### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 24, 2001 Sessi

on

WILLIAM SINGLETON v. STATE OF TENNE SSEE

Direct Appeal from the Criminal Court for Claiborne County

No. 10722 Bobby H. Capers, Judge

No. E2000- 02820-CCA- R3-PC June 28, 2001

On December 16, 19

93, William Singleton

, the Defendant a

nd Appella

nt, was con vic ted by a Claiborne Coun tyjury of first-degree murder. This Court affirmed the D efendant’s conviction following direct appeal. Subsequently, the Defendant filed a petition for post-conviction re l ief alleging, inter alia

that he was d enied the ef fective ass istance of c ounsel at t rial. Foll owing a hearing, the trial court dis mi ssed the petition. The Defendant appeals here, arguing that the trial
court erroneously

dism issed t he petition. After a review of the record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined.

Michael G. Hatmaker, Jacksboro, Tennessee, for appellant, William Singleton.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attor ney General ; William Paul Ph illips, District Attorney General; and Michael O. Ripley, Assistant District Attorn ey , for appellee State of Tennessee.

OPINION

Factual Backgrou

nd The facts underlying the Defendant’s conviction were summarized by this Court following

direct appeal a

s follows:

The victim, James Keck, was last seen by his family around 12:00 or 12:30

a.m. on January 13, 1993. On this occasion, t he victim was seen

by his brothe

r inthe
company of the appel lant outsi de a conveni ence store i n Tazewell . Upon Keck's-2-

failure to return home, his wife reported him missing on the evening of January 13th. The victim's vehicle was later found abandoned and burned. The Claiborne County

Sheriff's Depa

rtment was contacted and an investigation was initiated to deter mine his whereabouts. Upon questioning by the she riff's department, the a ppellant admitted t

hat he was with the

victim d uring th e early morning hours of January 13th. The appellant related that he had been "coon hunting" with Keck on January 12th, the night before Keck's disappearance. After

a visit to a convenie

nce store, the ap

pell ant an d Keck return ed to the app ellant's residence. The appellant advised that Keck left around 2:30 a.m. on January 13th. On January 15th, Criminal Investigator Kell y Anders of the Claiborne Count

y Sheriff's Department contacted the appellant by teleph on e concerning a search for the victim on the Singleton farm. On this occasion, the appellant orally consented to a search of his fa rm. On Saturday morning, January 16th, I nvestigator Anders contacted the appellant by phone to verify that the a ppellant was home that morning in order that he might obtain the appellant's signatur e on a conse

nt to search form

. In a discussion of the

search, the appellant again stated that no written consent was
necessary but that he would be at home upon Investigator Anders arrival. Later that morning, Investigator Anders ar rive d at the appellant's farm with a search party of betweenforty and si

xty pe ople, consisting m

ainly of citi

zen volunteers. An

ders again discussed withthe appellant per mission to search th

e premises and al

so asked if

the
app ell ant wan ted to j oin the sear ch p art y. The appellant again agreed to the search butdeclined to join the search party, e xplain ing that he had pl

ans to transport hi

s family to a church meeti

ng th at mornin g. He did, however, sign a written authorization permitting a "complete search" of his premises. The a uthorizat ion apprisedthe appellant of hi s right to refuse consent and contained no expressed limitations on the scope of the search. After signing the consent form, the appellant lef t wi th h is f ami ly. During the course of the

se arch, A nde rs d isc ove red a free zer secu red b y a chain and a padlock in the appellant's barn. The freezer was concealed under bales of hay. Ander s did no t open the freeze r immediately . Instead, he decided to wait until the appellant returned home. After waiting more than four hours , Anders reconsidered

and broke open the freezer's padlock with a hammer. Inside was found the frozen body of Jeff Keck wrapped in plastic and tape, and covere d with tobacco, manure and dirt. After discovering the body, Sheriff's personnel continuedsearching the barn. The search revea

led other incrimin

ating items includ

in g several rolls of tape and plasticwrap. Both the plastic and tape rolls were consistent with the materials used
to w rap t he v ict im' s bo dy. Sheriff's personnel later o b tained a sea rch warrant f or the appel lant's residence. The subsequent search uncovered a key matching the lock on the freezer andseveral boxes of shell casings consistent with bull

ets recovered fro m the victi m's head. Based on this information, the app ella nt was arrested a nd charged with first-degree murder.-3- The appellant la

ter mov ed to suppress the evidence found in his barn on Fourth Amendment groun

ds. According to

the appellant, his

consent to

search was neither volun tary nor did it extend to breaking the padlock on his freezer. On December 7, 1993, the trial court conducted a hearing on the matter. During the suppression hearing, the State called

Investigat

or Kelly And

ers to testify

. Anders stated tha t he requested ve

rbal consent fro

m the appellant tw

ic e before leading the search party to the a ppellant's home that Saturday. At the suppression hear

ing, Anders test

ified as follows:

Q: At that time when he-- w hen he signed the written consent, or before he signed

the written consent, did he talk to you about where
you could sear ch?

A: Yes, sir.

Q: Whe re di d he sa y y ou co uld se arch ?

A: He said that I

could search any

where, any

place, any

thing on his property, that he wanted to help find Jeff, and if could be--if he was
to be fo und out the re, t hen to f ind him ,-- yo u c an search my house, you can search every

thing on my property, just be care ful when you go in the dotted area

there, (referring to a map) the old homestead, he said--it is falling through and you could fall through the floor and get injured in there.

Q: Did he talk with

you anything

(sic) about the scope of that search, abou t whe re th e sea rch w ould b e oka y?

A: He made it

quite clear to

me that I could

search any

where on his
pro pert y. Search any

th ing. He even told me the boundaries of his property.

Anders testified that on the morning of the s earch the a ppellant behave

d in

an extremely co

operative manne

r. The appellant voiced no reservations about the search and seemed quite relaxed. The defense presented ev idence to es tablish t he appellan t's below av erage intelligence. A tes t given to the appellant in 1986 measured his I.Q. at 74. The evidence, on the other hand, also d emon strated that the appellant completed the ele venthgrade and operated a tobacco farm for several ye ars. At the time of the offense, the appellant was 28 y ears of age a

nd was married wi

th four children i

n the home. Based

on the evidence presented, the trial court denied the appellant's motion
to suppress. In doing so, the court found that the appellant gave

voluntary consent-4-

to search, and found that the search did not exceed the scope of that con sent. Thus, the evidence wa

s deemed admissible

for trial purpose

s. A ttrial, Dr. Cleland Blake testified on the State's behalf. Dr. B lake is a n independent

forensic patholo

gist who perf orm ed t he au top sy on the vic tim 's bo dy. Blake testified that he found three entr y wounds in

the frontal portion of the victim 's head. Two of the wounds were located near the victim's rig

ht eye. The

third was in the left temporal area. According to Blake, the third wound was fatal. Dr. Blake also stated that he recover

ed two damaged

slugs from th

e victim's h

ead. The bullets recovered were identified as .22 caliber. Dr. B lake als o testified that because he foun d no powder burns on the victim's face, he believed that the muzzle of the murder weapon was at least twenty-four inches away when fired. Finally , Dr. Blake testified that the

victim's body

had been wrappe

d in plastic. A separate plastic bag covered the victim's head which

contained blood that

had drained fro

m the head into the plastic. The St ate al so called witnesses who related information concerning the freezer in which the victim'

s body was fo

und. The appellan

t's eleven y

ear-old stepson testified that sometime in January 1993, he helped his father movethe freezer from the front of the house to the barn. The appellant's sixteen year-old stepdaughte r testified that she had witnessed the moving of the freezer to the barn, and that it had occurred in January, " somewhere arou nd" the time that sh

e had seen the vic

tim at the appellant 's residence. Finally, Mark Valandingham testified that he had noticed that the freezer had been moved when he came to the appellant's residence to borrow a chain on the afternoon of

January 13th. All three witnesses testified that the freezer hadbeen in front of the appellant's residence for a long period of time, at least a y ear, before it was moved to the barn. At trial the State pursued a theory of a financial motive for the killing. The victim's wife testifiedthat her husband had told her that a person named "Bill" had agreed to sell some

tobacco that her

husband had gro

wn inexcess of the amount he

was allotted to sell unde

r his "market ca

rd." Invest

igator Ande rs testified that the appellant told him that he and the v ictim had e ntered into an agreement to sell the victim's surplus tobacco at a tobacco sale on January 13th. According to the vict im's wife, the appellant was to receive a twenty-five cents per -pound commission for selling the tobacco under his name. The wife testified that the victim and "Bill" had loadedthe tobacco at the victim's farm and hauled it to the tobacco market on January 11thand 12th. Lawrence

Russell, an employee of the Planter's Warehouse, an age nt that buys and sells tobacco, testified that 4,012 pounds of tobacco was deli

vered to
t he Planter's Warehouse by the appellant on January 11 and 12. Ac cording t o Russell's testimony, which was supported by documents from the sale, the tobacco delivered by the appe

llant sold on January

13thfor $6817.93. Russe ll testified that
at twenty-five cents per-pound, the appellant's commission would have been $1003. The victim's wife testified that on January 13th, the appellant called her and told her that he wanted to bring over the money from the sale. Whe

n asked where the

victim-5-

was, the appellant said that he had loaned th e victim $3100, and that he had "gone to Virginia to buy some cattle." The appellant also told Anders that on the night be fore the vic tim's disappearance, he had loaned the victim $3100 in advance of the proceeds from the tobacco sale. A bookkeeper for a John Deere dealership in Maynardsville testified that the appellant had a tractor payment of $4224.34 due on January 20, 1993. It was the State's theory that the appellant needed funds to make this tractor payment and, thus, fabricated the $3100loan tothe victim. The state argued that from the proceeds of $1003 c ommission and the $3100 fabricated loan the appellant could then meet his tractor payment which was due. The balance of the

tobacco proceeds would be givento the victim's wife. With t he victim dead, ther e would be no one to

dispute the $3100 loan. The defense off

ered no proof at

trial. Based on the evidence presented, the jury convicted the appellant of first-degree murde r.

Statev. Singleton , No. 03C01-9406-CR

- 00221, 19 94 WL 772861 at *1-*4 (Tenn. Crim. App. at Knoxville, March 19, 1995). This Court affirmed the Defendant’s conviction. Id. at *8. The Defendant filed a po st -conviction petiti on, alleging in

effective assis

tance of counse

l, prosecutorial misconduct and impr oper sentencing . At a hearing, t he Defendant cl

aime d that his trial
att orn eys repeatedly

told him that he would be the last wi tness to testify

, but on the last day

of trial, he w as told that he would not be allowed to te

stify. The D

efendant claime

d that h e could hav e contradict ed several o f the State’s witne sses’ accounts of

the incidents. He

also claimed that h

is wife, Debbie Singleton, could have provid ed him with an alibi,

but that trial couns

el failed to

call Mrs. Singleton to testify. Mrs. Singleton testifie

d that sh e remembe red the evening that the killing supposedly took place. She claimed to

remember that the Defendant had been hunting with the victim late into the night. The Defendant came to bed earl y the ne xt morning and woke

her up. She also sa

id that, immediately

after the Defendant woke her, she heard a truck that sounded like the victim’s l eaving. Martha Yoakum, the District Public Defend e r and the Defendant’s trial counsel, testified that she discussed the possibility of the Defendant testifying many times wi

th the Defendant

. She also testified that she could not remember the Defendan t wanting his wife to testify. Ms. Yoakum

remem ber ed that the Defenda

nt’s wife was also

indicted in this cas

e at the time of tria

l, and Ms. Yoakum did not remember Mrs. Singleton telling her anything that would be helpful to the defense. Tammy Clemmons, acriminal investig ator with the Public

Defender’s Office, testified that she met with the Defendant several times. She specifically re membered Ms. Yoakum giving the Defendant the option of testifying, but the Defendant was not interested in testify ing. Following the hearing, the trial court found that the Defendant failed to prove that his trial counsel was ineff

ective. On appeal, the Defe ndant claims that th

e trial court err

ed in denyin

g his ineffective assistance claim. We disagree.

Effective Assistance of Counsel In post-conviction proceedings, the petitioner bears the burden of proving the allegations raised in the petition by a preponderance of the evidence. Tidwell v. State , 922 S.W.2d 497, 500-6-

(Tenn. 1996); Wade v. State , 914 S.W.2d 97, 101 (Tenn. Crim. App. 1995). Moreover, the trial court's findings of fact are conclusive on appeal unless the evidence pre ponderates against the judgment. Campbell v. State , 904 S.W.2d 594, 595-96 (Tenn. 1995); Cooper v. State , 849 S.W.2d 744, 746 (Tenn. 1993). Th e United Sta

tes Supreme Court a

rticulated a two-

prong test for c

ourts to employ

in evaluating claims of ineffective assistance of counsel in Strickla nd v. Was hington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Court began its analysis by noting that "[t]he benchmark for judging any

claim of ineffec

tiveness must be whe ther counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as ha ving produced a

just result." Id . at 686. When chall enging the ef

fective assistan

ce of counsel i

n a post-c onviction proceeding, the petitioner bears the burden of es t ablishing (1) the attorney's representation was deficient; and (2) the deficient performance resulted in prejudice so as to deprive the defendant

of

a fair trial. Id . at 687; Powers v. State , 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). This Court is not required

to consider the two prongs of Stricklandin any particular order. Harris v. State , 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). Thus, “if th e Appellant fails

to establish

one prong, a reviewing court need not con sider the other." Id. The test in

Tennessee in determining whether counsel provided effective assistance at trial is whether counsel's performance was "within the range o f competence de manded of attorne

ys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975); see also Harris , 947 S.W.2d
at 163. In order

to demonstrate tha

t counsel was def

icient, the petiti oner must s how that co unsel's representationfell below an objective standard of reasonableness under prevailing professional

norms. Strickland , 466 U.S. at 688; Harris , 947 S.W.2d at 163. Under the prejudice prong of Strickland , the petitioner mus t e stablish th at "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the pr oceeding would have been different. A reas onable pro bability is a probability sufficient to undermine confidence in the outcom e." Strickland , 466 U.S. at 694. The trial court was presented with conflicting evidence at the post-conviction hearing. Firs t, although the Defendant claimed that his trial counsel prevented

him from testifying, Ms. Clemmons contradicted

that testimony. Furthermore, although the Defendant testified that his wife could have providedhim with

an alibi, Mrs. Singleton merely testified that her husband woke her and she heard

a t ruck leave. Although she thought the truck sounded like the victim’s truck, she could n o t positively identify the truck, and she did not see the victim. We conclude that this evidence

would have failed to establish an alibi, and we agree with the trial court

that the evidence presented at the post-conviction hearing was not “sufficient

to undermine confidence i n the outcome." Strickland

, 466 U.S. a t 694. In short, the trial court resolved the conflicting evidence in favor of the State, and

we find that the evide

nce does not prep

onderate aga

inst the trial cour

t’s ruli ng that t

he Defendant was not denied the

effective assis

tance of counse

l. This issue is withou

t merit. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE