Opinion
No. M2002-02903-CCA-R3-CD.
Assigned on Briefs April 22, 2003.
Filed November 6, 2003.
Direct Appeal from the Circuit Court for Montgomery County; No. 40100263; Michael R. Jones, Judge.
Affirmed.
Edward Dewerff (at trial), Clarksville, Tennessee, and Patricia L. Snyder (on appeal), Nashville, Tennessee, for the Appellant, Randall Lee Wilmoth.
Paul G. Summers, Attorney General Reporter; Helena Walton Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Joe G. Riley and Norma McGee Ogle, JJ., joined.
OPINION
Following a Montgomery County Circuit Court jury conviction of attempted second-degree murder, the defendant, Randall L. Wilmoth, appeals and claims that his conviction resulted from the denial of effective assistance of counsel, that insufficient evidence supports the conviction, and that cumulative errors deprived him of a fair trial. Discerning no errors or violations of the defendant's rights, we affirm the judgment of the trial court.
The victim in this case, 27-year-old Quinn Mansfield, testified at the defendant's trial that on March 23, 2001, he resided at 116-A Hickory Grove, a duplex apartment, in Clarksville. He testified that in approximately late January 2001, the defendant, who needed a place to live, moved into the apartment. Although the two men had engaged in a homosexual relationship, the victim testified that for the month prior to March 23 they had been merely friends and roommates.
The defendant was employed by a firm performing contract communications installations at nearby Fort Campbell. At midday on March 23, the victim talked to the defendant by phone and told him about going the previous night to the bar where the victim had once been employed. He testified that the defendant returned home from work about 5:00 or 5:30 p.m., and the victim showed the defendant how to "burn" compact disks on the defendant's new computer. The defendant prepared dinner; the pair ate together and engaged in idle conversation. The victim testified that, when he told the defendant that he planned to reclaim his old job at the bar, the defendant disapproved because he did not get along with the bar's owner. Nevertheless, no argument ensued, and the defendant told the victim that he could do whatever he wanted.
Later in the evening, the victim said that he was going to take a shower and go to the bar. The defendant said he was retiring for the night. The victim testified that he closed the bathroom door and began showering. The defendant entered the bathroom, and the victim told him to leave. The victim testified that the defendant told him not to worry about it, and then the fully-clothed defendant entered the shower and began stabbing the victim in the abdomen with a knife. As the victim turned to get away, the defendant cut his throat. Then, as the victim turned again and began screaming, the defendant stuck the knife down the victim's throat. Ultimately, the victim escaped and ran to a neighbor's apartment for assistance. The victim then went to a hospital, where he was treated for four days.
The victim testified that his intestines extruded from the abdominal knife wounds, that he sustained two or three slices to his neck, and that the back of his throat bled and hurt from the knife insertion.
The victim testified that the defendant used a dull chef's knife that he had taken from the bottom of a kitchen drawer. Also, the victim's dog, which had the run of the house and was protective of the victim, was whining just before the defendant came into the bathroom.
The victim admitted on cross-examination that he had filed a personal injury lawsuit against the defendant. Also, he admitted that earlier on March 23, 2001, he had smoked marijuana.
The victim's neighbor, Michael Shrum, testified that on March 23, 2001, he heard a person screaming and the dog "going crazy" in the victim's apartment. Mr. Shrum was about to call 911 when the victim came running in, wearing only a towel and covered in blood. Mr. Shrum then called 911, and the victim waited outside for the medical personnel to arrive. Mr. Shrum did not see the defendant around the apartment at that time.
Clarksville Police Officer William Nalley responded to the March 23 call at 116 Hickory and found the victim standing outside, holding in part of his intestines. A knife was lying nearby.
The defendant did not testify at trial. The jury found the defendant guilty of attempted second-degree murder.
In the defendant's first issue, he complains that he was denied his right to effective assistance of trial counsel. Specifically, he claims that his trial counsel was ineffective because counsel failed to argue the case, failed to cross-examine prosecution witnesses, and conceded guilt of a lesser-included offense. The state counters these claims by positing that the defendant has waived the ineffectiveness issue by failing to include it in his motion for new trial and by presenting an insufficient appellate record for review of the issue. Alternatively, the state argues that, based upon the record, counsel's representation satisfied constitutional standards. We agree with the state that the issue has been waived, and moreover, we believe that our pretermission of the issue better serves the defendant's interests.
To be sure, the defendant was constitutionally entitled to effective representation by counsel. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The burden rests upon the defendant to establish a claim of ineffective assistance of counsel by clear and convincing evidence, whether he presents his claim in a petition for post-conviction relief or on direct appeal of his conviction. Tenn. Code Ann. § 40-30-110(f) (2003); State v. Burns, 6 S.W.3d 453, 461-62 n. 5 (Tenn. 1999).
The Tennessee appellate courts have repeatedly said that a claim of ineffective assistance of counsel is best presented in a petition for post-conviction relief. See, e.g., State v. Honeycutt, 54 S.W.3d 762, 766 n. 3 (Tenn. 2001); State v. Anderson, 835 S.W.2d 600, 607 (Tenn.Crim.App. 1992). We have cautioned that raising the issue "for the first time in the appellate court is a practice fraught with peril." Anderson, 835 S.W.2d at 606. The peril associated with the practice has two dimensions. First, ineffective assistance can rarely be established without an evidentiary hearing. See Strickland, 466 U.S. at 689-90, 694, 104 S.Ct. at 2065, 2067. Of course, post-conviction procedures afford an evidentiary hearing to a petitioner with colorable claims. See Tenn. Code Ann. §§ 40-30-109(a), 110 (2003). Second, raising the issue in the direct appeal could result not only in losing on appeal, but also in barring the claimant from raising the issue later in the post-conviction arena. See id. § 40-30-206(f), (h) (1997) (providing for dismissal of post-conviction claims that have been previously determined).
In the present case, we hold that the defendant has waived the issue on appeal because he failed to include it in his motion for new trial. See Tenn.R.App.P. 3(e). Via this holding, the defendant is not foreclosed from raising the issue in a petition for post-conviction relief. See Kirby George Wallace, No. 01C01-9308-CC-00275, slip op. at 5-7 (Tenn.Crim.App., Nashville, Sept. 15, 1994).
In his next issue, the defendant claims that the evidence is insufficient to support his convictions. We must disagree.
To assess the sufficiency of the convicting evidence, the appellate court determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Shaw, 37 S.W.3d 900 , 902-03 (Tenn. 2001); State v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000). The appellate court affords the prosecution the strongest legitimate view of the evidence and the benefit of all reasonable and legitimate inferences which may be drawn from the evidence, and we defer to the trier of fact to weigh the evidence and to resolve factual issues, including credibility issues. Shaw, 37 S.W.3d at 902-03.
A person commits attempted second-degree murder who, intending to kill another, engages in conduct that constitutes a substantial step toward knowingly killing the other person. Tenn. Code Ann. § 39-13-210(a) (1997) (second-degree murder); id. § 39-12-101(a)(3) (1997) (attempt).
In the present case, the defendant complains that the evidence of attempted second-degree murder emanated solely from the testimony of the victim. However, the victim's testimony clearly established the elements of the conviction offense, and it was the prerogative of the jury to accredit the victim's testimony. The victim identified the defendant as the assailant and described the grievous knife wounds inflicted by the defendant during the attack, some of which caused the extrusion of the victim's intestines. Also, the defendant sliced the victim's throat. The jury saw physical evidence of these wounds. Clearly, in the light most favorable to the state, the evidence showed that the defendant took a substantial step in knowingly killing the victim. As such, the evidence is sufficient.
Finally, the defendant claims that, due to the combination of trial errors, he was deprived of a fair trial. We have discerned, however, no errors to be combined. Accordingly, we reject this claim.
Finding no reversible error, we affirm the judgment of the trial court.