State v. Sarah Richardson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
June 22, 1998
Cecil Crowson, Jr.
SARAH RICHARDSON, ) Appellate C ourt Clerk
) NO. 02C01-9707-CC-00271
Appellant, )
) LAUDERDALE COUNTY
VS. )
) HON. JON KERRY
STATE OF TENNESSEE, ) BLACKWOOD, JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES H. BRADLEY JOHN KNOX WALKUP
112 East Liberty Attorney General and Reporter
P.O. Box 952
Covington, TN 38019 DOUGLAS D. HIMES
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED IN PART;
DELAYED APPEAL GRANTED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Sarah Richardson, appeals the denial of post-conviction
relief by the Circuit Court of Lauderdale County. She was previously convicted
of first degree murder and conspiracy to commit first degree murder. She was
sentenced to concurrent terms of life and twenty-five (25) years, respectively.
The petitioner now alleges ineffective assistance of trial and appellate counsel.
She contends (1) that trial counsel was ineffective for failing to secure a mental
evaluation relative to diminished capacity evidence; and (2) that counsel failed to
inform her of her right to appeal to the Tennessee Supreme Court following
affirmance of her convictions by this Court. We AFFIRM the judgment of the trial
court regarding counsel’s decision not to pursue a mental defense. However, we
VACATE our original judgment in the matter and reinstate it as of the date of the
filing of this opinion to allow the petitioner to pursue a delayed appeal to the
Tennessee Supreme Court.
FACTS
The petitioner was convicted of first degree murder of her husband and
conspiracy to commit first degree murder. Her convictions were affirmed by this
Court. State v. Sarah Richardson, C.C.A. No. 02C01-9204-CC-00103,
Lauderdale County (Tenn. Crim. App. filed April 7, 1993, at Jackson).
A.
The petitioner testified at the post-conviction hearing that prior to the
death of her husband she was on “nerve pills and a couple of other kinds” of
medication. Dr. James Witherington prescribed the drugs, as he had been the
petitioner’s physician for some time. The petitioner testified that she advised her
attorneys of this fact, yet they never attempted to interview Dr. Witherington.
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The petitioner alleges this failure to consult her doctor precluded her ability to
present evidence of diminished capacity and/or battered spouse syndrome.
Although Dr. Witherington did not testify, the parties entered into a
stipulation concerning Dr. Witherington’s records. The records reflect the
petitioner reported depression and nervous tension in 1974 and 1975 and
tension in 1984. The records also reflect that the petitioner reported she had
been suffering from depression after the murder of her husband in 1990.
The petitioner’s attorney testified at the post-conviction hearing that the
petitioner steadfastly maintained she had no involvement in the death of her
husband. Counsel further testified that diminished capacity evidence was
discussed with the petitioner; however, she was not interested in pursuing it.
The petitioner was unwilling to admit any involvement in the death of her
husband.
B.
Following her conviction, the petitioner appealed to this Court. Although
trial counsel had been retained for trial, the trial court declared the petitioner
indigent for appellate purposes. The same counsel was appointed to represent
the petitioner on appeal. Following this Court’s affirmance of the conviction, no
permission to appeal was filed. The petitioner’s attorney testified he sent the
petitioner a letter advising her to contact counsel by a certain date if she desired
counsel to file for permission to appeal to the Tennessee Supreme Court. The
letter, entered into evidence at the post-conviction hearing, also advised the
petitioner that no further action would be taken unless the petitioner responded.
Counsel received no response and did nothing further. The petitioner testified
she never received the letter.
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The trial court entered a two-page “Findings of Facts and Conclusions of
Law.” This document merely sets forth a summary of the contentions of the
parties and testimony of the witnesses. It does not contain any findings of fact.
However, after giving a summary of the testimony, the trial court concluded that
“the petitioner was not denied effective assistance of counsel, and that this
petition should and is, hereby, dismissed.”
INEFFECTIVE ASSISTANCE
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The
petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive her of a fair trial. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990).
The test in Tennessee in determining whether counsel provided effective
assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.
The petitioner must overcome the presumption that counsel’s conduct falls within
the wide range of acceptable professional assistance. Strickland v. Washington,
466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn.
Crim. App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App.
1996).
In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
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circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time." Strickland v. Washington, 466 U.S. at
689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurt
the defense, does not, standing alone, establish unreasonable representation.
However, deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation. Goad v. State,
938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley v.
State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).
FAILURE TO UTILIZE MENTAL DEFENSE
The petitioner contends her attorneys provided ineffective assistance by
failing to procure a mental evaluation. The state contends that the petitioner had
many meetings with counsel before her trial, and that neither attorney was aware
of any mental defect necessitating an evaluation. Ordinarily, the absence of
factual findings by the trial court would preclude proper appellate review;
however, it is apparent in this case that the trial court rejected the petitioner’s
contentions. A defense based upon mental disease or defect obviously would
have been inconsistent with the petitioner’s denial of involvement. It would be
tactically difficult to deny any involvement and, at the same time, advance a
mental defense. Furthermore, the records of Dr. Witherington do not establish
anything that would significantly help the petitioner. The petitioner has not
shown that the result of the trial would have been any different with the use of
this information.
This issue is without merit.
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RIGHT TO APPEAL
Counsel testified he sent the petitioner a letter after receiving the decision
of this Court affirming the convictions. The letter explained that counsel would
file an application to appeal to the Tennessee Supreme Court, if the petitioner so
requested. Counsel testified that the petitioner never responded to the letter.
The petitioner testified she never received the letter. The petitioner further
testified that counsel refused to file the application for permission to appeal
because he said “it wouldn’t do any good.” We are unable to determine whether
the trial court found that the defendant received the letter and decided not to
appeal or whether the trial court concluded that mailing the letter was sufficient.
Regardless, the trial court denied relief.
Although counsel had been retained at the trial level, the same counsel
was appointed for the appeal. Appointed counsel on appeal must comply with
Sup. Ct. Rule 14 after an adverse decision of this Court. Appellate counsel did
not do so in this case. There was no motion to withdraw accompanied by a
proper notification to the petitioner. Specifically, it appears the petitioner was
never notified of her right to seek permission to appeal pro se as required by
Sup. Ct. Rule 14.
Because petitioner’s counsel failed to properly notify her under Rule 14 of
her right to seek second-tier appellate review, we must grant her the right to seek
a delayed appeal to the Tennessee Supreme Court. Accordingly, we vacate our
judgment of April 7, 1993, and reinstate it as of the date of the release of this
opinion. Present counsel should pursue the delayed appeal. In all other
aspects, the judgment of the trial court is affirmed.
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__________________________
JOE G. RILEY, JUDGE
CONCUR:
__________________________
DAVID H. WELLES, JUDGE
_______________________________
DAVID R. FARMER, SPECIAL JUDGE
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