1 The direct a ppeal opini on ref ers to the pet it ioner

by the name “Joanna Gail Rosa.” In this appeal, however, the pe titioner’s first na me is listed as “Jo ann” rather th an “Jo anna .” 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs S eptem

ber 25, 200 2
JOANN GAIL ROSA

v. STATE OF TEN NESSEE
Direct Appeal from the Criminal Court for K nox County No. 70102 Richard R. Baumgartner, Judge

No. E2 002-0 0437- CCA-R3 -PC March 17, 2003

The petitioner appeals the dismissal of her petition for post-conviction relief from her conviction for first degree murder, arg

uing that the post-conviction court erred in finding that she received effective assist ance of trial c ounsel. A fter a thorough

review o f the re cord, we conclude that the p eti tione r failedto demonst

rate eit her a deficienc y in

counsel’ s perfor

mance or a resultin g prejud ice to her case. Accordingly , we affirm the dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined.
Leslie M. Jeffress, Knoxville, Tennessee, for the a ppellant, Joann Gail Rosa.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Boucek , Assistan t Attorne y General ; Randall E. Nicho ls, District Attorney Gene ral; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION
FACTS In 1996, the petitioner, Joann Gail Rosa, was convicted by a Knox County Criminal Court jury of first d egree premeditated mur

der and w as sente

nced to li fe impris onment wit h the possibility of par ole. Her c onviction and sentence were affirmed by this court on direct appeal, and her application for per

mission to a

ppeal to t he supre me court was denied

. See State v. Ro sa , 1 996 S.W.2d 833, 840 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1999). The petitioner’s conviction stemmed f

rom her p articipa

tion with a

codefe ndant in st

rangling a man

to death t

o-2-

prevent his reporting that the petitioner, her codefenda nt, and a third individual had robbed a service station. The direct

appeal o pinion pro vides the

following

accoun t of the c ircumsta

nces tha t led to the murder:

On March 25, 1995, the defendant; her co-def endant, D ennis Halcomb; the murder victim, James Dalton; and two friends , Teresa Dake and Larry

Davis, re nted two a

djoining motel room s in Athens , Tennessee, and spent

the evening “party

ing.” The next day , the group decided to spend another

evening at the mote

l. That ev ening, while Dalton and Davi s remained at the motel, the defendant, co-defendant Halcomb, and Dake robbed the ga s station where Dake worked. Early the next morning, on Marc h 27, 1995, the group left Athens and drove to Knoxville, stopping at another motel, where they again rented adjoi ning rooms. The defendant, co-defe ndant Hal comb , and Dake expr

essed co ncern th at Dalton would re port the r obbery to au thorities. The defendant said they were going to have to “do somet hing” to keep him from “sa yin g any thing.”Late

r, while D avis and Dake sle

pt in one of

the motel r

ooms and D alto n sle pt in the other, the defe

ndant and co-def endant H alcombdiscussed what to do about Dalton. They planne d to tak e Dalto n’s wallet and car, and Halcomb said he was goingto knock Dalton out. The defendant took Dalton’s keys and

wallet and put them in the room whereDake and Davis were sl eepin g.
When the defendant

returned, Dalton confronted codefenda nt Halcomb about his m

issing ke ys a nd wallet

. H alcomb, who was approxima

tely 6'3 " an d weighed over 200 pounds, bega n hitting Dalton, who was approximately 5' 4" and 145 pounds. Halcomb h eld Dalto n's neck in a choke-hold and as ked the de fendant to help him. While Dalton was on his knees leaning over the bed, the de fendant grabbed the fro nt of Dalt on's thr oat and choked him, even whi le Dalton gasped for air and be gged her to stop. Halcomb removed Dalto n's belt from

his pants, pla

ced it ar ound Dalt on's ne ck, and to ld the defenda

nt to hold the be

lt. While Halcomb w ent to the

restroo m, the defendant choked Dalton with the be

lt untilhis face turned blue. When Halcomb returned, the defendant checked Dalton for a

pulse, but did not find one. They drove Dalton's body

to an area of

town with which the defendant was fami liar. Af

ter the d efenda nt sli ced Dalton's throat witha box cutter to ensure he was dead, they dumped his body

on the side of the road, covering it with leaves. They returned to the motel,2 The petit ioner als o all eged t

ria l cou nselwas i nef

fect ive for failing to ha ve the ta pe re cord ings of he r statem ents to po lice pla yed b efore the jury. T he pe titioner ha s, how ever, a ban don ed this la tter claim in her ap pea l to this co urt. -3- pickedup Dake, and trav eled in D alton's car to Illinois to visit the defendant's family

and then to Daytona

Beach, Florida.
Meanwhile, Dalton was reported missing. On April 3, 1995, Sherry Wade, a friend of Dake

and the defendant, received a c all from the defendant. Knowing Dalton was missing and

thinking he might be with them, Wade asked the defendant where Dalton wa s. At first, the defenda

nt repl ied she did not know, but then she told Wade "he
was gone; he's gone; he' s under a tree." A cou ple of days later , Wade reported this conversation to the McM i nn Co unty She riff's Departm ent.
On April6, 1995, th

e defendant, her

co-def endant, and Dake
were apprehended in a traffi c stop while driving Dalton' s vehicle

in Florida. During an interview by the Florida authorities, the defendant initially deniedknowing any

thing about Dalton's disappearance, but she later drew a map showing where his body was buried. Using the map, Tennessee authorities found the body . The defendant wa s arrested and waiv ed extrad

ition to Tennessee where she was indicted. Following her jury

trial, wh

ich was se

vered f rom co -defendant Halco mb's trial, the

defenda nt was fou nd guilty of fir st-de gree murder and sente nced to li fe impris onment.
Id. at 836.

On February

29, 2000 , the petitioner filed a pro se petition for post-conviction relief. Counsel was appointed and, on September 11, 2000, an amended petition was filed. The petitioner asserted trial counsel was ineffective, inter alia , for failing to adequately pr epare and investigate the case, fa iling to adequa tely prepar e her trial testimony or a

dvise her of her right not to testify , and failing to investigate, develop, or present a n intoxication defense. 2

The petitioner testified at her January 31, 2002, e videntiary hea

ring that her trial counsel met with her in jail only three or f our times during the year

and a half she spent awaiting trial. During those visits, the main topic of conversation was counsel’s efforts to obtain a plea bargain; however, trial counsel never

informed her of any

plea bargain offere d by the State. Trial counsel also failed to inform her of the strategy he intended to employ

at trial a nd, with the

exception

of the sta tements she had made

to police , did not dis cuss the e vidence agains t her. The

petitione r said trial counsel told her that her state ments were incriminating, but did not review them with her in detail and did notprepare her trial testimony . She also claimed trial counsel failed to inform her that she had the3 We note tha t the pe titi o ner’s codefendant’s name is spelled “Halcombe” throughout the transcri pt of the

evide ntiary hea ring. H owe ver, we will utilize the sp elling co ntained in the dire ct app eal op inion in this c ase. -4- option of not testifying. How ever, at a later point in her direct examination testimony , she said she remembe red coun sel’s ha

ving re commende d that she testify on her ow n behalf

at trial.

The petitioner testified tha t she h ad had several beers, “a fe w Zima’s,” “a bottle of Jack Daniels,” and several glasse s of vodka in the hour s before

the murde

r. She did not “actu ally

go into detail” with trial counsel regarding what and how much she had drunk, but

she did tell him that she had been drinking vodka and beer, that she had drunk “quite a bit,” and that there were things that occurred that she co ul d not remember. However, trial counsel never discussed using her intoxication as a possible defense at trial.

On cross-examination, the petitioner claimedthat she h ad been too drunk t

o know exactly what she was doing at the time of the murder. She also asserte d that her participation in the murder
was coerced by

threats f rom her c odefend ant, Halcomb, 3 whom she feared. She had no memory of having slashed the victim’s neck after he was strangled to ensure that he was de ad; she had learned that and other details of the murder that she had included in her state ments to po lice f

rom he r “char ge partners” the morning after the crime. However, in spite of her claim that she was too intoxicated to remember much of what had occurred, the petitioner provided numerous specific details about the murder as her cross-exam inatio n testimony continued. The petitioner ac knowledged there was nothing prevent

ing her from lea ving the room duri ng the mu

rder, a nd th at she had not tr

ied to telephone any one for help.

The opinion of this court on the direct a ppeal of the petiti oner’s c onviction provided details of her confession and her actions following the crime: According to the def

endant' s c onfe ssion, she and Halcomb planned to take Dalton's wallet and car. The de fend ant adm itted helping Halcomb choke Dalton, first with h er hand and th en wit h Dalt on's belt, even though he beg ged her to stop. After Halcomb left the room, the defendant

continue d to choke

Dalton un

til his face turned blue. When asked what she was try ing to accom

plish by choking him, the defendant told auth orities, "Ki ll him, I guess." Thes e circumstances establish

that the d efenda nt acted after th e exerci se of reflectionor judgm

ent and w ith a previously formed in

tent to kill , which supports a finding of premeditation.

The evidence also showed that imme diate ly after t he kil ling, the defendant helped

choose a n isolated area to dump Dalton’s body and then covered the body with leaves to prevent det ecti on. The defendant told autho

rities tha t she kept Dalton' s wall et in order to preve ntthe body

from being identi fied. She also admit

ted in he r-5- confess io n that she sliced Dalton's throat to ensure he was dea d. T hen, she, co-defendant Halcomb, and Dake fled to Illinois, wh er e they visited the defe

ndant's family

as if nothing had happened.

Rosa , 996 S.W.2d at 837 (footnote and citations omitted).

As explained

in the opinion of this court on direct appeal, at trial the petitioner had testified contrary to her confession, minimizing her role in theslaying of the victim and explaining that she had cut his throat as an act of compassion:

We recognize that at trial, the defend ant contradicted her confession, testifying

that she did not choke Dalton or intend to kill him; that she loosened the belt around his neck in order to allow him to breathe; that Halcomb, who was u pset, choked Dalton until he died; and that she cut

Dalto n's throa t sol ely to pre vent h is su fferin g.
Id.

Trial counsel testified he had been practic ing law for eleven years as of the time of the hearin g, and estimated he had participated in twenty to twenty-five jury

trials. He said he had been appointed to represent the petitioner in May 1995, roughly a

month after the murder occurred. As part of his investigation, he had obtained and reviewed copies of the statements the petitioner had made to police. Trial counsel testified that he had “tried a great number of murder c ases and other cases” during his career , but had “never had a confession any mor

e incriminating” than the

one in this case. Because the petitioner had made such incrimin ating st atements , he had thought “ the best trial [they ] could hav e . . . woul d be no trial at all,” and therefore conc entrated his efforts on working to obtain a plea bargain, as well as try ing to suppress the petitioner’s statements.

Trial counsel testifiedhe kept the petitioner informed of the progress in her ca se and the plea negotiations on her behalf. In a ddition to their fou r meeting s at the ja

il, they also met a

t least ha lf
a dozen times prior to various mot ion s or hearings. He told the petitioner of the State’s only plea offer, which was life, plus ten ye ars for a conspiracy count the State wa s going to add to the indictmen t. Trial counsel sai d he explained to the petitione r that he didnot think it was “any offe r at all,” be cause th

e conspir acy charg e had not e

ven bee n made at that time, and that t

hey ultimately beat the offer with the life sentence the pe titioner received at the end of the trial.

Trial counsel testified he was aware from his conversations with the petitioner and his review of her statements that she had been drinking bee r and vodka on the evening of the mur der, but d id notknow that , supposed

ly, she had b een drin

king Jack Daniels a s well. Re gardle ss, he did not think voluntary intoxicatio n was a vi able def ense. Th e petit io ner’s sta

tements to

police we

re veryfactspecific, and ther

e was not hing in hi s conver sations with the pet itioner to indicate that she had not been aware of what she was doing at the time of the murder. Trial counsel explained:-6- First of all, I didn’t se e any

thing in my conversation with [the petitioner] to indic ate that s he was in toxicated t

o the point

that it would even be an issue. We are talking about that now, butnowhere in my speaking

with her and nowhere i n the testimony and the statemen ts that I had seen had ther e beenany talk about that leve l of intoxication. In my

experience, whe

n yo u are g oing to us e that to
ne gat e an eleme

nt of pre meditate d murder , yo

u are ta lking ab out a pretty in to xi cat ed s tat e, a nd I just di d not ga ther tha t from my speaking with [the petitioner] and the things that I was re ading about her statements[.]

Trial counsel said he was not aware of any case in Knox County during the e leven years he

ha d practiced law in which a defense of voluntary intoxication had been successful. He thought it was
a “very r isky” defe nse because, in his opinion, “if [the] jury believes f or a moment that you ar

e trying to hide behind some voluntary intoxication, and they think that y ou did in fact know what you w ere doing, . . . they will see that as an excuse, and they will punish you for it.”

Trial counsel said he recommended that the petitioner testify because he thought they

had no choice, once the statements were admitted, other than to have her

attempt to explain certain parts of themto the jury. Although he did not go over the statements with the petitioner in person before trial, he did provide her with copies of them to review with instructions that she mark the parts that she remembered and any parts that were inaccurate. Trial counsel said he did not know how he could have prepared the petitioner any differently, te stifying that, in his opinion, “ther e was n’t a whole lot of pre paratio n that [they

] could do” with resp ect to the statements. He testified he talked at length with the petitioner prior to trial about the facts surrounding the murder, including her relation ship with Halc omb, his intimidating size, a nd the fe ar she ha

d felt of him, and that he brought outthose det

ails during her d

irect exa mination a

t trial. He

also attempted, unsuccessfully, to have Halcomb called a s a witnes s at trial , knowing he would plead his Fifth Amendment right ag ainst selfincrimination, but in doing so, the jur

ors w ould see how large he was. I n trial counsel’s opinion, there was nothing he could have done diff erently in the ca se.
At t he conclusion of the post-conviction hearing, the cour t made oral findings of fact and conclusions of law and, on March 12, 2002, entered an order dismissing the petition, finding that the petitioner had fail ed to susta

in her bur

den of de

monstrating ineffe ctive as sistance of counse

l. Alth ough the order dismissing the petition states that the court’s “Memorandum Op inion shall be incorporated herein by

reference,” there

is no memorandum opinion in the record. Thereafter, the petitioner filed a timely appea

l to this court, challenging the post-conviction court’s dismissal of her petition.
ANALYSIS

The post-conviction petitioner bears the burden of proving his or her allegations by

clear and convincing evidence. See Tenn. Cod e Ann. § 40 -30-210(f). When a n evident iary hearing is held-7-

in the post-conviction setting, the findings of fact made by the court are conclusive on appeal u nless the evidence prep onderat es a gainst them. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999); Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the ap pella te cou rt sho uld n ot rew eigh or reevaluate the evidence. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1 997). How ever, r eview of a trial c ourt’s a

pplicatio n of the la

w to the fac ts of the case is de novo , with no pr

esumpti on of correct ness. See Ruff v. Sta te , 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo , with a presumption of correctness given only

to the post-conviction court’s findings of fact. See Fields v. State , 40 S.W.3d 45 0, 458 (Te nn. 2001) ; Burns , 6 S.W.3d at 461.

To establish a claim of ineffective assistance of counse l, the petitioner has the burden to show boththat tri al cou nsel’s performance was deficie nt, and that counsel’s deficient performance prejudiced

the outcome of the proceeding. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L . Ed. 2d 674 (1984); see State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that same standard for determining ineffe ctive as sistance

of counse

l that is applied i n federal cases also applies in Tennessee ). The Stricklandstandar d is a two- prong te st:
Fi rs t, the defendant must show that counsel’s performance w as deficie nt. This requires showing that counsel made errors so serious that counsel was not functioni ng a s the “counsel” guaranteed the defendant by the Sixth Amendment. Second , t he defe ndant must show that the d

eficien t perfor mance pr ejudice d the def

ense. Th is requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose r esult is reliable.
466 U.S. at 687, 104 S. Ct. at 2064.

The deficie

nt perfo rmance prong o f the test

is s atisfied by showing that “ counsel’s acts or omissions were so

serious a s to fall

below an objectiv e standa

rd of re asonable

ness under prevailing professional norms.” Goad v. State , 938 S.W.2d 363, 369 (T enn. 1 996) ( citi ng Strickland , 466 U.S. at 688, 104 S. Ct. at 2065; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the test issatisfied by showing a reasonable probability , i.e ., a “probability suff icient to undermine confidencein the outc ome,” tha t “but for counsel’ s unprofessional errors, the result of the procee ding would have been different.” Strickland , 466 U.S. at 694, 104 S. Ct. at 2068.

Becau se both pron gs of the test must be satisfied, a failure to show either deficient performance

or resulting prejudice

results in a failure to establish the claim. See Henley , 960 S.W.2d at 580. For t his reason, courts need not approach the Strickland test in a specific order or eve n “addre ss both co mponents of the inquiry if the def endant makes an insufficient showing on one.” 466 U.S. at 697 , 104 S. Ct. a t 2069; see also Goad , 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief

on the ineffective assistance claim”).-8-

Initi a ll y, we note the post-conviction court announced its findings at the conc lusion of the hearing and directed the cour t reporter to transcribe them into a memorandum opinion. However, there are no writtenfindi ngs in the te chnic al reco rd. Al thou gh the tech nical re cord inde

x refers t o a mult iple- page ord er dis miss ing the pe tition, the reference is actually to a transcript of the sentencing phase of the pe titi oner’s convi cting t rial. Nevert heles s, th e post -conv icti on cou rt's findings and conclusions are sufficiently comprehensive to allow for proper appellate r eview.

The petitioner contends trial counsel was ineffective for f ailing to adequa

tely investig ate and preparefor tria

l and failing to investigate or develop an intoxication defense. She a rgues that counsel was deficient for failing to discuss his trial strateg y or defe nse theory with her , neglecting to inform her of her right not to testify or adequately

prepare her trial testimony , and for failing to explore or develop her intoxication as a defense, despite evidence that she was drinking heavily at the time of the

murder. The petit

ioner co ntends tha

t “had the

jury been fully

ap prised of her inebria ted condi tion at tri al, a dif

ferent result . . . would have been obtained.” The State responds that the petitioner failed

to establish thattrial counsel’s performance fell below the r ange expected of an attorney in a

criminal case or resulted in prejud ice to the outcome o f her ca se. We ag ree with the State.

The petitioner

claimed that trial counsel met with her only three or four t

imes prior

to trial. She said he failed to

communic ate any

plea bar gain offered by

the State, failed to inform her of her right not to testify, failed

to discuss his trial s trategy or an intoxica

tion defe nse, and failed to prepare her trial tes timony . Trial counsel, by con trast, testified that he met with the petitioner at least ten times before trial, with some of these meetings occur ring in jail an d others a s s he was br ought to court. He said he discuss ed the fa cts of the case with her, including the statements she had provided to police and her fear of

her codefendant; communicated the only plea bargain offere d by

the State; and prepared her trial testimony by, among

other things, p roviding her with a

copy of her st atements for her to review and mark. Trial counsel ac knowledged he

concentrated at the

outset on suppressing the statements and attempting to negotiate a plea ba rgain, explaining that the p etitio ner’s detailed confession made him believe that their best option was to seek a plea bar gain to avoid g oing to tr

ial. However, when it became clear that the statements were going to be admitted and they we

re going to trial, h e recom mended th at the pe

titioner t ake the s tand. Tri al counse l testifie d:

There is nothing at all that we could have done diffe

rently in my opinion. This case boiled down to a statem ent, a confession, a series of confessions that were not contradictory of one ano ther. Once those statements came in, we had no choice but to go forward. Yes, I advi sed her t

o testify . It w as my

opinion tha

t, once those statemen ts were c omi ng in, we had no choice but to explain to the ju ry, and I explained to [the petitioner] that, in my opinion, we didn’t have any choice

but to testify; bec ause, i f we just s at silent, and all they were going to do is hear these things withou t her e xplaining certain parts of it, that we would have no chance of success.-9-

As to this issue, the post-conviction court found:

But she claims here today

that [trial counsel] was ineffective in his assistance and raises three or four different specific charg es, the first being that [trial counsel] failed to adequately co nsult with her and prepare her for this trial. She claim s that she only met with him three times during the period between April and

Septembe

r – April, ‘95 to Septemb er, ‘96, and that their di scussionswere g enerally confinedto the issue

of what p lea ag

reemen t, if any , was forth comin g. [Trial counsel] acknowledges, candidly , that he did not visit withher a great

number of times in the jail, maybe on four oc casions in the jail, as I recall his testimony . However, he goes on to explain that, on a number of occasions when [the petitioner] would be brought to the courtroom for motion hea

rings, t hat they would have the opportunity to meet and discuss trial prepa rations and trial strateg y in the cour troom, in a

ddition to h

is meeting s in the jai l.

. . . . With regard, however , to this claim that there was ineffective discussions between the two of the m, while there may not ha

ve been
as many discussions in this case as there are in som e ca ses , I h ave failedto hear any

evidence presented by

[the petitioner] how that affected her adversely

in this case.
[Trial counsel’s] testimony is that he did meet with her on a number of occa sions, both

in the cou

rtr o om and in the jail; that he investigated

the case, at tempted to talk to the witnesses that were identified to him and indeed visited the scene, obtained evide nc e to fami liar ize himself with the cas e, but th at his main thrust was in an effort to negate the damaging

effect of this statement that was given by [th e petitioner] to law

enforc ement of

ficers.

Trial counsel’s concentration on suppressing the statements and obta ining a plea cannot be considered

unreaso nable, given the i ncrimina ting nat ure of the stateme

n ts the peti

tioner ma de to police. Furthermore, his testimony r egarding the level

of commu nication he maintained with the petitioner and his investigation and preparation for trial supports the post-conviction court’s finding that he provided effective assistance to the petitioner a t trial.

The petitione

r also co ntends tha

t trial counsel wa s ineffe ctive fo r failing to investig ate or develop a voluntary intoxication defense. How ever, by he r own testimony, she failed to inform him4 We note that according to an excerpt f rom her trial t estimony which i s an appendix to her br ief, she was asked the gener al qu est ion , “What were you dr ink ing ?” and r esponde d, “ Vodka and bee r.” Although thi s gen eral quest ion
wou ld have a llowed the pe titioner to expla in that she al so had been drinking Jack Daniels, she di d not do so, nor did she exp lain at the post- conviction hearing why she had not told the jury of all t he alcohol she was then cl aiming she had consumed at the time of the murder.
-10- of all that she had had

to drink. 4 Moreove

r, even i f she had

told him everything , we agree with trial counsel that

the level of detail the petitioner was able to pr ovide abo ut the murd

er belie s her cla

im of having been too intoxicated to form the specific intent to commit first degree murder. D uring her testimonyat

the evidentiary he aring, the petitioner first claimed that she had bee n too intoxicate d to remember

much of what occurred. She then went on to provide a substantial number of details about the murder, including that Halcomb struck the victim in the chest and bent him over the bed as he began strang ling him; t

hat the vi ctim’s fa

ce turne d a “bluis h color” as he was being choked; that she fearf ully obeyed Ha

lcomb’s instructions that she “had better help” by pressing her hands on the front of the victim’s neck for several minutes while he removed the victim’s belt and p laced it a bout his neck; tha t Halcomb

then chok

ed the victim by

tighten ing the b elt

and made her help by

pulling on the belt also; that Halc omb went in to the adj oining r

oom at one

point and s he loosened the be lt aroundthe victi m’s ne ck while h e was g one; that

the victim

was still br

eathing when Ha lcomb returned to finish the job; and that she helped dispose of the victim’s body after he was dead. As to this issue, the post-conviction court found:

[The petitioner] also raises this issue of the fact that her level of intoxication was not explored as a defense. Again, my r

ecollection in this c asehas been – it has been three
or four yea rs since this case was tried – but my recollection was that there was a

good deal of testimony about what went on in this motel

–or I think there weretwo motel rooms – and the fact that they were partying , and that there was drinking going on.
As I recall, they

had goneto a 711-t

ype establish ment, and I think s ome peopl e stole so me items f rom that e stablishme

nt, including some alco holic beverages. And there wa s a good deal of testimonyabout what had gone on – all the things that had g one on at this motel lea

ding up to the incid ent in whic

h this indivi dual lost

his life, and [trial counsel] testifies here today that he did not – that [the petition er] did no t disclose to him what

she now c laims to be

this level of intoxication that she had at the time. Again, I have hear

d nothing here today

that convinces me that [trial cou nsel] was i neffective in developing the fac ts of this ca se or present i ng these facts to the jury . I don’t think this issue o f intoxi cati on ris es to t

he level o f ine ffectiveness b y [ tria l cou nsel]

.-11-

A s we un derstand, the petitioner makes a twofold argume nt as to trial counsel’s not presenting an intoxication defense: his pretrial investigat ion was in effective because he did not discover that she was intoxicated at the time of the crime, and his trial performance was inef fective because he did not proceed with anintoxication defense. However, the facts of the killing underc ut these claims. First, trial counsel’s only sour ces for learning of the petitioner’s level of intoxication at the time of the crime were the petition er, her self, an d the othe rs involve d, all pre sumably represented

by c ounsel: he

r codef endant, Dennis Halcomb, who had he lped her murder th

e victim; Teresa Dake, t heir companion, with whom Halcomb had just robbed a gas station; and Dake ’s companion, Larry

Davis. Trial counsel t

estified at the he aring t

hat he kne

w if Halc omb were called as a witne ss, he would asser t his Fifth Amendmen

t privileg e aga

inst self-incrimination. Thus, the petitioner’s claim as to the benefit of an intoxication defense ignore s the practic al proble ms in presenting such a defense, and the fact that the only other pers ons av ailable to testify as to her intoxication would have had reasons fo r not wanting to testify

and incr iminate th

emselve s. Ad di ti on al ly, we note that while the pet itioner, herself, could have testified as to her level of intoxication, she did not do so, and now sugg ests that s he may not have w anted to t

estify at the tri al. Other reasonsare app arent a s to why the petiti oner’s t

rial atto rney would not h ave atte

mpted to present an intoxication defense. The recitationof the facts, as set out in the direct appeal, shows that the petitioner

had substantial recall of the events, as we have stated, and also reveals that, upon her subsequent

arrest in Florida, she drew a map for authorities accurate enough to re sult in the recovery of the victim’s body. Thus, we conc lude, as did the trial court, th at the pe titioner f ailed to e stablish that trial counsel was ineffective for not presenting an intoxication defense.

The petitioner

has failed to acknowledge the difficulty faced by her trial counsel after he was unsuccessful in suppressing her statement, according to which, after choking the victim until his face turned blue with a

belt around his neck, she then used a box cutter to slash his throat. The petitioner alleged on appeal that trial counsel “did very little to prepare for the event ual trial,” s tating that counsel met with her three or four times while she was awaiting trial, although meeting in court on other occasions; did not advise her that she had a choice as to whe ther to te stify

at the tri al; and did not di scuss “trial strategy , defense theory or how counsel intended to present her case. ” Ad di ti on al ly, she claims that she and trial counsel “did not go over in detail the statements she ga ve to autho riti es,” al thou gh they “we re the heart of the

prosecu tion’s ca se.” How ever, th e petitioner did notsuggest , eith er at t he hear ing or in herappellate brief, how her defense e ither would have changed or been strengthened had she met with trial counsel on more occasions and discussed trial st ra te gy. The record fully supports the finding of the post-conviction court that the petitioner failed to establish that trial counsel was ineffective.
CONCLUSION We affirm the dismissal of the petition for post-conviction relief.

___________________________________ ALAN E. GL

ENN, JUDGE