Richardson v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL SESSION, 1997 January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

DERRICK RICHARDSON, ) C.C.A. NO. 03C01-9605-CR-00186 )

Appe llant, )

)

) HAMILTON COUNTY

VS. )

) HON. DOUGLAS A. MEYER STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General and Reporter 11th Judicial District ROB IN L. HA RRIS

DONNA ROBINSON MILLER Assistant Attorney General Assistant District Public Defender 450 James Robertson Parkway Suite 30 0 - 701 C herry St. Nashville, TN 37243 Chattanooga, TN 37402 BILL COX

District Attorney General

LELA ND D AVIS

Assistant District Attorney General City and County Courts Building Chattanooga, TN 37402

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appe llant De rrick R ichard son a ppea ls the tria l court's denia l of his petition for p ost-con viction relief. H e prese nts the follow ing issue for review: whether the trial court erred in finding that Appellant's counsel rendered effective assista nce b oth at tria l and o n app eal.

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

I. FACTUAL BACKGROUND

On De cembe r 10, 1992, a H amilton Co unty Criminal C ourt jury convicted Appella nt of first-deg ree mu rder. Th e trial court im posed a life senten ce. On a ppeal, this court affirm ed App ellant's con viction. See State v. Derrick Richardson, C.C.A. N o. 03C 01-930 5-CR -00165 , Ham ilton Cou nty (Tenn . Crim. A pp., Kno xville, June 9 , 1994), perm. to appeal denied (Tenn. 1994).

On Ju ly 20, 199 5, Appe llant filed a pe tition for post-c onviction re lief, alleging ineffective assistance of counsel at trial. At the conclusion of the hearing, the trial court denied Appellant's petition.

II. POST-CONVICTION RELIEF Appellant contends that the trial court erred in denying his petition for post-conviction relief based upon the ineffective assistance of counsel both at trial and on ap peal.

In post-conviction proceedings, the Appellant bears the burden of proving th e allegatio ns raised in the petition by clear an d convin cing evide nce.

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Tenn . Code Ann. § 40-30-210 (f)(1997). Moreover, the trial court's findings of fact are conclusive on appeal unless the evidence preponderates against the judgm ent. Tidwe ll v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Camp bell v. State, 904 S.W .2d 594 , 595-96 (Tenn . 1995); Coop er v. State , 849 S.W.2d 744, 746 (T enn. 1993 ).

A. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL Appe llant's o nly con tention is that th e trial co urt erre d in find ing tha t his trial counsel rendered effective assistance. Specifically, Appellant alleges the following deficiencies in his trial counsel's representation:

(1) failure to meet and talk with Appellant for a sufficient amo unt of tim e prior to trial;

(2) failure to c hallenge the sufficien cy of the ev idence both at the m otion for ne w trial and o n appe al to this Co urt;

(3) failure to inform Appellant of the minimum and maximum potential s entenc es which Appella nt would face by g oing to trial to enable Appellant to intelligently decide whether to accept or reject the State's plea offer of twenty years;

(4) failur e to inte rview c ertain w itness es an d to ca ll Appellant's mother and brother as trial witnesses; and (5) failure to c onsult with Appella nt before deciding to appeal appellant's conviction.

The Sixth Amendment provides in part, "In all criminal prosecutions, the accu sed s hall en joy the rig ht. . . to ha ve the a ssista nce o f coun sel for h is defense." U.S. Const. amend. 6. Similarly, the Tennessee Constitution guaran tees an accuse d "the right to be hea rd by him self and h is couns el. . . " Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme Court articulated a two-prong test for courts to employ in evaluating claims of ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee Supreme Court adopted Strickland's

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two-part test in Butler v. Sta te, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began its analysis by noting that "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial canno t be relied o n as ha ving prod uced a just result." Strickland, 104 S.C t. 2052, 2064. When a convicted defendant challenges the effective assistance of counsel in a post-conviction proceeding, the Appellant carries the burden of establishing (1) deficient representation of counsel and (2) prejudice resulting from tha t deficiency . Strickland, 104 S.C t. 2052, 20 64; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appellant must prove that couns el's repres entation fe ll below an objective s tandard of reaso nablen ess. Strickland, 104 S.Ct. 2052, 2064. This Court is not required to consider the two pron gs of Strickland in any pa rticular orde r. Harris v. S tate, 947 S.W.2d 156, 16 3 (Ten n. Crim. A pp. 199 6). "More over, if the A ppellant fa ils to establish one pro ng, a revie wing co urt need not cons ider the oth er." Id. With regard to counsel's deficient performance, the proper measure is that of reason ablene ss und er prevailing professio nal norm s. Id. (citing Strickland, 104 S.Ct. at 2065). Put differently, counsel's performance is required to be "within the ra nge of co mpete nce de mand ed of attorn eys in crim inal case s." Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d 156, 163. Re specting the prejud ice prong of Strickland, the Appellant must estab lish tha t "there is a rea sona ble pro bability th at, but fo r coun sel's unprofe ssional e rrors, the re sult of the p roceed ing wou ld have b een differe nt. A rea sona ble pro bability is a prob ability su fficient to unde rmine confid ence in the outco me." Strickland, 104 S.Ct. 2052, 2068.

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The Strickland Cour t emp hasiz ed tha t "Judic ial scru tiny of co unse l's perform ance m ust be hig hly defere ntial." Id. at 2065 . "A `fair asse ssme nt . . . requires that every effort be made to eliminate the distorting effects of hindsigh t, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to e valuate th e cond uct from couns el's persp ective at the time.'" Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). The mere failure of a particular tactic or strategy does not per se establish unreas onable represe ntation. Id. at 369 . How ever, th is Cou rt will defer to couns el's tactical and strategic ch oices only whe re those cho ices are informe d ones predicate d upon adequ ate prep aration. Goad, 938 S.W.2d 363, 36 9; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

With respec t to Appe llant's first allege d deficien cy, Appe llant subm its that prior to trial, Attorney Charles Wright met with Appellant only three times for a total of one hour and thirty minutes. However, at the hearing on Appellant's petition for post-conviction relief, Mr. Wright's records reflected that he ha d spen t 9.6 hour s discus sing Ap pellant's ca se with A ppellant. Moreover, M r. Wright furthe r testified that he had de voted a total of 61 ho urs of time out of court and 36.1 hours of time in court to investigating and preparing Appellant's case. We, therefore, conclude that Appellant has failed to carry his b urden o f proving e ither pron g of Strickland. Appellant has failed to demonstrate that Mr. Wright performed below the range of competence of attorne ys in crim inal ca ses a nd tha t Appe llant wa s preju diced by his c ouns el's allegedly deficient performance.

To bolster his second allegation of deficient representation, Appellant comp lains that h is attorney w as ineffec tive becau se cou nsel dete rmined not to contest the sufficiency of the evidence either in the motion for new trial or on

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appeal to this Court. In his brief, however, Appellant does not raise any issues that wou ld have b uttressed a sufficienc y argum ent on a ppeal. A t the post- conviction hearing, Mr. Wright explained that he did not contest the sufficiency of the evidence in the motion for ne w trial or in the appea l to this Court because he believed such a contention to have no merit and because he believed that "there w as obvio usly evide nce en ough to sustain a jury verdict." In his direct appea l, the only issue prese nted was w hether the trial court improp erly instructe d the jury re garding criminal re spons ibility. State v. Richardson, CCA No. 03 C01 -9305 -CR- 0016 5, slip o p. at 1. T his Co urt held that the jury in struction w as prop er. Id. at 4.

Typically, the decision about which issues to raise on appeal is one that is left to the pro fessiona l judgme nt and so und disc retion of ap pellate co unsel. Porte rfield, 897 S.W .2d 672 , 678; Coop er v. State , 849 S.W .2d 744 , 747. Additionally, Wright appears to have made a well-informed strategic decision that it would not be in Appellant's best interest to contest the sufficiency of the evidence. Review of the record evidence in Appellant's case demonstrates that the evidence was more than sufficient to support the verdict. In light of the testimony of trial counsel during the post-conviction hearing, we do not believe that Ap pellan t receive d ineffe ctive as sistan ce be caus e of his attorne y's decision to refrain from raising a sufficiency of the e vidence argu ment, nor are we of the opinion that the outcome would have been different had this issue been p resente d to this Co urt.

Appellant's brief is wh olly devoid of any argu ment to bu ttress his third allega tion of in effective assista nce o f coun sel. Ind eed, A ppella nt me rely asserts, "By failing to advise petitioner of the potential sentences he was facing so that he might make an intelligent decision about whether to accept or

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reject the p lea offered by the Sta te, W right deficien tly represe nted pe titioner." The State made a plea offer of twenty years incarceration in exchange for the State's agree ment to lowe r the charge to s econd-de gree mu rder. Howeve r, Mr. W right sta ted tha t after dis cuss ing the felony m urder rule an d the S tate's plea offer w ith Appe llant, Appe llant still insisted u pon pro ceedin g to trial. Appellant's own admission at the post-conviction hearing indicates he does not regret rejecting the State's plea offer. No thing in this record indica tes Mr. Wright's advice was deficient. In addition, since Appellant has indicated he would still reject the plea offer, he has not demonstrated that he was prejudiced as a result of this alleged de ficiency.

With regard to his fourth allegation of inadequate representation, Appellant asserts that his brother, Tony Richardson, and his mother Ernestine Richardson should have been called as witnesses. Appellant also complains that his attorney was ineffective for failing to interview four witnesses named by a co -defen dant in a state men t given to police by that c o-defe ndan t, Calvin Johnson.

Appellant contends that Tony Richardson could have rebutted the testim ony of L akeys ha Da vis, a cru cial pro secu tion witn ess. A t Appe llant's trial, Ms. Da vis testified tha t she obs erved from her front p orch the events surrounding the robbery and subsequent murder of the victim. Tony Richardson was prepared to testify that, at the time of the murder, he was standing in the doorway of Lakeysha Davis' apartment and that she was upstairs in her bedroom rather than on her front porch. However, Richardson also testified that he could not see the events surrounding the murder because his view was obstructed by a van which was parked between himself and the location o f the robb ery and m urder. M r. Wrig ht explaine d that he o pted no t to

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call Ton y Richard son be cause Richard son ha d not ob served th e murd er. Moreover, Wright claimed that no one had informed him that Tony Richardson was prepared to refute Lakeysha Davis' statement that she witnessed the murder from her front porch. Finally, Mr. Wright emphatically stated that had Tony Richardson been able to clearly observe the robbery and the shooting of the victim, W right definitely w ould ha ve called R ichardso n as a w itness.

At the post-conviction hearing, Ms. Richardson stated that had she been permitted to testify at her son's trial, she would have recounted a conversation between h erself and Lak eysha Da vis which occu rred approxim ately three days before the commencement of the trial. According to Ms. Richardson, Lakeys ha Da vis told her, "M rs. Richa rdson, w ait a minu te, I have so methin g to tell you. I'm sorry, I d idn't se e noth ing, I do n't kno w noth ing. Ca lvin 1 told me to get up there and lie like that, said if I didn't, he would have no more use for me and my baby." At the post-conviction hearing, however, both Mr. Wright and Mrs. R ichard son te stified th at Mrs . Richa rdson never disclos ed this informa tion to Mr. W right at any tim e prior to A ppellant's trial.

With regard to the four witnesses mentioned above, Mr. Wright explained that he had not interviewed them because they could not be located and because he "had no leads about finding any of them." Under these circumstances, we find no deficient representation. Again, Appellant has also failed to show a re asonable p robability that the result of his trial would h ave been different had these witnesses been called.

Lastly, Appellant asserts that Mr. Wright rendered ineffective assistance by neglecting to co nsult Appellan t before filing an appe al with this Court. Mr.

1 Calvin Johnson, Appellant's co-defendant, was also Ms. Davis' boyfriend and the father of her child.

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Wrig ht stated a t the post-c onviction h earing th at Appe llant "never p urported to add anything to the appea ls process." The trial court held that although Mr. Wright should have consulted with Appellant prior to filing an appeal, it was not necessary that Mr. Wright do so. The fact that Mr. Wright failed to confer with Appellant before perfecting an appeal to this Court is insufficient to render his representation deficient. Mr. Wright appealed Appellant's conviction on what he believed to be the only meritorious claim--the possible impropriety of the trial court's jury instruction on criminal responsibility. Furthermore, Appe llant ha s failed to dem onstra te wha t he co uld ha ve add ed to th e app eals process had he been contacted.

Becau se we find that App ellant's attorn ey rende red ade quate representation both at trial and on appeal, we affirm the judgment of the trial court de nying his p etition for po st-convictio n relief.

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JERRY L. SMITH, JUDGE

CONCUR:

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JOE G. RILEY, JUDGE

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CHRIS CRAFT, SPECIAL JUDGE