IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1997 SESSION FILED
June 10, 1997
JOHNNY PERRY, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellant, ) C.C.A. No. 02C01-9605-CR-00160
)
vs. ) Shelby County
)
STATE OF TENNESSEE, ) Honorable L.T. Lafferty, Judge
)
Appellee. ) (Post-Conviction)
)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON, JR. JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
WALKER GW INN (appeal) M. ALLISON THOMPSON
Assistant Public Defender Assistant Attorney General
Criminal Justice Division
KEVIN CHILDRESS (hearing) 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
201 Poplar, Second Floor
Memphis, TN 38103 JOHN PIEROTTI
District Attorney General
KAREN COOK
Asst. District Attorney General
201 Poplar, Third Floor
Memphis, TN 38301
OPINION FILED: ____________________
AFFIRMED
PURSUANT TO RULE 20
CURWOOD WITT
JUDGE
OPINION
The petitioner, Johnny Perry, appeals the Shelby County Criminal
Court's denial of post-conviction relief. The petitioner is presently serving a 15-year
sentence in the Tennessee Department of Correction for his 1992 conviction of
second degree murder. That conviction was affirmed by this court in 1994. State
v. Johnny Perry, No. 02C01-9307-CR-00149 (Tenn. Crim. App., Jackson, Sept. 28,
1994), perm. app. denied (Tenn. 1995). In his post-conviction petition, the petitioner
alleged he was denied the effective assistance of counsel in this prosecution. In a
thoughtful and well-reasoned opinion, Judge L.T. Lafferty dismissed the petitioner's
post-conviction claim after counsel was appointed and a hearing was held, finding
the petitioner failed to carry his burden of proving his trial counsel's alleged
ineffectiveness. On appeal, the petitioner contends the trial court erred in this
determination. Following a thorough review of the record, we affirm the judgment
of the lower court pursuant to Rule 20 of the rules of this court.
At the hearing, the petitioner testified on his own behalf. Thomas
Buford, the petitioner's trial counsel, and James M. Lammey, Jr., the assistant
district attorney general who prosecuted the petitioner's second degree murder
case, testified for the state. The testimony of the petitioner, on one hand, and
Messrs. Buford and Lammey, on the other hand, differed substantially. The trial
court's findings reflect conclusions that the testimony of trial counsel and the
prosecutor was believed over the testimony of the petitioner, and there was no
constitutional deficiency in the assistance provided by trial counsel. The evidence
certainly does not preponderate against the lower court's finding. See Manning v.
State, 883 S.W.2d 635, 637 (Tenn. Crim. App. 1994). Likewise, we find no error of
law in the lower court's determination.
Accordingly, we affirm the judgment of the trial court pursuant to Rule
20 of the Rules of the Court of Criminal Appeals.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_______________________________
JOSEPH B. JONES, PRESIDING JUDGE
_______________________________
GARY R. WADE, JUDGE
2
State v. Johnny Perry
Combined Opinion