# FILED April 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION

ROBERT L. HOWELL, ) ) C.C.A. NO. 02C 01-9705-CR-00194 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
WILLIAM L. JOH NSON JOHN KNOX WALKUP 50 North Front St. Attorney General & Repor ter Suite 1150 Memphis, TN 38103 CLI NTO N J. MOR GAN Counsel for the State 425 Fifth Ave., North Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General GLEN BAITY Asst. District Attor

ney General 201 Poplar St., Suite 301 Memphis, TN 38103

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 State v. Ro bert L . How ell , No. 02C01-9211-CR-00249, Shelby Count y (Tenn. Cri m. App. fil ed Oct. 13 , 1993, at J acks on)(per m. to ap p. denied March 7, 1994). 2 

### O P I N I O N
Followinga jury trial, the petitioner was conv icted on October

22, 1992, of felony murder. This Court affirmed his convi ction on Oct ober 13, 1993,and the Supre me Court denied his appl ication to appeal on March 7,1994. 1 On April 11, 1996, the petitioner

filed a peti tio n for post-conviction r elief alleging ineffectiv e assistance of counsel. After a hearing on November 15, 1996, the trial court dism issed the petition. The petitioner now appeals and argues that his petition should not have been dismiss ed. After a review of the

record and applicable law, we affirm the judgment of the court below.

We will briefly recite

the facts surrounding the peti tioner’s conviction.The petitioner

and his wife, Rose How ell, were estranged and Howell had been living with the victim, Christopher Garlock. Evidence at trial re vealed that the petitioner shot the victim and took his wallet. The petitioner was convi cted of felony murder and was sentenced to life imprisonment.

In this post-convicti on proceeding, the petitioner makes several allegations of ineffective assistance agai nst his trial counsel, Joseph Patterson. He allege s that Patterson failed to intervi ew alibi witness es, failed to fully inves

tigate his case, failed to prepare an alibi defense, failed to fully prepare for trial, failed to suppress two of the p etitioner’s confessions, and failed to fully explain the petitioner’ s right not to tes tify a t trial.

At the post-conviction hear ing, the petitione r t estified that Patterson had been appointed to represent him. He all eged that P atterson failed to interview Jerry3

Hudspeth, the petitioner’s uncle, about an alibi defense. He testified that Patterson told him Hudspeth would not make a good witness becaus e Hudspeth was

an alcoholic. On cross-examination, the petitioner admitted that Hudspeth had made a statement to the police in which he sai d the petitioner had admitted ki lling the victim.

T he petitioner next testified that Patterson had not fully i nvestigated h i s case. He allegedthat Patterson had failed to talk to Rose How ell, the petitioner’s w

ife. He testified that had Patterson talked to Rose Howell, she could have told him w here the victim had been on the night he was killed. However, when questioned further, the petitioner

later admitted that he did believe Patter son had spoken to Rose Howell but that he did not know the result of that conversation.

The petitioner further testified that Patte rson had not listened to him. He stated that his case “just [ ] wasn’t investigated.” He asserted that Patterson had failed to have ballistic tests performed on the bullet that killed the victim. He further asserted that Patterson had failed to have the victim’s wall et tested for fingerprints.

The petitioner

next asserted that he had known one of the jurors on the jury panel that ultimately found him guilty. He said it had not been until after the trial that he had informed Patterson of this. He testified that he had not realized he had know n the juror while at tri al because the two had only worked together a shor t time.

The petitioner also complained that Patterson f a iled to get his two confessions suppressed. He testi f ied that the confessions had been il legally coerced from him. However, he a dmitted that Patterson had filed a motion to suppress these confes sions and that a hearing on the motion had been held. Th e tria l court4

subsequently denied the moti on.

Patterson, a former Shelby County prosecutor and later p ublic de fender, testified that he had spoken with the petitioner on many occasions prior totrial. He s tated, “We talked considerably, went over the evidence, went over the proof, talke d , whatI call tria l strategy, over a period of several months.” He testified that during his representation of the petitioner he had kept a log of his activities. He testified that he had spent thirty and a half hours in court and eighty-

four hours out of court.

Patterson testified that he specifically remembered speaking to Hudspeth, the petitioner’s uncle. He said he had s poken with him two or three times an d that Hudspeth had had a dri nking pr oblem. He further testified that he and Hudspeth had discussed an alibi defense and that he had also discussed the defense with a girlfriend of the petitioner. Howev er, he had determined that the ali bi defense was not a “proper defense in the case.” Patterson said he had been aware of Hudspeth’s statement to the police and had shown the petitioner a copy of the statement.

P atterson further testified that an inv estigator had been assig ne d to thi s case. He said his notes reflected that the investi gator had talked to sever al people who were familiar with the situa tion between the petitioner and the victim. He testified that these people had all told the inv esti gat or that the petitioner had made sev eral threats against the victim. Patterson also said that he had talked to the petitioner’s wife, Rose Howell, and had determined that she could add no favorable tes timony.

As to the ballisti c tests, P atterson testified that they were not performed because there had been no gun with which to match the bullet. As to fingerpr intin g,5

Patterson testified that hehad not had the wallet tested because he “didn’t want to turn up more evidence that woul d incriminate[his] client . . . .” Also, the petitioner had told the police that he had the victim’s wallet and that w ith the money from the wall et he had purchased som e beer and cloth ing.

Patterso n further testified that the petiti oner had told him that he knew a member of the jury, but had not don e so until afte r the trial. As to th e petitioner te stifying, Patterson said he c ould not remember the exact details surrounding the petitioner’s decision not to take the stand. However, Patterson did voir di re the petitioner outside the presence of the ju ry to make s ure he un derstoo d his right not to tes tify.

In post-conviction reli ef proceedings the petitioner has the burden of provin g the allegations in his [ or her] petiti on by a preponderance of the evidence.” McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, th e factual fin dings of the trial court in heari ngs “are conclusiv e on appeal unless the evidence preponde rates against the judgment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim.App. 1983).

T hi s Court should not second-guess trial counsel’s tactical and strategic choices unless thos

e choices w

ere uninformed because of inadequate preparation, Hellard v. State , 629 S.W.2d 4, 9 (T enn. 1982), and counsel should not be deemed to have been ineffecti ve me rely becau se a diff erent pro cedure o r strategy m ight have produced a different result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980).

In reviewing the pe ti tione r’s Sixth Am endmen t claim of ineffe ctive assistance of counsel, this Court must det ermine whether the advi ce given or services6

rendered by the attorney are within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 93 0, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel, a petitioner “ must show that counsel’s representation fell below an objective standard of reasonableness” and that this pe rformance prejudiced the defense. There must be a reasonable probability that but for counsel’s error the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

In this case, the post-conv iction court found that Pattersonhad spoken to witnesses

about a possible alibi defense and had concluded t ha t this would not be a viable defense for the petitioner. The pos t-convi ction judge stated that such a determination was

a tactical decision. The j udge further concluded that Patter son had interviewedall potential witness es and had spent a considerable amount of time on the case.

As to the petitioner’s confessi ons to the police, Pa tterson had done what he could. The court found that a motion to suppress the st atements had been filed in a timelymanner. This motion was si mply denied by the tri al court. The post-convi ction court also found that the ballistic tests were not performed beca use no gun was ever found and that fingerprint tests were not performed out of fe ar the tests would produce more evidence against the petitioner.

The post-con viction judge concluded, “The Court finds that Mr. Pat terson and the Public Defender Staff thoroughly in vestig ated the case, interview ed all the witnesses

whose names we re given them by the [petitioner] and talked wi th all of the State’s witnesses. . . . The Co urt finds that the ad v ice given and serv ices rendered by7

the [petitioner’s] counsel w as within the range of competency demanded by an attorney in a criminal case and that Mr. Patterson’s representation of the [pe titioner] at his t r ial complied with the requirements set out by the Supreme Court of Tennessee in Baxter v. Rose , 523 S.W.2d 930.”

The record full y supportsthe findings of the post-conv iction court. The petitioner

has failed to carry his burden of proving his allegations by a preponderance of the evidence. Furthermore, the evidence presented at thepost-conviction heari ng does not in any way prepondera te aga in st the judgment of the court below. The petitioner clearlydid not receive ineffectiv e assistance of counsel and thus w e affirm the dismissal of this petition.

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_ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH B. JONES, Judge

______________________________ THOMAS T. WOODALL, Judge