### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs February

26, 2003
CHARLES W. CO LE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Cart er County No. S15355 Lynn W. Brown, Judge

No. E2 002-0 2535- CCA-R3 -PC August 29, 2003

The petitioner, Charles W. Cole, pled guilty on F eb ruary 4, 2000, to fi ve sexual o ffense s and, in January 2001, filed a petition for post-c onvictio n relief, asserting that his trial counsel was ineffective. Following a hearing, the post-conviction court dismissed the petition, and the petitioner timely appealed. We a

ffirm the dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and J OHN E VERE TT W IL LI AMS , JJ., joined. H. Randolph Fallin, Mountain City, Tennessee , for the appellant, Charles W. Cole.

Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth B. Ma rn ey, Assistant Attorney Genera l; Joe C. Crumley, Jr., District A ttorney Genera l; and Ken neth C. Baldwin, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION I. Facts

Little information is contained in the record on appeal as to the offe nses to which the petitioner entered pleas of guilty . The post-conviction court stated that the petitioner had received ten-yea r sentences for each of his convictions, with two of th e s en te nc es to be se rv ed co ns ec ut iv el y. While it appears that the pleas of guilty were to two counts of aggravated se xual battery and three counts of child rape, the latter three pleas may have been to rape.

The first witness at the June 3, 2002, post-conviction hearing was the petitioner’s daug hter, Lisa Parlier, who said th at the pe titioner c ould not re ad or wr ite . She sai d that the petitioner was living with her in North Carolina at the time

he lear ned of the charg es. She su

bsequen tly brought the petitioner to meet with Investigator Randy Bowe

rs at the Carter Co

unty Sheriff ’s Depa rtment. At this meeting , she asked if the pe titioner needed a

lawyer, and B owers re sponded, “No, we ’re just-2-

going to talk

to him.” Bowers then “took [the petitioner] back to the back,” and, afte r about an hour and a half, he and the petitioner returned. Bow ers informed Parlier that the petitioner had confessed to sexual assault. The petitioner was allowe d to leave at that time, but, a week or two later, she received a telephone call from a law enforce ment officer who asked her to bring the petitioner back to Carter County. She did so; the petitioner was arre sted; and counsel was appointed. Both Bowers and the petitioner’s trial counsel offered to let Parlier watch the videotape of her father’s confe ssion to Bowers, but she declined to do so.

On cross-examination, Parlier said that the petitioner is marri ed t o her mother and had workedfor State Line Coal Yard an d Est ep Coa l Com pany for t wenty-fou r years, dr ivin g a truck and working in the yard. She said that the petitioner liked to watch television and work on cars. To her knowledge, the petiti oner had not had an

y me ntal hea lth proble ms or visited a

me nt al he al th fa ci li ty. However, he appa

rently was suff ering f rom black lung disease. The petitioner had obtained a driver’s licen se thr ough an oral t est. She sa

id she did n ot know if

the petitioner understood the word “molest,” but it could

be explained to him “[i]f you used the right words.” The petit

ioner me t with trial counsel “

betwee n four and five time s,” and sh e had ac companie d him on two o f those occasions. Kathy Parlier, another daughter of t he petit ioner, testified that she was living with the petitioner in Hampton “when the incident supposedly happened.” He later

moved toNorth Carolina. On the day the pe

titioner met with Investigator Bow ers, she heard her sister, Lisa, ask Bowers if the petitioner needed a lawyer and Bowers replied that he did not. She was a lso present during one of the petitione

r’s meet ings with trial cou nsel, at w hich time counsel informed them that there was “nothing he could do.”

The sixty-eight-y

ear-old petitioner

testified that he had a second grade educati on and could not read or write . He said that he su ffers f

rom “a lu ng prob lem” and

emphy sema. At t

h e age o f eighteen, he obtained a driver’s license by taking an oraltest and began working for a coal company delivering coal. When questioned by the post-conviction court about the prices of coal and how he collected the money for the

coal he delivered, the petitioner said that he “can count money ” and “can figure. . . some things I have to fig ure with a pencil and paper . . . [a]nd some things . . . I can figure it in my head . . . [T]hey

can’t cheat me out of money . I know that.”

The petitione

r furthe r testified that he w as living withhis daug

hter, L isa Parlie r, in Granite Falls, North Car

olina, when I

nvestig ator Bo wers fir st

contact ed him. Hisdaught

er broug ht him to Carter County to meet with Bower s who firs t told him that he di d not need a lawy er and then advised him that he “had a right to remain silent and a lawye r.” The petitioner acknowledged tha t Bowers had rea d his rights to him and that he i nitialed t he pape r althoug h he did no t underst

and “ha lf of it
cause I wasn’t interested

. . . in it because I didn’t know what it was.”The petitioner did not inform Bowers that he did not understand his rights because he did not think it was important o r that he would “get railroaded.” Bow ers told the petitioner that he “probably wouldn’t go to court,” but if the case di d go to court, he would “g et proba

tion.” Hisinterview with Bo wers las ted appr oximately two hours and he was allowed to leave at the conclusion of the inter view.-3-

The petitioner said that trial counsel was appointed to represent him after his arrest and that he met with c ounsel thr

ee times. He told

counsel about

the videotape of his confession but did not tell counsel not to show it to his family. Trial counsel told him that if his case went to cour t, “he couldn’t win it.” The petitioner said he and trial counsel never discussed “any

way to get rid of the statement,” and he never to ld counse l not to file a motion to suppress the statement. He gave counsel perm issi on to discuss his statem ent with hi s daugh

ters. He acknowl edged

that he knew that hi s videotaped statement was “heavy evidence” against him. He said that his complaint was that trial counsel did not file a motion to get rid of his st atement a nd “didn’ t do what I

thought h

e ought to do.” The petitione r said tha t he did not

know the m

eaning of the wo

rd “suppr ess” and that he had relied e ntirely upon tria l counsel to help him. Investigator

Randy Bowers testified that he interviewed the petitioner on October 19, 1999. Neither the petiti oner nor

his daug hter who had acc ompanied

him asked

Bowersi f the pet

it ioner needed an attorney. B owers said that if an interv iewee a sked him if an attor ney was nee ded, his practice was to tell the interviewee that he had the right to an a ttorney, and he wou ld not tell an interviewee that he did not need an attorney

. At the beginning of the petitioner’s interview, B owers read the Miranda

rights to him even t

hough he was not in c ustody. Bower s did not recall the petitioner saying

anything a

bout whether

he could read or write. He rea d the petitioner

his righ ts, asking him after each

sentenc e if he un derstood , and the p etitioner acknowl edged

each time

that he did. Bowers denied making any promises to the petitioner or telling him he would get probation.

When Investigator B owers asked the pe titio ner what had happened between him and the victim, the petitioner told him the “entire story.” Bowers then put in a videotape and “went bac k over” the petitioner’s story with him to “make sure that we were clear

on it.” Subsequently, he

made a copy of the

videotape which he gave to trial counsel.

Trial counsel, an assistant public defender sinc e 1989, te stified th at he wa s appointe d to represent the peti tioner an d met with him “several, more than two or three” times. Trial counsel obt ained statemen

ts of the victim’s ve

rsion of th

e incide nt, as well as a co

py o f the pet

i tioner’ s videotapedstatement. Counsel made notes as he watched the tape and was allowed to read portions of his notes during his testimony. The pe titioner told trial counsel t hat his rights h ad been

read to him twice on the day

of his interview and that no promises or threats h ad been

made tohim, but he had been “tricked” by the

investigators. Neither the petitioner nor any of his family told trial counsel that they had aske d Investigator B owers if the petitioner needed an attor ney. Because of the petitioner’s health pr

oble ms, counsel had a mental evaluation performed on the pe titioner “which
came back that he understood what he was doing. He was comp etent an d no insani ty d efense could be supported.”

Trial counsel w as satisfied that the p etitioner “unders tood the mechanicsof the moti on to suppressand how that would work in terms of procedure.” Although tria l counsel’s normal practice “in a case of this magnitude” was to fil e a motion to suppre ss, he did n ot do so af ter discu ssing it withthe petitioner “[m]any times” because the pe ti ti on er di d n ot wa nt hi s f am il y, a jury, or a judge to see the videotape of his statement. Further, the petitioner never authorized him to show the tape-4-

to anyone. Tr

ial counsel explained that the videotape was “extremely da mning in that looking at it objectively y

ou might get the sense that [the petitioner] was sort of trying to put it on the [vict

im], trying to say, I wasn ’t real ly doing an ything, it was her idea . . . she reached up my pants leg.” The petitioner did not wa nt th e v id eo ta pe pl aye d u nl es s c ou ns el “c ou ld as su re hi m t ha t [ th ey] would win either the motion o

r the tria l.” Bec ause cou

nsel coul d not assur

e him that they would be succe ssful, he did not file

a moti on to supp ress the statement. The petitioner ultimately decided to take the State’s plea offer of twenty years. Tr ial counsel said that he had no reservation about the petitioner’s “competence to stand trial or his ability to understand the consequences of a g uilty plea.”

At the conclusion of

the hearing, the post-conviction court made the following findings of fact and conclusions of law:

The court credit s testimo ny of Mr. Bo wers and [trial counsel]. And to the extent there are conflicts in the testimony of [the petitioner] and his two daughters, the court does not place credibility in what they

say. For one thing, [the petitioner] says that he was pro mised that

h e would not get much time, that probation was mentioned. [Trial counsel’s] testimony is very clear and positive that he went over, Were there any promises made, were there any threats? All that was investigated, and at the time [the petitioner] said no, that the primary thing that was driving [the petitioner] was for his family

to avoid seein g this vi deotape . . . . And [the petition er] was so embarrassed

by what he ha

d said t hat he refused to give his lawy er . . . even permission to talk to hi s f am il y for the first bit of it. And the finding is that there
were no threats, that were no promises made. . . . The court finds tha t [trial cou

nsel]
was instructed to avoid playing the videotape in court, and by doing so and following his client ’s wishes , that . . . p revente d an eff

ective motion to supp

ress.

. . . . [A] motion to suppress would have beenfutile. If one had bee n filed, it would have been overruled by

this court without a doubt. Therefore, the final conclusion is that
no constituti onal depr

ivation oc curred . [The petitioner] wa s accor ded all of his rights. There’s no indication that counsel was other than e ffective in this case.

Alth ough the post-conviction court instructed p ost-con victi on cou nsel t o prep are wri tten findi ngs of fact and conc lusions of

law, they are not i ncluded in the rec ord befo re this co urt.

I. Analysis

The petitioner argues that trial counsel was ineffective for not filing a motion to sup

press his videotapedstatement, saying that because of his limited intellect, counsel “should have erred on the side of caution and file[d] a Motion in raising the issue of voluntariness.”-5-

In order to determine the competence of counsel, Tenne ssee courts haveapplied standards developed

in federa l case law. See State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the sa

me standa

rd for de terminin g ine ffectiv e assista nce of c ounsel tha

t is applie d in federal cases also appl

ies in Ten nessee) . The Unit

ed States Supreme

Court articulated the standard in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which i s wid ely ac cepted as the appropriate standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard is firmly g rounded in the belief that counselplays a role tha t is “critical to the ability of the adversarial sy stem to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standar d is a two- prong te st:
First, the defendant must show that counsel’s performanc e was deficie nt. This requires showing that counsel made errors so s erious that counsel was not functioning as the “c ounsel” g uaranteed the defendant

by t he Sixth Amendment. Second, the defe

ndant must

show that t

he defic ie nt performance prejudiced the defense. This requires showing that counsel’s errors we re so seriou s as to deprive the defendant of a fair trial, a trial whose r esult is reliable.

Id

. at 687, 1 04 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient pe rf or ma nc e” in th e f

ir st pr on g o f t he te st in th e fol lo wi ng wa y:
In any ca se presenting an ineffectivene ss claim, the p e rformance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . No particu lar set of

detailed rules fo r counse l’s condu ct c an s atisfactorily take account of the variety

of circumstances faced by defense counsel or the r ange of legitima te decis ions reg arding

how best to

repres ent a cr

iminal def

endant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must estab lish “that

counsel’ s repre sentation

fell below an objective standard of reasonableness unde r prevailing professional norm s.” House v. S tate , 44 S. W.3d 508, 5 15 (Te nn. 20 01) (ci ting Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 1996)).

As for the prejudice prong of the test, the Strickland Court stat ed: “The defenda nt must show that ther e is a reasonable probability that, but for counsel’s unprofessional errors, the result of the pro ceeding would have been different. A rea sonable probability is a proba bility suffici ent t o undermine confidence in the outcome.” 466 U.S. at 694, 10 4 S . Ct. at 206 8; see also Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failedto establi sh that “th ere is a
reasona ble probability that, but for counsel’s e rrors, the outcome of t

he p roceedings would have been different”).

Courts need not approach the Stricklandtest in a sp ecific o rder or even “a ddress bo th componen

ts of the inquiry if the def

endant makes an insufficient showing on one.” 466 U.S. at 697, 104 S. Ct. at 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 cla im”).-6-

By statute in Tenne ssee, the petitioner at a post-conviction relief hearing has the bur den of proving the allegations of fact by clear and convincing evidence

. See Tenn. Code An n. § 40-30- 210(f) (1997). A petition bas ed on ineffe ctive assistance of counsel is a single gr ound for relief, thereforeall fa ctual a

llegations must be presented in one claim. See Tenn. Code Ann. § 40-30- 206(d) (1997).

We note that

when post-convic tion proc eeding s have inc luded a f ull evidentiary

hearing, as
was true in this case, the trial judge’s findings of fa ct and conclusions of

law are given the effect and weight of a jury verdict , and this c ourt is “b ound by the trial judge’ s finding s o f fact u nless we conclude that the evidence containedin the record preponderates ag ainst the judgment entered in the cause.” Black v . State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990) . The reviewing court mus t indu lge a strong presumption that the conduct of counsel falls within the rang e o f reaso nable professional assistance, see Strickland , 466 U.S. a t 690, 104 S. Ct. at 2066 , and may not s eco ndguess the tactical and

strategic choices made by trial counsel unless those choices were uninformed because of inadequate preparation. See H ellard v . State , 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a strategy

or tactic failed or hurt the defense does not al one supp ort the claim of ineffective assistanc e of counsel. See Thompson v . State , 958 S.W.2d 156, 165 (Tenn. Crim. App. 199 7)

. Fi na ll y, a person charged with a cr iminal offense is not entitled to perfect representation. See Denton v. State , 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in Statev. Burns , 6 S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be perfectly reasonable under the facts of anothe r.”

We have viewed the a

pp roximately thirty -minute videotape of the petitioner’s statement regarding the allegations against him. At the beginning of the vi deotape, Investig ator Bowers entered the room where the petitioner was seated in a ch air and handed him cups of water which, ap pa re nt ly, the petitioner had requested. The petitioner then ag reed with Bowers’ statement that they earlier had been talking, the petitioner had been advised of and

understo od his rig

hts, and w ished to give his version of what

had ha ppene d. The quest ioni ng was co nvers ation al in t one, n onth reaten ing, and the petitioner gave responses which wer e appropriate to the questions. Often, the responses consisted of

several sentences. The petitioner’s limited ed ucation w as not at a

ll appar ent from h

is responses to the questions. At the end of the session, he agreed that he had told the truth, but“didn’t know what was going to happen to [him], though.”

We conclude

that t h e record on appeal fully

supports the findings of the post-conviction court that Investigator B owers had advised the petiti oner of h

is Miranda

rights, who then h ad volunta rily given his statemen

t. Lik ewise, th e recor d supportsthe post- convicti on court’ s determination tha t, since a motion to s uppress t he state ment would

have be en withou

t merit , the peti ti oner fa

iled to prove tha t he had been preju diced by the alleg ed ineff

ective r eprese ntation of counsel.

III. Conclusion We affirm the post-conviction court’s dismissal of the petition.-7- ___________________________________ ROBERT W. WEDEMEYER, JUDGE