State v. Elbert Tate ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1999 SESSION
FILED
August 12, 1999
ELBERT TATE, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Appellant, ) No. 02C01-9810-CR-00304
)
) Shelby County
v. )
) Honorable James C. Beasley, Judge
STATE OF TENNESSEE, )
) First degree murder and attempted first
) degree murder
)
Appellee. )
For the Appellant: For the Appellee:
Jeffery S. Glatstein Paul G. Summers
200 Jefferson Avenue, Suite 1313 Attorney General of Tennessee
Memphis, TN 38103 and
R. Stephen Jobe
Assistant Attorney General of Tennessee
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
and
Scott Gordon
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Elbert Tate, appeals as of right from the Shelby County
Criminal Court’s denial of post-conviction relief. The petitioner pled guilty to the first
degree murder of his wife and the attempted first degree murder of her grandmother.
For the first degree murder conviction, he was sentenced to life imprisonment. For the
attempt conviction, he was sentenced as a Range I, standard offender to twenty years
confinement in the Department of Correction, to be served consecutively to the first
degree murder sentence. In his appeal, the petitioner contends that (1) his pleas were
not voluntary or knowing, and (2) he received the ineffective assistance of counsel. We
affirm the trial court’s denial of post-conviction relief.
At the evidentiary hearing, the petitioner testified that he had mental
problems but that his trial attorney never requested a mental evaluation. He said that
when he was brought to jail, he attempted suicide and was given medication for
depression. He said that because of stress and depression, he did not know what he
was doing when he entered his guilty plea, and he did not understand the process. He
said that he told these things to his attorney but that she told him he was fine.
The petitioner testified that his attorney did not file a motion to suppress a
statement he made to the police. He said he was not given Miranda warnings before
making the statement. He said he provided his attorney with the names of two people
he thought would be helpful at trial, but his attorney did not contact them. He said he
told his attorney that a man named Junior would testify that his wife was having an
extramarital affair and that a woman named Ms. Kate would testify that he purchased a
gun for self-defense, not to kill his wife. He stated that he did not know Junior’s
address but that he did provide his attorney with the address for Ms. Kate.
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The petitioner testified that he pled guilty because his attorney told him
that he would receive the death penalty if he did not. He said his attorney told him to
plead guilty even though he told her that he did not want to plead guilty.
On cross-examination, the petitioner testified that he was under pressure
and distress at the guilty plea hearing. He testified that the trial court explained that he
could get the death penalty if he went to trial. He admitted that he had never been
diagnosed with a mental condition, but he said that he wanted a mental evaluation to
determine if he was temporarily insane at the time of the shootings. He testified that he
attempted suicide in jail by trying to hang himself and that he was taken to a doctor. He
testified that the statement that he wanted suppressed involved him voluntarily going to
the police station and telling the officers that he had shot his wife and her grandmother.
A transcript of the guilty plea hearing was admitted into evidence. At the
guilty plea hearing, the petitioner testified that he was thirty years old and had
graduated from high school. The petitioner testified that he understood that he was
waiving his right to a trial and that he was not forced or pressured into pleading guilty.
At the hearing, the prosecutor stated that she and the petitioner’s attorney had
negotiated about the state not seeking the death penalty, but that, in any event, she did
not believe she had enough factual support to seek the death penalty.
The petitioner’s trial attorney testified that she did not recall the petitioner
telling her of a suicide attempt. She said she asked the petitioner if he had any past or
present mental problems, and the petitioner said that he did not. She said the
petitioner told her that he was not on any medication. She said she filed a motion to
suppress the petitioner’s statement, but she told the petitioner it probably would not
succeed because the petitioner voluntarily made the statement to the police without
questioning, and it was not subject to Miranda. She said she located Ms. Kate and
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asked her about the petitioner having a gun for protection but could not verify the
information. She said she could not locate Junior, and the petitioner could provide no
other information. She said she also told the petitioner that she did not think that
Junior’s proposed testimony would help the petitioner because it might tend to support
premeditation. The attorney testified that the petitioner wanted to end the case as soon
as possible and did not want to go to trial. She stated that the state had offered life
without parole but that the petitioner wanted a better offer. She said she did not think
the state would offer life with parole but it did, and the petitioner accepted the offer.
She testified that she fully explained all of the sentencing possibilities if the case went
to trial, including the death penalty and life with or without parole, and the petitioner
wanted to accept the plea offer. She said the petitioner was articulate and intelligent,
and he knew what was happening.
On cross-examination, the attorney testified that she normally requests a
mental evaluation in death penalty cases. She said she did not request one in the
petitioner’s case because he did not appear to have any mental health problems, and
his background did not indicate previous problems. She said she told the petitioner that
if the case went to trial, she might request a mental evaluation. She said the petitioner
was adamant about wanting to dispose of the case before trial. She said the
prosecutor had indicated to her that the state might seek the death penalty if the case
went to trial because children were present when the petitioner fired the shots. She
said the prosecutor never filed notice of any aggravating factors because the petitioner
pled guilty. She said that on the day the petitioner entered his plea, he never indicated
that he did not want to plead guilty.
The trial court denied the post-conviction petition. It found that the
petitioner’s attorney was not ineffective for failing to seek a mental evaluation because
no basis for one existed. It further found that no basis existed for filing a motion to
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suppress the petitioner’s statement. The trial court determined that the attorney
adequately investigated the case and interviewed the witnesses she was able to find.
The trial court also found that the petitioner knowingly and voluntarily entered his guilty
pleas.
In a post-conviction case, the burden is on the petitioner to prove his
grounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal,
we are bound by the trial court’s findings unless we conclude that the evidence
preponderates against those findings. Black v. State, 794 S.W.2d 752, 755 (Tenn.
Crim. App. 1990). The petitioner has the burden of illustrating how the evidence
preponderates against the judgment entered. Id. This court may not reweigh or
reevaluate the evidence, nor substitute its inferences for those drawn by the trial court.
Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). 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. Id.
I. VOLUNTARY AND KNOWING GUILTY PLEA
First, the petitioner contends that his pleas were not voluntarily and
knowingly entered because he suffered from a mental condition at the time of the plea
hearing. The only evidence with regard to the petitioner’s mental state was his
testimony that he was stressed and depressed and had attempted suicide. However,
he testified that he had never been diagnosed with a mental condition, and the
petitioner’s attorney testified that the petitioner told her that he was not on medication.
His attorney testified that he was intelligent and articulate and that he knew what was
happening at the guilty plea hearing. The petitioner has presented no credible
evidence to support his argument, and the record does not preponderate against the
trial court’s finding that the petitioner’s pleas were knowing and voluntary.
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The same is true with regard to the petitioner’s contention that his attorney
pressured him into accepting a guilty plea by threatening him with the death penalty.
Although the petitioner testified that his attorney told him he would get the death penalty
at trial, his attorney testified that she explained the sentencing options to the petitioner
but that the petitioner wanted to plead guilty and avoid a trial. This presents a classic
credibility issue, and the trial court obviously accredited the testimony of the petitioner’s
attorney. The petitioner has failed to show that the evidence preponderates against the
trial court’s findings.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that his attorney was ineffective for failing to
investigate his case and for failing to file a motion to suppress his statement. The state
contends that the evidence does not preponderate against the trial court’s finding of
effective assistance. We agree.
When a claim of ineffective assistance of counsel is made under the Sixth
Amendment, the burden is upon the petitioner to show (1) that counsel’s performance
was deficient and (2) that the deficiency was prejudicial in terms of rendering a
reasonable probability that the result of the trial was unreliable or the proceedings
fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44
(1993). The Strickland standard has been applied to the right to counsel under Article I,
Section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n. 2
(Tenn. 1989). When a petitioner claims that ineffective assistance of counsel resulted
in a guilty plea, the petitioner must prove that counsel performed deficiently and that but
for counsel’s errors, the petitioner would not have pled guilty and would have insisted
upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
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In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court
held that attorneys should be held to the general standard of whether the services
rendered were within the range of competence demanded of attorneys in criminal
cases. Further, the court stated that the range of competence was to be measured by
the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.
1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,
in reviewing counsel’s conduct, a “fair assessment of attorney performance 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; see
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
We also note that the approach to the issue of the ineffective assistance
of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice
is not shown, we need not seek to determine the validity of the allegations about
deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
The petitioner contends that his attorney was ineffective for failing to
investigate his case. He argues that the attorney did not contact the two potential
witnesses he suggested. First, we note that the attorney did contact Ms. Kate, but the
attorney was unable to verify the information the petitioner had provided. Furthermore,
we do not believe that the attorney was ineffective for failing to locate the other witness
because the only information the petitioner could provide was the name Junior. In
addition, the petitioner’s attorney expressed doubt regarding the benefit of the witness’s
testimony, and it was her belief that the testimony would support premeditation. The
petitioner has not shown that the evidence preponderates against the trial court’s
finding of effectiveness.
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The same is true with regard to the petitioner’s argument that his attorney
was ineffective for failing to file a motion to suppress his statement. Initially, we note
that the attorney testified that she did file a motion to suppress the statement, although
the motion was not introduced at the evidentiary hearing or made a part of the record
on appeal. Regardless, the attorney testified that the motion was baseless because the
petitioner voluntarily went to the police station and made the statement without
questioning by the police; thus Miranda was not implicated. In its order denying relief,
the trial court stated that the motion was baseless. The evidence does not
preponderate against the trial court’s findings.
Finally, the petitioner contends that his attorney was ineffective for
advising him to accept the guilty plea offer. Again, the petitioner and the attorney
contradicted each other in their testimony, and the trial court obviously accredited the
attorney’s testimony that the petitioner wanted to enter a guilty plea and avoid a trial.
This issue is without merit.
In consideration of the foregoing and the record as a whole, we affirm the
trial court’s denial of post-conviction relief.
__________________________
Joseph M. Tipton, Judge
CONCUR:
____________________________
James Curwood W itt, Jr., Judge
____________________________
John Everett W illiams, Judge
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