Tony v. Carruthers ( 1996 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1996
TONY V. CARRUTHERS, )
FILED
C.C.A. NO. 02C01-9505-CR-00130
) April 17, 1996
Appellant, )
) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate Court Clerk
VS. )
) HON. BERNIE WEINMAN
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
MR. CRAIG V. MORTON, II CHARLES W. BURSON
Attorney at Law Attorney General and Reporter
212 Adams Avenue
Memphis, TN 38103 CLINTON J. MORGAN
Attorney General’s Office
450 James Robertson Parkway
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
REGINALD R. HENDERSON
Assistant District Attorney
201 Poplar Avenue
Third Floor
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
The Appellant, Tony Von Carruthers, was convicted of aggravated assault
in 1990. He was sentenced to ten years imprisonment. In September of 1992,
Appellant petitioned for post-conviction relief in the Shelby County Criminal Court
alleging that he received the ineffective assistance of counsel in violation of his
rights under the Sixth Amendment to the United States Constitution. Following
an evidentiary hearing, the trial court denied Appellant’s petition. On appeal,
Appellant again asserts that his trial attorney inadequately prepared and
presented the defense at trial and that the lower court erroneously concluded
otherwise. Finding no error in this record with regard to the denial of the petition,
we affirm the decision of the criminal court.
W hen an Appellant's post conviction claim involves the Sixth Amendment
right to effective 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 assistance of
counsel, a petitioner must show that his or her counsel's representation fell below
the objective standard of Baxter and, additionally, that this sub-standard
representation actually prejudiced the defense. Strickland v. W ashington, 466
U.S. 668 (1984).
Our Supreme Court has held that “[t]o establish actual prejudice, the
defendant must demonstrate that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
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different. . . . A probability is ‘reasonable’ if it is ‘sufficient to undermine
confidence in the outcome’ of the proceeding.” Overton v. State, 874 S.W .2d 6,
11 (Tenn. 1994) (quoting Strickland, 466 U.S. at 694).
"In post-conviction relief proceedings the Petitioner has the burden of
proving the allegations in his [or her] petition by a preponderance of the
evidence." McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983).
Furthermore, the factual findings of the trial court in a post-conviction proceeding
are conclusive on appeal unless the appellate court finds that the evidence
preponderates against the findings. Butler v. State, 789 S.W .2d 898, 899 (Tenn.
1990). In reviewing the denial of collateral relief, this Court is bound by the
following well established rules of appellate review:
(1) this court cannot reweigh or reevaluate the evidence or
substitute its inferences for those drawn by the trial judge, (2)
questions concerning the credibility of witnesses, weight and value
to be given their testimony, and factual issues raised by evidence
are resolved by the trial judge, and (3) on appeal, the petitioner has
the burden of demonstrating why the evidence contained in the
record preponderates against the judgment entered by the trial
judge.
Taylor v. State, 875 S.W.2d 684, 686 (Tenn. Crim. App. 1993) (citing Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990)).
The record reflects that, prior to his trial, Appellant was appointed four
successive attorneys. Due to continuing dissatisfaction, he requested the
dismissal of each of the first three. The Appellant's last attorney, who
represented him at trial, was appointed less than a month prior to trial.
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Several of the specific allegations raised by Appellant stem from the period
of time between the trial attorney’s appointment and the trial. Appellant claims
that his attorney only interviewed him once before trial and then met with him a
few times briefly in the court room. Also, Appellant maintains that the trial
attorney failed to engage in discovery until the day of the trial.
To the contrary, the trial attorney testified that, once he took over the case,
he immediately assigned an investigator from the public defender’s office to the
case. Counsel’s notes, to which he constantly referred during the post-conviction
hearing, reflected an adequate knowledge of Appellant's case. The trial judge
found that “the trial attorney had adequately discussed the case with his client
prior to trial and proper pre-trial investigation . . . had been made.” We are
unable to find that the evidence preponderates against this finding.
Furthermore, there is no evidence in the record that additional time
between trial counsel’s appointment and trial would have led to a different result
in the case. As such, Appellant has failed to meet his burden of proving that any
prejudice resulted from the attorney’s allegedly dilatory discovery and inadequate
pretrial investigation.
Only Appellant and his trial attorney testified at the post-conviction hearing.
As indicated above, there was some discrepancy in their versions of the
conversation and preparation which preceded the trial. The majority of
Appellant's testimony related to his attorney’s alleged failure to call certain
witnesses whom Appellant felt would have been crucial to his defense.
Appellant testified that, though he told his attorney about these witnesses, they
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were never subpoenaed. He later admitted that two of the witnesses had in fact
been subpoenaed.
The trial attorney testified that he attempted to locate every witness
mentioned by Appellant. One of these potential witnesses was present at trial
however he was not called as a witness because he claimed to have no personal
knowledge of the events surrounding the shooting. Another potential witness,
listed as a state’s witness, had given a statement incriminating Appellant.
Therefore, defense counsel did not call him. As for the third possible witness, the
trial attorney had noted that Appellant had told him that he, Appellant, would
communicate with this witness because contact by an attorney might offend the
witness.
The trial court found that the trial attorney made an effort to locate all the
witnesses of which he had knowledge. Appellant has presented naked
allegations to the contrary without even a trace of evidence which preponderates
against the trial court’s findings. Moreover, Appellant has again failed to show
any actual prejudice with regard to this point. There is no evidence that trial
testimony of these witnesses would have been favorable to the accused had it
been a part of the Appellant's defense. See Taylor v. State, 875 S.W .2d 684,
687 (Tenn. Crim. App. 1994) (no prejudice demonstrated where post-conviction
petitioner failed to show that potential defense witnesses, who were not called by
trial counsel, would have testified favorably). Indeed, the testimony of the trial
attorney suggests that at least one of the witnesses gave a statement
corroborating the State’s version of the shooting while another claimed to know
nothing about the crime.
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Finally, Appellant insisted that certain medical records reflecting an
inconsistency in the victim’s statement with regard to how many times she was
shot should have been admitted at trial. At the post-conviction hearing, the trial
attorney testified the victim had stated on different occasions that she had been
shot three and five times. The trial attorney reviewed the medical records which
revealed that the witness had in fact been shot four times. Concluding that this
information did not add significantly to the cross-examination of the victim, the
trial attorney made a tactical decision not to refer to it. A reviewing court must
defer to an attorney’s trial strategy or tactical choices so long as they are
informed and based upon adequate preparation. Hellard v. State, 629 S.W .2d
4, 9 (Tenn. 1982); Vermilye v. State, 754 S.W .2d 82, 85 (Tenn. Crim. App.
1987).
Because we find that Appellant has failed to present evidence that
preponderates against the trial court’s conclusion that the advice given and the
services rendered by the trial counsel were competent, we affirm the decision of
the trial court .
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
LYNN W . BROW N, SPECIAL JUDGE
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