            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                                AT KNOXVILLE                       August 23, 1999

                                                                  Cecil Crowson, Jr.
                             JANUARY 1999 SESSION                 Appellate C ourt
                                                                      Clerk



JAMES FRANKLIN WAMPLER, *            C.C.A. # 03C01-9712-CR-00542

             Appellant,         *    KNOX COUNTY

VS.                             *    Hon. Richard Baumgartner, Judge

STATE OF TENNESSEE,             *    (Post-Conviction)

             Appellee.          *




For Appellant:                       For Appellee:

Mark E. Stephens                     John Knox Walkup
District Public Defender             Attorney General & Reporter
Sixth Judicial District
                                     Elizabeth B. Marney
Paula R. Voss                        Assistant Attorney General
(on appeal)                          425 Fifth Avenue North
John Halstead                        Cordell Hull Building, Second Floor
(at trial)                           Nashville, TN 37243
Assistant Public Defenders
1209 Euclid Avenue                   Randall E. Nichols
Knoxville, TN 37921                  District Attorney General
                                     Marsha Selecman
                                     Assistant Attorney General
                                     City-County Building
                                     Knoxville, TN 37902




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The petitioner, James Franklin Wampler, appeals the trial court's

denial of his petition for post-conviction relief. He claims he received ineffective

assistance of counsel because his attorney failed to raise the following issues on

appeal:

              (1) that the state may have learned about the existence
              of one of its witnesses from notes stolen from defense
              counsel;

              (2) that one of the jurors should have been disqualified;

              (3) that the evidence was insufficient to support a first
              degree murder conviction; and

              (4) that the trial court provided erroneous jury
              instructions on the issue of passion.



              We affirm the judgment of the trial court.



              The petitioner was convicted for the robbery and murder of forty-nine-

year-old George Ashe, the manager of an AAMCO Transmission Service Center.

On August 18, 1987, Donald Lines, the owner of the business, had wired $2,400.00

from Pensacola, Florida, to the victim in Knoxville via W estern Union. That evening,

the petitioner and the victim were seen together at a Darryl's Restaurant. On the

following day, the defendant was seen in possession of some of the same

denomination of bills the victim had received at Western Union and a money clip

and two gold necklaces which belonged to the victim. Other circumstantial

evidence, including the testimony of Jessie Hurst who confirmed that the petitioner

had purchased a .38 pistol from him a few weeks before the murder, led to the

convictions. The murder weapon was a .38. Prior to his arrest, the petitioner

evaded authorities, first by taking a job in Nashville and then by leaving that city

when he learned he was wanted by authorities. There was proof that the petitioner


                                           2
made incriminating statements to the victim's brother, Malcolm Ashe; that he

confessed to a jail inmate that he shot the victim and had stolen his money and

money clip; and that he made conflicting statements to the police during his pretrial

incarceration.



              The petitioner was convicted of first degree murder and robbery by a

deadly weapon. The trial court imposed a sentence of life plus ninety-nine years.

On direct appeal, this court affirmed the convictions and the supreme court denied

review. State v. James Franklin Wampler, No. 03C01-9101-CR-21 (Tenn. Crim.

App., at Knoxville, Sept. 6, 1991), app. denied, (Tenn., Feb. 24, 1992). Initially, the

petitioner was represented by Attorney Leslie Jeffress. At trial, he was represented

by Attorney Ronald Smith. Attorney James A.H. Bell represented the petitioner at

his motion for new trial and on direct appeal.



              At the post-conviction evidentiary hearing, the petitioner testified that

at his first meeting with Attorney Jeffress, he gave Jeffress a list of names of

individuals who might have information that would be harmful to his case if called as

witnesses. He stated that one of the names on the list was that of Hurst, who later

testified at trial that he had sold the petitioner a .38 caliber weapon. Because Hurst

was not listed on the indictment, Attorney Smith was surprised when the state

amended the indictment after the beginning of the trial and called Hurst as a

witness. The petitioner claims that his trial counsel was ineffective for having failed

to seek a suppression of Hurst's testimony who, he contends, would not have been

discovered by the state absent the theft of Jeffress' notes. He also argues that his

appellate counsel should have raised the issue on direct appeal.



              The record indicates that the notes were discovered in the possession


                                           3
of Malcolm Ashe and filed under seal in the trial court. At the evidentiary hearing,

David Jennings, a Knox County Assistant District Attorney General, testified that

neither the law enforcement officials nor the staff of the district attorney saw the

notes. He asserted that the state learned of Hurst from an independent source.

The trial court accredited Jennings' testimony and further concluded as follows:

              [T]his issue was fully and completely dealt with in the
              Motion for New Trial. Indeed the trial judge spent
              considerable time considering this issue and even
              continued the Motion for New Trial to give defendant's
              appellate attorney an opportunity to fully investigate the
              matter. Mr. Bell did indeed investigate the matter
              thoroughly and reported his findings to the Court. That
              investigation revealed that the prosecution did not review
              the information that the victim[']s brother attempted to
              provide to them, and that the defendant had not been
              prejudiced by Mr. Ashe's actions. This issue has been
              fully and completely examined, and this Court finds no
              merit in this claim.



              When a petitioner seeks post-conviction relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered

or the advice given was below "the range of competence demanded of attorneys in

criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, he

must show that the deficiencies "actually had an adverse effect on the defense."

Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to

establish either factor, he is not entitled to relief. Recently, our supreme court

described the standard of review as follows:

              Because a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice
              provides a sufficient basis to deny relief on the ineffective
              assistance claim. Indeed, a court need not address the
              components in any particular order or even address both
              if the defendant makes an insufficient showing of one
              component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).




                                           4
              On claims of ineffective counsel, the petitioner is not entitled to the

benefit of hindsight, may not second-guess a reasonably based trial strategy, and

cannot criticize a sound, but unsuccessful, tactical decision made during the course

of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the

choices are made after adequate preparation for the case. Cooper v. State, 847

S.W.2d 521, 528 (Tenn. Crim. App. 1992). On appeal, any findings of fact made by

the trial court are conclusive and will not be disturbed unless the evidence contained

in the record preponderates against them. Brooks v. State, 756 S.W.2d 288, 289

(Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence

preponderates against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn.

Crim. App. 1978). This court may not reweigh or reevaluate the evidence or

substitute its inferences for those drawn by the post-conviction court. Questions

concerning the credibility of witnesses and weight and value to be given their

testimony are for resolution by the post-conviction court. Black v. State, 794 S.W.2d

752, 755 (Tenn. Crim. App. 1990).



              Initially, the trial court determined that the issue of the stolen notes had

been previously determined on the motion for new trial. Additionally, the petitioner

was unable to prove any link between the state's identification of Hurst as a witness

and the stolen notes. Moreover, the opinion on direct appeal documents the fact

that the petitioner complained of his trial counsel's ineffectiveness on a number of

grounds, including the failure to file pretrial motions under Rule 12, Tenn. R. Crim.

P. Wampler, slip. op. at 10. Most importantly, however, the evidentiary hearing

supports the findings of fact by the trial court that the petitioner was effectively

represented both at trial and on direct appeal. Thus, the evidence does not

preponderate against the findings of the trial court.


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              Next, the petitioner argues that his counsel was ineffective for having

failed to raise the issue of juror misconduct. After one and one-half hours of

deliberations, the foreman of the jury sent the following note to the trial judge:

              One of the jurors possibly knows one of the witnesses.
              He says it probably will affect his decision. The witness
              is Christine Gregory. The juror is Robert Ellison.

The petitioner contends that by allowing juror Ellison to continue, the trial court

deprived him of a fair and impartial jury and permitted a non-unanimous verdict.

U.S. Const. amend. XIV; Tenn. Const., art. I, § 8; Tenn. R. Crim. P. 31.



              The trial court found as follows:

                     When the Trial Court received the note[,] the
              Judge apprised both the prosecution and defense
              lawyers of its[] contents. Mr. Smith, defendant's trial
              counsel, moved the Court for a mistrial at that point. The
              Trial Court denied defense counsel's request for a
              mistrial and re-instructed the jury on the standard closing
              instruction in which he told them that nothing but the law
              and the evidence could have any influence on their
              verdict. The jury continued deliberations and shortly
              returned a verdict of guilty.

                     Following the jury verdict Mr. Jennings, the
              prosecutor, and Mr. Smith interviewed the jury foreman
              and the juror who had raised the possibility that he knew
              one of the witnesses. Both of those individuals assured
              Mr. Smith and Mr. Jennings that the jury verdict had not
              been tainted .... Those interviews were tape recorded
              and transcribed and are part of the record in this case.
              This Court is convinced that trial counsel acted
              appropriately under the circumstances, and that no
              prejudice was suffered by the defendant. Therefore this
              Court finds no merit to this issue.



              After the trial, juror Ellison testified that his decision was based solely

on the facts presented at trial and that he was not influenced by his connection

between the witness, Christine Gregory (who testified she saw the petitioner in

possession of about $1,000.00 in cash and two gold chains on the night after the

murder), and a cousin of the juror's wife by the same name. The jury foreman,

                                            6
Marshall Conner, confirmed the veracity of juror Ellison's testimony. At the

evidentiary hearing, Attorney Bell testified that he considered the question a non-

issue and without merit as a possible ground on appeal.



              Juror disqualifications are based upon either (1) propter defectum or

(2) propter affectum. Partin v. Henderson, 686 S.W.2d 587 (Tenn. App. 1984).

Objections based on general disqualifications, such as familial relationship, are

within the propter defectum class and as such, must be challenged before a verdict.

Id. at 589. In contrast, disqualification based on propter affectum exists due to

some bias or partiality toward one party in the litigation. Id.; Toombs v. State, 270

S.W.2d 649, 651 (Tenn. 1954). Propter affectum objections may be made after the

return of the jury verdict. Id.; Durham v. State, 188 S.W.2d 555, 557 (Tenn. 1945).

Because the defendant claims bias or partiality in favor of the state, this is a case of

propter affectum. State v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990).



              The trial court found as a matter of fact that juror Ellison had not been

affected during the deliberation by his knowledge of Ms. Gregory. There is nothing

in the record to indicate that the alleged bias affected the verdict in any way.

Because the evidence does not preponderate against that conclusion, we find no

merit to the claim.



              The petitioner also claims that juror Ellison's bias toward witness

Gregory denied him a unanimous verdict. The circumstances here, however, are

vastly different from those in State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), where

proof of multiple offenses was presented to the jury from which the jurors were left

to choose independently upon which offenses to convict. Juror Ellison testified that

his verdict of guilty was based on the facts and not any opinion he held toward one


                                           7
of the witnesses. The state offered proof of one murder and one robbery. There

was no requirement that the state make an election and, therefore, no lack of

unanimity. See also Schad v. Arizona, 501 U.S. 624 (1991) (a jury need not agree

on which overt act, among several possible alternatives, was the means by which a

crime was committed).



              Finally, the petitioner complains that his counsel was ineffective at trial

and on appeal for failing to argue that the proof was insufficient to support first

degree murder in the context of the jury charges on premeditation and deliberation.

See State v. West, 844 S.W.2d 144 (Tenn. 1992). He argues that the circumstantial

evidence could have been just as easily interpreted as a killing "in the heat of

passion" and, therefore, a lesser degree of homicide. The petitioner also suggests

that the jury instructions, which provided that "passion does not always reduce the

crime below first degree" were improper and should have been challenged at trial

and on appeal.



              The trial court concluded that the instructions as to premeditation and

deliberation, given prior to the decision in State v. Brown, 836 S.W.2d 530 (Tenn.

1992), accurately reflected the law at the time of the offense. See Lofton v. State,

898 S.W.2d 246 (Tenn. Crim. App. 1984). In this appeal, the petitioner does not

dispute that ruling. Instead, he argues that the jury instruction on passion was

improper, claiming that "the jury must have been able to find that the [petitioner]

acted without passion." State v. Bullington, 532 S.W.2d 556 (Tenn. 1976).



              The instructions, in pertinent part, included the following:

                     The mental state of the accused at the time he
              allegedly instigated the act, which resulted in the alleged
              death of the deceased must be carefully considered, in
              order to determine whether the accused was sufficiently

                                            8
              free from excitement and passion to be capab[le] of
              premeditation.
                      Passion does not always reduce the crime below
              murder in the first degree, since a person may deliberate,
              may premeditate, and may intend to kill, after
              premeditation and deliberation, although prompted and,
              to a large extent, controlled by passion at the time.
                      If the design to kill was formed with deliberation
              and premeditation, it is immaterial that the accused may
              have been in a passion or excited state when the design
              was carried into effect.



              The elements of premeditation and deliberation may be inferred from

the circumstances of the killing. McGill v. State, 475 S.W.2d 223 (Tenn. Crim. App.

1971). The act must have been formed with a cool purpose, deliberately conceived

in the mind of the accused, in order to rise to the level of murder in the first degree.

Bullington, 532 S.W.2d at 559. If, however, the purpose was conceived "in the heat

of passion, the accused, to be guilty of first degree murder, must have committed

the act after the passion subsided." Id. In our view, the jury instructions, as a

whole, provided the proper standard at the time of trial. The instructions explain

that, so long as the mind was free of passion when the intent to kill was formed,

passion during the act does not reduce the murder from first degree. Moreover,

appellate counsel did challenge the sufficiency of the evidence as an issue on direct

appeal. In the opinion on direct appeal, this court specifically addressed the

question and concluded that the proof met the requirement of Rule 13(e), Tenn. R.

App. P. This issue has no merit.



              Accordingly, the judgment is affirmed.



                                           __________________________________
                                           Gary R. Wade, Presiding Judge




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CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
John K. Byers, Senior Judge




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