Peck v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1997 March 31, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

MARK L. PECK, ) C.C.A. NO. 03C01-9611-CR-00402 )

Appe llant, )

)

) SULLLIVAN COUNTY

VS. )

) HON. FRANK L. SLAUGHTER STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE:

RAYMOND C. CONKIN , JR. JOHN KNOX WALKUP 320 Cherokee Street, Suite B Attorney General and Reporter Kingsport, TN 37660 PETER M. COUGHLAN

Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

GREELEY W ELLS

District Attorney General

EDWARD E. WILSON

TERESA MURRAY SMITH

P. O. Box 526

Blountville, TN 37617

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On April 22, 1989, a S ullivan County jury found P etitioner-A ppellant, Mark L. Peck, guilty of first-degree murde r, and sen tenced him to life im prisonm ent. After an unsuccessful direct appeal to this Court, on January 10, 1995, Appellant filed a pro se petition for h abeas corpus relief. This petition was construed by the court as a petition for post-conviction relief and coun sel wa s app ointed . On Ju ly 9, 1995, after a hearing, the court dismissed Appellant’s petition. Appellant appe als from the denial of his pe tition, cla iming that the trial cou rt erred in finding that he receive d effec tive ass istanc e of co unse l at trial.

Appellant bases his claim of ineffective assistance of counsel upon several alleged om issions by trial counse l, namely:

1) trial counsel failed to interview certain potential alibi witnesses whose names were pro vided by A ppellant; 2) trial cou nsel fa iled to in vestiga te the p hone call ma de by A ppella nt to his mother aro und the time of the murde r; 3) trial couns el failed to inve stigate the conte nts of a letter fro m Ro y Rhe a to Jim Cody alleging that a third party com mitted the m urder; 4) trial coun sel denie d Appe llant the right to testify on his o wn beh alf; 5) trial co unse l failed to prese rve the record at trial.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

BACKGROUND FACTS:

As stated by this Court on direct appeal, the evidence presented at trial showe d that:

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The Appellant, who dated the victim's estranged w ife, Donna S trickler, shared a residence with Robin Johnson and Jim Clark . He had arranged for Johnson to awak en him at abo ut 10:0 0 P.M ., Febr uary 5 , 1988 . Shor tly thereafter, Peck left the house, driving either his black pickup truck or a gray van. The van conta ined C lark's tw elve ga uge s hotgu n. Pec k often drove that veh icle and had regular access to the weapon.

Earlier that evening, the victim had driven his siste r, Deb bie Fluharty, to an Italian restaurant where they joined other family members for dinne r. The victim kept a .45 c aliber p istol in his car. At about 8:00 P.M., he went into the Ramada Inn to meet his wife, Donna, and others for drinks. Thre e hou rs later, th e victim left the motel and went home. At about the same time, Donna Strickler departed and went to the Tri-City Lounge.

The state's theory , base d upo n the c ircum stanc es es tablish ed at tria l, is that the Appellant, armed with Clark's shotgun, entered the victim's house by the garage door at about 11:00 P.M; gained entry by the use of a duplicate key he had acquired from Sears earlier that day; and then waited in the bedroom. The victim apparently entered by a different door and began to walk the hallway leading to his bedroom. He was shot twice at close range. The perpetrator took the victim's pistol, a bullet-proof vest he found in the closet, and went out the same door he had en tered. Thereafter, sometime between 11:30 P.M. and midnig ht, Peck met Donna Strickler and Mary Stallard at the Tri-City Lounge. He remained at the lounge until approxim ately 2:0 0 A.M . when he retu rned to his residence.

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The next morning, the victim's body was discovered by a relative. The door to the garage was open. The house key that opened that door was not among the ke ys that th e victim had w ith him , nor wa s it found in the house. The doctor who d id the a utops y estab lished the victim 's time of death at shortly after 11:00 P.M.

On the morning following the shooting, Peck took his pickup truc k to Lori W ooda ll's house. He gave Woodall a pistol holster containing unspent shotgun shells an d aske d her to h old them for him. He hid the victim 's .45 caliber pistol in a bedro om clo set at W oodall's house. A few days later Peck asked another friend, Victoria T oney, to g et the pisto l and clip. H e did not m ention tha t to W ooda ll. Thereafter, he directed Robin Johnson to take the keys to his truck to W ooda ll. Peck said h e was going away for a coup le of days. The state proved that Woodall, Toney, and Michele Akers, a cting individu ally or in con cert, disposed of the Appellant’s truck, the shotgun shells, and the victim's gun. They took Peck's truck to Virginia and hid the victim's pistol in a pot-bellied stove; they threw the shotgun shells into a field near Woodall's house. All of these items were recovered by authorities. The victim's bullet-proof vest was found in Pec k's shared residence.

INEFFECTIVE ASSISTANCE OF COUNSEL

In review ing Ap pellan t Peck ’s Sixth A men dme nt claim of ineffective assistance of counsel, this Court must determine whether the advice given or services rendered by the attorney are within the range of competence demanded

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of attorneys in crimina l cases. Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). To preva il on a cla im of ineffective counsel, the Appellant “must show that coun sel’s representation fell below an objective standard of reasonableness” and that this performance prejudiced the defense. There must be a reasonable probab ility 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, 104 S.Ct. 2052, 2064, 2067-6 8, 80 L.E d.2d 67 4 (1984 ); Best v. Sta te, 708 S.W.2d 421, 422 (Ten n. Crim. App . 1985). A reviewin g court need not consider the two prongs of Strickland in any pa rticular orde r. Id. at 679, 104 S.Ct. At 2069. Moreover, if the appellant fails to establish one prong, a reviewing court need not conside r the othe r. Id.

At the co nclus ion of th e hea ring in th is case , the po st-con viction court entered the followin g findings of fact: 1)Grounds 1, 4, 7, 9, 10, 11, 13, 14 (encompassing Appellant’s claim s that: counsel was no t prepared to arg ue the pre-trial mo tion for investigative assistance; counsel failed to call su bpoen aed alibi w itnesses ; counse l failed to move for a mist rial and recus al of the District A ttorney ’s Office after A ppella nt’s notes were s eized by a sh eriff’s deputy; counsel, in closing argument, referred to the fact Appellant was unemployed; counsel failed to protect the record for appea l; on appeal counsel failed to adequately argue the insufficiency of the evidence; jury instructions were insufficient; and the trial court erred in refusing to acce pt a su bpoe na to te stify in the trial) have been p reviously litigated before the trial court and the Court of Criminal Appeals.

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2) that Petitioner’s trial counsel functioned as an active a dvoca te, prote cted h is rights, cross-examined witnesses, argued on Petition er’s behalf, and ensured that the proper law was followed. 3) Mr. Taylo r visited and consu lted with Pe titioner 17 times prior to trial, performed 179.6 hours of legal work out of court and 82 hours of cou rt work. Mr. Taylor interviewed all the witnesses known to him. 4) Mr. Toohey visited and consulted with Petitioner 23 tim es prio r to trial, performed 209.5 hours of legal work out of court and 58.5 hours of court work. 5) Pe titioner a greed not to te stify upo n the a dvice o f trial cou nsel. 6) Any witnesses not called by trial counsel were excluded from testifying by reasonab le trial strategy. 7) Mr. Ta ylor’s re prese ntation of a m emb er of the Sullivan County She riff’s Department was in no way related to or in conflict with this case. 8) The trial court authenticated the record, and there is no evidence to suggest that the record is inadequate.

In post conviction proceedings, the Appellant has the burden of proving the allegations in the petition by a preponderance of the evidence. McBe e v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). “The findings of fact and conclusions of law made by the trial court after an evide ntiary hearing are afforded the weigh t of a jury verd ict; this court will not set aside the judgment of the trial court unless the evidence contained in the record preponderates against its findings.” State v. Dick, 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993) perm. to appeal denied (Tenn, 1993). Appellant argues that the evidence presented at the evidentiary hearing preponderates against the findings of the post-conviction court th at he w as ad equa tely rep resen ted by h is coun sel.

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In his first allegation of error on appeal, Appellant argues that trial counsel failed to interview potential alibi witnesses whose names were provided by Appe llant. The finding of the trial court that witnesses excluded from testimony were excluded for reasons o f strategy is s upporte d by the re cord of the post- conviction hearing. Trial counsel testified that each of the witnesses Appellant listed were interviewed, and counsel provided a reasonable strategic explanation for not having called each of those witnesses. We do not use the benefit of hindsight to second-guess trial strategy by counsel and criticize counsel's tactics. Dixon v. State, 934 S.W .2d 69, 72 (T enn. Crim. A pp. 1996)(citing Hellard v. State, 629 S.W .2d 4, 9 (T enn.19 82)). Th is issue is w ithout me rit.

In his sec ond a llegatio n, App ellant charges that trial coun sel failed to investigate information he gave counsel regarding a pho ne ca ll he claims to ha ve made to his mother around the time of the m urder . Initially we note th at this allegation is not a p art of M r. Peck ’s Amended Petition for Post-C onviction R elief, and is therefore not a proper issue for appeal. In any e vent, the record demonstrates that Ap pellan t was u nable to tell his a ttorney s from which public phone the call was made. Furth er, due to the uncertainty of exactly when the victim was murdered, even if such evidence had been obtained, it is unlikely that it would have provided a complete alibi for the murder. T he trial court found that trial counsel carried out such investigation as was reasonable in this matter; Appellant has failed to show a more extensive investigation of the alleged phone call could have been made , or that he w as prejud iced by the failure to discover it. This issu e is withou t merit.

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Next, Appellant claims that trial counsel failed to investigate the claims made in a letter from Roy Rhea to Jim Cody. The letter claimed that a M ark Moody was the actual perpetrator of the crime. The testimony presented at the post conviction hearing demonstrated that the letter did not reach trial counsel until after the hearing on the m otion for a n ew trial. Ap pellant failed to show that the trial cou rt’s findin g that tria l coun sel res pond ed ap propr iately to the receipt of this letter wa s in any w ay errone ous. Th is issue is w ithout me rit.

Appellant further argues that he was denied effective assistance of counsel in that his trial counsel denied him the right to testify in his own behalf. The judgment of the post-conviction court states, “Appellant has testified that he accepted the advice of counsel but would now like to have a secon d chan ce with the jury.” Appellant argue s that w ithout a spec ific statement from either attorney stating that App ellant agre ed not to te stify this Cou rt is left with Appellant’s statement that he un equivoc ally dem anded that he be allowed to testify and was denied this right by his counsel. The record, however, does not support this argum ent. The record demonstrates, through Appellant’s own testimony, that he was advised by his attorneys to end the trial without presenting more proof and that he agreed to follow their advice. It appears from the record that trial counsel explained to Mr. Peck tha t if he were to testify then he would be cross-examined regarding his prior convictions, a nd tha t both A ppella nt and trial cou nsel fe lt it was advisable to rest their c ase instead of putting that testimony in front of the jury. Appella nt has faile d to carry h is burden of proof. T his issue is without m erit.

Finally, Appellant claim s that trial counsel was ineffective in that the attorneys failed to request a definitive ruling as to whether evidence of a th ird

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party defense was admissible. Specifically Appellant claims that counsel shou ld have asked for a definitive ruling as to wh ether Ricky C ain could testify. Appellant claims had Cain testified he could have been implicated in the murde r. Howeve r, proof at the post-conviction hearing shows that trial counsel made a strateg ic decision not to call Ricky Cain, because coun sel’s investigation revealed that Cain ha d a stron g alibi for the time of the murder . The decisio n not to call Cain was a legitimate trial strategy, negating the need for a ruling on the admis sibility of third par ty defens e. This iss ue is witho ut merit.

Therefore, for the reasons disc ussed ab ove, the judgm ent of the trial court is affirmed.

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JERRY L. SMITH, JUDGE

CONCUR:

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GARY R. WADE, JUDGE

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DAVID H. WELLES, JUDGE