Martha Ann Freeman v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 17, 2012 Session

MARTHA ANN FREEMAN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-C-2044 J. Randall Wyatt, Jr., Judge

No. M2011-01617-CCA-R3-PC - Filed March 31, 2014

The Petitioner, Martha Ann Freeman, appeals from the Davidson County Criminal Court’s

denial of her petition for post-conviction relief from her conviction for first degree murder,

for which she is serving a life sentence. She contends that trial counsel provided the

ineffective assistance of counsel in the plea bargaining process. We affirm the judgment of

the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which N ORMA M CG EE O GLE

and D. K ELLY T HOMAS, J R., JJ., joined.

Jodie Ann Bell, Nashville, Tennessee, for the Petitioner, Martha Ann Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Katrin Novak Miller,

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

OPINION

The Petitioner and Rafael Dejesus Rocha-Perez were convicted of the first degree

murder of her husband, Jeffrey Freeman. This court summarized the facts of the case in the

appeal of the Petitioner’s conviction:

[T]he Defendants began a relationship in 2004. This relationship continued

throughout the fall and winter of 2004 after Freeman moved out of the marital

home and into an extended stay hotel in Brentwood, where she stayed with

Rocha-Perez. On December 29, 2004, the victim spoke with a divorce

attorney about his legal rights, but it is unclear if Freeman ever knew about

this. Sometime in December 2004, Freeman’s friend, Tony Cantrell, moved

Rocha-Perez out of the extended stay hotel and into an apartment in

Murfreesboro. Cantrell concluded that the relationship between the two had

ended. Sometime thereafter, Freeman returned to the marital home. Rocha-

Perez and Freeman restarted the relationship, and Rocha-Perez moved into the

Freeman house without the victim’s knowledge. Rocha-Perez had the “run of

the house” while the victim worked long hours at the Freemans’ business.

Tony Cantrell began work outside the Freemans’ home on the

Thursday, April 7. He did not finish because of rain, and he advised the

Freemans that he planned to return Monday, April 11, after work, to finish.

On Sunday, April 10, at 10:00 p.m., Freeman picked up a prescription for

hydrocodone, a pain killer with a side effect of drowsiness. One hour later, at

11:00 p.m., Freeman called the victim’s mother to explain to her that the

victim would not be calling that night because he was “ill.” At 7:45 a.m. on

April 11, a neighbor saw Freeman standing on her front porch with a cigarette

in hand. Freeman appeared “very still” and “rather unusual.” A short time

later, at 8:00 or 8:30 a.m., Freeman called Resi-fax to report that the victim

would not be at work that day.

At 3:45 p.m., Rocha-Perez was seen running through the neighborhood

and into a house under construction. At 4:00 p.m. on April 11, Freeman went

to her neighbor’s house, and the neighbor called 911. Immediately after she

pounded on Beverly’s door, Freeman appeared to be “in shock,” “panicky,”

and “anxious.” A short time later, however, Freeman was much calmer, and

Beverly recalled that she never cried. The first emergency responders arrived

at the scene and described Freeman as “excited,” “agitated,” “crying,” “flailing

about with her hands and that sort of thing,” and “hysterical.” When

questioned, Freeman indicated that the incident only occurred twenty to thirty

minutes before the emergency responders arrived.

The police, firefighters, and medical personnel discovered the victim’s

body in the master bathroom. The victim was wet, inside of a sleeping bag,

and on his stomach. Medical testimony explained that certain marks on the

victim’s body indicated that he had been there for some time, at least over

eight hours. There were additional marks on the victim’s wrists that would

have been made while he was still alive and able to struggle against the

restraints. There was evidence of four to seven blows to the victim’s head.

The victim was ultimately killed by strangulation, which would have required

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“several minutes” of pressure. Virtually no blood was found at the scene

except for that under the bag around the victim’s head.

The police found evidence of a clean-up also in the house. A number

of trash bags were discovered containing a wet pillow case, a wet bath mat,

latex gloves, and a phone cord. Additionally, a beach towel was discovered

spread out in the living room floor, which contained Rocha-Perez’s sperm and

Freeman’s DNA. There was no evidence of a forced entry to the home.

At 6:30 p.m. on April 11, the police discovered, upon information from

witnesses, Rocha-Perez in the attic of a house under construction two streets

from the Freemans’ home. The officers arrested Rocha-Perez and took him to

the police station where they questioned him. Later, in two separate business

documents, Freeman signed that the victim died on April 10, 2005.

State v. Martha Ann Freeman and Rafael Dejesus Rocha-Perez, No. M2006-02751-CCA-

R3-CD (Tenn. Crim. App. Mar. 28, 2008), perm. app. denied (Tenn. Oct. 27, 2008).

The Petitioner filed her post-conviction petition alleging the ineffective assistance of

counsel relative to the plea bargaining process. The petition also alleged the ineffective

assistance of counsel in failing to conduct a mental health and addiction investigation and

in failing to consult with appropriate experts regarding evidence that might have been

presented to explain the Petitioner’s actions relative to the crime, but she has not pursued this

issue on appeal.

At the post-conviction hearing, trial counsel testified that he was aware during his

representation of the Petitioner that she had a history of mental health issues and narcotics

use. He said she was “an up and down type of emotional person.” He said that the Petitioner

had emotional problems after she was indicted and that she collapsed in the courtroom

hallway after a hearing and had to be removed on a gurney. He said the hearing had been

emotional and included playing the 9-1-1 recording. He said that on another occasion, the

Petitioner went to Vanderbilt Hospital for physical and mental issues. He said that the

Petitioner was depressed and overwhelmed and that she did not have a support group locally.

He said she did not have family members present for the hearings and did not think she had

any family members at the trial. He said she sometimes called him in the middle of the night.

Trial counsel testified that he asked co-counsel to assist him and that the Petitioner

agreed to co-counsel’s involvement. He said he thought the Petitioner’s case should be

settled through a plea agreement and tried to obtain an agreement. He thought a jury would

be angry with the Petitioner due to her lifestyle choices, which might affect the verdict. He

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said that he told the prosecutor on several occasions that the Petitioner would plead guilty

and testify for the State but that no plea offer was made before the trial.

Trial counsel testified that after the State rested its case-in-chief during the trial, the

prosecutor made an offer for the Petitioner to plead guilty to facilitation of first degree

murder with a sentence of twenty years at thirty percent release eligibility, provided she

testified for the State. He said that he was pleased at the prospect of settling the case and that

the Petitioner agreed to accept the offer. He said he and the prosecutor met with the trial

court to ensure that the plea was acceptable to the court and that the court would allow the

Petitioner thirty days before reporting to serve her sentence. He did not recall if the delayed

reporting date issue was addressed in a second conversation with the court. He said that to

the best of his recollection, the plea agreement was reached when co-counsel was not present,

that the assistant district attorneys general talked to the Petitioner about her testimony, that

co-counsel returned, and that co-counsel told the Petitioner he would not allow his daughter

to plead guilty in the Petitioner’s case. He said co-counsel also stated that Davidson County

juries did not convict or rarely convicted women of first degree murder. He said co-counsel

was firm and somewhat animated. He said that the Petitioner asked him what she should do

but that he thought it was unethical for him to tell her to accept the plea offer and that he told

her he could not tell her what she should do. He said that the Petitioner asked to smoke a

cigarette and that when she returned, she said she was not going to accept the offer. He said

a third attorney involved in the case went with the Petitioner to smoke. He said they had

been trying to obtain the offer for a year. He said that all this occurred during a lunch break,

that no more than forty-five minutes elapsed, and that the Petitioner rejected the offer no

more than fifteen minutes after co-counsel’s statements. He thought that at the time

co-counsel made the comments, he made some comments about the proof. He was unsure

whether lesser included offenses were discussed at this point. He thought the Petitioner was

reminded that she might receive a life sentence if she continued with the trial. He said the

Petitioner was taking medication and receiving counseling at the time of the trial. He said

that in retrospect, he wished he had asked the court for more time after the Petitioner rejected

the plea offer.

On cross-examination, trial counsel testified that he met with the Petitioner’s

psychiatrist but did not have the Petitioner evaluated for competency to stand trial. He

denied ever feeling that she could not understand the process or that she could not assist in

her defense. He never noticed the Petitioner abusing alcohol or marijuana. He agreed that

the Petitioner was in a stressful situation when the plea offer was made. He said she was

released on bond before the trial.

An attorney who practiced with trial counsel testified that he was not yet licensed

when trial counsel began representing the Petitioner. He said his duties at the time included

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being a runner, drafting legal memoranda, reviewing and organizing files, and acting as a

sounding board for counsel. He said co-counsel was associated to work on the Petitioner’s

case because a lawyer should not work alone on a first degree murder case. He said counsel

and co-counsel were the two best criminal defense lawyers in Nashville.

The attorney who practiced with trial counsel testified that the attorneys knew about

the Petitioner’s mental health issues and that they spoke with one of her doctors. He said that

the Petitioner repeatedly expressed her desire for a plea offer and that he thought a good offer

would have been twenty years for second degree murder.

Regarding the plea offer, the attorney testified that he returned from lunch on the last

day of the trial and learned that a plea agreement had been reached for twenty years at thirty

percent for facilitation of first degree murder. He said that pursuant to the agreement, the

Petitioner was to testify for the State. He said trial counsel wanted to complete the guilty

plea before the Petitioner’s testimony in order to prevent the State from changing its mind.

It was his impression the Petitioner was going to accept the deal and recalled her questioning

him about parole eligibility. He said that his recollection was that the conversation with

co-counsel did not take place until after the cigarette break. He did not recall if, as they

returned from the cigarette break, the Petitioner entered the room before him. He said

co-counsel may have said something to the Petitioner before he entered the room.

He said that when he entered the room, he noticed a change of mood and heard

co-counsel tell the Petitioner that co-counsel would not accept the offer. He recalled

co-counsel stating that Davidson County juries did not like to convict women of first degree

murder. He also recalled that when parole eligibility was discussed, co-counsel made a

statement that the Petitioner would have other concerns such as being forced to give other

inmates her commissary funds. He was unsure whether he was present for co-counsel’s

comment that he would not allow his daughter to accept the offer. He said co-counsel was

adamant that the Petitioner should not accept the offer. He said they were pressed for time.

He recalled a court officer knocking on the door and telling them it was time to return to

court. He did not remember anyone telling the Petitioner after the cigarette break how much

prison time she would serve if she were convicted of first degree murder. He said that the

Petitioner did not have any family members to support her during the proceedings and that

many of her belongings were still in the law firm’s basement.

Co-counsel testified that trial counsel asked him to work with him on the Petitioner’s

case. He said he observed a hearing and participated in a couple of meetings but did not

“sign on” as co-counsel until a week before the trial. Regarding the hearing he observed, he

said the victim had a seizure afterward in the hallway and was taken away by paramedics.

He agreed the victim suffered from anxiety and other mental health issues during the time

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trial counsel and he represented her. He was aware she abused prescription drugs and was

concerned before the trial that she might hurt herself.

Co-counsel testified that his role was to formulate a theory that would not cause the

jury to find her culpable despite her actions. He was concerned about the facts of the case.

He was not involved in plea negotiations but was aware that trial counsel hoped to receive

a plea offer. He recalled that after the State rested its case-in-chief and court recessed for

lunch, trial counsel advised the Petitioner within a minute that there was an offer for twenty

years for facilitation of first degree murder if the Petitioner testified for the State. He said

that the Petitioner immediately asked trial counsel what she should do and that trial counsel

threw his hands in the air as if to signify, “it is your call, not mine.” He said that the

Petitioner asked a second time and that although he did not recall exactly what trial counsel

said, it was not a clear recommendation either way.

Co-counsel testified that the Petitioner turned to him and asked his opinion. He said

that he did not specifically recall saying he would not let his daughter accept the plea offer

but that the statement was consistent with what he sometimes said to clients. He said he told

the Petitioner she should not accept the offer. He thought they had a brief conversation about

the evidence being entirely circumstantial and the standard of proof for circumstantial

evidence. He did not think they discussed the lesser included offenses and penalties but said

they had been discussed previously. He did not recall telling the Petitioner during the lunch

break that she would serve a life sentence if convicted of first degree murder, nor did he

recall anyone telling the Petitioner that there was no way to read the jurors’ minds regarding

whether they would convict her. He was confident he told the Petitioner that the doctor

testified that the homicide could have been committed by one or two people and that the

proof showed the Petitioner was at a pharmacy. Regarding the statement that juries did not

like to convict women of first degree murder, he did not think he mentioned gender but was

confident he said first degree murder was the most difficult conviction for the State to obtain.

He said that he did not think the State had proven its case and that his opinions were strong.

Co-counsel testified that shortly after trial counsel advised the Petitioner of the offer,

trial counsel had one of the prosecutors come into the room and communicate the offer to the

Petitioner. He thought this was before the Petitioner asked his opinion of the offer. He said

that after he expressed his opinion, he thought it was best to leave the discussion to trial

counsel and the Petitioner. He said that trial counsel did not pressure the Petitioner to accept

the offer. He said he still felt strongly that the Petitioner should not have been convicted of

first degree murder based upon the proof.

Co-counsel testified that he did not learn until months after the trial that trial counsel

and the prosecutors talked to the trial judge in chambers and that the Petitioner agreed to the

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plea offer at one point. He said he was a secondary lawyer on the case, thought it would be

best for him to leave, and left to attend to a jail docket. He thought the Petitioner first

learned of the offer when trial counsel came into the room and communicated it and said he

left afterward to attend the jail docket. He said he returned just as everyone took their seats

in the courtroom. He said he first learned that the Petitioner rejected the offer when trial

counsel told him they were going to closing arguments. He said that in hindsight, what he

said may have been too strong but that part of his duty was to advise clients about their best

alternative.

On cross-examination, co-counsel testified that he was positive about his recollection

of the events as regarding the chronology, where he was, what happened, when he gave the

advice, when he left, the status when he returned, and whether the Petitioner agreed to accept

the plea offer before his comments. He said that if the Petitioner had already accepted the

offer and talked to the prosecutor, he would not have advised her in the strong terms he used.

Co-counsel testified that he was agitated that trial counsel brought a prosecutor into

the room to talk to the Petitioner before she was prepared to speak. He said the Petitioner

asked the prosecutor if she could receive a fifteen-year sentence, rather than twenty years.

He said it did not help negotiations for the Petitioner to have indicated her willingness to

accept a plea offer for a Class A felony and receive a fifteen-year sentence. He said the

prosecutor left the room, and he left shortly thereafter without knowing whether the

Petitioner would accept the offer. He said that the judge was entering when he returned to

the courtroom after attending the jail docket and that the jury was being brought into the

courtroom.

Co-counsel testified that months afterward, he and trial counsel discussed the case and

were chagrined and disappointed. He said they thought the jurors were so outraged by the

facts that they never considered their defense. He said he was not upset with trial counsel,

nor did he think trial counsel was upset with him.

Co-counsel testified that the Petitioner appeared to understand the legal process and

was able to aid in the defense and consult with the attorneys. He denied making

inflammatory comments about the Petitioner’s having to worry about being in danger of other

prisoners taking her commissary money.

Co-counsel testified that he advised clients of his opinion about plea offers if he felt

strongly one way or another but that he sometimes said he could not render an opinion

because he did not have a strong feeling. He thought this was part of his job as a criminal

defense attorney.

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On redirect examination, co-counsel testified regarding the Petitioner’s mental health

that she had three ways to respond to the homicide: (1) turning in Mr. Rocha-Perez, (2) not

turning him in and assisting him in escaping, and (3) deferring a decision about her course

of action. He said they advanced the theory that she deferred making a decision until Mr.

Rocha-Perez was ready to drive away with the victim’s body, at which point she decided to

alert the authorities.

Co-counsel testified that in his opinion, trial counsel should have told the Petitioner

there was no question whether she should accept the plea offer because it was what she had

wanted trial counsel to obtain for the last year. He said that after he gave his opinion, he left

because he knew the Petitioner relied on trial counsel and thought they should make the

decision together.

The forty-six-year-old Petitioner testified that she was serving a life sentence for the

murder of her husband and that her parole eligibility date was in 2064. She said that trial

counsel and co-counsel represented her before she was indicted in August 2005. She said

that as a result of the stress of being indicted, she took an overdose of Xanax and was

hospitalized at the Vanderbilt Psychiatric Unit. She said she had a mental health history of

which her attorneys were aware. She said trial counsel visited her during her hospitalization.

She said that between the return of the indictment and the trial, her mental health became

“extremely pronounced.” She said she took large quantities and double doses of depression

and pain medications. She said she saw a couple of doctors and ordered medications online.

She said that she spent a large amount of money, that her business failed, and that her house

went into foreclosure. She said that she had difficulty dealing with the loss of her husband

and that he had always handled their finances. She said that she did not have any family

members in the area, that her lawyers were her support system, and that she became close to

trial counsel and relied on him for things other than her criminal case. She said that when

she was in a manic state, she called trial counsel on his cell phone at hours that were probably

inappropriate.

The Petitioner testified about a second hospitalization after she had a seizure

following a court hearing. She said her lawyers were present when the incident occurred.

She said that during this time period, she met with trial counsel and discussed the discovery

materials. She said that in light of the discovery and trial counsel’s interpretation of it, she

wanted a plea offer and did not want to go to trial. She described herself as an emotional

wreck.

The Petitioner testified that co-counsel was presented as a well-known and well-

respected former prosecutor who could provide needed assistance to the defense. She said

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she was hesitant at first but warmed to the idea of involving co-counsel based upon trial

counsel’s statements.

The Petitioner testified that she was terrified going into the trial. There was a lot of

media attention, and she did not want her personal affairs to be aired in court and wanted to

settle the case. She said she suffered from insomnia as the trial date neared and had to take

double and triple the prescribed doses of Ambien and Xanax in order to sleep.

Regarding the plea offer, the Petitioner testified that during a break toward the end of

the trial, trial counsel came into a conference room and told her he was obligated as her

attorney to advise her of an offer that had been made for twenty years at thirty percent for

facilitation of first degree murder. She did not recall co-counsel being present but said the

attorney who worked with trial counsel was present. She said that she was relieved and that

she immediately wanted to accept the offer because it was what she wanted. She said trial

counsel did not discourage her from taking the offer. She said trial counsel told her that he

could not tell her what to do and indicated the trial could go either way. She said she was

concerned because she had a home, pets, and things that needed to be completed before she

reported to serve her sentence. She expressed her concerns to trial counsel, who

communicated with one of the prosecutors. She said it was her understanding that she would

have thirty days before she had to report to the Department of Correction.

The Petitioner testified that after the details were worked out, she went outside to

smoke with the attorney from trial counsel’s office. She said that when she returned, one or

both of the prosecutors were in the conference room. She said she asked them questions

because she did not understand exactly what the plea agreement entailed. She said co-

counsel entered the room and was angry she was talking to them. She said that co-counsel

admonished her, “You don’t negotiate with them.” She said he also stated that the State must

have a weak case if they were coming to the Petitioner this late. She said co-counsel stated,

“If you were my daughter I would tell you not to take this deal.” She said he also told her

that juries were reluctant to convict women of first degree murder. She stated that he made

a statement about someone stealing her commissary but that she did not know what he meant.

She said that the message she took from co-counsel’s statements was that she would not be

convicted and that his statements changed her mind about accepting the plea offer. She said

that neither trial counsel nor co-counsel talked to her about the risk of allowing the case to

go to a verdict or the proof presented and its impact on the case. She said she thought that

she would either be found not guilty or if found guilty, that she would go home that evening

and be sentenced at a later date. She said that she “[a]bsolutely” was going to accept the plea

offer and go to prison and that she “[a]bsolutely” rejected it based upon co-counsel’s actions.

She thought that he was mad at her and that she had done something wrong. She said she

had developed a relationship with trial counsel and co-counsel and relied on them for things

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in addition to her criminal case. She thought co-counsel’s experience as a former prosecutor

gave him insight that trial counsel and she lacked. She said that she had ten to fifteen

minutes until court resumed after co-counsel’s statements and that had she had about an hour

more to talk to her attorneys about the offer, she had no doubt she would have accepted it.

On cross-examination, the Petitioner testified that it was possible co-counsel’s and her

testimony were not consistent. She said two assistant district attorneys general were in the

room when co-counsel entered the conference room. She said that her recollection was that

when co-counsel learned she was talking to the prosecutors, the prosecutors left the room.

She said trial counsel was present. She said that she took Xanax and Ultram that day but that

they did not impair her ability to recall the events. She said she presently took Celexa, which

was an antidepressant, Tegretol, which was a mood stabilizer, and Vesteril, which was for

insomnia. She also took medications to lower her blood pressure and cholesterol. She

denied telling a doctor who talked to her a couple of years ago at the prison that she was

abusing alcohol and marijuana when the crime occurred.

The Petitioner testified that she thought the plea offer included an appropriate

sentence but denied she had come to this conclusion based on numbers trial counsel provided

in their previous discussions. She said that she had not speculated about the terms of an offer

but that she wanted one in order to avoid a trial and a “media circus.” She said trial counsel

never told her that a life sentence involved serving fifty-one years and did not recall his

reviewing lesser included offenses with her. She said that if she had any conversation with

the attorney who worked with trial counsel when they went outside to smoke, she did not

recall it. She said she remembered the conversation with co-counsel clearly because his

anger caught her attention. She said co-counsel was the only attorney with a strong opinion.

She said that she did not accept the offer because she did not want to disappoint her attorneys

and that she wanted their opinions.

On redirect examination, the Petitioner testified that she wanted her conviction to be

set aside and understood that she had no right to have the plea offer reinstated. She said that

when co-counsel was upset, she thought she had done something wrong.

Dr. David Street testified as an expert in forensic psychiatry. He said he had reviewed

the Petitioner’s records, interviewed her for three hours, and listened to the post-conviction

testimony. He said the Petitioner had been diagnosed with alcohol dependence, which he

said did not mean she was actively using alcohol. He said the Petitioner reported she had

abused alcohol in the 1980s. He said the Petitioner had a history of bipolar disorder with

many more periods of depression than mania. He said the bipolar disorder diagnosis applied

to the time of the offense through the trial. He said she met the criteria for marijuana abuse

and possible dependence. He said that the Petitioner may have used marijuana occasionally

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but that her abuse of it was well before the crime and the trial. She had a history of

benzodiazepine abuse that preceded the crime and may have continued through the time of

the trial. She also had a history of opiate abuse or dependence during the same time period.

He thought that the Petitioner had a diagnosis of anxiety disorder but that the diagnosis was

difficult to make due to the substance abuse. He said the Petitioner reported isolated

incidents of using cocaine, Ecstasy, and a couple of other drugs.

Regarding the Petitioner’s mood swings, Dr. Street noted her history of substance

abuse issues as evidenced by her running out of medication early and obtaining prescriptions

from multiple sources. He also cited her history of depression. He said that during her

hospitalization for a suicide attempt, she would have been observed by several people and

that her symptoms were consistent with depression and mental illness.

Dr. Street testified that a person with mental illness is more affected by stress than

someone who does not have mental illness. He said the stress would be more likely to

precipitate a manic or depressed episode and would be exacerbated by substance abuse. He

said the Petitioner gave him a history consistent with depression leading up to the trial. He

said she was isolated, not motivated, and had difficulty sleeping. He said that some of the

symptoms could be from substance abuse and that it was difficult to determine how much

was from substance abuse and how much was from mental illness. He said that based upon

the testimony he heard at the post-conviction hearing, he thought the Petitioner was

depressed at the time of the plea offer and that her judgment would not have been as good

as it would have been otherwise. He said someone in a position like the Petitioner’s would

be subject to suggestibility and compromised judgment. He said that co-counsel’s statements

and emotional state would be more likely to impact the Petitioner given her mental health

issues at the time. He said, though, that trial counsel’s expression of no opinion would not

have had an impact on the Petitioner. He said that ideally, someone should have ensured

that the Petitioner understood the risks, benefits, and alternatives.

On cross-examination, Dr. Street testified that a person charged with first degree

murder of his or her spouse would be stressed despite not having mental illness. He said that

about two percent of the population had bipolar disorder. Regarding the Petitioner’s incident

after a hearing, he said the diagnosis was ataxia, or stumbling, caused by taking too much

medication. He said the Petitioner reported at the time that she was having difficulty

“dealing with what was going on.” He acknowledged that the Petitioner was not his patient

during the time leading up to the trial and that he interviewed her afterward. On redirect

examination, Dr. Street testified that a person could be competent despite having mental

illness.

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Deputy District Attorney General Tom Thurman testified that he was present for the

Petitioner’s trial. He said that after the State closed its case-in-chief, a plea offer was

extended as a lunch break began. He said that the State was concerned there was not enough

proof to convict Mr. Rocha-Perez and that the State made the offer to the Petitioner to obtain

her testimony against Mr. Rocha-Perez. He said that trial counsel asked him to step into the

conference room and tell the Petitioner about the offer and answer any questions she had.

He thought co-counsel was in the room when he entered. He said co-counsel was “agitated”

that he was in the room. He recalled that the Petitioner looked at him and said, “Tom,

couldn’t you do 15,” which he said was memorable because she called him by his first name.

He said that he told her the offer was twenty years and that he left the room for the Petitioner

to discuss it with her attorneys. He was certain that co-counsel was in the room when the

Petitioner asked him about fifteen years and when he left the room. He said that if the

Petitioner accepted the agreement, the State would have reopened its proof.

Deputy District Attorney General Thurman testified that trial counsel called him

during the lunch break to tell him the Petitioner would accept the offer. He said he returned

to talk to the Petitioner about her testimony. He said she was clear and had a good memory

of the events. He said co-counsel was not present at this point. He said “they” talked to the

court in chambers to inform the court of the plea agreement. He thought there was a second

meeting with the court about the Petitioner’s receiving a thirty-day delay to report to serve

her sentence. He said that when he returned to the courtroom from the break, trial counsel

followed him, was obviously irritated, and said “let’s argue.” He said he was somewhat

surprised because everything seemed to be progressing when he talked to the Petitioner. He

said co-counsel was late in returning to court. He said he did not notice the Petitioner’s

having any signs of mental illness that day and thought she would have been a good witness.

On cross-examination, General Thurman testified that the events transpired in an

extended lunch break of one hour and fifteen minutes to one and one-half hours. He said it

was clear the Petitioner accepted the offer. He did not recall her having any reservations or

asking any questions. He said the only time he saw co-counsel was when he first met with

the Petitioner but agreed co-counsel might have returned and talked to the Petitioner after he

talked to her to prepare her to testify.

In rejecting the Petitioner’s post-conviction claim that trial counsel and co-counsel

were ineffective in the plea bargaining process, the trial court found that due to the passage

of time as affecting counsel’s memories, it could not determine the exact sequence of events

during the lunch recess in which the plea offer was made and considered. The court found,

though, that it was clear that trial counsel and co-counsel had different perspectives about the

advisability of accepting the offer. The court found that trial counsel presented an equivocal

stance and did not advocate a specific course of action, whereas co-counsel strongly

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suggested that the Petitioner not accept the offer. The court credited trial counsel’s testimony

that he discussed the proof with the Petitioner during the discussion of the plea offer. The

court credited co-counsel’s testimony that he advised the Petitioner that in his view, the

State’s case was weak and entirely circumstantial and that co-counsel’s view of the case was

the basis for his recommendation regarding the offer. The court found that although there

was no testimony regarding any statements of counsel relative to the elements of the offense,

it would have been necessary and logical for discussion of the implications of the proof in

terms of the elements of the offense to have taken place during the discussion of the State’s

proof. The court credited trial counsel’s testimony that he reminded the Petitioner during the

plea discussions that she might serve a life sentence if she rejected the plea offer. The court

discredited the Petitioner’s testimony that she did not know the maximum sentence she faced

and found that she was well aware of the risks of rejecting the offer.

Regarding the Petitioner’s claim that co-counsel’s statements regarding the plea offer

essentially guaranteed the Petitioner an acquittal at the trial, the trial court found that

although co-counsel’s statement to the Petitioner that Davidson County juries did not like to

convict women of first degree murder conveyed a strong sentiment, the statement did not

guarantee an acquittal. The court found that although co-counsel’s advice proved incorrect,

it was based upon twenty-two years of experience as a skilled criminal defense attorney and

three years as an assistant district attorney. The court found co-counsel was not ineffective

in this regard.

Regarding the Petitioner’s claim that her attorneys failed to take her mental health

issues into consideration when discussing the plea offer with her, the trial court noted the

proof that the attorneys were aware of the Petitioner’s mental health issues and that the

attorneys used the Petitioner’s mental health issues as part of the defense. The court found

that although the Petitioner had been diagnosed as bipolar, had approximately one hour to

decide whether to accept the offer, and was in a stressful situation that may have been

compounded by her mental health issues, no credible evidence existed showed that the

Petitioner was incompetent or that she did not understand the trial process or the risks and

benefits of proceeding with a trial. The court found that trial counsel did not fail to consider

the Petitioner’s mental health issues when he discussed the plea offer with her. The court

found that although co-counsel made strong statements to the Petitioner regarding the offer,

these statements did not overcome the Petitioner’s will and divorce her of the rational

thought process she needed to understand the risks of rejecting the offer. The trial court

denied relief.

On appeal, the Petitioner contends that trial counsel and co-counsel were ineffective

in their actions and inactions relative to the plea offer. The State counters that the trial court

properly found that the Petitioner failed to prove her claims by clear and convincing evidence

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and that the trial court properly denied relief. We conclude that the trial court did not err in

denying relief.

The burden in the post-conviction proceeding was on the Petitioner to prove her

grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On

appeal, we are bound by the trial court’s findings of fact unless we conclude that the

evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450,

456-57 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review the

trial court’s conclusions as to whether counsel’s performance was deficient and whether that

deficiency was prejudicial under a de novo standard with no presumption of correctness. Id.

at 457. Post-conviction relief may only be given if a conviction or sentence is void or

voidable because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, “the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland

standard has been applied to the right to counsel under article I, section 9 of the Tennessee

Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

A defendant’s Sixth Amendment right to the effective assistance of counsel includes

effective assistance in the plea bargaining process. See, e.g., Lafler v. Cooper, — U.S. —,

132 S. Ct. 1376, 1383 (2012); Padilla v. Kentucky, 599 U.S.356, 373 (2010). In order for

a defendant to make a voluntary and intelligent decision regarding whether to accept a plea

offer, counsel must advise the defendant “of the choices that are available . . . as well as the

probable outcome of these choices.” Parham v. State, 885 S.W.2d 375, 384 (Tenn. Crim.

App. 1994); see People v. Michigan, 817 N.W.2d 640, 651 (Mich. App. 2012) (stating

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“[c]ounsel’s assistance during the plea-bargaining process must be sufficient to enable the

defendant to make an informed and voluntary choice between trial and a guilty plea”). “If

counsel is convinced that the accused should accept a plea bargain agreement and plead

guilty, counsel should recommend that the accused opt for this choice.” Parham, 885

S.W.2d at 384. This court has stated that it is “counsel’s duty to recommend the plea bargain

agreement if counsel [thinks] it [is] to the defendant’s best interest.” State v. McLennon, 669

S.W.2d 705, 707 (Tenn. Crim. App. 1984). Counsel is permitted to use “reasonable

persuasion when making the recommendation.” Parham, 885 S.W.2d at 384.

When a petitioner alleges that a plea offer was rejected due to the ineffective

assistance of counsel,

a defendant must show that but for the ineffective advice of counsel there is

a reasonable probability that the plea offer would have been presented to the

court (i.e., that the defendant would have accepted the plea and the prosecution

would not have withdrawn it in light of intervening circumstances), that the

court would have accepted its terms, and that the conviction or sentence, or

both, under the offer’s terms would have been less severe than under the

judgment and sentence that in fact were imposed.

Lafler, 132 S. Ct. at 1385; see also Missouri v. Frye, 132 S. Ct. 1399 (2012).

The Tennessee Supreme Court Rules provide, “In representing a client, a lawyer shall

exercise independent professional judgment and render candid advice.” Tenn. R. Sup. Ct.

8, Rule 2.1. The American Bar Association Criminal Justice Standards provide:

(a) Defense counsel should keep the accused advised of developments arising

out of plea discussions conducted with the prosecutor.

(b) Defense counsel should promptly communicate and explain to the accused

all significant plea proposals made by the prosecutor.

Standards for Criminal Justice: Prosecution Function and Defense Function, std. 4-6.2(a), (b)

(3d ed. 1993). The ABA Standards also provide:

(a) Defense counsel should keep the defendant advised of developments

arising out of plea discussions conducted with the prosecuting attorney, and

should promptly communicate and explain to the defendant all plea offers

made by the prosecuting attorney.

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(b) To aid the defendant in reaching a decision, defense counsel, after

appropriate investigation, should advise the defendant of the alternatives

available and address considerations deemed important by defense counsel or

the defendant in reaching a decision. Defense counsel should not recommend

to a defendant acceptance of a plea unless appropriate investigation and study

of the case has been completed.

Id. std.14-3.2.

By all accounts, the Petitioner relied heavily on trial counsel during the litigation.

Counsel and co-counsel were aware of the Petitioner’s reliance on them for legal advice and

moral support, her lack of other support, and her mental health issues. The record shows that

trial counsel thought a jury would be angry with the Petitioner due to her lifestyle choices and

that its anger might affect the verdict. Counsel and the Petitioner wanted to resolve the case

by plea agreement and discussed that option. Counsel worked toward that end for over a

year, unsuccessfully attempting to negotiate a plea agreement on several occasions before the

trial. Counsel told the prosecutor that the Petitioner would plead guilty and testify for the

State against her codefendant. When the prosecutor extended the plea offer mid-trial,

counsel was pleased at the prospect of settling the case and ensured the court would accept

the plea. Counsel said the offer was the one they had hoped to obtain.

The trial court found that the passage of time had affected the attorneys’ memories

regarding the sequence of events during the lunch break and that as a result, it could not

determine the correct sequence. We note the conflicting evidence regarding the Petitioner’s

decision to accept the offer, co-counsel’s statements that she should not accept it, and her

decision to reject it.

Trial counsel said that he told the Petitioner about the offer and that she was relieved

and accepted it. He did not remember whether co-counsel was present when he conveyed

the offer to the Petitioner but thought co-counsel left to attend the jail docket when the lunch

recess began. He thought the Petitioner agreed to the offer while co-counsel was not present.

He said co-counsel made his strong statements after returning from the jail docket. He said

that at some point, he and the prosecutors talked to the judge about accepting a plea

agreement, but he did not remember whether there were two conversations with the judge.

He said co-counsel did not participate in the conference with the court because co-counsel

was attending the jail docket. He also said that at some point, the prosecutors talked to the

Petitioner, after which the Petitioner went outside with one of counsel’s employees to smoke.

He said that after the Petitioner returned from smoking, she advised him that she was not

going to accept the offer.

-16-

The attorney who was trial counsel’s runner and assistant during the trial testified that

he came back from lunch at a different time from counsel and the Petitioner. He said that

based upon what they told him, his impression was that the offer had been extended and

accepted. He said that he went outside with the Petitioner while she smoked and that from

their conversation, he thought she was going to accept the offer. He said he asked when she

would be eligible for parole. He said that his recollection was that co-counsel’s strong

statements were made after they returned from the Petitioner’s smoking break.

Co-counsel testified that he was present when the Petitioner was advised of the offer,

that she first looked to trial counsel for advice, that trial counsel did not express an opinion

about the advisability of accepting the offer, and that co-counsel expressed his opinion that

she should not accept it. He said that the Petitioner relied on trial counsel for advice and that

he realized he should leave to allow them time to discuss the offer. He said that he left to

attend the jail docket and that when he returned, the participants were taking their places in

the courtroom. He said that trial counsel told him they were proceeding to closing arguments

and that he did not learn until months later that the Petitioner had, at some point during the

lunch recess, agreed to accept the offer. Unlike trial counsel and the attorney who worked

for trial counsel, co-counsel was confident in his recollection of the sequence of events.

The Petitioner testified that trial counsel told her about the plea offer during a break.

She did not recall if co-counsel was present but thought the attorney who worked for trial

counsel was present. She said she was relieved and wanted to accept the offer. She said that

after the details were arranged, she went outside to smoke with the attorney who worked for

counsel. She said that when she returned, one or both of the prosecutors were present,

although she later said both were present. She said she questioned them about the agreement.

She said co-counsel came into the room and admonished her not to talk to the prosecutors.

She said co-counsel made his strong statements at this point. She said she relied on co-

counsel’s experience as a former prosecutor.

As we have noted, the Petitioner had the burden of proving her claims by clear and

convincing evidence. The trial court could not resolve the conflicting proof regarding the

sequence of events relative to the plea offer and its ultimate rejection. To the extent that the

Petitioner attempted to prove that co-counsel’s strong statements persuaded her to change her

mind after she had already decided to accept the plea offer, she has not established by clear

and convincing evidence that co-counsel provided ineffective assistance.

We note, though, that co-counsel’s advice, without regard to its timing, nevertheless

may have constituted ineffective assistance. Co-counsel’s post-conviction testimony reflects

that in addition to his strong statements, he provided the Petitioner with further explanation

of his view of the case:

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. . . I said something along the lines of this is a purely circumstantial case and

in a circumstantial case the Judge is going to tell this jury that . . . the evidence

must be so conclusive that it excludes every possibility, every reasonable

except that of guilt and . . . I am confident that what I said to her was, “the

doctor testified this could have been a one-person job or a two-person job and

they have all admitted that there was a substantial period of time where you

were gone because you had gone to the pharmacy to fill out [sic]

prescriptions.”

With regards to the statement about “juries don’t like to convict women

of first degree murder” I don’t think I put gender into it, but I am confident

that I said something along the lines of the hardest conviction to get is first

degree murder and . . . “I don’t feel like they have proven this case.”

At the post-conviction hearing, co-counsel provided a further explanation of his view

of the case:

I felt strongly about it then. I feel strongly about it now, that there were holes

in the State’s case and she should not have been convicted based on that proof.

. . . I mean, that is, that is the way I feel and I feel like it is wrong for her to be

doing a life sentence when it was thanks to her that Mr. Rocha-Perez didn’t

drive off with the victim’s body in the trunk of that car to be hidden and maybe

never found, but that is not really the focus of this hearing I know, but that is

the way about it then and that is the way I feel about it now, anyway.

He explained the defense strategy:

Well, the way that we argued that case was there was three ways she

could respond to given situations, she could say, I am going to turn Mr. Rocha-

Perez in; I am going to not [sic] turn him in and I am going to [assist] him in

escaping; or I am not going to decide right now.

The way that we argued the case starting from really jury selection, but

for sure during opening statement was, you know, all of her actions were I am

not going to decide. I am not going to decide. I am not going to decide, until

he had the body ready to go and driving out and she had to make the decision

and at that point she made the decision that she was going to alert authorities

and she was going to bring Mr. Rocha-Perez to justice and as soon as she

actually had to make a decision, she made the decision and she made the right

decision and, you know, whether that was because she had some mental issue

-18-

that prohibited her from making that decision or whether or not she was just

put in a pickle that would be hard for anybody to really [sic] figure out what

to do, you know, she, our strategy was to say that she never made the decision

to actually [sic] assist, she only made, she only delayed the decision until she

finally could no longer delay any more and at that point she made the right

decision.

....

The record speaks for itself [regarding the Petitioner’s mental health

issues], and the record also speaks for the fact that she was prescribed with a

number of medications that had mental health implications and . . . when I was

on my feet arguing it was not to the jury [sic] to give her a break because she

has got mental health issues. It was Ms. Freeman never, while there were bad

facts here, all of those bad facts really just pointed to delay instead of a

decision to assist.

Co-counsel testified that when he and trial counsel eventually discussed the case months after

the verdict, they were disappointed and thought the jury “had been so biased by the

outrageousness of the facts that we discussed that maybe they never even really considered

our position that we had so carefully worked to try to be able to present.”

Regarding co-counsel’s advice, the trial court found:

The Court finds that [co-counsel] informed the Petitioner that, in his

opinion based upon the proof presented at the trial, that he would not allow his

own daughter to plead guilty in the case. The Court notes that [co-counsel]

does not remember the specific contents of the second statement, but through

the testimony of [trial counsel and the attorney employed by trial counsel],

both of whom were in the room when [co-counsel] made the second statement,

it is clear to the Court that [co-counsel] stated to the Petitioner that Davidson

County juries are typically reluctant to convict women of First Degree Murder.

The Court finds that while these statements conveyed a strong sentiment to the

Petitioner that accepting the offer would be imprudent, that the statements

were not a guarantee of an acquittal with the Petitioner’s denial of the pending

offer. The Court finds that these statements imparted to the Petitioner the clear

advice from Mr. Funk of his professional opinion regarding the proof

presented at trial. The Court notes that, in hindsight, as things worked out,

[co-counsel’s] advice was obviously mistaken; however, [co-counsel’s] advice

was his professional opinion steeped in his, approximately, twenty-two (22)

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years of experience as a skilled criminal defense attorney and three (3) years

of experience as an assistant district attorney. In attempting to eliminate the

distorting effects of hindsight, the Court finds that [co-counsel’s] statements

were certainly bold assertions, but this Court is not prepared to find that these

statements, under the circumstances of the trial and the pending offer, rise to

the level of ineffectiveness.

As the trial court noted, co-counsel’s advice regarding whether the Petitioner would

have been better served by accepting the plea offer proved incorrect. Hindsight, however,

is not the appropriate means for reviewing an attorney’s actions relative to an ineffective

assistance of counsel claim. See Howell v. State, 185 S.W.3d 319, 327 (Tenn. 2009) (“In

reviewing counsel’s conduct, we must make every effort to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the

conduct from the perspective of counsel at that time.”) (citing Strickland, 466 U.S. at 689).

We conclude that the evidence does not preponderate against the trial court’s finding that co-

counsel’s advice to the Petitioner about accepting the plea offer was not ineffective.

We turn to trial counsel’s failure to make a recommendation to the Petitioner

regarding the plea offer. Counsel had attempted to obtain a plea offer for more than a year

and believed the State’s twenty-year offer was beneficial to the Petitioner. The attorney who

practiced with trial counsel testified that the Petitioner repeatedly expressed her desire for

a plea offer and that he thought a good offer would have been twenty years.

Co-counsel stated that counsel advised the Petitioner of the offer within a minute of

receiving it and that the Petitioner immediately asked counsel his opinion. Counsel said he

told her that he could not tell her what she should do. Co-counsel, though, said counsel

threw his hands in the air as if to signify, “it is your call, not mine.” Although the ultimate

decision to accept or reject a plea offer remained with the Petitioner, counsel had a duty to

tell the Petitioner that he believed accepting the offer was in her best interest. See

McLennon, 669 S.W.2d at 707.

We conclude that trial counsel was deficient by failing to offer his professional

opinion regarding the plea offer when it was extended. The Petitioner became close to

counsel during the course of his representation, and counsel knew of her history of bipolar

disorder, depression, and anxiety and knew she had no family support system. She relied

heavily on counsel’s advice. The Petitioner faced a life sentence if convicted of first degree

murder at the trial, but the plea offer permitted release eligibility after serving thirty percent

of a twenty-year sentence.

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The question becomes whether the Petitioner was prejudiced by the deficient

performance. The record reflects that throughout the litigation, the Petitioner wanted a plea

offer and that trial counsel thought a plea agreement was the better disposition of the case.

The offer received was the one the Petitioner had wanted and toward which counsel had been

working for over a year. The record reflects that the Petitioner had multiple mental health

concerns, and relied heavily on trial counsel, speaking with him at length before the trial. It

likewise reflects, though, that despite counsel’s failure to make a recommendation that she

accept the plea offer when it was extended, the events occurred in about forty-five minutes

in the midst of the trial. The trial court credited counsel’s testimony that he reminded the

Petitioner during the course of the plea discussions that she might serve a life sentence if she

rejected the offer and that he discussed the proof with her during the plea discussions. The

court discredited the Petitioner’s testimony that she did not know the maximum sentence and

found that she knew the risks of rejecting the offer. Although the record does not reflect that

counsel specifically recommended the Petitioner accept the offer, the Petitioner and counsel

had discussed a plea agreement many times and wanted the offer that was ultimately

received. The Petitioner failed to establish by clear and convincing evidence that she was

prejudiced by any deficient performance of counsel in failing to make a recommendation at

the time the offer was received.

We have not overlooked the effect of the conflicting advice the Petitioner received

from trial counsel and co-counsel. The record reflects that the Petitioner relied primarily on

counsel and had the benefit of extensive discussions with him about the advisability of a plea

offer, the terms of a favorable plea offer, the proof, and the possible sentence she faced if

convicted. Counsel and co-counsel had different views of the proof, and they fully and

candidly advised her of their views before and during the trial, and to some extent, during the

forty-five minutes the plea offer was on the table. Counsel took steps to ensure that the court

would accept a guilty plea at the late stage in the proceedings and made arrangements for a

delayed reporting date. Knowing that the proof that had been admitted against her was

inculpatory and included evidence about her lifestyle and drug use, that she faced a life

sentence if convicted of the first degree murder of her husband, and that she could avoid the

life sentence by pleading guilty and testifying against her co-defendant, the Petitioner

nevertheless chose to accept the risk of rejecting the offer and pursuing the trial to its

conclusion. The Petitioner was offered conflicting views of her case from two experienced

and prepared attorneys. She made a considered decision, although it resulted in her being

convicted of first degree murder and receiving a life sentence. She has not established by

clear and convincing proof that she was prejudiced by the conflicting advice she received.

Both views were based upon the evidence, defense strategy, and the attorneys’ experience.

She is not entitled to relief.

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In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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