# FILED January 28, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
AARON J ERMAINE ) C.C.A. NO. 03C01-9802- CR-00046 WALKER, ) ) Appe llant, ) ) ) HAMILTON COUNTY VS. ) ) HON . STEP HEN M. BE VIL STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : STE PHE N M. G OLD STE IN JOHN KNOX WALKUP 314 Vine Street Attorney Generaland Reporter Chattanooga, TN 37403 MICH AEL J . FAHE Y, II Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 BILL COX Distri ct Attorney General BATES BRYAN, JR. Assistant Distri ct Attorney General Courts Buil ding 600 Market Street Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Aaron Jermaine Walker, appeal s the denial of his peti tion forpost-convi ction relief by the Criminal C ourt for Ham ilton County. Defendant asserts that he su ffered ineffe ctive assista nce of co unsel at tr ial and that this alleged in effective as sistance prejudice d him in s everal res pects.

Defendant was indic ted by th e Hamilton County Gra nd Jury for premeditatedfirst

degree murder and felony murder (in perpetration of robb ery) in connection wi th t he shoo ting de ath of th e victim . Acco rding to Defe ndan t’s testimony

at his t rial, he and severed co-def endant Chandler

Fitch pl anned to fi nd
a person addicted to crack cocaine, offer to sell the person drugs, and t hen take the tendered money and fl ee. Defendant and Fi tch un dertoo k to exe cute th eir plan, a nd De fenda nt sho t the victim in the p roces s, cau sing h is dea th. A ju r y convictedDefendant of felony murder and sentenced him to life impriso nment with the possibi lity

of pa role. H is convicti on and sentence were af firmed on appea l. State v. Walker , 893 S.W .2d 429 (Te nn. 1995).

In this ap peal o f the tria l court’s deni al of hi s post-convi ction pet ition, Defendant alleges fourinstances of ineff ective assistanceby his trial counsel : (1) failure to deliver effective openin g and c losing sta temen ts; (2) failure to m ove to suppress oral statem ents by D efe n dant; (3) fa ilure to “con fer freque ntly” with Defen dant; and (4) failure to request a j ury charge on voluntary manslaughter, or failure to object

to the trial court’s decision not to ch arge voluntary m anslaughte r.-3-

We find no merit in Defendant’s con tentions, and we affi rm the tri al court’s denial of relief.

To be entitled to pos t-conv iction re lief on th e bas is of ineffect ive assistance of counsel, Defend ant must show (1) that his tri al counsel’ s representat ion was “deficient,” and (2) that “the defi cient perf

ormance pre judiced th e defen se.” Strickl and v. Wash ington , 466 U.S. 668, 687 (1984). Under the fir st prong, coun sel’s performance is not defic ien t when “ the advice given, or t he services rendered by the attorney , are wit hin the range of competence demanded of attorneys in criminal cases .” Baxter v. Rose , 523 S.W .2d 930, 936 (Tenn. 197 5). The second prong requir es a petit ioner to sh ow a reasonable pr obabili ty that

the result of the trial woul d have b een diff erent but f or the defi cient repr

esentation
. Strickl and , 466 U.S. at 69 4. “A reasonable pr obabili ty is a pr

obabili ty suff icient to underm ine confidence in the outcom e.” Id.

If afforde d a po st-con victio n eviden tiary hearin g by the trial c ourt, a petiti onermust do more than merely present evi de nce ten ding to show incompetentreprese ntation an d prejud ice; t he petiti oner must prove factual allegati ons by clear an d convin cing evide nce. Te nn. Co de Ann . § 40-30-210 (f). When an ev identiary he aring is he ld, findings o f fact mad e by that co urt ar e conclusive and binding on this Court unless t he evidence preponderates against the m. Coope r v. State , 849 S.W.2d 744, 746 (Tenn. 19 93) (cit ing Butler v. Sta te , 789 S.W .2d 898 , 899 (T enn. 19 90)).

Furtherm ore, with re spect to decisions of tac ti c or str ate gy, theSupr

eme Court stated that “[a] fa irassessment of attorney performance requires that every-4-

effort be mad e to eliminate the d istorting effect of hindsight, to re constr uct the circumstances of counsel’ s challenged con duct, and to evaluate t he conduct fr om coun sel’s perspective at the time.” Strickl and , 466 U.S. at 688. The courts of this state also h ave lon g “reco gnize d that it is not ou r functio n to ‘s econd-guess’ tactical matters and strategi cal choices perta ining to defense matters or m easure a defense attorney’s r epresentati on b y ‘ 20-20 hindsi ght’ when deci ding the effectivenessof trial counsel.” Cooper , 849 S.W.2d at 746 (quoting Hellard v. State , 629 S.W .2d 4, 9 (T enn. 19 82)).

I. OP ENING AND CLOS ING STATEMENTS The record ref lects t hat the fol lowing const itutesthe entir ety of the opening statementdeliver

ed by Defe ndan t’s trial co unse l: “I’ll be brief. You said that you will listen to this cas e in full an d we w ould justask that you wa it till you’ve heard all the e videnc e in this case to make your decisi on.” Defendant complains that this cursory openi ng statement and t rial coun sel’s al lege dly defi cient cl osing statementdeprived him of th e effect ive assi stance of counselbecause a competent attorney

would ha v e discussed that the evidence supported lesser included offenses , th at the State maintai ned the burden of proof, and t hat the State must prove allelements of t he offenses. In addit ion, Defendant asserts t hat trialcouns el should have ad vised the ju ry about the Defendant’s t heory of t he
case and specifi c evidence for which ju rors should watch. Final ly, Defendan t complains that his trial cou nsel fa ile d to “gu ide the j ury” by di stingui shing the eleme nts of lesser i ncluded offenses, and he states t hat these err ors prejudi ced Defen dant’s ab ility to receive a fa ir trial.-5- Followingan evidenti ary heari ng on the p o st-con viction p etition in this case, the trial court found, “b ased on the evidence, t he facts known to [tri al
couns el], and the tri al strategy, that [tri al couns el’s] argum ent to the jury did not amount to ineffective a ssistanc e of coun sel.” To support his conclusion, the postconvicti on judge cited trialcounsel’s post-convi ction heari ng testimony, in which the attorney

stated th at “his pl an was to keep the pr oof minimal, and try to show the jury t hat the ki lling was an accident an d not an intenti onal kil ling, t hereby hoping to reduce the ch arge to les s than fi rst degree murder .” In addition, t he judge “recognize[d] tha t counsel’s argu ments are not as persuasive as the proof that’s presented at the trial.”

This Court fi nds no reason to di sregar d the po st-con viction tria l court’s conclusion on this issu e. W a iver of opening or closing ar gument altoget her by trialcounsel may be considered an acceptable tactic, whe ther or not ultim ately successful or even wise when vie wed in h indsight. See, e.g. , Bacik v. Eng le , 706 F .2 d 169, 171 (6th Cir. 1983) (waiver o f opening statem ent not ineffective assistance of

couns el); Cone v. State , 747 S.W.2d 353, 357 (Tenn. Crim. App. 1987) (waiver of clos ing stat ement in penalty phase not ineffective assistance when used a s strategy to preven t State from makin g fi nal c losing statem ent); State v. Menn , 6 68 S.W .2d 671 , 673 (T enn. C rim. App . 1984) (s ame); State v. Casson Marcel McCoy , No. 01C01-9603-CC-00109, 1997 WL 13742 2, at *3 (Tenn. Crim. App. , Nashvill e, Mar. 27, 1997) (waiver of opening statement not ineffective assistance of couns el); State v. Myer Pettyj ohn , No. 01 C01-90 06-CC00139, 1992 WL 50973, at *4 (Tenn. Cri m. App., Nashvil le, Mar. 19, 1992) (adoption of co-defendant’s cl osing statement not ineffective assistan ce when-6-

used as strategy to save clos ing for sen tencing p hase a nd ma intain cred ibility with jury), perm. to appeal denied (Tenn . 1992).
Similarly, this Cou rt has ap proved th e waiver o f a closing statement even
w hen trialcounsel presented no tacti cal or st rategic explanation, where the record revealed such strong evidence against the defendant t hat no prejudice existed. See Jessie S . Tidwell v. S tate , No. 01C01-9307-CR-002 0 1, 1994 WL 548708, at *10-*11 (

Tenn. Crim. App., Nashvill e, Oct. 6, 1994), aff’d in part, re v’d in part , Tidwe ll v. State , 922 S.W.2d 497 (Tenn. 1996). The Tennessee Supr eme Court, though reversi ng in part on other grounds, found that the fail ure to give a closing statement did not constit ute ineffective assistance of counsel i n thatcase. 922 S.W .2d at 498 n.1.

Based upon trialcounsel’s testimony at Defendant’s post-convict ion hearing—thathe focused on persuadi ng the jury t hat Defendant killed the victim by accident—and the findi ng made by the post-convi ction j udge that Defendant did not receive ineffec tive assi stance of counsel , we conclude t hat trial cou nsel’s scant opening statement and allegedly inadequate c los ing statement di d not amount to deficient perform ance as co nceived by Strickl and v. Washington and Baxter v. Rose . Further , even if trialcounsel’s statements had fallen below the appropriate sta ndard of care , we conclude that Defendant would have suffered
no prejudice due to the st rength of t he eviden ce ag ainst h im, inc luding his own dam ning te stimo ny at tria l.-7- II. MOTION TO SUPPRES S CONFESSIONS Defendant also claims that hi s trial counsel was ineffective to his prejudice by failing to move the trial court for su ppres sion of hi s statements to poli ce. At the post-convi ction heari ng, D efend ant pre sente d an a ttorney exper ience d in criminal trialmatters, who testi fied that faili ng to fil e a motion to suppr ess did not “live up to a rea sonab le standa rd of repre sentation .” In supp ort of this allegat ion, Defendant argue s that “th ere wa s an in dicatio n in the origi nal tri al that an offer of leniencymay have been used by the police. Also, the Petiti oner was only 18 or 19 years old a t the time of the con fession.”

In his first

statement to police, Defendant descri bed a scene in whic h the victi m asked him if he w anted to buy drug s. Accor ding to this statement, when Defendant replied “no, ” the victim reache d into Defend ant’s pocket for m oney, and Defendant noti ced a gun in the vic tim’s other hand. As Defendant grabbed the victim’s hand which held the gun, it fi red, striki ng the vict im. Later, Defendant gave another version of events, which was virtu ally identical to hi s testi mony at trial. He st ate d that he, r ather than t he victi m, possessed the gun; and he
recoun ted the pr econc eived plan to find a cra ck coca ine add ict to rob.

At the evident iary hear ing on thi s matter, Defendant’s t rial coun sel test ified exten sively and emphatically that ( 1) he believed no potenti ally meri torious grounds for fi ling a moti on to suppress ex isted, a nd (2) he beli eved that f iling a motion lacking meritori ous potenti al would be a v iolati on of his et hical obl igations
as an attorney

and officer of the cou rts. We agree . Fur thermore, the record reflects that tri al counsel util ize d the stat em ents at trial i n an attempt to show Defe ndan t’s remorse and intention to do the rig ht thing. Counsel hoped to show1 We later consider the argument for a new trial based upon the cumulative effect of

several i nstances of i neffective representation. -8- thatafter hav ing given a false statement , D efendant felt com pelled to deliver a truthf ul account of events—the seco nd s tatement, during which Defendant emotionall y expressed a gr eat deal of

remorse.

We conclude that Defendant has fail ed to bear hi s burden to show defi cient representat ion by making only a generaliz ed reference t hat “an offer of leniency may have been used by t he police” and tha t “the P etiti oner was only 18 or 19 years old at t he time of t he confession. ” In addit ion, Defe ndan t has c once ded h is inability to show prej udice by stat ing, “By itself, the fa ilure to file a Mo tion to Sup press, may not have changed t he outcome of the cas e, but it s cum ulativ e effectwould be; and t hereby prej udicing the Petit ioner for a fair trial.” 1 This issue lacks m erit.

II I. ATTORNEY- CLIEN T COMMUNI CATION Defendant conte nds th at he recei ved ineffective ass istance of counsel beca use h is trial co unse l confe rred w ith him on only two occasions pri or to trial and because they had only one discussi on regarding whet her he wo uld tes tify in his defen se.

At the post-c onvicti on hearing, Defendant’s t rial coun sel test ified t hat he communicated adeq uately w ith Def enda nt and that he strong ly adv ised Defendant to exercise his pri vilege not to testify at t rial. Defendant disr egarded this advice and testifi ed, painti ng a vivid scene of a “cl assic” felony murder. Not
o nly do we find no deficie nt perform ance, w e find no p rejudice: A s the Sta te-9-

indicates , “[Defend ant] has shown no prejudi ce, because he can offer no basis
on how his defen se could ha ve been improved and his verdict affected by m ore comm unication betwe en he and [trial counsel].”

IV. VOLUNTARY

MANSLAUG HTER IN STRUCTI ON Fo r his final issue, Defen dant argue s that he suffere d ineffective assistance of counsel bec ause his attorney (1) fai led to request a jury instruct ion on voluntary manslau ghter, or (2) failed to o bject whe n the trial cou rt declined to include a voluntary m anslau ghter instru ction in the jury charg e.

This C ourt rece ntly anno unced , before instructing a jury on a less er offense , the tri al court must determine wheth er the e videnc e, whe n viewe d in the light most favora ble to the defe ndant’s t heory of t he case, would jus tify a jury verdictin accord with the de fendan t’s theory, an d would permit a rationaltrier

of fact to find the defendant guilty of the lesser offense and no t guilty of the gre ater offen se. State v. Thomas Jerome Elder , No. 03C01-9702-CR-00053, 1998 WL 191445, at *4 (Te nn. Crim . App., Kn oxville, Apr. 23 , 1998). F urtherm ore, absent such astandard regar ding the quant um of proof neces sary to trigger

an instruc

tion on a l esser offens e, the trial judg e who charges a lesser

offense based upon less than suffi cient evidence would be faced with the absurd neces sity, predica ted upo n its own invited error, of enteri ng a judgment of acquittal f ollowing the jury’s guilty verdict on the lesser

offense. Id. at *5. Therefore , the inquiry a trial court must make to determine when it must charge a lesser i ncluded or lesser grade offense is mu ch the sam e as the inquiry this Court makes to determine whet her the evidenc e is sufficien t to suppo rt a conviction that has b een ap pealed
.-10- A convicti on for voluntary manslaughter r equires the “intent ional or know in g kill ing of another i n a state of passion produced by adequate prov ocation suffic ientto lead a reasonable per son to act i n an irrat ional manner.” Tenn. Code Ann. § 39-13 -211. In Elder , this Court found that no evidence existed from which the jury coul d possibly have returned a ver di ct of attempted voluntary
man slaug hter wh en (1) th e defe ndan t threate ned to kill the vict im and attacked him from behind, and (2) the only evidence of provocation prese nted by th e defendantwas th at he a nd the victim e ngag ed in a n argu men t four an d one -half hours p rior to the killing. Jerome Thomas Elder , 1998 W L 1914 45, at *6.
Likewise, in this case, the evidence presented at t rial was not sufficient to perm it a rationaljury to return a verdict f or the lesser

offense and not

the greater offense. To suppor t the need for an instruction for voluntary m anslaughte r, Defendant can p oint to o nly two id entica l r efer ences to the r ecord in whi ch he stated that the vict im “came towards” him prior to the sh ooting . Accord ing to Defendant hims elf, he h it the victim with the i ntention t o knock him unconscious and take his mo ney. O nly then did the victim come toward Defendant, who was armed and accompanied by his co-defendant. The co-defendant at tem pted to “grab”the vict im, and Defendant began to pul l hi s gun f rom his coat p ocket . As he did so, t he gun fired , s triking the victim . Even in th e light mo st favorab le to Defen dant, the evide nce wa s not suff icient t o warrant a j ury inst ruction on voluntary m anslau ghter.
Furthermore, we also conclude that even i f Defendant’ s trialcounsel had been defici en t in his represe ntation on this matter, Defendant suffered no p reju dice. The jury i n this case r eturned a ver

dict convi cting th e Defendant of-11-

murder in the f irst degr ee as the resul t of a reckless kil ling i n the perpetr ation of
a robbery, not premeditated first degree murder. We are uncon vince d that the Defendant could have b een in any way prej udiced by thefailur e of the trial j udge to charge the jury c oncerning the elements o f voluntary man slaughter.

We therefor

e conclude that

the Defendat has establis hed neither t hat
coun sel’s representat ion was defi cient no r t hat Defendant suffered prejudi ce concerning the trial judge’s failure to charg e voluntary ma nslaughter.

V. CUMU LATIV E ERROR Defendant argues that althou gh individu al instanc es of ineffe ct ive assistance of tri al counsel may not have prejudi ced hi m i n violatio n of his constit utional rights to due process and a fai r tri al, the c umulative ef fect of s everal instancesof ineffe ctive as sistan ce cre ated p reju dice of constit utional pro portions. We have determined that Defendant suffered no i neffective assi st ance o f
couns el; therefore , there can be no cu mulative effect.

We affirm the tria l court’s de nial of pos t-conviction relief.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:-12-

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE