The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 8, 2011
HECTOR ALONZO v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2000-D-1876 J. Randall Wyatt, Jr., Judge
No. M2010-00097-CCA-R3-PC - Filed August 30, 2011
The Petitioner, Hector Alonzo, appeals pro se from the denial of post-conviction relief by the
Criminal Court for Davidson County. He was convicted by a jury of conspiracy to possess
with intent to sell more than seventy pounds of marijuana within one thousand feet of a
school zone, a Class A felony.1 The petitioner was sentenced to fifteen years in the
Tennessee Department of Correction. On appeal, he claims: (1) he received ineffective
assistance of counsel; and (2) the trial court abused its discretion by prohibiting him from
raising a selective prosecution claim. Upon review, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ. joined.
Hector Alonzo, Tiptonville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Tammy
Meade, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
1
The record does not include the judgment form. This information is based on this court’s decision
from the petitioner’s direct appeal. See State v. Roberto Vasques, No. M2004-00166-CCA-R3-CD, 2005
WL 2477530, at *1 (Tenn. Crim. App., at Nashville, Oct. 7, 2005).
Background. The petitioner and several co-defendants were charged with conspiracy
to possess with intent to sell more than seventy pounds of marijuana within one thousand feet
of a school zone. The charges related to an undercover drug purchase conducted by the
Tennessee Bureau of Investigation (“TBI”) and the Metropolitan Nashville Police
Department. The petitioner and five co-defendants were tried together in a single jury trial.2
The underlying facts of this case were set forth by the Tennessee Supreme Court on the
petitioner’s direct appeal:
On April 18, 2000, Jose Rodriguez (“Rodriguez”), who had been
arrested for drug offenses, informed TBI Agent Howell and other officers that
the suppliers of his illegal drugs could be found at two locations, 1035 and
1147 Antioch Pike in Nashville, Tennessee. In cooperation with the police,
Rodriguez telephoned his supplier, “David,” who was later identified as
Romero, and arranged to buy one hundred pounds of marijuana at a carwash
on Nolensville Road. Officers with the TBI and the Metropolitan Police
Department cooperated in the investigation.
Police Detective Jessie Birchwell and approximately fourteen other
officers established surveillance at both of the Antioch Pike houses and also
at the Nolensville Road carwash. Detective Birchwell observed two men in
a white Toyota Camry meet Rodriguez at the carwash. The driver, who was
wearing a white football jersey and was later identified as Romero, got out of
the Camry and entered Rodriguez’s car. Meanwhile, a man in a gray van was
parked nearby. He appeared to be talking on a radio. When Romero left the
Rodriguez vehicle and drove away in his Camry, the gray van remained at the
carwash.
About thirty minutes later, Romero and a passenger later identified as
Hernandez returned to the carwash in the same Camry. They were followed
by a white Ford Taurus. A black Pontiac Firebird occupied by two Hispanic
males was driven into a nearby parking lot. The individuals in the Firebird had
an “unobstructed view” of the carwash. When an officer who had been
monitoring Rodriguez’s conversation with his suppliers gave the “take down”
signal, Detective Birchwell drove into the carwash and was able to arrest
Romero, who had tried to flee. Hernandez remained in the Camry. A loaded
handgun and a walkie-talkie were found in their vehicle.
Vasques fled from the white Taurus and ran toward Nolensville Road
before being tackled by Officer Rob Forrest. A loaded handgun was found in
2
Several other co-defendants entered plea agreements.
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a carwash bay near where Vasques had run. Alonzo, who was seated on the
passenger side of the Taurus, was taken into custody by Detective John
Donnegan. Three trash bags in the trunk of the Taurus and another on the
ground behind the vehicle contained approximately one hundred pounds of
marijuana. By the time the four men had been arrested, the gray van had been
driven from the scene.
During the period of surveillance, Police Officer Herbert Kajihara
watched the Firebird traveling slowly through a Dairy Queen parking lot
before it was parked in a Burger King parking area within view of the carwash.
The vehicle’s occupants, whom Kajihara described as “slouched” down in
their seats and “looking back and forth,” stayed in the car. When the
take-down signal was given, Kajihara approached the Firebird, which
Detective Leon Taylor had blocked with his car. The suspects in the Firebird,
who were later identified as Garza and Vasquez, made no effort to avoid
arrest.
At trial, Detective Taylor testified that prior to the arrests, he had
followed the Camry from the carwash to a Walgreens at the corner of Antioch
Pike and Nolensville Road. The Camry was met there by the white Taurus.
Detective Taylor continued to watch as the Taurus was driven from the
parking lot and proceeded along Antioch Pike before being returned to the
Walgreens some ten minutes later. The black Firebird followed the Taurus.
Taylor assisted in the arrest of Garza and Vasquez. Although a loaded shotgun
was found behind the front seat of the Firebird, Taylor found no evidence of
illegal drugs in the vehicle.
TBI Agent Howell, who was involved in the initial arrest of the
informant Rodriguez and was a part of the surveillance team near the carwash,
witnessed the black Firebird being parked in the Dairy Queen parking lot.
According to Agent Howell, the Firebird’s occupants left the Dairy Queen
after glancing toward the carwash and then parked near the Burger King. He
described the two men as continuously looking straight ahead and observed
that neither left the vehicle. Agent Howell, who did not participate in the
arrests, identified Vasquez and Garza as the occupants of the Firebird.
Metropolitan Police Officer Thomas Rollins likewise testified that
shortly before the arrests, he saw the Taurus occupied by Hispanic males enter
the driveway at 1147 Antioch Pike. He saw the driver knock on the door and
stand there for a few minutes before returning to his vehicle and driving to
1035 Antioch Pike. No one got out of the car at that location. Shortly
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thereafter, two Hispanic males arrived in the black Firebird, got out of their
vehicle, and walked toward the back of the residence. The Taurus left the
residence first and the Firebird followed, each being driven to the Walgreens
where the Camry was already parked.
Metropolitan Police Detective Mike Clark, who had also provided
surveillance at the carwash, trailed the Camry from the carwash to the
Walgreens. At trial, Clark testified that as the two cars traveled from the
residences on Antioch Pike toward the Walgreens, they passed by Glencliff
Elementary School, Glencliff High School, and Wright Middle School. He
measured the distance from Glencliff Elementary School to Antioch Pike at
200 feet and he determined that Glencliff High School was 202 feet from the
road. The officer testified that Wright Middle School was 222.6 feet from
Antioch Pike and that the Walgreens was only eighty-one feet from Radnor
Baptist Elementary. He also concluded that Radnor Baptist Elementary was
“just shy” of one thousand feet from the carwash.
Following the arrests of the defendants, the officers obtained a search
warrant for the houses located at 1035 and 1147 Antioch Pike. At the 1035
Antioch Pike address, they found a safe containing money, electronic scales,
marijuana, ammunition, a loaded handgun magazine, and a box to a Glock
model 26 handgun. At the 1147 Antioch Pike address, they found a Glock
model 26 handgun, ten trash bags each of which contained twenty-five
one-pound baggies of marijuana, a ledger containing records of amounts paid
and drugs shipped, eight one-pound bags of marijuana, and a shotgun. The
bags for the marijuana were identical to the bags found in the Taurus occupied
by Vasques and Alonzo.
The evidence found at the scene and at the two houses on Antioch Pike
was secured, sealed, and sent to the lab for testing. TBI forensic chemist
Donna Flowers testified that the marijuana in the Taurus weighed 93.8 pounds
and that the marijuana confiscated at 1035 Antioch Pike weighed 250.5
pounds. TBI forensic scientist William H. Stanton, Jr., testified that the
marijuana found at the 1147 Antioch Pike residence weighed 21.2 pounds.
State v. Vasques, 221 S.W.3d 514, 517-19 (Tenn. 2007).
The petitioner and the co-defendants were each convicted of conspiracy to possess
with intent to sell more than seventy pounds of marijuana within one thousand feet of a
school zone. They were each sentenced to fifteen years in the Tennessee Department of
Correction.
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A complex procedural history developed after the petitioner was sentenced and the
motion for new trial was denied. He and the other co-defendants appealed to this court,
raising several issues including the sufficiency of the evidence. See Roberto Vasques, 2005
WL 2477530, at *1. This court stayed the appellate proceedings after the defendants filed
petitions for coram nobis relief with the trial court. Id. at *1. The petitions were filed after
the TBI’s lead investigator in this case revealed that he was addicted to cocaine and had
tampered with evidence in other cases. Id. The trial court granted all of the petitions for
coram nobis relief and vacated the convictions. Id. On appeal, this court affirmed the coram
nobis judgments for only two of the defendants. Id. at *14. It reversed the coram nobis
judgments for the petitioner and other co-defendants. Id. In its decision, this court also
addressed the issues raised on direct appeal. It found that the petitioner’s conviction was
supported by sufficient evidence. Id. at *20-21. Additionally, this court considered the
separate issue of whether a jury instruction should have been given for the lesser-included
offense of facilitation. Id. at *22-25. The issue was reviewed under plain error analysis
because the instruction was not requested at trial. Id. at *24. This court determined that a
facilitation instruction was warranted. Id. at *25. It held, however, that the error was
harmless beyond a reasonable doubt. Id. This court reasoned that the evidence
“overwhelmingly” established that the petitioner was guilty of conspiracy. Id. The
Tennessee Supreme Court affirmed this court’s rulings. Vasques, 221 S.W.3d at 529.
The petitioner filed a pro se petition for post-conviction relief. The petition raised
several claims, including ineffective assistance of counsel and selective prosecution. The
ineffective assistance of counsel claim was based in part on trial counsel’s failure to request
a jury instruction on the lesser-included offense of facilitation. The petition also alleged that
trial counsel should have investigated improper communications between the prosecutor and
a juror. The petitioner retained an attorney, and several amended petitions were filed. The
allegations in the petitions were addressed at a post-conviction hearing. The petitioner was
represented by counsel at the hearing.
Post-Conviction Hearing. The petitioner’s father, Candelario Alonzo,3 testified that
he was present during the petitioner’s trial. While in the courtroom, Candelario noticed that
one of the jurors was communicating with the prosecutor. The juror was seated in the jury
box, and the prosecutor was at the prosecutor’s table. Candelario said the juror and the
prosecutor were giving “some hand signals.” Candelario recalled that the juror gave the
thumbs-up signal. The hand signals were made while the judge was outside of the
courtroom. Candelario said he could not tell whether the prosecutor made eye contact with
the juror. Candelario described a second incident in which he saw the same juror have a
conversation with the prosecutor. This conversation, which took place in a passageway
3
For purposes of clarity, Candelario Alonzo shall be referred to by his first name.
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behind the jury box, occurred after the trial was adjourned for the day.4 Candelario said he
spoke to trial counsel and the petitioner about both incidents. He expected trial counsel to
raise the matters before the trial court. On direct examination, Candelario did not provide
clear testimony about when he informed trial counsel of the improper communications
between the prosecutor and the juror. He said he spoke to trial counsel about some of the
“stuff” during trial. Candelario explained that he did not tell trial counsel about “the other
stuff” until after the trial. On cross-examination, Candelario clarified that he spoke to trial
counsel about the hand signals on the day they happened. He waited until the following
morning to tell trial counsel about the conversation in the passageway. Candelario said he
was unable to discern the substance of the communications between the juror and the
prosecutor.
Reed Poland, a criminal defense attorney, testified that he did not represent the
petitioner and was not familiar with the facts of this case. Poland was asked about a
hypothetical scenario in which a defense attorney is informed that a prosecutor had improper
communications with a juror during trial. Poland stated the proper course of action for the
defense attorney would be to contact the trial judge and move for a mistrial.
The petitioner testified that he initially received appointed counsel. His father chose
to retain a different attorney, trial counsel, about three or four months before trial. The
petitioner stated that during trial, his father informed him of the communications between the
juror and the prosecutor. The petitioner said he personally saw the juror smirk and make
hand gestures in the jury box. He alerted trial counsel to the situation by passing her notes.
In the notes, he asked trial counsel to bring the prosecutor’s actions to the trial court’s
attention. Trial counsel, however, never raised the issue of prosecutorial misconduct. The
petitioner said he spoke to trial counsel twice about the prosecutor’s communications with
the juror. She responded by stating that she had not seen any misconduct. On the day after
the trial ended, the petitioner filed a complaint against trial counsel with the Board of
Professional Responsibility. He acknowledged that this complaint was unsuccessful. The
petitioner testified that his father informed him of the conversation in the passageway
between the prosecutor and the juror. The petitioner claimed he told trial counsel about this
incident as well. He said the juror who communicated with the prosecutor was the jury
foreman.
Trial counsel testified that she was hired to represent the petitioner a couple of months
before trial. She said the petitioner wanted to go to trial. He rejected a plea deal even though
she explained that the likelihood of a conviction was high. Trial counsel discussed the
allegations of prosecutorial misconduct:
4
Candelario made clear that the conversation did not occur after the trial ended.
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There has been testimony that there was eye contact between [the prosecutor]
and a juror. And then there was testimony that there was . . . an observed but
unheard conversation between [the prosecutor] and a juror. As to the gestures
or eye contact, not only did Mr. Alonzo bring that to my attention, but I have
also observed that there was one particular juror that was quite engaged in the
proceeding throughout voir dire and throughout all of the trial[.] I had noticed
that he made a lot of eye contact with, I’ll say the state’s table, because I don’t
know exactly who he was looking at. He made a lot of eye contact with the
defense table, including myself. I never saw him make a hand gesture or do
anything that was inappropriate, but . . . I do recollect and I had this
conversation with Mr. Alonzo that we had a juror who was very interested in
the proceeding.
Trial counsel said she chose not bring the matter to the trial court’s attention because she
witnessed no improper communications between the State and the juror. Trial counsel stated:
When the client brought it to my attention, I had already noticed it throughout
the trial. So he was not bringing anything to my attention that I did not see.
And I told him exactly what I’ve testified that I’d seen it from the beggining
[sic], nothing that looked any different than any other trial for someone paying
attention.
Trial counsel denied that the petitioner or his father mentioned that the prosecutor had a
conversation with the juror. She claimed she would have acted on this information if it had
been provided.
Following the proof at the hearing, the post-conviction court denied the petition by
written order. The post-conviction court rejected the ineffective assistance of counsel claim.
It found that the petitioner was not prejudiced by the absence of a jury instruction on
facilitation. The post-conviction court referred to the appellate court’s determination that the
failure to include a facilitation instruction was a harmless error. It stated that the conviction
for conspiracy was supported by overwhelming evidence. Next, the post-conviction court
rejected the claim that trial counsel was ineffective based on her failure to investigate the
alleged prosecutorial misconduct. It first considered the allegation that the prosecutor and
the juror communicated by hand gestures in the courtroom. The post-conviction court
credited trial counsel’s testimony that she was unaware of any hand gestures. The post-
conviction court stated that even if trial counsel was alerted to the hand gestures, there was
a “paucity of proof” regarding the prosecutor’s attempts to communicate with the juror.
Consequently, prejudice could not be shown because the trial court would have dismissed
any claim of prosecutorial misconduct. The post-conviction court then addressed the
allegation that the prosecutor and the juror had a conversation in the passageway behind the
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jury box. It credited trial counsel’s testimony that she was not informed of this conversation;
therefore, trial counsel had no obligation to raise the issue with the trial court. The post-
conviction court concluded that the petitioner failed to prove deficient performance or
prejudice. The claim of selective prosecution was not addressed by the post-conviction court.
The petitioner appealed the decision of the post-conviction court by filing a notice of
appeal.5
ANALYSIS
I. Ineffective Assistance of Counsel. The petitioner claims he received ineffective
assistance of counsel based on two grounds. First, he argues that trial counsel failed to
request an instruction on the lesser-included offense of facilitation. The petitioner refers to
the appellate decisions on direct appeal which held that a facilitation instruction was
warranted. He contends he would have been convicted of facilitation had a proper jury
instruction been given. The petitioner also claims trial counsel’s failure to contest the jury
instruction unfairly subjected him to the demanding standard of plain error review on appeal.
Second, the petitioner argues that trial counsel was ineffective based on her failure to
investigate improper communications between the prosecutor and a juror. He contends the
evidence showed that trial counsel was alerted to these communications, but took no action
to address the issue.
In response, the State claims the record supports the denial of post-conviction relief.
It asserts that the petitioner was not prejudiced by the omitted facilitation instruction. The
State points to this court’s determination on direct appeal that any error regarding the
instruction was harmless. The State also argues that trial counsel was under no duty to raise
the alleged prosecutorial misconduct. It contends the post-conviction court “properly
[credited] the testimony of trial counsel that she was unaware of any inappropriate conduct
or any ground for a mistrial.” Upon review, the petitioner is not entitled to relief based on
ineffective assistance of counsel.
Standard of Review. 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. The Tennessee Supreme Court has held:
5
We note that the notice of appeal was untimely. The notice of appeal states that it was submitted
on December 28, 2009, which was within the thirty-day filing period. However, the stamped filing date was
from January 7, 2010, which was outside of the filing period. See T.R.A.P. 4(a). Rule 4(a) of the Tennessee
Rules of Appellate Procedure provides that “in all criminal cases the ‘notice of appeal’ document is not
jurisdictional and the filing of such document may be waived in the interest of justice.” We believe the
“interest of justice” is best served by waiving the filing requirement and addressing the merits of the
petitioner’s appeal.
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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
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 marks 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)).
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. Vaughn, 202 S.W.3d at 116 (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.
“‘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).
In viewing the record, the post-conviction court properly rejected the ineffective
assistance of counsel claim. The petitioner has not shown that he was prejudiced by trial
counsel’s failure to request a jury instruction on facilitation. In order to prove prejudice, the
petitioner needed to establish a reasonable probability that the result of his trial would have
been different if the facilitation instruction was given. Id. at 370. As noted by the post-
conviction court, this court already determined that, in light of the overwhelming evidence
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of conspiracy, the omission of the facilitation instruction was a harmless error. Roberto
Vasques, 2005 WL 2477530, at *25. We likewise conclude that the evidence in this case
strongly supported a conviction for conspiracy. The petitioner, therefore, was unable to
prove that he was prejudiced by the omitted facilitation instruction.
The petitioner’s claims regarding the two instances of prosecutorial misconduct are
also without merit. We shall first address the allegation that the prosecutor communicated
with a juror by making hand gestures in the courtroom. The post-conviction court credited
trial counsel’s testimony that she did not witness any improper communications. It ultimately
rejected the petitioner’s claim based on the scant testimony regarding the prosecutor’s alleged
misconduct. We agree that the record contains insufficient proof that trial counsel needed
to raise this issue before the trial court. Trial counsel testified that she observed the conduct
at issue and did not see anything improper. Furthermore, the petitioner and his father
provided no detail about the prosecutor’s actions, other than the general assertion that the
prosecutor made hand gestures. The petitioner’s father even acknowledged that he could not
tell whether the prosecutor made eye contact with the juror. Based on the testimony at the
post-conviction hearing, we cannot conclude that the petitioner presented clear and
convincing evidence that trial counsel needed to bring this issue to the trial court’s attention.
The second allegation of prosecutorial misconduct concerned the conversation
between the prosecutor and the juror in the passageway behind the jury box. The post-
conviction court credited trial counsel’s testimony that she was never informed of this
conversation. This testimony contradicted claims by the petitioner and his father about how
trial counsel was informed of the conversation. The post-conviction court found that trial
counsel was the more credible witness, and we will not override its decision. See Vaughn,
202 S.W.3d at 115. Because trial counsel was not informed of the conversation between the
prosecutor and the juror, she was under no duty to address the issue.
The petitioner has not shown that trial counsel’s representation was deficient or that
he suffered any resulting prejudice. Consequently, the post-conviction court properly denied
the claim of ineffective assistance of counsel. The petitioner is not entitled to relief on this
issue.
II. Selective Prosecution. The petitioner argues that the post-conviction court
abused its discretion by not allowing him to raise the issue of selective prosecution. He
claims he was prosecuted for committing the offense in a school zone based on his ethnicity.
The petitioner asserts, “Tennessee State has a history of prosecuting only minorities (i.e,
African Americans and Hispanic Americans) for violation of school zone offenses in
previous years, while not prosecuting Caucasian Americans for the same offenses.” In
response, the State argues that the petitioner was not denied the opportunity to raise this issue
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before the post-conviction court. The State also contends the petitioner’s claim is without
merit.
In viewing the record, we conclude that this issue is waived. The petitioner’s brief
does not specify where in the record the post-conviction court prohibited him from raising
the selective prosecution claim. The petitioner was obligated to make appropriate references
to the record in setting forth his argument. 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.”); see also State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000). Furthermore, our review of this issue would be improper because
it could have been raised on direct appeal. T.C.A. § 40–30–106(g).1 The petitioner is not
entitled to relief on this issue.
CONCLUSION
Based on the foregoing, the judgment of the post-conviction court is affirmed.
______________________________
CAMILLE R. McMULLEN, JUDGE
1
The petitioner claims the post-conviction proceeding was the appropriate forum because the revelations
about the wayward TBI agent did not surface until after the direct appeal was filed. The prosecution of a
single individual would not form the basis of a selective prosecution claim. Therefore, we must disagree with
the petitioner’s assertion that he “had no way of raising or arguing this issue prior to the Post-Conviction
hearing[.]”
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