         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  September 9, 2008 Session

               EDDIE LEE DOUGLAS v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                         No. 06-01-0266   J. Weber McCraw, Judge



                   No. W2008-00395-CCA-R3-PC - Filed October 21, 2008


The petitioner, Eddie Lee Douglas, appeals the denial of his petition for post-conviction relief from
his second degree murder conviction, arguing that he received ineffective assistance of trial counsel
and that his guilty plea was therefore unknowing and involuntary. Following our review, we affirm
the judgment of the post-conviction court denying the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE
R. MCMULLEN , JJ., joined.

Gary F. Antrican, District Public Defender, and Jeff Lee, Assistant Public Defender, for the
appellant, Eddie Lee Douglas.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; D.
Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS

        On August 16, 2006, the petitioner pled guilty in the Hardeman County Circuit Court to
second degree murder for the stabbing death of the victim, Roger Spencer. The prosecutor recited
the following factual basis for the plea:

               Your Honor, if this matter had gone to trial, the State would have introduced
       proof that on or about the 19th day of May, 2006, officers from Whiteville Police
       Department were dispatched to 138 Simmon Street there at Whiteville in Hardeman
       County regarding a stabbing. Officer Smalley was the first on the scene, observed
        a black male subject identified as Roger Spencer lying on the floor in the living
        room; observed that Mr. Spencer was bleeding severely from multiple wounds.

                The victim was breathing at that point in time. . . . He was pronounced dead
        later that evening.

                Other officers responded and got statements from people on the scene. . . .
        [T]he witnesses told the investigators that the victim . . . and the [petitioner] . . . had
        gotten into an argument and a fight ensued. That fight broke up and they sat down.
        It seemed at some point [the petitioner] went into the kitchen and retrieved a knife.
        Later in the evening, a fight between them broke out again and the [petitioner] . . .
        stabbed [the victim] numerous times.

               The [petitioner] was picked up. He subsequently showed law enforcement
        where he disposed of the weapon that was used. He gave a statement to law
        enforcement that night. As they were preparing to transport [the petitioner] to the
        Hardeman County Jail, they told him, “We have to put handcuffs on you” and his
        statement was, “ Yeah, you better put handcuffs on me ‘cause they’d get mad if you
        brought a murderer into the jail not cuffed.”

         At the conclusion of the sentencing hearing, the trial court sentenced the petitioner to twenty-
one years at 100 percent in the Department of Correction. The petitioner subsequently filed a pro
se petition for post-conviction relief, claiming that he received ineffective assistance of trial counsel
and that his guilty plea was unknowing and involuntary. Following the appointment of post-
conviction counsel, he filed an amended petition in which he alleged that counsel was ineffective
for, among other things, failing to adequately investigate the case and failing to effectively or
adequately communicate with the petitioner. Specifically, he alleged that counsel’s investigation
“was lackadaisical,” causing her to ignore or overlook evidence and potential beneficial witnesses,
including those whose names had been provided by the petitioner. He further alleged that counsel,
having met with him only one time outside the courtroom, rushed him into entry of his plea without
fully informing him of his choices, the elements of the offenses, or the full ramifications of his plea.

        At the January 30, 2008, evidentiary hearing, trial counsel, who was retained by the
petitioner, testified that she spent approximately an hour interviewing him in the jail and then met
with him for about an hour and a half on the day he entered his plea. The petitioner provided her
with the nicknames for some witnesses, such as “Eat ‘Em Up,” but did not give her any full names
or addresses. The police, however, had collected statements from the eyewitnesses, and counsel
reviewed those statements, as well as the police reports and other information she received in
discovery, with the petitioner before he entered his plea. She did not interview any of the witnesses
herself and did not recall the name Eric Tisdale.




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         Trial counsel testified that she explained to the petitioner that he faced a choice of accepting
the State’s offer of pleading guilty to second degree murder with the sentence to be determined by
the trial court or being indicted for first degree premeditated murder and proceeding to trial:

        That’s the day we went over all the discovery that I was given, all the statements of
        the witnesses, the officers’ reports, and that day I told him that the offer was he could
        do the criminal information to second degree murder, if he did not take that, then he
        was going to be indicted on first degree murder, and the death penalty had been
        mentioned.

        Trial counsel testified that she explained the elements of first and second degree murder, the
differences in sentencing, and the potential enhancement factors that could be applied. She also
explained that the State would use the petitioner’s retrieval of the knife and the fact that he stabbed
the victim fourteen times as proof of premeditation. She said she discussed the possibility of moving
to suppress the petitioner’s statement, given his drug and alcohol use at the time, but the prosecutor
informed her that he would seek an indictment for first degree murder if she filed a motion to
suppress. According to her agreement with the prosecutor, the petitioner had to plead guilty by
information prior to the first Thursday in September, the day that indictments were presented to the
grand jury. Therefore, time was of the essence in the petitioner’s acceptance of the plea agreement.
Though unhappy, the petitioner understood the choices he faced:

        He was upset, of course, because this was his friend but he understood that he could
        either go to trial on first degree murder where the death penalty or life without
        possibility of parole or life imprisonment was at issue, or second degree murder
        where he could be sentenced between 15 and 25 years at 100 percent.

Trial counsel believed the differences in the penalties associated with convictions for first and
second degree murder played a large role in the petitioner’s decision to plead guilty. She said she
did not recall the petitioner’s having had any problems with a toothache.

        On redirect examination, trial counsel testified that she believed she discussed with the
petitioner how voluntary intoxication can affect premeditation but could not specifically recall the
conversation. She also could not recall the specific language she used when explaining to him the
differences between first and second degree murder. On recross-examination, she agreed that the
petitioner’s intoxication had not prevented him from summoning help for the victim, walking to the
police station to turn himself in, or showing officers where he had disposed of the weapon.

         Eric Glenn Tisdale, Sr., who said he had been a friend of both the victim and the petitioner,
testified that the second fight between the men began when the group was listening to music and the
victim suddenly dove on top of the petitioner. He said he saw the petitioner punching at the victim
but never saw him with a knife. Tisdale testified that he did not make any statement to the police
and that trial counsel never contacted him.



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        The petitioner testified that he “had the knife from the first fight” but had forgotten he had
it. He said that when he got up to leave, the victim jumped on him and began choking him. He
warned the victim that he had a knife and asked him to let him go, but the victim continued his
chokehold. Finally, he “just got weak or tired” and began stabbing the victim. The petitioner
insisted that he never planned to kill the victim but instead was “just trying to get him off . . . to
survive.”

        The petitioner testified that he gave both the police and trial counsel the names of twelve or
thirteen eyewitnesses to the fight. He did not know if trial counsel ever talked to those individuals
but knew that she never spoke to Eric Tisdale, despite his having given her his name. He said that
trial counsel came to see him only once in the jail, for thirty or forty minutes, and never explained
the elements of second degree murder. On the day that he entered his plea he thought that he was
going to the dentist to have his teeth extracted and was surprised when he arrived at court. He said
he wanted to go to trial, but trial counsel convinced him that he would be better off taking the plea
offer. He stated, however, that he felt rushed into accepting the plea.

       The petitioner testified that when he filled out the paperwork for the plea, trial counsel told
him that sentencing at 30 percent release eligibility “was out” but that he might get 45 or 65 percent.
He said she never discussed enhancement factors with him, and he was “never worried” that he
would be sentenced at 100 percent. Had he understood the plea agreement, he would never have
accepted it but instead would have gone to trial.

        On February 6, 2008, the post-conviction court entered an order denying the petition for post-
conviction relief. Accrediting the testimony of trial counsel and noting the overwhelming evidence
against the petitioner, the post-conviction court found that trial counsel was not deficient in her
representation and had likely negotiated the best possible deal under the circumstances. The court
further found that the petitioner fully understood the nature and consequences of the plea agreement.
Accordingly, the court concluded that the petitioner failed to show that he was denied the effective
assistance of counsel or that his plea was unknowing and involuntary.

                                            ANALYSIS

                             I. Post-Conviction Standard of Review

        Post-conviction relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Id. § 40-30-110(f). When
an evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court
are conclusive on appeal unless the evidence preponderates against them. See Wiley v. State, 183
S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh
the evidence and will instead defer to the trial court’s findings as to the credibility of witnesses or
the weight of their testimony. Id. However, review of a trial court’s application of the law to the


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facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,
96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of
fact and law, is reviewed de novo, with a presumption of correctness given only to the
post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001);
Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                               II. Ineffective Assistance of Counsel

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
same standard for determining ineffective assistance of counsel that is applied in federal cases also
applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In the context of a
guilty plea, the petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); House v. State,
44 S.W.3d 508, 516 (Tenn. 2001).

        On appeal, the petitioner contends that trial counsel was ineffective for advising him to plead
guilty to second degree murder when he “could have refuted the first degree mens rea through
witnesses, self-defense, and voluntary intoxication.” The petitioner argues that, had counsel
informed him that voluntary intoxication can negate a premeditated and intentional killing and
interviewed Tisdale, who could have provided testimony in support of a theory of self-defense, he
would not have pled guilty but instead would have gone to trial with the “likelihood that further
witnesses and voluntary intoxication would have provided a defense.” The State argues that the


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post-conviction court properly found that the petitioner failed to prove his claims by clear and
convincing evidence. We agree with the State.

         In denying relief on this claim, the post-conviction court specifically accredited the testimony
of trial counsel with respect to her preparation for the case and the information she communicated
with the petitioner. Conversely, the court found that Tisdale was not credible, noting that although
he testified that he witnessed the fight, he “incredibly did not see the victim get stabbed fourteen
times as the facts indicated.” The post-conviction court’s order states in pertinent part:

                The Court finds that [trial counsel] provided adequate assistance; she met
        with petitioner and discussed the case, including possible sentences. [Trial counsel]
        successfully fought a first degree murder indictment and conviction. Petitioner failed
        to show any deficient performance by [trial counsel] or that [he] was prejudiced. The
        entry of a plea of guilty to avoid the risk of a greater sentence does not make a plea
        involuntary.

        The record fully supports the findings and conclusions of the post-conviction court. As the
post-conviction court observed, trial counsel was faced with a case in which there was overwhelming
evidence against the petitioner, including numerous eyewitnesses who observed the petitioner
retrieve the knife and stab the victim multiple times and the petitioner’s own statement to police in
which he admitted his responsibility for the killing. According to trial counsel, the petitioner never
provided her with Tisdale’s name as a potential witness. Even had she interviewed him, it is highly
doubtful that his testimony would have been sufficient for a jury to find that the petitioner acted in
self-defense or did not premeditate the killing given the other eyewitnesses’ testimony and the
undisputed fact that the victim sustained fourteen separate stab wounds. We conclude, therefore,
that the petitioner has not met his burden of showing that trial counsel was deficient in her
representation or that he was prejudiced as a result.

                             III. Voluntary and Knowing Guilty Plea

         In an interrelated argument, the petitioner contends that he was precluded from entering a
knowing and voluntary guilty plea due to the inaccurate and incomplete advice of counsel, whose
failure to properly investigate the case caused her to ignore or overlook evidence of self-defense and
voluntary intoxication.

        When analyzing a guilty plea, we look to the federal standard announced in Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the state standard set out in State v. Mackey, 553
S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin, the
United States Supreme Court held that there must be an affirmative showing in the trial court that
a guilty plea was voluntarily and knowingly given before it can be accepted. 395 U.S. at 242, 89 S.
Ct. at 1711. Similarly, our Tennessee Supreme Court in Mackey required an affirmative showing
of a voluntary and knowledgeable guilty plea, namely, that the defendant has been made aware of
the significant consequences of such a plea. Pettus, 986 S.W.2d at 542.


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        A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial court
must determine if the guilty plea is “knowing” by questioning the defendant to make sure he or she
fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542; Blankenship, 858
S.W.2d at 904. Because the plea must represent a voluntary and intelligent choice among the
alternatives available to the defendant, the trial court may look at a number of circumstantial factors
in making this determination. Blankenship, 858 S.W.2d at 904. These factors include: (1) the
defendant’s relative intelligence; (2) his familiarity with criminal proceedings; (3) whether he was
represented by competent counsel and had the opportunity to confer with counsel about alternatives;
(4) the advice of counsel and the court about the charges against him and the penalty to be imposed;
and (5) the defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty
in a jury trial. Id. at 904-05.

        The record reveals that the forty-year-old petitioner, who reported that he dropped out of
school after the tenth grade but later obtained his GED, had a prior criminal history consisting of
several misdemeanor convictions, including two convictions for assault. Thus, he was familiar with
the criminal justice system at the time he entered his guilty plea. During the plea colloquy, the trial
court appropriately informed the petitioner of his constitutional rights and of the specific rights he
was waiving by pleading guilty. The petitioner assured the trial court that his counsel had thoroughly
discussed the plea agreement with him, that he fully understood its terms and the constitutional rights
he was waiving by entering his plea, and that he was not under the influence of alcohol or drugs. He
also informed the court that he believed trial counsel had adequately investigated the case and was
satisfied with her representation.

        At the evidentiary hearing, trial counsel testified that she reviewed with the petitioner the
evidence against him and informed him of the elements of first and second degree murder, along
with the range of penalties associated with the offenses. She also explained that if the petitioner did
not accept the plea offered by the State, the prosecutor intended to have him brought to trial on a first
degree murder indictment. Although the petitioner testified that he felt pressured into accepting the
plea, his evidentiary hearing testimony indicates that he nonetheless realized the choice was still his:

        And I wanted some time to think about it but everything was rolling, you know, so
        fast that they went down to Somerville and I asked her I didn’t have enough of time
        and she told me it was a one deal time [sic], if I didn’t take it today, sign those
        papers, it was going back up to first degree, and I couldn’t understand how it was
        going to go back up to first degree when you got it down from first degree to second
        degree. It was a lot of threats on me, just last minute, you know, I ain’t sure what I’m
        doing. “It’s up to you. Take it today or don’t. It’s going back up to first degree.
        You don’t want that.” Of course, you know, I didn’t want that. So I signed the
        papers.

        We conclude, therefore, that the record fully supports the post-conviction court’s findings
that the petitioner’s guilty plea was knowingly, intelligently, and voluntarily entered.


                                                  -7-
                                        CONCLUSION

        Based on our review, we conclude that the petitioner has not met his burden of showing that
trial counsel was ineffective in her representation or that his guilty plea was unknowing and
involuntary. Accordingly, we affirm the denial of the petition for post-conviction relief.



                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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