Twanda Ward v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
July 17, 1998
Cecil W. Crowson
Appellate Court Clerk
TWANDA D. WARD, )
) NO. 01C01-9707-CC-00242
Appellant, )
) MONTGOMERY COUNTY
VS. )
) HON. JOHN H. GASAWAY, III,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP
(Appeal Only) Attorney General and Reporter
One Public Square, Suite 321
Clarksville, TN 37040 LISA A. NAYLOR
Assistant Attorney General
COLLIER W. GOODLET Cordell Hull Building, 2nd Floor
(Hearing and Appeal) 425 Fifth Avenue North
Assistant Public Defender Nashville, TN 37243-0493
109 South Second Street
Clarksville, TN 37040 JOHN WESLEY CARNEY, JR.
District Attorney General
ARTHUR F. BIEBER
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040-3420
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Twanda D. Ward, appeals the dismissal of her petition for
post-conviction relief. The petitioner was convicted of the first degree murder of
her husband for which she was sentenced to life imprisonment. She was also
convicted of aggravated arson and given a concurrent twenty (20) year sentence.
The sole issue for our review is whether trial counsel was ineffective for failing to
present evidence of “battered woman syndrome.” The judgment of the trial court
is affirmed.
PROCEDURAL HISTORY
The petitioner was convicted by a jury in 1989 of first degree murder and
aggravated arson. This Court affirmed the convictions on direct appeal. State v.
Twanda D. Ward, C.C.A. No. 89-215-III, Montgomery County (Tenn. Crim. App.
filed August 3, 1990, at Nashville). The Tennessee Supreme Court remanded
the case to this Court with instructions to vacate the prior judgment and re-enter
the same to allow the petitioner additional time to file an application for
permission to appeal to the Supreme Court. See State v. Twanda D. Ward,
C.C.A. No. 89-215-III, Montgomery County (Tenn. Crim. App. filed December 20,
1990, at Nashville). The petitioner did not file an application for permission to
appeal to the Supreme Court.
In March 1993, the petitioner filed a pro se petition for post-conviction
relief alleging ineffective assistance of counsel. That petition was timely filed
under the three-year statute of limitations then in effect. See Tenn. Code Ann. §
40-30-102 (1990). In August 1996, the trial court held an evidentiary hearing on
the matter and issued an order denying relief in February 1997. The petitioner
subsequently filed a timely notice of appeal.
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INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner alleges the assistance rendered by trial counsel was
ineffective for failing to seek an “extensive” psychological evaluation of the
petitioner in order to present a defense based upon her extreme emotional
disturbances. The petitioner’s emotional disturbances were alleged to be the
result of physical abuse by the victim. This is more commonly referred to as the
“battered woman syndrome.”
A.
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.
The petitioner must overcome the presumption that counsel’s conduct falls within
the wide range of acceptable professional assistance. Strickland v. Washington,
466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn.
Crim. App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App.
1996).
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In post-conviction proceedings, the petitioner has the burden of proving
the allegations contained in her petition. Butler v. State, 789 S.W.2d at 899. The
trial court’s findings after a post-conviction hearing are conclusive unless the
evidence preponderates against the judgment. Id.B.
The petitioner’s trial counsel, Hugh Poland, testified that he spent sixty-
seven (67) hours investigating and preparing for the petitioner’s trial. Poland had
the petitioner undergo a mental evaluation at the Harriet Cohn Mental Health
Center, where she was found sane at the time of the offense and competent to
stand trial. There was no evidence introduced at the post-conviction hearing that
the petitioner suffered from any mental disease or defect that additional
psychiatric testing would have revealed; therefore, the petitioner has failed to
show prejudice. See Davis v. State, 912 S.W.2d 689, 698 (Tenn. 1995).
The petitioner testified at the post-conviction hearing that she argued with
the victim over his purchase of a new car. That purchase caused the defendant
to become so angry she bought some gasoline, tied the victim to his bed, poured
the gasoline over him, and set him on fire. The petitioner stated the new car
purchase “just took me over the edge.” She further testified that the victim was
physically abusive to her on only two (2) occasions.
C.
The petitioner has failed to meet her burden. Even if counsel had argued
“battered woman syndrome” as a defense, the petitioner has not shown a
reasonable probability that the defense would have been successful. The
petitioner, in a cool and calculated manner, tied the victim up, doused him with
gasoline, and set him on fire. The petitioner’s own testimony reveals she killed
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the victim because she was angry over an automobile purchase, not because
she feared for her safety.
The evidence does not preponderate against the findings of the trial court.
Accordingly, the judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
___________________________
CURWOOD WITT, JUDGE
________________________________
R. LEE MOORE, JR., SPECIAL JUDGE
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