IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION FILED April 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk ROBERT L. HOWELL, ) ) C.C.A. NO. 02C01-9705-CR-00194 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM L. JOHNSON JOHN KNOX WALKUP 50 North Front St. Attorney General & Reporter Suite 1150 Memphis, TN 38103 CLINTON J. MORGAN Counsel for the State 425 Fifth Ave., North Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
GLEN BAITY Asst. District Attorney General 201 Poplar St., Suite 301 Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
Following a jury trial, the petitioner was convicted on October 22, 1992, of
felony murder. This Court affirmed his conviction on October 13, 1993, and the Supreme
Court denied his application to appeal on March 7, 1994.1 On April 11, 1996, the
petitioner filed a petition for post-conviction relief alleging ineffective assistance of
counsel. After a hearing on November 15, 1996, the trial court dismissed the petition.
The petitioner now appeals and argues that his petition should not have been dismissed.
After a review of the record and applicable law, we affirm the judgment of the court below.
We will briefly recite the facts surrounding the petitioner’s conviction. The
petitioner and his wife, Rose Howell, were estranged and Howell had been living with the
victim, Christopher Garlock. Evidence at trial revealed that the petitioner shot the victim
and took his wallet. The petitioner was convicted of felony murder and was sentenced
to life imprisonment.
In this post-conviction proceeding, the petitioner makes several allegations
of ineffective assistance against his trial counsel, Joseph Patterson. He alleges that
Patterson failed to interview alibi witnesses, failed to fully investigate his case, failed to
prepare an alibi defense, failed to fully prepare for trial, failed to suppress two of the
petitioner’s confessions, and failed to fully explain the petitioner’s right not to testify at
trial.
At the post-conviction hearing, the petitioner testified that Patterson had
been appointed to represent him. He alleged that Patterson failed to interview Jerry
1 State v. Ro bert L . How ell, No. 02C01-9211-CR-00249, Shelby County (Tenn. Crim. App. filed Oct. 13 , 1993, at J acks on)(per m. to ap p. denied March 7, 1994).
2 Hudspeth, the petitioner’s uncle, about an alibi defense. He testified that Patterson told
him Hudspeth would not make a good witness because Hudspeth was an alcoholic. On
cross-examination, the petitioner admitted that Hudspeth had made a statement to the
police in which he said the petitioner had admitted killing the victim.
The petitioner next testified that Patterson had not fully investigated his
case. He alleged that Patterson had failed to talk to Rose Howell, the petitioner’s wife.
He testified that had Patterson talked to Rose Howell, she could have told him where the
victim had been on the night he was killed. However, when questioned further, the
petitioner later admitted that he did believe Patterson had spoken to Rose Howell but that
he did not know the result of that conversation.
The petitioner further testified that Patterson had not listened to him. He
stated that his case “just [ ] wasn’t investigated.” He asserted that Patterson had failed
to have ballistic tests performed on the bullet that killed the victim. He further asserted
that Patterson had failed to have the victim’s wallet tested for fingerprints.
The petitioner next asserted that he had known one of the jurors on the jury
panel that ultimately found him guilty. He said it had not been until after the trial that he
had informed Patterson of this. He testified that he had not realized he had known the
juror while at trial because the two had only worked together a short time.
The petitioner also complained that Patterson failed to get his two
confessions suppressed. He testified that the confessions had been illegally coerced
from him. However, he admitted that Patterson had filed a motion to suppress these
confessions and that a hearing on the motion had been held. The trial court
3 subsequently denied the motion.
Patterson, a former Shelby County prosecutor and later public defender,
testified that he had spoken with the petitioner on many occasions prior to trial. He
stated, “We talked considerably, went over the evidence, went over the proof, talked,
what I call trial strategy, over a period of several months.” He testified that during his
representation of the petitioner he had kept a log of his activities. He testified that he had
spent thirty and a half hours in court and eighty-four hours out of court.
Patterson testified that he specifically remembered speaking to Hudspeth,
the petitioner’s uncle. He said he had spoken with him two or three times and that
Hudspeth had had a drinking problem. He further testified that he and Hudspeth had
discussed an alibi defense and that he had also discussed the defense with a girlfriend
of the petitioner. However, he had determined that the alibi defense was not a “proper
defense in the case.” Patterson said he had been aware of Hudspeth’s statement to the
police and had shown the petitioner a copy of the statement.
Patterson further testified that an investigator had been assigned to this
case. He said his notes reflected that the investigator had talked to several people who
were familiar with the situation between the petitioner and the victim. He testified that
these people had all told the investigator that the petitioner had made several threats
against the victim. Patterson also said that he had talked to the petitioner’s wife, Rose
Howell, and had determined that she could add no favorable testimony.
As to the ballistic tests, Patterson testified that they were not performed
because there had been no gun with which to match the bullet. As to fingerprinting,
4 Patterson testified that he had not had the wallet tested because he “didn’t want to turn
up more evidence that would incriminate [his] client . . . .” Also, the petitioner had told the
police that he had the victim’s wallet and that with the money from the wallet he had
purchased some beer and clothing.
Patterson further testified that the petitioner had told him that he knew a
member of the jury, but had not done so until after the trial. As to the petitioner testifying,
Patterson said he could not remember the exact details surrounding the petitioner’s
decision not to take the stand. However, Patterson did voir dire the petitioner outside the
presence of the jury to make sure he understood his right not to testify.
In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his [or her] petition by a preponderance of the evidence.” McBee v.
State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings
of the trial court in hearings “are conclusive on appeal unless the evidence preponderates
against the judgment.” State v. Buford, 666 S.W.2d 473
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION FILED April 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk ROBERT L. HOWELL, ) ) C.C.A. NO. 02C01-9705-CR-00194 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
WILLIAM L. JOHNSON JOHN KNOX WALKUP 50 North Front St. Attorney General & Reporter Suite 1150 Memphis, TN 38103 CLINTON J. MORGAN Counsel for the State 425 Fifth Ave., North Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493
JOHN W. PIEROTTI District Attorney General
GLEN BAITY Asst. District Attorney General 201 Poplar St., Suite 301 Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY, Judge OPINION
Following a jury trial, the petitioner was convicted on October 22, 1992, of
felony murder. This Court affirmed his conviction on October 13, 1993, and the Supreme
Court denied his application to appeal on March 7, 1994.1 On April 11, 1996, the
petitioner filed a petition for post-conviction relief alleging ineffective assistance of
counsel. After a hearing on November 15, 1996, the trial court dismissed the petition.
The petitioner now appeals and argues that his petition should not have been dismissed.
After a review of the record and applicable law, we affirm the judgment of the court below.
We will briefly recite the facts surrounding the petitioner’s conviction. The
petitioner and his wife, Rose Howell, were estranged and Howell had been living with the
victim, Christopher Garlock. Evidence at trial revealed that the petitioner shot the victim
and took his wallet. The petitioner was convicted of felony murder and was sentenced
to life imprisonment.
In this post-conviction proceeding, the petitioner makes several allegations
of ineffective assistance against his trial counsel, Joseph Patterson. He alleges that
Patterson failed to interview alibi witnesses, failed to fully investigate his case, failed to
prepare an alibi defense, failed to fully prepare for trial, failed to suppress two of the
petitioner’s confessions, and failed to fully explain the petitioner’s right not to testify at
trial.
At the post-conviction hearing, the petitioner testified that Patterson had
been appointed to represent him. He alleged that Patterson failed to interview Jerry
1 State v. Ro bert L . How ell, No. 02C01-9211-CR-00249, Shelby County (Tenn. Crim. App. filed Oct. 13 , 1993, at J acks on)(per m. to ap p. denied March 7, 1994).
2 Hudspeth, the petitioner’s uncle, about an alibi defense. He testified that Patterson told
him Hudspeth would not make a good witness because Hudspeth was an alcoholic. On
cross-examination, the petitioner admitted that Hudspeth had made a statement to the
police in which he said the petitioner had admitted killing the victim.
The petitioner next testified that Patterson had not fully investigated his
case. He alleged that Patterson had failed to talk to Rose Howell, the petitioner’s wife.
He testified that had Patterson talked to Rose Howell, she could have told him where the
victim had been on the night he was killed. However, when questioned further, the
petitioner later admitted that he did believe Patterson had spoken to Rose Howell but that
he did not know the result of that conversation.
The petitioner further testified that Patterson had not listened to him. He
stated that his case “just [ ] wasn’t investigated.” He asserted that Patterson had failed
to have ballistic tests performed on the bullet that killed the victim. He further asserted
that Patterson had failed to have the victim’s wallet tested for fingerprints.
The petitioner next asserted that he had known one of the jurors on the jury
panel that ultimately found him guilty. He said it had not been until after the trial that he
had informed Patterson of this. He testified that he had not realized he had known the
juror while at trial because the two had only worked together a short time.
The petitioner also complained that Patterson failed to get his two
confessions suppressed. He testified that the confessions had been illegally coerced
from him. However, he admitted that Patterson had filed a motion to suppress these
confessions and that a hearing on the motion had been held. The trial court
3 subsequently denied the motion.
Patterson, a former Shelby County prosecutor and later public defender,
testified that he had spoken with the petitioner on many occasions prior to trial. He
stated, “We talked considerably, went over the evidence, went over the proof, talked,
what I call trial strategy, over a period of several months.” He testified that during his
representation of the petitioner he had kept a log of his activities. He testified that he had
spent thirty and a half hours in court and eighty-four hours out of court.
Patterson testified that he specifically remembered speaking to Hudspeth,
the petitioner’s uncle. He said he had spoken with him two or three times and that
Hudspeth had had a drinking problem. He further testified that he and Hudspeth had
discussed an alibi defense and that he had also discussed the defense with a girlfriend
of the petitioner. However, he had determined that the alibi defense was not a “proper
defense in the case.” Patterson said he had been aware of Hudspeth’s statement to the
police and had shown the petitioner a copy of the statement.
Patterson further testified that an investigator had been assigned to this
case. He said his notes reflected that the investigator had talked to several people who
were familiar with the situation between the petitioner and the victim. He testified that
these people had all told the investigator that the petitioner had made several threats
against the victim. Patterson also said that he had talked to the petitioner’s wife, Rose
Howell, and had determined that she could add no favorable testimony.
As to the ballistic tests, Patterson testified that they were not performed
because there had been no gun with which to match the bullet. As to fingerprinting,
4 Patterson testified that he had not had the wallet tested because he “didn’t want to turn
up more evidence that would incriminate [his] client . . . .” Also, the petitioner had told the
police that he had the victim’s wallet and that with the money from the wallet he had
purchased some beer and clothing.
Patterson further testified that the petitioner had told him that he knew a
member of the jury, but had not done so until after the trial. As to the petitioner testifying,
Patterson said he could not remember the exact details surrounding the petitioner’s
decision not to take the stand. However, Patterson did voir dire the petitioner outside the
presence of the jury to make sure he understood his right not to testify.
In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his [or her] petition by a preponderance of the evidence.” McBee v.
State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings
of the trial court in hearings “are conclusive on appeal unless the evidence preponderates
against the judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
This Court should not second-guess trial counsel’s tactical and strategic
choices unless those choices were uninformed because of inadequate preparation,
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to
have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.
1980).
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
5 rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim of ineffective counsel, a petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness” and that this performance prejudiced the
defense. There must be a reasonable probability that but for counsel’s error the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
In this case, the post-conviction court found that Patterson had spoken to
witnesses about a possible alibi defense and had concluded that this would not be a
viable defense for the petitioner. The post-conviction judge stated that such a
determination was a tactical decision. The judge further concluded that Patterson had
interviewed all potential witnesses and had spent a considerable amount of time on the
case.
As to the petitioner’s confessions to the police, Patterson had done what
he could. The court found that a motion to suppress the statements had been filed in a
timely manner. This motion was simply denied by the trial court. The post-conviction
court also found that the ballistic tests were not performed because no gun was ever
found and that fingerprint tests were not performed out of fear the tests would produce
more evidence against the petitioner.
The post-conviction judge concluded, “The Court finds that Mr. Patterson
and the Public Defender Staff thoroughly investigated the case, interviewed all the
witnesses whose names were given them by the [petitioner] and talked with all of the
State’s witnesses. . . . The Court finds that the advice given and services rendered by
6 the [petitioner’s] counsel was within the range of competency demanded by an attorney
in a criminal case and that Mr. Patterson’s representation of the [petitioner] at his trial
complied with the requirements set out by the Supreme Court of Tennessee in Baxter v.
Rose, 523 S.W.2d 930.”
The record fully supports the findings of the post-conviction court. The
petitioner has failed to carry his burden of proving his allegations by a preponderance of
the evidence. Furthermore, the evidence presented at the post-conviction hearing does
not in any way preponderate against the judgment of the court below. The petitioner
clearly did not receive ineffective assistance of counsel and thus we affirm the dismissal
of this petition.
_________________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ JOSEPH B. JONES, Judge
______________________________ THOMAS T. WOODALL, Judge