         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs October 2, 2001

                WALTER L. JOHNSON v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                              No. P-23418    Chris Craft, Judge



                     No. W2001-00382-CCA-R3-PC - Filed October 26, 2001


The Petitioner was convicted of especially aggravated kidnapping and sentenced to twenty-five
years incarceration. The conviction and sentence were affirmed on direct appeal. Subsequently, the
Petitioner filed a petition for post-conviction relief, alleging that his attorney at trial was ineffective.
The post-conviction court denied relief. We affirm the judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
joined. JOSEPH M. TIPTON, J., concurred in the result only.

Robert Little, Memphis, Tennessee, for the Appellant, Walter L. Johnson.

Paul G. Summers, Attorney General and Reporter; Laura McMullen Ford, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

                                             I. Background

       The Petitioner, Walter L. Johnson, is presently serving a twenty-five-year sentence in the
Tennessee Department of Correction for especially aggravated kidnapping. On direct appeal, this
Court summarized the facts of the underlying conviction as follows:
               On January 27, 1994, between noon and one o’clock p.m., the victim in this
       case, Joyce Davis, stopped on her way home to use a pay phone on McLemore Street
       in Memphis. While she was using the phone, the Defendant, whom she did not
       know, pulled up in a red pick-up truck and asked how she was doing. She responded
       that she was fine. The Defendant then got out of the truck, walked over to her,
       touched her with a knife, and told her, “I think you need to get in my truck.” Fearful,
       the victim followed his commands.
        The Defendant escorted the victim to the passenger side of his truck, and
before he shut the door, he tore the knob from the window lever and threw it on the
floorboard. Once inside the truck, the victim noticed that the passenger side door
handle had also been removed. The Defendant proceeded to drive the truck across
a bridge to Arkansas. During the drive, the Defendant asked the victim to raise up
her skirt so that he could see her legs. In Arkansas, they drove on a dirt road to a
secluded spot, where they stopped. The Defendant turned to the victim and said,
“Bitch, I’m going to kill you.” The victim began to cry, and the Defendant told her
to stop crying so that she would not arouse the suspicions of the police should they
drive by or stop.

         The Defendant had the victim place one leg on the floorboard and the other
on the seat of the truck, and he tore her pantyhose. His penis was outside of his
pants; and as he tore the victim’s pantyhose, he was ejaculating. He stated, “What
is a piece of p____y compared to your life.” He performed cunnilingus on the victim
and then penetrated her, holding to the back of her neck a knife, which the victim
described at trial as having a black handle and a long blade.

       The Defendant penetrated the victim for approximately thirty minutes but
stopped the rape when he heard another car approaching. The Defendant emerged
from the truck to relieve himself, leaving the knife on the dash of the truck. When
he got back into the truck, he drove to another location. At the second location,
evidently the truck almost got stuck, and the Defendant decided to take the victim
home. At that time, the Defendant placed the knife in the sun visor above his head.

       During the abduction and rape, the Defendant referred to himself several
times as “Willie.” Several times he told the victim, “Call me Mr. Willie.” One item
of evidence introduced at trial was a piece of paper taken from the Defendant’s
residence on which the words “Willie call me” were written.

        On the way back to Memphis, the Defendant apologized for raping the victim
and asked if she had been raped before. Although the Defendant believed that he was
taking the victim to her own home, the victim had the Defendant drop her off at a
neighbor’s house instead. The Defendant ordered her not to call the police and then
backed the truck down the street. The victim was able to see three of the digits on
the truck’s license plate as he backed down the street. She testified at trial that she
had seen the numbers “363,” although she also admitted that she was not entirely sure
she remembered the correct numbers. After the Defendant left, the victim went
inside, called the police, and was taken to the Rape Crisis Center, where she
submitted to medical testing.

       The victim told police that the Defendant’s truck had the word “Ford” on the
outside and the word “Ranger” on the inside. She described it as having a red


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        exterior and some white trim, a darker panel on the driver’s front side near the fender,
        and torn seats in the interior. She described her perpetrator as “a male black,
        approximately 200 pounds with a heavy build, a full gray beard, a blue flannel shirt,
        blue jeans, and some type of green shoes.”

                A few days after the abduction and rape, the victim saw the Defendant driving
        in the same truck, and she went into a nearby store to call the police. On this
        occasion, she was able to take down the full license tag number, “YHN-633,” which
        she relayed to the police. However, evidently the victim was mistaken about the tag,
        because the license numbers that she provided belonged to a 1985 Ford pick-up
        which was not red and which was registered to a man named Victor McGee.

                On August 18, 1994, a Memphis police officer who was working on the
        investigation in this case received information that he could find the Defendant near
        Vance and Orleans streets around six o’clock a.m. The officer went to the area at
        that hour but had no luck finding the Defendant. He returned the following morning
        at the same time and saw a red pick-up truck with ladder racks on the top driven by
        a man who matched the description of the victim’s assailant. The license plate on the
        vehicle was “YHW-363.” When he stopped the vehicle, the officer noted and
        photographed a knife which was stuck in the sun visor above the driver’s seat. He
        then arrested the driver, whom he identified as the Defendant, Walter Johnson.

                The police conducted two separate lineups in which the Defendant
        participated. Ms. Davis was present at the second lineup and picked the Defendant
        out of the lineup as her assailant. At the police station, she also identified the
        Defendant’s truck as the vehicle driven by her assailant.
State v. Walter Johnson, No. 02C01-9801-CR-00007, 1998 WL 779610, at *1-2 (Tenn. Crim. App.,
Jackson, Nov. 10, 1998).

        This Court affirmed the Petitioner’s conviction and sentence, and permission to appeal to the
Tennessee Supreme Court was denied. Id. at *1. The Petitioner filed a pro se petition for post-
conviction relief, counsel was appointed to represent the Petitioner, and an amended petition for
post-conviction relief was filed. Following an evidentiary hearing, the post-conviction court denied
relief.

        At the evidentiary hearing, the Petitioner alleged that his attorney at trial was ineffective for
the following reasons: (1) that counsel failed to request jury instructions on the lesser-included
offenses of aggravated kidnapping and kidnapping; (2) that counsel agreed to stipulate to certain
facts without the Petitioner’s consent; (3) that counsel failed to argue that a prior nolo contendere
plea by the Petitioner in Mississippi should not be used to enhance the Petitioner’s sentence; (4) that
counsel failed to properly investigate the case; (5) that counsel failed to request a continuance of the
trial when the Petitioner’s “civilian clothes” were misplaced; and (6) that counsel failed to object to



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the victim’s testimony concerning a lineup identification of the Petitioner, at which the Petitioner
alleges the victim was not present. The Petitioner does not raise issue (6) in this appeal.

       In a detailed order containing findings of fact and conclusions of law, the trial court
determined that the Petitioner had failed to prove by clear and convincing evidence that his trial
counsel represented him ineffectively.

                                            II. Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-203. The petitioner bears the burden of proving factual allegations in the petition for post-
conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s
factual findings are subject to a de novo review by this Court; however, we must accord these factual
findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450,
456 (Tenn. 2001) (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). A post-conviction
court’s conclusions of law, such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial, are subject to a purely de novo review by this Court, with no presumption
of correctness. Id. at 457.

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
This right to representation includes the right to “reasonably effective” assistance. Burns, 6 S.W.3d
at 461.

        In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result, id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have


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been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

                                         A. Jury Instructions

        The post-conviction court found that the Petitioner’s trial attorney was not ineffective for
failing to request a jury charge on lesser-included offenses. The post-conviction court correctly
pointed out that the Petitioner’s defense at trial was one of “identification.” The post-conviction
court determined that
        [t]here never was any question that the crime occurred or that a knife was used, but
        only whether or not Petitioner was the perpetrator. Failure to instruct on a lesser
        offense is not error where the record clearly shows that the Defendant was guilty of
        the greater offense, and the record is devoid of any evidence permitting an inference
        of guilt of the lesser offenses.

        Additionally, as the State points out in its brief, the trial court was obligated to instruct the
jury on any appropriate lesser-included offenses, with or without a request from counsel. See Tenn.
Code Ann. § 40-18-110 (amended 2001). We conclude that the post-conviction court’s factual
findings and conclusions of law are correct. This issue is without merit.

                                            B. Stipulation

        In his amended petition and in his brief, the Petitioner argues that his trial counsel was
ineffective because counsel stipulated, without Petitioner’s consent, that the DNA evidence obtained
from the victim was insufficient to conclusively identify the Petitioner as the rapist. At the post-
conviction hearing, no evidence was presented by the Petitioner to prove this allegation.

        The post-conviction court found that the Petitioner relied on his trial attorney’s judgment in
not objecting to a stipulation concerning the fact that insufficient genetic material was available to
obtain a DNA match. The post-conviction court found that the Petitioner showed no prejudice by
the introduction of the stipulation at trial. We agree. This issue is without merit.

                                         C. Prior Conviction

        Petitioner argues that his 1993 manslaughter conviction from the state of Mississippi should
not have been admissible evidence at his sentencing hearing in this case. He alleges that in 1993,
he entered a “no contest” plea to manslaughter in Mississippi, but complains that the plea was
entered in the judge’s chambers and that his attorney was absent. He faults his trial counsel for
failing to argue for the exclusion of this conviction at the sentencing hearing in this case.

        The post-conviction court determined that the Petitioner’s 1993 manslaughter conviction was
properly considered during sentencing in this case. It follows that the Petitioner’s trial counsel was
not ineffective for failing to argue that the manslaughter conviction could not be used to enhance the


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Petitioner’s sentence. Again, the post-conviction court’s findings of fact and conclusions of law with
regard to this issue are supported by a preponderance of the evidence. This issue is without merit.

                                           D. Investigation

        The Petitioner complains that his trial attorney should have talked to the Petitioner’s brother
and a “Mr. Wooten” as a basis for his claim that trial counsel did not properly investigate the case.
However, these witnesses did not testify at the post-conviction hearing, nor was any offer of proof
made to show how the testimony of these witnesses might have affected the outcome of the
Petitioner’s trial. We agree with the post-conviction court that the Petitioner has failed to prove that
trial counsel’s investigation was inadequate. This issue is without merit.

                                           E. Jail Clothes

       The Petitioner alleges that his trial counsel was ineffective for failing to obtain a continuance
when the Petitioner’s “civilian clothes” were apparently misplaced during the multi-day trial. The
post-conviction court determined that “in this case, however, Petitioner appeared in different clothes
each day of trial, and the trial judge found that there was nothing about his clothing that the average
person would equate with ‘prison garb.’ ” The post-conviction court determined that although at
some point during the trial the Petitioner’s “civilian” clothes were misplaced, the Petitioner was not
prejudiced by the original trial court’s decision to proceed with the trial. Although the Petitioner
complained that his attorney “could have did something a little more, you know, or asked them to
try and locate my clothes,” the post-conviction court determined that the Petitioner suffered no
prejudice that “might have affected the outcome of the trial.” We agree.

       Having thoroughly reviewed Petitioner’s claim that he was ineffectively represented at trial,
and finding substantial evidence to support the post-conviction court’s findings to the contrary, we
conclude that the judgment of the post-conviction court is AFFIRMED.




                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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