Natasha W. Cornett v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 20, 2002 Session

NATASHA W. CORNETT v. STATE OF TENNESSEE

Appeal from the Circuit Court for Greene County

No. 01 CR 120 James E. Beckner, Judge

No. E2002-00034-CCA-R3-PC

September 30, 2002

The petitioner, Natasha W. Cornett, appeals the trial court's denial of post-conviction relief. The

issues presented for our review are (1) whether the petitioner properly waived her right to a jury trial

at sentencing; (2) whether her guilty pleas to three counts of first degree murder, one count of

attempted first degree murder, two counts of especially aggravated kidnapping, two counts of

aggravated kidnapping, and one count of theft over $1,000 were knowingly and voluntarily entered;

and (3) whether the petitioner was denied the effective assistance of counsel. The judgment is

affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and

ROBERT W. WEDEMEYER , JJ., joined.

Susanna L. Thomas, Newport, Tennessee, for the appellant, Natasha W. Cornett.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and

Garrett Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On August 6, 1997, Vidar Lillelid, his wife, Delphina, and their six-year-old daughter,

Tabitha, were murdered near an interstate rest stop in Greene County. Two-year-old Peter Lillelid

suffered two life-threatening gunshot wounds, one of which caused the loss of an eye. Just before

their scheduled trials, the petitioner and her co-defendants, Karen Howell, Crystal Sturgill, Joseph

Risner, Dean Mullins, and Jason Bryant, each entered pleas of guilt to the attempted murder of Peter

Lillelid and to the first degree murders of Vidar, Delphina, and Tabitha Lillelid. The petitioner and

each of the other defendants also pled guilty to two counts of especially aggravated kidnapping, two

counts of kidnapping, and one count of theft of property valued at between $1,000 and $10,000. In

exchange for the pleas of guilt, the state withdrew its request for the imposition of the death penalty

as to the petitioner and Joseph Risner, Dean Mullins, and Crystal Sturgill. Because Howell and

Bryant were minors at the time of offenses, they did not qualify for the death penalty. At the

conclusion of the sentencing hearing, the trial court imposed identical sentences upon each defendant

as follows:

Crimes Sentence

Three counts of first degree murder Life without the possibility of parole

(consecutive)

Attempted murder 25 years (consecutive)

Two counts of especially aggravated 25 years (concurrent)

kidnapping

Two counts of aggravated kidnapping 12 years (concurrent)

Theft Four years (concurrent)

The petitioner and the other defendants did not appeal the sentences imposed for the theft and

kidnapping convictions. In State v. Howell, 34 S.W.3d 484 (Tenn. Crim. App. 2000), this court

affirmed the sentences imposed upon the petitioner for each of the three first degree murder

convictions and the attempted murder. Application for permission to appeal to the supreme court

was denied on September 25, 2000.

On July 19, 2001, the petitioner filed a petition for post-conviction relief. Petitioner asserted

that her waiver of a jury trial did not comply with Rule 23 of the Tennessee Rules of Criminal

Procedure. She generally alleged that her pleas were neither knowingly nor voluntarily entered and

that she was denied the effective assistance of counsel. The petitioner specifically asserted that she

was coerced into pleading guilty through misrepresentations, breached promises, and threats by the

state. She complained about the "all or nothing" nature of the state's plea offer which required the

consent and participation of all of her co-defendants. The petitioner contended that she was not

mentally sound at the time of her pleas and was influenced to waive her constitutional rights by the

side effects of a prescription medication. She also argued that she was not guilty of the crimes

charged and complained that her counsel failed to adequately advise her prior to the plea of either

the mental state required for the commission of the crimes or the possible sentencing consequences.

At the evidentiary hearing, it was established that attorneys Robert F. Cupp and Stacy Street

were appointed to represent the petitioner. The defense team included a criminal investigator, a

mitigation specialist, a criminologist, a psychiatrist, and a psychologist. Attorney Cupp described

the expert assistance as the best of any of the many cases in which he had been involved. The theory

of defense was to present the petitioner as a minor participant in the offenses. As mitigation proof

in the event of her conviction, the defense attorneys found witnesses in the Pikeville, Kentucky, area

who were able to testify on behalf of the petitioner. In the course of their investigation, the defense

attorneys learned that the petitioner, when young, had been diagnosed with a bipolar disorder and

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institutionalized in a psychiatric facility. Based upon the guidance of their mental health experts,

Attorneys Cupp and Street determined that the petitioner's mental problems no longer existed at the

time of the offense. Attorney Cupp confirmed that immediately prior to trial, the state offered a

package plea proposal conditioned upon the petitioner and each of the other defendants accepting

the terms. The proposal required guilty pleas upon each offense and the maximum sentences for

each of the kidnapping and theft charges. The trial court was to determine the sentences for the three

first degree murders and the attempted murder. If the terms were acceptable to each of the

defendants, the state would agree to withdraw its request for the death penalty.

Attorney Cupp testified that he and Attorney Street spent approximately nine hours with the

petitioner over a period of three days discussing the offenses and the various sentencing possibilities.

He acknowledged that the petitioner did not appear to be concerned about the death penalty for

herself and was primarily motivated to assist the others to avoid capital punishment. Attorney Cupp

testified that during discussions immediately before the guilty plea, the petitioner's demeanor was

no different than it had been previously. He stated that the petitioner never claimed to be under the

influence of medication. Attorney Cupp described her decision to accept the offer as entirely

voluntary.

Attorney Street corroborated the testimony of his co-counsel. He testified that he had spoken

with every witness for the state and had examined all of the evidence the state intended to introduce

at trial. He confirmed that the defense theory was to portray the petitioner as a minor participant,

not having fired any of the shots which had either killed or injured the victims. The defense theory

during the penalty phase of the trial was to establish that the petitioner had a dysfunctional family,

was abused from early childhood, and was afflicted with mental deficiencies and alcoholism.

Attorney Street recalled that he had visited the petitioner, who was in solitary confinement at the jail,

at least two or three times a week. He was aware that the petitioner had been prescribed Haldol, an

anti-psychotic drug which she later stopped taking because of its side effects. Attorney Street

believed that the petitioner felt better after terminating her use of the prescription and confirmed that

the petitioner did not reveal that she had taken any other medication. Further, he was unable to

detect any indication of mental problems. Attorney Street acknowledged that he had advised the

petitioner prior to her plea that it was his opinion that the jury would return a sentence of death. He

specifically remembered the petitioner's initial response, "I don't care whether I die or not." While

he described the petitioner as reluctant, Attorney Street testified that she had almost immediately

agreed to the terms of the plea offer. He specifically recalled explaining to the petitioner that a

"package deal" required the acceptance of all defendants, else it was available to none. It was his

opinion that the petitioner had made an effective witness during the sentencing hearing and that a

substantial amount of other mitigating testimony had been adequately presented through a variety

of witnesses. A psychiatric report was introduced at the hearing which described the petitioner as

a troubled person, exhibiting symptoms of mental illness. The report concluded, however, that she

had no psychosis and was not insane at the time of the offenses. Attorney Street described the

petitioner as extremely intelligent, very artistic, and articulate. He confirmed that even though the

sentencing hearing was approximately one month after the guilty pleas and the testimony at the

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hearing lasted a full week, the petitioner never expressed any desire to withdraw her plea during that

time.

The petitioner testified that she had signed the plea agreement on the day the state extended

the offer but did not feel that she had accepted the terms. She stated that she kept the documents so

that she could reconsider. The petitioner acknowledged that she asked several questions about the

possible sentences and the consequences in the event she rejected the offer. The petitioner recalled

that she asked her attorneys to describe prison life, to express their views on the possibility of the

imposition of the death penalty, and to assess the likelihood of winning an acquittal. She stated that

she understood that even if she was acquitted at trial, her co-defendants could be convicted and could

be sentenced to death. The petitioner recalled that the best possible scenario still required a 51-year

term in prison and described her acceptance of the plea offer as a last-minute decision. She claimed

that the plea discussions wreaked havoc on her mental state, causing her to be guilt-ridden and

suicidal due to her failure to prevent the killings. The petitioner viewed her decision to accept the

offer as being based primarily upon her desire to stop anyone else from dying. She claimed that by

the time she had made her final decision to accept the state's offer, everyone had accepted except for

Howell. She claimed that the week before her guilty plea, she took "a yellow capsule" for

nightmares and Xanax, frequently cried, and slept erratically. The petitioner insisted that she told

her attorneys that she had been taking medication and contended that they were aware of her

impaired mental state. She also maintained that shortly after the imposition of sentence, she

informed Attorney Street that she wanted to withdraw her plea.

At the conclusion of the evidentiary hearing, the trial court entered a memorandum opinion

and order denying post-conviction relief. Initially, the trial court determined that the petitioner had

waived a jury trial in written form with the approval of the court and the district attorney general.

The trial court determined that Attorneys Cupp and Street were competent, had prior experience in

capital cases, and had all of the resources necessary to prepare for trial. The trial court concluded

that the attorneys had made an exhaustive investigation and had maintained a high level of

communication with the petitioner. It characterized the facts and circumstances of the offenses as

"horrible," establishing that the petitioner was a willing participant in the shootings. The trial court

also determined that the pleas were knowingly and voluntarily made upon the sound advice of

counsel and that they were not entered due to the influence of medication or the stress due to the

state's offer of a "package deal." Finally, the trial court found that the petitioner was fully aware of

the consequences of her plea and had represented at the guilty plea hearing that she had not used

alcohol or drugs in the prior 24 hours.

I

The petitioner first argues that she did not waive her right to have a jury decide the sentences

on the three murder convictions. She argues that Article I, sections 6 and 14, of the Tennessee

Constitution and Tennessee Code Annotated section 39-13-204(a), which provides that after a

verdict of guilty of first degree murder, "the jury shall fix the punishment," establish both

constitutional and statutory rights to a jury. The petitioner specifically argues that the waiver she

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signed prior to the sentencing hearing is invalid because the document makes no specific mention

of the right to a jury or the petitioner's waiver thereof.

Rule 23 of the Tennessee Rules of Criminal Procedure provides as follows:

In all criminal cases except small offenses, trial shall be by jury unless the

defendant waives a jury trial in writing with the approval of the court and the consent

of the district attorney general. The defendant may waive a jury trial at any time

before the jury is sworn.

Unless there is an execution of a waiver of the right to trial by jury, a defendant in a criminal

case is entitled to have a jury empaneled to try the matter. State v. Johnson, 574 S.W.2d 739, 741

(Tenn. 1978). Although no particular form is required, waivers, in order to be valid, must be

"voluntarily, knowingly, and intelligently made." Patton v. United States, 281 U.S. 312 (1930); State

v. Bobo, 814 S.W.2d 353, 359 (Tenn. 1991). Generally speaking, the waiver "must be clearly and

convincingly shown" by the record. See generally State v. Tidwell, 775 S.W.2d 379, 386 (Tenn.

Crim. App. 1989); Lee v. State, 560 S.W.2d 82, 84 (Tenn. Crim. App. 1977). "If the defendant sees

fit to waive [the right to trial by jury], it is permissible provided that waiver is made in accordance

with the safeguards provided by the constitution and implementing statutes or rules of criminal

procedure." Bobo, 814 S.W.2d at 359. On appeal, this court is bound to accept the trial court's

factual findings unless the evidence preponderates against those findings. State v. Kelly, 603 S.W.2d

726, 729 (Tenn. 1980).

In this instance, the record establishes that the petitioner and the other defendants signed a

"Waiver of Rights and Plea of Guilty." As part of the written proposal made by the state, the

defendant signed a document providing that "sentencing will be strictly within the sound discretion

of the trial court." The document is dated February 20, 1998, and is approved by the signatures of

each of her two attorneys. The petitioner signed an acceptance of the written plea offer and an

acknowledgment of the specific waiver:

Furthermore, having been advised of my constitutional rights, I freely and voluntarily

waive my right to a trial by jury, my right not to be compelled to incriminate myself,

my right to have a jury impose any fine in excess of $50, and all other rights

explained to me. I hereby submit my case to the trial judge for decisions, both as to

guilt and punishment.

After the trial court approved the guilty plea and imposed sentence, the petitioner failed to

file a motion to withdraw the guilty plea and failed to present the issue on direct appeal. Tennessee

Code Annotated section 40-30-206(g) provides that, with few exceptions, none of which appear to

be applicable, a "ground for relief is waived if the petitioner personally or through an attorney failed

to present it for determination in any proceeding before a court of competent jurisdiction in which

the ground could have been presented." See also House v. State, 911 S.W.2d 705 (Tenn. 1995), cert.

denied, 517 U.S. 1193, 116 S. Ct. 1685 (1996). More importantly, the transcript of the guilty plea

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proceeding, the sentencing hearing, and the evidentiary hearing on the petition for post-conviction

relief established that the petitioner expressly waived her right to a sentencing hearing before a jury

and properly asked that the trial court undertake that responsibility.

II

Next, the defendant argues that her pleas were neither knowingly nor voluntarily made. She

argues that a "package deal" by its very nature is designed to coerce less culpable individuals to feel

responsible for the lives of others and that a decision made under these circumstances cannot be

voluntary.

Under the terms of the Post-Conviction Procedure Act, a petitioner bears the burden of

proving her allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The

credibility of the witnesses and the weight and value afforded to their testimony are appropriately

addressed in the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). On

appeal, the burden is on the petitioner to establish that the evidence preponderated against the

findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). Otherwise,

the findings of fact by the trial court are conclusive. Graves v. State, 512 S.W.2d 603, 604 (Tenn.

Crim. App. 1973).

In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court ruled that

defendants should be advised of certain of their constitutional rights before entering pleas of guilt.

Included among those required warnings are the right against self-incrimination, the right to confront

witnesses, and the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the

guilty plea must be knowingly and voluntarily made. Id. at 242. If the proof establishes that the

petitioner was aware of his constitutional rights, he is entitled to no relief. Johnson v. State, 834

S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance,

incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .'" Blankenship v.

State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

The holding in Boykin does not mandate a verbatim explanation of the rights at issue.

Instead, it requires only that the record affirmatively show that there was a voluntary and knowing

entry of the guilty pleas. The pleas must represent "a voluntary and intelligent choice among the

alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31

(1970); see Clark v. State, 800 S.W.2d 500 (Tenn. Crim. App. 1990). A plea cannot be voluntary

if the accused is "'incompetent or otherwise not in control of his mental facilities.'" Blankenship, 858

S.W.2d at 904 (quoting Brown v. Perini, 718 F.2d 784, 788 (6th Cir. 1983)). The totality of the

circumstances to be considered include the relative intelligence of the defendant, the degree of

familiarity with criminal proceedings, whether the defendant was represented by competent counsel

with the opportunity to confer about the various alternatives available, knowledge of the criminal

charges lodged, and the reasons for the decision to plead guilty, including any desire to avoid a

greater penalty that might result from a jury trial. Powers v. State, 942 S.W.2d 551, 556 (Tenn.

1996).

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In this state, "package deals" have been approved as an acceptable means of reaching a plea

agreement. In State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988), this court recognized

the legitimacy of the concept. Several cases before and since have done the same. In Parham v.

State, 885 S.W.2d 375 (Tenn. Crim. App. 1994), a contingent plea offer was found not to have

coerced a guilty plea. See also Netters v. State, 957 S.W.2d 844 (Tenn. Crim. App. 1997); Hodges

v. State, 491 S.W.2d 624 (Tenn. Crim. App. 1972).

In this instance, the record demonstrates that the petitioner was intelligent and also familiar

with criminal proceedings. She made straight A's in elementary school and until the seventh grade

had been a good student, although at age 14 she was hospitalized for psychiatric care. For a period

of eleven days, she continued outpatient therapy, received medication, and had improved.

Psychiatrist Robert Sadoff, employed by the defense, determined that the petitioner was not insane

at the time of the crimes and, while exhibiting symptoms of a bipolar disorder, was not out of touch

with reality and did not suffer from psychosis. The record establishes that the petitioner had able

attorneys who met with her often and discussed the various trial and sentencing alternatives. At the

conclusion of the sentencing hearing, the trial judge described the petitioner as "the instigator and

orchestrator of the trip and the things that led to the death of the Lillelids . . . an active part[icipant]

in the kidnapping of the Lillelids at the rest area." It was the petitioner, the record indicates, who

suggested that guns be obtained during the course of the trip.

Under these circumstances, the petitioner faced a significant likelihood of the death penalty.

Whether the motivation was to escape her own death or assist the others in doing so, the

circumstances suggest that the guilty pleas were knowingly, voluntarily, and intelligently made, a

reasonable choice among the limited and potentially disastrous alternatives available. In short, the

evidence does not preponderate against the trial court's conclusion that the petitioner's pleas were

properly entered.

III

As her last issue, the petitioner argues that her attorneys were ineffective. She submits that

rather than relying upon the written report of Dr. Sadoff, her attorneys should have presented him

to the trial court as a live witness. The petitioner also complains that her trial attorneys failed to

provide adequate mitigation evidence and failed to lodge objections to the improper statements of

an attorney representing Crystal Sturgill, one of her co-defendants, who made references to Satanism

and witchcraft. The petitioner argues that the inappropriate references to her interest in the occult

resulted in her receiving a longer sentence than she otherwise merited. The petitioner also complains

about her attorneys' lack of explanation regarding the significance of the waiver of certain of her

constitutional rights and their relative acquiescence to a group, rather than individualized, sentencing

concept.

In order for the petitioner to be granted relief on grounds of ineffective assistance of counsel,

she 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, but for her counsel's deficient

performance, the result of her trial would have been different. See Strickland v. Washington, 466

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U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This two-part standard,

as it applies to guilty pleas, is met when the petitioner establishes that, but for counsel's errors, she

would not have pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59

(1985).

This court must indulge a strong presumption that the conduct of the defense attorneys at the

trial falls within the range of reasonable professional assistance and must evaluate their performance

from their perspective at the time of the alleged deficiencies and in light of the totality of the

evidence. Strickland, 466 U.S. at 690. The petitioner must demonstrate that there is a reasonable

probability that but for counsel's deficient performance, the result of the proceedings would have

been different. Id. at 695.

This court has been unable to conclude from the record how the sentence might have been

different had Dr. Sadoff appeared in person as a witness. The petitioner failed to produce Dr. Sadoff

at the evidentiary hearing on the post-conviction petition. Typically, that is the only way to establish

any prejudice by virtue of the failure to call a witness at trial. Black v. State, 794 S.W.2d 752, 757

(Tenn. Crim. App. 1990); Holt v. State, No. M2000-01063-CCA-R3-PC (Tenn. Crim. App., at

Nashville, Oct. 30, 2000).

At the sentencing hearing, the state was able to establish that by the time the petitioner had

begun the sixth grade, she had practiced self-mutilation, dressed in dark clothing, painted her

fingernails black, and worn dark eye and lip makeup. By 16, she was involved in theft by passing

worthless checks. While denying that her wedding was "Satanic," the petitioner and her husband,

who were married only 10 months, dressed in "Gothic clothing" and the bridesmaids were "chained

together." There was also evidence that the petitioner claimed to be able to communicate with Karen

Howell, whom she described as her "soul mate," during out-of-body experiences. There was proof

that the two had cut themselves the night before the Lillelid murders and had drunk each other's

blood.

Although the petitioner argues that her trial attorneys' reliance upon her youth and her lack

of direct responsibility for the shootings qualified as mitigation evidence, she maintains that the

establishment of a legitimate theory of defense did not relieve them of the duty to present other

evidence effectively. The petitioner does not point out any particular deficiencies in their

presentation, however, and this court can only guess at how counsel might have done better. It is

evident that the record of the sentencing hearing contained more information on the petitioner than

perhaps any of the other defendants. There was proof of a troubled childhood, the lack of a father

figure, and an irresponsible mother. The near death of her grandmother when she was six was a

troubling experience. The petitioner's mother had a nervous breakdown and physical problems. The

petitioner experienced bouts of bulimia and depression. By age 13, the petitioner was sexually active

and a year later was hospitalized for psychiatric care and was prescribed Prozac and lithium. By age

15, she abused heroin, ecstacy, cocaine, and acid. By age 17, she was married for a short period of

time, and after the divorce, homeless, living on the streets of New Orleans, where she claimed to

have been beaten and gang-raped. Dr. Sadoff provided helpful information, diagnosing the petitioner

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as showing symptoms of a bipolar disorder and a mixed personality and dissociative disorders.

While neither insane nor out of touch with reality, the petitioner was described by Dr. Sadoff as

having been emotionally disturbed for several years. In summary, the record demonstrates that the

attorneys for the petitioner made significant effort to fully develop the mitigating circumstances

applicable. The effort was certainly in compliance with professional standards.

Further, because the proof was already in the record, it is doubtful that comments by Attorney

Eichelman, who objected to references of "drinking blood" for fear that his client would be

implicated, had any effect on the sentence. Certainly, the petitioner's attorneys had no control over

those statements, which in the context of the other testimony presented to the trial judge during the

sentencing hearing, were hardly prejudicial.

Although the petitioner argues that her attorneys did not adequately explain the significance

of the waiver of her constitutional rights, the record demonstrates otherwise. Finally, the record also

establishes that her defense attorneys made every effort to persuade the trial judge to impose an

individualized sentence, one more lenient than those ordered for the other defendants. In that regard,

there were no deficiencies in the effort.

Accordingly, the judgment of the trial court is affirmed.

___________________________________

GARY R. WADE, PRESIDING JUDGE

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