Williams v. State
| Decision Date | 03 January 1980 |
| Citation | 599 S.W.2d 276 |
| Parties | Leroy WILLIAMS, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Joe B. Jones, Danny T. Ferguson, Asst. Public Defenders, Memphis, for appellant.
William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Jack E. Seaman, Asst. Dist. Atty. Gen., Memphis, for appellee.
In this post-conviction proceeding the petitioner contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel at trial.
As previously summarized by this court in an opinion affirming Williams' conviction on direct appeal, the facts are relatively simple:
The owners, Mr. and Mrs. Hollingsworth, and two of their customers were in Hollingsworth's Grocery Store on the night it was robbed at gunpoint. In an exchange of gunfire, Mr. Hollingsworth was critically wounded in the chest, and the appellant was wounded in the side. Williams fled on foot and was found lying on the ground in front of his automobile, which was parked some 8/10ths of a mile from the scene of the robbery.
The appellant was identified from an array of photos by the two customers shortly after the robbery, and by one of the owners a few days before trial. There was no objection entered to testimony concerning the photo identifications, nor any request to inspect the photographs themselves. All four of the people who witnessed the robbery made in-court identifications of Williams, and, again, no objection was made to any of this testimony. By his failure to enter contemporaneous objections to the identifications or the procedures used in obtaining them, the appellant waived his right to attack this evidence on appeal. Leroy Williams v. State of Tennessee, Court of Criminal Appeals at Jackson, released January 17, 1978.
The petitioner was convicted by a jury of armed robbery and was sentenced to 50 years imprisonment. He now alleges his attorney acted incompetently (1) in failing to object to the identification testimony, as outlined above, and (2) in neglecting to properly investigate the case and interview the State's witnesses prior to trial.
At the hearing below, the defendant's trial attorney testified that he had conferred with his client on some half-dozen occasions and had interviewed the only prospective defense witness whose name Williams had given him. It turned out that this person knew nothing relevant to his client's defense. Williams told his attorney he had not been involved in the robbery; he said that he was in Chicago at the time of the offense and alluded to an unnamed alibi witness. But, as the attorney testified, "frankly it wouldn't have made any difference if I did get the name because, as the proof showed, he (Williams) was found about eight-tenths . . . of a mile from the scene of the robbery . . . lying in front of his vehicle with a bullet wound." The attorney said Williams never mentioned to him a man named "Butch" who, according to Williams' post-conviction testimony, was the one who had actually shot him on the night of the robbery.
The trial attorney did interview one of the two investigating officers and he conferred with the Assistant District Attorney assigned to Williams' case. He was told by the prosecutor what witnesses the State expected to call and what their testimony would be, and he was shown weapons, casings and photographs of the scene which were later introduced into evidence. He also recalled being shown a group of mugshots that had been displayed to the eyewitnesses and from which a photograph of his client had been chosen by at least two people as representing the robber. He said that he saw nothing about the group of photographs to indicate that it was unduly suggestive or otherwise improper.
Finally, the attorney testified that for two reasons he decided not to object to testimony concerning the pretrial identification of his client once it became clear that the State was not going to offer to introduce the group of photographs into evidence. First, he wanted to argue to the jury that the identification procedure must have been improper and the photo display tainted, or else the State would have been willing to let the jury see the photographs. Second, in the event of conviction, he hoped to assign error on the basis of the prosecution's failure to introduce the mug shots into evidence. He also testified that he had raised the question of suggestiveness in photograph identification at previous trials, without success, and that he wished to try a "new approach." The record of the trial indicates that while the trial attorney made no motion to exclude the identification evidence, he broadly and rigorously attacked it on cross examination, albeit without notable success.
The trial court found that Williams' attorney adequately investigated his client's case prior to trial and noted that he had been provided "full discovery." The trial judge further concluded that
. . . the Petitioner was not denied effective assistance of counsel before, during or after the trial. The fact that counsel has had many criminal trials before this Bar and his assertion that he was satisfied from the evidence shown to him by the State and the statements of witnesses concerning the identification coupled with counsel strategy of using the failure of the State to introduce the photographs shown to witnesses for his argument and appeal, convinces this Court of the correctness of this finding. The Court further notes the transcript, marked Exhibit # 1, thoroughly cross-examined eye witnesses in regard to their identification. . . . (sic). Further, this Court viewed the mug photographs in question upon this hearing and do not find on their face to be tainted (sic).
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