State v. Buford
| Decision Date | 29 December 1983 |
| Citation | 666 S.W.2d 473 |
| Parties | STATE of Tennessee, Appellee, v. Sam BUFORD, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Sam P. Bradley, Memphis, for appellant.
William M. Leech, Jr., State Atty. Gen. & Reporter, Gordon W. Smith, Asst. State Atty. Gen., Nashville, Robert H. Gay, Asst. Dist. Atty. Gen., Memphis, for appellee.
The appellant appeals from the dismissal of his petition for post-conviction relief after an evidentiary hearing. In this appeal, he challenges the trial court's finding that the appellant was not denied the competent assistance of counsel in the convicting trial.
The judgment is reversed.
On July 6, 1979, appellant Sam Buford was convicted of the unlawful possession of heroin with the intent to sell, and he was sentenced to serve not less than ten years nor more than fifteen years and to pay a fine of eighteen thousand dollars. The defendant's attorney did not file a timely notice of appeal and his attempt to appeal the case was frustrated.
Subsequently, the appellant filed a post-conviction petition alleging, among other things, incompetency of counsel in which he cited the untimely notice of appeal as one basis for his allegation. The trial court granted a delayed appeal but did not conduct an evidentiary hearing into the incompetency of counsel allegation in the petition. On May 13, 1982, this Court affirmed the conviction obtained at the original trial but remanded the case for an evidentiary hearing on the allegation of incompetency of counsel. That is the case now before us.
This record discloses that Buford was represented at the preliminary hearing by an attorney other than the attorney who represented him at the convicting trial. On the day of the preliminary hearing, a James White approached the attorney and told him the drugs which Buford was charged with possessing belonged to him. White told the attorney he wished to make a statement to the police and admit the drugs belonged to him. The attorney advised White of the jeopardy in which he was placing himself by such statement. Nevertheless, White was taken to the police by the attorney and made a statement in which he claimed the drugs were his.
After Buford retained other counsel, the original attorney discussed this matter with trial counsel. The original attorney was at the convicting trial, waiting outside the courtroom to testify about the statement White had made. In addition to this, there was a second witness, who had been interviewed by trial counsel, who would have testified that White had told him the drugs belonged to him. Further, there was a third witness, whom trial counsel had interviewed, who would have testified he had seen White drop the drugs on the floor when the police entered the home of Buford.
White was called as a defense witness for Buford at the convicting trial. White recanted the statement given by him to the police and claimed he was coerced and intimidated into making the statement. None of the available witnesses was called to present independent substantive evidence or to rebut White's recantation.
At the hearing on the post-conviction petition, the original attorney testified he did not see any intimidation of White by the police. The other witnesses testified that they would have testified at the convicting trial, if called, of White's statements of ownership and actions at the time the police entered the residence.
Buford's attorney at the convicting trial testified he did not call one of these witnesses because the witness had been convicted of a drug offense in 1962 and he felt this would hurt the case. He testified he did not call the witness who would testify that he had seen White drop the drugs on the floor because the witness told him on another occasion he had merely seen them on the floor near White after the officer entered the residence. The trial attorney testified he did not call the original attorney on the issue because he did not think the attorney would add anything new to the case.
The trial attorney admitted that the crux of the case against Buford was the ownership of the drugs. Counsel testified he felt the state's case was not substantial and no further evidence was needed.
In his finding of fact and conclusion of law, the trial judge found that the failure to call these witnesses were legitimate tactical decisions of the trial attorney and did now show trial counsel to be incompetent.
It is true as the state points out that the findings of the trial...
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