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04/03/91 STATE TENNESSEE v. JAMES MICHAEL KERLEY

April 3, 1991

STATE OF TENNESSEE, APPELLANT
v.
JAMES MICHAEL KERLEY, APPELLEE



From Cocke County, J. Kenneth Porter, Judge. Post-Conviction Relief.

Permission to Appeal Denied August 5, 1991,

William M. Dender, Special Judge. Robert K. Dwyer, Judge, Joe B. Jones, Judge, concur.

The opinion of the court was delivered by: Dender

This is an appeal as of right by the State from a judgment, entered by the trial court on October 27, 1989, setting aside the petitioner's conviction for first degree murder and granting his request for a new trial.

The issue presented for review is whether the trial court erred in granting the petition for post-conviction relief.

After a careful review of the record we respectfully conclude that the trial Judge did err; and the judgment below is reversed, and the petition is dismissed.

Attorney Laws was originally appointed to represent the petitioner in General Sessions Court, and she was later appointed to represent him in Criminal Court. The record reveals that Attorney Laws had received her license to practice law only a few months before this trial, even though she had clerked in a law office for some period of time before that, and had assisted in developing trial strategy and case investigation. The Judge also asked Attorney Ball, in whose office Attorney Laws was working, to assist her with this case, even though Attorney Ball was not formally appointed. Attorney Ball was in the U.S. Court of Appeals on the trial date in Criminal Court, and Attorney Dunn, who was from the same office and had tried 12 first degree murder cases previously, was appointed to assist in the trial of the case.

The original pro se petition for post-conviction relief, filed June 29, 1989, is based upon (1) ineffective assistance of counsel, (2) misconduct by the trial Judge and (3) misconduct of the prosecutor. We note that number (2) has been previously determined by this court, on direct appeal, by opinion entered September 9, 1986. Petitioner has not presented evidence, argument or citation of authorities in support of ground number (3). Accordingly this ground has been waived. Rule 10 (b), Rules of Ct. of Crim. App.

In the original pro se petition the ineffective assistance of counsel claim was based upon the following:

The trial attorney abrogated his duties to his client, by allowing motions to be heard in camera, not in open court as the law states. By not objecting to an erroneous charge to the jury by the court. By not insisting upon expert legal witnesses for the defense and by not making a proper investigation of the alibi of the defendant/petitioner.

Counsel was appointed to represent petitioner, and another petition for post-conviction relief was filed by counsel on October 23, 1989, and that petition alleged that ineffective assistance of counsel violated petitioner's Sixth Amendment rights. Paraphrasing petitioner's Sixth Amendment rights. Paraphrasing petitioner's grounds for his claim, he alleges that counsel:

(1) Did not attempt sufficient plea bargaining negotiations.

(2) Failed to file a motion for a mental examination.

(3) Failed to request a change of venue.

(4) Did not properly or adequately advise or confer with petitioner prior to trial, and did not request a continuance to enable Attorney Dunn to do so.

(5) Did not properly or adequately investigate the case, did not obtain expert proof concerning the eyesight of witness Ruel Gray, and did not object to certain photographs.

(6) Did not subpoena or call witnesses as to blood and mucus on the clothing of a co-defendant, petitioner's character, and petitioner's demeanor and actions during ...


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