IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY SESS ION, 1998 FILED May 5, 1998 BILLY ALDRIDGE, ) C.C.A. NO. 02C01-9701-CC-00021 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appe llant, ) ) LAKE COUNTY V. ) ) ) HON. JOE G. RILEY, JR., JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM K. RANDOLPH JOHN KNOX WALKUP N. Mill Street, Suite 303 Attorney General & Reporter P.O. Box 611 Dyersburg, TN 38025-0611 KENNETH W. RUCKER Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 G. STE PHE N DAV IS C. PHILLIP BIVENS District Public Defender District Attorn ey Ge neral CLARENCE U. COCHRAN, JR. KAREN WINCHESTER Assistant Public Defender Assistant District Attorney General P.O. Box 742 P.O. Drawer E Dyersburg, TN 38025 Dyersburg, TN 38025

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Billy Aldridge, appeals from the order denying his petition for post-conviction relief. Petitioner was convicted of aggravated assault following a jury trial in the Lake County Circuit Court. This court affirmed on direct appea l. State v. Billy Aldridge, No. 02C01-9509-CC-00279, Lake County (Tenn. Crim. App., at Jackson, April 17, 1996 ). Petitio ner su bseq uently filed a petition for post-conviction relief. This petition was subsequently denied following a hearing by the trial court.

In this petition, Petitioner argues he was denied the effective assistance of counsel in the jury se lection pro cess. W e affirm the judgm ent of the tria l court.

“In post-conviction relief proceedings the petitioner has the burden of proving the allegations in his petition by a preponde rance of the evide nce.” McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial cou rt in hea rings “a re con clusive on appeal unless the evidence preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983 ). In reviewing the Pe titioner’s Sixth Amen dment claim of ineffective assistance of counsel, this court must determine whether the advice given or services rendered by the attorney are with in the range of competence demanded of attorneys in crimina l cases. Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75).

This court sho uld not second-guess tria l coun sel’s tac tical an d strate gic choices unless those choices were un informe d beca use of ina dequa te preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel should not be deemed to have been ineffective merely because a different procedure or strategy might have produced a different re sult. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim.

-2- App. 1980). To prevail on a claim of ineffective assistance of counsel, a petitioner “must show th at counsel’s representation fell below an objective standard of reasonableness” and that this perform ance p rejudiced the defen se. There must be a reasonab le probability that but for coun sel’s error the result of the p roceeding would have be en differen t. Strickland v. Washington, 466 U.S. 66 8, 687-88, 692, 694, 104 S.Ct. 20 52, 2064, 20 67-68, 80 L.E d.2d 674 (1 984); Best v. State, 708 S.W .2d 421, 422 (Tenn. Crim . App. 1985 ).

Specifically, Petitioner contends that he received ineffective assistance of counsel in the jury selection process due to trial counsel’s failure to use the peremp tory challenge on jurors who were prison emplo yees. Trial counsel testified that he was appointed to represent Petitioner in the case, in which the criminal act was alleged to have o ccurred in the State ’s correctio nal facility in La ke Cou nty.

During voir dire, counsel wa s aware that several of the pote ntial jurors were employees of the Tennessee Department of Correction. Counsel recalle d ask ing if any of the jurors or the jurors’ relatives worked at the prison or in law en forcem ent.

Then, counsel asked all of the jurors if they had any general knowledge regarding the facts of the case and w hethe r the fac t that the y or the ir relatives were employees of the prison would make a difference in their ability to decide the case on the facts.

Counsel recalled that none of the potential jurors responded in the affirmative.

Furthermore, coun sel voir d ired on the im portan ce of th e Petitio ner’s rig ht to a fa ir trial and wh ether the jurors had any dou bts in their mind regarding whether they could give Petitioner a fair trial and de cide it on the basis of th e eviden ce.

Counsel stated that he was well aware that many people from the jury pool work at the pris on in his county, but that he had to acce pt what their answ ers were -3- on voir dire as to whether they could be fair and just and whether they knew anything about the facts th at would prejudice them. Specifically, counsel knew of two (2) of the twelve (12) jurors who decided Petitioner’s case who actually worked for the Tennessee Department of Correction. After voir dire, counsel exercised five (5) peremp tory challeng es. Cou nsel then asked Petitione r if this jury w as ac cepta ble to him, and Petitioner stated that he had no objection to the final selection.

Ultimately, counsel stated that he was satisfied that the jury chosen was the best he could ch oose fro m the p otential jury p ool.

The trial cou rt, in a memorandum opinion and order denying post-conviction relief, found that Pe titioner received the effective assistance of counsel and denied Petitione r relief. Spec ifically, the trial cou rt found tha t: Counsel was aware of all persons wh o served on the jury that were employed at the prison as well as the family connections. No person remained on the jury who had any kind of direct knowledge concerning this incident. Coun sel ma de strate gical and tactical cho ices with regard to the jury selection. Petitione r approved the 12 jurors before the last round of peremptory challenges. Petitioner has shown no prejudice as a result of the jurors who actually decided the ca se. Th is issue is without m erit.

In addition to the trial court’s opinion denying post-conviction relief, Petitioner raised a similar issue on direct appeal. A panel of this court found that upon review of the entire record in th is case w ith regard to the claim of juror bias , the claim was not suppo rted as the Petitioner fa iled to esta blish any b ias.

In the context of ineffective as sistance of cou nsel, Petitioner has failed to prove by a preponderance of the evidence that his trial counsel’s decisions during voir dire were uninformed. Counsel was aware of the potential jurors’ employment with the Tennessee Department of Correction, and he used tactical and strategic

-4- questioning in order to determine whether any bias existed against Petition er. Th is issue is w ithout me rit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge

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