### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Marc h 22
, 200 5

GAR Y R AN DA LL Y AR NEL L v. S TAT E OF TEN NES SEE

Appeal f romthe Circ uit Court for Blou nt County No. C-11964 D . Ke lly Th om as, Jr., Judge

No. E2004-01762-CC A-R3- P C F iled Augu st 15, 2005

Gary Randall Yarnell, the petitioner, appeals the Blount CountyCircuit Court’s denial of his petition for post-c onviction relief. The lower court found hi s alleg ations of i neff ective assistance of

counsel

a ndun kn ow ing a nd inv olu nta ry g uil ty ple a s u ns up po rt e d b y

the e vid e nc e a ndde nie d r e lie f. B e c a us e
we are un pe rs ua de d o f e rr or , w e a ff ir m.

Te nn. R . A pp. P . 3 ; J udgm e nt of t he Ci r c uit

Co ur t i s A ffirm e d.

J A M ES C UR WO OD W I TT , J R ., J ., delivere d the opinion of the court, in w hich D AVI D G. H AYES and J ER R Y L. S MI TH , J J ., joined.

Rob e rt M. Coh e n, Ma

ryvil le , T e nn e sse e , f

or the Ap pe lla nt, Ga

ry Ra nd a ll Y arn e ll.

Paul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; Kathy D. As lin ger, As sis ta nt A tto rn e y Ge ne ra l; Mic ha e l L . F ly nn , D ist

ri c t A tto rn e y

Ge ne ra l; a nd Roc ky Yo un g , A ssi sta nt D ist ri c t A tto rn e y

Ge ne ra l, for the A ppellee, State of Tenne ssee.

OP IN ION

I n 1998, the petitioner plea ded g uiltyto first deg ree murd er , espec ially ag g ravated robbery , and espe cially

ag g ravated burg lary . He r ece ived conc urre nt se ntence s of life imprisonment with the possibili t y

of par ole, 15 y ear s, and 12 y ear s respe ctively . Fr om the rec ord, we g lean that his convictions ste m m ed fr o m the 1996 baseba ll-bat bludg eoning death of Steven Mote. The victim’s body

was stuffe d into the trunk of his own vehicle , and that vehic le was driven to a sec luded

are a of D oug las L ake and set on fire

.

The TVAPolice unit on dutyat Doug las L ake was dispatche d to the scene of the fir e. Th e re c or d b e fo re us c on ta ins a TV A Pol ic e Un if

orm I nc ide nt R e po rt

in w hic h th e fo llo wi ng de ta ils appea r:

I NI TI AL

OB SERVATI ONS OF O FF I CER L OVIN:2 On 10/15/96, at approximately 0732 hours, whil e in route to the fire

s c e n e , I o b s e r v e d a

w h it e ma le
, late r

id e n ti f ie d a s [t h e p e titioner ], walking on Hig hway 338 in Sevie r County near the scene

. [ T he petitioner] was dresse d in br own or lig ht black dre ss pants, a buttonup shirt, a ca p, and brow n or blac k dress shoes. [The pe titioner] s tated that he wa s g oing to work, and that he worked at Tennessee Cy linder Hea d, on Chapman Hig hway , in Knox ville. I ask[ed] where he had been. [The pe titioner] s tated that he had s tay ed with hi s brother the night be fore
, who he said lived just across the hill, and had g otten up

e arl y to g o me e t hi s g ir lf

ri e nd . [T he petitio ne r] s ta te d th a t hi s g irlfriend w as supposed to pick him up. [ The pe titioner] s tated that she had not show[n] up, s o he dec ided to walk down the r oad to see if he c ould fi n d her a ny wher e. [The petitioner] stated that he wa s g oing to the L akew ay Marke t to call his sister and have her come a nd take him to w or k, if he cou ld no t f

indhis g ir lf

ri e nd . K no xvill e Communi cations verified that there wer e no w ants or wa rra nts on [ the petitioner]. After this, I

proce eded to the sc ene of the fire

.

. . . .
After the investig ators too k o v er the crime sc ene, Ca pt. Majors in fo rm ed m e t o g o back to whe re I had see n [t he petitioner]. I was advised to locate[ and] t o bring [t he petitioner] back to the sc en e. I

was una ble to locate [the petitioner ] i n t h e ar ea of Doug las Dam. I proce eded to [the peti tioner’s] residenc e, . . . [and w]hile at the residenc e, I

spoke with [the petitioner’s] mot her . . . [who] admitt ed that her son ha d called he r this morning, a round 0800 hours fr om the L ake way Ma rk e t in Se vie r C ou nty . Sh e a dv ise d me that he r s on tol d he r t hat h e ha d c a lle d h is s ist e r t o c ome to p ic k h im u p a ndthat hi s
s i s t e r w a s o n h e r

w a y.
Eventually , law enf

orce ment office rs locate d t h e petitioner, a nd he g ave an inculpatory

statement to the police implicating himself and a fe male compa nion, Candace McCarte r, in the robbery an d m u rd er of the victim. The pe titioner admitted to the police that he struc k the victim with a bat, but the petitioner maintaine d that he did not mean to kill the victim. Base d on the

c ir c ums ta nc e s o f the ho mic ide , the stat e ini tia lly so ug ht the de a th p e na lty bu t late r a g re e d to withdrawn its notice in exchang e for the petitioner’s ple a.
Slightly less than one y ear afte r entry of hi s g uilty pleas, the petitioner filed a pr o s e petition for post-conviction re lief. Ther eaf ter, the pe tition was amended se vera l times, and five dif fe re nt atto rn e y s w e re app oin te d to re pr e se nt t he pe tit ion e r, fo ur

of wh om w e re pe rm itt e d to withdraw. A n evidentiary hearing w as conducted on May 13 and 14, 2004; the litigated issues wer e3

ineffe ctive assistanc e of c ounsel, involuntary g uiltypleas, prose cutorial misconduct, illeg al confe ssion, and lack of

culpable me ntal state.

At the po st- c on vic tio n h e ari ng , th e pe tit ion e r’ s le a d tria l c ou ns e l te sti fi e d abo ut h is

app oin tme nt to re pr e se nt the pe tit ion e r. I na smu c h as the state wa s see kin g the de a th p e na lty , d e fe ns e
co-c ounsel was also appointed to w ork on the case

. L ead counsel was asked about the initial stop of the pe titioner on Hig hway 338, near the fire sc ene. T rial counse l had not filed a pr etrial motion challeng ing the stop as illega l, and lead co u n sel testified that he sa w no basis to attack the stop inasmuch as the e ncounter took place in a

public place and no seizure oc curr ed.

L ead c ounsel had filed a

pretria l motion t o suppress the state ments that the petitioner g ave to law enfor ceme nt office rs. The motion al l eged that the petitioner wa s first interviewe d on May 15, 1996, and that during the interview he reque sted that counsel be prese nt during any further questioning. The petitioner provided the name of his attorney , and bec ause the petitioner could not

rea ch h i s attorney , the interview conclude d at that time. Acc ording to the suppression motion, appro xim a te ly th r e e d a y s late r , a n o f f ic e r c o n ta c te d th e p e ti ti o n e r d ir e c tl y a n d r e q u e s te d th a t the pe titio ner go t o t he Bl ou ntCo un tyS heri ff’s Dep art men t t o b e ph ot ograph ed an d p rovidefi ng e rp ri nts

. The re quest, the motion alleg ed, wa s a ru s e t o i nterview and obtain evide nce f rom the petitioner wi tho ut the pr e se nc e of

c ou ns e l, andind e e d, the pe tit ion e r ult imate ly ma de inc ulp a tory state me nts to the office rs without the benef it of counsel. L ead counsel testified that part of the ple a ag ree ment with the state require d the defe nse to w ithdraw that motion; conse quently
, the suppression motion

was ne ver litig ated.

Reg arding investigation into t he petitio n er ’s culpable me ntal state, lea d counsel acknow ledg ed that no mental e valuation was pe rformed. He r eca lled, howeve r, th at co-counsel contac ted an e x pert on the e ffe cts of marijuana and other int ox icants t o explore a possi ble def ense. The fa cts, howeve r, appeare d to show considera ble deliber ation and ac tivity , including c lubbing the victim, stea ling his pr operty , loading up the victim’s c ar and placing the victim’s body in the trunk, driving to another c ounty , and setting the ca r on fire. As a result, lead counsel was not convinced that voluntary

intox ication was a

viable def

ense. Likewise, lea d counsel did not believe that it was possible to successfully

arg ue criminally n egl i gen t homicide to a jury . Even so, lea d counsel spec i fi callyrec alled discussing lesser inc luded offe nses with the petitioner, a lthough c ounsel was not encour ag ing a

bout the prospec t of a lesse r included of fense conviction.

L ead c ounsel was shown a copy of an undated statement ha ndwritten by a fe male who

was an inmate at the B lount Count y J ail at the same time the petitioner’s fe male co- defe ndant was detained. The writer re ports that on September 1, 1997 – be fore the petitioner plea ded g uilty– codefe ndant, Candac e McC arte r, made sexual advance s toward the w riter, a ssaulted the writer, and admitted holding the baseba ll bat and killing the victim. L ead c ounsel could not rec all ever rec eiving that e xcu lpatory

state me nt f

ro m th e state . H a d c ou ns e l be e n a wa re of the statem ent , c ou ns e l sa id that he would have discussed it with the petitioner and c ould h av e u s ed it to im peac h the codefe ndant had she testified.4 The state’ s death penalty notice had cited three ag g ravating c ircumstance s: that the murder w as espe cially

heinous, atroc ious, or crue l; that the murder was knowing ly

committed during the per petration of enumerated fe lonies; a nd the body of the victim wa s knowing ly mutilated after death. L ead counsel testified that he had not f iled any motions attacking the ag g ravating f actor s as unconstitutionallyvag ue.

The pe titioner, who was 2 3

- y e a r s o ld w h e nth ev ic tim was killed, testified about being stopped by

the TVA of

fice r as he was wa lking down the road ne ar D oug las Dam. The office r drove past the petitioner but then turned around and stopped wher e the petitioner was standing . Acc ording to the petitioner, t he officer “g ot out of t he vehicle and patted [ him] down and asked for [his] I .D.” The pe titioner did not ha v e a drive r’s lice nse, but he supplied his name a nd addre ss. The off icer “phoned” in the information and asked wher e the petitioner had been. The petitioner told the of fice r that he had spe nt the night at his brother’ s house and was walking to L akew ay Marke t. The off

icer told the petitioner to stay

wher e he w as until the information was checke d. The pe titioner estimated that the offic er de tained him “about f ive minutes.”

The pe titioner’s next conta ct with la w enfor ceme nt was later that night whe n sever al of fi c e rs c a me to his mothe r’ s ho us e a ndqu e sti on e d h im a bo ut C a nd a c e Mc Cart e r. At the of fi c e rs ’ reque st, the petitioner drove to the TBI office to disc uss the matter further

. The petitioner said that at a certain point, he tol d the officers he was unc omfortable and wanted his attorney prese nt. The petitioner wa s unable to re ach his attorney that evening , and he le ft the TB I office with the ag ree ment that he would conta ct the off icer s after he had spoke n with his attorney . The following d ay , the petitioner lea

rned that his attorney

was out of town an d would not return f or seve ral da y s. The petitioner then c alled one of the offic ers to advi s e t hat his attorney was out of town but that the petitioner would ask the attorney to call the off

icer s when he returne d.

T w o d a y s late r , o n e o f th e in v e s ti g a to r s f ir s t c o n ta c te d th e p e ti ti o n e r ’ s mo th er a nd later the petitioner to a sk that he provide his f inge rprints and be photogr aphed. T he petitioner w as at work a nd told the investigator that he had no tr ansportation, whe reupon the investigator arr ang ed fo r t rans po rt a tio n. Du ri ng that me e tin g , th e pe tit ion e r g a ve a state me nt t o o ne of

the inv e sti g a tor s. Th e pe tit ion e r a g re e d th a t c ou ns e l ha d f ile d a mot ion to s up pr e ss that st a te me nt.
The pe ti t i oner te stified that he and c ounsel had seve ral discussions about plea ding g uilty to a v o id th e d e a th p e n a lt y

. T h e p e ti ti o n e r r e je c te d th e id e a o f p le a d in g a n d a g r e e in g to a

s en t en ce o f l i fe wi t h o u tt h e p o s s i b i l i t y o f p ar o l e. W h en , h o we v er , a n o f f e rwa s m ad e i n v o l v i n g a sentenc e of life with the possibili ty of par ole, the petitioner, the peti t i o ner’ s family members, a nd counsel met to discuss the off er. The petitioner said t h at he aske d counsel a bout lesser include d of fe ns e s to wh ic h c ou ns e l r e sp on de d th a t “ the re is no ne e d to wo rry abo ut a le sse r- inc lud e d o ff

e ns e beca use there is no way

we c an kee p y ou from de at h ro w. ” Counsel showed the familymembers ph oto g ra ph s o f the vic tim

a ndthe c ri me scen e. Th e petitio ne r s a id that th e pic tur e s p ro fo un dly af fected his family . I n addition, counsel told the petitioner that the c o-def endant Mc Carter

was considering a plea

offe r involving te stify ing a g ainst the petitioner.5 At the time of the plea

discussions
, t h e p etitioner had be en in pre trial confine ment for a lmost t wo y ear s. He testified that he had be come de presse d and h ad s u icidal thoug hts. The petitioner cla imed that when he mentioned a psy cholog ical eva luation, counsel resisted the ide a on the ba sis that the pe tit ion e r wa s “ c omp e te nt. ” B e c a us e of his de pr e ssi on , the pe tit ion e r s a id that hi s plea wa s not knowing or

voluntary . Furthermore , he maintained that counsel n ev er discusse d or explained to him t he re quirements that first de g ree murder be intentional and pre meditated. As for witnesses who may

have he ard the co-de fenda nt admit to killing the victim, the petitioner said that counsel ne ver a dvised him of such individuals.

The final post-conviction witness was Detec tive J ames Widener, who p articipated in the homicide investig ation. He de scribed the murder scene and the a rea of Doug las L ake w here the vehicle was se t on fire. H e also wa s asked a bout the evidenc e in the ca se and a bout the inculpatory

statement the pe titioner had g iven to the offic er.

Fr om the evidenc e and t es t i m ony prese nted, the post-convic tion court made the following finding s: (1) Trial counsel were not ineffe ctive for failing to challeng e the officer ’s stop of the pe titioner in the vicinityof the fir e inasmuc h as n o l egal ba sis ex isted to contest the brief investigatory

stop; (2) the s tate’s failure to disclose ex culpatory evidenc e reg arding the statement of the inmate to whom co-de fenda nt Mc Carter had confe ssed to the homicide did not adver sely impact the ou tc ome of the tr ia l; (3 ) ha d the mot ion to s up pr e ss the pe tit ion e r’ s st a te me nt b e e n p ur su e d, it would not ha ve bee n succe ssful because the stateme nt was voluntarily made a fter the petitioner had initiated a conve rsation with law enf orce ment; (4) the petitioner failed to demonstrate that he wa s suffe ring from any

mental or c og nitive problems that u n d e rmi n ed the voluntariness of his g uiltyplea; (5 ) the e vid e nc e re fu te s the pe tit ion e r’ s c la im that dr ug a nd a lc oh ol us e a nd de pr e ssi on re nd e re d h im inc apa ble of in tent ion a l, p re me dit a te d h omi c ide ; a nd(6 ) the thr e a t of re c e ivi ng the de a th p e na lty would not have a

bated e ven had one of the statutory ag g ravat o rs b ee n s u cce ssfully challeng ed. Acc ording ly , the post-conviction court dismi ssed the petition.

I n post-conviction proc eeding s, the petitioner ha s the burden of proving by

clea r and convincing evidenc e t h e cl ai m s raised. T enn. Code Ann. § 40- 30-110(f ) (2003) . On appe al, the lower court’s findings of fa ct ar e re viewed de novo wi th a pr e su mpt ion of

c or re c tne ss that may

on ly be overcome if the evidenc e pre ponderates ag ainst those finding s. Fi e lds v . S tat e , 40 S.W .3d 450, 458 (Tenn. 2001)

.

When a petitioner challeng es t he effec tive assistance of counsel, he has the bur den

o f e s t ab l i s h i n g ( 1 ) d e f

i c i e n tr e p r e s e n t a t i o n a n d ( 2 ) p r e j u d i c e r e s u l t i n g f

r o mt h a td e f

i c i e n c y. Strickland v. W

ashington , 4 66 U. S. 6 68 , 6 86 , 1 04 S. Ct . 2 05 2, 20 64 (1 98 4) ; Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975)

. Def icient repr esentation oc curs when counsel’s service s fall below the ra ng e of c ompetence demande d of attorney s in criminal ca ses. Ba nk sto n v . S tat e , 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991) . Prejudice is the r easona ble likelihood tha t , b u t fo r def icient repr esentation, the outcome of the pr ocee dings w ould have be en differe nt. Ov e rto n v . S tat e , 874 S.W. 2d6, 11 (T e nn . 1 99 4) . Wh e n it is a lle g e d th a t th e ine ff

e c tiv e a ssi sta nc e of

c ou ns e l r e su lte d in a g uiltyplea, the bur den is upon the def end an t t o es t ab lish the prejudice pr ong of Strickland by6

proving that “ther e is a re asonable probability that, but for counse l’s err ors, he would not have pleade d g uiltyand would have insisted on going to trial.” Hi ll v . Lo c k ha rt , 4 74 U. S. 5 2, 59 , 1 06 S. Ct. 366, 370 (1985). On re view, ther e is a strong presumption of satisfac tory repr esentation. Ba rr
v . S tat e , 9 10 S.W. 2d 46 2, 46 4 (T e nn . Crim . App . 199 5)

. I f pr e jud ic e is ab se nt, the re is n o n e e d to examine alleg ations of def icient per formanc e. Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.

Tw o of the pe tit ion e r’ s c omp la int s re la te to pr e tr ia l mot ion s that he in si st s s hould have be en filed a nd/or litigate d befor e a ple a agr eeme nt was re ache d. First, the pe titioner assails trial counsel’s pe rformancein not raising the leg ality of the investigatory stop by Offic er L ovin; second, the petitioner a

rg ues that trial counsel was ineffe ctive in f ailing to pursue the motion, which had be en filed, to suppress the petitioner’s i ncriminating statements t o law enforce ment. To prevail on either

or both of these ineffe ctive-a ssistance complaints, the petitioner must demonstrate that the motions

wer e meritorious. See Kimme lman v. Morrison
, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986) (whe re f ailure to litigate suppression is basis of inef fec tiveness claim, def

endant must also prove suppression motion is m eritorious).

We review de novo the pos t-conviction court’s leg al conclusion that no basis in the law ex i s t ed to challeng e Of fice r L ovin’s stop. See Fields , 40 S.W .3d at 458. The pe titioner, we note, see mingly

fra mes the issue in terms of whe ther a “seizure” occur

red w hen he w as stopped. Ho we ve r, e ve n if

the pe tit ion e r w a s c on sti tut ion a lly “ se ize d, ” the ma tte r d oe s n ot e nd . H e mus t further demonstrate pr ejudice in the post-c onviction context byproving that the “se i z ure” was
unrea sonable.

Wh e n a p o li c e o f f ic e r ’ s in te r a c ti o n w ith a c it iz e n imp e r mi s s ib ly in tr u d e s upon the privac y or p er s o n al s ecurity

of the c itiz en, it violates the F ourth Amendment to the United States Constit ution and Article 1, section 7 of t he Tennessee Constit ution. Not every encounte r betwe en police office rs and citizens is a “seizure,” howeve r. State v. Randolph , 74 S.W .3d 330, 338 (Tenn. 2002). A seizure oc curs only when a n office r re strains the libert y o f an i n d i vidual by means of phy sical for ce or

show of authority

. Te rryv . O hio , 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1 96 8) . T he c ou rt s h a ve re c og nize d th re e dis tin c t ty pe s of po lic e -c iti zen int e ra c tio ns : (1 ) a fu ll s c a le

arr e st su pp orte d by pr ob able c a us e ; (2 ) a brie f inv e sti g a tory de te nti on su pp orte d by reas on able suspicion; a nd (3) a brief police-c itiz en enc ounter, whic h require s no objective justification. Sta te v. Daniel , 12 S.W .3d 420, 424 (Tenn. 2000)

.

A l a w e nf

or c e me nt o ff

ic e r d oe s n ot v iol a te the F ou rth A me nd me nt b y me re ly approa ching a person in a publi c place and posing a question. United States v. Dray ton , 5 36 U. S. 19 4, 20 0, 12 2 S. Ct. 21 05 , 2 11 0 ( 20 02 ). Ev e n if a n o fficer has no ba sis fo r s us pe c tin g a c ri me is being committed, he or she m ay pose questions or ask for identification, provided he or she does not induce cooper ation by

coer cive means. Id
., 12 2 S. Ct. a t 21 10 ; see Daniel , 12 S.W .3d at 425. To determine if an intera ction betwee n an o ff i ce r and an individual is a seizure or a conse nsual

enco u n te r , th e c o u r t mu s t c o n s id e r a ll th e s u rr o u n d in g c ir c u ms tan c e s a n d a s c e r tain w h e th e r the

“ po lic e c on du c t w ou ld have com mu ni cat e d to a re a so na ble pe rs on that th e pe rs on wa s n ot f re e to decline the off

i ce rs ’ requests or otherw ise terminate the encounte r.” Florida v. Bostick , 5 01 U. S.7

429, 439, 111 S. Ct . 2382, 2389 (1991).

I n this case, f

rom Off icer L ovin’s acc ount of the enc ounter, we discern that he stopped the petitioner in a public p lace on Hig hway 338 near the fire scene , inquired whe re the petitioner had be en and wher e he was going
, obtained personal i dentification information from the petitioner, che cked the information, and then pr ocee ded to the sce ne of the vehicle fire. Acc ording to the petitioner’s testimony
, the encounte r lasted “about five minutes,” during w hich time he wa s “patted dow n,” aske d for identific ation, asked w here he had been a nd wher e he w as g oing, and was told to “stay ” until the information was ve rified.

I n o u r o p in io n , it is u n n e c e s s ar y to e n g a g e in a p r o tr a c te d a n a ly s is w h e th er the encounte r constituted a brief investig atory d et en t i o n or a brief police -citizen interac tion. Even viewed a s a brief

investigatory

detention, Off

icer L ovin acted r easona

bly . Offic er Lo v in

e n c o u n te red the petitioner in the vicinity of the ve hicle fi re

. T he petitioner w as we aring “dre ss pants,” a “buttonup shirt,” and “ dress shoes
, ” an d he cla imed to be hea ded to work at Tennesse e Cy linder Hea d on Chapman Hig hway . Under the circ umstances, Of

fice r L ovin acte d rea sonably in asking for identification and de taining the petitioner no long er tha n nece ssary to verify the i n formation. See Sta te v . Tr

ox e ll , 78 S.W .3d 866, 871 (Tenn. 2002) (dete ntion of the person must last no long er tha n
ne c e ssa ry to e ff e c tuate the pu rp os e of

the sto p) . M or e ov e r, it p la inl y app e ars that O ffi c e r L ov in employ ed the lea st intrusive means re asonably available to investigate his suspic i ons in a short period of time, afte r which the detention promptl y terminated. See Florida v. Roye r , 460 U.S. 491, 500, 103 S. Ct . 1319, 1325-26 (1983)

. Consequently , we a g ree with the post-conviction court that Offic er L ovin’s stop of the petit ioner could not have been successfully challeng ed had a suppression motion been filed; there fore , the petitioner failed to sustain his cla i m o f i n eff ective a ssistance of

c ou ns e l on thi s b a sis

.

Finally , on this claim we ar e at a loss to dis cern how a successful suppre ssion moti on would have be nefi t t ed the pe titioner. No evidenc e wa s discovere d or seized from the pe titioner during his encounter

with Office r L ovin. The petitioner’ s incriminating statements wer e not made until several day s after

the enc ounter with Off

icer L ovin; the intervening events would have purg ed

or attenuate d any

illega l detention. See State v . Huddleston , 924 S.W .2d 666 (Tenn. 1996) . As for Of fi cer L ov in le arn ing the pe tit ion e r’ s id e nti ty , th e re c or d s ho ws that othe r i nv e sti g a tiv e e ff orts underw ay would inevitably

have le d law enf

orce ment to the petitioner via the c o-def endant McCarte r. See Nix v . W

illiams , 467 U.S. 431, 104 S. C t. 2501 (1984).

Reg arding the motion that was filed to supp re s s the petitioner’s inc riminating state me nts , th e pe tit ion e r, lik e wi se , h a s not sh own that tria l c ou ns e l w a s in e ff e c tiv e in f

a ili ng to pu rs ue the mot ion . F ir st, the pe tit ion e r ha s no t de mon str a te d th a t c ou ns e l’ s a c tio ns we re ob je c tiv e ly

un re a so na

ble – th a t is
, ou ts id e the rang e of c omp e te nc e de ma nd e d o f atto rn e y s in c ri min a l c a se s. L ead c ounsel testified that the plea ag ree ment require d that the suppression motion be aba ndoned in exchang e for

the state withdra wing its request for the death penalty

. Trial counsel’s conc erns that the state would likely

obtain the death penalty

if the ca se proc eede d to trial wer e obviously valid, and the state c ould properly

insist on wit hdraw al of the suppr ession motion as a condition of avoiding1
T o t he ext ent t hat t he p et i t i o ner i s al so cl ai m i ng t hat t ri al co unsel were in e ff e c tive i n f ai l i ng t o ob t ai n a p syc h o lo g ic a l ev a lua tio n o r to r e c ru it e x p e rt te stim o n y to ne g a te p re m e d itatio n , t h e p e tit io n e r h a s faile d to d e m o n stra te

w h a t a p syc h o lo g ic a l ev a lua tio n o r e x p e rt tes tim o n y w o u ld ha v e un c o v e re d , an d he ha s n o t d e m o n stra te d tha t a

r eas onabl e pr ob abi l i t y ex i s t s t hat
, “ but for couns el ’ s er r ors , he woul d n ot hav e pl eaded gu i l t y and woul d hav e i ns i s t ed

8 t h e d e a t h p e n a l t y.

Second, the pe titioner has not d em o nstrated that he would have pr evailed on the

su pp re ssi on mot ion . T he po st- c on vic tio n c ou rt fo un d th a t “ [t]he fa c ts in th e pr e se nt c a se e sta bli sh that [t he petitioner], not Office r Wide n er[ ,] i nitiated the discourse and that Widener told [the petitioner] of his right to have his lawy er pr esent.” That finding , which is entitled to a pre sumption of cor rec tness, see Fie lds , 40 S.W .3d at 450, satisfies the legal require ment that once a suspect makes an unequivoca l reque st to deal with the pol ice only throug h counsel, the subjec t may not be further i n t er rogate d until counsel has bee n made a vailable, unless the suspe ct “initiates further communication, exchang es, or c onversations with the police .” Edwards v. Arizona , 451 U.S. 477, 485, 101 S. Ct . 1880, 1885 (1981).

The pe titioner’s assault o n counsel’s e ffe ctiveness in fa iling to cha lleng e the “espe cially

heinous, atroc ious, or crue l” death penalty ag g ravating f

actor gai n s n o momentum on app ea l

. As the post-convic tion court noted, eliminating one of the state’s notice d ag g ravating

se nte nc ing fa c tor s wo uld no t ha ve re mov e d the thr e a t that the pe tit ion e r c ou ld re c e ive the de a th pe na lty . Pr e

jud ic e , the re fo re , h a s n ot b e e n s ho wn . F urthe rm or e , w e are no t c on vin c e d th a t a

c on sti tut ion a l va g ue ne ss c ha lle ng e to T e nn e sse e ’s c ur re nt o r f orme r v e rs ion of

the “ he ino us , atroc ious, or cruel” a g g ravating c ircumstance would nece ssarily succe ed. See B ell v. Cone
,

__ _ U .S. ___, ___, 125 S. Ct . 847, 854-55 (2005) (nar rowing construction of the ag g ravator that Tenne ssee Supreme Court applied in State v. Dick s , 61 5 S.W. 2d 12 6 ( Te nn . 1 98 1) , w a s n ot u nc on sti tut ion a lly vag ue).

The pe titioner’s arg ument that his guilty pleas we re not knowing ly , voluntarily , or intelligently

enter ed, likewise, f

ails. Certainly , due proc ess demands that a g uiltyplea be enter ed voluntarily
, knowing ly
, and under standing ly

. See B oykin v . Alabama , 3 95 U. S. 2 38 , 2 42 -4 4, 89 S. Ct. 1709, 1711-13 (1969). A plea is involunt ary

if the ac cused i s i n competent or “only if it is the product of ‘ ignor ance , incomprehe nsion, coerc ion, terror , inducements, [or] subt le or blata nt threats.’” Bl an k e ns hip v . S tat e , 8 5 8 S

. W

. 2 d 8 9 7
, 9 0 4 (T en n

. 1 9 9 3 ) ( q u o t i n g Boy k in , 395 U.S. at 242-43, 89 S. Ct. at 1712). A defe ndant’s testimony at a plea hearing that his or her

plea is voluntary is a “formidable bar

rier in any

subsequent collate ral proc eeding s” bec ause “ [s] olemn decla rations in open court c arry

a strong presumption of verity .” Blackle dge v. A llison , 4 31 U. S. 6 3, 74 , 9 7 S. Ct. 1621, 1629 (1977).

Noth in g in th e tr a n s c r ip t o f th e p e ti ti o n e r ’ s p le a s u b mi s s io n s s u g g e s ts th a t he wa s i n c ap ab l e o f

r a t i o n a l l y

w e i g h i n g t h e a d v a n t a g e s o f p l e a d i n g g u i l t y

v e r s u s p r o c e e d i n g t o tr i a l

. In addition, other than the pe titioner’s self-se rving testimonyreg arding his depression, he offer ed no independe nt corrobor ation that he wa s incapa ble of making a r a

tiona l decision. The post-c onviction 1on goi ng t o t r i al

. ” H ill
, 4 7 4 U .S . at 5 9 , 1 0 6 S . C t. a t 3 7 0 ; se e a lso W a lto n v . S ta te , 966 S. W

. 2d 54, 55 ( T en n

. Cr i m. App.

1 9 9 7 ).

9 court a cce pted, as rea sonable, the petitioner’s claim that he was de presse d, but it correc tly assessed that claim as inade quate, without more, to pr ove that his g uilty pleas wer e involuntary . We ag ree

.

The last matter conce rns t he st ate’ s failure to provide to the petitioner the e x culpatory evidenc e that co- defe ndant McCarter ha d confe ssed to killing the victim. The post-conviction court found that the state ha d withheld exculpatory evidenc e but that the outcome of the proc eeding was not affe cted.

I n Brady v. M aryland
, 37 3 U. S. 83
, 83 S. Ct. 11 94 (1 96 3)
, the Sup re me Cou rt he ld that “suppre ssion by

the prosec ution of evidenc e fa vorable to an ac cused upon r equest violates due pr oc e ss w he re the e vid e nc e is ma te ri a l eith e r to g uil t or to p un ish me nt, ir re sp e c tiv e of

the g oo d f

a ith or bad f aith of the prose cution.” Brady , 3 73 U. S. at 87 , 8 3 S. Ct. a t 11 96 -9 7; se e als o Hartman v. Sta te , 896 S.W .2d 94, 101 (Tenn. 1995)

. I n order to e stablish a due proc ess violation under Brady
, four prere quisites must be met: (1) the defe ndant m ust have reque sted the i nformation (unle ss the evidence is obviously

exculpatory , in which ca se the state is bound to re lease the information, whether reque sted or not); (2) the state must have suppr essed the inf ormation; (3) the information must have bee n favor able to the acc used; and (4) the information must ha ve been material. Sta te v. Ed gin , 902 S.W .2d 387, 389 (Tenn. 1995)

.

The burde n of proving a Brady violation rests with the defe ndant, and the violation must be proven by

a pre pondera nce of

the evidenc e. Id . When determ i n i n g t h e m at eria lityof undisclosed information, a revie wing court must a ssess whether “in [t he] a bsen ce [ o f t he information, the def

endant] rec eived a fair trial, understood as a trial resulting in a ver dict worthy of conf idence .” Kyles v. W

hitley , 5 14 U. S. 419 , 434 , 115 S. Ct. 155 5, 15 56 (1 99 5)

. I n othe r w or ds
, evidenc e is considere d materia l only if there is a rea sonable proba bilitythat had the e vidence been disclosed t o the defense, the results of the proc eeding would have be en diffe rent. Ed gin , 902 S.W .2d at 390-91.

We ag reewith the p o st-conviction court’s assessment that the e vidence does not satisfy the materiality

prong of Brady

. Th e pe tit ion e r ha s fa ile d to show ho w the state me nt w ou ld ha ve le d to a

re a so na ble pr ob abilit y th at e ith e r h e wo uldno t ha ve ple a de d g uil ty or that he wo uld have obta ined a more fa vorable plea a g ree ment. The state’ s theory that both the petitioner and McCarte r we re intimately involved in t he homicide wa s no secr et, and both subjec ts had criminal responsibilityfor the vic tim’s death. Acc ording ly
, we conclude that the petit ioner is entitled to no relief on this ground.

F or the fo re g oin g re a so ns , w e c on c lud e that no ne of the pe tit ion e r’ s c la ims me ri ts relief . Acc ording ly , the judg ment of the post-c onviction court is aff irmed.10 ____________________________________ J AMES CURW OOD WI TT, J R., J UDGE