IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY 1997 SESSION February 24, 1998
Cecil W. Crowson Appellate Court Clerk CHAD SWATZELL, ) ) NO. 01C01-9604-CC-00154 Appellant, ) ) WILLIAMSON COUNTY VS. ) ) HON. HENRY DENMARK BELL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
C. DIANE CROSIER SUSAN ROSEN Assistant District Public Defender Assistant Attorney General 407C Main Street Cordell Hull Building, 2nd Floor P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR. District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The petitioner, Chad Swatzell, appeals the dismissal of his petition for
post-conviction relief filed in the Circuit Court of Williamson County. The
petitioner filed a petition for post-conviction relief based upon ineffective
assistance of counsel. The trial court dismissed the petition after a hearing. The
judgment of the trial court is affirmed.
I.
The petitioner was convicted by a jury of first degree murder, aggravated
assault with the intent to commit armed robbery, and second degree burglary
while in possession of a firearm. He was sentenced to an effective life term as a
Range I Standard Offender. The petitioner sought post-conviction relief alleging
ineffective assistance of counsel. Specifically, he alleges trial counsel failed to:
(1) move to suppress petitioner’s confession, (2) relay any plea offers from the
prosecution, and (3) properly investigate charges against the petitioner. An
evidentiary hearing was held, after which the court dismissed the petition, finding
petitioner’s trial counsel exceeded minimum constitutional levels of performance.
II.
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354
(Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the
weight of a jury verdict, and this Court is bound by the trial court’s findings unless
the evidence in the record preponderates against those findings. Dixon v. State,
934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or
reevaluate the evidence, nor substitute its inferences for those drawn by the trial
2 judge. Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the
credibility of witnesses and the weight and value to be given to their testimony
are resolved by the trial court, not this court. Black v. State, 794 S.W.2d at 755.
The burden of establishing that the evidence preponderates otherwise is on
petitioner. Id.
III.
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
The test in Tennessee for determining whether counsel provided effective
assistance is whether the performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.
The petitioner must overcome the presumption that counsel’s conduct falls within
the wide range of acceptable professional assistance. Strickland v. Washington,
466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389
(Tenn. Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner
must show that counsel’s acts or omissions were so serious as to fall below an
objective standard of reasonableness under prevailing professional norms.
Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Goad v. State, 938
S.W.2d at 369.
3 In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at
689, 104 S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.
However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. Goad v. State,
938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
IV.
Petitioner’s parents initially retained Kentucky attorney, Marc A. Wells, to
represent their son. Because of her experience in criminal law, Mr. Wells
subsequently associated Tennessee attorney, Virginia Story. Mr. Wells
remained as co-counsel, assisting Ms. Story in the preparation of petitioner’s
defense.
A. Motion To Suppress
At the evidentiary hearing, Ms. Story testified that she did not file a motion
to suppress the petitioner’s statement to police because she did not believe it to
be legally sustainable. The record shows the petitioner was read his Miranda
rights in the presence of his parents before being questioned. See Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966). The petitioner and
his parents were informed several times during the questioning that they could
request counsel at any time and questioning would cease until counsel arrived.
The record also shows the petitioner and his parents were asked if they
understood these rights, to which they responded affirmatively. After the
petitioner gave his statement, he and his parents reviewed and signed it. Ms.
4 Story stated that after making an investigation of these facts, she believed the
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY 1997 SESSION February 24, 1998
Cecil W. Crowson Appellate Court Clerk CHAD SWATZELL, ) ) NO. 01C01-9604-CC-00154 Appellant, ) ) WILLIAMSON COUNTY VS. ) ) HON. HENRY DENMARK BELL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
C. DIANE CROSIER SUSAN ROSEN Assistant District Public Defender Assistant Attorney General 407C Main Street Cordell Hull Building, 2nd Floor P.O. Box 68 425 Fifth Avenue North Franklin, TN 37065-0068 Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR. District Attorney General Williamson County Courthouse Suite G-6 P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The petitioner, Chad Swatzell, appeals the dismissal of his petition for
post-conviction relief filed in the Circuit Court of Williamson County. The
petitioner filed a petition for post-conviction relief based upon ineffective
assistance of counsel. The trial court dismissed the petition after a hearing. The
judgment of the trial court is affirmed.
I.
The petitioner was convicted by a jury of first degree murder, aggravated
assault with the intent to commit armed robbery, and second degree burglary
while in possession of a firearm. He was sentenced to an effective life term as a
Range I Standard Offender. The petitioner sought post-conviction relief alleging
ineffective assistance of counsel. Specifically, he alleges trial counsel failed to:
(1) move to suppress petitioner’s confession, (2) relay any plea offers from the
prosecution, and (3) properly investigate charges against the petitioner. An
evidentiary hearing was held, after which the court dismissed the petition, finding
petitioner’s trial counsel exceeded minimum constitutional levels of performance.
II.
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354
(Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the
weight of a jury verdict, and this Court is bound by the trial court’s findings unless
the evidence in the record preponderates against those findings. Dixon v. State,
934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or
reevaluate the evidence, nor substitute its inferences for those drawn by the trial
2 judge. Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the
credibility of witnesses and the weight and value to be given to their testimony
are resolved by the trial court, not this court. Black v. State, 794 S.W.2d at 755.
The burden of establishing that the evidence preponderates otherwise is on
petitioner. Id.
III.
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
The test in Tennessee for determining whether counsel provided effective
assistance is whether the performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.
The petitioner must overcome the presumption that counsel’s conduct falls within
the wide range of acceptable professional assistance. Strickland v. Washington,
466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389
(Tenn. Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner
must show that counsel’s acts or omissions were so serious as to fall below an
objective standard of reasonableness under prevailing professional norms.
Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2065; Goad v. State, 938
S.W.2d at 369.
3 In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at
689, 104 S. Ct. at 2065. The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.
However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. Goad v. State,
938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
IV.
Petitioner’s parents initially retained Kentucky attorney, Marc A. Wells, to
represent their son. Because of her experience in criminal law, Mr. Wells
subsequently associated Tennessee attorney, Virginia Story. Mr. Wells
remained as co-counsel, assisting Ms. Story in the preparation of petitioner’s
defense.
A. Motion To Suppress
At the evidentiary hearing, Ms. Story testified that she did not file a motion
to suppress the petitioner’s statement to police because she did not believe it to
be legally sustainable. The record shows the petitioner was read his Miranda
rights in the presence of his parents before being questioned. See Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966). The petitioner and
his parents were informed several times during the questioning that they could
request counsel at any time and questioning would cease until counsel arrived.
The record also shows the petitioner and his parents were asked if they
understood these rights, to which they responded affirmatively. After the
petitioner gave his statement, he and his parents reviewed and signed it. Ms.
4 Story stated that after making an investigation of these facts, she believed the
petitioner’s only viable defense to be an insanity plea.
B. Plea Offers
Ms. Story further testified that she did not recall any plea agreements
being offered by the District Attorney General’s office. There was no testimony
offered by the petitioner to show that such an offer was ever made. The only
mention of a plea agreement by anyone involved came from the petitioner’s
mother. She stated Ms. Story briefly talked to them about plea negotiations, but
suggested that an insanity plea was a better defense. The trial court found there
was no evidence that any settlement offers were ever made by the state.
C. Pre-trial Investigation
The petitioner claims that counsel was ineffective in failing to properly
investigate his case. Although counsel may not have thoroughly investigated the
crime scene, she concluded that it was not necessary given the circumstances of
this particular case (i.e., petitioner’s voluntary confession). Furthermore, there
has been no showing as to what a further investigation would have revealed;
thus, there has been no showing of prejudice. Counsel further testified that she
interviewed all possible witnesses in this case including all police officers, the
autopsy specialist, the psychiatrist, the psychologist, and several character
witnesses.
D. Trial Court Findings
In its order denying the post-conviction petition, the trial court found the
petitioner’s counsel substantially exceeded the constitutional standard of
effective assistance. “[T]he Court is satisfied that defense counsel were
thoroughly prepared both with respect to anticipating the state’s evidence,
understanding the law applicable and the presentation of the evidence for the
defendant.” The evidence does not preponderate against these findings.
5 V.
Petitioner’s counsel was presented with a difficult factual scenario. The
defense, although ultimately unsuccessful, was found by the trial court to be a
tactical decision based upon an informed opinion. We find the evidence does
not preponderate against the findings of the trial court. Accordingly, the
__________________________ JERRY L. SMITH, JUDGE
CONCUR:
_________________________ JOHN H. PEAY, JUDGE
_________________________ JOE G. RILEY, JUDGE