Curtis Miller v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1997 SESSION
January 9, 1998
Cecil W. Crowson
Appellate Court Clerk
)
CURTIS ANTHONY MILLER, )
) C.C.A. No. 01C01-9701-CR-00026
Appellant, )
) Davidson County
V. )
) Honorable Seth Norman, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction: Ineffective Assistance
) of Counsel)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jennie L. Brown John Knox Walkup
229 Summit Ridge Drive Attorney General & Reporter
Nashville, TN 37215
Clinton J. Morgan
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
Roger Moore
Assistant District Attorney General
Washington Square, Suite 500
222-2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Curtis Anthony Miller, appeals the denial of post-conviction
relief. He was convicted of second degree murder in February 1993 and was
sentenced to twenty years in prison. This Court affirmed his conviction in June
1994. In this post-conviction petition, the appellant’s sole issue is that he was
denied effective assistance of counsel. An evidentiary hearing was held on
August 23, 1996, and the appellant was denied post-conviction relief. We affirm.
The appellant argues that his attorney was ineffective solely because he
failed to call as a witness Carl Miller, the appellant’s brother. The appellant
argues that his brother would have testified that the appellant and the victim,
Johnny Hicks, had argued earlier in the day about a pack of cigarettes. The
appellant maintains that his brother’s testimony would have helped his case,
which was based on self-defense, because his testimony would have been
evidence of the victim as the first aggressor.
The appellant concedes that he and his attorney got along well and that
he followed his attorney’s advice on issues related to his trial. He admits that he,
Carl, and his attorney discussed whether Carl should testify, and they decided
that he should not because of his felony record. The appellant, however, now
contends that he was prejudiced by this decision not to call his brother at trial.
The state asserts that the trial court did not err in denying post-conviction
relief. It maintains that Carl Miller’s testimony at the post-conviction hearing
indicated that the argument between the appellant and the victim “did not
amount to anything.” The state also notes that although the trial judge did not
produce written findings of fact and conclusions of law, he pronounced his
findings from the bench. The state argues that this oral pronouncement is
sufficient in light of the appellant’s meritless claim of ineffective assistance of
counsel.
-2-
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the
appropriate test is whether counsel’s performance was within the range of
competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
In post-conviction proceedings, petitioners bear the burden of proving
their allegations by a preponderance of the evidence. Black v. State, 794
S.W.2d 752, 755 (Tenn. Crim. App. 1990); McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Furthermore, the trial court’s findings of fact in
post-conviction hearings are conclusive on appeal unless the evidence
preponderates against those findings. Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990); State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983);
Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
First, the attorney’s decision not to call the appellant’s brother was a
strategic decision made apparently with input from the appellant and his brother.
Because the appellant is now unhappy with the outcome of his trial does not
make his attorney’s performance at trial deficient. This issue is without merit.
Second, with regard to the trial court’s pronouncement of its findings from the
bench, Tennessee Code Annotated § 40-30-211(b) (Supp. 1996) requires that
the trial court enter an order or written memorandum regarding findings of fact
and conclusions of law for each ground presented.1 Because the appellant’s
1
This statute provides:
Upon the final dis position of ever y petition, the court shall
enter a final order, an d except wher e proceedings for delayed appea l
are allowed, shall set forth in the order or a written memorandum of
the case all grounds presented, and shall state the findings of fact
and conclusions of law with regard to each such ground.
Tenn. Code Ann. § 40-30-211(b) (Supp. 1996).
-3-
claim of ineffective assistance of counsel is baseless, we find that any error by
the trial court in not reducing its findings to writing in this particular case was
harmless. Tenn. R. Crim. P. 52(a). However, in another case, failure to follow
Tenn. Code Ann. § 40-30-211(b) might not be harmless.
Accordingly, we affirm the denial of post-conviction relief.
-4-
__________________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
WILLIAM M. BARKER, Judge
-5-