State v. Nassel Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 8, 2000

NASSEL BROWN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-21396 James C. Beasley, Jr., Judge

No. W1999-01558-CCA-R3-PC - Filed October 24, 2000

The petitioner, convicted of one count of rape of a child and sentenced to fifteen years, appeals

from the trial court’s order dismissing his petition for post-conviction relief. He argues that his

trial counsel was ineffective for failing, inter alia, to investigate his case and for failing to

interview and subpoena certain witnesses. We conclude that the petitioner has not demonstrated

that the trial court erred. Therefore, we affirm the order dismissing his petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

JAMES CURWOOD WITT, JR., JJ., joined.

Christie Worley-Stephens, Memphis, Tennessee, for the appellant, Nassel Brown.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Paula Wulff, Assistant District Attorney, for

the appellee, State of Tennessee.

OPINION

Introduction

The petitioner, Nassel Brown, appeals from a Shelby County trial court’s order

dismissing his petition for post-conviction relief. Convicted in 1996 of one count of rape of a

child, the petitioner was sentenced to fifteen years incarceration. Now serving that sentence, the

petitioner has filed a post-conviction petition alleging ineffective assistance of counsel. In

consideration, the Shelby County trial court conducted an evidentiary hearing and found that the

petitioner’s claim had no merit. Accordingly, it dismissed the petition. Now, on appeal to this

Court, the petitioner argues that this disposition was in error and asks this Court to reverse the

decision of the trial court. After careful review, we find that the petitioner has not demonstrated

that the trial court erred. Therefore, we affirm the trial court’s order dismissing the petition.

Facts

As background, on January 12, 1996, the petitioner was convicted by a Shelby County

jury of one count of rape of a child and sentenced to fifteen years incarceration. On November

13, 1997, this conviction was affirmed by a panel of this Court. See State v. Nassel Brown, No.

02C01-9606-CR-00187 (Tenn. Crim. App. filed Nov. 13, 1997, at Jackson). Less than one year

after our state’s supreme court denied the petitioner’s application for permission to appeal, he

filed this petition for post-conviction relief. The Shelby County trial court, considering this

petition, held an evidentiary hearing on November 4, 1999. The facts relevant to this appeal

were established at this hearing.

At the hearing, the petitioner testified at some length. He identified at least five different

witnesses that, in his judgment, his trial counsel should have subpoenaed and called to testify. In

his estimation, several of these witnesses would have stated that, for the most part, the defendant

was not around the victim during the relevant time period. Further, he stated that the testimony

of one of these witnesses, the victim’s mother, would have been especially helpful. Second, the

petitioner testified that his trial counsel failed to advise him of his possible sentence. Third, he

testified that his counsel failed to act properly when, at trial, a health department official

testified. Fourth and finally, he complained that his trial counsel failed to investigate a similar

complaint in the victim’s past.

In response, trial counsel, Diane Thackery, testified. She testified to her experience in

similar cases as well as to details of the defendant’s case. She explained her decisions not to call

certain witnesses.1 Also, she stated that she advised the petitioner of his possible sentence and

explained that the petitioner, preferring a trial, seemed unwilling to accept any plea offer.

Finally, after some investigation, she found no confirmation in the petitioner’s claim that the

victim had a similar incident in her past and therefore chose not to pursue that angle at trial.

After hearing this testimony and, in fact, conducting its own thorough examination of

both witnesses, the trial court made the following findings of fact and dismissed the petition:

[I]t appears to me that from the proof that I’ve heard, that Ms. Thackery

interviewed every witness that the state had, including the victim, child victim,

and her mother; interviewed anybody that the defendant gave her as a potential

witness that might be of benefit or help.

....

With regard to the punishment involved, the indication was that Mr. Brown’s

position all along was, I don’t want an offer. I want to go to trial. He rejected

any offers. Ms. Thackery indicated she explained the potential punishment and

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Trial counsel stated that, in her judgment, several of the witnesses identified by the petitioner would not

have bee n helpful, that the m other of the vic tim was not cre dible and showed u p at trial visibly drun k, and finally

that another of these witnesses was never brought to her attention.

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what might happen, and Mr. Brown’s position was, he wanted to go to trial which

is his right.

....

The criteria in these hearings, post-conviction hearings, is, did counsel represent

the defendant in a proper manner, and if counsel did not, did that

misrepresentation or poor representation affect in such a way the outcome of the

trial or the verdict of the jury that it would have been different if a lawyer had

conducted themselves properly under the guidelines set out in Baxter v. Rose.

This Court’s of the opinion, after the hearing that I’ve heard, that Ms. Thackery

conducted herself in a proper fashion; that she did give effective representation to

Mr. Brown; that she did prepare adequately for the trial; that she did conduct the

trial in a manner that was appropriate; that there were the issues – the appropriate

issues were attacked; the appropriate issues – the jury ruled in favor of the state’s

proof.

And there is no indication that I have that would indicate to me that Ms. Thackery

rendered ineffective assistance of counsel to Mr. Brown or that she did anything

that affected the outcome of this trial.

From this ruling, the defendant now appeals.

Analysis

The petitioner presents only one question for review: Did the trial court err in dismissing

his petition for post-conviction relief which alleged ineffective assistance of trial counsel? After

review, we affirm the trial court’s order dismissing the petition.

T h i s C o u r t r e v i e w s a c l a i m o f i n e f f e c t i v e a s s i s ta n c e o f c o u n s e l u n d e r t h e s t a n d a r d s o f B a x t e r

v . R o s e , 5 2 3 S . W .2 d 9 3 0 ( T e n n . 1 9 7 5 ) a n d S t r i c k la n d v . W a s h i n g to n ,1 0 4 S . C t . 2 0 5 2 , 8 0 L . E d .2 d

6 7 4 ( 1 9 8 4 ) . T h e p e t i t i o n e r h a s t h e b u rd e n to p r o v e th a t ( 1 ) t h e a t t o r n e y ’s p e rf o r m a n c e w a s

d e fic ie n t, a n d (2 ) th e d e fic ie n t p e rf o rm a n c e re s u lte d in p re ju d ic e to th e d e f e n d a n t s o a s to d e p riv e

h i m o f a fa ir tr ia l. S e e S t r i c k la n d v . W a s h i n g to n , 1 0 4 S . C t . a t 2 0 6 4 ; G o a d v . S t a t e , 9 3 8 S . W .2 d 3 6 3 ,

3 6 9 ( T e n n . 1 9 9 6 ); O v e rto n v . S ta te , 8 7 4 S .W .2 d 6 , 1 1 (T e n n . 1 9 9 4 ); a n d B u tle r v . S ta te , 7 8 9 S .W .2 d

8 9 8 , 8 9 9 ( T e n n . 1 9 9 0 ) . T o d e m o n s tr a te p re ju d ic e a d e f e n d a n t o r p e t i t i o n e r m u s t s h o w t h a t t h e r e i s a

r e a s o n a b l e p r o b a b i l i t y t h a t b u t f o r c o u n s e l’ s e rr o r th e re s u l t o f th e p ro c e e d in g w o u ld h a v e b e e n

d if fe re n t.

T h e te s t in T e n n e s se e in d e te rm in in g w h e th e r c o u n s e l p r o v id e d e ffe c tiv e a s s is ta n c e is

w h e th e r h is p e rfo rm a n c e w a s w ith in th e ra n g e o f c o m p e te n c e d e m a n d e d o f a tt o r n e y s in c rim in a l

ca ses. S ee B a x te r, 5 2 3 S .W .2 d a t 9 3 6 . T h e p e t i t i o n e r m u s t o v e rc o m e th e p re su m p tio n th a t

c o u n s e l’ s c o n d u c t fa lls w ith in th e w id e r a n g e o f a c c e p t a b l e p r o f e s s io n a l a s s is ta n c e . S e e S tric k la n d ,

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1 0 4 S .C t. a t 2 0 6 5 ; A lle y v . S ta te , 9 5 8 S .W .2 d 1 3 8 , 1 4 9 (T e n n . C r im . A p p . 1 9 9 7 ); a n d H ic k s v . S ta te ,

9 8 3 S .W .2 d 2 4 0 , 2 4 6 ( T e n n . C r im . A p p . 1 9 9 8 ) . T h e re fo r e , in o r d e r t o p r o v e a d e f ic ie n c y , a

p e titio n e r m u s t s h o w th a t c o u n s e l ’s a c t s o r o m is s io n s w e r e s o s e rio u s a s to fa ll b e lo w a n o b je c tiv e

s ta n d a r d o f r e a s o n a b le n e s s u n d e r p r e v a i l i n g p r o f e s s i o n a l n o r m s . S e e S t r i c k l a n d ,1 0 4 S . C t . a t 2 0 6 5 ;

H e n le y v . S ta te , 9 6 0 S .W .2 d 5 7 2 , 5 7 9 (T e n n . 1 9 9 7 ); a n d G o a d , 9 3 8 S .W .2 d a t 3 6 9 .

In re v ie w in g c o u n s e l’s c o n d u c t, a “ fa ir a s se s sm e n t . . . re q u ire s th a t e v e ry e ff o rt b e m a d e to

e lim in a te t h e d i s t o r t in g e f f e c t s o f h i n d s i g h t , t o r e c o n s t r u c t th e c i r c u m s t a n c e s o f c o u n s e l’ s

c h a l le n g e d c o n d u c t, a n d to e v a lu a t e th e c o n d u c t fr o m c o u n s e l’ s p e r s p e c tiv e a t th e t im e .” S e e

S tric k la n d , 1 0 4 S .C t. a t 2 0 6 5 . T h e f a c t th a t a p a r t ic u l a r s t r a t e g y o r t a c t ic f a i le d o r h u r t th e d e f e n s e ,

d o e s n o t , s t a n d in g a lo n e , e s t a b li s h u n r e a s o n a b le r e p r e s e n t a t i o n . H o w e v e r , d e f e r e n c e t o m a t te r s o f

s t r a t e g y a n d t a c t i c a l c h o i c e s a p p li e s o n l y i f t h e c h o i c e s a re in f o r m e d o n e s b a s e d u p o n a d e q u a t e

p re p a ra tio n . S e e G o a d , 9 3 8 S .W .2 d a t 3 6 9 ; H e lla rd v . S ta te , 6 2 9 S .W .2 d 4 , 9 (T e n n . 1 9 8 2 ); A lle y ,

9 5 8 S . W .2 d a t 1 4 9 ; a n d C o o p e r v . S t a te , 8 4 7 S . W .2 d 5 2 1 , 5 2 8 ( T e n n . C r im . A p p . 1 9 9 2 ) .

Further, the petitioner’s burden of proof in all post-conviction cases filed after May 12,

1995, is one of clear and convincing evidence, see Tenn. Code Ann. § 40-30-210(f), and

reviewing courts must indulge a strong presumption that counsel’s conduct falls within the range

of reasonableness. Finally, the trial judge’s findings of fact on post-conviction hearings are

conclusive on appeal unless the evidence preponderates otherwise. See Butler, 789 S.W.2d at

899; Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s findings

of fact are afforded the weight of a jury verdict, and this Court is bound by the findings unless

the evidence in the record preponderates against them. See Henley, 960 S.W.2d at 578. That

burden lies with the petitioner. See id. at 579.

H e re , th e tria l c o u rt m a d e c le a r a n d c o g e n t fin d in g o f fa c ts a n d th e re c o rd s u p p o rts th o s e

f i n d in g s . W h e n a c l a i m o f in e f f e c t i v e n e s s d e p e n d s u p o n w h a t w i t n e s s X o r Y w o u ld h a v e t e s t i f i e d

t o , t h e n it i s i n c u m b e n t u p o n th e p e t i t i o n e r t o h a v e t h o s e w i t n e s s e s t e s t i f y a t t h e p o s t - c o n v ic t i o n

h e a r in g w h e n p o s s ib le . S e e B la c k v . S ta te , 7 9 4 S . W .2 d 7 5 2 , 7 5 7 ( T e n n . C r im . A p p . 1 9 9 0 ) .

O th e rw is e , t h e t r ia l c o u r t s a r e l e f t w i th o n l y t h e b a r e a l le g a t io n s o f t h e p e t it io n e r o r a s e c o n d - h a n d

a c c o u n t o r b e s t g u e s s a s to w h a t t h e w i t n e s s e s w o u l d o r w o u l d n o t h a v e s a id . S u c h is i n s u f f i c i e n t

p ro o f to c a rry th e p e titio n e r’s b u rd e n o f s h o w in g in e ffe c tiv e n e s s o f c o u n s e l. T h e r e fo r e , th e

p e titi o n e r h a s fa ile d to d e m o n s tr a te th a t th e tr ia l c o u rt e rr e d in its fi n d in g s o f f a c t.

W e h a v e f u r th e r re v i e w e d t h e c l a im s o f th e p e tit i o n e r a s re la te s to h is a s s e rtio n s th a t tr ia l

c o u n s e l fa ile d to in f o r m h i m o f t h e r a n g e o f p u n i s h m e n t p r i o r t o h i s o p t in g f o r t r ia l , t h e f a i lu r e o f

c o u n se l to e x p lo it a lle g a tio n s th a t th e ra p e v ic tim h a d tw o y e a rs p re v io u s ly m a d e a s im ila r c la im o f

r a p e , a n d c o u n s e l’ s fa ilu r e to t a k e s te p s t o s t o p t h e p r o s e c u t i o n f r o m l e a d i n g s t a t e w i t n e s s e s . F i r s t ,

i n h i s p o s t - c o n v ic ti o n h e a r i n g , t h e u n c o r r o b o r a te d te s t i m o n y o f a p e t i t i o n e r i s n o t s u f f i c i e n t to c a r r y

t h e b u rd e n o f p r o o f w h e re th e ju d g m e n t i s r e g u la r u p o n i ts f a c e a n d e n t i t l e d to t h e p re s u m p t i o n o f

v a lid ity . S e e S ta te v . K e r e ly , 8 2 0 S .W .2 d 7 5 3 , 7 5 7 (T e n n . C r im . A p p . 1 9 9 1 ). S e c o n d , in th e in s ta n t

c a s e tria l c o u n s e l o ff e re d te s tim o n y w h ic h , i n f a c t , c o n t r a d i c t e d t h e a s s e r t io n s o f t h e p e t it io n e r .

Q u e s t i o n s c o n c e r n i n g t h e c r e d ib i l i t y o f w i t n e s s e s a n d th e w e ig h t a n d v a l u e to b e g iv e n to t h e ir

te s tim o n y w a s re s o lv e d b y th e tria l c o u rt, n o t th is C o u rt . S e e H e n le y v . S ta te , 9 6 0 S .W .2 d a t 5 7 9 ;

B l a c k v . S t a t e , 7 9 4 S . W .2 d a t 7 5 5 . T h e b u rd e n o f e s t a b li s h i n g th a t th e e v i d e n c e p re p o n d e r a te s

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o t h e r w i s e o n th e p e titi o n e r. S e e H e n l e y , 9 6 0 S . W .2 d a t 5 7 9 ; B la c k , 7 9 4 S . W .2 d a t 7 5 5 . H e re to , t h e

p e titio n e r h a s fa ile d to d e m o n s tr a te th a t th e tr ia l c o u rt e rr e d . F o r th e s e r e a s o n s , w e a f f ir m th e o r d e r

d is m is s in g th e p e titi o n fo r p o s t- c o n v ic tio n re lie f.

Conclusion

Accordingly, the order dismissing the petition is affirmed.

___________________________________

JOHN EVERETT WILLIAMS, JUDGE

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