Richard Brown v. State of Tennessee ( 2003 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    October 15, 2002 Session
    RICHARD BROWN v. STATE OF TENNESSEE
    Direct Appeal from the Circuit Court for Robertson County
    No. 8167    James E. Walton, Judge
    No. M2002-01243-CCA-R3-PC - Filed April 2, 2003
    The petitioner appeals the denial of post-conviction relief from his first degree murder conviction.
    He claims he received ineffective assistance of counsel because his trial counsel (1) failed to
    adequately challenge suppression of the petitioner’s confession and (2) failed to have the petitioner
    testify at trial. We affirm the trial court’s denial of post-conviction relief.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
    JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
    JERRY L. SMITH, JJ., joined.
    Gregory D. Smith, Clarksville, Tennessee, for the appellant, Richard Brown.
    Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
    General; John Wesley Carney, Jr., District Attorney General; and B. Dent Morris, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    A jury convicted the petitioner, Richard Brown, of the first degree murder of Charles Wade
    Bush. On direct appeal, the relevant facts supporting this conviction were determined to be: On
    August 9, 1991, the petitioner and co-defendant, Charlie Lee Maddle, met the victim in a bar and
    subsequently accompanied the victim to his home. At his home, the victim passed out after
    consuming “copious” amounts of alcohol. The petitioner and Maddle then decided to take $204
    from the victim. They took the victim from his house and, according to the petitioner, Maddle
    approached the victim from behind and accosted him. A struggle followed, and the victim then
    spoke Maddle’s name. Maddle stated they would have to kill the victim, because the victim could
    now identify them. Maddle began to strangle the victim and cut the victim’s throat with a knife
    several times. The petitioner eventually took the knife and stabbed the victim four times in the
    shoulder and neck. The victim died as a result of these wounds.
    In addition to the above facts, review of the record reveals the following: Detective Donald
    Bennett of the Robertson County Sheriff’s Department met with the petitioner on August 10, 1991.
    Detective Bennet mirandized the petitioner, who signed the standard waiver and admonition form.
    The petitioner then stated he did not wish to talk and was taken to his cell. Detective Bennett later
    had one of the jail officials initiate a clothing exchange and photograph of the petitioner. At this
    time, the petitioner allegedly stated he wanted to talk. The police again advised him of his Miranda
    rights, and he signed another waiver form. He then gave a statement confessing to the murder,
    stating he took the knife from Maddle to “finish it off.” Detective Bennett asked the petitioner if he
    was trying to kill the victim by taking the knife, and the petitioner said, “[Y]es sir.”
    At the motion to suppress hearing, the petitioner denied that he stated he wanted to talk, and
    he claimed the police officials initiated the conversation which led to the confession. The motion
    to suppress the confession was denied. At trial, the petitioner did not take the stand in his own
    behalf. Thereafter, he was convicted of first degree murder and sentenced to life in prison. On direct
    appeal, this court addressed the issues of admission of evidence and jury instructions and affirmed
    the conviction. State v. Richard Brown, No. 01-C-01-9301-CC0027, 
    1993 Tenn. Crim. App. LEXIS 579
     (Tenn. Crim. App. at Nashville, Aug. 26, 1993), perm. to appeal denied, (Tenn. Nov. 29, 1993).
    The petition for post conviction relief, alleging ineffective assistance of counsel, was denied after
    a hearing on July 31, 1996.
    At the post-conviction hearing, the petitioner testified that, during his initial questioning, he
    told the detectives that he no longer wanted to talk, but the detectives still talked to him about the
    possibility of the death penalty and presented him with Maddle’s statement. He said he told them1
    he wanted his attorney before any more questions were asked. According to the petitioner, they then
    took him to his cell but, around thirty to forty-five minutes later, Detective Bennett came to his cell,
    told him they needed to take pictures, and said, “Have you got something to tell me.” At that point,
    the petitioner gave his incriminating statement. He said that, other than the motion to suppress, his
    attorney did nothing about the admission of the confession and, furthermore, he never had any
    discussions with his trial counsel about appealing the suppression ruling. The petitioner argued that
    his trial counsel could have done more in pursuing the alleged coerced, involuntary confession.
    Specifically, the petitioner said his trial counsel could have interviewed more witnesses, including
    Maddle’s wife, the petitioner’s sister, and his brother-in-law. However, the petitioner acknowledged
    that trial counsel did do some cross-examination of the police officers and pursued this issue at the
    suppression hearing. He testified that his sister was called to the stand at trial, but he could not
    remember if anyone else was called to testify. He said trial counsel failed to talk to enough people
    and did not bring up evidence, such as the lack of the petitioner’s fingerprints on the knife or any
    other scientific tests. Furthermore, he testified that, had trial counsel called Maddle, Maddle might
    have admitted committing the crime.
    1
    The petitioner was referring to Detective Bennett and Detective Perry when he said “them.” The petitioner
    referred to the detectives as “them ” or “he” qu ite often, and it is unclear which detective he was specifically referring
    to.
    -2-
    On cross-examination, the petitioner admitted that Detective Bennett came to his cell and
    took his photograph and that he had signed a waiver of his rights. He testified he was unaware of
    any other evidence that would disprove his confession.
    Trial counsel testified he used a psychological examiner at the suppression hearing and
    explored the intoxication issue. He said his investigator checked out the crime scene. He did not
    call Maddle at trial because he believed calling him to testify would hurt the case. He said he did
    not appeal the voluntariness of the confession because he could find no law to contradict the findings
    at the suppression hearing.
    On cross-examination, trial counsel stated he did not ask for exculpatory material from the
    State or call any additional witnesses. He said he did not try to argue voluntary manslaughter but
    tried to shift the burden for the murder to Maddle as much as possible. Trial counsel said he asked
    the petitioner everything he could think of about the circumstances surrounding the confession and
    he did not appeal the voluntariness issue because he felt such an appeal would be frivolous since his
    client initiated the contact that led to the confession. Trial counsel had been practicing law in
    Robertson County for twenty-three years. He testified that he was familiar with State v. Balthrop,
    which came through Robertson County, State v. Jenkins, and Harris v. New York, as he came across
    them in his research preparing for the direct appeal.2 However, due to the findings at the suppression
    hearing, he felt an appeal on the voluntariness issue would be frivolous. He further acknowledged
    that courts can make a 180 degree turn concerning the direction of the law.
    The petitioner called Detective Bennett, who said the petitioner initiated the conversation
    which led to the confession. Detective Bennett also said he had no knowledge of the State v.
    Balthrop case. On cross-examination, he testified that the petitioner signed an admonition and
    waiver form. On redirect, he said the petitioner did not request him to come to his cell for the
    photograph.
    The petitioner was recalled and denied initiating talks after he requested an attorney and
    invoked his right to remain silent. He said Detective Bennett said to him, “Do you got something
    you want to tell me.”
    Post conviction relief was denied. In the order denying relief, the post-conviction court found
    that the statement made by the petitioner in the second interview was not coerced, crediting
    Detective Bennett’s testimony that the petitioner initiated contact. The post-conviction court
    specifically found that the confession was not illegally obtained.
    2
    State v. Balthrop, 
    752 S.W.2d 104
     (Tenn. Crim. App. 198 8) (the introduction of the defendant’s statement
    to an officer after a warrant had b een issued did not violate his rights to counsel and due process or the “Miranda”
    requirements); State v. Jenkins, 
    859 S.W.2d 364
     (Te nn. Crim. Ap p. 19 93) (statement by the defendant in respo nse to
    an impro per interroga tion was determined to be illegally ob tained); Harris v. New York, 
    401 U.S. 222
    , 
    91 S. Ct. 643
    ,
    28 L. Ed . 2d 1 (1 971 ) (M iranda did not prevent the State from using the d efendant’s statem ents to p olice in o rder to
    confront the defendant with prior incon sistencies).
    -3-
    As to the ineffective assistance claim, the post-conviction court found that trial counsel
    interviewed all available witnesses and adequately investigated the crime scene. Additionally,
    despite the undisputed suggestion that the crime was Maddle’s idea, there was no suggestion that the
    killing was perpetrated by someone other than the petitioner because the petitioner admitted he
    struck the victim at least twice for the purpose of “finishing him off.” Further, there was nothing
    presented at the post-conviction hearing to indicate that any scientific work done by trial counsel was
    ineffective. The post-conviction court found that trial counsel covered the issue of the possibly
    tainted confession at the suppression hearing; therefore, there was no basis for any ineffective claim
    for failing to pursue the denial of the suppression motion. The post-conviction court also found the
    failure to call Maddle to the stand was not ineffective because there was no evidence to suggest that
    Maddle’s testimony would have been helpful. Accordingly, trial counsel did not render ineffective
    assistance of counsel but far exceeded the standard required for attorneys representing defendants
    in criminal cases. The petitioner appeals the decision.
    Analysis
    On appeal, the petitioner argues that trial counsel was ineffective based upon the following
    grounds: (1) failure to pursue suppressing the confession made by the petitioner, by not calling
    enough witnesses to prove the involuntariness of the confession, and by not appealing the adverse
    ruling at the motion to suppress, and (2) failure to have the petitioner testify at trial. The petitioner’s
    second claim is waived because it was not included in his petition for post-conviction relief and was
    not raised before the post-conviction court. This claim cannot be presented for the first time on
    appeal. 
    Tenn. Code Ann. § 40-30-204
    (c)(d) (1997); Tenn. R. App. P. 36(a); Hester v. State, 
    450 S.W.2d 609
    , 611 (Tenn. Crim. App. 1969).
    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, 
    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 to determine whether counsel provided effective assistance is whether
    his performance was within the range of competence demanded of attorneys in criminal cases.
    Baxter, 
    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, 
    466 U.S. at 689
    , 
    104 S. Ct. at 2065
    ; State v. Burns, 
    6 S.W.3d 453
    , 462 (Tenn. 1999). Therefore, in order to prove a
    deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
    an objective standard of reasonableness under prevailing professional norms.” Goad, 
    938 S.W.2d at
    369 (citing Strickland, 
    466 U.S. at 688
    , 
    104 S.Ct. at 2065
    ).
    -4-
    In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
    eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
    conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 
    466 U.S. at 689
    , 
    104 S. Ct. at 2065
    . The fact that a particular strategy or tactic failed or hurt the defense does
    not, standing alone, establish unreasonable representation. However, deference to matters of strategy
    and tactical choices applies only if the choices are informed ones, based upon adequate preparation.
    Henley v. State, 
    960 S.W.2d 572
    , 579 (Tenn. 1997); Hellard v. State, 
    629 S.W.2d 4
    , 9 (Tenn. 1982).
    The trial judge’s findings of fact on post-conviction hearings are conclusive on appeal, unless
    the evidence preponderates otherwise. Burns, 
    6 S.W.3d at 461
    . The post-conviction court’s findings
    of fact are afforded the weight of a jury verdict, and this Court is bound by those findings unless the
    evidence in the record preponderates otherwise. Henley, 
    960 S.W.2d at 578
    ; Alley v. State, 
    958 S.W.2d 138
    , 147 (Tenn. Crim. App. 1997). This Court may not reweigh or reevaluate the evidence
    nor substitute its inferences for those drawn by the trial judge. Henley, 
    960 S.W.2d at 578-79
    ;
    Massey v. State, 
    929 S.W.2d 399
    , 403 (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. Burns, 
    6 S.W.3d at 461
    .
    As discussed earlier, the post-conviction court found that trial counsel’s performance was
    effective. We agree. A review of the record reveals that trial counsel’s arguments at the motion to
    suppress hearing addressed the issue competently. He called witnesses to help establish the
    involuntariness of the confession, cross-examined adverse witnesses, and argued forcefully that the
    petitioner’s confession was involuntary. With the broad range of competence afforded trial
    attorneys, we cannot say that trial counsel’s performance was deficient. He was presented with a
    defendant who confessed to stabbing the victim in order to “finish him off.” Trial counsel attempted
    to get that confession suppressed. Despite the admissibility of the petitioner’s statement, trial
    counsel made efforts to defend his client, including interviewing witnesses, investigating the crime
    scene, and making strategic decisions about how to handle the crime scene evidence. The petitioner
    presented no evidence at the post-conviction hearing showing that his attorney was deficient or, even
    if deficient, any errors made by him were prejudicial to the petitioner’s case. Furthermore, Maddle
    did not testify at the post-conviction hearing and, because the burden is on the petitioner to present
    evidence at the post-conviction hearing to show that trial counsel’s actions were ineffective, Black
    v. State, 
    794 S.W.2d 752
    , 757 (Tenn. Crim. App. 1990), the failure of Maddle to testify prevents the
    petitioner from meeting that burden.
    The petitioner did not present evidence at the post-conviction hearing to preponderate against
    the finding that trial counsel was effective, including presenting any witnesses. He claims that his
    trial counsel should have interviewed more witnesses, yet he failed to present those witnesses at the
    hearing.
    When a petitioner contends that trial counsel failed to discover, interview, or present
    witnesses in support of his defense, these witnesses should be presented by the
    petitioner at the evidentiary hearing. As a general rule, this is the only way the
    petitioner can establish that (a) a material witness existed and the witness could have
    -5-
    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 injued
    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
    ; see also Scott v. State, 
    936 S.W.2d 271
    , 273 (Tenn. Crim. App. 1996).
    Neither the post-conviction court nor this Court can speculate on what a witness’ testimony might
    have been if introduced by counsel. Black, 
    794 S.W.2d at 757
    . The petitioner’s failure to present
    witnesses at the post-conviction hearing is fatal to his satisfying his burden on appeal. Absent
    speculation, we have no evidence to make a determination that any performance, or lack thereof, was
    prejudicial. There is no merit to this issue.
    The petitioner also claims trial counsel should have raised the issue of failure to suppress on
    direct appeal because of his knowledge of several cases which dealt with the issue of coerced
    confessions. Trial counsel stated at the post-conviction hearing that he did not raise the suppression
    issue on appeal because he felt such an appeal would be frivolous. Trial counsel stated that, while
    he was familiar with those cases, he concluded they were insufficient to support a suppression claim
    on appeal. He based this decision on the findings made by the trial court. We cannot determine that
    those cases are of such magnitude that the failure to pursue an appeal would be ineffective assistance
    of counsel. As with any issue, there will always be cases to support an argument, yet the decision
    to appeal is still a strategic one, and that decision is left to the sound discretion of appellate counsel.
    Porterfield v. State, 
    897 S.W.2d 672
    , 678 (Tenn. 1995). 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)
    (citing State v. Swanson, 
    680 S.W.2d 487
    , 491 (Tenn. Crim. App. 1984)). This responsibility
    addresses itself to the professional judgment and sound discretion of appellate counsel. Porterfield,
    
    897 S.W.2d at 678
    . 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.
     Considering that trial counsel presented the suppression
    issue at a full motion to suppress hearing, where the trial court made specific findings that the
    petitioner was fully advised of his Miranda rights and made an understanding waiver of his rights,
    we cannot conclude that trial counsel’s failure to raise the suppression issue on appeal constituted
    deficient performance.
    Accordingly, the judgments of the trial court are affirmed.
    ______________________________
    JOHN EVERETT WILLIAMS, JUDGE
    -6-