IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1996 SESSION August 19, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
WAYNE DILLARD CARVER ) C.C.A. NO. 03C01-9703-CR-00096
)
Petitioner/Appellant ) POLK COUNTY
)
v. ) HON. RICHARD BAUMGARTNER,
) JUDGE
)
STATE OF TENNESSEE, ) Post-conviction
) felony-murder
Respondent/Appellee )
For the Appellant: For the Appellee:
Laura Rule Hendricks John Knox Walkup
606 W. Main Street, Suite 350 Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084 Peter M. Coughlin
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney
Ms. Marsha Selecman
Assistant District Attorney General
District Attorney General’s Office
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED.
JOHN K. BYERS
SENIOR JUDGE
1
OPINION
The petitioner was convicted of murder during the commission of a felony on
April 9, 1987 by jury trial, and he was sentenced to life in prison for this crime. On
March 5, 1991, he filed a petition for post-conviction relief claiming incompetence of
counsel. The trial judge denied the petition of the Appellant.
Petitioner alleged that his attorney was ineffective by: 1) forcing the
defendant to testify on his own behalf; 2) not objecting when one of the police
officers testified that the Appellant had been previously convicted of a felony and
had served time in the state penitentiary; 3) failing to move for judgment of acquittal
at the end of the State’s case in chief; 4) failing to ascertain through discovery when
the Appellant first became a suspect; 5) failing to question the expert on the effects
of ritalin and demerol on the mind when taken in combination; 6) failed to object or
adequately cross examine the State’s witness when the testimony suggested the
Appellant had forged the victim’s name on a car title, and, by inference, that the
Appellant murdered the victim in order to facilitate the theft of the vehicle.
We affirm the decision of the trial court.
In a post-conviction relief proceeding, the burden is upon the petitioner to
prove the allegations in his petition by a preponderance of the evidence. State v.
Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991); Bratton v. Kerley, 477
S.W.2d 754 (Tenn. Crim. App. 1971). On review of the post conviction proceedings,
the trial court’s findings of fact are conclusive on appeal unless the evidence
preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.
1993).
In the post-conviction hearing, the trial court heard the testimony of the
petitioner and his former counsel. After considering the testimony, the trial judge
found that the petitioner failed to prove his allegations by a preponderance of the
evidence, and denied the petition for post-conviction relief. We find that the
evidence does not preponderate against the findings of the trial judge in this case.
We affirm the judgment of the trial court.
2
John K. Byers, Senior Judge
CONCUR:
David H. Welles, Judge
Thomas T. Woodall, Judge
3