State v. Johnny Perry

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 10, 1997
• Docket: 02C01-9605-CR-00160
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1997 SESSION FILED June 10, 1997

JOHNNY PERRY, ) Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellant, ) C.C.A. No. 02C01-9605-CR-00160 ) vs. ) Shelby County ) STATE OF TENNESSEE, ) Honorable L.T. Lafferty, Judge ) Appellee. ) (Post-Conviction) )

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON, JR. JOHN KNOX WALKUP Public Defender Attorney General & Reporter

WALKER GW INN (appeal) M. ALLISON THOMPSON Assistant Public Defender Assistant Attorney General Criminal Justice Division KEVIN CHILDRESS (hearing) 450 James Robertson Parkway Assistant Public Defender Nashville, TN 37243-0493 201 Poplar, Second Floor Memphis, TN 38103 JOHN PIEROTTI District Attorney General

KAREN COOK Asst. District Attorney General 201 Poplar, Third Floor Memphis, TN 38301

OPINION FILED: ____________________

AFFIRMED PURSUANT TO RULE 20

CURWOOD WITT JUDGE OPINION

The petitioner, Johnny Perry, appeals the Shelby County Criminal

Court's denial of post-conviction relief. The petitioner is presently serving a 15-year

sentence in the Tennessee Department of Correction for his 1992 conviction of

second degree murder. That conviction was affirmed by this court in 1994. State

v. Johnny Perry, No. 02C01-9307-CR-00149 (Tenn. Crim. App., Jackson, Sept. 28,

1994), perm. app. denied (Tenn. 1995). In his post-conviction petition, the petitioner

alleged he was denied the effective assistance of counsel in this prosecution. In a

thoughtful and well-reasoned opinion, Judge L.T. Lafferty dismissed the petitioner's

post-conviction claim after counsel was appointed and a hearing was held, finding

the petitioner failed to carry his burden of proving his trial counsel's alleged

ineffectiveness. On appeal, the petitioner contends the trial court erred in this

determination. Following a thorough review of the record, we affirm the judgment

of the lower court pursuant to Rule 20 of the rules of this court.

At the hearing, the petitioner testified on his own behalf. Thomas

Buford, the petitioner's trial counsel, and James M. Lammey, Jr., the assistant

district attorney general who prosecuted the petitioner's second degree murder

case, testified for the state. The testimony of the petitioner, on one hand, and

Messrs. Buford and Lammey, on the other hand, differed substantially. The trial

court's findings reflect conclusions that the testimony of trial counsel and the

prosecutor was believed over the testimony of the petitioner, and there was no

constitutional deficiency in the assistance provided by trial counsel. The evidence

certainly does not preponderate against the lower court's finding. See Manning v.

State, 883 S.W.2d 635, 637 (Tenn. Crim. App. 1994). Likewise, we find no error of

law in the lower court's determination.

Accordingly, we affirm the judgment of the trial court pursuant to Rule

20 of the Rules of the Court of Criminal Appeals. _______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ JOSEPH B. JONES, PRESIDING JUDGE

_______________________________ GARY R. WADE, JUDGE