Spooner v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1998 August 31, 1998

Cecil Crowson, Jr.

GREGORY SCOTT SPOONER ) C.C.A. NO. 03C01-9608-CR-00283 Clerk Appellate C ourt

)

Appe llant, )

)

) HANCOCK COUNTY VS. )

) HON. JAMES E. BECKNER STATE OF TENNESSEE, ) JUDGE )

Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE:

HERBERT HOLCOMB JOHN KNOX WALKUP 101 Church Street Attorney General and Reporter Rogersville, TN 37857 PETER M. COUGHLAN

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

C. BERKELEY BELL

District Attorney General

FLOYD W. RHEA

Assistant District Attorney North Court Street

Sneedville, TN 37869

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Grego ry Scott S poone r appea ls the trial cou rt's denial of his petition for post-co nviction relief. He presents the following issue for review: whether the trial court erred in denying Appellant's petition for post-conviction relief based upon the ine ffective a ssista nce o f trial cou nsel.

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

I. FACTUAL BACKGROUND

The trial court appointed Attorney John Anderson to represent Appellant at trial. On April 28, 1993, Appellant was convicted by a jury in the Hancock Coun ty Criminal Court of six counts of rape and one count of exhibiting materia l harmfu l to a minor. Appellant was sentenced as a multiple rapist to an effective sentence of forty-eight years incarceration with the Tennessee Department of Correction. Appellant's appeal of his conviction to this Court was dismissed because he had escaped from custod y.

On November 13, 1995, Appellant filed a pro se petition for post-conviction relief, alleging, inter alia , ineffective assistance of trial counsel. Following a hearing, the trial court denied Appellant's application for post-conviction relief on December 8, 1995. In so doing, the court concluded that Attorney John Anderson performed well within the range of competence and that Appellant had not demonstrated the manner in which he was prejudic ed by th e alleg ed de ficienc ies in co unse l's representation.

Specifically, Appellant alleges the following deficiencies in his tria l coun sel's representation:

(1) failur e to ad equa tely con sult with Appe llant prio r to trial;

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(2) failur e to pre pare A ppella nt to tes tify at trial;

(3) failure to investig ate Ap pellan t's claim that law enforcement officials illegally obtained statements from him;

(4) failure to cons ult sufficie ntly with Appellant during the jury selection process;

(5) failure to d iscuss th e State's evidenc e with Ap pellant;

(6) failure to interview any of the prosecution's witnesses prior to trial; and

(7) failure to ask the questions that Appellant desired.

II. POST-CONVICTION RELIEF Appellant contends tha t the trial court erred in denying his petition for post-

convic tion relie f base d upo n the in effective assista nce o f trial cou nsel.

In post-conviction proceedings, the Appellant bears the burden of proving the allegations raised in the petition by a preponderance of the evidence.1 Tidwell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wade v. State, 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995). Moreover, the trial court's findings of fact are conclusive on appea l unless the evidenc e prepo nderate s agains t the judgm ent. Tidw ell, 922 S.W.2d at 500; Cam pbell v. State , 904 S.W .2d 594 , 595-96 (Tenn . 1995); Cooper v. State, 849 S.W .2d 744, 746 (Tenn. 199 3).

A. EFFECTIVE ASSISTANCE OF COUNSEL Appe llant's only cla im is tha t the trial court e rred in denying his petition for post-conviction relief ba sed u pon th e alleg ation th at he re ceived ineffec tive assist ance of trial co unse l.

The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the right. . . to have the assis tance o f counse l for his defen se." U.S. Const. amend. 6. Similarly, the Tennessee Constitution guarantees an

1 For post-conviction claims filed after May 10, 1995, the burden of proof is by clear and convincing evidenc e. See Tenn . Code A nn. § 40- 30-210 (f); Scott v. Sta te, 936 S.W.2d 271, 274 (Tenn. Crim. App. 1996).

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accused "the right to be heard by him self an d his couns el. . . " Tenn. C onst. art. I § 9. Additionally, Tenn. Code Ann. § 40-14-102 provides: "Every person accused of any crime or m isdemea nor whatso ever is entitled to couns el in all matters neces sary for su ch pers on's defe nse, as w ell to facts as to law."

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 counse l. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Tennessee Supreme Court adopted Strickland's two-part test in Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began its analysis by noting that "The benchm ark for judg ing an y claim of ineffe ctivene ss m ust be wheth er cou nsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at 2064. When a convicted defendant challenges the effective assistance of counsel in a post-conviction pro ceeding, the A ppellant bears the burden of establishing (1) deficient representation of counsel and (2) prejudice resulting from that d eficiency. Strickland, 104 S.C t. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). Appellant must prove that counsel's representation fell below an objective standa rd of reas onable ness. Strickland, 104 S .Ct. at 2 064. T his Co urt is not required to consider the two prongs of Strickland in any pa rticular orde r. Harris v. State, 947 S.W .2d 156, 163 (Tenn. Crim . App. 1996 ). "Moreover, if the Appellant fails to establish one prong, a reviewing co urt need not cons ider the oth er." Id. With regard to counse l's deficient performance, the proper measure is that of reasonableness under p revailing pro fessiona l norms . Id. (citing Strickland, 104 S.Ct. at 2065. P ut differently, counsel's performance is required to be "within the range of compe tence dem anded of a ttorneys in criminal ca ses." Baxter v. Rose, 523 S.W .2d 930 , 936 (T enn. 19 75); Harris , 947 S.W.2d at 163. Respecting the

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preju dice prong o f Strickland, the Appellant must establish that "there is a reaso nable proba bility that, b ut for co unse l's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a proba bility sufficient to undermine confidence in the outcom e." Strickland, 104 S.Ct. at 2068.

The Strickland Court emphasized that "Judicial scrutiny of counsel's performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . . requires that every effort be ma de to elim inate the d istorting effec ts of hindsig ht, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from co unsel's p erspec tive at the tim e.'" Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 206 5). The mere fa ilure of a particular tactic or strategy does not per se establish unreasonable representation. Id. at 369. Ho wever, this Court w ill defer to counsel's tactical and strategic choices only where those choices are informed ones predicated upon adequ ate preparation. Goad, 938 S.W .2d at 369 ; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

Regarding Appe llant's first alleged deficiency, he specifically complains that Mr. Anderson consulted with him only two or three times prio r to trial. However, at the post-conviction hearing, Attorney Anderson testified that h e met w ith Appellant to discuss the ca se eight or nine tim es prior to trial. Moreover, couns el broug ht with him to the hearing fifteen to twenty pa ges of no tes taken by him d uring sev eral visits with Appellant. Mr. Anderson's copious notes belie Appellant's assertion that he had little or no contact with his atto rney p rior to the com men cem ent of th e trial. Cou nsel’s pretrial con tacts with A ppellant a ppear to have affo rded him ad equate opportu nity to prepare Appellant’s case. Moreover, Appellant has failed to even allege how he was prejudiced by counsel’s number of visits.

Appe llant's second claim of ineffective assistance of counsel is that Attorney Anderson inadequately prepared Appellant to testify at trial. At the hearing on the

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petition for post-conviction relief, Attorn ey Anderson stated tha t he review ed with Appellant all of the evidence which the pros ecution had against him. A dditionally, Mr. Anderson testified that during one meeting with Appellant, he inquired about Appe llant's background, the circumstances leading up to the offense, and the particulars of the case. To buttress this testimony, Anderson produced ten pages of handw ritten notes taken du ring this co nferenc e with Ap pellant. Attorney Anderson testified that h e attem pted to prepare Appellant for the questions that Mr. Anderson believed would be posed to Appellant on cross-examination so that Appellant would have suitable res ponses. A s support for this testim ony, Mr. Anderson produ ced a pprox imate ly ten pages of his handwritten notes taken during this conference with Appellant. The trial court properly concluded that "Mr. Anderson spent a great deal of time preparing the case and discussing the case with the petitioner. He prepared for trial, leaving no stone unturned." Thus, we find that Appellant has not carried his bu rden o f provin g that M r. And erson inade quate ly prepared him to tes tify at trial and tha t the outco me of Appe llant's trial was prejudiced by any alleged lack of preparedness.

Respecting Appellant's third alleged deficienc y, he asserts that Mr. Anderson never conducted any investigation of Appellant's claim that law enfo rcem ent offic ials illegally obtained Ap pellant's stateme nt. At the post-con viction hearing, Mr. Anderson explained that he did not file a motion to suppress the statement taken from Appellant because Appellant, before trial, never indicated that he gave the statement unwillingly and because Appellant signed waiver of rights and waiver of counsel forms. Furthermore, Mr. Anderson stated that Appellant stated that he had "tried to cooperate" with the police and "had nothing to hide" because he had not done anything . The d ecision n ot to file a motion to suppress Appellant's statement appears to have been a strategic choice predicated upon adequate investigation.

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See Goad v. State, 938 S.W.2d 263, 269 (Tenn. 1996). Nothing requires counsel to file what he believes to be a frivolous motion to suppress. Because we find that Appellant has not demonstrated that Mr. Anderson performed below the range of competence demanded of an attorney in a criminal case or that he was prejudiced by that pe rforman ce, the third alleged d eficiency is w ithout me rit.

Appe llant's fourth claim of ineffective assistance is that Mr. Anderson failed to consult sufficiently with Appellant during the jury selection process. Appellant testified at the post-conviction hearing that Mr. Anderson did not question the prospective jurors a bout th eir bac kgrou nd. Ho weve r, the tria l court s tated, "T his court even re mem bers th e cas e well e noug h to rec all the p etitione r perso nally cons ulting w ith his law yer du ring vo ir dire an d, in fac t, the rec ord will s how th at all eight peremptory challenges were used during the course of voir dire." Thus, Appellant has not overcome the trial court’s finding that Appellant particip ated fu lly in the voir dire. Moreover, we cannot see how Appellant was prejudiced given Mr. Anderson's apparently thorough examination of the prospective jurors.

Appe llant's fifth complaint is that Attorney Anderson failed to discuss the evidence which the State had against him. Teddy Collingsworth, a criminal investigator for the District Attorney, testified at the post-conviction hearing, that he met with Mr. Anderson and "showed him all the evidence that we had, all the statements, all the evidence that was taken from the home when the search warrant was executed. . . ." Moreover, as mentioned above, Mr. Anderson averred that he and Appellant together reviewed all the evidence against Appe llant. Th is issue is without m erit.

Regarding Appellant's sixth allege d deficiency, he co ntends that M r.

Anderson failed to interview an y of the pro secution 's witness es. Attorney Anderson testified that he personally conducted interviews with all three of the victim's special

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education teachers, a Department of Huma n Services wo rker and her s upervisor, and one of the victim's "foste r parents." Attorney Anderson stated that he interviewed witnes ses fo r App ellant's case each time he traveled to Sneedville--the place where th e alleged offense w as com mitted. The trial court determined that Mr. Anderson "talked to all possib le witness es." The record a mply su pports this finding and we will not second guess it. There is no ineffectiveness on the part of counsel proven here.

Finally, Appellant complains that Mr. Anderson failed to question the witnesses as Appellant desired. At the hearing on his petition for post-conviction relief, Appellant testified that Mr. Anderson declined to ask the question s given to him by App ellant, expla ining that th ose qu estions w ould cau se the w itnesses to becom e angry. Mr. An derso n testifie d that h e reca lled as king a ll of the questions that Appellant directed him to ask and that he could not remember refusing to ask any of Appe llant's que stions. The trial court opined that Attorney Anderson thorou ghly cross-examined witnesses. In any event, the cross-examination of witnesses is a matter entrus ted to the p rofession al judgm ent of the a ttorney. W e will not second guess his tactical decisions.

The judgment of the trial court is affirmed.

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JERRY L. SMITH, JUDGE

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CONCUR:

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THOMAS T. WOODALL, JUDGE

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WILLIAM B. ACREE, SPECIAL JUDGE