IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED January 31, 2000
DECEMBE R SESSION, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
GREGORY JAMES HARPER, ) C.C.A. NO. E1999-00798-CCA-R3-PC )
Appellan t, )
) SULLIVAN COUNTY VS. )
)
STATE OF TENNESSEE, ) HON. R. JERRY BECK, ) JUDGE
Appellee. )
) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID W. TIPTON PAUL G. SUMMERS P.O. Box 787 Attorney General and Reporter Bristol, TN 37620 R. STEPHEN JOBE
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
GREELEY W ELLS
District Attorney General
JOSE PH E UGE NE P ERR IN Assistant District Attorney General Sullivan County Justice Center Blountville, TN 37617
OPINION FILED ________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right from the judgment of the trial court denying
post-conviction relief. On September 15, 1997, the Defendant, Gregory James Harper, pleaded guilty to two counts of attempted first degree murder and three counts of selling less than .5 grams of cocaine. In accordance with his plea agreem ent, the trial cour t sentenc ed him as a Ra nge I stan dard offe nder to sixteen years incarce ration for each co unt of attempte d murde r and to six years incarceration for each count of th e sale of c ocaine . The trial court also fin ed him $2,000 for each count of the sale of cocaine. The trial court ordered that the sentences be serve d conc urrently. Th e Defe ndant th erefore received an effective sentence of sixteen years and fines totaling $6,000.
On August 3, 1998, the Defendant filed a pro se petition for post-conviction relief. The trial co urt subse quently a ppointe d coun sel to aid h im in pos t- conviction proceedings, and the Defe ndant filed an am ended petition for p ost- conviction relief, alle ging (1 ) that his trial cou nsel w as ine ffective for adv ising h im that he would be eligible for release after serving 30% of his sentence; (2) that his plea was unlawfully induced based on inaccura te advice that the thre e coun ts of selling cocaine were Class B felonies; and (3) that the State of Tennessee unlaw fully withheld exculpatory evidence from him, namely the statements of victims Mike Danser and Larry Miller and a TBI report concerning the results of firearm and ballistics tests. At the post-conviction hearing conducted on May 13, 1999, the Defendant voluntarily waived the first and s econ d issue s pres ented in his petition, preserving o nly the third issue for our consideration. In addition, he stated that he wishe d to pre serve his inef fective assista nce o f coun sel claim only as to his third claim of error. Simply stated, he contended that the Sta te with held exculpatory evidenc e from h im, and in the altern ative, he a rgued th at if the State did in fact d isclose the ev idenc e at issu e to his trial counsel, his trial counsel was ineffective for failing to share or discuss it with him.
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The post-conviction court did not delve de eply into the underlying facts of this case. However, at the guilty plea proceeding, the State, with the consent of the defen se, stip ulated the fac ts on th e reco rd. The following facts are summarized from the stipulation:1 The Defendant and his co-defendant, Mike Walling, were members of a group called the Outcasts. The Outcasts and another group, which included the victims, had engaged in an ongoing dispute durin g Nove mbe r 1996 . On N ovem ber 21 , 1996 , mem bers o f the gro up wh ich included the victim s planne d to go to the a partme nt of T.J. P helps, a member of the Outcasts, to discuss the ongoin g proble ms be tween the grou ps. Phelps lived in an apartment building immediately adjacent to a shopping center, and mem bers of the victims’ group met in the shopping plaza parking lot before procee ding to P helps’ ap artmen t.
While the victims’ group was gathering in the parking lot, Walling and other individua ls arrived in W alling’s car, p arked in fro nt of Phe lps’ apartm ent, and emerged from th e car w hile the victims’ group began to approach Phelps’
apartm ent. Words w ere exchanged, shots were fired, and the victims w ere wounded by bullets during the gunfire. A number of gun shots came from the vicinity of Walling’s vehicle.
Witnesses identified the Defendant as one of the shooters. Police recovered num erous shell casings at the scene, which were sent to the Tennessee Burea u of Inves tigation for a nalysis. T hey also recove red a .22 caliber semi-automatic handgun from the apartment of Tracy Phelps, the sister of T.J. Phelps. Tracy Phelps told police that she had seen her brother hide the gun in he r apartm ent.
At the post-conviction hearing, the Defendant testified that his trial counsel
1 The facts in the record pertaining to the sale of drugs are not pertinent to our disposition of the case.
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never discuss ed with h im the T BI lab rep ort conce rning the results of tes ts performed on a gun used in the shooting and on shell casings found at the scene. He stated he was not awar e at the time o f his plea that such a report existed. He further claimed that he initially learned of the report from his co-defendant, who was inc arcerate d with him and w ho pos sessed a copy o f the repo rt.
The Defendant explained how he believed the TBI report would have been helpful to his case: He testified that the report contained an analysis of a number of shell casings which were found at the scene, some of which were linked to the gun recovered from Tracy Phelps’ apartment and later tested by the TBI. The Defendant testified that the gun tested by the TBI belonged to T.J. Phelps. He claimed that Phelps had denied firing a gun on the night in question. According to the Defend ant, Phelps w as to offer testimony against him at trial. The Defendant maintained that because the ballistics report showed that Phelps’ gun had been fired and that shell casings found a t the scene were matched to the gun, the report would have served to discredit Phelps’ statement that he did not fire his gun on the night of the shooting.
The Defen dant also comp lained tha t he was not furnish ed with s tateme nts of the victims, Larry Ray Miller, Jr. and John Michael Danser, prior to his plea hearing. He explained that in their statements to police, both victims had reported that they chose to go to the location where the shooting occurred, knowing that the Outcasts would be there. The D efend ant ins isted th at this showed “spontaneity” and would have indica ted the lack of p reme ditation on his part. In add ition, the Defe ndan t repor ted tha t in their statem ents to po lice, both victims denied being able to identify who shot them. Finally, he stated that he believed the State intended to show at trial that he fired his gun directly at the victims or that he shot in their direction, knowing that they would likely be hit by the bullets. He pointed out that in Danser’s statement to police, Danser reported, “I treated m y woun d by pu tting alcoh ol and pr oxide [sic] o n it [and] I
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never went to a hospital or doctor.” The Defendant contended that this showed the injuries to the vict ims w ere m inima l, and therefore, one could assume that the injuries were caused by ricochet rather than by direct fire.
On cross-examination, the Defendant admitted that he was present at the preliminary hearing, where Danser testified that he could not identify who shot him and M iller. With regard to Miller, the Defendant admitted that no one knew what Miller’s testimony at trial might be. He also stated that he did not deny having or shooting a gun on the night in question. He stated that he fired his gun a number of times and a dmitte d he w as aw are tha t individ uals at the scene saw him fire the weapon. He also admitted he was aware that T. J. Phelps was known to fire his gun at his home and agreed that one m ight expe ct to find sh ell casings at the scene from previous occasions when Phelps fired shots.
Terry Frye, the Defen dant’s trial co unsel, als o testified at th e post-
conviction hearing. Contrary to the Defendant’s testimony, he testified that he shared with the Defe ndan t all of the discovery materials which he received from the State and stated he did not believe that any exculpatory evidence had been withheld from the defense. He maintained that prior to the plea hearing, h e discuss ed with th e Defe ndant th e anticipa ted testim ony of all trial w itnesses .
Frye testified that although he did not receive copies of the written statem ents of Miller and Danser during the discove ry proce ss, the S tate advised him that he would receive actual copies of the statements at trial after Miller and Danser testified. However, he stated that he received other materials during discovery which he discussed with the Defendant, including a copy of the preliminary hearing at which Danser testified. He stated that he discuss ed with the Defendant the fac t that D anse r could not identify the shooters, which he had ascertained from D anse r’s testimony at the preliminary hearing, and the fact that Danser and other members of his group had gone to the scene of the shooting.
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In additio n, Frye testified that he believed he had seen a copy of Miller’s statement to police and that he was aware of Miller’s probable testimony. He stated he believed that he had once had a copy of the sta teme nt in his case file, but he did not possess it at the time of the hearing. He explained that he learned about Miller’s testimony from co-defendant Walling’s trial counsel, who had discussed with Miller his possible trial testimon y. Frye stated tha t he was un sure whether Walling’s counsel had received an actual co py of M iller’s statem ent to police. However, Frye testified that he discussed with the Defendant that Miller could not identify the shooters and that there w ere two witness es to the shooting who would testify that they saw the Defendant firing a gun in th e direction of Danser and Miller. He further testified that he discovered in his investigation of the case that the Outcasts had been stockpiling weapons in T.J. Phelps’ apartment and that there had been an ongoing conflict between the Outcasts and the grou p of whic h Miller an d Dan ser we re mem bers.
With regard to the TBI ballistics report, Frye testified that he received a copy of the report from the State prior to the plea hearing. He stated that he shared the report with his client. He also testified that he believed the Defendant’s handwriting was on the copy of the report which he kept in his file. He stated, “I know that Mr. Harper made notes on various documents. I cannot spec ifically say this is his writing, but I cannot imagine it would be anyon e else’s.”
A petitioner in an post-conviction proceeding bears the burden of proving allegations of fact by clear and co nvincing evidenc e. Tenn. Code Ann. § 40-30- 210(f). Furthermore, “findings of fact [made b y] the trial judge are conclusive on appeal unless the ev idence prep onderates a gainst the judgm ent.” Cooper v. State, 849 S.W.2d 744, 746 (Tenn . 1993); Butler v. S tate, 789 S.W.2d 898, 899 (Tenn. 1990 ). Que stions concerning the credibility of the witnesses and the weight and value to be afforded their testimony are factual issues to be resolved
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by the trial cour t. Bates v . State, 973 S.W .2d 615, 631 (Tenn. Crim . App. 1997 ).
In Brady v. Maryland, the U nited S tates S uprem e Cou rt estab lished the prose cution ’s duty to furnish the ac cuse d with e xculp atory e viden ce tha t is material either to the accused’s guilt or innocence or to the potential punishment which may be imposed. 373 U.S. 83 (1963). In order to establish a due process violation under Brady v. Maryland, a defen dant m ust dem onstrate the following:
1. The Defendant must have requested the information (unless the evidence is obviously exculpatory, in which case the State is bound to release the inform ation, whethe r requested o r not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and 4. The inform ation m ust ha ve be en m aterial.
State v. Edg in, 902 S.W.2d 387, 389 (Te nn. 1995). Th e exculpatory evide nce is “mate rial” if there is a “‘reas onab le prob ability that, had the evidence been disclosed to the defense, the result of the proceeding would have been differen t.’” Id. at 390 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). However, the State is not required to disclose information that the accused already possesses or is able to o btain. State v. Ma rshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992).
To determine w hether counsel provid ed effective assista nce at trial, a court must decide whether counsel’s performance was within the range of competence demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1 975). To succee d on a cla im that his couns el was in effective a t trial, a petitioner bears the burden of showing that his counsel made errors so serious that he wa s not func tioning as couns el as gua ranteed under the Sixth Amendment and that the de ficient representation p rejudiced the pe titioner, resultin g in a fa ilure to p roduc e a relia ble result. Strickland v. Washington, 466 U.S. 668, 68 7 (1984 ); Cooper, 849 S.W .2d at 747 (Tenn. 1 993); Butler, 789 S.W.2d at 899. To satisfy the second prong, the petitioner must show a reaso nable proba bility tha t, but for c ouns el’s un reaso nable error, the fact finder
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would h ave ha d reaso nable d oubt reg arding p etitioner’s gu ilt. Strickland, 466
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U.S. at 695. This reasonable probability must be “sufficient to undermine confidence in the outcom e.” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
This two part standard of measuring ineffective assistance of counsel also applies to claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show that there is a reasonable probability that, but for counsel’s errors he would not have plead ed guilty and w ould have ins isted on going to trial.” Id. at 59.
When reviewing trial counsel’s actions, this Court should not use the bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v. State, 629 S.W .2d 4, 9 (Tenn . 1982). Coun sel’s alle ged e rrors sh ould be judged at the time they were made in light of all facts and circumstances. Strickland, 466 U.S . at 690; see also Cooper 849 S.W.2d at 746.
If afforded a post-conviction eviden tiary hearin g by the tria l court, a petitioner must do more than merely present evidence tending to show incompetent representation and prejudice; he must prove his factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). As previo usly noted, when an evidentiary hearing is held, findings of fact made by that court are conclusive and binding on this Court unless the evidence preponderates against th em. Cooper, 849 S.W.2d at 746 (citing Butler, 789 S.W.2d a t 899).
At the conclusion of the post-conviction hearing, the trial judge made the following findings of fact: He first concluded that “the [TBI] lab report clearly was turned over to defense counsel.” He further found that Frye discussed the report with the Defendant. In addition, he stated, “I’d really see where it would have been little use bec ause [the Defen dant] . . . admits in his testimony he was a shoote r.” The court next accredited Frye’s testimony that he discussed with the
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Defendant Danser’s testimony at the preliminary hearing. The judge concluded that Danse r’s statem ent to police would not have “offered any surprise because [the defense] actually had equivalent testimony available, to-wit, from the Preliminary Hearing.” Finally, the trial judge stated that Frye was “not surprised by the Miller stateme nt.” Thus, the trial court found that there was no withholding of evidence by the State and that Frye provided the Defendant effective representation, discussing with him all evidence obtained during discovery and the anticip ated testim ony of all trial w itnesses .
In additio n, we note th at the fa ctual stipulation entered into the record before entry of the Defen dant’s pleas contained some information of which the Defendant claimed no kno wledge . The stipulation revealed that the victims went to the scen e of the sh ooting of th eir own a ccord. It also re veale d that the gun which was recovered from Tracy Phelps’ home had been identified as the source of some of the shell casings found at the scene. The report also indicated that two guns which were never recovered were the sources of other shell casings at the scene.
Having thoroughly reviewed the record, we conclude that the evidence does not preponderate against the trial judge’s findings. We conclude that each item of evidence that the Defendant contends he did not receive before the plea hearing was either turned over to the defense and discussed with the Defendant or was information already possessed or easily o btained by the D efenda nt. The conflicting testimon y of the Defendant and his defen se cou nsel at the post- conviction hearing presen ted a qu estion of fa ct for resolu tion by the trial court. The trial court heard all testimony in this case and specifically accredited that of Mr. Frye. W e will not disturb this finding o n appe al. We therefo re find n o me rit in the De fendan t’s claims.
Accordingly, the judgment of the trial court is affirmed.
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______________________________
DAVID H. WELLES, JUDGE
CONCUR:
________________________________
JOSEPH M. TIPTON, JUDGE
________________________________
JERRY L. SMITH, JUDGE