Collins v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1998 SESSION
ROY EARL COLLINS, * C.C.A. # 03C01-9709-CR-00389
September 16, 1998
Appellant, * KNOX COUNTY
VS. * Hon. Mary Beth Leibowitz, Judge
Cecil Crowson, Jr.
STATE OF TENNESSEE, * (Post-Conviction--First Degree Murder)
Appellate C ourt Clerk
Appellee. *
For Appellant: For Appellee:
Kimberly A. Parton John Knox Walkup
Attorney Attorney General and Reporter
P.O. Box 116
Knoxville, TN 37901-0116 Ellen H. Pollack
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Randall E. Nichols
District Attorney General
and
Robert L. Jolley, Jr.
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The petitioner, Roy Earl Collins, appeals the trial court's denial of post-
conviction relief. The issues presented for review are as follows:
(1) whether the petitioner was denied the effective
assistance of counsel; and
(2) whether the trial court properly denied the petitioner's
motion for expert services.
We find no error and affirm the judgment of the trial court.
On February 20, 1984, the petitioner entered a guilty plea to first
degree murder. The trial court imposed a life sentence. Thereafter, the petitioner
filed a motion to set aside the plea on several grounds. He alleged that he had
been unduly pressured by his family, that he was fearful of unfair treatment by the
trial judge, and that he was under the influence of Valium at the time of his guilty
plea. The trial court denied the motion to withdraw the plea. On direct appeal, this
court affirmed, specifically rejecting each of the claims and holding that the plea was
knowingly and voluntarily entered. State v. Earl Roy Collins, No. 1054 (Tenn. Crim.
App., at Knoxville, Sep. 24, 1987). Application for permission to appeal was denied
by our supreme court on November 30, 1987.
In 1989, the petitioner filed a petition for post-conviction relief alleging,
among other things, that he had not received the effective assistance of counsel
before entering a plea. The petitioner was appointed counsel who filed an
amendment alleging that the petitioner was incompetent at the time of the plea and
that his trial counsel had been ineffective by failing "to fully explore the known
existence of petitioner's severe brain injury and its effects...."
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The trial court denied relief, holding that the issues presented had
been either previously determined or waived. The trial court also held that it had no
authority to order medical testing so as to determine whether the injury had any
effect upon the voluntariness of the original plea. On direct appeal, this court
reversed and remanded, holding that "the petitioner ha[d] not yet had the
opportunity to present his claim that trial counsel was ineffective for having failed to
properly investigate, consider, or pursue any possible defenses related to the
alleged brain injury." Roy Earl Collins v. State, No. 03C01-9303-CR-00096, slip op.
at 10 (Tenn. Crim. App., at Knoxville, Apr. 8, 1994). This court concluded that
whether trial counsel was ineffective before the entry of the plea was a different
issue than those grounds reviewed in the direct appeal of the conviction. Id.
After remand, the petitioner filed a motion for the appointment of an
expert to do a physiological, psychological, and neurological examination. During
the course of an evidentiary hearing, the petitioner claimed that he had suffered a
skull fracture, a jaw fracture, and broken ribs and legs in a mining accident in 1950
while he was incarcerated at Brushy Mountain State Penitentiary. None of the
medical records of the incident are now available. The petitioner stated that after
his accident, he had occasional blackouts, some memory loss, and headaches. He
testified that he was in a coma for an appreciable period of time and was
hospitalized for over a year after the accident. The petitioner specifically recalled his
plea of guilt and explained that he did so because he believed that the trial judge at
that time was prejudiced, that he would not get a fair trial, and that it was in his best
interest to plead guilty. While the petitioner denied that he had been evaluated by a
psychiatrist, it was established on cross-examination that evaluations had been
performed by both the Helen Ross-McNabb Center in Knoxville and the Middle
Tennessee Mental Health Institute. Medical records from an evaluation at the
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Middle Tennessee Mental Health Institute as to the effect of those injuries on the
voluntariness of his criminal acts were made an exhibit to the evidentiary hearing.
No abnormalities were found in these tests other than alcoholism and an anti-social
personality. The petitioner was deemed to be competent to stand trial, found not
judicially committable, and determined to be able to assist his counsel in the
preparation of his defense. The petitioner's intelligence quotient was in the average
range. No brain damage was found.
At the conclusion of the evidentiary hearing, the trial court made
detailed findings of fact and conclusions of law. It determined that the petitioner had
suffered no significant brain injuries or damage in the 1950 incident and that the
guilty plea was knowingly and voluntarily entered. The trial court refused to grant
expert services. In this appeal, the petitioner complains that the evidence
preponderates against the findings of the trial court.
I
In order for the petitioner to be granted relief on grounds of ineffective
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 have been
different. Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington,
466 U.S. 668 (1984). This two-part standard, as it applies to guilty pleas, is met
when a petitioner establishes that, but for his counsel's errors, he would not have
pled guilty and would have insisted on trial. Hill v. Lockhart, 474 U.S. 52 (1985).
Before the 1995 amendments to the Post-Conviction Procedure Act, the burden was
on the petitioner to show that the evidence preponderated against the findings of the
trial judge. Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978). Otherwise,
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the findings of fact by the trial court were conclusive. Graves v. State, 512 S.W.2d
603 (Tenn. Crim. App. 1973).
Apparently, the petitioner had been drinking heavily when he killed the
victim, Evelyn Faye Hunley. Initially, the state sought the death penalty. Trial
counsel, aware of the serious head injury that petitioner suffered in the 1950
accident, sought and received mental evaluations of the petitioner. In exchange for
a plea of guilt, the state agreed to a sentence of life imprisonment. The petitioner
has been unable to establish how his trial counsel might have been deficient. In
fact, the record demonstrates that trial counsel sought and received a pretrial mental
evaluation of the petitioner similar to that now requested in the post-conviction
setting. Evidence that the petitioner was hospitalized for over a year does not,
standing alone, alter our view of the quality of trial counsel's performance. It is
apparent from the testimony at the evidentiary hearing that the petitioner entered a
guilty plea because it was in his best interests to do so. See North Carolina v.
Alford, 400 U.S. 25 (1970). In our assessment, the evidence does not preponderate
against the trial court's conclusion that the plea was knowingly and voluntarily
entered. Moreover, the petitioner has failed to establish any deficiency in the
performance of his counsel.
II
Next, the petitioner argues that he was entitled to expert services on
due process grounds. While recognizing that post-conviction procedures are not
constitutionally required, the petitioner cites Pennsylvania v. Finley, 481 U.S. 551(1987), for the proposition that once the state chooses to provide a post-conviction
remedy, it must do so in a manner that meets constitutional guidelines. The
petitioner asserts that his entitlement to an evidentiary hearing implies that the
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hearing must be conducted in a meaningful manner and that because his asserted
ground for relief would necessarily depend upon the use of an expert witness, his
lack of access to an expert becomes an effective bar to relief. In the alternative, the
petitioner argues that this qualifies as a capital case because the state had originally
sought the death penalty and in consequence, our statutory scheme entitles him to
expert services. See Tenn. Sup. Ct. Rule 13.
The General Assembly has not authorized funds for experts in the trial
of non-capital cases. Tenn. Code Ann. § 40-14-207(b). As a result, the trial courts
do not have the authority to allow a defense expert in a non-capital case absent a
threshold showing of deprivation of constitutional due process. In State v. Edwards,
868 S.W.2d 682 (Tenn. Crim. App. 1993), a case cited by the petitioner but
distinguishable because it was not a post-conviction case, it was held that an
indigent defendant, in order to receive expert assistance at state expense, had the
burden of establishing a particularized need that the expert would be of material
assistance in the establishment of his defense theory. Edwards, 868 S.W.2d at
697. Because the standard was deemed "flexible and determined on a case-by-
case basis[,]" whether the accused had met the test was discretionary with the trial
court; however, this court quoted with approval certain language in State v. Parks,
417 S.E.2d 467 (N.C. 1992) (quoting State v. Holden, 362 S.E.2d 513, 522 (N.C.
1987)):
[M]ere hope or suspicion that favorable evidence is
available is not enough to require that such help be
provided.
Edwards, 868 S.W.2d at 697.
In Owens v. State, 908 S.W.2d 923 (Tenn. 1995), our supreme court
held that, under similar circumstances, an indigent post-conviction petitioner in a
capital case is entitled to expert services at state expense:
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The trial court should grant the motion [for assistance] if,
at [an ex parte] hearing, the petitioner demonstrates that
investigative or expert services are necessary to ensure
the protection of the petitioner's constitutional rights....
Specifically, a petitioner must demonstrate by specific
factual proof that the services of an expert or an
investigator are necessary to establish a ground for
post-conviction relief, and that the petitioner is unable to
establish that ground for post-conviction relief by other
available evidence. An unsupported allegation to that
effect will not suffice.
Id. at 928-29.
Less than one month after the opinion in Owens, the supreme court
filed its ruling in Davis v. State, 912 S.W.2d 689 (Tenn. 1995). In Davis, the court
ruled that "the state is not required to provide expert services to indigent non-capital
post-conviction petitioners." 912 S.W.2d at 696-97. The court reasoned that "in the
absence of a Constitutional right to counsel [in post-conviction cases], there can be
no Constitutional right to support services at state expense." Id. at 696. Because
Owens was decided on statutory grounds, our supreme court specifically refrained
from deciding whether capital post-conviction petitioners have a right under either
the state or federal constitution to publicly-funded expert services. Owens, 908
S.W.2d at 926. Whether the observations of this court in Edwards might be
persuasive on that point remains to be seen.
The case at issue would not, in our view, merit the appointment of an
expert under any argument presented by the petitioner. Initially, the record
demonstrates that the petitioner actually received the services of experts prior to the
entry of the guilty plea. The experts addressed the same concerns expressed by
the petitioner in his petition for post-conviction relief. Trial counsel acted within the
professional guidelines by seeking expert assistance during the course of his
investigation. Of equal importance is that the ruling in Davis precludes the
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appointment of state-funded experts for an indigent in a post-conviction setting.
Moreover, the record simply does not support the petitioner's contention that his
right to due process, if one exists in this context, has been violated in these
circumstances; a "mere hope ... [for] favorable evidence .. is not enough...." Holden,
362 S.E.2d at 522.
Finally, this no longer qualifies as a capital case. In Beeler v. State,
332 S.W.2d 203, 207 (Tenn. 1959), our supreme court adopted a definition of a
capital case from Black's Law Dictionary, 3d ed., as follows:
A capital case or offense is one in or for which the death
penalty may, but need not necessarily be inflicted.
The definition remains unchanged after all of these years. Because the defendant
was no longer at risk at the time he filed his post-conviction claim, his petition cannot
be classified as a capital case. The ruling in Owens would not apply.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
David H. Welles, Judge
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