Betsy Pendergrast v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JULY SESSION, 1998 FILED
September 15, 1998
Cecil W. Crowson
BETSY JANE PENDERGRAST, )
Appellate Court Clerk
) No. 01C01-9707-CC-00307
Appellant )
) RUTHERFORD COUNTY
vs. )
) Hon. James K. Clayton, Jr., Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Jim Wiseman and John Knox Walkup
Sally Schneider Attorney General and Reporter
131 North Church Street
Murfreesboro, TN 37130 Elizabeth B. Marney
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William C. Whitesell, Jr.
District Attorney General
3rd Floor, Judicial Building
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Betsy Jane Pendergrast, appeals the dismissal of her petition
for post-conviction relief by the Rutherford County Circuit Court. Specifically, the
appellant contends that her trial counsel was ineffective for failing to provide the
State notice of expert testimony and for failing to make a complete offer of proof on
the excluded witnesses.
After a review of the record, we affirm the judgment of the trial court denying
the appellant post-conviction relief.
The appellant’s conviction resulted from events which occurred on November
11, 1989. Specifically, on that afternoon, the appellant, her husband, and several
acquaintances gathered to socialize and consume alcohol. Throughout the day, the
appellant and her husband, the victim, engaged in numerous physical and verbal
altercations. An acquaintance finally separated the two by pushing the victim in a
chair. Shortly thereafter, the victim displayed a knife. The appellant responded to
this action by obtaining a knife and a mop from the kitchen. While the victim was
still seated in the chair, the appellant approached him from behind and stabbed him
in his chest, resulting in the victim’s death. See State v. Pendergrast, No. 01C01-
9110-CC-00310 (Tenn. Crim. App. at Nashville, Oct. 8, 1992), perm. to appeal
denied, (Tenn. Jan. 25, 1993). This evidence was sufficient for a jury to convict the
appellant of second degree murder. The jury’s verdict was affirmed on direct appeal
by this court. See Pendergrast, No. 01C01-9110-CC-00310. The appellant is
currently incarcerated in the Tennessee Department of Correction where she is
serving a twenty-five year sentence for this conviction.
On February 1, 1996, the appellant filed the instant petition for post-
conviction relief. The trial court summarily granted the State’s motion to dismiss the
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petition upon grounds that the petition was time-barred under the statute of
limitations. On appeal, a panel of this court determined that the statute of limitations
had not yet run on the appellant’s right to file a petition for post-conviction relief.
See Pendergrast v. State, No. 01C01-9607-CC-00289 (Tenn. Crim. App. at
Nashville, May 16, 1997). Accordingly, this cause was remanded to the trial court
for a hearing on the merits of the petition. Id.
An evidentiary hearing on the merits of the petition was held on July 15,
1997. At the hearing, the appellant’s appointed counsel argued that the appellant
was denied effective representation by trial counsel because trial counsel failed to
provide the State advance notice, pursuant to Rule 12.2, Tenn. R. Crim. P. , of his
intent to submit expert witnesses regarding the “battered woman syndrome” and
because, when such evidence was excluded by the trial court, defense counsel
made no offer of proof for the record.1 No proof on this issue was presented at the
post-conviction hearing. Rather, the appellant relied solely upon the argument of
post-conviction counsel. The appellant, in essence, asks this court to find trial
counsel deficient for failing to present before the jury the testimony of three
witnesses who would have testified concerning the “battered woman syndrome.”
“When a petitioner contends that trial counsel failed to . . . present witnesses in
support of his defense, these witnesses should be presented by the petitioner at the
evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1990). “As a general rule, this is the only way the
petitioner can establish that (a) a material witness existed . . . and (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.” Id. The trial
court determined that the appellant’s complaints warranted no relief and dismissed
the petition. Specifically, the trial court found that any testimony regarding the
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Post-conviction counsel also alleged that the appellant’s right to confrontation was
violated and that trial counsel was ineffective for failing to raise the theory of self-defense. Issues
involv ing th ese allega tions are n ot pre sen ted in this a ppe al.
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“battered woman syndrome” “would have been hearsay as this Defendant was
never examined by this expert witness.”
The appellant’s petition for post-conviction relief is not included in the record
before this court; neither is a transcript of the trial proceedings, relied upon by the
appellant before the trial court and on appeal. Notwithstanding the instruction in the
appellant’s brief as to where this court may find the pertinent parts of the record, we
remind the appellant that it is her duty, and not the duty of this court, to prepare an
adequate record on appeal. Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d
557, 560 (Tenn. 1993); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993),
perm. to appeal denied, (Tenn. 1994) (citations omitted). The failure to so prepare
the record precludes this court from completing a meaningful review, and, thus,
determining the issues presented. Ballard, 855 S.W.2d at 561; Banes, 874 S.W.2d
at 82 (citations omitted).
Again, no proof was presented at the evidentiary hearing. Rather, the
appellant relied solely upon the argument of counsel to support her allegations. It is
well established that the argument of counsel is not evidence. See State v.
Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Likewise, neither are the
recitation of facts or argument of counsel contained in the briefs. Id. (citations
omitted). When no evidence is preserved in the record for review, we are hindered
in our review of the issue. Roberts, 755 S.W.2d at 836. Consequently, the absence
of any evidence in the record, leads us to conclusively presume that the findings of
fact and conclusions of law made by the trial court are correct. See Roberts, 755
S.W.2d at 836.
In order to prove that counsel was ineffective, the appellant must show that
counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases, Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and, that, but
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for these errors, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984); State v. Melson,
772 S.W.2d 417, 419 n.2 (Tenn.), cert. denied, 493 U.S. 874, 110 S. Ct. 211 (1989).
In light of (1) the strong presumption of satisfactory representation, Barr v. State,
910 S.W.2d 462, 464 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), and
(2) the appellant’s failure to present any evidence, she cannot prove her allegations
contained in her “petition” by clear and convincing evidence. See Tenn. Code Ann.
§ 40-30-210(f) (1995 Supp.).
Accordingly, the judgment of the trial court is affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________________
PAUL G. SUMMERS, Judge
______________________________________
JERRY L. SMITH, Judge
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