IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED May 25, 1999
Cecil Crowson, Jr. FREDDIE L. POLLARD, ) Appellate Court Clerk ) Appellant, ) No. 02C01-9802-CR-00042 ) ) Shelby County v. ) ) Honorable John P. Colton, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
Robert B. Gaia John Knox Walkup 100 N. Main Building Attorney General of Tennessee Suite 3201 and Memphis, TN 38103 Douglas D. Himes Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493
William L. Gibbons District Attorney General and James Challen Assistant District Attorney General 201 Poplar Avenue - 3rd Floor Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Freddie L. Pollard, appeals as of right from the
Shelby County Criminal Court’s denial of his petition for post-conviction relief. The
petitioner seeks relief from his 1993 conviction for first degree murder, for which he
received a life sentence. This court affirmed the conviction in State v. Freddie L.
Pollard, No. 02C01-9306-CR-00129, Shelby County (Tenn. Crim. App. July 6, 1994).
The petitioner now contends that he received the ineffective assistance of counsel
because his trial attorney (1) failed to put on a defense, (2) failed to call the petitioner
as a witness at trial, and (3) failed to present witnesses at trial who were at the scene of
the incident. We affirm the trial court’s denial of relief.
At the evidentiary hearing, the petitioner testified that his attorney did not
advise him of anything during the trial and that his attorney did not investigate his case.
He said his attorney visited him once or twice for fifteen minutes before the trial. He
said he was unaware of any motions filed by his attorney on his behalf. He said the
state never offered a plea bargain. He admitted that he shot the victim, but he said he
believed the defense of provocation was available because the victim threatened to kill
him. He testified that before this offense, he had no criminal record. He stated that he
thought his attorney should have investigated or interviewed ten to twenty witnesses
who were present at the shooting.
On cross-examination, the petitioner stated that he did not expect to be
acquitted, but he thought he would receive a lesser sentence. He said he wanted his
attorney to cross-examine the state’s witnesses regarding their backgrounds, but he
admitted that he did not know how this could have helped his case. He said his
attorney should have investigated the victim’s criminal history, but he did not know if it
2 would have affected the outcome of the case. He said he thought his attorney should
have offered a plea bargain, but he admitted that the state did not offer one.
The petitioner’s attorney testified that he received open-file discovery from
the district attorney’s office. He said he copied and reviewed all of the witness
statements. He said the petitioner never denied shooting the victim. He stated that the
state’s only offer was life in prison, which was the maximum punishment for which the
petitioner was eligible. He said the petitioner never provided the names of any
witnesses that could have exonerated him, nor did the petitioner indicate that he
wanted him to investigate any specific areas of the case. He stated that his theory of
defense was that it was a case of second degree murder.
The trial court found that the petitioner received the effective assistance of
counsel and denied the post-conviction petition. The trial court stated as follows:
There is no proof that counsel did not investigate the case and pursue all leads given to him by the petitioner. . . . Counsel pursued all reasonable defenses that the facts justified. . . .
The petitioner contends that he received the ineffective assistance of
counsel because his trial attorney did not put on a defense, call the petitioner as a
witness, or call witnesses who were at the scene of the offense. The state contends
that the trial court correctly determined that the petitioner received the effective
assistance of counsel. We agree.
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel's
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
3 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874 (1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert.
denied, 444 U.S. 944 (1979). Also, in reviewing counsel's conduct, a "fair assessment
of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time." Strickland, 466
U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)
(counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a
claim of ineffective assistance. Deference is made to trial strategy or tactical choices if
they are informed ones based upon adequate preparation. See Hellard, 629 S.W.2d at
9; DeCoster, 487 F.2d at 1201.
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney's conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
4 The burden is on the petitioner in the trial court to prove the factual
allegations that would entitle him to relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (1995). On appeal, we are bound by the trial court’s findings
of fact unless we conclude that the evidence in the record preponderates against those
findings. Black v.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION FILED May 25, 1999
Cecil Crowson, Jr. FREDDIE L. POLLARD, ) Appellate Court Clerk ) Appellant, ) No. 02C01-9802-CR-00042 ) ) Shelby County v. ) ) Honorable John P. Colton, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant: For the Appellee:
Robert B. Gaia John Knox Walkup 100 N. Main Building Attorney General of Tennessee Suite 3201 and Memphis, TN 38103 Douglas D. Himes Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493
William L. Gibbons District Attorney General and James Challen Assistant District Attorney General 201 Poplar Avenue - 3rd Floor Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The petitioner, Freddie L. Pollard, appeals as of right from the
Shelby County Criminal Court’s denial of his petition for post-conviction relief. The
petitioner seeks relief from his 1993 conviction for first degree murder, for which he
received a life sentence. This court affirmed the conviction in State v. Freddie L.
Pollard, No. 02C01-9306-CR-00129, Shelby County (Tenn. Crim. App. July 6, 1994).
The petitioner now contends that he received the ineffective assistance of counsel
because his trial attorney (1) failed to put on a defense, (2) failed to call the petitioner
as a witness at trial, and (3) failed to present witnesses at trial who were at the scene of
the incident. We affirm the trial court’s denial of relief.
At the evidentiary hearing, the petitioner testified that his attorney did not
advise him of anything during the trial and that his attorney did not investigate his case.
He said his attorney visited him once or twice for fifteen minutes before the trial. He
said he was unaware of any motions filed by his attorney on his behalf. He said the
state never offered a plea bargain. He admitted that he shot the victim, but he said he
believed the defense of provocation was available because the victim threatened to kill
him. He testified that before this offense, he had no criminal record. He stated that he
thought his attorney should have investigated or interviewed ten to twenty witnesses
who were present at the shooting.
On cross-examination, the petitioner stated that he did not expect to be
acquitted, but he thought he would receive a lesser sentence. He said he wanted his
attorney to cross-examine the state’s witnesses regarding their backgrounds, but he
admitted that he did not know how this could have helped his case. He said his
attorney should have investigated the victim’s criminal history, but he did not know if it
2 would have affected the outcome of the case. He said he thought his attorney should
have offered a plea bargain, but he admitted that the state did not offer one.
The petitioner’s attorney testified that he received open-file discovery from
the district attorney’s office. He said he copied and reviewed all of the witness
statements. He said the petitioner never denied shooting the victim. He stated that the
state’s only offer was life in prison, which was the maximum punishment for which the
petitioner was eligible. He said the petitioner never provided the names of any
witnesses that could have exonerated him, nor did the petitioner indicate that he
wanted him to investigate any specific areas of the case. He stated that his theory of
defense was that it was a case of second degree murder.
The trial court found that the petitioner received the effective assistance of
counsel and denied the post-conviction petition. The trial court stated as follows:
There is no proof that counsel did not investigate the case and pursue all leads given to him by the petitioner. . . . Counsel pursued all reasonable defenses that the facts justified. . . .
The petitioner contends that he received the ineffective assistance of
counsel because his trial attorney did not put on a defense, call the petitioner as a
witness, or call witnesses who were at the scene of the offense. The state contends
that the trial court correctly determined that the petitioner received the effective
assistance of counsel. We agree.
Under the Sixth Amendment, when a claim of ineffective assistance of
counsel is made, the burden is upon the petitioner to show (1) that counsel's
performance was deficient and (2) that the deficiency was prejudicial in terms of
rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
3 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied, as well, to the right to
counsel under Article I, Section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874 (1989).
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
decided that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973), cert.
denied, 444 U.S. 944 (1979). Also, in reviewing counsel's conduct, a "fair assessment
of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time." Strickland, 466
U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)
(counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a
claim of ineffective assistance. Deference is made to trial strategy or tactical choices if
they are informed ones based upon adequate preparation. See Hellard, 629 S.W.2d at
9; DeCoster, 487 F.2d at 1201.
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney's conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
4 The burden is on the petitioner in the trial court to prove the factual
allegations that would entitle him to relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (1995). On appeal, we are bound by the trial court’s findings
of fact unless we conclude that the evidence in the record preponderates against those
findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect,
the petitioner, as the appellant, has the burden of illustrating how the evidence
preponderates against the judgment entered. Id.
First, the petitioner claims that his attorney was ineffective for failing to put
on a defense. The petitioner’s attorney testified that in light of the petitioner’s
admission to the shooting, he believed the best strategy was to present a theory of
second degree murder. This represents a tactical decision by the petitioner’s attorney
that will not be second-guessed by this court. Hellard, 629 S.W.2d at 9. Furthermore,
“when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless . . ., counsel’s failure to pursue those investigations
may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691, 104 S. Ct.
at 2066. The petitioner has presented no evidence to show that his attorney was
deficient or that he was prejudiced.
Next, the petitioner claims that his attorney was ineffective for failing to
call him as a witness. The petitioner has offered no evidence to show that he
requested to testify at trial or that his attorney interfered with that right. This issue is
without merit.
Finally, the petitioner claims that his attorney was ineffective for failing to
call witnesses who were at the scene of the shooting. Although the petitioner testified
that there were ten to twenty people who witnessed the shooting, he has not presented
any testimony by any witness to the shooting. See Black v. State, 794 S.W.2d 752, 757
5 (Tenn. Crim. App. 1990) (holding that petitioner should have the previously uncalled
witness testify at the evidentiary hearing). In fact, the petitioner agreed that this court’s
recitation of the facts on direct appeal was basically correct. Furthermore, his attorney
testified that the petitioner never provided him with a list of witnesses that could have
exonerated the petitioner. We conclude that the petitioner has failed to show that the
record preponderates against the trial court’s judgment that he received the effective
assistance of counsel.
In consideration of the foregoing and the record as a whole, we affirm the
trial court’s denial of the petition for post-conviction relief.
__________________________ Joseph M. Tipton, Judge
CONCUR:
__________________________ Gary R. Wade, Presiding Judge
__________________________ Thomas T. Woodall, Judge