James Westbrook v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 11, 2006

JAMES WESTBROOK v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Gibson County

No. H7159 Clayburn Peeples, Judge

No. W2005-02459-CCA-R3-PC - Filed May 4, 2006

The petitioner, James Westbrook, appeals the dismissal of his petition for post-conviction relief,

arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence and for

failing to call his codefendant as a witness at trial. Following our review, we conclude that the

petitioner has failed to meet his burden of demonstrating either a deficiency in counsel’s

performance or resulting prejudice to his case. Accordingly, we affirm the post-conviction court’s

dismissal of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.

MCLIN , JJ., joined.

Harold R. Gunn, Humboldt, Tennessee, for the appellant, James Westbrook.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Garry

G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

FACTS

On September 20, 2002, a Gibson County jury convicted the petitioner of possession of .5

grams or more of cocaine with the intent to sell or deliver, a Class B felony. The trial court

subsequently sentenced him as a Range II, multiple offender to a $3000 fine and twelve years in the

Department of Correction. This court affirmed the petitioner’s conviction on appeal, but remanded

to the trial court for the empaneling of a jury to fix the fine. State v. James Curtis Westbrook, No.

W2003-00163-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 1131, at *29 (Tenn. Crim. App. Dec.

19, 2003), perm. to appeal denied (Tenn. May 10, 2004). After remand, an amended judgment was

entered reflecting that the petitioner had been assessed a $5000 fine, which the trial court waived due

to the petitioner’s indigent status.

The proof at trial established that the petitioner’s arrest arose as the result of a tip from a

confidential informant, who reported to West Tennessee Violent Crime and Drug Task Force agents

that the petitioner was selling cocaine from a residence located at 364 Jim Jackson Road in rural

Gibson County. Id. at **7-8. The home, where the petitioner had been residing for two or three

weeks prior to his arrest, was owned by L.J. Woodruff, the father of the petitioner’s girlfriend and

codefendant, Darlene Echols. Id. at **3-6. On March 15, 2002, drug task force agents went to the

home to execute a search warrant, saw the petitioner leaving the residence, and followed him to

Humboldt where they stopped him, placed him under arrest, and escorted him back to the residence.

Id. at **3-4. Among the items uncovered in the search were an assortment of drug paraphernalia

found throughout the home; a “drug ledger,” used to record the sale of crack cocaine, seized from

the petitioner’s bedroom; and a bag containing 4.7 grams of crack cocaine hidden underneath some

sheets of tin located approximately seventy yards behind the residence. Id. at **4-6. Footprints in

the mud leading from the rear of the house to the location where the cocaine was hidden matched

the tread on the petitioner’s shoes. Id. at *6. In addition, Woodruff testified that prior to the agents’

arrival he saw the petitioner cutting on a plate what appeared to be cocaine. He stated that he told

the petitioner to remove the substance from his house and that the petitioner placed the material in

a plastic bag and left through the back door. Id. at **6-7.

On October 6, 2004, the petitioner filed a pro se petition for post-conviction relief. Among

other claims, the petitioner alleged he was denied the effective assistance of trial counsel due to

counsel’s failure to file a motion to suppress evidence obtained as the result of his allegedly illegal

stop, arrest, and search and counsel’s failure to call Echols as a defense witness at his trial. Post-

conviction counsel was subsequently appointed, and on August 26, 2005, an evidentiary hearing was

held at which the petitioner’s trial counsel was the only witness.

Trial counsel testified he was licensed to practice law in Tennessee and was appointed to

represent the petitioner in his drug case. He said he conducted discovery, reviewed the drug task

force’s drug manual, and went over the contents of the petitioner’s file with the district attorney’s

office. Based on his expertise, he saw no legal basis to file a motion to suppress. As he recalled,

the search warrant specifically covered the person of the petitioner as well as the premises and

property. However, he did file a motion in limine to exclude the evidence relating to the petitioner’s

footprints, as well as various other pretrial motions, including one seeking the disclosure of the

identity of the confidential information. Trial counsel testified that he discussed all these issues with

the petitioner. He stated there was evidence against the petitioner in addition to the cocaine

uncovered behind the house, including statements by L.J. Woodruff and Darlene Echols that placed

the petitioner inside the house in possession of cocaine. Trial counsel said he reviewed with the

petitioner the plea bargain offered by the State, but the petitioner elected to go to trial.

At the conclusion of the hearing, the post-conviction court made oral findings of fact that trial

counsel was “fully competent” in his representation and that his representation “exceeded the

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standard normally considered to be adequate in Tennessee.” Thereafter, on October 6, 2005, the

post-conviction court entered a written order dismissing the petition for post-conviction relief.

ANALYSIS

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that the

post-conviction court erred in finding that trial counsel provided effective representation.

Specifically, he argues on appeal that trial counsel was deficient for failing to file a motion to

suppress “for the stop, arrest and transportation of the [petitioner]” and for failing to call Ms. Echols

as a witness at his trial. The State argues that the post-conviction court properly dismissed the

petition. We agree with the State.

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). When an evidentiary hearing

is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal

unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.

1996). Where appellate review involves purely factual issues, the appellate court should not reweigh

or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,

review of a trial court's application of the law to the facts of the case is de novo, with no presumption

of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).

The issue of ineffective assistance of counsel, which presents mixed questions of fact and

law, is reviewed de novo, with a presumption of correctness given only to the post-conviction court’s

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d

453, 461 (Tenn. 1999). To establish a claim of ineffective assistance of counsel, the petitioner has

the burden to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905

(Tenn. Crim. App. 1997) (noting that same standard for determining ineffective assistance of counsel

that is applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong

test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that

the deficient performance prejudiced the defense. This requires showing that counsel’ errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts or

omissions were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.

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at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong

of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine

confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Initially, we note that the post-conviction court’s order denying the petition contains no

findings of fact or conclusions of law. Following a post-conviction hearing, a post-conviction court

is required to enter written findings of fact and conclusions of law addressing all grounds for relief.

See Tenn. Code Ann. § 40-30-111(b) (2003); Tenn. Sup. Ct. R. 28, § 9(A). However, given the

narrow scope of the issue on review and the fact that the post-conviction court made sufficient oral

findings from the bench, we conclude that the lack of written findings of fact and conclusions of law

in this case is harmless. See Tenn. R. App. P. 36(b).

The post-conviction court made the following findings of fact and conclusions of law from

the bench:

I find that [trial counsel] was fully competent in representing [the petitioner]; that his

representation not only met but exceeded the standard normally considered to be

adequate in Tennessee. I find that the [petitioner’s] complaints regarding the legality

of both the stop and the search to be without legal merit. I find [trial counsel] fully

explored all avenues of defense and all settlement possibilities and that his

representation fully complied with requirements of both statutory and case law.

We conclude that the record fully supports the post-conviction court’s finding that the

petitioner failed to show he was denied the effective assistance of counsel. On appeal, the petitioner

bases his ineffective assistance claim solely on counsel’s failure to call Echols as a witness or to file

a motion to suppress the petitioner’s “stop, arrest and transportation” to the residence. Trial counsel,

however, testified that he had no legal basis for the motion to suppress and that the search warrant

specifically named the petitioner as a person to be searched. The search warrant, which was made

an exhibit to the hearing, reveals that trial counsel’s memory was accurate. Furthermore, Echols’

statement to the police, which was also made an exhibit to the hearing, does not support the

petitioner’s claim that she would have been a beneficial witness at his trial. The statement reveals

that Echols told investigators that the drugs found in her father’s room belonged to her father but that

the drugs found in the back of the house belonged to the petitioner. We also note that the petitioner

did not call Echols as a witness at the evidentiary hearing. As such, he cannot meet his burden of

showing that he was prejudiced as a result of trial counsel’s failure to call her as a witness at his trial.

See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (stating that “[w]hen a petitioner

contends that trial counsel failed to discover, interview, or present witnesses in support of his

defense, these witnesses should be presented by the petitioner at the evidentiary hearing. As a

general rule, this is the only way the petitioner can establish that . . . 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.”).

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CONCLUSION

We conclude that the petitioner has not met his burden of showing that he is entitled to

post-conviction relief on the basis of ineffective assistance of counsel. Accordingly, we affirm the

dismissal of the petition for post-conviction relief.

___________________________________

ALAN E. GLENN, JUDGE

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