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Hunter v. State9/9/1999
g the petitioner's prior arrests. He claims that the "intense questioning obviously flustered and destroyed his credibility in the eyes of the jury." However, it was the petitioner's false answer to the question which "opened the door" to his prior arrests. In taking the stand in his own defense, the petitioner was sworn to tell the truth, regardless of the questions posed to him. We refuse to find trial counsel deficient as a result of his client's decision to testify untruthfully. The petitioner has not established that trial counsel's performance was deficient in this regard, nor has he established that he suffered prejudice as a result.
This issue is without merit.
F. Failure to Investigate
In his final claim of ineffective assistance of counsel, the petitioner alleges that trial counsel did not conduct an adequate investigation of his case. He argues that trial counsel did not adequately investigate the crime scene and counsel should have hired a private investigator . He further claims that trial counsel failed to secure favorable witnesses for the defense.
With regard to the claim that trial counsel did not properly investigate the petitioner's case, the petitioner has failed to demonstrate what evidence further investigation would have produced. As a result, the petitioner has not shown how he was prejudiced by his attorney's alleged deficiency.
The petitioner further complains that trial counsel did not contact witnesses who would have testified as to the victim's drunken state on the afternoon of the shooting. However, these witnesses were not called to testify at the post-conviction hearing. "When a petitioner contends that trial counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing." Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Without the testimony of these proposed witnesses, this Court is left to speculate as to what their testimony would have been. Because the petitioner did not present these witnesses at the post-conviction hearing, he cannot demonstrate how he was prejudiced by his attorney's failure to discover these witnesses and/or call them to testify.
This issue has no merit.
III.
The petitioner has not established that his attorney provided deficient performance at trial or on appeal. Moreover, he has not demonstrated a reasonable probability that, due to his attorney's alleged deficiencies, the result of the proceeding would have been different. Accordingly, the trial court properly denied the petition for post-conviction relief. The trial court's judgment is affirmed.
JERRY L. SMITH, JUDGE
CONCUR:
DAVID G. HAYES, JUDGE
NORMA MCGEE OGLE, JUDGE
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