# FILED
January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1997 SESSION

JOHN ERIC JOHNSON, ) ) APPELLANT, )

) No. 01-C-01-9611-CR-0 0470 ) ) Davidson County v. ) ) J. Randall W yatt, Jr., Judge ) ) (Post- Convic tion Rel ief) STATE OF TENNESSEE, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: John T. Conners, III John Knox Walkup Attorney at Law Attorney General & Repor ter P.O. Box 1451 500 Charlotte Avenue Franklin, TN 37065-1451 Nashville, TN 37243-0497 Daryl J. Brand Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 William S. Johnson, III District Attorney General Washington Square, Suite 500 222 2nd Avenue, North Nashville, TN 37201-1649 D. Paul DeWitt Assistant District A

ttorney General Washington Square, Suite 500 222 2nd Avenue, North Nashville, TN 37201-1649

OPINION FILED:_______________________________

_____ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, John Eric Johnson (petitione r), appeals

as of right

from ajudgment of the trial court dismissing his action for p ost-conv iction relief following an evidentiary hearing. The trial court found the petitio ner received the effective assistance of counsel guaranteed by

the Sixth Amendment to the Unit ed States Constitution and Arti cle I, § 9 of the Tennessee Constitution. In this co urt, the petitioner contends the evidence contained in the record preponderates against the finding s of fact m ade by the trial court a s the evidence adduced at the evidentiary heari ng established he was de nied his constitutional right to the effective assistance of counsel in the trial court and the appellate court. After
a thorough review of the record, the briefs submitted by the parties, and the law governi ng the issues pre sented f or review, it is theopinion of this court that the j udgment of the trial court should be affirmed. The petitioner was trie d for first degree murder. The j ury, as the trier of fact, convicted the petitioner of second degree murder on November

2, 1993. The trial court found the petitioner was a standard of fender and im posed a Range I sentence consisting of confinement for twenty-fiv e (25) years on December 16 , 1993. He appealed his conviction and sentence to this court. A panel of this court affirmed both the conviction and sentence. State v. Johnson , 909 S.W.2d 461 (Tenn. Crim. App.), per . app . denied (Tenn. 1995). This action for post-con vict ion relief was filed on Aug ust 18, 1995. The State of Tennesse e fil ed an answer on September 28, 1995.An amended petition was filed by appointed counsel on January 5, 1996. A second amended petition was filed on January 30, 1996. The State of Tennessee f iled an answer to the firs t and second a mended petitionson March 19, 1996. An evidentiary hearing was held on April 2, 1996. The trial court filed its writ

ten findings of fact and conclusions of law on May 30, 1996.

I.

When the trial court has conduc ted an evidentiary hear ing to permit a petitioner to3

ventilatethe grounds raised in suppo rt of an a

ction fo r post-convic

tion re lief, the trial court’s fin dings of fact are afforded the weight of a jur y verdict. Dixon v. State , 934 S.W.2d 69, 71-72 (Tenn. Crim. App. 1996); Teague v. State , 772 S.W.2d 93 2, 933-34 (Tenn. Crim

. App. 1988), cert
. den ied , 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989 ). Conseque ntly, this court is bound by the trial court’s findings of fact unless the evidence adduced at the hearing preponderates against thetrial court’s findings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994), per . app . denied (Tenn. 1995). There are several well -established r ules which govern appel late review in postconviction cases. As this court said in Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), per . app . denied (Tenn. 1990):

First, this Court cannot

reweigh or

reevaluate the evidenc e; nor can we substitute our inferenc es for those drawn by the trial j udge. Second, question s concern ing the cre dibility of th e witnesses, the weight a nd val ue to be gi ven their t estimon y, and the factual issues raised by the evidence are resolved by the trial judge, no

t this Cou rt. Third, the appellant has the burden in this Court of illustrating why theevidence contained in the record preponderates against the judgment entere d by the trial judge.
This court will now proce ed t o consider the merits of the petitioner’s contentions. In doing so, this court w ill apply the aforementioned pr inciplesgoverning appellat e review in post-conviction acti ons to determine whether the evidence adduced a t the hearing preponderatesagainst the trial court’s findings of fact. See Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert

. denied , 44 1 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979). II.

Th e pet itioner contends “the Trial Court erred in ruling

that trial counsel and appellate counsel did not render in e ffective assistance of counsel i n violation of Amendments 6 and 14 of the federal constitution and in violation o f Artic le I, Sections 8 and 9 of the state constituti on.” He argues trial counsel w as deficient in the followin g particulars:4 (1) In failing to conduct an adequ ate investigation; (2) In failing to insi st that the Defendant himself choose a defens e theory an d whether or not to t estify; (3) In failin g to choos e a reason able def ense the ory; (4) In advisi ng the Defendant that the defe nse of self -defense and the defe nse th at the shooting occurred und er circumstances

constituting onlyvoluntarymanslaughter could be developed in thi s case with out the De fendan t’s own testimo ny; (5) In failing to advise the Defendant that th e defenseof selfdef ense and the defense that the shooting occurred und e r circumstances

constituting only voluntarymanslaughter, could not be develop e d in this case without the Defendant’s testimo ny; (6) In advisingthe Defendant to not testify, after als o advising the Defendant thatthe d efense of self-defense and the defense that the shooting occurre d under circumstances constitutingonly voluntary manslaughter, could be developed without th e Defend ant’s tes timony; (7) In advising the Defendant to not te stify, but then neglectingto advise the Defen dant that by not testifying , the defense of self-defense and the defense that the shooti n g occurred under circumstances constitutin g only voluntary manslaughter, could not be dev eloped; (8) In failing to object at the sent encin g hearing to the Trial Court’s erroneous use of enhancementfactor 13(C) of T.C.A. § 40-35-114, pe rtaining to a fel ony being c o mmitted while on probatio n for a f elony.

The petitioner also contends “the Trial Court erred in ruling that the Defendant’ s waiver of his right to testify w

as not invalid in that

it was no t unknowing and unintell igent and therefore not violative of Amendments 5 and 14 of the federal constitution and in v iolation of Article I, Sections 8 and 9 of the state constitution.”

A.

When the petit ione r seeks to vitiate a c onviction on the ground the attorney who represented him denied his constitutional right to th e effec tive assistance of counsel, the petitioner

must establish by

a preponderance of the evidence ( a) the services

rendered or advice given by counsel fell below “the range of c ompetence demanded of attorneys in5

criminal cases,” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975) and (b) the unprofessional conduct of counsel enured to the prej udice of the petitioner. Willi ams v. Sta te , 59 9 S.W.2d 276, 279 (Tenn. Crim. App.), per . app . denied (Tenn. 1980). The United States Supreme Court subsequ ently adopted this two- prong test in S trickland v. Washington , 466 U.S. 668, 104 S.Ct . 2052, 80 L.Ed.2d 674 (1984). The Tenness ee appellate cou rt decisions fo llowing Strickland are legion. This court’s review

is guided by cer

ta in well-established standards. First, the standard created in Baxter

does not require perfect r epresentation. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Second, it is no t the function of

an appellate court to “second guess” trial counsel’s tactical and strategic choices pertaining

to m atters of defense unless these choices were made witho u t knowledge of the relev ant facts or the law applic able to the issue. Hellard , 629 S.W.2d at 9; McBee v. State , 655 S.W.2d 191, 193 (Tenn. Crim. App.), per . app . denied (Tenn. 1983); see People v. Corona , 80 Cal. App.3d 684, 145 Cal. Rptr. 894 (1978). As the sup reme court said in Hellard : “[T]he defense attorney’s representation, when questioned, is not to be measured by ‘20-20 hindsi ght.’” 629 S.W.2d at 9. Third, an accused is not depr ived of the effective assistance of counsel because a different procedure or stra tegy might have produced a different result. Williams , 599 S.W.2d at 279-80; Long v. State , 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert
. denied (Tenn. 1974).

B.

The petitioner contends he was de nied his c onstitu tional rig ht to the effect ive assistance of counsel because counsel failed to properly investi gate the facts of the case. He arg ues counsel did not visi t the situs of the murder. This w as important b ecause i t would have assisted in eval uating the believabili ty of a theory of self-defense or a reduction in the offense to voluntary manslaughter. The rec ord establishes that counsel properly investigated the facts and ci rcumstance s surrounding the crime alleged in the indictment. Counsel was famili ar with th e crime
scene. He had a diagram of the situs of the murder. He had ob tained a copy of the6

preliminary hearing

tape. Counse l had an inve stigator visit the scene to attempt to find witnes ses. The investigator

was a fr

iend of the defenda nt’s family. While individuals w ould talk to the investigator, they would not give their name or addr ess. Every effort wa

s made to establish the petitioner’s inno cence or have a jury find the petitioner guilty of a lesser included offense. The problem facing defense counsel w as not the investigati on. It was testimony o f the defendant

’s frie nd, Trot

ter, hi s brothe r-in-l aw, Cr enshaw , and the

petiti oner’s wife

. These witnesses

testified for the state. Trotter and Crenshaw testified they pleaded with the petitioner

not to shoot the victim. They saw the petitioner shoot the victim. Moreover, the victim was unarmed. The petitioner’s wife testified the petitio ner was armedwhen he left his residence, and he admitte d to her he had shot the man. Finally, the credibility of the petitioner as

a witness p osed a se rious pro blem. He ga ve a statement to the police that he w as not pr e sent when the victim w as shot. At trial, he wanted to contend he shot the v ictim in self-defense. The trial court founddefense counsel properly i nvestigatedthe facts. The evidence contained in the record does not preponderate against the trial court’s findings in this regard. C.

The petitioner contends defense counsel should ha ve insisted that he, the petitioner, choose the defense theory and whether he should testify in suppor t of his d efe nse. In substance, the petitioner argues he s hould have made all of these decis ions on his own. He cites Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (19 75), in support of his argument. The trial court found that defense counse l discussed with the peti tioner possible defense the o ries, including self-defense, voluntary manslaug hter, and discrediting the state’s witnes ses, primarily Trotte r, Crenshaw, and the peti tioner’s wife. Counsel discussed the strengths and weaknesses of each defense theory, includi ng how the petitioner’s testimony would affect each theory. He expl ained to the defendant how the7

statementhe gave to the police to the effect he was not present when the victim w

as killed would reflect upon his credibil ity asa witness if he opt ed to tes tify he shot the

victi m in selfdefense or in th e heat of passion. The petitioner adv ised defense counsel he was the lawyer, he should make the decision, and p resent the defense accordingly. When the state res ted, a de cision was m ade that the petit ioner woul d not tes tify. The findings of the trial court are supported by the recor d. Therefore, the petitioner is not entitled to relief on this ground.

D.

The p etitioner contends defense counsel gave the def endant erroneous advic e regardinghis need to testify in support of his de fe nse. The trial court found defense
couns el discussed this very subject with the petiti oner before and during the tri al. T h e petitioner opted to permit counsel to make these de cisions. Defense counsel was able to dev elop numerous prior convi ction s and bad acts to impeach the state’s main witness es. He raisedsufficient factsregarding self-defense and the trial court gav

e an instruction to the jur y on this defense. As previously stated,the petitioner was compr omised as a witness. He gave a videotaped statement to t he police that he was not at the scene when the kill ing occurred. It would be severely detrimental to the defense for the petitioner to te stif y he w as at the scene, he acted in self-defense, or he shot the victim in the heat ofpassion because of the racial statements made by the victim. All of

this was developed on cross-examination of state witnesses. This court parenthetically notes the defendant does not cite any authority in support of this argument. Tenn. R. App. P . 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Furthermore, there is no reference to therecord in support of this i ssue. Tenn. R. App. P. 27(a)( 7) and ( g); Tenn. Ct . Crim. Ap p. R. 10(b ). Consequ ently, thi s issue ha s been wa ived

. Nevertheless, this c

ourt has considered the iss ue and deems it is without merit.8 III.

The petitioner

next contends the trial court erred in ruling that appellate counsel did not render the ineffective assis tance of counsel in violation of Amendments 6 and 14 of the federal constitution and in vio lation of Article I, Sectio ns 8 and 9 of the state constitution. He argues appellate counsel w as deficientbecause he failed “to raise as an appellate issue the Tria l Court

’s erro neous use of enhan cement fa ctor (13)(C) of T.C.A. § 40-35- 114.”The tr ial court found that the record supported four enhancement factors and on e mitigatingfactor. The court applied the follo wing enhancement factors to en hance the petitioner’s sentence within the appropriate range: (1 ) the petitioner had a prev ious history of criminal convicti ons and/or criminalbehavior in addition to those convictions necessary to establish the appropriate s entencing range, Tenn. Code Ann . § 40-35-114(1); (2) the petitioner

possessed and employed a firearm during the commission of the k illing, Tenn. Code Ann. § 40-35-114(9); (3) the petitioner had no hesitati on about committing a crime when the risk to human life was high, Tenn. CodeAnn. § 40-35-114( 10); and (4) the crime
was committed while on probati on for a previous felony. Tenn.Code Ann. § 40-35- 114(13)(C). The court found one mitigating factor, i.e. , the petitioner because of his y outh lacked substantial judgment in killing the victim. Tenn. Code Ann. § 40-35-113 (6). Defense counsel raised two addi tional mitigating

factors on appeal. It was c ontended the petitioner actedunder strong provocation, Tenn. CodeAnn. § 40-35-113(2); and the petitioner, although guilty of th e cr ime, committed the offense under such unusual circumstances

that it is unlikelya sustained intent to vio late the law motivated his conduct. Tenn. Code Ann. § 40-35-113(11). This court rejected bo th of these mitigating factors. This court agrees wi

th the position advanced by the state. Assuming arguendothe trial court erroneously appl ied enhancement f actor (13)(C) as the petitio ner argues, the petitioner

has failed to e stablished how he was prejudiced. The fact a trial court erroneously uses an enhancement factor does not eq uate to the reduction of a sentence. See State v. Parker , 932 S.W.2d 945, 957 (Tenn. Crim. App.) , per . app . denied (Tenn. 1996); State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995); State v. Keel , 8829

S.W.2d 410, 423 (Tenn. Crim. App.), per . app . denied , (Tenn. 1994). This court parenthetically notes no au thor ity, except the applicable code section, is cited to support the argument advanced in su pport of this issue. This cons titutes a waiver of the issue. Tenn. R. App. P. 27(a)(7). Nor is there a citation of the record contained in the argument portion of the brief. Tenn.R. App. P. 27(a)(7) and ( g); Tenn. Ct. Crim. App. R. 10(b). Moreover, there is no evidence contained in the record w hich supports

this issue and the effect it may have had upon the trial court. Tenn. R. App. P. 24(b). Nevertheless, this court has considered the issue upon the merits. This issue is without merit.

___________________ ______________________ __ _ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ WILLIAM M. BARKER, JUDGE

______________________________________ JOE G. RILEY, JUDGE