Debbie Lee Givens v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 15, 1997
• Docket: 01C01-9608-CR-00372
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JULY 1997 SESSION August 15, 1997

Cecil W. Crowson Appellate Court Clerk DEBBIE LEE GIVENS, ) ) C.C.A. NO. 01C01-9608-CR-00372 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

SAM E. WALLACE, SR. JOHN KNOX WALKUP -and- Attorney General & Reporter SAM E. WALLACE, JR. 227 Second Ave. North CLINTON J. MORGAN Nashville, TN 37201 Counsel for the State 450 James Robertson Pkwy. Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

NICHOLAS D. BAILEY Asst. District Attorney General 222 Second Ave. North Washington Square, Suite 500 Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION A jury convicted the petitioner of aggravated assault on December 9, 1992.

After a hearing, she was sentenced as a Range II multiple offender to ten years. On

December 4, 1995, the petitioner filed for post-conviction relief. An evidentiary hearing

was held, and the post-conviction court dismissed her petition. It is from this dismissal

that she now appeals.

In this post-conviction proceeding, the petitioner alleges that her trial

counsel were ineffective in their representation. Specifically, she claims that counsel

failed to adequately cross-examine the victim and the victim’s doctor and that appellate

counsel failed to file an application for permission to appeal to the Supreme Court. After

a review of the record, we find no merit to these allegations. Thus, we affirm the

judgment of the court below.

The petitioner’s conviction stems from an incident in which she attacked an

eighty-four-year-old man in his home. At trial, an issue for the jury to decide was whether

the victim had suffered “serious bodily injury,” a material element of the offense with

which she was charged. The victim and the victim’s doctor testified about the extent of

the victim’s injuries. The doctor testified that the victim had received a “broken nose” in

the altercation and that such an injury is “very painful.” The doctor never used the term

“extreme physical pain,” one of the statutory definitions for serious bodily injury. See

T.C.A. § 39-11-106(a)(33). The petitioner now claims that her defense counsel, Rob

Robinson and Robert P. Ballinger, were ineffective for not pressing the doctor to explain

exactly what he meant by “very painful.”

At the post-conviction hearing, the petitioner testified that she thought her

attorneys should have asked the doctor more questions about the victim’s injuries.

2 Specifically, she testified that they should have asked the doctor what he meant by “very

painful.” She further testified that she simply felt her attorneys could have done a better

job representing her.

Mr. Robinson and Mr. Ballinger also testified at the hearing. Mr. Robinson,

an assistant public defender, testified that he had thought the doctor’s testimony had

been beneficial to the petitioner’s case because the doctor did not use the statutory term

“extreme physical pain.” Thus, he thought it unwise to continue to ask questions which

might produce a less favorable answer.

Mr. Ballinger, also an assistant public defender, testified that he too thought

the doctor’s testimony had been favorable to the petitioner. He testified that he had felt

that the State failed to carry its burden of proving to the jury that the victim had suffered

“serious bodily injury.” He further testified that the victim had not been concise in

describing his pain and that the victim’s testimony had been sufficiently attacked through

cross-examination. Mr. Ballinger testified that he had asked the court for a judgment of

acquittal because the State had failed to carry its burden of proof. When the court denied

this request, Mr. Ballinger then made the same argument to the jury. After the petitioner’s

conviction, this issue was raised on appeal.

“In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his [or her] petition by a preponderance of the evidence.”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual

findings of the trial court in hearings “are conclusive on appeal unless the evidence

preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn.

Crim. App. 1983).

In reviewing the petitioner’s Sixth Amendment claim of ineffective

3 assistance of counsel, this Court must determine whether the advice given or 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. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

This Court should not second-guess trial counsel’s tactical and strategic

choices unless those choices were uninformed because of inadequate preparation,

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to

have been ineffective merely because a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.

1980).

In this case, the post-conviction court found that Mr. Robinson and Mr.

Ballinger were highly competent and experienced attorneys and that the petitioner failed

to carry her burden of proving her allegations by a preponderance of the evidence. We

agree.

First, the petitioner has failed to show that her counsel’s decisions not to

further question the doctor or the victim were in any way ineffective. As noted above, this

Court will not second guess the tactical decisions of attorneys. Second, the petitioner

has failed to prove that she was in any way prejudiced by her attorneys’ representations.

She has failed to provide any information that had her attorneys further questioned the

doctor or the victim, the answers would have been more favorable to her. Thus, we

4 affirm the conclusion of the trial court. The petitioner’s claim is devoid of merit.

The petitioner’s second complaint is that her appellate counsel, Jeffery

DeVasher, failed to file an application for permission to appeal to the Supreme Court.

The appellant has waived this issue because she has failed to cite authority to support

her argument. Rules of the Court of Criminal Appeals of Tennessee 10(b); State v.

Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). In fact, her whole argument

on this point consists of two sentences. However, we briefly note that Mr. DeVasher

testified at the post-conviction hearing that after the completion of the petitioner’s appeal

to this Court, he had filed a motion to withdraw from further representation. The motion

was granted, and Mr. DeVasher informed the petitioner of such. He also informed her

of her right to file an application for permission to appeal and the time deadlines for doing

so. Thus, this issue is also devoid of merit.

For the foregoing reasons, we affirm the judgment of the court below.

_________________________________ JOHN H. PEAY, Judge

CONCUR:

WILLIAM M. BARKER, Judge

_______________________________ JERRY L. SMITH, Judge