# FILED August 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CR-00535 ) Appellee, ) ) ) SCOTT COUNTY VS. ) ) HON. LEE ASBURY ERIC CREEKMORE, ) JUDGE ) Appe llant. ) (Po st-C onvi ction Relie f - Vo lunt ary ) Manslau ghter)

FOR THE APPELLANT : FOR THE APPELLEE : MAX E. HUFF JOHN KNOX WALKUP 115 Litton Road Attorney Generaland Reporter Oneida, TN 37841 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 WILLIAM PAUL PHI LLIPS Distri ct Attorney General P. O. Box 10 Huntsvil le, TN 37756

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE- 2
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## OPINION Appellant

Eric C reekm ore ap peals the trial c ourt's d enial o f his petiti on for post-convi ction relief . He presents t he followi ng issue for review: whether the trialc ourt er red in denyi ng Appellant' s petiti on for post- convicti on relief based upon the ine ffective a ssista nce o f coun sel. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL

BACKGROUND On July 8, 199 6 Appellant plea ded guilty in the Sco tt County Crim inal Court to vol unta ry man slau ghte r. Heagreed to be sentenced as a Range III pe rsistent offender to fifteen years in carce ration w it h the Tennessee Department of Correction. On No vemb er 17, 19 96, App ellant f iled a pro se petition for p ostconvicti on relief. This petition was amended by appointed counsel on March 26, 1 997. Following a hearing, t he trial court dismissed Appellant's p etiti on o n August 20, 1997. Specifically, Appellant al leges thefoll owing deficiencies i n defense counsel's r

epresentati on: (1) Fail ure to keepconfiden tial the locatio n of the kn ife used to kil l Mr. Wayne Dolan; (2) failure to with draw from representing Appellant once counsel became aware that he coul d be a witness due to his involvement in the chai n of custody of the kni fe; (3) failure to file a motion to suppress Appellant's statements; (4) f ailure to insist that Appe llant refuse the State's p lea offer an d opt to g o to trial.- 3
- II.POST-CONVICTI ON RELIEF Appellant

contends that

the tri al court erred in denyi ng his petition for p ostconvic tion relie f base d upo n the in effective assista nce o f coun sel. In post-convi ction proceedings, the Appellant bears the burden of provi ng the allegat ions rais ed in the pet ition by c lear and convi ncing eviden ce. Tenn. Code Ann. § 4 0-30-21 0(f). See also Sco tt v. State , 936 S.W.2d 271, 272 (Tenn. Cri m. App. 1996). Moreov er, the t rial cour

t's fi ndi ngs of fact are concl usive on appeal unless the ev ide nce pr epond erates a gainst the judgm ent. Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996); Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

EFFECTIVE A SSISTANCE OF COUNSEL Appe llant's only c onte ntion o n this a ppea l is that th e trial co urt erre d in denying his pe titi on f or post-conv ictionrelief based upon Appellant's all egation that he receive d ineffe ctive as sistan ce of c ouns el. The Sixth Amendment provi des in p art, "In allcriminalprosecuti ons, the accused shall enj oy the ri ght . . . to h ave the assista nce o f coun sel for h is defens e." U.S. C onst. a men d. 6. Sim ilarly , th e Tennessee Constitut ion guarantees an ac cuse d "the rig ht to be heard by him self a nd his co unsel. . . " Tenn. Const. art . I § 9. In Strickl and v. Washington , the United States Supr eme Court articulated a two-pro ng test for c ourts to em ploy in eva luati ng claims of ineffective assistance of counsel. 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 6 74 (1984). The Tennessee Supreme Court adopted Strick land 's t wo-pa rt test in Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990) . The Strickl and Court began i ts analys is by no ting tha t "The benc hma rk for jud ging a ny cla im o f ineffecti veness must be whether counsel 's conduct so u n der mi ned the proper- 4
- functioni ng of the adversarialprocess that the t rial cann ot be relied on as having produce d a ju st result." Strickl and , 104 S.Ct. at 2064. When a convicted de fendant challenges t he effective assistance of counsel i n a post-convi ction proceeding, the Appellant bears the burden of establi shing (1) deficient representat ion of counsel and (2) prejudi ce res ulting from that deficien cy. Strickl and , 104 S.C t. at 2064; Powe rs v. State , 942 S.W.2d 551, 558 (Tenn. Cri m. App. 1996 ). App ellant m ust pro ve that c ouns el's rep resen tation fe ll b elow a n objective standard of reaso nablen ess. Strickl and , 104 S.C t. at 2064. Th is Court is not requ ired to con sider the tw o prong s of Strickla nd in any particular orde r. Harris v. State , 947 S.W.2d 156, 163 (Tenn. Cr im. App. 1996). "Moreov er, if the Appellant

fails to e stablish one prong, a reviewing court need not consider

the other." Id. With reg ard to counsel' s defici ent performance, the proper m easure is th at of reaso nablen ess un der preva iling profes sional no rms. Id. (citi ng Strickl and , 104 S.C t. at 2065). Put differ ently, counsel's per

formance is required to be "within the rang e of comp etence dem anded of a ttorneys in cri minal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn . 1975); Harris , 947 S.W.2d at 163. Respect in g the prejud ice prong of Strickl and , the Appell ant must establ ish that "there is a reaso nable p robability that, but forcounsel's unpr

ofessionalerrors, the result of the procee ding would h ave been d ifferent. A reas onab le prob ability is
a probability

sufficient

to undermine confidence in theoutcom e." Strickl and , 104 S.Ct. at 2068. The Strickl and Court emphasized that "Judicialscrutiny of counse l 's performance must b e highly de ferential." Id. at 2065 . "A `fair asse ssme nt . . . requiresthat every e ffort be m ade to e liminate the distorting effects of h indsight, to recons truct the circ umsta nces o f counse l's challeng ed con duct, and to evaluate the conduct f rom coun sel's perspe ctive at the tim e.'" Goad v. State , 938- 5
- S.W.2d 363, 369 (Tenn. 1996)(quoting Strickl and , 104 S.Ct. at 20 65). The m ere failure of a pa rtic u lar tactic or strate gy doe s not p er se e stablis h unre ason able representat ion. Id. at 369 . How ever, th is Cou rt will defer to cou nsel's tacticaland strategi c choices onl y where those choi ces are informed ones predicated upon adequate preparat ion. Goad , 938 S.W .2d at 369 ; Hellard v. S tate , 629 S.W.2d 4, 9 (Tenn. 1 982). Regarding Appellant' s first alleged def ici ency, he speci fically complains thatAttorney Charlie All en, Jr., ren de red inadequate representat ion by (1) discoveri ng the locat ion of thekni fe used to kill the victim; (2 ) having th e knife broughtto Allen' s office; and (3) s urrenderi ng the knife to authorities. Both the State and Ap pellant ag ree that on ce Attorney Allen was i n possession of the knife, he was bo th legally an d ethically o bliged to surrender it to police. H owever, Appellant

contends thathis attorne y perform ed deficie ntly by taking steps to procure the knife. Appellant claims that

by procuring t he weapon and givi ng it to the authorit ies, counseleviscerated any defense whi ch Appellant may have had and weakened Appellant's bargaining positi on in plea negotiati ons. Although the Ten nesse e Cod e of Pr ofessionalResponsibil ity and t he standardsdema nded of cri minal defense at torneys are not necessari ly coextensive, the Code of Professional Responsi bilit y does offer

guidan ce as to the approp riate standards of professi onalism demanded in cr iminal cases. DR 7- 102(A) provides i n part, " (A) In the representat ion of a client, a lawyer s hall not: (3) Conc eal or k nowin gly fail to di sclose that which the lawyer is requi red by law to reveal." DR 7-1 02(A)(3). Attorney Allen test ified at

the post-convicti on hearing that Appellant "prob ably told me more li es. . . than any other client I've ever had." Al len stated that App ellant said, b oth in his statements to pol ice and in his initial statem ents- 6
- to Mr. Allen, that Wayne Dolan had drawn the knife on Appel lant and t hat Appellant

tookthe knife from Dolan and s tabbe d him . More over, A ppella nt told the police t hat after

stabbing Dolan, Appellant threw dow n the knife b efore he left the tavern par king lot where the stabbi ng occurred. According to Mr . Allen, he explained to Appellant t hat if the knife wa s, in fact, Do lan’s, then locating th e knife would strengthen Appel lant's case. This prompted App ellant t o reveal t hat he had hidden the knife near a water heater in Charli e Stephens' home in K entucky. Mr. Allen tel ephoned Charlie Stephens and aske d him to look for a kn ife in his basement behind t he water heater . Because of ru mors that the victi m had human immunodeficiency virus (HIV), Mr. Allen directed Stephens t o wear gloves and to place t he kni fe into a plastic ba g and s eal it. Steph ens co mplied with Attorney Allen's request

to bring t he knife to Allen's office. Mr. All en telephoned Detective Lewallen and told h im to com e and g et the knife

. Contradict ing Mr. Allen' s testi mony, Appellant stated that Mr. Allen cussed Appellant

and told App ellant that he knew that Appellant wa s lyi ng . Therefore, Appe llant disclos ed the loc ation of the knife. In its order dis missing Appella nt's petition, th e trial court c o rrectly concluded that

Mr . Alle n did not per form defici ently by

discoveri ng the locat ion of the knife and by having it brought to his off ice. Mr. Allen, oper ating under informati on given him by Appel lant to the effect that the weapon was the victim's, made a reasonable st rategic dec ision t hat turni ng o v er the knif e to authorities would strengthen Appel lan t's case and buttress his self-defen se theory. Moreover, nothing in therecord ind icates tha t the knife w as som ehow c rucial to the prosecuti on. Thus, Appell ant has fai led to demonstr ate p rejud ice from counsel's act ion.- 7
- Appe llant's secon d allegati on of ineffective a ssistance of co unsel is that Mr. Allen shou ld have withdrawn from representing Appell ant once cou nselbec ame aware that he po tentially cou ld be a witn ess du e to his invo lveme nt in the chain of custody of the knife . DR 5-1 02(B) p rovides in p ertinent pa rt, "(B) If , af ter undertakingemployment in contemplated or pendi ng liti gation, a lawyer l earns or it is obvious that

the lawyer . . . may be called as a wi tness. . . the l awyer may continue the representat ion unti l it i s apparent that the testi mony is or may be prejudici al to the cl ient."DR 5-10 2(B). Att orney All en testi fied that he was not concerned that he w ould ha ve been in the cha in of custo dy ha d the case proceede d to trial and had D etective Lewallen been cal led to testify. Hence, he
saw no need to withdraw from rep resenting Appella nt. Moreover, i t is si gnificant thatMr. Allen discov ered th e loca tion of th e knife only be caus e App ellant to ld him where it was hi dde n. Ultim ately, Appellant and the prosecuti on agreed upon a plea bargain, t herebyavoidin g trial. Thus, it i s diffi cult to conclude that Appellant was, in any way, prejudi ced by Mr. Allen' s fail ure to withdraw. Ap pellan t's third co mpla int is tha t Mr. Alle n sho uld ha ve filed a motio n t o suppress Appellant's statements. Appellant c laims that he was intoxi cated at the ti me that he gave hi s statement. At the p ost-co nvic tion heari ng, Appellant conceded that the policeadministered the Miranda warnings to him and that he signed a waiver of ri ghts form before givi ng his statem ent. Be fore giv ing his statem ent, Appellant

denied being intoxi cated. Detect ive Randy Lewall en of the Scott Coun ty Sheriff's D epartm ent te stifi ed tha t when he too k App ellant's statem ent, Appellant i nformed Lewallen that he had been d rinking b u t was not intoxi cated. Detecti v e Lewallen f urther testifi ed that because Appel lant "appeared to be on the ve rge of being intoxi cated," Lewal len asked Appell ant- 8
- several questions to ensure that Appellant was thinking cl early. Lewallen t hen went forwardwith the i nterrogat ion. Mr. Allen explainedthat he di d not move to suppre ss Appellant 's statement fortwo reasons . First, according to Allen, A ppellant advi sed hi m that he had been properly Mirandized . Second, Appell ant's statement was helpf ul to the defense becau se App ellant's state ment in dicated th at he s tabbe d the vic tim in self-defense. Indeed , Allen state d that had the case procee ded to trial, he w ould have likedfor Appell ant's statement to have been admitted into evid ence . This is a reaso nable tac tical decisio n, and w e will not sec ond-gu ess it. Regarding Appellant' s asserti on thathe was intoxi cated when he gave h is statem ent, we emphasize that " [I]ntoxicati on or mental unsoundness is not al one suffic ientto b ar t he i ntr oduc ti on of stateme nts mad e by an accused if the evidence also shows the accuse d was cap able of unde rstanding his ri g hts." State v. Bell , 690 S.W .2d 879, 882 (Tenn. Crim . App. 1985 ). Appe llant's final co mpla int is that Mr. Allen render ed ineffective assistance by coercing hi m into signi ng the pleaagreement. Appell ant contends t hat he did not sign the pl ea agreement freely , knowingl y, and voluntarily. In Hill v. Lockhart , 474 U.S. 52, 59, 106 S.C t. 366, 369-70, 88 L.Ed.2d 203 (1985) , the United States Supr eme Court held t hat the two- prong analysi s of Strickl and v. Washington for evaluati ng ineffective assistance of counsel claims applies t o plea agreements. In order t o satisf

y the "prejudice" prong, the acc used must demonstrate " that there is a reasonab le probability that, but for coun sel's errors, he wou ld not have pleaded guilty

and would have i nsisted on g oing t o trial." Hill v. Lockhart , 106 S.Ct. 366, 370. Appellant

testified at the hearing on his pe tition for post-c onvicti on relief thatMr. Allen neg lected to explai n all of his constitutionalrights t o him, but he- 9
- could not recallwhich righ ts Allen f ailed to discuss. Upon being questi oned by the court, Appel lant stated thathe rec alled th e cou rt advisin g him of all of h is rights befo re he en tered his g uilty plea. Attorney Alle n testified that h e and Appellant discussed the differ ent degrees of homicide and the v arious sentencing ranges. Allen averred that there
was no ques tion tha t Appe llant un dersto od all that he and Appel lant dis cussed. There is adeq uate p roof in th is reco rd that c ouns el did e xplain Appellant's ri ghts. Moreover, Appellant conceded that t he court had advised him of all of h is rights before he entered his plea . Base d on th is record, it is cl ear that Appel lant's plea was entere d freely, voluntarily, and know ingly. The judgm ent of t he trial court dism issing Ap pellant's p etition for po stconvicti on relief

is aff irmed.

____________________________________

JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ J. CU RWOOD WITT, JR. , JUD GE