Reginald Rome v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 4, 2010

REGINALD ROME v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 03-01497 W. Mark Ward, Judge

No. W2009-02027-CCA-R3-PC - Filed January 12, 2011

A Shelby County jury convicted the petitioner of one count of first degree murder and five

counts of attempted first degree murder, Class A felonies. He received an effective sentence

of life without parole plus 100 years in the Tennessee Department of Correction. A panel

of this court affirmed the trial court’s judgments. The petitioner filed a petition for post-

conviction relief, which the post-conviction court heard and denied. On appeal, the petitioner

alleges that he received ineffective assistance of counsel when counsel’s failure to include

an issue in the motion for new trial resulted in waiver of that issue for purposes of appellate

review. Following our review, we affirm the denial of post-conviction relief.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY

T HOMAS, J R., JJ., joined.

Neil Umsted, Memphis, Tennessee, for the appellant, Reginald Rome.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; and William L. Gibbons, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Background

Trial

On direct appeal, a panel of this court summarized the underlying facts of this case

as follows:

Jessica Selby testified that she was married to Greg Selby, the deceased

victim, who was a Shelby County Deputy Sheriff. She said the victim worked

the shift from 3:00 p.m. until 11:00 p.m. in December 2002. She recalled that

on the day of his death, the victim babysat one of their two children while she

was at work and prepared dinner for the family before he left for work.

Detective William Speight testified that he was employed by the Shelby

County Sheriff’s Office and was assigned to the narcotics division on

December 4, 2002. He was part of the team of officers that went to the

[petitioner]’s home that evening to execute a search warrant. He said that he

had obtained the warrant on December 3 and that a team of twelve officers met

on December 4 to plan their execution of it. He said that they went to the

[petitioner]’s house about 5:30 or 6:00 p.m. and that it was dark outside. He

and the other officers were wearing “raid gear,” which included a ballistics

vest, a helmet with goggles, and a holster for their guns. He said the gear and

their clothing contained markings identifying them as law enforcement

officers. The victim was on the entry team meaning he would be the first

officer inside the residence.

Detective Speight testified that he did not hear evidence of people

inside the house when he first approached it but that there was a porch light on

and a light in the living room. He said after the officers had positioned

themselves at the [petitioner]’s house, he banged on an iron door at the front

entry twice with a heavy metal pick and announced, “Sheriff’s office, search

warrant.” He repeated this procedure a second time. He said he allowed more

than enough time for someone to answer the door and that when no one did,

he checked the door and found it locked. He and Detective Jones used a pick

and ram to pry open the iron door, and Detective Jones forcefully rammed the

wooden door and cracked it open four to six inches after one blow. He said he

heard a gunshot come from the house, which struck the victim, who was on his

way up the porch. He said the victim fell off the porch. He said he ran down

the porch and positioned himself behind a window unit air conditioner beside

the door and returned fire into the house through a window. He said that he

shot into the house in the direction where he thought the shooter was. He said

that he knocked the glass out of the window in order to see inside the house

and that he could see a person lying on the living room floor. He said that this

person was Calvin Williams, who was unarmed. He said that the shots from

inside the house stopped but that he heard a detective who was not at the front

door firing a shotgun. He said Detective Chambers sent a police dog inside to

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get Williams out. He said that they learned from Williams that someone else

was inside the house and that the police dog went back inside the house and

retrieved the [petitioner]. He said that after the [petitioner] told them no one

else was inside the house, he and his partner, Detective Feathers, entered and

found a silver revolver in the hallway.

On cross-examination, Detective Speight admitted that he had not

received any formal training about executing search warrants when he joined

the narcotics division in October 1998. He said he had learned on the job that

the law required a “knock and announce” procedure before entering a home.

He said he had never been given any formal instruction regarding a specific

length of time after knocking and announcing before forcibly entering a home.

He said the narcotics team did not attempt to surprise people, but he admitted

they used a large number of people to protect the evidence they were

attempting to seize and to ensure the safety of the officers. He denied having

seen the doorknob missing on the wooden door, any damage to the door, or

that the door frame was missing. He acknowledged a “barrage of bullets” and

having heard the shotguns being fired but said he did not know how many

shots the officers fired at the [petitioner]’s house.

Detective Speight testified that there was not a specific period of time

to wait before entering a house after the knock and announce procedure. He

said the time varied according to how long it would take an occupant to get to

the door based upon the size of the house and any information known about

specific dangers that existed at that residence. He said that he had information

about the [petitioner] having been in possession of a sawed-off shotgun in the

past and that this information played into the decision of how long to wait

before attempting to enter the [petitioner]’s house. He said they waited long

enough for a person to get from the back of the [petitioner]’s house to the

door.

Lieutenant Alvin Moore of the Shelby County Sheriff’s Department

testified that he was involved in the investigation of the [petitioner]. He said

he requested a trace through the federal Alcohol, Tobacco, and Firearms

database of a Colt King Cobra .357. He learned through the database

information that the weapon had been purchased by Willie Collins. He spoke

with Mr. Collins, who was registered in the database as being a California

resident, but who had moved to Shelby County.

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Calvin Williams testified that he was living temporarily with his

brother-in-law, the [petitioner], in December 2002. He said that on December

4 at about 5:30 or 6:00 p.m., he was lying on the living room couch drinking

a beer about to go to sleep, having just eaten dinner. He said it was not dark

yet. He said that a couple of minutes before the police came, a person named

Roderick had come by. He said that the [petitioner] had answered the door for

Roderick and that he had been cooking dinner at the time. He described the

home as a four-bedroom house. He said the [petitioner] used the master

bedroom, which was in the back corner. He said that after dinner while he was

on the couch, the [petitioner] was in his bedroom. He said that the living room

television was turned on and that he thought the [petitioner]’s bedroom

television was turned on, as well.

Mr. Williams testified that he heard some noise and thought that

Roderick had returned and was “playing on the door.” He said he heard the

door coming open, a “boom,” and hollering “Police, sheriff, put your hands up,

don’t move.” He also heard them say, “Search warrant.” He said, “I didn’t

know what he was talking about because the house had just been previously

burglarized.” He said he was scared because he did not know whether the

person who committed a burglary the day before had returned. He also said he

was not paying attention to what they were saying because he was trying to see

what they were pointing at him. He said that he lay on the floor and saw the

[petitioner] come down the hall with his gun. He said he could see that the

people outside were police officers and could see a gun pointed at him. He

yelled at the [petitioner] that the police were there and not to shoot because

they were aiming a gun at him. He said the [petitioner] reached around a

corner and shot. He said the first shots were fired from the hallway inside the

house and then shots came from outside, “[a]ll over the house.”

Mr. Williams testified that he did not open the door before the shooting

started because it was already opening. He could not say whether there was

banging on the metal door before that because he was not paying attention and

was “nodding out.” He later said he heard a loud noise that he could not

identify but that it was not a knock. He said that it was chaotic and that he

could see the police entering the house.

Mr. Williams testified that he and the [petitioner] had been away from

home the previous day and that when they returned, the front door had been

kicked in, the house ransacked, and household items stolen. He said there was

an iron door with a glass insert and a wooden door at the front entrance. He

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described the iron and wood doors as “cracked open” and the wood door as

“kicked off the hinges almost.” He said the items taken included televisions,

vacuum cleaners, and VCRs. He said they called the police that morning to

report the burglary. He admitted that he had told the police that there was also

some marijuana stolen from the house and that the [petitioner] had been selling

marijuana after being laid off from a welding job. He said that after the

December 3 break-in, they locked the storm door and put a latch on the wood

until the doorknob could be fixed.

Mr. Williams testified that he did not know whether there was

marijuana or cocaine in the house on December 4. He said he knew there was

a glass cooking tube that was used for cocaine in a storage area.

Willie Collins testified that he had lived in Bartlett for about twelve

years and had lived in California before that. He said he owned a .357

Magnum Colt King Cobra which he discovered missing in December 2002

when he searched for it after receiving a call from the police. He said he later

learned that his son, Brandon Collins, had taken the gun.

Brandon Collins testified that he had taken a gun from his father’s

house in the summer of 2002. He said he took it to his mother’s house, which

was three streets away from the [petitioner]’s street. He said that he did not tell

either of his parents that he had taken the gun and that he gave it to Jonathan

Upchurch.

Jonathan Upchurch testified that he lived one street from the

[petitioner]’s street in 2002. He said his friend Brandon Collins gave him a

gun, which he sold to “a guy named Rome.” He identified the gun as one of

the courtroom exhibits and the purchaser as the [petitioner]. He said he did not

know the [petitioner] before selling him the gun and had heard through his

uncle that the [petitioner] was looking for a gun. He said that he and his uncle

went to the [petitioner]’s house and that he sold the [petitioner] the gun for

eighty dollars. He said the sale was about five months before the crime on trial

took place.

Phil Drewery testified that he was a retired Shelby County Sheriff’s

Department lieutenant. He said that he was a detective in December 2002 and

that he investigated the crime scene. He said he made drawings and

photographs of the scene and collected evidence. He said that two separate

investigations were made of the scene relative to the homicide and narcotics

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and that his involvement was with the homicide investigation. He said that

there were numerous bullet holes throughout the house and that he determined

that the holes corresponded with fifteen forty-caliber bullets and three rounds

of double aught buckshot having been fired. He said a revolver was on the

hallway floor. He said that ammunition was in the closet of the master

bedroom, including a box of CCI .357 Magnum live rounds with seven rounds

missing and a box of Blazer CCI .357 Magnum live rounds with twenty-four

rounds missing. He said that in one of the bedrooms, there was a trail of blood

droplets leading into the bedroom, to the window, and back to the hallway. He

said there were holes and blood stains on the curtains in this bedroom. He said

the window in that room faced the front yard. He said there was evidence of

a shotgun round having been fired in through this window. He said that bullet

holes in the front door indicated that a projectile had gone through the door

and into and out of a wall onto the porch area while the door was “wide open”

and that another one had been fired while the door was closed. He said that at

least three rounds were fired from inside the home through the front door. He

described the scene as a video of it was played for the jury. He said that from

the outside of the house, he recovered eleven Winchester forty caliber spent

shell casings and three spent and one live Winchester twelve gauge double

aught shotgun shells. He said this ammunition was consistent with that used

by the Sheriff’s Department. He said that due to the height of the grass, the

condition of the ground, and the traffic of officers and emergency personnel

in the yard, it was possible that not all the ammunition was recovered from the

yard. He said he was able to account for about twenty-one rounds fired on the

scene. He said there were some shell casings on the front porch but that most

of them were down the driveway from the porch to the street. He was not able

to determine whether shots had been fired out the front window, but he did

determine that shots were fired in through the window. He used a diagram to

describe specific locations where the ammunition and other evidence was

recovered outside the house. He said that the photographs of the iron door

showed damage to a deadbolt lock and a missing doorknob on the outside with

the doorknob intact on the inside. He said the locking mechanism was missing

from the wood door. He said that based upon the position of the doors when

he was at the scene, the doors must have been open at some point during the

shooting based upon the positioning of bullet holes in the wood door and the

fact that the glass was intact in the iron door. He said the door had been forced

open at some point before his inspection of the scene because there was

damage to the door frame and wall. He said he did not see any marks on the

wood door that were consistent with having been struck with a ram.

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Officer Samuel Jones of the Shelby County Sheriff’s Department

testified that he was assigned to the narcotics division in December 2002. He

said he was the “ram man” on the search warrant team that went to the

[petitioner]’s house. He was wearing apparel with Sheriff’s Department

markings as well as body armor, under armor, raid vest, helmet, and goggles.

He said that he went to the front of the house with Detectives Speight and

Selby and that Speight “knocked and announced” by hitting the iron door with

the pick and that he “announced,” as well. He said Speight was “beating on the

door” loudly and that other officers were yelling, “Sheriff’s office-sheriff’s

office.” He said that after a “reasonable amount of time,” Speight stuck a pick

into the seam of the iron door and that he hit the pick twice with the ram. He

said they were able to open that door. He said that he hit the wood door with

the ram and that it opened about half way. He did not see a chain on the door.

He identified a place on the doorknob where he had struck the wooden door

with the ram. He said he stepped aside for Detective Selby, who was holding

a shotgun, to go inside. He heard a gunshot and saw Selby start to fall back. He

said the door opened and the gunshot was “[m]aybe a second” or “a couple of

seconds” later. He said that he shot inside the house and that he could see a

chrome pistol but not the person holding it inside the house. He heard someone

say, “Get George-Get George,” referring to Selby. He said he fell off the porch

as he tried to drag Selby to safety.

Officer Jones testified that it was dark when they arrived at the

[petitioner]’s house. He said there was a car in the driveway. He did not recall

whether lights were illuminated. He said the narcotics division’s policy was

that once forced entry was begun, they would continue even if they heard

someone coming to the door.

Brad Taylor testified that he was a nurse on duty at Regional Medical

Center of Memphis when the victim arrived on December 4, 2002. He said that

in the course of treatment, which included removing clothing, he found a bullet

in between the victim’s skin and his vest, which was placed in a cup and

labeled with the victim’s identifying information and given to the liaison

officer, Norman Benjamin.

Officer Norman Benjamin of the Memphis Police Department testified

that he was assigned to Regional Medical Center on December 4, 2002. He

said that he went to the emergency room when he heard an injured officer was

being transported and that he stood outside the treatment room door to prevent

other officers from going inside. He said Nurse Taylor gave him a bullet in a

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clear container that had been collected as evidence. He gave the evidence to

Detectives Roberts and Galloway, who were arriving as he received it from

Nurse Taylor.

Detective B.G. Roberts of the Shelby County Sheriff’s Department

testified that he and Detective Denford Galloway went to the hospital on

December 4, 2002, to investigate the homicide of Detective Selby. He said that

they received the bullet and Selby’s clothing and that Detective Galloway

initialed the cup which held the bullet. He identified the cup and bullet in

evidence as the same ones he received that night. He said he brought the

evidence to his office and turned it over to Sergeant White.

Roger Carpenter testified that he was a former reserve officer of the

Shelby County Sheriff’s Department and was on the narcotics team on

December 4, 2002, when they went to the [petitioner]’s house to execute a

search warrant. He was assigned to watch the carport door to make sure no one

used it to escape from the house. He said he was making his way to the carport

when he encountered a dog. He heard deputies yelling “Sheriff’s Department

Narcotics-Sheriff’s Department Narcotics,” and he heard banging on a door.

He heard three gunshots and someone saying, “Purple down,” which referred

to an officer being shot. He heard people shouting to get Detective Selby to

safety and saw officers shooting into the front door. He heard someone say,

“Shoot the window out,” but could not see a target inside the window. He said

a loud gunshot went off behind him and the window broke. He returned to the

carport to stay out of the line of fire. After the gunfire stopped, he went inside

and “cleared” the house.

Mr. Carpenter testified that he received instruction at the training

academy on “how to clear and search a house.” He said this information was

not specific to search warrant execution. He said the operations plan in the

present case included getting all the officers into place secretively before

alerting any occupants of the house to their presence. He said they parked

down the street and attempted to get into position, although he was not sure

they had been successful in executing the plan. He said the only officer he

specifically recalled having seen shooting was Detective Feathers, whom he

said was shooting a shotgun at the window while standing in front of the door.

Officer Chauncy Walton of the Shelby County Sheriff’s Department

testified that he was presently employed by the department and had been a

reserve officer with the narcotics unit in December 2002. He participated in

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the search warrant briefing and execution at the [petitioner]’s house. He was

assigned to cover the carport door and back of the house along with Roger

Carpenter and George Stauffer. He wore his raid vest with departmental

insignia on it. He said there were twelve officers, a police dog, and four police

vehicles on the scene to execute the warrant. He was making his way to his

assigned position when a Rottweiler dog who was not restrained and was

barking at the officers came out of the carport. He said that he focused on the

dog and that as he got closer to Officers Carpenter and Stauffer, the dog turned

and ran to the back of the house. He said he was still in the driveway and heard

the “knocking and announcing” and “a loud boom.” He said that he first heard

knocking and announcing as he was closing the doors to the van and that he

heard the boom around the time the dog was running away. He said the amount

of time that elapsed was adequate for someone to answer the door given the

size of the house. He said he heard someone say, “He’s got a gun. Get some

cover,” and he heard officers returning fire. He said that he checked the back

of the house and determined that there was no way for someone to escape and

then took cover in the carport. He said that he heard more gunfire but that he

did not shoot his weapon. He said they sent the police dog inside the house to

retrieve the occupants. He attempted to call for help for Detective Selby but

had poor radio reception.

Officer Walton testified that he had received academy training

regarding building searches. He said he had received on-the-job training that

was specific to execution of search warrants.

Officer George Stauffer of the Shelby County Sheriff’s Department

testified that he participated in executing the search warrant at the

[petitioner]’s house on December 4, 2002. He had been assigned to open and

close the side doors of the police van and to watch the carport door in the

operations briefing, and he had been told the [petitioner] had a gun conviction.

He said that it was dark outside when they arrived but that the street lights

were illuminated. He said lights were also on inside the house. He said he

could hear officers banging on the iron door and announcing, “Sheriff’s

Narcotics,” repeatedly as he closed the van doors. He started toward the

carport but stopped when a barking and growling Rottweiler came toward him.

He said that he may have yelled at the dog and that the dog ran away. He went

to the far corner of the porch by the carport and heard one of the officers say,

“Let’s do this.” He said the other officers on the porch used the ram and pick

to open the iron door. He heard a boom, which he identified as the ram hitting

the wood door. He heard another boom “seconds later” and saw Officer Selby

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fall backwards. He said, “[a] lot of shots started.” He ran around the house to

make sure no one was coming out the back windows and then returned to the

front.

Officer Stauffer testified that he had known the victim since high school

and that he brought him blankets from the [petitioner]’s house after it was

cleared. He said the victim said that he could not feel his legs, that he was

cold, and that he was going to die. He said the victim asked what he was going

to do about his girls. He rode to the hospital in an ambulance with the victim.

He said the emergency personnel opened the victim’s vest in order to cut off

his shirt to attach medical equipment.

Officer Stauffer testified that he could not say exactly how much time

elapsed from the time he first heard the other officers knocking and

announcing and when they used the pick and ram, but he said, “[I]t seemed

like forever.” He said he had time to leave the van door, go across the yard,

deal with the dog, warn the others about the dog, check the carport, and come

out of the carport and get into position.

Officer Stauffer testified that he received hands-on training when first

assigned to the narcotics division in 1997 by being paired with an experienced

officer. He said they sometimes practiced by staging mock search warrant

executions at abandoned houses. He said it was not atypical for the knock and

announce to begin before all officers were in position.

Captain Phillip Barnett of the Shelby County Sheriff’s Department

testified that he was on the narcotics team on December 4, 2002, and

participated in executing the search warrant at the [petitioner]’s house. He was

in charge of the evening shift that night. He said Detective Speight, as the case

officer, prepared an operations plan which was approved by Sergeant Nelson.

Captain Barnett was on the scene to supervise the officers. He wore marked

clothing and a bullet-proof vest under his clothing but not the outer vest worn

by the other officers. He said they parked out of view, which was important for

officer safety. He said that according to the operations plan, the victim was

designated as the first person who would go inside the house. He saw the

officers go straight to the house from the van and get into position. From his

position on the street, he heard Speight knocking and saying, “Sheriff’s Office

Narcotics.” He said the officers waited long enough for someone inside the

house to answer the door. He heard the sounds of the officers forcing the door

open and a shot. He turned and saw Detective Selby fall back from where he

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was standing on the front porch. He ran to assist Selby as other officers

returned fire. He said that as he was trying to pull Selby to safety, he fell in

front of the front window. He said that when he first reached to grab Selby, he

heard gunfire and thought he “felt the pressure of the bullet, and heard the

sound coming right past my head” from the window area. He heard someone

say the shooter was in the window. Officer Hubbard came and helped him

move Selby to the west side of the yard. Sergeant Nelson came to help with

Selby. Captain Barnett said that he told Nelson to remove Selby’s vest to see

the location of the entry wound and that he went back to the corner of the

house. He could see a person lying on the living room floor inside the house.

They decided to send the police dog inside. The dog brought the person out

and then returned to the house and brought out the [petitioner]. He said that

after the police dog was taken from the scene by an officer, he approached the

[petitioner], who said he had been shot.

Captain Barnett testified that when the dog brought the [petitioner] out

of the house, Officer Chambers got the dog promptly. He denied that the

[petitioner] and Calvin Williams were taken out of the police cars later in order

for the dog to attack them. He said that if this had been attempted, he would

have stopped it.

Captain Barnett testified that the amount of time before beginning

forced entry varied in search warrant execution and that the officers waited a

reasonable time based upon the circumstances of the case. He said that ideally,

someone would answer the door and allow them to come inside. He said,

however, that factors which might affect the amount of wait time included the

size of the house and whether they have information that weapons are

involved. He said that the situation is safer for the officers and citizens if

forced entry were not used. He said there would be a danger in waiting too

long to force entry because someone inside the home may destroy evidence or

get a weapon.

Robert Rivera testified that he was a reserve officer with the Shelby

County Sheriff’s Department on December 4, 2002, and that he was part of the

entry team executing the search warrant at the [petitioner]’s house. He said that

when the entry team reached the front porch, Detective Speight knocked loudly

on the door with the pick. He said Detectives Speight and Jones announced

“Sheriff’s Department” repeatedly. He said there were several knocks and

numerous announcements. When they received no response, the pick was used

to open the iron door, followed by the ram being used to open the wood door.

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He said that right after Detective Jones opened the wood door with the ram,

shots were fired from inside the house. He said Detective Selby was hit by the

first bullet and “went backwards.” He said he saw someone with a gun behind

a wall and returned fire. He did not recall whether the person had a shotgun or

a handgun. He identified the [petitioner] as the person with the gun. He said

that as other officers removed Selby from the porch, he covered for them to try

to keep them from being shot.

Mr. Rivera testified that he did not recall how many times the door was

rammed before it opened. He said that typically, the officer with the ram tried

to hit the doorknob with the ram. He said the door was wide open after the ram

was used but he did not see anyone lying on the floor. He denied any

knowledge of the police dog being allowed to attack the [petitioner] and

Calvin Williams while they were handcuffed.

Lieutenant Richard Nelson of the Shelby County Sheriff’s Department

narcotics division testified that on December 4, 2002, he was the sergeant

assigned to review the operations plan for the execution of the search warrant

at the [petitioner]’s house. He went to the scene and stood to the side with

Lieutenant Barnett. He was assigned to secure the rear of the house. He said

he did not recall hearing the knock at the door, which he said he would not

have been able to hear from where he was, but he said he did hear “Sheriff’s

Department Narcotics-Sheriff’s Department Narcotics.” He said there was a

shot and “a short body of gunfire.” He said he was familiar with the sound of

the officers’ weapons and recognized the sound of the first shot as being

different from that made by weapons issued by the Sheriff’s Department. He

ran to the back corner of the house to make sure no one was escaping from

inside then went to attend the victim. He said the victim was complaining of

difficulty breathing. He had another officer retrieve a first aid kit. He said he

cut the victim’s shirt open and found a bullet hole under the victim’s right

nipple. He plugged the hole with a bandage and monitored the victim’s pulse.

He said the victim asked to see his children and asked Lieutenant Nelson to

keep him alive.

Detective Dirk Beasley of the Shelby County Sheriff’s Department

testified that on December 4, 2002, he was on the first shift search warrant

team of the narcotics division and was called to work during the evening shift.

He responded to the [petitioner]’s house and was assigned to do the narcotics

investigation after the homicide investigation was completed. He was sent

home until the homicide investigation was completed and returned the

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following day to conduct the narcotics investigation. At that point, he executed

the search warrant inside the house. He said that in the living area of the house,

the search team found identification and paperwork belonging to the

[petitioner], four sets of hand scales of the type commonly used by marijuana

dealers, a gallon bag with residue inside that smelled like marijuana, a bowl

containing marijuana “roaches,” a razor blade with residue which field tested

positive to be cocaine, a pack of 1.5 rolling papers, and a prescription bottle

bearing the [petitioner]’s name and containing a plastic bag with what

appeared to be a drug cutting agent inside. He said they recovered from a car

in the driveway that was registered to the [petitioner]’s wife a small set of

scales, a razor blade, a set of digital scales, and white powder that field tested

positive to be cocaine. He said that from a storage area, they recovered two

glass crack cooking tubes containing residue that field tested positive to be

cocaine, two bottles of substances commonly used to “cut” cocaine, paper that

was cut and folded in a manner commonly used to hold drugs in powder form,

and a box for digital scales which was of the same brand of scales as those

found in the car. In the attic of the house, they found an empty, operating

refrigerator. He said it was not unusual for drugs to be kept inside a

refrigerator to keep out rodents. He said it was unusual that this refrigerator

was plugged in and running because the attic was not a walk-up type attic and

required a person to push aside a board and stand on a chair to get into the

attic.

Diana Parmenter of the Tennessee Bureau of Investigation testified as

an expert witness in forensic chemistry. She tested the items submitted from

the search warrant. She said that the powder inside the prescription bottle did

not contain any controlled substances but that one of the glass tubes contained

cocaine and the substance from the plastic bag was marijuana. She did not test

the residue in the second glass tube.

Sergeant Brock Owens of the Memphis Police Department testified that

he was assigned to uniform patrol on December 3, 2002, and that he responded

to a call at the [petitioner]’s house around 8:00 or 8:30 a.m. He said that the

[petitioner] and a friend were present and that the [petitioner] filed a burglary

complaint and reported two RCA Zenith televisions and a Sony camcorder as

missing. He said he saw no sign of forced entry into the house. He said that he

went to the front door when he arrived and that he did not see any damage,

although he later conceded he could not be sure the wood door’s lock was

intact. He said the molding around the door was intact. He said that when he

knocked on the door he waited an “average amount of time” and that someone

-13-

answered the door. He said the house had not been ransacked, although it was

typical that a house would be ransacked in a burglary. He said he walked

through the house and went into the bedroom from which the items had been

taken. He said he thought he saw a television in the living room but was not

positive. He said he did not see any evidence which warranted having the

crime scene unit process the scene. He said that he saw some items in the

house that he would not have expected to see after a burglary and that he was

suspicious whether a burglary had occurred based upon those items and the

condition of the house.

Officer Darren Feathers of the Shelby County Sheriff’s Department

testified that he was on the narcotics division search warrant team on

December 4, 2002, and was involved in executing the search warrant at the

[petitioner]’s house. He attended the briefing conducted by Detective Speight

and was assigned to be a “shotgun man,” as was Detective Selby. He said

Selby was to be the first officer in the house and he was to be the second. He

said he was wearing his raid gear that night. He said that the goal in beginning

the execution process was to enter the scene without alerting anyone of the

police presence and then letting them know the police were there when the

police were ready. He said that Detective Speight knocked on the door and

announced, “Sheriff’s Office, Narcotics,” and that Speight repeated this

process a second time. He said they waited a “reasonable” amount of time, that

being enough time for someone within the house to come to the door, and then

Speight placed the pick in the door and Detective Jones hit it. He said that

while Speight and Jones were opening the door, the announcing continued. He

said that Jones hit the doorknob of the wood door with the ram and that as the

door opened, a gunshot came from inside the house and Selby fell to the

ground. He said he shot into the house to give the other officers cover to move

the victim. He felt his arm go back but looked and did not see blood or his shirt

torn and reloaded his shotgun. He said he was later treated for a grazing

wound. He said Lieutenant Barnett and Detective Hubbard moved the victim

to the side of the house. He said that as Barnett, Hubbard, and the victim

reached a front window, Hubbard looked at him and at the window and that

Feathers shot through the window because he thought there was a threat inside.

He said there was another window beyond that window at which he did not

shoot because he did not believe there was a threat. He said the police dog

removed the [petitioner] and another person from the house.

Detective Feathers testified that he did not see any damage to the wood

door before Jones struck it with the ram. He said he did not know whether the

-14-

door’s lock was in place before it was forced open. He said that just before

Selby was shot, Selby was standing at the door with a shotgun on his shoulder

pointed at the door.

Sergeant Reginald Hubbard of the Shelby County Sheriff’s Department

testified that he was a detective in the narcotics division in December 2002 and

participated in the search warrant execution at the [petitioner]’s house. He said

he was the van driver and was on the entry team. He said he was supposed to

get in line with other officers on the entry team after securing the van. He was

going across the yard when he heard the knock and announce process. He said

he heard knocking three or four times. He said when he came across the yard,

he saw one of the officers holding the iron door and saw Jones ramming the

wood door. He said that as Jones hit the door, a shot hit Selby, who fell back.

He went to aid the victim and drew his weapon and fired into the house in the

direction of gunshots he heard inside. He said that the door was open wide and

that he did not see anyone lying on the living room floor. He helped pull the

victim to the side of the house. He said that as he reached a window, he could

see the curtains moving. He fired at the window and yelled, “Cover the

window.”

Sergeant Hubbard testified that the victim asked him for help and

indicated his chest was hurting. He retrieved a first aid kit from Sergeant

Nelson’s car and called for help on his radio.

Officer Scott Chambers of the Shelby County Sheriff’s Department

testified that he was assigned to the dog squad and had a dog named Rex who

did both apprehension and narcotics duties. He said the dog scratched and

barked when he detected drugs and did “bite work,” such as apprehending a

subject from a house. He said Rex responded to his verbal commands but not

the commands of others. He and Rex were at the [petitioner]’s house the night

the search warrant was executed. He stood in the yard and watched the entry

team. He saw them line up. He said they began saying, “Search Warrant,

Sheriff’s Office” before they reached the house and then approached the door,

knocked, and announced. He heard someone say, “Pick.” He saw light coming

from between the wood door and the house, shots come out the front door, and

Detective Selby fall. He said he squatted down and told Selby to stay down. He

said Selby asked him to come help but that he could not. He said that another

officer reached Selby and attempted to move away and that he moved toward

the door to try to help suppress the gunfire coming at the officers. He said

someone shot out a window, sending glass in his direction. He said someone

-15-

was shooting from inside the house because the glass and curtains or blinds

flew outside. He yelled for someone to shoot at the window. He said that he

saw Sergeant Barnett making unsuccessful attempts to call for help on two

radios and that he went to his truck, called for help on his radio, and returned

to the front door with Rex.

Officer Chambers testified that before he had gone to his truck, the

officers were yelling for the occupants of the house to come outside and were

identifying themselves as the Sheriff’s office. He said that when he returned

with Rex, the officers were still trying to get the occupants to come outside and

that he gave Rex a command, “Stella,” which meant to go inside and find the

threat. He said Rex could physically drag a person across a room. He heard

someone screaming and called for Rex to come out. Rex returned with a

person. He said he “[i]mmediately took the dog off” and sent him back inside.

He heard a commotion, screaming, and bumping from inside the house. He

yelled for the person to come outside, and the person said for him to get the

dog off him. He said that the person would not come out on his own and that

he called for Rex to come out. He said that Rex brought the [petitioner] out

and that he separated the dog from the [petitioner] immediately. He sent Rex

inside the house a third time, but Rex did not find anyone else. He said that he

put Rex into his truck and that the officers checked the house to make sure

there was no one else inside. He said he did not get Rex out of the truck again.

Officer Chambers testified that Rex would bite a person to get hold of

him and would drag the person out of the house. He said Rex was trained to

hold on to the person until he gave the dog the command to release the person.

He said, however, that Rex would not continuously bite and attack a person

while removing him from a house. He denied having ordered Rex to attack the

[petitioner] after the [petitioner] was outside.

Rachel Copeland testified that she was a nurse practitioner and that she

obtained a blood sample from the [petitioner]. She took the sample to the

Tennessee Bureau of Investigation.

Sergeant Scott Wright of the Shelby County Sheriff’s Department

testified that he was assigned to the detective division in December 2002. He

received a call around 6:30 p.m. about an officer having been shot at the

[petitioner]’s house. He went to the scene and learned that Selby and the two

occupants of the house had been taken to the hospital for treatment. While still

on the scene, he learned that Selby had died. He was the case officer for the

-16-

homicide investigation, meaning he directed other officers in performing the

various investigative tasks. He said that they recovered a gun containing six

empty shell casings in the hallway of the [petitioner]’s house and that there

were blood droplets on the floor of a bedroom. He learned that one of the

officers had gone into the home and taken some blankets and sheets for Selby

before the investigation took place. He learned that the [petitioner] had

received medical treatment for a gunshot wound to the left hand and dog bites.

He said that he received information that the bullet was still in the

[petitioner]’s hand and sent word to the jail that if the [petitioner] had the

bullet removed, he would like to receive it, and that he did not ever receive it.

Sergeant Wright testified that Calvin Williams was interviewed but was

not charged in connection with the events of December 4. He said that he took

two statements from Williams on December 6 and that Williams did not have

any serious injuries, although he had some marks from dog bites.

Colonious Davis testified that he was the medical records manager with

Regional Medical Center. He identified the medical records for the

[petitioner]’s December 4 treatment.

Chad Johnson of the Tennessee Bureau of Investigation testified as an

expert witness in DNA. He examined curtains that were submitted for testing

and determined that some of them had human blood on them. He later

compared a blood standard identified as coming from the [petitioner] with the

substance on curtains that were submitted and obtained a “100 percent match.”

He said that statistically, the odds that the blood on the curtains came from

someone other than the [petitioner] exceeded the earth’s population.

Don Carmen of the Tennessee Bureau of Investigation testified as an

expert witness in forensic firearms identification. He examined the Colt King

Cobra .357 magnum revolver that was recovered from the [petitioner]’s house

and the bullet that was recovered at the hospital from the victim’s clothing and

determined that the bullet had been fired from the gun. He also determined that

the shell casings recovered from the gun were of the same type, manufacturer,

and caliber as unfired cartridges recovered from the master bedroom closet at

the [petitioner]’s house. He examined the curtains submitted and determined

that there was gunshot residue on them. He said that a particular grouping of

holes was indicative of a shotgun blast. He said he was not able to determine

in which direction ammunition had traveled through the curtains.

-17-

Cerdinia Braswell of the Tennessee Bureau of Investigation and

formerly of the Shelby County Medical Examiner’s office testified as an expert

witness in blood spatter analysis. In her previous employment with the medical

examiner, she examined evidence at the [petitioner]’s house. She examined

blood spatters in a bedroom, blood drips in the hallway, and blood drops on the

curtains in a second bedroom. She said the blood on the bottom of the curtains

indicated that blood had fallen from above onto the curtains. She said that it

appeared someone had stood in contact with the curtains for some time with

the blood dripping down and that the pattern was consistent with someone

being shot in the left hand, coming into contact with the curtain, and dripping

blood from the wound onto the curtain. She said the blood spatter evidence

was consistent with impact from a gunshot wound. She said there was

evidence in the hall of a castoff pattern, which was consistent with someone

bleeding and moving down the hall. She said there was also evidence of a

transfer pattern on a doorknob, indicating that something covered with blood

had touched the doorknob, and consistent with the pattern a bloody hand

would make. She said there was a blood trail down the hallway, to the

bedroom window, and back out of the room.

Doctor O’Brian Cleary Smith testified as an expert witness in forensic

pathology. As part of his duties as medical examiner, he examined the scene

with two additional members of his staff. He also performed the autopsy of the

victim and examined the victim’s clothing. He said the victim died of a

gunshot wound to the chest. He said the fatal bullet struck the front of the

victim’s armpit area, grazed his upper arm, went between the third and fourth

ribs, severed the artery and the vein underneath the third rib, entered the right

lung, caused extensive bruising of the heart, entered the spine at the sixth

vertebra fragmenting bone and crushing the spinal cord, and exited the body.

He said the victim had external abrasions where the bullet had bounced off the

body armor and hit the skin. He said the findings relative to the victim’s

clothing, including the body armor, correlated with the autopsy findings. He

said that based upon the appearance of the entrance wound, it was his opinion

that the bullet may have passed through an intermediate target before striking

the victim.

Linda Simmons testified for the [petitioner] that she lived next door to

the [petitioner] in December 2002. She recalled that on the date in question,

she was standing at her front door and saw two or three unmarked trucks come

to the area at around 6:00 p.m. and that three men in dark clothes got out of the

trucks and went around the house. She said she did not know whether the men

-18-

were police officers. She said she walked to a bedroom after closing her front

door and that she heard a screech that sounded like someone was trying to

open the [petitioner]’s metal door. She said she heard a shot and then more

shooting. She denied having heard the men say anything before the screech

and the shooting began. She said that she thought it was a driveby shooting,

that she took cover with her family, and that she told her daughter to call 9-1-1.

She said that about three or four minutes after the gunfire, she looked out a

window and saw an officer bringing “Calvin” out of the [petitioner]’s house.

She said that she saw someone taking photographs or filming outside that night

and that a day or two later, a police officer came to her house and asked if she

knew who had been taking photographs or video. She said the police went

around the neighborhood asking what anyone had seen.

Ms. Simmons testified that she suspected Calvin had stolen her dog.

She also said she was suspicious that Calvin had arranged the burglary of the

[petitioner]’s house on December 3, 2002.

Robert Johnson testified that he was a friend of the [petitioner] and had

been a co-worker of his at Diamond Steel. He said the [petitioner] was a

welder and had been laid off shortly before the crime. He said they were

frequently laid off by their employer. He visited the [petitioner]’s home the

evening before the crime and had seen that the front door had been “broken

into.” He said both the iron door and the wood door had been damaged and

that the locks would not engage. He said they were not secure. He said a

portion of the door knob of the wood door had been ripped off the handle and

was no longer present. He said the [petitioner] was going to work on getting

the iron door fixed or replaced the next day.

Jonathan Bozart testified that he lived on the [petitioner]’s street and

that he had been at home on December 4, 2002. He said he saw a white SUV

pull up and four or six men dressed in black get out and go to the [petitioner]’s

house. He denied seeing any writing on the back of their vests. He said he was

in the carport. He said that the men had “semi weapons,” which he said were

long guns rather than handguns. He saw them go to the [petitioner]’s door and

thought they were going to break into the house. He said that he saw them get

past the iron door and that he could see light through a crack in the wood door

but that shots were fired before they got in through the wood door. He said

there was a shot fired from inside the house and then more shots, with a total

of fifteen to thirty shots. He saw one of the men on the front porch fall and

some of the other men drag the fallen person away. He said he heard

-19-

screaming and someone yelling, “I give up,” and saw the dog bring people out

of the house individually. He said that the officer who handled the dog was

standing by the front door when the dog brought the [petitioner] out and that

the officer stomped the [petitioner] on the head a couple of times and told the

dog to “get him.” He said that the [petitioner] was later handcuffed and placed

face down in the yard and that the officers allowed the dog to attack him for

about five minutes. He said an officer came to his house and told him to go

inside. He said that the [petitioner] was put in a car and that he later saw a

Memphis Police car pull up and an officer get out, pull the [petitioner] out of

the car, and hit the [petitioner] a couple of times as other officers watched.

Mr. Bozart testified that when he saw the officer stomping the

[petitioner] as the dog brought the [petitioner] out of the house, he retrieved

a camera and took pictures, which he said did not develop properly. He said

officers came to talk to him two days later and inquired what had happened

and whether he had a camera. He said he told the officers that “the lawyer

already had the camera.” He identified “the lawyer” as one of the [petitioner]’s

attorneys.

Mr. Bozart testified that he had been alone outside for about thirty

minutes before the police arrived. He denied having seen anyone knock on the

[petitioner]’s door shortly before the police arrived. He said the men did not

start yelling that they were police officers until after the shooting started. He

acknowledged that he did not call 9-1-1 despite the fact he first thought the

men were robbers.

Darnisha Simmons testified that she lived next door to the [petitioner]

in December 2002. She said that on the night in question, she was in her room

watching television and saw a van park outside. She said it was there about ten

minutes and that she heard “creeping noises” of people walking. She looked

outside and saw “[p]eople in black spread out in the yard with guns.” She said

she assumed the people were police officers, although she could not see

writing on their vests. She said that she moved away from the window and that

she heard a shot followed by “a couple of more shots.” She went to the hallway

when she heard the first shot. She said she went to the door after the shooting

and was told by the police to get out of the doors and windows.

Jim Russell testified that he was the owner of Diamond Steel

Corporation. He said the [petitioner] had been employed full-time as a welder

from 1999 until 2002, at which time he was laid off due to economic

-20-

conditions in the industry. He said the [petitioner]’s working environment

would have been “fairly noisy.” He said the [petitioner] had participated in the

company’s 401K program.

The [petitioner] testified that he had lived in a home he owned on

Chattering Lane for eight years before the events on trial occurred. He said that

the residence had been home to himself, his wife, and his four children, but

that he and his wife were separated on December 4 and that Calvin Williams

was living at the home with him. He said that he had completed vocational

training to be a welder and a tractor-trailer truck driver and that he had been

employed for his adult life. He said that he was laid off his job as a welder at

Diamond Steel in August or September 2002 and that he received

unemployment benefits and withdrew money from his 401K account. He said

that he had an active bankruptcy petition filed in December 2002 and that he

had paid into the Chapter 13 plan. He acknowledged having used crack

cocaine and marijuana but said he stopped in 1996 and was enrolled in a

rehabilitation program for about seven months. He admitted he had used

marijuana in 2000. He said he sold crack cocaine for a short period of time in

1996 and had a drug conviction from this time period. He admitted having

“some personal weed” while living on Chattering Lane and said he probably

sold some of it to friends who were visiting, but he denied selling drugs from

the house.

The [petitioner] testified that his house had been burglarized twice, in

2000 and in 2002. He said that on December 3, 2002, the date of the second

burglary, he and Calvin Williams left the house at 5:20 or 5:30 a.m. He did not

know whether the house was locked because Williams was the last person out

of the house. He said Williams did not have a key but could have locked the

wood door by turning the handle from the inside. He said the iron door did not

have a knob on the outside but had a deadbolt for which he had the only key.

He said the iron door could be pried open or opened with a screwdriver if the

deadbolt were not engaged. He said that he and Williams returned home an

hour and a half to two hours later and that the front window and wood door

were wide open and the iron door was closed. He said the iron door looked like

it had been pried and the wood door was cracked at the doorknob. He said the

latch on the wood door was on the floor in the front room and the door frame

was “busted.” He said the damage to the doorknob area of the wood door that

was evident on the door, which was a trial exhibit, was the same as how it

appeared after that morning. He said that a television was missing from the

front room and that a television, cologne, a camcorder, watch, and a ring were

-21-

missing from the master bedroom. He said the master bedroom door had been

pried open and the bed was “totally tore up.” After calling his mother and

eliminating his brother-in-law as a suspect, he called 9-1-1. When an officer

arrived, he showed the officer the damage to the door and showed him the lock

in the living room floor. He said that they went into the kitchen and that the

officer filled out a report of the missing items but that he did not think the

officer recorded everything he told him. He said he offered to show the officer

the area in the back of the house where most of the damage had been done but

the officer declined. He said he did not repair the doors that day and locked the

iron door that evening. He said there was no reason to lock the wood door

because it would not hold.

The [petitioner] testified that he owned a .357 weapon he purchased

from a young man named John Upchurch for $100. He said he found out about

the weapon when the young man’s uncle went around asking people if they

wanted to buy a gun. He admitted knowing he was not allowed to have a gun

because of his prior drug conviction. He said that on December 4, he had .22,

.38, .380, and .357 caliber ammunition at his house.

The [petitioner] testified that after dark on December 4, he was in the

master bedroom after dinner and Williams told him that someone was at the

door. He said “Rob” came in the house for two or three minutes and then left.

He said that Rob was there because Rob owed him $50 and that he loaned

money to other people despite the fact he was unemployed. He went back to

his room for about thirty to forty minutes and watched television, and while he

was in the bathroom, he heard a “huge” bang. He said he asked Williams what

the noise was and that Williams told him someone was breaking into the

house. He said Williams looked scared and was barely able to speak. He said

that he was scared because he thought the burglars from the previous day had

returned and that he ran to the dresser drawer and got a gun. He said he did not

hear any other noises or commands after the bang. He said he went toward the

end of the hallway and heard the iron door hit the air-conditioning unit, a

sound with which he was familiar. He said he went to the end of the hallway,

saw that the wood door had come open, and fired a shot at the door. He said

he did not know who was behind the door and denied hearing the officers

yelling they were with the Sheriff’s Department and had a search warrant. He

said that he heard a shot from outside and that he continued shooting at the

door until he had emptied his gun. He said that while he was shooting, he saw

a curtain fly open and determined that someone was firing through the

window. He denied ever seeing the wood door come open. He said that after

-22-

he ran out of bullets, he was shot in the hand as he tried to look around a wall

to see whether the wood door had come open. He said he dropped the gun, fell

to the floor, and crawled to another room. He said he was trying to get to a

cellular telephone to call the police. He said that as soon as he opened the

door, shots came through the window. He said that he crawled into the room

and that he may have bled on the curtains but that he never looked out the

window. He said he heard a police scanner and realized the people outside

were police. He denied that he would have shot had he realized the people

were police officers.

The [petitioner] testified that he crawled to the end of the hallway and

yelled, “I give up,” and that he heard an officer tell him to show his face. He

said he stuck his head behind a wall and saw a shotgun and handgun at the

door. He said that they told him to lie flat on the floor against the wall with his

hands on his head and that he complied. He said that Williams was lying on the

floor in the living room and that Williams yelled, “I give up.” He said that the

police told Williams to come out first and that Williams was in the process of

doing so when a dog came through the door and attacked Williams. He said

that the dog and Williams wrestled until Williams was outside, that the officers

took the dog off Williams immediately, and that a couple of the officers beat

Williams. He said an officer told him to crawl to the door and that he was

doing so when the dog came in and attacked him. He said he was too heavy for

the dog to pull and that he pushed the dog out the door while the dog was

“clamped on” him. He said he got halfway out of the house and was kicked by

someone. He said that he kept yelling for them to get the dog off him but that

the officers took their time in doing so. He said that he complied with the

directive to lie flat on the ground and that an officer kicked him in the face and

the bottom. He said that he was handcuffed and that an officer allowed the dog

to attack him again. He said he was placed in a police car and had his head

bumped in the process. He said that he was later removed from the police car

and searched and that in the process, an officer hit him in his testicles with a

fist and another officer hit him across his head with a pistol.

The [petitioner] testified that he was taken by ambulance to the hospital.

He said that on the way, he asked the officers whether the officer whom he

shot was okay and told them he did not know who they were and thought a

robber had returned. He said he was unaware of any drugs in his house other

than possibly some “roaches” that belonged to him. He denied that the 1.2

grams of marijuana other than the roaches was his but admitted that the scales

in the closet were his. He said that he used the scales to “[w]eigh up some

-23-

weed” but that it had been two or three months since he had used them. He

said the scales that were found in the car had been there for two or three

months. He said the car belonged to his wife and had transmission problems.

He said the cooking tubes had been in the storage area for two or three months.

The [petitioner] identified the refrigerator that was found in the attic

and said he had stored it in the attic. He denied that it was plugged into the

electricity.

A videotape of the scene was played during part of the [petitioner]’s

direct examination. The [petitioner] identified various items and locations

which were relevant to the events in question. He noted that the videotape

depicted both the broken lock from the wood door and a glass of beer he was

drinking when the incident began were sitting on his bedroom dresser.

On cross-examination, the [petitioner] acknowledged that there had

been marijuana in a gallon bag that was in his bedroom but claimed it had all

been smoked before December 4. He admitted that the drug paraphernalia with

cocaine residue was his, but he denied he had used it since 1996. He

acknowledged that there was stereo equipment, two televisions, a handgun,

and a VCR which were not taken during the burglary. The [petitioner]

admitted that he had locks on his bedroom door and closet door and that he

was the only person with keys. He said he had locks on the doors to keep

visiting relatives from stealing from him. He said the televisions that were in

the living room and his bedroom on December 4 had been in his children’s

bedrooms before the burglary on December 3. He admitted that he was taking

care of his wife’s Rottweiler and that the dog would bark if strangers came to

the house but said the dog ran loose and may have been elsewhere during the

burglary. He denied that Williams ever told him not to shoot because the police

were at the door. The [petitioner] said the police dog left bite marks on his

arms but did not attack other parts of his body. He said he cut the bullet out of

his hand with a razor and flushed it in a toilet while he was in jail.

The state recalled Detective Speight for rebuttal proof. Using the pick

he had taken to the [petitioner]’s house on December 4, 2002, Detective

Speight demonstrated the knock and announce procedure he followed that

night.

After receiving the evidence, the jury found the [petitioner] guilty of

first degree murder of George Selby and guilty of attempted first degree

-24-

murder of William Speight, Samuel Jones, Reginald Hubbard, Darren

Feathers, Scott Chambers, and Robert Rivera. The jury found the [petitioner]

not guilty of any offense in the counts alleging attempted first degree murder

of George Stauffer, Roger Carpenter, Chauncey Walton, Phillip Barnett, and

Richard Nelson.

The state and the [petitioner] entered into a sentencing agreement which

called for the [petitioner] to serve a sentence of life without parole for the first

degree murder conviction. After a sentencing hearing, he received twenty-year

sentences for each of his five attempted first degree murder convictions.

Consecutive sentencing was imposed, for an effective sentence of life without

parole plus 100 years.

State v. Reginald Rome, No. W2006-00838-CCA-R3-CD, 2008 WL 2331018, *1-17 (Tenn.

Crim. App., at Jackson, June 5, 2008).

In his appeal from his convictions and sentences, the petitioner argued

(1) that the evidence is insufficient to convict him of first degree murder, (2)

that the trial court erred in admitting the testimony of a nurse about a bullet

recovered from the victim at the hospital, (3) that the trial court erred in

allowing admission of insufficient evidence about the chain of custody of the

bullet recovered at the hospital, (4) that the prosecution withheld information

about a technical failure in videotaping the deposition of an unavailable

witness, (5) that the trial court erred in ruling that the defendant could not

introduce evidence from the deposition of a non-testifying state’s expert and

then call its own expert to refute that proof, and (6) that the trial court erred in

its jury instructions.

Id. at *1. This court concluded that the petitioner waived his sixth assignment of error, that

the trial court erred in its jury instructions, for failure to address the alleged error in his

motion for new trial. Id. at *23. Finding no error in the sufficiency of the evidence or the

trial court’s rulings, the panel affirmed the judgments of the trial court. Id. at *19-22, 24.

On October 28, 2008, the petitioner filed a pro se petition for post-conviction relief.

The post-conviction court appointed private counsel to represent the petitioner.

Subsequently, the petitioner filed amended petitions on February 25, 2009, and May 13,

2009. The post-conviction court held an evidentiary hearing on August 13 and 14, 2009.

The parties presented the following evidence at the hearing.

-25-

Both of the petitioner’s trial counsel testified. Co-counsel testified that the petitioner

retained lead counsel, and lead counsel brought him in to assist because the state was asking

for the death penalty. Co-counsel said that the defense strategy was that the petitioner did

not know that “it was [a] law enforcement agency that was kicking in his door[] when he

fired those shots,” and the petitioner believed that burglars who had recently broken into his

home were returning. Co-counsel testified that a possible violation of the “knock and

announce” rule when the police were executing the search warrant was significant because

the petitioner’s contention was that the police had already begun opening the door to his

home when they announced that they were law enforcement. He said that the “knock and

announce” issue was related to the petitioner’s mens rea and not a Fourth Amendment

argument.

Co-counsel further testified that the parties had a “contentious argument” over the jury

instructions about the “knock and announce” rule. He characterized the state’s requested

instruction as “dealing more or less with the [officers’] state of mind and not the state of

mind of [the petitioner]” because it “said that if the officers thought it was reasonable and

had a search warrant then . . . there [was] a presumption that their knocking and entering was

reasonable.” Co-counsel said that the jury instructions outlined the extrinsic circumstances

that would justify law enforcement’s dispensing with the “knock and announce” rule. He

said that, “in hindsight,” the problem with the instructions was that “there [were] elements

[there] that were never factually testified to at trial.” As an example, he said that there was

no testimony that the officers heard anything that would lead them to believe that someone

inside the house was destroying evidence.

Co-counsel agreed that he did not argue in the motion for new trial that the jury

instructions were erroneous. He testified, “I can say emphatically that there was no tactical

decision not to argue it.” He further testified that he was aware that the issue would be

waived on appeal if not included in the motion for new trial. Co-counsel also said, “I know

I argued it for sure.” He said that he argued against the jury instructions, but that petitioner’s

argument against the instructions as presented in the post-conviction proceeding “[was] more

of a nuance[d] argument that [he] just apparently didn’t argue.” Co-counsel said that he

believed that the circumstances required some instruction on the “knock and announce” rule

but “in hindsight, looking at the way it was addressed here, [he thought it] could [have been]

problematic.”

Co-counsel testified that lead counsel handled the appeal by himself because it was

no longer a death penalty case. He discussed potential issues with lead counsel, but he did

not see the appellate brief nor did he know that lead counsel discussed the jury instructions

at length in the appellate brief.

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On cross-examination, co-counsel testified that both the defense and the state

submitted language for the jury instructions, and they “had a long, long discussion about jury

instructions.” He recalled that they presented witnesses who testified that they did not hear

the officers announce that they were law enforcement before they began entering the house.

He said that he did not know if he and lead counsel “made a tactical decision that the jury had

to be advised regarding [the] search warrant issue” because “the [trial court], under the

circumstances . . . and the argument that [the defense was] making[,] had to instruct the jury

on the law as it related to that particular defense.”

On re-direct examination, co-counsel agreed that, “in hindsight,” it might have been

a “wise move to include any questionable jury instructions in a motion for new trial simply

to preserve the record[] and to have the ability to raise it on appeal[.]” He said that the

discussion at trial about the jury instructions centered on the language the court would use,

and he said that, while the defense took issue with the given instructions, “[he did not] know

that [anyone] wouldn’t look at [the defense’s] request and look at what was actually given

and say there’s much of a [difference].” The post-conviction court entered a document titled

“Defendant’s Request for Jury Instructions” as exhibit seven, noting that neither the trial

judge, the state, nor the defense signed the document.

The petitioner testified that co-counsel did not discuss the motion for new trial with

him. He further testified that he and lead counsel discussed his appeal on one occasion, and

lead counsel did not include any of the issues that he wanted in his appeal.

Lead counsel testified that the petitioner initially retained him when his case was in

general sessions, but the court appointed him to represent the petitioner in criminal court.

He recalled that the significance of the testimony regarding whether the sheriff’s deputies

knocked and announced their presence went to the credibility of witnesses and to the

petitioner’s “understanding of the circumstances.” Lead counsel testified that he believed

that he would have submitted a written proposal for jury instructions but could not recall

specifically what he submitted. He recalled that the defense did not get the instructions that

they wanted. Lead counsel testified that co-counsel prepared and argued the motion for new

trial. He did not recall any specific discussions with co-counsel about including the jury

instructions in the motion for new trial. Lead counsel said, “If [the jury instruction issue]

was left out . . . then it was a mistake.” He testified that he hired a legal research firm to

assist him in preparing the appellate brief. He said that he was “[s]hocked” that the appellate

court did not consider the jury instruction issue.

Following the close of proof, the post-conviction court took the matter under

advisement. The post-conviction court filed a written order denying post-conviction relief

on August 28, 2009. The court found that the petitioner failed to show that co-counsel

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provided ineffective assistance by not including the jury instructions issue in the motion for

new trial because he did not demonstrate that he suffered actual prejudice. The petitioner

now appeals the denial of post-conviction relief.

Analysis

On appeal, the petitioner contends that the trial court erred by (1) not finding that co-

counsel performed deficiently; (2) conducting an actual prejudice analysis rather than finding

that co-counsel’s deficient performance was presumptively prejudicial; and (3) not granting

a delayed appeal or delayed filing of a motion for new trial.

In order for a petitioner to succeed on a post-conviction claim, the petitioner must

prove the allegations set forth in his petition by clear and convincing evidence. Tenn. Code

Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s

findings unless the petitioner proves that the evidence preponderates against those findings.

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s

factual findings is de novo with a presumption that the findings are correct. Fields v. State,

40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal

conclusions and application of law to facts is de novo without a presumption of correctness.

Id.

To establish ineffective assistance of counsel, the petitioner must show that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the

defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004).

Deficient performance is shown if counsel’s conduct fell below an objective standard of

reasonableness under prevailing professional standards. Strickland, 466 U.S. at 688; see also

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that representation should

be within the range of competence demanded of attorneys in criminal cases). Prejudice is

shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the

outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. If either

element of ineffective assistance of counsel has not been established, a court need not

address the other element. Id. at 697; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn.

1996). Also, a fair assessment of counsel’s performance “requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). The

fact that a particular strategy or tactical decision failed does not by itself establish ineffective

assistance of counsel. Goad, 938 S.W.2d at 369. However, deference is given to strategy

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and tactical decisions only if the decisions are informed ones based upon adequate

preparation. Id. (citations omitted).

The Post-Conviction Procedure Act provides that, once a court has found that counsel

was ineffective on direct appeal, the court “shall vacate and set aside the judgment or order

a delayed appeal.” Tenn. Code Ann. § 40-30-111(a). Additionally, the act states:

(a) When the trial judge conducting a hearing pursuant to this part finds that

the petitioner was denied the right to an appeal from the original conviction in

violation of the Constitution of the United States or the Constitution of

Tennessee and that there is an adequate record of the original trial proceeding

available for a review, the judge can:

(1) If a transcript was filed, grant a delayed appeal;

(2) If, in the original proceedings, a motion for a new trial was filed and

overruled but no transcript was filed, authorize the filing of the

transcript in the convicting court; or

(3) If no motion for a new trial was filed in the original proceeding,

authorize a motion to be made before the original trial court within

thirty (30) days. The motion shall be disposed of by the original trial

court as if the motion had been filed under authority of Rule 59 of the

Rules of Civil Procedure.

Id. § 40-30-113.

Deficiency. The petitioner first argues that the post-conviction court erred by not

finding that trial counsel’s performance was deficient. The post-conviction court stated that

it could not make a determination whether trial counsel made a tactical decision to not

include the jury instructions issue in the motion for new trial because of co-counsel’s “vague

and confusing” testimony at the evidentiary hearing. Lead counsel testified that the omission

of the issue was a mistake, but he said that co-counsel was in charge of the motion for new

trial. Co-counsel testified that it was not a tactical decision, but then he spent considerable

time explaining that the defense requested instructions about the “knock and announce” rule

because they considered it central to their theory. Co-counsel said that he was not pleased

with the language proposed by the trial court and argued against it. He repeatedly said that

in hindsight he could have made a different argument or included it in the motion for new

trial. However, a fair assessment of counsel’s performance “requires that every effort be

-29-

made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689. Based on co-counsel’s testimony, we cannot say that the

petitioner provided clear and convincing evidence that trial counsel’s performance was

deficient. However, assuming arguendo that trial counsel’s representation fell below

professional standards, the petitioner has also not shown that trial counsel’s allegedly

unprofessional error was prejudicial.

Prejudice. The petitioner relies on Wallace v. State, 121 S.W.3d 652 (Tenn. 2003),

to support his argument that (1) this court should deem trial counsel’s failure to include the

jury instructions issue in the motion for new trial to be deficient performance; (2) such

deficient performance was presumptively prejudicial because it led to waiver of the issue on

appeal; and (3) trial counsel’s ineffective assistance entitled the petitioner to a delayed

appeal. In Wallace, the Tennessee Supreme Court held that counsel’s failure to file a motion

for new trial, which resulted in the petitioner’s waiving every issue other than sufficiency of

the evidence for purposes of appellate review, was presumptively prejudicial deficient

performance and entitled the petitioner to a delayed appeal. Wallace, 121 S.W.3d at 658.

The court reasoned that the failure to file a motion for new trial was presumptively

prejudicial and not subject to Strickland’s actual prejudice analysis because “[a]s a direct

result of counsel’s ineffective assistance, the defendant was procedurally barred from

pursuing issues on appeal, and the State’s case was not subjected to adversarial scrutiny upon

appeal.” Id. at 660. However, the court also noted that the United States Supreme Court

ruled that the Tennessee Court of Criminal Appeals correctly applied the Strickland actual

prejudice analysis when trial counsel’s errors were “sporadic in nature, rather than complete.”

Id. (citing Bell v. Cone, 535 U.S. 685, 697-98 (2002)).

In this case, we cannot conclude that trial counsel’s failure to include the jury

instructions issue in the motion for new trial was an abandonment of his client at a critical

stage in the judicial process resulting in “complete failure to subject the State to the

adversarial appellate process.” See id. at 658. Co-counsel prepared and argued a motion for

new trial, and lead counsel pursued an appeal that included four issues, which this court

considered on the merits, other than sufficiency of the evidence and the waived jury

instructions issues. We conclude that the petitioner’s allegation that he received ineffective

assistance of counsel is subject to Strickland’s actual prejudice analysis. Therefore, the post-

conviction court did not apply an incorrect standard in its analysis below, and the petitioner’s

argument to the contrary is without merit.

The post-conviction court found that the petitioner did not suffer actual prejudice as

a result of trial counsel’s failure to include the jury instructions issue in the motion for new

trial because “the instructions in this case fairly informed the jury as to the mens rea required

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to support the conviction and did not mislead the jury on this point,” and we agree. Under

the United States and Tennessee Constitutions, a defendant has a right to a correct and

complete charge of the law, so that each issue of fact raised by the evidence will be submitted

to the jury on proper instructions. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000).

When the trial court’s instructions to the jury correctly, fully, and fairly state the applicable

law, it is not error to refuse to give a special requested instruction. State v. Inlow, 52 S.W.3d

101, 107 (Tenn. Crim. App. 2000); State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

1995). This court must review the entire jury charge; we can find error only if, when read

as a whole, the charge fails to fairly submit the legal issues or misleads the jury as to the

applicable law. State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). As a mixed

question of law and fact, our standard of review for questions concerning the propriety of

jury instructions is de novo with no presumption of correctness. State v. Smiley, 38 S.W.3d

521, 524 (Tenn. 2001).

This court, on direct appeal, characterized the petitioner’s argument regarding the jury

instructions as follows.

The [petitioner] claims that the jury instructions were misleading. He

argues that the instructions were flawed because they caused the jury to ignore

the question of mens rea and to believe conviction was required even if it did

not accept inconsistencies and ambiguities in the prosecution’s evidence. The

instructions in question read:

Members of the jury, if you find from the proof that the

officers had a search warrant, you may infer that the officers

were under a legal duty to conduct the search. If the defendant

knows that the search is being made by law-enforcement

officers, respect for the rule of law requires that the defendant

submit to the apparent authority.

The law requires that a serving officer wait a reasonable

period of time after announcing before entering.

The types of considerations that the law allows an officer

to take into account for determining the existence of a

reasonable period of time include considerations such as:

Whether the officers have a justified belief someone

within the dwelling is in immediate peril of bodily harm.

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Whether the officers have a justified belief those inside

of the dwelling are aware of their presence and are engaged in

escape or the destruction of evidence.

Whether a person inside the dwelling is armed and is

either likely to use the weapon or become violent.

Or whether the person inside the dwelling has threatened

the officer’s safety, possesses a criminal record reflecting

violent tendencies or has a verified reputation of a violent

nature.

Whether or not any of these factors exist in this case, and

if so, what impact they may have had on determining what

constituted a reasonable period of time in this case are factual

matters for the jury to determine.

Although the [petitioner] states that the first paragraph regarding the

[petitioner]’s knowledge was proper, he contends that the remainder of the

instructions were erroneously given because it misled the jury into believing

that if the attempted search entry was properly executed, this fact was relevant

in determining the [petitioner]’s guilt. He argues that his state of mind, not that

of the officers, was relevant. He also argues that these instructions confused

the jury, as evidenced by their verdicts convicting the [petitioner] of the first

degree murder and some of the attempted first degree murder counts but

acquitting him of other attempted first degree murder counts.

Rome, 2008 WL 2331018, at *23.

In Tennessee, “[u]nder [the ‘knock and announce’] rule, ‘a law enforcement officer

who is charged with the execution of a search warrant must give: (1) notice of his authority;

and (2) the purpose of his presence at the structure to be searched.’” State v. Majors, 318

S.W.3d 850, 858 (Tenn. 2010) (citing State v. Perry, 178 S.W.3d 739, 745 (Tenn. Crim. App.

2005)). Regarding exceptions to the “knock and announce” rule, a panel of this court

explained:

As a general rule, it is sufficient for the state to show that (a) a person

within the dwelling knows of the officer’s authority and purpose; (b) the

officers have a justified belief someone within the dwelling is in immediate

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peril of bodily harm; (c) the officers have a justified belief those inside the

dwelling are aware of their presence and are engaged in escape or the

destruction of evidence; (d) a person inside the dwelling is armed and is either

likely to use the weapon or become violent; or (e) a person inside the dwelling

has threatened an officer’s safety, possesses a criminal record reflecting

violent tendencies, or has a verified reputation of a violent nature.

State v. Curtis, 964 S.W.2d 604, 610 (Tenn. Crim. App. 1997).

Clearly, the trial court used the language from Curtis when creating the jury

instructions. In our view, the jury charge fairly stated the “knock and announce” rule and

appropriately addressed the petitioner’s mens rea without being misleading. In light of our

conclusion and the entirety of the opinion on direct appeal, we cannot say that there is a

reasonable probability that the petitioner would have been successful on appeal, but for co-

counsel’s allegedly unprofessional error. We conclude that the petitioner has not shown that

he received ineffective assistance of counsel. We further conclude that the petitioner is not

entitled to a delayed motion for new trial or delayed appeal because he was not “denied the

right to an appeal from the original conviction in violation of the Constitution of the United

States or the Constitution of Tennessee.” See Tenn. Code Ann § 40-30-113(a). Therefore,

the petitioner is without relief in this matter.

Conclusion

Based on the foregoing reasons, we affirm the denial of post-conviction relief.

___________________________________

J.C. McLIN, JUDGE

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