IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1997 SESSION September 18, 1997
Cecil W. Crowson Appellate Court Clerk WILLIAM R. WATERS ) ) C.C.A. NO. 01C01-9610-CR-00418 Appellant, ) ) VS. ) DAVIDSON COUNTY ) STATE OF TENNESSEE ) ) Hon. Thomas H. Shriver Appellee. ) Judge ) ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
DWIGHT E. SCOTT JOHN KNOX WALKUP 4024 Colorado Avenue Attorney General and Reporter Nashville, Tennessee 37209
PETER M. COUGHLAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, Tennessee 37209
MARY HAUSMAN Assistant District Attorney Washington Square Building 222 Second Avenue North Nashville, Tennessee 37201
OPINION FILED:____________________
AFFIRMED
JOE H. WALKER, III Sp. JUDGE OPINION
The petitioner entered a plea of guilty to second degree murder, and received a twenty
year sentence as a standard offender.
He appeals from the denial of a petition for post-conviction relief, alleging ineffective
assistance of counsel. He was assisted by an attorney at the post-conviction hearing, and his
petition was denied after a hearing.
On appeal, his attorney asserts that the court erred in denying relief based on ineffective
assistance of counsel, and that trial counsel’s lack of investigation led to inadequate advice to the
petitioner, causing the petitioner to plead guilty to second degree murder, rather than voluntary
manslaughter. Petitioner also filed a brief, pro se, alleging that his counsel did not adequately
prepare the case, did not adequately investigate the case, which resulted in petitioner
incriminating himself by entering a plea of guilty to second degree murder.
Factual Background
On June 29, 1992, petitioner was at his residence in Davidson County, and his vehicle
was parked outside on the street. A group of people were standing around the residence
outside. A car came by with two individuals, and the passenger threw a firecracker out the
window. The firecracker ignited some gasoline which was leaking from petitioner’s vehicle,
causing the car to burst into flames. Petitioner came outside to see his car on fire. He was told
by some of the individuals who were outside the name of the person who had thrown the
firecracker.
Petitioner then left and went to some apartments in Nashville in search of the person who
had thrown the firecracker. He did not find that person, but found someone he believed to be
driving the car from which the firecracker was thrown, and petitioner then produced a gun and
fired twice, and killed the victim with one of those shots.
The public defender was appointed to represent petitioner, and on January 7, 1993,
petitioner entered a plea of guilty to second degree murder, upon an agreed sentence of twenty
years as a standard offender.
The petitioner had a prior conviction for perjury. On May 10, 1996, a post-conviction proceeding was conducted, witnesses testified, and
the court found that the public defender did an excellent job for petitioner. Many motions were
filed, and a complete investigation was done. The office of the public defender interviewed some
fifteen witnesses. Petitioner was denying he committed the crime and was going to trial. The
public defender was prepared to go to trial, and only after the public defender negotiated a good
deal for petitioner did petitioner admit his involvement in the homicide.
I.
When this court undertakes review of a lower court’s decision on a petition for post-
conviction relief, the lower court’s findings of fact are given the weight of a jury verdict and are
conclusive on appeal absent a finding the evidence preponderates against the judgment. Clenny
v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170,
60 L. Ed. 2d 1050 (1979) Taylor v. State, 875 S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to
appeal denied (Tenn. 1994).
The test in Tennessee in determining whether counsel provided effective assistance at
trial is whether the performance was within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), provides a two-prong analysis when a
petitioner claims ineffective assistance of counsel. The petitioner has the burden to prove that (1)
the attorney’s performance was deficient and (2) the deficient performance resulted in prejudice
to the defendant so as to deprive him of a fair trial. Id. at 687, 104 S.Ct. At 2064.
In order to prove prejudice in the context of a guilty plea, the petitioner must demonstrate
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct.
366, 370, 88 L. Ed. 2d 203 (1985); see Bailey v. State, 924 S.W.2d 918, 919 (Tenn.Crim.App.
1995); Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).
II.
The defendant complains that his attorney did not interview some relatives who witnessed
his car catch a fire. There was testimony that the public defender did interview these witnesses,
and the court found they were interviewed. However, there was no dispute that the car caught fire. There was no allegation that any of the witnesses, which petitiioner complained about, had
anything else to offer, and the State was willing to stipulate that petitioner’s car caught fire and
exploded.
The events leading up to the shooting were thoroughly investigated. The attorney filed
numerous motions, interviewed eight or ten of the fifteen witnesses personally, and completely
prepared for trial.
Petitioner also complains that his attorney did not personally visit the scene of the crime.
However defense investigators did review the scene, reported to the attorney, and the attorney
was already familiar with the area.
Petitioner took the position that he did not commit the crime. Until shortly prior to
entering a plea of guilty, he alleged he was elsewhere. Petitioner now complains that his attorney
failed to inquire into his state of mind in an effort to show that he acted in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner. His attorney at the post-conviction hearing stated that it was a little hard to discuss
mental state at the time of the shooting with petitioner, since petitioner indicated he did not
commit the shooting. Petitioner asserts that he finally stopped lying to his attorney, admitted he
shot the victim, and that his attorney should have pursued voluntary manslaughter rather than
settling for a plea of second degree murder. Petitioner insists that his car exploding caused a
state of passion; however, he now admits he obtained a weapon, drove to another location in
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 NASHVILLE FILED AUGUST 1997 SESSION September 18, 1997
Cecil W. Crowson Appellate Court Clerk WILLIAM R. WATERS ) ) C.C.A. NO. 01C01-9610-CR-00418 Appellant, ) ) VS. ) DAVIDSON COUNTY ) STATE OF TENNESSEE ) ) Hon. Thomas H. Shriver Appellee. ) Judge ) ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
DWIGHT E. SCOTT JOHN KNOX WALKUP 4024 Colorado Avenue Attorney General and Reporter Nashville, Tennessee 37209
PETER M. COUGHLAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, Tennessee 37209
MARY HAUSMAN Assistant District Attorney Washington Square Building 222 Second Avenue North Nashville, Tennessee 37201
OPINION FILED:____________________
AFFIRMED
JOE H. WALKER, III Sp. JUDGE OPINION
The petitioner entered a plea of guilty to second degree murder, and received a twenty
year sentence as a standard offender.
He appeals from the denial of a petition for post-conviction relief, alleging ineffective
assistance of counsel. He was assisted by an attorney at the post-conviction hearing, and his
petition was denied after a hearing.
On appeal, his attorney asserts that the court erred in denying relief based on ineffective
assistance of counsel, and that trial counsel’s lack of investigation led to inadequate advice to the
petitioner, causing the petitioner to plead guilty to second degree murder, rather than voluntary
manslaughter. Petitioner also filed a brief, pro se, alleging that his counsel did not adequately
prepare the case, did not adequately investigate the case, which resulted in petitioner
incriminating himself by entering a plea of guilty to second degree murder.
Factual Background
On June 29, 1992, petitioner was at his residence in Davidson County, and his vehicle
was parked outside on the street. A group of people were standing around the residence
outside. A car came by with two individuals, and the passenger threw a firecracker out the
window. The firecracker ignited some gasoline which was leaking from petitioner’s vehicle,
causing the car to burst into flames. Petitioner came outside to see his car on fire. He was told
by some of the individuals who were outside the name of the person who had thrown the
firecracker.
Petitioner then left and went to some apartments in Nashville in search of the person who
had thrown the firecracker. He did not find that person, but found someone he believed to be
driving the car from which the firecracker was thrown, and petitioner then produced a gun and
fired twice, and killed the victim with one of those shots.
The public defender was appointed to represent petitioner, and on January 7, 1993,
petitioner entered a plea of guilty to second degree murder, upon an agreed sentence of twenty
years as a standard offender.
The petitioner had a prior conviction for perjury. On May 10, 1996, a post-conviction proceeding was conducted, witnesses testified, and
the court found that the public defender did an excellent job for petitioner. Many motions were
filed, and a complete investigation was done. The office of the public defender interviewed some
fifteen witnesses. Petitioner was denying he committed the crime and was going to trial. The
public defender was prepared to go to trial, and only after the public defender negotiated a good
deal for petitioner did petitioner admit his involvement in the homicide.
I.
When this court undertakes review of a lower court’s decision on a petition for post-
conviction relief, the lower court’s findings of fact are given the weight of a jury verdict and are
conclusive on appeal absent a finding the evidence preponderates against the judgment. Clenny
v. State, 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170,
60 L. Ed. 2d 1050 (1979) Taylor v. State, 875 S.W.2d 684, 686 (Tenn.Crim.App. 1993), perm. to
appeal denied (Tenn. 1994).
The test in Tennessee in determining whether counsel provided effective assistance at
trial is whether the performance was within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), provides a two-prong analysis when a
petitioner claims ineffective assistance of counsel. The petitioner has the burden to prove that (1)
the attorney’s performance was deficient and (2) the deficient performance resulted in prejudice
to the defendant so as to deprive him of a fair trial. Id. at 687, 104 S.Ct. At 2064.
In order to prove prejudice in the context of a guilty plea, the petitioner must demonstrate
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct.
366, 370, 88 L. Ed. 2d 203 (1985); see Bailey v. State, 924 S.W.2d 918, 919 (Tenn.Crim.App.
1995); Wade v. State, 914 S.W.2d 97, 101 (Tenn.Crim.App.1995).
II.
The defendant complains that his attorney did not interview some relatives who witnessed
his car catch a fire. There was testimony that the public defender did interview these witnesses,
and the court found they were interviewed. However, there was no dispute that the car caught fire. There was no allegation that any of the witnesses, which petitiioner complained about, had
anything else to offer, and the State was willing to stipulate that petitioner’s car caught fire and
exploded.
The events leading up to the shooting were thoroughly investigated. The attorney filed
numerous motions, interviewed eight or ten of the fifteen witnesses personally, and completely
prepared for trial.
Petitioner also complains that his attorney did not personally visit the scene of the crime.
However defense investigators did review the scene, reported to the attorney, and the attorney
was already familiar with the area.
Petitioner took the position that he did not commit the crime. Until shortly prior to
entering a plea of guilty, he alleged he was elsewhere. Petitioner now complains that his attorney
failed to inquire into his state of mind in an effort to show that he acted in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner. His attorney at the post-conviction hearing stated that it was a little hard to discuss
mental state at the time of the shooting with petitioner, since petitioner indicated he did not
commit the shooting. Petitioner asserts that he finally stopped lying to his attorney, admitted he
shot the victim, and that his attorney should have pursued voluntary manslaughter rather than
settling for a plea of second degree murder. Petitioner insists that his car exploding caused a
state of passion; however, he now admits he obtained a weapon, drove to another location in
search of someone, and that it was sometime later when he shot the victim.
There was much negotiation between his attorney and the District Attorney General with
regard to a negotiated plea. The petitioner had been convicted of perjury, he remained a suspect
in a different murder, and he was also a suspect in an attempted murder. The District Attorney
was serious about prosecuting the defendant in this case. His attorney repeatedly tried to settle
this case, and testified that he was well pleased with the settlement, based on the fact that the
petitioner actually goes looking for somebody and shoots them in the back from a distance of
twenty feet. He felt that a second degree murder plea for twenty years at thirty percent under the
facts of this case, and the record of the petitioner, was a plea that was in the best interest of
petitioner.
During the entry of the plea of guilty, the petitioner himself stated to the court that he was satisfied with the way his attorney had handled the case, that he had spoken with his attorney
about all defenses, and that he was satisfied with the negotiated plea arrangement.
The petitioner has failed to demonstrate that his attorney’s performance was deficient, or
that there was a probability that he would not have pleaded guilty and would have insisted on
going to trial except for his attorney’s errors. The evidence does not preponderate against the
judgment of the post-conviction court.
The judgment of the lower court is affirmed.
__________________________ JOE H. WALKER, III Sp. JUDGE
CONCUR:
_______________________ JOE G. RILEY, JUDGE
______________________ J. CURWOOD WITT, JR., JUDGE