Betsy Pendergrast v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 15, 1998
• Docket: 01C01-9707-CC-00307
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 FILED September 15, 1998

Cecil W. Crowson BETSY JANE PENDERGRAST, ) Appellate Court Clerk ) No. 01C01-9707-CC-00307 Appellant ) ) RUTHERFORD COUNTY vs. ) ) Hon. James K. Clayton, Jr., Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )

For the Appellant: For the Appellee:

Jim Wiseman and John Knox Walkup Sally Schneider Attorney General and Reporter 131 North Church Street Murfreesboro, TN 37130 Elizabeth B. Marney Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

William C. Whitesell, Jr. District Attorney General 3rd Floor, Judicial Building Murfreesboro, TN 37130

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Betsy Jane Pendergrast, appeals the dismissal of her petition

for post-conviction relief by the Rutherford County Circuit Court. Specifically, the

appellant contends that her trial counsel was ineffective for failing to provide the

State notice of expert testimony and for failing to make a complete offer of proof on

the excluded witnesses.

After a review of the record, we affirm the judgment of the trial court denying

the appellant post-conviction relief.

The appellant’s conviction resulted from events which occurred on November

11, 1989. Specifically, on that afternoon, the appellant, her husband, and several

acquaintances gathered to socialize and consume alcohol. Throughout the day, the

appellant and her husband, the victim, engaged in numerous physical and verbal

altercations. An acquaintance finally separated the two by pushing the victim in a

chair. Shortly thereafter, the victim displayed a knife. The appellant responded to

this action by obtaining a knife and a mop from the kitchen. While the victim was

still seated in the chair, the appellant approached him from behind and stabbed him

in his chest, resulting in the victim’s death. See State v. Pendergrast, No. 01C01-

9110-CC-00310 (Tenn. Crim. App. at Nashville, Oct. 8, 1992), perm. to appeal

denied, (Tenn. Jan. 25, 1993). This evidence was sufficient for a jury to convict the

appellant of second degree murder. The jury’s verdict was affirmed on direct appeal

by this court. See Pendergrast, No. 01C01-9110-CC-00310. The appellant is

currently incarcerated in the Tennessee Department of Correction where she is

serving a twenty-five year sentence for this conviction.

On February 1, 1996, the appellant filed the instant petition for post-

conviction relief. The trial court summarily granted the State’s motion to dismiss the

2 petition upon grounds that the petition was time-barred under the statute of

limitations. On appeal, a panel of this court determined that the statute of limitations

had not yet run on the appellant’s right to file a petition for post-conviction relief.

See Pendergrast v. State, No. 01C01-9607-CC-00289 (Tenn. Crim. App. at

Nashville, May 16, 1997). Accordingly, this cause was remanded to the trial court

for a hearing on the merits of the petition. Id.

An evidentiary hearing on the merits of the petition was held on July 15,

1997. At the hearing, the appellant’s appointed counsel argued that the appellant

was denied effective representation by trial counsel because trial counsel failed to

provide the State advance notice, pursuant to Rule 12.2, Tenn. R. Crim. P. , of his

intent to submit expert witnesses regarding the “battered woman syndrome” and

because, when such evidence was excluded by the trial court, defense counsel

made no offer of proof for the record.1 No proof on this issue was presented at the

post-conviction hearing. Rather, the appellant relied solely upon the argument of

post-conviction counsel. The appellant, in essence, asks this court to find trial

counsel deficient for failing to present before the jury the testimony of three

witnesses who would have testified concerning the “battered woman syndrome.”

“When a petitioner contends that trial counsel failed to . . . 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.), perm.

to appeal denied, (Tenn. 1990). “As a general rule, this is the only way the

petitioner can establish that (a) a material witness existed . . . and (d) the failure to

have a known witness present or call the witness to the stand resulted in the denial

of critical evidence which inured to the prejudice of the petitioner.” Id. The trial

court determined that the appellant’s complaints warranted no relief and dismissed

the petition. Specifically, the trial court found that any testimony regarding the

1 Post-conviction counsel also alleged that the appellant’s right to confrontation was violated and that trial counsel was ineffective for failing to raise the theory of self-defense. Issues involv ing th ese allega tions are n ot pre sen ted in this a ppe al.

3 “battered woman syndrome” “would have been hearsay as this Defendant was

never examined by this expert witness.”

The appellant’s petition for post-conviction relief is not included in the record

before this court; neither is a transcript of the trial proceedings, relied upon by the

appellant before the trial court and on appeal. Notwithstanding the instruction in the

appellant’s brief as to where this court may find the pertinent parts of the record, we

remind the appellant that it is her duty, and not the duty of this court, to prepare an

adequate record on appeal. Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d

557, 560 (Tenn. 1993); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993),

perm. to appeal denied, (Tenn. 1994) (citations omitted). The failure to so prepare

the record precludes this court from completing a meaningful review, and, thus,

determining the issues presented. Ballard, 855 S.W.2d at 561; Banes, 874 S.W.2d

at 82 (citations omitted).

Again, no proof was presented at the evidentiary hearing. Rather, the

appellant relied solely upon the argument of counsel to support her allegations. It is

well established that the argument of counsel is not evidence. See State v.

Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Likewise, neither are the

recitation of facts or argument of counsel contained in the briefs. Id. (citations

omitted). When no evidence is preserved in the record for review, we are hindered

in our review of the issue. Roberts, 755 S.W.2d at 836. Consequently, the absence

of any evidence in the record, leads us to conclusively presume that the findings of

fact and conclusions of law made by the trial court are correct. See Roberts, 755

S.W.2d at 836.

In order to prove that counsel was ineffective, the appellant must show that

counsel’s representation fell below the range of competence demanded of attorneys

in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and, that, but

4 for these errors, the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v. Melson,

772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S.Ct. 211 (1989).

In light of (1) the strong presumption of satisfactory representation, Barr v. State,

910 S.W.2d 462, 464 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), and

(2) the appellant’s failure to present any evidence, she cannot prove her allegations

contained in her “petition” by clear and convincing evidence. See Tenn. Code Ann.

§ 40-30-210(f) (1995 Supp.).

Accordingly, the judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

______________________________________ PAUL G. SUMMERS, Judge

______________________________________ JERRY L. SMITH, Judge