State v. Issac Williams ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION
FILED
March 19, 1999
Cecil Crowson, Jr.
Appe llate Court C lerk
ISAAC WILLIAMS, )
) C.C.A. No. 02C01-9802-CR-00049
Appellant, )
) Shelby County
V. )
) Honorable Joseph B. Dailey, Judge
)
STATE OF TENNESSEE, ) (Post Conviction--Aggravated Robbery)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN F. CANALE III JOHN KNOX WALKUP
100 N. Main Building, Suite 1933 Attorney General & Reporter
Memphis, TN 38103
GEORGIA BLYTHE FELNER
Counsel for the State
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
LEE COFFEE
Assistant District Attorney General
Criminal Justice Center, Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
Isaac Williams appeals as of right from a judgment of the Shelby County
Criminal Court denying his petition for post-conviction relief. On March 31, 1995,
following a bench trial, the appellant was convicted of aggravated robbery and
sentenced to twenty years’ confinement as a Range III offender. This Court
affirmed his conviction on direct appeal. See State v. Isaac Williams, No.
02C01-9507-CR-00205 (Tenn. Crim. App. filed Dec. 6, 1996, at Jackson). On
March 6, 1997, the appellant filed a pro se petition for post-conviction relief
alleging that his trial counsel was ineffective. Counsel was appointed, and the
appellant filed an amended petition on April 30, 1997. Following an evidentiary
hearing, the trial court denied relief. The sole issue for our review is whether the
evidence preponderates against the findings of the trial court. We conclude that
it does not and AFFIRM the judgment of the trial court.
A petitioner alleging ineffective assistance of counsel bears the burden of
showing (1) that his or her counsel's representation was "deficient" and (2) that
"the deficient performance prejudiced the defense." Strickland v. Washington,
466 U.S. 668, 687 (1984). To show deficient performance, the appellant must
show that counsel's performance fell below an objective standard of
reasonableness under prevailing professional norms and must demonstrate that
counsel made errors so serious that he was not functioning as "counsel"
guaranteed by the Constitution. See Strickland, 466 U.S. at 687. Counsel's
performance is not deficient when "the advice given, or the 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). A
reviewing court must indulge a strong presumption that counsel's conduct falls
within the range of reasonable professional assistance and must evaluate
counsel's performance from counsel's perspective at the time of the alleged error
and in light of the totality of the evidence. See Strickland, 466 U.S. at 695.
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To establish prejudice, a petitioner must demonstrate a reasonable
probability that, but for counsel's deficient performance, the result of the
proceeding would have been different. See id. at 687-88, 692, 694; Best v.
State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). "A reasonable probability
is a probability sufficient to undermine confidence in the outcome." Strickland,
466 U.S. at 694.
In post-conviction proceedings, the petitioner bears the burden of
establishing his or her factual allegations by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-210(f) (1997). Evidence is clear and convincing when
there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896,
901, n.3 (Tenn. 1992). The findings of fact of the trial court are conclusive and
binding on this Court unless the evidence preponderates against them. See
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993) (citing Butler v. State, 789
S.W.2d 898, 899 (Tenn. 1990)). And, on appeal, the appellant bears the burden
of illustrating how the evidence preponderates against the judgment of the trial
court. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
The appellant first contends that his trial attorney, Lila Kathleen Mitchell,
was deficient in her examination of one of the state’s witnesses, Officer James
Holder. Holder testified at the appellant’s trial regarding fingerprint evidence
against the appellant. The appellant contends that Mitchell was ineffective in
failing to retain an expert or to consult a treatise for the purpose of refuting this
testimony. The appellant, however, has not shown or even alleged any benefit
that might have been attained though expert testimony. Nor has he shown any
deficiency in Mitchell’s cross-examination of Holder or of her knowledge
regarding fingerprint evidence. To the contrary, although Mitchell did not consult
a reference on fingerprint evidence specifically for the appellant’s trial, she
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testified at the post-conviction hearing that she was familiar with the issues
regarding such evidence.
Additionally, during his testimony at the appellant’s preliminary hearing,
Officer Holder indicated the appellant’s offense occurred on March 14, 1992,
rather than on the correct date of March 24, 1992. The appellant’s trial counsel
candidly admitted at the post-conviction hearing that she “missed” this factual
inconsistency and, therefore, did not attempt to impeach the witness on this
point. Nevertheless, the appellant has not shown a reasonable probability that
the outcome of the proceeding would have been different had Holder been
impeached. Even if Holder’s testimony were completely disregarded, the
remaining evidence, including a videotape of the appellant in the act of
committing the robbery, was overwhelming. In fact, Mitchell stated at the post-
conviction hearing that it was the “strongest evidence” she had ever seen, and
that she had advised the appellant, in context of presenting a plea offer, that he
did not have a "snowball’s chance in hell" of acquittal. This issue is without
merit.
The appellant next argues that Mitchell's performance was deficient in that
she did not fully advise him regarding a plea offer presented by the state. The
state had offered a range I, eight-year sentence in return for the appellant's guilty
plea. The appellant contends that Mitchell failed to explain to him (1) the
location at which he would be required to serve his sentence if he accepted this
offer and (2) that the state's offer might be withdrawn if he failed to accept.
Thus, the appellant asserts, he was precluded from making an informed decision
regarding the state’s offer. The appellant, however, did not raise this allegation
in his petition below, and the trial court, therefore, did not determine the issue.
As a result, we have no decision to review. This issue is without merit.
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Finally,1 the appellant alleges that Mitchell failed to instruct him regarding
the jury selection process. On the day of the appellant’s trial, the prosecution
announced that the jury panel was present and that they were ready to proceed.
The appellant then surprised Mitchell by announcing that he wished to waive his
right to a jury trial and proceed with a bench trial instead. The appellant asserts
that he took the prosecution’s statement to mean that his jury had already been
selected and that he did not understand that he would have been able to voir
dire potential jurors. He stated that he would have proceeded to trial by jury had
he understood the selection process.
The appellant admitted, however, that, having been convicted of seven
prior felonies, he understands the criminal justice system quite well. Moreover,
he admitted that the trial judge had instructed him regarding the jury selection
process during the court’s voir dire of the appellant prior to accepting his waiver
of a jury trial. Thus, the record fully supports the trial court’s conclusion that the
appellant “fully understood what was taking place, that he fully understood his
right to a jury trial and all that that entailed, and that he freely and voluntarily
waived that right.”
We conclude that the evidence in the record does not preponderate
against the findings of the trial judge. Accordingly, the judgment of the trial court
is affirmed.
1
In the petition below, the appellant alleged additional deficiencies in the performance of his
trial counsel including, among others, that she failed to interview or call an alibi witness and that she
failed to show him certain incriminating photographs prior to the day of trail. In this appeal, however,
the appellant does not challenge the trail court’s finding that these allegations did not establish
ineffective assistance of counsel. Because the appellant bears the burden of demonstrating to this
Court how the evidence preponderates against the findings of the trial court, and because he has not
attempted to do so with regard to these allegations, we presume the trial court’s finding to be correct
and will not further address these allegations.
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_ ____________________________
JOHN EVERETT WILLIAMS, Judge
CONCUR:
_____________________________
GARY R. WADE, Judge
_____________________________
THOMAS T. WOODALL, Judge
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