State v. Willie Pegues ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1998
FILED
WILLIE L. PEGUES, ) April 6, 1998
) No. 02C01-9705-CR-00182
Appellant ) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
vs. )
) Hon. JOSEPH B. DAILEY, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Loys A. "Trey" Jordan, III John Knox Walkup
4171 Lamar Avenue, Suite 101 Attorney General and Reporter
Memphis, TN 38118
Kenneth W. Rucker
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
James M. Lammey
Asst. District Attorney General
Criminal Justice Complex, Suite #301
201 Poplar Street
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Willie L. Pegues, appeals the denial of his petition for post-
conviction relief by the Shelby County Criminal Court. He is currently serving a life
sentence in the Department of Correction imposed as a result of his 1991 conviction
for the felony murder of Nore Bolar. 1 His conviction was affirmed on direct appeal to
this court. See State v. Pegues, No. 02C01-9202-CR-00040 (Tenn. Crim. App. at
Jackson, Mar. 9, 1994), perm. to appeal denied, (Tenn. Jul. 5, 1994). In February
1995, the appellant filed a pro se petition for post-conviction relief. After counsel was
appointed, an amended petition was filed. Following a hearing on the merits, the trial
court denied the post-conviction petition. In this appeal as of right, the appellant argues
ineffectiveness of counsel at trial and on appeal. Specifically, he contends that trial
counsel failed to adequately prepare for trial and failed to file a written motion to
suppress; and, that appellate counsel failed to challenge the admissibility of the
appellant’s statements to the police. In a separate, but related issue, the appellant
argues that the trial court improperly admitted into evidence his statement to the police.
After a review of the appellant’s issues, we affirm the decision of the trial court.
Evidence at Post-Conviction Hearing
In support of the allegations in his petition, the appellant presented the testimony
of his mother, Frances Pratcher. She testified that she was present when police
officers arrested her son, who was seventeen years old. Ms. Pratcher asserted that the
appellant was not advised of his right to counsel or his right to remain silent. The
1
The appellant’s conviction resulted from the July 1990 beating death of eighty-one year
old Nore Bolar. In a signed statement to police officers, the appellant related that he completed an
errand for the eighty-one year old Bolar and then watched television with her at her home. The
appellant admitted that he then murdered the victim with a sheetrock hammer and an ax and
procee ded to tak e over thre e hund red dollars in cash a nd a beig e telepho ne from her resid ence.
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appellant was then placed in a patrol car and transported, accompanied by his mother,
“downtown.” At the station, the appellant was placed in a room while his mother
remained outside in the hall. Frances Pratcher stated that she was not permitted to
enter the room. Despite allegations that Ms. Pratcher had signed the appellant’s
statement to the police, she stated that the only paper which she signed was a consent
to search her home. Additionally, regarding trial counsel’s performance, Ms. Pratcher
asserted that trial counsel only contacted her once prior to trial. Furthermore, even
though Ms. Pratcher could supply her son with an alibi, trial counsel refused to develop
this defense maintaining that “it was too late” to be used at trial.
The appellant corroborated his mother’s testimony. He stated that he was never
advised as to the reason for his arrest and was never advised of his right to counsel or
his right to remain silent. In fact, the appellant testified that the only reason he provided
a statement was so “[he] would be able to leave.” On cross-examination, the appellant
conceded that he was advised of his rights prior to his statement. However, he
subsequently recanted his testimony, stating that his rights were not read to him until
after he gave his statement.
The appellant stated that Betty Thomas was appointed to represent him at trial.
He testified that Ms. Thomas only met with him three times prior to trial for a total of
about an hour. He related that a written motion to suppress was not filed by Ms.
Thomas, although he conceded that an oral motion was made and a hearing held on
that motion. He verified that the only issue raised on direct appeal challenged the
sufficiency of the evidence, although other issues existed which he would have wanted
raised on appeal.
The State introduced the testimony of Betty Jo Thomas, the appellant’s trial
counsel. Ms Thomas, a veteran member of the Shelby County Public Defender’s
Officer, testified that she visited the appellant “quite a few times because he was a
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juvenile at the time.” She stated that the appellant did not have any witnesses, and
although he supposedly was with some friends at the time of the murder, these friends
were State witnesses. Ms. Thomas further indicated that she only learned about the
purported alibi during Ms. Pratcher’s post-conviction testimony.
Regarding the motion to suppress, Ms. Thomas testified that she recalled filing
a boilerplate motion to suppress, although she did not have a copy of the motion in her
possession. She explained that, “because of the age of the case,” the file was sent to
the archives and could not be located. She conceded that this motion may have been
during a juvenile remand, which included an extensive hearing on the suppression
issue. She stated that a written motion was not required by the court and that a hearing
on an oral motion was held prior to trial. She explained that she waited until the day of
the trial to pursue the motion because she was waiting for a psychological evaluation
of the appellant, which would have indicated his competency at the time the statement
was made.
The trial court denied the appellant’s petition. Specifically, the trial court held,
in portions relevant to the present appeal:
With regard to the Motion to Suppress, everyone is in agreement that an
oral motion to suppress was lodged and a hearing was held pursuant to
that motion. The motion was denied and the case proceeded to trial.
Trial counsel gave full and adequate explanations for why a written
motion to suppress was not filed and why the matter was not heard until
the day of trial. This case had been pending for quite some time and had
involved a thorough juvenile remand hearing as well as numerous
psychiatric evaluations and other hearings that necessitated a delay in
actually hearing the Motion to Suppress.
With regard to the complaint that there were too few meetings between
the attorney and client, trial counsel stated that she met on numerous
occasions with the defendant and consulted with him both in regard to
pre-trial preparation and simply to reassure him that work was being done
on his case. In addition to the meetings in the jail that were conducted,
there were no less than 16 in court report dates during which time the two
met.
...
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For all of these reasons . . . trial counsel . . .provided through and
outstanding representation . . . and . . .her representation far exceeds the
minimum standards . . . .
Analysis
In post-conviction proceedings, the appellant must prove the allegations
contained in his petition by a preponderance of the evidence.2 State v. Kerley, 820
S.W.2d 753, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991); Oliphant
v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1991). Findings of fact and conclusions of law made by the trial court are given the
weight of a jury verdict, and, this court is bound by those findings unless the evidence
contained in the record preponderates otherwise. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); Teague v. State, 772 S.W.2d 932, 934 (Tenn. Crim. App. 1988), cert.
denied, 493 U.S. 874, 110 S.Ct. 210 (1989). This court may not reweigh or reevaluate
the evidence or substitute its inferences for those drawn by the trial court. Questions
concerning the credibility of witnesses and the weight and value to be given their
testimony are for resolution by the trial court. Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990).
In his first challenge, the appellant argues that “the trial court erred in allowing
the statements made by the defendant, while in police custody, to be admitted into
evidence.” The trial court correctly observed that this issue was not raised on direct
appeal and is, therefore, waived. See Tenn. Code Ann. § 40-30-112(b)(1) (repealed
1995). However, the appellant also frames this identical issue as an ineffective
assistance claim, arguing that appellate counsel was ineffective for failing to challenge
the admissibility of his confession. Initially, we note that the appellant failed to raise the
issue of ineffective appellate counsel in his petition for post-conviction relief and he
2
The appellant’s pro se petition was filed on February 20, 1995. Accordingly, the
appellant’s burden of proof was by a “preponde rance of the evidence.” See Tenn . Code A nn. §
40-30-105 (repealed 1995).
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failed to argue it before the trial court.3 Issues not raised in a petition for post-
conviction relief cannot be raised for the first time on appeal. A post-conviction petition
“must necessarily rest upon and be determined by the factual allegations it contains.”
Lofton v. State, No. 02C01-9603-CR-00073 (Tenn. Crim. App. at Jackson, Mar. 7,
1997), perm. to appeal denied, (Tenn. Oct. 6, 1997). See also Thomas v. State, No.
02C01-9408-CR-00167 (Tenn. Crim. App. at Jackson, Mar. 22, 1995), perm. to appeal
denied, (Jul. 10, 1995). Moreover, the appellant has also failed to prepare an adequate
record; further precluding review of this issue on its merits.4 See Tenn. R. App. P. 24.
A determination as to the substance of a claim is essential to the determination of
whether counsel’s failure to raise an issue on direct appeal amounted to deficient
performance or that counsel’s failure to raise this issue prejudiced the appellant.5 See
Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583 (1986) (to prevail on
ineffectiveness claim involving counsel’s failure to raise legal issue on appeal,
defendant must show that issue has merit.). Accordingly, the issues relating to the
merits of the motion to suppress and failure to raise the issue on appeal are waived.
I. Ineffectiveness of Trial Counsel
In his only issue properly before this court, the appellant contends that trial
counsel was ineffective for failing to file a written motion to suppress and for failing to
adequately prepare for trial. To succeed in such a challenge, the appellant must show
3
In es tablis hing t he ine ffec tivene ss o f app ellate coun sel, th e bur den upon the a ppe llant is
no different than establishing the ineffectiveness of trial counsel. The appellant must prove the
allegation; an allegation sta nding alon e does not cons titute proof. See Clenny v. S tate, 576
S.W .2d 12 (T enn. Cr im. Ap p.1978 ), cert. denied, 441 U.S. 947, 99 S.Ct. 2170 (1979). Indeed,
there is the presum ption that co unsel wa s effec tive. See Barr v. Sta te, 910 S.W.2d 462, 464
(Tenn . Crim. A pp.), perm. to appeal denied, (Tenn . 1995). A ppellate co unsel wa s not ca lled to
testif y at the hear ing, th eref ore, w e are witho ut the bene fit of h is rea son s for failing to rais e this
issue on appea l. Clearly, one su ch reas on cou ld be that ap pellate cou nsel believe d the issu e to
be without merit. Nonetheless, we are not permitted to speculate as to whether appellate counsel
was de ficient.
4
W e note tha t the appe llant ma kes nu mer ous refe rences in his brief to the trial transcript.
However, he has failed to include the transcript in the present record, rendering such references
to the record meaningless.
5
Although not conclusive to the issue, the record indicates that the appellant signed a
written waiver of his constitutional rights.
6
that counsel's representation fell below the range of competence demanded of
attorneys in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and,
that, but for these errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984); State v.
Melson, 772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S.Ct. 211(1989). Again, on post-conviction review, there is a strong presumption of satisfactory
representation, Barr, 910 S.W.2d at 464, and the appellant bears the burden of proving
his allegations by a preponderance of the evidence. Taylor v. State, 875 S.W.2d 684,
686 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn. 1994).
i. Failure to File Written Motion to Suppress
Again, focusing on the admissibility of his confession, the appellant asserts that
trial counsel was ineffective for failing to file a written motion to suppress according to
Rule 6 of the Shelby County Criminal Court Local Rules of Practice and Procedure.
Although the appellant concedes that an oral motion to suppress was made and heard
by the court, he argues that this procedural “deviation” resulted in deficient
performance. Whether the trial court permitted admission of the appellant’s statement
to the police following an oral motion or a written motion is of no consequence. Under
these facts, neither deficient performance nor prejudice is found. This issue is without
merit.
ii. Failure to Prepare for Trial
In his final allegation, the appellant contends that trial counsel failed to meet with
him to prepare for his defense. Specifically, he claims that counsel only met with him
for a cumulative one hour period prior to trial. He asserts that this failure to meet with
him is indicative of her overall representation of the appellant. The trial court found that
counsel had met with the appellant “numerous times.” The evidence in the record does
not preponderate against these findings. This issue is without merit.
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For the reasons discussed herein, the order of the trial court denying the
appellant’s petition for post-conviction relief is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________
WILLIAM M. BARKER, JUDGE
_______________________________
JOE G. RILEY, JUDGE
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