FILED

August 10, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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

)

Appellant. ) (Post-Conviction Relief - Voluntary 

) Manslaughter)

FOR THE APPELLANT: FOR THE APPELLEE:

MAX E. HUFF JOHN KNOX WALKUP

115 Litton Road Attorney General and Reporter

Oneida, TN 37841

TODD R. KELLEY

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

WILLIAM PAUL PHILLIPS

District Attorney General

P. O. Box 10

Huntsville, TN 37756

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Eric Creekm ore appeals the trial court's denial of his petition for

post-conviction relief. He presents the following issue for review: whether the

trial court erred in denying Appellant's petition for post-conviction relief based

upon the ineffective assistance of counsel.

After a review of the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

On July 8, 1996 Appellant pleaded guilty in the Scott County Criminal Court

to voluntary manslaughter. He agreed to be sentenced as a Range III persistent

offender to fifteen years incarceration with the Tennessee Department of

Correction. On November 17, 1996, Appellant filed a pro se petition for postconviction relief. This petition was amended by appointed counsel on March 26,

1997. Following a hearing, the trial court dismissed Appellant's petition on

August 20, 1997.

Specifically, Appellant alleges the following deficiencies in defense

counsel's representation:

(1) Failure to keep confidential the location of the knife used

to kill Mr. Wayne Dolan;

(2) failure to withdraw from representing Appellant once

counsel became aware that he could be a witness due to his

involvement in the chain of custody of the knife;

(3) failure to file a motion to suppress Appellant's statements;

(4) failure to insist that Appellant refuse the State's plea offer and

opt to go to trial.
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II. POST-CONVICTION RELIEF

Appellant contends that the trial court erred in denying his petition for postconviction relief based upon the ineffective assistance of counsel.

In post-conviction proceedings, the Appellant bears the burden of proving

the allegations raised in the petition by clear and convincing evidence. Tenn.

Code Ann. § 40-30-210(f). See also Scott v. State, 936 S.W.2d 271, 272 (Tenn.

Crim. App. 1996). Moreover, the trial court's findings of fact are conclusive on

appeal unless the evidence preponderates against the judgment. Tidwell v.

State, 922 S.W.2d 497, 500 (Tenn. 1996); Campbell v. State, 904 S.W.2d 594,

595-96 (Tenn. 1995); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).

EFFECTIVE ASSISTANCE OF COUNSEL

Appellant's only contention on this appeal is that the trial court erred in

denying his petition for post-conviction relief based upon Appellant's allegation

that he received ineffective assistance of counsel.

The Sixth Amendment provides in part, "In all criminal prosecutions, the

accused shall enjoy the right. . . to have the assistance of counsel for his

defense." U.S. Const. amend. 6. Sim ilarly, the Tennessee Constitution

guarantees an accused "the right to be heard by himself and his counsel. . . "

Tenn. Const. art. I § 9. In Strickland v. Washington, the United States Supreme

Court articulated a two-prong test for courts to em ploy in evaluating claims of

ineffective assistance of counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Tennessee Supreme Court adopted Strickland's two-part test in

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The Strickland Court began

its analysis by noting that "The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper
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functioning of the adversarial process that the trial cannot be relied on as having

produced a just result." Strickland, 104 S.Ct. at 2064. When a convicted

defendant challenges the effective assistance of counsel in a post-conviction

proceeding, the Appellant bears the burden of establishing (1) deficient

representation of counsel and (2) prejudice resulting from that deficiency.

Strickland, 104 S.Ct. at 2064; Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim.

App. 1996). Appellant must prove that counsel's representation fell below an

objective standard of reasonableness. Strickland, 104 S.Ct. at 2064. This Court

is not required to consider the two prongs of Strickland in any particular order.

Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996). "Moreover, if the

Appellant fails to establish one prong, a reviewing court need not consider the

other." Id. With regard to counsel's deficient performance, the proper measure

is that of reasonableness under prevailing professional norms. Id. (citing

Strickland, 104 S.Ct. at 2065). Put differently, counsel's performance is required

to be "within the range of competence dem anded of attorneys in criminal cases."

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Harris, 947 S.W.2d at 163.

Respecting the prejudice prong of Strickland, the Appellant must establish that

"there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome." Strickland, 104

S.Ct. at 2068.

The Strickland Court emphasized that "Judicial scrutiny of counsel's

performance must be highly deferential." Id. at 2065. "A `fair assessment . . .

requires that every effort be made to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the time.'" Goad v. State, 938
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S.W.2d 363, 369 (Tenn. 1996) (quoting Strickland, 104 S.Ct. at 2065). The mere

failure of a particular tactic or strategy does not per se establish unreasonable

representation. Id. at 369. However, this Court will defer to counsel's tactical and

strategic choices only where those choices are informed ones predicated upon

adequate preparation. Goad, 938 S.W .2d at 369; Hellard v. State, 629 S.W.2d

4, 9 (Tenn. 1982).

Regarding Appellant's first alleged deficiency, he specifically complains

that Attorney Charlie Allen, Jr., rendered inadequate representation by (1)

discovering the location of the knife used to kill the victim; (2) having the knife

brought to Allen's office; and (3) surrendering the knife to authorities. Both the

State and Appellant agree that once Attorney Allen was in possession of the

knife, he was both legally and ethically obliged to surrender it to police. However,

Appellant contends that his attorney performed deficiently by taking steps to

procure the knife. Appellant claims that by procuring the weapon and giving it to

the authorities, counsel eviscerated any defense which Appellant may have had

and weakened Appellant's bargaining position in plea negotiations.

Although the Tennessee Code of Professional Responsibility and the

standards demanded of criminal defense attorneys are not necessarily coextensive, the Code of Professional Responsibility does offer guidance as to the

appropriate standards of professionalism demanded in criminal cases. DR 7-

102(A) provides in part, "(A) In the representation of a client, a lawyer shall not:

(3) Conceal or knowingly fail to disclose that which the lawyer is required by law

to reveal." DR 7-102(A)(3).

Attorney Allen testified at the post-conviction hearing that Appellant

"probably told me more lies. . . than any other client I've ever had." Allen stated

that Appellant said, both in his statements to police and in his initial statem ents
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to Mr. Allen, that Wayne Dolan had drawn the knife on Appellant and that

Appellant took the knife from Dolan and stabbed him. Moreover, Appellant told

the police that after stabbing Dolan, Appellant threw down the knife before he left

the tavern parking lot where the stabbing occurred. According to Mr. Allen, he

explained to Appellant that if the knife was, in fact, Dolan’s, then locating the knife

would strengthen Appellant's case. This prompted Appellant to reveal that he

had hidden the knife near a water heater in Charlie Stephens' home in Kentucky.

Mr. Allen telephoned Charlie Stephens and asked him to look for a knife in his

basement behind the water heater. Because of rumors that the victim had

human immunodeficiency virus (HIV), Mr. Allen directed Stephens to wear gloves

and to place the knife into a plastic bag and seal it. Stephens complied with

Attorney Allen's request to bring the knife to Allen's office. Mr. Allen telephoned

Detective Lewallen and told him to com e and get the knife. 

Contradicting Mr. Allen's testimony, Appellant stated that Mr. Allen cussed

Appellant and told Appellant that he knew that Appellant was lying. Therefore,

Appellant disclosed the location of the knife. 

In its order dismissing Appellant's petition, the trial court correctly

concluded that Mr. Allen did not perform deficiently by discovering the location

of the knife and by having it brought to his office. Mr. Allen, operating under

information given him by Appellant to the effect that the weapon was the victim's,

made a reasonable strategic decision that turning over the knife to authorities

would strengthen Appellant's case and buttress his self-defense theory.

Moreover, nothing in the record indicates that the knife was somehow crucial to

the prosecution. Thus, Appellant has failed to demonstrate prejudice from

counsel's action.
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Appellant's second allegation of ineffective assistance of counsel is that Mr.

Allen should have withdrawn from representing Appellant once counsel became

aware that he potentially could be a witness due to his involvement in the chain

of custody of the knife. DR 5-102(B) provides in pertinent part, "(B) If, after

undertaking employment in contemplated or pending litigation, a lawyer learns

or it is obvious that the lawyer. . . may be called as a witness. . . the lawyer may

continue the representation until it is apparent that the testimony is or may be

prejudicial to the client." DR 5-102(B). Attorney Allen testified that he was not

concerned that he would have been in the chain of custody had the case

proceeded to trial and had Detective Lewallen been called to testify. Hence, he

saw no need to withdraw from representing Appellant. Moreover, it is significant

that Mr. Allen discovered the location of the knife only because Appellant told him

where it was hidden. Ultimately, Appellant and the prosecution agreed upon a

plea bargain, thereby avoiding trial. Thus, it is difficult to conclude that Appellant

was, in any way, prejudiced by Mr. Allen's failure to withdraw.

Appellant's third complaint is that Mr. Allen should have filed a motion to

suppress Appellant's statements. Appellant claims that he was intoxicated at the

time that he gave his statement. At the post-conviction hearing, Appellant

conceded that the police administered the Miranda warnings to him and that he

signed a waiver of rights form before giving his statement. Before giving his

statement, Appellant denied being intoxicated. Detective Randy Lewallen of the

Scott County Sheriff's Department testified that when he took Appellant's

statement, Appellant informed Lewallen that he had been drinking but was not

intoxicated. Detective Lewallen further testified that because Appellant

"appeared to be on the verge of being intoxicated," Lewallen asked Appellant
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several questions to ensure that Appellant was thinking clearly. Lewallen then

went forward with the interrogation.

Mr. Allen explained that he did not move to suppress Appellant's statement

for two reasons. First, according to Allen, Appellant advised him that he had

been properly Mirandized. Second, Appellant's statement was helpful to the

defense because Appellant's statement indicated that he stabbed the victim in

self-defense. Indeed, Allen stated that had the case proceeded to trial, he would

have liked for Appellant's statement to have been admitted into evidence. This

is a reasonable tactical decision, and we will not second-guess it.

Regarding Appellant's assertion that he was intoxicated when he gave his

statement, we emphasize that "[I]ntoxication or mental unsoundness is not alone

sufficient to bar the introduction of statements made by an accused if the

evidence also shows the accused was capable of understanding his rights."

State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985).

Appellant's final complaint is that Mr. Allen rendered ineffective assistance

by coercing him into signing the plea agreement. Appellant contends that he did

not sign the plea agreement freely, knowingly, and voluntarily. In Hill v. Lockhart,

474 U.S. 52, 59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985), the United States

Supreme Court held that the two-prong analysis of Strickland v. Washington for

evaluating ineffective assistance of counsel claims applies to plea agreements.

In order to satisfy the "prejudice" prong, the accused must demonstrate "that

there is a reasonable probability that, but for counsel's errors, he would not have

pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 106

S.Ct. 366, 370.

Appellant testified at the hearing on his petition for post-conviction relief

that Mr. Allen neglected to explain all of his constitutional rights to him, but he
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could not recall which rights Allen failed to discuss. Upon being questioned by

the court, Appellant stated that he recalled the court advising him of all of his

rights before he entered his guilty plea. 

Attorney Allen testified that he and Appellant discussed the different

degrees of homicide and the various sentencing ranges. Allen averred that there

was no question that Appellant understood all that he and Appellant discussed.

There is adequate proof in this record that counsel did explain Appellant's rights.

Moreover, Appellant conceded that the court had advised him of all of his rights

before he entered his plea. Based on this record, it is clear that Appellant's plea

was entered freely, voluntarily, and knowingly.

The judgment of the trial court dism issing Appellant's petition for postconviction relief is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

J. CURWOOD WITT, JR., JUDGE