IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED DECEMB ER SESSION, 1998 March 15, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
GLE N CL AYBO RN, ) C.C.A. NO. 02C01-9803-CR-00062 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. JAMES C. BEASLEY, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST -CON VICTIO N)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
WALKER GWINN DOUGLAS D. HIMES Assistant Public Defender Assistant Attorney General Criminal Justice Center, Suite 201 2nd Floor, Cordell Hull Building 201 Poplar Avenue 425 Fifth Avenu e North Memphis, TN 38103 Nashville, TN 37243
JOH N W. P IERO TTI District Attorn ey Ge neral
CHRIS MARSHBURN Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Glen Clayborn, appeals the order of the Shelby County
Criminal Court dismissing his petitio n for po st-con viction re lief. In this appe al,
Petitioner argues that his trial counsel was ineffective. After a careful review of the
record, w e affirm the judgm ent of the tria l court.
In August of 1994, Petitioner was found guilty of second degree murder and
reckless homicide for which he received an effective sentence of twenty-seven (27)
years. On Ju ne 10 , 1996 , this Co urt affirm ed his convic tions in his dire ct app eal,
State v. Glen D. Clayborne [sic], C.C.A. No. 02C01-9507-CR-00185, Shelby C ounty
(Tenn. Crim. App., Jackson, June 10, 1996), and th e suprem e court subs eque ntly
denied his application to ap peal on Jan uary 6, 1997. On May 1, 1997, Petitioner
filed a pro se post-conviction petition raising numerous issues. His appointed
counsel filed a n otice th at the p etition would not be amended on November 19,
1997. Following a hearing, the trial court denied his petition for post-con viction relief,
finding that Petitioner had received the effective assistance of counsel and that any
other problems complained of were a result of Petitioner’s own untruthfulness.
In this appeal, Petitioner specifically addresses only one allegation on the
ground of ineffe ctive as sistan ce of c ouns el: that his trial counsel failed to interview
two surprise witnesses. Although Petitioner purports to raise other issues through
implication, he do es no t supp ort thes e claim s with appropriate references to the
record or citations to authority, an d therefo re they are deem ed waive d. See Tenn.
Ct. Crim . App. R . 10(b); Te nn. R. A pp. P. 27 (a)(7).
-2- The pertinent facts to the case are that Petitioner shot and killed his girlfriend.
At the time of the shooting , Petitioner’s girlfriend wa s pregn ant with his baby. The
viable fetus died as the result of suffocatio n attributab le to the gu nshot. Petition er’s
defense was that the shooting was an accident. Prior to trial, counsel questioned
Petitioner in detail about whether he had abused his girlfriend, however, Petitioner
denied any such abuse. In fact, when counse l’s pretrial investigation uncovered a
prior beating with a bat, Petitioner said it never happened. Nonetheless, his trial
counsel filed a pretrial motion to exclude any evidence of prior abuse. This motion
was denied by the trial court. Trial counsel renewed his motion at the beginning of
trial but the motion was overruled. Petitioner’s trial couns el testified at th e post-
conviction hearing in part as follows:
I aske d Mr. C layborn in our discussion did he have any witness or did he -- since he wa s alleg ing tha t this was an acciden t, and I think that was the the ory of o ur cas e, I said do you know of anyone who w ould k now a ny spe cific incidents of harm that you’ve done to her so they co uld disprove that it was a n accide nt.
So we did discuss whether anyone knew whether he had been violent with her be fore. I thin k that is something we discu ssed in deta il.
Whether you ever b eaten th is lady befo re. W hether you’ve ever done any physical h arm to h er before . I said, if you have, I need to know. I think he denied it the wh ole time. He never sa id -- he always said I never did anything to her. And quite frankly I was quite surprised when it came up. . . . Becau se we h ad discu ssed it exte nsively. I mean, if we are g oing to have a theory of an accident, we better not have anything else that is going to prove that he’s pulled a gun on her before, that he’s beat her before, that he’s d one thing s before that was n ot an acc ident.
On the morning of trial, Petitioner’s trial counsel saw Jeanetta Holmes and
Marqu ita Jones outside of the courtroom and he questioned Petitioner about them.
-3- Trial counsel recalled that Petitioner may have mentioned one of the ladies as being
his ex-girlfriend. However, Petitioner gave no ind ication that the y could poss ibly
testify as to the prior abuse between Petitioner and the victim. Trial counsel believed
any objection to them testifying base d upo n lack o f notice was w ithout m erit. It is
well-established that the endorsement requirement of Tenn. Code Ann. § 40-17-106
is directive, rath er than m andato ry. See State v. Hutchinson, 898 S.W.2d 161, 170
(Tenn. 1994); State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992). At trial, Holmes and
Jones testified to prior instances of abuse between Petitioner and his girlfriend.
Specifically, one o f the witn esse s testifie d that P etitione r had p ulled a gun on the
victim two weeks prior to her death. Petitioner told his attorney at that time that their
testimony was not true.
Petitioner testified at the hearing that his trial counsel never discussed the
issue of prior abuse of the victim . Petition er state d that h e wou ld have told his
attorney about prior abuse if he had been asked. Petitioner did not tell his lawyer
that the victim had ob tained a protec tive order several years prior to the shooting.
Petitioner said that his trial counsel never asked him about a protective order, but
that again, he would have told him about it had he been asked.
The post-conviction court found the following:
Counsel also filed a Motion in Limine to preclude any testimony abou t mino r dom estic problems and an incident in which the petitioner/defendant pointed a pistol at the victim. [Trial cou nsel] testified that he kn ew of rumors of such incidents even tho ugh the petitioner/d efendant continued to tell him nothing had ever happened. Petitioner testified that he did no t tell [trial counsel] about a protective order ob tained agains t him by the vic tim because he as sum ed [trial c ouns el] wou ld find that out on his own. The Motion in Lim ine was denied pretrial and over couns el’s objectio n the pro of of the prio r acts were
-4- allowed into evidence. The petitioner charges that his attorney failed to investigate and interview the two witnesses who testified as to the prior incident. Counsel testified that he did not discover who the witnesses were until trial date when the State produced them and u p until that point the petitioner had denied that he had ever done anything to the victim and the re were no witnesses to say differen tly.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED DECEMB ER SESSION, 1998 March 15, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
GLE N CL AYBO RN, ) C.C.A. NO. 02C01-9803-CR-00062 ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. JAMES C. BEASLEY, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST -CON VICTIO N)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
WALKER GWINN DOUGLAS D. HIMES Assistant Public Defender Assistant Attorney General Criminal Justice Center, Suite 201 2nd Floor, Cordell Hull Building 201 Poplar Avenue 425 Fifth Avenu e North Memphis, TN 38103 Nashville, TN 37243
JOH N W. P IERO TTI District Attorn ey Ge neral
CHRIS MARSHBURN Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Glen Clayborn, appeals the order of the Shelby County
Criminal Court dismissing his petitio n for po st-con viction re lief. In this appe al,
Petitioner argues that his trial counsel was ineffective. After a careful review of the
record, w e affirm the judgm ent of the tria l court.
In August of 1994, Petitioner was found guilty of second degree murder and
reckless homicide for which he received an effective sentence of twenty-seven (27)
years. On Ju ne 10 , 1996 , this Co urt affirm ed his convic tions in his dire ct app eal,
State v. Glen D. Clayborne [sic], C.C.A. No. 02C01-9507-CR-00185, Shelby C ounty
(Tenn. Crim. App., Jackson, June 10, 1996), and th e suprem e court subs eque ntly
denied his application to ap peal on Jan uary 6, 1997. On May 1, 1997, Petitioner
filed a pro se post-conviction petition raising numerous issues. His appointed
counsel filed a n otice th at the p etition would not be amended on November 19,
1997. Following a hearing, the trial court denied his petition for post-con viction relief,
finding that Petitioner had received the effective assistance of counsel and that any
other problems complained of were a result of Petitioner’s own untruthfulness.
In this appeal, Petitioner specifically addresses only one allegation on the
ground of ineffe ctive as sistan ce of c ouns el: that his trial counsel failed to interview
two surprise witnesses. Although Petitioner purports to raise other issues through
implication, he do es no t supp ort thes e claim s with appropriate references to the
record or citations to authority, an d therefo re they are deem ed waive d. See Tenn.
Ct. Crim . App. R . 10(b); Te nn. R. A pp. P. 27 (a)(7).
-2- The pertinent facts to the case are that Petitioner shot and killed his girlfriend.
At the time of the shooting , Petitioner’s girlfriend wa s pregn ant with his baby. The
viable fetus died as the result of suffocatio n attributab le to the gu nshot. Petition er’s
defense was that the shooting was an accident. Prior to trial, counsel questioned
Petitioner in detail about whether he had abused his girlfriend, however, Petitioner
denied any such abuse. In fact, when counse l’s pretrial investigation uncovered a
prior beating with a bat, Petitioner said it never happened. Nonetheless, his trial
counsel filed a pretrial motion to exclude any evidence of prior abuse. This motion
was denied by the trial court. Trial counsel renewed his motion at the beginning of
trial but the motion was overruled. Petitioner’s trial couns el testified at th e post-
conviction hearing in part as follows:
I aske d Mr. C layborn in our discussion did he have any witness or did he -- since he wa s alleg ing tha t this was an acciden t, and I think that was the the ory of o ur cas e, I said do you know of anyone who w ould k now a ny spe cific incidents of harm that you’ve done to her so they co uld disprove that it was a n accide nt.
So we did discuss whether anyone knew whether he had been violent with her be fore. I thin k that is something we discu ssed in deta il.
Whether you ever b eaten th is lady befo re. W hether you’ve ever done any physical h arm to h er before . I said, if you have, I need to know. I think he denied it the wh ole time. He never sa id -- he always said I never did anything to her. And quite frankly I was quite surprised when it came up. . . . Becau se we h ad discu ssed it exte nsively. I mean, if we are g oing to have a theory of an accident, we better not have anything else that is going to prove that he’s pulled a gun on her before, that he’s beat her before, that he’s d one thing s before that was n ot an acc ident.
On the morning of trial, Petitioner’s trial counsel saw Jeanetta Holmes and
Marqu ita Jones outside of the courtroom and he questioned Petitioner about them.
-3- Trial counsel recalled that Petitioner may have mentioned one of the ladies as being
his ex-girlfriend. However, Petitioner gave no ind ication that the y could poss ibly
testify as to the prior abuse between Petitioner and the victim. Trial counsel believed
any objection to them testifying base d upo n lack o f notice was w ithout m erit. It is
well-established that the endorsement requirement of Tenn. Code Ann. § 40-17-106
is directive, rath er than m andato ry. See State v. Hutchinson, 898 S.W.2d 161, 170
(Tenn. 1994); State v. Harris , 839 S.W.2d 54, 69 (Tenn. 1992). At trial, Holmes and
Jones testified to prior instances of abuse between Petitioner and his girlfriend.
Specifically, one o f the witn esse s testifie d that P etitione r had p ulled a gun on the
victim two weeks prior to her death. Petitioner told his attorney at that time that their
testimony was not true.
Petitioner testified at the hearing that his trial counsel never discussed the
issue of prior abuse of the victim . Petition er state d that h e wou ld have told his
attorney about prior abuse if he had been asked. Petitioner did not tell his lawyer
that the victim had ob tained a protec tive order several years prior to the shooting.
Petitioner said that his trial counsel never asked him about a protective order, but
that again, he would have told him about it had he been asked.
The post-conviction court found the following:
Counsel also filed a Motion in Limine to preclude any testimony abou t mino r dom estic problems and an incident in which the petitioner/defendant pointed a pistol at the victim. [Trial cou nsel] testified that he kn ew of rumors of such incidents even tho ugh the petitioner/d efendant continued to tell him nothing had ever happened. Petitioner testified that he did no t tell [trial counsel] about a protective order ob tained agains t him by the vic tim because he as sum ed [trial c ouns el] wou ld find that out on his own. The Motion in Lim ine was denied pretrial and over couns el’s objectio n the pro of of the prio r acts were
-4- allowed into evidence. The petitioner charges that his attorney failed to investigate and interview the two witnesses who testified as to the prior incident. Counsel testified that he did not discover who the witnesses were until trial date when the State produced them and u p until that point the petitioner had denied that he had ever done anything to the victim and the re were no witnesses to say differen tly. Had petitioner b een hone st with his attorney, such surprise witnesses could have been avoided. Once the State realized the defendant’s theory was going to be an accidental shooting those witnes ses b ecam e ma terial. The petitioner must bear the burden of lying to his attorney and being caught in said lie.
...
As has previously been stated, the defendant chose to lie to his attorney and as a result his attorney was not able to prope rly advise him and protect his rights. Counsel attempted to limit th e testim ony by arguin g a mo tion in limine about some of the incidents, but counsel cannot be held respo nsible when a defe ndan t fails to tru thfully confide in his attorne y.
In determining wheth er cou nsel p rovide d effec tive ass istanc e at trial, the court
must decid e whether counsel’s performance was within the range of competence
demanded of attorneys in criminal ca ses. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). To succeed on a claim that his counsel was ineffective a t trial, a
petitioner bears the burden of showing that his counsel made errors so serious that
he was not functioning as counsel as guaranteed under the Sixth Amendment and
that the deficient representation prejudiced the petitioner resulting in a failure to
produc e a reliable result. Strickland v. Washington, 466 U.S. 668, 693, 104 S. C t.
2052, 80 L. Ed . 2d 674 , reh’g denied, 467 U.S. 1267 (1984); Coop er v. State , 849
S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0).
To satisfy the second prong the petitioner must show a reason able pro bability that,
but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le
doubt regardin g petitione r’s guilt. Strickland, 466 U.S. at 695. This reasonable
-5- probab ility mus t be “su fficient to unde rmine confidence in the outcom e.” Harris v.
State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .
When reviewing trial counsel’s actions, this Court should not use the bene fit
of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982 ). Cou nsel’s allege d error s sho uld be judged at
the time they were made in light of all facts an d circum stance s. Strickland, 466 U.S.
at 690; see Cooper, 849 S.W.2d at 746.
In determ ining w hethe r this Petitioner has satisfie d thes e requ ireme nts, this
Court mus t give the findings of the trial court the weight of a jury verdict, and the
judgment of the trial court will not be reversed unless the evidence contained in the
record preponderates against the findings of fact made by the trial cour t. State v.
Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).
W e have re viewe d Petitio ner’s various claims and we find that Petitioner has
failed to present any evidence that shows that his attorney represented him in any
manner other than competently. We agree with the trial court’s findings. The
evidence contained in the record doe s not p repon derate again st the tria l court’s
finding tha t Petitioner re ceived the effective as sistance of couns el.
-6- Based on all the foregoing, we a ffirm the trial c ourt’s d ismiss al of Pe titioner’s
petition for p ost-con viction relief.
____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ GARY R. WA DE, Presiding Judge
___________________________________ JOHN EVERET T WILLIAMS, Judge
-7-