IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED APRIL 1997 SESSION September 17, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk ROBERT E. PARKER, ) NO. 02C01-9605-CR-00143 ) Appellant ) SHELBY COUNTY ) V. ) HON. JOSEPH B. DAILEY, JUDGE ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee )
FOR THE Appellant FOR THE APPELLEE
Thomas C. Fila John Knox Walkup One Memphis Place Attorney General and Reporter 200 Jefferson Avenue, Suite 1025 450 James Robertson Parkway Memphis, Tennessee 38103 Nashville, Tennessee 37243-0493
Clinton J. Morgan Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493
John W. Pierotti District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947
David Henry Assistant District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947
OPINION FILED:______
AFFIRMED
William M. Barker, Judge Opinion
The appellant, Robert E. Parker, appeals as of right the judgment of the Shelby
County Criminal Court dismissing his petition for post-conviction relief. He argues on
appeal that the trial court erred in finding that he received the effective assistance of
counsel. He contends that the trial court was in error because his trial counsel failed to
conduct an adequate investigation, failed to adequately and effectively confer with him
prior to trial, and failed to secure the attendance at trial of two witnesses the appellant
believed favorable to his defense. Following our review of the record on appeal, we
find no reversible error and affirm the trial court’s dismissal of the post-conviction
petition.
On July 9, 1991, a robbery occurred at Butler’s Sundry in Memphis,
Tennessee. During the course of the robbery, Gloria Butler was shot and injured and
approximately seven hundred dollars ($700.00) was stolen by two assailants. After
the robbery, Ms. Butler identified the appellant through a photographic lineup as one
of the two robbers, and he was arrested soon thereafter. Following his arrest, the
appellant gave a statement to the police admitting that he had participated, along with
a co-defendant, in the robbery. Before trial, the appellant’s attorney moved to
suppress the appellant’s confession, but the motion was overruled following an
evidentiary hearing.
At trial, Gloria Butler positively identified the appellant as one of the robbers.
Additionally, the State introduced the appellant’s confession. The jury thereafter
convicted the appellant of especially aggravated robbery. He was sentenced to a term
of thirty years imprisonment as a Range II offender. He appealed his conviction to this
court and we affirmed. State v. Robert Parker, C.C.A. No. 02C01-9307-CR-00138
(Tenn. Crim. App., Jackson, July 13, 1994). No application for permission to appeal
was filed in our supreme court. However, on September 7, 1994, the appellant filed a
pro se post-conviction relief petition alleging that he received ineffective assistance of
2 counsel. The post-conviction court appointed counsel to represent the appellant, an
amended petition was filed, and an evidentiary hearing was conducted.
The only two witnesses to testify at the evidentiary hearing were the appellant
and his former counsel. The appellant testified that he was housed in the Shelby
County Jail from the time of his arrest awaiting trial and that counsel’s visits to him
were infrequent and not productive. He said that no rapport developed between him
and his counsel and that she would not file pretrial motions which he suggested.
However, he failed to specify the nature of any motions he requested or that he was
prejudiced thereby. Additionally, he testified that he furnished his counsel the names
of two witnesses he thought favorable to his defense, but neither of them was called to
testify on his behalf at trial. Although he offered no specifics, he generally felt that his
trial counsel had inadequately investigated his case.
The State called the appellant’s trial counsel as a witness. She testified that
she is employed by the Shelby County Public Defender’s office and that office had
represented the appellant initially in the general sessions court, then the trial court,
and finally on his appeal to this court. She was assigned to represent the appellant
following his indictment in the criminal court, and she met with him on numerous
occasions. She testified that investigators from the public defender’s office had
interviewed all of the witnesses for the State and that she had been given access to
the entire file of the prosecutor for review. She further testified that she inquired of the
appellant on two occasions concerning any witnesses that he desired on his behalf at
trial, and on both occasions he indicated that he had none. On one such occasion, he
placed his initials in his counsel’s file indicating that he desired that no witnesses be
subpoenaed.
Appellant’s counsel also testified that she filed a motion to suppress his
confession and that the trial court had overruled the motion following an evidentiary
hearing. It was her view that with the eyewitness identification and the appellant’s
confession, there was a strong likelihood that the appellant would be convicted and
3 sentenced as a Range II offender if he went to trial. Accordingly, she negotiated a
proposed plea bargain agreement with the State which would have allowed the
appellant to receive a twenty year sentence as a Range I standard offender upon his
plea of guilty. The appellant rejected the plea bargain offer and insisted upon trial.
Following the evidentiary hearing, the trial court entered an order finding that
the appellant’s counsel had provided him with “excellent representation,” both before
and during his trial. Accordingly, the trial court dismissed the petition for post-
conviction relief.
In reviewing an appellant’s Sixth Amendment claim of ineffective assistance of
counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competency demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective assistance of 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, 104 S. Ct. 2052, 2064, 2067-68, 80 L.
Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). The
evidence introduced at the post-conviction hearing clearly supports the trial court’s
finding that appellant’s trial counsel investigated his case sufficiently. An investigator
from the public defender’s office interviewed the State’s potential witnesses. The
appellant’s counsel obtained the State’s entire file in discovery and reviewed it. She
also, on at least two occasions, asked the appellant if he could think of any witnesses
to call in his defense, but he responded in the negative. The appellant’s trial counsel
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED APRIL 1997 SESSION September 17, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk ROBERT E. PARKER, ) NO. 02C01-9605-CR-00143 ) Appellant ) SHELBY COUNTY ) V. ) HON. JOSEPH B. DAILEY, JUDGE ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee )
FOR THE Appellant FOR THE APPELLEE
Thomas C. Fila John Knox Walkup One Memphis Place Attorney General and Reporter 200 Jefferson Avenue, Suite 1025 450 James Robertson Parkway Memphis, Tennessee 38103 Nashville, Tennessee 37243-0493
Clinton J. Morgan Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493
John W. Pierotti District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947
David Henry Assistant District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947
OPINION FILED:______
AFFIRMED
William M. Barker, Judge Opinion
The appellant, Robert E. Parker, appeals as of right the judgment of the Shelby
County Criminal Court dismissing his petition for post-conviction relief. He argues on
appeal that the trial court erred in finding that he received the effective assistance of
counsel. He contends that the trial court was in error because his trial counsel failed to
conduct an adequate investigation, failed to adequately and effectively confer with him
prior to trial, and failed to secure the attendance at trial of two witnesses the appellant
believed favorable to his defense. Following our review of the record on appeal, we
find no reversible error and affirm the trial court’s dismissal of the post-conviction
petition.
On July 9, 1991, a robbery occurred at Butler’s Sundry in Memphis,
Tennessee. During the course of the robbery, Gloria Butler was shot and injured and
approximately seven hundred dollars ($700.00) was stolen by two assailants. After
the robbery, Ms. Butler identified the appellant through a photographic lineup as one
of the two robbers, and he was arrested soon thereafter. Following his arrest, the
appellant gave a statement to the police admitting that he had participated, along with
a co-defendant, in the robbery. Before trial, the appellant’s attorney moved to
suppress the appellant’s confession, but the motion was overruled following an
evidentiary hearing.
At trial, Gloria Butler positively identified the appellant as one of the robbers.
Additionally, the State introduced the appellant’s confession. The jury thereafter
convicted the appellant of especially aggravated robbery. He was sentenced to a term
of thirty years imprisonment as a Range II offender. He appealed his conviction to this
court and we affirmed. State v. Robert Parker, C.C.A. No. 02C01-9307-CR-00138
(Tenn. Crim. App., Jackson, July 13, 1994). No application for permission to appeal
was filed in our supreme court. However, on September 7, 1994, the appellant filed a
pro se post-conviction relief petition alleging that he received ineffective assistance of
2 counsel. The post-conviction court appointed counsel to represent the appellant, an
amended petition was filed, and an evidentiary hearing was conducted.
The only two witnesses to testify at the evidentiary hearing were the appellant
and his former counsel. The appellant testified that he was housed in the Shelby
County Jail from the time of his arrest awaiting trial and that counsel’s visits to him
were infrequent and not productive. He said that no rapport developed between him
and his counsel and that she would not file pretrial motions which he suggested.
However, he failed to specify the nature of any motions he requested or that he was
prejudiced thereby. Additionally, he testified that he furnished his counsel the names
of two witnesses he thought favorable to his defense, but neither of them was called to
testify on his behalf at trial. Although he offered no specifics, he generally felt that his
trial counsel had inadequately investigated his case.
The State called the appellant’s trial counsel as a witness. She testified that
she is employed by the Shelby County Public Defender’s office and that office had
represented the appellant initially in the general sessions court, then the trial court,
and finally on his appeal to this court. She was assigned to represent the appellant
following his indictment in the criminal court, and she met with him on numerous
occasions. She testified that investigators from the public defender’s office had
interviewed all of the witnesses for the State and that she had been given access to
the entire file of the prosecutor for review. She further testified that she inquired of the
appellant on two occasions concerning any witnesses that he desired on his behalf at
trial, and on both occasions he indicated that he had none. On one such occasion, he
placed his initials in his counsel’s file indicating that he desired that no witnesses be
subpoenaed.
Appellant’s counsel also testified that she filed a motion to suppress his
confession and that the trial court had overruled the motion following an evidentiary
hearing. It was her view that with the eyewitness identification and the appellant’s
confession, there was a strong likelihood that the appellant would be convicted and
3 sentenced as a Range II offender if he went to trial. Accordingly, she negotiated a
proposed plea bargain agreement with the State which would have allowed the
appellant to receive a twenty year sentence as a Range I standard offender upon his
plea of guilty. The appellant rejected the plea bargain offer and insisted upon trial.
Following the evidentiary hearing, the trial court entered an order finding that
the appellant’s counsel had provided him with “excellent representation,” both before
and during his trial. Accordingly, the trial court dismissed the petition for post-
conviction relief.
In reviewing an appellant’s Sixth Amendment claim of ineffective assistance of
counsel, this Court must determine whether the advice given or services rendered by
the attorney are within the range of competency demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of
ineffective assistance of 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, 104 S. Ct. 2052, 2064, 2067-68, 80 L.
Ed. 2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). The
evidence introduced at the post-conviction hearing clearly supports the trial court’s
finding that appellant’s trial counsel investigated his case sufficiently. An investigator
from the public defender’s office interviewed the State’s potential witnesses. The
appellant’s counsel obtained the State’s entire file in discovery and reviewed it. She
also, on at least two occasions, asked the appellant if he could think of any witnesses
to call in his defense, but he responded in the negative. The appellant’s trial counsel
filed and presented a motion to suppress his confession.
At the post-conviction hearing, the appellant claimed that two witnesses, whose
testimony would have exonerated him, should have been called to testify at trial.
However, the testimony of those witnesses was not presented at the post-conviction
4 hearing, and we may not speculate on the substance of their testimony. See Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
The findings of fact by a trial court following an evidentiary hearing on a petition
for post-conviction relief are afforded the weight of a jury verdict, and this Court will not
set aside the trial court’s judgment unless the evidence contained in the record
preponderates against those findings. See State v. Adams, 859 S.W.2d 359, 361
(Tenn. Crim. App. 1992); State v. Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App.
1988). The trial court determined that the defendant was not denied his constitutional
right to the effective assistance of counsel, and the evidence in the record on appeal
does not preponderate against those findings. Accordingly, the trial court is affirmed.
WILLIAM M. BARKER, JUDGE
CONCUR:
JOSEPH M. TIPTON, JUDGE
DAVID G. HAYES, JUDGE