### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d onBr ie fs a t K

noxv ill e N ove m

be r 27, 200 7

JOHN G RID ER v. ST ATE OF TEN NES SEE

Appeal f rom the Circ uit Court for Wayne County No. 13089 Robert

L. Holl oway, Ju dge

No. M2006- 00473-CCA -R3-P C - F iled April 10, 2008

I n A ugus t 2004 , the pe tit ion e r, John Gr ide r, e nte re d a “be st inte re st” g uil ty ple a purs ua nt t o N or th Caro lin a v. Al fo rd , 4 00 U. S. 2 5, 91 S. Ct. 16 0 (1 97 0)
, to on e c ount of se c on d d e g re e mur de r, a Cla ss A felony

. The trial court sentenc ed the pe titioner to twenty y ear s in the Depa

rtment of Corre ction. I n J une 2005, the pe titioner filed a pe tition for post-conviction relief. Following a January 2006 hear ing, the post-conviction cour t denied the pe tition. The petitioner appe als, alleg ing that he

re c e ive d th e ine ff

e c tiv e a ssi sta

nc e of c ouns e l in

that c ouns e l f

a ile d to a de qu a te ly

c omm un ic a te wi th him du ri ng the tim e le a din g to h is p le a and fa ile d to fi le a

mot ion to s up pr e ss h is s ta te me nts to police. Af

ter re viewing the re cord, we conclude t hat petit ioner did not rec eive inef fec tive assistance of counse l and there fore aff irm the judg ment of the post-c onviction court.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uitCo ur t i s Aff irm ed

.

D. K EL L Y T HOMAS , J R ., J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J . joined.

M. Wallace Coleman, L awr ence burg , Tenne ssee, f or the a ppellant, J ohn Grider

.
Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Da

v i d H

. F i n d l e y , A ssi sta

nt A tto rn e y

Ge ne ra l; T. Mic he l B ott oms , D i s t

r i c t A tt o r n e y G e n e r a l ; J. D ou g la s D ic us , A ssi sta nt D istri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Plea He aring

At the Aug ust 6, 2004, hearingwher e he enter ed his A lford plea , the petitioner testified that he wa s a thirty -eig ht-y ear -old hig h school g raduate and ha d worke d as a r anche r and a tr uck drive r. Th e pe tit ion e r t e sti fi e d that he ha d su ff e re d fr om bip ola

r dis or de r f

or the pr e vio us six to e ig ht y e a rs ,-2-

bu t bo th p art ie s a g re e d that he ha d be e n de c lare d c omp e te nt to sta nd tr ia l and

that an in sa

nit y de fe ns e would be inapplica

ble in this c ase. The pe titioner stated that he wa s on medication that alleviated the sy mptoms of his m ental illness.

The state inf

ormed the c ourt that the proof would show that the victim, David Eddy , was shot i nt h e b ed ro o m o f h i s p ar en t s ’ h o m e b y a gu n m an wh o s t o o d

o n t h e ho u s e’ s p o rc h an d s h o tt h ro u gh the windo w wi t h a shot g un, killing the victim. The state note d that the petitioner ha d g iven a statement in which he implicated another person, but the police investigation revea led that the petitioner’s statement was untrue. The trial court then explained to the petit ioner the full rang e of rig hts available to him and the implications of enter ing an Alford plea. The petitioner ac knowledg ed that he under stood the meaning of his ple a and that there was a fac tual basis for the court to ac cept a plea to second deg ree murder. The petiti oner sa id that he had not bee n coer ced into ente ring a plea
, that the p le a w a s in h is b e s t inte r e s t, an d th a t h is a tt o r n e y s h a d w o r

k e d w it h h im thr o u g h o ut the nin e te e n mo nth s h e ha d b e e n in c us tod y

. Th e pe tit ion e r state d th a t he wa s “ ve ry satis fi e d” wi th h is

a tto rn e y s’ pe rf

or manc e in r e pr e se nti nghim

.

Post-Conviction Evidentiary He aring

I n his post-conviction petition, the petitioner alleg ed four g rounds for relief : that his plea

was enter ed involuntarily

and unknowing ly , that the plea w as bas ed o n t h e use of evidenc e obtained p u rs u an tt o an u n l aw fu l arre s t , t h at t h e p l eawa s b as ed o na v i o l at i o no f t h e p et i t i o n er ’s p ri v i l ege

a g a ins t se lf

-i ncriminatio n, and

that th e pe tit ion e r r e c e ive d th e ine ff e c tiv e a ssi sta

nc e of c ouns e l. Howeve r, bec ause the petitioner limits hi s appea l to the i neff ective assistance of counsel issue, our revie w of the e videntiary hear ing, w hich was he ld on J anuar y 19, 2006, will be limit ed to the testimony addre ssing this issue.

The pe titioner testified that he wa s in custody on an unre lated cha

rg e whe n he made a statement to police in c onnection with this case

. The pe titioner asserte d that the entire statement wa s

a lie . H e state d th a t Ste ve Wils on , th e po lic e inv e sti g a tor to w ho m he g a ve his state me nt, tol d h im that he had “ blood on [ his] hands.” The petitioner acknow ledg ed that he did sig n a Miranda waiver be fo re g ivi nghis state me nt, and th at w hil e he wa s n ot “ c oe rc e d” int o g ivi nghis state me nt, he did fee l “pre ssured” by

the police investig ator ba sed on ce rtain statements the inve stigator made.

The pe titioner testified that in his statement t o police, he implicated a man, Ti m Morten, who had no conne ction with the offe nse. The pe titioner said that he implicated Morte n beca use Morten had ac cused him of stealing a truck. The petitioner testified that his e x -wife also g ave a statement to police
, one that implicated him in the murder and which led police to foc us their investig ation on him. The petitioner asse rted that this statement was untrue, and that his ex -wife made the statement beca use she ha d been r omantically involved with both the victim and Tim Morten and wa s theref ore ang ry at him (the petitioner) when she made he r statement. The petitioner said that the f act that he and his ex-wife re conciled shor tly afte r the murde r wa s evidenc e that her statement was untrue. TheT he pet i t i oner was repr es ent ed by t wo at t orn ey s p r i or t o ent r y o f hi s p l ea. O nl y t he l ead coun s el t es t i f i ed at 1

the e v id e n tiar y he a rin g

.
-3- petitioner t estified that his attorney s did not file a motion to suppress his statements t o police, and 1 the petitioner a lso said that his attorney s never discussed t his possibi lity with him. The petitioner said that he wa s upset over c ounsel’s fa ilure to file a motion to suppress the state ment to police beca use the stateme nt was the only evidenc e the state had implicating him in the murder.

The pe titioner testified that he did not reme mber the date on which he first met with his trial

a tto rn e y s, wh o w e re wi th t he pu bli c de fe nd er’s offic e , b ut h e sa id t hat hi s atto rn e y s me t w ithhim at the Way

ne County

J ail a total of thre e times during the six teen months he was in custody there

. He testified that the longe st meeting with his attorney s lasted no more than forty -five minutes. He state d t hat he di d mee t w ithhis a tto rn e y s d ur ingse ve ra l “ Ple a

Da y s” in w hic h d e fe nd ants wi th pe nd ingc ri min a l c a se s w ou ld h a ve the status of the ir c a se s r e vie we d, bu t th at hi s mee ti ng s w ith counsel on these day s would be brief because counsel had to mee t with other clients on those date s
as we ll.

During his testimony

at the evide ntiary

hear i n g, t h e petitioner ide ntified sever al other p r o b l e m s w i t h h i s c o u n s e l

. H e t e s t i f i e d t h a th e i d e n t i f

i e d s e v e r a l p o t e n t i a l w i t n e s s e s f o r h i s a t t o r n e ys to interview, but that these persons wer e not inter viewed. He a lso stated that his attorney s did not prese nt him with a plea offe r unti l t h re e o r fo u r day s befor e trial, a nd that his attorney s did not explain to hi m the possibili ty of beingconvicted of

a lesser offe nse at trial. He als o cl ai med that counsel did not explain the full ramifications of his A lford plea to him. The pe titioner admitted that he did not express any problems with his attorney s at the plea he aring , and he a lso admitted that he understood the r amifications of his plea at the t ime it was entered. Howeve r, t he petiti oner sa id that

“ Idid n’ t kn owthe n w hat I

kn owno w” a

bo ut h is atto rn e y s.

On cr oss-examination, the petitioner admitted that he wa s awa re at the time of his plea that reg ardle ss of the name of his plea, he would be re ceivinga twenty -y ear sen t en ce

. The pe titioner admitted that he informe d his attorney s that his ex-wife’s statement was a lie, but that the only

thing he c ou ld have do ne a

bo ut that state me nt w a s c ro ss- e xami ne his e x-w if e a t tr ia l. T he pe tit ion e r a g a in admi tt e d th a t h e h a d s ig n e d a M ir an d a w a iv e r p r io r to g iv in g h is s tate me n t an d th a t h e was not

c o e r c e d i n t o g i v i n g t h e s t a t e m e n t

. T h e p e t i t i o n e r t e s t i f i e d t h a th e t o o k

t h e p l e a b e c a

u s e h i s a t t o r

n e ys informed him that it was a g ood deal and that he wa s tired of living in unsanitary conditions in the Way ne County

J ail. On re direc t, the petitioner testi fi ed t h at the jail was ove rcr owded, ha d leaky plumbi ng , a

nd ha d b la c k mo ld o n the wa lls and ru st o n th e ba rs to e a c h c e ll. He no te d th a t th e state health depa

rtment shut down the jail shortly afte r he be g an his sentenc e in the state pe nitentiary

.

I nvesti gat or Steve Wilson with t he Way ne County

Sheriff’ s Depa

rtment testified that he int e rv ie we d th e pe tit ion e r w hil e he wa s in cus tod y on an unr e la te d c ha

rg e . Inv e sti g a tor

Wils on sa id that the petitioner h ad n o t b ee n char g ed with the murde r at the time of the statement, and that the pet it io n e r s ig n e d a M ir an d a w a iv e r an d d id n o t r e qu e s t an a tt o r n e y a t th e ti me

. H e n o te d th a t the petitioner g ave two statements, one ha ndwritten and one ty

ped, on two diffe rent da

y s. I nvestig ator-4-

Wils on sa id t hat he a dv ise d th e pe tit ion e r o f h is r ig hts be fo re e a c h s ta te me nt, and that he c are fu lly revie wed e ach statement with the petitioner to e nsure that the statement was acc urate

. He noted that while some parts of the petitioner’s state ment ultimately proved to be untrue, the pe titioner’s statements did contain some de tails that only the ki ller could have known about. I nvestig ator Wilson denied telling the petitioner that he had blood on his hands bef ore the statements wer e made

. The pe titioner’s lead tria l counsel testifi e d th a t a s o f the evidentiar

y hear ing, he had seve nteen y e ars ’ e xpe ri e nc e a s an atto rn e y , mo st of wh ic h we re sp e nt wo rk ing fo r p ub lic de fe nd e r’ s o ff ic e s in tw o T e nn e sse e jud ic ia l di str ic ts. He re c a lle d th a t he me t w iththe pe tit ion e r o n s e ve ra l oc c a sio ns , including six to eight mee tings at the county jail and seve ral mee tings at Plea Day s. Counsel testified that the petitioner ne ver r aised a ny conce rns re g ardinghis state m en t s t o p olice. Counsel

sa id t hat w hil e he ha d n o s pe c if ic re c oll e c tio n o f r e vie wi ngthe pe tit ion e r’ s st a te me nt w ithhim
, counsel said that in ea ch of his ca ses wher e a de fenda nt ha d g iven a statement to police , he re viewed the statement with the de fenda nt to determine whe ther it had be en g iven vol u ntarily and without

coer cion. Counsel said that afte r reviewing eac h defe ndant’s stateme nt, if it appear ed evide nt that the re we re no pr ob le ms w iththe state me nt a nd the c ir c ums tanc e s un de r wh ic h it wa s g ive n, he wo uld

no t f ile a mot ion to s up pr e ss.

Counsel said that he and c o-counse l attempted to interview e ach pote ntial w itness identified by the petitioner, a

nd that he wa s succe ssful in interviewing most of the persons t he petitioner identified. Counsel rec alled that the pe titioner’s ex-wife would not talk to him or co- counsel, a nd that the ot h er potential witnesses counse l interviewe d, particula rly the ex-wife’ s pare nts, did not provide any information t hat would be bene ficial to the pe titioner’s ca se. Counsel testified that he and co -c o u n s el communicated this information reg ardingthe lack of helpful witnesses to the petitioner. Counsel rec alled that af ter the pet i t i o n er ’s brother r aised the issue of the petitioner’s mental hea lth, counsel had the petitioner evaluated for his c ompetency to stand trial; the petitioner was de emed competent t o stand trial and an insanity defe nse would not apply to the petitioner’s c ase.

Couns e l note d tha t the state ini tia lly of fe re d a ple a de a l of tw e nty -t wo or tw e nty -t hr e e y e a rs , but that the two sides neg otiated a se ntence of twenty y ear s and settled the c ase a day or two bef

ore trial. He sa id that it was his office ’s standar d proce dure to g o over possible sente nces if a case went to t ri a l, i nc lud ingse nte nc e s f or le sse r o ff e ns e s. Couns e l te sti fi e d th a t he tol d th e pe tit ion e r t hat it would be likely

that he would be c onvicted if the c ase w ent to trial, but that the petitioner made the final dec ision to enter a plea

.

On Janu ary 25 , 2 00 6, the po st- c on vic tio n co ur t e nte re d a n o rd e r d e nyingthe pe tit ion fo r p os tconviction re lief. This appe al follows.

STANDARD OF REVI EW: P OST-CONVI CTI ON PROCEEDI NGS

The burde n in a post-conviction proc eedingis on the petitioner to prove his g rounds for relief by clea r and c onvincing evidenc e. Te nn. Code Ann. § 40-30- 11 0 (f ) (2 0 0 6). On a

ppeal, we are bound by the trial cour

t’s finding s of fa ct unl es s we c onclude that the e vidence in the rec ord-5-

pr e po nd e rate s a g a ins t th os e fi nd ing s. F ie lds v. State , 4 0 S. W.3 d 4 50 , 4 56 (T e nn . 2 00 1) . B e c a us e they relate to mixed que stions of law and f act, the pe titioner’s claims ar e re viewed unde r a de novo standard w ith no presumption of corr ectne ss. I d. at 457.

I NEF FECTI VE ASSI STANCE OF COUN SEL

Under the Six th Amendment to the United States Constitut ion, when a c laim of ineff ective assistance of counse l is made, the burde n is on the petitioner to show (1) that c ounsel’s per formanc e was deficient and (2) that the de ficienc y was pre judicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984); see L ockhar t v. Fre twell, 506 U.S. 364, 368-72, 113 S. Ct . 838, 84 2- 44 (1 99 3) . In o the r w or ds , a sh ow ingthat c ouns e l’ s p erfo rm ance f a lls be low

a re a so na ble standard is not enoug h; r ather
, the petitioner must a lso show that but f o r t h e s u b standard perf ormanc e, “the result of the pr ocee ding w ould have been differe nt.” S trickland, 466 U.S. at 694. Th e Str ic k la

n d s ta n d ar d h a s b e e n a

p p li e d to th e r ig h t o f c o u n s e l u n d e r A rti c le I
, Se ction 9 of the Tenne ssee Constitution. S tate v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

The petiti oner must satisfy both prong s of the Strickland test to pre vail on a cla im of ineffe ctive assistanc e of c ounsel. See He nley v. State, 960 S.W .2d 572 , 580 (Tenn. 1997) . The perf ormanc e prongrequires the petitioner to show that the c ounsel’s re prese ntation fell below a n objective standard of rea sonablene ss or “outside the wide rang e of profe ssional l y co mpetent

a ssi sta nc e .” Str ic kla

nd , 4 66 U. S. at 69 0. Th e pr e jud ic e pr on g re qu ir e s th e pe tit ion e r t o d e mon str a te that “the r e is a

r e a s o n a b le p r o b a b il it y th a t, b u t f

o r c o u n s e l’ s p r o f

e s s io n a l e r

r o r s , th e r e s u lt

o f the pr oc e e din g wo uld

have be e n d if

fe re nt. ” I d. a t 69 4. “ A re a so na ble pr ob a bil ity me ans a pr ob a bil ity sufficie nt to undermine conf idence in the outcome.” I d. Fa ilure to satisfy either pr ong results in the denial of r elief. I d. at 697.

I n Bax ter v. Ros e, 523 S.W.2d 930, 936 (Tenn. 1975), our supr eme c ourt dec ided that attorney s should be h eld to the g ener al standar d of whe ther the se rvice s rende red w ere within the

ra n ge o f c o mp et en ce d em an d edo f a t t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e co u rt s t at edt h at t h e r an ge of c omp e te nc e wa s to be me a sure d b y the du tie s a

nd c ri te ri a se t f or th i n B e a sle y

v. Un ite d St a te s, 491 F.2d 687, 696 (6th Cir. 1974), and U nited States v. DeCoster, 487 F .2d 1197, 1202-04 (D.C. Cir. 1973). Also, in revie wing counsel’s c onduct, a “fa ir assessment of attorney perf ormanc e re quires that ever y eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduc t, and to evalua te the conduc t fr o m t h e counsel’s perspe ctive at the time.” Strickland, 466 U.S. at 689. T h us, the fac t that a par ticular strateg y

or tactic f ailed or e ven hurt the de fen s e d o es n o t , alone, support a claim of inef

fec tive assistance

. De fe re nc e is m a de to tr ia l strate g y or ta c tic a l c ho ic e s if

the y are inf or me d o ne s b a se d u

po n a de qu a te prepa ration. See D eCoster, 487 F .2d at 1201.

I n this case, our

revie w of the r ecor d reve als that the post-conviction cour t properly denied the petitioner re lief. Reg ardingthe petitioner’s a ssertion that trial counsel was defic ient for f ailing to file a motion to suppress his statement to police, it is unclear from the r ecor d that the petitioner

ever informe d h i s attorney s that he desire d to have his statement to police suppr essed. Counsel-6-

t e s t i f i e d t h a ti tw a s h i s s t an d ar d

p r a c t i c e t o r e v i e w a

d e f e n d an t ’ s s t a t e m e n tt o p o l i c e f o r p o ssi ble constitutional viol ations that would war rant a motion to suppress, and that no such problems e x isted in the statement the pe titioner g ave in c onnection with this case. T he petitioner a rg ues that trial counsel should have filed a motion to suppress based on his “mental hea lth shortcomings,” noting that he pre viously had been a patient in a mental hospital, and base d on “the c oerc ive nature of the po or c on dit ion s o f t

he ja il w he re the [pe tit ion e r]” wa s h ou se d. Ho we ve r, we fi nd the se argume nts unpersua sive. The pe titioner’s asser tions reg ardinghis mental ca p acity wer e re butted by

sever al fac tors, including a

n evaluation that determined that the petitioner was c ompetent to stand trial, the clar ity of his response s to the trial court’s que stions during the plea hear ing, and the spec ificity of his statement to police. Reg arding the living conditions at the Way ne County

J ail, wher e the petitioner wa s housed prior to h i s plea, the pe titioner has made g ener al ac cusations about the

un sanit ary c on dit ion s a t the ja il and no te d that the ja il wa s or de re d c los e d sh or tly a ft e r he le ft

the ja il, bu t th e pe tit ion e r h a s ma de no sp e c if ic a sse rt ion s a

bo ut h owthe ja il’ s liv ing c on dit ion s a ff e c te d h is health or his ability

to make knowingand voluntary statements to police.

W e a l s o f i n d t h e p e t i t i o n e r ’ s a s s e rt i o n s r e g ar d i n g h i s l a c k o f i n t e r a c t i o nw i t h h i s a t t o r n e ys unpersua sive. The pe titioner claimed that he met with his attorney s only three times while he wa s in the Way

ne County

J ail, in addition t o a fe w ot her br ief mee tings at the courthouse. H oweve r,
c ouns e l te sti fi e d th a t he me t w iththe pe tit ion e r s ix to eight tim e s at th e c ounty ja il. Couns e l a lso testified that he a

nd co-c ounsel interviewe d most of the potential witnesses that t h e petiti oner identified and that counsel communicated the results of these me eting s, as well as othe r information that r e su lte d f

ro m couns e l’ s inve sti g a tio n of the c a se , to the pe tit ion e r. Re g ard ingpo te nti a l de fe ns e witnesses wh o we re n o t interviewe d, the petitioner did not prese nt the testimony of any potential wi tne sse s r e g ard ingwh a t th e y wo uld have sa id h a d th e y be e n int e rv ie we d or c a lle d to t e sti fy a t tr ia l. I n light of this e vidence
, we conclude that the petitioner’s c laim of ineff ective a ssistance of c ounsel ba se d o n f

a ilure to c omm

un ic a te and

fa ilure to f

ile a mot ion to s up pr e ss i s w ith ou t me ri t.

CONCL USI ON

I n c on sid e ratio n o f t

he fo re g oin g and

the re c or d a s a

wh ole , th e jud g me nt o f t he po stconviction cour

t is affirmed.

______________________________ D. KEL L Y THOMAS, JR ., J UDGE