Stacy Johnson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2007

STACY JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 01-06779 James C. Beasley, Jr., Judge

No. W2007-00293-CCA-R3-PC - Filed April 11, 2008

The petitioner, Stacy Johnson, was convicted of eight counts of burglary of a motor vehicle, two

counts of burglary of a building, and theft of property over $1000. He received an effective sentence

of thirty years. He seeks post-conviction relief arguing that he received the ineffective assistance of

counsel at trial. He appeals the trial court’s denial of post-conviction relief, arguing that his trial

counsel was ineffective in failing to move to sever his indictments and in failing to investigate an

alibi defense and defense witnesses. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT

W. WEDEMEYER , JJ., joined.

Charles S. Mitchell, Memphis, Tennessee, for the appellant, Stacy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Michele Parks, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner’s convictions relate to several vehicle break-ins, break-ins at two businesses,

and an automobile theft on March 19, 2001. At the post-conviction hearing, the petitioner testified

that on that day, he had hired a cab to take him from his mother’s house to Seesel’s grocery store.

He denied any involvement in the burglaries and thefts and said he had left Seesel’s to meet a date

when a police officer attacked him, arrested him, and put him in custody.

The petitioner testified that his trial counsel did not ask him much about his case the first day

they met. He said counsel was mostly concerned with other cases he had, although counsel did ask

him if he had any witnesses. The petitioner said he had a number of “report dates” before trial,

during which he reported to the trial court on the progress of his case. He said he met with his trial

counsel on these dates for about fifteen to twenty minutes and that counsel spent most of the time

talking about potential plea offers and resetting the case. He said counsel did not talk about the

investigation of the petitioner’s case. The petitioner was in jail from the time he was arrested until

the time of trial, but he said counsel only visited him in jail once over the course of fifteen months

to discuss a plea offer. He said trial counsel never presented him with any discovery materials and

never talked to him about the indictments and the elements of the charges against him. He said

counsel also never informed him of the range of punishment he was facing for his crimes.

The petitioner said he told counsel about an alibi defense–that he had hired a cab the day he

was arrested. He wrote a letter to counsel stating that on the evening of March 19, 2001, he hired

a cab from his mother’s house to Seesel’s. He said that, to his knowledge, counsel did not contact

the cab company or his mother to verify this. He said counsel did not ask him many details about

the case. The petitioner said that the first time he was presented with a plea offer from the state was

fifteen months after his arrest. He said he and counsel had a “breakdown in communication” when

the petitioner refused the offer. He said they had “cross words” with each other and yelled at each

other. The petitioner said that, after that episode, he wrote letters to the Board of Professional

Responsibility and the trial court asking that his counsel be dismissed and that he be appointed new

counsel. He said he wanted new counsel because he and counsel had a “lack of communication” and

were unable to agree on anything. He said that counsel stopped communicating with him and that

he requested many things of counsel that counsel did not do. He said that, for instance, he requested

counsel to file motions for exculpatory evidence and for the state’s intent to use evidence and to

provide him with a copy of the preliminary hearing transcript. He said counsel did none of this. He

said he also asked counsel to file a motion to sever his indictments in order for him to receive

separate trials on the separate charges.

The petitioner testified that his trial counsel never discussed trial strategy with him. He said

he believed counsel was not interested in representing him. He said he did not know who the state’s

witnesses were or what their testimony would be until the trial. He said counsel told him the state

had a surveillance video but did not tell him about witnesses who saw him going into and out of a

stolen car. He said counsel never asked him about any mental problems, learning disabilities, or

drug or alcohol abuse. He said counsel did not talk to him about his testifying at trial, although he

did have a hearing during which he told the court he did not wish to testify. He said he got a

different attorney to represent him for his motion for a new trial and on appeal.

On cross-examination, the petitioner testified that he gave his trial counsel information about

the cab company and his mother. He said he also told counsel that he was meeting a girlfriend on

March 19, 2001, but that he did not want his girlfriend involved in the case because she was married

at the time. He said he was present during the preliminary hearing and heard the evidence the state

presented. However, he said trial counsel never talked to him about what was going to happen

during the trial. He acknowledged that his theory of the case was that he did not commit the crimes

and that trial counsel cross-examined the state’s witnesses who said they could not identify the

petitioner as the person who broke into their cars. He acknowledged that the state presented a

surveillance videotape and that trial counsel argued that the person in the tape was not the petitioner.

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He acknowledged that he had several prior felony convictions, which influenced his decision not to

testify. However, he said his trial counsel never talked to him about his prior convictions or

informed him that he would be sentenced as a career offender.

The petitioner’s trial counsel testified that he was appointed to represent the petitioner in

September 2001. He said that his practice during a first meeting with a new client is to review the

client’s file and the indictments and get the client’s story about the case. He said he remembered the

petitioner telling him that he did not commit the crimes in question and that he was meeting a

woman on the night that the crimes occurred. The petitioner would not, however, give counsel the

name or contact information of the woman because she was married and he wanted to protect her

identity. He said he did not recall anyone from the petitioner’s family contacting him. He said that

he repeatedly asked the petitioner to give him the name of the woman the petitioner said he met the

night of the burglaries but that the petitioner repeatedly refused. Trial counsel believed that this

woman would be the best witness for the petitioner at the trial and that without her involvement, they

“didn’t have anything to go forward on” except the petitioner’s word. He said he did not recall the

petitioner giving him information about a cab company, although he later said he remembered the

petitioner mentioning a cab but that his primary interest was in finding the woman the petitioner met

that night.

Counsel testified that he reviewed the petitioner’s criminal history, which he called

“extensive.” He said he did not look into the petitioner’s family or mental health history. He said

he never questioned the petitioner’s competence. Counsel testified that he never intended to take

the case to trial but rather sought to obtain a plea offer from the state with a minimal amount of

incarceration. He said that the evidence against the petitioner was overwhelming and that he thought

getting a good plea agreement was in the petitioner’s best interest. He said that he did eventually

get the state to offer the petitioner a ten-year sentence but that the petitioner refused the offer.

Counsel testified that he viewed and copied the state’s file and was aware of all the evidence

that would be presented against the petitioner. This evidence included surveillance videotapes,

police testimony that the petitioner was driving a stolen car with stolen property from other

burglarized cars in it, and the proximity of the cars and buildings where the burglaries occurred and

where the petitioner was found. He said evidence in the petitioner’s favor included no one seeing

the petitioner burglarizing the cars and the police obtaining no fingerprints connected to the

petitioner. Counsel said he “could not imagine” that he did not give the petitioner discovery

material, although he could not specifically remember what he gave the petitioner and when.

Counsel testified that he had difficulty working with the petitioner. He said they had

arguments regarding the petitioner’s refusal to reveal the identity of the woman he was with the night

of the burglaries. He said the petitioner would not cooperate with him at times and asked the trial

judge to remove counsel from the case. He said that after the petitioner rejected the ten-year plea

offer, his only available trial strategy was to question the identity of the petitioner as the burglar,

which he did through his cross-examination of witnesses and argument that the petitioner was not

the person shown in surveillance videos. He said he did not use the services of an investigator

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because the petitioner did not give him the information that would have been most useful in an

investigation, i.e., the identity of the woman with him the night of the burglaries. He said he talked

to the police officers involved in the case, although he did not do this when he was first appointed

to the case.

Counsel testified that he and the petitioner never discussed the issue of severing his

indictments. He said he chose not to argue for a severance because his strategy was to get through

trial and then obtain concurrent sentences based on the offenses all being part of one event. He was

concerned about the sentences because of the petitioner’s criminal history. He said that to obtain a

severance, he would have had to argue that the offenses were separate acts that should be tried

separately. He feared he would lose credibility with the trial court if he argued both things. The

state stipulated that the only motion trial counsel filed on the petitioner’s behalf was a motion for

discovery.

The trial court accredited the testimony of counsel, found that the petitioner did not receive

the ineffective assistance of counsel, and denied the petition for post-conviction relief. The

petitioner appeals this judgment, arguing that his counsel was ineffective in not moving to sever his

charges and in not investigating his alibi and defense witnesses. The state counters that trial

counsel’s performance was not deficient or prejudicial to the petitioner.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief

by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, we are bound by the trial

court’s findings of fact unless we conclude that the evidence in the record preponderates against

those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Because they relate to mixed

questions of law and fact, we review the trial court’s conclusions as to whether counsel’s

performance was deficient and whether that deficiency was prejudicial under a de novo standard with

no presumption of correctness. Id. at 457. Post-conviction relief may only be given if a conviction

or sentence is void or voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

Under the Sixth Amendment to the United States Constitution, when a claim of ineffective

assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance

was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to show that

the counsel’s representation fell below an objective standard of reasonableness or “outside the wide

range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The

prejudice prong requires a petitioner to demonstrate that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694, 104 S. Ct. at 2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id., 104 S. Ct. at 2068. Failure to satisfy either prong results in the

denial of relief. Id. at 697, 104 S. Ct. at 2069.

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In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within the

range of competence demanded of attorneys in criminal cases. Further, the court stated that the range

of competence was to be measured by the duties and criteria set forth in Beasley v. United States,

491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.

1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney 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, 104 S. Ct. at 2065. “Thus, the fact that a

particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference

is made to trial strategy or tactical choices if they are informed ones based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487 F.2d at 1201.

In the present case, the petitioner alleges trial counsel rendered the ineffective assistance of

counsel in two ways. First, he alleges that counsel was ineffective in failing to sever the eleven

indictments on which he was convicted. However, the petitioner has not presented evidence that a

motion to sever offenses would have been successful. We note that this court previously considered

whether it was error for the trial court not to sever the petitioner’s charges. The court held:

We cannot conclude that the trial court erred when it

consolidated the [petitioner’s] offenses. The offenses in this case

appear to be part of a common scheme or plan because they are part

of the same criminal episode. The offenses occurred in the same

geographic area during the same time period, and evidence of many

of the crimes was found in the vehicle in which the [petitioner] was

apprehended. This connection shows a common plan and, further,

evidence of one offense would be admissible in the trial of the other

offenses if the offenses had been severed. Therefore, we conclude

that the trial court did not err by allowing the offenses in this case to

be consolidated.

State v. Stacy Johnson, No. W2004-00464-CCA-R3-CD, Shelby County, slip op. at 13 (Tenn. Crim.

App. Mar. 15, 2005). Although the petitioner now claims that it was trial counsel, as opposed to the

trial court, who erred in not seeking to sever the offenses, our court’s prior opinion on the severance

issue leads us to conclude that a motion by trial counsel to sever charges likely would not have been

successful. Further, as this court previously concluded, even if the charges were severed, evidence

of the different charges would have been admissible in the separate trials. Therefore, we are not

convinced that the result of the case would have been different had counsel moved for a severance

of offenses. The petitioner has not shown that he was prejudiced by the actions of counsel and,

therefore, has not shown ineffectiveness on this issue.

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Regarding the petitioner’s second allegation of counsel’s ineffectiveness, that counsel failed

to investigate his alibi and other defense witnesses, we note that “[w]hen a petitioner contends that

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

witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State, 795

S.W.2d 752, 757 (Tenn. Crim. App. 1990). Although the petitioner testified at the post-conviction

hearing that he had an alibi and potential defense witnesses, he did not present these witnesses at the

post-conviction hearing to testify as to what counsel would have discovered upon adequate

investigation. Without this evidence, we cannot conclude that the result of the petitioner’s case

would have been different had counsel done further investigation. Again, the petitioner has failed

to show that the actions of counsel prejudiced him. We cannot conclude that his trial counsel was

ineffective.

For the foregoing reasons, we conclude that the trial court did not err in denying the petitioner

post-conviction relief. The judgment of the trial court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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