IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY 1999 SESSION March 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JOE NATHAN PERSON, )
) NO. 02C01-9806-CC-00175
Appellant, )
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction Relief)
FOR THE APPELLANT: FOR THE APPELLEE:
JEFF MUELLER JOHN KNOX WALKUP
102 E. Baltimore, Ste. 127 Attorney General and Reporter
P. O. Box 2831
Jackson, TN 38302 J. ROSS DYER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
(Pro Tem)
MARK E. DAVIDSON
Assistant District Attorney General
302 East Market Street
Somerville, TN 38068
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Petitioner, Joe Nathan Person, appeals the denial of his petition for post-
conviction relief by the Circuit Court of Madison County. Petitioner was convicted
of first degree murder and received a sentence of life imprisonment. The sole issue
in this appeal is whether petitioner was denied effective assistance of counsel.
After a careful review of the record, we AFFIRM the judgment of the trial court.
PROCEDURAL HISTORY
On September 10, 1991, petitioner was convicted of the first degree murder
of Danny Ray Tyson and sentenced to life imprisonment. He perfected a direct
appeal to this Court which affirmed the conviction and sentence. See State v. Joe
Nathan Person, C.C.A. No. 02C01-9205-CC-00106, Madison County (Tenn. Crim.
App. filed September 29, 1993, at Jackson).
On September 7, 1994, petitioner filed a petition for post-conviction relief
alleging ineffective assistance of counsel.1 The post-conviction court conducted an
evidentiary hearing on April 2, 1998, found the allegations to be without merit, and
entered an order denying post-conviction relief on May 19, 1998. This appeal
followed.
FACTS
The pertinent underlying facts are summarized from this Court’s opinion in
the direct appeal. On October 1, 1989, at approximately 1:00 a.m., petitioner
knocked on Florene Hobson’s door asking for “Dino.” Dino owed the petitioner
money. Eugene Cole and the victim, Danny Ray Tyson, advised the petitioner that
Dino was not present. According to the eyewitness Cole, petitioner walked off the
1
Contrary to the state’s argument, this matter is controlled by the prior Post-Conviction
Procedure Act, Tenn. Code Ann. §§ 40-30-101 et seq, and not the current Act, Tenn. Code
Ann. §§ 40-30-201 et seq. The current Act only applies to petitions filed after May 10, 1995.
See Tenn. Code Ann. § 40-30-201 Compiler’s Notes.
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porch and stated, “[y]ou don’t know nothing about me.” Petitioner then fired a shot
into the ground, pointed the gun at the victim, misfired two times, and then fired the
gun again, killing the victim. The petitioner got into a car with his friend, Anthony
Carter, and left the scene.
Subsequently, officers arrested the petitioner at his girlfriend’s residence.
Officers found a .38 revolver outside this residence beside a wood pile. The
revolver’s cylinder contained two empty shells that had been fired, two rounds that
had not been fired, and two empty cylinders with no rounds in them.
The petitioner testified at his trial. He claimed that Dino was dealing drugs
from Hobson’s residence. Petitioner did not believe Cole when Cole told him that
Dino was not present, and the two got into a shoving match which the victim joined.
During the struggle, Cole’s gun fell to the floor, petitioner grabbed it and fell
backward; the gun went off. Petitioner stated he then threw the gun and left the
scene.
POST-CONVICTION HEARING
At trial petitioner was represented by H. Rainey Pegram, who died after the
trial but before the post-conviction hearing. Three witnesses testified at the post-
conviction hearing: Terry Wayne Clark, Dale Person and the petitioner.
Clark testified he was with petitioner on the day of the homicide, and the
petitioner had consumed a “pretty good amount” of alcohol that day. Clark was
never contacted by defense counsel and never told anyone these facts.
Dale Person, petitioner’s brother, testified that he saw the petitioner shortly
prior to the homicide. He described the petitioner as “tore up” and “highly
intoxicated.” However, he did not provide this information to defense counsel
because he was never contacted by anyone.
Petitioner testified to the following:
(1) he told his attorney about Clark and Dale Person;
(2) his attorney met with him five or six times before
trial; at least two or three of the meetings were in
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counsel’s office;
(3) he was familiar with the criminal justice system
having had three prior convictions;
(4) his attorney advised him that intoxication would not
be a viable defense;
(5) his attorney advised him to reject the state’s plea
offer of 35 years at 35% since counsel felt the jury
would convict of a lesser offense;
(6) his attorney did not prepare him to testify at trial;
(7) he consumed gin, beer, marijuana and cocaine on
the day of the shooting;
(8) he did not testify at trial about his consumption of
beer, gin, marijuana and cocaine;
(9) contrary to his trial testimony, he actually secured
the pistol from Carter, and fired in self-defense; and
(10) he told his attorney the same facts that he told the
jury.
The post-conviction court found that trial counsel’s performance was not
deficient nor prejudicial to petitioner. Specifically, the post-conviction court found
petitioner told his counsel the same things he testified to at trial. Therefore, counsel
based petitioner’s defense upon accident and a denial of an intentional shooting.
The court further found that the petitioner’s detailed trial testimony as to the facts
and circumstances surrounding the shooting was inconsistent with an intoxication
defense. Finally, the trial court concluded that the evidence against petitioner was
overwhelming; thus, trial counsel could not have done anything to change the
outcome of the trial.
STANDARD OF REVIEW
The judge's findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d
898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App.
1995). The post-conviction court’s findings of fact are afforded the weight of a jury
verdict, and this Court is bound by those findings unless the evidence in the record
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preponderates against them. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934
S.W.2d 69, 72 (Tenn. Crim. App. 1996). This Court may not reweigh or reevaluate
the evidence, nor substitute its inferences for those drawn by the trial judge. Henley
v. State, 960 S.W.2d at 578-79; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim.
App. 1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
Questions concerning the credibility of witnesses and the weight and value to be
given to their testimony are resolved by the trial court, not this court. Henley v.
State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755. The burden of
establishing that the evidence preponderates against the post-conviction court’s
findings is on petitioner. Henley v. State, 960 S.W.2d at 579; Black v. State, 794
S.W.2d at 755.
EFFECTIVE ASSISTANCE OF COUNSEL
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). To
establish prejudice, petitioner must demonstrate a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
The test in Tennessee to determine effective assistance is whether counsel’s
performance was within the range of competence demanded of attorneys in criminal
cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner must overcome the
presumption that counsel’s conduct falls within the wide range of acceptable
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professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at
2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v.
Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).
DISPOSITION OF PETITIONER’S CONTENTIONS
(1)
Petitioner contends trial counsel did not confer with him sufficiently prior to
trial but concedes that he saw counsel on several occasions prior to trial. Petitioner
has made no showing that additional conferences would have aided his defense.
This issue is without merit.
(2)
Petitioner contends counsel was deficient in not filing a motion to suppress
the gun before the day of trial. We agree that counsel was deficient with regard to
this untimely filing. However, petitioner has made no showing as to the merits of
such a motion. Accordingly, he has not established prejudice. See Jimmy Leslie
Sluder v. State, C.C.A. No. 03C01-9605-CR-00184, Knox County (Tenn. Crim. App.
filed February 27, 1997, at Knoxville). This issue is without merit.
(3)
Petitioner contends counsel was deficient in failing to interview or subpoena
Carey Dean (Dino) who was present at the scene of the crime. However, Dean did
not testify at the post-conviction hearing. Petitioner has failed to establish prejudice.
See Black v. State, 794 S.W.2d at 757. This issue is without merit.
(4)
Petitioner contends counsel failed to prepare for the testimony of the co-
defendant Carter, who reached a plea agreement with the state prior to petitioner’s
trial. However, Carter did not testify at trial. There has been no showing of
deficiency nor prejudice. This issue is without merit.
(5)
Petitioner contends counsel was deficient in failing to advocate intoxication
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so as to reduce the grade of homicide. Counsel obviously made a strategical
decision not to advance such a defense. Petitioner’s ability to remember and relate
the details of the shooting are not consistent with this defense. In view of
petitioner’s position that the shooting was accidental, counsel was not deficient in
failing to advocate intoxication. We will not “second guess” counsel’s strategic
decision based upon hindsight. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
Petitioner has not shown a reasonable probability that the outcome of the trial would
have been different had intoxication been advocated. This issue is without merit.
(6)
Petitioner contends counsel was deficient in failing to pursue a lesser
offense. The post-conviction court noted, pursuant to the facts related by petitioner
at trial, the lesser offense of involuntary manslaughter might apply. However, the
state was unwilling to concede the applicability of this lesser offense. Petitioner
rejected a plea offer of 35 years at 35%. At trial, defense counsel argued,
consistent with petitioner’s testimony, that the killing was, at most, accidental. The
trial court charged the jury as to first degree murder, second degree murder,
voluntary manslaughter and involuntary manslaughter. The jury rejected all lesser
grades of homicide. The evidence does not preponderate against the post-
conviction court’s findings that counsel was not deficient in this regard.
Furthermore, petitioner has not established a reasonable likelihood that the result
would have been any different had counsel argued differently. This issue is without
merit.
(7)
Petitioner contends counsel was deficient in failing to object to various
improper questions and statements at trial. We have reviewed the specific
instances related by petitioner in support of this contention. We conclude petitioner
has not shown a reasonable probability that the outcome of the trial would have
been any different had counsel objected. This issue is without merit.
(8)
Petitioner contends counsel was deficient in failing to cross-examine state
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witnesses on key issues. Again, we conclude petitioner has failed to establish the
likelihood of a different outcome of the trial had cross-examination been conducted
differently. This issue is without merit.
(9)
Petitioner contends he did not expect to testify at trial and was inadequately
prepared by his counsel. The post-conviction court found petitioner was not
surprised when called upon to testify and that petitioner was anxious to testify. His
testimony was consistent with the facts he related to counsel and supported an
accidental shooting. Petitioner now states that he perjured himself at trial, and the
shooting was in self-defense. We find no reason to blame counsel. This issue is
without merit.
(10)
Petitioner contends counsel was deficient in failing to object to the judge’s
questioning of petitioner during his trial testimony. We have reviewed the transcript
as to this questioning. We conclude the questioning was proper, and there was no
reason for counsel to object. This issue is without merit.
(11)
Finally, petitioner contends counsel went into trial without an appropriate
strategy. Counsel’s strategy was consistent with the facts related by the petitioner
to him and to the jury. The fact that the jury rejected petitioner’s testimony is not
counsel’s fault. We conclude petitioner has failed to show counsel was deficient in
this regard. This issue is without merit.
CONCLUSION
We conclude the evidence does not preponderate against the findings of the
trial court. Accordingly, the judgment of the trial court is AFFIRMED.
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_________________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________________
JOHN H. PEAY, JUDGE
____________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE
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