Theron Davis v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 2, 2011 Session

THERON DAVIS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-28041 James M. Lammey, Jr., Judge

No. W2010-01607-CCA-R3-PC - Filed December 16, 2011

A Shelby County jury found the Petitioner, Theron Davis, guilty of attempted second degree

murder and especially aggravated robbery, and the trial court sentenced him to an effective

sentence of thirty-five years in the Tennessee Department of Correction. The Petitioner

appealed, and this Court affirmed the convictions in State v. Theron Davis, No. W2002-

00446-CCA-R3-CD, 2003 WL 21339000, at *13 (Tenn. Crim. App., at Jackson, May 28,

2003), perm. app. denied (Tenn. Oct. 6, 2003). The Petitioner filed a petition for post-

conviction relief, which the post-conviction court denied after a hearing. On appeal, the

Petitioner contends that the post-conviction court erred when it dismissed his petition

because he received the ineffective assistance of counsel. After a thorough review of the

record and applicable law, we affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH

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

Robert Brooks, Memphis, Tennessee, for the appellant, Theron Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Amy P. Weirich, District Attorney General; Stacy M. McEndree, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

A. Trial

This case arises from the Petitioner’s robbery and repeated shooting of the owner of

a Memphis jewelry store. Based on this conduct, a Shelby County grand jury indicted the

Petitioner for especially aggravated robbery and attempted first degree murder. On direct

appeal, this Court summarized the underlying facts of the case as follows:

Shortly after 10:00 a.m. on December 28, 1999, the [Petitioner],

Theron Davis, and a codefendant, Herman Spencer, entered the Summer

Avenue jewelry store of the victim, Gary Smallwood, and asked to be shown

some diamond rings. After the victim retrieved the jewelry from the store

safe, the [Petitioner] pointed a gun at his face and ordered him down onto the

floor. The [Defendant] then dumped the contents of a trash can on the

victim’s head, removed the plastic liner from the can, and began emptying

jewelry from the store’s display cases into the liner, while Spencer occupied

himself in a similar fashion at other display cases using a liner taken from

another trash can. At one point during the ten to twelve minutes the victim

estimated he spent on the floor during the robbery, the [Petitioner] caught him

looking at him and ordered, “Don’t look at me, bitch.”

The victim knew that his store’s surveillance camera was broken at the

time of the robbery. However, when one of the robbers asked him about the

surveillance tape, he told them that he would have to show them where it was,

as he could not describe its location. Ordered by the [Petitioner] to “get it,”

the victim stood up and began walking to a back storage room, followed by

both robbers. When the victim passed through a doorway, he attempted to

slam the door shut behind him, but was prevented from doing so by the

robbers, who pushed together against the door. The victim explained that he

feared the robbers were going to kill him:

I was very nervous. I just-I assumed that they were going to just

kill me because I didn’t-I didn’t have the tape. And I wasn’t going to

give it to them if I did have it. And I tried to close the door behind me.

And they were pushing back, both of them. And they were hollering.

So I-I ran to the-to the back area to get out the back door.

As the gun-wielding [Petitioner] chased the victim to the back door,

the victim heard Spencer screaming, “Kill him. Kill him. Kill him.” The

victim reached the back exit, threw the wooden security bar up, and opened

the door, but the [Petitioner] shot him in the back before he could escape.

The victim testified he made it out the door, but tripped over some wooden

pallets lying on the ground outside. As he struggled to get up, the [Petitioner]

stood over him and shot him again in the hip. At that point, firefighters from

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a fire station across the street ran to the victim’s assistance, and the

[Petitioner] and Spencer fled the scene carrying the bags of jewelry. The

victim received immediate emergency medical treatment at the scene from

one of the firefighters who was also an emergency medical technician, and an

ambulance arrived within minutes to transport him to the Regional Medical

Center (the “Med”), where he was hospitalized for over a month, including

almost one week in the intensive care unit. After his discharge from the

hospital, he required the aid of a home health worker for an additional month.

A short time after the robbery, an anonymous “Crimestoppers” tip led

police to develop the [Petitioner] and Spencer as suspects in the case.

Thereafter, Sergeant Investigator Michael Jeffrey Clark of the Memphis

Police Department went to the intensive care unit of the Med and showed the

victim photographic spreadsheets, from which he positively identified the

[Petitioner] as the man who shot him and Spencer as his accomplice. Because

the victim was on a ventilator at the time and unable to speak, Sergeant Clark

worked out a communication system whereby the victim indicated “yes” by

raising one finger and “no” by raising two fingers. Sergeant Clark, who had

been promoted to lieutenant by the time of the [Petitioner]’s suppression

hearing, testified at both the suppression hearing and at trial that the victim

pointed to the [Petitioner]’s and Spencer’s photographs without any

hesitation, and with no prompting from him or anyone else in the room. He

acknowledged he asked the victim before showing him the photographs if he

understood that he could die from his injuries, and explained he did so

because he hoped that, in the event the victim did not survive, any

identification the victim made would be admissible as a dying declaration.

The victim testified at trial that he had been one hundred percent confident in

the identifications he made in the hospital, and he was certain “[b]eyond a

shadow of a doubt” that the [Petitioner] was the man who shot him.

The [Petitioner] and Spencer were later arrested at a motel in Marshall

County, Mississippi, and taken to the county jail, where the [Petitioner] gave

an initial statement to Sergeant Clark denying any involvement in the robbery

and offering an alibi, which, upon investigation, failed to check out. Shortly

thereafter, the [Petitioner] and Spencer waived extradition and were

transported back to Tennessee. During the trip, the [Petitioner] spontaneously

began to confess his role in the robbery, and, after being informed of his

rights, told the officers transporting him that he could show them the location

of the jewelry. However, when the officers drove the [Petitioner] to that

location to meet investigators, no jewelry was found. The [Petitioner] was

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then taken to the robbery division headquarters, where he was again advised

of his rights and signed a waiver of rights form before giving a detailed,

written confession to the crime. In his confession, the [Petitioner] said he

shot the victim out of panic when the victim attempted to escape, he was sorry

he shot the victim, and he never intended to kill the victim.

. . . [T]he [Petitioner] testified, denying his involvement in the crimes and

saying that the statement he had given confessing his role in the crimes had

been coerced by police officers who not only struck him, but also told him

that he would be released within six months if he made his account of the

crimes match that provided by his codefendant. He said the police officer

who took his statement supplied all the words, with the exception of his

expression of remorse that the victim had been shot. The [Petitioner] insisted

he had never robbed anyone and said the police fabricated and forced him to

sign the statement because he was a drug dealer and lived a criminal lifestyle.

He also offered an alibi, different from the one he had given Sergeant Clark

in Mississippi, which was corroborated by Jesse James Brown who testified

he and the [Petitioner] had been at the [Petitioner]’s house when the robbery

occurred.

Theron Davis, 2003 WL 21339000, at *1-2. The jury convicted the Petitioner of especially

aggravated robbery and attempted second degree murder. The trial court sentenced him to

consecutive terms of twenty-three years at 100% for the especially aggravated robbery

conviction and twelve years at 30% for the attempted second degree murder conviction for

a total effective sentence of thirty-five years in the Tennessee Department of Correction.

B. Post-Conviction Hearing

The Petitioner filed a petition for post-conviction relief, claiming that he received the

ineffective assistance of counsel. The post-conviction court held an evidentiary hearing

wherein it heard the following evidence:1 The Petitioner testified that he was represented by

Counsel and Co-counsel. The Petitioner said that Michael Robins represented him during

his suppression hearing. The Petitioner said that Counsel failed to meet with him other than

at court dates. The Petitioner said that when he told Counsel about alibi witnesses, Counsel

“rejected it.” He said Counsel “never took [him] serious.” The Petitioner said that he was

1

In his petition for post-conviction relief, the Petitioner alleged several issues in which he

asserted Counsel was ineffective. On appeal, however, he maintains only two of these, that Counsel failed

to object to the photographic line up as unduly suggestive and Counsel failed to argue that his convictions

violated the “same evidence” test. As such, we omit claims asserted within the petition for post-conviction

relief and testimony concerning allegations of ineffectiveness that the Petitioner does not maintain on appeal.

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surprised when Michael Robins announced at the suppression hearing that there was “no

factual basis for which we can raise a matter of defense.” The Petitioner testified that, before

trial, he provided Counsel with the name of an eyewitness to the robbery, Tavarius Jackson.

The Petitioner explained that he met Jackson in jail, and the two began to discuss the

Petitioner’s case. Jackson told the Petitioner that he knew about the robbery because he had

witnessed it and that he was willing to testify on the Petitioner’s behalf. When the Petitioner

informed Counsel of this witness, the Petitioner said that Counsel responded that suppression

of the victim’s identification was the best strategy because juries do not find jailhouse

witnesses credible.

The Petitioner testified that neither Counsel nor Co-counsel discussed a defense

strategy with him. Rather, they encouraged him to accept the State’s offer of twenty-five

years to be served at 100%. The Petitioner said that the arguments made on his behalf at the

suppression hearing were never discussed with him. The Petitioner confirmed that Counsel

sought to be relieved from representation before his trial. The Petitioner testified that

Counsel “came in and told me if I force him to go on with this hearing and the judge make

him stay on my case, I’m going to regret it. Those are his exact words.” The Petitioner

speculated that Counsel wanted to be relieved due to the Petitioner’s failure to make full

payment for Counsel’s services. The trial court denied Counsel’s motion to withdraw.

The Petitioner testified that Counsel was ineffective for failing to adequately raise the

issue of the photographic line up. At the suppression hearing, the defense argued that the

procedure was unduly suggestive because the victim was hospitalized and being treated for

the gunshot wounds. The Petitioner said Counsel was ineffective for failing to argue that the

photographic line up was suggestive because the Petitioner was the only one in the

photographic line up wearing jewelry. The Petitioner said that, prior to the suppression

hearing, his attorneys never discussed the photographic identification with him. In

describing the overall communication throughout his case the Petitioner said, “[There] wasn’t

none,” maintaining that he only saw Counsel at court appearances and Counsel and Co-

counsel on the day of trial.

On cross-examination, the Petitioner agreed that the victim identified the Petitioner

in the courtroom at trial. The victim also testified at trial that he had seen the Petitioner

several times before the day of the robbery and shooting. The Petitioner agreed that he had

been in the jewelry store before the day of the robbery and shooting.

The Petitioner testified that he decided that Counsel’s performance was deficient on

the day Counsel sought to withdraw, which was before the Petitioner’s trial. The Petitioner

said he could not remember whether he wrote letters commending Counsel on his work after

his trial. The State provided the Petitioner with letters written to Counsel and Co-Counsel

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complimenting their work. The Petitioner identified his signature on the letters but denied

that the handwriting in the body of the letters “look[ed]” like his handwriting.

The Petitioner agreed that he did not have the eyewitness to the robbery, Tavarius

Jackson, in court to testify at the post-conviction hearing. The Petitioner said that he did not

know Jackson’s location at the time of the post-conviction hearing, and that he did not know

Jackson’s date of birth, address, or social security number.

Counsel testified that the Petitioner’s mother retained him to represent the Petitioner.

When asked whether Counsel had contact with the Petitioner during the representation,

Counsel responded:

My office had contact with [the Petitioner]. One of the things that’s different

at my office is we’re not a group of lawyers that share expenses. We’re a

group of lawyers that work as a team for the firm. And so we would have

different lawyers seeing [the Petitioner] at different times. For example, Mr.

Robins, Mike Robins, an attorney of many years experience conducted the

Motion to Suppress. He saw [the Petitioner] on occasion. Ms. McClusky did

the trial primarily in this. I sat as second seat in that trial. So we . . . all

worked together toward a common end so that [the Petitioner] would have

stronger representation.

Counsel testified that entries on his file indicated he provided a copy of discovery to the

Petitioner on January 18, 2001; he met with the Petitioner on January 29, 2001; he played the

preliminary hearing tape for the Petitioner on February 6, 2001; and he met with the

Petitioner’s mother on April 16, 2001. Counsel said that he met with the Petitioner numerous

other times as the Petitioner had indicated at trial during the Momon hearing. Counsel read

the following portion of the transcript from the Momon hearing:

Co-counsel: Now, each time we met with you we talked about

possible defenses. Do you remember those meetings?

Petitioner: Yes, ma’am.

Co-counsel: And we’ve met with you many times to talk about these

things, haven’t we?

Petitioner: Yes, ma’am.

Co-counsel: And you’ve gotten copies of what we have in the case; is

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that correct?

Petitioner: Yes, ma’am.

Co-counsel: The discovery, you remember getting packages from us?

And when we would meet with you us handing you

packages of paper?

Petitioner: Yes, ma’am.

Co-counsel: And we’d go over those things?

Petitioner: Yes, ma’am.

Co-counsel: And some of those things were statements by other

persons?

Petitioner: Yes, ma’am.

Co-counsel: And some were reports by officers?

Petitioner: Yes, ma’am.

Co-counsel: And you got all that?

Petitioner: Yes, ma’am.

Co-counsel: And you’ve gone over all that?

Petitioner: Yes, ma’am.

Co-counsel: And so you’ve got all the information and we’ve

reviewed it with you, haven’t we?

Petitioner: Yes, ma’am.

Counsel testified that the Petitioner provided the name of his girlfriend, Rostin

Deangelo, as an alibi witness. Counsel reviewed Deangelo’s police statement which

indicated that she was with the Petitioner on the night of the robbery, but the Petitioner had

taken her home at 9:00 p.m. The robbery and shooting occurred “somewhere around 10:00

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p.m.” so Counsel was unable to use Deangelo as an alibi witness. When Counsel discussed

the problem with using Deangelo as an alibi, the Petitioner said there was a different alibi

witness, “Tony,” but the Petitioner did not know his full name. Shortly before the

Petitioner’s trial on these charges, the Petitioner’s brother brought a witness, Jesse Brown,

to Counsel’s office. Counsel testified that, even though late, the trial court allowed Brown

to testify at trial.

Counsel provided the following summary of the Petitioner’s case and the evidence

against him:

This was a difficult case. In that, we not only had [the victim]

identifying [the Petitioner] but we also had a confession, an alleged confession

by [the Petitioner]. In addition, there was statements by his brother to police

that he . . . saw Herman who was the co-defendant in this case, Herman

Spencer I think his name was, and [the Petitioner] at the house right afterwards

with rings on top of what appeared to be these trash can containers . . . . And

that’s what [the victim] said trash was emptied out of and they took the liners

out of the trash cans, put the jewelry in them and after they shot him, fled the

scene. So his brother said he saw that. Herman Spencer gave a statement that

they participated and that [the Petitioner] was, as I recall, was the . . . shooter.

. . . Mr. Jones, he was supposed to take part I believe. And he kind of

chickened out or he was going to be a lookout or something and he heard shots

and left, but they called him Pooky. That was his nickname. They talked [ ]

about [him] being Pooky. And that - - so he was involved and gave statements

to the police.

Counsel explained that, based on the proof against him, he did not believe the Petitioner

needed to go to trial. Counsel said that the Petitioner did not want to accept the State’s offer

of twenty-five years to settle this case and another felony charge against the Petitioner.

Counsel said that, given the proof in the case, the only defense strategy was to attempt to

discredit the victim and to provide supporting facts to show the Petitioner’s statement was

coerced.

Counsel testified that he did not request that possible fingerprints obtained at the scene

be processed. He explained that the Petitioner’s position was that he was not present so

Counsel did not believe the Petitioner would benefit from such a request.

Jim Hill, a Memphis Police Department latent print examiner, testified that he

examined fingerprint evidence from the Defendant’s case. Hill testified that none of the

fingerprints taken from the scene matched to the Defendant.

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Co-counsel testified that she met with the Petitioner and discussed the charges and

possible defense with him. Co-counsel recalled that the Petitioner’s position was that he was

not present during the robbery and that he had an alibi. The first alibi witness the Petitioner

provided was his girlfriend, but she could not provide an alibi for the Petitioner. Next, the

Petitioner offered Herman Spencer as an alibi witness. Co-counsel explained to the

Petitioner that, because Spencer was a co-defendant in the case, Spencer would be a “very

difficult alibi person to rely upon.” The Petitioner offered the last alibi witness shortly before

trial. The Petitioner told Co-counsel that “Tony” “watched his back,” but the Petitioner

could not provide “Tony’s” last name. The Petitioner told Co-counsel that his family would

try to find “Tony.” The Petitioner’s brother brought a witness to Co-counsel’s office that she

assumed would be “Tony,” but it was another witness, Jesse Brown. Co-counsel said that

Jesse Brown testified at the Petitioner’s trial. Co-counsel testified that the Petitioner never

mentioned an eyewitness to the robbery.

Co-counsel testified that she did not recall hiring an investigator for this case but that

she did visit the crime scene. Co-counsel said that she met with the Petitioner in jail but

could not recall how many times. Co-counsel said that the Petitioner was frustrated he had

been charged, but she did not recall him being frustrated with her representation. Co-counsel

said that she was aware police lifted fingerprints from the crime scene. She said she did not

attempt to have the prints processed because the Petitioner admitted he had been in the

jewelry store before, and she did not want to risk a fingerprint match to the Petitioner. Co-

counsel agreed that, in the photographic line up, the Petitioner is the only person wearing

visible jewelry. Co-counsel said that she did not request the victim’s medical records.

On cross-examination, Co-counsel testified that she investigated all information given

to her about different alibi witnesses. Co-counsel explained her decision not to ask the trial

court to dismiss the Petitioner’s cases based upon the theory that the murder charge was

incidental to the robbery charge. The Petitioner referred to State v. Anthony, 817 S.W.2d 299

(Tenn. 1991), in support of his argument and, after reviewing the case and conducting

research, Co-counsel found that the case was narrowly construed to kidnapping and some

rape cases, so it would not be applicable in the Petitioner’s case. Co-counsel testified that

she did not believe Hill’s testimony, that the Petitioner’s prints were not recovered at the

scene, would have changed the outcome of the Petitioner’s trial in light of the evidence

against the Petitioner. Co-counsel testified that, after the victim’s testimony at trial, the

Petitioner told her that the victim “was prejudiced because [the Petitioner] shot him.”

Based upon this testimony, the post-conviction court denied post-conviction relief.

It is from this judgment that the Petitioner now appeals.

II. Analysis

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On appeal, the Petitioner contends the post-conviction court erred when it dismissed

his petition because: (1) Counsel failed to suppress the victim’s identification of the

Petitioner on the basis that the photographic line up itself, and not just the procedure, was

unduly suggestive; and (2) Counsel failed to argue that the Petitioner’s convictions for both

attempted second degree murder and especially aggravated robbery are in violation of due

process and Double Jeopardy.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations

in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and

weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless

we conclude that the evidence contained in the record preponderates against the judgment

entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,

this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the

credibility of witnesses, the weight and value to be given their testimony and the factual

issues raised by the evidence are to be resolved by the trial court judge, not the appellate

courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to

a purely de novo review by this Court, with no presumption of correctness. Fields v. State,

40 S.W.3d 450, 457 (Tenn. 2001).

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] 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 [petitioner] by the Sixth

Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

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(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the 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.

Finally, we note that a defendant in a criminal case is not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,

466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective

merely because a different procedure or strategy might have produced a different result.

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. However, deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation.” House, 44

S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

A. “Unduly Suggestive” Identification Procedure

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Before trial, the Petitioner filed a motion to suppress the victim’s identification of the

Petitioner in a photographic line up because the circumstances surrounding the identification

were suggestive. The trial court denied the Petitioner’s motion and, on direct appeal, the

Petitioner raised the issue of the denial of his motion. This Court affirmed the trial court’s

denial of the motion and the Petitioner now maintains that Counsel was ineffective for failing

to properly argue the motion to suppress. The motion to suppress asserted that the

procedures used by police during the identification were unduly suggestive. The Petitioner

claims that Counsel should have instead argued that the photographic line up itself was

unduly suggestive because the Petitioner was the only person depicted in the line up wearing

jewelry. Further, the victim described the perpetrator as slim, and the Petitioner contends

that he is the “slimmest individual” in the line up.

The trial court made the following findings when it denied the Defendant’s motion

to suppress the photographic line up based upon the procedure used:

This Court has also examined the photospread given in this case, and the facts

surrounding the identification process at the hospital, and finds nothing

suggestive about the photospread or the process used which might reasonably

lead to a misidentification. This Court has considered as well the factors listed

in Neil v. Biggers, 93 S. Ct. 375 (1972), as applied to photospreads in State v.

Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998), and the testimony at trial of Mike

Turberville [sic], who witnessed Lt. Clark administer the photospread, and saw

the victim indicate the [Petitioner], without suggestion or hesitation.

On direct appeal, a panel of this Court affirmed the trial court’s findings and

concluded that the photographic line up was not impermissibly suggestive. This Court

reviewed the photographic line up and noted that “The other individuals shown in the same

spreadsheet with the [Petitioner] all have similar skin tone, facial features, and hairstyles.”

Theron Davis, 2003 WL 21339000, at *6.

At the conclusion of the post-conviction hearing, the post-conviction court denied the

Petitioner relief as to this claim and made the following findings:

The issue of identity, I’ve looked at this photospread, although there does seem

to be a medallion around the [Petitioner]’s - on the photograph pertaining to

. . . the [P]etitioner, it doesn’t appear that that photospread was unduly

suggestive in any way. Furthermore, that issue was taken up - it was suggested

to the trial court judge that it was unduly suggestive. The trial court judge

disagreed. The Criminal Court of Appeals disagreed that it was unduly

suggestive.

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So, I see no real issue in the identification process involving the photospread.

But even assuming that the photospread had been suppressed, I don’t believe

that that would affect the testimony at trial - the identification made at trial.

We conclude that the record supports the post-conviction court’s findings of fact.

Upon review of the record, we further conclude that the Petitioner has failed to establish by

clear and convincing evidence that Counsel was ineffective for arguing that the line up itself

was suggestive. The trial court, this Court, and the post-conviction court all found that the

photographic line up was not unduly suggestive. Therefore, Counsel is not ineffective for

failing to argue that the line up itself was unduly suggestive. Furthermore, assuming the

photographic line up was unduly suggestive and had been suppressed, the victim,

nonetheless, identified the Petitioner in court. The co-defendant made a statement indicating

the Petitioner was the shooter, and the Petitioner also made a statement to police, admitting

he shot the victim. In light of this evidence, the Petitioner has failed to show how Counsel’s

failure to argue that the line up was unduly suggestive prejudiced the Petitioner. The

Petitioner is not entitled to relief as to this issue.

B. Multiple Punishments for the Same Offense

The Petitioner asserts that Counsel failed to argue that his convictions for both

attempted second degree murder and especially aggravated robbery are in violation of the

Due Process and Double Jeopardy clauses of the federal and state constitutions because the

attempted second degree murder conviction is incidental to the especially aggravated robbery

conviction. In making this argument, the Petitioner relies upon State v. Anthony, 817 S.W.2d

299 (Tenn. 1991). The State responds that convictions for attempted second degree murder

and especially aggravated robbery do not violate the Due Process or the Double Jeopardy

clauses.

In denying the Petitioner relief, the post-conviction court found the following:

[T]he present case is distinguishable from State v. Anthony, where the

Tennessee Supreme Court held that a defendant may not be convicted of both

armed robbery and kidnapping, if the detention was short in duration and

merely incidental to the commission of the robbery.

In the present case, Petitioner was not charged with kidnapping. The crime of

attempted murder is not necessarily incidental to the especially aggravated

robbery. There are numerous factual scenarios where someone could be guilty

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of especially aggravated robbery without being guilty of attempted first, or

even attempted second degree murder. As such, the Petitioner has failed to

show that Counsel was defective for failing to seek dismissal of the indictment

for attempted first degree murder. Therefore this claim must fail.

The Tennessee Supreme Court, in State v. Anthony, held that due process under our

state constitution prohibited convictions for both kidnapping and another felony when the

kidnapping was essentially incidental to the accompanying felony. 817 S.W.2d at 306-307.

In discussing the application of due process, the Court was confronted with cases in which

the crime of kidnapping would always be proven by proving the accompanying felony. The

Court questioned, absent clear legislative intent to the contrary, the fundamental fairness of

allowing two convictions under those circumstances without a showing that the two offenses

were factually distinct. In determining when two convictions could stand, the Court noted

that one method of resolution dealt with whether the defendant’s conduct “substantially

increased the risk of harm over and above that necessarily present” for the accompanying

felony. Id. at 306.

Unlike the convictions in the Anthony case, in the present case, a murder attempt is

not always shown by proving an especially aggravated robbery. In fact, neither of the

Petitioner’s convictions are necessarily incidental to the other. Thus, due process concerns

as they relate to multiple convictions from one episode are not present in this case.2 As this

issue relates to Counsel’s failure to raise this issue, we conclude that the Petitioner has failed

to show that Counsel was ineffective for failing to request the indictments be dismissed on

these grounds and that the Petitioner was prejudiced by Counsel’s conduct. The Petitioner

is not entitled to relief as to this issue.

The Petitioner, on appeal, challenges his convictions as a violation of the Double

Jeopardy Clause. The State responds that, because the Petitioner raises this issue for the first

time on appeal, he has waived this argument. Because the Petitioner’s general argument is

that the Defendant was unfairly punished twice for the same offense, we will address this

issue even though the Petitioner specifically raises a Double Jeopardy argument for the first

time on appeal.

2

We note that at least one panel of this Court has decided that the teachings of Anthony have no

application to convictions for attempted murder and especially aggravated robbery as neither crime is

necessarily incidental to the other. State v. Frank B. Jackson, Jr. and Robert Joe Randolph, No.

03C01-9206-CR-00222, 1993 WL 285949, at *3 (Tenn. Crim. App., at Knoxville, July 29, 1992), perm. app.

denied (Tenn. Nov. 1, 1993).

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The Double Jeopardy Clause protects (1) against a second prosecution for the same

offense after acquittal, conviction, or other trial resolution not caused by manifest necessity

and (2) against multiple punishments for the same offense. See North Carolina v. Pearce,

89 S. Ct. 2072, 2076 (1969); United States v. Johnson, 584 F.2d 148, 153 (6th Cir. 1978),

cert. denied, 440 U.S. 918 (1979). When the issue, as in this case, relates to the imposition

of multiple punishments and not to successive prosecutions, the analysis focuses completely

upon determining whether the legislature intended that multiple punishments could be

imposed for the same conduct. See, e.g., Missouri v. Hunter, 103 S.Ct. 673, 679 (1983);

Albernaz v. United States, 101 S. Ct. 1137, 1143 (1981). In conducting this analysis, the

United States Supreme Court adopted a rule of statutory construction to assist in determining

whether two offenses or only one was intended by the legislature. In Blockburger v. United

States, the Court stated, “The applicable rule is that, where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.” 52 S. Ct. 180, 182 (1932). In discussing the application of the

test, the United States Supreme Court has stated the following:

The test articulated in Blockburger v. United States, 52 S. Ct. 180

(1932), serves a generally similar function of identifying congressional intent

to impose separate sanctions for multiple offenses arising in the course of a

single act or transaction. In determining whether separate punishment might

be imposed, Blockburger requires that courts examine the offenses to ascertain

“whether each provision requires proof of a fact which the other does not.”

Id., at 182. As Blockburger and other decisions applying its principle reveal

. . . the Court’s application of the test focuses on the statutory elements of the

offense.

Iannelli v. United States, 95 S. Ct. 1284, 1293 n.17 (1975).

In State v. Denton, the Tennessee Supreme Court considered multiple punishment

cases and concluded that resolution of this issue under the Tennessee Constitution requires:

(1) a Blockburger analysis of the statutory offenses; (2) an analysis of the evidence used to

prove the offenses; (3) consideration of whether there were multiple victims or discrete acts;

and (4) a comparison of the purposes of the respective statutes. 938 S.W.2d 373, 381 (Tenn.

1996). The Court further held that “none of these steps is determinative; rather the results

of each must be weighed and considered in relation to each other.” Id.

Pursuant to T.C.A. § 39-12-101(a), a person commits a criminal attempt by acting

with the culpability required for the offense attempted and (1) intentionally engages in action

or causes a result that would constitute an offense or (2) acts with an intent to complete a

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course of action or cause a result that would constitute the offense. First degree murder

entails the “intentional, premeditated and deliberate killing of another.” T.C.A. §

39-13-202(a)(1) (2010). Second degree murder entails the knowing killing of another.

T.C.A. § 39-13-210(a)(1) (2010). Especially aggravated robbery is one that is accomplished

with a deadly weapon and results in the victim suffering serious bodily injury. T.C.A. §

39-13-403 (2010).

Especially aggravated robbery requires the taking of the property of another, the use

of a deadly weapon, and the resulting serious bodily injury. Id. Unquestionably, neither

robbery nor the use of a deadly weapon is necessarily proven by proving the elements needed

for first degree or second degree murder. Conversely, an intentional or knowing killing of

another is not necessarily proven by proving the elements of especially aggravated robbery.

Thus, under the Blockburger test, especially aggravated robbery is not the same offense as

either grade of murder.

The State did not rely on the same evidence to prove both crimes. The evidence

supporting the Petitioner’s especially aggravated robbery conviction is that the Petitioner

entered the victim’s jewelry story armed with a weapon to rob the store. During the course

of the robbery, the Petitioner used his weapon and, as a result, the victim sustained serious

bodily injury. The facts supporting the Petitioner’s attempted second degree murder

conviction are that the victim attempted to escape and the Petitioner chased the victim while

his co-defendant yelled, “Kill him. Kill him. Kill him.” The Petitioner shot the victim in the

back and when the victim fell on the ground, the Petitioner then stood over him and shot the

victim again.

Although there is only one victim in this case, the proof includes several discrete acts,

some of which pertain only to the robbery while others are pertinent only to the attempted

murder. And, finally, the legislative purpose behind the especially aggravated robbery is to

protect against armed robberies resulting in injury to an innocent party. The purpose behind

second-degree murder is to protect against unlawful killings.

Our review of this case under the Denton criteria reveals that the Petitioner’s

convictions for especially aggravated robbery and attempted second degree murder do not

violate the Double Jeopardy Clause. See also State v. Zirkle, 910 S.W.2d 874, 890 (Tenn.

Crim. App. 1995) (holding that dual convictions for especially aggravated robbery and first

degree murder do not violate double jeopardy protections); State v. Oller, 851 S.W.2d 841,

842 (Tenn. Crim. App. 1992) (holding that defendant could be convicted of both murder and

especially aggravated robbery based on serious bodily injury to the victim); State v. Ronald

B. Waller, No. 03C01-9212-CR-00429, 1993 WL 398452, at *7 (Tenn. Crim. App., at

Knoxville, Oct. 6, 1993) (affirming convictions for murder and especially aggravated

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robbery), perm. app. denied (Tenn. Feb. 7, 1994). Based upon this conclusion, the Petitioner

has failed to show that Counsel’s representation was deficient in this respect. The Petitioner

is not entitled to relief as to this issue.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that

the post-conviction court properly denied post-conviction relief. Accordingly, we affirm

the judgment of the post-conviction court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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