Frazier v. State, No. E2007-02518-SC-R11-PC (Tenn. 2/18/2010)
| Decision Date | 18 February 2010 |
| Docket Number | No. E2007-02518-SC-R11-PC.,E2007-02518-SC-R11-PC. |
| Parties | TORREY L. FRAZIER, v. STATE OF TENNESSEE. |
| Court | Tennessee Supreme Court |
Jeffery Scott Griswold, Knoxville, Tennessee, for the appellant, Torrey L. Frazier.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Matthew Bryant Haskell and Leslie E. Price, Assistant Attorneys General; Russell Johnson, District Attorney General; and Frank A. Harvey, Assistant District Attorney General, for the appellee, State of Tennessee.
Gary R. Wade, delivered the opinion of the Court, in which Janice M. Holder, C.J., Cornelia A. Clark, William C. Koch, Jr., and Sharon G. Lee, JJ., joined.
Upon his conviction for second-degree murder and affirmance by the Court of Criminal Appeals, the petitioner, represented by retained counsel, filed a post-conviction petition asserting several different grounds for relief. The State conceded that the trial court should grant a delayed appeal for the purpose of filing an application for permission to appeal to this Court. In accordance with Tennessee Supreme Court Rule 28, the remaining issues were stayed. When this Court denied permission to appeal, retained counsel continued to represent the petitioner throughout the evidentiary hearing as to the various claims of ineffective assistance of counsel at trial. The trial court denied relief, and the Court of Criminal Appeals affirmed. We granted the application for permission to appeal to consider the question of conflict of interest. Because the petitioner is entitled to conflict-free counsel under the PostC-onviction Procedure Act of 1995 as augmented by Supreme Court Rules 28 and 8, the cause is remanded for a determination of whether the petitioner had knowingly and voluntarily waived that right. If not, he is entitled to substitution of counsel, the opportunity to amend the petition, and a new evidentiary hearing on all issues presented.
At approximately 1:00 a.m. on December 28, 1997, Torrey Lyonel Frazier (the "petitioner") shot and killed the victim, Anthony Eugene Thomas (the "victim"), at a place known as Skinny Miller's in Roane County. The petitioner fired multiple shots at close range, one of which penetrated the stomach, right lung, and aorta of the victim. The petitioner, charged with first-degree murder, claimed self-defense. He asserted that he had been threatened by the victim as a result of a prior incident and contended that, just prior to firing his gun, he had seen the victim reach for an object with a black handle in the front portion of his pants. Attorneys Charles B. Hill II and Spence Bruner were appointed as counsel. At trial, the police offered testimony that they had found no weapons during their investigation which might have supported the petitioner's claim. Further, a practical nurse, who had performed cardiopulmonary resuscitation on the victim shortly after the shooting, had loosened the victim's clothing at the scene and had not observed any weapon in his possession. The jury returned a verdict of second-degree murder, and the trial court imposed a sentence of twenty-two years.
On direct appeal, the petitioner challenged the sufficiency of the evidence and argued that the trial court had committed several errors by allowing inadmissable evidence, permitting the impeachment of a defense witness as to a pending criminal charge, and imposing an excessive sentence. The Court of Criminal Appeals affirmed the conviction and sentence. State v. Frazier, No. E2000-01364-CCA-R3-CD, 2001 WL 1627601, at *9 (Tenn. Crim. App. Dec. 19, 2001). No application for permission to appeal was filed with this Court.
On July 21, 2004, some thirty-one months after the opinion was filed by the Court of Criminal Appeals, the petitioner, through his retained attorney Gerald L. Gulley, Jr., filed a petition for post-conviction relief. Among several allegations of ineffective assistance of counsel at trial, the petitioner asserted that his appointed counsel had performed deficiently by failing to notify him of the results of the appeal, by failing to withdraw as counsel in accordance with Tennessee Supreme Court Rule 14,1 and by failing to file an application for permission to appeal under Tennessee Rule of Appellate Procedure 11. The petition was not filed within one year as required by Tennessee Code Annotated section 40-30-102(a)-(b) (2006). Despite the statute of limitations issue, the State conceded that the petitioner was entitled to a delayed application for permission to appeal to the Supreme Court; however, the State contested the allegations that appointed counsel had otherwise been ineffective in the representation of the petitioner. The trial court granted the delayed appeal and, in accordance with Supreme Court Rule 28,2 stayed consideration of the remaining claims in the petition.
While the petitioner was given the opportunity to file an application for permission to appeal to this Court, the application was denied on February 21, 2006. Afterward, the petitioner, still represented by attorney Gulley, received an evidentiary hearing on the remaining issues. He argued that his trial counsel had been ineffective in three ways: by failing to request a jury instruction on second-degree murder as a "result of conduct" offense; by failing to appeal the issue of jury instruction on second-degree murder; and by failing to present an issue of juror bias. At the conclusion of the hearing, the trial court denied relief, holding that the petitioner had not been denied the effective assistance of counsel as to any of the grounds alleged.
The petitioner, who continued to be represented by attorney Gulley, appealed, and, on March 25, 2009, the Court of Criminal Appeals affirmed the denial of post-conviction relief, addressing only the three issues presented at the evidentiary hearing. Frazier v. State, No. E2007-02518-CCA-R3-PC, 2009 WL 774482, at *1, 7 (Tenn. Crim. App. Mar. 25, 2009). Afterward, the petitioner filed a pro se application for permission to appeal to this Court, arguing for the first time that the trial court had committed error by failing to sua sponte address a conflict of interest issue. The petitioner claimed that because attorney Gulley had represented him in the delayed appeal, he should have been disqualified in the subsequent post-conviction proceeding and appeal. He contended that he should have been advised of the potential conflict of interest in advance of the evidentiary hearing and given the opportunity to either waive the issue or insist upon substitution of counsel. Upon learning of the petitioner's allegations, attorney Gulley sought and received permission to withdraw.
This Court granted permission to appeal in order to address the conflict of interest issue.
Under our statutory law, the Petitioner bears the burden of proving the allegations of fact in his post-conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2006); Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009). On appeal, the findings of fact made by the trial court will not be disturbed unless the evidence contained in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988); Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). When reviewing the application of law to the post-conviction court's factual findings, however, our review is de novo, and the trial court's conclusions of law are given no presumption of correctness. Dellinger, 279 S.W.3d at 293; Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).
Further, this Court, which bears the ultimate responsibility to regulate the practice of law in Tennessee, has the inherent authority to promulgate rules and otherwise govern conduct within the profession. Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d 465, 469-70 (Tenn. 2003). Our rules proscribe conflicts of interest. Tenn. Sup. Ct. R. 8, RPC 1.7.3 Because of our special interest in the administration of the ethics of our profession, this Court has the plenary power to review any interpretation of the rules governing attorney conduct. See In re Burson, 909 S.W.2d 768, 774 (Tenn. 1995); Belmont v. Bd. of Law Examiners, 511 S.W.2d 461, 462 (Tenn. 1974). The trial court has the discretionary authority to disqualify counsel for conflicts of interest. State v. Culbreath, 30 S.W.3d 309, 312-13 (Tenn. 2000). Generally, an abuse of discretionary authority occurs only when the trial court applies an incorrect legal standard or reaches a decision which is against logic and reason. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997)). Nevertheless, this Court must afford close scrutiny when disqualification of counsel based upon rules of professional conduct is at issue. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001).
Initially, there are circumstances under which courts must consider the merits of a post-conviction petition even when the petition is filed beyond the statute of limitations, as in this case. Secondly, if a trial court knows or should know of conflicts of interest which might disqualify an attorney from participating in a post-conviction proceeding, the subject must be addressed. More specifically, the trial court has a duty to either disqualify counsel with an actual conflict of interest or, as an alternative to disqualification, assure that a post-conviction petitioner has knowingly and voluntarily waived the conflict.
The Post-Conviction Procedure Act of 1995 provides "a person in custody" under a sentence of a court of this state, Tenn. Code Ann. § 40-30-102(a)...
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