IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1998 June 9, 1998
Cecil W. Crowson
Appellate Court Clerk
WAD E JAM ES O DUM , ) C.C.A. NO. 01C01-9707-CC-00282 )
Appe llant, )
) LINCOLN COUNTY
V. )
)
) HON. CHARLES LEE, JUDGE STATE OF TENNESSEE, )
)
Appellee. ) (POST -CON VICTIO N)
FOR THE APPELLANT: FOR THE APPELLEE:
N. AND Y MY RICK , JR. JOHN KNOX WALKUP 116 West Market Street Attorney General & Reporter Fayetteville, TN 37334 TIMO THY F . BEHAN
Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243
WILLIAM MICHAEL McCOWN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney General P.O. Box 904
Fayetteville, TN 37334
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, W ade J ame s Odu m, ap peals from th e orde r deny ing his
petition for post-conviction relief. Petitioner was convicted of theft and was sentenced as a career offender to serve fifteen (15) years in the Tennessee Department of Correction. After the conviction was affirmed on direct appeal, Petitioner timely filed his petition for post-con viction relief. Following an evide ntiary hearing, the trial court dismissed the petition. Petitioner argues the trial court erred in denying him relief based upon the Sixth Amendment right to the effective assistan ce of cou nsel. W e affirm the judgm ent of the tria l court.
“In post-conviction relief proceedings the petitioner has the burden of proving the allegation s in his petition by a prep ondera nce of the evidenc e. McBe e v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial cou rt in hea rings “a re con clusive on appeal unless the evidence preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. A pp. 198 3).
In determining whether counsel provided effective assistance at trial, the court must decide whether counsel’s performance was within the range of competence demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). T o succe ed on a claim tha t his coun sel was in effective at trial, a petitioner bears the bu rden o f show ing tha t 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 produce a reliable re sult. Strickland v. Washington, 466 U.S . 668, 687 , reh’g denied,
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467 U .S. 1267 (1984); Cooper v. State, 849 S.W .2d 744 , 747 (T enn. 19 93); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 1990). To satisfy the second prong the petitioner must show a reasonable probability that, but for cou nsel’s unrea sona ble error, the fact find er would have ha d reaso nable d oubt reg arding p etitioner’s gu ilt. Strickland, 466 U .S. at 69 5. This reaso nable proba bility mu st be “s ufficient to undermine confidence in the outcome .” Harris v. S tate, 875 S.W.2d 662, 665 (Tenn. 1994).
As Petition er is inc arcera ted in th e Libe rty Cor rectional Institu tion in B ristol, Florida, he was deposed by telephone on the subject o f his petition fo r post- conviction relief. During the depo sition, P etitione r stated that all th e grou nds o f his petition arose out of the ineffe ctiveness of trial couns el. First, Petitioner claimed that his trial counsel failed to attempt to suppress statements given to three (3) different police officers. Petitioner had confessed to several burglaries committed in Florida, but did no t confess to any crim e occu rring in Te nness ee.
Next, Petitioner stated that trial co unsel failed to prese nt alibi witnes ses. In the original indic tment, Petitioner was charged w ith theft which occurre d on Janu ary 1, 1993. In addition to the fact that Petitioner was incarcerated on that date, the car deale rship from w hich th e car w as sto len wa s close d that d ay. At tria l, the indictment was amended to reflect the date of the offense as February 1, 1993. Petitioner also had an alibi for February 1, 1993, claiming he spent the night of January 31, 1993, in a motel on Highway 231, north of Dothan, Alabama. Petitioner arose around 8:00 or 8:30 a.m. on February 1, 1993, returned an alarm clock to the front desk and checked out of the motel. Petitioner could not recall the name of the motel, nor could he recall the person’s name who worked at the front de sk of th e mo tel.
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Petitioner claimed that he provid ed this info rmation to trial couns el who faile d to investigate his alibi.
Petitioner also alleged that trial counsel failed to properly investigate a photo graph ic lineup in which he was identified as the perp etrator of the theft. Petitioner did not know if the lineup was overly suggestive. Then, Petitioner stated that trial couns el refused to allow him to testify in his own defense because he did not want the jury to hear the Petitioner’s past criminal record. Petitioner recalled that he repe atedly req uested to testify, both p rior to and d uring the trial.
Petitioner further claimed that trial counsel admitted Petitioner’s guilt to the jury during the trial. During his trial counsel’s cross-examination of Officer Hopson, trial counsel asked Hopson, “Isn’t it true what the defendant told you was he came up there and took the car and never brought it back.” Petitioner stated that trial couns el never c orrected this statem ent, but left it as it was adm itting his guilt.
Another area of ineffectiveness Petitioner claim ed wa s trial co unse l’s failure to provide him with civilian clothing during the trial. Petitioner had requested that trial counsel obtain civilian clothing prior to trial, and trial counsel informed him that Chief Cam pbell at the prison w ould sup ply civilian cloth es to we ar during the trial.
Petitioner alleged that trial counsel failed to pursue a plea bargain on these offenses. While Petitioner recalled that a plea ag reeme nt was o ffered to him with the term of ten (10) years of incarceration, he was advised by Tom Bean, an investigator for the Pu blic Defe nder’s offic e, that, “ma ybe we c an do b etter.” Therefore, the plea agreement was not accepted, but Petitioner asked trial counsel
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to continue to pursue a plea ag reeme nt. Petitioner recalled that he was assured a plea ag reeme nt would be reac hed prio r to trial.
Finally, Petitioner felt that mitigating factors were p resen t in his case that we re not introduced during sentencing. He stated that no bodily injury was done to anyone and that he attempted to assist the authorities involving certain offens es in the State of Tennessee.
Trial counsel for the Petitioner testified at the hearing on the petition for post-
conviction relief. Trial counsel stated that as part of his duties as an assista nt pub lic defender, he represented Petitioner through trial and shortly after trial. He did not represent Petitioner at his sentencing hearing or motion for a new trial. Counsel recalled that prior to trial, h e inves tigated this case a nd filed various disco very motions. Counsel met with Petitioner on twelve (12) to fiftee n (15) se parate occasions. The total amount of time counsel spent with Petitioner prior to trial was betwee n twenty-e ight (28) to th irty (30) hou rs.
With regard to the mo tion to supp ress, c ouns el state d that h e did n ot file this motion because there wa s a waive r of rights signed by the Petitioner. As Petitioner has many prior criminal offenses on his record, he admitted that he knew his rights, that he did no t have to m ake an y statem ents, and that those statements he made could be used against him. When counsel discussed this matter with Petitioner, Petitioner admitted that he was only making these admissions to try to get a good deal and minimize his total exposure to incarceration. Counsel believed there was no way to mount a successful suppression of those statements in good faith.
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Trial coun sel disc usse d a po ssible alibi defense with the Petitioner for February 1, 1993. Counsel noticed the defective date in the indictment which stated that Petitioner committed the theft on Ja nuary 1, 1 993. Petitioner did have an alibi for the incorre ct date as he was incarcerated on that date and the car dealership was closed on New Year’s D ay. As the error was not in any way caused by the defense, trial cou nsel d id not believe he had a duty to corre ct pote ntially rev ersible error. Trial counse l did not attempt the cure the de fective in dictm ent as in his opinion that would amount to ineffective assistance of counsel. Upon reading of the indictment at trial, the Sta te move d to am end the indictme nt to reflect the accura te date of the theft as February 1, 1993. Counsel noted this as possible assignment of error for appellate reasons, but he did not want to object at that time by arguing that the defense was caught by surprise by a substantial change of the indictm ent. Because counsel could not in good faith make those arguments and there was poss ible reve rsible error o n app eal, co unse l did not oppose the amendment of the indictme nt by the S tate.
Petitioner told counsel that he spent the night at a motel near Dothan, Alabama on January 31, 1993. Counsel stated that he had been in that area many times and could not recall a motel located on Highway 231 as Petitioner described, but he asked his brother who lived in that area to investigate. Counsel’s brother could not find an y motel n ear the loc ation that P etitioner de scribed. Petitioner was unab le to provide the name of the motel, the name of the motel clerk who assisted him, or the name that he us ed to che ck-in to the motel. Counsel described that even if Petitioner had been at a motel on the evening of January 31, 1993, he co uld have driven the next morning to the site of the theft and could have been present at the location of the theft by that afternoon when the theft occurred.
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When questioned regarding possible plea bargains, counsel stated that the only indication he receive d from the Dis trict Atto rney’s o ffice wa s that th ere wo uld not be any deals. The only deal ever offered was that Petitioner could plead as a career offender or plead to the indictment and receive a sentencing hearing. Prior to trial, there was some discussion about a possible ten (10) year sentence, but the main issue was wheth er or no t that se ntenc e wou ld run c oncu rrent w ith his sentences in Florida and Georgia. No agreem ent was reache d to run the sentences concurren tly, and Pe titioner refus ed the p ossibility of co nsecu tive senten ces de spite couns el’s advice conce rning his s entenc ing status as a care er offend er.
Trial coun sel exp lained that the photo graph ic lineup during which the Petitioner was identified as the perpetrator of the theft was in no way suggestive. He and Investigator Bean saw that of the six (6) photog raphs in the lineup , all were white males who were “ heavy set.” Als o, all of th e six (6) pictured were in the same age group as that of the Petitioner. While counsel could not recall if Petitioner was given the opportunity to view the photographs, he did discuss the lineup with the Petitioner.
Trial counsel advised Petitioner prior to trial that if he was to testify, then the State would have th e right to impe ach h im based upon his criminal record. Counsel also told Petitioner that since there was a videotape which showed Petitioner operating the stolen vehicle in Florida, then his testimony would not cast doubt upon that video. While counsel did not advocate Petitioner testifying, he told Petition er it was his own c hoice. At the end of the State’s proof, trial counsel asked the trial court to address the Pe titioner in open court concerning his right to testify. Petitioner
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stated that he understood his rights and that it was his free and voluntary choice not to testify.
Counsel recalled th at upon cross-e xamina tion of Office r Hops on, he asked if Petitioner ever told him he came to Faye tteville to steal a car. When Officer Hopson stated tha t Petitioner d id not outrig ht mak e that state ment, counsel followed up with this question:
Isn’t it true that he told you he ca me u p there ; the sa lesm an as ked h im if he wanted to try the car; they gave h im the keys; and h e took the keys and took the car and never brought it back?
Hopson responded that this statement was correct. By eliciting this information, counsel hoped to provide the necess ary proof in the record to justify a jury instruction on the lesse r included offense o f joyriding. Tenn. Code Ann. § 39-14-106. Cou nsel’s purpose w as to hopefu lly convince the jury to return a verdict of gu ilt to a lesser o ffense tha n theft.
Regarding the Petitioner’s prison uniform, counsel stated that Petitioner wore a Florida correctional uniform, a light blue cotton shirt and pants. The re were wh ite tags across the right rear pants pocket and his left shirt pocket which were somewhat faded. Several days prior to trial, counsel discussed with Petitioner the need to wear civilian clothing at trial. Petitioner ass ured coun sel that he wou ld have civilian clothing, which would be provided by his sister. When counsel checke d with the jail on the evenin g prior to trial, he was assured that Petitioner had civilian clothing. On the morning of trial, counsel walked into the courtroom and found Petitioner wearing his prison uniform. When he questioned the Petitioner, Petitioner responded that the civilian clothes did no t fit him. As thirty-five (35) to forty (40) potential jurors were alrea dy sea ted in th e cou rtroom , coun sel did not wa nt to ca ll
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attention to the fact that Petitioner was wearing a prison uniform. While the trial court later noticed the un iform and offere d to remed y the situation by putting tape over the nu mbe rs, cou nsel b elieved that w ould o nly call m ore atte ntion to Petition er’s clothing. In fact, Petitioner was wearing eyeglasses and had a large eyeglass case which, for a ll practical pu rposes , covered the white ta g on his fro nt shirt poc ket.
Counsel discussed with Petitioner the fact that, as a career offender, no mitigating factors apply as the mandatory sentence for a career offender is the maximum sentence within the applicable Range III. Tenn. Code Ann. § 40-35- 108(c). Basically, the sentencing hearing was only to determine whether the defendant had a sufficient number of convictions to constitute his status as a career offender. Petitioner admitted that these prior felony convictions listed on the State’s enhancement notice were h is during a meeting with trial counsel and did not contest his status as a career offender. In any event, trial counsel did not represent Petitioner at the sentencing hearing.
At the conclusion of the post-conviction hearing, the trial court found that trial counsel condu cted a m ore than adequ ate investig ation into th e allegations and discussed all possible defenses with Petitioner. Furthermore, the trial court found that any discussions Petitioner had with counsel regarding his confessions to the police led co unse l to dete rmine that the re was not a va lid basis for a motion to suppre ss.
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W hile not spec ifically stated w ithin its findings of fact, it is clear th at the tria l court accredited the testimony of trial counsel over that of the Petitioner as regarding his wearing a prison u niform a t trial. The trial co urt found that in all instances that Petitione r’s recolle ction differed from the recollection of trial counsel, it accredited the testimony of trial counsel. As the e vidence doe s not prepon derate otherw ise, we agree and find that the Petitioner’s appearance at trial in a priso n uniform is due to his own ineffectiveness, and not that of trial counsel. Counsel made several attemp ts to sec ure civilia n cloth ing for P etitione r, and P etitione r insisted that he could locate his own clothing.
Any complaints Petitioner has regarding counsel’s tactical decisions and strategies emplo yed durin g the trial are without m erit. When review ing trial c ouns el’s actions, this court should not use the benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v. S tate, 629 S.W.2d 4, 9 (Tenn. 1982). Coun sel’s allege d errors s hould b e judge d at the tim e they were m ade in light of all facts and circumstan ces. Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746 . Wh ile this ta ctic did not ultim ately succeed in Petitioner’s favor, trial coun sel’s strategy was not so unreasonable under these facts and circumstances.
The trial court noted, and we agree, that the record is clear that counsel advised Petitioner not to testify, but that Petitioner made his own decision after having his rights explained to him by the trial cou rt. Petitio ner ad mitted in his testimony that he was counseled not to testify, but that he made his own decision.
Petition er’s complaints regarding the sentencing hearing are also without merit. As Petitioner freely admits to comm itting the offenses listed in the
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enhancement notice, an y argum ent aga inst his being sentenced as a career offender is moot. The trial court found him to be a career offender under the statutory law , and ther e is no pro of in the rec ord that h e was n ot.
As the trial court noted within its findings of fact, “[H]e [Petitioner], has been unab le to dem onstra te to the Cour t how e ven if those things should have been done, it would have had a different result on the co urt or on the trial of the case .” Petitioner has also fa iled to m eet his burde n of pro of to this court. Upon re view of the record and the briefs in this m atter, we a ffirm the jud gmen t of the trial cou rt.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Presiding Judge
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L. T. LAFFERTY, Special Judge