             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                          JULY 1999 SESSION
                                                   FILED
                                                   August 12, 1999

ELBERT TATE,                   )                  Cecil Crowson, Jr.
                               )                 Appellate Court Clerk
             Appellant,        )   No. 02C01-9810-CR-00304
                               )
                               )   Shelby County
v.                             )
                               )   Honorable James C. Beasley, Judge
STATE OF TENNESSEE,            )
                               )   First degree murder and attempted first
                               )   degree murder
                               )
             Appellee.         )



For the Appellant:                 For the Appellee:

Jeffery S. Glatstein               Paul G. Summers
200 Jefferson Avenue, Suite 1313   Attorney General of Tennessee
Memphis, TN 38103                         and
                                   R. Stephen Jobe
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   2nd Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493

                                   William L. Gibbons
                                   District Attorney General
                                           and
                                   Scott Gordon
                                   Assistant District Attorney General
                                   Criminal Justice Complex, Suite 301
                                   201 Poplar Avenue
                                   Memphis, TN 38103




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                         OPINION



              The petitioner, Elbert Tate, appeals as of right from the Shelby County

Criminal Court’s denial of post-conviction relief. The petitioner pled guilty to the first

degree murder of his wife and the attempted first degree murder of her grandmother.

For the first degree murder conviction, he was sentenced to life imprisonment. For the

attempt conviction, he was sentenced as a Range I, standard offender to twenty years

confinement in the Department of Correction, to be served consecutively to the first

degree murder sentence. In his appeal, the petitioner contends that (1) his pleas were

not voluntary or knowing, and (2) he received the ineffective assistance of counsel. We

affirm the trial court’s denial of post-conviction relief.



               At the evidentiary hearing, the petitioner testified that he had mental

problems but that his trial attorney never requested a mental evaluation. He said that

when he was brought to jail, he attempted suicide and was given medication for

depression. He said that because of stress and depression, he did not know what he

was doing when he entered his guilty plea, and he did not understand the process. He

said that he told these things to his attorney but that she told him he was fine.



               The petitioner testified that his attorney did not file a motion to suppress a

statement he made to the police. He said he was not given Miranda warnings before

making the statement. He said he provided his attorney with the names of two people

he thought would be helpful at trial, but his attorney did not contact them. He said he

told his attorney that a man named Junior would testify that his wife was having an

extramarital affair and that a woman named Ms. Kate would testify that he purchased a

gun for self-defense, not to kill his wife. He stated that he did not know Junior’s

address but that he did provide his attorney with the address for Ms. Kate.




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              The petitioner testified that he pled guilty because his attorney told him

that he would receive the death penalty if he did not. He said his attorney told him to

plead guilty even though he told her that he did not want to plead guilty.



              On cross-examination, the petitioner testified that he was under pressure

and distress at the guilty plea hearing. He testified that the trial court explained that he

could get the death penalty if he went to trial. He admitted that he had never been

diagnosed with a mental condition, but he said that he wanted a mental evaluation to

determine if he was temporarily insane at the time of the shootings. He testified that he

attempted suicide in jail by trying to hang himself and that he was taken to a doctor. He

testified that the statement that he wanted suppressed involved him voluntarily going to

the police station and telling the officers that he had shot his wife and her grandmother.



              A transcript of the guilty plea hearing was admitted into evidence. At the

guilty plea hearing, the petitioner testified that he was thirty years old and had

graduated from high school. The petitioner testified that he understood that he was

waiving his right to a trial and that he was not forced or pressured into pleading guilty.

At the hearing, the prosecutor stated that she and the petitioner’s attorney had

negotiated about the state not seeking the death penalty, but that, in any event, she did

not believe she had enough factual support to seek the death penalty.



              The petitioner’s trial attorney testified that she did not recall the petitioner

telling her of a suicide attempt. She said she asked the petitioner if he had any past or

present mental problems, and the petitioner said that he did not. She said the

petitioner told her that he was not on any medication. She said she filed a motion to

suppress the petitioner’s statement, but she told the petitioner it probably would not

succeed because the petitioner voluntarily made the statement to the police without

questioning, and it was not subject to Miranda. She said she located Ms. Kate and



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asked her about the petitioner having a gun for protection but could not verify the

information. She said she could not locate Junior, and the petitioner could provide no

other information. She said she also told the petitioner that she did not think that

Junior’s proposed testimony would help the petitioner because it might tend to support

premeditation. The attorney testified that the petitioner wanted to end the case as soon

as possible and did not want to go to trial. She stated that the state had offered life

without parole but that the petitioner wanted a better offer. She said she did not think

the state would offer life with parole but it did, and the petitioner accepted the offer.

She testified that she fully explained all of the sentencing possibilities if the case went

to trial, including the death penalty and life with or without parole, and the petitioner

wanted to accept the plea offer. She said the petitioner was articulate and intelligent,

and he knew what was happening.



              On cross-examination, the attorney testified that she normally requests a

mental evaluation in death penalty cases. She said she did not request one in the

petitioner’s case because he did not appear to have any mental health problems, and

his background did not indicate previous problems. She said she told the petitioner that

if the case went to trial, she might request a mental evaluation. She said the petitioner

was adamant about wanting to dispose of the case before trial. She said the

prosecutor had indicated to her that the state might seek the death penalty if the case

went to trial because children were present when the petitioner fired the shots. She

said the prosecutor never filed notice of any aggravating factors because the petitioner

pled guilty. She said that on the day the petitioner entered his plea, he never indicated

that he did not want to plead guilty.



              The trial court denied the post-conviction petition. It found that the

petitioner’s attorney was not ineffective for failing to seek a mental evaluation because

no basis for one existed. It further found that no basis existed for filing a motion to



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suppress the petitioner’s statement. The trial court determined that the attorney

adequately investigated the case and interviewed the witnesses she was able to find.

The trial court also found that the petitioner knowingly and voluntarily entered his guilty

pleas.



              In a post-conviction case, the burden is on the petitioner to prove his

grounds for relief by clear and convincing evidence. T.C.A. § 40-30-210(f). On appeal,

we are bound by the trial court’s findings unless we conclude that the evidence

preponderates against those findings. Black v. State, 794 S.W.2d 752, 755 (Tenn.

Crim. App. 1990). The petitioner has the burden of illustrating how the evidence

preponderates against the judgment entered. Id. This court may not reweigh or

reevaluate the evidence, nor substitute its inferences for those drawn by the trial court.

Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Questions concerning the

credibility of witnesses and the weight and value to be given to their testimony are

resolved by the trial court, not this court. Id.



                     I. VOLUNTARY AND KNOWING GUILTY PLEA

              First, the petitioner contends that his pleas were not voluntarily and

knowingly entered because he suffered from a mental condition at the time of the plea

hearing. The only evidence with regard to the petitioner’s mental state was his

testimony that he was stressed and depressed and had attempted suicide. However,

he testified that he had never been diagnosed with a mental condition, and the

petitioner’s attorney testified that the petitioner told her that he was not on medication.

His attorney testified that he was intelligent and articulate and that he knew what was

happening at the guilty plea hearing. The petitioner has presented no credible

evidence to support his argument, and the record does not preponderate against the

trial court’s finding that the petitioner’s pleas were knowing and voluntary.




                                               5
               The same is true with regard to the petitioner’s contention that his attorney

pressured him into accepting a guilty plea by threatening him with the death penalty.

Although the petitioner testified that his attorney told him he would get the death penalty

at trial, his attorney testified that she explained the sentencing options to the petitioner

but that the petitioner wanted to plead guilty and avoid a trial. This presents a classic

credibility issue, and the trial court obviously accredited the testimony of the petitioner’s

attorney. The petitioner has failed to show that the evidence preponderates against the

trial court’s findings.



                      II. INEFFECTIVE ASSISTANCE OF COUNSEL

               The petitioner contends that his attorney was ineffective for failing to

investigate his case and for failing to file a motion to suppress his statement. The state

contends that the evidence does not preponderate against the trial court’s finding of

effective assistance. We agree.



               When a claim of ineffective assistance of counsel is made under the Sixth

Amendment, the burden is upon the petitioner to show (1) that counsel’s performance

was deficient and (2) that the deficiency was prejudicial in terms of rendering a

reasonable probability that the result of the trial was unreliable or the proceedings

fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 842-44

(1993). 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). When a petitioner claims that ineffective assistance of counsel resulted

in a guilty plea, the petitioner must prove that counsel performed deficiently and that but

for counsel’s errors, the petitioner would not have pled guilty and would have insisted

upon going to trial. Hill v. Lockhart, 464 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).




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              In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

held that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel’s conduct, a “fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).



              We also note that the approach to the issue of the ineffective assistance

of counsel does not have to start with an analysis of an attorney’s conduct. If prejudice

is not shown, we need not seek to determine the validity of the allegations about

deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



              The petitioner contends that his attorney was ineffective for failing to

investigate his case. He argues that the attorney did not contact the two potential

witnesses he suggested. First, we note that the attorney did contact Ms. Kate, but the

attorney was unable to verify the information the petitioner had provided. Furthermore,

we do not believe that the attorney was ineffective for failing to locate the other witness

because the only information the petitioner could provide was the name Junior. In

addition, the petitioner’s attorney expressed doubt regarding the benefit of the witness’s

testimony, and it was her belief that the testimony would support premeditation. The

petitioner has not shown that the evidence preponderates against the trial court’s

finding of effectiveness.




                                             7
               The same is true with regard to the petitioner’s argument that his attorney

was ineffective for failing to file a motion to suppress his statement. Initially, we note

that the attorney testified that she did file a motion to suppress the statement, although

the motion was not introduced at the evidentiary hearing or made a part of the record

on appeal. Regardless, the attorney testified that the motion was baseless because the

petitioner voluntarily went to the police station and made the statement without

questioning by the police; thus Miranda was not implicated. In its order denying relief,

the trial court stated that the motion was baseless. The evidence does not

preponderate against the trial court’s findings.



               Finally, the petitioner contends that his attorney was ineffective for

advising him to accept the guilty plea offer. Again, the petitioner and the attorney

contradicted each other in their testimony, and the trial court obviously accredited the

attorney’s testimony that the petitioner wanted to enter a guilty plea and avoid a trial.

This issue is without merit.



               In consideration of the foregoing and the record as a whole, we affirm the

trial court’s denial of post-conviction relief.



                                                         __________________________
                                                         Joseph M. Tipton, Judge


CONCUR:


____________________________
James Curwood W itt, Jr., Judge


____________________________
John Everett W illiams, Judge




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