### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J anuary

22, 2003 JOSEPH SHEPHERD v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Monroe County Nos. 97-127 and 97-128 William H. Inman, Judge

No. E2 002-0 1455- CCA-R3 -PC September 17, 2003
Prior to this appe al, the petiti oner, Jose ph Shephe

rd, was c onvicted

of involun

tary manslaug

hter in one proceeding, and, in a separa te procee di ng, he was convicted of felony murder and aggra

vated assault. He is currently

serving a life sentence. The pe titioner filed a petition for post-conviction relief in ea ch case , rais ing seve ral issue s, includi ng inef

fective assistanc e of coun sel. The p ostconviction court denied relief in both cases and the petitioner appe aled. Upon review of the record and the parties’ briefs, we affirm the judg ment of the post-conviction court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.
N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined. Richard L. Burnett, Knoxville, Tennessee , for the appellant, Joseph Shepherd.
Paul G. Summers, Attorney Gene ral and Reporter; Angele

M. Greg ory , Assistan

t Attorne y General ; Jerry N. Estes, District Attorney Genera l; and Willia

m Reedy , Assistan

t District Attorney Genera l, for the appellee, State of Tennessee.
OPINION

I. Fact ual Backgro

und
In a previous opinion, this cour t briefly summarized the procedural history of the petitioner’s cases:
In April 1991, a jury convic ted the petitioner of the felony murder of Roxanne Wood son an d the aggravated a ssault of law enforcement of ficers investigating the case. The [petitioner] was senten ced t o death for the felony

murder and to two-to-five years for the1 At the p ost-co nviction hearin g, this do cum ent is often referre d to a s “the wa iver.”
2 In his bri ef, the appellant expl ains tha t “ Ms. Barnet t t est if ied .

. . tha t the pet it ioner had on oc casi on provided her with c ertain d rugs, an d furthe r testified as to the effe cts said d rugs ha d up on he r.” -2- aggravated

assault. On May

30, 1995, o

ur supre me court reversed the death sentence and remanded th e case for resentencing. State v. Shepherd , 902 S.W.2d 895 (Tenn. 1995). Th e peti tioner was resentenced

to life imprisonment for his felony murde r conviction on April29, 1997. In a separate trial, the petitioner was convicted of the seconddegree murder of Ka thy Clowers and

sentenced to ninety- nine ye ars imp risonment. This court reversed the second deg ree murder conviction and remande d the cas e for a new trial

. State v. Shepherd , 862 S.W.2d 557 (Tenn. Crim. App. 1992). Joseph Shepher

d v. State , Nos. E1999-0 1 279-CCA- R3-PC and E 1999-022 66-CCA-R3 -PC , 2000 WL 1742077 , at *1 (Tenn. Crim. App. at Knoxville, Nov. 28, 2000). Upon retrial of the Clowers case, the appellant was found guilty

of involuntary manslaug

hter, and he rece

ived a se ntence o f two to five yea rs inc arceration. Subsequent to his conviction, the petitioner filed a motion for

new tria l. While this motion was pending, our supreme court remanded the Woodson case for resentencing. Ther eafter, the petitioner entered into an ag reement with the Statein which he waived his right to appeal the Clowers case in exchange for a life sentence in the Woodson case. 1 In June

1997, the petitione r filed f or post-c onviction

relief in both cas es. The petitions on both the Clowers and Woodson cases were effectively consolidated for the post-conviction court’s review. See Shepherd , Nos. E1999-01279-CCA-R3-PC and E1999-02266- CCA-R3-PC , 2000 WL 1742077 , at *1. In case 97-127, the pe titioner raisedcomplaints concerning the Clowers c ase, and

in case 97-128, he raised

complain ts rega rding th e Woodson c ase. The

postconviction court init

ially dismissed b oth petitio ns as barred by the statute of limitations. Id. However, this cour

t re versed the post-conviction court’s ruling as to the petition involving the Woodson case, finding that the petition was timely filed. Id. at *4. This court further reversed the post-conviction court’s dismissal of the petition involving the Clowers case and remanded for further procee dings. Id. at *5. Thereafter, the post- convicti on court h eld a heari ng on bot

h petitions , first hearing proof reg arding the Clowers case, then listening to proof regarding the Woodson case.
At the post- conviction h earing, the petitioner first contended that bec ause there was no record of a ru ling on his motion for new trial in the Clowers case, the trial court retaine d or igina l jurisdiction over the case. The State argue d that bec ause the

appella nt waived his righ t to appeal i n the Clowers c ase in exchange for a lif e sentence in the

Woodson ca se, the a

ppella nt effectivel y withdrew his motion for new trial. Regarding the Clowers case, the appellant also complained that his counsel failed to perfect an appea l and that the trial court erred in allowing the testimonyof Ann Barne tt at trial

. 2-3-

Base d u pon the proof adduced at the post-conviction hearing , the post-conviction court deniedboth petiti ons. Specifically, the c ourt determined that the petitioner had not met his burden of establishing by c lear and convincing evidence a ny of the claims alleg ed in his post-conviction petitions.
On appeal, the petitioner raises the following issues for our review: (1) whether the petitioner was deniedthe effective assistance of counsel whe n his attorney failed to f

ile a notice of appeal and seek appella te review of the Cl owers c onviction ; (2) whe ther the petitione r was de nied his constitutional right to a fair trial when the trial court permitted the State to pre sent the testimony of Ann Barne

tt at the Clo wers tri al; (3) w hether t he orig in al t rial cou

rt retained juris diction in t his matter, as the pe

titioner’ s mo tions for ne w trial in the Clowers case were never r uled upon or otherwis e disposed of by the trial court; (4) whether the petitioner’s fundamental constitutional right to testify at the Wood son trial w as violated when his attorne ys fai led to allow him to testify, as requested by the petitioner; and (5) whether the petitioner received the ineff ective assis tance of counsel when his attorneys f ailed to interview and/or present certain witnesses and defense s at trial

. II. Analysis
To be successful in his claim for post- convicti on relie f, the pe titioner m ust prove all factual allegations containe d in his post-conviction petition by clear a nd convincing evidence. See Tenn. Code Ann. § 40-30-210(f) (1997). “‘Clear and c onvincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’” Statev. Holder , 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quot ing Hodgesv. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues reg arding the cre dibility of witnes ses, the weight and value to be accorde d their testimony, and the fac tual questions raised by

the evidence ad duced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we affo rd the post -conv icti on cou rt’s f indi ngs of fact the weight of a jury

verdict, with such findings being conclusive on appeal absent a showing that the evidence in the record preponder ates against those findings. Id. at 578.
Ad di ti on al ly, as the petitioner has claimed that he received the ine ffective assistance of counsel in both ca ses, we n ote that a claim of ineffective assistance of counsel is a mixed question of law and fact. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). In Fields v. State , 40 S.W.3d 450, 458 (Te nn. 2001) (citatio ns omitted) , our supr eme cour t explained

the stand ard of r

eview in cases of ineffe ctive as sistance

of counse

l: [A post -convic tion] court ’s findings of fact underly ing a cl aim o f ineffective assistance of cou nsel a re reviewed on appeal under a de
novo standard, accompanied with a presu mpti on th at tho se fin dings are correct unless the preponderance of the evidence is otherwise. However, a [post-convi ction] court’s conclusions of law --such as whether counsel’s performance was def icient or whether that deficiency

was prejudicial--are reviewed under a pure ly de novo-4- standard, with no presumption of corre ctne ss givento the [postconvicti on] court’ s conclus ions.
“To establ is h ineffective assistance of counsel, the petitioner be ars the burden of proving boththat counsel’s performance was deficient and tha t the deficiency

prejudiced the defense.” Goad v. State , 938 S .W.2 d 363, 369 (T enn. 1 996) ( citi ng Strickland v. Washington , 46 6 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). In evaluating whe ther the petitioner has met this burden, this court must determine whether coun sel’s performance was within the rang e of competence required of attorneys in criminal ca ses. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975).

A. 97-127 : The Clowe

rs Case
The proof at

the post-conviction hearing revealed that the pe titioner was represented by attorney Charles Co rn at tria

l. Corn tes tified tha

t the petit ioner exe cuted a w aiver of the right to appeal the Clowers case in exchange for the State a greei ng to a s entence

of life im

prisonme nt, instead of seeking the death penalty , in the Woodson case. Corn acknowledged that the waiver d id not specifically provide

that the motion for new tri al i n t he C lo wer s ca se w oul d be wit hdr awn . In connection with this issue, the following colloquy took place:
The Court: And at that time the motion for new trial in [the Clowers case] hadn’t beenruled u pon, but you just considered the wa iver of appeal t o take ca re of tha t.
Corn: I must

have thou ght that , Judge. I don’t remembe r, but I must have thou ght that

. Corn further

explained that the motion for new trial had been filed to preserve the petitioner’s right to appeal even though the jury delivered the desired outcome in the case, namely an involuntary manslaughter

conviction instead of a second degree murder conviction. Corn testified that he did notthink the petitioner had a meritorious appeal. Accordingly , counsel believed that the State’s proposal to not see

k the dea th penalty in the

Woodson case in exchange for the petitioner’s waiver of the right to appeal in the Clowers case wa s an “excellent agreement.”
Corn state d that there w as no i ndica tion that t he pet itio ner “di d not know w hat he was do ing” at the time of the waiver. Additionally , the petitioner did not app ear tobe under the influence of any drugs or intoxicants. Corn maintained that he would not have allowed the petitioner to execute the waiver if he had believed that the petitioner’s mind was af fected by drugs.3 Judge M ashburn originall y presided over the Clowers and Woodson cases. However, upon his demise, Judge

W eatherford p resided o ver the cases. -5- Cor n further related that he was sure that the wa iver of the petitioner’s right to ap peal th e Clowers case wa s announc ed in open court. 3 Corn a cknow ledged that a lett er he wr ote to Judge Weatherford

indicatedthat the petitioner wished to set aside his waiver of appeal. The letter, which wa s dated May 2, 1997, state s that the petitioner telephoned Corn, asking to set aside his waive r because his thinking

was distor

ted by chang es in

his blood pressure medication. Corn admitted that he did not file

any mo tions t o try to set aside the petitioner’ s waiver of the right to appeal the Clowers case. He explained that “once I do [a plea bargain] I don’t g o back on it.”
Reed Dixon, the petitioner’s co-counsel in the Woodson case, testified regarding the circumstances surround

ing th e petitioner’ s waiver of his right to appeal the Clowers case . Dixon recalled that the petitioner’s waiver of his right to appeal the Clowe rs case took plac e in open c ourt. Dixon clarified that he did not recall if the waiver was “executed” in open court.
Dixon stated that he had no reservations rega rding the petitioner’s ability to understand the waiver. Notably, Dixon averred that h e was “extremely impressed with [the petitioner’s] intelligence and his grasp of what

was going on.” Dixon also opined that had he known the petitioner wished to set aside the waiver of

his righ t to appea l, he woul d have a

ttempted t o dissuade the petitioner from such action because of

his concern that the petitioner would be sentenced to dea th in the Woodson case. The petitioner testified at the post-conviction hearingand ack nowledg ed that he

waived h is right to appeal in the Clowers case. However, af ter executing the waiver the petitioner contacte d Corn, advising Corn that he wanted to set aside the waiver because he was on new blood pressure medication which affected his thinking at the time he signed the waiver. The petitioner claimed that he “wasn’t thinking in a rational state of mind.” The petitioner f u rther c laimed tha

t he wanted to pursue a direct appeal of his sentence a nd conviction in the Clowers case.
After receiving a copy

of Corn’s letter to

Judge Wea

therfor d, the pet itioner be lieved th at his only availab le avenu e for re

lief was a post-conviction proceeding. Accordingly , the petitioner stated that he filed for post-conviction relief in June 1997 after he rea d Corn’s letter.
The petitione

r’s comp laints re gardin g the Clo wers ca se conce rn whether the pe

tit io ner’s waiver of appeal was knowingly and voluntarily made. The post-conviction court determined that in the Clowers case, the petitioner

alleges various grounds for relief, all of which he abandoned-offered no evidence thereon-except the issue of waiver of appeal. Petitioner concedes that he sig

ned a wa iver of h is appeal, but that he was taking blood pressur e me di ca ti on at th e t im e a nd wa s n ot th in ki ng cl ea rl y.-6- . . . The proof is clear that petitioner waived his right to appea l kn ow le dg ea bl y an d i nt el li ge nt ly.
As we earl ier rec ount ed, bo th Co rn and Dixo n test ified that t he pet itio ner was facing a possible death se nte nce in the W oodson ca se. I n fact, t he petitio ner was origina lly s entence d to death in the Woodson case, but this court remanded the case for r esentencing. As we noted, prior to resentencing the petitioner agreed to forf

eit an ap peal in the Clower s case in exchange for a life sentence in the Woodson case, thereby avoiding the death penalty . Furthermore, Corn testified that the petitione

r did not ha

ve a mer itorious c laim for a

ppeal in the Clowe

rs case because the petitioner received the most favorable outcome possible, an involuntary manslaughter conviction. Moreover, regarding the

petitioner’s waiver of his right to appeal, we note that a defendant must voluntarily waive this rig ht. See Carter v . State , 102 S.W.3d 113, 119 ( T enn. Crim. App. 2002). “ Further , the waiv er should be reduc ed to writ

ing in a d ocument s igned b y th

e defendant, subscribedto by

counsel, and clearly

reflecting the defendant’s awareness of the r ight to appeal and voluntar ily waiving it. ” Id. ; see also

Tenn. R. Crim. P. 37(d) (providing that if a defendant waives the right to

appeal, the waiver

should be in writing and should also “clearly reflect that the defendant was aware of the right and voluntar ily waived it”).
At the post-conviction hearing, the petitioner pres e nted no proof, aside from his own te st im on y, to indica

te that hismental sta

te at the t ime of the execution

of the wa iver wasadverse

ly affected by his medication. Contrarily, Corn and Dixon both asserted that there was no indication that the petitioner

was under the influence at the time he executed the wa iver. In the

order deny

ing the peti tion, th e post-conviction court stated that “[t]he proof offered by the State respecting the waiver of ap peal in the invol unta ry mansl aug hter

case is fully cred ited. ” We conclude that

the postconviction court did

not err in finding that the p etitioner

knowing ly

and volun

tarily waived h is right to appeal. See Tenn. R. Crim. P. 37(d); C arter , 102 S.W.3d a t 119; Floy d Campbell

v. State , No. M2001-00

408-CCA- R3-PC , 2002 WL 970441, at *5 (Ten n. Crim. App. at Nashville, May 10, 2002), perm. to appeal denied , (Tenn. 2002).
We further

conclude that such waiver effec tively acted a s an abandonment of the petitioner’s motion for new trial. See State v. Holder , 634 S.W.2d 284, 285 (Tenn. Cr im . App. 198 2); Tracy Ly nn Potte r v. Denise Margaret Kriley Potter , No. 13, 1989 WL 3134, at *2 (Tenn. Ct. App. at Knoxville, Jan. 20, 1989). Additionally, we note that a va lid waiver of

the right to appeal serves as a waiver of many

claims, such as the petitioner’s complaint regarding Ann Barnett’s testimony. See Tenn. Code Ann. § 40-30-2 06(g) ( 1997); see also Miller v. St ate , 54 S.W.3d 743, 747 (Tenn. 2001). Fi na ll y, in light of our determination that the petitioner’s waiver of his rig ht to appeal the Clowers case was valid , we conc lude that the petiti oner hasfailed to prove by clear and convincing evidence that Corn was ineffective in failing to seek appe llate review of that conviction.
B. 97-12 8: The Wood son Case4 As we have not ed, at the time of t

he Wood son tr ial the pet iti oner had been convict ed of second degr ee murder in the C lowe rs case and th e dire ct app eal in that c ase wa s pen ding. -7- Concerning the Woodson case, the petitioner raised the issues of whether he was denied the right to testify and whether he received the inef fective assistance of counsel. At the post-conviction hearin g, Corn testified that he advised the petitioner not to testify in the Woodson case, but he never informedthe petitioner that he could not testify. Corn opined tha t the petitioner was not a good witness and wo uld d amage his case. During a break in the Woods on trial pr

oceedin gs, Corn

again advised the petitioner against testify ing and the petitione

r agreed to not testify. The petitioner g ave Corn a written account of his version of events which was plac ed in the petitioner’s file at Corn’s office. Corn asserted that Judge Mashburn never told the petitioner that he could not testify . In s um, Corn stated that the petitioner voluntarily wa ived his right to testify. Regarding the petitioner’s claim that counsel did not adequately investig ate the case, Corn stated that he interviewed several witnesses that the petitioner asked him to interview. The petitioner informedCorn that these witnesses would b e helpfu l to the petitioner’s case. However, upon interviewing these witnesses, Corn deduced that the proposed witnesses had n othi ng but “speculation” to offer.
Dixon asserted that prior to the commencement of the Woodson case, Judge Mashburn ruled that the State would be able to cross-examine the petitioner rega rding the Clowers conviction. 4 Therefore, defense counsel did not prepare the petitioner to testify because the defense had n o intention of calling the petitioner to the stand. Regardless, during trial Judge Mas hburn re

versed h is earlier ruling a nd order ed that the State wo

uld not be a

llowed to c

ross-exa mine th e petiti oner regarding the Clowers conviction. Subsequent

to Judge Ma shburn’ssecond r uling, th e tri al court

allowed a

one and o ne-half to two ho ur brea k in t he pro ceedin gs to allow defense counsel to speak with the petitioner. Dixon stated that the petitioner wanted to testify , but he agreed not to afte

r counse l advised agains t it. Di xon explained that originally the de fense did not want the petitioner to testify because of th e possibility

that the jury would be told about the Clowers c onviction. Additionally, Dixon stated that he did not want the petitioner to testify beca use the petitioner’s version of events “did not ma ke common logical sense” a

nd “past e vents” of the petiti oner cou

ld be brou ght in

on cross-examination. Dixon maintained that the petitioner was not prohibited from testify ing, but the petitioner acceded to the advice of counsel and agreed not to testify. Billy Ray Shepherd, the pe

titioner’s brother, testified at the post-conviction hearing that he was never interviewed by defense counsel. Shepherd asserted t h at two weeks before Woodson’s body was disco vered on

his pare nts’ prop erty , Shepher

d had bee n on the pr

operty and did not notice a grave. The

petitione r was inc arcer

ated in No

rth Carol ina at thistime. Shepherd mad e no spec ific effort to make the police

aware of this fa ct. In explanation for his laxity, Shephe rd asserted, “I w as busy at the time my self, sir.”-8-

The petitioner testified that he thought he would be allowed to testify a t the Woodson trial until the defe

nse rest ed its ca se. He a sserted

that he ne

ver waiv ed his right to testif y; instead, the petitioner claimed t hat couns el and Judg e Mashbur n would not

allow him

to testify. The petitioner conceded that h e never heard J udge Mashburn forbid him from testifying , but “[t]hat’s the way I took it.” Additiona

lly, the petiti oner mai ntained t hat he as ked coun sel to inte rview se veral wi tnesses. The petitioner asserted that these witnes s es were present at trial, but defense c ounsel would not permit them to testify.
It is u nques tionable that a criminal defendant has a fundamental, c onstitutional right to testify at trial. See Momon v. State , 18 S.W.3d 152, 161 (Tenn. 1999). This fundamental right may only be waived by the de

fendant himself. Id. “Generally , a right that is fundamental and personal to the defendant may only

be waived if there is evidence in the rec ord demonstrating ‘an i ntentional relinquishment

or abandonment of a known right or privilege.’” Id. at 161-62. A waiver of this right may not be presume d by a silent rec ord. Id. at 162.
Momon outlined p

rocedur al safe guard s t o be em pl oye d to ensur e that a d efenda nt’s knowi ng, vo lu nt ar y, and intelligent waiver would be reflected on the record

. Id. However, because Momon served o nly

to clarify the

existing law, “the mer

e failur e to follow

these g uideline s will not in and of itself sup port a cl aim

for deprivation of the constitutional right to testify if there is evidence

in the record to establish that the right was otherwise per sonally waived by the defendant.” Id. at 163.
It is undisputed that the tr

ial in the Wo odson ca se occur red prio r to Momon . Therefore, the failure to have the petitioner waive his right to testify on the record is not determinative of the issue. The post-conviction court accredited Corn’s testimony concerning the petitioner’s waiver of the right to testify after

being thoroughly

apprised of the dangers of testify ing. See Kong C. B ounnam v
. State , No. W2001-02603-CCA-R3-PC, 2002 WL 31852865, at *10 (Tenn. Crim. App. at Jackson, Dec. 20, 2002), perm. to appeal denied , (Tenn. 2003). Th e evidence does not preponderate agains t this finding.
The petitioner also complains that counsel were ineffective in fa iling to “interview and/or present certain witnesses and defenses at trial.” The petitioner makes no further mention of which “defen ses” counsel f

ailed to pursue. Thus, we are

precluded from addressing this claim. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Additionally, the only uncalled

witness the petitioner specifically

alleged counsel should have called wa s his brother, Billy Ray Shepherd. Shepherdtestifie d at the po st-convi ction hea ring tha t he was n ot in terviewed by counsel prior to trial. She

pherd sta ted that two weeks prior

to the discovery of Woodson’s body there was no grave at the location where the body was found. He also stated that during this time the petitioner was incarcerated in North Carolina. Shepher d exp lained that he did not contact counsel or the authorit ies t o relate this information because he was “busy .” Dixon testified that Corn was responsi ble for in tervi ewing w itnes ses pr ior to trial . Corn testi fied t hat he had se veral m eetin gs with the petitioner’s family and e ncouraged them to ask family members to come forward if they had any-9-

information regarding the ca se. The post-conviction court specifically note d that

the testimony of Shepherd “is not credited.”
Ac co rd in gl y, we conclude that the petitioner has failed to meet his burden of e stablishing by clear and convincing

evidence that counsel was deficient in failing to interview Shepherd and that such deficiency

prejudiced the petitioner. See Ralph E. Thompson, Jr. v. State , No. E2001-00003- CCA-R3-PC , 2002 WL 392 8 20, at *10 (Tenn. Crim. App. at Knoxville, Mar. 14, 2002), perm. to appeal denied , (Tenn. 2002). This issue is without merit.
III. Conclusion
Based u pon the fo

regoing, we a

ffirm the judgmen t of the po st-convi ction cou rt.

___________________________________ NORMA McGEE OGLE, JUDGE