State v. David Hassell

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 13, 1997
• Docket: 02C01-9611-CR-00396
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER 1997 SESSION FILED November 13, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk DAVID HASSELL, ) ) C.C.A. No. 02C01-9611-CR-00396 Appellant, ) ) Shelby County V. ) ) Honorable W . Fred Axley, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

Elbert E. Edwards, III John Knox Walkup Attorney at Law Attorney General & Reporter 46 North Third Street, Suite 824 Memphis, TN 38103 Elizabeth B. Marney Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

William L. Gibbons District Attorney General

C. Alanda Horne Judson W. Phillips P. T. Hoover Assistant District Attorneys General 201 Poplar Avenue, 3rd Floor Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge OPINION

The appellant, David Hassell, was convicted by a jury of first degree

murder. He was sentenced to life imprisonment. On direct appeal we affirmed

his conviction. He then filed a petition for post-conviction relief alleging that he

received ineffective assistance of counsel. After a hearing, the trial court denied

the petition, finding that the appellant had failed to prove any of the allegations in

his petition. He appeals the dismissal of his petition. Upon review, we affirm.

The appellant contends that his trial counsel was ineffective for failing to

adequately investigate his case. Specifically, he contends that his trial counsel

only briefly discussed his case with him, failed to contact his witnesses, and

erroneously advised him not to testify at trial.

In order for the appellant to be granted relief on the grounds of ineffective

assistance of counsel, he must establish that the advice given or the services

rendered were not within the competence demanded of attorneys in criminal

cases and that, but for his counsel’s deficient performance, the result of his trial

would have been different. Strickland v. Washington, 466 U.S. 668 (1984).

The presumption is that the attorney rendered effective assistance, and the

burden is on the appellant to prove both that the assistance was ineffective and

that such ineffectiveness caused the appellant to suffer prejudice. Hartman v.

State, 896 S.W.2d 94, 104 (Tenn. 1995). In a post-conviction proceeding an

appellant’s uncorroborated testimony is insufficient to carry this burden of proof.

State v. Kerley, 820 S.W.2d 753, 757 (Tenn. Crim. App. 1991).

At the post-conviction hearing, a sworn affidavit from the appellant’s trial

counsel was introduced into evidence.1 This affidavit recounts the actions he

took in preparation for the appellant’s trial. Also, his trial attorney’s wife testified

1 The appellan t’s trial counsel died pr ior to the post-conv iction hearing. Th e appellant, however, had filed a complaint against his counsel with the Board of Professional Responsibility. The sworn affidav it is the attorney’s respon se to the appellant’s co mplaint.

-2- that she assisted him in preparing for the appellant’s trial. 2 Finally, the

prosecuting attorney testified. All of these witnesses indicate that the appellant’s

attorney engaged in extensive discovery. Although the appellant apparently felt

animosity toward his attorney, the attorney adequately represented the

appellant’s best interest at trial. We find the appellant’s allegations

unsubstantiated and questionable.

The state had substantial evidence against the appellant. The record

before us reveals that the appellant’s counsel performed effectively. The

appellant has failed to carry his burden. Accordingly, the judgment of the trial

court is affirmed.

________________________________ PAUL G. SUMMERS, Judge

2 Trial counse l’s wife is a licensed attorney.

-3- CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ DAVID G. HAYES, Judge

-4-