Gdongalay P. Berry v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 14, 2011 Session

GDONGALAY P. BERRY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 96-B-866 J. Randall Wyatt, Jr., Judge

No. M2010-01136-CCA-R3-PD - Filed November 4, 2011

The Davidson County Criminal Court denied the petitioner, Gdongalay P. Berry, post-

conviction relief from his Davidson County Criminal Court convictions of two counts of first

degree murder, two counts of especially aggravated robbery, and two counts of especially

aggravated kidnapping but granted relief from his sentence of death in the form of a new

capital sentencing hearing. The petitioner appeals the partial denial of his petition for post-

conviction relief, alleging that the State violated the tenets of Brady v. Maryland, 373 U.S.

83 (1963); that neither the State nor the trial court honored his constitutional right to a speedy

trial; that the State’s pursuit of inconsistent theories violated his constitutional right to due

process; that he was deprived of the effective assistance of counsel; and that the cumulative

effect of the constitutional deprivations rendered his trial fundamentally unfair. The State

appeals the post-conviction court’s grant of a new sentencing hearing, asserting that the error

attending the petitioner’s original sentencing hearing was harmless beyond a reasonable

doubt. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH

and N ORMA M CG EE O GLE, JJ. joined.

James W. Price, Nashville, Tennessee, and James E. Brenner, Detroit, Michigan, for the

appellant, Gdongalay P. Berry.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Katrin Miller, Assistant

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

OPINION

The petitioner’s convictions relate to the 1996 murders of 18-year-old Gregory

Ewing and 19-year-old DeAngelo Lee. The facts, as summarized by our supreme court on

direct appeal, are as follows:

The State’s proof showed that the [petitioner] and a separately

tried co-defendant, Christopher Davis, arranged to purchase

weapons for $1200 from Lee and Ewing on the evening of

February 27, 1996. Earlier that evening, the [petitioner] and

Davis were at Davis’s apartment drinking and smoking

marijuana with Ronald Benedict, Antoine Kirby, and Antonio

Cartwright. Cartwright testified at trial that he overheard Davis

and the [petitioner] talking about robbing the two victims and

taking their guns and automobile. Cartwright testified that the

[petitioner] stated, “If we rob ‘em, we gotta kill ‘em . . . because

they know us.” Between 7:30 and 8:00 p.m. that evening, after

receiving a telephone call from Lee, the [petitioner], Davis, and

two other men identified as “Kay” and “Sneak” left the

apartment. Both the [petitioner] and Davis were armed with

guns – Davis with a 9mm handgun, the [petitioner] with a .45

caliber handgun. Davis also carried a black bag containing

handcuffs, rope, and duct tape. Approximately thirty minutes

later, Kay and Sneak returned to the apartment. Thirty to

forty-five minutes after that, the [petitioner] and Davis also

returned. They were driving Lee’s Cadillac and were carrying

at least six assault weapons, some pagers, and clothing,

including Lee’s distinctive green and yellow tennis shoes, and

Ewing’s jacket. Davis was wearing a gold cross necklace that

belonged to Lee. The [petitioner] told Cartwright that “Chris

[Davis] couldn’t kill Greg [Ewing], so I had to,” and announced

that he had shot Ewing multiple times in the head. After placing

the assault weapons under Davis’s bed, the [petitioner] and

Davis left the apartment in Lee’s Cadillac and another vehicle.

They drove to a sparsely wooded residential area off a dead-end

street, set fire to the interior of the Cadillac, and abandoned it.

The men then went to a Nashville motel where they spent the

night.

The next morning, Ewing’s and Lee’s bodies were

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found lying on a hill at a construction site in south Nashville

near Interstate 440. Both victims were only partially clothed.

A rope on the ground led up the hill to the body of one of the

victims. Ewing had been shot three times in the head, twice in

the shoulder, once in the neck, and once in the abdomen. Lee

had been shot three times in the head and once in the hand.

Ballistics testing showed that the weapons used to kill the

victims were 9mm and .45 caliber handguns.

By coincidence, at approximately 9:00 a.m. on the

same morning the victims’ bodies were found, three detectives

from the Metropolitan Police Department went to Davis’s

apartment to investigate an unrelated crime. While questioning

two men present at the apartment, Ronald Benedict and Antonio

Cartwright, the detectives noticed the automatic rifles under the

bed in Davis’s bedroom. At about this time, the [petitioner],

Davis, Dimitrice Martin (Davis’s girlfriend), and Brad Benedict

(Ronald Benedict’s brother), unexpectedly rushed through the

front door. Davis was talking on a cell phone and had a .45

caliber handgun in his waistband. The [petitioner] was carrying

a fully loaded automatic rifle. Startled to see police present, the

[petitioner], Davis, and Brad Benedict turned and fled out the

front door. The detectives pursued them and caught Davis.

Benedict and the [petitioner] escaped, although the [petitioner]

dropped the rifle he had been carrying. This rifle turned out to

be one of the weapons stolen from Lee and Ewing.

A subsequent search of Davis’s apartment yielded

a 9mm pistol underneath the cushion of the couch where Ronald

Benedict had been sitting. Forensic testing later revealed that

the 9mm caliber bullets recovered from the victims’ bodies were

fired from this gun. The .45 caliber gun used in the crime was

never found. Among the items police found in Davis’s bedroom

were a pair of handcuffs with a key, a pager, a cell phone, a

Crown Royal bag containing $1400 in cash, a black backpack,

a large quantity of ammunition, Lee’s green and yellow tennis

shoes, Ewing’s jacket, two .45 caliber pistols, two SKS rifles,

and one Universal .30 caliber M-1 carbine. At the time of the

search, however, officers were unaware that the items were

connected to the murders of Ewing and Lee.

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Davis and his girlfriend, Dimitrice Martin, were

taken to the police station for questioning. Before his interview,

Davis removed Lee’s gold cross necklace and told Martin to put

it in her purse. He also instructed Martin to call Ronald

Benedict’s girlfriend at the apartment and tell her to dispose of

Lee’s green and yellow tennis shoes.

As a result of the questioning of Davis and Martin,

police discovered the connection between Davis, the

[petitioner], and the murders of Lee and Ewing. The police took

Lee’s necklace from Martin. One of the detectives returned to

Davis’s apartment to retrieve Lee’s tennis shoes and Ewing’s

jacket. While he found Ewing’s jacket on Davis’s bed, the

tennis shoes were gone.

After the [petitioner] was eventually arrested on

March 6, 1996, he waived his Miranda rights and gave a

statement to police in which he admitted that he had been with

Davis when the victims were robbed and killed. He disavowed

any active role in the crimes and claimed that he had not known

Davis intended to kill the victims. According to the [petitioner],

Davis and a third man, Christopher Loyal, had abducted Ewing

and Lee after Ewing attempted to rob Davis. The [petitioner]

claimed that the victims were already handcuffed and restrained

when he joined Davis and Loyal in the Cadillac. The group then

drove to the construction site. Davis made the victims remove

their clothing, and the [petitioner] claimed he thought it would

stop at that. As he watched, however, Davis and Loyal

repeatedly shot the two men.

State v. Berry, 141 S.W.3d 549, 554-56 (Tenn. 2004).

During the sentencing phase of trial, a mitigation expert related the petitioner’s

familial, educational, and social history; competing mental health experts related the

petitioner’s mental and emotional health; and the State presented certified copies of the

petitioner’s 1994 conviction of aggravated assault, his 1998 convictions of two counts of

aggravated robbery, and his 1999 conviction of first-degree murder. See id. at 556-58. The

jury concluded that the State had proven beyond a reasonable doubt the existence of three

aggravating factors: that the [petitioner] was previously convicted of one or more felonies

other than the present charge, the statutory elements of which involve the use of violence to

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the person, see T.C.A. § 39-13-204(i)(2); that the murder was committed for the purpose of

avoiding, interfering with, or preventing a lawful arrest or prosecution of the [petitioner] or

another, see id. § 39-14-204(i)(6); and that the murder was knowingly committed, solicited,

directed, or aided by the [petitioner] while the [petitioner] had a substantial role in

committing or attempting to commit robbery or kidnapping, see id. § 39-13-204(i)(7); see

also Berry, 141 S.W.3d at 558. Following a standard sentencing hearing, see T.C.A. § 40-

35-209, the trial court imposed sentences of 25 years for each conviction of especially

aggravated robbery to be served concurrently to one another and sentences of 25 years for

each especially aggravated kidnapping to be served concurrently to one another but

consecutively to the effective 25-year sentence imposed for the especially aggravated robbery

convictions and to the sentence of death imposed for the murders. The total effective

sentence was, therefore, death plus 50 years’ incarceration. See Berry, 141 S.W.3d at 553

n. 3.

The petitioner appealed his convictions and sentence of death to this court,

challenging the constitutionality of the death penalty procedure in Tennessee, the denial of

his right to a speedy trial, the failure of the trial court to permit him to represent himself with

help from trial counsel, the denial of his motion to suppress his pretrial statement to police,

the trial court’s voir dire of the jury, the admission of evidence that he was a member of a

gang, the admission of hearsay statements of the co-defendant, the propriety of the

prosecutor’s closing argument, the propriety of a jury instruction on flight, the sufficiency

of the convicting evidence, the admission of victim impact evidence at the capital sentencing

hearing, and the propriety of the sentence of death. This court affirmed both the convictions

and sentence, as did the supreme court upon automatic review. See id. at 572-73.

The petitioner filed a timely petition for post-conviction relief and, following

the appointment of counsel, an amended petition for post-conviction relief that listed 65

separate grounds for relief and totaled 520 pages in length. The petitioner, with the aid of

counsel, also filed a second amended petition for post-conviction relief adding new alleged

grounds for relief. In addition to the petitions, the petitioner filed 82 “exhibits” and eight

“attachments” to his post-conviction petition, bringing the total pages of pleadings filed well

over 1,500. At the March 2009 evidentiary hearing, post-conviction counsel announced that

the petitioner intended to rely on “factual support” he claimed was already in the record for

the majority of the issues raised and would concentrate the proof at the evidentiary hearing

on five “primary” issues: (1) the petitioner was deprived of a speedy trial, (2) the petitioner

was deprived of the effective assistance of counsel at trial, (3) the State violated the

requirements of Brady, (4) the State violated the principles of due process by pursuing

inconsistent theories at the trial of the petitioner and the trial of his co-defendant, and (5) the

jury’s relying upon an invalid aggravating factor following the vacating of the petitioner’s

prior conviction of first degree murder. Post-conviction counsel stated that, despite the

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petitioner’s not presenting any actual proof of the remaining 62 claims, he did not wish to

waive them.

Because of the unusual way in which the petitioner presented his claims at the

evidentiary hearing, we will address the issues in the order they were addressed at the hearing

and include the proof presented on each issue and the post-conviction court’s ruling within

the analysis portion of that issue.

As an initial matter, the State correctly points out that, despite his many

protestations to the contrary, the petitioner has waived the vast majority of the claims

presented in his original and amended petitions for post-conviction relief. The petitioner’s

failure to present any proof at the evidentiary hearing on all but five of the grounds raised

necessarily means that the petitioner failed to prove any of these grounds by clear and

convincing evidence, see T.C.A. § 40-30-110(f), and would, therefore, not be entitled to post-

conviction relief on any of these grounds. Moreover, the petitioner’s failure to specifically

address any but the five “primary” grounds for relief in his appellate brief operates as a

waiver of these issues on appeal. The petitioner has not even named these issues, see Tenn.

R. App. P. 27(a)(4) (“The brief of the appellant shall contain . . . [a] statement of the issues

presented for review[.]”), let alone attempted to support them with argument, citations to the

record, or references to appropriate authorities, see Tenn. R. App. P. 27(a)(7) (stating that

the appellant’s brief must contain an argument, “setting forth . . . the contentions of the

appellant with respect to the issues presented, and the reasons therefor, including the reasons

why the contentions require appellate relief, with citations to the authorities and appropriate

references to the record . . . relied on; and . . . for each issue, a concise statement of the

applicable standard of review”). Although the petitioner, in deeming the State’s waiver

argument “meritless,” contends that his “appeal is based upon the extensive record in this

case,” this court is not obliged to plumb the depths of the pleading-heavy, “extensive” record

on an issue-hunting expedition. Instead, counsel is required to dredge the record for those

issues most amenable to success on appeal and present those issues to the court supported

by citation to authorities and appropriate references to the record. The petitioner has

designated five such issues. All others are waived and will not be considered by this court

on appeal. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this

court.”).1

1

The petitioner attributes his failure to address the remaining issues on the page limitations contained

in the Rules of Appellate Procedure. We note, however, that the argument portion of the petitioner’s brief

covers only 25 pages, half of that allowed by our rules, see Tenn. R. App. P. 27(i); see also Tenn. R. App.

P. 27(i), Advisory Comm’n Comments (“It should be noted that the limitation relates to the argument. The

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We consider the issues actually raised on appeal with a few well-settled

principles in mind. Post-conviction relief is available only “when the conviction or sentence

is void or voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2006). A

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

convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to the

post-conviction court’s findings of fact the weight of a jury verdict, and these findings are

conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960

S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.

1997). By contrast, the post-conviction court’s conclusions of law receive no deference or

presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

I. Speedy Trial

The petitioner claims entitlement to post-conviction relief on grounds that the

more than four-year delay between his arrest and trial violated his constitutional right to a

speedy trial. He also claims that, to the extent that the failure to properly raise the claim prior

to trial can be attributed to his counsel, he was denied the effective assistance of counsel in

this regard. The State contends that this issue has been previously determined because it was

considered and rejected by this court and the supreme court on direct appeal.

At the evidentiary hearing, the petitioner submitted as evidence to support his

speedy trial claim documents establishing that the petitioner was not tried until four years and

two months following his arrest and correspondence from the petitioner which, he claims,

operated as a pro se demand for a speedy trial. The documentary evidence established that

a warrant for the petitioner’s arrest for the murders of Mr. Ewing and Mr. Lee was obtained

by Metropolitan Nashville Police Department Detective Roland on March 6, 1996, and that

the petitioner was already in custody on unrelated charges. The indictment charging the

petitioner with first degree murder was returned in April 1996. The petitioner was tried in

May 2000.

In a July 22, 1997 letter to the Tennessee Board of Professional Responsibility,

the petitioner complained that his counsel, Floyd Price, had failed to send him copies of

discovery materials and that corrections officers were denying his access to “legal mail.” In

an unsigned document from 1998 titled “Petition of Relief,” the petitioner again complains

about his access to discovery materials and about the performance of his then appointed

1

(...continued)

full brief may exceed the 50 page limitation.”), and that the parties are always free to move the court for an

extension of the page limitation, see id.

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counsel, Thomas Overton. In this document, the petitioner asks for an “investigation of the

Indictment . . . . And to be fully acquitted of these allegations.” On March 3, 1998, the

petitioner attempted the pro se filing of a motion to dismiss based upon the State’s failure to

comply with a discovery request and based upon the failure of the arresting officers to

provide him with a copy of his arrest warrant.

The post-conviction court determined that the issue did not qualify as

previously determined because the issue was raised for the first time on direct appeal, thereby

preventing a full and fair hearing on the merits of the issue. Code section 40-30-106(h)

provides:

A ground for relief is previously determined if a court of

competent jurisdiction has ruled on the merits after a full and

fair hearing. A full and fair hearing has occurred where the

petitioner is afforded the opportunity to call witnesses and

otherwise present evidence, regardless of whether the petitioner

actually introduced any evidence.

T.C.A. § 40-30-106(h) (2006). Although the petitioner’s failure to present the issue in the

trial court precluded his ability to present evidence supporting his claim and although this

court and the supreme noted that “meaningful review” was not possible because the issue

was raised for the first time on appeal, both this court and our supreme court clearly

considered the petitioner’s allegation that the four-year delay between his indictment and trial

violated his constitutional right to a speedy trial. Our supreme court concluded that even

though “the length of the delay is presumptively prejudicial, the defendant’s failure to assert

his right to a speedy trial and the lack of prejudice support a finding of no error.” Berry, 141

S.W.3d at 569. Because the court considered the petitioner’s claim under the relevant

authorities and in light of the evidence available to it at that time, we are constrained to

conclude that the petitioner’s claim that the delay between his indictment and trial violated

his right to a speedy trial has been previously determined.

The pro se correspondence entered into evidence at the evidentiary hearing

does not change our conclusion. We agree with the post-conviction court that even under the

most liberal of constructions, none of the documents exhibited by the petitioner can be read

to assert a speedy trial demand. Moreover, even were we to conclude that the petitioner had

asserted his right to a speedy trial, the petitioner has failed to prove that the State sought the

delay to gain a tactical advantage or any prejudice from the delay, both necessary factors

under the four-part analysis promulgated in Barker v. Wingo. See Barker v. Wingo, 407 U.S.

514, 530 (1972) (holding that a court considering whether an accused’s right to a speedy trial

has been violated must consider the length of the delay, the reason for the delay, the

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accused’s assertion of his right to a speedy trial, and any prejudice caused by the delay).

The petitioner claims that the State manufactured the delay so it could procure

an erroneous first degree murder conviction against the petitioner in an unrelated murder case

for use as an aggravating factor and to send State witness Antonio Cartwright to custodial

drug and alcohol rehabilitation in preparation for his testimony against the petitioner at trial.

The petitioner failed to present any proof to support either allegation.2 During the four years

between his indictment in this case and his trial, the petitioner stood trial in a separate case

for two counts of aggravated robbery, see State v. Gdongalay Parlo Berry, No.

M1999-01901-CCA-MR3-CD (Tenn. Crim. App., Nashville, Aug. 31, 2000) (affirming

petitioner’s convictions of two counts of aggravated robbery and accompanying 18-year

effective sentence), and in another case for the first degree murder of a young girl, Adrian

Dickerson, see State v. G’Dongalay Parlo Berry and Christopher Davis, No.

M1999-00824-CCA-R3-CD (Tenn. Crim. App., Nashville, Oct. 19, 2001) (affirming

petitioner’s conviction of first degree premeditated murder and accompanying life sentence).

That the petitioner’s first degree murder conviction in the Dickerson case was later vacated

does not attribute a sinister motive to the State’s choosing to try that case before the case at

issue. See State v. Nichols, 877 S.W.2d 722, 736 (Tenn. 1994) (holding that when examining

the “fundamental discretion” of the prosecution to try its cases, reviewing courts will not

assume “that ‘what is unexplained is invidious’”). Our supreme court has observed that

“[t]he reasonableness of the length of the delay depends on the complexity of the case.”

State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996) (citing Barker, 407 U.S. at 530-31). The

fact that the petitioner stood accused of two serious felonies and another high profile first

degree murder in addition to the charges in the instant case and that the State had filed notice

that it would seek the death penalty in this case leads to the inescapable conclusion that this

case was quite complex.

Moreover, both the Dickerson murder and the aggravated robbery offenses

occurred before the murders in this case. Nothing in the record suggests bad faith on the part

of the State or that the State deliberately delayed the trial of the case to gain a tactical

advantage. The petitioner erroneously asserts that the State “concedes that it delayed [the]

[p]etitioner’s trial in the instant case so it could obtain a tactical advantage.” The State

makes no such concession. Nor will this court assume, in the absence of any proof, a

nefarious motive for the order of the trials.

2

Although the record establishes that Mr. Cartwright did undergo treatment for drug and alcohol

addiction prior to the petitioner’s trial, the record clearly establishes that the order of rehabilitation arose

from Mr. Cartwright’s own misbehavior. There is absolutely no proof that the State delayed the petitioner’s

trial and orchestrated a juvenile court case that resulted in Mr. Cartwright’s being ordered into drug and

alcohol treatment.

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Perhaps most importantly, the petitioner has failed to establish any prejudice

to his case as a result of the delay in bringing it to trial. Indeed, the petitioner mistakenly

claims in his brief that he does not have to establish prejudice. Although the Supreme Court

has observed that “affirmative proof of particularized prejudice is not essential to every

speedy trial claim,” Doggett v. United States, 505 U.S. 647, 655 (1992) (citing Moore v.

Arizona, 414 U.S. 25, 26 (1973); Barker, 407 U.S. at 533), the Court has nevertheless

concluded that “such presumptive prejudice cannot alone carry a Sixth Amendment claim

without regard to the other Barker criteria,” Doggett, 505 U.S. at 656. In a footnote, the

petitioner states that he established prejudice “as his Motion for Entry of an order Dismissing

the Indictment Due to Denial of His Right to a Speedy Trial shows at pages 17-19.” The

petitioner is apparently referring to a pleading he filed in the post-conviction court prior to

the evidentiary hearing. We remind the petitioner that pleadings are not evidence. Hillhaven

Corp. v. State, 565 S.W.2d 210, 212 (Tenn. 1978) (“Allegations in pleadings are not, of

course, evidence of the facts averred. Unless such facts are admitted or stipulated, they must

be proved by documents, affidavits, oral testimony or other competent evidence.”). The

petitioner does not allege any claim or witness lost to the passage of time, any detriment to

the preparation or presentation of his defense, or any other fact that might be construed as

prejudice resulting from the delay in this case. Consequently, he has failed to prove

entitlement to post-conviction relief on the basis of this claim.

II. Ineffective Assistance of Counsel

The petitioner asserts that each of the five attorneys appointed to represent him

in this case performed deficiently and that the deficient performance inured to his prejudice.

The State contends the petitioner has failed to establish deficient performance or prejudice.

To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show 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.

Should the petitioner fail to establish either deficient performance or prejudice, he is not

entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

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the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are regarded as mixed questions of

law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction

court’s factual findings, our review is de novo, and the post-conviction court’s conclusions

of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State

v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

A. Claims Regarding Petitioner’s First Three Attorneys

The petitioner claims that the representation of the first three attorneys

appointed to his case “amounted to virtually no performance at all.” The post-conviction

court held that the petitioner had failed to prove any claim of ineffective assistance of

counsel against any of these attorneys because he failed to call the attorneys as witnesses at

the evidentiary hearing and failed to present any other evidence that could support a claim

of deficient performance or prejudice. The record supports the finding of the post-conviction

court.

The petitioner’s claims of ineffective assistance of counsel against his first

three attorneys must fall for three primary reasons. First, the petitioner makes no claim of

any specific act or omission on the part of any of these attorneys that resulted in prejudice

to his case.3 Instead, he makes the bare assertion, completely unsupported by citation to

appropriate authorities, that the attorneys “did virtually nothing, and what little they did do

was almost entirely ineffective at best and at worst, actually harmful. Surely this amounts

to per se prejudice.”4 The petitioner’s failure to cite to appropriate authorities would be

3

The only allegation that comes close to a specific claim of deficient performance relates to Attorney

William Roberts’ failure to perfect a direct appeal in the petitioner’s aggravated robbery case. Mr. Roberts’

failures in an unrelated case, whatever they may be, are completely irrelevant to the determination whether

the petitioner was denied the effective assistance of counsel in this case.

4

The petitioner also makes much of the fact that his first two attorneys, Floyd Price and Thomas

Overton, were suspended from the practice of law at some point after they represented the petitioner.

Nothing in the record suggests, however, that either suspension was directly related to the attorneys’

(continued...)

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sufficient, on its own, to warrant a finding that this claim has been waived. Following the

State’s citation to United States v. Cronic, 466 U.S. 648 (1984), in its responsive brief, the

defendant, in his reply brief, states that he is relying on Cronic and claims that prejudice

should be presumed. The defendant’s citation to Cronic in his reply brief thus saves the issue

from waiver.

Second, even had the petitioner made claims of specific deficiencies, he failed

to establish them by clear and convincing evidence when he failed to present the testimony

of any of his first three attorneys at the evidentiary hearing. Without the testimony of these

attorneys, this court can only speculate as to what work each of them might have performed

on the petitioner’s case.

Third, perhaps most importantly, the petitioner has failed to establish any

prejudice to his case as a result of the actions or inactions of his first three attorneys. As

indicated, the petitioner claims that the failures of the attorneys should be considered “per

se” prejudicial. A reviewing court will presume prejudice to an accused’s right to counsel

only when there has been the complete deprivation of counsel at a critical stage of the

proceedings, a complete failure to subject the State’s case to adversarial testing, or under

circumstances of such magnitude that no attorney could provide effective assistance. Cronic,

466 U.S. at 659-60. Although the petitioner claims that prejudice should be presumed

because his first three attorneys “entirely failed to subject the State’s case to meaningful

adversarial testing,” the record establishes that the State’s case was indeed subjected to

adversarial testing at his trial, the primary arena of true adversarial testing in our system of

justice. See Cronic, 466 U.S. at 656 (“When a true adversarial criminal trial has been

conducted – even if defense counsel may have made demonstrable errors – the kind of testing

envisioned by the Sixth Amendment has occurred.” (footnote omitted)).

The Supreme Court, in Bell v. Cone, 535 U.S. 685 (2002), specifically limited

the second prong of Cronic to those situations where counsel’s “failure to test the

prosecutor’s case” was “complete.” Bell v. Cone, 535 U.S. 685, 696-97 (2002). In Cone, the

Court characterized Cone’s argument as “not that his counsel failed to oppose the

prosecution throughout the . . . proceeding as a whole, but that his counsel failed to do so at

specific points” and concluded that such an argument should be assessed under the rule of

Strickland rather than that of Cronic. Id. at 697. Although the testing of the State’s case did

not come from the actions of the petitioner’s first three attorneys, we cannot separate the

4

(...continued)

performance in the petitioner’s case. That an attorney was suspended by the Board of Professional

Responsibility for reasons unrelated to the handling of the petitioner’s case is irrelevant to our determination

whether the petitioner was deprived of the effective assistance of counsel.

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petitioner’s case into distinct parts and must, instead, treat it as a whole. As such, the

standard announced in Strickland rather than that announced in Cronic is the appropriate one

for review of the petitioner’s claims in this case. Consequently, the petitioner had to

establish prejudice resulting from his counsels’ deficient performance. Cronic, 466 U.S. at

658 (“Absent some effect of challenged conduct on the reliability of the trial process, the

Sixth Amendment guarantee is generally not implicated.”). Here the petitioner has failed to

even allege, let alone prove any prejudice. As a result, he is not entitled to relief on this

issue.

B. Speedy Trial

To the extent that the petitioner asserts that his counsel were ineffective for

failing to assert the petitioner’s right to a speedy trial, he has failed to establish that claim by

clear and convincing evidence. The petitioner did not call as witnesses the first three

attorneys assigned to represent him in this case, but attorney Michie Gibson, who was

appointed to represent the petitioner after the State filed its notice of intent to seek the death

penalty, testified at the evidentiary hearing that he did not make a speedy trial demand

because he wanted “a little more time on [the] death penalty case.” It was his opinion that

the delay in this case actually benefitted the petitioner because it allowed more time for the

preparation of defense and mitigation proof. He testified that no witness he wanted to

present either at trial or at the sentencing hearing became unavailable as a result of the delay.

Finally, Mr. Gibson testified that he did not believe the petitioner was prejudiced by his

incarceration prior to trial because the petitioner was actually serving the sentence imposed

in the unrelated aggravated robbery case and not simply being held pending trial.

Because the petitioner failed to establish any prejudice from the pretrial delay,

he likewise failed to establish that any prejudice resulted from the failure of any of his first

three attorneys to assert his right to a speedy trial. Mr. Gibson’s decision to forego a speedy

trial demand qualifies as a tactical decision, and we will not second guess Mr. Gibson’s

strategy.

III. Brady

The petitioner claims entitlement to post-conviction relief on grounds that the

State violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963), when it failed “to

produce the juvenile records (and other material documents referenced in those records) of

its principal witness, Antonio Cartwright.” He asserts that these records called into question

Mr. Cartwright’s competency as a witness and his character for truthfulness. The State

submits that the post-conviction court correctly concluded that the petitioner had failed to

establish that the documents were material.

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At the evidentiary hearing, the petitioner entered into evidence several hundred

pages of documents relating to Antonio Cartwright’s juvenile, medical, and mental health

history. Attorney Gibson testified that his private investigator worked to obtain any available

evidence to impeach Mr. Cartwright, which work included an attempt to obtain Mr.

Cartwright’s juvenile court records, but Mr. Gibson stated that he could not have obtained

Mr. Cartwright’s medical records without a court order. Mr. Gibson could not say for sure

whether the trial court would have granted such an order because the court had previously

denied access to the juvenile records of another witness. The post-conviction court

concluded that the petitioner specifically requested records of the type later discovered by

post-conviction counsel; that many of the records, though not necessarily admissible, were

arguably favorable to the petitioner; and that the State had failed to disclose the evidence,

although the State did not purposefully withhold the information and the information could

have been obtained by defense counsel. The court concluded, however, that the petitioner

failed to establish that the evidence was material.

The constitutional right to a fair trial imposes upon the State “duties consistent

with the[] sovereign obligation to ensure ‘that justice shall be done’ in all criminal

prosecutions.” Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1772 (2009) (quoting United

States v. Agurs, 427 U.S. 97, 111 (1976) (citation and internal quotation marks omitted)).

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that

“suppression by the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” Id. at 87. “Evidence ‘favorable to an

accused’ includes evidence deemed to be exculpatory in nature and evidence that could be

used to impeach the [S]tate’s witnesses.” Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn.

2001) (citing State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v. Copeland, 983

S.W.2d 703, 706 (Tenn. Crim. App. 1998); United States v. Bagley, 473 U.S. 667, 676

(1985)). The duty to disclose exculpatory evidence extends to all “favorable information”

irrespective of whether the evidence is admissible at trial. State v. Robinson, 146 S.W.3d

469, 512 (Tenn. 2004) (appendix); Johnson, 38 S.W.3d at 56. Brady and its progeny create

in the “individual prosecutor . . . a duty to learn of any favorable evidence known to the

others acting on the government’s behalf in the case.” Kyles v. Whitley, 514 U.S. 419, 437

(1995).

To prove a Brady violation, a defendant must demonstrate:

(1) that he requested the information (unless the evidence is

obviously exculpatory, in which case the [S]tate is bound to

release the information whether requested or not),

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(2) that the State suppressed the information,

(3) that the information was favorable to the defendant, and

(4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,

910 S.W.2d at 389); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (“There are

three components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or inadvertently; and prejudice must have

ensued.”). The evidence is deemed material if “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Bagley, 473 U.S. at 682.

The question is not whether the defendant would more likely

than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence. A ‘reasonable

probability’ of a different result is accordingly shown when the

government’s evidentiary suppression ‘undermines confidence

in the outcome of the trial.’

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). Plainly stated, establishing

materiality requires a “showing that the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.” Kyles,

514 U.S. at 435; see Johnson, 38 S.W.3d at 58.

Turning now to the Brady factors, the record establishes that the petitioner

requested medical records, mental health records, and criminal histories for all the State

witnesses. This request satisfies the first prong of Brady as it was a specific request for the

material. The remaining prongs require closer examination.

The petitioner contends, without any citation to authority, that all of the later-

discovered documents relating to Mr. Cartwright’s juvenile history were in the possession

of the State and that the State had a duty to disclose them. Specifically, he asserts, again

without citation to authority, that “juvenile records are maintained in the District Attorney’s

office.” We reject this contention out of hand. Court records are “maintained” by courts

rather than the parties to litigation, and the juvenile court is no exception. See T.C.A. §

37-1-211(a) (“Clerks of such special juvenile courts shall, under the supervision of the judge,

-15-

keep all records of the court . . . .”); see also Tenn. R. Juv. P. Rule 2(16) (“‘Record’ means

the minutes of all the proceedings of the juvenile court, including all official court documents

and any papers filed in the proceedings.”); State ex Rel. Anglin v. Mitchell, 596 S.W.2d 779,

783 (Tenn. 1980) (“We have long held that the juvenile court is a court of record[.]”). This

rule applies to all juvenile court records, even those bearing the signature of an assistant

district attorney general as a party to a juvenile court action. Accordingly, we must examine

each document to determine whether the State had access to the document under the rules

regarding the confidentiality of juvenile court records and whether that access created in the

State a duty to disclose.

We begin by noting that access to juvenile court records is governed by statute.

Tennessee Code Annotated section 37-1-153 provides:

(a) Except in cases arising under § 37-1-146, all files and

records of the court in a proceeding under this part are open to

inspection only by:

(1) The judge, officers and professional staff of the court;

(2) The parties to the proceeding and their counsel and

representatives;

(3) A public or private agency or institution providing

supervision or having custody of the child under order of the

court;

(4) A court and its probation and other officials or

professional staff and the attorney for the defendant for use in

preparing a presentence report in a criminal case in which the

defendant is convicted and who prior thereto had been a party to

the proceeding in juvenile court; and

(5) With permission of the court, any other person or

agency or institution having a legitimate interest in the

proceeding or in the work of the court.

(b) Notwithstanding the provisions of subsection (a), petitions

and orders of the court in a delinquency proceeding under this

part shall be opened to public inspection and their content

subject to disclosure to the public if:

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(1) The juvenile is fourteen (14) or more years of age at

the time of the alleged act; and

(2) The conduct constituting the delinquent act, if

committed by an adult, would constitute first degree murder,

second degree murder, rape, aggravated rape, rape of a child,

aggravated rape of a child, aggravated robbery, especially

aggravated robbery, kidnapping, aggravated kidnapping or

especially aggravated kidnapping.

(c) Notwithstanding the provisions of this section, if a court file

or record contains any documents other than petitions and

orders, including, but not limited to, a medical report,

psychological evaluation or any other document, such document

or record shall remain confidential.

(d) (1) Except as otherwise permitted in this section, it is an

offense for a person to intentionally disclose or disseminate to

the public the files and records of the juvenile court, including

the child’s name and address.

(2) A violation of this subsection (d) shall be punished as

criminal contempt of court as otherwise authorized by law.

(e) Notwithstanding other provisions of this section, where

notice is required under § 49-6-3051, an abstract of the

appropriate adjudication contained in the court file or record

shall be made and provided to the parent, guardian, or other

custodian of the juvenile, including the department, and this

abstract shall be presented to the school in which the juvenile is,

or may be, enrolled, in compliance with § 49-6-3051.

T.C.A. § 37-1-153(a)-(e). The rule of confidentiality extends even to law enforcement

records pertaining to juveniles:

(a) Unless a charge of delinquency is transferred for criminal

prosecution under § 37-1-134, the interest of national security

requires or the court otherwise orders in the interest of the child,

the law enforcement records and files shall not be open to public

inspection or their contents disclosed to the public; but

-17-

inspection of the records and files is permitted by:

(1) A juvenile court having the child before it in any

proceeding;

(2) Counsel for a party to the proceeding;

(3) The officers of public institutions or agencies to

whom the child is committed;

(4) Law enforcement officers of other jurisdictions when

necessary for the discharge of their official duties; and

(5) A court in which such child is convicted of a criminal

offense for the purpose of a presentence report or other

dispositional proceeding, or by officials of penal institutions and

other penal facilities to which such child is committed, or by a

parole board in considering such child’s parole or discharge or

in exercising supervision over such child.

(b) Notwithstanding the provisions of subsection (a), petitions

and orders of the court in a delinquency proceeding under this

part shall be opened to public inspection and their content

subject to disclosure to the public if:

(1) The juvenile is fourteen (14) years of age or older at

the time of the alleged act; and

(2) The conduct constituting the delinquent act, if

committed by an adult, would constitute first degree murder,

second degree murder, rape, aggravated rape, rape of a child,

aggravated robbery, especially aggravated robbery, kidnapping,

aggravated kidnapping or especially aggravated kidnapping.

(c) Notwithstanding the provisions of this section, if a court file

or record contains any documents other than petitions and

orders, including, but not limited to, a medical report,

psychological evaluation or any other document, such document

or record shall remain confidential.

-18-

(d) (1) Except as otherwise permitted in this section, it is an

offense for a person to intentionally disclose or disseminate to

the public the law enforcement records concerning a charge of

delinquency, including the child’s name and address.

(2) A violation of this subsection (d) shall be punished as

criminal contempt of court as otherwise authorized by law.

(e) Notwithstanding other provisions of this section, where

notice is required under § 49-6-3051, an abstract of the

appropriate adjudication contained in the court file or record

shall be made and provided to the parent, guardian, or other

custodian of the juvenile, including the department, and this

abstract shall be presented to the school in which the juvenile is,

or may be, enrolled, in compliance with § 49-6-3051.

Id. § 37-1-154. The unambiguous language of the statutes establishes that juvenile court

records are to remain confidential except under certain limited circumstances.5

A. Adjudications

Code section 37-1-153 provides that “petitions and orders of the court in a

delinquency proceeding” are open to the public if the offender is 14 years or older and the

act alleged “would constitute first degree murder, second degree murder, rape, aggravated

rape, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated

robbery, kidnapping, aggravated kidnapping or especially aggravated kidnapping” if

committed by an adult. See T.C.A. § 37-1-153(b). None of the records pertaining to Mr.

Cartwright fit into this category and, as such, none of his juvenile court records would have

been open to the public.

The petitions and orders pertaining to juvenile adjudications for Mr. Cartwright

would have been subject to inspection by:

5

Although the United States Supreme Court has held that the right of an accused to effectively

confront and cross-examine the witnesses against him “is paramount to the State’s policy of protecting a

juvenile offender,” see Davis v. Alaska, 415 U.S. 308, 319 (1974), the Court’s ruling does not impose upon

the State a duty to disclose juvenile records and holds only that juvenile records may be used where they are

probative of truthfulness or bias of a witness, see State v. Butler, 626 S.W.2d 6, 9 (Tenn. 1981) (observing

that “Davis does not mandate that juvenile convictions can be used to impeach in the general sense, i.e., the

way prior convictions are normally used for adult witnesses”).

-19-

(1) The judge, officers and professional staff of the court;

(2) The parties to the proceeding and their counsel and

representatives;

(3) A public or private agency or institution providing

supervision or having custody of the child under order of the

court;

(4) A court and its probation and other officials or

professional staff and the attorney for the defendant for use in

preparing a presentence report in a criminal case in which the

defendant is convicted and who prior thereto had been a party to

the proceeding in juvenile court; and

(5) With permission of the court, any other person or

agency or institution having a legitimate interest in the

proceeding or in the work of the court.

Id. § 37-1-153(a). Arguably, as a party to those proceedings prosecuted by the State, the

State would have had access to the juvenile files for “inspection.” The right of inspection

extends, however, only to “ petitions and orders” and does not extend to any other documents

contained within the file. See id. § 37-1-153(c). In this case, had the petitioner made a

showing that he had “a legitimate interest in the proceeding,” he, too, could have had access

to the “petitions and orders” contained in Mr. Cartwright’s juvenile records by making a

request to the juvenile court. See State v. Harris, 30 S.W.3d 345, 351 (Tenn. Crim. App.

1999). That is precisely what post conviction counsel did in this case.6 Because access to

the “petitions and orders” was equally available to either party, the petitioner has failed to

establish that the State withheld information that was in its exclusive possession or control.

See Timothy Terrell McKinney v. State, No. W2006-02132-CCA-R3-PD, slip op. at 61

(Tenn. Crim. App., Jackson, Mar. 9, 2010); see also Coe v. Bell, 161 F.3d 320, 344 (6th Cir.

1998); Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir. 1995); United States v. Wilson, 901

F.2d 378, 380 (4th Cir. 1990); United States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986).

As the Sixth Circuit Court of Appeals has explained,

“Brady obviously does not apply to information that is not

wholly within the control of the prosecution. There is no Brady

6

The order of the juvenile court granting post-conviction counsel access to Mr. Cartwright’s juvenile

records extended even to those documents clearly beyond the general statutory grant of access for inspection.

-20-

violation where a defendant knew or should have known the

essential facts permitting him to take advantage of any

exculpatory information, or where the evidence is available . . .

from another source, because in such cases there is really

nothing for the government to disclose.”

Owens v. Guida, 549 F.3d 399, 415 (6th Cir. 2008) (quoting Coe, 161 F.3d at 344).

Assuming for the sake of argument, as the post-conviction court did, that the

State suppressed this information, the petitioner’s claim of Brady error must nevertheless fall

because he has failed to establish that the information contained in the adjudications was

material. Mr. Cartwright was adjudicated delinquent on three occasions for offenses

including evading arrest, resisting arrest, loitering during school hours, acquisition of

smoking materials, assault, vandalism, and violation of probation. None of these

adjudications could have been used to impeach the witness at trial. See Tenn. R. Evid. 608,

609. The adjudications in docket numbers 99-79931 and 99-81538 could have led to other,

arguably favorable information, but the trial record makes it clear that the potentially

favorable information was known to the petitioner at trial. These adjudications, handed

down October 4, 1999, reveal that Mr. Cartwright was remanded to the custody of the

Department of Children’s Services (“DCS”) for an indeterminant period, but the trial record

establishes that the parties and the trial court were aware of Mr. Cartwright’s custodial status

at the time of the petitioner’s trial.

To be sure, the fact that Mr. Cartwright remained in DCS custody at the time

of the petitioner’s trial in 2000 could have been used to establish a potential for bias on the

part of the witness, see Davis v. Alaska, 415 U.S. 308, 317 (1974), but trial counsel chose not

to pursue a line of questioning related to that status. Mr. Cartwright nevertheless related to

the jury his less-than-exemplary lifestyle, admitting drug and alcohol use as well as a

membership in the Gangster Disciples. Mr. Cartwright went so far as to characterize the

victims’ murders as “just life.” That he was also in State custody would have done little to

further vitiate Mr. Cartwright’s credibility. In consequence, the petitioner has failed to make

a “showing that the favorable evidence could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435; see

Johnson, 38 S.W.3d at 58.

B. Other Records

Although the petitioner claims that disclosure of the adjudications could have

led to the discovery of medical records, psychological reports, and other documents relating

to Mr. Cartwright’s mental state, Code section 37-1-153 makes it clear that such documents

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are not subject to disclosure at anytime. See T.C.A. § 37-1-153(c) (“Notwithstanding the

provisions of this section, if a court file or record contains any documents other than petitions

and orders, including, but not limited to, a medical report, psychological evaluation or any

other document, such document or record shall remain confidential.”). Because the

documents were not subject to disclosure at any time to any person, the petitioner has failed

to establish that the State suppressed the information. The State, obviously, had no access

to the information and could not, therefore, have suppressed it.

Again, even assuming that the State suppressed the documents, the petitioner

has failed to establish that the documents were favorable or that they were material. The

petitioner makes much of information contained in the documents relating to Mr.

Cartwright’s intelligence quotient and thought processes, claiming that the information calls

into question Mr. Cartwright’s competence to testify. The documents, however, were

prepared in 1996 and 1997, years before the petitioner’s trial in this case, and would have had

little bearing on Mr. Cartwright’s competence at the time of the petitioner’s trial in 2000.

Moreover, none of the documents evinces any fact that would have implicated Mr.

Cartwright’s competency to testify. Indeed, the rules of evidence presume that “[e]very

person” is “competent to be a witness,” Tenn. R. Evid. 601, including “children [and]

mentally incompetent persons,” Tenn. R. Evid. 601, Advisory Comm’n Comments. So long

as the potential witness has personal knowledge about a matter, see Tenn. R. Evid. 602, and

declares “that the witness will testify truthfully by oath or affirmation,” Tenn. R. Evid. 603,

the person may be accepted as a witness by the court, see State v. Carruthers, 35 S.W.3d 516,

576 (Tenn. 2000) (“The trial judge has the discretion to determine whether a witness is

competent to testify.”).

In addition, the petitioner contends that two documents contain information that

indicates that Mr. Cartwright may have actually witnessed the murders in this case, contrary

to his testimony that he did not accompany the petitioner and co-defendant as they went to

rob Mr. Lee and Mr. Ewing. The first of these documents, however, is not a record

pertaining to Mr. Cartwright but a psychological evaluation of Mr. Cartwright’s mother.7 In

addition, the source of the information, which consists of a single sentence reading “Antonio

reportedly witnessed and knew the perpetrators of an execution-style murder of a good friend

of his,” is not indicated in the document.8 A passing statement in an evaluation of a person

7

Mr. Cartwright’s juvenile record evinces a tumultuous family history largely attributable to his

mother’s intractable drug and alcohol abuse. As a result, Mr. Cartwright had involvement with the juvenile

court as well as the Department of Children’s Services that was unrelated to his criminal behavior. As part

of a plan of reunification, the juvenile court ordered a pyschological evaluation of Ms. Cartwright.

8

Mr. Cartwright also appeared as a witness for the State in the murder trial of Donald Moore, who

(continued...)

-22-

other than the witness would not be relevant, see Tenn. R. Evid. 401, and, given that no

source is attributed, would be rank hearsay with no indicia of reliability, see Tenn. R. Evid.

801; 802. Because the statement cannot be attributed to Mr. Cartwright, the document could

not have been used to impeach him at trial, or for any other purpose. See Tenn. R. Evid. 613.

The second document is Mr. Cartwright’s psychological examination,

conducted in July 1996. The report contains the statement, “Antonio reportedly witnessed

a gang[-]style murder of two teenagers, one of whom was a close friend.” Again, the

document contains no source for the information, rendering it inadmissible under the rules

of evidence. Because the statement cannot be attributed to Mr. Cartwright, it is not probative

of his credibility or of any potential for bias. Moreover, some of the proof at trial

corroborated Mr. Cartwright’s claim that he did not accompany the petitioner and co-

defendant while other proof, including the petitioner’s pretrial statement, demonstrated that

Mr. Cartwright did, in fact, go with them. Thus, the jury was presented with essentially the

same information contained in the challenged document. Although materiality under Brady

is not a test of the sufficiency of the evidence, it bears noting that the evidence of the

petitioner’s guilt was overwhelming. Under these circumstances, the petitioner has failed to

establish that either document, if disclosed, would have undermined confidence in the

outcome of the petitioner’s trial.

Because the petitioner has failed to establish that the State suppressed Mr.

Cartwright’s juvenile records or that the records were material, he has failed to establish by

clear and convincing evidence a violation of due process principles as outlined in Brady. He

is not entitled to relief on this issue.

IV. Inconsistent Theories

The petitioner asserts that his conviction and sentence should be set aside

because the State pursued inconsistent theories at the separate trials of the petitioner and the

co-defendant. He cites Mr. Cartwright’s testimony in the petitioner’s trial that it was the

petitioner who made the statement that Mr. Lee and Mr. Ewing would have to be killed and

in the co-defendant’s trial that the co-defendant made the decision to murder the victims.

The State acknowledges the inconsistent testimony but contends that there were no “core

8

(...continued)

was convicted of murdering a man in Hadley Park in Nashville on February 12, 1996, see State v. Donald

K. Moore, No. 01C01-9809-CR-00362 (Tenn. Crim. App., Nashville, Oct. 13, 1999), and in another trial

wherein Mr. Moore was convicted of murdering cab drive Hiawatha Bennett in Nashville on February 22,

1996, see State v. Donald K. Moore, No. 01C01-9801-CR-00032 (Tenn. Crim. App., Nashville, Apr. 20,

1999).

-23-

inconsistencies” between the theories presented at the two trials.

As the State correctly points out, our supreme court sua sponte acknowledged

the inconsistency in Mr. Cartwright’s testimony at the two trials and deemed it

inconsequential:

Co-defendant Davis’s case, tried separately, is currently before

this Court as well. We note that the transcript in Davis’s trial

reflects that Cartwright also testified in that case. Cartwright’s

testimony, however, differed in this respect: instead of claiming

that defendant Berry made this statement, at Davis’s trial

Cartwright testified that it was Davis who made the statement,

‘If we rob ‘em, we gotta kill ‘em.’ We find this inconsistency

insignificant, since in either case, both Davis and the defendant

were present and in apparent agreement when the statement was

made.

Berry, 141 S.W.3d at 555 n. 5. We agree with this assessment.

Although our supreme court has recognized the possibility that pursuit of

inconsistent theories at the separate trials of co-defendants may have due process

implications, the court has steadfastly declined to adopt the rule of Smith v. Groose, 205 F.3d

1045 (8th Cir. 2000), that “‘core’ inconsistencies violate Due Process guarantees.” State v.

Housler, 193 S.W.3d 476, 492 (Tenn. 2006); see also State v. Robinson, 146 S.W.3d 469,

496 n. 13 (Tenn. 2004). In both Housler and Robinson, the court found that the State had

not actually presented inconsistent theories, making analysis of any due process issue

unnecessary. We reach the same conclusion in this case.

The State’s theory at the petitioner’s trial was that the petitioner and co-

defendant formulated a plan to steal guns and other belongings from Mr. Lee and Mr. Ewing

and that their plan included murdering the victims to avoid retribution. This theory was the

same at the trial of both the petitioner and the co-defendant. See Berry, 141 S.W.3d at 554;

State v. Davis, 141 S.W.3d 600, 606 (Tenn. 2004). Regardless of which of the two actually

uttered the statement that the victims would have to be killed, the proof clearly established

that both men agreed to the scheme and set out together, armed with handguns, to fulfill their

plan. See Berry, 141 S.W.3d at 554; Davis, 141 S.W.3d at 606. Whether guilty as the

principal under a theory of criminal responsibility or as an equal participant in the co-

defendant’s plan, the petitioner was nevertheless guilty of the charged offenses.

Similarly, with regard to sentencing, whether the plan to kill the victims

-24-

originated with the petitioner or with the co-defendant, the two men clearly agreed that the

murders would be necessary to prevent recognition and retaliation by the victims. This proof

was sufficient to support the State’s theory, and the (i)(6) aggravator, that the two men

committed the murders to avoid detection.

V. Cumulative Error

The petitioner claims that the cumulative effect of the errors in his case

deprived him of his right to a fair trial. The State contends that because there was no error,

there can be no cumulative error. We agree.

As more fully discussed above, the petitioner waived all but the “primary”

claims addressed in his appellate brief. The petitioner failed to establish by clear and

convincing evidence violations of his constitutional right to speedy trial, his constitutional

right to the effective assistance of counsel, or his constitutional right to due process via either

a claim that the State violated the tenets of Brady or that the State pursued inconsistent

theories at trial. Because the petitioner failed to establish any trial error by clear and

convincing evidence, we conclude that no error existed to accumulate.

VI. Sentencing

Finally, the State contends that the post-conviction court erred by granting the

petitioner a new sentencing hearing, arguing that the use of a later-vacated conviction was

harmless error. The petitioner asserts that the post-conviction court correctly ruled that the

error cannot be classified as harmless.

The record establishes that the petitioner and co-defendant were convicted of

murdering 12-year-old Adrian Dickerson on October 17, 1995, in Nashville. During the

penalty phase in this case, the State relied on this conviction of first degree murder, in

addition to a conviction of aggravated assault and two convictions of aggravated robbery, to

establish the (i)(2) aggravating factor, “[t]he defendant was previously convicted of one (1)

or more felonies, other than the present charge, whose statutory elements involve the use of

violence to the person.” See T.C.A. § 39-13-204(i)(2) (Supp. 1996). During the pendency

of the co-defendant’s post-conviction proceedings in the Dickerson murder case, his post-

conviction counsel learned that one of the primary witnesses for the State, Calvin Carter, was

actually incarcerated at the time of the Dickerson murder and could not, therefore, have

witnessed the shooting as he claimed at trial. During the petitioner’s post-conviction

proceeding in the Dickerson case, the State conceded that Mr. Carter had offered perjured

testimony and agreed that the conviction should be vacated. At the post-conviction hearing

in this case, the petitioner argued that because the first degree murder conviction had been

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vacated, it could not be used to support the (i)(2) aggravator.9 The State agreed that the

vacated Dickerson conviction invalidated the (i)(2) aggravating factor but argued that the use

of the factor was harmless in light of the petitioner’s three remaining prior violent felony

convictions and two other valid aggravating factors, that the murder was committed for the

purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the

[petitioner] or another, see id. § 39-14-204(i)(6); and that the murder was knowingly

committed, solicited, directed, or aided by the [petitioner] while the [petitioner] had a

substantial role in committing or attempting to commit robbery or kidnapping, see id. § 39-

13-204(i)(7). The post-conviction court, relying primarily on this court’s opinion in Teague

v. State, 772 S.W.2d 915 (Tenn. Crim. App. 1988), ruled that the use of the Dickerson

murder conviction could not be classified as harmless error:

This [c]ourt simply cannot find harmless error. It

is highly likely the first degree murder conviction had a

significant effect on the jury’s sentencing decisions. . . . [I]t is

difficult to know whether the jury would have determined that

the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt without the prior

murder conviction. For these reasons, the [c]ourt must find that

the petitioner has established a ground for post-conviction relief

from his sentence and reverse the death sentences imposed in

this case.

The post-conviction court ordered that the petitioner was entitled to a new sentencing

hearing.

On appeal, the State contends that the post-conviction court erroneously failed

to evaluate the use of the invalid prior conviction under the test established in Howell v.

State, 868 S.W.2d 238 (Tenn. 1993). The record establishes, however, that the post-

conviction court did utilize the ruling in Howell to facilitate its harmless error analysis. In

Howell, our supreme court held:

In order to guarantee the precision that

9

The petitioner also claimed during the post-conviction hearing that the petitioner’s conviction of

aggravated assault should not have been used to support the (i)(2) aggravator because, although the petitioner

used violence in that case, the level of violence used did not rise “to the level of requiring a death penalty.”

He also claimed that the prior convictions of robbery should not have been used because, as charged, they

did not allege violence. The petitioner raises neither claim in his appellate brief and, as such, has waived

our consideration of the issues.

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individualized sentencing considerations demand and provide a

principled explanation for our conclusion in each case, it is

important, when conducting harmless error review, to

completely examine the record for the presence of factors which

potentially influence the sentence ultimately imposed. These

include, but are not limited to, the number and strength of

remaining valid aggravating circumstances, the prosecutor’s

argument at sentencing, the evidence admitted to establish the

invalid aggravator, and the nature, quality and strength of

mitigating evidence.

State v. Howell, 868 S.W.2d 238, 260-61 (Tenn. 1993). The post-conviction court

specifically examined the four factors enumerated in Howell and concluded that the use of

the invalid conviction could not be classified as harmless beyond a reasonable doubt given

the gravity of the conviction and the prosecutor’s emphasis on the conviction. The record

supports the conclusion of the post-conviction court.

Without the Dickerson murder, the State proved three aggravating

circumstances, and the proof of each aggravating circumstance was strong. As our supreme

court recognized in Howell, however, “the qualitative nature of each circumstance, its

substance and persuasiveness” is “even more crucial” to harmless error analysis “ than the

sum of the remaining aggravating circumstances.” Id. at 261. The court explained, “By their

very nature, and under the proof in certain cases . . . some aggravating circumstances may

be more qualitatively persuasive and objectively reliable than others.” Id. In our view, a

prior conviction of first degree murder qualifies as “more qualitatively persuasive and

objectively reliable” than other aggravating factors because it confirms, via the power of a

conviction certified by the State, an accused’s propensity to kill. See State v. Boyd, 959

S.W.2d 557, 561 (Tenn. 1998) (deeming prior conviction of second-degree murder

“significant” to analysis of harmlessness of invalid aggravating factor); Teague v. State, 772

S.W.2d 915, 931 (Tenn. Crim. App. 1988) (accessory before the fact to murder in the second

degree).

With regard to the second factor, the emphasis placed on the invalid aggravator

by the prosecutor, the record establishes, and the State concedes, that the prosecutor placed

a great deal of emphasis on the petitioner’s prior conviction of first degree murder, at one

point deeming it the “most important[]” of the factors for the jury’s consideration. The

prosecutor called the petitioner a “cold-blooded murderer,” citing his taking of “three lives,”

a direct reference to the prior murder. At one point, the prosecutor argued, “If the killing of

three people isn’t a case for the death penalty, what is?” He also stated, “Because of [the

petitioner’s] choices, three families have had to bury their children.” At another point, he

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asked rhetorically, “What part of the life that [the petitioner] led is wrong that would lead

him to commit murder of three separate people?” Clearly, the petitioner’s prior first degree

murder conviction played a major role in the State’s case for the death penalty.

With regard to the third factor, the nature of the evidence admitted to prove the

invalid aggravating factor, the record establishes, and the State concedes, that otherwise

inadmissible evidence was presented to the jury but argues that the proof was deminimus.

We agree. The only proof presented to the jury regarding the Dickerson murder conviction

was a certified copy of the defendant’s judgment of conviction. None of the facts underlying

the murder were presented to the jury, the trial court having deemed them too prejudicial.

Finally, with regard to the fourth factor, the nature, quality and strength of the

mitigation proof, the record establishes that the petitioner, contrary to his assertions of a

tumultuous upbringing, was raised by his grandmother in a relatively stable and loving home.

The petitioner also failed to establish proof of any mental illness or other condition that might

have lessened his culpability in the murders.

With these factors in mind, we conclude that the quality of the invalid

aggravating factor and its over-emphasis by the prosecutor greatly outweigh the remaining

factors. Given that the State repeatedly asked the jury to sentence the petitioner to death for

the taking of three lives rather than the two for which he was on trial, we cannot say that the

error in the admission of his prior conviction of first degree murder was harmless beyond a

reasonable doubt. Consequently, we affirm the order of the post-conviction court reversing

the petitioner’s sentence of death and ordering a new sentencing hearing.

Conclusion

The judgment of the post-conviction court denying trial relief but granting a

new capital sentencing hearing is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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