DocketNumber: 01C01-9710-CR-00493
Filed Date: 12/1/2010
Status: Precedential
Modified Date: 10/30/2014
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED AUGUST SESSION, 1998 October 9, 1998 Cecil W. Crowson CHRISTOPHER HENDERSON, ) Appellate Court Clerk C.C.A. NO. 01C01-9710-CR-00493 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) FOR THE APPELLANT: FOR THE APPELLEE: JAMES ROBIN MCKINNEY, JR. JOHN KNOX WALKUP One W ashington S quare Attorney General and Reporter Suite 103 214 Se cond A venue N orth DARYL J. BRAND Nashville, TN 37201 Senior Counsel KIM R. HELPER Legal Assistant 425 Fifth Avenu e North Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General ROGER MOORE Assistant District Attorney 500 W ashington S quare 222 Se cond A venue N orth Nashville, TN 37201 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION On May 6, 19 94, App ellant, Ch ristopher Hend erson, p led guilty to espe cially aggravated robbery and aggravated assault. The Davidson County trial court sentenced Appellant to twenty-five years on the especially aggravated robbery conviction and six years on the aggravated assault conviction. The trial court ordered that the sentences served concurrently with each other but cons ecutive ly to a ten-year sentence Appellant was serving in Wisconsin. Appellant filed a pro se Petition for P ost-Conviction Relief on July 8, 1996; counsel was appointed, and an amended petition was filed on November 27, 1996 which stated that Appe llant’s rig hts we re violat ed by tr ial cou nsel’s failure to adeq uately in vestiga te App ellant’s case, as well as by misinformation supplied to Appellant by counsel regard ing his releas e eligib ility date. A ppella nt app eals from the trial court’s dismissal of his petition. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt. FACTS Appellant was charged with especially aggravated robbery, aggravated assa ult and theft of property after an incident in the Davidson County home of Mr. and Ms. Underwood. Appellant was admitted into the Underwood home after he knocked on the door and asked to use the telephone. T he victims overh eard Appellant asking s omeo ne for he lp in chan ging a flat tire. A fter Appe llant hung up, his demeanor shifted: Mr. Underwood described it in terms of Appellant “raving like a mad man.” Appellant cut Mr. Underwood with a knife on the cheek and hands. He also cut Ms. Underwood on the chest and th rew a r ockin g cha ir -2- at her befo re runnin g off with her purs e. The police, in inve stigating th e inciden t, hit redial on the phone, and found that Appellant had called Charles Henderson. Mr. Henderson reported that he had re cently s poke n with h is brother, A ppellant, about a flat tire. Mr. and Ms. Underwood later viewed a photo line up and identified Appellant as the person who attacked them. Appellant was originally represented by the Metropolitan Public Defender’s Office, but eventually hired Andrei Lee as counsel in the case. At the post- conviction hearing, Ms. Lee testified that she spoke with Appellant’s prior counsel at the Pub lic Defen der’s Offic er, but that s he did no t attempt to rev iew an y file that office might have assembled on Appellant’s case. Ms. Lee also stated that she was un able to trac k down a poten tial alibi witness named by Appellant because Appella nt gave h er insufficien t informa tion to loca te the person. Ms. Lee stated that her research revealed that Appellant’s drug use was an insufficient ground for a me ntal health defens e. Ms. Le e further stated that she found no basis upon which to object to the photo line up. Ms. Lee testified that she reviewed the State’s plea offer with Appellant and did not tell him that he would be relea sed within a year of h is return to T ennes see from Wis consin. POST-CONVICTION RELIEF Appellant contends that the trial co urt erred in denying his petition fo r post- conviction relief based upo n the ineffective assista nce o f coun sel. We disagree. In order for the petitioner to be granted relief on the ground s of ineffective assistance of counsel, he must establish that the advice given or the services rendered were n ot within the ran ge of c omp etenc e dem ande d of atto rneys in -3- criminal cases and that, but for his counsel's deficient performance, the result of the trial would h ave bee n different. Baxter v. Rose, 523 S.W .2d 930 (Te nn.1975); Strickland v. Washington,466 U.S. 668
,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984). The first com pone nt of the test es tablish ed in Strickland is as follows: A convicted defendant m aking a claim of ineffective assistance must identify the a cts or omissions of counsel that are alleged not to have been the result o f reaso nable professional judgm ent. The court m ust then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of profes siona lly competent assistance. In making that determination, the court should keep in mind that couns el's function, as elaborated in prevailing professional norms, is to mak e the a dvers arial tes ting pro cess work in the particu lar case.Id., 466 U.S.
at690, 104 S. Ct. at 2066
. To meet the second prong of the Strickland test, there must be a reaso nable probab ility that, but for counsel's unprofessional errors, "the result of the procee ding wo uld have been d ifferent."Id., 466 U.S.
at 694-95, 104 S.C t. at 2068. The "different" result need not be an acquittal. A reason able pro bability of being found guilty of the lesser charge, or shorter sentence, satisfies the second prong in Strickland. Chambers v. Armontrout,907 F.2d 825
, 832 (8th Cir.1990). The ultima te stan dard is wheth er trial counsel's errors , if any, were so serious as to deprive the petitioner of a trial whos e resu lt is reliable. Unless each prong in Strickland is established, it cannot be said that the conviction resulted from a breakdown in the adversary process. -4- Proctor v . State,868 S.W.2d 669
, 673 (Tenn. Crim. App. 1992) “In post-conviction relief proceedings, the petitioner has the burden of proving the allegations in his petition by a preponderance of the evidenc e.” McBee v. State,655 S.W.2d 191
, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of the trial court in hearings “a re conclusive on appeal unless the evidence prepon derates against th e judgm ent.” State v. Buford ,666 S.W.2d 473
, 475 (Tenn. Crim. App. 1983). This Court should not second-guess trial coun sel’s tactical and strategic choices unless those choices were uninformed because of inadequate preparation, Hellard v. S tate,629 S.W.2d 4
, 9 (Tenn. 1982), and counsel should not be deemed to have been ineffective merely because a different pro cedure or strategy might ha ve produ ced a d ifferent resu lt. Williams v. State,599 S.W.2d 276
, 280 (Ten n. Crim. App . 1980). In the m atter sub judice, the trial court found that the testimony of Appellant was not credible on the issue of Ms. Lee ’s repre senta tion, an d furthe r found that Ap pellan t was w ell represented by Ms. Lee. We find no evidence to the contrary. Without a showing of prejudice , Appella nt is not en titled to post-co nviction relief. Procter v . State, 868 S.W .2d 669 , 672 (T enn. C rim. App . 1992). T his issue is without m erit. Accordingly, the judgment of the trial court is affirmed. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: -5- ___________________________________ DAVID H. WELLES, JUDGE ___________________________________ JOHN K. BYERS, SENIOR JUDGE -6-