Gregory Justice v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 16, 2013

GREGORY JUSTICE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2007-D-3028 Steve R. Dozier, Judge

No. M2012-00183-CCA-R3-PC - Filed May 13, 2013

The Petitioner, Gregory Justice, appeals the Davidson County Criminal Court’s denial of

post-conviction relief from his jury convictions for possession with the intent to sell or

deliver one-half gram or more of a controlled substance, facilitation of the sale of less than

one-half gram of a controlled substance, and felonious possession of marijuana, and his

concurrent sentences of fourteen years, five years, and three years, respectively. The

Petitioner contends that the convictions should be set aside and that he should be granted a

new trial because (1) the count charging possession with the intent to sell or deliver more

than one-half gram of a controlled substance was duplicitous, (2) he was denied his

constitutional right to a trial by a jury and jury unanimity, and (3) trial counsel provided the

ineffective assistance of counsel. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,

J R., J., and P AUL G. S UMMERS, S R.J., joined.

Jeremy W. Parham, Manchester, Tennessee, for the appellant, Gregory Justice.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

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

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

OPINION

This court summarized the facts of the case in the Petitioner’s appeal of his

convictions:

At trial, the State established that on July 20, 2007, Detective Tim

Szymanski of the Narcotics Division of the Metropolitan Nashville Police

Department was working in an undercover capacity. As part of the

investigation, Detective Szymanski was “going to areas of town and

attempting to purchase narcotics from street-level narcotics dealers.” As part

of the investigation, Detective Szymanski wore a wire and was followed

closely by surveillance units and arrest teams while he tried to make drug buys.

Around 6:00 p.m. that evening, Detective Szymanski pulled his

unmarked patrol car into a vacant lot located behind a liquor store on Eleventh

Avenue near Jefferson Street, an area that Detective Szymanski described as

a known drug area. The car was approached by Michael White, who asked

Detective Szymanski what he needed. Detective Szymanski informed Mr.

White that he was looking for twenty dollars worth of cocaine.

Mr. White told the detective that he could get the cocaine, so Detective

Szymanski gave Mr. White a previously photocopied twenty dollar bill. Near

that same time, Defendant Quartez Dryden walked up to the car and wanted

to know if Detective Szymanski needed anything. Detective Szymanski told

Defendant Dryden that he was already getting a “twenty” from Mr. White.

Defendant Dryden insisted that Mr. White would not be able to get the

cocaine. Defendant Dryden then offered to get the detective a “better quality

and quantity of dope.”

Defendant Dryden walked over to where Defendant [Marnita N.]

Roberson was sitting, about twenty-five yards away. Defendant Roberson

looked at the detective and “gave a head nod.” Defendant Dryden walked

back to the car and told the detective that she would not “let the dope go

without the money.” Detective Szymanski retrieved the twenty dollar bill from

Mr. White and gave it to Defendant Dryden.

Defendant Dryden returned to the area where Defendants Roberson and

Justice were sitting and the three formed a “huddle.” Detective Szymanski

could see all three people were “handing things off.” He also saw “Dryden’s

hands come together with Roberson’s and then [Justice’s] hands come

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together” with Defendant Dryden’s. Detective Szymanski admitted that he

could not see exactly what happened in the huddle. When Defendant Dryden

returned to the car, he had a “cupped” hand and got into the car. In the car,

Defendant Dryden held out his hand to reveal “twenty dollars worth of street-

level crack cocaine.” There was one large crack rock “with some crumbs

around it” that appeared to have been broken off [] a larger rock.

At that time, Detective Szymanski gave the “takedown” signal over his

wire. Defendant Dryden cupped his hand again and threw the white rocks that

were in his hand onto the ground. When the other officers arrived, the

suspects were arrested. Detective Szymanski was able to recover the crack

that had been thrown to the ground. At trial, the detective identified the

evidence that was recovered from Defendant Dryden. The case number

assigned to the evidence corresponded to the complaint number on the arrest

report.

Detective Michael Donaldson, another member of the Narcotics Unit

of the Metropolitan Nashville Police Department, was also working with

Detective Szymanski on July 20, 2007. Detective Donaldson was stationed in

a car in a vacant parking lot about fifty feet away from Detective Szymanski’s

car. He could hear the conversations over the wire. Detective Donaldson saw

Mr. White approach the car and heard Detective Szymanski ask for a “twenty.”

Detective Donaldson also heard Defendant Dryden speaking to the detective.

Defendant Dryden told Detective Szymanski that Mr. White was going to sell

him [fake drugs].

Detective Donaldson confirmed that Defendant Dryden claimed that he

could get the “dope” from his sister. Detective Donaldson saw Defendant

Dryden approach Appellant and Defendant Roberson. There was no one

“within fifteen to twenty feet” of them. Defendant Dryden returned to

Detective Szymanski’s car and told him that he needed the money. Detective

Donaldson then saw Defendant Dryden return to the group in the lawn chairs,

make a huddle, and return to Detective Szymanski’s car.

At that time, Detective Donaldson heard the takedown signal. He

ordered Appellant and Defendant Roberson to put their hands up. Detective

Donaldson saw Appellant throw “a small plastic bag that was later recovered

that had crack cocaine in it . . . over his left shoulder.” The bag landed eight

to ten inches away on the other side of the chainlink fence. When Detective

Donaldson retrieved the bag, he noted that it contained one large crack rock

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and two small crack rocks. He estimated that it weighed about one gram and

was worth between sixty to eighty-five dollars. The bag and the crack were

placed into a cellophane evidence bag.

Defendant Roberson’s purse was searched incident to her arrest. There

was no cocaine inside. When Appellant was searched, authorities retrieved a

bag containing leafy, plant-like material from his pants pocket. The marijuana

weighed about a gram and a half. The twenty dollar bill was recovered “on the

ground, in between the two chairs” between Appellant and Defendant

Roberson. The authorities also recovered a black box containing crack and a

crack pipe from Mr. White. This evidence was kept separate from the

evidence seized from Appellant.

State v. Gregory Lamour Justice, No. M2008-02266-CCA-R3-CD, slip op. at 2-4 (Tenn.

Crim. App. Mar. 10, 2010), perm. app. denied (Tenn. June 30, 2010).

At the post-conviction hearing, the Petitioner testified that counsel failed to

communicate with him effectively. He said that there was a conflict between the officers’

reported weight of the drugs and the Tennessee Bureau of Investigation’s (TBI) reported

weight. The officers’ reports are not included in the record, but TBI Agent Cassandra

Franklin testified at the trial about her findings. She said that during her first analysis of the

evidence, there was no indication that the evidence was from multiple charges or defendants

and that she tested only the first bag of white substance. She said the tests established that

the substance was cocaine base, that it weighed more than one-half gram but less than

twenty-six grams, and that the total weight of all the evidence was 17.4 grams. She said the

procedure of testing the drug weight up to the statutory cutoffs was used by the TBI to test

substances more efficiently. She said that when the evidence was returned to her on May 29,

2008, she tested each substance separately and established that the weight of the Petitioner’s

cocaine was 1.03 grams.

The Petitioner testified that counsel wrote him a letter informing him that the TBI

reported 17.4 grams of drugs in this case and that the Petitioner based his defense on the

inaccurate lab report from the TBI. He said counsel did not answer his questions about why

the drugs were not retested or analyzed independently. He said that on the day of his trial,

the TBI agent explained why she wrote the weight on the report but that it was too late for

him to choose a different defense strategy. He said that before hearing from the TBI agent,

his defense strategy was that it was not his intent to sell drugs, that no evidence showed he

was selling drugs, and that the 17.4 grams were different drugs than what the officer found

with him. He said that after hearing from the TBI agent, he and counsel realized 17.4 grams

were not involved. He said counsel did not view the drug evidence until the day of the trial.

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The Petitioner testified that he and counsel did not communicate about how to proceed

with the case from the beginning. He said he asked the trial court to remove counsel from

his case, complained about counsel, and wrote the Board of Professional Responsibility about

the issues he had with counsel. He reviewed letters he received from counsel while

incarcerated and explained his issues with them. He said counsel’s December 13, 2007 letter

stated that the court declined to remove counsel from the case and that the Petitioner had to

choose whether to plead guilty, to testify, or to go to trial. He thought this was

“unprofessional” because counsel was supposed to represent him and only left him those

options without discussing his case. He said counsel’s January 2, 2008 letter stated that

because he participated in a drug transaction with a confidential informant, there was

probable cause for the police to stop and frisk him. The Petitioner said, though, that no

confidential informant was involved. He said that counsel’s statement about a confidential

informant affected his decision to take his case to trial because he knew he had a right to

learn the identity of the confidential informant and cross-examine him at the trial. He learned

from counsel’s January 15, 2008 letter that the State could not confirm the 17.4 grams of

evidence were all cocaine. He relaxed because he thought he would not be charged with

possession of 17.4 grams. He said that counsel’s April 15, 2008 letter discussed his option

to plead guilty but that he did not want to plead guilty because he had a defense based on the

information he was given. He said counsel pressured him to accept a plea agreement.

Counsel’s May 7, 2008 letter stated that counsel had not viewed the drugs and that although

the State may make another plea offer before the trial, the offer was as good as the Petitioner

could expect.

The Petitioner testified that he did not believe counsel appreciated his input and that

he was expected to do the research and have his own answers. He said counsel did not

accept his input during the trial regarding his best interests. He said that in a June 8, 2008

letter, after his trial but before his appeal, counsel was adamant about his admitting his guilt

of the charges against him. He said that he knew the process and that an admission would

have harmed him in the appellate courts.

The Petitioner testified that one month before the trial, counsel told him the State

offered a plea agreement for two years and one month. He said that after the trial, he was

told about additional offers that had been made but not communicated to him. He said that

counsel told him “something about six years” on the day of the trial and that he asked counsel

why the offer went from two years to six years. He said that counsel told him the State

would not “go back down anymore” and that counsel did not discuss plea negotiations again.

Upon questioning by the trial court, the Petitioner testified that he did not accept the

two-year, one-month offer because he was serving a sixteen-year sentence before the trial.

He said he would “flatten” the sixteen-year sentence in 2009 without the additional two years

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and one month. He said that he would have accepted the two-year offer if he had known

about it because he still could have finished both sentences in 2009 with determinant release.

He said, though, that a two-year, one-month sentence was not a determinant release sentence

because of the additional month and that it would have required him to serve the remainder

of the sixteen-year sentence before beginning the two-year, one-month sentence.

Upon further questioning by post-conviction counsel, the Petitioner testified that trial

counsel told him about the two-year offer after the jury returned the verdicts. He stated that

counsel said the State made a better offer of two years and that counsel told him to accept the

offer. He said he told counsel that he had not received the offer. He said he received a letter

from counsel after the trial stating that the Petitioner received a two-year offer from the State

the morning of the trial but that the Petitioner rejected the offer. The Petitioner denied

receiving the offer that morning.

On cross-examination, the Petitioner testified that he wanted counsel to investigate

his case and not just tell him that his options were to testify, to go to trial, or to plead guilty.

He said he wanted the drugs independently analyzed because it was his right, but he did not

know if an independent examination would have contradicted the TBI report. He said that

other than the independent analysis, he would have left the investigation to counsel. He said

counsel would have known the drugs did not weigh 17.4 grams if counsel had seen them.

He said he did not know if the drugs weighed more than one-half of a gram even though he

had five previous cocaine possession convictions.

The Petitioner testified that although he did not intend to plead guilty before the trial

because he was innocent, it may have been in his best interests to accept the two-year offer,

if it had been communicated to him because of the difference in the amount of time he faced

if convicted. After being directed to counsel’s December 13, 2007 letter detailing the time

the Petitioner could serve if convicted of the charges, the Petitioner said that counsel gave

him “a lot of numbers” but that did not mean he believed counsel because counsel had

detailed “a lot of things that weren’t true.” He agreed that counsel gave him the information

but that he chose not to believe it.

The Petitioner testified that counsel did not communicate with him about the facts of

his case. He said that counsel discussed information about his case in the letters but not the

facts. He said counsel discussed the police officers involved in the case and their expected

testimony. He said counsel told him the officers would testify that they saw the Petitioner

in a group, that based on their training it appeared to be a drug deal, and that they saw the

Petitioner throw a large bag of cocaine before his arrest.

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Upon questioning by the trial court, the Petitioner testified that counsel was “throwing

all these numbers out, you’re facing 12 to 20 on this, 8 to 12 on this” and that counsel told

him the court would “stack” his sentences for an effective thirty-four-year sentence. He said

this was wrong because it did not happen. The court said that the possible sentence did not

happen because it sentenced him to something different but that the longer sentence could

have been imposed. The Petitioner responded that he did not see how he could have received

a thirty-four-year sentence for possessing one gram of cocaine. The court explained that if

the Petitioner was given the maximum sentence for each of his charges, the total would be

thirty-four years. The Petitioner said that counsel told him he faced thirty-four years but that

he was not charged with or sentenced to the maximum. He never agreed that the thirty-four-

year sentence was an accurate calculation of the possible maximum sentence but said he

understood he was facing a longer sentence than what he was last offered by the State. He

said he did not know before the trial that the marijuana charge was a felony and assumed it

was a misdemeanor. After reviewing counsel’s December 13, 2007 letter, the Petitioner

agreed that he was wrong in saying counsel never told him the marijuana charge was a felony

because the letter stated the charge was for “felonious simple possession.” He said, though,

that he did not believe anything counsel wrote him because counsel told him “a lot of stuff”

that was inaccurate.

On cross-examination, the Petitioner testified that counsel communicated several

things related to his case but that those were “just formalities.” He said that in his opinion,

counsel did not complete the work required of an attorney. He said that he never claimed

counsel did not communicate with him but that counsel was ineffective in defending him.

He said counsel spoke with him but did not communicate the facts and ramifications that his

case and its defense involved.

Counsel testified that he had been licensed to practice law in Tennessee since 2004

and that eighty to ninety percent of his practice was dedicated to criminal defense. He said

that he was appointed in 2007 to represent the Petitioner. He said that at that time, he had

been practicing a little more than three years and that the Petitioner’s trial was probably his

fourth jury trial. He said that after the Petitioner’s parole was revoked, the Petitioner was

incarcerated in Hardeman County, which was not a feasible location for face-to-face

meetings. He said that they had courtroom “discussion dates” in which they communicated

directly but that communication was primarily by mail. He said that before the case was set

for trial, they had frequent face-to-face meetings but that after the case was set, he did not

see the Petitioner until the weekend before the trial. He said that he communicated with the

Petitioner by mail at least every two to four weeks before the trial. He said that he talked to

the Petitioner about the State’s discovery materials before setting the case for trial and that

after the case was set, he had more in-depth conversations with the Petitioner.

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Counsel testified that he and the Petitioner did not get along from the beginning and

that some of the conversations they had in person were shorter than he wanted because of the

animosity. He said that he took the time to explain in his letters the things he did not feel he

had explained in person about the process, the State’s discovery, and the State’s intended

evidence against the Petitioner. He said that letters were the primary way he and the

Petitioner communicated because the in-person conversations were not as fruitful as he

would have liked. He said that he was detailed in the letters about the case, that he wrote the

Petitioner about the possible punishment the Petitioner faced if convicted at a trial, and that

he explained some of the evidence the State intended to present. He said the Petitioner wrote

letters asking questions. He said that they wrote frequently and that he tried to answer the

Petitioner’s questions.

Counsel testified that some of the Petitioner’s questions concerned the recourse he

would have because he did not want counsel to represent him. He said that on the day the

trial court set the case for trial, the Petitioner asked the court to relieve counsel but that the

court denied the Petitioner’s request. He said that the Petitioner filed a complaint with the

Board of Professional Responsibility, that the Board interpreted the complaint to involve a

lack of communication between the Petitioner and counsel, and that he communicated

additionally with the Petitioner. He said that the Petitioner’s questions “were all over the

map,” that he tried to answer the questions, and that he told the Petitioner they were “kind

of stuck with each other” and needed to prepare for a trial. He said that he asked the

Petitioner if he would accept a misdemeanor plea offer, which was as low as the offer could

possibly be, and that the Petitioner said, “No.”

Counsel testified that he communicated the State’s offers to the Petitioner in letters

and in person. He said that in the fall of 2007, the State offered a two-year, one-month

sentence to run consecutively to the sentence the Petitioner was serving. He said he thought

the trial court might consider consecutive sentencing with the Petitioner’s previous

convictions. He said he told the Petitioner that by statute, the sentence he received would be

consecutive to the sentence he was serving because of the parole violation. He did not recall

telling the Petitioner that he had to plead guilty but did recall telling him that he had to decide

whether to plead guilty and whether to testify at a trial.

Counsel testified that he told the Petitioner about the two-year, one-month offer. He

said the prosecutor amended the State’s offer to two years on the morning of the trial, which

made the Petitioner eligible for determinate release. He said he remembered conveying the

two-year offer to the Petitioner but did not remember the exact conversation because it was

the morning of the trial with a lot happening. He said that the Petitioner did not accept the

two-year offer, which was consistent with the position the Petitioner had always taken. He

said that after the trial court ruled on a chain of custody issue concerning the cocaine, the

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Petitioner expressed interest in pleading guilty. He said he remembered talking to the

prosecutor about whether they could still negotiate but did not remember if the prosecutor

made a six-year offer.

Counsel testified that the TBI report regarding the drugs was confusing. He said it

showed that one gram of material was tested and that 17.4 grams of material were untested.

He said the Petitioner received a copy of the report and asked questions. He said that he did

not know the answers but that the TBI agent explained the numbers to him by telephone in

January 2008. He stated the agent said that the TBI weighed the amount of the substance up

to the different statutory provision’s weight and that she stopped analyzing the substance

once she reached one gram but knew she would not reach twenty-six grams. He said the TBI

agent did not tell him there were substances other than cocaine in the evidence bag. He

stated that people other than the Petitioner and his codefendants were arrested in the “buy

bust operations” and that the police placed all the evidence under one complaint number and

in the same evidence bag. He said that the others were never codefendants in the case but

that the evidence was retained in the same bag. He said he learned later that the 17.4 grams

included the other people’s cocaine and that there was never 17.4 grams in the Petitioner’s

case.

Counsel testified that the confusion about the amount of cocaine led him and the

Petitioner to present a chain of custody defense but that the trial and appellate courts

concluded there was no issue. He said he thought he hurt the Petitioner’s chances at the trial

because he asked the prosecutor for a letter allowing him to go to the property room. He said

that he asked for the letter within thirty days of the trial and that he asked the people in the

property room when the evidence was sent to the TBI and what was tested. He said that it

became clear to him that the State had not tested all the substances in the bag and that the

cocaine in the Petitioner’s case was not tested. He thought the prosecutor had all the

substances retested after his investigation and three or four days before the trial. He said that

he received a fax on the Friday or the weekend before the trial with new information and that

he could not have presented the information to the Petitioner sooner than he did. He said that

his investigation efforts in the property room hurt the Petitioner because it drew the State’s

attention to the issue. He said that he filed a motion in limine to exclude the report as late

discovery but that the motion was denied. He said that he would have liked to have had a

clearer understanding earlier but that he felt he did what he could to understand. He said that

although it was confusing, the Petitioner could have taken the plea offer on the morning of

the trial after everything became clear.

On cross-examination, counsel testified that he did not remember exactly when he

viewed the drugs in the property room but that it was three to four weeks before the trial,

sometime in May 2008. He said that he did not recall if he wrote the Petitioner a letter about

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his investigation in the property room but that he visited the Petitioner the weekend before

the trial and told him he went to the property room. The trial court reviewed counsel’s

appointed counsel claims sheet and asked counsel if the claims sheet was correct in showing

that counsel went to the property room on May 20 and went to visit the Petitioner on May 31.

He agreed that he did not have any notes from his discussion with the Petitioner the weekend

before the trial.

Counsel testified that the Petitioner’s case was his first felony drug jury trial and the

first time he encountered issues regarding the chain of custody of drugs. He said he had

other cases that involved evidence in the property room and chain of custody issues. He said

he felt the chain of custody issue was the primary defense because there was a fourth person

involved who was not a codefendant and all the property was logged under the same

complaint number. He said that it would have been beneficial to file a motion in limine to

determine before the trial if the evidence would be admitted but that based on his then-

limited experience and advice from other attorneys, he did not think the timing was right to

file the motion until the State moved to have the evidence admitted. He said he did not

remember discussing the filing of a pretrial motion with the Petitioner. He said he told the

Petitioner that the chain of custody issue was the best defense at the trial and that the offer

he received from the State was “extremely favorable.” He said he told the Petitioner that the

State’s case must be weak for the district attorney to have offered a two-year plea agreement

in spite of his record and his being on parole for six weeks but that this did not guarantee a

favorable outcome at the trial. Counsel said that he was aware of the Petitioner’s argument

that his indictment and jury verdict were defective and that he did not raise the issue during

the trial or on appeal.

In denying the petition for post-conviction relief, the trial court credited counsel’s

testimony. The court noted that it read the letters counsel sent to the Petitioner and found

that counsel “repeatedly and accurately” informed the Petitioner of the charges against him

and the possible sentences he faced if found guilty at the trial. The court found that counsel

told the Petitioner about the two-year, one-month plea offer in his letters and that counsel

communicated to the Petitioner the two-year plea offer made at the trial but that the Petitioner

would not consider pleading guilty to a misdemeanor. The court found that the Petitioner’s

“unfortunate and misguided” decision not to believe counsel did not mean that he was

uninformed or that counsel provided ineffective assistance. The court found that counsel’s

letters to the Petitioner discussed possible trial strategies, methods for cross-examining the

State’s witnesses, and substantive criminal law relevant to the case. The court found that the

Petitioner made a “well-informed” decision when he decided to reject all plea offers and

proceed to a jury trial and that no merit existed regarding the Petitioner’s issue of counsel’s

failing to effectively communicate with him before the trial. The court also found no merit

to the Petitioner’s issue regarding counsel’s failing to investigate properly the weight of the

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drugs and credited counsel’s testimony, which established that he investigated the issues and

kept the Petitioner well-informed of his efforts. The court found that the Petitioner was

charged and found guilty of possession with intent to “sell or deliver” and that an election

of offenses was not required for that charge. This appeal followed.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Fields, 40

S.W.3d at 457. Post-conviction relief may only be given if a conviction or sentence is void

or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

I

The Petitioner contends that his conviction must be vacated because a count in his

indictment contains duplicitous charges against him. The Petitioner argues that the

indictment charges him with two separate crimes, possession with the intent to sell and

possession with the intent to deliver. The State contends that the issue standing alone is

waived because claims of a defective indictment must be addressed before the trial or are

waived and that the issue is waived as a post-conviction claim because it could have been

raised in the trial court.

The statutory and constitutional requirements for an indictment are satisfied when the

indictment fulfills the “overriding purpose of notice to the accused.” State v. Hammonds,

30 S.W.3d 294, 300 (Tenn. 2000). The only defects which may be challenged at any time

are those that create a lack of subject matter jurisdiction in the court and those that show the

indictment failed to charge an offense. See Tenn. R. Crim. P. 12(b)(2)(B); State v. Nixon,

977 S.W.2d 119, 120-21 (Tenn. Crim. App. 1997). A duplicitous indictment does not

remove jurisdiction from the trial court, and the indictment in this case charges all the

elements of an offense. See State v. Lindsey, 208 S.W.3d 432, 438-439 (Tenn. Crim. App.

2006). Nothing in the record shows that the Petitioner objected to a defect in the indictment

before the trial, and he did not address the issue during the appeal of his convictions. The

Petitioner first addressed the issue in his amended petition for post-conviction relief. See

T.C.A. § 40-30-106(g) (2010). Because the Petitioner failed to raise the issue before the trial,

the issue is waived.

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II

The Petitioner contends that his felonious possession of one-half gram or more of a

controlled substance convictions must be vacated because he was denied his constitutional

right to a trial by a jury and jury unanimity. He argues that the indictment, verdict, and

judgment violated his constitutional right to a trial by a jury and jury unanimity because the

jury verdict form does not elect between the two offenses charged, possession with the intent

to sell and possession with the intent to deliver. He argues that the verdict form says

“possession with intent to deliver or sell .5 grams or more,” that the sentencing order says

“Possession with Intent to Deliver or Sell over .5 grams or more of cocaine,” that the

judgment says only “Possession of Cocaine Over .5 Grams w/ Intent,” and that none of these

is an effective election. He argues that the State’s failure to identify the crime charged is

fatal to his conviction and that his post-conviction petition should be granted. The State

contends that because the issue relies on the indictment being defective, the issue is waived.

In the alternative, the State contends there was no risk of a “less-than-unanimous verdict”

because the indictment charged one offense.

When only a single transaction is at issue, an election of offenses is not necessary.

See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000) (“When the evidence does not

establish multiple offenses have been committed, . . . the need to make an election never

arises.”). There are no jury unanimity concerns when the jury considers proof of only one

offense. See Arthur Lee Taylor v. State, No. W2011-00027-CCA-R3-PC, slip op. at 9 (Tenn.

Crim. App. Feb. 7, 2012), perm. app. denied (Tenn. May 16, 2012), cert. denied, 133 S. Ct.

382 (2012). When a single crime may be committed with different intents, jury unanimity

is not required as to the particular means or intent.

Where the intent with which . . . an act is done [is] essential to the commission

of the offense, and the offense may be committed with different intents . . . if

the jury is satisfied that the act was committed with one (1) of the intents . . .

the jury shall convict, although uncertain as to which of the intents charged

existed[.]

T.C.A. § 40-18-112 (2012). Because the record shows the Petitioner participated in a single

drug transaction and possessed one bag of cocaine, the State was not required to elect the

particular intent with which he possessed the drugs.

“It is an offense for a defendant to knowingly: (1) Manufacture a controlled substance;

(2) Deliver a controlled substance; (3) Sell a controlled substance; or (4) Possess a controlled

substance with the intent to manufacture, deliver, or sell the controlled substances.” T.C.A.

§ 39-17-417(a) (2010). The count of the indictment at issue charged that the Petitioner

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“knowingly did possess with intent to sell or deliver .5 grams or more of a substance

containing cocaine,” an offense under Code section 39-17-417(a)(4). This offense can be

committed with any of the three proscribed intents, and if the evidence satisfies one of the

intents charged, the jury can convict although uncertain of which intent existed. See id. § 40-

18-112; Arthur Lee Taylor, slip op. at 7.

The Petitioner was not charged with delivery or sale of cocaine under Code section

39-17-417(a)(2) and (3). See State v. Angela E. Isabell, No. M2002-00584-CCA-R3-CD,

slip op. at 3-4 (Tenn. Crim. App. June 27, 2003) (concluding that an indictment or

presentment should not charge both delivery and sale in the same count). Instead, the

Petitioner was charged with possession with the intent to sell or deliver, an offense in its own

subpart. See T.CA. § 39-17-417(a)(4); see also State v. John Tyree Lytle, No. E2003-01119-

CCA-R3-CD, slip op. at 4 (Tenn. Crim. App. May 3, 2004) (concluding there was no plain

error with jury unanimity when the defendant was not charged with the delivery and sale of

cocaine, which are listed in two separate subparts of the statute, but charged only as to

subpart (4), which includes possession with intent either to “deliver or sell”). The indictment

charged the Petitioner with the crime of possession, not with the separate crimes of delivery

and sale, and listed two different intents. See Arthur Lee Taylor, slip op. at 7. We see no

constitutional infirmity in the Petitioner’s indictment and conclude that the jury verdict was

unanimous. The Petitioner is not entitled to relief on this issue.

III

The Petitioner contends that he was denied the effective assistance of counsel. He

argues that counsel failed to object to the duplicitous indictment before the trial or on the

appeal, that counsel failed to communicate effectively with him before the trial, and that

counsel failed to investigate properly before the trial. He argues that the cumulative effect

of counsel’s errors requires that he be granted a new trial. The State contends that the

Petitioner received the effective assistance of counsel. We agree with the State.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

petitioner must also show that but for the substandard performance, there is a “reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. The Strickland standard has been applied to the right to counsel under article

I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

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In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within

the range of competence demanded of attorneys in criminal cases. Further, the court stated

that the range of competence was to be measured by the duties and criteria set forth in

Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,

487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487

F.2d at 1201.

A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

A. Indictment and Jury Unanimity

The Petitioner asserts that counsel was ineffective because he failed to object to a

duplicitous indictment before the trial or on appeal. The State counters that the indictment

charged one offense and that counsel was not deficient for failing to object to the valid

indictment. We agree with the State.

As previously stated, the indictment charged that the Petitioner “knowingly did

possess with intent to sell or deliver .5 grams or more of a substance containing cocaine.”

(emphasis added). The Petitioner was not charged with the two crimes of delivery and sale

of cocaine but was charged with the separate crime of possession with the intent to sell or

deliver. See T.C.A. § 39-17-417(a)(2), (3), (4); see also John Tyree Lytle, slip op. at 4;

Angela E. Isabell, slip op. at 3-4. We have concluded that the indictment charged the

Petitioner with one offense. The record shows the Petitioner possessed one bag of cocaine.

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Jury unanimity concerns are not implicated when the jury is considering proof of only one

offense. See Arthur Lee Taylor, slip op. at 9. When the single crime may be committed by

different means, jury unanimity is not required as to the particular means or intent. T.C.A.

§ 40-18-112 (2012). Because the indictment did not deny the Petitioner his right to notice

of the crime charged or jury unanimity, the Petitioner has not shown counsel was deficient

in failing to object to the valid indictment or that he was prejudiced. The Petitioner is not

entitled to relief on this issue.

B. Communication

The Petitioner asserts that counsel failed to communicate with him before the trial.

The State counters that the evidence does not preponderate against the trial court’s finding

that counsel adequately communicated with the Petitioner. We agree with the State.

The letters counsel wrote the Petitioner discussed possible trial strategies, methods for

cross-examining the State’s witnesses, and relevant substantive criminal law. The trial court

credited counsel’s testimony and found that counsel communicated the charges against the

Petitioner, the possible sentences he faced, and the State’s plea offers. The court found that

the Petitioner’s decision not to believe counsel did not mean he was uninformed and that he

was informed when he decided to reject all plea offers. Although the Petitioner argues that

he was prejudiced by counsel’s failure to communicate the State’s two-year offer on the day

of the trial, the court credited counsel’s testimony that counsel communicated the offer. The

evidence does not preponderate against the court’s factual findings. The Petitioner is not

entitled to relief on this issue.

C. Investigation

The Petitioner asserts that counsel failed to investigate properly because counsel did

not review the physical evidence against him before the trial. The State counters that counsel

investigated the case and was not deficient. We agree with the State.

Counsel testified that the TBI report regarding the weight of the drugs showed that

the TBI tested one gram of material and that 17.4 grams of material was untested. In January

2008, counsel talked to the TBI agent, who explained the numbers but did not tell him

substances other than cocaine were in the evidence bag. He viewed the evidence in the

property room in May 2008, a few weeks before the trial, and the prosecutor had all the

substances retested three or four days before the trial. He received a fax with the new

information the weekend before the trial and presented the information to the Petitioner when

they met the same weekend. The motion in limine to exclude the report as late discovery was

denied. He told the Petitioner he went to the property room and that the chain of custody

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issue was the best defense at the trial. Counsel investigated and made tactical and strategic

decisions based on his investigation and communications with the Petitioner. The trial court

credited counsel’s testimony establishing that he investigated the issue about the weight of

the drugs and kept the Petitioner well-informed of his efforts. The evidence does not

preponderate against the court’s factual findings. The Petitioner is not entitled to relief on

this issue.

D. Cumulative Error

The Petitioner asserts he should be granted a new trial because of counsel’s

cumulative errors. The State argues that the record does not show any constitutional

deficiencies in counsel’s performance and that the Petitioner is not entitled to relief. We

agree with the State.

The cumulative error doctrine stands for the proposition that “multiple errors

committed in the trial proceedings, each of which in isolation constitutes mere harmless

error, but which when aggregated, have a cumulative effect on the proceedings so great as

to require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324

S.W.3d 1, 76-77 (Tenn. 2010) (internal citations omitted).

We have concluded that counsel’s performance was not deficient. We conclude that

counsel’s performance did not cumulatively prejudice the Petitioner in his right to a fair

proceeding or call into question the reliability of the jury’s verdict. The record shows that

counsel investigated and prepared adequately for the Petitioner’s trial.

The Petitioner has failed to establish that he is entitled to relief. In consideration of

the foregoing and the record as a whole, the judgment of the trial court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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