State v. Cash ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
October 16, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
BUD CASH, JR., ) No. 03C01-9607-CC-00271
)
Appellant )
) BRADLEY COUNTY
V. )
) HON. R. STEVEN BEBB,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
)
)
For the Appellant: For the Appellee:
Douglas A. Trant John Knox Walkup
900 S. Gay Street Attorney General and Reporter
Suite 1502
Knoxville, TN 37902 Sandy R. Copous
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Jerry N. Estes
District Attorney General
G. Scott Kanavos
Assistant District Attorney
93 N. Ocoee Street
Cleveland, TN 37364
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
The appellant, Bud Cash, Jr., appeals as of right the dismissal by the Bradley
County Criminal Court of his petition for post-conviction relief. On appeal, he
contends that:
(1) his trial counsel was ineffective for permitting the State to amend the
indictment without the appellant’s consent;
(2) his trial counsel was ineffective for not seeking to suppress the
appellant’s statement;
(3) two searches conducted of his residence were unconstitutional and
his counsel was ineffective for failing to move for suppression of the
evidence obtained from them; and
(4) his trial counsel was ineffective for failing to object to irrelevant and
prejudicial evidence.
After a thorough review of the record, including the records from appellant’s previous
two appeals, we conclude that appellant received the effective assistance of counsel.
Accordingly, we affirm the trial court’s denial of post-conviction relief.
I. BACKGROUND
Appellant was convicted in 1990 by a Bradley County jury of assault with intent
to commit voluntary manslaughter, aggravated assault, and aggravated kidnapping.
The victim was appellant’s then-girlfriend, Linda Hall. The State’s theory was that
appellant severely beat the victim and then confined her in his home for five days
without seeking medical attention. The victim suffered a skull fracture, a stroke as a
result of asphyxiation, permanent brain damage, blunt trauma to the head and
extensive bruising over her entire body. Due to the nature of her head injuries, she
was unable to remember the incident and required prolonged rehabilitation.
Appellant denied the allegations, explaining that the victim fell out of his van on
a Saturday night after she had been drinking. He testified that she hit her head and
also fell on two other occasions once inside his home. Appellant further described a
disagreement between him and the victim later that evening during which she
2
threatened him with a gun. A struggle ensued and he admitted that he may have
inflicted some of the bruises while acting in self-defense. He testified that she
repeatedly refused medical treatment so he cared for her those five days. The
defense strategy was to portray appellant as a loving man who had thoughtfully cared
for the victim’s injuries and that he had nothing to hide.
On direct appeal, this Court found that the two assault convictions violated
double jeopardy. State v. Bud Cash, Jr., No. 286 (Tenn. Crim. App. at Knoxville,
January 30, 1992). There was insufficient evidence that two separate assaults had
occurred. Therefore, this Court merged the assault with intent to commit voluntary
manslaughter conviction into the aggravated assault conviction. Slip op. at 22. This
Court further found that it was unclear as to which count of aggravated kidnapping1 the
State had elected and whether the trial court had properly instructed the jury in that
regard. Slip op. at 17. The case was remanded to the trial court to determine the
State’s election and also to hold a new sentencing hearing on the consecutive nature
of the sentences. Slip op. at 26.
On February 14, 1992, the trial court entered an order intended to be in
accordance with the remand ordered by this Court. The trial court ascertained that the
State had elected aggravated kidnapping with serious bodily injury and further
concluded that the jury was properly instructed on this offense. It reinstated the
aggravated kidnapping conviction and a new sentencing date was set. After
resentencing, appellant appealed the order of the trial court and the consecutive
nature of the sentences.
On appeal for the second time, this Court held that the trial court issued the
order reinstating the aggravated kidnapping conviction prematurely. State v. Cash,
867 S.W.2d 741, 747 (Tenn. Crim. App. 1993). The order, dated only two weeks after
1
Appellant was indicted on two counts of aggravated kidnapping. One count alleged serious
bodily injury as the aggravating circums tance of the offense. The other co unt alleged comm ission of a
felon y durin g the kidn app ing as the a ggra vating circu ms tanc e. W hen read ing th e indic tme nt to th e jury,
the pros ecutor re ferred to th ese as “alternate, n ot two co unts.”
3
the appellate opinion was released, was entered while the appellant was pursuing
certiorari to the state supreme court.2 Therefore, the trial court was without jurisdiction
to act. Id. Contrary to the trial court’s order, this Court also determined that the State
had elected aggravated kidnapping in the commission of a felony and the jury charge
did not instruct on the elements of this offense. Id at 748. As a result, the aggravated
kidnapping conviction was reversed. Id. Only the aggravated assault conviction
remained against the appellant. He was sentenced to six years for that offense.
In May of 1993, while serving his sentence, appellant filed a petition for post-
conviction relief attacking the aggravated assault conviction.3 The petition alleged
ineffective assistance of counsel. After the appointment of counsel and an evidentiary
hearing, the trial court determined that appellant’s trial counsel was not ineffective,
finding that in each instance the actions of counsel were informed tactical decisions.
Moreover, the trial court stated, “Mr. Logan has employed his method in this court for
many years and has always been effective as counsel and extremely successful in his
methods.”
II. ANALYSIS
In reviewing the appellant’s Sixth Amendment claim of ineffective assistance of
counsel, this Court must determine whether the advice given or 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. 1975). To prevail on a claim of
ineffective counsel, an appellant “must show that counsel’s representation fell below
an objective standard of reasonableness” and that this performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052,
2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.
Crim. App. 1985).
2
The supreme court denied permission to appeal on May 4, 1992.
3
The petition as contained in the technical record is not file-stamped by the clerk of the trial
court. This approximate date is based upon the appellant’s signature on the petition, which was
acc om pan ied by th e dat e of M ay 28, 1993 . W e rely u pon this d ate fo r chr ono logica l purp ose s only.
4
The allegations within a petition must be proven by a preponderance of the
evidence. See McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). The
most difficult burden on an appellant is demonstrating the prejudice he has suffered by
the alleged error. In order to prevail on that ground, the appellant must show a
reasonable probability that but for counsel’s error the result of the proceeding would
have been different. Strickland, 466 U.S. at 687-88. The inability to prove either
prong of the Strickland test results in failure of the claim. Id at 697.
A. Amendment to Indictment
Appellant first contends that his counsel was ineffective for permitting the State
to amend Count 2 of the indictment on the day of trial without his consent. The record
reflects that Count 2 charged appellant with the aggravated assault of Linda Hall by
causing serious bodily injury. That count of the indictment originally did not allege that
the offense was committed “willfully, knowingly, or recklessly, under circumstances
manifesting extreme indifference to the value of human life,” as required by the
statute. See Tenn. Code Ann. §39-2-101 (Supp. 1988). Appellant’s counsel filed a
pretrial motion to dismiss the count, alleging it did not state an offense. Although the
trial court overruled the defense motion, the State acknowledged that the necessary
language was missing from the indictment. After a recess, the assistant district
attorney read the indictment to the jury with the necessary language in Count 2.
Later in the trial transcript, the assistant district attorney clarified for the record
that appellant’s counsel had agreed to allow the State to amend the indictment during
the recess and present it to the jury in its amended form. The record contains no
written agreed order on the amendment, nor was the discussion between the
attorneys documented in the transcript.
The amendment to the indictment was challenged in the first appeal. While
stating that the record was unclear, this Court nevertheless found the circumstances
surrounding the amendment were sufficient to indicate the appellant’s consent. State
5
v. Bud Cash, Jr., No. 286, slip op. at 12 (Tenn. Crim. App. at Knoxville, January 30,
1992). There was no objection to the assistant district attorney’s reading the amended
indictment to the jury, no objection to the prosecutor’s characterization of the
discussion during the recess, nor an objection to the jury charge which instructed the
jury on the elements of the offense as amended in the indictment. Thus, appellant’s
consent was implicit. Slip op. at 12.
At the post-conviction hearing, appellant testified that he never consented to
the amendment of the indictment, that counsel never asked him if he consented, nor
did counsel tell him his consent was required.4 Similarly, trial counsel testified that
appellant did not consent to the amendment. However, he stated that he discussed
the amendment with appellant and explained the likelihood of the indictment being
resubmitted to the grand jury if no consent was given.
Counsel admitted discussing the amendment with the assistant district attorney
during a recess, but denied that he gave any affirmative consent to the amendment.
He believed that the trial court committed reversible error in overruling his motion to
dismiss and that the prosecutor’s method of amending the indictment was inadequate.
Trial counsel explained his earlier silence by expressing his belief that the Rules of
Criminal Procedure required a defendant’s affirmative consent, such as an agreed
order, before an amendment would be valid. Without providing such consent, he was
certain appellant would prevail on appeal of this issue. Trial counsel acknowledged
that his strategy worked against appellant on appeal, but remained steadfast in his
belief.
It is clear from trial counsel’s testimony that this tactical decision was an
exercise of judgment based upon his interpretation of the rules of procedure.
Tennessee Rule of Criminal Procedure 7(b) permits the amendment of an indictment
4
A letter from counsel to appellant dated May 8, 1992, was also introduced at the post-conviction
hearing. With respect to the aggravated assault conviction, it advised appellant of his right to pursue a
post-conviction petition based on ineffective assistance of counsel “to the extent that you did not
authorize a ny agreed ame ndm ent upon the aggr avated a ssault co nviction.”
6
at any time with the consent of the defendant. W ithout consent, however, the court
may permit amendment before jeopardy attaches only if no additional offense is
thereby charged and no substantial rights of the defendant are prejudiced. Id. It does
not appear that counsel made the decision on a whim or because he was uninformed
about the applicable procedural rules. We must give deference to tactical decisions if
they are informed ones that are the result of adequate preparation. Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982) (citations omitted). See also Cooper v. State, 849
S.W.2d 744, 746 (Tenn. 1993). The mere fact that in hindsight the tactic was
detrimental to the appellant is not sufficient to substantiate ineffectiveness. Hellard,
629 S.W.2d at 9.
B. Suppression of Statement
Secondly, appellant argues that his trial counsel was ineffective for failing to
move for suppression of the statement he gave to law enforcement officials. He
testified that he was not advised of his rights before giving his statement and he also
stated that trial counsel did not discuss these matters with him. He further testified
that immediately prior to being questioned, a detective picked up an ice pick, rolled it
in his hands, and told appellant he was facing thirty years. He was then given a
waiver of rights form to sign. Additionally, appellant claimed one law enforcement
officer testified at the preliminary hearing that he could not remember whether he read
appellant his rights before taking the statement.5
Trial counsel’s testimony on this issue directly conflicts with appellant’s. He
testified that he and appellant discussed in great detail everything that happened after
law enforcement became involved. Appellant never informed him of any coercion by
authorities. Counsel summed up his belief by saying “Mr. Cash could not sustain by
his own testimony a position that was consistent with a suppression of those
5
The transcript from the preliminary hearing is not included in the record before us. Apart from
his own testimony, appellant presented no other evidence of such a statem ent. Therefore, we are
unable to address the veracity of this hearsay allegation.
7
statements.” Furthermore, appellant’s position all along was that he had nothing to
hide and that he was cooperative with law enforcement.6 Counsel believed a motion
to suppress would undermine such a theory.
The trial record indicates that after the victim was discovered at the appellant’s
home, appellant was arrested, taken to the police station, and read his rights. He
executed a written waiver of his rights and gave his statement to officers. At trial,
appellant testified consistently with this statement. Appellant’s constitutional rights
were not violated in this regard. The statement was given voluntarily after appellant
had been read his rights. Counsel cannot be faulted for failing to seek suppression
where there were clearly no grounds upon which to pursue such a motion. See
Hellard v. State, 629 S.W.2d 4, 10 (Tenn. 1982) (finding it was a justifiable decision to
not seek suppression of alibi statement where it was clearly admissable).
Although the appellant testified to different circumstances at the post-conviction
hearing, the trial court’s ruling implicitly accredits counsel’s testimony. Upon review,
this Court cannot re-weigh or re-evaluate the evidence. We give deference to
questions about the credibility of the witnesses, the weight and value to be given their
testimony, and the factual issues raised by the evidence as they are resolved by the
trial court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Appellant
has failed to prove this allegation by a preponderance of the evidence.
C. Suppression of Evidence
Next, appellant contends that two searches of his residence were
unconstitutional and that his counsel was ineffective for failing to seek suppression of
the evidence obtained during the searches. He alleges that a flashlight and a cash
register receipt were outside the scope of the search warrant and were not evidence
of a crime. In addition, appellant contends the information in the affidavit supporting
the second search warrant was stale and failed to constitute probable cause.
6
Proof at trial, including the appellant’s testimony, reflected that when police came to his house
inquiring ab out the victim , he imm ediately told them she wa s there a nd invited the m in to s ee her.
8
According to appellant, there was no tactical reason for failing to move for
suppression.
Several hours after discovering the victim in serious medical condition in the
appellant’s home, authorities sought a search warrant for the residence. They
obtained a warrant authorizing a search of the premises for “evidence of a crime.”
The evidence seized during this search and admitted at trial included a flashlight,
blouse, pants, bra and panties belonging to the victim, and a cash register receipt from
a Red Food Store.
The second search warrant was obtained almost three weeks later. On
June 15, 1989, officials went to appellant’s residence with a warrant seeking only one
item: an athlete’s “protection cup.” The record reflects that appellant was home when
officers arrived. Upon informing appellant of their purpose, he retrieved the item and
voluntarily turned it over to the officials.
It is important to note that the validity of the search warrants and the
constitutionality of the searches are not issues before us. These issues were not
raised on direct appeal and must be considered waived. See Tenn. Code Ann. §40-
30-112(b)(1) (repealed 1995); House v. State, 911 S.W.2d 705, 714 (Tenn. 1995),
cert. denied ___ U.S. ___, 116 S.Ct. 1685,134 L.Ed.2d 787 (1996). Appellant has not
alleged that counsel was ineffective for failing to raise these issues on appeal. As a
result, we determine only the issue of counsel’s ineffectiveness in failing to seek
suppression of the evidence.
Trial counsel testified at the post-conviction hearing that he felt a motion to
suppress the evidence was inappropriate. After he and appellant discussed the
circumstances surrounding the searches, counsel believed appellant had basically
consented in each instance. Once again, he emphasized that appellant’s cooperation
was in keeping with the defense theory. This was further exemplified by appellant’s
voluntary relinquishment of the only item sought in the second warrant.
9
Considering this testimony and the trial record, it appears that the decision not
to contest either search was an informed decision. Counsel discussed the
circumstances of each search with the appellant and concluded that appellant had
consented to each. Moreover, counsel was convinced that appellant’s defense would
be bolstered if the jury believed he had cooperated fully with the investigation. A
motion to suppress the evidence would have been inconsistent with that defense.
Strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable. Strickland v. Washington, 466 U.S.
668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hence, we grant deference to
counsel’s tactical decision. Moreover, appellant failed to show that any of the
evidence introduced from either search was prejudicial in the sense that the outcome
of the trial would have been different. Id at 694.
Appellant also alleges that the second search warrant contained a false
statement by law enforcement which provided sufficient grounds for counsel to seek
suppression of the evidence. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674,
57 L.Ed.2d 667 (1978). The affidavit supporting the second warrant stated that the
protection cup had been observed during the first search, but it “was of no interest at
that time.” Appellant alleges that this is a false statement and that counsel was
ineffective for failing to pursue suppression on this ground.
Counsel testified that he recognized the potential Franks issue in the affidavit.
However, he disagreed that this singular issue was sufficient to support a motion to
suppress. Moreover, he stated that he decided not to pursue suppression of the cup
because it was not credible evidence of a crime7 and that it was indicative of the
weaknesses in the State’s case against appellant, which was primarily circumstantial.
We do not question counsel’s strategical decision.
7
The State’s medical expert suggested that the protection cup may have been placed over the
victim’s nose and mouth during the assault. However, the cup apparently had holes throughout and
would ha ve been difficult to facilitate a sphyxiation .
10
D. Failure to Object
Appellant’s final argument is that counsel was ineffective for failing to object to
prejudicial and irrelevant evidence. He lists eighteen specific instances which
occurred during the trial. After considering each one, we conclude that appellant is
unable to satisfy both prongs of the Strickland test on any of the alleged errors.
We first note that in appellant’s brief, he fails to explain the basis for the
objection in each instance. He merely lists the evidence or testimony to which an
objection should have been lodged, but neglects to say why the evidence was
inadmissible. Such conclusory statements without articulated reasons in support
generally waives our consideration of an issue. Tenn. Ct. Crim. App. R. 10(6); Tenn.
R. App. P. 27(a)(7). Nevertheless, we will address each one briefly.
Counsel did not object to the introduction of the protection cup or an oxygen
mask which the State used during trial. He stated that the State’s inability to
conclusively demonstrate that these items were used to commit the offense indicated
the weakness of the State’s theory and was not prejudicial to appellant. We grant
deference to this tactical decision. Similarly, the State’s questioning of one expert
witness about the oxygen mask was not prejudicial. Neither do we find the failure to
object to a flashlight or the clothing of the victim, both found in appellant’s residence
and legally seized, ineffective. The clothing was not prejudicial because appellant
never disputed that the victim was at his home. As to the flashlight, the State was
unable to connect it to the assault. Therefore, it was not prejudicial to appellant.
Pictures of a garbage can containing beer cans found inside the appellant’s
home were also introduced without objection. Counsel stated that no objection was
warranted. The proof at trial, including the appellant’s testimony, reflected that on the
night of the alleged incident both appellant and the victim had been drinking. In this
context, we do not believe the picture was prejudicial.
11
No prejudice arose from the failure to object to alleged hearsay testimony about
what the victim was wearing on the night of the incident and her failure to report to
work. Appellant did not dispute what the victim was wearing and he admitted calling
the victim’s workplace to report that she would be unable to work.
An objection to the introduction of a picture of the victim and appellant taken
the night of the incident was unnecessary. Appellant testified that he and the victim
visited the VFW club that night where the picture was taken. Two brief comments
made by the district attorney during examination of the witnesses were not prejudicial.
Testimony that appellant’s telephone was unplugged when officers arrived at
his home presented no basis for objection. It was not hearsay as the witness
observed this firsthand. Neither do we understand how it was prejudicial to appellant.
Merely because appellant vouched a contrary position did not make the matter
objectionable. Testimony about the victim’s personal life, including her previous
marriage, custody of children, and her personal habits was not prejudicial because it
did not implicate appellant.
Some expert testimony reflected that the victim may have been asphyxiated or
strangled. It appears that such testimony was improper because the State dismissed
the count of the indictment alleging aggravated assault by strangulation.
Nevertheless, we cannot say that counsel’s failure to object to one aspect of testimony
throughout the course of a two day trial rose to the level of ineffectiveness. The
standards employed for determining ineffectiveness do not require perfect
representation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Finally, the State questioned one witness about appellant’s drinking habits and
whether he became violent when drinking. The record reflects that this witness was
called by the defense to attest to appellant’s reputation for truthfulness and honesty in
the community. It appears that the State’s question was improper under the Rules of
Evidence. See Tenn. R. Evid. 404 and 608. Regardless, the information was not
12
prejudicial to appellant. The witness responded that she had never seen appellant
violent when he drank alcohol.
Appellant also contends that counsel was ineffective for failing to request a
hearing on the admissibility of photographs of the victim offered by the State. He
stated at the post-conviction hearing that counsel never discussed this issue with him
and counsel did not object to the introduction of any photographs of the victim.
Counsel testified that he had a meeting “off the record” with the trial court
regarding the pictures. He characterized this as a “mini Banks hearing.” See State v.
Banks, 564 S.W.2d 947 (Tenn. 1978). He remembered that the trial court excluded
two pictures. Counsel admitted that he should have ensured the Banks discussion
was on the record. However, counsel did not believe this prejudiced appellant.
Although the pictures were prejudicial to the defense, counsel said that exclusion was
unlikely because their probative value was too great.
We agree with counsel’s evaluation of the photos. Our review of the photos
indicates the high probative value of the pictures. They were indeed essential to the
State’s case, especially since the victim had no recollection of the events and could
not testify about her injuries. Although it would have been preferable for counsel to
ensure the record reflected that he took the necessary measures to prevent
admissibility, we cannot say this would have altered the outcome of the trial.
CONCLUSION
The record fully supports the trial court’s determination that counsel was not
ineffective. Our review indicates that trial counsel made many difficult tactical
decisions in appellant’s case and we conclude that his performance was well within
the range of competence demanded of attorneys in criminal cases. We are mindful
that
no two lawyers will make the same tactical decisions; each will utilize his
own traits of personality, knowledge, and experience to convince the
jury. Though all lawyers will try a lawsuit in a different way, this does not
13
necessarily mean that any of them would try it the wrong way. There are
no standard procedures for trial lawyers.
Hellard v. State, 629 S.W.2d 4, 12 (Tenn. 1982). Appellant is not entitled to post-
conviction relief.
_______________________________
William M. Barker, Judge
____________________________
Gary R. Wade, Judge
____________________________
Joseph M. Tipton, Judge
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