Elmer Harris v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2011

ELMER HARRIS v. STATE OF TENNESSEE

Direct Appeal from the Shelby Court for Criminal County

No. 05-01714-15 Paula Skahan, Judge

No. W2010-00781-CCA-R3-PC - Filed September 7, 2011

The Petitioner, Elmer Harris, appeals the post-conviction court’s denial of his petition for

post-conviction relief. He was convicted by a jury of aggravated assault, attempted

aggravated robbery, and aggravated robbery. The Petitioner received an effective sentence

of twenty-nine years in confinement. In this appeal, he argues that he was denied the

effective assistance of counsel at trial and on appeal. He claims that trial counsel was

ineffective for failing to adequately investigate witnesses, failing to question discrepancies

in the witnesses’ statements, and failing to provide complete discovery until after trial. He

further claims appellate counsel was ineffective because the Petitioner was not notified that

his direct appeal had been denied until after the deadline to file a Rule 11 appeal to the

Tennessee Supreme Court had expired. We affirm the judgment of the post-conviction court

with respect to trial counsel. In regard to appellate counsel, we conclude that the Petitioner

is entitled to petition the Tennessee Supreme Court for further review pursuant to Rule 11

of the Tennessee Rules of Appellate Procedure.

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

in Part, and Reversed in Part

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and

R OBERT W. W EDEMEYER, JJ., joined.

Sean H. Muizers, Memphis, Tennessee, for the Defendant-Appellant, Elmer Harris.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Bryan Davis, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. The facts, as relevant to this appeal, have been previously described

as follows:

At approximately 3:30 a.m. on July 4, 2004, Gregory Martin was

working as a clerk at a Mapco convenience store in Memphis when a man

entered the store, placed a one dollar bill on the counter, and asked for a single

“Black and Mild” cigar. When Martin opened the drawer of the cash register,

the man produced a chrome handgun, pointed it at Martin, told Martin to step

into the back of the store, and instructed him “not to be a hero.” The man then

reached into the cash register drawer and removed between sixty and seventy

dollars. Martin stepped into a back room, and the man proceeded to leave the

store. Martin called the police and then called the store’s security team. When

the police arrived, Martin described the suspect to them as a “black man,

medium to light skin complexion, about six feet [tall], wearing a black T-shirt

with white writing, [and] khaki to yellow pants.” The convenience store was

also equipped with a surveillance camera, which was operating at the time of

the crime. On September 5, 2004, after viewing a photographic lineup shown

to him by the police, Martin identified the Appellant as the perpetrator. At a

preliminary hearing in November of 2004, Martin again identified the

Appellant.

Sometime after 1:00 a.m. on July 10, 2004, Melissa Wright, a clerk at

a Circle K convenience store, and a coworker were in a back office of the store

when they noticed on the store’s surveillance camera a man entering the store.

Wright went out to help the man while her coworker remained in the back

office. Wright asked the man if she could help him, and he asked for one

“Black and Mild” cigar. Wright told the man the cigar would cost seventy-five

cents, and he handed her a one dollar bill. As Wright closed the cash register

drawer and prepared to give him the cigar and his change, the man said “look

at this” and pointed a chrome handgun at her face. Wright then turned and ran

into the back office, and her coworker pushed the store’s “panic button” to

summon the police. Wright later identified the Appellant as the perpetrator

from a photographic lineup. At trial, Wright testified that the robber was

wearing a navy blue t-shirt that “had a T slash ... MAC, M-A-C on the shirt.”

State v. Elmer Harris, No. W2006-02516-CCA-R3-CD, 2007 WL 2822909 at *1-2 (Tenn.

Crim. App. at Jackson, Sept. 27, 2007). Based on the above proof, the Petitioner was

convicted of aggravated assault, attempted aggravated robbery, and aggravated robbery. He

filed a timely appeal to this court in which he challenged whether the indictments were

properly consolidated and whether the evidence was sufficient to support his convictions.

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This court affirmed the Petitioner’s convictions and sentences. However, the case was

remanded to allow the trial court to merge the aggravated assault into the attempted

aggravated robbery.

On August 19, 2008, the Petitioner filed a pro se petition for post-conviction relief,

which was followed by the filing of an amended petition by appointed counsel on April 9,

2009. The Petitioner raised several issues in his petition for post-conviction relief alleging

the ineffective assistance of counsel at trial and on appeal. The allegations against trial

counsel centered on her failure to provide complete discovery, failure to fully investigate

alibi witnesses, and failure to adequately cross-examine witnesses.1 The petitioner alleged

that appellate counsel failed to notify him that his direct appeal had been denied. As a result,

the petitioner claimed he was unable to file a Rule 11 appeal to the Tennessee Supreme

Court.

Post-Conviction Hearing. The Petitioner testified that “a lot of stuff that should have

been brought out at trial that I didn’t even know about that once I got my full discovery I

found out about, that was never brought out in trial.” His first complaint was that Gregory

Martin and Melissa Wright, the two witnesses who identified him at trial, “chang[ed] their

description after seeing a photo of [him].” Specifically, the Petitioner explained:

Both of them, after they seen my picture, they described seeing bald headed,

goatee. Gregory Martin said that the guy was, well Melissa Wright, she said

he was, she described me from my picture. But, on the night of the robbery

she said the guy was, she said he was a clean shaven, medium to regular, short,

bald and balding. His general description, general appearance unkempt. She

never said anything about goatee or anything.

The Petitioner further alleged that he was not provided with discovery until after trial. He

said that this was important because it revealed that a confidential informant told Sergeant

Billy Smallwood that he was responsible for the instant robberies and he “never knew about

[it].” He also complained that he received only black and white copies of the photographs

from the robberies and was unable to get copies of the photographs in color. He claimed the

color photographs would have shown that he was not the perpetrator of the crimes. He

testified that “[i]n one scene when he saw the tape at the Mapco robbery it showed the guy

when he came in the store. You could see his face plastered all over the screen of the tape,

1

The Petitioner raised several other issues in his petition for post-conviction relief and before the trial

court. However, his brief is limited to the effectiveness of trial and appellate counsel on these four (4) issues

only. Therefore, our opinion addresses only the issues raised in the Petitioner’s brief and all other issues are

waived.

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over the TV.” While the Petitioner had a mole on his eye, the person in the photograph did

not. He also said he had a scar on his forehead which neither of the eyewitnesses mentioned

in their description of him.

The Petitioner testified that he provided trial counsel with two alibi witness, which

were not investigated. He provided counsel with the name and phone number for “Thomas

Hatley” as an alibi witness for the July 4 robbery and “Sharon” and “Elsie” for the July 10

robbery. The Petitioner continued and explained that the information regarding Sergeant

Billy Smallwood was important because, “everybody in the neighborhood knew Smallwood

was dirty[.]” The Petitioner testified that at the consolidation hearing the victims of the

robberies provided inconsistent descriptions of the weapon used during the robbery. He

stated that Melissa Wright said it was a “silver handgun” and in her statement “it was a

thirty-eight.” Gregory Martin “said it was a chrome handgun, it was a forty caliber pistol.”

He said that one victim described an automatic and the other victim described a revolver.

The Petitioner said that he could never contact appellate counsel until after he wrote

the Board of Professional Responsibility (BPR). He was then notified by appellate counsel

that he had been suspended. The Petitioner testified that a Rule 14 certification and appellate

counsel’s notice to withdraw were sent to him at the Shelby County Jail on October 4, 2007.

However, the Petitioner had been moved from the Shelby County Jail to the Hardeman

County Correctional Facility some ten months earlier, in January of 2007. Because appellate

counsel failed to notify him that his appeal had been denied, the Petitioner was unable to

apply for permission to appeal his case to the Tennessee Supreme Court.

On cross-examination, the Petitioner conceded that he received some of his discovery

prior to trial, including the statements of the victims. He did not receive a police officer’s

report following his visit to Melissa Wright’s residence. He did not believe that trial counsel

cross-examined the victim, Melissa Wright, effectively because she did not question her

about “changing her description” or “the [police officer’s] visit” to the victim’s residence.

He conceded that he was provided with black and white photographs of the robberies, but

maintained that he was not provided with “all” of the photographs. He agreed however that

he was shown “all” of the photographs during trial.

On re-direct examination, the Petitioner explained that a video of both robberies was

shown at trial. Regarding the Circle K robbery, the Petitioner believed, based on the

photographs that he was shown, that there was “more to the video” and it was not shown.

Regarding the Mapco robbery, the Petitioner said it was not of good quality.

Trial counsel, an Assistant Shelby County Public Defender for nearly twenty years,

testified that the Petitioner provided her with the name of “Christian Davis” as an alibi

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witness for the July 4 robbery. The alibi witness stated that the Petitioner had been with him

at his grandmother’s house and stayed overnight on July 4. Trial counsel explained, “The

problem with that was that this robbery occurred in the early morning hours of July 4 th before

Mr. Harris would have arrived at his grandmother’s house.” Regarding Melissa Good, trial

counsel recalled the Petitioner had “not had any contact with her and had no idea where to

find her by the time he was arrested[.]” Regarding the potential “Sharon” alibi, trial counsel

stated the Petitioner told her “that he didn’t think she worked at Circle K anymore.” When

trial counsel pressed the Petitioner about Sharon’s last name and address, the Petitioner told

counsel to “drop it” because she was married and “he did not want her to get in trouble.”

Trial counsel testified that she provided the Petitioner with discovery prior to trial.

She explained, “[T]here would be no reason to give somebody discovery after the trial.” She

said they had many discussions regarding his case and that they specifically discussed the

photographs and the mole on the Petitioner’s face. She acknowledged that the Petitioner

asked for a second copy of the color photographs. In turn, she asked the prosecutor for the

second set, and for some reason, the prosecutor was unable to provide it. She then asked the

prosecutor to allow the Petitioner to view the photographs in court, which was permitted.

Trial counsel stated that there were no photographs at trial that she had not previously seen.

Trial counsel further confirmed that the videos shown at trial of the robberies were the same

videos that she viewed in discovery and that nothing had been “edited out.”

Trial counsel explained that the basis of the State’s motion to consolidate the offenses

was not the similarity of the gun, as suggested by the Petitioner. In her view, “there was not

a difference between a silver and chrome gun.” She explained that the State consolidated the

cases based on “the common scheme” of the perpetrator using the same procedure. In each

robbery, the perpetrator wore a similar t-shirt, asked for a “Black and Mild,” put just one

dollar bill on the counter, and used a silver or chrome gun. Trial counsel further confirmed

that the Petitioner told her that Sergeant Smallwood stopped him some time between July 15

and July 25. She recalled the Petitioner advising her that, “Smallwood roll[ed] up . . . have

pictures of quote, robber, shows to Smallwood, he says it’s not defendant.” She declined to

speak with Sergeant Smallwood or call him as a witness. She reasoned:

The likelihood that an officer, a police officer would come in and testify about

something that happened, well, at that point two years earlier and testify for a

defendant. It’s always risky to put a police officer as a defensive witness.

And, it truthfully didn’t come down to whether or not Mr., you know, Sergeant

Smallwood thought he was the robber, it was whether or not the witnesses did.

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Finally, trial counsel testified that Yolanda Davis, who was present in the back room

with Melissa Wright during the Circle K robbery, may have moved away from Memphis

following the indictment in this case.

Appellate counsel, a veteran Assistant Shelby County Public Defender, testified that

he filed a brief in the Petitioner’s case and sent it to the Petitioner. He stated that he filed a

Rule 14 motion to withdraw “thinking there wasn’t going to be any merit to a Rule 11

application for permission to appeal.” He sent the Petitioner a copy, but conceded that it was

addressed to the Shelby County Jail, not the Petitioner’s current address. Appellate counsel

said that he did not advise the Petitioner that he would be representing him beyond the direct

appeal, nor did appellate counsel mislead the Petitioner in regard to further appeals.

By written order, the post-conviction court denied the petitioner relief.

ANALYSIS

The Petitioner claims that trial counsel was deficient for failing to investigate various

witnesses for trial including Yolanda Davis, a potential witness to the Circle K robbery, and

Sergeant Smallwood. He argues that had counsel spoken with Sergeant Smallwood, she

would have determined that the Petitioner was developed as a suspect through a confidential

informant. The Petitioner further claims that counsel was deficient for failing to provide him

with complete discovery until after the conclusion of the trial and failing to question the

discrepancies in the witness’s identification of the guns at the consolidation hearing. The

Petitioner also argues that “the trial court erred in denying [his] Petition for Post Conviction

Relief because Appellant’s Sixth Amendment right to effective assistance of appellate

counsel was violated.” He argues that appellate counsel failed to properly notify him that his

appeal had been denied. The State contends that the Petitioner failed to prove his claims by

clear and convincing evidence; therefore, the post-conviction court properly denied relief.

We agree with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.

§ 40-30-103 (2006). The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. When reviewing factual issues, the

appellate court will not re-weigh or re-evaluate the evidence; moreover, factual

questions involving the credibility of witnesses or the weight of their testimony

are matters for the trial court to resolve. The appellate court’s review of a

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legal issue, or of a mixed question of law or fact such as a claim of ineffective

assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations

omitted). “The petitioner bears the burden of proving factual allegations in the petition for

post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);

Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and

convincing when there is no serious or substantial doubt about the accuracy of the

conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)

(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States Constitution

and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to representation

encompasses the right to reasonably effective assistance, that is, within the

range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to

prove either deficiency or prejudice provides a sufficient basis to deny relief on the

ineffective assistance claim. Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an insufficient showing of one

component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard of

reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is

demonstrated once the petitioner establishes “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 370.

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“‘A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).

This court has concluded that “[w]hen a petitioner contends that trial counsel failed

to discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990). The presentation of the witness at the post-conviction hearing

is the only way for the petitioner to establish:

(a) a material witness existed and the witness could have been

discovered but for counsel’s neglect in his investigation of the

case,

(b) a known witness was not interviewed,

(c) the failure to discover or interview a witness inured to his

prejudice, or

(d) the failure to have a known witness present or call the

witness to the stand resulted in the denial of critical evidence

which inured to the prejudice of the petitioner.

Id.

“To determine whether appellate counsel was constitutionally effective, we use the

two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984)--the same test that

is applied to claims of ineffective assistance of trial counsel asserted under the Sixth

Amendment to the United States Constitution.” Carpenter v. State, 126 S.W.3d 879, 886

(Tenn. 2004); see also Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying Strickland

to a claim of attorney error on appeal).

Trial Counsel. The post-conviction court considered the evidence presented at the

hearing and determined that trial counsel’s performance was “‘within the wide range of

reasonable professional assistance’ in criminal matters.” Upon our review, nothing in the

record preponderates against the findings of the post-conviction court regarding trial counsel.

We note at the outset that, based on the issues presented by the Petitioner in his petition as

well as his testimony before the post-conviction court, we struggle to ascertain his primary

complaint with trial counsel. Trial counsel investigated the names provided by the Petitioner

to the extent that she could. She was given partial names and addresses, and told not to

pursue one witness. Trial counsel testified that Yolanda Davis, a potential witness, had re-

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located. The Petitioner did not testify how her testimony would have affected his case and

failed to present her during the post-conviction hearing as required by Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). The record shows trial counsel considered

Sergeant Smallwood as a witness, and, given her experience with police officers testifying

for defendants, declined to call him as a witness.

Based on the Petitioner’s testimony about the photographs and the videos, he

seemingly argues, as he did on direct appeal, that he was misidentified by the victims in his

cases.2 His post-conviction testimony and brief focuses more on his interpretation of

inconsistencies between the videos and the still photographs of the robberies and less on the

inadequacies of trial counsel. The record shows that the Petitioner was shown all of the

photographs and the videos in this case. Trial counsel testified that the photographs and the

videos that she viewed in discovery were the same as those admitted at trial. The petitioner

has failed to demonstrate either deficient performance or prejudice required for this claim.

He is not entitled to relief on this issue.

Appellate Counsel. Appellate counsel testified that a letter was sent to the petitioner,

consistent with his office policy, opening the Petitioner’s case and sending him a copy of the

trial transcripts and brief. Appellate counsel did not recall any specific “communications”

with the Petitioner. After the Petitioner’s conviction was affirmed, appellate counsel sent the

Petitioner a Rule 14 motion to withdraw “thinking there wasn’t going to be any merit to a

Rule 11 application for permission to appeal.” The record shows the motion was sent to the

Shelby County Jail, some ten months after the Petitioner had been transferred to the

Hardeman County Correctional Facility. When asked whether the Petitioner received the

motion, appellate counsel replied, “if the address he gave us today is correct then obviously

he did not get it.” The record shows that appellate counsel or his office knew that the

Petitioner was located at the Hardeman County Correctional Facility because the Petitioner

had received all other previous correspondence, including the initial opening letter, the trial

transcripts, and briefs, at the Hardeman County Correctional Facility. Appellate counsel

testified, “If the letter went to – the Rule 14 went to [the Shelby County Jail] then that clearly

was a mistake and [the Petitioner] may have a valid complaint there. I’m not going to deny

that.”

The post-conviction court determined that the Petitioner failed to show by clear and

convincing evidence that appellate counsel failed to notify the Petitioner that his appeal had

2

It is evident from the record that the Petitioner referred to various documents throughout his

testimony, none of which were identified for the record or admitted as exhibits to the hearing. We are without

the benefit of these documents including the photographs and the videos that the Petitioner repeatedly

referred to during the hearing.

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been denied. The post-conviction court emphasized the Petitioner’s testimony that “it was

‘true’ that on the last day for his appeal to be filed, he knew that no appeal had been filed on

his behalf.” The post-conviction court further determined:

While counsel may be considered deficient for failing to notify defendants of

their option to seek review by the Supreme Court, the evidence here shows that

Appellate Counsel did in fact file a timely Rule 14 motion intended to notify

Petitioner on how to appeal to the Tennessee Supreme Court. Moreover,

although the Petitioner indicates that he never received the Rule 14, the

evidence does not support a finding that the error was through fault of

Appellate Counsel. Furthermore and assuming arguendo that Appellate

Counsel was deficient, Petitioner fails to show that the outcome of his case

was prejudiced.

The proof at the hearing shows that appellate counsel sought to comply with Supreme

Court Rule 14 in moving to withdraw as the petitioner’s attorney and attempting to send the

proper notification to the petitioner. However, as candidly admitted by appellate counsel and

in light of the prior correspondence which was properly addressed to and received by the

Petitioner, appellate counsel did not properly address the Rule 14 motion. On similar facts,

this court has previously held:

In order to assure that a defendant is not left ignorant of his procedural rights

to pursue a discretionary appeal from a final judgment of this Court, Supreme

Court Rule 14 provides for the minimum requirements to assure a defendant’s

right of due process. State v. Brown, 653 S.W.2d 765, 766-67 (Tenn. Crim.

App. 1983). In this respect, although the trial court found that the petitioner’s

ignorance of the filing of this court’s opinion in the direct appeal was not due

to counsel’s neglect, this does not negate the fact that counsel did not actually

assure that the petitioner was not left ignorant of his procedural rights to seek

supreme court review. With the affirmative duty being placed upon counsel

to notify the petitioner of his further right to appeal and with the record

reflecting that such lack of notification in this case was not caused by the

petitioner, Brown indicates that a violation of the petitioner’s right to due

process may be involved. Therefore, in the interest of justice and to assure

strict compliance with due process, we conclude that the petitioner’s right to

seek supreme court review in his direct appeal should be reinstated. See, e.g.,

State v. Lester D. Herron, C.C.A. No. 03C01-9109-CR-00284, Hawkins Co.

(Tenn. Crim. App. Mar. 10, 1992).

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Cornelius Tyrone Luster v. State, No. 02C01-9409-CR-00205, 1995 WL 422798 at *3-4

(Tenn. Crim. App. July 19, 1995) (internal quotations omitted). Accordingly, and consistent

with the above authority, we reinstate the Petitioner’s right to seek supreme court review of

his direct appeal in this matter.

CONCLUSION

We affirm the post-conviction court’s denial of relief relative to the effective

assistance of counsel at trial. The record demonstrates a sufficient basis for relief in order

to allow the petitioner to seek supreme court review of this court’s judgment in the direct

appeal. We therefore vacate our judgment filed on September 27, 2007, in State v. Elmer

Harris, No. W2006-02516-CCA-R3-CD, at Jackson, and reenter it, effective as of the date

of the release of this opinion, for the sole purpose of reinstating the time allowed for seeking

permission to appeal to the supreme court in that case.

___________________________________

CAMILLE R. McMULLEN, JUDGE

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