Lutcher Eidson v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1997 SESSION
February 23, 1998
Cecil W. Crowson
LUTCHER EIDSON, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9607-CR-00295
)
) Davidson County
v. )
) Honorable Thomas H. Shriver, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Geoffrey Coston John Knox Walkup
2813 West End Ave. Attorney General of Tennessee
Nashville, TN 37203 and
Clinton J. Morgan
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
John Zimmerman
James Sledge
Assistant District Attorneys General
Washington Square
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Lutcher Eidson, appeals as of right from the denial of his
petition for post-conviction relief by the Davidson County Criminal Court relative to his
1989 convictions for two counts of assault with intent to commit first degree murder,
one of which resulted in bodily injury. The convictions were affirmed on appeal. State
v. Lutcher Eidson, No. 01C01-9004-CR-00097, Davidson County (Tenn. Crim. App.
Dec. 12, 1990), app. denied (Tenn. Feb. 25, 1991). He is presently in the custody of
the Department of Correction serving an effective sentence of forty-five years as a
Range II, persistent offender. The petitioner contends that the trial court erred in
concluding that he received the effective assistance of counsel at his trial. We
disagree.
In the direct appeal of the conviction, this court succinctly stated the
evidence as follows:
Several witnesses testified the appellant was one of two men
who fired shots at a group of people who were standing in a
parking lot at a service station. One person was critically
injured by the shooting. There was no evidence submitted to
refute this evidence presented by the state. The appellant
argues the evidence is insufficient because one of the state’s
witnesses gave testimony inconsistent with the testimony of
other state’s witnesses.
In this post-conviction case, the petitioner mainly complains about his attorney’s failure
to interview or call as witnesses people who would help the petitioner’s case, including
presenting an alibi. He also complains about lack of cross-examination of certain state
witnesses.
At the evidentiary hearing, the petitioner testified regarding named
individuals who, he claimed, would support an alibi defense. His attorney
acknowledged not interviewing the purported alibi witnesses, including the petitioner’s
ex-wife, but testified that the petitioner admitted to him that he, the petitioner,
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committed the shootings. The attorney stated that he was not going to assist in perjury.
When questioned about not pursuing other potential witnesses to the events, the
attorney stated that the owner of a nearby book store was uncooperative and that a
severed codefendant also refused to talk to him.
Under the law governing these proceedings, to establish that he received
the ineffective assistance of counsel at trial, it was incumbent upon the petitioner to
prove by the preponderance of the evidence that his counsel’s performance fell below
the range of competence demanded of attorneys in criminal cases and that such
improper performance prejudiced him so as to deprive him of a fair trial. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Cook, 749
S.W.2d 42, 45 (Tenn. Crim. App. 1987); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In this appeal, the burden is upon the petitioner to demonstrate that the
evidence preponderates against the trial court’s findings. See Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991).
Also, we note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
In this respect, the crucial defect in the petitioner’s case is that the
potential witnesses and the unexamined witnesses were not called to testify at the post-
conviction evidentiary hearing. It is imperative that the witnesses testify at the
evidentiary hearing in order for the trial court to determine the potential merit of the
evidence. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
even if the attorney’s lack of witness investigation and lack of cross-examination were
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to be viewed as deficient performance, the petitioner has failed to show that any
prejudice to him resulted from such deficiency.
The trial court noted that the petitioner’s attorney had vigorously contested
the identification evidence presented by the state at trial and had performed above
average in his actions. It concluded that the petitioner received the effective assistance
of counsel. With the record failing to show how the petitioner was prejudiced by the
claimed lack of investigation and lack of cross-examination by his attorney, we are
bound by the trial court’s determinations. The judgment is affirmed.
_______________________________
Joseph M. Tipton, Judge
CONCUR:
__________________________
John H. Peay, Judge
__________________________
David H. Welles, Judge
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