IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED June 5, 1998
Cecil Crowson, Jr. BRUCE WAYNE FLOURNOY, ) Appellate C ourt Clerk ) NO. 02C01-9611-CC-00391 Appellant, ) ) MADISON COUNTY VS. ) ) HON. C. CREED McGINLEY, STATE OF TENNESSEE, ) JUDGE BY INTERCHANGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
RUSSELL A. LARSON JOHN KNOX WALKUP (At Hearing) Attorney General and Reporter 211 E. Main Street P.O. Box 2163 ELIZABETH T. RYAN Jackson, TN 38302-2163 Assistant Attorney General Cordell Hull Building, 2nd Floor PAMELA J. DREWERY 425 Fifth Avenue North (On Appeal) Nashville, TN 37243-0493 1008 W. Forest Jackson, TN 38301 JAMES G. (JERRY) WOODALL District Attorney General
ALFRED LYNN EARLS Assistant District Attorney General 225 Martin Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Bruce Wayne Flournoy, appeals the order of the Madison
County Circuit Court denying his petition for post-conviction relief after an
evidentiary hearing. Petitioner was convicted upon his guilty pleas to first degree
murder and aggravated rape and received concurrent sentences of life
imprisonment and twenty (20) years, respectively. On appeal, petitioner claims that
he received ineffective assistance of counsel and his guilty pleas were not
knowingly, intelligently and voluntarily entered. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issues
presented for review, it is the opinion of this Court that the judgment of the trial court
should be affirmed.
I
In 1992, petitioner pled guilty to the first degree murder of his wife and the
aggravated rape of his daughter. The trial court sentenced him to concurrent terms
of life imprisonment and twenty (20) years, respectively, for the offenses. At the
post-conviction hearing, petitioner and his brother, Ricky, testified that petitioner’s
attorneys informed them that if petitioner received a life sentence, the “life sentence”
would be twenty-five (25) years at 30% and petitioner would be out of prison in
approximately seven (7) years.1 Petitioner claims that if he had not been
misinformed, he would have insisted on going to trial. As a result, he further argues
that his guilty plea was involuntary because his attorneys misinformed him regarding
his sentence.
Petitioner also asserts that his attorneys were ineffective for allowing him to
plead guilty to first degree murder when the evidence would not support a first
1 Petitioner testified that his attorneys told him he would be released from prison in seven (7) to seven and one-half (7 ½) years. Ricky Flournoy testified that petitioner’s attorney told him that petitioner would have to serve seven (7) to ten (10) years before being released.
2 degree murder conviction if he had gone to trial. Petitioner testified that he had
been drinking and smoking marijuana on the day in question; therefore, he could
not have formed the specific mens rea for first degree murder. He contends that the
state had no proof of premeditation or deliberation and, because there is evidence
that he killed his wife as a result of a domestic dispute, the evidence would merely
support a conviction for second degree murder, at best.2
At the post-conviction hearing, defense attorneys John Van den Bosch and
Mike Mosier testified. Both stated that they conducted a thorough investigation of
the state’s evidence against petitioner on both offenses. Both denied ever telling
petitioner or his brother that he could be released in seven (7) years if sentenced
to life imprisonment. They believed that the state would be able to prove its case
on both offenses. Mosier testified that, in his experience, voluntary intoxication was
not a viable defense to first degree murder. Furthermore, they were aware of a
witness who might negate an intoxication defense. Both were particularly
concerned with petitioner receiving the death penalty, as the state had indicated its
intention to seek the death penalty on the first degree murder charge.
In its written order denying post-conviction relief, the trial court found that
petitioner’s guilty pleas were knowingly and voluntarily entered. The court
specifically determined that the evidence did not support petitioner’s claim that his
attorneys misinformed him as to the amount of time petitioner would be required to
serve on a life sentence. Furthermore, the trial judge noted that he informed
petitioner at the guilty plea that a sentence for first degree murder was either life
imprisonment or death by electrocution. The trial court determined, “it appears that
[petitioner’s] plea of guilty to life imprisonment was a well reasoned, well informed
and competent decision, made after full consultation with counsel and a full
discussion of all evidence against [petitioner].” The court further concluded that
petitioner received effective assistance of counsel in that “there is nothing in the
record that would remotely suggest that the [petitioner] was not afforded his
2 However, throughout his testimony, petitioner maintained his innocence of the murder of his wife and the rape of his daughter.
3 constitutional rights to effective assistance of counsel.”
II
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims
arising out of a guilty plea. The Court in Hill modified the prejudice requirement by
requiring a defendant to show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going
to trial. 474 U.S. at 59, 106 S.Ct. at 370.
The testimony of the petitioner and his attorneys conflicted on every material
issue and fact. The trial court found that petitioner entered knowing and voluntary
guilty pleas and received effective assistance of counsel. The trial court accredited
the testimony of defense counsel and thereby rejected the testimony of petitioner.
The trial judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION FILED June 5, 1998
Cecil Crowson, Jr. BRUCE WAYNE FLOURNOY, ) Appellate C ourt Clerk ) NO. 02C01-9611-CC-00391 Appellant, ) ) MADISON COUNTY VS. ) ) HON. C. CREED McGINLEY, STATE OF TENNESSEE, ) JUDGE BY INTERCHANGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
RUSSELL A. LARSON JOHN KNOX WALKUP (At Hearing) Attorney General and Reporter 211 E. Main Street P.O. Box 2163 ELIZABETH T. RYAN Jackson, TN 38302-2163 Assistant Attorney General Cordell Hull Building, 2nd Floor PAMELA J. DREWERY 425 Fifth Avenue North (On Appeal) Nashville, TN 37243-0493 1008 W. Forest Jackson, TN 38301 JAMES G. (JERRY) WOODALL District Attorney General
ALFRED LYNN EARLS Assistant District Attorney General 225 Martin Luther King Drive P.O. Box 2825 Jackson, TN 38302-2825
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
The petitioner, Bruce Wayne Flournoy, appeals the order of the Madison
County Circuit Court denying his petition for post-conviction relief after an
evidentiary hearing. Petitioner was convicted upon his guilty pleas to first degree
murder and aggravated rape and received concurrent sentences of life
imprisonment and twenty (20) years, respectively. On appeal, petitioner claims that
he received ineffective assistance of counsel and his guilty pleas were not
knowingly, intelligently and voluntarily entered. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issues
presented for review, it is the opinion of this Court that the judgment of the trial court
should be affirmed.
I
In 1992, petitioner pled guilty to the first degree murder of his wife and the
aggravated rape of his daughter. The trial court sentenced him to concurrent terms
of life imprisonment and twenty (20) years, respectively, for the offenses. At the
post-conviction hearing, petitioner and his brother, Ricky, testified that petitioner’s
attorneys informed them that if petitioner received a life sentence, the “life sentence”
would be twenty-five (25) years at 30% and petitioner would be out of prison in
approximately seven (7) years.1 Petitioner claims that if he had not been
misinformed, he would have insisted on going to trial. As a result, he further argues
that his guilty plea was involuntary because his attorneys misinformed him regarding
his sentence.
Petitioner also asserts that his attorneys were ineffective for allowing him to
plead guilty to first degree murder when the evidence would not support a first
1 Petitioner testified that his attorneys told him he would be released from prison in seven (7) to seven and one-half (7 ½) years. Ricky Flournoy testified that petitioner’s attorney told him that petitioner would have to serve seven (7) to ten (10) years before being released.
2 degree murder conviction if he had gone to trial. Petitioner testified that he had
been drinking and smoking marijuana on the day in question; therefore, he could
not have formed the specific mens rea for first degree murder. He contends that the
state had no proof of premeditation or deliberation and, because there is evidence
that he killed his wife as a result of a domestic dispute, the evidence would merely
support a conviction for second degree murder, at best.2
At the post-conviction hearing, defense attorneys John Van den Bosch and
Mike Mosier testified. Both stated that they conducted a thorough investigation of
the state’s evidence against petitioner on both offenses. Both denied ever telling
petitioner or his brother that he could be released in seven (7) years if sentenced
to life imprisonment. They believed that the state would be able to prove its case
on both offenses. Mosier testified that, in his experience, voluntary intoxication was
not a viable defense to first degree murder. Furthermore, they were aware of a
witness who might negate an intoxication defense. Both were particularly
concerned with petitioner receiving the death penalty, as the state had indicated its
intention to seek the death penalty on the first degree murder charge.
In its written order denying post-conviction relief, the trial court found that
petitioner’s guilty pleas were knowingly and voluntarily entered. The court
specifically determined that the evidence did not support petitioner’s claim that his
attorneys misinformed him as to the amount of time petitioner would be required to
serve on a life sentence. Furthermore, the trial judge noted that he informed
petitioner at the guilty plea that a sentence for first degree murder was either life
imprisonment or death by electrocution. The trial court determined, “it appears that
[petitioner’s] plea of guilty to life imprisonment was a well reasoned, well informed
and competent decision, made after full consultation with counsel and a full
discussion of all evidence against [petitioner].” The court further concluded that
petitioner received effective assistance of counsel in that “there is nothing in the
record that would remotely suggest that the [petitioner] was not afforded his
2 However, throughout his testimony, petitioner maintained his innocence of the murder of his wife and the rape of his daughter.
3 constitutional rights to effective assistance of counsel.”
II
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). In Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court
applied the two-part Strickland standard to ineffective assistance of counsel claims
arising out of a guilty plea. The Court in Hill modified the prejudice requirement by
requiring a defendant to show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going
to trial. 474 U.S. at 59, 106 S.Ct. at 370.
The testimony of the petitioner and his attorneys conflicted on every material
issue and fact. The trial court found that petitioner entered knowing and voluntary
guilty pleas and received effective assistance of counsel. The trial court accredited
the testimony of defense counsel and thereby rejected the testimony of petitioner.
The trial judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.
1995). The burden of establishing that the evidence preponderates otherwise is on
petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Petitioner has
failed to carry his burden.
III
4 On appeal, petitioner also claims that his attorneys were ineffective for failing
to attempt to suppress a “confession” made in the presence of law enforcement
authorities. He insists that the state had in its possession a statement documenting
a telephone call made from the “CID office” wherein petitioner confided to his
mother that he had “messed up.” Petitioner argues that this statement implicated
his constitutional rights, and trial counsel were deficient in failing to attempt to
suppress it. However, this issue was not presented in the petition for post-
conviction relief. Further, the statement is not in the record before this Court. We,
therefore, decline to consider this as this Court is not at liberty to speculate as to the
contents of the statement. Nor will we speculate as to the impact the “confession”
had upon the state’s case for first degree murder. Moreover, petitioner has not
shown that a motion to suppress would have been successful. This issue is without
merit.
For these reasons, the judgment of the trial court is affirmed.
JOE G. RILEY, JUDGE
CONCUR:
GARY R. WADE, PRESIDING JUDGE
JERRY L. SMITH, JUDGE