Major Richardson, Jr. v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1999 April 21, 1999

Cecil W. Crowson Appellate Court Clerk MAJO R RIC HARD SON , JR., ) C.C.A. NO. 01C01-9803-CR-00111 ) Appe llant, ) ) DAVIDSON COUNTY V. ) ) ) HON. STEVE R. DOZIER, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

THOMAS H. MILLER JOHN KNOX WALKUP P.O. Box 681662 Attorney General & Reporter Franklin, TN 37068-1662 CLINTON J. MORGAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

VICTO R S. JO HNS ON, III District Attorney General

PATTY S. RAMSEY Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION Major Richard son, Jr., the Petitio ner, ap peals from th e orde r dism issing his

petition for post-conviction relief. Petitioner was convicted of agg ravated robbe ry on June 26, 1992, and his conviction was affirmed on appeal by a pan el of this cou rt. State v. Major Richard son, Jr., No. 01C01 -9301-CR-00016, Davidson County (Tenn. Crim. App., at Nashville, August 19, 1993). In his petition for post-co nviction relief, Petitioner alleges that he received ineffective assistan ce of cou nsel at trial. W e affirm the tria l court’s judg ment.

While the new Post-Conviction Procedure Act went into effect as of May 10, 1995, its authority only extends to petitions filed after that date. Tenn . Code Ann. § 40-30-201 et seq. At the time Petitioner’s post-conviction petition was filed on July 12, 1994, th e burden of proving the allegations raised in the petition by a prepon deranc e of the ev idence was the Petitioner’s . Clenny v. State, 576 S.W.2d 12 (Tenn . Crim. A pp. 197 8), cert. denied, 441 U.S . 947, 99 S .Ct. 2170, 60 L.Ed.2d 1050 (1979); McG ee v. State , 739 S.W.2d 789 (Tenn. Crim. App. 1987 ).Moreover, the trial court’s findings of fact are conclusive on appeal unless the evidence preponderates against the judgm ent. Tidwe ll v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn. 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

In reviewin g Petitione r’s Sixth Amen dment claim of ineffective assistance of coun sel, this court must determine whether the advice given or services rendered by the attorney are within th e rang e of co mpe tence dem ande d of all a ttorney s in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on

-2-a claim of ineffe ctive co unse l, a petitio ner “m ust sh ow tha t coun sel’s representation fell below a n objective standa rd of reas onable ness” a nd that this performance prejudiced the defense. There must be a reasonable probability that but for coun sel’s error the result of the proceeding wou ld have b een differe nt. Strickland v. Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (19 84); Best v. Sta te, 708 S.W.2d 421, 422 (Tenn. Crim . App. 1995 ).

This court should n ot second-g uess trial counse l’s tactical and strategic choices unless those choices were uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 19 82). Coun sel shou ld not be d eeme d to have been ineffective merely because a different procedure or strategy migh t have produced a different re sult. William s v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App. 19 80).

Petition er’s trial counsel was a Metro Public Defender assigned to represent the Petitioner from September 1991 through May 1992 when his trial was held. Counsel testified that she met with Petitioner for the first time on September 29, 1991. She late r met with him on at least eleve n (11) oc casions for a total of 5.1 hours. Her co -coun sel was her supervisor, who was the senior trial lawyer in the Public Defende r’s Office. Prior to trial, counsel filed various motions in limine and a motion to suppress the identifications of the Petitioner. Counsel conducted discovery, including looking at evidence in the police prop erty room. Prim arily, counsel determined the defense theory for trial as a case of mistaken identification.

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In prepara tion for trial, they fo cused on incon sistencie s between the witnesses’ descriptions of the robber to the police and the Petitioner’s actual appearance. Trial counsel an d her assistan ts also interviewed many of the S tate and defense witnesses prior to trial. In addition, she set up a chart for trial documenting State’s witnesses’ descriptions of the s uspe ct to the police in comp arison to th e true ap pearan ce of the P etitioner.

The inconsistencies in the description of the suspect versus the appearance of the Petitioner centered upon the fact that Petitioner had a tattoo in the center of his chest. In spite of co unse l’s efforts to find s ome one p rior to tria l who c ould document that Pe titioner d id have a tattoo at the tim e of the robbe ry, she was u nable to identify anyone who co uld verify that fa ct. They d iscusse d the po ssibility of the Petitioner exhibiting h is tattoo at trial, but de bated wheth er that w ould w aive his rights regardin g testimo ny and im peach ment by his prior convictions. Ho wever, during the trial counsel did discover a photograph taken of the Petitioner at the Health Departmen t after he was a rreste d whic h exhib ited his tattoo. T his photog raph wa s prese nted as evidenc e at trial.

During the trial, c ouns el reca lled tha t som e preju dicial testimony was given against the Petition er, but her strategy was to “just let it go,” because she did not want to focus upon it and allow it to “stick in the jury’s mind.” Prior to the trial date, counsel and her a ssistan ts discu ssed with Pe titioner th e pros and c ons o f his testifying. Trial counsel advised him that if he did testify then his prior record, including several convictions for felony crimes involving dishonesty, would be used to impe ach his te stimon y and tha t he wou ld not ma ke a go od witne ss.

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Cou nsel’s supervisor testified that she served as co -coun sel in th e Petitio ner’s case. While her supervisor did not participate in the questioning at the hearing on the motion to suppress, she believed that it was a thorough hearing with counsel receiving information which assiste d her in prepa ring for c ross-e xamin ation a t trial. The major topics in the identification issue revolved around the inconsistencies in the State ’s witnesses’ testim ony. The su pervisor recalled that the Petitioner’s tattoo was particu larly central to th e identification issu e, with a n inves tigator fo r the P ublic Defe nder’s Office assisting cou nsel in attemp ting to locate family m embers or other witnesses who could verify that Petitioner had the tattoo at the time of the robbery. She recalled that a photograph was found late in the trial which demonstrated the large tattoo that Petitioner had on his chest and it was admitted at trial as evidence.

The supervisor accompanied counsel to the scene of the rob bery d uring th eir preparation for trial. She also assisted counsel in preparing jury instructions and various motions. They discusse d the de cision of w hether P etitioner sh ould testify with the Pe titioner, a dvising him o f all the implications based upon his substantial prior record. The supervisor stated that she believed that “we prepared the case and that we thoroughly investigated the case and presented the best that anyone could to the jury and they m ade their decision .”

Petitioner testified that prio r to trial he met w ith his trial couns el “periodic ally.” He did not recall seeing counsel’s supervis or until “alm ost the da y of the trial.” Petitioner had b een a dvised by cou nsel th at iden tification was th e big iss ue in h is case. At the time of his arrest, Petitioner stated that he did have two (2) tattoos on his ches t, the first h e got in 1974 a nd the se cond w as don e in the ea rly 1980's. He could not recall anyone other than counsel coming to talk to him about his case prior

-5-to trial. The night b efore tr ial, counsel asked Petitioner about looking at his medical record to see if he h ad tattoos .

Petitioner testified that his couns el advised him prior to trial not to testify because of his prior criminal history, but that she did not go into detail as to how it could hurt him. However, counsel did tell him that regardless of his prior convictions, the decisio n to tes tify was u p to him . Petition er told h er he d id not wan t to testify if it was going to h urt him. He rec alled that they discussed his decision regarding whethe r to testify twice p rior to the trial an d once during the trial itself.

In an order denying Petitioner’s petition for post-conviction relief, the trial court held that the trial record was abundantly clear that “the jury was well informed of the issues in this case and resolved them against the Petitioner.” The trial court further found that testimony re vealed that “numerous hours had been spent with the Petitioner in preparation for trial and efforts had been made to locate individuals that would confirm the Petitioner’s accou nt of when he received his tattoos.” The trial court reasoned that while trial counsel was unsuccessful in verifying the Pe titioner’s account of his history of tattoos in their effort to disprove the identity of Petitioner as the perpetrator of this offense, counsel was “still successful in getting the proof before the jury without having to subject the Petitioner to cross-examination about his prior record.” In addition , any claims the Petition er had re garding his right to testify were found to be without merit as “testimony of trial counsel from the prior hearings clearly in dicate [d] that th ere we re disc ussio ns ab out the [Petitioner] testifying and the risk there in.”

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W e agree with the trial cou rt that Petitioner’s allegation that counsel was not adeq uately prepa red no r did sh e fully inve stigate his case and interview witnesses is without merit. The testimony of trial coun sel revealed that n umerou s hours we re spent in preparation for trial and efforts were made to locate witnesses to verify when Petitioner received his tattoos. Petitioner also contends that counsel failed to find evidence dem onstra ting the existen ce an d age of his tattoos until near the end of the trial. It is true that the photographs depicting the tattoos on P etitioner’s chest were not discov ered u ntil nea rly the end of the State’s proof. However, testimony of trial counsel indicated a great e ffort on b oth he r part an d her in vestiga tors in th eir attempt to locate someone who could verify the existence and age of the Petitioner’s tattoos prior to trial. The trial court found that trial counsel was successful in admitting a photograph demonstrating the tattoos on Petitioner’s chest, therefore, we find that any error in the laten ess of the hour wa s harm less.

Regarding Petitioner’s decision of wheth er to testify at trial, the tria l court found that he “was extremely vague on the number of discussions he had with trial counsel about his testifying at trial and was further unclear in his testimony about what information he had been provided.” From our review of the record, it is clear that Petitioner’s testimony reflects that counsel discussed the decision of whether to testify with Petitioner on at least three occasions, one of which occurred during the course of the trial. Trial counsel indicated that there were discussions with Petitioner during which the risks of testifying were discussed and that Petitioner’s prior dealings with the crim inal justice system indicate that he was informed of the risks of going to trial and testifying. W hile Petitioner may now wish he would have testified, we cannot find an y preju dice in the advice of trial co unse l regard ing the poss ibility of his prior con victions be ing used to impea ch his tes timony.

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After a thorough review of the record, briefs and the law in the case sub judice, we find that the Petitioner has not proven his allegations by a preponderance of the evid ence . We agree with tha t trial cou rt that P etitione r’s trial coun sel’s preparation and performance did not fall below an objective standard of reason ablene ss, nor pre judice the defens e provide d to Petition er.

W e affirm th e trial co urt’s dis miss al of Pe titioner’s petition for post-conviction relief.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge

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