Ervin Lee Hayes v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 18, 2002
ERVIN LEE HAYES v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 97-B-835 Cheryl Blackburn, Judge
No. M2001-02913-CCA-R3-PC - Filed December 30, 2002
The Petitioner was indicted for two counts of attempted first degree murder. Following a jury trial,
the Petitioner was convicted of both counts of attempted first degree murder. The trial court
sentenced the Petitioner as a Range II, multiple offender to thirty-five years for each count and
ordered that the sentences be served consecutively. The Defendant appealed, and this Court affirmed
the judgment of the trial court. The Tennessee Supreme Court denied permission to appeal. The
Petitioner then filed a pro se motion for post-conviction relief. The trial court found that the
Petitioner failed to state any grounds for which relief could be granted and ordered that the Petitioner
respond within fifteen days. Receiving no response, the trial court dismissed the petition.
Eventually, with permission from the trial court based on extenuating circumstances, the Petitioner
filed an amended pro se petition, alleging ineffective assistance of counsel. Following an evidentiary
hearing, the trial court denied the petition. The Petitioner now appeals the denial of his petition for
post-conviction relief. Finding no error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
JAMES CURWOOD WITT, JR., JJ, joined.
Mike J. Urquhart, Nashville, Tennessee, for the appellant, Ervin Lee Hayes.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. FACTUAL BACKGROUND
The facts of the underlying case, as described by this Court on direct appeal, are as follows:
At trial, Tawanda Parker testified that she lived with her boyfriend, Andreal
McLemore, in a duplex in Nashville. She testified that after midnight on December
12, 1996, the defendant and his girlfriend knocked on her door. She testified that she
knew the defendant and that he had previously been to her apartment. She testified
that the defendant entered and asked if he could borrow her car, to which she replied
that the car was not working because the tailpipe had fallen off. She said the
defendant responded, “Do you mean to tell me that damn car ain’t working?” She
said she told the defendant that it was not, then the defendant pulled out a handgun
from his pocket and shot Mr. McLemore. She said the defendant then shot her in the
left jaw, walked toward her and shot her again in the neck. She testified that before
the defendant shot her and Mr. McLemore, she and the defendant had not been
arguing but had been talking in a normal tone. She said the defendant did not say
anything immediately before or after he shot them.
Ms. Parker testified that she and Mr. McLemore lay still until they heard the
defendant leave. She said she crawled to the telephone to dial 9-1-1 but could not dial
the numbers. She said she thought she was dialing 9-1-1, but an operator kept coming
on the line telling her to hang up and try again. She said she prayed and went to sleep.
She said she awoke several times and tried to dial 9-1-1 but was unsuccessful. She
said the next time she awoke, it was daylight. She stated that the telephone then rang,
and she was able to answer it. She said it was a friend, and she told him to call the
police because she had been shot. Ms. Parker testified that the police arrived shortly
thereafter and that she told them that the defendant had shot them. She testified that
a detective later showed her two photograph lineups. She testified that she did not see
the defendant in the first lineup but that she identified him in the second one. She
stated that she has been confined to a wheelchair since the shooting.
On cross-examination, Ms. Parker testified that she had known the defendant for
about three months before the shooting. She stated that he lived with his mother
down the street from her. She said that he had been at her house a couple of times on
the day of the shooting to use her telephone. She testified that the defendant had
previously bought a car and furniture from her. She said she had borrowed money
from the defendant in the past but had always paid it back. She denied mentioning
a robbery to one of the responding officers. She said that when the defendant was at
her apartment, no one was angry, upset or yelling. She said she did not know why the
defendant shot her.
Andreal McLemore testified that he had known the defendant about three months
before the shooting and that the defendant had previously been in his and Ms.
Parker’s apartment. He said he was friendly with the defendant and never had any
problems with him. He said that he was lying in bed when the defendant came to
their apartment at about 12:30 a.m. on December 12. He said the defendant wanted
to borrow Ms. Parker’s car but could not do so because the tailpipe had fallen off. He
-2-
said he heard the defendant and Ms. Parker talking but could not hear what they were
saying. He testified that he was sitting upright on the bed when the defendant shot
him from about eight feet away. He said he had no conversation with the defendant
before he was shot. He said the bullet struck his upper left neck, and he fell to the
floor. He said that after he was shot, he heard two more shots, and Ms. Parker fell on
top of him. He said that after the defendant left, Ms. Parker crawled to get the
telephone but could not use it. He said they were not discovered until 1:30 p.m. the
following day, and he said he was awake the entire time and was unable to move his
lower body. He testified that he has been confined to a wheelchair since the shooting
and that he has to live in a nursing home facility.
On cross-examination, Mr. McLemore admitted that he had served a three-year
sentence for possession of cocaine in 1993. He said that neither he nor Ms. Parker
had any dispute with the defendant.
Sergeant Gary Young testified that he was dispatched to the scene and discovered
that the victims had been shot inside their apartment. He said he asked Ms. Parker
who shot her, and she responded, “Ervin did it.” On cross-examination, he testified
that he did not know if the case was originally handled by a robbery unit, but he had
called for a homicide unit.
Detective Frank Pierce testified that he works for the Homicide Unit and that when
he arrived at the scene at about 1:30 p.m., the victims had already been transported
to the hospital. He said he learned from another detective that the victims said that
a man named Ervin had shot them. He said that Detective Dean Haney prepared a
photograph lineup that did not contain the defendant’s photograph. He said he
showed the lineup to the victims, and they could not identify the defendant in the
lineup. He said he prepared a second lineup containing the defendant’s picture, and
the victims were able to identify the defendant immediately.
On cross-examination, Detective Pierce testified that he did not preserve the first
lineup. He said the photographs in the first lineup were selected by a computer based
upon the information from the victims. He said he did not believe any written
description of the defendant by the victims existed. On redirect examination, he
testified that although he showed the first lineup to the victims, it was prepared by
Detective Haney. He said that as far as he knew, the only information provided by the
victims was the defendant’s name.
Officer William Merrill of the Identification Division of the Metropolitan Police
Department testified that he was in the area of the victims’ apartment on December
12 and saw ambulances and police cars. He said that when he went inside the
apartment, Ms. Parker was being treated and was unresponsive. He testified that Mr.
McLemore was able to speak. He said he asked Mr. McLemore who shot him, and
-3-
Mr. McLemore responded, “Ervin.” Officer Merrill testified that he found blood in
several areas, including on the bed, but that he did not find any shell casings, bullet
holes or weapons at the scene.
Detective Dean Haney of the Armed Robbery Unit testified that he was dispatched
to the scene on the report of a potential armed robbery. He said he arrived at about
2:00 p.m. He said that the Armed Robbery Unit was dispatched because Ms. Parker
had mentioned robbery to an officer on the scene. He said he looked through the
apartment, but it did not look as if anything had been taken. He said a billfold and
pocketbook were still in the apartment. He testified that he saw Mr. McLemore at the
hospital the next day and that he asked Mr. McLemore if he had been robbed. He said
that Mr. McLemore was unable to speak but that he shook his head to indicate “no.”
He said Mr. McLemore shook is head to indicate “yes” when he asked if Ervin had
shot him. Detective Haney testified that the case was then turned over to the
Homicide Unit. He testified that he assisted Detective Pierce by generating a
computer lineup based upon the name “Ervin.” He said he did not know whether the
defendant was in the lineup, and he gave his paperwork to Detective Pierce. The jury
convicted the defendant upon the foregoing evidence.
State v. Ervin Lee Hayes, No. 01C01-9809-CR-00374, 1999 Tenn. Crim. App. LEXIS 692, at ** 3-8
(Tenn. Crim. App., Nashville, July 9, 1999).
The following evidence was presented at the hearing on the petition for post-conviction
relief.1 The Petitioner testified that he completed the seventh grade. He stated that he was initially
represented for approximately six or seven months by attorney Lionell Barrett, but that Mr. Barrett
was allowed to withdraw and new counsel from the Public Defender’s Office was appointed in
February 1998. The Petitioner claimed that he did not discuss his case with his prior attorney.
According to the Petitioner, his trial was scheduled for July 1998. He testified that between February
1998 and July 1998, he had approximately five or six conversations with his newly-appointed
counsel. The Petitioner estimated that each conversation lasted about ten or fifteen minutes.
The Petitioner testified that he advised counsel that Sheila Bailey, his former girlfriend, and
Mattie Darnell, his mother, could provide him with an alibi for the night of the offense. He testified
that Wanda Poole, who was allegedly with the Petitioner at the time he shot the victims, was at his
mother’s home at the time of the offense, and she thus could not have been a witness to the crime.
The Petitioner testified that the indictment indicated that the offense occurred at 12:30 a.m.
According to the Petitioner, he was with Bailey at the time when the offense allegedly occurred. He
stated that he informed counsel that he was with Bailey from 5:00 p.m. on the December 11, 1996
until 9:00 or 10:00 a.m. the next day. The Petitioner acknowledged that Wanda Poole was also his
girlfriend at the time.
1
W e note that pages 22, 35, and 42 of the transcript from the hearing on the petition for post-conviction relief
are pages from unrelated hearings and were apparently inadvertently substituted for pages from this hearing. In our view,
the omissions from the transcript are not substantial and have not affected our opinion.
-4-
The Petitioner maintained that counsel never discussed the elements of a defense of alibi with
him and that counsel never put on a defense of alibi at his trial. The Petitioner acknowledged that
he did not tell the trial court that he had an alibi because he expected that counsel, to whom he had
given the names of witnesses, would present that defense for him. He stated that he also informed
counsel that Wanda Poole was using drugs and that there was a possible connection between her and
the victims. However, the Petitioner testified that he did not believe that counsel interviewed Poole.
He also maintained that counsel did not interview his mother or Bailey.
The Petitioner acknowledged that he walked out during one of his discussions with counsel.
According to the Petitioner, he asked counsel what type of defense counsel was going to try to
establish, and counsel responded that “[the Petitioner] didn’t have a defense.” The Petitioner
testified that he told counsel that there was “no use” having counsel as his attorney and walked back
to his cell at the Criminal Justice Center. The Petitioner testified that a security guard, who was in
the room during the conversation, could hear everything he said to counsel, so he did not feel
comfortable talking freely with counsel. The Petitioner testified that he conveyed his concerns about
the security guard to counsel, but he was not sure if counsel took any steps to remedy the problem.
He stated that all of the meetings with counsel took place in the same location with guards present.
On cross-examination, the Petitioner stated that Wanda Poole did not testify at his trial.
When asked if Poole could be located at that time, he responded that he “guess[ed] not.” He stated
that Poole was listed in the indictment as a witness against him. The Petitioner claimed that instead
of being with Poole at the victims’ home on the night of the offense, he was at Sheila Bailey’s home.
He could not recall Bailey’s address but stated that it was “off on past Briley Parkway” and that it
was “like on Avey Street.” The Petitioner testified that he arrived at Bailey’s house around 5:00 p.m.
on December 11, 1996 and left around 8:00 a.m. the next day. He maintained that he stayed at
Bailey’s house the entire night. The Petitioner stated that Bailey’s children were also at her home
that evening.
The Petitioner testified that when he left Bailey’s house, Bailey drove the Petitioner’s car and
dropped him off at his mother’s house. When asked what information he could not convey to
counsel with the deputies in the room, the Petitioner responded,
“Well, just to explain . . . the different procedures about my case . . . .” He stated,
“First, I would explain to him, try to establish to him . . . in my behavior, how . . .
them people could have been shot, . . . for one, . . . they was trying to make like
everybody, . . . they was just two senior citizens, good Samaritans, but them two drug
addicts, . . . around in the neighborhood, . . . getting crack from everybody, different
peoples, . . . I tried, . . . I could have explained that to him, but I wasn’t able to.”
The Petitioner also testified that he would have told counsel that he knew the victims and that he had
been in their house on a previous occasion.
When asked if counsel explained to him the State’s proof in his case, the Petitioner replied,
“Not really. I couldn’t say, you know.” He stated that it “was obvious” that the two victims could
identify him in court as the perpetrator. The Petitioner testified that he told counsel where he was
-5-
at the time of the offense and that he had an alibi. He stated that he “left it up to [counsel] to take
it from there and present it to the Courts.” The Petitioner recalled that at the end of the trial, counsel
announced that the defense was not going to present any proof.
On re-direct examination, the Petitioner testified that it was counsel’s duty to present his case
and that he relied on counsel to present his case. He stated that he did not feel that he could speak
directly to the trial judge. The Petitioner explained that he is “not very sophisticated” in his speech
or education level.
Counsel testified that he is an Assistant Public Defender for the Metropolitan Government
of Davidson County. He stated that during an average week, he has no more than one jury trial, if
any. However, he testified that during the time that he represented the Petitioner, he was a “Criminal
Court floater,” so his case load would have been “significantly smaller” than usual. He stated that
he has been a practicing attorney since 1976.
Counsel recalled that on February 20, 1998, he was appointed to represent the Petitioner after
the Petitioner’s prior counsel moved to withdraw from the case. He testified that when he was
appointed, the Petitioner’s case was set for trial on April 20, 1998. Counsel stated that pursuant to
his motion, the case was continued until June 22, 1998. He testified that he met with the Petitioner
on eight occasions. He stated that at least five of those meetings lasted forty minutes. Counsel
reported that he also had several additional brief encounters with the Petitioner in addition to the
eight meetings.
Counsel described a meeting with the Petitioner that took place on June 17, 1998. He
explained that the maximum security units at the Criminal Justice Center were under a great deal of
renovation so that the “whole area was kind of torn up and basically it was a very noisy area in which
there was absolutely no privacy.” He testified that deputies were always close by and could overhear
his conversations, which he believed impeded communication with the Petitioner. Following the
June 17 meeting, counsel sent an email to Judge Blackburn and Assistant District Attorneys General
Sharon Brox and Dan Hamm. He reported that he stated the following in the email:
Please be advised I just met with [the Petitioner] to discuss final trial preparations
and all was not well. He became upset about the matter and was concerned that I had
not done enough to help him or to prepare his defense. He returned to his cell
suggesting I was working with the prosecution to convict him. The physical situation
didn’t permit me to properly confront him and to process the issue (Mr. Hayes is in
4 max where the attorney visiting area has been under construction for months. The
inmates may see their counsel only in the presence of deputies). I share this
information only because it could impact the trial set for Monday.
Counsel could not recall specifically what caused the Petitioner to become angry during the
June 17, 1998 meeting. He testified that his next meeting with the Petitioner occurred on June 19,
1998, and lasted two hours. Counsel testified that he spoke to the Petitioner about the defense of
-6-
alibi. He stated that he also spoke to the Petitioner about the possibility that three individuals might
identify him as the person who shot the victims.
Counsel testified that the Petitioner claimed that one of the potential witnesses against him
was with the Petitioner’s mother at the time of the offense. He stated that in essence, the Petitioner
was providing an alibi for one of the prosecution witnesses, Wanda Poole. According to counsel,
Poole would have testified to the following regarding the night of the offense: that she was with the
Petitioner; that she accompanied the Petitioner to the store; that on the way back from the store, the
Petitioner wanted to stop at someone’s house; that she knocked on the door of the home, that
Tawanda Parker opened the door, and the Petitioner entered the residence behind Parker; that there
was a discussion about borrowing an automobile, and the Petitioner pulled out a handgun, shot Mr.
McLemore, and then shot Parker; and that as they were leaving, the Petitioner grabbed Poole by her
blouse and told her that if she told anyone, he would kill her. According to counsel, this was Poole’s
initial account of the events, but she later “back-pedaled and got somewhat ambivalent.”
Counsel testified that he had several reasons to question Poole’s credibility: He stated that
she waited several days before sharing the information with anyone, that her account “rather
conveniently exonerated her from any kind of criminal responsibility,” that she was “lacking some
details” in her account, and that she had a personal relationship with the Petitioner. Counsel testified
that the Petitioner claimed that Poole had been to the victims’ home to purchase drugs. However,
counsel acknowledged that the trial court would not allow him to introduce certain evidence
regarding drug activity at the victims’ home. Counsel testified that he had a brief phone conversation
with Sheila Bailey in which she stated that she thought the Petitioner was with her on the night of
the offense but claimed she was not positive. He testified that he also talked to the Petitioner’s
mother.
Counsel testified that he was provided with the State’s discovery material in this case and
was familiar with the State’s case against the Petitioner. He stated that this was not an “overly
complicated” case. Counsel testified that he spent a sufficient amount of time with the Petitioner
to prepare the case for trial. He also reported that “[n]inety-percent of [his] trials are without a
defense.”
He acknowledged that the Petitioner wanted his mother and his girlfriend to testify. Counsel
testified that he did not “think a girlfriend saying that she might have been with the Petitioner” would
have been very persuasive to a jury. However, counsel explained that he “was not pleased with the
quality of what their anticipated testimony would be.” He also testified that if the Petitioner’s
mother had testified, she could have provided the State with a motive for the shootings. According
to counsel, the Petitioner’s mother would have stated that Parker had “repeatedly and annoyingly
called” the Petitioner seeking to buy drugs, and she would have testified that she told Parker to call
the Petitioner on his beeper.
On re-direct examination, counsel testified that he would have discussed with the Petitioner
what the State’s evidence would include. However, he stated that he probably did not tell the
-7-
Petitioner that he did not have a defense. Counsel acknowledged that his conversation with Bailey
was brief. According to counsel, Bailey was only able to say that she thought she and the Petitioner
were together on the night of the offense, but she could not remember the date.
Sheila L. Bailey testified that she and the Petitioner had “been together on and off for the last
seven years.” She recalled that on December 11, 1996, the Petitioner helped her move into her
apartment and spent the night with her there. Bailey stated that she picked up the Petitioner at his
mother’s home and that the Petitioner was at her residence on Ivey Street with her until 10:30 a.m.
the next day when she took him home. She testified that she drove the Petitioner home in her
cousin’s car the next morning. Bailey reported that her home is in west Nashville. She maintained
that the Petitioner was with her the entire night. Bailey testified that she did not recall counsel or
anyone from the public defender’s office calling her about this case.
On cross-examination, Bailey testified that the Petitioner is the father of her thirteen-year old
son. She stated that she has two other sons who are eighteen and sixteen years of age. Bailey
reported that she moved some of her possessions from her former residence on December 10, 1996,
and the Petitioner helped her move the remainder on December 11, 1996. She testified that she left
work at 9:00 p.m. on December 11, 1996 and went by the Petitioner’s mother’s home to pick up the
Petitioner. Bailey claimed that she did not know Tawanda Parker, the female shooting victim.
Bailey was certain that she was not with the Petitioner at 5:00 p.m. on December 11, 1996 because
she was at work. She testified that her three children stayed at their grandmother’s house that night
and did not go to Bailey’s new house. Bailey testified that she did not find out right away that the
Petitioner was arrested because she was not speaking to him. However, she testified that she
remained on good terms with the Petitioner’s mother.
Mattie Darnell, the Petitioner’s mother, testified that on the evening of December 11, 1996,
her oldest son, William Hayes, and Wanda Poole were at her house. She testified that Poole was a
former girlfriend of the Petitioner. According to Darnell, Poole stayed at her house the entire night.
On cross-examination, Darnell testified that she is a light sleeper and that she slept “partially”
through the night. When asked what she was doing that night, Darnell responded,
“I looked at TV. We talked back and forth. I answered the phone. I ran to the
bathroom. I went and took a nap and back up answering the phone, going to the
bathroom, talking to Wanda or either saying a few things to my other son because he
also gets up at night.”
Darnell testified that Parker called a “few” times that night trying to find the Petitioner. She
stated that she told Parker that she did not know where to find the Petitioner and that she should
“beep him.” Darnell reported that Parker had previously been to her home. She testified that a
friend called her the day after the offense and told her that the victims had been shot. Darnell
recalled finding out that the police were looking for her son later that day. Darnell testified that she
knew Bailey and saw her on the morning after the shooting. She stated that Bailey later told her that
she was with the Petitioner during the time the offense occurred. Darnell testified that she told
counsel that Wanda Poole was with her the entire night of the offense.
-8-
II. ANALYSIS
The Petitioner alleges that he received ineffective assistance of counsel at trial. Specifically,
he contends that he was not able to adequately communicate with counsel based on the conditions
at the Criminal Justice Center at the time of his detention. He also complains that counsel failed to
present the defense of alibi. In order to obtain post-conviction relief, a petitioner must show that his
or her conviction or sentence is void or voidable because of the abridgment of a constitutional right.
Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factual allegations in the
petition for post-conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-
conviction court’s factual findings are subject to a de novo review by this Court; however, we must
accord these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457. The
Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999).
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of
ineffective 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, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this performance prejudiced the
defense, resulting in a failure to produce a reliable result. Id. at 687; Cooper v. State, 849 S.W.2d
744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).
When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
-9-
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
Following the evidentiary hearing on the Petitioner’s petition for post-conviction relief, the
trial court made the following findings:
First of all, I don’t see any deficiency of [counsel]. He interviewed Ms.
Bailey, or Batey, as he had written down. He made a comment like obviously she
didn’t remember and for him to go much further would probably have not been of
much benefit and would run the risk of being accused of having told the witness what
to say.
With regard to the mother’s testimony, obviously, [counsel] had the
information that he needed to make the decision not to use it because of the impact
it would have on the actual trial.
He defended this case based on the issue with the identification, which on
cross he made much of. Also, with the fact it was so inexplicable that it could not
possibly have been premeditated and intentional. He was very much arguing for a
lesser included offense, so that was the thrust of the defense.
Given the facts of the case, and I’ll have to say this is one of the more
overwhelming cases I’ve ever seen. It did not take the jury long, and part of it is my
observations of the victims as they testified, which I have the benefit of that reading
a cold record doesn’t give you, but these witnesses knew the [Petitioner]. Ms. Parker
had known him for three months. He had been to the house, had borrowed money
previously. There had been no problems whatsoever with them. He came there to
borrow a car, and it’s just interesting. The identification was not compromised.
When the paramedics finally got there and these people were left for dead. She kept
trying to dial 911 because they are not paralyzed and Mr. McLemore is, he was
awake a lot of the time, but he couldn’t do anything given the way he was shot and
they were just laying there in this bedroom waiting for people to find them. But the
first thing they tell the paramedics is Ervin. He did this. I mean, there is no question
that they knew who he was.
Now, the other interesting thing was the photo lineup, and that is the police
were trying to verify who they were talking about just to make sure. Detective Pierce
first takes a lineup that doesn’t even include the picture of the [Petitioner] to them in
the hospital and they don’t identify anybody, and as soon as they get a photo with
him in it, that is absolutely him. There is no question about the identification and no
question about their testimony.
It was an overwhelming case. [Counsel] did the best he could under the
circumstances, made very good decisions, so given all that, plus the issue with regard
to the interview over in the jail, [counsel] also testified there was one difficult
interview that he brought to my attention, and I’m sure I probably said something, it’s
not in the record, but to the effect of do you need me to do something with this, and
then he had a subsequent interview that lasted two hours, so whatever problems
might have occurred early on, they were at least resolved by trial, so with all this, I’ll
-10-
issue a written order, but at this point, I’m going to deny the petition, but I will issue
a written order.
From the record before us, we conclude that the Petitioner has failed to show that counsel’s
representation fell below the range of competence of attorneys in criminal cases. Both victims
testified unequivocally that the Petitioner was the person who shot them. Although the Petitioner
argues that counsel should have presented the defense of alibi, counsel made a strategic decision
based on the proof not to do so. Counsel testified that when he spoke to Bailey, she did not seem
sure that she was even with the Petitioner on the night of the offense. Counsel also testified that
allowing the Petitioner’s mother to testify would not have been strategically sound because she could
only testify that she was with one of the prosecution’s witnesses at the time of the offense.
Moreover, counsel noted that the Petitioner’s mother could have inadvertently provided the
prosecution with a motive.
Regarding the Petitioner’s argument that he was not able to adequately communicate with
counsel, we note that counsel testified that he met with the Petitioner on eight separate occasions and
that at least five of those meetings lasted a minimum of forty minutes. Counsel testified that he
discussed the case with the Petitioner and discussed the possibility of presenting the defense of alibi.
Although the Petitioner testified that he was uncomfortable talking to counsel with deputies present,
he failed to articulate what information he was unable to convey to counsel during those meetings.
Thus, we conclude that the trial court properly found that counsel was not deficient in his
performance. Accordingly, the judgment of the trial court is AFFIRMED.
___________________________________
ROBERT W. WEDEMEYER, JUDGE
-11-