          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON                            FILED
                            SEPTEMBER 1998 SESSION
                                                                         October 23, 1998

                                                                         Cecil Crowson, Jr.
                                                                         Appellate C ourt Clerk
AUDREY E. DOWNS,                          )       C.C.A. NO. 02C01-9710-CR-00390
                                           )
       Appellant,                          )      SHELBY COUNTY NO. P-17849
                                           )
VS.                                        )      HON. BERNIE WEINMAN,
                                           )      JUDGE
STATE OF TENNESSEE,                        )
                                           )      AFFIRMED - RULE 20
       Appellee.                           )



                                       ORDER



       The petitioner appeals the trial court's denial of post-conviction relief. The

petitioner originally pled guilty to felony murder and aggravated rape. He received

agreed sentences of life imprisonment without the possibility of parole and twenty-

five (25) years, respectively. The sentences were ordered to run concurrently. In

this appeal, the petitioner only contests the felony murder plea. He contends the

plea was the unknowing and involuntary result of ineffective assistance of counsel.

       The petitioner testified trial counsel did not conduct a proper factual

investigation and failed to sufficiently confer with him. Specifically, the petitioner

complained counsel failed to interview his sister who possessed the clothing worn

by the petitioner at the time of the homicide. Petitioner testified he was unaware of

the constitutional rights he was waiving when he pled guilty. If he had been aware,

petitioner claimed, he would have proceeded to trial. The petitioner also testified

that he was still suffering from the effects of drugs at the time he entered the guilty

plea even though he had been in custody eleven (11) months.

       The petitioner stated his primary reason for pleading guilty was his attorney's

statement that he would receive the death penalty if he proceeded to trial. The

petitioner further stated that he would have proceeded to trial if he had known there

was the possibility of receiving a punishment other than death. The petitioner also

complained of a mental examination performed one week before he entered the
guilty plea. The petitioner contends this examination could not reflect his mental

state at the time of the murder since his mind had cleared since he had been in jail.

       One of the petitioner's trial attorneys testified at the hearing. He stated that

he and co-counsel were members of the Shelby County Public Defenders Office

Capital Defense Team. Trial counsel stated that the prosecutors gave them a list

of witnesses the state intended to call and maintained open discovery. Counsel

testified the defense team spoke with petitioner's family, friends and co-workers

while investigating the case. One mental evaluation was performed early in the

investigation followed by another evaluation performed one week before the plea.

Neither found the petitioner insane or incompetent. Counsel filed a motion in an

attempt to suppress the petitioner's statements given to police. After a hearing, the

motions were denied. Counsel testified the petitioner's statement was extremely

damaging. In his opinion the petitioner would have received the death penalty at

a trial since petitioner had a prior conviction for assault with intent to commit sexual

battery involving violence. Trial counsel's testimony contradicted the petitioner's

testimony in all material respects.

       Honorable Bernie Weinman filed extensive written findings in denying the

petition. Judge Weinman concluded the petitioner "willingly, freely and voluntarily"

entered the plea of guilty and desired to avoid the death penalty. He further found

that trial counsel "thoroughly investigated the case, filed all necessary motions, had

a lengthy hearing on the Motion To Suppress the defendant's statements and was

prepared to try the case if the defendant desired to proceed to trial." He concluded

the advice given and services rendered by trial counsel met the standards required

by Baxter v. Rose, 527 S.W.2d 930 (Tenn. 1975). The evidence certainly does not

preponderate against the findings of the trial court.1

        Therefore, pursuant to Rule 20 of the Tennessee Court of Criminal Appeals,

we affirm the judgment of the trial court.


       1
          The legal ramifications of the clothing possessed by petitioner's sister
were not specifically addressed in the trial court's findings. Nevertheless,
petitioner has failed to establish that the clothing would exonerate him.
Furthermore, he has not established that he would not have pled guilty had the
clothing been examined by counsel.

                                              2
     Costs are taxed to the state as the appellant is indigent.



     All of which is so ORDERED.




                                               _________________________
                                               JOE G. RILEY, JUDGE


CONCUR:



_________________________
PAUL G. SUMMERS, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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