Adam Betts v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 2, 2008
ADAM BETTS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 02-03911 James C. Beasley, Jr., Judge
No. W2008-00302-CCA-R3-PC - Filed June 17, 2009
The petitioner, Adam Betts, appeals the Shelby County Criminal Court’s denial of his petition for
post-conviction relief. The petitioner was convicted of first degree murder and is currently serving
a sentence of life imprisonment with the possibility of parole. On appeal, he argues that he was
denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that
trial counsel was ineffective in: (1) failing to investigate the case or hire an investigator, to file
certain pretrial motions, and to interview witnesses prior to trial; and (2) failing to litigate the motion
to suppress the petitioner’s statement. After review, the judgment of the post-conviction court is
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which J.C. MCLIN and CAMILLE
MCMULLEN , JJ., joined.
Charles S. Mitchell, Memphis, Tennessee, for the appellant, Adam Betts.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William S. Gibbons, District Attorney General; and Teresa McCusker, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
Factual Background
The relevant underlying facts of the case, as established on direct appeal, are as follows:
On May 16, 2001, the victim, Debra Walker, was at her mother’s house on
Hastings Circle in Memphis. At around 9:30 that evening, the victim, her mother,
Marlyn Walker, and her sister, Lakesha Walker, were in the living room, talking.
The telephone rang, and Lakesha answered it. There was a knock on the door, and
the victim opened the door. A man, later identified as the [petitioner], shot the victim
twice through the glass storm door, then ran off. The victim died from the gunshot
wound she sustained.
Lieutenant Tracy Grosset of the Memphis Police Department received a tip
through Crime Stoppers that the [petitioner] was the shooter and that he had admitted
shooting the victim. On May 17, 2001, Lt. Grossett located the [petitioner], who
agreed to talk to the officers at the police station. The [petitioner] waived his
Miranda rights and gave a statement to the police. In his statement, he admitted that
he knocked on the door at 668 Hastings Circle and shot the victim twice when she
opened the door.
....
Several witnesses, including the victim’s mother, Marlyn Walker, as well as
the [petitioner] and his mother, Sherry Betts, described an incident that had occurred
in August of 2000. A young girl named Angel, who was a friend of the victim’s
family, got into a fight with the [petitioner’s] cousin, named Erica Perkins. As a
result, several members of the [petitioner’s] family, including Erica, got into a truck
and went to Hastings Circle, where the victim’s family lived. The girls, who were
approximately ten or eleven years old, fought again, and Erica “won” the fight.
According to Ms. Walker, Erica and her group then left. However, the [petitioner]
and his mother testified that Angel then ran inside the house and retrieved a knife.
The [petitioner] testified that Angel lunged at Erica with the knife, but his mother
omitted this detail in her testimony. They both testified that a lady, who had been
standing nearby, pulled a pistol out of her purse and fired it into the air at least twice.
At that point, the [petitioner’s] family left and returned to their home.
According to Ms. Betts, later that evening, she saw a black van go by her
house. She recognized the driver as the lady who had fired the shots in the air earlier
that evening. She also saw Angel in the back seat. The [petitioner] testified that it
was only ten minutes after they arrived at their apartment when he saw what he
described as a “black Blazer” go by their residence. He also saw the little girl named
Angel in the vehicle. The [petitioner] approached the vehicle and shots were fired
out the passenger window. The [petitioner] estimated that between nine and twelve
shots were fired. One of the bullets grazed the [petitioner’s] face, and one of the
bullets struck his mother in the chest.
State v. Adam Betts, No. W2003-01910-CCA-R3-CD (Tenn. Crim. App., at Jackson, July 20, 2004).
Both the petitioner and his mother also gave testimony at trial regarding a continual pattern of
harassment that occurred during the ten months after this incident. According to their testimony,
different vehicles would drive by their home and the passengers would point and laugh. According
to the petitioner, the driver of the vehicles was always the man that he had seen shoot his mother.
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They both testified that they felt threatened by this harassment and that the police were called on
multiple occasions. Id.
On the day prior to the petitioner’s shooting of the victim, he and his mother were sitting
outside when a van pulled up at their apartment. According to the victim, the man who had shot his
mother and Angel was inside. The man got out of the van but left when the petitioner told his
mother that this was the man who had shot her. Police were called but, according to the petitioner,
did not respond. Id. The next morning, Ms. Betts testified that a man, whom she did not recognize,
drove into her driveway, pulled a gun on her, and threatened her. She went inside the home and told
the petitioner what had happened. Id.
Later that afternoon, the petitioner met several friends, including Cory Roberson, at a local
pool hall. According to the petitioner, the group drank alcohol, smoked marijuana, and played
dominos. When the petitioner informed Roberson that he “needed to do something about [the
situation with his mother] tonight,” Roberson agreed to let the petitioner borrow his gun. Later,
Roberson drove the petitioner to Hastings Circle where, after donning a ski mask and a black hood,
the petitioner approached the house and shot the victim. According to the petitioner, he “really
wasn’t planning to kill her. I was just trying to send a message to these people, you know, leave me
and my family alone.” Id.
Based upon these actions, the petitioner was indicted by a Shelby County grand jury for first
degree murder and, following a jury trial, was found guilty as charged. He was subsequently
sentenced to serve a term of life imprisonment with the possibility of parole. A panel of this court
affirmed his conviction and sentence on direct appeal. Id. The petitioner then filed a pro se petition
for post-conviction relief alleging, among other issues, that he was denied his Sixth Amendment
right to the effective assistance of counsel. Following the appointment of counsel, an amended
petition was filed, and a hearing was held at which the petitioner, his mother, and trial counsel
testified.
The petitioner testified at the hearing that trial counsel was hired to represent him beginning
at the general sessions level. According to the petitioner, trial counsel came to the jail only one time
prior to trial in order to interview him. He further testified that trial counsel failed to: provide him
with discovery; ask about possible witnesses; interview his family members; hire an investigator;
explain the elements of the charged offense; and argue the motion to suppress the petitioner’s
statement, which was the only motion filed pretrial by counsel.
The petitioner stated that he had been drinking alcohol and smoking marijuana on the day
he gave his statement to police. However, he acknowledged that he did not inform the police or trial
counsel of this, stating that they did not ask. The petitioner also testified that he had dropped out of
school in the seventh grade at age sixteen and had repeated the third grade three times. He stated that
trial counsel did not request any sort of mental evaluation prior to trial. He also testified that trial
counsel failed to prepare him to testify and failed to inform him that he had the right not to do so.
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The petitioner stated that he believed his testimony prejudiced him at trial and that he only testified
based upon trial counsel’s advice.
In response to questioning by the post-conviction court, the petitioner again testified as to the
facts of the case, specifically acknowledging that he had shot the victim. Despite his assertion that
he only testified because trial counsel told him he had no defense otherwise, the petitioner
acknowledged that he wanted the jury to know that he was sorry and that there was a justifiable
reason for shooting the victim. He then proceeded to testify that his statement had been coerced by
the police, testifying that the detectives informed him that he would get a plea if he talked. The
petitioner testified that he later swallowed carpet cleaner in an attempt to kill himself after the
detectives left the room. According to the petitioner, upon the detectives’ return, they informed him
that they would not call paramedics unless he gave a statement. The petitioner testified that he
informed trial counsel of these events.
The next witness to testify was the petitioner’s mother who stated that trial counsel did
nothing to prepare her prior to her trial testimony. She acknowledged testifying at trial regarding the
situation between the families and the harassment they endured. Finally, she testified that she was
unaware of the petitioner ever receiving treatment in a mental health program or seeking medical
assistance for a mental illness.
Finally, trial counsel testified and contradicted the petitioner’s testimony in several regards.
Trial counsel testified that from the beginning of his representation, he believed that the best defense
to pursue was one of state of mind in hopes of securing a conviction for a lesser included offense.
He felt it was imperative to get the evidence before the jury regarding the prior actions of the
victim’s family and the ongoing “feud.” He stated that he felt the best way to ensure this was for the
petitioner to testify and that, after speaking with the petitioner, he felt he would be a good witness.
Trial counsel acknowledged that he had filed a motion to suppress, which was not argued. He stated
this was a tactical decision because he felt that allowing the statement to be introduced to the jury
supported the petitioner’s testimony and version of events. Moreover, he denied that the petitioner
had ever informed him of the suicide attempt or coercion by police in procuring the statement.
Trial counsel testified that he went to the jail and met with the petitioner three or four times
prior to trial. He acknowledged that he did not interview all the witnesses listed in the indictment
but stated that he was basically aware of what they would say from the discovery materials and the
petitioner’s statements. He specifically testified that he did not interview Cory Roberson based upon
what he read in the petitioner’s statements. Mr. Roberson did not testify at trial. However, trial
counsel stated that Mr. Roberson, whom he believed would be a damaging witness to the case,
probably would have testified at trial if the petitioner’s statement had been suppressed, as the
statement was the only evidence placing the defendant at the scene absent Mr. Roberson’s testimony.
Counsel stated that it was his normal policy to interview witnesses who may be testifying.
According to trial counsel, he saw no need for a mental evaluation and was not advised of any
potential problems. Finally, trial counsel acknowledged that he did not file any pretrial motions but
stated that he was given discovery by the State, as was their policy.
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After hearing the evidence presented, the post-conviction court found that the petitioner
failed to establish his claim of ineffective assistance of counsel. The court entered an order denying
relief. The petitioner has now filed timely notice of appeal with regard to that denial.
Analysis
On appeal, the petitioner asserts that the post-conviction court erred in denying his petition
for post-conviction relief. Specifically, he contends that the court erred in finding that trial counsel
was not ineffective based upon: (1) his failure to investigate and hire an investigator, to file pretrial
motions, and to interview witnesses; and (2) his failure to litigate the motion to suppress the
petitioner’s statement.
To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2006). The petitioner must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the petitioner must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight; may not second-guess a
reasonably based trial strategy; and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).
It is unnecessary for a court to address deficiency and prejudice in any particular order or
even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. at 2068).
The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law are reviewed under a de novo standard
with no presumption that the post-conviction court’s findings are correct. Id.
I. Failure to Investigate, File Pretrial Motions, and Interview Witnesses
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First, the petitioner contends that trial counsel breached his duty to the petitioner by failing
to investigate and hire an investigator, file basic pretrial motions, and interview witnesses.
Specifically, the petitioner contends that trial counsel was ineffective for failing to file a Rule 16
discovery motion, a motion for exculpatory evidence, or a Rule 12(b) motion. According to the
petitioner, because the discovery rule is only triggered by the petitioner’s request, trial counsel’s
decision to simply rely upon the State to give him access to the file and to provide any exculpatory
evidence constituted deficient performance. Moreover, he asserts that a Rule 12(b), a motion for
intention to use evidence, would have forced the State to disclose what specific evidence it intended
to use against the petitioner at trial, which would have assisted in the development of a defense
strategy. The petitioner also points to trial counsel’s specific admissions that he failed to interview
witnesses listed on indictment, as well as certain witnesses mentioned in the petitioner’s confession,
namely Cory Roberson. Finally, he challenges trial counsel’s decision to not hire an investigator,
asserting that an investigator could have interviewed friends and associates regarding the petitioner’s
drug and alcohol use prior to his giving a statement to the police, could have researched records
regarding the petitioner’s alleged suicide attempt prior to the confession, and could have reviewed
school and medical records for evidence of a mental defect.
In denying relief upon these assertions, the post-conviction court found, in relevant part, as
follows:
[Trial counsel] testified he knew what the issues were. He knew about the statement
given by [the petitioner]. He knew about the history between these two families, the
feuding that went on between the two families, and he had talked with the mother,
and apparently had talked with the nieces, or whoever, whatever their testimony was,
but you know, was there a need to go talk to the other parties involved, Cory
Roberson, maybe I don’t know.
But it would appear to me that Cory Roberson could very easily have been
charged as an accessory under the facts as I understood them from [the petitioner’s]
statement, and I could see how he could be a potentially bad witness for the defense
if he were put on the witness stand. So whether or not failure to try to talk to him
amounts to ineffective assistance of counsel, I would have to look and see that.
Apparently, [trial counsel] knew what he need to know to put his case on, and
I don’t know a whole lot of defense lawyers that frankly talk to police officers before
trial. I know this issue comes up all the time in post-convictions and it’s always
asked, but I frankly don’t know a whole lot of police officers that would talk to a
defense lawyer if they ask, but I guess you could make the inquiry. . . .
You know, I - - [trial counsel] says he talked to [the petitioner] on several
occasions. [The petitioner] says he only talked to him once. I find that somewhat
hard to believe. [Trial counsel] had full access to everything he needed to know and
indicated that he talked to him on several occasions.
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....
And then with regard to a mental evaluation, no mental evaluation, . . . there’s
something about the integrity of what we do in this profession that filing frivolous
motions just to file a frivolous motion to me is not good - - is not a good lawyer.
Now, it may be the right thing to do under the ABA standards and it may be
the thing that we’re required to do now for nothing else to protect ourselves as
attorneys, but to file a motion to have a man evaluated at a mental health institute by
a psychologist when there’s absolutely no basis for it, when there’s not history,
there’s no indication; there’s no signs.
....
And so to say that a lawyer is ineffective because he doesn’t file a frivolous
motion, I just - - I have a hard time accepting that. You know, I don’t - - the fact that
[the petitioner] has a very minimal education I’ll be honest with you. I felt [the
petitioner] and his testimony up here, you know, as articulate and able to
communicate his thoughts.
And, frankly, you know when I - - I went over the facts with him what, you
know, generally. I know not in great detail but generally. I thought he explained
himself, explained why, explained his actions, and why he did what he did
understanding that it was wrong, and it was a bad decision, but you know, he gave
a valid explanation for it.
....
[L]egally I do not see - - I’m not convinced that [trial counsel] was lacking in his
efforts. I’m not convinced that any further discussion with any other potential
witnesses would have changed, A, his theory of the case, that being that this was not
a premeditated act but that it was something less.
....
I can’t see that there’s anything else that I can anticipate, based on the proof
I’ve heard, that [trial counsel] could have done differently, and a few things that
maybe could have been done a little bit differently I do not feel, based upon the facts
of the case, would have changed the verdict.
....
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So I’m charged with determining whether or not [trial counsel’s] actions were
effective or not effective did those actions impact or affect the outcome of the jury
and the verdict, and in my opinion, they did not. I find that [trial counsel’s] actions
were proper and effective as an attorney and that he had a theory of the case, in my
opinion, a viable theory of the case that he successfully got his theory of the case in
front of the jury that he made a determination that his client was a good witness, and
he got all that in front of the jury, and it’s just was not successful, but not for lack of
effort.
We find nothing in the record which preponderates against the post-conviction court’s
findings. With regard to the alleged failure to file motions for discovery or exculpatory evidence,
the petitioner has failed to put forth any evidence that he suffered prejudice as a result. He has
presented no proof that trial counsel was not given all materials in discovery by the State or that he
did not receive any exculpatory information. While it might have been the better practice to file such
a motion, trial counsel testified that open-file discovery was the policy, and the post-conviction court
found that trial counsel had access to all he needed to prepare for the case. Absent proof that trial
counsel was not given full discovery, the petitioner has failed to establish his entitlement to relief.
Likewise, with regard to the allegation that trial counsel failed to interview the witnesses
listed on the indictment, as found by the post-conviction court, the petitioner has failed to establish
prejudice as he has in no way shown that the interview would have changed the trial strategy which
was pursued. Trial counsel testified that he was basically aware of what the witnesses would testify
to. With regard to trial counsel’s failure to interview Cory Roberson, the petitioner has failed to
carry his burden by his failure to present Mr. Roberson at the post-conviction hearing, so, as noted
by the post-conviction court, we are unable to assume what his testimony might have been. It is the
petitioner’s burden to present such witnesses. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990).
Finally, we agree with the post-conviction court that the petitioner has failed to establish that
trial counsel was ineffective in failing to investigate or hire an investigator. The claims he asserts
could have been investigated were the petitioner’s alleged mental deficiencies, his consumption of
alcohol and drugs on the day of his interview, and the alleged coercion of his statement and suicide
attempt. These claims were either rejected, based upon the post-conviction court’s credibility
determination of the petitioner’s testimony, or not made known to trial counsel. Trial counsel
testified that he was not advised of nor did he see any signs of mental problems. Moreover, he
testified that he was not aware of any coercion or suicide attempt in relation to the petitioner’s
statements. Additionally, the petitioner acknowledged that he did not inform trial counsel or the
police that he had ingested drugs or alcohol on the day of his arrest. Trial counsel cannot be faulted
for failure to investigate what the petitioner never made him aware of. The petitioner bears some
responsibility in communicating the facts of the case to trial counsel. Thus, after review, we
conclude that nothing preponderates against the post-conviction court’s findings.
II. Motion to Suppress
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Next, the defendant contends that trial counsel was ineffective for failing to pursue and argue
the motion to suppress the defendant’s statement. He asserts that
[a]ssuming arguendo that trial counsel could have shown in a suppression hearing
the following: (1) that [the petitioner] had a sixth grade education; (2) that [the
petitioner] had been smoking marijuana prior to his confession; (3) that [the
petitioner] had been drinking alcohol prior to his confession; (4) that [the petitioner]
drank carpet cleaner prior to his confession; and that (5) homicide detectives said that
[the petitioner] had to provide a statement before aid would be rendered, [appellate]
counsel strongly believes that [the petitioner’s] confession would have been
suppressed by the trial court. Continuing this line of reasoning, it is likely that
without [the petitioner’s] statement, the State of Tennessee would not have sufficient
evidence to sustain a conviction against [the petitioner].
In denying relief on this contention, the post-conviction court found:
As far as the statement’s concerned, frankly, I don’t see a whole lot in here
that’s - - you know, I haven’t heard a basis to find that there would be - - this
statement would have been suppressed if these issues had [ ]gone forward. To be
honest with you, I don’t know that there is a valid basis for it now.
This new thing that [the petitioner] has thrown in here about drinking some
kind of poison and not being taken to the hospital until he finished giving his
confession, you know, that’s nowhere to be found in anything I see, and I just - - I - -
I find it really almost beyond my comprehension that if [trial counsel] were told that
his client drank some poison and while he’s in the police department interview room
and the police called the paramedics from the MED and refused to let them come and
treat the man and taken him to the MED until he finished giving a confession, that’s
really hard for me to imagine that that wouldn’t show up somewhere in some kind
of document, somewhere, A, in the file, B, in [trial counsel’s] motion to suppress.
Knowing [trial counsel] the way I know him that would have been in there,
and I even looked through the trial [transcript], and there’s nothing - - no mention in
the trial. In the statement from the officer who took the statement, there’s nothing
about that, nothing from [the petitioner]. There’s nothing anywhere about that, and
so I don’t know if there’s anything in the state’s file about that, but there’s nothing
anywhere other than what I’ve heard today.
And so I don’t have any basis for believing that that frankly is true. I just - -
there’s nothing in front of me that gives me cause to believe that that’s true.
....
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I did not see anything in the trial transcript that connected [the petitioner] to
this, at least my perusal, other than his statement. The witnesses who were there
when Ms. Walker were shot were not able to make an identification. They were not
able to give any - - didn’t look to me like any descriptions. . . . So I would think that
this statement obviously was very damning in and of itself.
But, again, I don’t know that there’s a legal basis for having it suppressed.
At least, I haven’t heard anything as to how or why it would have been suppressed,
and so the fact that nothing was done on it other than [trial counsel] made a decision
that even if he had the ability to get it suppressed, he chose not to do so because he
felt it was the best opportunity to put again his theory of the case by showing overall
because [the petitioner] apparently has laid out the history of this relationship in that
statement and felt that it would go better for the jury to hear that than not to hear it,
to hear the defense’s version of why this happened than not to hear it.
....
But I don’t see anything that I’ve heard that would give me reason to believe
that the statement should have been suppressed or would have been suppressed. So
I’m not willing to say that his failure to go forward with that motion to suppress
impacted or affected the outcome of the case.
The petitioner argues that trial counsel performed deficiently by failing to pursue an
evidentiary hearing on a motion to suppress his statement. In order to be entitled to relief on this
assertion, the petitioner must show by clear and convincing evidence that (1) a motion to suppress
would have been granted and (2) there was a reasonable probability that the proceedings would have
concluded differently if counsel had performed as suggested. Vaughn v. State, 202 S.W.3d 106, 120
(Tenn. 2006) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064-65). The petitioner has failed
to establish either of these factors. Indeed, the post-conviction court’s findings are clear that a
motion to suppress would not have prevailed, and we find nothing in the record to preponderate
against that finding. Trial counsel cannot be considered ineffective for failing to make or pursue a
motion that would have been meritless.
In his argument, the petitioner asks us to assume “arguendo” that he believes the motion to
suppress would have been granted if certain facts had been established. However, it is not the
province of this court to assume “facts.” The only evidence of the facts presented by the petitioner
upon which he wishes this court to base this determination was the testimony of the petitioner.
Notably, the post-conviction court specifically found that the petitioner’s testimony, with regard to
his alleged suicide attempt and the detectives’ subsequent behavior, was not credible. Issues of
witnesses’ credibility and the weight to be given their testimony are to be resolved by the trier of fact.
See Henley, 960 S.W.2d at 579. It is not the province of this court to reweigh such determinations.
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Moreover, as an additional ground for denial of relief, the petitioner has failed to show that
the evidence adduced at the post-conviction hearing preponderates against the court’s finding that
trial counsel’s failure to pursue the motion to suppress was part of a reasonable, informed trial
strategy based on adequate preparation. See T.C.A. § 40-30-103; Williams v. State, 599 S.W.2d 276,
279-80 (Tenn. Crim. App. 1980). Trial counsel specifically testified that it was a matter of trial
strategy to allow the statement into evidence as it bolstered the theory of defense in the case by
allowing the petitioner to get before the jury his state of mind at the time of the crime based upon
the previous shooting of himself and his mother, as well as the repeated harassment by members of
the victim’s family. Having previously concluded that trial counsel adequately investigated and
prepared prior to trial, we may not call into question matters of trial strategy in hindsight. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the petitioner is not entitled to relief.
CONCLUSION
Based upon the foregoing, the denial of post-conviction relief is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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