William R. Waters v. State ( 1997 )


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  •              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