IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
July 11, 1997
Cecil W. Crowson
DOUGLAS WAYNE TRAMMELL, ) Appellate Court Clerk
C.C.A. No. 01C01-9602-CC-00083
)
Appellant, ) Montgomery County
)
VS. ) Honorable James E. Walton, Judge
)
STATE OF TENNESSEE, ) (Post Conviction - Coram Nobis)
)
Appellee. )
For the Appellant: For the Appellee:
Alan R. Beard Charles W. Burson
737 Market Street, Suite 601 Attorney General and Reporter
Chattanooga, TN 37402 and
Karen M. Yacuzzo
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
James Wesley Carney, Jr.
District Attorney General
and
Arthur Bieber
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPINION FILED:
AFFIRMED
Joseph M. Tipton,
Judge
OPINION
This is an appeal from the dismissal of the petitioner’s petition seeking
post-conviction relief and a writ of error coram nobis. The sole issue with regard to the
post-conviction relief petition is whether the petitioner was deprived of effective
assistance of counsel when he was convicted of felony murder. The sole issue with
regard to the writ of error coram nobis is whether newly discovered evidence entitled
the petitioner to a new trial. The trial court denied relief on all grounds. We affirm.
FACTS
A brief recitation of the evidence introduced at the original trial is
appropriate. On the date of the homicide, the petitioner and the codefendant, Chris
Moore, consumed a considerable amount of liquor and went to a Clarksville “strip bar,”
The Pink Lady. Rory Capps was a patron at the bar and cashed a $1,500.00 check.
Subsequently, Capps left with the petitioner and Moore, presumably to be carried
home. The testimony conflicted from this point. Moore contended that the petitioner
robbed and killed Capps. The petitioner claimed that he was asleep, and when he
awoke, Capps was no longer in the vehicle.
On the same evening, the petitioner and Moore drove to the home of
Cindy Dickson, a dancer at The Pink Lady. Dickson testified that the petitioner advised
her that he had killed Capps and showed her the money he had taken. The petitioner
forced himself upon Dickson, but was unable to have sex. Both Dickson and Moore
testified that the petitioner threatened to kill them if they told anyone about the
homicide.
The body of Capps was subsequently found by the side of a country road.
He had multiple gunshot wounds to the back of the head and neck.
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Based upon this evidence, the petitioner was convicted of felony murder
and received a sentence of life imprisonment. Moore was found guilty of second
degree murder. The petitioner’s judgment of conviction was affirmed on appeal. State
v. Douglas Wayne Trammell, No. 01C01-9210-CC-00330, Montgomery County (Tenn.
Crim. App. 1993), app. denied (Tenn. Nov. 29, 1993).
ISSUES FOR REVIEW
The petitioner contends that his trial counsel was ineffective in the
following respects:
(1) counsel did not undertake an appropriate pretrial
investigation;
(2) counsel failed to call a witness to establish an alibi
defense;
(3) counsel failed to secure the testimony of Ann Stover who
could prove the petitioner’s innocence;
(4) counsel failed to establish that the victim did not die in the
manner described by state witnesses;
(5) counsel failed to call witnesses to establish the absence of
gunfire at the alleged site of the homicide;
(6) counsel failed to have the petitioner’s clothing tested for
blood or gunpowder residue and failed to have Moore’s car
tested for fingerprints and other scientific evidence;
(7) counsel failed to present testimony of Moore’s ex-wife as to
Moore’s violent behavior;
(8) counsel failed to call witnesses to show the petitioner’s
good character; and
(9) counsel did not adequately prepare the petitioner for his
trial testimony.
As to the petition for writ of error coram nobis, the petitioner contends that the trial court
erred in not granting a new trial based upon the testimony of two inmates that Moore
had confessed to committing the murder.
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SCOPE OF REVIEW
We first note that the trial court made extensive findings concerning these
issues, concluding that the allegations of ineffective assistance of counsel were without
merit. The trial court found that virtually all of the allegations of ineffectiveness related
to strategic decisions made during the course of trial. Also, it found that counsel not
only met but exceeded the standards expected of defense counsel.
The trial court's findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995);
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898,
899-900 (Tenn. 1990). This court may not reweigh or reevaluate the evidence, nor
substitute its inferences for those drawn by the trial court. 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. Id.
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 (1984). A petitioner has the burden of
proving 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, 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 789 S.W.2d at
899.
The test in Tennessee for determining whether counsel provided 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. A
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petitioner must overcome the presumption that counsel’s conduct falls within the wide
range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065; State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). In order to
prove a deficiency, a petitioner must show that counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Goad, 938 S.W.2d
at 369.
In reviewing counsel's conduct, a "fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The
fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation. Goad, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982); Cooper, 847 S.W.2d at 528 (Tenn. Crim. App. 1992).
When a petitioner contends that trial counsel failed to discover, interview,
or present witnesses in support of a defense, these witnesses should be presented by
the petitioner at the evidentiary hearing. Black, 794 S.W.2d at 757. As a general rule,
this is the only way the petitioner can establish that (a) a material witness existed and
the witness could have been discovered but for counsel’s neglect in the investigation of
the case, (b) a known witness was not interviewed, (c) the failure to discover or
interview a witness inured to petitioner’s prejudice, or (d) the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the petitioner. Id. Neither the trial court nor this court
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can speculate on what the testimony of a witness might have been if introduced by
counsel. Id.
I. PRETRIAL INVESTIGATION
The petitioner contends his trial counsel conducted an inadequate pretrial
investigation. Contrary to these assertions, the trial court found that counsel spent an
inordinate amount of time at the scene of the crime searching for evidence. In addition,
the trial court found that counsel talked to numerous witnesses. In essence, the trial
court found that the pretrial investigation was appropriate. The evidence does not
preponderate against this finding. This issue is without merit.
II. ALIBI TESTIMONY
The petitioner contends that counsel should have called the petitioner’s
father to testify that the petitioner was at home at approximately 1:30 a.m. when the
murder was alleged to have occurred. This proposed testimony would not have been
consistent with the petitioner’s testimony. The petitioner admitted being in the car and
claimed that he fell asleep. The petitioner testified that when he awoke, Capps was
gone. The failure to use the father’s testimony was strategic and did not prejudice the
petitioner. This issue is without merit.
III. TESTIMONY OF ANN STOVER
The petitioner contends that counsel should have called Ann Stover a/k/a
Katrina as a witness, and she would have testified that the petitioner was innocent.
Unfortunately, this potential witness disappeared prior to the original trial. Counsel
made an attempt to find her but was unable to do so. Furthermore, the petitioner did
not produce her testimony at the post-conviction hearing. We are unable to speculate
as to what her testimony would be. See Black, 794 S.W.2d at 757. This issue is
without merit.
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IV. MANNER OF DEATH
The petitioner contends that counsel should have established that the
murder had not taken place at the location or in the manner suggested by Moore. He
specifically contends counsel should have consulted a ballistics expert. Since no
ballistics expert testified at the post-conviction hearing, the petitioner has not shown
prejudice. This issue is without merit.
V. ABSENCE OF GUNFIRE
The petitioner contends that counsel was woefully deficient in failing to
call witnesses who would establish they heard no gunshots near the place where the
body was found. Trial counsel was aware that there were no such witnesses as was
the state. According to counsel, this was never a disputed issue. Counsel saw no need
to put on such proof. This was a tactical decision. Furthermore, there is no showing
that the result of the proceedings would have been any different had this testimony
been introduced. This issue is without merit.
VI. ANALYSIS OF PHYSICAL EVIDENCE
The petitioner contends that counsel was deficient in failing to have the
petitioner’s clothes analyzed for blood and gunpowder residue. He further contends
that counsel was deficient in not having Moore’s car tested for fingerprints and other
scientific evidence. There was no testimony at the post-conviction hearing as to what a
scientific analysis on the clothes or automobile would have revealed. Accordingly, the
petitioner has failed to show prejudice. As to the automobile, we note that the petitioner
admitted to being in the car on the night of the murder; therefore, the relevance of a
scientific analysis of the car has not been shown. This issue is without merit.
VII. CODEFENDANT’S REPUTATION FOR VIOLENCE
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The petitioner contends that counsel was ineffective by failing to procure
the testimony of Moore’s ex-wife to show Moore’s violent nature. First, we note that it is
questionable whether such evidence would have been admissible. See Tenn. R. Evid.
404. Second, it was trial counsel’s understanding that at the time of trial Moore’s ex-
wife was unlikely to say anything bad against Moore. Accordingly, counsel felt her
testimony might be detrimental. The decision not to call her as a witness was an
appropriate tactical choice. This issue is without merit.
VIII. CHARACTER PROOF
The petitioner places great emphasis upon trial counsel’s failure to put on
proof as to the petitioner’s good character. Counsel made a deliberate decision not to
call character witnesses. This decision was based upon his fear of “opening the door”
so as to allow the state to introduce evidence of the petitioner’s prior violent acts.
Although the petitioner had earlier been acquitted of an aggravated assault upon
several persons relating to a “drug deal,” counsel still feared that it was risky to put on
character proof. This tactical decision is not subject to post-conviction challenge.
IX. PETITIONER’S TESTIMONY
The petitioner contends that trial counsel did not adequately prepare him
for his trial testimony. This allegation is not supported by the evidence. Counsel did go
over the petitioner’s testimony with him prior to trial. At that time the petitioner seemed
very credible. However, the petitioner conceded that, at trial, he “stupidly ran [his]
mouth about things that were impertinent [sic] to the trial.” He further conceded his
testimony was “radical and crazy” and that he did not follow his lawyer’s advice. The
petitioner improperly blames counsel for his own demeanor and conduct. This issue is
without merit.
WRIT OF ERROR CORAM NOBIS
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The petitioner contends that the trial court erred by denying his writ of
error coram nobis based upon newly discovered evidence. The evidence in support of
the writ consisted of the testimony of two inmates who had been incarcerated with
Moore. One inmate testified that he heard Moore tell another inmate, to the effect that
he had killed a person before and would not mind killing the inmate. The witness
indicated that Moore never gave the alleged victim’s name. The other inmate testified
that Moore admitted to killing someone. The name “Doug” (petitioner) was mentioned.
According to this inmate, Moore said that he and a friend were out drinking, and his
friend was passed out when Moore shot the victim. Moore testified on behalf of the
state and denied making any such statements to these witnesses.
A writ of error coram nobis lies “for subsequently or newly discovered
evidence relating to matters which were litigated at the trial if the judge determines that
such evidence may have resulted in a different judgment, had it been presented at the
trial.” T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).
The decision to grant or deny such a writ rests within the sound discretion of the trial
court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), 493 U.S. 874,
110 S. Ct. 210 (1989). In exercising its discretion, the trial court must determine the
credibility of the witnesses who testify in support of the petition for writ of error coram
nobis. Hart, 911 S.W.2d at 375.
Upon considering the testimony of these witnesses, the trial court noted
the questionable character of the statements, the circumstances under which they were
made, and Moore’s denial in making such statements. In its written order, the trial court
found that “the testimony, if assumed to be true, would not affect the outcome . . . and
the fact this is a felony murder conviction.” The trial court did not abuse its discretion in
so ruling. Accordingly, the petition for writ of error coram nobis was properly denied.
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In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Joe G. Riley, Judge
Thomas T. Woodall, Judge
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