State v. Sylvester Farmer ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
AUGUST 1997 SESSION
March 13, 1998
Cecil Crowson, Jr.
SYLVESTER L. FARMER, ) Appellate C ourt Clerk
) NO. 02C01-9602-CR-00067
Appellant, )
) SHELBY COUNTY
VS. )
) HON. JOHN P. COLTON, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JOSEPH S. OZMENT JOHN KNOX WALKUP
217 Exchange Avenue Attorney General and Reporter
Memphis, Tennessee 38105
CLINTON J. MORGAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
LORRAINE CRAIG
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, Tennessee 38103
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The petitioner, Sylvester Farmer, appeals the order of the trial court
dismissing his petition for post-conviction relief. The petitioner alleged ineffective
assistance of counsel at both the trial and appellate levels. The trial court found
the petitioner did not meet his burden of proof regarding the deficient
performance of either trial or appellate counsel. The judgment of the trial court is
affirmed.
I.
The petitioner was convicted in November 1990 of second degree murder
of his wife and was sentenced to twenty-five (25) years imprisonment as a
Range I offender. The evidence presented at trial revealed that in the early
morning hours of October 8, 1989, the petitioner had an argument with his wife.
She was walking from their bedroom when the petitioner shot her from behind
with a shotgun. The petitioner fired two more shots into her as she lay on the
floor. The petitioner then shot himself in the head with the shotgun.
The petitioner subsequently appealed his conviction. The conviction and
sentence were affirmed. State v. Farmer, 841 S.W.2d 837 (Tenn. Crim. App.
1992). Petitioner then filed this post-conviction relief petition.
At the hearing, the petitioner claimed his trial attorney (1) failed to consult
with him regarding potential witnesses, (2) did not properly investigate his case,
and (3) failed to interview the medical examiner. The petitioner also alleged his
appellate counsel failed to adequately raise and brief the issues.
The trial court filed an excellent memorandum. The trial court reviewed in
detail the allegations made by the petitioner and concluded the petitioner failed
to prove ineffective assistance of counsel. The petition was dismissed, thereby
leading to this appeal.
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II.
This Court reviews a claim of ineffective assistance of counsel
under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
The test in Tennessee for determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.
The petitioner must overcome the presumption that counsel’s conduct falls within
the wide range of acceptable professional assistance. Strickland v. Washington,
466 U.S. at 689, 104 S.Ct. at 2065; State v. Williams, 929 S.W.2d 385, 389
(Tenn. Crim. App. 1996).
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354
(Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the
weight of a jury verdict, and this Court is bound by the trial court’s findings unless
the evidence in the record preponderates against those findings. Henley v.
State, S.W.2d (Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn.
Crim. App. 1996). Questions concerning the credibility of witnesses and the
weight and value to be given to their testimony are resolved by the trial court, not
this Court. Henley v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
The burden of establishing that the evidence preponderates otherwise is on
petitioner. Henley v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
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A. Trial Counsel
The petitioner contends that his trial counsel failed to interview witnesses
necessary to his defense. When a petitioner makes this contention, he should
call these witnesses to testify at the evidentiary hearing. Black v. State, 794
S.W.2d at 757; see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App.
1996). As a general rule, this is the only way the petitioner can establish that (a)
a material witness existed and the witness could have been discovered but for
counsel’s neglect in his investigation of the case, (b) a known witness was not
interviewed, (c) the failure to discover or interview a witness inured to his
prejudice, or (d) the failure to have a known witness present or call the witness to
the stand resulted in the denial of critical evidence which inured to the prejudice
of the petitioner. Black, 794 S.W.2d at 757. Neither the trial court nor this Court
can speculate on what a witness’ testimony might have been if introduced.
Therefore, it is impossible for the petitioner to establish that he was prejudiced
by counsel’s failure to call the witnesses at trial.
The petitioner also alleges trial counsel failed to conduct a sufficient
investigation. A review of the record shows that not to be the case. Petitioner
discussed his case with counsel on several occasions prior to trial. As the trial
court found, defense counsel subpoenaed and conferred with several witnesses
as requested by the petitioner. Yet, these potential witnesses could provide no
helpful testimony. The petitioner has not shown anything else counsel could
have done to aid petitioner.
Further, the petitioner makes a bare allegation that trial counsel was
deficient for failing to interview the medical examiner. Trial counsel had a
detailed copy of the examiner’s autopsy report. Unquestionably, the cause of
death was three blasts from a shotgun found next to the victim. The petitioner
offered no grounds on which the medical examiner’s testimony could have been
impeached. He cannot, therefore, prove he was prejudiced by counsel’s
decision not to interview the medical examiner.
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The trial court found that petitioner had failed to prove deficient
performance by trial counsel or prejudice as a result of counsel’s representation.
The evidence does not preponderate against these findings.
B. Appellate Counsel
The petitioner alleges his counsel on direct appeal failed to adequately
raise and brief the issues. Specifically, he alleges appellate counsel failed to
consult with trial counsel and himself as to what issues should be presented on
appeal.
It is counsel’s responsibility to determine the issues to present on appeal.
State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986). This
responsibility addresses itself to the professional judgment and sound discretion
of appellate counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995).
There is no constitutional requirement that every conceivable issue be raised on
appeal. Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The
determination of which issues to raise is a tactical or strategic choice. Id.
Appellate counsel testified that he felt the only issue with merit to be
raised on appeal was the admission of petitioner’s prior conviction at trial. W hile
this Court found that admission to be error, in the light of overwhelming evidence
of guilt, we found it harmless. State v. Farmer, 841 S.W.2d at 840. The trial
court found petitioner failed to establish deficient performance of appellate
counsel or prejudice as a result of counsel’s representation. The evidence does
not preponderate against these findings.
III.
The petitioner has failed to meet the burden for showing ineffective
assistance of counsel as mandated by Strickland v. Washington. He has not
shown that counsels’ performance fell below the range of competence
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demanded in criminal cases. Additionally, he has not demonstrated prejudice.
The judgment of the trial court is AFFIRMED.
_________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________
DAVID G. HAYES, JUDGE
___________________________
THOMAS T. WOODALL, JUDGE
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