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Waller v. State

Court of Criminal Appeals of Tennessee, Jackson

November 30, 2016

ALVIN WALLER, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs August 2, 2016

         Appeal from the Circuit Court for Madison County No. C-14-297 Donald H. Allen, Judge

         The 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 post-conviction court.

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

          Joseph T. Howell, Jackson, Tennessee, for the Petitioner, Alvin Waller, Jr.

          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., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         The 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).

         The 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.

         The 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.

         On 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.

         The 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.

         At the 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 ...


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