IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED OCTOBER SESSION, 1998 January 28, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
AARON JERMAINE ) C.C.A. NO. 03C01-9802-CR-00046 WALKER, )
)
Appe llant, )
)
) HAMILTON COUNTY
VS. )
) HON . STEP HEN M. BE VIL STATE OF TENNESSEE, ) JUDGE )
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
STE PHE N M. G OLD STE IN JOHN KNOX WALKUP 314 Vine Street Attorney General and Reporter Chattanooga, TN 37403 MICH AEL J . FAHE Y, II
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
BILL COX
District Attorney General
BATES BRYAN, JR.
Assistant District Attorney General Courts Building
600 Market Street
Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defendant, Aaron Jermaine Walker, appeals the denial of his petition for post-conviction relief by the Criminal C ourt for Ham ilton County. Defendant asserts that he su ffered ineffe ctive assista nce of co unsel at trial and that this alleged in effective as sistance prejudice d him in s everal res pects.
Defendant was indic ted by the Hamilton County Grand Jury for premeditated first degree murder and felony murder (in perpetration of robb ery) in connection with the shoo ting de ath of th e victim . Acco rding to Defe ndan t’s testimony at his trial, he and severed co-defendant Chandler Fitch planned to find a person addicted to crack cocaine, offer to sell the person drugs, and then take the tendered money and flee. Defendant and Fitch un dertoo k to exe cute th eir plan, and De fenda nt sho t the victim in the p roces s, cau sing h is dea th. A jury convicted Defendant of felony murder and sentenced him to life imprisonment with the possibility of parole. H is conviction and sentence were affirmed on appea l. State v. Walker, 893 S.W .2d 429 (Te nn. 1995).
In this ap peal o f the trial court’s denial of his post-conviction petition, Defendant alleges four instances of ineffective assistance by his trial counsel: (1) failure to deliver effective openin g and c losing sta temen ts; (2) failure to m ove to suppress oral statem ents by D efendant; (3) fa ilure to “con fer freque ntly” with Defen dant; and (4) failure to request a jury charge on voluntary manslaughter, or failure to object to the trial court’s decision not to ch arge voluntary m anslaughte r.
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W e find no merit in Defendant’s contentions, and we affirm the trial court’s denial of relief.
To be entitled to pos t-conv iction re lief on th e bas is of ineffective assistance of counsel, Defendant must show (1) that his trial counsel’s representation was “deficient,” and (2) that “the deficient performance prejudiced th e defen se.” Strickland v. Wash ington, 466 U.S. 668, 687 (1984). Under the first prong, coun sel’s performance is not deficient when “the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases .” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5). The second prong requires a petitioner to show a reasonable probability that the result of the trial would have been different but for the deficient representation. Strickland, 466 U.S. at 69 4. “A reasonable probability is a probability sufficient to underm ine confidence in the outcom e.” Id.
If afforde d a po st-con viction evidentiary hearin g by the trial c ourt, a petitioner must do more than merely present evidence tending to show incompetent represe ntation an d prejud ice; the petitioner must prove factual allegations by clear an d convin cing evide nce. Te nn. Co de Ann . § 40-30-210 (f). When an evidentiary he aring is he ld, findings o f fact mad e by that co urt are conclusive and binding on this Court unless the evidence preponderates against them. Coope r v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90)).
Furtherm ore, with re spect to decisions of tactic or strategy, the Supreme Court stated that “[a] fa ir assessment of attorney performance requires that every
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effort be mad e to eliminate the d istorting effect of hindsight, to re constr uct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from coun sel’s perspective at the time.” Strickland, 466 U.S. at 688. The courts of this state also h ave lon g “reco gnize d that it is not ou r functio n to ‘second-guess’ tactical matters and strategical choices perta ining to defense matters or m easure a defense attorney’s representation by ‘20-20 hindsight’ when deciding the effectiveness of trial counsel.” Cooper, 849 S.W.2d at 746 (quoting Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82)).
I. OPENING AND CLOSING STATEMENTS The record reflects that the following constitutes the entirety of the opening statement delivered by Defe ndan t’s trial co unse l: “I’ll be brief. You said that you will listen to this cas e in full an d we w ould just ask that you wa it till you’ve heard all the e videnc e in this case to make your decision.” Defendant complains that this cursory opening statement and trial counsel’s allegedly deficient closing statement deprived him of th e effective assistance of counsel because a competent attorney would have discussed that the evidence supported lesser included offenses , that the State maintained the burden of proof, and that the State must prove all elements of the offenses. In addition, Defendant asserts that trial couns el should have ad vised the ju ry about the Defendant’s theory of the case and specific evidence for which jurors should watch. Finally, Defendant complains that his trial cou nsel fa iled to “guide the jury” by distinguishing the eleme nts of lesser included offenses, and he states that these errors prejudiced Defen dant’s ab ility to receive a fa ir trial.
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Following an evidentiary hearing on the post-con viction p etition in this case, the trial court found, “based on the evidence, the facts known to [trial couns el], and the trial strategy, that [trial couns el’s] argum ent to the jury did not amount to ineffective a ssistanc e of coun sel.” To support his conclusion, the post- conviction judge cited trial counsel’s post-conviction hearing testimony, in which the attorney stated that “his plan was to keep the proof minimal, and try to show the jury that the killing was an accident and not an intentional killing, thereby hoping to reduce the charge to less than first degree murder.” In addition, the judge “recognize[d] tha t counsel’s argu ments are not as persuasive as the proof that’s presented at the trial.”
This Court finds no reason to disregard the po st-con viction tria l court’s conclusion on this issu e. W aiver of opening or closing argument altogether by trial counsel may be considered an acceptable tactic, whether or not ultim ately successful or even wise when vie wed in h indsight. See, e.g., Bacik v. Eng le, 706 F.2d 169, 171 (6th Cir. 1983) (waiver o f opening statem ent not ineffective assistance of couns el); Cone v. State, 747 S.W.2d 353, 357 (Tenn. Crim. App. 1987) (waiver of closing statement in penalty phase not ineffective assistance when used a s strategy to preven t State from makin g final closing statem ent); State v. Menn, 668 S.W .2d 671 , 673 (T enn. C rim. App . 1984) (s ame); State v. Casson Marcel McCoy, No. 01C01-9603-CC-00109, 1997 WL 137422, at *3 (Tenn. Crim. App., Nashville, Mar. 27, 1997) (waiver of opening statement not ineffective assistance of couns el); State v. Myer Pettyjohn, No. 01C01-9006-CC- 00139, 1992 WL 50973, at *4 (Tenn. Crim. App., Nashville, Mar. 19, 1992) (adoption of co-defendant’s closing statement not ineffective assistance when
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used as strategy to save clos ing for sen tencing p hase a nd ma intain cred ibility with jury), perm. to appeal denied (Tenn . 1992).
Similarly, this Cou rt has ap proved th e waiver o f a closing statement even when trial counsel presented no tactical or strategic explanation, where the record revealed such strong evidence against the defendant that no prejudice existed. See Jessie S . Tidwell v. S tate, No. 01C01-9307-CR-00201, 1994 WL 548708, at *10-*11 (Tenn. Crim. App., Nashville, Oct. 6, 1994), aff’d in part, re v’d in part, Tidwe ll v. State, 922 S.W.2d 497 (Tenn. 1996). The Tennessee Supreme Court, though reversing in part on other grounds, found that the failure to give a closing statement did not constitute ineffective assistance of counsel in that case. 922 S.W .2d at 498 n.1.
Based upon trial counsel’s testimony at Defendant’s post-conviction hearing—that he focused on persuading the jury that Defendant killed the victim by accident—and the finding made by the post-conviction judge that Defendant did not receive ineffective assistance of counsel, we conclude that trial cou nsel’s scant opening statement and allegedly inadequate closing statement did not amount to deficient perform ance as co nceived by Strickland v. Washington and Baxter v. Rose. Further, even if trial counsel’s statements had fallen below the appropriate sta ndard of care, we conclude that Defendant would have suffered no prejudice due to the strength of the eviden ce ag ainst h im, inc luding his own dam ning te stimo ny at tria l.
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II. MOTION TO SUPPRESS CONFESSIONS Defendant also claims that his trial counsel was ineffective to his prejudice by failing to move the trial court for suppression of his statements to police. At the post-conviction hearing, D efend ant pre sente d an a ttorney exper ience d in criminal trial matters, who testified that failing to file a motion to suppress did not “live up to a rea sonab le standa rd of repre sentation .” In supp ort of this allegation, Defendant argue s that “th ere wa s an in dicatio n in the original trial that an offer of leniency may have been used by the police. Also, the Petitioner was only 18 or 19 years old a t the time of the con fession.”
In his first statement to police, Defendant described a scene in which the victim asked him if he w anted to buy drug s. Accor ding to this statement, when Defendant replied “no,” the victim reache d into Defend ant’s pocket for m oney, and Defendant noticed a gun in the vic tim’s other hand. As Defendant grabbed the victim’s hand which held the gun, it fired, striking the victim. Later, Defendant gave another version of events, which was virtu ally identical to his testimony at trial. He stated that he, rather than the victim, possessed the gun; and he recoun ted the pr econc eived plan to find a cra ck coca ine add ict to rob.
At the evidentiary hearing on this matter, Defendant’s trial counsel testified exten sively and emphatically that (1) he believed no potentially meritorious grounds for filing a motion to suppress existed, and (2) he believed that filing a motion lacking meritorious potential would be a violation of his ethical obligations as an attorney and officer of the courts. We agree. Furthermore, the record reflects that trial counsel utilized the statements at trial in an attempt to show Defe ndan t’s remorse and intention to do the rig ht thing. Counsel hoped to show
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that after having given a false statement, Defendant felt com pelled to deliver a truthful account of events—the second statement, during which Defendant emotionally expressed a great deal of remorse.
W e conclude that Defendant has failed to bear his burden to show deficient representation by making only a generalized reference that “an offer of leniency may have been used by the police” and that “the Petitioner was only 18 or 19 years old at the time of the confession.” In addition, Defe ndan t has c once ded h is inability to show prejudice by stating, “By itself, the fa ilure to file a Mo tion to Suppress, may not have changed the outcome of the case, but its cumulative effect would be; and thereby prejudicing the Petitioner for a fair trial.” 1 This issue lacks m erit.
III. ATTORNEY-CLIENT COMMUNICATION Defendant contends th at he received ineffective assistance of counsel beca use h is trial co unse l confe rred w ith him on only two occasions prior to trial and because they had only one discussion regarding whether he wo uld tes tify in his defen se.
At the post-conviction hearing, Defendant’s trial counsel testified that he communicated adeq uately w ith Def enda nt and that he strong ly advised Defendant to exercise his privilege not to testify at trial. Defendant disregarded this advice and testified, painting a vivid scene of a “classic” felony murder. Not only do we find no deficie nt perform ance, w e find no p rejudice: A s the Sta te
1 We later consider the argument for a new trial based upon the cumulative effect of several instances of ineffective representation.
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indicates , “[Defend ant] has shown no prejudice, because he can offer no basis on how his defen se could ha ve been improved and his verdict affected by m ore comm unication betwe en he and [trial counsel].”
IV. VOLUNTARY MANSLAUGHTER INSTRUCTION For his final issue, Defen dant argue s that he suffere d ineffective assistance of counsel because his attorney (1) failed to request a jury instruction on voluntary manslaughter, or (2) failed to o bject whe n the trial cou rt declined to include a voluntary m anslau ghter instru ction in the jury charg e.
This C ourt rece ntly anno unced ,
before instructing a jury on a less er offense, the trial court must determine wheth er the e videnc e, whe n viewe d in the light most favora ble to the defendant’s theory of the case, would jus tify a jury verdict in accord with the de fendan t’s theory, an d would permit a rational trier of fact to find the defendant guilty of the lesser offense and no t guilty of the gre ater offen se.
State v. Thomas Jerome Elder, No. 03C01-9702-CR-00053, 1998 WL 191445, at *4 (Te nn. Crim . App., Kn oxville, Apr. 23 , 1998). F urtherm ore,
absent such a standard regarding the quantum of proof neces sary to trigger an instruction on a lesser offense, the trial judge who charges a lesser offense based upon less than sufficient evidence would be faced with the absurd neces sity, predica ted upo n its own invited error, of entering a judgment of acquittal following the jury’s guilty verdict on the lesser offense.
Id. at *5. Therefore , the inquiry a trial court must make to determine when it must charge a lesser included or lesser grade offense is mu ch the sam e as the inquiry this Court makes to determine whether the evidenc e is sufficien t to suppo rt a conviction that has b een ap pealed .
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A conviction for voluntary manslaughter requires the “intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13 -211. In Elder, this Court found that no evidence existed from which the jury could possibly have returned a verdict of attempted voluntary man slaug hter wh en (1) th e defe ndan t threate ned to kill the vict im and attacked him from behind, and (2) the only evidence of provocation presented by th e defendant was th at he a nd the victim e ngag ed in a n argu men t four an d one -half hours p rior to the killing. Jerome Thomas Elder, 1998 W L 1914 45, at *6.
Likewise, in this case, the evidence presented at trial was not sufficient to perm it a rational jury to return a verdict for the lesser offense and not the greater offense. To support the need for an instruction for voluntary m anslaughte r, Defendant can p oint to o nly two id entica l references to the record in which he stated that the victim “came towards” him prior to the shooting. Accord ing to Defendant hims elf, he h it the victim with the intention to knock him unconscious and take his mo ney. O nly then did the victim come toward Defendant, who was armed and accompanied by his co-defendant. The co-defendant attempted to “grab” the victim, and Defendant began to pull his gun from his coat pocket. As he did so, the gun fired, striking the victim . Even in th e light mo st favorab le to Defen dant, the evide nce wa s not sufficient to warrant a jury instruction on voluntary m anslau ghter.
Furthermore, we also conclude that even if Defendant’s trial counsel had been deficient in his representation on this matter, Defendant suffered no prejudice. The jury in this case returned a verdict convicting the Defendant of
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murder in the first degree as the result of a reckless killing in the perpetration of a robbery, not premeditated first degree murder. We are unconvinced that the Defendant could have b een in any way prejudiced by the failure of the trial judge to charge the jury c oncerning the elements o f voluntary man slaughter.
W e therefore conclude that the Defendat has established neither that coun sel’s representation was deficient nor that Defendant suffered prejudice concerning the trial judge’s failure to charg e voluntary ma nslaughter.
V. CUMULATIVE ERROR
Defendant argues that althou gh individu al instanc es of ineffe ctive assistance of trial counsel may not have prejudiced him in violatio n of his constitutional rights to due process and a fair trial, the cumulative effect of several instances of ineffe ctive as sistan ce cre ated p rejudice of constitutional proportions. W e have determined that Defendant suffered no ineffective assistance of couns el; therefore , there can be no cu mulative effect.
We affirm the tria l court’s de nial of pos t-conviction relief.
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DAVID H. WELLES, JUDGE
CONCUR:
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___________________________________
GARY R. WADE, PRESIDING JUDGE
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THOMAS T. WOODALL, JUDGE