Cortino Harris v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 1, 2012

CORTINO HARRIS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-11-37 Donald H. Allen, Judge

No. W2011-02019-CCA-R3-PC - Filed September 27, 2012

The Petitioner, Cortino Harris, appeals as of right from the Madison County Circuit Court’s

denial of his petition for post-conviction relief. The Petitioner contends that he received

ineffective assistance of counsel because trial counsel failed to investigate and call at trial

several eyewitnesses to the crime. Following our review, we affirm the judgment of the post-

conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Cortino Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; James

G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Following a jury trial in September 2008, the Petitioner was convicted of possession

of marijuana with intent to sell, a Class E felony, and evading arrest, a Class A misdemeanor.

See Tenn. Code Ann. §§ 39-16-603, -17-417. The Petitioner was sentenced to four years in

the Department of Correction for the felony conviction and eleven months, twenty-nine days

on the misdemeanor conviction. The sentences were ordered to be served consecutively. On

direct appeal, this court affirmed the Petitioner’s convictions and sentences. See State v.

Cortino Harris, No. W2009-00457-CCA-R3-CD, 2010 WL 376622 (Tenn. Crim. App. Feb.

2, 2010), perm. app. denied, (Tenn. June 16, 2010). The Petitioner filed a timely pro se

petition for post-conviction relief. The post-conviction court appointed counsel, and an

amended petition was filed.1 Following a hearing on August 29, 2011, the post-conviction

court entered an order denying post-conviction relief.

The Petitioner’s case arose from “a drug transaction that was witnessed by an

undercover officer” of the Jackson Police Department (JPD). The officer was “working an

auto burglary detail” when he noticed two cars, one silver and one black. The officer saw

a “white male” exit the silver car and enter the black car. The officer then witnessed “an

exchange between the white male and one of the occupants of the black vehicle,” but he

could not determine exactly who in the black vehicle had made the exchange. The officer

testified at trial that the exchange took “approximately ten minutes.” As the cars drove away,

the officer “radioed for assistance” and asked that both cars be stopped. The silver car was

stopped and a search revealed “a small bag of marijuana.” The “two white male occupants”

were apparently released with only a citation. Harris, 2010 WL 376622, at *1-2.

Sergeant Philip Whitman of the JPD stopped the black car. At trial, Sgt. Whitman

identified the Petitioner as the driver of the black car and testified that the Petitioner gave his

“license and registration” to Sgt. Whitman. The Petitioner’s driver’s license and registration

were entered into evidence at trial. After Sgt. Whitman was informed “that narcotics had

been recovered from the silver vehicle,” he approached the Petitioner and asked to search the

car. The Petitioner stepped out of the car, and Sgt. Whitman told the Petitioner that he was

“going to conduct a pat-down search.” At that point the Petitioner “broke and ran.” Officers

attempted to catch the Petitioner, but the Petitioner was able to escape. Sgt. Whitman

testified that “he was about to take the [Petitioner] into custody and arrest him when he ran

off.” At trial, Sgt. Whitman “recalled that [a] passenger remained in the vehicle, and they

let him go after conducting a warrant check on him.” The police then “conducted an

inventory search of the [Petitioner’s] abandoned vehicle” and recovered “57.4 grams of

marijuana” located “in the console.” Harris, 2010 WL 376622, at *2-3.

At the post-conviction hearing, trial counsel testified that the passenger in the

Petitioner’s car that night was Anthony McCurry. Trial counsel testified that the police had

concluded that Mr. McCurry “didn’t have anything to do with any sort of selling of

marijuana” and “they just let him walk away down the by-pass.” According to trial counsel,

his investigator attempted “two or three time to serve [Mr. McCurry] at . . . the address that

[they] had” but could not locate him. Mr. McCurry’s father lived at the address and told the

investigator that “he didn’t know where [Mr. McCurry] was and that he hadn’t seen him.”

Trial counsel believed that Mr. McCurry was “unwilling to take the stand” and would have

likely “pled the [F]ifth” if asked about the marijuana. Trial counsel admitted that he would

1

It appears from the record that an amended petition was filed. However, the amended petition was not

included as part of the appellate record.

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have liked “to have found Mr. McCurry to be able to speak to him or at least subpoena him

to court” because the Petitioner told trial counsel that Mr. McCurry might have testified that

he “had borrowed [the Petitioner’s] vehicle” and that the Petitioner was not in the car.

However, trial counsel “didn’t have a way to confirm that with [Mr. McCurry].” Trial

counsel was not asked about whether he attempted to locate the occupants of the silver car.

The Petitioner admitted that his car was stopped by the police but claimed that he was

not in the car that night. The Petitioner claimed that someone else had given Sgt. Whitman

his driver’s license and explained that he kept his driver’s license in his car because, at that

time, he “didn’t have a wallet.” The Petitioner complained that he “never had a chance to

confront [his] accusers,” the two “white male occupants of the silver car.” The Petitioner

claimed that “[n]o one [knew] who they were” and that prior to trial, “no one could come up

with a name or a citation” for the men. The Petitioner testified that when he asked trial

counsel to find the men, trial counsel responded that “no one [knew] where they’re at” and

that they could not “be found.” The Petitioner claimed that he did not know Mr. McCurry

but that he believed Mr. McCurry would have testified that he was not in the car. On cross-

examination, the State pointed out that the Petitioner was not convicted for selling marijuana

to the occupants of the silver car but for possession with intent to sell based upon the

marijuana found in his car. The post-conviction court asked the Petitioner why he believed

that testimony from the occupants of the silver car would have benefitted him at trial when

the affidavit of complaint signed by Sgt. Whitman stated that the men in the silver car had

identified the Petitioner as the person who sold them marijuana. The Petitioner responded

that he did not know but that they would “just have to find out and see.” The Petitioner did

not present Mr. McCurry nor the occupants of the silver car as witnesses at the post-

conviction hearing.

The post-conviction court denied post-conviction relief and concluded that it did not

“see that there’s anything that [trial counsel] failed to do.” With regards to trial counsel not

investigating the witnesses the Petitioner complained of, the post-conviction court stated as

follows:

[Trial counsel] certainly attempted to locate this Anthony McCurry. Again,

I’m not sure what testimony Mr. McCurry may have offered, but it may not

have been beneficial to the [Petitioner]. I mean, who knows, but at least there

was effort made by counsel to locate him. Apparently he could not locate him.

Obviously the case went to trial without Mr. McCurry’s testimony, but there’s

nothing to indicate to the Court that Mr. McCurry’s testimony would have

been beneficial to the [Petitioner]. Certainly by looking at the Affidavit of

Complaint, these two white males in this gray car, I don’t think that their

testimony would have been beneficial to [the Petitioner]. If anything, it would

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have been detrimental because according to the affidavit of Sergeant Whitman,

[the Petitioner] was identified by these two white male individuals as being the

person who sold them the marijuana that was found in their car. I’m not sure

- - certainly it wouldn’t have been ineffective even if [trial counsel] had

located them, I don’t think he would have wanted to call them as a witness on

[the Petitioner’s] behalf. I don’t think that would have been a smart thing to

do as defense counsel.

On appeal, the Petitioner contends that the trial court erred by denying his petition for

post-conviction relief. In a single paragraph of argument, the Petitioner complains that trial

counsel “did not make a diligent or effective effort” in attempting to locate Mr. McCurry and

the occupants of the silver car and failed to have them testify at trial.2 The State responds

that the Petitioner, by failing to call the witnesses at the post-conviction hearing, cannot

establish that trial counsel was ineffective.

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

allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.

Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).

On appeal, we are bound by the post-conviction 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 (Tenn. 2001). Additionally, “questions concerning the credibility of the

witnesses, the weight and value to be given their testimony, and the factual issues raised by

the evidence are to be resolved” by the post-conviction court. Id. Because they relate to

mixed questions of law and fact, we review the post-conviction 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. Id. at 457.

Under the Sixth Amendment to the United States Constitution, 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 falls below a reasonable

standard is not enough; rather, the petitioner must also show that but for the substandard

performance, “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,

2

The Petitioner raised several other issues in his petition for post-conviction relief. The post-conviction court

denied post-conviction relief on these claims as well. The Petitioner presented no evidence at the post-

conviction hearing on these issues and has waived appellate review of the issues by not raising them in his

brief. See Tenn. R. App. P. 13(b).

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

1989).

This court has long held that when a petitioner contends that trial counsel failed to call

a known witness in support of the defense, the witness “should be presented by the petitioner

at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

“[T]his is the only way the petitioner can establish that . . . failure to . . . call the witness to

the stand resulted in the denial of critical evidence which inured to the prejudice of the

petitioner.” Id. The Petitioner failed to present Mr. McCurry or the occupants of the silver

car at the post-conviction hearing; therefore, the Petitioner has failed to establish by clear and

convincing evidence that trial counsel was ineffective for failing to investigate and call these

witnesses at trial.

Upon consideration of the foregoing and the record as a whole, the judgment of the

post-conviction court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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