Dale Jenkins v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
June 9, 1998
Cecil W. Crowson
DALE MORRIS JENKINS, * C.C.A. # 01C01-9702-CC-00051 Clerk
Appellate Court
Appellant, * MONTGOMERY COUNTY
VS. * Hon. Robert W . Wedemeyer, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Wade Bobo John Knox Walkup
129 South Third Street Attorney General and Reporter
Clarksville, TN 37040
Lisa A. Naylor
Assistant Attorney General
Criminal Justice Division
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Arthur F. Bieber
Assistant District Attorney General
204 Franklin Street, Ste. 200
Clarksville, TN 37040
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Dale Morris Jenkins, appeals from the trial court's
denial of post-conviction relief. Convicted of first degree murder, the petitioner
received a sentence of life imprisonment for the 1991 murder of the victim, Florence
Ogburn. In this appeal of right, the single issue presented for our review is whether
the petitioner's trial counsel was ineffective.
We find no error and affirm the judgment of the trial court.
In February of 1991, the petitioner telephoned his mother and
indicated that he might have harmed the victim. A family member alerted the
authorities who, upon investigation, found the victim at her residence stabbed to
death. Officers found a meat fork in the petitioner's back pocket which medical
experts were later able to identify as the murder weapon. Arresting officers
described the petitioner as having bloodshot eyes, very sleepy, and intermittently
incoherent. He was splattered with blood. The petitioner claimed to have taken
prescription medicine and aspirin for several days prior to the murder and contended
that he could not recall stabbing the victim.
After his conviction, the petitioner waived the motion for a new trial and
his right to appeal. In 1993, he filed this petition for post-conviction relief, asserting
as follows:
(a) the jury charge permitted a finding of guilt on a
lower standard than that which the constitution allows;
(b) trial counsel was ineffective for failing to object to
improper jury instructions on the burden of proof and the
definition of premeditation;
(c) trial counsel was ineffective for failing to object to
the lack of proof of an essential element of the offense;
2
(d) trial counsel was ineffective for failing to develop a
defense;
(e) trial counsel was ineffective for failing to appeal
the conviction; and
(f) the evidence was insufficient to support a
conviction for first degree premeditated and deliberate
murder.
The petitioner also requested a delayed appeal. At the conclusion of the evidentiary
hearing, the trial court granted a delayed appeal and otherwise pretermitted the
claim of ineffective assistance of counsel. In the delayed appeal, the petitioner
argued that the evidence was insufficient and that his counsel was ineffective
because he made claims during opening statement that could not be established by
the proof. This court reversed the grant of a delayed appeal, refused to address the
claim of insufficient evidence, and remanded to the trial court for a full evidentiary
hearing on the post-conviction ineffective assistance of counsel claim. Dale M.
Jenkins v. State, C.C.A. No. 01C01-9405-CC-00156 (Tenn. Crim. App., at Nashville,
Apr. 13, 1995).
At the conclusion of the post-conviction hearing, the trial court denied
relief. This appeal followed. A number of the issues raised in the original petition
were not asserted in this appeal as grounds for relief and, in consequence, have
been waived. See Ct. Crim. App. R. 10(b). The brief of the petitioner addresses
only the issue of ineffective assistance of counsel.
The petitioner argues that his trial counsel was ineffective during and
after trial for having failed to notify the trial judge of "the difficulty he was having in
communicating with [the petitioner]." He also argues that his trial counsel was
ineffective for failing to perfect a direct appeal of his conviction.
3
In order for the petitioner to be granted relief on grounds of ineffective
assistance of counsel, he must establish that the advice given or the services
rendered were not within the range of competence demanded of attorneys in
criminal cases and that, but for his counsel's deficient performance, the result of his
trial would likely have been different. Strickland v. Washington, 466 U.S. 668(1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).
This court may not second-guess the tactical and strategic choices
made by trial counsel unless those choices are uninformed because of inadequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel may not
be deemed ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn. Crim. App.
1980). The reviewing courts must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance. Strickland, 466
U.S. at 690.
The findings of fact made by the trial court are conclusive and will not
be disturbed on appeal unless the evidence contained in the record preponderates
against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988);
Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). The burden is on the
petitioner to prove his allegations by a preponderance of the evidence. McGee v.
State, 739 S.W.2d 789 (Tenn. Crim. App. 1987); Clenny v. State, 576 S.W.2d 12,
14 (Tenn. Crim. App. 1978).
At the evidentiary hearing, the thirty-six-year-old petitioner testified that
at the time of the murder, he was taking Dilantin for seizures. The petitioner denied
that the drug caused confusion. He acknowledged that soon after his arrest he was
4
evaluated and determined competent to stand trial but, within the next three months,
he began experiencing confusion and weakness:
One night ... I fell down in the middle of the floor and just
started seeing orange spots all over the wall. ... I tried to
get up and I couldn't .... After then ... I just got weaker
and weaker and weaker .... I couldn't do nothing but just
lay there. I couldn't get up and walk. I couldn't see
straight. I couldn't write a letter because I couldn't see
the paper. I couldn't dial the telephone because I
couldn't see it. I couldn't go to the bathroom. I had lost
all functions. I don't know why.
The petitioner claimed that his condition persisted until several weeks after the
conclusion of his trial. He contended that during his pre-trial incarceration, he was
taunted by other inmates and placed in isolation. He maintained that he slept
constantly during this period of time and had no idea that six months had passed
before his trial began.
The petitioner acknowledged his awareness that he would be tried for
first degree murder but claimed his general state of confusion prevented him from
assisting in the preparation of a defense. He testified that his trial counsel visited on
only three or four occasions for less than ten minutes each time. The petitioner also
claimed that he was not able to assist his counsel in preparation for the cross-
examination of witnesses and that he "went along with everything." He recalled that
three days after his conviction, his trial counsel asked if he wanted to appeal. He
remembered saying no but only did so because "I didn't have the slightest idea what
was going on .... [m]y mind was all messed up." The petitioner asserted that,
although he thought he had explained his confusion to the trial judge at the hearing
on the waiver of appeal, "I couldn't communicate to nobody."
The petitioner testified that his confusion stemmed from medication he
was given while incarcerated. He asserted that he had believed that he was taking
5
twice as much Dilantin or an additional medication not originally prescribed. The
petitioner also explained that a doctor indicated that Dilantin had built up in his
system, due to his inactivity, and had become toxic. He testified that he "started
coming around" after he stopped taking the medication. There was no expert
testimony to support his claims.
David Howington, an inmate and trusty at the Montgomery County jail,
recalled that he had taken food to the petitioner three times per day during his term
of isolation. He asserted that the petitioner was "crazy" and was taunted and placed
in isolation only after he had thrown urine and feces on other prisoners. He
remembered that the petitioner was "really incoherent .... He'd mumble [and] his
hand would be shaking ...." On seeing the petitioner several years after the
conviction, Howington concluded that the petitioner's condition had changed
dramatically: "You can talk to him now. He understands you. He talks."
The petitioner's trial counsel testified that he visited the petitioner in jail
eight to twelve times prior to trial. He recalled the petitioner as being "skinny, almost
anorexic. His personal hygiene was poor. ... He has talked today more than he did
the whole time that I talked to him preparing for trial. He was not talkative. He
appeared to be very depressed, very subdued." Trial counsel remembered that the
only helpful information the petitioner provided to him before trial concerned his
seizures and a reference to his childhood, which trial counsel described as
"traumatic." He recalled that the petitioner's attitude had been fatalistic during the
months preceding trial and remembered that during pre-trial discussions with the
petitioner, "he would seem to get frustrated with me and say look man[,] I broke the
rules[. C]an't we just get on with this. ... It was almost why are you bothering me
with all this trial stuff, they got me."
6
Trial counsel testified that the petitioner had undergone a mental
evaluation in an effort to develop a mental defense and was determined competent
to stand trial. Trial counsel stated that the petitioner's mother, who provided some
medical records, testified at trial. He recalled that the problems the petitioner
experienced with the jail's general population was due to the petitioner's depression
and taunting by other prisoners. Trial counsel recalled that he had decided not to
bring these difficulties up during trial because he thought they might portray the
petitioner as a vicious, hostile person.
Trial counsel testified that he had met with the petitioner to discuss the
appeal process. He specifically recalled that the petitioner was opposed to further
proceedings. Trial counsel, who informed the petitioner that waiving an appeal was
against his best interest, insisted on a proceeding before the trial judge so as to
establish a record of the waiver of appeal. He recalled that both he and the trial
judge explained to the petitioner the effects of the waiver. The trial court found as
follows:
The [petitioner] was advised at length of his post-
trial and appellate rights, which were explained to him
using legal terminology, "plain [E]nglish," and with
examples. The [petitioner] stated that he understood
those rights, and the Court finds that the [petitioner] did
understand his rights.
The [petitioner] was emphatic, positive and clear
that he did not wish his trial defense attorney to pursue a
New Trial Motion, nor any appeal of his conviction or
sentence.
In the order denying the petition for post-conviction relief, the trial court
held as follows:
[T]he waiver of new trial motion and waiver of
appeal was done only at the request of the Petitioner,
and the record clearly reflects his attorney's advice not to
waive those matters.
Further, this Court finds that the performance of
7
his attorney did not fall below that reasonably expected
of defense counsel ....
The testimony presented by the petitioner conflicted with that of his trial counsel.
The petitioner claimed he was unable to communicate, to speak, read or eat and
could only sleep in the months before trial. His trial counsel testified that, although
the petitioner appeared fatalistic and provided little assistance in forming a mental or
factual defense, he was able to communicate that he felt he had been caught and
wanted to get on with the trial. Moreover, trial counsel took precautionary steps to
make sure the petitioner understood the rights he was waiving. The trial court found
the petitioner understood his rights and the ramifications of waiver. In addition, the
trial court concluded that trial counsel had rendered effective assistance to the
petitioner. The court's ruling implicitly accredited the testimony of trial counsel over
that of the petitioner. In our view, the record supports this conclusion.
Accordingly, the judgment of the trial court is affirmed.
_____________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
William M. Barker, Judge
_______________________________
Curwood Witt, Judge
8