State v. Creekmore

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED APRIL SESSION, 1998 August 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CR-00535 )

Appellee, )

)

) SCOTT COUNTY

VS. )

) HON. LEE ASBURY

ERIC CREEKMORE, ) JUDGE )

Appe llant. ) (Post-C onviction Relie f - Vo lunt ary ) Manslau ghter)

FOR THE APPELLANT: FOR THE APPELLEE:

MAX E. HUFF JOHN KNOX WALKUP 115 Litton Road Attorney General and Reporter Oneida, TN 37841 TODD R. KELLEY

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243

WILLIAM PAUL PHILLIPS

District Attorney General P. O. Box 10

Huntsville, TN 37756

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

Appellant Eric C reekm ore ap peals the trial c ourt's d enial o f his petition for post-conviction 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 coun sel.

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

I. FACTUAL BACKGROUND

On July 8, 1996 Appellant plea ded guilty in the Sco tt County Crim inal Court to voluntary manslaughter. He agreed to be sentenced as a Range III persistent offender to fifteen years in carce ration w ith the Tennessee Department of Correction. On No vemb er 17, 19 96, App ellant filed a pro se petition for p ost- conviction relief. This petition was amended by appointed counsel on March 26, 1997. Following a hearing, the trial court dismissed Appellant's petition on August 20, 1997.

Specifically, Appellant alleges the following deficiencies in defense counsel's representation:

(1) Failure to keep confiden tial the locatio n of the kn ife used to kill Mr. Wayne Dolan;

(2) failure to with draw from representing Appellant once counsel became aware that he could be a witness due to his involvement in the chain of custody of the knife;

(3) failure to file a motion to suppress Appellant's statements;

(4) failure to insist that Appe llant refuse the State's p lea offer and opt to g o to trial.

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II. POST-CONVICTION RELIEF Appellant contends that the trial court erred in denying his petition for p ost-

convic tion relie f base d upo n the in effective assista nce o f coun sel.

In post-conviction proceedings, the Appellant bears the burden of proving the allegations raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 4 0-30-21 0(f). See also Sco tt v. State, 936 S.W.2d 271, 272 (Tenn. Crim. App. 1996). Moreover, the trial court's findings of fact are conclusive on appeal unless the evidence prepond erates a gainst the judgm ent. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

EFFECTIVE ASSISTANCE OF COUNSEL Appe llant's only contention o n this a ppea l is that th e trial co urt erre d in denying his petition for post-conviction relief based upon Appellant's allegation that he receive d ineffe ctive as sistan ce of c ouns el.

The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the right. . . to have the assista nce o f coun sel for h is defens e." U.S. C onst. a men d. 6. Sim ilarly, the Tennessee Constitution guarantees an ac cuse d "the rig ht to be heard by him self and his co unsel. . . " Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme Court articulated a two-pro ng test for c ourts to em ploy in eva luating 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 two-pa rt test in Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began its analys is by no ting tha t "The benc hma rk for jud ging a ny claim of ineffectiveness must be whether counsel's conduct so undermined the proper

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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 proceeding, the Appellant bears the burden of establishing (1) deficient representation of counsel and (2) prejudice resulting from that deficien cy. Strickland, 104 S.C t. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996 ). App ellant m ust pro ve that c ouns el's rep resen tation fe ll below an objective standard of reaso nablen ess. Strickland, 104 S.C t. at 2064. Th is Court is not requ ired to con sider the tw o prong s of Strickla nd in any particular 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 court need not consider the other." Id. With reg ard to counsel's deficient performance, the proper m easure is that of reaso nablen ess un der preva iling profes sional no rms. Id. (citing Strickland, 104 S.C t. at 2065). Put differently, counsel's performance is required to be "within the rang e of comp etence dem anded of a ttorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn . 1975); Harris , 947 S.W.2d at 163. Respecting the prejud ice prong of Strickland, the Appellant must establish that "there is a reaso nable p robability that, but for counsel's unprofessional errors, the result of the procee ding would h ave been d ifferent. A reas onab le prob ability is a probability 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 e ffort be m ade to e liminate the distorting effects of h indsight, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to evaluate the conduct from coun sel's perspe ctive at the tim e.'" Goad v. State, 938

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S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 20 65). The m ere failure of a pa rticular tactic or strate gy doe s not p er se e stablis h unre ason able representation. Id. at 369 . How ever, th is Cou rt will defer to counsel's tactical and strategic choices only where those choices are informed ones predicated upon adequate preparation. Goad, 938 S.W .2d at 369 ; Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1 982).

Regarding Appellant's first alleged deficiency, he specifically complains that Attorney Charlie Allen, Jr., rendered inadequate representation by (1) discovering the location of the knife used to kill the victim; (2 ) having th e knife brought to Allen's office; and (3) surrendering the knife to authorities. Both the State and Ap pellant ag ree that once Attorney Allen was in possession of the knife, he was bo th legally an d ethically o bliged to surrender it to police. H owever, Appellant contends that his attorne y perform ed deficie ntly by taking steps to procure the knife. Appellant claims that by procuring the weapon and giving it to the authorities, counsel eviscerated any defense which Appellant may have had and weakened Appellant's bargaining position in plea negotiations.

Although the Ten nesse e Cod e of Professional Responsibility and the standards demanded of criminal defense attorneys are not necessarily co- extensive, the Code of Professional Responsibility does offer guidan ce as to the approp riate standards of professionalism demanded in criminal cases. DR 7- 102(A) provides in part, "(A) In the representation of a client, a lawyer s hall not: (3) Conc eal or k nowin gly fail to disclose that which the lawyer is required by law to reveal." DR 7-1 02(A)(3).

Attorney Allen testified at the post-conviction hearing that Appellant "prob ably told me more lies. . . than any other client I've ever had." Allen stated that App ellant said, b oth in his statements to police and in his initial statem ents

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to Mr. Allen, that Wayne Dolan had drawn the knife on Appellant and that Appellant took the knife from Dolan and s tabbe d him . More over, A ppella nt told the police that after stabbing Dolan, Appellant threw down the knife b efore he left the tavern parking lot where the stabbing occurred. According to Mr. Allen, he explained to Appellant that if the knife wa s, in fact, Do lan’s, then locating th e knife would strengthen Appellant's case. This prompted Appellant to reveal that he had hidden the knife near a water heater in Charlie Stephens' home in K entucky. Mr. Allen telephoned Charlie Stephens and asked him to look for a kn ife in his basement behind the water heater. Because of rumors that the victim had human immunodeficiency virus (HIV), Mr. Allen directed Stephens to wear gloves and to place the knife into a plastic ba g and s eal it. Steph ens co mplied with Attorney Allen's request to bring the knife to Allen's office. Mr. Allen telephoned Detective Lewallen and told h im to com e and g et the knife .

Contradicting Mr. Allen's testimony, Appellant stated that Mr. Allen cussed Appellant and told App ellant that he knew that Appellant wa s lying. Therefore, Appe llant disclos ed the loc ation of the knife.

In its order dis missing Appella nt's petition, th e trial court c orrectly concluded that Mr. Allen did not perform deficiently by discovering the location of the knife and by having it brought to his office. Mr. Allen, operating under information given him by Appellant to the effect that the weapon was the victim's, made a reasonable strategic decision that turning over the knife to authorities would strengthen Appellant's case and buttress his self-defen se theory. Moreover, nothing in the record ind icates tha t the knife w as som ehow c rucial to the prosecution. Thus, Appellant has failed to demonstrate prejudice from counsel's action.

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Appe llant's second allegation of ineffective assistance of co unsel is that Mr.

Allen shou ld have withdrawn from representing Appellant once counsel became aware that he po tentially cou ld be a witn ess du e to his invo lveme nt in the chain of custody of the knife . DR 5-1 02(B) p rovides in p ertinent pa rt, "(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer. . . may be called as a witness. . . the lawyer may continue the representation until it is apparent that the testimony is or may be prejudicial to the client." DR 5-102(B). Attorney Allen testified that he was not concerned that he w ould ha ve been in the cha in of custo dy had the case proceede d to trial and had D etective Lewallen been called to testify. Hence, he saw no need to withdraw from rep resenting Appella nt. Moreover, it is significant that Mr. Allen discov ered th e loca tion of th e knife only be caus e App ellant to ld him where it was hidden. Ultim ately, Appellant and the prosecution agreed upon a plea bargain, thereby avoidin g trial. Thus, it is difficult to conclude that Appellant was, in any way, prejudiced by Mr. Allen's failure to withdraw.

Appellan t's third co mpla int is tha t Mr. Alle n sho uld ha ve filed a motio n to suppress Appellant's statements. Appellant claims that he was intoxicated at the time that he gave his statement. At the post-co nviction hearing, Appellant conceded that the police administered the Miranda warnings to him and that he signed a waiver of rights form before giving his statement. Be fore giv ing his statem ent, Appellant denied being intoxicated. Detective Randy Lewallen of the Scott Coun ty Sheriff's D epartm ent testified tha t when he too k App ellant's statem ent, Appellant informed Lewallen that he had been drinking but was not intoxicated. Detective Lewallen further testified that because Appellant "appeared to be on the verge of being intoxicated," Lewallen asked Appellant

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several questions to ensure that Appellant was thinking clearly. Lewallen then went forward with the interrogation.

Mr. Allen explained that he did not move to suppress Appellant's statement for two reasons . First, according to Allen, A ppellant advised him that he had been properly Mirandized. Second, Appellant's statement was helpful to the defense becau se App ellant's state ment in dicated th at he stabbe d the vic tim in self-defense. Indeed , Allen state d that had the case procee ded to trial, he w ould have liked for Appellant's statement to have been admitted into evid ence . This is a reaso nable tac tical decisio n, and w e will not sec ond-gu ess it.

Regarding Appellant's assertion that he was intoxicated when he gave h is statem ent, we emphasize that "[I]ntoxication or mental unsoundness is not alone sufficient to bar the introduction of statements made by an accused if the evidence also shows the accuse d was cap able of unde rstanding his rights." State v. Bell, 690 S.W .2d 879, 882 (Tenn. Crim . App. 1985 ).

Appe llant's final co mpla int is that Mr. Allen rendered ineffective assistance by coercing him into signing the plea agreement. Appellant contends that he did not sign the plea agreement freely, knowingly, and voluntarily. In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.C t. 366, 369-70, 88 L.Ed.2d 203 (1985), the United States Supreme Court held that the two-prong analysis of Strickland v. Washington for evaluating ineffective assistance of counsel claims applies to plea agreements. In order to satisfy the "prejudice" prong, the accused must demonstrate "that there is a reasonab le probability that, but for coun sel's errors, he wou ld not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 106 S.Ct. 366, 370.

Appellant testified at the hearing on his pe tition for post-c onviction relief that Mr. Allen neglected to explain all of his constitutional rights to him, but he

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could not recall which rights Allen failed to discuss. Upon being questioned by the court, Appellant stated that he rec alled th e cou rt advisin g him of all of h is rights befo re he en tered his g uilty plea.

Attorney Allen testified that he and Appellant discussed the different degrees of homicide and the various sentencing ranges. Allen averred that there was no ques tion tha t Appe llant un dersto od all that he and Appellant discussed. There is adeq uate p roof in th is reco rd that c ouns el did e xplain Appellant's rights. Moreover, Appellant conceded that the court had advised him of all of h is rights before he entered his plea . Base d on th is record, it is clear that Appellant's plea was entere d freely, voluntarily, and know ingly.

The judgm ent of the trial court dism issing Ap pellant's p etition for po st-

conviction relief is affirmed.

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JERRY L. SMITH, JUDGE

CONCUR:

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PAUL G. SUMMERS, JUDGE

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J. CURWOOD WITT, JR., JUDGE