### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec embe r 2, 200 8

COR EY MOTE N v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 01-07148 John T. Fowlk es, Jr. , Judge

No. W2008-00451-C CA-R 3-PC - Filed April 2, 2009

The pe titioner, Corey Moten, appe als the p o s t -c o n viction court’s de nial of his petition for po st- c on vic tio n r e lie f. On app e a l, he arg ue s that he re c e ive d the ine ff e c tiv e a ssi stanc e of

c ou ns e l. Specifica lly, he argue s that his trial counsel wa s ineffe ctive in fa iling to challenge the suppre ssion of his statement on the grounds that it wa s involuntarily given. After a thorough revie w of the r ecor d

a ndthe pa

rt ie s’ brie fs , th e jud gme nt o f the po st- c on vic tio n co urt den yin g pos t- c on vic tio n r e lie f i s aff irmed.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J. C. M C L IN , J., delivere d the opinion of the court, in which J OHN E VERET T W I L L I AMS and C AM I LLE R. M C M ULLEN , JJ., joined.

Kim D. Meloni, Memphis, Tennessee , for the a ppellant, Corey Moten.

Rob e rt E. Coo pe r, Jr
., Attorne y G e ne ra l a ndRe po rt e r; Le sli e E. Pr ic e , A ssi stant A tto rn e y G e ne ra l; William L. Gibbons, District Attorney Ge nera l; and Racha el New ton, As s i s t an t District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION

BACKGROUND

Following a jury trial, th e p et i t ioner wa s convicted of second de gree murder. T here afte r, he wa s sentence d as a violent of fende r to twenty-two ye ars in conf inement. On appe al, this court

a f f irme d th e p e ti ti o n e r ’ s c o n v ic ti o n a n d s e n te nce. State v. Corey M oten , No. W2004-02896- CCA-R3-CD, 2006 WL 211827 (Tenn. Crim. App., at Jackson, Jan. 26, 2006), perm. app. denied (T e nn . May 30 , 200 6)

. Th e fo llo wi ng is a re c itatio n o f the c on vic tin g e vid e nc e se t f orth in this c ou rt ’s op ini on on dir e c t app e a l:-2-

At the def

endant’ s August 2-4, 2004, trial, Maria Gauntl et t , the victim’s sister, testified that the victim was thirty-one year s old at the time of her death a nd had bee n
marrie d to the de fe nd a nt b e tw e e n f ive a ndse ve n y e ars

.
Of fi c e r T im M on ist e re te sti fie d th a t he re sp on de d to a “ wo un de d p arty” c a ll sometime after midnight on February 2, 2001, at t he residence of the de fendant and the victim in Shelby County. Emerge ncy medica l personnel a dvised Monistere that the victim, Orchid Moten, wa s dead. The defe ndant, who appe are d “pre tty calm and quiet acting,” told Monistere that he had a rrived home from wor

k around 12:44 a .m., found the victim with a wound to her neck in the laundry room, and c alled the police

. Offic er Monistere described the victim ’s appe arance: “ [S]he wa s laying [sic] on he r back on the floor. The re w as blood around he r hea d. And t h er e wa s a towel like over he r hea d and neck are a. Her pants wer e completely off exce pt f or one portion of the pa nts and her shirt was li ke torn off of her. I t was kind of partially hanging on her.”

Sergeant Mark Rewalt testified that he made photographs and collec ted evidenc e at the cri m e s ce ne. He identified a dia gram he had made of the sce ne, as w ell as photographs of va

rious items, i ncluding a “turned-ove r” c urio ca binet, a bloody nylon rope, a

short telephone c ord with conne ct o rs on both ends, a set of keys, the kit c he n w ind ow mini bl in ds found l yin g inthe sin k, a nda gr e e n A rm y ja c ke t. Sergeant R ewa lt found two cords c oming out of the telephone: one that was c ut or torn that ran dow n to the dining r oom and another one that ran “ along to the living room and it’s conne cted to a n o t h er extension and going into a wall.” H e said that “utensils used to smoke cr ack a long with a cigar ette li ghter” wer e found in the drye r
a ndthat bl oo ds ta ins we re fo un d o nly in the laun dry r oo m.

Lieutena nt Vennes O wens testified that when [s] he ar rived at th e crime scene betwee n 2:00 and 3:00 a.m., t he defenda nt told h[er ] he “had come home f rom work and found his wife in the back of the house de ad.” L ieutenant Ow ens obser ved “a lot of disarr ay” inside the house. The de fendant subsequently was take n to the police station where he signed a

waiver of rights and a

consent form to sear ch his reside nce. The c ase w as assigned to S er g ea nt Ashton, and Lieutena nt Owens a nd Sergeant Shemwell returne d to the crime sc ene w here t h ey “identified a ll the knives in the house and le ft them there ” and c ollected a sponge.

Captain J a me s L . Fi tz patr ic k te sti fi e d th a t Se rg e a nt Will iam As hto n w a s th e c a se
c oo rd inator

bu t w a s u na va ila

ble to t e sti fy be c aus e he wa s cur re ntl y on ac tiv e du ty i n the Un ite d State s Coa st Gu ard Re se rv e s. Captain Fitz patr ic k sa id h e pa rt ic ipate d in the interview of the de fendant which bega n around 11:45 a .m. on February 2, 2001. Fitz patr ic k k ne w that th e de fe nd a nt a lr e a dy ha d be e n a dv ise d o f h is righ ts andsa id that the def

endant signed a waiver of rights. T he def endant initially told the officer s that, when he arrived home at about 12:30 a.m., the door wa s unlocked. He said he found his wife in the laundry room, locked his dog in a room, and c alled 9-1- 1. The de fe nd a nt a lso sa id th at one of the te le ph on e s h a d b e e n “ je rk e d” fr om the wa ll.-3-

During the intervie w, Serge ant Asht on rec eived a call from Sergeant Shemwell who advised that “a littl e rec tangular pot sc rubber that had bee n used” to c lean up blood had bee n found at the crime scene . Captain Fitzpatrick then c onfronted the defe ndant about the inconsistence s in wh at h e h ad tol d the offic ers a nd the evidenc e that had b ee n collecte d. When the office rs questioned the de fendant about the sponge, he admitted that he had use d the sponge “ to clean up the blood and then had rinsed it out and had pla ced it in a dish which is exa ctly wher e it had bee n found.”

Asked if the de fendant later “ change [d] his story,” Capta in Fit zpatrick re plied:

And we c onfronted him with them one a fter another bre aking down the ini tia l st ory th a t he ha d to ld. He ha d be e n c a lm u p u nti l a c e rt a in po int a nd t h e n i t ’ s a l m o s ta s y o u s e e o n P e rr y M a s o n

. O n c e t his information bega n to build up and build up and build up and then he broke dow n and admitted t h at he ha d been the person who ha d inflicted the injuries on Mrs. Moten.

Th e de fe nd a nt’ s st a te me nt w a s r e du c e d to writi ng , a ndthe de fe nd a nt s ign e d it . I n h is statement, the de fendant said he had “ cut [the victim] with a kitchen knife ,” which he desc ribed a s a “stea

k knife size ” with “a

brown woode n handle.” Asked what had

cause d the alter cation betwe en him and the victim, the def endant r eplied:

Well, whe n I got home, my neighbor ne xt door
, Buddy, told m e that some people had been going in and out of the house earlier that day. When I went in, I let the dog in the house and put the dog in the room that she sleeps in. I a sked her why had people be en going in and out of this house and you know I don’t like people in this house when I’ m not here . She told me that there hadn’t been nobody in this house and I told her that she was lying bec ause Buddy had told me that he had seen pe ople goi n g i n an d out of the house. She told me that he w as lyi ng a ndI t old he r, “ [Y ]e a , ri gh t. I d on ’t be lie ve yo u” a ndI w e nt t o th e b a th r o o m t o u s e it

a n d s h e c o n f

r o n te d me a t th e b a th r o o m d o or when I tried to walk pa st and she gra bbed me and I pushed her off of me and she fell into the shelf that was sitti ng by the bathroom door.

Af ter I p us he d h e r I we nt t o th e kit c he n. I w e nt t o g e t so me thi ng to drink . Sh e ke pt p ull ing on my arm a ndsh e hit me in the ba c k o f m y he a d s o I turne d a

ro un d a ndhit

he r i n th e sh ou lde r. She sw un g at me and she missed a nd then I g ra b b ed her and grabbe d the cor d on the kitchen counte r and w rappe d it around her neck. T hen I pulled open the kitchen dr awe r and grabbe d the kitchen knife . She started pulling

away from me a fter I wra

pped the c ord around her ne ck. She re ache d for the ba ck door and opened it a nd I snatche d her ba ck and I cut her

. Th e n s he fe ll dow n an d start e d ble e din g an d I wa lke d aw a y a ndc a me-4- back and tried to clean up the blood and I c leane d the kni fe and put it back and I put the sponge bac k into the dish and I ca lled 9-1-1.

The de fendant admitted that he had pulled the victim’s pants off “ [t]o make it look like somebody else did it .” He acknowledge d that he had “ knocked” the blinds off the wall in the kitchen w hen he put the sponge bac k. The de fendant said that he had not wanted to kill the v ictim because he loved he r and that he “just snapped.” Captain F itz patr ic k s a id the de fe nd a nt n e ve r i nd ic a te d th a t he ha d k ill e d the vic tim in se lf-def

ense or that he had been injured during the alterc atio n

. F i t zp atrick acknow ledged that the de fendant had be en aw ak e for at least e ighteen hours at the tim e he ga ve his state me nt.

Lieutena nt Robert Shemwell testified that he a nd S ergeant Ve nnes Owe ns were instructed to sea

rch for bloody clothing at the crime scene . Although they did not find any bloody clothing, they found a wet spong e with the “same width of the pattern o f b lo o d s me ar

p a tt e r n th a t w a s b e s id e th e [ v ic ti m’ s ] b o d y o n th e f lo o r.” She m we l l p l ac ed the sponge beside the blood smea r on the floor

and took a photograph for

comparison purposes. He the n took the sponge to the homicide off ice wher e he show ed it to Sergea nt Ashton. After he learned that the de fendant had

c on fe sse d to kil lin g th e vic tim , L ie ute na nt S he mw e ll r e turne d to the c ri me sc e ne to “locate a knife that was possibly used in the murder .” T h e o fficers had r ece ived information that the murde r we apon wa s “a serrated edge knife, like a steak knife with a wooden handle.” Photographs we re ma de of sever al knives found in a dra wer and one was collecte d as evidenc e. Sergeant Ashton later showe d the collec ted knife
to the de fe nd a nt w ho ve ri fi e d th a t it wa s th e kn if

e he ha d u se d to kil l th e vic tim

.

Dr. J en n i fe r Love, a

fore nsic anthropologist at the Regional Forensic Ce nter of Me mph is w ho wa s a c c e pte d b y th e c ou rt a s a n e xp e rt in the fi e ld o f f or e ns ic anthropology, testified that she ha d revie wed the vic tim’s autopsy report a nd had examined a

fore nsic ca st made of the c artilage from the victim’s nec k region. She made sa mple cut marks with the suspect knife, compared them to the castings made of the c art ila ge of

the vic tim ’s ne c k, a ndop ine d th a t th e kn if e wa s “ c on sis te nt w ith the knife that was used in terms of the serr ations.” Howeve r, she could not dete rmine if the knife w as the a ctual murde r we apon.

Dr. O’ Brian Cleary Smi th testified that he performed the autopsy on the victim’s body on February 2, 2001, which revea led t he pre sence of alc ohol and coc aine in her system. He said the vi ctim died “as a result of bot h ligature strangulation and cutting of the ne c k. Spe c if

ic a lly wi th the lig a tur e str a ng ulatio n the re ’s a mark le ft on the sk in at the fr ont surfac e of the neck t h at is consistent with a narr ow cor d that measure s about one tenth of

an inch.” He de scribed the cuts to the victim’s neck:

In the fr ont portion of the nec k there was a series of wounds about five and three quarte r inches in le ngth a cross the front. And it was not

a sin gle wo un d b ut i t w as a con flue nc e of a t le a st t hr e e wo un ds in-5- which ther e wer e-you could tell w here a wound would start and then another wound would begin within that wound and it would leave a jagged e dge or ma

rgin to the wound indicating that about three or a minium of three passe s of the knife wer e require d to produce a wound of this type. There wer e two small superf icial abr asions wher e the

c u t t i n g s u r f

a c e o f t h e k n i f e b ar e l y t o u c h e d t h e s k i n

. I tw a s j u st

e no ug h to cut thr ou gh the ve ry top la ye rs . T ho se we re in l ine wi th two of the other

tw o cuts. So I think with a fair de gree of medica l competenc e and c erta i n ty at a minium of three pa sses of the knife

wo uldha ve be e n r e qu ir e d to pr od uc e the inj urie s to the ne c k. Th os e injuries went down de ep enough to cut through the two hea vy muscles on either side of the neck

. . . . In so doing t h e k n i fe went through bo t h o f t he jugular ve ins, the externa l jugular veins. . . . [T]he knife proc eede d through the windpipe a nd the voice box c utting it almost t o the re ar w all of the windpipe leaving tool marks pre sent in the cartilage of those tissues.

Asked whic h injury cause d the victim’s death, Dr. Smit h opined t hat either the knife wounds or t he st rangulation could have been lethal and said that eac h injury occur red while the victim was still a live. He agre ed that a cut to the victim could have begun while she wa s standing but said she “did not have the extensive damage to he r nec k done while she was standing up.”

I d . at *1 -4.

On August 11, 2006, the petitioner timely fi l ed a petition for post-c onviction relief. There after, post-co n v i ct i o n co u n s el wa s ap p o i n t ed
, an am en d ed p et i t i o n wa s fi l ed
, and an evidentiary hearing was held. At the he aring, the petitioner t estified that his trial counsel r epre sented him at trial

a ndon app e a l. He re c a lle d tha t he hir e d co un se l ar ou ndFe br ua ry 20 01 a ndhis c a se we nt t o tria l in August 2004. Acc ording to the petit ioner, he communicated w ith counsel about eight to ten times during counsel’ s repr esentation, including three t o five meetings at t he jail. The pe titioner rec alled that he a nd c ou ns e l had le ng thy c on ve rs a tio ns abo ut his c a se . How e ve r, he c la ime d th a t c ou ns e l di d

no t de mon str a te e nth us ia sm f or the c a se a ndwo uldso me tim e s “ no d o ff ” du ri ng me e tin gs

.

Th e pe tit ion e r t e sti fi e d th a t he a ndc ou ns e l di sc us se d d e fe ns e str a te gie s. Th e pe tit ion e r s a id he kept ur ging counsel to find a way to prove his innocenc e. The petiti oner also told counsel that he wante d to te sti fy a t tr ia l. Cou ns e l tol d the pe tit ion e r that th is s tr a te gy wo uldno t w or k b e c aus e of the pe titioner’s statement to police. Counsel advise d the p et i t i oner that they should pursue a strategy t h at t h e p et itioner ac ted in the “he at of pa ssion” in order to pe rsuade the jury to find the pe tit ion e r g uil ty o f v olu nta ry ma ns laug hte r. Th e pe tit ion e r c omp la ine d th a t w hen he vo ic e d h is opinion, counsel would get upset, use vulga r langua ge, and a ct unprofe ssionally.

The pe titioner testified that counsel f iled a gene ric motion to suppress the petitioner’s
statement t o police, alleging that the petit ioner was not properly Mirandized

. The petitioner re called that the trial court denied the motion to suppress on this basis. The pe titioner acknow ledged that the-6-

p o l i c e o f f i c e r s i n f o r m e d h i mo f

his Miranda ri gh ts andthat he sig ne d at le a st t wo waive rs of his Miranda rights before giving his st atement to police. H oweve r, the pe titioner asserte d that counsel sh o u ld h a v e ma d e a n e f f o r t to p u r s u e th e s u p p r e s s io n o f h is s tate me n t to p o li c e d u e to the

c ir c ums ta nc e s un de r wh ic h it wa s g ive n. Th e pe tit ion e r e xp la ine d th a t he origi na lly pr of e sse d h is inn oc e nc e of

the mur de r b ut l a te r c on fe sse d be c aus e he wa s a fr a id. Th e pe tit ion e r s a id that w hil e in custody, he wa s interviewe d by a number of diffe rent poli ce office rs and some of t hem ra nted and

rave d at him. T he petitioner said that one of the office rs told him that if he c onfesse d he would get twenty-fiv e y ea rs confine ment, but if he did not confe ss he would re ceive a life se ntence . The petitioner cla imed he confessed be cause he wa s kept in a small cell with no windows, had little sleep,

a ndha d n oth ing to e a t e xc e pt a Cok e a ndso me c ra c ke rs

. The pe titioner admitted that he reviewe d the origi nal m otion to suppress with counse l. The pe tit ion e r s a id h e didno t ask c ou ns e l to fi le a no the r m oti on to s up pr e ss b e c aus e c ou ns e l to ld h im that it would not work. The petitioner sa id t h at h e fi led a pr o se motion to suppress but did not

rec eive a response from the state o r a h earing by the court. The petitioner said that ther e wa s no physical evide nce or

witness testimony which tied him to t he murde r.
The pe titioner testified that he discussed with counsel the possibili ty of presenting an alibi defe nse. He asserted that he gave counse l a list of ten to fifteen pote ntial witnesses but he wa s
unawa re if c ounsel eve r conta cted a ny of them. The pe titioner noted that counsel filed a notice of alibi. T h e p et i t ioner c omplained that counse l failed to ade quately investigate his ca se and communicate w ith hi m

. Ho wever, counse l said that he did not attempt to obtain new counse l beca use he did not know how and could not aff ord anothe r attorne y.

Trial c o u n s el t es tified that he ha d prac ticed law f or over forty yea

rs and ha d handled a

nu mbe r o f mur de r c a se s. He sa id that he be ga n r e pr e se nti ng the pe tit ion e r a bo ut t wo a ndon e -h a lf year s befor e the pe titioner’s trial. Coun s el es t i mated that he me t with the petitioner five to seve n times at the jail and had nume rous conver sations w ith the petitioner about the case

. He discusse d possible defe nse st rate gies with the petit ioner. He recounte d that the petit ioner wanted t o pursue a strategy that he did n o t have e nough time to commit t he murde r. Counsel rec alled, howe ver, that he wa s unable to find any w itnesses who c o u l d co rr oborate the petitioner’s de fense strategy. I n addition, the petitioner gave a stateme nt to police wherein he admitted that he murde red his wife and told police wher e to find the knife he used to c ut his wife’s throat. Counsel a lso note d that there was
a go oda mou nt o f f

or e ns ic e vid e nc e wh ic h s up po rt e d th e pe tit ion e r’ s st a te me nt.

Counsel a cknowledge d that he argue d with the petitioner over the motion to suppress. He

rec alled that the pe titioner would occa sionally profess that he did not make a statement to police a nd counsel would have t o remind t he petiti oner that he had signed the statement. Counsel said that he discussed the de fense strategy that the pe titioner killed his wi fe i n a state of passion produce d by

a de qu a te pr ov oc a tio n. He sa id that the pe tit ion e r ev e ntu a lly a gr e e d withhim that arg uin g a de qu a te provocation was the only viable option given the e vidence

.
Counsel acknowle dged that he could have a rgued the petitioner wa s sleep-de prived whe n he confe ssed to police. Counsel noted, howe ver, that it was better t o have the statement introduce d at trial than have the petitioner testify. He explained that the statement indicate d that the petitioner’s-7-

wife ha d been e ntertaining men at their house while the petitioner was at work. As such, the strategy was to establish adequate provocation in eff ort to persua de the jury to find the petitioner guilty of voluntary m an s l aughter

rathe r than sec ond degre e murde r. Counsel stated that without the introduction of the stateme nt at trial, he c ould not have ar gued voluntary ma nslaughter.

Cou ns e l te sti fi e d th a t he a dv ise d th e pe tit ion e r n ot t o te sti fy be c aus e he wo uldbe su bje c t to

cross-e xamination. Counsel rec alled that the p et i t i o ner initially insist ed on testifying, but he

c ha ng e d h is m indprior

to t ri a l. C ou ns e l said that e ve n if the st ate men t had be e n s up pr e sse d, it would likely have c ome in during cross- examination to impeac h the petitioner’s te stimony.

The post-c onviction court denie d the petit i o n fo r post -convic tion relief by written order
enter ed Mar ch 27, 2008. The court found int e r a lia , that the petitioner failed to establish the fac tual

a lle gatio ns c on ta ine d inhis pe tit ion by c le ar andc on vin c ing e vid e nc e . T he pe tit ion e r f ile d a tim e ly

no tic e of app e a l.

AN AL YSI S

In order for a petiti oner to succe ed on a post -convic tion claim, the petitioner must prove the allegations of f

act se t forth in h i s petition by clear and convinc ing evidence . Tenn. Code Ann. § 40 -3 0- 11 0( f) . O n a

pp e a l, this c ou rt

is r e qu ir e d to a ff

ir m th e po st- c on vic tio n c ou rt ’s fi nd ing s u nle ss the petitioner prove s that the evidenc e prep o n d er at es against those findings. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). Our r eview of the post-conviction court’s fac tual findings, such as fi nd ing s c on c e rn ing the c re dib ili ty of wi tne sse s a nd the we igh t a nd va lue giv e n the ir te sti mon y, is de novo with a presumption that the findings are corr ect. See id. Our review of the post-conviction court’s le gal conc lusions and application of law to fac t s i s d e n o v o without a presumption of

corr ectne ss. Fi e lds v . S tat e , 40 S.W.3d 450, 457-58 (Te nn. 2001).

In orde r to establish the ineff ective a ssistance of c ounsel, the petitioner be ars the bur den of proving that (1) counsel’s perf ormanc e was defic ient and (2) the def icient per formanc e pre

judiced the def ense r endering t h e o u t come unreliable or f undamentally unfair. Strickland v. Washington
, 46 6 U.S. 66 8, 68 7 ( 19 84 ); se e als o A rn old v . S tat e , 143 S.W.3d 784, 787 (Tenn. 2004) . Def icient perf ormanc e is shown if counse l’s conduct f ell below an obje ctive standa rd of rea sonablene ss under prevailing prof

essional standar ds. Strickland , 4 66 U. S. at 68 8; se e als o B ax te r v . R os e , 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that repr esentation should be within t he range of c ompetence demande d of attorne ys in criminal case s). A fair asse s s me nt of counsel’ s perf ormanc e, “r equire s that

every eff ort be made to eliminate the distorting effe cts of hindsight, to reconstruc t the circ umstances of counse l’s challenge d conduct, a nd to evaluate the conduc t from counse l’s perspe ctive at the time.” Strickland , 4 66 U. S. at 68 9; se e als o Nic ho ls v . S tat e , 90 S.W.3d 576, 587 (Tenn. 2002) . Def ere nce is m a de to t

ri a l st rategy or ta c tic a l c ho ic e s if the y a re inf orme d o ne s b a se d u po n a de qu a te prepa ration. He lla rd

v . S tat e , 629 S.W.2d 4, 9 (Tenn. 1982). The f act that a particula r strate gy or tactica l de cision failed does not by itself establish ineffe ctive assistanc e of c ounsel. Go ad v . S tat e , 93 8 S. W .2 d 3 63 , 3 69 (T e nn . 1 99 6) . O nc e the pe tit ion e r p roves that c ou ns e l’ s r e pr e se ntatio n f e ll below a r easona

ble standar d, the petitioner must also prove pr ejudice. Pre judice is shown if, but for counsel’s unpr ofessional e rror s, there is a rea sonable proba

bility that the out come of the proc eeding would have be en diffe rent. Strickland , 466 U.S. at 694. B oth deficie nt performance and pre judice-8-

must be established t o p ro v e i n ef fe ctive assistanc e of c ounsel. Id . at 697. If e ither ele ment of ine ff e c tiv e a ssi stanc e of c ou ns e l has no t bee n est abli sh e d, a c ou rt ne e d not ad dr e ss the oth e r e le me nt. Id

. The pe titioner alleges that his trial counse l was ineff ective in faili ng to challenge the suppression of his statement on the gr ounds that it was involunt ar i l y given. Specific ally, the petitioner asse rts that the “boilerplate m otion filed m ade no mention of t he fa ct that at the time the [p]e titioner gave [ i]nvestigators the inculpatory statement, he had been awake for over twenty-four hours and ha d been thr eate ned or c oerc ed by investigators.”

Upon re v i ew of

the re cord, w e conc lude that the petitioner f ailed to demonstrate he wa s de nie d th e e ff

e c tiv e a ssi stanc e of

c ou ns e l. T he pe tit ion e r’ s c la im o f d e fi c ie nc y is pr e mis e d s ole ly on his allegation that counsel f ailed to file a

motion t o s u p press his statement to police on the grounds that it was involuntary. Howe ver, c ontrary to the pe titioner’s all egation, trial c ounsel
te sti fi e d th a t th e be st d e fe ns e str a te gy in the pe tit ion e r’ s c a se wa s to arg ue the pe tit ion e r kill e d h is wife in a state of pa ssion produced by a dequ at e p ro v o ca t ion. Counsel stated that without the introduction of the stateme nt at t ri al
, he could not have argue d voluntary manslaughter . Counsel noted that this defense strate g y was discussed w ith the petitioner. As such, c ounsel made a

rea sonable strategic dec ision based upon adequate pr epar ation and investigation. Moreove r, the petitioner fa iled to prove the f actua l allegation that his state ment was involuntarily give n. Contrary to his allegation, the petitioner admitted at the e videntiar y h ea ri n g t h at he wa s rea d his rights and signed at lea st two differ ent waiver s prior to giving his statement. The petitioner did not pre sent any evidenc e at the he aring to cor roborate his allegation that he w as deprived of sle ep , h u n g ry , and

coer ced by police. Additionally, the petit ioner failed t o establish that these alleged circ umstances

a ff e c te d th e vo lun tari ne ss of his state me nt. Ac c or din gly , th e pe tit ion e r i s n ot e nti tle d to re lie f o n th is issue.

CO NC LU SION

Th e p et itioner has failed to meet his burden of proof r egar ding his claims of ineffe ctive assistance of counse l and the post-convic tion court corr ectly denie d the petition. There fore , the judgment of the post-convic tion court is affirmed.

___________________________________ J.C. McLIN, JUDG E