The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1997 SESSION
FILED
November 13, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DAVID HASSELL, )
) C.C.A. No. 02C01-9611-CR-00396
Appellant, )
) Shelby County
V. )
) Honorable W . Fred Axley, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Elbert E. Edwards, III John Knox Walkup
Attorney at Law Attorney General & Reporter
46 North Third Street, Suite 824
Memphis, TN 38103 Elizabeth B. Marney
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
C. Alanda Horne
Judson W. Phillips
P. T. Hoover
Assistant District Attorneys General
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, David Hassell, was convicted by a jury of first degree
murder. He was sentenced to life imprisonment. On direct appeal we affirmed
his conviction. He then filed a petition for post-conviction relief alleging that he
received ineffective assistance of counsel. After a hearing, the trial court denied
the petition, finding that the appellant had failed to prove any of the allegations in
his petition. He appeals the dismissal of his petition. Upon review, we affirm.
The appellant contends that his trial counsel was ineffective for failing to
adequately investigate his case. Specifically, he contends that his trial counsel
only briefly discussed his case with him, failed to contact his witnesses, and
erroneously advised him not to testify at trial.
In order for the appellant to be granted relief on the grounds of ineffective
assistance of counsel, he must establish that the advice given or the services
rendered were not within the competence demanded of attorneys in criminal
cases and that, but for his counsel’s deficient performance, the result of his trial
would have been different. Strickland v. Washington, 466 U.S. 668 (1984).
The presumption is that the attorney rendered effective assistance, and the
burden is on the appellant to prove both that the assistance was ineffective and
that such ineffectiveness caused the appellant to suffer prejudice. Hartman v.
State, 896 S.W.2d 94, 104 (Tenn. 1995). In a post-conviction proceeding an
appellant’s uncorroborated testimony is insufficient to carry this burden of proof.
State v. Kerley, 820 S.W.2d 753, 757 (Tenn. Crim. App. 1991).
At the post-conviction hearing, a sworn affidavit from the appellant’s trial
counsel was introduced into evidence.1 This affidavit recounts the actions he
took in preparation for the appellant’s trial. Also, his trial attorney’s wife testified
1
The appellan t’s trial counsel died pr ior to the post-conv iction hearing. Th e appellant,
however, had filed a complaint against his counsel with the Board of Professional Responsibility. The
sworn affidav it is the attorney’s respon se to the appellant’s co mplaint.
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that she assisted him in preparing for the appellant’s trial. 2 Finally, the
prosecuting attorney testified. All of these witnesses indicate that the appellant’s
attorney engaged in extensive discovery. Although the appellant apparently felt
animosity toward his attorney, the attorney adequately represented the
appellant’s best interest at trial. We find the appellant’s allegations
unsubstantiated and questionable.
The state had substantial evidence against the appellant. The record
before us reveals that the appellant’s counsel performed effectively. The
appellant has failed to carry his burden. Accordingly, the judgment of the trial
court is affirmed.
________________________________
PAUL G. SUMMERS, Judge
2
Trial counse l’s wife is a licensed attorney.
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CONCUR:
______________________________
JOHN H. PEAY, Judge
______________________________
DAVID G. HAYES, Judge
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