Parker v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION May 18, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
JOHNNY PARKER, )
) C.C.A. No. 03C01-9706-CR-00214
Appellant, )
) Knox County
V. )
) Honorable Ray L. Jenkins, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Brandt Davis John Knox Walkup
Attorney at Law Attorney General & Reporter
1707 Cove Creek Lane, Suite 2
Knoxville, TN 37919 Ellen H. Pollack
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0943
Randall E. Nichols
District Attorney General
Zane Scarlett
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Johnny Parker, appeals the denial of post-conviction relief,
arguing that he received ineffective assistance from his attorney. In 1992, the
appellant was convicted of attempt to commit first degree murder and received a
twenty-three year sentence in the Tennessee Department of Correction. The
appellant filed a pro se petition for post-conviction relief, and counsel was
appointed for the appellant. After a hearing on January 23 and 24, 1997, the trial
court denied post-conviction relief.
The appellant’s sole issue for review is whether the trial court properly
concluded that he received effective assistance of counsel. We affirm.
The appellant argues that he has carried the burden of proving that his
attorney was ineffective. Mr. William Talman was appointed to represent the
appellant at trial and also represented him on appeal. The appellant, who had a
murder charge pending against him, did not testify and did not offer any proof at
trial. The appellant was convicted of attempt to commit first degree murder of
Jerry Gibson.
Appellant had several complaints about his lawyer. At the post-conviction
hearing, the appellant testified that his attorney had met with him approximately
three times for fifteen to twenty minutes each time before trial. He had told his
attorney about Avonia Tompkins and Jackie Gilmore, witnesses who could
provide him an alibi. He had spoken with Curtis Cowan in the penitentiary after
his conviction, Cowan was present at the shooting, and knows that the appellant
was not the shooter. He says Mr. Talman never discussed the state’s evidence
or discovery production with him. He was arrested at the location he claimed to
have been present as the basis for his alibi. He says he was told that evidence
would be presented on his behalf at trial and that he would testify, which he
wished to do, but did not do. Furthermore, the appellant contends that no time
sheets or records were introduced to indicate how much time counsel actually
spent with him pretrial; and no testimony was provided concerning any plea
offers and whether they were accepted or rejected by the appellant.
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The state argues that the appellant received effective assistance. First, it
contends that Mr. Talman met with the appellant on a number of occasions; went
to the crime scene several times to investigate; and spoke with the victim, the
victim’s companion at the time of the crime, and a police officer. Second, the
state maintains that Mr. Talman could not locate Jackie Gilmore and had a
difficult time getting Avonia Tompkins to speak with him. W hen she did finally
speak with him, she told him that the appellant had not been with her at the time
of the attempt on the victim. Therefore, Mr. Talman did not file a notice of an
alibi defense because he could not substantiate it. Third, regarding the decision
about testifying, Mr. Talman stated that he did discuss with the appellant the trial
strategy of the appellant taking the witness stand, but the only thing the appellant
could testify to was that he was not the one who had shot the victim. Mr.
Talman, though concerned about the appellant’s pending murder charge,
contends that the appellant made the decision not to testify.
After his permission to appeal had been denied by the Tennessee
Supreme Court, the appellant told Mr. Talman that he had met Curtis Cowan in
prison and that Cowan would testify that he was at the crime scene, that he had
sold the victim cocaine, and that someone else had shot the victim. Although
Talman was skeptical of this new information, he had planned to talk to the
appellant and Cowan; but before he could, the appellant filed a petition for post-
conviction relief. At the post-conviction hearing, Cowan, who was in prison for
selling cocaine and for robbery, testified that he had sold cocaine to the victim
just before the shooting and that someone with a New York or New Jersey
“dialect” had shot the victim.
To be granted relief on the ground of ineffective assistance of counsel, an
appellant must establish that the advice given or the services rendered were not
within the competence demanded of attorneys in criminal cases and that, but for
counsel’s deficient performance, the result of his or her trial would have been
different. Strickland v. Washington, 466 U.S. 668 (1984). In Tennessee, the
appropriate test is whether counsel’s performance was within the range of
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competence demanded of attorneys in criminal cases. Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975).
In post-conviction proceedings, petitioners bear the burden of proving
their allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-
210 (1997). Furthermore, the trial court’s findings of fact in post-conviction
hearings are conclusive on appeal unless the evidence preponderates against
those findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); State v.
Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983); Clenny v. State, 576
S.W.2d 12, 14 (Tenn. Crim. App. 1978).
This Court finds that the appellant has failed to carry the burden of
establishing that his attorney was ineffective. Based upon the record before us,
the appellant’s attorney investigated the appellant’s case, which included talking
to witnesses and visiting the crime scene, and pursued a trial strategy beneficial
to the appellant, especially in light of his pending murder charge. At his post-
conviction hearing, the appellant admitted that the crux of his complaint was that
his attorney did not produce two witnesses to testify at his trial, although neither
one of these witnesses would have provided the appellant an alibi, and that his
attorney did not represent him “to the fullest of his capabilities.” However, the
record clearly indicates that the appellant received prudent and competent
assistance from Mr. Talman. Therefore, because the evidence does not
preponderate against the trial court’s findings, we affirm the judgment denying
post-conviction relief.
_______________________
PAUL G. SUMMERS, Judge
CONCUR:
_____________________________
JERRY L. SMITH, Judge
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______________________________
CURWOOD W ITT, Judge
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