IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
SEPTEMBER 1998 SESSION
October 23, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
AUDREY E. DOWNS, ) C.C.A. NO. 02C01-9710-CR-00390
)
Appellant, ) SHELBY COUNTY NO. P-17849
)
VS. ) HON. BERNIE WEINMAN,
) JUDGE
STATE OF TENNESSEE, )
) AFFIRMED - RULE 20
Appellee. )
ORDER
The petitioner appeals the trial court's denial of post-conviction relief. The
petitioner originally pled guilty to felony murder and aggravated rape. He received
agreed sentences of life imprisonment without the possibility of parole and twenty-
five (25) years, respectively. The sentences were ordered to run concurrently. In
this appeal, the petitioner only contests the felony murder plea. He contends the
plea was the unknowing and involuntary result of ineffective assistance of counsel.
The petitioner testified trial counsel did not conduct a proper factual
investigation and failed to sufficiently confer with him. Specifically, the petitioner
complained counsel failed to interview his sister who possessed the clothing worn
by the petitioner at the time of the homicide. Petitioner testified he was unaware of
the constitutional rights he was waiving when he pled guilty. If he had been aware,
petitioner claimed, he would have proceeded to trial. The petitioner also testified
that he was still suffering from the effects of drugs at the time he entered the guilty
plea even though he had been in custody eleven (11) months.
The petitioner stated his primary reason for pleading guilty was his attorney's
statement that he would receive the death penalty if he proceeded to trial. The
petitioner further stated that he would have proceeded to trial if he had known there
was the possibility of receiving a punishment other than death. The petitioner also
complained of a mental examination performed one week before he entered the
guilty plea. The petitioner contends this examination could not reflect his mental
state at the time of the murder since his mind had cleared since he had been in jail.
One of the petitioner's trial attorneys testified at the hearing. He stated that
he and co-counsel were members of the Shelby County Public Defenders Office
Capital Defense Team. Trial counsel stated that the prosecutors gave them a list
of witnesses the state intended to call and maintained open discovery. Counsel
testified the defense team spoke with petitioner's family, friends and co-workers
while investigating the case. One mental evaluation was performed early in the
investigation followed by another evaluation performed one week before the plea.
Neither found the petitioner insane or incompetent. Counsel filed a motion in an
attempt to suppress the petitioner's statements given to police. After a hearing, the
motions were denied. Counsel testified the petitioner's statement was extremely
damaging. In his opinion the petitioner would have received the death penalty at
a trial since petitioner had a prior conviction for assault with intent to commit sexual
battery involving violence. Trial counsel's testimony contradicted the petitioner's
testimony in all material respects.
Honorable Bernie Weinman filed extensive written findings in denying the
petition. Judge Weinman concluded the petitioner "willingly, freely and voluntarily"
entered the plea of guilty and desired to avoid the death penalty. He further found
that trial counsel "thoroughly investigated the case, filed all necessary motions, had
a lengthy hearing on the Motion To Suppress the defendant's statements and was
prepared to try the case if the defendant desired to proceed to trial." He concluded
the advice given and services rendered by trial counsel met the standards required
by Baxter v. Rose, 527 S.W.2d 930 (Tenn. 1975). The evidence certainly does not
preponderate against the findings of the trial court.1
Therefore, pursuant to Rule 20 of the Tennessee Court of Criminal Appeals,
we affirm the judgment of the trial court.
1
The legal ramifications of the clothing possessed by petitioner's sister
were not specifically addressed in the trial court's findings. Nevertheless,
petitioner has failed to establish that the clothing would exonerate him.
Furthermore, he has not established that he would not have pled guilty had the
clothing been examined by counsel.
2
Costs are taxed to the state as the appellant is indigent.
All of which is so ORDERED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
PAUL G. SUMMERS, JUDGE
_________________________
DAVID H. WELLES, JUDGE
3