Terry Lee Blanford v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1997 SESSION
July 30, 1997
Cecil W. Crowson
TERRY LEE BLANFORD, * Appellate Court Clerk
C.C.A. # 01C01-9605-CR-00222
*
Appellant, * DAVIDSON COUNTY
VS. *
* Hon. Ann Lacy Johns, Judge
STATE OF TENNESSEE, *
* (Post-Conviction)
Appellee. *
*
For Appellant: For Appellee:
Mark C. Scruggs Charles W. Burson
Attorney at Law Attorney General & Reporter
P.O. Box 158932
Nashville, TN 37215-8932 Lisa A. Naylor
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Roger D. Moore
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Terry Lee Blanford, appeals from the trial court’s
dismissal of his first petition for post-conviction relief. The single issue presented for
our review is whether the trial court erred by finding that counsel was not ineffective
for failing to pursue the defense of voluntary intoxication.1
We find no merit to the issue and affirm the judgment of the trial court.
On April 7, 1992, the petitioner pled guilty to felony murder. During a
party at the Kentucky residence of Ronnie Oller and Penny Oller, the petitioner and
the Ollers decided to drive to Tennessee to rob the victim, Dr. Gul Telwar, who had
been their former employer. The petitioner broke into a back window of an office
trailer located on the victim's car lot and waited for the victim to arrive. The Ollers
remained in the car. Upon the victim's arrival about an hour later, there was an
argument over a car title; the petitioner shot the victim eight times, took his billfold
and several car keys, and escaped through the trailer window.
Several days later, the petitioner gave a video-taped statement to
police. During a conference with his attorney, the petitioner insisted that because he
was drunk, he did not remember the events surrounding the murder. After
researching the issue, defense counsel decided that intoxication would not be a
plausible defense to the felony murder charge. The petitioner then pled guilty to
felony murder and received a life sentence. There was no direct appeal.
When a petitioner seeks post-conviction relief on the basis of
1
In his appellate brief, the petitioner also mak es reference to the issue of whether the video-
tape d statem ent w as m ade while the he was intoxicated and there fore sho uld ha ve been sup pres sed .
The body of the argument, however, contains a sentence acknowledging that the petitioner was not
impaired by intox ication at the tim e of the statem ent.
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ineffective assistance of counsel, he must first establish that the services rendered
or the advice given was below "the range of competence demanded of attorneys in
criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he
must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, no relief is warranted. As to guilty pleas, the petitioner must
establish a reasonable probability that, but for the errors of his counsel, he would
not have entered the plea and would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985).
On appeal, the findings of fact made by the trial court are conclusive
and will not be disturbed unless the evidence contained in the record preponderates
against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991); Brooks
v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the
petitioner to show that the evidence preponderated against those findings. Clenny
v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
The petitioner argues that voluntary intoxication is a defense to felony
murder if the underlying charge, such as especially aggravated burglary or
especially aggravated robbery, contained a specific intent requirement. He claims
that the case should have been tried before a jury, relying on this defense. The
petitioner also contends that because intoxication would have been a complete
defense to both first and second degree murder, he could have been convicted of
nothing more than voluntary manslaughter.
The trial court found that a taped statement by the petitioner provided
details of the killing that only one involved in the shooting would know. Implicit in
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this finding is the finding that the petitioner was not so intoxicated that he could not
remember the events surounding the murder as he later tried to claim. The trial
court also found that defense counsel was effective in his representation of the
petitioner.
Defense counsel testified that it was his opinion that intoxication would
not be an effective defense for the petitioner. We agree. At the time of the offense,
felony murder was defined as "[a] reckless killing of another committed in the
perpetration of, or attempt to perpetrate" any of the enumerated felonies. Tenn.
Code Ann. § 39-13-202(a) (2) (1991 repl.). Voluntary intoxication is not a defense to
crimes involving a reckless mens rea: "If recklessness establishes an element of an
offense and the person is unaware of a risk because of voluntary intoxication, the
person's unawareness is immaterial in a prosecution for that offense." Tenn. Code
Ann. § 39-11-502(b) (1991 repl.). In consequence, defense counsel cannot be
faulted for failing to pursue an intoxication defense. It could not have been
successful.
In our view, there were other factors that influenced trial counsel's
recommendation to the petitioner to accept a plea agreement. Ronnie Oller had
already been convicted of murder and sentenced to life plus twenty years. Both
Oller and his wife were to be witnesses for the state at the petitioner's trial. The
state had a video-taped confession from which the jury could assess firsthand the
petitioner's mental capacity. A guilty plea, under these circumstances, may have
been a sound tactical decision. Defense counsel appears to have conducted an
adequate investigation, including legal research, before recommending the plea.
The record also establishes that the petitioner made a knowing and voluntary plea
based upon advice from his counsel. From all of this, we cannot find deficiency in
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the performance of counsel. There was a basis in the law for his advice to the
petitioner.
Accordingly, the judgment of the trial court is affirmed.
Gary R. Wade, Judge
CONCUR:
David G. Hayes, Judge
Curwood Witt, Judge
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