CALVIN EUGENE BRYANT v. STATE OF TENNESSEE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 14, 2013 Session

CALVIN EUGENE BRYANT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-B-1478 Steve R. Dozier, Judge

No. M2012-01560-CCA-R3-PC - Filed August 16, 2013

The Petitioner, Calvin Eugene Bryant, appeals the Davidson County Criminal Court’s denial

of post-conviction relief. The Petitioner argues on appeal that trial counsel provided

ineffective assistance of counsel by failing to request a jury instruction on the lesser included

offense of facilitation. Upon review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and R OGER A. P AGE, JJ., joined.

James O. Martin, III, for the Defendant-Appellant, Calvin Eugene Bryant.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel M. Sobrero,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

A Davidson County Grand Jury indicted the Petitioner for three counts of sale of a

Schedule I controlled substance within a Drug-Free School Zone (counts 1, 2, and 4) and two

counts of delivery of a Schedule I controlled substance within a Drug-Free School Zone

(counts 3 and 5). See T.C.A. §§ 39-17-417(a), -432 . At trial, the jury acquitted him of the

first count of sale of a Schedule I controlled substance within a school zone and convicted

him as charged on the remaining counts. The trial court merged the delivery counts with the

sale counts and imposed concurrent sentences of seventeen years for each conviction. On

appeal, this court upheld the Petitioner’s conviction and sentence. State v. Calvin Eugene

Bryant, Jr., No. M2009-01718-CCA-R3-CD, 2010 WL 4324287, at *1 (Tenn. Crim. App.

Nov. 1, 2010), perm. app. denied (Tenn. Apr. 13, 2011). On December 28, 2011, the

Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing,

the court denied post-conviction relief, and the Petitioner filed a timely notice of appeal.

Trial. On direct appeal, this court summarized the evidence presented at trial:

This case arises out of three controlled drug buys that took place on

March 4, March 21, and April 23, 2008, between a confidential informant and

the defendant. The defendant was indicted on three counts of sale of a

Schedule I controlled substance (Counts 1, 2, and 4) and two counts of the

alternate theory of delivery of a Schedule I controlled substance (Counts 3 and

5). Each of the five counts was alleged to have occurred within 1000 feet of

a school in violation of Tennessee Code Annotated section 39-17-432, the

“Drug-Free School Zone Act.” The defendant was originally tried in October

2008, but the jury was unable to reach a verdict. The trial court declared a

mistrial, and the case was transferred to a different trial court division. The

retrial was scheduled for December 2008, and after a continuance, the case

went to trial in February 2009.

State’s Proof

At trial, Detective William Loucks testified that he was a detective with

the Specialized Investigations Division of the Metropolitan Nashville Police

Department in the Gang Unit. He explained that the Specialized Investigations

Division conducts “longer term” and “more indepth” investigations, often

involving federal law enforcement agencies. In early 2008, Detective Loucks

became involved in an investigation of the defendant in an area where “a high

distribution of narcotics” had been taking place. Detective Loucks planned to

use confidential informants to make purchases, and he described how he

developed the informants.

Detective Loucks testified that in February 2008, he arrested Terrance

Knowles on an habitual motor vehicle offender charge, and in the process, he

talked to Knowles who “gave [him] some information that [he] felt was pretty

accurate[.]” Detective Loucks gave Knowles his card and contact information

and told him to contact him “if [he was] interested in working when [he] g[o]t

out[.]” Knowles later contacted Detective Loucks, who met with him and

another detective, and they discussed the rules and regulations for working as

a confidential informant.

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Detective Loucks testified that his next contact with Knowles was on

March 4, 2008, when Knowles was to do a “reliability buy” of twenty pills for

$140–an amount he could purchase “that wouldn’t throw up any flags.”

Around 11:00 a.m. that day, Detective Loucks met with Knowles at an address

in the Edgehill community of Nashville and gave him $140 in previously

photocopied money. Detective Loucks and other detectives followed and

monitored Knowles as he went to a location in a housing complex in Edgehill.

Detective Loucks was not able to visually watch Knowles enter and exit the

house, but he was able to monitor the transaction via the audio device with

which Knowles had been wired. Detective Loucks identified a tape recording

of the March 4 transaction and stated that he had since listened to it and

recognized his voice as well as Knowles’ and the defendant’s.

Detective Loucks testified that after the transaction, he recovered the

pills from Knowles and searched him. He turned the pills into the property

room and submitted a request for forensic analysis by the Tennessee Bureau

of Investigation (“TBI”). Detective Loucks identified “a bag of various

colored pills” as the ones purchased by Knowles on March 4. He noted that

Knowles was paid forty dollars, the standard rate for a reliability buy, and fifty

dollars for providing intelligence on a suspected drug dealer.

Detective Loucks testified that the next transaction took place on March

21, 2008. This transaction was to be for 100 Ecstasy pills for $650. The

transaction took place “[i]n the vicinity of 1305 12th Avenue South, Edgehill

complex.” He elaborated that it was “in the vicinity” because the defendant

was not inside his residence but was standing outside. Detective Loucks

described the same procedure as with the first transaction, whereby he met

with Knowles, searched him and his vehicle, gave him previously photocopied

money, and followed him to the intersection of 12th Avenue and Edgehill. As

with the first transaction, Detective Loucks monitored and recorded the

transaction on audio, while other detectives maintained visual surveillance.

Detective Loucks testified that he had since listened to the recording of

the second transaction and on it recognized his voice as well as Knowles’ and

the defendant’s. After the transaction, Detective Loucks recovered a bag of

pills from Knowles, which he kept until the end of his shift when he

field-tested the pills and turned them in to the property room with an analysis

request form. Knowles was paid $100, the standard rate being a dollar per pill.

Detective Loucks identified “a bag of various colored pills” as the ones

purchased by Knowles on March 21.

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Detective Loucks testified that a third transaction took place on April

23, 2008, around 10:00 p.m. Knowles told Detective Loucks that he had

contacted the defendant and could purchase 200 pills for $1200. After going

through the same procedures as before, Detective Loucks was able to

personally observe this transaction through a pair of binoculars from a distance

of 200 to 250 yards as well as listen to the audio. Detective Loucks testified

that he had since listened to the recording of the third transaction and on it

recognized his voice as well as Knowles’ and the defendant’s. After the

transaction, Detective Loucks recovered “two bags of various colored pills”

from Knowles and paid Knowles $200 at the standard rate of one dollar per

pill. Detective Loucks transported the pills back to his office, where he

conducted a field test and then turned them in to the property room along with

an analysis request form.

Detective Loucks testified that in addition to the money paid for each

of the drug buys, Knowles was paid an additional amount of $680 after the

defendant was indicted and for items recovered pursuant to a search warrant.

He was paid $100 for each of the defendant’s five felony indictments, $100 for

a gun recovered at the location of the defendant’s arrest, and $80 for two

controlled substances that were recovered. These were the standard rates for

payment to informants.

Detective Loucks testified that he spoke with the district attorney about

Knowles’ habitual motor vehicle offender charge and “[i]t was dismissed upon

[his] request,” which was “[n]ot unusual.” He also contacted Knowles’

probation officer in July concerning a violation because he was trying to keep

Knowles out of jail “to further along the investigation.” He did not make any

other promises to Knowles or give him any other assistance than what he had

described. He said that “[n]othing is promised at all to the cooperating

individuals, except . . . that I’m responsible for their safety.” Detective Loucks

stated that after Knowles’ identity as the confidential informant was revealed

at a previous hearing, he made one additional payment to Knowles on

November 6 because “[h]e had stated . . . that he didn’t feel safe in the current

environment, so I paid him eight hundred dollars, again out of our intelligence

fund, for relocation expenses.”

Detective Loucks said that he did not arrest the defendant immediately

after any of the three sales because they “were trying to broaden the

investigation . . . [and] provide more bang for the buck for the taxpaying

citizens.” After the defendant was arrested, Detective Loucks asked him

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“about him selling pills” and the defendant said that “he sold anywhere

between thirty to forty pills” in a week. The defendant did not respond when

Detective Loucks asked him where he was getting the pills.

On cross-examination, Detective Loucks acknowledged that he did not

record any of the conversations between Knowles and the defendant about

setting up the transactions. He stated that the confidential informant contract

states that “they are not to induce any individuals who are not predisposed to

committing a crime.” Detective Loucks acknowledged that the audiotape of

the first transaction reflected that Knowles made several phone calls and no

one answered. With regard to the second transaction, Detective Loucks agreed

that the Ecstasy pills were delivered by a third individual, and Special Agent

Mark Shafer observed the transaction, but he was not in a position to see it.

Detective Loucks said that Knowles returned from the exchange with ten

dollars more than he had been expecting.

Detective Loucks testified that the controlled substances that were

recovered when the defendant was arrested did not come from the defendant’s

home but were found on the awning of the porch across from the defendant’s

home. Someone other than the defendant was seen throwing the package of

substances onto the awning and running away. With regard to his conversation

with the defendant regarding how many pills he sold a week, Detective Loucks

acknowledged that he did not record the statement or have the defendant

submit anything in writing.

Detective Loucks testified that sometime after the first trial in this case,

he appeared at Knowles’ probation violation hearing, and Knowles was

released “a period of time later” and given money to relocate. Knowles was

apprised of the next court date, but Detective Loucks did not issue a subpoena

because “[he] d[id] not have the power to issue a subpoena outside of an

officer involved in an investigation.” On continued cross-examination and

redirect examination, Detective Loucks further testified about his knowledge

of Knowles’ whereabouts and his efforts to find him prior to trial. Detective

Loucks stated that the defendant was “the leader of a set of Gangster Disciple

gang members,” and Knowles was “in fear for his life . . . because he received

threats while he was incarcerated.”

Terrance Knowles FN1 testified that he was presently in custody on a

probation violation. He went to court on the violation in August 2008 but left

court after he was approached by defense counsel, who wanted to speak to him

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about the defendant’s pending case. He was on a one-year probation term for

the felony offense of “habitual driving offender.” Knowles said that he went

to jail and was charged with the driving offense in February 2008, at which

time he had a discussion with Detective Loucks about “helping each other out,

something like that. He told me what he was trying to do, what he was looking

for. And I said I can do that.” Detective Loucks told him that he was working

on “[c]leaning up the Edgehill area,” and the defendant’s name came up during

the conversation. Knowles knew the defendant by the nickname “Fridge.”

Knowles agreed to work with Detective Loucks and did so three times related

to the defendant.

FN1. The testimony of Terrance Knowles from the first trial in

this matter was read into the record by another witness as

Knowles was not present and had been declared unavailable by

the trial court pursuant to Rule 804 of the Tennessee Rules of

Evidence.

Knowles testified that the first time, he called the defendant “the day

before” and told him that he wanted to buy twenty pills. The defendant gave

him the price of $140 and said to call him the next morning. Knowles knew

the defendant prior to this time, already had his phone number, and recognized

his voice when he called him. The next day, Knowles met with the detectives,

who “put a wire on [him],” and gave him instructions on making the

transaction. Knowles went to the defendant’s residence in Edgehill and

attempted to reach him by knocking on the door and calling him, but he

received no answer. While he was outside the residence, the defendant’s sister

arrived, and she discovered that the defendant was asleep.

Knowles testified that the defendant’s sister let him inside the house,

and he woke the defendant and told him that he needed the pills. The

defendant asked him how many pills he wanted and retrieved them from one

of the closets. There was no one else in the bedroom at the time. Knowles and

the defendant then went downstairs, and the defendant asked Knowles if he

had a bag. After Knowles responded that he did not, the defendant gave

Knowles a sandwich bag and put the pills in it. Knowles paid the defendant

$140 for the pills and asked him the price for 100 pills for the next time. The

defendant told him that it would be “[p]robably six fifty or something like

that.” Knowles left and met with the detectives, turning over the pills.

Knowles was paid “[a] hundred dollars, something like that.”

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Knowles described the second time he met with the defendant while

working as a confidential informant. He called the defendant “and told him

[he] needed a hundred pills this time.” Knowles and the defendant agreed on

a time for him to come by the defendant’s house. Prior to going to the

defendant’s house, Knowles met with the detectives to have a wire put on him.

When he arrived at the defendant’s house, he had to wait twenty-five to thirty

minutes “for the pills to get there.” A white Expedition arrived, Knowles gave

the defendant his money, and the defendant walked to the passenger side of the

vehicle and returned with 100 pills. Knowles received some change back from

the deal. Knowles then left and met with the detectives, turning over the pills.

He was paid $100 to $150 for this transaction.

Knowles testified that the day of the third transaction, he called the

defendant and “told him I wanted to get two hundred this time.” The

defendant told him that he was “going to work on it” and that it would cost

$1200. Knowles called the defendant back, and the defendant told him “the

dude was on his way. And, . . . I told him that I would be out there in a little

bit.” Knowles called the detective to “let him know he was on his way.”

After meeting with the detectives, following the same procedure,

Knowles went to meet the defendant by a basketball court near the defendant’s

house in Edgehill. Knowles waited “about an hour” until a Jeep Cherokee

arrived, and the defendant said, “[T]hey’re right here.” Knowles counted the

money and handed it to the defendant, who went and got the pills from the

person in the vehicle. The defendant returned with two bags of different

colored pills, which he gave to Knowles. After he received the pills, Knowles

met with the detectives and turned over the pills.

Knowles testified that Detective Loucks helped him have a driving

charge dismissed in March 2008. In addition to the money he received for

each transaction, Knowles also received $700 after the defendant was arrested.

He did not receive any other money or benefit, nor was he promised anything

in exchange for his testimony. Knowles said that he did not want to testify,

and he was telling the truth about what happened on those three occasions.

On cross-examination, Knowles acknowledged that he discussed his

testimony with the district attorney and Detective Loucks before the trial. He

agreed that his felony habitual motor vehicle offender charge had been

dismissed. After he was released from jail before the first transaction,

Knowles called Detective Loucks and told him he wanted to help himself.

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Prior to the actual transactions, Knowles was not wired with any recording

device when talking to the defendant. Knowles acknowledged that Detective

Loucks told him that the target of the investigation was the defendant and to

contact him when he had a deal arranged with the defendant.

Special Agent Mark Shafer with the Federal Bureau of Investigation,

“FBI,” testified that in the Spring of 2008, he was assigned to the Violent

Crimes and Gangs Task Force and was involved in an investigation of the

defendant. On March 21, 2008, Agent Shafer was working with Detective

Mark Anderson of the Metropolitan Nashville Police Department in a

surveillance van parked inside the Edgehill housing development. The

surveillance “was all part of Detective Loucks’ case.” After they had been

parked for some time, the confidential informant arrived, and Agent Shafer

observed the informant converse with the defendant. A few minutes later, a

white SUV arrived, and the defendant “walk [ed] over to the passenger side of

that SUV. He had money in his hand. He handed money to the occupants of

the SUV and, in turn, received a handful sized bag.” The defendant then gave

the bag to the confidential informant.

On cross-examination, Agent Shafer testified that he never met the

confidential informant. He did not participate in locating Knowles in

December 2008 or afterwards. He would have helped find Knowles if

Detective Loucks had asked for his assistance.

Isaac Martinez, with the Metropolitan Nashville Police Department

Property Room and Evidence Division, described the procedures for receiving

evidence and transporting it to the TBI lab for analysis if requested. Martinez

identified the bags of pills submitted by Detective Loucks and described how

he transported them to the TBI lab for analysis in April 2008. He said that all

of the bags were sealed when he left them with the TBI.

Martinez testified that one of the bags of pills was later taken to the TBI

lab a second time, on October 8, 2008, by Sandra Luther who did not work in

the property and evidence room. On redirect examination, Martinez noted that

another bag of drugs was taken back to the TBI in October 2008 by Luther.

He explained that it was not unusual for drugs to be resubmitted to the TBI for

analysis, nor was it unusual for a detective to take an item to the TBI.

Agent Jennifer Sullivan, a forensic scientist with the TBI, testified as

an expert in forensic chemistry that she analyzed the pills submitted as exhibits

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three and five in this case. Her analysis of the twenty pills in exhibit three

revealed that each of the pills was a Schedule I drug, the majority were “34

methylenedioxymethamphetamine, or MDMA, commonly known as Ecstasy

and methamphetamine” and some were benzylpiperazine and

methamphetamine. Agent Sullivan’s analysis of the 100 pills in exhibit five

revealed that some were the Schedule I substance “34 MDMA and

methamphetamine,” and some were the Schedule II substance

methamphetamine.

Agent John Scott, Jr., a forensic scientist with the TBI, testified as an

expert in the field of forensic chemistry that he analyzed the pills submitted as

exhibit seven in this case. His analysis of the 200 pills that were submitted

revealed that fifty-four of the pills did not contain any controlled substance,

seventy-one of the pills contained the Schedule II controlled substance

methamphetamine, and seventy-five of the pills contained the Schedule I

controlled substance MDMA and methamphetamine.

Mary Beth Stephens, a GIS analyst for the Metro Planning Department,

testified that in October 2008, she went with Detective Loucks, the district

attorney, and defense counsel to the “corner of Edgehill and 12th” for the

purpose of mapping the locations of the drug transactions in the defendant’s

case. Stephens took with her a map of the area created from aerial

photographs and property line data stored in the Planning Department’s

database. From 12th and Edgehill, Detective Loucks directed Stephens to

three separate locations. She made notations on her map of the locations and

used her data to create a larger map that noted the locations of the incidents

and the locations of schools within the 1000 feet “buffer zones” around the

schools in the area.

Stephens identified incident number one as occurring at 1305 12th

Avenue South, which was within 1000 feet of two schools, Carter Lawrence

Elementary and the Murrell Special Education School. Incident number two

occurred at the edge of the pavement immediately across from the housing

development, and incident number three occurred at the edge of the sidewalk

that led to the playground for the school. Both incidents two and three

occurred within 1000 feet of the same two schools as incident one. On

cross-examination, Stephens acknowledged that the incident locations noted

on her map were based on locations described to her by Detective Loucks.

Defendant’s Proof

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Walter Fisher testified that he was an in-school suspension instructor

at Hillsboro High School and had known the defendant for eight of the ten

years he had been teaching. Fisher recalled that during the four years the

defendant attended Hillsboro, the defendant never had any type of violation or

was sent to in-school suspension for any reason. Fisher described the

defendant’s character as “impeccable,” and he said that the defendant was a

“model citizen” and loving toward his family. Fisher recalled the defendant’s

athletic ability and success on the football team, and he described that the

defendant had “always been a leader on those teams[.]” He recalled that the

defendant’s former head football coach, Ron Aydelott, Councilman Ronnie

Greer, and the defendant’s minister had testified on the defendant’s behalf at

an earlier hearing.

Fisher testified that he had never known the defendant to use drugs or

heard any rumors of the defendant being involved with selling drugs. Fisher

knew that the defendant enrolled in college at Tennessee State University

instead of going elsewhere because his father had triple bypass surgery and the

defendant did not want to leave him. Fisher was aware of a fight the defendant

was involved in during high school. To his understanding, another student was

continuously provoking the defendant on the school bus. After they got off the

bus, the defendant tried to walk away but hit the other student after continued

provocation. The defendant only hit the other student once and then walked

away. Fisher said that aside from that one fight, the defendant “was a

peacemaker at school.”

On cross-examination, Fisher clarified that he had coached basketball

and had not been one of the defendant’s football coaches. Since the

defendant’s graduation from high school in 2004, Fisher had seen the

defendant once every two months but saw him every day during his attendance

at Hillsboro. From his observations of the defendant during his school years,

Fisher believed the defendant to be a good student, an intelligent person, and

a good problem solver. Fisher never saw a situation where the defendant was

intimidated during football games.

Fisher testified that he thought it was “[u]nbelieveable” when he heard

the defendant had been arrested for selling drugs. It would surprise him if he

heard the defendant on audiotape participating in a drug transaction. Fisher

had never known the defendant to carry a weapon, and it would surprise him

to learn that the defendant had a prior arrest for carrying a weapon. He

acknowledged that there were some things about the defendant that he did not

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know about. Fisher thought that the defendant being described as a confirmed

leader of the Gangster Disciples was “unbelievable.” Nevertheless, Fisher said

that none of these revelations changed his opinion of the defendant. He agreed

that his impressions of the defendant were from his four years of high school,

which ended in 2004. On redirect examination, Fisher agreed that the

defendant was the type of person who would do anything for a friend.

Suzanne Frensley testified that she was a teacher at Hillsboro High

School and was selected as the 2007 Teacher of the Year for the State of

Tennessee. Frensley had known the defendant for seven years, beginning

when his mother was the caregiver for her godmother. She said that the

defendant was “very generous” with her godmother and spent time watching

basketball and hockey games with her. She maintained contact with the

defendant after she began teaching at Hillsboro. Frensley described the

defendant as “[l]arge and strong with a soft inside and a big heart.” She said

that he was very close to his parents and sister. She noted that he “took a great

interest in the people who live in his neighborhood” and was “supportive of

the community.” Frensley had come to court three times to testify on the

defendant’s behalf and would never hesitate to do so.

On cross-examination, Frensley clarified that the defendant was never

in one of her classes but described herself as his mentor and role model.

Frensley noted that she taught leadership at Hillsboro and was not sure that she

would have identified the defendant as a leader. She thought that “his

leadership is more on a relationship level, caring about people, his family and

friends.” She noted that people looked up to him, but “he never stood out and

said, I’m the leader, I’m the big man.”

Frensley stated that she was not aware of the defendant’s reputation for

carrying a weapon or heard information of him being a confirmed leader of the

Gangster Disciples in Edgehill. Frensley was aware of the allegations in this

case and that the transactions were recorded on audiotape, but her knowledge

of those incidents, although surprising to her, did not change her opinion of the

defendant. Frensley acknowledged that she did not know everything that was

going on in the defendant’s life.

The defendant testified that he had resided with his mother in the

Edgehill housing projects his entire life and attended Hillsboro High School

where he was captain of the championship football team. He identified several

newspaper articles chronicling his football career and described the interest he

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received from many colleges due to his athletic ability. Once he graduated

from high school, the defendant enrolled at Tennessee State University and,

while in school, worked first for The Tennessean newspaper and then Coca-

Cola. He also applied for a job with the United States Post Office, and he had

been scheduled to interview in June 2008. The defendant admitted that, at one

point in college, his grades dropped and he was placed on academic probation.

However, he received a letter saying that he was welcome to come back to

school.

The defendant testified that he knew Detective Loucks prior to his

arrest “[f]rom around the neighborhood.” He said that Detective Loucks had

stopped him on more than one occasion and searched him for weapons or

drugs but had never found anything. On these occasions, the detective never

said that the defendant had done anything wrong, “but they always come

around the neighborhood and say they received calls[.]”

The defendant said that he knew Knowles from “growing up in the

neighborhood,” even though Knowles was seven or eight years older. He and

Knowles “had a personal relationship,” and Knowles had “been around the

family for quite a while.” The defendant acknowledged that Knowles

purchased drugs from him. He explained that before the first transaction,

Knowles approached him near the basketball court and asked if he “kn[e]w

anybody with some pills” because he had someone wanting to buy some from

him. The defendant told Knowles that he did not and that he did not “want to

get involved with it.” However, Knowles kept telling the defendant that he

needed to get the money to feed his family and “called [him] several times

. . . on a day to day basis, . . . [s]o, eventually, [he] gave in and helped him[.]”

The defendant testified that the day before the first transaction,

Knowles called and asked if he could purchase thirty extra pills. The

defendant told Knowles that he could get them, and Knowles was supposed to

come by that night. “[T]he guy” brought the pills to the defendant, but

Knowles did not show up that night. The next day, the defendant was in bed

asleep when his sister and Knowles came and woke him up. Knowles asked

for only twenty Ecstasy pills, and the defendant gave them to him. Knowles

then asked the price for 100 pills, and the defendant “gave him a price on it,”

which was $650. The defendant explained that he knew the price “[b]ecause

in the kind of environment [he] grew up in, you’ll know the prices for things.”

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The defendant admitted that there was a second transaction in which he

sold 100 Ecstasy pills to Knowles for $650. However, the defendant did not

have the pills in his possession–“[someone] brought them to [him] and [he]

gave them to Terrance Knowles.” The defendant admitted that after either the

second or third transaction, he told Knowles to count the pills. The defendant

said that the man who brought the drugs to him was someone he did not know

well but “kn[e]w him well enough.” The defendant noted that Knowles had

called him various times between the first and second transactions and those

calls were not on the audiotapes.

The defendant testified that Knowles also called him after the second

transaction. The defendant explained that “[i]n between these deals, I kind of,

like, was, still, I didn’t want to do it[,]” but Knowles kept talking about his

family and how he had helped raise him. He tried to put Knowles off by

saying that he would see what he could do, but then Knowles would

“eventually pop up on the scene . . . [a]nd that’s when [he would] just go ahead

and call the individual.” The defendant said that he never told Knowles on the

phone to come over. After the third transaction, the defendant refused to help

Knowles “[b]ecause [he] came to a conclusion that [he] didn’t want to

participate in it anymore.”

The defendant acknowledged that he had twice been arrested for

weapons possession. After his first arrest, the defendant obtained his handgun

carry permit, which required that he be fingerprinted and not have any felonies

on his record. With regard to the school bus assault incident when he was

fifteen or sixteen, the defendant explained that the other boy kept picking on

him, and they “passed words.” As he was getting off the bus, the other boy

came at him, so he hit him. The defendant said that he and that boy were now

close friends. The defendant denied being the leader of the Gangster Disciples

but acknowledged that he had been around gang members.

The defendant testified that prior to the first incident with Knowles, he

had never sold drugs to anyone. The defendant explained that when he was

arrested in this case, the police searched him and his house and did not find

any drugs. However, on a nearby roof, the police found drugs that they

believed to be his, which resulted in his being charged.

On cross-examination, the defendant acknowledged that when he was

arrested, he never told the police he was just doing a favor for a friend. Prior

to receiving his handgun permit, the defendant was convicted of unlawful

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possession of a weapon and placed on probation. His permit was revoked

before his second arrest for unlawful possession, but he said he did not know

it had been revoked or he would not have carried a weapon. As to the fight he

was involved in as a juvenile, he said that he was charged for an aggravated

assault but believed it was amended to simple assault because he did not have

a felony on his record.

The defendant acknowledged that during the first transaction, Knowles

asked the price for 100 pills and the defendant told him immediately $650. He

further acknowledged that the recordings did not reflect his ever telling

Knowles that he did not want to sell the drugs. The defendant admitted that

the recording from the second transaction reflected him describing the

different names for the various colored Ecstasy pills and specifically that

Knowles needed to be careful with the “brown bulls” because “[p]eople could

pass out on them[.]” The defendant explained that he “was telling [Knowles]

what the guy told [him].” The defendant acknowledged that the recording of

the third transaction reflects him telling Knowles to count the pills even though

the man who delivered them was “usually good.”

After the conclusion of the proof, the jury found the defendant not

guilty of count 1, the March 4 sale, and guilty of the remaining four counts.

Id. at *1-10.

Post-Conviction Hearing. At the May 18, 2012 post-conviction hearing, the

Petitioner called trial counsel to testify but did not testify in his own behalf.

Trial counsel testified that she represented the Petitioner and obtained a hung jury in

the Petitioner’s first trial. She said that at the time she was appointed to represent the

Petitioner, she had been practicing law for over two years. She stated that the Petitioner’s

case involved a confidential informant and that for the two drug transactions of which the

Petitioner was convicted, a third party brought the drugs to the scene, and the Petitioner acted

as “the go between.” In each of these two transactions, the Petitioner took money from the

confidential informant and brought the money to a third party before returning and giving the

drugs to the confidential informant. She stated that there was no evidence that the Petitioner

received any proceeds from the drug sales.

Trial counsel acknowledged that she did not request an instruction on facilitation. She

said she did not know why she did not request the facilitation instruction and admitted that

she “should have.” She added that she was not very familiar with the offense of facilitation

-14-

at the time. She also stated that she was “new in the law” at the time of her representation

of the Petitioner. Trial counsel said that her failure to request the facilitation instruction was

not a strategic decision to argue for acquittal under the entrapment defense or to argue for

the lesser included offenses of simple possession or casual exchange. She stated that another

attorney assisted her in representing the Petitioner and that she did not discuss the possibility

of requesting a facilitation instruction with this other attorney or the Petitioner.

On cross-examination, trial counsel stated that some time between obtaining her law

license in 2006 and representing the Petitioner in 2009, she began practicing criminal law

exclusively. She said that she had represented other defendants in jury trials prior to

representing the Petitioner but was unable to state exactly how many defendants she had

represented in jury trials. Trial counsel acknowledged that she had been in the courtroom

when the State asked the court whether it was going to charge the jury with a facilitation

instruction but stated that she was unable to “specifically recall” the State mentioning the

facilitation instruction. She said that her defense theory in the Petitioner’s case was

entrapment. Pursuant to the entrapment theory, the Petitioner admitted that he took part in

the sales but claimed that he was enticed to do so. Trial counsel did not recall arguing for

simple possession or casual exchange in her closing argument.

At the conclusion of the post-conviction hearing, the court took the matter under

advisement. On June 15, 2012, the court entered its order denying post-conviction relief.

In it, the court made the following determinations:

Facilitation is a lesser included offense of the charged offenses under

the Burns test, part (c)(1). See State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.

1999). The Court must also determine whether the evidence supports an

instruction on facilitation. Facilitation of a felony occurs when a defendant

knows that “another intends to commit a specific felony” and “knowingly

furnishes substantial assistance” in committing that felony. Tenn. Code Ann.

§ 39-11-403(a). The Sentencing Commission Comments to section -403 state

that application of the facilitation statute is appropriate where an offender

participates substantially in a felony but lacks the intent to promote, assist or

benefit from the offense. State v. Fleming, 19 S.W.3d 195 (Tenn. 2000). In

this case, the evidence showed that the informant would call the defendant,

speak with the defendant about the drugs he wanted to purchase. Although the

defendant would have someone bring the drugs to the location, there were no

other named defendants in this case. It is improbable that in any case a

defendant conducting a drug sale will not need to first obtain pills (or other

illegal drugs) from someone else. The issue is the intent of the defendant. To

convict of facilitation in this case, proof would be required that the petitioner

-15-

knew “that another person intended to commit” the crime of [sale and delivery]

of a controlled substance and that the petitioner furnished “substantial

assistance” to that person, although the petitioner did not have “the intent to

promote or assist in the commission of the crime or to benefit in the proceeds

or results of the offense.” See T.C.A. § 39-11-403. Although the petitioner

may not have had the drugs on him for the deal, it does not follow that he did

not have the requisite intent.

The defendant testified that he had people bring him the drugs. He did

not testify that he was conducting the sales for those people that delivered the

drugs. He attempted to argue that he was just selling these pills to this

informant as a favor and alleged entrapment. The proof in this case fails to

establish the identity or existence of “another person” who participated in the

commission of the crime. It was the petitioner who entered into the drug

transaction and who provided the drugs to the informant. See State v. [Devon]

Wiggins, [No. W2007-01734-CCA-R3-CD, 2009 WL 1362323] (Tenn. Crim.

App. May 15, 2009). Obviously the defendant did more than assist [in] these

sales. Therefore, the Court finds the petitioner has failed to prove this

allegation by clear and convincing evidence.

Notwithstanding the Court’s finding that it was not error to fail to

request an instruction on facilitation given the defense proffered by the

petitioner, the Court further finds that there was no showing of prejudice. The

jury apparently gave weight to the petitioner’s defense that he was entrapped

by finding him not guilty in count one for the transaction in which the drugs

were actually located with the petitioner at the time of the sale but guilty in the

later transactions. Therefore, the Court finds the petitioner has not shown

prejudice by the failure to instruct on facilitation.

Following entry of this order, the Petitioner filed a timely notice of appeal.

ANALYSIS

The Petitioner contends that trial counsel provided ineffective assistance of counsel

by failing to request a jury instruction on the lesser included offense of facilitation. He

argues that trial counsel’s failure to ask for this instruction constituted ineffective assistance

of counsel because it deprived him of his constitutional right to present a defense and of his

right to a complete charge of the law. The Petitioner’s arguments are more specifically

outlined below.

-16-

First, the Petitioner contends that trial counsel was deficient for not arguing both

entrapment and facilitation at trial. He asserts that he is entitled to have “every issue of fact

raised by the evidence and material to his defense submitted to the jury upon proper

instructions by the judge[.]” State v. Brown, 836 S.W.2d 530, 553 (Tenn. 1992) (citing State

v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). The Petitioner argues that his testimony

at trial that Knowles pressured him into the second and third drug sales supports the offense

of facilitation more than an entrapment defense. He also argues that even though the defense

of entrapment failed, trial counsel should have requested a facilitation instruction because

“his reluctance to continue to secure pills for Knowles . . . support[s]” the offense of

facilitation because the supplier of the drugs “intended to commit the offense and he

provided substantial assistance to [the supplier of the drugs] and Knowles.” See T.C.A. §

39-11-403. In support of his argument that counsel was deficient in failing to request the

facilitation instruction, the Petitioner asserts that there was no evidence presented at trial that

he received or requested money in exchange for his assistance in the drug transactions.

Second, the Petitioner argues that despite this court’s conclusion on direct appeal that

it was not clear that the Petitioner did not waive the issue of facilitation for tactical reasons,

the evidence presented at the post-conviction hearing established that trial counsel’s failure

to request a facilitation instruction was not a strategic decision. He claims that trial counsel’s

testimony showed that her failure to request this instruction was based on her own

inexperience in the practice of law. Moreover, he argues that trial counsel’s testimony

established that her failure to request this instruction was not because she was arguing for an

acquittal based on the entrapment defense or for the lesser included offense of simple

possession.

Third, the Petitioner argues that the post-conviction erred in its factual finding that the

evidence “fail[ed] to establish the identity or existence of ‘another person’ who participated

in the commission of the crime” and erred in its legal conclusion that he was not prejudiced

by trial counsel’s failure to request the facilitation instruction. He claims that the evidence

at trial “clearly established the existence of another person” involved in the relevant drug

transactions because he, Detective Loucks, and Knowles all testified that he and Knowles

had to wait on the person with the pills to arrive, that he never had any pills to sell Knowles,

and that after being pressured by Knowles, he had to call another individual for the pills. He

also argues that Detective Loucks testified about someone else throwing pills on top of an

awning and fleeing the scene. In support of this third party argument, the Petitioner claims

that no pills were found on his person or in his home. Regarding the trial court’s finding that

he was not prejudiced by counsel’s failure to request the facilitation instruction, he alleges,

without citation to authority, that the court erroneously concluded that where there is proof

of the greater offense, a defendant is not prejudiced by the failure to charge a lesser offense,

even if that lesser offense is supported by the evidence.

-17-

Fourth, the Petitioner contends that the proof at trial supported a jury instruction for

facilitation. Citing State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), he argues that “the trial

court must determine whether any evidence exists that reasonable minds could accept as to

the lesser[]included offense” and that “[i]n making this determination, the trial court must

view the evidence liberally in the light most favorable to the existence of the lesser[]included

offense without making any judgments on the credibility of such evidence.” Then, he argues,

“the trial court must determine if the evidence, viewed in this light, is legally sufficient to

support a conviction for the lesser[]included offense.” Id. The Petitioner asserts that because

the evidence at trial established that a third person provided the drugs in the relevant

transactions and that the Petitioner did not benefit from these drug deals, he lacked the

requisite intent for the charged offenses and an instruction for facilitation should have been

given pursuant to Burns. He also asserts that because the proof supported a facilitation

instruction, trial counsel rendered ineffective assistance by failing to request this instruction.

Fifth, the Petitioner argues that State v. Nash, 104 S.W.3d 495 (Tenn. 2003), and State

v. Jimmy Jackson, No. M2011-01077-CCA-R3-CD, 2012 WL 5873506 (Tenn. Crim. App.

Nov. 21, 2012), support the conclusion that a facilitation instruction would have been

required in this case if it had been requested by trial counsel. He argues that pursuant to “the

reasoning employed by our Supreme Court in the Nash decision, there was sufficient

evidence for a jury to conclude that [the Petitioner] knowingly offered substantial assistance

to the unnamed person or persons who delivered the drugs, thus facilitating the sale of the

pills.” See Nash, 104 S.W.3d at 500 (concluding that the evidence was sufficient to support

an instruction and conviction for facilitation of possession of marijuana with the intent to

deliver when the evidence showed that at least one of the individuals in the car had recently

smoked marijuana based on the odor detected by the officers at the time of the stop, that

Nash and Jefferson entered the apartment together for the purpose of obtaining the marijuana,

that Nash saw Jefferson’s attempt to hide the marijuana from the officers by moving it from

the front center console and putting it under the front passenger seat, that Nash, rather than

Jefferson, was in physical control of the marijuana because he was the closest to the

marijuana at the time of the stop, that Nash was willing to substantially assist Jefferson in the

offense of possessing the marijuana with the intent to deliver, even to the extent of claiming

that he was responsible for the offense). In addition, the Petitioner argues that because he

was serving drugs for someone else, just as the defendant did in Jimmy Jackson, the evidence

supported an instruction on facilitation. See Jimmy Jackson, 2012 WL 5873506, at *6

(concluding that the proof supported an instruction on facilitation as a lesser included offense

of the charged offenses when the evidence showed that the confidential informant offered

to pay the defendant $50 for assisting him in a drug transaction, that the defendant did not

have a cellular telephone or any cash other than the buy money on his person at the time of

his arrest, and that the defendant, at the time of his arrest, claimed that he was serving the

drugs for another individual). He argues that Nash and Jimmy Jackson emphasize a

-18-

defendant’s “constitutional right to have the jury consider all possible outcomes raised by and

supported by the evidence.”

The State responds that the Petitioner has failed to establish that trial counsel was

deficient in failing to request the facilitation instruction or that this alleged deficiency

prejudiced the outcome of the Petitioner’s trial. We agree with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.

§ 40-30-103 (2012). The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual issues,

the appellate court will not re-weigh or re-evaluate the evidence; moreover,

factual questions involving the credibility of witnesses or the weight of their

testimony are matters for the trial court to resolve. The appellate court’s

review of a legal issue, or of a mixed question of law or fact such as a claim

of ineffective assistance of counsel, is de novo with no presumption of

correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations

omitted). “The petitioner bears the burden of proving factual allegations in the petition for

post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);

Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and

convincing when there is no serious or substantial doubt about the accuracy of the

conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)

(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Vaughn also repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States Constitution

and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to representation

encompasses the right to reasonably effective assistance, that is, within the

range of competence demanded of attorneys in criminal cases.

202 S.W.3d at 116 (internal quotations and citations omitted).

-19-

In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any particular order or even address both

if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938

S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard of

reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the

petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting

Strickland, 466 U.S. at 694).

We note that “[i]n evaluating an attorney’s performance, a reviewing court must be

highly deferential and should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing

Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of detailed rules for counsel’s

conduct can satisfactorily take account of the variety of circumstances faced by defense

counsel or the range of legitimate decisions regarding how best to represent a criminal

defendant.” Strickland, 466 U.S. at 688-89. However, we note that this “‘deference to

matters of strategy and tactical choices applies only if the choices are informed ones based

upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting

Goad, 938 S.W.2d at 369).

Here, the Petitioner was convicted of knowingly selling a Schedule I controlled

substance within a school zone. See T.C.A. §§ 39-17-417(a), -432. On appeal, the Petitioner

contends that trial counsel provided ineffective assistance in failing to request a jury

instruction on the lesser included offense of facilitation. Facilitation of a felony is defined

as follows:

A person is criminally responsible for the facilitation of a felony, if,

knowing that another intends to commit a specific felony, but without the

intent required for criminal responsibility under § 39-11-402(2), the person

knowingly furnishes substantial assistance in the commission of the felony.

-20-

Id. § 39-11-403(a). Tennessee Code Annotated section 39-11-402(2), which outlines the

theory of criminal responsibility relevant in this case, states that a person is criminally

responsible for a crime committed by the conduct of another, if “[a]cting with intent to

promote or assist the commission of the offense, or to benefit in the proceeds or results of

the offense, the person solicits, directs, aids, or attempts to aid another person to commit the

offense[.]”

“The facilitation of the commission of a felony is an offense of the class next below

the felony facilitated by the person so charged.” Id. § 39-11-403(b). The comments to the

facilitation statute provide helpful guidance in understanding the offense of facilitation:

[S]ection [39-11-403] recognizes a lesser degree of criminal

responsibility than that of a party under § 39-11-401. The section states a

theory of vicarious responsibility because it applies to a person who facilitates

criminal conduct of another by knowingly furnishing substantial assistance to

the perpetrator of a felony, but who lacks the intent to promote or assist in, or

benefit from, the felony’s commission.

A defendant charged as a party may be found guilty of facilitation as a

lesser included offense if the defendant’s degree of complicity is insufficient

to warrant conviction as a party. The lesser punishment is appropriate because

the offender, though facilitating the offense, lacked the intent to promote,

assist or benefit from the offense.

Id. § 39-11-403, Sentencing Comm’n Comments.

The law is well-settled that facilitation is a lesser included offense to the charged

offenses. Burns, 6 S.W.3d at 466-67. The right to trial by jury is guaranteed by the United

States and Tennessee Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6.

Therefore, “a defendant has a right to a correct and complete charge of the law, so that each

issue of fact raised by the evidence will be submitted to the jury on proper instructions.”

State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236,

249 (Tenn.1990)). Accordingly, trial courts have a duty “to give a complete charge of the

law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)

(citing Thompson, 519 S.W.2d at 792). Tennessee Code Annotated section 40-18-110 (Supp.

2008), which was in effect at the time of the Petitioner’s trial in February 2009, requires all

defendants to make a written request regarding the specific lesser included offenses on which

a jury instruction is sought:

-21-

(a) When requested by a party in writing prior to the trial judge’s instructions

to the jury in a criminal case, the trial judge shall instruct the jury as to the law

of each offense specifically identified in the request that is a lesser included

offense of the offense charged in the indictment or presentment. However, the

trial judge shall not instruct the jury as to any lesser included offense unless the

judge determines that the record contains any evidence which reasonable

minds could accept as to the lesser included offense. In making this

determination, the trial judge shall view the evidence liberally in the light most

favorable to the existence of the lesser included offense without making any

judgment on the credibility of evidence. The trial judge shall also determine

whether the evidence, viewed in this light, is legally sufficient to support a

conviction for the lesser included offense.

(b) In the absence of a written request from a party specifically identifying the

particular lesser included offense or offenses on which a jury instruction is

sought, the trial judge may charge the jury on any lesser included offense or

offenses, but no party shall be entitled to any lesser included offense charge.

(c) Notwithstanding any other provision of law to the contrary, when the

defendant fails to request the instruction of a lesser included offense as

required by this section, the lesser included offense instruction is waived.

Absent a written request, the failure of a trial judge to instruct the jury on any

lesser included offense may not be presented as a ground for relief either in a

motion for a new trial or on appeal.

(d) Prior to instructing the jury on the law, the trial judge shall give the parties

an opportunity to object to the proposed lesser included offense instructions.

If the defendant fails to object to a lesser included offense instruction, the

inclusion of that lesser included offense instruction may not be presented as a

ground for relief either in a motion for a new trial or on appeal. Where the

defendant objects to an instruction on a lesser included offense and the judge

does not instruct the jury on that offense, the objection shall constitute a

waiver of any objection in the motion for a new trial or on appeal concerning

the failure to instruct on that lesser included offense. The defendant’s

objection shall not prevent the district attorney general from requesting lesser

included offense instructions or prevent the judge from instructing on lesser

included offenses.

(e) When the defendant requests an instruction on a lesser included offense,

the judge may condition the instruction on the defendant’s consent to an

-22-

amendment to the indictment or presentment, with the consent of the district

attorney general, so that if there is a conviction for the requested lesser offense

the request shall constitute a waiver of any objection in the motion for new

trial and on appeal. The defendant may be required to execute a written

document actually consenting to the amendment so that there may be a lawful

conviction for the lesser offense. If the district attorney general does not

consent to the amendment, the defendant may raise the issue of failure to give

the requested charge on appeal. The provisions of this subsection (e) shall not

be construed as requiring an instruction on a lesser offense.

T.C.A. § 40-18-110 (Supp. 2008); see Burns, 6 S.W.3d at 469. We note that in determining

which instructions shall be given, “[t]he trial court must provide an instruction on a

lesser[]included offense supported by the evidence even if such instruction is not consistent

with the theory of the State or of the defense” because “[t]he evidence, not the theories of the

parties, controls whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 187-88

(Tenn. 2002).

We have taken judicial notice of the record from the Petitioner’s direct appeal. See

Calvin Eugene Bryant, Jr., 2010 WL 4324287. At the close of the proof in the Petitioner’s

case, the court had a discussion with defense counsel and the State regarding the instructions

to the jury. The court stated that it was going to instruct the jury on the charged offenses as

well as the sale and delivery of a Schedule I controlled substance not within a school zone.

Defense counsel asked the court if it had included the defense of entrapment in the

instructions, and the trial court replied that it had. The court also stated that it was going to

instruct the jury as to simple possession or casual exchange. Although trial counsel initially

requested a jury instruction on attempt, she abandoned this request after the court informed

her that it was going to instruct on simple possession or casual exchange and questioned

whether the evidence supported an instruction on attempt. Then the following exchange

occurred in the presence of defense counsel:

[The State]: Is facilitation in there or no? Just so that we know what [will be

charged]. Our position is that it shouldn’t be in there, but–

The Court: No, I didn’t have it in there.

Following this exchange, trial counsel stated nothing, and the State moved on to another

issue.

On direct appeal, the Petitioner argued that the trial court erred in failing to instruct

the jury regarding the lesser included offense of facilitation. However, because the Petitioner

-23-

had waived this issue by failing to request the facilitation instruction during trial and by

failing to include this issue in the motion for new trial, the Petitioner asserted that the court’s

failure to give the instruction was plain error. Calvin Eugene Bryant, Jr., 2010 WL 4324287,

at *19. This court, after discussing the law relevant to plain error analysis, concluded that

the trial court did not commit plain error by failing to instruct on facilitation:

We decline to notice plain error because it is not clear that the

defendant did not waive the issue for tactical reasons. See State v. Page, 184

S.W.3d 223, 231 (Tenn. 2006) (finding no plain error in court’s failure to

instruct on facilitation because “[t]he defendant . . . failed to show that he did

not waive th[e] issue for tactical reasons”). Here, the record shows that

defense counsel was obviously present during the exchange between the State

and the court regarding whether facilitation was going to be charged and

presumably attentive to the colloquy. In her closing argument, defense counsel

used the “facts” that allegedly support an instruction on facilitation–that a third

party brought the pills and the defendant did not profit from the transaction–

to argue that the defendant was only guilty of simple possession or casual

exchange, offenses carrying a much lesser penalty than facilitation of a Class

A felony would carry. Given our supreme court’s directive that our discretion

to notice plain error is to be “sparingly exercised,” Bledsoe, 226 S.W.3d at

354, the defendant is not entitled to relief.

Calvin Eugene Bryant, Jr., 2010 WL 4324287, at *20.

While this court previously analyzed this issue based on a plain error analysis, we are

charged with determining whether trial counsel’s failure to make a written request of the

facilitation instruction or to object to the trial court’s decision to omit the instruction

constituted ineffective assistance of counsel. See Aldrick D. Lillard v. State, No. M2011-

01380-CCA-R3-PC, 2012 WL 4479275, at *13 (Tenn. Crim. App. Sept. 27, 2012).

Following the evidentiary hearing, the post-conviction court denied post-conviction relief.

As we will explain, we conclude that the record supports the post-conviction court’s denial

of relief in this case.

The record shows that the trial court instructed the jury on the following lesser

included offenses for the three counts of sale of a Schedule I controlled substance within a

school zone: (1) sale of a Schedule I controlled substance, and (2) simple possession or

casual exchange of a controlled substance. In addition, the trial court instructed the jury on

the following lesser included offenses for the two counts of delivery of a Schedule I

controlled substance within a school zone: (1) delivery of a Schedule I controlled substance,

and (2) simple possession or casual exchange of a controlled substance.

-24-

In determining whether trial counsel provided ineffective assistance of counsel, we

are guided by this court’s opinion on direct appeal, which noted that defense counsel used

the “‘facts’ that allegedly support[ed] an instruction on facilitation–that a third party brought

the pills and the defendant did not profit from the transaction–to argue that the defendant was

only guilty of simple possession or casual exchange, offenses carrying a much lesser penalty

than facilitation of a Class A felony would carry.” At first glance, one might argue that trial

counsel’s failure to request an instruction on facilitation, given the involvement of a third

party who supplied the drugs, was deficient because it fell below the range of competence

demanded of attorneys in criminal cases. However, a more thorough review of the trial

transcript shows that trial counsel’s failure to request this instruction was a strategic decision

to have the Petitioner acquitted of the charged offenses based on the defense of entrapment

or found guilty of the significantly lesser included offenses of simple possession or casual

exchange, Class A misdemeanors, rather being found guilty of the offenses of facilitation of

the sale and delivery of a Schedule I controlled substance within a school zone, Class B

felonies. A review of the trial transcript shows that trial counsel devoted an enormous

amount of her case-in-chief to convincing the jury that the Petitioner was a respected member

of the community who never would have assisted Knowles in obtaining drugs unless

Knowles had induced him into doing so based on Knowles’s false claim that he needed the

drugs to support his family. Given the defense’s proof and theory at trial, it was clear that

trial counsel’s goal was to have the Petitioner acquitted of the charged offenses, or, at worst,

convicted only of the misdemeanor offenses of simple possession or casual exchange;

therefore, we conclude that trial counsel’s failing to request the facilitation instruction was

not deficient performance.

We also conclude, after fully evaluating the record on direct appeal, that a facilitation

instruction was wholly inconsistent with the trial counsel’s theory of entrapment. It would

have been extremely difficult, if not impossible, for trial counsel to fully commit to the theory

that Knowles induced the Petitioner into assisting him in obtaining drugs for the purpose of

supporting his family and then also argue that if the jury refused to accredit the defense’s

proof regarding the Petitioner’s impeccable character and his unwillingness to assist

Knowles, then they should convict him of the serious offense of facilitation of the sale of a

Schedule I controlled substance within a school zone, a Class B felony. Because trial

counsel’s goal was to have the Petitioner emerge from the trial relatively unscathed, it would

have undermined this goal for trial counsel to also argue that the Petitioner was guilty of the

offense of facilitation to the jury. Trial counsel’s unwillingness to undermine her defense

theory is further supported by her abandonment of her request that the trial court instruct the

jury on the lesser included offense of attempt. Despite trial counsel’s admission at the post-

conviction hearing that she did not make a strategic decision not to request the instruction

on facilitation, we conclude that, in light of her defense theory and the evidence presented

-25-

in her case-in-chief, trial counsel’s decision not to pursue a facilitation instruction was a

strategic one, and therefore, not deficient performance.

Finally, the record supports the post-conviction’s determination that the Petitioner

failed to establish that trial counsel’s performance was deficient because the evidence does

not support a facilitation instruction. In its written order, the court noted that although

facilitation is a lesser included offense of the charged offenses, it was required to instruct on

a lesser included offense only if the evidence supported that offense. See Allen, 69 S.W.3d

at 188. It emphasized that whether the proof supported a facilitation instruction depended

on the Petitioner’s intent at the time of the offenses. The court said that the Petitioner did not

have the requisite intent for facilitation in light of the evidence presented at trial, which

showed that the Petitioner “did more than assist [in] these [drug] sales” because he “entered

into the drug transaction and . . . provided the drugs to the informant[.]” The court found that

although the Petitioner testified that he obtained the drugs from a third party to sell to the

confidential informant, he did not testify that he substantially assisted the third party in the

offense but lacked the intent to promote, assist, or benefit from the offense. We also agree

that the fact the Petitioner obtained drugs from a third party does not require a facilitation

instruction unless there is evidence that the Petitioner, though facilitating the offense, lacked

the intent to promote, assist, or benefit from the offense. The court ultimately held that the

trial counsel was not deficient in failing to request an instruction on facilitation in light of the

evidence at trial and the defense of entrapment. As we will explain, the evidence at trial

established that the Petitioner had the intent, at a minimum, to promote or assist in the

commission of the sale of a Schedule I controlled substance within a school zone. For this

reason, we also conclude that trial counsel’s decision not to pursue a facilitation instruction

was not deficient.

In the event of further review by the Tennessee Supreme Court, we must also

determine whether the Petitioner was prejudiced by trial counsel’s failure to request the

instruction on facilitation. This question hinges on whether the failure to instruct the jury

regarding facilitation as a lesser included offense is harmless beyond a reasonable doubt. See

Robert Gentry Galbreath v. State, No. M2003-02807-CCA-R3-PC, 2005 WL 119534, at *16

(Tenn. Crim. App. Jan. 19, 2005). If the error is harmless, then trial counsel’s failure to

request the facilitation instruction did not prejudice the Petitioner. Id. We note that “‘when

determining whether an erroneous failure to instruct on a lesser-included offense requires

reversal, . . . the proper inquiry for an appellate court is whether the error is harmless beyond

a reasonable doubt.’” State v. Davis, 266 S.W.3d 896, 903 (Tenn. 2008) (quoting Ely, 48

S.W.3d 710, 727 (Tenn. 2001)).

This court has recognized two approaches for deciding whether a trial court’s failure

to charge a lesser included offense is harmless error, and these two approaches guide us in

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determining whether the Petitioner was prejudiced by trial counsel’s failure to request a

lesser included offense. The first approach, which is inapplicable to this case, states that a

Petitioner would be unable to prove that he was prejudiced by trial counsel’s failure to

request a lesser included offense if the jury considered and rejected an “intermediate” or

“buffer” offense between the offense the Petitioner argues should have been charged and the

charge of which he was convicted:

The first approach is implicated where the trial court instructs the jury as to the

charged offense as well as other lesser-included offenses thereof but does not

instruct the jury regarding all of the lesser-included offenses supported by the

evidence. When the jury convicts the defendant of the greater charged offense

rather than the lesser-included offense or offenses, the jury necessarily rejects

all of the other lesser offenses. State v. Locke, 90 S.W.3d at 672; State v.

Allen, 69 S.W.3d at 191; State v. Williams, 977 S.W.2d 101, 106 (Tenn.

1998). Where one of the charged but rejected lesser-included offenses is an

intermediate or buffer offense standing between the errantly omitted

lesser-included offense and the offense for which the defendant was convicted,

the charging error is shown to be harmless beyond a reasonable doubt. State

v. Locke, 90 S.W.3d at 675; State v. Allen, 69 S.W.3d at 190.

State v. Banks, 271 S.W.3d 90, 126 (Tenn. 2008); accord Allen, 69 S.W.3d at 189; State v.

Williams, 977 S.W.2d 101, 106 (Tenn. 1998); Larry Payne v. State, No. W2011-01080-CCA-

R3-PC, 2013 WL 501781, at *5 (Tenn. Crim. App. Feb. 8, 2013); Ydale Banks v. State, No.

W2010-01610-CCA-R3-PC, 2012 WL 1067201, at *13 (Tenn. Crim. App. Mar. 27, 2012),

perm. app. denied (Tenn. Sept. 18, 2012). Because we do not consider the sale or delivery

of a Schedule I controlled substance outside a school zone as an intermediate or “buffer”

offense, this approach is not applicable in this case.

The second approach, which is applicable to this case, “requires the reviewing court

to consider the evidence and then to decide ‘whether a reasonable jury would have convicted

the defendant of the lesser[]included offense instead of the charged offense.’” Banks, 271

S.W.3d at 126 (quoting State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002)). Under this

view, the failure of a court to charge the lesser included offense is harmless beyond a

reasonable doubt if “[i]f no reasonable jury would have convicted the defendant of the

uncharged lesser[]included offense rather than the offense for which the defendant was

convicted.” Id. (citing State v. Locke, 90 S.W.3d 663, 675 (Tenn. 2002)).

This court has recognized a strict interpretation of this second approach, which

concludes that “the failure to charge a lesser-included offense can never constitute reversible

error in a criminal case if the defendant has been found guilty of the greater offense.” Larry

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Payne, 2013 WL 501781, at *4. Pursuant to this view, a defendant’s conviction on a greater

offense is incontrovertible proof that the trial court’s failure to charge the lesser included

offense was harmless error:

According to the strict view, juries are presumed to follow the instructions of

the trial court. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). In

accordance with the supreme court’s holding in State v. Davis, 266 S.W.3d

896, 910 (Tenn. 2008), trial courts are mandated to “instruct the jury to

consider the offenses in order from greatest to least within each count” and

further instruct them that they “shall not proceed to consider any

lesser-included offense until [the jury] has made first a unanimous

determination that the defendant is not guilty of the immediately-preceding

greater offense.” Id. at 910. Under this view, even if the jury had been

charged with the lesser-included offense, it was prohibited from considering

such until after it acquitted the defendant of the greater charge. A defendant’s

conviction of the greater charge is thus irrefutable proof that a trial court’s

failure to instruct on a lesser-included offense was harmless error. By the

same reasoning, in post[-]conviction, a petitioner can never show that his trial

counsel’s failure to request a lesser included offense was prejudicial; the jury’s

conviction of the greater charge prohibited any consideration of a lesser

charge, and consequently as a matter of law there was no possibility

whatsoever–much less a reasonable probability–that but for counsel’s failure

to request the lesser-included offense the result of the proceeding would have

been different.

Id.; accord State v. Nathaniel Shelbourne, No. W2011-02372-CCA-R3-CD, 2012 WL

6726520, at *12 (Tenn. Crim. App. Dec. 26, 2012) (Woodall, J., concurring) (concluding that

even if the lesser included offense had been charged, “the jury was prohibited from

considering it because the jury convicted Defendant of the charged offense . . . , never

acquitted Defendant of that charged offense, and thus could never consider the lesser

included offense . . . even if it had been charged”).

In applying this second approach, we must consider the evidence and then determine

whether a reasonable jury would have convicted the Petitioner of the lesser included offense

of facilitation. The evidence presented at trial showed that the Petitioner agreed to sell one

hundred Ecstasy and methamphetamine pills to Knowles on March 21, 2008, and agreed to

sell two hundred Ecstasy and methamphetamine pills to Knowles on April 23, 2008. In each

of these drug transactions, the Petitioner immediately informed Knowles as to the purchase

price of these drugs, directly contacted the supplier of the pills, and gained possession of the

requested pills within a short time frame. The audiotape of the March 21, 2008 drug

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transaction shows that the Petitioner willingly orchestrated the drug sales for Knowles, made

several phone calls to the supplier to confirm the arrival time, described the types of pills that

would be involved in the transaction, warned Knowles of the side effects of one type of pill,

and informed Knowles that he was going take Knowles’s money and obtain the pills from

the supplier. The tape from the April 23, 2008 transaction shows that the Petitioner told

Knowles that the supplier should be there in ten to fifteen minutes, that the Petitioner asked

Knowles how much money he had for the pills, and that the Petitioner told Knowles to count

the pills, even though his supplier was “usually good[.]” In addition to these audiotapes of

the drug transactions, Detective Loucks testified at trial that the Petitioner told him that he

usually sold “thirty to forty” pills a week. Although the Petitioner claimed that Knowles

enticed him into obtaining the pills by saying that he needed the money from the pills to take

care of his family, the jury rejected this entrapment defense. In addition, although the

Petitioner claimed that he knew the price for certain quantities of drugs because of the

environment in which he lived, the jury rejected this claim by convicting him of the charged

offenses in counts two through five. Upon review, we conclude that a reasonable jury would

not have convicted the defendant of facilitation instead of the charged offenses because the

Petitioner knowingly committed the offense of sale of a Schedule I controlled substance and

because this sale took place within a school zone. Cf. Galbreath, 2005 WL 119534, at *16

(concluding that trial counsel’s failure to request an instruction on facilitation of obtaining

a prescription drug by fraud was not harmless beyond a reasonable doubt where some of the

evidence showed that the Petitioner was picking up the prescription for a friend identified

as “Terry Sanders,” that this friend drove the Petitioner to the pharmacy, and that this friend

fled the pharmacy when the Petitioner was arrested). Moreover, we agree with the State’s

assertion that “[a]lthough the petitioner argues broadly that incurring convictions for

facilitation was ‘one of the possible outcomes had counsel requested a facilitation instruction,

he has not shown that but for counsel’s decision not to request the instruction, a reasonable

probability of that outcome exists.’” Accordingly, trial counsel’s failure to request the

facilitation instruction was not prejudicial.

We also conclude that the Petitioner failed to establish that he was prejudiced by trial

counsel’s alleged deficiency pursuant to the strict interpretation of this second approach,

which focuses on “acquittal-first” jury instructions. Here, the jury was instructed on the sale

and delivery of a Schedule I controlled substance within a school zone, the sale and delivery

of Schedule I controlled substance, and simple possession or casual exchange, and the jury

convicted the Petitioner of the charged offenses in all but count one, where the jury acquitted

the Petitioner of the charged offense and all of the charged lesser included offenses. Even

if trial counsel had successfully requested that the jury receive instructions on facilitation,

the jury was precluded from considering the facilitation offense because it convicted the

Petitioner of the charged offenses, Class A felonies, in counts two through five. Therefore,

the Petitioner is unable to prove prejudice because he failed to establish a reasonable

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probability that, but for counsel’s alleged deficiency regarding the facilitation instruction, the

result of his trial would have been different.

The record supports the post-conviction court’s determination that trial counsel did

not provide ineffective assistance by failing to request the facilitation instruction at trial. The

Petitioner has failed to establish his claim of ineffective assistance of counsel by clear and

convincing evidence and, therefore, is not entitled to relief.

CONCLUSION

We conclude that the Petitioner failed to meet his burden of showing that he was

denied effective assistance of counsel at trial. Accordingly, the judgment of the post-

conviction court is affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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