         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    August 20, 2002 Session

              NATASHA W. CORNETT v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Greene County
                         No. 01 CR 120     James E. Beckner, Judge



                                  No. E2002-00034-CCA-R3-PC
                                       September 30, 2002

The petitioner, Natasha W. Cornett, appeals the trial court's denial of post-conviction relief. The
issues presented for our review are (1) whether the petitioner properly waived her right to a jury trial
at sentencing; (2) whether her guilty pleas to three counts of first degree murder, one count of
attempted first degree murder, two counts of especially aggravated kidnapping, two counts of
aggravated kidnapping, and one count of theft over $1,000 were knowingly and voluntarily entered;
and (3) whether the petitioner was denied the effective assistance of counsel. The judgment is
affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
ROBERT W. WEDEMEYER , JJ., joined.

Susanna L. Thomas, Newport, Tennessee, for the appellant, Natasha W. Cornett.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and
Garrett Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        On August 6, 1997, Vidar Lillelid, his wife, Delphina, and their six-year-old daughter,
Tabitha, were murdered near an interstate rest stop in Greene County. Two-year-old Peter Lillelid
suffered two life-threatening gunshot wounds, one of which caused the loss of an eye. Just before
their scheduled trials, the petitioner and her co-defendants, Karen Howell, Crystal Sturgill, Joseph
Risner, Dean Mullins, and Jason Bryant, each entered pleas of guilt to the attempted murder of Peter
Lillelid and to the first degree murders of Vidar, Delphina, and Tabitha Lillelid. The petitioner and
each of the other defendants also pled guilty to two counts of especially aggravated kidnapping, two
counts of kidnapping, and one count of theft of property valued at between $1,000 and $10,000. In
exchange for the pleas of guilt, the state withdrew its request for the imposition of the death penalty
as to the petitioner and Joseph Risner, Dean Mullins, and Crystal Sturgill. Because Howell and
Bryant were minors at the time of offenses, they did not qualify for the death penalty. At the
conclusion of the sentencing hearing, the trial court imposed identical sentences upon each defendant
as follows:

        Crimes                                          Sentence
        Three counts of first degree murder             Life without the possibility of parole
                                                        (consecutive)

        Attempted murder                                25 years (consecutive)

        Two counts of especially aggravated                     25 years (concurrent)
        kidnapping

        Two counts of aggravated kidnapping                     12 years (concurrent)

        Theft                                           Four years (concurrent)

       The petitioner and the other defendants did not appeal the sentences imposed for the theft and
kidnapping convictions. In State v. Howell, 34 S.W.3d 484 (Tenn. Crim. App. 2000), this court
affirmed the sentences imposed upon the petitioner for each of the three first degree murder
convictions and the attempted murder. Application for permission to appeal to the supreme court
was denied on September 25, 2000.

        On July 19, 2001, the petitioner filed a petition for post-conviction relief. Petitioner asserted
that her waiver of a jury trial did not comply with Rule 23 of the Tennessee Rules of Criminal
Procedure. She generally alleged that her pleas were neither knowingly nor voluntarily entered and
that she was denied the effective assistance of counsel. The petitioner specifically asserted that she
was coerced into pleading guilty through misrepresentations, breached promises, and threats by the
state. She complained about the "all or nothing" nature of the state's plea offer which required the
consent and participation of all of her co-defendants. The petitioner contended that she was not
mentally sound at the time of her pleas and was influenced to waive her constitutional rights by the
side effects of a prescription medication. She also argued that she was not guilty of the crimes
charged and complained that her counsel failed to adequately advise her prior to the plea of either
the mental state required for the commission of the crimes or the possible sentencing consequences.

        At the evidentiary hearing, it was established that attorneys Robert F. Cupp and Stacy Street
were appointed to represent the petitioner. The defense team included a criminal investigator, a
mitigation specialist, a criminologist, a psychiatrist, and a psychologist. Attorney Cupp described
the expert assistance as the best of any of the many cases in which he had been involved. The theory
of defense was to present the petitioner as a minor participant in the offenses. As mitigation proof
in the event of her conviction, the defense attorneys found witnesses in the Pikeville, Kentucky, area
who were able to testify on behalf of the petitioner. In the course of their investigation, the defense
attorneys learned that the petitioner, when young, had been diagnosed with a bipolar disorder and


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institutionalized in a psychiatric facility. Based upon the guidance of their mental health experts,
Attorneys Cupp and Street determined that the petitioner's mental problems no longer existed at the
time of the offense. Attorney Cupp confirmed that immediately prior to trial, the state offered a
package plea proposal conditioned upon the petitioner and each of the other defendants accepting
the terms. The proposal required guilty pleas upon each offense and the maximum sentences for
each of the kidnapping and theft charges. The trial court was to determine the sentences for the three
first degree murders and the attempted murder. If the terms were acceptable to each of the
defendants, the state would agree to withdraw its request for the death penalty.

         Attorney Cupp testified that he and Attorney Street spent approximately nine hours with the
petitioner over a period of three days discussing the offenses and the various sentencing possibilities.
He acknowledged that the petitioner did not appear to be concerned about the death penalty for
herself and was primarily motivated to assist the others to avoid capital punishment. Attorney Cupp
testified that during discussions immediately before the guilty plea, the petitioner's demeanor was
no different than it had been previously. He stated that the petitioner never claimed to be under the
influence of medication. Attorney Cupp described her decision to accept the offer as entirely
voluntary.

         Attorney Street corroborated the testimony of his co-counsel. He testified that he had spoken
with every witness for the state and had examined all of the evidence the state intended to introduce
at trial. He confirmed that the defense theory was to portray the petitioner as a minor participant,
not having fired any of the shots which had either killed or injured the victims. The defense theory
during the penalty phase of the trial was to establish that the petitioner had a dysfunctional family,
was abused from early childhood, and was afflicted with mental deficiencies and alcoholism.
Attorney Street recalled that he had visited the petitioner, who was in solitary confinement at the jail,
at least two or three times a week. He was aware that the petitioner had been prescribed Haldol, an
anti-psychotic drug which she later stopped taking because of its side effects. Attorney Street
believed that the petitioner felt better after terminating her use of the prescription and confirmed that
the petitioner did not reveal that she had taken any other medication. Further, he was unable to
detect any indication of mental problems. Attorney Street acknowledged that he had advised the
petitioner prior to her plea that it was his opinion that the jury would return a sentence of death. He
specifically remembered the petitioner's initial response, "I don't care whether I die or not." While
he described the petitioner as reluctant, Attorney Street testified that she had almost immediately
agreed to the terms of the plea offer. He specifically recalled explaining to the petitioner that a
"package deal" required the acceptance of all defendants, else it was available to none. It was his
opinion that the petitioner had made an effective witness during the sentencing hearing and that a
substantial amount of other mitigating testimony had been adequately presented through a variety
of witnesses. A psychiatric report was introduced at the hearing which described the petitioner as
a troubled person, exhibiting symptoms of mental illness. The report concluded, however, that she
had no psychosis and was not insane at the time of the offenses. Attorney Street described the
petitioner as extremely intelligent, very artistic, and articulate. He confirmed that even though the
sentencing hearing was approximately one month after the guilty pleas and the testimony at the



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hearing lasted a full week, the petitioner never expressed any desire to withdraw her plea during that
time.

        The petitioner testified that she had signed the plea agreement on the day the state extended
the offer but did not feel that she had accepted the terms. She stated that she kept the documents so
that she could reconsider. The petitioner acknowledged that she asked several questions about the
possible sentences and the consequences in the event she rejected the offer. The petitioner recalled
that she asked her attorneys to describe prison life, to express their views on the possibility of the
imposition of the death penalty, and to assess the likelihood of winning an acquittal. She stated that
she understood that even if she was acquitted at trial, her co-defendants could be convicted and could
be sentenced to death. The petitioner recalled that the best possible scenario still required a 51-year
term in prison and described her acceptance of the plea offer as a last-minute decision. She claimed
that the plea discussions wreaked havoc on her mental state, causing her to be guilt-ridden and
suicidal due to her failure to prevent the killings. The petitioner viewed her decision to accept the
offer as being based primarily upon her desire to stop anyone else from dying. She claimed that by
the time she had made her final decision to accept the state's offer, everyone had accepted except for
Howell. She claimed that the week before her guilty plea, she took "a yellow capsule" for
nightmares and Xanax, frequently cried, and slept erratically. The petitioner insisted that she told
her attorneys that she had been taking medication and contended that they were aware of her
impaired mental state. She also maintained that shortly after the imposition of sentence, she
informed Attorney Street that she wanted to withdraw her plea.

         At the conclusion of the evidentiary hearing, the trial court entered a memorandum opinion
and order denying post-conviction relief. Initially, the trial court determined that the petitioner had
waived a jury trial in written form with the approval of the court and the district attorney general.
The trial court determined that Attorneys Cupp and Street were competent, had prior experience in
capital cases, and had all of the resources necessary to prepare for trial. The trial court concluded
that the attorneys had made an exhaustive investigation and had maintained a high level of
communication with the petitioner. It characterized the facts and circumstances of the offenses as
"horrible," establishing that the petitioner was a willing participant in the shootings. The trial court
also determined that the pleas were knowingly and voluntarily made upon the sound advice of
counsel and that they were not entered due to the influence of medication or the stress due to the
state's offer of a "package deal." Finally, the trial court found that the petitioner was fully aware of
the consequences of her plea and had represented at the guilty plea hearing that she had not used
alcohol or drugs in the prior 24 hours.

                                                    I
        The petitioner first argues that she did not waive her right to have a jury decide the sentences
on the three murder convictions. She argues that Article I, sections 6 and 14, of the Tennessee
Constitution and Tennessee Code Annotated section 39-13-204(a), which provides that after a
verdict of guilty of first degree murder, "the jury shall fix the punishment," establish both
constitutional and statutory rights to a jury. The petitioner specifically argues that the waiver she



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signed prior to the sentencing hearing is invalid because the document makes no specific mention
of the right to a jury or the petitioner's waiver thereof.

        Rule 23 of the Tennessee Rules of Criminal Procedure provides as follows:

                In all criminal cases except small offenses, trial shall be by jury unless the
        defendant waives a jury trial in writing with the approval of the court and the consent
        of the district attorney general. The defendant may waive a jury trial at any time
        before the jury is sworn.

        Unless there is an execution of a waiver of the right to trial by jury, a defendant in a criminal
case is entitled to have a jury empaneled to try the matter. State v. Johnson, 574 S.W.2d 739, 741
(Tenn. 1978). Although no particular form is required, waivers, in order to be valid, must be
"voluntarily, knowingly, and intelligently made." Patton v. United States, 281 U.S. 312 (1930); State
v. Bobo, 814 S.W.2d 353, 359 (Tenn. 1991). Generally speaking, the waiver "must be clearly and
convincingly shown" by the record. See generally State v. Tidwell, 775 S.W.2d 379, 386 (Tenn.
Crim. App. 1989); Lee v. State, 560 S.W.2d 82, 84 (Tenn. Crim. App. 1977). "If the defendant sees
fit to waive [the right to trial by jury], it is permissible provided that waiver is made in accordance
with the safeguards provided by the constitution and implementing statutes or rules of criminal
procedure." Bobo, 814 S.W.2d at 359. On appeal, this court is bound to accept the trial court's
factual findings unless the evidence preponderates against those findings. State v. Kelly, 603 S.W.2d
726, 729 (Tenn. 1980).

        In this instance, the record establishes that the petitioner and the other defendants signed a
"Waiver of Rights and Plea of Guilty." As part of the written proposal made by the state, the
defendant signed a document providing that "sentencing will be strictly within the sound discretion
of the trial court." The document is dated February 20, 1998, and is approved by the signatures of
each of her two attorneys. The petitioner signed an acceptance of the written plea offer and an
acknowledgment of the specific waiver:

        Furthermore, having been advised of my constitutional rights, I freely and voluntarily
        waive my right to a trial by jury, my right not to be compelled to incriminate myself,
        my right to have a jury impose any fine in excess of $50, and all other rights
        explained to me. I hereby submit my case to the trial judge for decisions, both as to
        guilt and punishment.

        After the trial court approved the guilty plea and imposed sentence, the petitioner failed to
file a motion to withdraw the guilty plea and failed to present the issue on direct appeal. Tennessee
Code Annotated section 40-30-206(g) provides that, with few exceptions, none of which appear to
be applicable, a "ground for relief is waived if the petitioner personally or through an attorney failed
to present it for determination in any proceeding before a court of competent jurisdiction in which
the ground could have been presented." See also House v. State, 911 S.W.2d 705 (Tenn. 1995), cert.
denied, 517 U.S. 1193, 116 S. Ct. 1685 (1996). More importantly, the transcript of the guilty plea


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proceeding, the sentencing hearing, and the evidentiary hearing on the petition for post-conviction
relief established that the petitioner expressly waived her right to a sentencing hearing before a jury
and properly asked that the trial court undertake that responsibility.

                                                   II
        Next, the defendant argues that her pleas were neither knowingly nor voluntarily made. She
argues that a "package deal" by its very nature is designed to coerce less culpable individuals to feel
responsible for the lives of others and that a decision made under these circumstances cannot be
voluntary.

        Under the terms of the Post-Conviction Procedure Act, a petitioner bears the burden of
proving her allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The
credibility of the witnesses and the weight and value afforded to their testimony are appropriately
addressed in the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). On
appeal, the burden is on the petitioner to establish that the evidence preponderated against the
findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). Otherwise,
the findings of fact by the trial court are conclusive. Graves v. State, 512 S.W.2d 603, 604 (Tenn.
Crim. App. 1973).

        In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court ruled that
defendants should be advised of certain of their constitutional rights before entering pleas of guilt.
Included among those required warnings are the right against self-incrimination, the right to confront
witnesses, and the right to a trial by jury. Id. at 243. The overriding Boykin requirement is that the
guilty plea must be knowingly and voluntarily made. Id. at 242. If the proof establishes that the
petitioner was aware of his constitutional rights, he is entitled to no relief. Johnson v. State, 834
S.W.2d 922, 926 (Tenn. 1992). "[A] plea is not 'voluntary' if it is the product of '[i]gnorance,
incomprehension, coercion, terror, inducements, [or] subtle or blatant threats . . . .'" Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).

         The holding in Boykin does not mandate a verbatim explanation of the rights at issue.
Instead, it requires only that the record affirmatively show that there was a voluntary and knowing
entry of the guilty pleas. The pleas must represent "a voluntary and intelligent choice among the
alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31
(1970); see Clark v. State, 800 S.W.2d 500 (Tenn. Crim. App. 1990). A plea cannot be voluntary
if the accused is "'incompetent or otherwise not in control of his mental facilities.'" Blankenship, 858
S.W.2d at 904 (quoting Brown v. Perini, 718 F.2d 784, 788 (6th Cir. 1983)). The totality of the
circumstances to be considered include the relative intelligence of the defendant, the degree of
familiarity with criminal proceedings, whether the defendant was represented by competent counsel
with the opportunity to confer about the various alternatives available, knowledge of the criminal
charges lodged, and the reasons for the decision to plead guilty, including any desire to avoid a
greater penalty that might result from a jury trial. Powers v. State, 942 S.W.2d 551, 556 (Tenn.
1996).



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        In this state, "package deals" have been approved as an acceptable means of reaching a plea
agreement. In State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988), this court recognized
the legitimacy of the concept. Several cases before and since have done the same. In Parham v.
State, 885 S.W.2d 375 (Tenn. Crim. App. 1994), a contingent plea offer was found not to have
coerced a guilty plea. See also Netters v. State, 957 S.W.2d 844 (Tenn. Crim. App. 1997); Hodges
v. State, 491 S.W.2d 624 (Tenn. Crim. App. 1972).

         In this instance, the record demonstrates that the petitioner was intelligent and also familiar
with criminal proceedings. She made straight A's in elementary school and until the seventh grade
had been a good student, although at age 14 she was hospitalized for psychiatric care. For a period
of eleven days, she continued outpatient therapy, received medication, and had improved.
Psychiatrist Robert Sadoff, employed by the defense, determined that the petitioner was not insane
at the time of the crimes and, while exhibiting symptoms of a bipolar disorder, was not out of touch
with reality and did not suffer from psychosis. The record establishes that the petitioner had able
attorneys who met with her often and discussed the various trial and sentencing alternatives. At the
conclusion of the sentencing hearing, the trial judge described the petitioner as "the instigator and
orchestrator of the trip and the things that led to the death of the Lillelids . . . an active part[icipant]
in the kidnapping of the Lillelids at the rest area." It was the petitioner, the record indicates, who
suggested that guns be obtained during the course of the trip.

       Under these circumstances, the petitioner faced a significant likelihood of the death penalty.
Whether the motivation was to escape her own death or assist the others in doing so, the
circumstances suggest that the guilty pleas were knowingly, voluntarily, and intelligently made, a
reasonable choice among the limited and potentially disastrous alternatives available. In short, the
evidence does not preponderate against the trial court's conclusion that the petitioner's pleas were
properly entered.

                                                   III
        As her last issue, the petitioner argues that her attorneys were ineffective. She submits that
rather than relying upon the written report of Dr. Sadoff, her attorneys should have presented him
to the trial court as a live witness. The petitioner also complains that her trial attorneys failed to
provide adequate mitigation evidence and failed to lodge objections to the improper statements of
an attorney representing Crystal Sturgill, one of her co-defendants, who made references to Satanism
and witchcraft. The petitioner argues that the inappropriate references to her interest in the occult
resulted in her receiving a longer sentence than she otherwise merited. The petitioner also complains
about her attorneys' lack of explanation regarding the significance of the waiver of certain of her
constitutional rights and their relative acquiescence to a group, rather than individualized, sentencing
concept.

       In order for the petitioner to be granted relief on grounds of ineffective assistance of counsel,
she must establish that the advice given or the services rendered were not within the range of
competence demanded of attorneys in criminal cases and that, but for her counsel's deficient
performance, the result of her trial would have been different. See Strickland v. Washington, 466


                                                    -7-
U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This two-part standard,
as it applies to guilty pleas, is met when the petitioner establishes that, but for counsel's errors, she
would not have pled guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985).

          This court must indulge a strong presumption that the conduct of the defense attorneys at the
trial falls within the range of reasonable professional assistance and must evaluate their performance
from their perspective at the time of the alleged deficiencies and in light of the totality of the
evidence. Strickland, 466 U.S. at 690. The petitioner must demonstrate that there is a reasonable
probability that but for counsel's deficient performance, the result of the proceedings would have
been different. Id. at 695.

        This court has been unable to conclude from the record how the sentence might have been
different had Dr. Sadoff appeared in person as a witness. The petitioner failed to produce Dr. Sadoff
at the evidentiary hearing on the post-conviction petition. Typically, that is the only way to establish
any prejudice by virtue of the failure to call a witness at trial. Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990); Holt v. State, No. M2000-01063-CCA-R3-PC (Tenn. Crim. App., at
Nashville, Oct. 30, 2000).

        At the sentencing hearing, the state was able to establish that by the time the petitioner had
begun the sixth grade, she had practiced self-mutilation, dressed in dark clothing, painted her
fingernails black, and worn dark eye and lip makeup. By 16, she was involved in theft by passing
worthless checks. While denying that her wedding was "Satanic," the petitioner and her husband,
who were married only 10 months, dressed in "Gothic clothing" and the bridesmaids were "chained
together." There was also evidence that the petitioner claimed to be able to communicate with Karen
Howell, whom she described as her "soul mate," during out-of-body experiences. There was proof
that the two had cut themselves the night before the Lillelid murders and had drunk each other's
blood.

        Although the petitioner argues that her trial attorneys' reliance upon her youth and her lack
of direct responsibility for the shootings qualified as mitigation evidence, she maintains that the
establishment of a legitimate theory of defense did not relieve them of the duty to present other
evidence effectively. The petitioner does not point out any particular deficiencies in their
presentation, however, and this court can only guess at how counsel might have done better. It is
evident that the record of the sentencing hearing contained more information on the petitioner than
perhaps any of the other defendants. There was proof of a troubled childhood, the lack of a father
figure, and an irresponsible mother. The near death of her grandmother when she was six was a
troubling experience. The petitioner's mother had a nervous breakdown and physical problems. The
petitioner experienced bouts of bulimia and depression. By age 13, the petitioner was sexually active
and a year later was hospitalized for psychiatric care and was prescribed Prozac and lithium. By age
15, she abused heroin, ecstacy, cocaine, and acid. By age 17, she was married for a short period of
time, and after the divorce, homeless, living on the streets of New Orleans, where she claimed to
have been beaten and gang-raped. Dr. Sadoff provided helpful information, diagnosing the petitioner


                                                  -8-
as showing symptoms of a bipolar disorder and a mixed personality and dissociative disorders.
While neither insane nor out of touch with reality, the petitioner was described by Dr. Sadoff as
having been emotionally disturbed for several years. In summary, the record demonstrates that the
attorneys for the petitioner made significant effort to fully develop the mitigating circumstances
applicable. The effort was certainly in compliance with professional standards.

        Further, because the proof was already in the record, it is doubtful that comments by Attorney
Eichelman, who objected to references of "drinking blood" for fear that his client would be
implicated, had any effect on the sentence. Certainly, the petitioner's attorneys had no control over
those statements, which in the context of the other testimony presented to the trial judge during the
sentencing hearing, were hardly prejudicial.

        Although the petitioner argues that her attorneys did not adequately explain the significance
of the waiver of her constitutional rights, the record demonstrates otherwise. Finally, the record also
establishes that her defense attorneys made every effort to persuade the trial judge to impose an
individualized sentence, one more lenient than those ordered for the other defendants. In that regard,
there were no deficiencies in the effort.

       Accordingly, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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