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State v. Bondurant3/20/1998
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First, the defendant argues that he was unrepresented by counsel for one year from being indicted. The defendant points out that he was indicted on May 19, 1990, and arraigned on June 22, 1990. At the arraignment, his attorney in the Dugger case, Bobby Sands, stood with him but did not enter an appearance. Jerry Colley, lead trial counsel in this case, testified that his first activity in the case was in May of 1991, approximately six months before the trial.
The defendant does not allege that he requested an attorney during the time he was unrepresented. Moreover, he does not show how he was prejudiced by this gap in representation, nor does he cite authority on the point.
It may well be doubted that a criminal defendant is instantly entitled to counsel upon entering the courtroom for the court to ascertain his identity and his indigency status in order that counsel may be appointed for him. See State v. Miller, 668 S.W.2d 281, 286 (Tenn. 1984). Regardless, even assuming the defendant was entitled to counsel once he had been indicted, see State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.1980), the absence of counsel here does not necessarily require that the conviction be set aside. See State v. Sutton, 761 S.W.2d 763, 769 (Tenn. 1988). A reversal is only dictated when counsel is denied at some stage in the proceedings "in which opportunities are lost, substantive or procedural rights are waived, or some action is not taken and the consequences cannot be discerned from the record." Id. at 769.
In Brady v. State, 584 S.W.2d 245, 250 (Tenn. Crim. App. 1979), this court held that adequate preparation time depends on each individual case. We find that counsel had adequate time to prepare for trial. Moreover, we find that no rights were lost between the time of the defendant's arraignment and the appointment of counsel.
B. Absence of Effective Co-Counsel.
Next, the defendant submits that lead counsel was essentially without co-counsel, making him ineffective. Original co-counsel researched issues and made some pre-trial appearances; however, he became ill and was relieved as counsel on the Friday before trial. Trial counsel's son, John Colley, was then appointed as co-counsel. Although he already had a full schedule and only came to the trial when his schedule permitted, he worked on several of the important motions, and he cross-examined the state's expert witness. We find that the defendant has failed to show deficient performance or prejudice.
Lead counsel was supported at various times both prior to and during trial by John Colley, Dan White, Bob Massey, and Larry Nickell. He also had contact with Skip Gant at CCRC. The fact that lead counsel, who had 43 years of experience, did not share the burden of representing the defendant equally with another in no way presents a case for deficient performance. Moreover, the trial court observed that lead counsel was "one of the most experienced and talented defense attorneys in this State." The evidence does not preponderate against the trial court's finding. See Clenny, 576 S.W.2d at 14.
C. Guilt Phase Strategy, Investigation.
The defendant argues next that trial counsel's defense theory of reasonable doubt was based on counsel's failure to fully investigate his client and the case. Specifically, the defendant contends that adequate investigation would have revealed that at the time of the murder, the defendant was living under stressful circumstances, he suffered from extreme alcohol and drug dependency, he suffered debilitating physical ailments, and he was intoxicated at the time of the offense, limiting his judgment and rendering him incapable of premeditated
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