Aaron Walker v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 January 28, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
AARON JERMAINE ) C.C.A. NO. 03C01-9802-CR-00046
WALKER, )
)
Appe llant, )
)
) HAMILTON COUNTY
VS. )
) HON . STEP HEN M. BE VIL
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
STE PHE N M. G OLD STE IN JOHN KNOX WALKUP
314 Vine Street Attorney General and Reporter
Chattanooga, TN 37403
MICH AEL J . FAHE Y, II
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
BILL COX
District Attorney General
BATES BRYAN, JR.
Assistant District Attorney General
Courts Building
600 Market Street
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant, Aaron Jermaine Walker, appeals the denial of his petition
for post-conviction relief by the Criminal C ourt for Ham ilton County. Defendant
asserts that he su ffered ineffe ctive assista nce of co unsel at trial and that this
alleged in effective as sistance prejudice d him in s everal res pects.
Defendant was indic ted by the Hamilton County Grand Jury for
premeditated first degree murder and felony murder (in perpetration of robb ery)
in connection with the shoo ting de ath of th e victim . Acco rding to Defe ndan t’s
testimony at his trial, he and severed co-defendant Chandler Fitch planned to find
a person addicted to crack cocaine, offer to sell the person drugs, and then take
the tendered money and flee. Defendant and Fitch un dertoo k to exe cute th eir
plan, and De fenda nt sho t the victim in the p roces s, cau sing h is dea th. A jury
convicted Defendant of felony murder and sentenced him to life imprisonment
with the possibility of parole. H is conviction and sentence were affirmed on
appea l. State v. Walker, 893 S.W .2d 429 (Te nn. 1995).
In this ap peal o f the trial court’s denial of his post-conviction petition,
Defendant alleges four instances of ineffective assistance by his trial counsel: (1)
failure to deliver effective openin g and c losing sta temen ts; (2) failure to m ove to
suppress oral statem ents by D efendant; (3) fa ilure to “con fer freque ntly” with
Defen dant; and (4) failure to request a jury charge on voluntary manslaughter, or
failure to object to the trial court’s decision not to ch arge voluntary m anslaughte r.
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W e find no merit in Defendant’s contentions, and we affirm the trial court’s denial
of relief.
To be entitled to pos t-conv iction re lief on th e bas is of ineffective assistance
of counsel, Defendant must show (1) that his trial counsel’s representation was
“deficient,” and (2) that “the deficient performance prejudiced th e defen se.”
Strickland v. Wash ington, 466 U.S. 668, 687 (1984). Under the first prong,
coun sel’s performance is not deficient when “the advice given, or the services
rendered by the attorney, are within the range of competence demanded of
attorneys in criminal cases .” Baxter v. Rose, 523 S.W .2d 930, 936 (Tenn. 197 5).
The second prong requires a petitioner to show a reasonable probability that the
result of the trial would have been different but for the deficient representation.
Strickland, 466 U.S. at 69 4. “A reasonable probability is a probability sufficient
to underm ine confidence in the outcom e.” Id.
If afforde d a po st-con viction evidentiary hearin g by the trial c ourt, a
petitioner must do more than merely present evidence tending to show
incompetent represe ntation an d prejud ice; the petitioner must prove factual
allegations by clear an d convin cing evide nce. Te nn. Co de Ann . § 40-30-210 (f).
When an evidentiary he aring is he ld, findings o f fact mad e by that co urt are
conclusive and binding on this Court unless the evidence preponderates against
them. Coope r v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. Sta te,
789 S.W .2d 898 , 899 (T enn. 19 90)).
Furtherm ore, with re spect to decisions of tactic or strategy, the Supreme
Court stated that “[a] fa ir assessment of attorney performance requires that every
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effort be mad e to eliminate the d istorting effect of hindsight, to re constr uct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
coun sel’s perspective at the time.” Strickland, 466 U.S. at 688. The courts of this
state also h ave lon g “reco gnize d that it is not ou r functio n to ‘second-guess’
tactical matters and strategical choices perta ining to defense matters or m easure
a defense attorney’s representation by ‘20-20 hindsight’ when deciding the
effectiveness of trial counsel.” Cooper, 849 S.W.2d at 746 (quoting Hellard v.
State, 629 S.W .2d 4, 9 (T enn. 19 82)).
I. OPENING AND CLOSING STATEMENTS
The record reflects that the following constitutes the entirety of the opening
statement delivered by Defe ndan t’s trial co unse l: “I’ll be brief. You said that you
will listen to this cas e in full an d we w ould just ask that you wa it till you’ve heard
all the e videnc e in this case to make your decision.” Defendant complains that
this cursory opening statement and trial counsel’s allegedly deficient closing
statement deprived him of th e effective assistance of counsel because a
competent attorney would have discussed that the evidence supported lesser
included offenses , that the State maintained the burden of proof, and that the
State must prove all elements of the offenses. In addition, Defendant asserts that
trial couns el should have ad vised the ju ry about the Defendant’s theory of the
case and specific evidence for which jurors should watch. Finally, Defendant
complains that his trial cou nsel fa iled to “guide the jury” by distinguishing the
eleme nts of lesser included offenses, and he states that these errors prejudiced
Defen dant’s ab ility to receive a fa ir trial.
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Following an evidentiary hearing on the post-con viction p etition in this
case, the trial court found, “based on the evidence, the facts known to [trial
couns el], and the trial strategy, that [trial couns el’s] argum ent to the jury did not
amount to ineffective a ssistanc e of coun sel.” To support his conclusion, the post-
conviction judge cited trial counsel’s post-conviction hearing testimony, in which
the attorney stated that “his plan was to keep the proof minimal, and try to show
the jury that the killing was an accident and not an intentional killing, thereby
hoping to reduce the charge to less than first degree murder.” In addition, the
judge “recognize[d] tha t counsel’s argu ments are not as persuasive as the proof
that’s presented at the trial.”
This Court finds no reason to disregard the po st-con viction tria l court’s
conclusion on this issu e. W aiver of opening or closing argument altogether by
trial counsel may be considered an acceptable tactic, whether or not ultim ately
successful or even wise when vie wed in h indsight. See, e.g., Bacik v. Eng le, 706
F.2d 169, 171 (6th Cir. 1983) (waiver o f opening statem ent not ineffective
assistance of couns el); Cone v. State, 747 S.W.2d 353, 357 (Tenn. Crim. App.
1987) (waiver of closing statement in penalty phase not ineffective assistance
when used a s strategy to preven t State from makin g final closing statem ent);
State v. Menn, 668 S.W .2d 671 , 673 (T enn. C rim. App . 1984) (s ame); State v.
Casson Marcel McCoy, No. 01C01-9603-CC-00109, 1997 WL 137422, at *3
(Tenn. Crim. App., Nashville, Mar. 27, 1997) (waiver of opening statement not
ineffective assistance of couns el); State v. Myer Pettyjohn, No. 01C01-9006-CC-
00139, 1992 WL 50973, at *4 (Tenn. Crim. App., Nashville, Mar. 19, 1992)
(adoption of co-defendant’s closing statement not ineffective assistance when
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used as strategy to save clos ing for sen tencing p hase a nd ma intain cred ibility
with jury), perm. to appeal denied (Tenn . 1992).
Similarly, this Cou rt has ap proved th e waiver o f a closing statement even
when trial counsel presented no tactical or strategic explanation, where the
record revealed such strong evidence against the defendant that no prejudice
existed. See Jessie S . Tidwell v. S tate, No. 01C01-9307-CR-00201, 1994 WL
548708, at *10-*11 (Tenn. Crim. App., Nashville, Oct. 6, 1994), aff’d in part, re v’d
in part, Tidwe ll v. State, 922 S.W.2d 497 (Tenn. 1996). The Tennessee Supreme
Court, though reversing in part on other grounds, found that the failure to give a
closing statement did not constitute ineffective assistance of counsel in that case.
922 S.W .2d at 498 n.1.
Based upon trial counsel’s testimony at Defendant’s post-conviction
hearing—that he focused on persuading the jury that Defendant killed the victim
by accident—and the finding made by the post-conviction judge that Defendant
did not receive ineffective assistance of counsel, we conclude that trial cou nsel’s
scant opening statement and allegedly inadequate closing statement did not
amount to deficient perform ance as co nceived by Strickland v. Washington and
Baxter v. Rose. Further, even if trial counsel’s statements had fallen below the
appropriate sta ndard of care, we conclude that Defendant would have suffered
no prejudice due to the strength of the eviden ce ag ainst h im, inc luding his own
dam ning te stimo ny at tria l.
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II. MOTION TO SUPPRESS CONFESSIONS
Defendant also claims that his trial counsel was ineffective to his prejudice
by failing to move the trial court for suppression of his statements to police. At
the post-conviction hearing, D efend ant pre sente d an a ttorney exper ience d in
criminal trial matters, who testified that failing to file a motion to suppress did not
“live up to a rea sonab le standa rd of repre sentation .” In supp ort of this allegation,
Defendant argue s that “th ere wa s an in dicatio n in the original trial that an offer of
leniency may have been used by the police. Also, the Petitioner was only 18 or
19 years old a t the time of the con fession.”
In his first statement to police, Defendant described a scene in which the
victim asked him if he w anted to buy drug s. Accor ding to this statement, when
Defendant replied “no,” the victim reache d into Defend ant’s pocket for m oney,
and Defendant noticed a gun in the vic tim’s other hand. As Defendant grabbed
the victim’s hand which held the gun, it fired, striking the victim. Later, Defendant
gave another version of events, which was virtu ally identical to his testimony at
trial. He stated that he, rather than the victim, possessed the gun; and he
recoun ted the pr econc eived plan to find a cra ck coca ine add ict to rob.
At the evidentiary hearing on this matter, Defendant’s trial counsel testified
exten sively and emphatically that (1) he believed no potentially meritorious
grounds for filing a motion to suppress existed, and (2) he believed that filing a
motion lacking meritorious potential would be a violation of his ethical obligations
as an attorney and officer of the courts. We agree. Furthermore, the record
reflects that trial counsel utilized the statements at trial in an attempt to show
Defe ndan t’s remorse and intention to do the rig ht thing. Counsel hoped to show
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that after having given a false statement, Defendant felt com pelled to deliver a
truthful account of events—the second statement, during which Defendant
emotionally expressed a great deal of remorse.
W e conclude that Defendant has failed to bear his burden to show deficient
representation by making only a generalized reference that “an offer of leniency
may have been used by the police” and that “the Petitioner was only 18 or 19
years old at the time of the confession.” In addition, Defe ndan t has c once ded h is
inability to show prejudice by stating, “By itself, the fa ilure to file a Mo tion to
Suppress, may not have changed the outcome of the case, but its cumulative
effect would be; and thereby prejudicing the Petitioner for a fair trial.” 1 This issue
lacks m erit.
III. ATTORNEY-CLIENT COMMUNICATION
Defendant contends th at he received ineffective assistance of counsel
beca use h is trial co unse l confe rred w ith him on only two occasions prior to trial
and because they had only one discussion regarding whether he wo uld tes tify in
his defen se.
At the post-conviction hearing, Defendant’s trial counsel testified that he
communicated adeq uately w ith Def enda nt and that he strong ly advised
Defendant to exercise his privilege not to testify at trial. Defendant disregarded
this advice and testified, painting a vivid scene of a “classic” felony murder. Not
only do we find no deficie nt perform ance, w e find no p rejudice: A s the Sta te
1
We later consider the argument for a new trial based upon the cumulative effect of
several instances of ineffective representation.
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indicates , “[Defend ant] has shown no prejudice, because he can offer no basis
on how his defen se could ha ve been improved and his verdict affected by m ore
comm unication betwe en he and [trial counsel].”
IV. VOLUNTARY MANSLAUGHTER INSTRUCTION
For his final issue, Defen dant argue s that he suffere d ineffective assistance
of counsel because his attorney (1) failed to request a jury instruction on
voluntary manslaughter, or (2) failed to o bject whe n the trial cou rt declined to
include a voluntary m anslau ghter instru ction in the jury charg e.
This C ourt rece ntly anno unced ,
before instructing a jury on a less er offense, the trial court must
determine wheth er the e videnc e, whe n viewe d in the light most
favora ble to the defendant’s theory of the case, would jus tify a jury
verdict in accord with the de fendan t’s theory, an d would permit a
rational trier of fact to find the defendant guilty of the lesser offense
and no t guilty of the gre ater offen se.
State v. Thomas Jerome Elder, No. 03C01-9702-CR-00053, 1998 WL 191445,
at *4 (Te nn. Crim . App., Kn oxville, Apr. 23 , 1998). F urtherm ore,
absent such a standard regarding the quantum of proof neces sary
to trigger an instruction on a lesser offense, the trial judge who
charges a lesser offense based upon less than sufficient evidence
would be faced with the absurd neces sity, predica ted upo n its own
invited error, of entering a judgment of acquittal following the jury’s
guilty verdict on the lesser offense.
Id. at *5. Therefore , the inquiry a trial court must make to determine when it must
charge a lesser included or lesser grade offense is mu ch the sam e as the inquiry
this Court makes to determine whether the evidenc e is sufficien t to suppo rt a
conviction that has b een ap pealed .
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A conviction for voluntary manslaughter requires the “intentional or knowing
killing of another in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code
Ann. § 39-13 -211. In Elder, this Court found that no evidence existed from which
the jury could possibly have returned a verdict of attempted voluntary
man slaug hter wh en (1) th e defe ndan t threate ned to kill the vict im and attacked
him from behind, and (2) the only evidence of provocation presented by th e
defendant was th at he a nd the victim e ngag ed in a n argu men t four an d one -half
hours p rior to the killing. Jerome Thomas Elder, 1998 W L 1914 45, at *6.
Likewise, in this case, the evidence presented at trial was not sufficient to
perm it a rational jury to return a verdict for the lesser offense and not the greater
offense. To support the need for an instruction for voluntary m anslaughte r,
Defendant can p oint to o nly two id entica l references to the record in which he
stated that the victim “came towards” him prior to the shooting. Accord ing to
Defendant hims elf, he h it the victim with the intention to knock him unconscious
and take his mo ney. O nly then did the victim come toward Defendant, who was
armed and accompanied by his co-defendant. The co-defendant attempted to
“grab” the victim, and Defendant began to pull his gun from his coat pocket. As
he did so, the gun fired, striking the victim . Even in th e light mo st favorab le to
Defen dant, the evide nce wa s not sufficient to warrant a jury instruction on
voluntary m anslau ghter.
Furthermore, we also conclude that even if Defendant’s trial counsel had
been deficient in his representation on this matter, Defendant suffered no
prejudice. The jury in this case returned a verdict convicting the Defendant of
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murder in the first degree as the result of a reckless killing in the perpetration of
a robbery, not premeditated first degree murder. We are unconvinced that the
Defendant could have b een in any way prejudiced by the failure of the trial judge
to charge the jury c oncerning the elements o f voluntary man slaughter.
W e therefore conclude that the Defendat has established neither that
coun sel’s representation was deficient nor that Defendant suffered prejudice
concerning the trial judge’s failure to charg e voluntary ma nslaughter.
V. CUMULATIVE ERROR
Defendant argues that althou gh individu al instanc es of ineffe ctive
assistance of trial counsel may not have prejudiced him in violatio n of his
constitutional rights to due process and a fair trial, the cumulative effect of several
instances of ineffe ctive as sistan ce cre ated p rejudice of constitutional proportions.
W e have determined that Defendant suffered no ineffective assistance of
couns el; therefore , there can be no cu mulative effect.
We affirm the tria l court’s de nial of pos t-conviction relief.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
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___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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