State v. Kerley
| Citation | 820 S.W.2d 753 |
| Parties | STATE of Tennessee, Appellant, v. James Michael KERLEY, Appellee. 820 S.W.2d 753 |
| Decision Date | 03 April 1991 |
| Court | Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee |
Charles W. Burson, Atty. Gen. and Reporter, Amy L. Tarkington, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, James Gass, Asst. Dist. Atty. Gen., Newport, for appellant.
Kimberly A. Parton, Newport, for appellee.
This is an appeal as of right by the State from a judgment, entered by the trial court on October 27, 1989, setting aside the petitioner's conviction for first degree murder and granting his request for a new trial.
The issue presented for review is whether the trial court erred in granting the petition for post-conviction relief.
After a careful review of the record we respectfully conclude that the trial judge did err; and the judgment below is reversed, and the petition is dismissed.
Attorney Laws was originally appointed to represent the petitioner in General Sessions Court, and she was later appointed to represent him in Criminal Court. The record reveals that Attorney Laws had received her license to practice law only a few months before this trial, even though she had clerked in a law office for some period of time before that, and had assisted in developing trial strategy and case investigation. The judge also asked Attorney Ball, in whose office Attorney Laws was working, to assist her with this case, even though Attorney Ball was not formally appointed. Attorney Ball was in the U.S. Court of Appeals on the trial date in Criminal Court, and Attorney Dunn, who was from the same office and had tried 12 first degree murder cases previously, was appointed to assist in the trial of the case.
The original pro se petition for post-conviction relief, filed June 29, 1989, is based upon (1) ineffective assistance of counsel, (2) misconduct by the trial judge and (3) misconduct of the prosecutor. We note that number (2) has been previously determined by this court, on direct appeal, by opinion entered September 9, 1986. Petitioner has not presented evidence, argument or citation of authorities in support of ground number (3). Accordingly this ground has been waived. Rule 10(b), Rules of Ct. of Crim.App.
In the original pro se petition the ineffective assistance of counsel claim was based upon the following:
The trial attorney abrogated his duties to his client, by allowing motions to be heard in camera, not in open court as the law states. By not objecting to an erroneous charge to the jury by the court. By not insisting upon expert legal witnesses for the defense and by not making a proper investigation of the alibi of the defendant/petitioner.
Counsel was appointed to represent petitioner, and another petition for post-conviction relief was filed by counsel on October 23, 1989, and that petition alleged that ineffective assistance of counsel violated petitioner's Sixth Amendment rights. Paraphrasing petitioner's grounds for his claim, he alleges that counsel:
(1) Did not attempt sufficient plea bargaining negotiations.
(2) Failed to file a motion for a mental examination.
(3) Failed to request a change of venue.
(4) Did not properly or adequately advise or confer with petitioner prior to trial, and did not request a continuance to enable Attorney Dunn to do so.
(5) Did not properly or adequately investigate the case, did not obtain expert proof concerning the eyesight of witness Ruel Gray, and did not object to certain photographs.
(6) Did not subpoena or call witnesses as to blood and mucus on the clothing of a co-defendant, petitioner's character, and petitioner's demeanor and actions during the first search of the hillside at the scene.
(7) Did not effectively cross-examine witnesses called by the state.
The only evidence presented by petitioner at the evidentiary hearing was his own testimony. The State presented the testimony of Attorney Laws and Attorney Dunn.
In a post-conviction relief proceeding, the burden is on the petitioner to prove by a preponderance of the evidence the allegations in the petition, Bratton v. State, 477 S.W.2d 754 (Tenn.Crim.App.1971).
The first ground alleged by petitioner simply is not substantiated by the record, and in fact, the exact opposite is shown by the testimony of Attorney Laws and Attorney Dunn, and verified by statements of the trial judge.
The second ground alleged by petitioner concerning a mental examination fails to show ineffective assistance of counsel because (1) counsel and the trial judge found no indication that the petitioner acted in any way different from a normal person, and without some indication that petitioner was not in complete control of his actions, there is no valid reason to request a mental examination, and (2) petitioner has not produced any evidence of any potential prejudice supposedly caused by a failure to give him a mental examination. Petitioner has not entered any proof that he was incapacitated because of any mental condition, either at the time of the crime or at any time between the commission of the crime and the conclusion of the trial. Petitioner has totally failed to show any potential prejudice arising out of this allegation.
The third alleged ground fails to show ineffective assistance of counsel because of total failure to show any prejudice. The trial judge stated in his judgment, filed October 27, 1989, as follows:
In retrospect, having viewed the jury selection process, the Court is now satisfied that a fair and impartial jury was selected and that a motion for a change of venue would have been futile had it been asserted.
It also noted that Attorney Bowman, a very experienced trial lawyer, did not file a motion for change of venue for the co-defendant.
The fourth alleged ground fails to show ineffective assistance of counsel because the record clearly shows that Attorney Laws did properly and adequately advise and confer with the petitioner; and that she spent several hours conferring with the petitioner, in addition to the lengthy investigation and the preparation for trial, including witness interviews, three visits to the scene of the crime, discussion with counsel for co-defendant, preparation of motions, discussion of the case on several occasions with Attorney Ball, taking pictures, plea negotiations and numerous other actions on behalf of petitioner.
We are of the opinion that it was not necessary for Attorney Dunn to retrace all of the steps made by Attorney Laws, and that there was no requirement that he ask for a continuance. We perceive his mission to be one of simply guiding and assisting a young attorney in the trial of the case, and there is proof that he performed that task well. The trial judge stated...
To continue reading
Request your trial
-
Adkins v. State
...the petitioner must prove the allegations contained in his petition by a preponderance of the evidence. State v. Kerley, 820 S.W.2d 753, 755 (Tenn.Crim.App.1991); Oliphant v. State, 806 S.W.2d 215, 218 (Tenn.Crim.App.1991). Findings of fact and conclusions of law made by the trial court are......
-
Johnson v State
...the burden was on Defendant to prove the allegations contained in his petition by a preponderance of the evidence. State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991); Oliphant v. State, 806 S.W.2d 215, 218 (Tenn. Crim. App. 1991). Findings of fact and conclusions of law made by th......
-
Owens v State
...proceedings, the appellant must prove the allegations contained in her petition by a preponderance of the evidence.1 State v. Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991). Findings of fact and conclusions of law made by the post-conviction court are g......
-
Smith v. Parris
...is a strategic and tactical decision of trial counsel which is not to be measured by hindsight." State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App. 1991). "Allegations of ineffective assistance of counsel relating to matters of trial strategy or tactics do not provide a basis for post-c......