ALVIN WALLER, JR.
STATE OF TENNESSEE
Assigned on Briefs August 2, 2016
from the Circuit Court for Madison County No. C-14-297 Donald
H. Allen, Judge
Petitioner, Alvin "A.J." Waller, Jr., appeals the
denial of post-conviction relief for his convictions of
especially aggravated kidnapping and aggravated assault. On
appeal, he argues that he received ineffective assistance of
counsel. After review, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
T. Howell, Jackson, Tennessee, for the Petitioner, Alvin
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; James G. (Jerry) Woodall,
District Attorney General; Shaun A. Brown and Alfred L.
Earls, Assistant District Attorneys General, for the
Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which John Everett Williams and Robert L. Holloway, Jr.,
CAMILLE R. McMULLEN, JUDGE
Petitioner was convicted by a Madison County jury of
especially aggravated kidnapping, aggravated assault, and
attempted voluntary manslaughter. The trial court merged the
attempted voluntary manslaughter conviction into the
aggravated assault conviction and sentenced the Petitioner to
a sentence of ten years for aggravated assault and thirty
years for especially aggravated kidnapping, to be served
concurrently. The Petitioner appealed, arguing that the
evidence was insufficient to support his convictions. After
review, this Court concluded that the evidence was
insufficient to support the attempted voluntary manslaughter
conviction, but otherwise affirmed the trial court's
judgment. State v. Alvin Waller, Jr., No.
W2012-02591-CCA-R3-CD, 2014 WL 1168610 (Tenn. Crim. App. Mar.
21, 2014), perm. app. denied (Tenn. Aug. 26, 2014).
facts underlying the Petitioner's convictions were
summarized by this court on direct appeal. Id. at
*1-4. In short, in the early morning hours of August 16,
2011, the victim was walking home when the Petitioner drove
up and offered her a ride. Id at *1. The victim had
met the Petitioner previously, although she had not seen him
in many years, and got into his car. Id. According
to the victim, the Petitioner drove them around for about
twenty minutes and then they parked and had consensual
intercourse in the car. Id. Afterwards, the victim
told the Petitioner she was leaving, to which the Petitioner
responded that she "wasn't going anywhere."
Id The victim exited the car and stated that she
would walk home instead. The Petitioner also exited the car
and threatened to shoot the victim unless she got back in the
car and had sex with him again. Id The victim
continued to refuse the Petitioner's demands, and after a
few minutes, the Petitioner shot her in the forehead.
Id The victim ran from the scene and was eventually
taken to the hospital where she was treated and later
identified the Petitioner to police as the man who had shot
her. Id at * 1-2.
Petitioner was originally indicted for attempted first degree
premeditated murder, aggravated assault and especially
aggravated kidnapping. The jury acquitted the Petitioner of
attempted first degree murder but found him guilty of the
lesser-included offense of attempted voluntary manslaughter
as well as aggravated assault and especially aggravated
kidnapping. The trial court merged the attempted voluntary
manslaughter conviction into the aggravated assault
conviction, and the Petitioner filed a motion for a new trial
or motion for acquittal challenging the sufficiency of the
evidence, which the trial court denied. Id at *4.
The Petitioner appealed to this Court claiming insufficiency
of the evidence on all three of his convictions.
direct appeal, this Court analyzed the Petitioner's
kidnapping related conviction pursuant to the Tennessee
Supreme Court's decision in State v. White, 362
S.W.3d 559 (Tenn. 2012), specifically concluding that the
aggravated assault occurred after the victim attempted to
escape the kidnapping and thus "was not incidental to
the aggravated assault." State v. Alvin Waller,
Jr., 2014 WL 1168610 at *5-7. Because the jury
instructions were not provided in the record on direct
appeal, and because the Petitioner did not raise any issue
regarding the jury instructions, this Court presumed the jury
was correctly instructed and proceeded with a sufficiency of
the evidence review rather than a harmless error analysis,
which is required when the jury is improperly instructed.
Id at *6, n.4. This Court reversed the
Petitioner's conviction for attempted voluntary
manslaughter but affirmed the Petitioner's remaining
convictions for especially aggravated kidnapping and
aggravated assault. Id at *10.
Petitioner filed a pro se petition for post-conviction relief
on November 26, 2014, followed by four amended petitions
filed from June 2015 to September 2015. In his petitions, the
Petitioner claimed, inter alia, that he received
ineffective assistance of counsel both at trial and on
appeal. Specifically, he claimed that counsel was ineffective
"in failing to seek an additional special jury
instruction on the issue of whether the confinement
associated with the kidnapping charge was 'essentially
incidental' to the accompanying felony offense of
aggravated assault." The jury instructions are now
provided in the record for the Petitioner's
post-conviction appeal and reflect that the jury was not
instructed pursuant to State v. White.
January 11, 2016 post-conviction hearing, the Petitioner
testified regarding the allegations and legal claims set
forth in his petitions for post-conviction relief. The
Petitioner did not present any other evidence. Trial counsel
testified that he represented the Petitioner at trial and on
appeal. Counsel confirmed that standard jury instructions
were given by the trial court in Petitioner's case, but
gave no further testimony regarding the instructions. On
cross-examination, trial counsel agreed that he was familiar
with the Tennessee ...