Linn Cook v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 4, 2009

LINN COOK v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-23296 John T. Fowlkes, Jr., Judge

No. W2008-02068-CCA-R3-PC - Filed December 23, 2009

The petitioner, Linn Cook, appeals the denial of his petition for post-conviction relief and argues that

he received ineffective assistance of counsel at trial and that he was improperly sentenced in

violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). After careful review, we

affirm the post-conviction court’s denial of relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.

MCLIN , JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Linn Cook.

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

William L. Gibbons, District Attorney General; and Rachel Newton, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner and his twin brother were convicted of multiple offenses after a jury trial. This

post-conviction appeal pertains only to Linn Cook. The facts underlying the petitioner’s conviction

were summarized by this court on direct appeal in State v. Linn Cook and Glenn Cook, No. 02C01-

9712-CR-00482, 1999 Tenn. Crim. App. LEXIS 627, at ** 3-17 (Tenn. Crim. App. June 30, 1999).

The petitioner and his brother were involved in an incident that resulted in the petitioner being

convicted of possession of a handgun in an occupied place and of multiple counts of especially

aggravated kidnapping, aggravated robbery, and attempted aggravated robbery. The petitioner and

his brother approached three people as they left a party. The brothers brandished firearms, forced

the victims into a car, threatened the victims, and forced them to drive to the victim’s apartment.

After taking jewelry and money, the petitioner and his brother left the scene. The petitioners’ post-

conviction proceedings occurred on January 3, 2002; May 19, 2005; February 9, 2006; and February

15, 2008. During the first post-conviction hearing, the petitioner offered no proof but informed the

court of his claims for relief.

During the second post-conviction hearing, which took place on May 19, 2005, the petitioner

testified that trial counsel from the office of the public defender was appointed to represent him. He

testified that trial counsel met with him on three occasions, failed to file any pretrial motions, and

failed to call any defense witnesses. He denied any involvement in the offenses that resulted in his

convictions and said that he and his brother were “hanging out” with “ten or eleven females” on the

night of the crimes. He did not provide the names of the women. He said that Tony Garrett, a

witness at trial, lied during his testimony.

The petitioner said that trial counsel failed to interview and call Officer Justice D. Fox and

Keisha Hare as witnesses for the defense. He testified that Officer Fox would have testified that he

arrested the petitioner not for the robbery and kidnapping but in connection with shots being fired

at an apartment complex. He said that Harris would have testified that the petitioner and his brother

did not rob anyone.

The petitioner testified that he wanted trial counsel to file a motion to suppress the officer’s

testimony concerning the “shots-fired” call and the weapons found in his car during the arrest.

Officer Fox retrieved two .38 caliber Smith and Wesson handguns, a Maverick pump shotgun, and

some ammunition. Trial counsel did not file a motion to suppress, but the petitioner testified that

she made an oral motion to limit the officer’s testimony.

On cross-examination, the petitioner said that the jury heard only the State’s version of

events. He testified that he was sentenced as a standard offender but received a sentence in the

middle of the range for especially aggravated robbery. Immediately after his conviction, he filed a

complaint with the Board of Professional Responsibility against trial counsel. He later mailed a

handwritten letter to trial counsel, which read as follows:

I’m writing to apologize for my action since you were my attorney, and having had

wrote to the Boards of Professionals. My personal opinion as to your qu[a]lification

as an attorney, you are one of the best. I’ve often thought of you and your friendship

as well as your representation in handling my case. I still feel, that you did handle

my case very well, in[]spite of the conviction. I’ve asked myself a thousand times

over was I wrong, in my heart I feel that I was about you. You are a very nice person

and I feel that you did do your best, and there was nothing that you could do about

the Judge and the prosecutor action no more than what you did do, which was argue

and object to their conduct[] and ruling. I want to say to you that I’m sorry and I

apologize for causing this burden “un[n]e[ce]ssar[i]ly” I was wrong. I still can[’]t

sleep, but I do intend to str[a]ighten [this] out if any way possible. In Jesus name

everything is possible. Well I was just writing you, because I was and am concerned

about you. I do hope that you can forgive me within your heart and [acc]ept my

apology. May God Bless you Sherry always.

Sincerely yours

Linn C. your Client

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The petitioner denied writing the letter to trial counsel.

The next hearing occurred on February 9, 2006, and the post-conviction court granted the

petitioner’s request to relieve post-conviction counsel.

The final hearing occurred on February 15, 2008, and the petitioner again testified that trial

counsel should have called Officer Fox to testify to impeach the other witnesses. Officer Fox

testified that he assisted in the petitioner’s arrest for a shots-fired call and was unaware of the

petitioner’s connection to the underlying crimes.

The petitioner testified that trial counsel was unable to locate anyone who witnessed the

robbery and kidnapping. He again stated that he was innocent. On cross-examination, he admitted

that he did not provide the names of any alibi witnesses to trial counsel. He also acknowledged that

he wrote a letter to trial counsel telling her she did a good job and apologizing for the trouble he

caused her.

Trial counsel testified that she has been employed with the Shelby County Public Defender’s

office for twenty-three and a half years and had tried between twenty-five and fifty criminal cases.

She represented the petitioner at trial. She testified that the petitioner never mentioned Keisha Hare

as a witness and that there was no mention of her in the case file. The first mention of her name was

at trial when a victim testified that they left Hare’s house when they were confronted by the

petitioner and his brother.

Trial counsel testified that she does not always file a discovery motion and that such a

decision is dependent on the actions of the State. She recalled that, before trial, she made an oral

motion in limine regarding the shots-fired call because the petitioner did not want the officers to

testify that they first came into contact with him in connection with another unrelated crime. The

petitioner believed that such information would be prejudicial and irrelevant to his case. The trial

judge denied the motion, but counsel made a continuing objection throughout the trial so the issue

would be preserved. Trial counsel stated that this court found, on direct appeal, that the trial court

did not err by allowing the State to introduce testimony about the shots-fired call when they arrested

the petitioner. She said that the petitioner denied there was a kidnapping. He told her he confronted

one of the victims because he borrowed a gun from the petitioner and did not return it. The defense

theory was that the petitioner and his brother knew the victim and were trying to retrieve their gun.

Trial counsel tried to locate three people who worked at the pawnshop where the petitioner and

victim went on the day of the crimes. She located one of the potential witnesses, but her statement

did not help the defense. Trial counsel recalled that, at trial, the victim abandoned his earlier

position that he did not know the petitioner. She said that the victims did not want to talk to her or

her investigator.

The post-conviction court denied the petition for relief and specifically noted the letter sent

by the petitioner to trial counsel as evidence that she did “an excellent job defending Mr. Cook.”

The post-conviction court held that the petitioner failed to demonstrate that he would have received

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a different outcome at trial had other evidence been presented. The court also determined that the

petitioner failed to establish that not calling a witness at trial was prejudicial to his case.

Analysis

On appeal, the petitioner argues that counsel rendered ineffective assistance when she failed

to interview and call witnesses, failed to file a discovery motion, failed to locate the dispatch tape,

and failed to see him more than three times prior to trial.

This court reviews a claim of ineffective assistance of counsel under the standards of Baxter

v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance

was deficient, and (2) the deficient performance resulted in prejudice to the petitioner so as to

deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to

prove either deficiency or prejudice justifies denial of relief; therefore, the court need not address

the components in any particular order or even address both if one is insufficient. Goad, 938 S.W.2d

at 370. In order to establish prejudice, the petitioner must establish a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

The test in Tennessee to determine whether counsel provided effective assistance is whether

his or her performance was within the range of competence demanded of attorneys in criminal cases.

Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct

falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104

S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove

a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below

an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d

at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

In reviewing counsel’s conduct, a “fair assessment . . . 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.” Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that

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

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

only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d

572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

With regard to his first issue, the failure to interview and call two witnesses at trial, the

petitioner failed to call these witnesses at the post-conviction hearing. “When a petitioner contends

that trial counsel failed to discover, interview, or present witnesses in support of his defense, these

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witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn.

Crim. App. 1996). As a general rule, this is the only way the petitioner can establish that (1) a

material witness existed who could have been discovered but for counsel’s negligent investigation

of the case; (2) a known witness was not interviewed; (3) the failure to discover or interview the

witness caused him prejudice; or (4) the failure to present a known witness resulted in the denial of

critical evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial

court nor this court can speculate on what a witness’s testimony might have been if introduced by

counsel. Id. Apart from his own testimony, the petitioner offered no evidence that the testimony

would have undermined confidence in the outcome of the trial. The petitioner cannot simply argue

that trial counsel was ineffective for not calling certain witnesses and then fail to call the same

witnesses during the hearing on the petition for post-conviction relief.

Next, the petitioner argues that counsel was ineffective because she failed to file a discovery

motion and failed to suppress certain evidence. This court determined on direct appeal that the

“shots fired” evidence and testimony were not prejudicial. Trial counsel did make an oral motion

in limine regarding the “shots fired” call, but her motion was overruled. Trial counsel testified that

she does not always file a motion for discovery as part of her trial strategy but relies on the State’s

actions before filing a motion. The petitioner has failed to demonstrate that trial counsel’s decision

not to file the motion for discovery caused him prejudice.

The petitioner also argues that trial counsel did not meet with him sufficiently to establish

effective counsel. Specifically, he contends that, prior to trial, counsel met with him on just three

occasions. Trial counsel testified that she met with the petitioner several times. The post-conviction

court specifically accredited the testimony of counsel. The petitioner has not met his burden of

demonstrating that counsel was deficient or that he was prejudiced by their meetings.

Next, the petitioner argues that he was sentenced improperly. He argues that his sentence

violated Blakely v. Washington, 542 U.S. 296 (2004), because the trial court enhanced his sentence.

We conclude that the petitioner’s claim must fail even if a Blakely violation occurred. This court

previously held that Blakely does not apply retroactively to cases on collateral appeal. See Billy

Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC, 2007 Tenn. Crim. App.

LEXIS 962, at *17 (Tenn. Crim. App. at Nashville, Nov. 13, 2007). This court, in the unreported

decision of Meeks v. Bell, concluded that the weight of authority stemming from Cunningham v.

California, 549 U.S. ___, 127 S. Ct. 856 (2007), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 (2000), and its progeny are contrary to the petitioner’s assertions which are mirrored here by

the petitioner. As to the retroactive application of Blakely, we conclude, as did the court in Meeks,

that the holdings of Blakely are not to be applied retroactively. Meeks, No. M2005-00626-CCA-R3-

HC, 2007 Tenn. Crim. App. LEXIS 962, at *19. Additionally, this court has previously held that

Blakely does not apply retroactively to cases on collateral appeal in the post-conviction setting. See

Timothy R. Bowles v. State, No. M2006-01685-CCA-R3-HC, 2007 Tenn. Crim. App. LEXIS 355,

at **7-8 (Tenn. Crim. App. at Nashville, May 1, 2007); Carl Johnson v. State, No. W2003-02760-

CCA-R3-PC, 2005 Tenn. Crim. App. LEXIS 65, at **11-12 (Tenn. Crim. App. at Jackson, Jan. 25,

2005). Therefore, the petitioner is not entitled to any relief on this issue.

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Further, all the petitioner’s sentences were run concurrently with the longest sentence set at

twenty years for the Class A felony of especially aggravated kidnapping. The petitioner committed

the offenses on April 14, 1996, prior to the 2005 amendment to the 1989 Sentencing Act. Prior to

the 2005 amendment, a standard offender convicted of a Class A felony was subject to a sentencing

range of fifteen to twenty-five years. See T.C.A. § 40-35-112(a)(1) (1996). The presumptive

sentence for a Class A felony was the “midpoint of the range if there are no enhancement or

mitigating factors.” T.C.A. § 40-35-210(c) (1996). The midpoint of the sentencing range for a

standard offender convicted of especially aggravated robbery, as here, was twenty years. The

petitioner’s sentence was not increased based on facts neither admitted by him nor found by a jury.

The trial court’s sentencing did not violate Blakely or its progeny. Therefore, it was proper for the

post-conviction court to deny relief.

Conclusion

Based on the foregoing and the record as a whole, we affirm the judgment from the post-

conviction court.

___________________________________

JOHN EVERETT WILLIAMS, JUDGE

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