Jermaine L. Hunter v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLLE FILED
AUGUST SESSION, 1999 September 9, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
JERMAINE LEJUANE HUNTER, *
* No. 01C01-9809-CR-00397
Appellant, *
* DAVIDSON COUNTY
vs. *
* Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE, *
* (Post-Conviction)
Appellee. *
For the Appellant: For the Appellee:
Jefre S. Goldtrap Paul G. Summers
Attorney Attorney General and Reporter
207 Third Avenue, North
Post Office Box 190599 Elizabeth T. Ryan
Nashville, TN 37219-0599 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
District Attorney General
Katy N. Miller and Nick Bailey
Asst. District Attorneys General
Washington Square, Suite 500
222 Second Avenue South
Nashville, TN 37201
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Jermaine LeJuane Hunter, appeals the Davidson County
Criminal Court’s dismissal of his petition for post-conviction relief. On January 11,
1995, the appellant was found guilty by a jury of first degree murder and received a
life sentence in the Tennessee Department of Correction.1 His conviction and
sentence were affirmed by this court on direct appeal. See State v. Jermaine
Hunter, No. 01C01-9506-CR-00176 (Tenn. Crim. App. at Nashville, Aug. 22, 1996),
perm. to appeal denied, (Tenn. Feb. 3, 1997). The appellant collaterally attacks his
conviction for first degree murder upon grounds of ineffective assistance of counsel.
Specifically, he contends that trial counsel was deficient for (1) failing to adequately
prepare for trial and meet with the appellant; (2) failing to fully communicate with the
appellant his vulnerability regarding sentencing; and (3) failing to investigate and
utilize all possible alibi witnesses.
After review of the record, we affirm the lower court’s denial of post-conviction
relief.
Analysis
On December 29, 1997, the appellant filed a pro se petition for post-
conviction relief alleging that he had received the ineffective assistance of counsel
and that the State had withheld exculpatory evidence. The post-conviction court
appointed counsel on February 18, 1998. No amended petition was filed. An
evidentiary hearing was subsequently held on May 20, 1998. On July 24, 1998, the
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The facts underlying this conviction reveal that, on November 8, 1993, the appellant
murdered his ex-girlfriend approximately two weeks after the termination of their relationship. The
twenty-year o ld victim su ffered m ultiple guns hot wou nds to he r forehe ad, torso , leg and ha nds.
An eyewitness, who had known the appellant for fifteen years, identified the appellant as the
shoote r. See State v. Jermaine Hunter, No. 01C01-9506-CR-00176 (Tenn. Crim. App. at
Nash ville, Aug. 22, 1 996), perm. to appeal denied, (Tenn. Feb. 3, 1997).
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post-conviction court entered an order addressing the appellant’s claims and
denying the appellant relief.
In dismissing the petition, the post-conviction court found, in parts pertinent to
this appeal:
The petitioner contends that [counsel] did not have adequate time to
prepare for trial and that he did not conduct a competent pre-trial
investigation. [Counsel] testified that he was appointed to represent
the petitioner approximately six (6) weeks before trial. [Counsel]
indicated that such time ordinarily would have not been sufficient to
prepare for a case of this nature. However, he asserted that the
petitioner’s prior attorneys . . . had already thoroughly prepared the
case at the time he was appointed and that he largely just needed to
review the investigative file and the audio tape of the preliminary
hearing to prepare himself for trial. [footnote omitted]. [Counsel] also
testified that he met with the petitioner and the petitioner’s family on
occasions prior to trial to discuss the case. [Counsel] indicated that he
was ready to proceed on the day of trial and, accordingly, did not seek
a continuance. [footnote omitted]. . . .
...
[Counsel] testified that he discussed potential defense strategies with
the petitioner prior to trial and ultimately, with the approval of the
petitioner, pursued an alibi defense. . . . The Court finds no reason to
second-guess the tactical and strategic decisions of counsel. The fact
that the jury apparently did not accredit the alibi defense is not
reflective on counsel’s efforts.
The petitioner also contends that [counsel] failed to call certain
witnesses who could have supported his alibi defense. However, the
Court points out that the defense of alibi had already been introduced
through several family members whom the jury apparently did not find
to be credible. Any additional testimony reiterating the petitioner’s
claim would have been cumulative. Moreover, as [counsel]
acknowledged, the state’s evidence was simply too strong for any
claimed alibi defense. In any event, the petitioner failed to . . . present
any such witnesses at the evidentiary hearing.
In sum, the Court is satisfied that [counsel] handled the petitioner’s
case in a professional manner. The Court is of the opinion that
[counsel] competently represented the petitioner at all stages of the
case. [”Despite claims to the contrary, the Court finds that the
petitioner was well aware of the sentence he would face if convicted of
first degree murder.”] The petitioner could not articulate with any
specificity any credible claims of deficient and prejudicial errors by
counsel, and, accordingly, has failed to carry his evidentiary burden.
To succeed in a post-conviction claim of ineffective assistance of counsel, the
appellant must show, by clear and convincing evidence, Tenn. Code Ann. § 40-30-
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210(f) (1997), that the services rendered by trial counsel were deficient and that, but
for the deficient performance, the results of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). For purposes of proving ineffective assistance of counsel, proof of deficient
representation by omission requires more than a speculative showing of lost
potential benefit. The post-conviction court found that counsel was not deficient and
that counsel’s action did not prejudice the appellant. When this court undertakes
review of a lower court’s decision on a petition for post-conviction relief, the lower
court’s findings of fact are given the weight of a jury verdict and are conclusive on
appeal absent a finding that the evidence preponderates against the judgment. See
Davis v. State, 912 S.W .2d 689, 697 (Tenn. 1995). After reviewing the record, we
conclude that the evidence does not preponderate against the detailed findings
entered by the post-conviction court.
As a result, we find no error of law requiring reversal. The judgment of the
trial court dismissing the appellant’s petition for post-conviction relief is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_____________________________________
JOE G. RILEY, Judge
_____________________________________
L. T. LAFFERTY, Senior Judge
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