# FILED
October 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1998 SESSION

AUDREY

E. DOWNS, ) C.C .A. NO. 02C01 -971 0-CR-0039 0 ) Appellant, ) SHELBY COUNTY NO. P-17849 ) VS. ) HON. BERNIE WEINMAN, ) JUDGE STATE OF TENN ESSEE, ) ) AFFIRMED -

RULE 20 Appellee. )

ORDER

The petitioner appeals the tri al court's denial of post- convicti on relief. The petitioner

originally pled guilty to felony murder and aggravated rape. He received agreed sentences of life imprisonment without the possibili

ty of parole and twentyfive (25) years, r

espectively. The sentenc es were orderedto run concurrently. In this appeal, the petitioner only contests the felony murder pl ea. He con tends t he plea was the unknowing and inv oluntary result of

ineffective assistance of counsel. The petitioner testified trial counsel did not conduct a proper factual investig a tion and failed to sufficiently confer w ith him. Specifically, the petitioner complained counsel failed to intervi ewhis sister who poss essed the clothingworn bythe petitioner at the time of the homicide. Petitioner testi fied he was unaware of the constitutional rights he was waiving

when he pled guilty. If

he had been aware, petitioner

claimed, he would have proceeded to trial . The petitioner also testified that he was still suffe ring from the ef fects of drugs at the time he entered the guilt y plea even though he had been in custody eleven (11) months. The petitioner

stated his primary r

eason for pleading guilty was his attorney's statement t hat h e would receive the d eath penalty if he proceeded to tr ial. The petitioner

further stated that he would have proceeded to trial if he had known there
was the possibility

of receiving a punishment other than death. The petitio ner also complained of a mental examination performed one w eek before he entered the1 The legal ramifications of the clothing possessed by petitioner's sister

were not specif

ically addr

essed in the trial c

ourt's findings. Nevertheless , petitioner has failed to establish that the clothing would exonerate him. Furthermore, he has not established that he would not have pled guilty had the clothing been e

xamined by cou

nsel. 2 guilty plea. Th e petitioner contends this ex amination could not reflect his mental state at the time of

the murder since his mind had cleared since he had been in jail. One of the petitioner's trial attorneys testified at the hear ing. He stated that he and co-counsel were member s of the Shelb y County Public Defenders Office Capital Defense Team. Trial counsel stated that the prosecutors gave them a list of witnesses the state int ended to call and maintained op e n discovery. Couns el testified the defense team spoke with petitioner's family , fri ends and co-workers while investigating the case. One mental e valuation w as performed early in the investigation followed by another evaluation performed one week before the plea. Neither found the petiti oner insane or incompetent. Co unsel filed a motion in an attempt to suppress thepetitioner's statements g iven to police. After a hearing , the motions were denied. Counsel te stified the pe titioner's statement was extremely damaging. In his opinion the petitione r would have recei ved the death penalty at
a trial since petitioner had a prior conviction for assault with intent to c ommit sexual battery involving v

iolenc e. Tri al counsel's testimony contradicted the petitioner's testimony in all material respects. Honorable Bernie Weinma n filed extensive w ritten findings in deny ing the petition. Judge Weinman conclude d the pet itioner " willingly, f reely and vo luntaril y" entered the plea of guilty and desired t o avoid the death penalty. He further found that trial counsel "thoroughly inves tigated the case, filed all necessary motions, had
a lengthy hearing on the Motion To Suppress the defendant's statements and was prepared to try thecase if the defendant desired to proceed to tria l." He concluded the advice given and s

ervices rendered

by trial counsel met th e standards required by Baxter

v. Rose , 527 S.W.2d 930 (Tenn. 1975). The evidence certainly does not preponderate against the findings of the trial court. 1 Therefore, pursuant to Rule 20 of the Tennes see Court of Criminal Appeals, we affirm the judgment of the trial court.3 Costs are taxed to the st ate as the appellant is indig ent.

All of which is so ORDERED.

_________________________ JOE G. RILEY, JUDGE
CONCUR:

_________________________ PAUL G. SUMM ERS, JUDGE

_________________________ DAVID H. WELLES, JUDGE