State v. Dewayne Cathey ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION
FILED
February 26, 1998
Cecil Crowson, Jr.
DEWAYNE CATHEY, ) Appellate C ourt Clerk
)
Appellant, ) C.C.A. No. 02C01-9612-CR-00446
)
v. ) Shelby County
)
STATE OF TENNESSEE, ) Hon. W. Fred Axley, Judge
)
Appellee. ) (Post Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
BARBARA D. MACINTOSH JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
474 Perkins Extended, Ste. 205
Memphis, TN 38117 SARAH M. BRANCH
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN W. PIEROTTI
Dist. Attorney General
ALANDA HORNE
Asst. Dist. Attorney General
Criminal Justice Complex
201 Poplar St., Ste. 301
Memphis, TN 38103
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The petitioner, Dewayne Cathey, 1 comes to this court aggrieved of the
Shelby County Criminal Court's dismissal of his claim for post conviction relief.
Cathey is presently incarcerated for a life term following his guilty plea to the crime
of first-degree murder. Following a series of hearings at which the petitioner had
the opportunity to present his evidence, the trial court found all of the allegations
contained in the petition to be without merit and denied relief. On appeal, Cathey
asks this court to review two of the trial court's four determinations. 2 He claims the
evidence preponderates against the trial court's determinations that he was afforded
the effective assistance of counsel and that his guilty plea was knowingly and
voluntarily entered. Having reviewed the record and the briefs of the petitioner and
the state, we find the petitioner's issues without merit and affirm the judgment of the
trial court.
Cathey was indicted in May 1993 for the March 1993 homicide of
Airon D. Toliver. The indictment charged the offense as first-degree murder, and
the state sought the death penalty. Counsel was appointed to represent Cathey,
though a substitution was made when his original counsel discovered a conflict of
interest.3 The state offered Cathey a plea bargain for life in prison in exchange for
his guilty plea to the crime of first-degree murder, and he accepted. His plea was
entered on November 30, 1993 in the Shelby County Criminal Court.
In the amended post conviction petition, Cathey claimed counsel was
1
According to the indictment, the petitioner is also known as Nedra Hill.
2
We give no consideration to the remaining two issues presented in the
amended petition, as they are not before us. Tenn. R. App. P. 13(b) ("[Appellate
r]eview generally will extend only to those issues presented for review."). Only
the evidence relevant to the two issues before this court will be discussed in this
opinion.
3
Only the substituted counsel was the subject of Cathey's proof at the post
conviction hearings.
2
ineffective in failing to investigate and interview witnesses, failing to obtain a
psychiatric evaluation, failing to explain the meaning and consequences of the plea
agreement in terms he could understand, and in coercing him to accept the plea
bargain by threatening him with the death penalty if he went to trial. Cathey also
claimed he had unknowingly waived his right to question his innocence at a later
time, that he had unintelligently entered his plea, that he did not understand he
waived his appellate rights, that he did not have competent advice, and that he
could not understand and be aware of his rights waived by entering the plea
because he was mentally confused and fearful for his safety in the county jail.
Evidence was received by the trial court at a series of three hearings.
Cathey's testimonial evidence included his own testimony that he was unsatisfied
with his trial counsel's performance and that he did not understand what he was
doing at the time he accepted the plea agreement. Primarily, he claimed that
counsel visited him only twice while he was in jail, did not interview his mother or
inquire into his psychological problems, did not explain his rights and the fact that
those rights were being waived by entry of a guilty plea, and held the prospect of a
death penalty verdict over his head in order to obtain his agreement to the plea
bargain. Cathey also testified that while he was being held in pretrial detention in
the Shelby County Jail he was involved in a disturbance which resulted in facial and
head injuries and required treatment at a hospital. According to Cathey, he was
extremely fearful for his safety and desired to leave the county jail as quickly as
possible. He testified he was so consumed with fear, distress and desire to get out
of the county jail that he entered the guilty plea in order to extricate himself from that
situation. Cathey conceded he had received copies of discovery from the district
attorney general's files, but as a seventh grade dropout from special education
classes, he contends he does not read well. Finally, Cathey acknowledged that had
the trial court granted post conviction relief, he would face the death penalty at any
subsequent trial.
3
Cathey's mother testified she was never contacted by trial counsel;
however, she testified if he had contacted her she would have told him that her son
had serious psychological concerns in March 1993, for which he was receiving
disability benefits from the Social Security Administration. The petitioner's mother
conceded that she did not know with whom her son was living at the time of the
murder, and he did not come around her much. She likewise conceded she knew
nothing about his mental condition at the time he pleaded guilty in November 1993.
Cathey also presented expert testimony from Floyd Covey, PhD, a
licensed psychologist who performed a mental evaluation of Cathey to determine
his eligibility for Social Security disability benefits in December 1992. Doctor Covey
diagnosed Cathey with "psychosis NOS"4 based upon a finding of auditory
hallucinations. Although Dr. Covey offered no evidence of Cathey's mental state
at the time of the crime or at the time of the plea submission, he testified it was
"certainly possible" that if Cathey's psychological condition remained the same after
the evaluation and was combined with the use of beer and marijuana, Cathey could
become violent if involved in an argument.
The state's testimonial evidence was given by the petitioner's trial
counsel, who estimated that he met with Cathey a minimum of 8 to 12 times. Trial
counsel testified his investigation included talking with the petitioner's aunt and
reviewing the petitioner's mental health records. He did not interview Cathey's
mother.
The transcript of the guilty plea hearing and the written report of Dr.
Covey were received as exhibits. The transcript of the guilty plea hearing reflects
that Cathey was admonished by the court that he was waiving his rights, which the
court explained in detail. Cathey voiced his understanding. Cathey also testified
4
According to Dr. Covey, "NOS" is a diagnostic designation which means
"not otherwise specified."
4
that he was satisfied with counsel's consultation with him and investigation of the
case. He expressed that his guilty plea was entered voluntarily and was not a result
of his unhappiness with his then-present situation in the county jail. Significantly,
he also claimed he had no psychiatric or psychological impairment which might
cloud his thinking that day. The report of Dr. Covey reflected the background
information supporting his diagnosis of psychosis NOS and his gathering of test
results revealing the petitioner to have a low IQ, though Dr. Covey deemed these
results an invalid underestimate of Cathey's actual cognitive abilities. He found
Cathey "limited" in (1) ability to understand and remember, (2) ability to sustain
concentration and persistence, (3) social interaction, and (4) adaptation.
The trial court found all of Cathey's claims without merit. The trial
court's thoughtful and well-drafted order, which recites extensive findings of fact,
reflects that the court accredited the testimony of trial counsel and the transcript of
the plea submission hearing over the testimony of the petitioner. Cathey claims the
trial court's determination on two of the issues was in error.
Cathey filed his post conviction petition prior to the 1995 amendments
to the Post Conviction Procedure Act. Therefore, his burden of proving his claims
is by a preponderance of the evidence. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.
Crim. App. 1978).5
I
First, we examine whether Cathey received the effective assistance of
counsel in the proceedings leading up to his conviction. In evaluating claims of this
nature, the finder of fact must indulge a strong presumption that counsel's conduct
falls within the range of reasonable professional assistance and must evaluate
5
The petitioner's burden of proof in all cases filed under the Post
Conviction Procedure Act of 1995 is by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f) (1997).
5
counsel's performance from counsel's perspective at the time of the alleged error
and in light of the totality of the evidence. Strickland v. Washington, 466 U.S. 690,
695, 104 S. Ct. 2066, 2069 (1984). The petitioner must demonstrate that there is
a reasonable probability that but for counsel's deficient performance, the result of
the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S. Ct.
at 2069. A trial court's findings of fact following a post-conviction hearing have the
weight of a jury verdict. Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App.
1971). On appeal, those findings are conclusive unless the evidence preponderates
against the judgment. Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).
First, the petitioner claimed his attorney failed to investigate and
interview witnesses. The trial court accredited the attorney's conservative estimate
that he met with Cathey 8 to 12 times, discussed the case in detail, talked with
Cathey's aunt, and investigated the possibility of a self defense claim. Moreover,
the trial court noted that Cathey had acknowledged his satisfaction with his
attorney's services at the plea hearing. The trial court found no harm in counsel's
decision not to interview the petitioner's mother based upon her testimony that the
petitioner did not live with her at the time and that she did not have much contact
with her son at the time of the victim's death. We cannot say the evidence
preponderates to the contrary.
Second, the petitioner claimed counsel's services were deficient
because he failed to obtain a psychiatric evaluation. The trial court found that
counsel had Cathey's mental health records. Those records were not offered into
evidence, so the trial court had no way of determining whether anything contained
therein would put counsel on notice of the need for evaluation of his client. The
petitioner had been found competent to stand trial. Counsel did not question
Cathey about whether he received Social Security disability benefits because
Cathey told counsel he was employed. In addition to these facts on which the trial
court relied, we note that counsel testified he had represented the petitioner for a
previous felony charge several years before this case, and the petitioner was found
6
competent to stand trial at that time, too. Counsel knew the petitioner from his
previous representation of him, met with him at least 8 times in preparation for this
case, and was satisfied that the petitioner understood what he was doing when he
pleaded guilty. In closing argument below, Cathey's post conviction counsel
claimed the petitioner's mental condition combined with his substance abuse at the
time of the crime "gave him a defense or at least a chance at a plea to a lesser
charge of second degree murder." The evidence presented at the hearing was only
that it was "possible" Cathey's substance abuse coupled with the psychiatric
diagnosis observed months prior by Dr. Covey "could" result in violent behavior.
The record is noticeably devoid of any evidence that Cathey entered his plea
because counsel failed to follow this line of investigation or that he would not have
entered the plea had he known of the possibility of an insanity defense or
diminished capacity argument. Our review leads us to the conclusion the evidence
does not preponderate against the trial court's determination that this subissue lacks
merit.
With respect to Cathey's claim counsel failed to explain the meaning
and consequences of his plea to him in terms he could understand, the trial court
accredited counsel's testimony and discredited Cathey's testimony. In addition, the
transcript of the guilty plea hearing belies Cathy's post conviction testimony. Again,
the evidence does not preponderate against the trial court's determination.
Cathey's fourth and final allegation of ineffective assistance is based
on counsel's alleged coercion of him through threats he would receive the death
penalty if he went to trial. The trial court accredited counsel's testimony that the
choice was left to the petitioner and that counsel advised his client of the possible
punishments but did not predict an outcome. The evidence does not preponderate
otherwise.
In sum, all of Cathey's claims of ineffective assistance of counsel are
7
without merit.
II
Cathey's next series of complaints deals with his plea and whether it
was knowingly and voluntarily entered. When reviewing the entry of a guilty plea,
the overriding concern is whether the plea was knowingly and voluntarily made.
Woods v. State, 928 S.W.2d 52, 55 (Tenn. Crim. App. 1996). The lower court's
findings of fact are conclusive on appeal unless the evidence preponderates against
those findings. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).
Cathey claims he unknowingly waived his rights to raise the question
of his innocence at some later time and to appeal. The trial court found that the
court which accepted Cathey's plea advised him of his rights not to plead guilty, to
a jury trial, to confront witnesses, to be free from self incrimination, to have a motion
for new trial and to appeal. Notably, the court which accepted the plea advised
Cathey twice of the waiver of appellate rights. The evidence does not preponderate
against the trial court's determination.
The petitioner claims his plea was unintelligently made and that his
mental confusion and fear for his safety in the county jail kept him from
understanding and being aware of the rights he waived. The court below noted
Cathey's acknowledgment of his understanding waiver of his rights at the plea
submission hearing. In addition, trial counsel testified he was satisfied the petitioner
knew and understood what he was doing. The transcript of the guilty plea hearing
further belies Cathey's claim; in it, he specifically denies both entering his plea due
to his alleged problems in the county jail and having any psychological or psychiatric
condition which clouded his judgment in making the decision to enter a plea that
day. Simply put, the evidence of record does not preponderate against the trial
court's determination.
8
Finally, Cathey claimed he did not have competent advice, and
therefore, his plea was not voluntary. The court below found Cathey was aware of
his rights. Trial counsel testified he advised Cathey of his rights and of the possible
punishments if he were found guilty of first-degree murder by a jury of his peers.
The transcript of the plea hearing illustrates that the judge again admonished
Cathey in this regard. We find the evidence does not preponderate against the trial
court's resolution of this issue.
In summary, we find all of Cathey's claims of ineffective assistance of
counsel and of having entered an unknowing and involuntary guilty plea lacking in
merit. As a result, it is our duty to affirm the judgment of the trial court.
____________________________
CURWOOD WITT, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
_______________________________
JERRY L. SMITH, JUDGE
9