# FILED September 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIM INAL AP

PEALS OF

TENNESSEE AT NASHVILL E AUGUST 1 997 SESSION

WILLIAM R. WATERS ) ) C.C.A. NO. 01C01-9610-CR-00418 Appellan t, ) ) VS. ) DAVIDSON COUNTY ) STATE OF TEN

NESSEE ) ) Hon. Thomas H. Shriver Appellee. ) Judge ) ) (Post-Conviction)

FOR THE AP

PELLANT: FOR THE AP PELLEE: DWIGHT E. S COTT JOHN KNOX WALKUP 4024 Colorado Avenue Attorney Gene ral and Reporter Nashville, Tennessee 37209 PETER M. COUGHLAN Assistant Attorney Gene

ral Criminal Justice Division 450 James Robertson Parkway Nashville, Tennessee 37209 MARY HAUSMAN Assistant District Attorney Washington Square Building 222 Second Avenue

North Nashville, Tennessee 37201

OPINION FILED:____________________

AFFI RMED

JOE H. WALK

ER, III Sp. JUDGEOPINION

The petit ioner en tered a plea of g uilty to second

degre e murder , and rec eived a t wenty year se ntence as a standard offender
. He appeals from the denial of a petition for post-conviction re lief, alleging ineffective assistanc e of coun sel. He w as assisted by an attor ney at the pos t-conviction hear ing, an d his petit ion wa s deni ed afte r a hear ing. On appeal, his attorney

asserts that the court erred in deny ing relief based on ineffective assistance of counsel, and that trial counsel’s lack of investig ation led to inadequate advice to the petitioner, causing the petitioner to plead guilty to second degree murder, ra ther than voluntary manslaug hter. Pet itioner a lso filed a brief, p ro se, alleging

that his co

unsel did n ot adequa

tely prepare the case, did not adequately investigate the case, which resulted in petitioner incriminating himself by e ntering a plea of guilty

to second degree murder.

Factua l Background

On June 29, 1 992, petit

ioner wa s at his re sidence in Davidso n County , and his ve hicle was parked outside on the street. A group of pe ople were standing around the residenc e outside. A car came by

with two individuals, and the passenger threw a firec racker out the window. The firecracker ignited some gasoline which was leaking fr om petitioner’s vehicle, causing the car to burst int

o flames. Petitioner

came out side to se e his car on fire. He was to ld by some of the individuals who wer e outside the name of the person who had thrown the firecracker. Petitioner then left and went to some apartments in Nashville in search of the per son who had thrown the firecracker. He did not find that person, but found someone he believed to be driving the car from which the firec racker was thrown, and petitioner then produc ed a gun and fired tw ice, and

killed the victim with

one of tho se shots. The public defender was appointed to repre sent petitioner, and on January 7, 1993, petitione r enter ed a plea of guilt y to second d egree murder, upon an a

greed sentenc e of twen

ty years a s a standard offender. Th e p et it io ne r h ad a p ri or co nv ic ti on fo r p er ju ry.On May 10, 1996, a post-c onviction proceeding was conducted, witnesses testified, a nd the court found that the public defender did an excellent job for petitioner. Ma ny motions were filed, a nd a compl ete inve stigatio n was done . The off ice of the public d

efende r intervi ewed som

e fifteen witnesses. Petitioner was deny ing he committed the crime and was going to trial. The public defender was prepared to g o to trial, and only after the public defender negotiated a g ood deal for petitioner did petitioner admit his involvement in the homicide.

I. When this c ourt unde

rtakes r eview of a lower c ourt’s decision on a petition for postconviction relief, the lower court’s findings of f act are given the weig

ht of a jury ver

dict and are conclusive on appeal absent a finding the evide nce preponderates aga

inst the judgment. Clenny v. State , 576 S.W.2d 12, 14 (Tenn.Crim.App. 1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2170, 60 L. Ed. 2d 1050 (1979) Tay lor v. Stat e , 875 S.W.2d 6 84, 686 (T enn.Crim. App. 1993 ), perm. to appeal denied

(Tenn. 1994).
The test in Tennessee in determining whether c ounsel provided effective assistance at trial is wh

ether the perfo

rmance was within

the rang e of comp etence demande d of attor

ney s in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), provides a two-prong a nalysis when a petitioner claims ineffective assistance of counsel. The petitioner has the burden to prove that (1) the attorney’ s performance was deficient and ( 2) the deficient performance re sulted in prejudice to the defendant so as to deprive him of a fair trial. I d. at 687, 104 S.Ct. At 2064. In or der to pr ove prej udice in t

he conte xt of a gui lty p lea, the

petitione r must demo nstrate that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would ha

ve insisted on going to trial. Hill v. Lockhart , 474 U.S. 5 2, 58-59, 106 S.Ct. 366, 370, 8 8 L. E d. 2d 203 ( 1985); see Bailey v. State , 924 S.W.2d 918, 919 (Tenn.Crim.App. 1995); Wade v. Sta

te , 914 S.W.2d 97, 101 (Tenn.Crim.App.1995). II. The defendant complains that his attorney did not interview some relatives who witnessed his car c atch a f

ire. The re was te stimony

that the public def

ender di d intervie

w these w itnesses, and the court found they

were interviewed. However, ther e was no dispute that the car caughtfire. There was no allega tion that any of the witnesses, whic h petitiioner complained about, had anything e

lse to offer, and the State was willing to stipulate that petitioner’s car c aught fire and exploded. The events leading up to the shooting were thoroughly investig ated. The attorney filed
numerousmotions, int

erviewed eight o

r ten of th e fiftee n witnesse s persona

lly, and compl etely prepar ed for tr ial. Petitioner also complains that his attorney did not personally visit the scene of the crime. However defense investigators did re view the scene, reported to the attorney , and the attorney was already

familiar with the area. Petitioner took the position that he did not commit the crime. Until shor tly p rior to entering a plea of guilty , he alleged he was elsewhe re. Petitioner now complains that his attorney failed to inquire into his state of mind in an effort to show that he acted in a state of passion produced by a

dequate provocation sufficient to lead a rea sonable person to act in an irrational
manner. His attor

ney at the pos t-conviction hear ing stat ed that it w as a little

hard to di scuss mental state at the time of the shooting with petitioner, since petitioner indicated he did not commit the shooting. Petitioner asserts that he finally stopped lying to his attorney , admitted he shot the victim, and that his attorney should have pursued voluntary manslaug hter rather than settling for a plea of second deg ree murder. Petitioner insists that his car exploding caused a state of p assion; ho wever, he now ad mits he obta

ined a we apon, dr

ove to another loc ation in search of someone, and that it was sometime later when he shot the victim. There w as much ne gotiatio n betwee n his attor ney and the D istrict At

torney Genera l with regard to a negotiate d plea. The petitioner had been convicted of per jury, he re

mained a suspect in a different murder, and he was also a suspect in an attempted murder. The District Attorney was seri ous about p

rosecut ing the d efenda nt in this ca se. His at

torney repeat edly tried to se

ttle this case, and testified that he was well pleased with the settlement, based on the fact that the petitioner actually g oes looking for somebody and shoots them in the back from a distance of twenty fee

t. He felt that a second degree murder plea for twenty

years a t thirty percent unde

r the facts of this case, and the record of the petitioner, was a plea that was in the best interest of petitioner. During the entry

of the plea of guilty , the petitioner himself stated to the court that he wassatisfied with the way his attorne y had handled the

case, that he had spoken with his attorney about all defense s, and tha

t he was sa

tisfied w ith the ne gotiate d plea ar range ment.
The petitioner has failed to demonstrate that his attorney ’s performance was deficient, or that there was a probability that he would not have pleaded guilty and would have insisted on going to trial except for his attorney ’s errors. The evidence does not preponde rate against the judgmen t of the po st-convi ction cou rt. The judgment of the lower court is affirmed.

__________________________ JO E H. WA LKER , III Sp. JUDGE CONCUR:

_______________________ JOE G. RILEY, JUDGE

______________________ J. CURWOOD WITT, JR., JUDGE