Mario Morris v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2012

MARIO MORRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 03-01051 W. Mark Ward, Judge

No. W2011-02165-CCA-R3-PC - Filed January 8, 2013

The pro se petitioner, Mario Morris, appeals the denial of his petition for post-conviction

relief, arguing that the post-conviction court erred in finding that he received effective

assistance of counsel at trial and on appeal. Following our review, we affirm the judgment

of the post-conviction court denying the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER

and J EFFREY S. B IVINS, JJ., joined.

Mario Morris, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Betsy Wiseman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

In 2006, the petitioner was convicted by a Shelby County Criminal Court jury of one

count of especially aggravated kidnapping and four counts of aggravated robbery, which the

trial court merged into two counts. Finding the petitioner to be a dangerous offender, the trial

court sentenced him to consecutive terms of ten years for each of the aggravated robbery

convictions and twenty years for the especially aggravated kidnapping conviction, for an

effective term of forty years in the Department of Correction. This court affirmed the

convictions and the trial court’s imposition of consecutive sentencing, but remanded for

resentencing because the petitioner had been improperly sentenced under the 2005

amendments to the sentencing act. State v. Mario Morris, No. W2006-02345-CCA-R3-CD,

2007 WL 4245720, at *1 (Tenn. Crim. App. Dec. 3, 2007). The petitioner was subsequently

resentenced to eight years for each of the aggravated robbery convictions and twenty years

for the especially aggravated kidnapping conviction, with all sentences to be served

consecutively, for a total effective sentence of thirty-six years in the Department of

Correction. This court affirmed the resentencing pursuant to Rule 20 of the Rules of the

Court of Criminal Appeals, and our supreme court denied the petitioner’s application for

permission to appeal. Mario Morris v. State, No. W2008-00586-CCA-R3-CD, 2009 WL

856359, at *1 (Tenn. Crim. App. Mar. 30, 2009), perm. app. denied (Tenn. Aug. 17, 2009).

We provided the following summary of the petitioner’s crimes in our original direct

appeal opinion:

On May 14, 2002, the kidnapping victim, Elisha Wilkins, was alone in

her boyfriend’s Memphis home when a group of armed men broke in

demanding to know where the money was kept. After ransacking the home,

the men took Wilkins’ wallet and car keys, forced her into her vehicle, and

drove her to the residence of her friend, LaTonya Cooper, who was home

alone with her two young daughters. The men forced Wilkins at gunpoint to

knock on the door and identify herself to Cooper, thereby gaining entry into

the home. Once inside, the men searched the home, taking Cooper’s cash,

jewelry, vehicle, and other valuables.

Mario Morris, 2007 WL 4245720, at *1. Wilkins and Cooper each made positive

identifications of the petitioner as one of the gunmen from pretrial photographic lineups they

were shown separately. Each also positively identified him at the preliminary hearing and

at trial. Id. at *2-4. During her trial testimony, Wilkins estimated that the men remained at

her boyfriend’s home for half an hour to an hour before taking her to Cooper’s home, where

they remained for about the same amount of time. Id. at *3. Both Wilkins and Cooper

described how the men threatened the lives of the women and Cooper’s five- and six-year-

old daughters and then forced the women to lie face down on the floor, leading them to

believe they were about to be killed, before they departed the scene. Id. at *2-3.

On July 8, 2009, the petitioner filed a pro se petition for post-conviction relief in

which he raised a number of claims, including ineffective assistance of counsel. Following

the appointment of post-conviction counsel, he filed amended petitions on February 9, 2011,

and on August 18, 2011, in which he alleged that his trial counsel was ineffective for, among

other things, failing to raise at trial or on appeal the issue of whether his dual convictions for

aggravated robbery and especially aggravated kidnapping violated due process under State

v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991), overruled by State v. White, 362 S.W.3d

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559, 578 (Tenn. 2012), failing to properly investigate his background and to introduce

mitigation evidence at sentencing, and failing to investigate the “alleged misdeeds” of

Sergeant Tim Green, a police investigator “who was to have pointed out the [petitioner and

his codefendant] to the witnesses . . . during the photo-arrays.”

We will summarize only the evidentiary hearing testimony that is pertinent to the

issues raised on appeal. Trial counsel, who was appointed to represent the petitioner at trial

and on appeal, testified that he was licensed to practice law in 1992 and that a large part of

his practice until 2006 was devoted to criminal defense. Trial counsel testified that he

considered Anthony when reviewing the case for appeal. However, so much time had

elapsed since trial that he could not remember his analysis of the issue. Instead, all he

recalled was that he ultimately raised on appeal what he believed to be the two best issues,

which involved the sufficiency of the evidence and the sentencing imposed by the trial court.

Trial counsel was confident he investigated the petitioner’s background and had

several discussions with him about sentencing, although he could not remember the specifics.

He said he did not think he ever had the petitioner evaluated for any sort of mental illness,

as he could not recall any mental evaluation being performed. Finally, he testified that he

had no memory of the petitioner’s having told him that a police officer had pointed him out

to the witnesses at the preliminary hearing. Had the petitioner relayed such information to

him, he was confident that he would have brought it to the judge’s attention and more likely

than not he would have filed a motion to suppress the identification. On cross-examination,

trial counsel testified that he represented the petitioner for several years and never saw

anything to indicate that he might not be competent.

The petitioner testified that at his preliminary hearing, Sergeant Green walked in with

the two victims, pointed to him and his two co-defendants, whispered in one of the victim’s

ear, and then turned and left the courtroom. The petitioner said he notified trial counsel

about what he had seen, but counsel kept brushing him off, telling him that he would try to

get the identification thrown out when the case was moved upstairs. The petitioner testified

that he brought it up to counsel again after the case had been transferred to criminal court but

that counsel kept telling him that the issues he wanted raised were “frivolous.” The

petitioner asserted that he mentioned the matter in a letter he sent to counsel, as well in

complaints about counsel he made to the Better Business Bureau and the Board of

Professional Responsibility. He acknowledged that the victims had identified him before the

preliminary hearing from photographic arrays “per Sergeant Green.” On cross-examination,

he stated that he did not have with him in court copies of the letters of complaint in which

he had specifically mentioned counsel’s failure to investigate his allegations about Sergeant

Green.

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On August 26, 2011, the court entered a lengthy written order denying the petition,

finding that the petitioner had failed to meet his burden of demonstrating that he was denied

the effective assistance of counsel. This appeal followed.

ANALYSIS

The post-conviction petitioner bears the burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing

is held in the post-conviction setting, the findings of fact made by the court are conclusive

on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d

497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate

court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts of

the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,

96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed

questions of fact and law, is reviewed de novo, with a presumption of correctness given only

to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel

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falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,

and may not second-guess the tactical and strategic choices made by trial counsel unless

those choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

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

The petitioner argues on appeal that trial counsel was ineffective for failing to raise

an Anthony due process issue with respect to his dual convictions for aggravated robbery and

especially aggravated kidnapping, for failing to present mitigation evidence “to rebut [the

trial court’s] finding that [the petitioner] was anti-social and that he was unwilling to lead a

productive life[,]” and for failing to investigate “the misdeeds” of Sergeant Green, “who was

to have pointed out the defendants to the witnesses prior to the preliminary hearing and

during the photo arrays.” The petitioner alleged that, since the time of trial, Sergeant Green

had been convicted for fraud and theft in federal court.

In denying the petition, the court, among other things, accredited the testimony of trial

counsel that the petitioner never informed him about the alleged tainted witness

identifications. The court also accredited counsel’s testimony that he conducted an

investigation into the petitioner’s background and noted that the petitioner himself failed to

present any witnesses or other mitigation evidence at the evidentiary hearing. Finally, the

court concluded that, under the facts of the case, there was no reasonable probability under

either the Anthony or State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), overruled by White, 362

S.W.3d at 578, tests that the outcome of the trial would have been different had counsel

raised a due process issue regarding the dual convictions.

The record fully supports the findings and conclusions of the post-conviction court.

Trial counsel was confident that he investigated the petitioner’s background and had several

discussions with him about sentencing. He also explained why he did not request a mental

evaluation, testifying that he never saw any signs to indicate that the petitioner was not

competent to stand trial during the years that he represented him. The petitioner has not,

therefore, met his burden of demonstrating that counsel was deficient in his representation

for failing to investigate his background. Moreover, as the post-conviction court noted, the

petitioner himself failed to present any witnesses or other mitigation evidence at the

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evidentiary hearing and thus cannot meet his burden of demonstrating prejudice. In order to

succeed on a claim that counsel did not properly investigate or call favorable witnesses at

trial or sentencing, a petitioner must generally elicit favorable testimony from those witnesses

at the evidentiary hearing, as a post-conviction court may not speculate “on the question of

. . . what a witness’s testimony might have been if introduced” at trial. Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990).

As for trial counsel’s failure to investigate the alleged tainted witness identification,

trial counsel’s testimony, which was specifically accredited by the post-conviction court,

established that the petitioner never informed counsel about Sergeant Green’s alleged actions

in pointing him out to the witnesses at the preliminary hearing. The petitioner cannot show

that counsel was deficient for failing to act on information that he never received.

We, further, note that these two witnesses had already identified the petitioner as one

of the perpetrators from earlier photographic lineups and that the petitioner presented no

evidence at the evidentiary hearing to show that a motion to suppress the witness

identification would have been successful. Although the petitioner alleges in his petition and

brief that Sergeant Green directed the witnesses’ identification of him during the

photographic arrays as well as at the preliminary hearing, he presented no testimony or other

evidence to that effect at the evidentiary hearing. Thus, the petitioner is also unable to show

that he was prejudiced by counsel’s alleged deficiency in performance.

Finally, we conclude that the petitioner has failed to show either a deficiency in

performance or resulting prejudice based on counsel’s failure to raise an Anthony due

process challenge to his dual convictions for aggravated robbery and especially aggravated

kidnapping. If a claim of ineffective assistance of counsel is based on the failure to raise a

particular issue, then the reviewing court must determine the merits of the issue. Carpenter

v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citations omitted). In Anthony, our supreme

court held that due process considerations prevent dual convictions for kidnapping and

another felony when the kidnapping is “essentially incidental” to the accompanying felony.

Anthony, 817 S.W.2d at 305.

In Dixon, our supreme court clarified the standard by setting out a two-part test to

determine whether a separate kidnapping conviction violates due process. 957 S.W.2d at

535. First, the court must determine if the movement or confinement of the victim was

beyond that necessary to consummate the accompanying crime. Id. If so, the court

determines “ whether the additional movement or confinement: (1) prevented the victim

from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a

significant danger or increased the victim’s risk of harm.” Id.

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We agree with the post-conviction court that, given the facts of this case, the petitioner

would not have succeeded with his due process argument under either the Anthony or the

Dixon tests and, thus, is unable to meet the prejudice prong of the Strickland test. We further

conclude that the petitioner is also unable to meet the deficiency prong of the test. “The

determination of which issues to raise on appeal is generally within appellate counsel’s sound

discretion.” Carpenter, 126 S.W.3d at 887. Trial counsel testified that, although he was

unable to remember his analysis of the issue, he considered Anthony when he was reviewing

the record and ultimately raised what he believed to be the two best issues on appeal, which

did not include a due process argument. “[I]neffectiveness is very rarely found in cases

where a defendant asserts that appellate counsel failed to raise an issue on direct appeal,

primarily because the decision of what issues to raise is one of the most important strategic

decisions to be made by appellate counsel.” Kennath Henderson v. State, No.

W2003-01545-CCA-R3-PD, 2005 WL 1541855, at *44 (Tenn. Crim. App. June 28, 2005),

perm. app. denied (Tenn. Dec. 5, 2005). As such, the petitioner cannot show that counsel

was deficient for failing to raise or argue the Anthony issue.

CONCLUSION

Based on our review, we conclude that the petitioner has not met his burden of

showing that he was denied the effective assistance of counsel at trial or on appeal.

Accordingly, we affirm the denial of the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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