co ncurren t ten

year sentence for his first degree burglary conviction. Petitioner’s convictions and

sentences were up held by th is Court o n Dece mber 8 , 1989. P etitioner filed a

petition for post-conviction relief on October 29, 1992; a first amended petition for

post-conviction relief on N ovem ber 5, 19 93; a second amended petition for post-

conviction relief on December 4, 1995; and a third amended petition for post-

conviction relief on September 13, 1996. After a two day hearing on December

9, 1996, and April 4, 1997, the post-conviction court dismissed the petition.

Petitioner challenges the dismissal of his petition, raising the following issues:

      1) whether Petitioner’s statement to police should have been suppressed
      as the re sult of an illeg al arrest;
      2) whether trial counsel were ineffective in failing to conduct a full an d fair
      hearing on the law fulness o f Petitioner’s arrest;
      3) whether the search warrant in this case was void because the
      supporting affidavit was invalid;
      4) whether trial coun sel were ineffec tive in failin g to co nduc t a full and fa ir
      hearing on the va lidity of the wa rrant;
      5) whether Petitioner was denied due process by being tried jointly with a
      codefe ndant;
      6) whether trial counsel were ineffective in failing to seek a severance;
      7) whether Petitioner’s stateme nt to po lice wa s inad miss ible be caus e it
      was involuntary;
      8) whether trial couns el were ine ffective in failing to cond uct a fu ll and fa ir
      hearing on the vo luntarines s of Petition er’s statem ent;
      9) whether the trial court erred when it imposed consecutive sentencing;
      10) whether appellate counsel was ineffective in failing to include the
      transc ript of the sente ncing hearin g in the record on dire ct app eal;
      11) whether the State’s opening statement and closing a rgumen t were
      improper;


                                           -2-
       12) whether trial counsel were ineffective in failing to object to c ertain
       comm ents during the State’s op ening sta temen t and clos ing argu ment;
       and
       13) whether trial counsel were ineffective in the manner in which they
       investig ated th e cas e and cond ucted the trial.

After a review of the reco rd, we affirm the judgment of the post-conviction court.

                                  I. BACKGROUND




                                        A. Trial




       In State v. Brett Patterson, No. 88-245-III, 1989 WL 147404, at *1–2 (Tenn.

Crim. App., Nashville, Dec. 8, 1989), this Court gave the following summary of

the evid ence prese nted a t trial:

              On the night of January 9, 1987, Brett Patterson and Ronnie
       Cauthern drove to the home of Patrick and R osema ry Smith, who w ere
       both Captains in the United States Army assigned to Fort Campbell as
       nurses. The defendants wore masks and gloves, and each carried a
       loaded revolver. After severing the telephone line, the defendants broke
       a door p ane, u nlocked the door, and entered the Smiths’ house. They
       were after a large sum of money thought to be kept in the bedroom.
              Once inside, the defendants discovered that the Smit hs were at
       home asleep. They awakened them and pulled them out of bed. Patrick
       Smith tried to fight them off, whil e Patters on ma de repe ated attem pts to
       subdue him b y apply ing a “s leepe r,” a wre stling hold designed to cause
       unconsciousness. Failing this, Patterson strangled Mr. Smith with a length
       of “880” military cord. Investigators later recovered similar cord from the
       defend ant’s resid ence w hen the y search ed it.
              Mrs. Smith was strangled with a silk scarf into which a narrow vase
       was inserted to form a tourniquet. The medical examiner found that the
       cartilage in her throat had b een fractured, a n injury which wou ld have
       resulted only from application of great force. Mrs. Smith had also been
       raped.
              When neither of the Smiths reported for duty on the following
       morning, two of their c o-worke rs drove to their home to investigate.
       Finding the door glass broken, they called the police. Investigators arrived
       prom ptly and discovered Patrick Smith ’s body in the master bedroom, and
       Rosemary Smith’s body in a guest bedroom.
              The house had been ransacked and numerous items stolen,
       including articles of clothin g, seve nty dolla rs cas h, pers onal c heck s, cred it
       cards, a video cassette recorder, Mrs. Smith’s engagement and wedding
       rings, her watch, an d her purse. T he keys to their two cars were also
       taken.

                                            -3-
               In the m aster b edroo m, investigators fou nd a piec e of pap er with
        Cau thern’s name on it. Also written on it was the Smiths’ phone numbe r,
        address, and directions to their residence.
               On the mo rning of Ja nuary 12 , 1987, an informant contacted the
        police and told th em tha t Patterson and Cauthern, both of whom the
        informant knew well, had admitted taking the Smiths’ property, sexually
        abusing Mrs. Smith, and killing them both.
               The informant related to investigators how Patterson an d Cauthe rn
        had broken into the house, described the method by which the Smiths had
        been strangled , and told of having seen several of the items stolen from
        their residence. The informant said that Cauthern was confident that he
        and Patterson would not be caught because they had worn masks and
        gloves.
               Investigators then proceeded to the residence that the defendant
        shared with Cauthern and a third person—Eric Barbee. When they
        arrived, all three men were present and officers saw several of the stolen
        items in the trunk o f Cauthern’s ca r.
               The residence was searched, and a large amount of incriminating
        evidence was seized.
               Both defendants were arrested; both gave detailed an d high ly
        inculpatory confessions.

                               B. Post-conviction Hearing

        David Baize testified that he was employed by the Clarksville Police

Department in Janua ry of 1987 . At that time, Baize received a tip about the

Smith case from confidential informant James Andrew.1 Baize subsequently met

with Andrew and took a statement from him. Although Baize knew that Andrew

had had “misdemeanor problems” in the p ast, Ba ize felt th at he w as relia ble

because he wa s able to prov ide de tails ab out the Smith case that co uld ha ve only

been o btained from so meon e who h ad bee n in the S mith ho me.



        Bobby Gray testified that he was employed by the Clarksville Police

Department in January of 1987. Although Gray provided some of the information

for the affidavit in support of search warrants for the residences of Petitioner and




        1
       W e note that in many of the proceedings in this case, Andre w is referred to as “Andrews.”
However, a review of the record indicates that “Andrew” is the correct name.

                                                 -4-
Cauthern, he had not talked to Andrew and had not checked to see whether

Andre w had a criminal re cord.



      Gray testified that he was present when Petitioner was arrested. When

Gray and other officers went to the residences of Petitioner and Cauthern,

Petitioner and Cauthern were working on a car that contained the Smiths’

checkb ook an d credit ca rds in plain view of the o fficers.



      Agent Mike Breedlove testified that he was present when Petitioner gave

a taped statement to police in January of 1987. Although some of Petitioner’s

statement was recorde d, there w as a po rtion that wa s not reco rded. Toward the

end of the interview, Breedlove and Petitioner discussed the difference between

a life and a death se ntence, and Breedlove told Petitioner that his cooperation

with police could be considered by a jury when determining whether to impose

a death senten ce.



      John Richard son testified that he was one of the attorneys who

represented Petitioner at trial. Richardson and his co-counsel did not put on any

defense during the guilt phase and did not introduce any mental history evidence

during sentencing. Richardson also waived argument during the guilt phase as

a tactical decision. Richardson did not recall whether the State turned over the

criminal records of Andrew and one of the State’s witnesses, Joe Denning.

Richardson never interviewed Andrew or Denning and never m ade a m otion to

sever P etitioner’s trial from that of Ca uthern.




                                          -5-
      Richardson testified that from a tactic al stan dpoin t, he an d his co-counsel

wanted Petitioner to be tried with Cauthern. Richardson believed that the best

strategy w ould be to try and se parate the break-in by Petitioner from the actual

murde rs com mitted by Cauth ern.



      Lionel Barrett testified that he also represented Petitioner. Barrett did not

recall whether the State provided the defense with the criminal records of Andrew

and Denning. Barrett also did not recall whether the State had provided any

informa tion abou t deals it had made with witnes ses.



      Officer Robert Hunt of the Clarksville Police Department testified that he

is the records custodian for the department. Hunt testified that orig inally, ce rtain

arrest records were in the County’s computer system and the County’s records

were copied and transferred into the Clarksville Police Department computer

system in Septe mber o f 1993.



      Wade Bobo testified that h e prose cuted this case at tria l. Bobo disclosed

the agreement he had with Denning to the defens e. Bobo had an agreem ent with

Eric Barbee to d ismiss som e charges if Barbee cooperated in the investigation

of the case. Bobo could not remember whether he disclosed the agreement he

had with Barbe e to the de fense.



      Joseph Griffey testified that he was working for the Clarksville Police

Department in January of 1987. Griffey testified that he provided the information

for the search warrant affidavits based on his perso nal ob serva tions a nd on his

intervie w with Andrew. Griffey personally checked the city computer database

                                         -6-
to determine whether Andrew had a criminal record and the database indicated

that Andrew did not have a record. Grif fey admitted that the statement in the

affidavits that the informant was reliable was based on information he received

from B aize.



       Petitioner testified that wh en he was q uestio ned b y detec tives, the y told

him that C authe rn and Barb ee ha d put th e blam e on h im and if h e wou ld confess,

things would go better for him and it could be the difference be tween a life or a

death sentence. Petitioner claimed that the detectives told him that anything he

said would not be publicized. Petitioner testified that he wante d to tes tify at trial,

but he was p reven ted from doing so by h is coun sel. Pe titioner s tated th at his

attorneys never followe d up o n his co urt ord ered m ental e valuatio n. He also

stated that his attorneys failed to include a transcript of the sentencing hearing

in the reco rd on dire ct appeal and thus, the appellate court ruled that any

sentencing issues were waived. Petitioner also testified that his attorneys failed

to interview witne sses an d failed to inve stigate to s ee whe ther the S tate’s

witnesses had crimin al reco rds or w hethe r they h ad m ade d eals with the State.



                    II. PREVIOUSLY DETERMINED ISSUES




       Initially, we no te that P etitioner has raised se veral issues that we re

addressed by this Court on direct appeal. Specifically, Petitioner contends: that

his warrantless arre st was illegal and an y evidence ob tained pursuant to the

arrest should have been suppressed, that the search warrant in this case was

invalid and any evidence seized pursuant to the warrant should have been

suppressed, that he was deprived of a fair trial because his statement to police

                                          -7-
was redacted to eliminate any reference to Cau thern, th at his statement to police

was involuntary and was therefore inadmissible, that he should have received

concurrent sentences, and that the prosecutor’s opening statement and closing

argument were improper. The post-conviction court found that these issues were

not cognizable in a post-conviction proceeding because th ey wer e prev iously

determ ined on direct app eal. W e agree with the po st-convictio n court. 2



         W hen Petitioner filed his petition in 1992, Tennessee Code Annotate d

section 40-30-111 provided

         The scop e of the [post-c onvictio n] hea ring sh all extend to all grounds the
         petitioner may have, except those grounds which the co urt finds shou ld be
         exclude d beca use the y have be en waive d or previo usly deter mined . . . .

Tenn. Code Ann. § 40-30-111 (1990). In addition, Tennessee Code Annotated

section 40-30-112(a) provided

         A ground for relief is “previou sly determined” if a court of competent
         jurisdiction h as ruled o n the m erits after a fu ll and fair hea ring.

Tenn. Code A nn. § 40-30-1 11(a) (1990). 3 A full and fa ir hearing s ufficient to

support a finding o f previous determ ination occurs if a petitioner is given the

opportu nity to prese nt proof a nd argu ment o n the claim . House v. State, 911

S.W .2d 705, 711 (Tenn. 199 5).



         In the direct appeal of this case, this Court held that Petitioner’s arrest was

lawful, Brett Patterson, 1989 WL 147404, at *3–4; that the search warrant was


         2
          We note that in addition to the fact that it is not cognizable because it was previously determined,
Petitio ner’s claim that th e trial c ourt e rred whe n it im pos ed co nse cutive sent enc ing is n ot co gniza ble
because a petitioner cannot seek review of the length or manner of serving sentences in a post-conviction
proceed ing. See Andre a Jones v . State, No. 02 0C01 -9603 -CR-00 084, 19 97 W L 683 30, at *1 ( Tenn. C rim. Ap p.,
Jackson, Feb. 20, 1997).

         3
         These statutes were repealed on May 10, 1995. The statute that replaced these statutes also
provides that previou sly determ ined issu es are n ot cogn izable in a pos t-conviction procee ding. See Tenn.
Code Ann. § 40-30 -206(f), (h) (1997).

                                                      -8-
valid, id., 1989 WL 147404 at *5–6; that admission of Petitioner’s redacted

statement was pro per, id., 1989 WL 1474 04 at *6 –7; tha t the rec ord fully

supported conse cutive sen tences , id., 1989 WL 1474 04 at *9 ; that Pe titioner’s

statement to police w as volun tary, id., 1989 WL 147404 at *4–5; and that

Petitioner was not prejudiced by the prosecutor’s opening statement or closing

argum ent, id., 1989 WL 147404 at *7. Because this Court addressed each of this

issues on direct appeal after Petitioner had been given the opportunity to present

proof and argument for the issu es, the se issu es are not co gniza ble in this post-

conviction proceeding.4



                              III. ASSISTANCE OF COUNSEL




        Petitioner contends that the post-c onvictio n cou rt erred when it determined

that his counsel had provided effective representation. Specifically, Petitioner

claims that his coun sel we re ineffe ctive be caus e: they fa iled to a dequ ately

address the leg ality of P etitione r’s arre st, they fa iled to a dequ ately address the

validity of the search w arrant, the y failed to file a motion to sever the trial of

Petitioner from tha t of Cauth ern, they failed to adequately address the

voluntariness of Petitioner’s statement, they failed to include the transcript of the

sentencing hearing in the record on direct appeal, they failed to object to portions

of the prosecu tor’s opening state ment and closing argum ent, they failed to

adeq uately investigate the case, and they were deficient in the manner in which

they co nduc ted the trial.



        4
         Petitioner urges us to reconsider the merits of these issues in light of additional facts that were
established at the post-conviction hearing. However, this Court has previously stated that “[a] petitioner
may not relitigate a previously determined issue by presenting additional factual allegations.” Cone v.
State, 927 S.W .2d 579, 582 (Tenn. Crim . App. 1995).

                                                   -9-
       Article I, Section 9 of the Tennessee Constitution p rovide s “that in all

criminal prosecutions, the accused hath the right to b e hea rd by him self an d his

couns el.” Tenn . Const. a rt I, § 9. Similarly, the Sixth Amendment to the United

States Cons titution g uaran tees th at “[i]n all c rimina l prose cutions, the accused

shall enjoy the right . . . to have the as sistan ce of c ouns el for his defense.” U.S.

Cons t. amend. VI. “These constitutional provisions afford to the accused in a

criminal prosecution the right to effective assistance o f counsel.” Henley v. State,

960 S.W .2d 572 , 579 (T enn. 19 97).



       W h en a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, the petitioner bears the burden of showing that (a) the

services rendered by trial counsel were deficient and (b) the deficient

performance was pre judicial. Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 19 96). In order to demonstrate deficient performance, the petitioner must

show that the services rendered or the advise given was below “the range of

competence demanded of attorneys in criminal cases .” Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner

must show th at there is a reason able pro bability that, but for counsel’s deficient

performance, the result of the proce eding wou ld have been d ifferent. Strickland

v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 67 4 (1984).

“Because a petitioner must establish both prongs of the tes t to prev ail on a claim

of ineffective assistance of counsel, failure to pro ve either deficient performance

or resulting prejudice provides a sufficient basis to deny relief on the claim.”

Henley, 960 S.W.2d at 580. “Indeed, a court need not address the comp onents

in any particular order or even address both if the defendant makes an

insufficient showing of one com ponent.” Id. “More over, o n app eal, the findings

                                          -10-
of fact made by the trial court are conclusive and will not be disturbed unless the

evidence containe d in the rec ord prep ondera tes aga inst them .” Adkins v. State,

911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is on the petitioner

to show that the evidence pre ponderate d against thos e findings.” Id.



                                      A. Arrest




       Petitioner conten ds that his trial couns el were ine ffective because they

failed to ade quate ly challe nge th e lega lity of his arrest by arguing that the arrest

was no t suppo rted by pro bable ca use.



       First, Petitioner claims that his trial counsel we re ineffective because they

failed to argue that Petitioner’s arrest was not supported by probable cause since

he alleges the arresting officers had no basis for determining that he was

involved in the crimes at the Smith residence. This claim is not accurate. The

record indicates that Petitioner’s trial counsel filed a motion to suppress

Petition er’s statement to police alleging it was the prod uct of an illeg al arrest.

The record also indicates that during the suppression hea ring, P etitione r’s

counsel questioned Gray extensively about whether there was probable cause

to arrest Pe titioner. Inde ed, Petition er’s coun sel aske d Gray w hether he had

seen any evidence at the time of arrest that tied Petitioner to the crimes, whether

he had previously received information that Petitioner was involved in the crimes,

and wh ether the informa tion receive d from A ndrew w as reliable .



       Second, Petitioner contends that because the only information the police

had that tied him to the crimes came from Andrew, trial counsel was ineffective

                                          -11-
in failing to call Baize to testify since Baize was th e pers on wh o actu ally

interviewed Andrew. H owever, Petitioner h as failed to identify any testimony that

Baize could or would have given that would have had any effect on the

determination of whether Petitioner’s arrest was supported by probable cause.

Thus, we cannot say that trial counsel was ineffective in failing to call Baize to

testify.



       Gray testified at the suppression hearing that on January 9, 1987, he and

other officers discovered the bodies of the Smiths at their home. Subsequent

investigation revealed that both Smiths had been strangled to death and

someone had taken the Smiths’ credit cards. On January 12, 1987, Andrew

informed the police that he had seen the Smiths’ credit cards in the possession

of Petitioner and Cauthern. Andrew also prov ided inform ation abo ut the dea th

of the Smiths that was corroborated by the police. Later that day, po lice went to

question Cauthern and they observed Petitioner, Cauthern, and Barbee standing

in front of a vehicle. The officers saw credit cards and checks with the Smiths’

names on them in plain view in the open trunk of the vehicle. At this point, the

officers arrested Petitioner, C authe rn, and Barb ee. In th e direc t appe al of this

case, this Court held that “it is profoundly manifest to us that [Pe titioner’s] arres t,

supported as it was by the abundance of probable cause enumerated above, was

lawful.” Brett Patterson, 1989 WL 147404, at *4. Indeed, this Court noted that

Petitioner could have been arrested for committing a felony (receiving or

concealing stolen goods) in the presence of the arres ting officers. Id., 1989 WL

147404, at *4 n.4. We agree with this Court’s holding on direct appeal that

Petition er’s arrest wa s supp orted by p robable cause . W e also conclude that




                                          -12-
Petitioner has failed to show anything that could have been done by trial counsel

to demonstrate that this holding was wrong.



       In short, Petitioner has failed to demonstrate either that his trial counsel

were deficient in the manner they challenged the legality of his arrest or that he

was pre judiced b y any alleg ed deficie ncy. This issue ha s no m erit.



                                    B. Warrant




       Petitioner contends that his trial counsel were ineffective because they

failed to adequately challenge the validity of the search warrant in this case.

Specifically, Petitioner c ontend s that cou nsel we re ineffective in failing to

establish that the affidavit submitted in support of the search warrant contained

false and misleading statements.



       The affidavit in sup port of the search warra nt in this case provid es, in

relevant p art:

       On January 9, 1987, Clarksville Police Dept. found that the residents of
       352 Hampshire Drive Clarksville, TN w ere both m urdered (prelim inary
       autopsy by Dr. Ch arles Ha rlan repo rts strangulation) and their house
       ransacked; said victims being R osem ary and P atrick Sm ith. Affiant has
       talked to a confidential informant whose identity has been m ade kn own to
       issuing judge and w ho has no record and n o reaso n know n to affiant to
       mista te [sic] the truth an d is relia ble, an d who relates that he talked to
       Ron nie Cauthern who admitted to said informant that he participated in the
       robbery and murder of the said victims. Affiant has interviewed the said
       Cauthern who tells affiant that the purse belonging to the victim, Rosem ary
       Smith, was at the above described premises on this morning, January 12,
       1987. When affiant went to the above-described premise s to talk to
       Cauthern this morning, 1/12/87, he observed personalized checks and
       credit cards belonging to the victims in the trunk of said C authe rn veh icle
       parked at the above-described premises. When said Cauthern was picked
       up for an interview, Officer R. Prost found credit cards belonging to the


                                        -13-
      victims in his (Cauthern’s) coat po cked [sic], alo ng with variou s cash in
      bills.

Petitioner conte nds th at his coun sel sho uld have challenged this affidavit under

State v. Little, 560 S.W.2d 403 (Tenn. 1978). In Little, the Tennessee Supreme

Court h eld that

      there are two circumstances that authorize the impeachment of an affidavit
      sufficient on its face, (1) a false statement made with intent to deceive the
      Court, whether material or immaterial to the issue of probable cause, and
      (2) a false statement, essential to the establishment of probable cause,
      recklessly made.

Id. at 407. In addition, the supreme court stated that “[r]ecklessness may be

established by showing that a statement was false when made and that affiant

did not have rea sonable gro unds for believing it, at that time .” Id.



      First, Petition er claim s that h is counsel we re ineffective in failing to assert

that the affidavit was invalid because the phrase “When affiant went to the

above-described premises to talk to Cauthern this morning, 1/12/87” is false.

Petitioner claims that this statement is false because Griffey admitted that the

reason he went to see Cauthern was to “arrest” him , not to “ta lk” to him . This

assertion is not accurate. Griffey testified at the suppress ion hea ring tha t his

purpose for going to the location where Petitioner and Cauthern were located

was “to see if I could find [Cau thern] an d in talking to him ab out [the S mith

murde rs].” In addition, Griffey testified at the post-conviction hearing that the

reason he wen t to find Ca uthern w as bec ause o ther officers had told him th at

they wanted to talk to Ca uthern a bout the Smith m urders.            In fact, G riffey

spec ifically denied that he went to find Cauthern in order to arrest him. Petitioner

has failed to identify and we ha ve bee n una ble to fin d anyth ing in the record that

indicates that Griffey went to find Cauthern for any other reason besides talking



                                         -14-
to him. Because there is no proof that Griffey’s statement about going to ta lk to

Cauthern was false o r misle ading , Petition er has failed to show that his counsel

were ineffective in failing to challenge the affidavit on this basis.



      Second, Petitioner c laims tha t his coun sel were ineffective in failing to

assert that the affidavit was invalid because the phrase “Affiant has talked to a

confidential informant . . . who has no record” is false and misleading. T here is

no dispute in this case that this statement was technically false at the time it was

made. Indeed, the po st-conviction court found that the statem ent wa s tech nically

false because at the time it was made, Andrew had previously been convicted of

reckless driving, spe eding, an d disorde rly condu ct. Howe ver, the post-conviction

court found that there was absolutely no evidence that the statement was made

with intent to deceive the cour t or that the s tateme nt was m ade rec klessly.



      The evidence do es no t prepo ndera te aga inst the post-c onvictio n cou rt’s

finding that the sta temen t was no t made with intent to deceive the court and was

not made recklessly. Indeed, there is no proof that Griffey knew that Andrew had

a criminal record when he submitted the affidavit. Griffey testified during the

post-conviction hearing that be fore he filled out the affidavit, h e pers onally

checked the Clarksville Police Department computer system to determine

whether Andrew had a prior criminal record and the computer search indicated

that Andrew did not have a criminal record. Griffey also testified that he relied on

the fact tha t Andr ew wa s in the Army and in his experience, people in the Army

did not have prior felony convictions.         Further, Hunt testified that because

Andr ew’s prior convictions occurred in 1985 and 1986, they would not ha ve

appeared in the city computer system when Griffey checked for Andrew’s rec ord

                                        -15-
in 1987. Hunt testified that instead, the convictions would only have appeared

in the coun ty comp uter syste m. Hunt also testified that the information from the

county computer system was not copied and transferred to the city computer

system until 1993.           In addition, Hunt testified that two of Andr ew’s three

convictions were actually coded as civil adjudications. Thus, we conclude that

Griffey did not m ake the statem ent in the a ffidavit with intent to deceive the cour t.

Further, we conclude that G riffey did not make the statement recklessly. Under

Little, “[r]ecklessness may be established by showing that a statement was false

when made and that affiant did not have reason able gro unds fo r believing it, at

that time.” 560 S.W.2d at 407. Because Griffey’s search of the city computer

files indicated that Andr ew ha d no c rimina l record , Griffey had re ason able

grounds to believe that the statem ent in th e affida vit was true. Characterizing the

officer’s actions, in the best light for the petitioner, Griffey’s conduct amou nts to

negligence, not recklessness.                As this Court has p reviously stated, m ere

negligent represe ntation is n ot sufficient to invalidate a n affidavit under the

standards of Little. State v. Cannon, 634 S.W .2d 648, 650 (Tenn. Crim. App.

         5
1982).



         Third, Petitioner claims tha t his counsel we re ineffective in failing to assert

that the affidavit was invalid because the phrase “Affiant has talked to a

confidential informant . . . who has . . . no reason known to affiant to mistate [sic]

the truth and is reliable” is false and mislea ding. The p ost-conviction cou rt found



         5
           Petitioner also contends that his allegation that Griffey made the statement that Andrew had no
criminal record intentionally or recklessly is shown by Bobo’s testimony that he knew that Andrew had
criminal connections in the community. However, Bobo testified that he did not know whether Andrew had
any prior convictions. In addition, Bobo stated that he did not think that he had participated in obtaining
the warrant and he only remembered reviewing the affidavit for some motions that were subsequently filed
in this case. Thus, there is no evidence that Bobo played any role in the completion of the affidavit or that
Griffey had any knowledge about Bobo’s suspicions about Andrew’s criminal connections.

                                                  -16-
that there was no proof that this statement was made with intent to deceive the

court or that the statement was recklessly made.



      The evidence does not pre pond erate a gains t the po st-con viction c ourt’s

finding that the statement was not made with intent to deceive the court and was

not made recklessly. Baize testified at the post-conviction hearing that he met

with the informant in this cas e in Ja nuary of 198 7 and took th e inform ant’s

statement about the Smith murders. Baize testified that he believed that the

informant was re liable b ecau se the inform ant kn ew ab out info rmatio n that c ould

only have come from someone who had been inside the Smith home at the time

of the murders. Griffey testified at the post-conviction hearin g that h e bas ed his

statement in the affidavit that the informant was reliable on the information he

received from Baize and on the interview he had with Andrew after Petitioner and

Cauthern were arrested. In addition, Griffey testified at the suppression hearing

that he believed that Andrew was reliable because Andrew had informed the

police that Cauthern had said that he and Petitioner had murdered the Smiths

and Andrew had seen Cauthern with one of the Smiths’ credit cards. Griffey also

testified that whe n he we nt to find Cauthern, he saw Cauthern and Petitioner

working on a car that contained the Smiths’ credit cards in plain view. Thus, we

conclude that G riffey did not make this statement in the affidavit with the intent

to dece ive the c ourt an d did not ma ke the sta temen t reckless ly. Indeed, because

Andrew provided the police with information about the crim e that c ould h ave on ly

come from someone who had been in the Smith home an d because the police

subs eque ntly corroborated Andrew’s claim that he had seen Cauthern with one




                                         -17-
of the Sm iths’ cre dit card s, it is clea r that G riffey ha d reas onab le grounds to

believe that Andrew was reliable.6



         In short, there is no evidence that the statements made by Griffey in the

affidav it were made with intent to deceive the court or that the statem ents were

reckle ssly made .           Thus, we conclude that Petitioner’s counsel were not

ineffective in failing to challenge the validity of the wa rrant o n this g round . This

issue ha s no m erit.



                                              C. Joint Trial




         Petitioner contends that his trial counsel were ineffective in failing to file a

motion to sever his trial from the trial of Cauth ern. Petitioner argues that his trial

counsel should have sought a severance becau se the joint trial re sulted in

admission of Petitioner’s statement to police that was redacted pu rsuant to

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 16 20, 20 L .Ed.2d 4 76 (196 8), to

eliminate all references to C authern. Spe cifically, Petitioner claims that he was

prejudiced by introduction of the redacted statement because “his own redacted

statement rendere d his con fession m ore incrim inating tha n before the reda ction.”



         Although Petitioner makes the conclusory argument that his redacted

statement was m ore incrim inating tha n his unre dacted statem ent, he has failed


         6
           Petitioner also contends that his allegation that Griffey made the statement that Andrew was
reliable with intent to deceive the court or recklessly is shown by Bobo’s testimony that he knew that
Andrew had used aliases in the past, had dressed like a female on occasion, and had “kinky” sexual
hab its. Ho weve r, as p revio usly no ted, B obo state d tha t he d id not think that h e had partic ipate d in
obtaining the warrant and he only remem bered reviewing the affidavit for some m otions that were
subsequently filed in this case. Again, there is no evidence that Bobo played any role in the completion of
the a ffida vit or th at Gr iffey h ad an y kno wled ge co nce rning Bob o’s su spic ions abou t And rew’s allege dly
deviant behavior.

                                                      -18-
to identify any p ortion of the statem ent that became more incrim inating after it

was redacted. Indeed, we have reviewed both the redacted and unredacted

statements and conc lude that the reda cted statem ent is not significantly mo re

incriminating. Indeed, this Court concluded on direct appeal that admission of the

redacted statement into evidence was pro per. Brett Patterson, 1989 WL 147404,

at *6.



         In addition, we note that the decision of Petitioner’s couns el not to seek a

severance was a tac tical one. Indeed, Richardson expressly testified during the

post-conviction hearing that “I don’t remember if we moved for a severance or

not, but tactica lly spea king, w e defin itely wanted [Petitioner and Cauthern] tried

togethe r.” Richardson also testified that part of the strategy was to attem pt to

contrast Petitioner and Cauthern as much as possible in terms of attitude and

culpability. Similarly, Barrett testified that one o f the trial strateg ies was to “show

that Caut hern w as rea lly the m oving p arty” an d Petitioner “played a very,

relatively spe aking, m inor role co mpare d to Mr. Cauthe rn.” This Court may not

second-guess the tactical and strategic choices made by trial counsel unless

those choices were uninformed because of inadeq uate pre paration . Hellard v.

State, 629 S.W .2d 4, 9 (T enn. 19 82); Alley v. State , 958 S.W.2d 138, 149 (Tenn.

Crim. App. 1997 ). “Trial c ouns el ma y not be deem ed ine ffective m erely because

a different procedure or strategy might have produced a different result.” Alley,

958 S.W.2d at 149. We conclude that counsels’ decision not to seek severance

in order to contrast Petitioner’s participation in the crimes with that of Cauthe rn

appears to have been informed and based upon adequate preparation. W e

cannot second-guess counsel in this regard. See Hellard, 629 S.W.2d at 9. This

issue ha s no m erit.

                                          -19-
                                  D. Voluntariness




       Petitioner contend s that his trial co unsel w ere ineffec tive in failing to

adequately address the voluntariness of his statement to police.



       The record ind icates that Petitioner’s trial cou nsel filed a m otion to

supp ress P etitione r’s statement to police on the ground that the statement was

involuntary.   The record also indicates that during the suppression hearing,

Petitioner’s counsel questioned Gray about the length of the police interview of

Petitioner and w hethe r Petitio ner inv oked his righ t to cou nsel o r his right to

rema in silent. Counsel also questioned Petitioner about his interview with police,

and Petitioner testified that the en tire interv iew wa s not re corde d, that G ray told

him that Cauthern was putting the b lame on h im, and that B reedlove told him that

cooperation could mean the difference between a life or a death sentence.

Counsel then questioned Breedlove about the length of Petitioner’s interview,

whether the entire interview was recorded, whether Petitioner was informed that

Cauthern was blaming him for the crimes, whether Petition er was advise d of his

rights, and whether he made any promises to Petitione r that co opera tion co uld

mean the differen ce betw een a life o r death s entenc e.



       Petitioner claims that trial counsel failed to adequately address the

voluntariness of his statemen t because c ounsel failed to qu estion Breed love

about whether he made any promises that Petitioner would n ot receive the dea th

penalty if he con fesse d to the murd ers of th e Sm iths. Th is allega tion is sim ply

not accurate. Th e record indicate s that during the su ppression h earing the

following colloquy occurred between the prosecutor and Breedlove:

                                          -20-
                [Bobo]: I believe—of course, the Court has [the transcript of
         Petition er’s statemen t], but toward the end there, after completion of the
         statem ent, there was some statements about whether it might be life or
         death?
                [Breedlove]: Yes.
                [Bobo]: Had that been b rought up at a ny time before [Petitioner]
         bringing that up?
                [Breed love]: No, sir. Not at a ll, I think, you know, the main reason
         why I said that at that point more than anything was to encourage him that
         he did the right thin g and , you kn ow, ba sically it was no promise—that
         there would be a difference between life and death, but we were more or
         less trying to let him know that wh at he d id was the right thing by telling the
         truth.

Shor tly thereafter, the follo wing c olloqu y occu rred be tween Petition er’s counsel

and Breedlove:


                 [Richard son]: And . . . were there any comments—you said that you
         made the comment toward h im of life or death merely to encou rage him to
         tell the truth?
                 [Breed love]: Yes, sir. Well, you know, he was feeling pretty bad at
         that point, and we just—you know, we weren’t going to sit and talk down
         to him, and you know, it would have done him no good at that poin t,
         because he had done to ld us the tru th, and it wa s more at that stage to
         encourage him somewhat. We knew it was a bad situation, he
         understood—he had full knowledge, you know, that he was, you know, in
         trouble, and I guess under arrest and he expressed some remorse I guess
         that he told the truth, because he knew, as his statement—that he just
         hung h imself.
                 [Richardson]: Prior to the written statement being made, the taped
         interview, were any comments made about promises or assurances or
         encouragement made as far as life or death were concerned?
                 [Breed love]: No. No. No . The only time it was made was at the
               7
         end.

         In this case, it is absolutely clear that, de spite P etitione r’s con tention s, his

trial counsel did question Breedlove about whether he had made any promises

about cooperation resulting in a life sentence rather than a death sentence.

Petitioner has failed to identify anything m ore that co unsel co uld have done to



         7
          We note that the transcript of Petitioner’s statement indicates that Breedlove only made one
reference to the death penalty during the interview with Petitioner. Page sixteen of the seventeen page
transcript contains the following statement by Breedlove: “You know, you’re sorry for what happened, that
will ch ang e it fro m a deat h sen tenc e to life .” Th e rec ord in dica tes th at Bre edlov e did n ot m ake this
comment until after Petitioner had already given most of his incriminating statement. The part of
Petitioner’s s tatem ent that ca me a fter Bree dlove’s co mm ent is bas ically insignificant.

                                                      -21-
more fully develop this issue. In addition, P etitioner ha s failed to identify any

additional evidence that counsel could have obtained that would have changed

the trial court’s ruling that his statem ent was volun tary. Thus, Petitioner has

failed to show that his counsel were deficient in the manner in which they

addres sed the voluntarine ss of his sta temen t. This issu e has n o merit.



                    E. Transcript of the Sentencing Hearing




       Petition er con tends that his appellate cou nsel was ineffec tive in failing to

includ e the tra nscrip t of his se ntenc ing he aring in the rec ord on direct a ppea l.



       Petitioner argue s that h is coun sel’s failure to include the transcript of the

sentencing hearin g in the app ellate record prejud iced h im be caus e it resu lted in

a waiver of his cla im tha t the trial court erred when it imposed co nsecutive

sentencing. However, this Court did not treat this issue as waived on direct

appeal. Indeed, this Court stated that

              As a prerequisite to imposing consecutive term s, we m ust be able
       to place [Petitioner] into at least one of the Gray categories, and find
       confinement neces sary to protect the public from further criminal conduct
       by the defen dant. Gray v. State, 538 S.W.2d 391 (Tenn. 1976). We can
       and do.
              W e find that the record a s a who le, and particularly the chilling
       details of the crimes as related by [Petitioner] at the sentencing hearing,
       abso lutely justifies the sente nces im posed , and fully su pports [Petitioner’s]
       categorization as a dangerous offender for whom consecutive sentencing
       is appropriate.

Brett Patterson, 1989 WL 147404, at *9.

       Because this Court was able to address the issue of consecu tive

sentencing on the merits, it is absolutely clear that Petitioner was not prejudiced

by the failure to include the senten cing trans cript on ap peal. Indeed, Petitioner


                                           -22-
has failed to identify any portion of the sentencing hearin g trans cript tha t would

have affected th is Court’s h olding tha t consec utive senten ces w ere en tirely

approp riate. This is sue ha s no m erit. 8



                       F. Opening Statement and Closing Argument




         Petitioner contends that his trial counsel were ineffective in failing to object

to portions of the pros ecutor’s o pening statem ent and closing a rgume nt.



         First, Petitioner c ontend s that trial counse l were ineffe ctive in failing to

object during the prosecutor’s opening statement when he said that the “880

cord” that was found in Petitioner’s jacket was the murder weapon and when he

referred to Petitioner as “little,” “on the prowl,” “crea ture,” and “comra de.”

Howeve r, on direct appe al, this Court specifically determined that there was

nothing improper about the prosecutor’s statement that the “800 cord” was the

murder weapon because the facts adduced at trial supported that inference.

Brett Patterson, 1989 WL 147404, at *7. In addition, this Court held that the

prose cutor’s reference to Petitioner as “little,” “on the prowl,” “creature,” and

“comrade” were “neither so demeaning nor derogatory as to constitute an appeal

to passion, prejudice, and sentiment” so as to re quire a nalysis under the test of

Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 19 76). Id., 1989 WL 147404,




         8
           In a re lated issue , Petitio ner c onte nds that tr ial cou nse l were also in effe ctive in failing to ca ll him
to testify during the sentencing hearing, failing to introduce testimony about his good military record, and
failing to introduce evidence about his psychiatric history. However, the record indicates that at the close
of the State’s proof during the sentencing hearing, Richardson informed the trial court that he had
discussed the matter with Petitioner and Petitioner had stated that he did not want to testify or introduce
any evidence during the hearing. The trial court then asked Petitioner whether he was aware of his right
to testify and o ffer proo f and Pe titioner stated that he wa s. Thus , it is clear that co unsel did not decline to
offer proof during the sentencing hearing because they were ineffective, but declined to offer proof
because they were following Petitioner’s instructions.

                                                          -23-
at *7.    Beca use this C ourt has previous ly determ ined that the prosecu tor’s

remarks during his opening statement did not prejudice Petitioner, it is clear that

his counsel were not ineffective in failing to object to the comments.



         Second, Petitioner c ontend s that trial cou nsel we re ineffective in failing to

object when the prosecutor referred to Petitioner during his closing argument

even though Petitioner had waived closing a rgume nt. How ever, th is Cou rt held

on direct appeal that although the p rosecutor’s refere nces to Pe titioner were not

appropriate, Petitioner was not entitled to any relief b ecaus e of them . Id., 1989

W L 147404, at *7. Because this Court has previously determined that the

prose cutor’s rema rks du ring his closing argum ent did not pre judice Petition er, it

is also cle ar that h is coun sel were not ineffective in failing to object to the

comm ents. Th is issue ha s no m erit.



                     G. Investigation and Conduct of the Trial




         Petitioner contends that his trial counsel were ineffective in failing to

adeq uately investig ate this case and in the manner in which they conducted the

trial.



         First, Petitioner contends that his counsel were ineffective because they

failed to interview Andrew, Denn ing, and B arbee b efore trial. However, Petitioner

has failed to indicate how he was prejudiced by this failure. Indeed, Petitioner

has failed to give any explanation at all about how th e outc ome of his tria l would

have been any different if counse l had interviewed the se witnesses before trial.




                                            -24-
       Second, Petitioner c ontend s that trial cou nsel we re ineffective in failing to

investigate to determine whether Denning, Andrew, and Barbee had made any

deals with the State in return for their testimony at trial. Specifically, Petitioner

claims that this failure prevented counsel from impeaching these witnesses.

Howeve r, the reco rd indicate s that Pe titioner’s counsel filed m otions for discovery

of any agreements the Sta te had with its w itness es. In a ddition , Petition er’s

counsel cross-examined Denning about whether he had made a deal with the

State, and Denning admitted that he had made a deal in which he would not be

prosecuted for various matters if he testified in this case. Petitioner’s counsel

also cross-examined Denning about the numerous statements he had given to

police and the relationship between the statements and the deal he had made

with the State. Although the record indicates that Andrew was paid up to $1,000

from the Crimebusters Fund for his cooperation in this case, nothing in the record

indicates that he made a deal with the State in return fo r his testim ony. In

addition, Cauthern’s counsel cross-examined Andrew about whether he had

made any deals with the State and whether he had a reputation for unusual

behavior such as cross dressing. Further, although the record does indicate that

Barbee made a deal with the State in return for his cooperation in the

investigation, the record indicates that Barbee did not testify at trial. Obviously,

Petition er’s counsel could not have impeached the testimony of som eone who d id

not testify. P etitione r has fa iled to show that he was prejudiced by the alleged

failure to inves tigate a nd de termin e whe ther the State h ad m ade d eals w ith its

witnesses.



       Third, Petitioner contends that trial counse l were ineffe ctive in failing to

investigate to determine whether Denning, Andrew, and Barbee had criminal

                                          -25-
records so that the witnesses could be impea ched at trial. Howe ver, the record

indicates that Petitioner’s counsel filed motions for discovery of the criminal

records of all State witnesses. In addition, Petitioner’s counsel made an

agreement with the State that required the State to disclose the criminal records

of its witnesses.    Both Richardson and Barrett testified that they could not

remember whether the State had given them the criminal records of its

witnesses. However, Barrett testified that even if he had seen Andrew’s criminal

record, he would not have used it for impeachment purposes because the prior

convictions were for insignificant matters.        Indeed, the record indicates that

Andr ew’s prior crimin al record consiste d of convic tions for reckless driving,

speeding, and disorderly conduct. Similarly, Denning’s prior criminal record

consisted of convictions for possession of marijuana, driving under the influence

of an intoxicant, and driving on a revoked license. Likewise, Barbee’s prior

criminal record c onsisted of convictio ns for driving under the influence of an

intoxicant and failure to drive with rea sonable ca re. Once again, the record

indicates that Barbee did not tes tify at trial, and thu s, there w as no o pportun ity to

impeach his testimony. In addition, the criminal records of Andrew and Denning

had little, if any, impeachment value. Thus, Petitioner has failed to show that he

was prejudiced by his counsel’s failure to obtain these criminal records.



       Fourth, Petitioner claims that Richardson provided ineffective assistance

of counsel when his questioning of a witness “opened the door” and allowed the

State to introduce a shotgun into evidence. The shotgun had previously been

suppressed by the trial court. However, Petitioner has failed to provide any

explanation for how he was prejudiced by introduction of this weapon other than

a conclusory statem ent that the prejudice is obvious . This conclusory statement

                                           -26-
is insufficient to satisfy Petitioner’s burden of showing that he was prejudiced by

his counse l’s deficiency.



      Fifth, Petitioner contends that his trial counsel we re ineffective in failing to

call him to explain the meaning of a “jungle war certificate” he obtained in the

military and to testify that he received an honorable discharge from the army as

well as variou s letters of me rit and commendation. However, Petitioner has failed

to spe cifically identify any prejudice that resulted from the failure of his counsel

to call him to te stify. In addition , it appears from Ba rrett’s testimony during the

post-conviction hearing that the decision of Petitioner’s counsel not to introduce

any evidence was based on their strategy of attempting to show that Petitioner

only played a minor role in the events that occurred at the Sm ith residen ce. W e

are not free to s econd guess couns els’ tactical de cision.       See Hellard, 629

S.W.2d at 9.



      In short, Petitioner has failed to show that, without the alleged deficiencies

of couns el in their inves tigation of the case or the manner in which they

conducted the trial, there is a reasonable probability that the result of the

proceedings in this case would have been different. Thus, we conclude th at

Petitione r has failed to dem onstrate prejudice . This issu e has n o merit.



                                IV. CONCLUSION




      In conclusion, Petitioner has failed to show that the p ost-conviction cou rt

erred when it dismissed his petition for post-conviction relief. As to his claims

regarding ineffective assistance of counsel, Petitioner has either failed to show

                                         -27-
that his counsel were deficient or that there is a reasonable probability that the

result of the proceedings would have been different without the alleged

deficiencies. As to his other claims, they are not cognizable in a post-conviction

proceeding because this Court previously determined on direct appeal that the

issues have no me rit. Acco rdingly , the jud gme nt of the post-c onvictio n cou rt is

AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                                         -28-
