State v. Creekmore ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL SESSION, 1998 August 10, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CR-00535
)
Appellee, )
)
) SCOTT COUNTY
VS. )
) HON. LEE ASBURY
ERIC CREEKMORE, ) JUDGE
)
Appe llant. ) (Post-C onviction Relie f - Vo lunt ary
) Manslau ghter)
FOR THE APPELLANT: FOR THE APPELLEE:
MAX E. HUFF JOHN KNOX WALKUP
115 Litton Road Attorney General and Reporter
Oneida, TN 37841
TODD R. KELLEY
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
WILLIAM PAUL PHILLIPS
District Attorney General
P. O. Box 10
Huntsville, TN 37756
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellant Eric C reekm ore ap peals the trial c ourt's d enial o f his petition for
post-conviction relief. He presents the following issue for review: whether the
trial court erred in denying Appellant's petition for post-conviction relief based
upon the ine ffective a ssista nce o f coun sel.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
On July 8, 1996 Appellant plea ded guilty in the Sco tt County Crim inal Court
to voluntary manslaughter. He agreed to be sentenced as a Range III persistent
offender to fifteen years in carce ration w ith the Tennessee Department of
Correction. On No vemb er 17, 19 96, App ellant filed a pro se petition for p ost-
conviction relief. This petition was amended by appointed counsel on March 26,
1997. Following a hearing, the trial court dismissed Appellant's petition on
August 20, 1997.
Specifically, Appellant alleges the following deficiencies in defense
counsel's representation:
(1) Failure to keep confiden tial the locatio n of the kn ife used
to kill Mr. Wayne Dolan;
(2) failure to with draw from representing Appellant once
counsel became aware that he could be a witness due to his
involvement in the chain of custody of the knife;
(3) failure to file a motion to suppress Appellant's statements;
(4) failure to insist that Appe llant refuse the State's p lea offer and
opt to g o to trial.
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II. POST-CONVICTION RELIEF
Appellant contends that the trial court erred in denying his petition for p ost-
convic tion relie f base d upo n the in effective assista nce o f coun sel.
In post-conviction proceedings, the Appellant bears the burden of proving
the allegations raised in the petition by clear and convincing evidence. Tenn.
Code Ann. § 4 0-30-21 0(f). See also Sco tt v. State, 936 S.W.2d 271, 272 (Tenn.
Crim. App. 1996). Moreover, the trial court's findings of fact are conclusive on
appeal unless the evidence prepond erates a gainst the judgm ent. Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594,
595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).
EFFECTIVE ASSISTANCE OF COUNSEL
Appe llant's only contention o n this a ppea l is that th e trial co urt erre d in
denying his petition for post-conviction relief based upon Appellant's allegation
that he receive d ineffe ctive as sistan ce of c ouns el.
The Sixth Amendment provides in part, "In all criminal prosecutions, the
accused shall enjoy the right. . . to have the assista nce o f coun sel for h is
defens e." U.S. C onst. a men d. 6. Sim ilarly, the Tennessee Constitution
guarantees an ac cuse d "the rig ht to be heard by him self and his co unsel. . . "
Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme
Court articulated a two-pro ng test for c ourts to em ploy in eva luating claims of
ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The Tennessee Supreme Court adopted Strickland's two-pa rt test in
Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began
its analys is by no ting tha t "The benc hma rk for jud ging a ny claim of
ineffectiveness must be whether counsel's conduct so undermined the proper
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functioning of the adversarial process that the trial cannot be relied on as having
produced a just result." Strickland, 104 S.Ct. at 2064. When a convicted
defendant challenges the effective assistance of counsel in a post-conviction
proceeding, the Appellant bears the burden of establishing (1) deficient
representation of counsel and (2) prejudice resulting from that deficien cy.
Strickland, 104 S.C t. at 2064; Powe rs v. State, 942 S.W.2d 551, 558 (Tenn. Crim.
App. 1996 ). App ellant m ust pro ve that c ouns el's rep resen tation fe ll below an
objective standard of reaso nablen ess. Strickland, 104 S.C t. at 2064. Th is Court
is not requ ired to con sider the tw o prong s of Strickla nd in any particular orde r.
Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the
Appellant fails to establish one prong, a reviewing court need not consider the
other." Id. With reg ard to counsel's deficient performance, the proper m easure
is that of reaso nablen ess un der preva iling profes sional no rms. Id. (citing
Strickland, 104 S.C t. at 2065). Put differently, counsel's performance is required
to be "within the rang e of comp etence dem anded of a ttorneys in criminal cases."
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn . 1975); Harris , 947 S.W.2d at 163.
Respecting the prejud ice prong of Strickland, the Appellant must establish that
"there is a reaso nable p robability that, but for counsel's unprofessional errors, the
result of the procee ding would h ave been d ifferent. A reas onab le prob ability is
a probability sufficient to undermine confidence in the outcom e." Strickland, 104
S.Ct. at 2068.
The Strickland Court emphasized that "Judicial scrutiny of counsel's
performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . .
requires that every e ffort be m ade to e liminate the distorting effects of h indsight,
to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to
evaluate the conduct from coun sel's perspe ctive at the tim e.'" Goad v. State, 938
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S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 20 65). The m ere
failure of a pa rticular tactic or strate gy doe s not p er se e stablis h unre ason able
representation. Id. at 369 . How ever, th is Cou rt will defer to counsel's tactical and
strategic choices only where those choices are informed ones predicated upon
adequate preparation. Goad, 938 S.W .2d at 369 ; Hellard v. S tate, 629 S.W.2d
4, 9 (Tenn. 1 982).
Regarding Appellant's first alleged deficiency, he specifically complains
that Attorney Charlie Allen, Jr., rendered inadequate representation by (1)
discovering the location of the knife used to kill the victim; (2 ) having th e knife
brought to Allen's office; and (3) surrendering the knife to authorities. Both the
State and Ap pellant ag ree that once Attorney Allen was in possession of the
knife, he was bo th legally an d ethically o bliged to surrender it to police. H owever,
Appellant contends that his attorne y perform ed deficie ntly by taking steps to
procure the knife. Appellant claims that by procuring the weapon and giving it to
the authorities, counsel eviscerated any defense which Appellant may have had
and weakened Appellant's bargaining position in plea negotiations.
Although the Ten nesse e Cod e of Professional Responsibility and the
standards demanded of criminal defense attorneys are not necessarily co-
extensive, the Code of Professional Responsibility does offer guidan ce as to the
approp riate standards of professionalism demanded in criminal cases. DR 7-
102(A) provides in part, "(A) In the representation of a client, a lawyer s hall not:
(3) Conc eal or k nowin gly fail to disclose that which the lawyer is required by law
to reveal." DR 7-1 02(A)(3).
Attorney Allen testified at the post-conviction hearing that Appellant
"prob ably told me more lies. . . than any other client I've ever had." Allen stated
that App ellant said, b oth in his statements to police and in his initial statem ents
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to Mr. Allen, that Wayne Dolan had drawn the knife on Appellant and that
Appellant took the knife from Dolan and s tabbe d him . More over, A ppella nt told
the police that after stabbing Dolan, Appellant threw down the knife b efore he left
the tavern parking lot where the stabbing occurred. According to Mr. Allen, he
explained to Appellant that if the knife wa s, in fact, Do lan’s, then locating th e knife
would strengthen Appellant's case. This prompted Appellant to reveal that he
had hidden the knife near a water heater in Charlie Stephens' home in K entucky.
Mr. Allen telephoned Charlie Stephens and asked him to look for a kn ife in his
basement behind the water heater. Because of rumors that the victim had
human immunodeficiency virus (HIV), Mr. Allen directed Stephens to wear gloves
and to place the knife into a plastic ba g and s eal it. Steph ens co mplied with
Attorney Allen's request to bring the knife to Allen's office. Mr. Allen telephoned
Detective Lewallen and told h im to com e and g et the knife .
Contradicting Mr. Allen's testimony, Appellant stated that Mr. Allen cussed
Appellant and told App ellant that he knew that Appellant wa s lying. Therefore,
Appe llant disclos ed the loc ation of the knife.
In its order dis missing Appella nt's petition, th e trial court c orrectly
concluded that Mr. Allen did not perform deficiently by discovering the location
of the knife and by having it brought to his office. Mr. Allen, operating under
information given him by Appellant to the effect that the weapon was the victim's,
made a reasonable strategic decision that turning over the knife to authorities
would strengthen Appellant's case and buttress his self-defen se theory.
Moreover, nothing in the record ind icates tha t the knife w as som ehow c rucial to
the prosecution. Thus, Appellant has failed to demonstrate prejudice from
counsel's action.
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Appe llant's second allegation of ineffective assistance of co unsel is that Mr.
Allen shou ld have withdrawn from representing Appellant once counsel became
aware that he po tentially cou ld be a witn ess du e to his invo lveme nt in the chain
of custody of the knife . DR 5-1 02(B) p rovides in p ertinent pa rt, "(B) If, after
undertaking employment in contemplated or pending litigation, a lawyer learns
or it is obvious that the lawyer. . . may be called as a witness. . . the lawyer may
continue the representation until it is apparent that the testimony is or may be
prejudicial to the client." DR 5-102(B). Attorney Allen testified that he was not
concerned that he w ould ha ve been in the cha in of custo dy had the case
proceede d to trial and had D etective Lewallen been called to testify. Hence, he
saw no need to withdraw from rep resenting Appella nt. Moreover, it is significant
that Mr. Allen discov ered th e loca tion of th e knife only be caus e App ellant to ld him
where it was hidden. Ultim ately, Appellant and the prosecution agreed upon a
plea bargain, thereby avoidin g trial. Thus, it is difficult to conclude that Appellant
was, in any way, prejudiced by Mr. Allen's failure to withdraw.
Appellan t's third co mpla int is tha t Mr. Alle n sho uld ha ve filed a motio n to
suppress Appellant's statements. Appellant claims that he was intoxicated at the
time that he gave his statement. At the post-co nviction hearing, Appellant
conceded that the police administered the Miranda warnings to him and that he
signed a waiver of rights form before giving his statement. Be fore giv ing his
statem ent, Appellant denied being intoxicated. Detective Randy Lewallen of the
Scott Coun ty Sheriff's D epartm ent testified tha t when he too k App ellant's
statem ent, Appellant informed Lewallen that he had been drinking but was not
intoxicated. Detective Lewallen further testified that because Appellant
"appeared to be on the verge of being intoxicated," Lewallen asked Appellant
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several questions to ensure that Appellant was thinking clearly. Lewallen then
went forward with the interrogation.
Mr. Allen explained that he did not move to suppress Appellant's statement
for two reasons . First, according to Allen, A ppellant advised him that he had
been properly Mirandized. Second, Appellant's statement was helpful to the
defense becau se App ellant's state ment in dicated th at he stabbe d the vic tim in
self-defense. Indeed , Allen state d that had the case procee ded to trial, he w ould
have liked for Appellant's statement to have been admitted into evid ence . This
is a reaso nable tac tical decisio n, and w e will not sec ond-gu ess it.
Regarding Appellant's assertion that he was intoxicated when he gave h is
statem ent, we emphasize that "[I]ntoxication or mental unsoundness is not alone
sufficient to bar the introduction of statements made by an accused if the
evidence also shows the accuse d was cap able of unde rstanding his rights."
State v. Bell, 690 S.W .2d 879, 882 (Tenn. Crim . App. 1985 ).
Appe llant's final co mpla int is that Mr. Allen rendered ineffective assistance
by coercing him into signing the plea agreement. Appellant contends that he did
not sign the plea agreement freely, knowingly, and voluntarily. In Hill v. Lockhart,
474 U.S. 52, 59, 106 S.C t. 366, 369-70, 88 L.Ed.2d 203 (1985), the United States
Supreme Court held that the two-prong analysis of Strickland v. Washington for
evaluating ineffective assistance of counsel claims applies to plea agreements.
In order to satisfy the "prejudice" prong, the accused must demonstrate "that
there is a reasonab le probability that, but for coun sel's errors, he wou ld not have
pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 106
S.Ct. 366, 370.
Appellant testified at the hearing on his pe tition for post-c onviction relief
that Mr. Allen neglected to explain all of his constitutional rights to him, but he
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could not recall which rights Allen failed to discuss. Upon being questioned by
the court, Appellant stated that he rec alled th e cou rt advisin g him of all of h is
rights befo re he en tered his g uilty plea.
Attorney Allen testified that he and Appellant discussed the different
degrees of homicide and the various sentencing ranges. Allen averred that there
was no ques tion tha t Appe llant un dersto od all that he and Appellant discussed.
There is adeq uate p roof in th is reco rd that c ouns el did e xplain Appellant's rights.
Moreover, Appellant conceded that the court had advised him of all of h is rights
before he entered his plea . Base d on th is record, it is clear that Appellant's plea
was entere d freely, voluntarily, and know ingly.
The judgm ent of the trial court dism issing Ap pellant's p etition for po st-
conviction relief is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
J. CURWOOD WITT, JR., JUDGE
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