State v. Swanson

• Citation: 680 S.W.2d 487
• Decision Date: 12 September 1984
• Docket Number: No. 869,869
• Parties: STATE of Tennessee, Appellee, v. William Lee SWANSON, Appellant.
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 487

680 S.W.2d 487

STATE of Tennessee, Appellee, v. William Lee SWANSON, Appellant.

No. 869

Court of Criminal Appeals of Tennessee,

at Knoxville.

Sept. 12, 1984.

Permission to Appeal Denied by

Supreme Court Nov. 13, 1984.

Thomas M. Fleming, Chattanooga, for appellant.

William M. Leech, Jr., Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Thomas J. Evans, Peter J. Strianse, Asst. Dist. Attys. Gen., Chattanooga, for appellee.

OPINION

DWYER, Judge.

On January 16, 1981, appellant was convicted by a jury of the offense of second degree murder and received a sentence of life imprisonment. Appellant appeals the trial court's judgment rendered on January 6, 1984, which denied appellant's petition for post-conviction relief after appointment of counsel and an evidentiary hearing.

Appellant sets forth four issues for our review: (1) whether the trial court erred in failing to enter a written findings of fact and conclusions of law in the court's dismissal of appellant's petition for post-conviction relief and what result should follow such error; (2) whether the trial court erred by not making a specific finding of fact as to whether a juror slept during portions of the trial proceedings; (3) whether the trial court erred in finding appellant received effective assistance of counsel; and (4) whether the trial court erred in its denial of appellant's motion for a delayed appeal.

In his first issue, appellant contends that the trial court's non-compliance with the mandates of T.C.A. § 40-30-118(b) warrants a reversal of the trial court's dismissal of appellant's post-conviction petition. Appellant correctly asserts that a trial judge is required to set forth a final written order in which all grounds presented are set forth along with findings of fact and conclusions of law with regard to each of the grounds. T.C.A. § 40-30-118(b). Although this requirement has been determined to be mandatory, Brown v. State, 1 Tenn.Cr.App. 462, 445 S.W.2d 669 (1969), the failure of the trial judge to abide by the requirement does not always mandate a reversal of the trial court's judgment. See George v. State, 533 S.W.2d 322 (Tenn.Cr.App.1975); Webb v. State, 4 Tenn.Cr.App. 723, 475 S.W.2d 228 (1971); Brown v. State, supra. The primary intent of the legislature underlying this requirement is to facilitate appellate review of the lower court's proceedings, and the failure to meet the requirement neither constitutes constitutional abridgement nor renders the conviction or sentence of the appellant void or voidable. George v. State, supra. Since the record contains the reasons of the trial judge for dismissing appellant's petition and the transcripts of both the evidentiary hearing held on appellant's post-conviction petition and the original trial, we conclude that the record is sufficient to effectuate meaningful appellate review. Accordingly, this issue is overruled.

In the second issue, appellant contends that the trial court erred by its refusal to make a finding of fact as to whether a juror in appellant's original trial slept through portions of the testimony and cross-examination during trial. The State asserts that the trial court properly declined to make a finding of fact as to this issue because this issue is not determinative. The State describes the true issue as whether or not counsel was ineffective in failing to bring the matter to the trial court's attention. We conclude that the trial judge could have determined the ultimate issue of whether or not trial counsel was ineffective without determining whether or not a juror, in fact, was asleep at trial.

Assuming that a juror was asleep, the issue of fact remains as to whether trial counsel had knowledge of this fact. Although the record reflects testimony by appellant that appellant brought this matter to his counsel's attention, counsel testified that he was unaware of such fact and had he been aware of the matter, he would have brought it to the trial court's attention "without any hesitation whatever." Thus, the trial judge was confronted with a question of fact as to whose testimony was to be believed. The trial judge obviously resolved this issue in favor of the State. In such circumstances the factual findings of the trial court are conclusive unless the evidence preponderates against such findings. Long v. State, 510 S.W.2d 83 (Tenn.Cr.App.1974). Accordingly, the failure of the trial court to determine whether or not a juror actually slept during the trial proceedings is not error, and this issue is overruled.

We note that within his argument pertaining to this second issue, appellant also asserts that the trial judge's failure to meet the requirements of T.C.A. § 40-30-118(b) mandates a reversal of the trial court's judgment. We disagree for the reasons set forth in the portion of this opinion dealing with appellant's first issue.

In the third issue, appellant contends that the lower court erred in failing to find that he was denied effective assistance of counsel. In support of this contention, appellant alleges that counsel failed to (1) adequately consult with him prior to trial; (2) call certain witnesses; (3) consistently and thoroughly pursue a meaningful theory of defense; (4) raise timely objections at trial; and (5) properly preserve and pursue certain issues for appellate review.

We note at the outset that the test for determining whether a criminal defendant received effective assistance of counsel is "whether the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). Counsel is obliged to confer with his client, advise him of his rights, protect his rights, investigate the facts, and develop all substantial defenses. United States v. Decoster, 487 F.2d 1197 (D.C.Cir.1973). However, the appellate court is not to second-guess the trial counsel's strategic and tactical choices pertaining to the defense. Id. at 1201.

In a post-conviction proceeding the petitioner has the burden to prove his allegations by a preponderance of the evidence. Long v. State, supra. Moreover, factual findings of the trial court are conclusive unless the evidence preponderates against such findings. Id. at 86. Therefore, we must examine the evidence to determine whether it adequately supports the trial court's judgment.

Although appellant testified that counsel did not adequately consult with him prior to trial, counsel testified that he consulted with appellant on at least eight occasions on which the defense strategy was discussed. Appellant also asserts that counsel should have called certain witnesses, whose testimony would have been favorable to the defense. However, counsel testified that after speaking to all of these potential witnesses, he concluded that their testimony would not be favorable but, in fact, very harmful to the defense.

Appellant contends that counsel should have cross-examined one State's witness concerning appellant's alleged affair with the witness's wife. Counsel testified that his reason for not doing so was a matter of strategy. Counsel felt that the defense strategy of portraying appellant as being very much in love with the victim would have been inconsistent with the facts concerning the alleged affair. Counsel further testified that had appellant requested this cross-examination, counsel would have explained to appellant his reasons for not doing so.

Although appellant contends that counsel did not pursue a meaningful defense, he has not asserted any other defense that could have been asserted at trial. Furthermore, counsel testified that his defense strategy in asserting a reasonable doubt entailed the...