IN THE COURT OF CRIMINAL APPEALS
AT JACKSON FILED
NOVEMBER 1995 SESSION
January 31, 1996
STATE OF TENNESSEE, ) NO. 02C01-9503-CR-00079 Jr.
Cecil Crowson,
Appellate Court Clerk
)
Appellee ) SHELBY COUNTY
)
V. ) HON. WIL V. DORAN
) JUDGE BY DESIGNATION
HENRY LEE BROOKS, )
) (Post-Conviction: Murder and Assault
Appellant ) With Intent to Commit Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
Craig V. Morton, II Charles W. Burson
212 Adams Avenue Attorney General and Reporter
Memphis, Tennessee 38103 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Christina S. Shevalier
Assistant Atty. Gen. & Reporter
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
John W. Pierotti
District Attorney General
Karen Cook
Assistant District Attorney General
201 Poplar Avenue, 3rd Floor
Memphis, Tennessee 38103
OPINION FILED:
AFFIRMED
William M. Barker, Judge
OPINION
Following an evidentiary hearing, the Shelby County Criminal Court dismissed
the appellant's petition seeking post-conviction relief. The appellant now appeals from
the judgment of the trial court and presents two issues for our review. First, the
appellant contends that he was denied his constitutional right to the effective
assistance of counsel in that his trial counsel failed to properly investigate the case
and prepare for trial. Second, he contends that his guilty pleas were involuntarily and
unintelligently entered due to his mother's undue pressure on him to plead guilty and
his mistaken belief that his sentences would be served concurrently instead of
consecutively.
We affirm the trial court.
The appellant, along with a co-defendant, was indicted during the March 1990
term of the Shelby County Grand Jury for the offenses of felony murder, first-degree
premeditated murder, and assault with intent to commit murder.
On October 29, 1990, the petitioner signed two negotiated plea agreements
agreeing to plead guilty to first-degree murder and to assault with intent to commit
murder. The negotiated pleas, which were accepted by the trial court, provided for the
appellant to receive a life sentence as a Range I offender for the murder conviction
and a consecutive sentence of twenty-five (25) years as a Range II offender upon his
conviction of assault with intent to commit murder.
At the guilty plea submission hearing, the State represented that the following
facts would have been proven had the case gone to trial:
The facts that led to the indictment occurred back on
July 28, 1989. A victim of the murder, Rertisia (spelled
phonetically) Marshall, along with her husband, Henry
Marshall, were at their home here in Shelby County. That
address was 784 Josephine. They knew one of these
defendants from a prior acquaintance.
They were an elderly couple. I think she was about 70 and
he was about the same age. They allowed him to come
into their house that afternoon about seven o'clock. There
were witnesses across the street and next door who
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positively identified both of these defendants as going into
that house about that time.
One of the neighbors later heard screams coming from the
house. In a short period of time these two defendants left
the scene in the victims' car. Again, the same people who
saw them go in saw them come out of the house and the
neighbors went over to the house and found Mrs. Marshall
there.
She had been stabbed a number of times. Mr. Marshall
had been stabbed a number of times. I think the medical
examiner said she was stabbed approximately 19 times.
And Mr. Marshall was stabbed about seven times.
At any rate, these two defendants were developed as
suspects based upon the information received from the
neighbors. They were apprehended and the Defendant
Brooks gave a statement of admission admitting that he
stabbed both Mr. Marshall and Mrs. Marshall, also
implicated the co-defendant, Mr. Evans.
Mr. Evans did give a statement admitting he was present;
however, he denied that he actively participated in the
stabbing of the two victims. Mr. Evans at the time of this
offense was a juvenile. And he has been accepted by the
Criminal Courts to be treated as an adult.
In January of 1993, the petitioner filed his post-conviction petition, and the
State thereafter filed its response. The trial court appointed counsel for the appellant
and conducted an evidentiary hearing on his petition on May 10, 1994. At the
conclusion of the evidentiary hearing, the trial court denied the post-conviction petition,
although a written order was not entered until September 1, 1994.
Testifying in support of the petition were the appellant, Henry Lee Brooks, and
his mother, Cheryl Ann Cook. The petitioner's trial counsel testified for the State at
the post-conviction hearing.
The appellant testified that he met with his attorney only three times prior to
trial and that she did not properly investigate his case. Although he acknowledged
that she inquired of him if he knew of any witnesses, he testified that he advised his
trial counsel that he knew of none. He testified that the only evidence that he
discussed with his trial counsel was the statement which he had given to the police.
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The appellant testified that he told his attorney that he never touched the female
victim, but that he had seen the co-defendant stab Mrs. Marshall. He acknowledged
that he was aware that his attorney did obtain some discovery information from the
State.
The appellant further testified that his attorney did not follow through on the
pretrial motions which she filed and that there was never a suppression hearing
conducted upon his motion to suppress the statement which he had given to the
police. Further, he testified that although he did make an incriminating statement to
the police, the statement was not voluntarily given and that he did not understand his
Miranda rights. He was aware that the hearing date for the pretrial motions and the
trial date were the same, and that he would not have pled guilty if he had obtained a
favorable result on the motions.
He further testified that his attorney failed to obtain a psychological evaluation
of him, even though he admitted that he was taken to a clinic where he was asked
questions. He further testified that while his indictments were pending, his mental
condition was such that he was shaking a lot, experiencing difficulty concentrating,
was having problems in school, and was experiencing blackouts. He testified that his
mental faculties were worse when he was deprived of his eyeglasses.
With regard to his sentences, the appellant testified that he was advised by
his attorney that he would receive concurrent sentences upon his pleading guilty. He
acknowledged, however, that he understood the trial court to state in open court that
his sentences would be served consecutively. Despite the provisions in the two
negotiated plea agreements which he signed indicating that the sentences would be
consecutive, the appellant testified that he thought the "papers" which he signed
indicated his sentences would be served concurrently. The appellant testified that he
would not have entered pleas of guilty if he had been aware that he was to receive
concurrent sentences. He testified that he had lost his eyeglasses during the
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"incident" and that during his time in jail awaiting trial, he was not provided any glasses
and that consequently his attorney read the papers to him because he was unable to
read them without his glasses. Further, he testified that he was unaware of the
possibility of receiving the death penalty until the trial date. He further testified that the
statement which he gave to the police contained inaccuracies. In particular, the
appellant testified that the portion of his statement indicating that he stabbed the
female victim once or twice was incorrect. At the evidentiary hearing he testified that
he only stabbed Mr. Marshall, not Mrs. Marshall.
The appellant further testified that the trial court did not explain his rights to
him and that the only reason he pled guilty was that his trial counsel told him that his
choice was either to go to trial and get the death penalty or to take the time offered by
the State. Accordingly, he testified that he only said yes to everything at the plea
submission hearing because his attorney told him to do so.
The petitioner's mother testified that the appellant's trial counsel contacted her
two or three times or more. She testified that her son had mental problems in that he
was prone to "blackouts," and it was her belief that he was not competent to stand
trial, despite the results of the mental evaluation. She did not believe that the jury
would acquit her son because he had committed murder. She admitted that she
advised her son to plead guilty in order to avoid the death penalty and that she had a
difficult time convincing him to agree. She testified that her son's trial counsel advised
her that the sentences would be served concurrently.
Appellant's trial counsel, testifying for the State, said that she met on more
than one occasion with appellant's family members who were brought to her office by
the appellant's mother. She filed many pretrial motions and discussed the case with
the petitioner. In addition to receiving discovery from the State, she conducted an
independent investigation of the case. She attempted to contact witnesses and
arranged for the appellant to have a mental evaluation performed at the Mid-Town
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Mental Health Clinic. Following the mental evaluation, appellant's trial counsel had a
conference with the person who performed the evaluation. She testified that there
was no helpful information uncovered during that conference and that the evaluation
uncovered no mitigating factors. It was her opinion that there was no question of the
petitioner's competency to stand trial and that the evidence against her client was
"overwhelming." Further, appellant's trial counsel denied that the appellant ever
mentioned having blackouts. She agreed that the appellant knew of no witnesses who
could testify on his behalf.
Appellant's trial counsel testified that no hearings were conducted on the
appellant's pretrial motions because the petitioner pleaded guilty before the motions
were heard. She acknowledged that she advised the petitioner that his sentences
would be served consecutively and that she never told him that they would be served
concurrently. She acknowledged that she advised both the appellant and his mother
that in her opinion the appellant should plead guilty because she felt that the
negotiated plea was favorable to the petitioner in light of the evidence against him.
Appellant's trial counsel advised the appellant that in the event he did not
plead guilty, she would ask for a continuance so that his pretrial motions could be
heard prior to trial. She was also advised by the district attorney that he intended to
file a notice of intent to seek the death penalty, and that her main goal was to attempt
to settle the cases in order to avoid the risk of such a punishment.
Appellant's trial counsel never received any indication that the appellant did
not understand his rights at the guilty pleas admission hearing. Finally, it was the
opinion of appellant's trial counsel that even if his statement to the police were
suppressed, there was more than enough evidence to convict the appellant of the
crimes for which he had been indicted.
Based upon the foregoing, together with the record from the guilty plea
submission hearing, the trial court found that the appellant had failed to carry his
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burden of showing by a preponderance of the evidence that his guilty pleas were
involuntarily given or that they were not intelligently entered. Further, the trial court
concluded that the evidence failed to establish that the appellant received the
ineffective assistance of counsel. We agree.
In a post-conviction relief proceeding, the burden of proof is on the petitioner
to show by a preponderance of the evidence the allegations in the petition. State v.
Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991); Bratton v. State, 477 S.W.2d
754 (Tenn. Crim. App. 1971). On review of post-conviction proceedings, the findings
of fact of the trial court are conclusive on appeal unless the evidence preponderates
against the judgment. Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).
In order for the petitioner to be granted relief on the grounds of ineffective
assistance of counsel, he must establish that the advice given or the services
rendered were not within the range of competence demanded of attorneys in criminal
cases and that counsel's deficient performance prejudiced his case. Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). In the context of a post-conviction relief petition
seeking to set aside a plea of guilty based upon ineffective assistance of counsel, the
petitioner must demonstrate 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, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985); Bankston v.
State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
Applying the above standards to the facts of this case, it is apparent that the
appellant was substantially involved in the very gruesome murder of an elderly woman
and the unwarranted and horrible stabbing attack on her husband. It is clear that the
offenses were of such a magnitude and so terrible that if convicted by a jury, there
was undoubtedly a substantial possibility that the appellant would have been
sentenced to death by electrocution. In order to avoid that possibility, he voluntarily,
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knowingly, and wisely chose to accept a negotiated plea of guilty for a life sentence to
be followed by a twenty-five (25) year consecutive sentence. We agree with the trial
court that the appellant has simply failed in his burden of establishing that he was
denied the effective assistance of counsel or that he entered his pleas of guilty
unknowingly or involuntarily.
Accordingly, the judgment of the trial court is affirmed.
WILLIAM M. BARKER
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID H. WELLES, JUDGE
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