IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
FILED
July 18, 1997
Cecil Crowson, Jr.
WILLIE ED MAYS, ) Appellate C ourt Clerk
) C.C.A. NO. 02C01-9611-CC-00411
Appellant, )
) LAKE COUNTY
VS. )
) HON. J. STEVEN STAFFORD,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES S. KELLY JOHN KNOX WALKUP
802 Troy Ave. Attorney General & Reporter
Dyersburg, TN 38205-0507
ELLEN H. POLLACK
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
C. PHILLIP BIVENS
District Attorney General
P. O. Box E
Dyersburg, TN 38025
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner was convicted by a jury of selling over .5 grams of cocaine.
Following his conviction, he pled guilty to two other charges of selling over .5 grams of
cocaine in exchange for concurrent sentences on all three convictions. In conjunction
with that plea, he waived his right to appeal the initial conviction. After a hearing in
August 1995, he was sentenced to ten years on the initial conviction, and ten years, six
months on each of the two subsequent convictions. All sentences were run concurrently.
The petitioner filed for post-conviction relief, alleging ineffective assistance of counsel in
conjunction with his trial and subsequent guilty pleas. After a hearing, the court below
denied relief. We affirm.
In support of his appeal, the petitioner contends that his two defense
lawyers were ineffective in the following respects:
1. Failing to file a motion to inspect the substance which the State claimed
to be cocaine;
2. Failing to file a Brady motion;
3. Failing to file timely a motion to dismiss for delay in prosecution;
4. Failing to file a motion for change of venue;
5. Failing to file a motion to suppress evidence;
6. Failing to object to the lack of jurisdiction of the “arresting and
participating agents;” and
7. Coercing him into pleading guilty on the two pending charges.
After a hearing at which the petitioner and one of his two defense counsel testified, the
court below dismissed the petition.
Initially, we note that “[i]n post-conviction relief proceedings the petitioner
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has the burden of proving the allegations in his petition by a preponderance of the
evidence.” McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore,
the factual findings of the trial court in hearings “are conclusive on appeal unless the
evidence preponderates against the judgment.” State v. Buford, 666 S.W.2d 473, 475
(Tenn. Crim. App. 1983).
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim of ineffective counsel, a petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness” and that this performance prejudiced the
defense. There must be a reasonable probability that but for counsel’s error the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
To satisfy the requirement of prejudice on the guilty pleas, the petitioner must demon-
strate a reasonable probability that, but for counsel’s errors, he would not have pled guilty
and would have insisted on going to trial. See Hill v. Lockart, 474 U.S. 52, 59 (1985);
Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
This Court should not second-guess trial counsel’s tactical and strategic
choices unless those choices were uninformed because of inadequate preparation,
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to
have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.
1980).
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The petitioner’s claims that his counsel erred in failing to file a pretrial
motion to inspect the cocaine and/or a Brady1 motion arise from the State’s belated
discovery that the cocaine had been lost or destroyed prior to trial. Defense counsel
testified that the State did not make this discovery until the day of trial. The petitioner
reasons that, had his counsel filed these motions pretrial, everyone would have
discovered the missing cocaine in time for his case to have been dismissed on motion.
In addressing this issue the court below held:
The unrebutted testimony indicated that the State was not
aware that the drugs could not be produced until the trial
date. Therefore, assuming that this information could be
construed as exculpatory evidence, the State did not have
any exculpatory evidence in its possession until the trial date.
The transcript reveals that the defense attorneys were
informed of the missing evidence as soon as the State
became aware of the problem.
Assuming that the petitioner’s counsel had filed a pre-trial
motion to examine or weigh the drugs, he would have been
in no better legal position than he was on the day of trial in
requesting a dismissal of the charge. The [trial] Court found
that the State had laid the proper foundation to allow the lab
technician to testify about her test results. The petitioner was
allowed to argue to the jury the effect of the State’s failure to
produce the drugs. A pre-trial motion would not have placed
the petitioner in any better legal position than what he was on
the day of trial. This issue is without merit.
We agree with the court below. This issue is without merit.
As to the petitioner’s contention that he was prejudiced by his counsel’s
failure to file timely a motion to dismiss for delay in prosecution, we first note that such
a motion was filed, but was not filed timely. However, the trial court permitted evidence
to be presented and the motion to be argued in an offer of proof on the day of trial. The
trial court further issued oral findings of fact and conclusions of law with respect to the
merits of the motion, and denied it. The court below apparently found no error in the trial
1
Brady v. Maryland, 373 U.S. 83 (196 3).
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court’s decision. Neither do we. As this Court has previously stated:
Delay between the commission of an offense and the
commencement of adversarial proceedings does not violate
an accused’s constitutional right to a speedy trial. However,
such a