# FILED
July 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9707- CR-00317 Appellee, ) ) Campbell County V. ) ) Honorable Lee Asbury, Judge RONNIE WALDEN, ) ) (First Degree M urder - Life) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Douglas A. Trant John Knox Walkup Attorney at Law Attorney General & Reporter 900 S. Gay Street Suite 1502 Elizabeth B. Marney Knoxville, TN 37902 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 William Paul Phillips District Attorney General P.O. Box 10 Huntsville, TN 37756 Clifton Sexton, Jr. Michael Ripley Shane Sexton Assistant District A

ttorneys General P.O. Box 323 Jacksboro, TN 37757

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge
O P I N I O N1 In the briefs, t he parties spell t

he name Lettner. The transcri pt spells it Let ner, so we adopt the transcript’ s spelling. -2- The appellant, Ronnie Walden, was convic ted of felony murder and sentenced to life imprisonment. The appellant filed a pro se motion for a new trial, alleging i neffective assistance of counsel. The trial court denied the moti on. The appellant appeals. We affirm the judgment of the trial court.
In 1992, the appellant was indicted for first degree murder, f elony murder, aggravated kidnaping , and aggravated robber y. The state sought the death penalty. The facts as establis hed at trial are that the appel lant, Michael Ford, Vivian White, and the victim, Jerry Letner, 1 were riding in the victim’s car in the early morning hours of January 12, 1992. The appellant, Ford, and the victim had been drinking alcohol. The victim was drunk. The victim thought that the appellant was taking h im home. White testified that the appellant drov e to a pay phone where Ford made a phone call. The conversation mention ed a “plan.” The victim said that he needed to relieve himself. The app ellant told the victim to wait a few minutes. F inally, the appellant pul led off of the side of the road. The victim, the appellant, and Ford went to the back of the c ar. White testified that she heard stomping on the g ravel and something hit the car. The appellant, Ford, or both attacked the v ictim. The victim’s body was placed in the trunk of the car. The victim’s w allet and approximately $32 were taken.
Ford, the appellant, and White went to g et Ford’s mother’s car. Ford and White followed the appellant to the vict im’s house. White testified that the appellant and Ford had talked about the victim having

a lot of money. She thought that they went t o the victim’s house to g et the money. They aborted the plan because the victim’s neighbors were aw

ake. Ford and White followed the appellant to a nearby lake or river. The victim was placed in the front seat of his car. The appellant and/or Ford rolled the car into the w ater. The appellant, Ford, and White left, but returned to get the v ictim’s watch and ri ng. The-3- appellant threw the vi ctim’s wallet and a bl oody towel out of the car. Dr. Cleland Blake, a pathologist, test ified that the victim died of a c ompression injury to th e head that could have been caused by someone stomping on his head.
At the end of the state’s proof, the app ellant’s attorneys, Charlie Allen, Jr. and Michael Debusk, met with the appellant and several of his family mem bers to discuss the advantages and disadvantages of calli ng the appellant and Ford to testify. Although the appellant disagrees, the trial court found, an d the record reflects, that the appellant deci ded to follow his attorney s’ advice for him and Ford not to testify. After th e meeting, the defense rested. The appel lant had rejected a plea bargain offer of forty years for aiding and abet ting second degree murder, aggravated r

obbery, and kidnapping. The jury found the appellant gui lty of felony murder. He was sentenced to life imprisonment. White, a teenager, testified for the state and prov ided proof about the victim’s death and the robbery. Before the appellant ’s trial, Ford had pled guilty to second deg ree murder, aggravated kidnapin g, and aggra vated rob bery. He rec eived an e ightyyear sentence.
After appellant’s trial att orneys filed a motion for a new trial, the appellant filed a pro se motion for new trial based on ineffective assistance of counsel. He alleged that his attorney s’ failure to call him and F ord as witnesses w

as ineffective assistance of counsel . The court appointed counsel to r epresent the appellant on both motions for a new trial. After a hearing, the court denied the motions. The issue before us is w hether the evidence preponder ates against the trial court’s findings

.
To be granted relief on the gr ound of ineffective assistance of counsel , an appellant must establish that the advice given or the services rendered were not within the competence demanded of attor neys in criminal cas

es and that, but for counsel's deficient performance, the result of his or her tri al would have been-4- different. Strickland v. Washington , 466 U.S. 668 (1984). Specific ally, the appellant has the burden of showi ng that there is a reasonabl e probability, that but for counsel's error, th e result of the proceeding w ould have been different. In Tennessee, the appropriate test i s whether counsel's per formance was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). We give deference to questions about the credibility of the w

itnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence as they ar e resolved by the tr

ial court. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Fur thermore, the factual findings of the trial court are conclusive on appeal unless th e evidence preponderates against the ju dgment. Id.
The court must indulge a strong presumption that counsel's condu ct falls within the wide r

ange of reasonable professional as sistance; that is, the defendant must overcome the presumption that, under the circumstances , the challenged action might be considered sound trial s trategy. Strickland , 466 U.S. at 689. We should defer to trial strategy or tactical choices if they are informed ones based upon adequate preparati on. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Additionally , the court should avoid the distorting effects of hindsight and judge the r easonableness of counsel's chall enged conduct on the facts of the particular case, v iewed as of the time of counsel's conduct. Strickland , 466 U.S. at 689-90.
At trial, the theory o

f the defense was that the appellant di d not stomp on the victim and that the intent to rob was formed after the inj uries were inflicted upon the victim. One of the appell ant’s attorneys, Mr. Allen, testified that he interviewed Ford several times. Ford said that the appellant participated in beating the victim. These statements were consist ent with the statements that Ford had given to the police. Mr. Allen testified that when he interviewed Ford shortly before trial, Ford stated that he was the one who stomped on the vict im.-5- However, Ford cont inued to implicate the appellant , stating that the appellant took the victim’s wallet, went to the victim’s house, and that he continued to hit the victim as he and Ford put him in the trunk. Mr. Allen also testified about his investigation of the cal l made by Ford on the morning of the murder. Ford called Greg Williamson. Mr. Allen inter viewed Williamson’s mother w ho told Mr. Allen that the phone conversation w as that “they” wer

e going to roll this

guy and buy drugs. Ford also denied making threats against the appellant as the appellant had claimed. Mr. Allen tes tified that the appellant’s stat ements throughout the investigation of the case were also inconsistent and did not coincide with Ford’s statements. Mr. Allen advised the appellant that his and Ford’s testimon y would do more harm than good. Mr. Al len testified that the defense could not get the proof in any better situati on by calling the appel lant and Ford to testify. M r. Allen explained that White testified that she did not see who stomped on the vic tim. Dr. Cleland testified that it was possible that the victim was str uck only once and that there was only one foot imprint on the victi m’s head. The jury was informed that Ford had pled guilty . The only evidence before th e jury as to who st ruck the victim was admissions made by the appellant to a law enforcement off icer. Mr. Allen testified that he told the appellant that it was the appellant’s ultimate decision of whether or not t o testify. Mr. Allen t

estified that the appellant agr eed that he and Ford would not tes tify.
The appellant

’s second at

torney, Mr. Debusk, te

stified that he became involved in the case after the state decided to seek the death pe nalty. He testified that the appellant told a different story each time he and Mr. Allen interviewed him. H e further testified that the appella nt’s testimony at the heari ng on the motion for new trial was inconsistent with his prior statements. He advised the appellant not to testify and not to call Ford as a witness, as did Mr. Allen.-6- At the hearing on the motion for new trial, the appellant’s theory was that his and Ford’s testimony was the only evi dence to rebut the state’s proof tha t the appella nt struck the victim . Ford test ified th at, if ca lled at th e trial, he would have testified that he knocked the v ictim to the ground and kic ked him because the victim said something smart. Ford testified that, although he took the victim’s wallet, there was no plan to rob the victim before the kicking of the victim. Ford testified, however, that he and the appellant put the vi ctim in the trunk, later placed the victim in the front seat of the car, and that the appell ant drove the victim’s car into the lake. Ford testified that he and the appellant took towel s and wiped blood and fingerpri nts off of the victim’s car. F ord admitted that he had given inconsistent s

tatements to the police, sayi ng that the appellant was responsible for the vict im’s death and later that he, F ord, hit the victim, but

that the appellant

kicked the v

ictim.
The appellant

testified th at Ford cal led Greg Willi amson’s house from a pay phone and that he, the appellant , and White drove to Williamson’s driveway where the victim and F ord got out to reliev

e themselves. The appellant tes tified that he heard a thump, got out of the car, and saw the victim lying on the ground. The appellant denied kicking the victim, taking hi s wallet, or driv ing the car into the lake. He admitted that he hel ped Ford put the victim’s body in the trunk and that he wiped blood off of the car. The appel lant testified that he did not tak e the wallet, but that he did throw it out the window. He admitted helping Ford place the victim in the front seat of the car, but denied rolling it into the lake. The appellant admitted that he first tol d the police that he did not hav e anything to do with the victim. H e testified that he could not remember giving a statement saying that Ford did everything. The appel lant denied pointing out the l ocation of the beat ing and rob bery. He de nied tell ing the po lice that Ford knoc ked down the victim and that he and For d stomped the victim. He admi tted throwing the towel out of the window . He admitted that he knew that his attorneys had copi es-7- of all his statements and that his statements were inconsi stent with his present testimony.
The court found that the appellant f ailed to establish ineffective assistance of counsel. The court credited the testimony of the attorneys.He held that the testimony of the appellant and For d was less than credibl e, citing the many inconsistent statements that they had made. The court held that Mr. Allen and Mr. Debusk had thoroughl y investigated al l aspects of the case and had interviewed all potential witnesses. The court found that their reluctance to call the appellant and Ford was based on sound reasons, well supported by the evidence introduced at the he aring. The court said that when tactical decisi ons are made by well-prepared attorneys in full consultation with their client and his family, and the decisions ar e based on sound reasons and consid ered judgment, there is no ineffective assi stance of counsel merely becaus e adverse results occur. The trial court further found that, given the prev ious statements of the appellant and Ford and the uncert ainty of what they mig ht have said on the witness stand, the appell ant had failed to show any l ikelihood of a change in the result of his trial.
The appellant has failed to show that the evidence prepo nderates against the findings of the trial cour t. The tactical decisions of the appellant’s trial attorneys were w

ell within the realm o

f competent representation. White did not see who stomped on the vic tim. The jury knew tha t Ford had pled guilty . The appellant and Ford had given numerous inconsistent stateme nts to the police and the appellant’s lawy ers. Both could have been i mpeached if they had testified. Their testimony a t the hearing on the motion for new trial did not coincide. The appellant maintained that he went along with the crime because Ford had threatened to kill him and his family. Ford deni ed making the threats. The appellant decided not to testify based on his attorneys’ advice. He was not forced to give up the ri ght, and his attorneys would have put him on the s tand-8- had he insisted on testifyin g. The appellant’s attorney s discussed the situation not only with the appel lant but his family members. Finally, White’s testimony at trial and Ford’s testimony at the hearing on the motion for new trial, clearly implicated the appellant in the criminal episode. There is not a reasonable probability that the outc ome of the trial would hav e been different if the appellant and Ford had testified.
The trial court treated the appe llant’s motion for new tr ial as a motion for post-conviction reli ef. The motion should have been consi dered an amendment or supplement to the appellant’s prior motion for a ne w trial. The trial court addressed both motions for new t rial together. Therefore, th e judgment on the appellant’s conviction had not yet become final when he filed his pro se motion for a new trial. Defendants may only file one motion for post-conviction relief. If a post-conviction attack is filed in the future, the is sue addressed in this opini on will have been prev

iously determined.
The judgment of the trial court i s AFFIRMED.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________ JERRY L. SMITH, Jud ge-9- __________________________ CURWOOD W ITT, Judge