# FILED

December 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1997 SESSION

STATE OF TENNESSEE ) ) NO. 03C01-9611-CC-00435 Appellee, ) ) BLOUNT COUNTY CIRCU IT v. ) ) Hon. D. Kelly Thom as, Jr., Judge MARVIN A. KING, JR. ) ) (Post-Conviction) Appellant. ) )

FOR THE APPELLANT FOR THE APPELLEE Edgar A. Wilder Charles W. Burson 222 Ellis Avenue Attorney General & Repor ter Maryville, TN. 37804 Peter M. Coughlan Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN. 37243-0493 Michael L. Flynn District Attorney General 363 Court Street Maryville, TN. 37804-5906 Philip H. Morton Assistant District A

ttorney General 363 Court Street Maryville, TN. 37801

OPINION FILED:_________________
AFFIRMED WILLIAM M. BARKER, JUDGE1 State v. Michael Dwayne Hat field, et al , No. 03C01-9307-CR-00233 ( Tenn. Crim. App., at Knoxv ille, March 2 9, 1994) . The ap pellant’s co -defen dants filed a joint appe al with him

. 2 OPINION The appellant, Marvin A. King, appeals the Blount County Circuit Court’s dismissal of his post-conv iction petition. In 1992, the appellant and two codefendants, Michael Hatfield and Fl oyd Caulder, were c onvicted by a jury

and sentenced for the especially aggravated robbery

of one William Cimino. The appellant was sentenced as a Range II multiple offender to thirty (30) years in the Tennessee Department of Correction. The appellant, the reafter, filed a direct appeal to this Court and we affirmed his conviction. 1 The supreme court denied the appell ant’s petition for permission to appeal on July 18, 1994. We affirm the judgment of the trial court. In February 1995, the appell ant filed a pro-se petition for p ost-conviction reli ef. He alleged that: (1) his counsel provided ineffective assistance at trial; (2) his constitutional rights

to a fair trial were violated by the State of Tenness ee; (3) the trial judge improperly ins

tructed the jury on reas onable doubt; and (4) the trial judge led the jury to believe that he was against the appellant. Through a newly appointed counsel, the appellant filed an amended petition, containing the above stat ed grounds. Following an evidentiary hearing, the trial court dismissed the appellant’s petition upon finding that his trial counsel exhibited advocacy and strateg y that “exceeded the standard of effectiv eness and competency in East Tennes see.” The trial court further found that the appellant had waived th e other grounds for relief by not raising them in his direct appeal. In this appeal, the appellant raises the single issue of his counsel’s effectiveness at trial. He does not challenge the tri al court’s finding that he waived three grounds for relief all eged in his petition.3 In the direct appeal, this C ourt described the events surrounding the robbery as follows: In December of 1991, Kimberly Ed wards went to the re

sidence of the victim, William Cimino. The v ictim had recently mov

ed from a trailer park to a bus parked behind the Airbase Market and Edwar ds had gone to see if he had found someone to help him mov e. As she drove behind the market, she noticed a van parked beside Cimino’s bus. There was a man sitt ing on the driver’s sid e of the van whom sh e identif ied as Flo yd Caulder. She saw another man, Mike Hatfield, standing between the bus and the van. A third man, Marvin King, w as inside the bus and handing a bread tray out the window to Hatfield. A yellow garbag e bag sat on the bread tray. Ha tfield walked to the back of the van and appeared to place the garbag e bag inside the van and thr ow the tray on the ground. Edwards stated that the victim kept bread trays inside his bus and placed many of his persona l belongings in plas tic bags which he stored on the trays. When she drove up, King jumped out the wi ndow and ran behind the van. He was followed by Hatfield. The two men continued to run in the direc tion of A lcoa Highwa y. Edwards drove back t

o the Airbase Market and cal led 9-1-1. She reported that the market was being robb ed becau se she did not belie ve the police would respond to a call regarding a man living in a bus. While she was on the phone, she saw the van driving down the road and was able to ident ify Hatfiel d sitting on the passeng er’s side. About the sam e time, a police officer appeared on the scene and she directed him toward the van. Another officer soon arrived and took her to the van where she identified Caulde r and Hatfield. She also identi fied King who was found walking up the road toward the van. He had blood on the front of his shirt and shoes. The prosecution played a tape r ecording of the testimony of William Cimino from the preliminary hea ring. The court explai ned that the victim had passed aw ay before trial from causes unr elated to the acts alleged in this c

ase. The victim testified that aro und 4:00 p.m. on December 27, 1991, Caulder and Hatfield helped him mov e into his bus. He paid them $30.00 for their services. Later that evening, King came to the victim’s bus and asked if he could spend the ni ght. The victim responded that he had just moved in and he did not have room. About fift een minutes later, King returned with C

aulder and Hatfield. The men sought entry into the bus, but the victim w

ould not allow them in and pl aced a cane across the door to bar their entry . King and Hatfield, how ever, pressed on the doors, forcing them open and the thr ee men entered the bus. Cimino went to the back and sat on hi s bed. Caulder and Hatfield sa t in the front of the bus and King sat on the bed next to the victim. A fter a few minutes, the vict im got up to take h is dog for a walk. As he was leaving, King struck him sev

eral times on the side of the head. He fell down on his hands and knees and heard eithe r Caulder or Hatfield say, “We’ll get his money,” and the other r espond, “It’s in his bil lfold.” He then felt King reaching into his pockets. The victim stated he had about $145.0 0 in his billfold. He next remembere d a car driving up a nd yelling for help, but the car drove away . The appellants then left the bus. The v ictim was treated later in an emergenc y room and received thi rty-eight stitch es to2 If the appel lant had f iled hi s petit ion after May 10, 1995, he would have been subj ect to th e 1995 Post Convict ion Procedure Act . Tenn. Code Ann. §§ 40- 30-201 -- 310 ( 1996 Supp.). Tennessee Code Annotated secti on 40-30-210 (f) (1996 Supp.) r

equires pet iti oners to prove their al legati ons of fact by clear an d convin cing evide nce. 4 close his head wounds. See Hatfield , supra

. The appellant claims that his tr ial counsel was ineffectiv e in four respects: (1) counsel fail ed to inves

tigate the p resence of a g un or other w eapon at the cr

ime scene; (2) counsel did not p roperly advise the appellant as to the admissibil ity of the victim’s prior tes

timony at the preliminary hearing; (3) counsel d id not interview al l of the witnesses on the witness list to determine if there was exculpatory or contradictory evidence; and (4) counsel did not advise the appellant of his right to appeal to the United States Supreme Court. The appellant filed his origi nal pro-se petition under the pre-1995 Post Conviction Procedure Act. Tenn. Code Ann . § 40-30-101 -- 124 (Repealed 1995). Under that act, the appellant had the burden of pr oving the allegations in his peti

tion by a preponderance of the ev idence. See McBee v. State , 655 S.W.2d 191, 19 5 (Tenn. Crim. App. 1987). 2 Therefore, to prevail on his claim of ineffective assistanc e of counsel, the appellant must show by a preponderance of the evidence that the advice or servi ces provided by his counsel fell below the range of competence demand ed of attorneys in criminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he must demonstrate “prejudice” by proving that, but for coun sel’s incompetence, the result of the tri al proceeding would hav e been different. See Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S .Ct. 2052, 2064, 2067-68, 80 L.Ed.2d 674 (1984); Best v. State , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). The Strickland standard has been applied to the r ight to counsel under Article I, Section 9 of the Tenness ee Constitution. See State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989), cert. denied , 493 U.S. 874 (1989). The trial court found that the appell ant’s counsel executed a r easonable and3 Cou nse l testifie d at th e pos t-con viction hear ing th at he work ed to geth er with the tw o atto rneys repres enting the co-defe ndants , Hatfield an d Cau lder, to an e xtent bef ore pote ntial conflicts a rose.

4 The appellant ’s counsel worked out a pre-t rial p lea agreement with the State in which t he appellant

would plead guilt

y to aggra

vated robbery

and receive an eight-y ear sentence as a Range I offender. Addi

tional ly, the appell ant would have been require d to test ify aga inst t he two co-defendant s, Hatfiel d and Caulder. The appellant declined the agreement because he refused t o testi fy agai nst the co-defendants. 5 competent strategy duri ng the trial and gav e the appellant his “best” l egal advice as to the admissibility of the v ictim’s prior testimony. The trial court’s findings of fact in postconviction proceedings “are conclusive on appeal unless the evidence pr eponderates against the judgment.” See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). In this case, we find no evidence to controv ert the findings of the trial court. To the contrary, the record reflects that the appellant’s counse l acted with reasonable diligence and competency in representing the appell ant at trial. Counsel spent eighty t

o one hundred hours in researc hing and preparing the appellant’s defense. 3 Although counsel admitted at the post-conviction hear ing that he did not interview Kimberly Edwards, he testified that he interviewed every other witness listed on the i ndictment and various other defense witnesses recommended by the appellant. He further explained that he conducted a thorough pre-trial investigation incl uding inquiries as to the possible location of a g un at the crime scene. Counsel also discover

ed and presented evidence at tr ial concerning the lack

of the victim’s fingerpri nts on the alleged stolen money

. Counsel advised the appellant that the victim’s testimony at the preliminary hearing would probably be admitted at trial, but that its admission might const itute reversible error on appeal. He further encourag ed the appellant to accept a plea
agreeme nt and avo id any prej udice at t rial from the victim ’s testim ony. 4 When the appellant declined to accept the agreement, counsel represented him at trial and put on a defense challenging inc onsistencies in the prosecution’s evidence and specifi cally argui ng that th e victim, in his impove rished co ndition , could no t have possessed $145.00 to be robbed by the appellant.6 After the appellant’s convi ction, his counsel continued to represent him on direct appeal to this Cour t. Counsel further request ed permission to appeal to our
supreme cour

t and attempted

to arrange

for an appeal t

o the United States Supre me Court. According to counsel, he informed the appellant of his plans to seek certiorari in the nation’s highest c ourt; however, a lac

k of funding prevented him from car rying the case to that level. In reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumst ances of counsel’s challenge d conduct, and to evaluate the conduct from the counsel’s perspective at the time.” See Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). We have reviewed counsel’s conduct under those guidelines and we find no ev idence to disturb the trial court’s finding that he prov ided competent representation at t rial. Assuming arguendothat the appellant’s counsel was somehow deficient at t rial, the appellant has failed to demonstrat e any prejudice from this defic iency. Specifically, in his brief and in his testimony a t the post-conviction hea ring, the appellant makes no mention of how the outcome of his case would hav e been different if his trial counsel h ad performed competently. We find that the appellant has failed t o carry his b urden of proving any p rejudice as require d by Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. Additionally, we note that the evidence of the appellant’s guilt weighed heavily against him at trial. F

or example, Detectiv

e Dale Gourley of the Blount County Sheriff’s Department testified as to a pre-trial state ment that the appellant made in which he admitted hitting the victim several

times with a hammer before taki ng money out of the victim’s front pock et. Additionally, test imony of the victim and the eyewitness Edwards was admitted against the appellant at trial. Based on the foregoing, we affirm the trial court’s deci sion to deny postconviction relief concer ning the effective assistanc e of counsel at trial.7 _____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

___________________________ GARY R. WADE, JUDGE

___________________________ PAUL G. SUMMERS, JUD GE