State v. Kenneth Clay

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED AUGUST SESSION, 1997 December 2, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

KENNETH LEE CLAY, ) C.C.A. NO. 02C01-9610-CC-00323 )

Appe llant, )

) LAKE COUNTY

)

V. )

) HON. JOE G. RILEY, JR., JUDGE STATE OF TENNESSEE, )

)

Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

LANCE E. WEBB JOHN KNOX WALKUP P.O. Box 26 Attorney General & Reporter Union City, TN 38261 CLINTON J. MORGAN

Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

C. PHILLIP BIVENS

District Attorney General

JOHNNY VAUGHN

Assistant District Attorney General 115 Ea st Marke t

P.O. Box E

Dyersburg, TN 38025

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

Petitioner, Kenneth Lee Clay, appeals the trial court’s denial of his petition for post-conviction re lief. On July 20, 1994, Petitioner was convicted of two counts each of burg lary an d theft o f prope rty follow ing a ju ry trial in the C ircuit Court of Lake County. He was sentenced to four (4) years for each co unt, with counts one (1) and tw o (2) to be served concurrently and counts three (3) and four (4) to be served concurrently. Counts one (1) and two (2) were to be served consecu tive to the s enten ces im pose d in counts three (3) and four (4), for a total sentence of eight (8) years. Petitioner c ontend s that he w as den ied his Sixth Amendment right to the effective assistance of counsel because of Counsel’s: (1) failure to present an alibi de fense; (2 ) failure to exercise peremptory challenges during voir dire of the jury; (3) deprivation of Petitioner’s right to testify; and (4) failure to appeal the issue of consecutive sentencing. We affirm the judgment of the trial cou rt.

In determining whether counsel provided effective assistance at trial, the court must decide whether counsel’s performance was within the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at 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 produ ce a reliab le result. Strickland v. Washington, 466 U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper v. State, 849 S.W.2d

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744, 747 (T enn. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t, but for cou nsel’s unreason able error, the fact finder w ould have had re ason able doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable probab ility must be “su fficient to undermine confidence in the outcome .” Harris v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewing trial cou nsel’s action s, this co urt sho uld no t use th e ben efit of hindsight to second-guess trial strategy and criticize cou nsel’s tactic s. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at the time they were made in light of all facts and circumstances. Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.

The Petitioner called trial counsel to testify at the evidentiary hearing.

Counsel was ap pointed to repres ent Petition er for cha rges of b urglary an d theft arising out of two separate incidents. One of the burglaries was committed on January 6, 1994, and the second burglary occurred on Feb ruary 20, 1 994. Bo th of the theft charges were felonies because the amount stolen was over five hundred dollars ($500.00). The first jury trial on these charges against Petitioner ended in a mistrial, b ut he wa s convicte d of all cha rges at the secon d trial.

Counsel stated that he initially met with Petitioner briefly on the day he was appointed, and that he and his investigator met with the Petitioner on later dates. During those meetings, they discussed Petitioner’s defense and any alibi witnesses he named. A plea offer was made to Petitioner, and both the investigator and coun sel talked to Petitioner re garding the terms and

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ramifications of the offer. The offer made by the District Attorney’s office was four (4) years fo r each charg e, all sentences to run c oncu rrently b ut con secu tive to all prior sentences. Coun sel did not rec all any other offers be ing made to Petitioner. Trial counsel obtained c opies of statements given to the police regarding the burglaries. From the time counsel was appointed to the time of trial, he and h is investigato r met with the Petition er severa l times.

The alibi witness es Petition er nam ed were subpo enaed for the first trial, and counsel spoke with each of them. All three of the w itness es co uld not be of any help to Petitioner because of the time frame in which the burglary occurred. W hile all of them had been with the Petitioner earlier in the evening on the night of the burglary, they did not kn ow an ything o f his wh ereab outs fro m tha t time u ntil the next day. Counsel decid ed tha t the witn esse s wou ld not h elp Pe titioner’s defense, but would hurt him and did not call them to testify. Because of this, these witnes ses w ere no t subp oena ed for th e sec ond tria l. Counsel discussed with Petitioner his right to testify at both trials, but recommended that he not testify due to his prior record. The final decision was left to the Petitioner, and he chose not to testify on both occasions.

Counsel stated that jury selection was very important in both trials, and that he exerc ised three of his pere mptory challeng es at the s econd trial. Wh ile one of the members of the jury which convicted Petitioner had previously worked at the store that was robbed, counsel personally knew the juror and “didn’t feel like that would h ave ma ttered to he r.” Wh ile cou nsel co uld not specifically recall if he asked the juror if she could be unbiased, the Petitioner did not object to her being a juror. When questioned regarding his cross-examination of the Petitioner’s live-

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in girlfriend, whose testimony at the second trial contradicted her testimony from the first trial, counsel stated that he cross-examined her and “tried at some point to get her o n line with the secon d burgla ry . . . because she had to me conveyed a wrong statement to the jury. I can’t remember exactly what it was but I thought she had c orrected it, but I doubt if the jury . . . knew w hat was ha ppening.”

Lloyd Price, a purported alibi witness for the Petitioner, testified that he was subpoenaed to the first trial, but he did not rem emb er talkin g to Pe titioner’s coun sel. Price c ould n ot reca ll being with Pe titioner on January 6, 1994. He stated tha t he had been d rinking tha t night.

Petitioner testified that h e could n ot recall m eeting w ith his trial counsel, but he did meet with the investigator. He gave the investigator the names of potential alibi witnesses for the first burglary of Janu ary 6, 1994. At another meeting, the investigator discussed the implications of the plea agreement offer with him, but he did not understand what he would have been pleading guilty to as counsel did not explain it to him. Petitioner later discussed anothe r plea ag reeme nt offer with the investigator in which he was offered a 1.5 year senten ce for a guilty plea, but it was not p roperly exp lained to h im.

At the evidentiary hearing, Petitioner recalled tha t his alibi witnesses we re subpoenaed for the first trial, but that counsel would not call them to testify because counsel said, “[T]hey’ll hurt you more than they can help you.” Petitioner did not ask counsel to subpoena these witnesses for the se cond trial. Petitioner stated that wh ile he d id not fully understand the plea agreement offers, he would not have pled guilty regardless what the offer wo uld ha ve bee n. W hile

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Petitioner claimed he wanted to testify at trial, he was advised that his criminal record w ould be brough t up and felt pressu red not to testify.

Petitioner recalled the juror who had worked at Piggly Wiggly, the site of the burglary. He stated that he mentioned this fact to trial counsel, but counsel replied that she would be a good juror. Petitioner never specifically requested counsel to strike the wom an from the jury pane l. Follow ing the convic tion in the second trial, Petitioner te stified that trial coun sel ne ver con sulted with him regarding any possible issues for appeal, nor did he specifically suggest any issues fo r appea l.

Upon review of the record, including Petitioner’s presentence report and transcript from h is second trial, this court finds that the Petitioner was not denied the effective assistance of counsel. In a written memorandum, the trial judge found that the Petitioner had failed to establish that he was deprived of effective assistance of counsel. We conclude that the evidence does not preponderate agains t these find ings of the trial court.

In his brief, P etitione r also re fers to c ouns el’s failur e to ad equa tely prepare for trial. From the testimony of trial coun sel, his pre paration was su fficient to provide Petitioner with effective representation. As the judge correctly pointed out in his order denying the petition, there has been no showing that counsel could have d one a nything else in tr ial prep aration . On th e issue of cou nsel’s failure to call alibi witnesses, counsel interviewed and subpoenaed all witnesses which Petitioner id entified. Furthermore, the alibi witness which Petitioner called to testify at the post-conviction hearing could not recall seeing Petitioner at all on

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the night in question and had been drinking that night. On the issue of alibi witnesses, a petitione r is not entitled to any relief “unless he can produce a material witness who (a) could have been found by a reasonable investigation and (b) would have testified favora bly in support of his de fense if called.” Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990). Petitioner has clearly not me t that require ment.

Petitioner also co ntend ed the cross -exam ination of one of the S tate’s witnesses, his live-in girlfriend, was an example of ineffective assistance of coun sel. While Petitioner claims th at her testimony at the second trial was inconsistent with that of the first trial, Petitioner failed to provide this cou rt a transcript of the girlfriend ’s testimo ny from th e first trial. While it does appear from counsel’s cro ss-examination during the second trial that there were some contradictions in the g irlfriend’s testim ony, co unse l did atte mpt to impe ach h er in this regard and to clarify the testimony at the second trial. Petitioner has failed to show any prejudice.

Petitione r’s contentions reg arding the failure to exe rcise perem ptory challenges also are without merit. Petitioner and counsel specifically discussed the potential juror’s prior employment at the store that was burglarized, and counsel told Pe titioner th at he b elieved she w ould b e a go od juror. Counsel’s decision was based upon his personal knowledge and was made as a tactical decision. This court shou ld not s econ d-gue ss trial co unse l’s tactica l and s trategic choices unless those choices were uninformed because of inadeq uate preparation. Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82). In any event, Petitioner did not specifically request that this juror be challenged.

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On the issue of his failure to testify, Petitioner contends that counsel impro perly insisted that he not testify. There were two se parate trials in th is matter, and on both occ asions P etitioner wa s advised of his right to testify and the fact that his prior criminal record would probably be brought up by the State for impe achm ent pu rpose s. On b oth oc casio ns, Pe titioner m ade th e final decision not to te stify, and coun sel’s ad vice that Petitioner not testify was a tactical choice. While a different strategy might have been employed by counsel in this regard, counsel may not be deemed to be ineffective for this reason alone. See William s v. State, 599 S.W .2d 276 , 280 (T enn. C rim. App . 1980).

The final claim o f Petitioner is that counsel failed to raise the issue of consecu tive sente ncing in his dir ect ap peal. T here w as little te stimony elicited from coun sel on this m atter at th e pos t-conv iction h earing , but it is clear from the record that consecutive sentences are justified in Petitioner’s case. At the sentencing hearing, Petitioner was found to be (1) a professio nal criminal who knowin gly devoted himself to criminal acts as a major source of livelihood, and (2) an offender w hose reco rd of crimina l activity was extensive. Tenn. Code Ann. § 40-35-115(b)(1) and (2 ). In add ition, Pe titioner’s pre-sentence report indicated that he has a nearly non-existent record of employment since his eighteenth birthday. As trial counsel felt Petitioner met the criteria for consecutive sentencing, counsel did not raise it as an issue on appeal. There is no requirement that counsel raise a non-frivolous issue on appeal if, as a matter of professional judgment, counsel feels the issue should not be addres sed. See Porte rfield v. State, 897 S.W .2d 672, 678 -79 (Tenn . 1995) cert. denied, 116 S.C t. 385 (19 95); State v. Draper, 800 S.W .2d 489 , 498 (T enn. C rim. App . 1990).

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A thorough review of the record reflects that the trial court properly denied Petitione r’s post-co nviction pe tition. W e affirm the judgm ent of the tria l court.

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THOMAS T. W OODALL, Judge

CONCUR:

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DAVID G. HAYES, Judge

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JERRY L. SMITH, Judge