IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
August 7, 1998
Cecil W. Crowson
ROGER TERRY JOHNSON ) Appellate Court Clerk
) 01C01-9705-CR-00172
Appellant )
) DAVIDSON COUNTY
v. )
) Hon. J. Randall Wyatt
STATE OF TENNESSEE )
) (Post Conviction)
Appellee. )
)
For the Appellant: For the Appellee:
Thomas A. Longaberger John Knox Walkup
300 James Robertson Parkway Attorney General & Reporter
Nashville, TN. 37201
Lisa A. Naylor
Assistant Attorney General
2d Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0493
Victor S. Johnson, III
District Attorney General
Katrin Miller
Assistant District Attorney
Washington Square, Ste. 500
222 Second Avenue South
Nashville, TN. 37201-1649
OPINION FILED:_____________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Roger Terrance Johnson, appeals as of right from the Davidson
County Criminal Court’s dismissal of his petition for post conviction relief. W e affirm
the judgment of the trial court.
On December 7, 1994, the appellant pled guilty to first degree murder and
second degree murder and was sentenced to life imprisonment and thirty (30) years
respectively.1 The thirty (30) year sentence for second degree murder was later
modified to twenty five (25) years and eight (8) months. The trial court ordered the
sentences to be served consecutively.
The appellant filed a pro se petition for post conviction relief on May 9, 1996,
alleging that his trial counsel was ineffective in failing to properly investigate his case
and in failing to file a motion to suppress his pre-trial statements. Through a newly
appointed counsel, appellant filed an amended post-conviction petition raising the
same grounds for relief.
Following an evidentiary hearing, the trial court dismissed appellant’s petition
upon finding that his trial counsel provided competent and effective assistance. The
appellant contends on appeal that the trial court erred in denying him post-conviction
relief.
To prevail on a claim of ineffective assistance of counsel in this proceeding, the
appellant must prove by clear and convincing evidence2 that the advice or services
provided by his counsel fell below the range of competence demanded of attorneys in
criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Furthermore, he must demonstrate prejudice by proving that, but for counsel’s
incompetence, he would not have pled guilty and would have insisted upon going to
trial. See Hill v. Lockart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985);
1
The murder charges in this case were based upon the 1994 deaths of Patrice Phelps and her
unborn fetus. The circumstances surrounding the murders were not made a part of the record on
app eal.
2
Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).
2
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991), per. app. denied
(Tenn. July 1, 1991).
The appellant first argues that his counsel was ineffective in failing to properly
investigate his case. He contends that counsel should have interviewed additional
witnesses and explored possible defenses before encouraging him to plead guilty.
At the post-conviction hearing, appellant’s counsel testified that she interviewed
four individuals from the State’s list of twenty-two potential witnesses. Those
interviewed included two police detectives who recorded appellant’s confession, the
appellant’s sister, and a business manager who operated a local billiards hall. 3
Counsel testified that she also met with the appellant’s parents on several occasions
and she met with the appellant approximately eighteen times before discussing the
final plea negotiation with him.
During meetings between appellant and his counsel, the appellant informed her
that he suffered from a chronic addiction to drugs and alcohol. Counsel testified that
she noted the appellant’s substance abuses and explored a defense based upon
induced dementia. However, she decided not to pursue that defense because she
found no evidence that appellant was under the influence of drugs or alcohol when the
crimes occurred.
Appellant’s counsel testified that with the help of the Davidson County Public
Defender and an investigator from the Public Defender’s Office, she carefully reviewed
the evidence against the appellant and determined that a plea agreement was in his
best interest. The evidence against the appellant included his two confessions,
positive identification of the appellant from a photograph lineup, clothing taken by
police from appellant’s home, bloody footprints matching his left shoe, and the victim’s
3
Befo re ple ading guilty, th e app ellant cont end ed th at he was playing billiard s at a local p ool ha ll
when the crimes occurred. Appellant’s counsel investigated the possible alibi and discovered that the
pool hall had a security camera which monitors and records the activities inside the business. The
billiards manager, Patricia Searcy, told counsel that the recorded tapes from the evening in question
could not be located. Ms. Searcy also told counsel that neither she nor her staff recalled seeing
appellan t at the poo l hall on the ev ening of th e crim es.
3
body. Based upon that evidence and the prosecution’s intent to seek the death
penalty at trial, appellant’s counsel believed that plea negotiations were the most
viable strategy for the appellant’s defense.
The trial court reviewed the evidence and found nothing in counsel’s
investigations that rose to the level of ineffective assistance. That determination is
conclusive on appeal and will not be overturned unless the evidence preponderates
against the judgment. See State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App.
1983). From our review of the record, we affirm the trial court’s finding and conclude
that appellant’s counsel conducted a sufficient investigation of the case.
The appellant also alleges that his counsel was deficient in failing to file a
motion to suppress his pre-trial statements. He contends that his decision to enter
guilty pleas was influenced by counsel’s failure to challenge the admissibility of his
pre-trial confessions.
The record reflects that the appellant confessed to the murders on two
occasions following his arrest. The appellant first implicated himself in the crime while
discussing the case with his parents at their family home. In the presence of police,
the appellant told his parents that he was responsible for the murder of Patrice
Phelps. The police thereafter took appellant back to police headquarters where he
signed a “waiver of rights” form and made a second confession on video tape.
Appellant’s counsel testified that she examined the statements to determine if
there were grounds for a motion to suppress. Counsel discussed the matter with the
appellant and decided not to file a motion to suppress. Counsel determined that the
first statement made to appellant’s parents was voluntary and uncoerced by State
officials. As such, she believed that the first statement would be admissible against
the appellant at trial.
Counsel concluded that the only possible challenge to appellant’s confessions
pertained to the second statement made on video tape. The appellant was
4
mirandized and he signed a waiver form before making the statement. However, the
interviewing police officer marked the waiver form to indicate that appellant lacked the
mental capacity to make a knowing and voluntary waiver of his rights. Appellant’s
counsel questioned the admissibility of the second statement; however, she
nevertheless declined to file a motion to suppress.
Counsel’s decision in that regard must be reviewed with deference and from
the counsel’s perspective at that time. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982). Every effort is made to avoid judging counsel’s performance from hindsight;
however, we must ensure that the appellant was afforded reasonably effective and
competent assistance in his case. See id.
We agree with the trial court’s finding that appellant’s counsel made a tactical
decision not to pursue a motion to suppress during the plea negotiations. Counsel
carefully reviewed appellant’s pre-trial statements and other incriminating evidence
and determined that the appellant should negotiate a settlement instead of facing a
possible death sentence at trial. Although the decision not to pursue a motion to
suppress may have been incorrect or imprudent, counsel’s defense strategy was
based upon her preparation and knowledge of the case. As such, we decline to
second guess counsel’s strategies even if other lawyers judging in hindsight may have
made a better choice of tactics. See Hellard 629 S.W.2d at 9.
We conclude that the tactical decisions and services provided by appellant’s
counsel were within the standard demanded of attorney’s in criminal cases. From the
beginning of appellant’s case, counsel pursued a plea agreement with the State and
she met with the appellant approximately eighteen times to keep him informed of the
negotiations and the status of his case. The appellant faced a substantial amount of
incriminating evidence and a possible death sentence if he were convicted at trial.
Under those circumstances, counsel relied upon her experience as a public defender
5
and her knowledge of the case to defend the appellant’s interests and to protect his
life.
Furthermore, assuming arguendo that appellant’s counsel was somehow
deficient in this case, the appellant has made no showing that but for counsel’s
incompetence, he would have insisted upon going to trial. The record reflects instead
that the appellant was well informed of the circumstances of his case and that he
chose voluntarily to enter a plea agreement in light of the evidence against him. At the
plea hearing, the trial judge addressed the appellant in open court and apprised him of
his rights and the consequences of pleading guilty. Appellant indicated that he
understood his rights and the nature of his pleas.
In sum, the appellant has failed to carry his burden of proving that the advice
and services provided by his trial counsel amounted to ineffective assistance.
Appellant was fully aware that his life was at stake and that the evidence weighed
heavily against him. He took the advice of counsel and entered guilty pleas to the
offenses of first and second degree murder.
Having been informed of his rights and the consequences of pleading guilty, the
appellant made a voluntary and knowing decision within the purview of Boykin v.
Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969), and State v. Mackey,
553 S.W.2d 337, 341 (Tenn. 1977). We, therefore, affirm the trial court’s dismissal of
his petition for post conviction relief.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
____________________________
GARY R. WADE, Presiding Judge
____________________________
J. CURWOOD WITT, JUDGE
6
Roger Terry Johnson v. State of Tennessee
Combined Opinion