State v. Kenneth Clay ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1997 December 2, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
KENNETH LEE CLAY, ) C.C.A. NO. 02C01-9610-CC-00323
)
Appe llant, )
) LAKE COUNTY
)
V. )
) HON. JOE G. RILEY, JR., JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
LANCE E. WEBB JOHN KNOX WALKUP
P.O. Box 26 Attorney General & Reporter
Union City, TN 38261
CLINTON J. MORGAN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
C. PHILLIP BIVENS
District Attorney General
JOHNNY VAUGHN
Assistant District Attorney General
115 Ea st Marke t
P.O. Box E
Dyersburg, TN 38025
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Petitioner, Kenneth Lee Clay, appeals the trial court’s denial of his petition
for post-conviction re lief. On July 20, 1994, Petitioner was convicted of two
counts each of burg lary an d theft o f prope rty follow ing a ju ry trial in the C ircuit
Court of Lake County. He was sentenced to four (4) years for each co unt, with
counts one (1) and tw o (2) to be served concurrently and counts three (3) and
four (4) to be served concurrently. Counts one (1) and two (2) were to be served
consecu tive to the s enten ces im pose d in counts three (3) and four (4), for a total
sentence of eight (8) years. Petitioner c ontend s that he w as den ied his Sixth
Amendment right to the effective assistance of counsel because of Counsel’s: (1)
failure to present an alibi de fense; (2 ) failure to exercise peremptory challenges
during voir dire of the jury; (3) deprivation of Petitioner’s right to testify; and (4)
failure to appeal the issue of consecutive sentencing. We affirm the judgment of
the trial cou rt.
In determining whether counsel provided effective assistance at trial, the
court must decide whether counsel’s performance was within the range of
competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was
ineffective at trial, a petitioner bears the burden of showing that his counsel made
errors so serious that he was not functioning as counsel as guaranteed under the
Sixth Amendment and that the deficient representation prejudiced the petitioner
resulting in a failure to produ ce a reliab le result. Strickland v. Washington, 466
U.S. 668, 68 7, reh’g denied, 467 U.S . 1267 (1 984); Cooper v. State, 849 S.W.2d
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744, 747 (T enn. 1993 ); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To
satisfy the seco nd pron g the pe titioner mu st show a reaso nable p robability tha t,
but for cou nsel’s unreason able error, the fact finder w ould have had re ason able
doubt regardin g petitione r’s guilt. Strickland, 466 U .S. at 69 5. This reaso nable
probab ility must be “su fficient to undermine confidence in the outcome .” Harris
v. State, 875 S.W .2d 662, 665 (Tenn. 199 4).
When reviewing trial cou nsel’s action s, this co urt sho uld no t use th e ben efit
of hindsight to second-guess trial strategy and criticize cou nsel’s tactic s. Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be
judged at the time they were made in light of all facts and circumstances.
Strickland, 466 U.S . at 690; see Cooper, 849 S.W.2d at 746.
The Petitioner called trial counsel to testify at the evidentiary hearing.
Counsel was ap pointed to repres ent Petition er for cha rges of b urglary an d theft
arising out of two separate incidents. One of the burglaries was committed on
January 6, 1994, and the second burglary occurred on Feb ruary 20, 1 994. Bo th
of the theft charges were felonies because the amount stolen was over five
hundred dollars ($500.00). The first jury trial on these charges against Petitioner
ended in a mistrial, b ut he wa s convicte d of all cha rges at the secon d trial.
Counsel stated that he initially met with Petitioner briefly on the day he was
appointed, and that he and his investigator met with the Petitioner on later dates.
During those meetings, they discussed Petitioner’s defense and any alibi
witnesses he named. A plea offer was made to Petitioner, and both the
investigator and coun sel talked to Petitioner re garding the terms and
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ramifications of the offer. The offer made by the District Attorney’s office was four
(4) years fo r each charg e, all sentences to run c oncu rrently b ut con secu tive to all
prior sentences. Coun sel did not rec all any other offers be ing made to Petitioner.
Trial counsel obtained c opies of statements given to the police regarding the
burglaries. From the time counsel was appointed to the time of trial, he and h is
investigato r met with the Petition er severa l times.
The alibi witness es Petition er nam ed were subpo enaed for the first trial,
and counsel spoke with each of them. All three of the w itness es co uld not be of
any help to Petitioner because of the time frame in which the burglary occurred.
W hile all of them had been with the Petitioner earlier in the evening on the night
of the burglary, they did not kn ow an ything o f his wh ereab outs fro m tha t time u ntil
the next day. Counsel decid ed tha t the witn esse s wou ld not h elp Pe titioner’s
defense, but would hurt him and did not call them to testify. Because of this,
these witnes ses w ere no t subp oena ed for th e sec ond tria l. Counsel discussed
with Petitioner his right to testify at both trials, but recommended that he not
testify due to his prior record. The final decision was left to the Petitioner, and he
chose not to testify on both occasions.
Counsel stated that jury selection was very important in both trials, and that
he exerc ised three of his pere mptory challeng es at the s econd trial. Wh ile one
of the members of the jury which convicted Petitioner had previously worked at
the store that was robbed, counsel personally knew the juror and “didn’t feel like
that would h ave ma ttered to he r.” Wh ile cou nsel co uld not specifically recall if he
asked the juror if she could be unbiased, the Petitioner did not object to her being
a juror. When questioned regarding his cross-examination of the Petitioner’s live-
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in girlfriend, whose testimony at the second trial contradicted her testimony from
the first trial, counsel stated that he cross-examined her and “tried at some point
to get her o n line with the secon d burgla ry . . . because she had to me conveyed
a wrong statement to the jury. I can’t remember exactly what it was but I thought
she had c orrected it, but I doubt if the jury . . . knew w hat was ha ppening.”
Lloyd Price, a purported alibi witness for the Petitioner, testified that he was
subpoenaed to the first trial, but he did not rem emb er talkin g to Pe titioner’s
coun sel. Price c ould n ot reca ll being with Pe titioner on January 6, 1994. He
stated tha t he had been d rinking tha t night.
Petitioner testified that h e could n ot recall m eeting w ith his trial counsel, but
he did meet with the investigator. He gave the investigator the names of potential
alibi witnesses for the first burglary of Janu ary 6, 1994. At another meeting, the
investigator discussed the implications of the plea agreement offer with him, but
he did not understand what he would have been pleading guilty to as counsel did
not explain it to him. Petitioner later discussed anothe r plea ag reeme nt offer with
the investigator in which he was offered a 1.5 year senten ce for a guilty plea, but
it was not p roperly exp lained to h im.
At the evidentiary hearing, Petitioner recalled tha t his alibi witnesses we re
subpoenaed for the first trial, but that counsel would not call them to testify
because counsel said, “[T]hey’ll hurt you more than they can help you.”
Petitioner did not ask counsel to subpoena these witnesses for the se cond trial.
Petitioner stated that wh ile he d id not fully understand the plea agreement offers,
he would not have pled guilty regardless what the offer wo uld ha ve bee n. W hile
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Petitioner claimed he wanted to testify at trial, he was advised that his criminal
record w ould be brough t up and felt pressu red not to testify.
Petitioner recalled the juror who had worked at Piggly Wiggly, the site of
the burglary. He stated that he mentioned this fact to trial counsel, but counsel
replied that she would be a good juror. Petitioner never specifically requested
counsel to strike the wom an from the jury pane l. Follow ing the convic tion in the
second trial, Petitioner te stified that trial coun sel ne ver con sulted with him
regarding any possible issues for appeal, nor did he specifically suggest any
issues fo r appea l.
Upon review of the record, including Petitioner’s presentence report and
transcript from h is second trial, this court finds that the Petitioner was not denied
the effective assistance of counsel. In a written memorandum, the trial judge
found that the Petitioner had failed to establish that he was deprived of effective
assistance of counsel. We conclude that the evidence does not preponderate
agains t these find ings of the trial court.
In his brief, P etitione r also re fers to c ouns el’s failur e to ad equa tely prepare
for trial. From the testimony of trial coun sel, his pre paration was su fficient to
provide Petitioner with effective representation. As the judge correctly pointed
out in his order denying the petition, there has been no showing that counsel
could have d one a nything else in tr ial prep aration . On th e issue of cou nsel’s
failure to call alibi witnesses, counsel interviewed and subpoenaed all witnesses
which Petitioner id entified. Furthermore, the alibi witness which Petitioner called
to testify at the post-conviction hearing could not recall seeing Petitioner at all on
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the night in question and had been drinking that night. On the issue of alibi
witnesses, a petitione r is not entitled to any relief “unless he can produce a
material witness who (a) could have been found by a reasonable investigation
and (b) would have testified favora bly in support of his de fense if called.” Black
v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990). Petitioner has clearly
not me t that require ment.
Petitioner also co ntend ed the cross -exam ination of one of the S tate’s
witnesses, his live-in girlfriend, was an example of ineffective assistance of
coun sel. While Petitioner claims th at her testimony at the second trial was
inconsistent with that of the first trial, Petitioner failed to provide this cou rt a
transcript of the girlfriend ’s testimo ny from th e first trial. While it does appear
from counsel’s cro ss-examination during the second trial that there were some
contradictions in the g irlfriend’s testim ony, co unse l did atte mpt to impe ach h er in
this regard and to clarify the testimony at the second trial. Petitioner has failed
to show any prejudice.
Petitione r’s contentions reg arding the failure to exe rcise perem ptory
challenges also are without merit. Petitioner and counsel specifically discussed
the potential juror’s prior employment at the store that was burglarized, and
counsel told Pe titioner th at he b elieved she w ould b e a go od juror. Counsel’s
decision was based upon his personal knowledge and was made as a tactical
decision. This court shou ld not s econ d-gue ss trial co unse l’s tactica l and s trategic
choices unless those choices were uninformed because of inadeq uate
preparation. Hellard v. State, 629 S.W .2d 4, 9 (T enn. 19 82). In any event,
Petitioner did not specifically request that this juror be challenged.
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On the issue of his failure to testify, Petitioner contends that counsel
impro perly insisted that he not testify. There were two se parate trials in th is
matter, and on both occ asions P etitioner wa s advised of his right to testify and
the fact that his prior criminal record would probably be brought up by the State
for impe achm ent pu rpose s. On b oth oc casio ns, Pe titioner m ade th e final
decision not to te stify, and coun sel’s ad vice that Petitioner not testify was a
tactical choice. While a different strategy might have been employed by counsel
in this regard, counsel may not be deemed to be ineffective for this reason alone.
See William s v. State, 599 S.W .2d 276 , 280 (T enn. C rim. App . 1980).
The final claim o f Petitioner is that counsel failed to raise the issue of
consecu tive sente ncing in his dir ect ap peal. T here w as little te stimony elicited
from coun sel on this m atter at th e pos t-conv iction h earing , but it is clear from the
record that consecutive sentences are justified in Petitioner’s case. At the
sentencing hearing, Petitioner was found to be (1) a professio nal criminal who
knowin gly devoted himself to criminal acts as a major source of livelihood, and
(2) an offender w hose reco rd of crimina l activity was extensive. Tenn. Code Ann.
§ 40-35-115(b)(1) and (2 ). In add ition, Pe titioner’s pre-sentence report indicated
that he has a nearly non-existent record of employment since his eighteenth
birthday. As trial counsel felt Petitioner met the criteria for consecutive
sentencing, counsel did not raise it as an issue on appeal. There is no
requirement that counsel raise a non-frivolous issue on appeal if, as a matter of
professional judgment, counsel feels the issue should not be addres sed. See
Porte rfield v. State, 897 S.W .2d 672, 678 -79 (Tenn . 1995) cert. denied, 116 S.C t.
385 (19 95); State v. Draper, 800 S.W .2d 489 , 498 (T enn. C rim. App . 1990).
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A thorough review of the record reflects that the trial court properly denied
Petitione r’s post-co nviction pe tition. W e affirm the judgm ent of the tria l court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID G. HAYES, Judge
___________________________________
JERRY L. SMITH, Judge
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