Derry Lavelle Lovins v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 2007

DERRY LAVELLE LOVINS v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Dyer County

No. C02-40 Lee Moore, Judge

No. W2005-01446-CCA-R3-PC - Filed September 14, 2007

Following a jury trial, Petitioner was convicted of second degree murder and sentenced to twenty-

three years in the Department of Correction. On direct appeal, this Court affirmed his conviction.

State v. Derry Lavelle Lovins, No. W2003-00309-CCA-R3-CD, 2004 WL 224482, at *1 -7 (Tenn.

Crim. App., at Jackson, Feb. 4, 2004), perm. app. denied (Tenn. Mar. 5, 2007). Petitioner then filed

a pro se petition for post-conviction relief. Petitioner was appointed counsel and an evidentiary

hearing was held. The trial court subsequently denied the petition and a timely notice of appeal was

filed. After a review of the record, this Court determined that Petitioner was entitled to a delayed

appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure.

The remaining post-conviction proceedings were stayed pending the delayed appeal. On March 5,

2007, the supreme court denied Petitioner’s delayed appeal. We now address Petitioner’s remaining

claims for post-conviction relief. Petitioner argues that he is entitled to post-conviction relief

because (1) he received ineffective assistance of counsel, (2) his constitutional rights were violated

by the State’s failure to disclose physical evidence during discovery, (3) he was prejudiced by the

trial judge’s facial expressions, and (4) the jury reached a compromised verdict. After a thorough

review of the record, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

J. C. MCLIN , JJ., joined.

Stephen D. Scofield, Dyersburg, Tennessee, for the appellant Derry Lavelle Lovins.

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

and C. Phillip Bivens, District Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Background

The following facts were set forth by this Court in Petitioner’s direct appeal:

Ashunn Harris testified that he knew the Defendant for about three or four years and

knew the victim, Geoffrey Burnett, for about one year at the date of the killing,

December 4, 2001. Harris testified that he was outside of his home, which was in

close proximity to the murder scene, and noticed that the Defendant drove by his

house in a green minivan four or five times during the day. Harris stated that both

he and the victim were outside Harris[’] house together when the Defendant drove

by in his minivan. Harris testified that he and the victim left Harris[’] house at 6:00

or 6:30 p.m. and that, when they left, it was dark outside. Harris stated that he and

the victim left Harris[’] house in the victim’s car and that the victim was driving

while Harris sat in the front passenger’s seat. Harris testified that he and the victim

picked up James “Splat” Barr, who got in the victim’s vehicle and sat behind Harris.

Harris stated that he did not see a gun in the vehicle.

Harris said that the three men were headed back to Harris[’] house when they noticed

the green minivan the Defendant was driving earlier. Harris stated that both cars

stopped at a stop sign and rolled down the windows, and the victim and the

Defendant “exchanged words.” Harris stated that the Defendant asked the victim for

“some change” and the victim said that “he didn’t have [any] change for him . . . .”

Harris testified that the two kept repeating these words with raised voices and the

Defendant again asked the victim for “change” and the victim said, “The only way

you’re go[ing to] get the change is [if] you put a bullet in my head.” Harris testified

that, after the victim made this statement, he heard the Defendant’s door open and

then heard one shot, after which Harris “got down,” and then he heard another shot.

Harris stated that right after the shots were fired he heard the minivan pull away “real

fast.”

Harris stated that when he raised his head back up he noticed that the victim was

“laid out” and bleeding. Harris opened his door, the window of which was “busted

out,” and ran and called an ambulance. Harris stated that he did not see a gun in the

victim’s possession at any time.

On cross-examination, Harris stated that, immediately prior to the shooting, the

victim was about to open the door. He had cracked it open a little bit.” Harris

testified that he did not see the Defendant make any gesture towards the victim prior

to the victim opening his car door. Harris also agreed that it was common knowledge

in the community that the victim had acted violently towards other people in the past.

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Harris stated that he heard about an incident in November 2001 when the victim went

into an apartment and shot someone.

Billy Buck, an officer with the Dyersburg Police Department, testified that he was on

patrol on December 4, 2001, and was the first officer to arrive on the scene of this

shooting. The officer stated that, when he got to the scene, several people were

surrounding the vehicle and the passenger window of the car was “shot out.” The

officer stated that blood covered the victim’s face and it was apparent that he suffered

a “serious wound.” The officer stated that the passenger’s side door was open and

the driver’s side door was shut. The officer stated that he checked the victim’s car

for weapons and did not find a gun, but he did find a cell phone in the victim’s hand.

The officer said that there were no passengers in the victim’s car when he arrived.

Officer Buck stated that the Defendant called the police department shortly after the

shooting and reported that someone was chasing him in a vehicle. The officer noted

that the description given by the Defendant matched the victim’s vehicle, which was

parked at the scene of the shooting.

On cross-examination, the officer admitted that he did not see any passengers in the

vehicle when he got to the crime scene and that it was possible that either passenger

could have removed items from inside the car, including a weapon, when they left.

Jim Gray, an investigating officer with the Dyersburg Police Department, testified

that on December 4, 2001, he received a call to investigate a shooting. The officer

stated that, when he arrived at the scene, he saw a maroon Pontiac with the victim

inside. Officer Gray stated that there was a bullet hole in the center of the driver’s

side door, which was closed. The officer stated that the driver’s side window was

rolled down and the passenger’s side door was open and the glass in the window was

broken. The officer testified that he did not see any weapon in the victim’s car but

that he did see a cell phone lying in the victim’s lap.

Officer Gray testified that he heard from the dispatcher that the Defendant advised

the police that he had been in an altercation and shooting. The officer testified that

he found the van that the Defendant was driving during the shooting and, after

searching it, found three .357 live rounds and one glove. The officer testified that his

investigation revealed that there were four men in the minivan with the Defendant

at the time of the shooting: Josh Garrett, Dennis Akins, Billy Thompson, Jr., and

Anthony Gooch. [There was some confusion as to whether this man’s name was

Anthony Gooch or Anthony Williams.] The officer testified that he also determined

that there were two men in the car with the victim at the time of the shooting: James

Barr and Ashunn Harris. On cross-examination, Officer Gray testified that the bullet

hole in the door was about three or four feet below the victim’s head.

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Cynthia Gardner, an employee with the medical examiner’s office, testified that she

examined the victim’s body and swabbed the victim’s hands for gunshot residue.

Gardner testified that the victim’s gunshot wound was located just above his left ear.

Gardner stated that, from the entrance wound, she determined that the gun was more

than two feet away from the victim at the time that it was fired. Gardner determined

that when the victim was shot he was looking straight ahead, and the bullet came

from a perpendicular direction, entering the side of the victim’s head.

Laura Hodge, a special agent forensic scientist for the Tennessee Bureau of

Investigation, testified that the gunshot residue test performed on the victim was

negative, indicating that there was no gunshot residue on the victim’s hands.

John David Fisher, a bail bondsman, testified that he was familiar with the

Defendant. Fisher stated that the Defendant called him at around one o’clock on the

afternoon prior to the murder to ask if Fisher would be in town that evening because

“he thought there may be a little trouble and just might need to make bond.” Fisher

testified that the Defendant told him that he might get in trouble for an assault and

would call him if he needed him. Fisher stated that the Defendant called him later

that day, around six or seven o’clock in the evening, and told him that he was on his

way to turn himself in because someone had been shot.

On cross-examination, Fisher stated that the Defendant rented property from Fisher

and that some of that property was subleased to the victim. Fisher testified that he

was due some rent money on the property that was subleased by the victim. Fisher

also stated that the Defendant told him that he was going to the police station because

he had shot someone’s door, but that he did not use the words murder or homicide.

Mark Reynolds, an officer with the Dyersburg Police Department, testified that he

was called to the shooting scene on December 4, 2001, and that he tried to locate any

witnesses among the people gathered there. Officer Reynolds testified that, later in

the investigation, he learned that Josh Garrett was a passenger in the Defendant’s

minivan at the time of the shooting. Garrett took the officer to a location where

Garrett said he disposed of the murder weapon, and, there, the officer located a .357

handgun in a ditch. Officer Reynolds stated that the gun had one spent round in the

chamber and that he found a “live” cartridge on the road near where the weapon was

found.

Billy Williams, an officer with the Dyersburg Police Department, testified that he

was called to assist in investigating the shooting. Officer Williams stated that he

interviewed the Defendant at eight o’clock on the evening of the shooting. The

officer testified that he noticed that the Defendant was “very upset, very nervous, and

just basically . . . shaken up.” The officer informed the Defendant of his Miranda

rights, after which the Defendant told the officer that “he had been into it with [the

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victim]” and that he stopped his minivan next to the victim’s car and words were

exchanged. The officer stated that the Defendant told him that he was asking the

victim for money and that the victim said, “The only way you’ll get some money out

of me is to shoot me in the head.” Officer Williams testified that the Defendant

stated that he thought the door was about to open “or he saw [the victim] move, and

he fired two shots” and then “sped off.” The officer stated that the Defendant told

him that he never saw the victim with a gun.

The officer testified that the Defendant told him that Josh Garrett and Billy

Thompson, Jr., were in the car with him at the time of the shooting. Officer Williams

testified that Garrett told him that Garrett had a 9-millimeter handgun, and the

investigation also revealed that the Defendant had a weapon. The officer testified

that, once Garrett was released, he retrieved his 9 millimeter gun and turned it into

the police. On cross-examination, the officer stated that he knew from the beginning

of the investigation that there was an allegation that the victim began to open his door

prior to the shooting. The officer also admitted that the Defendant told him that the

victim’s car “cut us off” prior to the two cars stopping at the stop sign and that the

Defendant told him that there were two guns, “a 9 [millimeter] and a .357,” in the car

at the time of the shooting. Officer Williams testified that the Defendant told him

that he saw the victim reach for something prior to the shooting. The officer testified

that the Defendant told him that the victim was making threats to his life. The officer

also stated that he was aware that two Dyersburg residents complained to police that

the victim broke into their apartment and threatened them with a gun on December

12, 2000. Officer Williams testified that he knew the victim’s mother because she

was an officer with the Ripley Police Department.

The Defendant called Tammy Denise Smith who testified that she knew the

Defendant from a business that he owned and operated. Smith testified that she also

knew the victim for approximately two years prior to his death. Smith stated that the

victim told her on the day of the murder that, when he found the Defendant, he was

going to kill him. She testified that the victim had a reputation for violence in the

community. Smith testified that she told the Defendant that she heard the victim

threaten the Defendant’s life. Smith stated that, on one occasion, she saw the victim

pull a gun on the Defendant’s brother and “just poin[t] the gun at him . . . .” On

cross-examination, Smith admitted that she did not mention her conversation with

the victim, in which he threatened the Defendant’s life, when she testified on the

Defendant’s behalf at any previous hearings.

Natasha Spain, the victim’s girlfriend, testified that she knew the Defendant and that

she was living with the victim at the time of his death. Spain testified that she was

working at the time of the murder and that the victim had driven her to work. She

stated that the victim told her on the day of the murder that he was going to go to

Ripley and get a gun, and Spain understood the victim to mean that he was going to

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get the gun “to take care of a problem” that he was having with the Defendant. Spain

stated that she told the victim to stay away from the Defendant. On cross-

examination, Spain admitted that, shortly after the murder, she told investigators that

the Defendant called her prior to the shooting, while she was with the victim, and

asked her to “[p]ut your b* * * * a* * n* * * * on the phone,” referring to the victim.

She stated that the victim spoke with the Defendant, who was asking the victim for

money, and he told the Defendant to subtract the money that he owed the Defendant

from the money the Defendant owed him and then inform him of the balance.

Kim Floyd testified that she told the Defendant that the victim was a violent and

dangerous person prior to the night of the shooting.

Billy Ray Thompson testified that he was a passenger in the minivan driven by the

Defendant on the night of the shooting. He testified that he was sitting behind the

driver in the back seat and that, in addition to the Defendant, two other men, Josh

Garrett and Dennis Akins, were in the minivan. Thompson testified that the

Defendant did not mention the victim while they were in the car together prior to the

shooting. Thompson stated that they saw the victim’s car at a four-way stop and that

the Defendant backed the van up to the victim’s car and the two men started talking.

He said that the Defendant asked the victim for money and the victim responded, “If

you can do your math, then you would know that I don’t owe you [anything],” and

the victim got upset and “started hollering.” Thompson stated that the Defendant was

not upset at all. Thompson testified that he saw the victim reaching “on the side of

him like he was [getting ready to] get a gun.” Thompson said that the victim opened

his driver’s side door halfway and looked as if he was going to get out of his car.

Thompson testified that he thought that the victim was about to “talk crazy, or shoot

at us, or something.” He testified that the victim previously “pulled a gun” on him

one week prior to the shooting.

On cross-examination, Thompson testified that he heard the victim tell the

Defendant, “To get your money, you’re go[ing to] have to put one in my head” and

that, shortly thereafter, he heard two gunshots and the Defendant drove away.

Thompson stated that the Defendant fired the gun. Thompson stated that the

Defendant then immediately called the police and said, “I just shot someone and I

need for y’all to come meet me on the highway because he’s still chasing me.”

The Defendant next called Officer Jim Gray to testify again. Officer Gray stated that,

when he examined the victim’s vehicle at the crime scene, it was in park. The officer

testified that the bullet hole in the driver’s side door was significantly lower than

where the victim’s torso would have been located had he been sitting behind the

steering wheel.

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Carey Brown Haynes testified that he was familiar with both the Defendant and the

victim. Haynes testified that the victim shot him in the left ear and the head and that

the Defendant was aware of this. Haynes stated that, when the victim shot him, he

was sitting at his house and the victim “came and kicked in the door of the house”

and then shot him. On cross-examination, Haynes testified that he told the police that

the victim shot him.

Officer Billy Williams was called again to testify and stated that he interviewed

Haynes when Haynes was shot on December 12, 2000. He stated that Haynes never

told him that the victim shot him, and only told him that the individual who shot him

had on a mask and that Haynes did not know who that individual was. Officer

Williams stated that, during the investigation, the victim was a possible suspect and

was interviewed, but there was insufficient evidence to charge him with the crime.

The officer stated that when Haynes was shot he was living with both the Defendant

and the victim. Officer Williams testified that he did not execute a search warrant

in that case and denied that it was because he had a good working relationship with

the Defendant’s mother.

The Defendant testified on his own behalf that he owned and operated a business

named Auto Source for several years and that he owned it on the day of the shooting.

The Defendant testified that he knew the victim for approximately three years prior

to the shooting. The Defendant stated that, prior to the shooting, the victim was

“having words and disagreements” with at least six of their mutual acquaintances.

The Defendant testified that, before the shooting, he learned from “quite a few

people” that the victim was making threats against his life. Specifically, the

Defendant was told that the victim said, “If he s[aw] me, he was go[ing to] kill me.”

The Defendant testified that these threats concerned him and he felt that the victim

really was going to kill him. The Defendant said that, on the day of the shooting,

Tammy Smith told him that the victim told her that the victim was going to kill the

Defendant. The Defendant testified that he had been told that the victim was

involved in previous shootings.

The Defendant testified that, on the night of the murder, the victim’s vehicle was

blocking his vehicle and that he put his vehicle in reverse. The Defendant said that

the victim then backed up the victim’s vehicle so that the two cars were side by side.

The Defendant testified that, after the victim blocked his car, the Defendant knew

there was “going to be trouble.” The Defendant testified that the victim asked him,

“What’s up” and did not appear “upset or anything.” The Defendant stated that he

wanted to see what was “going on” because people had been telling him that the

victim was going to try to kill him, but he had seen the victim multiple times that

evening and he did not attempt to stop the Defendant. The Defendant stated that the

victim then “got real upset” but that he did not know why. He testified that the

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victim did not say anything about putting a bullet in the victim’s head as the other

witness said but said that there was “go[ing to] be some killin[g].”

The Defendant stated that the victim appeared to be excited and “started reachin[g]”

for a gun, so the Defendant reached for his gun. The Defendant stated that he never

saw a gun in the victim’s hand but knew that he regularly carried a weapon. The

Defendant stated that, after he reached for his gun, the Defendant immediately fired

a shot and, as he was driving off, he fired another shot. He said that he fired his gun

at the victim just to warn him and that he did not know that the victim had been shot

when he drove away. The Defendant testified that he then called the police and told

them that he thought that he might have shot someone and that someone might still

be following him. The Defendant said that he told police that he had two guns in the

minivan and that he left the guns in the minivan. The Defendant stated that he

carried a gun with him because he often carried large sums of money from his store.

On cross-examination, the Defendant stated that he and the victim formerly lived in

close proximity to each other. The Defendant stated that, five days prior to the

murder, he and the victim drove to Jackson, Tennessee, together and did not have any

problems. The Defendant testified that, on the day of the murder, he picked up his

cousin, Josh Garrett, and that Garrett had a gun “on him.” The Defendant stated that

the two men saw the victim a couple of times while driving around and, since the

victim did not stop them, they assumed that there was not going to be a problem, so

they placed both guns on the floor of the minivan. The Defendant testified that, when

he and the victim were in their respective vehicles next to each other, the victim

stated that he did not have a problem with the Defendant and then told the Defendant

that he was friends with Officer Williams and could not get in trouble. The

Defendant stated that, during this time, he “wasn’t saying a word.” The Defendant

admitted that there was some discussion about money, stating, “I asked him about the

money after he was starting to get riled up.”

The Defendant stated that he asked the victim for money because “[a]t that point in

time, I didn’t think he had a gun.” The Defendant testified that the victim then said

“something about some kill[ing]” and the victim reached down inside his car. The

Defendant stated that the victim put his cell phone on the dash, put the car in park,

opened the door and was reaching down when the Defendant fired the first shot. The

Defendant explained that he did not know where the victim was when he fired the

second shot because he was driving off as he fired it. The Defendant testified that he

did not know if there was anything that prevented him from driving off prior to

shooting the victim. The Defendant stated that, when he left the scene of the

shooting, he drove the opposite direction from the sheriff’s department. The

Defendant testified that he left the minivan and asked someone to come pick him up

because he thought that someone was following the minivan. He stated that he left

his cousin and another man in the minivan and that he left the guns in the minivan.

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The State called one rebuttal witness, Rita M. Burnett, who was the victim’s mother

and is an officer with the Ripley Police Department. Officer Burnett testified that she

had known Officer Williams since 1999 and that he called her one time because her

son, the victim, was implicated in a shooting. Officer Burnett stated that she has four

sons, two of whom are in prison, the victim, and a fifteen year old son. The officer

testified that the victim would “physically figh[t],” but that she had never known him

to be charged with using a weapon.

State v. Derry Lavelle Lovins, No. W2003-00309-CCA-R3-CD, 2004 WL 224482, at *1 -7 (Tenn.

Crim. App., at Jackson, Feb. 4, 2004), perm. app. denied (Tenn. Mar. 5, 2007).

II. Post-Conviction Hearing

At the post-conviction hearing, Petitioner testified that his trial counsel was ineffective for

failing to call Larry Nolen, Joshua Garrett, and James “Splat” Barr to testify at trial. Petitioner said

Larry Nolen was present in the courtroom during the trial and available to testify. Petitioner stated

that Joshua Garrett was incarcerated for aggravated robbery and attempted murder at the time of trial.

He acknowledged that the jury would have been made aware of this fact, but maintained that Mr.

Garrett was an important witness and should have been called to testify. Petitioner testified that

James Barr was a “material witness” who had been subpoenaed to testify, but did not appear at trial.

He said that counsel was ineffective for failing to request a continuance to secure Mr. Barr’s

presence.

Petitioner next testified that counsel was ineffective for failing to appeal the exclusion of

portions of Kim Floyd’s testimony. Specifically, Petitioner said that Ms. Floyd should have been

allowed to testify that the victim was involved in a shooting at Ms. Floyd’s apartment which resulted

in the death of her daughter. He acknowledged that Ms. Floyd did testify at trial regarding the

victim’s reputation for violence and the fact that she had warned Defendant of this tendency.

Petitioner also testified that counsel was ineffective because he failed to give Petitioner an

opportunity to clarify with the jury what Petitioner perceived as mistakes in his police statement.

Finally, Petitioner testified that trial counsel was ineffective for failing to appeal his case from the

state appellate court to the state supreme court. Petitioner said that he wrote counsel a letter

requesting that he appeal the case to the supreme court, but never heard back from him. Petitioner

did not have a copy of the letter. He admitted that he did not pay trial counsel any money to appeal

to the supreme court, but stated that counsel was appointed to do so.

In addition to his testimony regarding ineffective assistance of counsel, Petitioner testified

that his sentence was unconstitutional; that the jury reached a compromised verdict; that the trial

judge made facial expressions which could have influenced the jury; that Ms. Athalene King was

unconstitutionally excluded from the jury; and the State withheld physical evidence containing

gloves and other items prior to trial. Petitioner also stated that the evidence at trial was insufficient

to support his conviction because there was no evidence that he fired the shot that killed the victim.

He admitted this issue was raised on direct appeal.

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Petitioner’s trial counsel testified that he did not appeal the exclusion of Ms. Floyd’s

testimony because he felt the relevant portions of her testimony were admitted into evidence.

Specifically, her testimony was admitted regarding the victim’s reputation for violence and the fact

that she warned Defendant of this reputation. Trial counsel said the victim’s violent nature was

“sufficiently clear” from the trial testimony. He explained that the record was replete with testimony

from several witnesses who attested to the victim’s violent nature, including the victim’s girlfriend.

He said the girlfriend testified that the victim discussed killing Defendant and purchased a gun on

the day of the incident to use in carrying out his plan. Trial counsel said the witnesses were “strong,”

and the State did not impeach their testimony. Trial counsel did not recall a witness named Larry

Nolen.

With respect to James “Splat” Barr, trial counsel testified that in retrospect, it would have

been a “good idea” to move for a continuance to secure Mr. Barr’s testimony. He explained that

there was some “street talk” that Mr. Barr removed a gun from the victim’s automobile following

the incident. Trial counsel said that if the “street talk” was true, Mr. Barr’s testimony would have

been helpful to Petitioner’s case since the theory of his case was self-defense or accidental killing,

and no gun was recovered from the victim’s person or his car. According to trial counsel, neither

he nor the State had the opportunity to interview Mr. Barr. There was also some question as to

whether Mr. Barr had been properly served with a subpoena to appear in court.

Trial counsel testified that he chose not to call Joshua Garrett to testify because he thought

Mr. Garrett would be a “terrible” witness and would hurt Defendant’s case. Mr. Garrett was

incarcerated for aggravated robbery and attempted murder at the time of trial and had a violent

criminal history. Trial counsel explained that Mr. Garrett’s testimony was not particularly helpful,

rather, it merely corroborated the other witnesses’ testimony regarding the events leading up to the

shooting. In light of his criminal background, trial counsel determined that Mr. Garrett’s testimony

was not worth the damage it would cause Petitioner’s case.

Trial counsel said that he did not appeal Defendant’s sentence because, although he thought

the sentence was excessive under the facts, there was no error in sentencing and no grounds for

appeal. Trial counsel had no recollection of a letter from Petitioner requesting that he seek an appeal

to the supreme court. Trial counsel did not recall a pair of gloves or a box of physical evidence being

introduced by the State the day of trial. He likewise did not recall interviewing jurors or having

information that the jury’s verdict had been compromised.

III. Analysis

A. Standard of Review

To sustain a petition for post-conviction relief, a defendant must prove his or her factual

allegations by clear and convincing evidence at an evidentiary hearing. See T.C.A. § 40-30-110(f);

Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-weigh or

re-evaluate the evidence below; all questions concerning the credibility of witnesses, the weight and

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value to be given their testimony, and the factual issues raised by the evidence are to be resolved by

the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d

572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-conviction relief

are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence

preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578.

B. Ineffective Assistance of Counsel

In his first three issues on appeal, Petitioner contends that he is entitled to post-conviction

relief because trial counsel was ineffective in (1) failing to appeal the exclusion of portions of Kim

Floyd’s testimony; (2) failing to call Larry Nolen, Joshua Garrett, and James Barr to testify at trial,

(3) failing to request a continuance in order to secure James Barr’s presence to testify, and (4) failing

to give Petitioner an opportunity to explain his police statement to the jury.

To succeed on a challenge of ineffective assistance of counsel, the petitioner bears the burden

of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §

40-30-110(f) (2003). The petitioner must demonstrate that counsel’s representation fell below the

range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

the petitioner must establish (1) deficient performance and (2) prejudice resulting from the

deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a

reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made

during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.

1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the

decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992).

It is unnecessary for a court to address deficiency and prejudice in any particular order, or

even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069. 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.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694, 104

S. Ct. at 2068). The issues of deficient performance by counsel and possible prejudice to the defense

are mixed questions of law and fact. Id. at 461. “[A] trial court’s findings of fact underlying a claim

of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied

with a presumption that those findings are correct unless the preponderance of the evidence is

otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d);

Henley, 960 S.W.2d at 578). However, conclusions of law are reviewed under a purely de novo

standard with no presumption that the post-conviction court’s findings are correct. Id.

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1. Exclusion of Evidence

Petitioner first claims that trial counsel was ineffective in failing to appeal the exclusion of

testimony from Ms. Floyd. Specifically, Petitioner argues that Ms. Floyd should have been permitted

to testify that the victim participated in a shooting crime against her which resulted in injury to

herself and the death of her two-year-old child. The trial transcript reflects that in a jury-out hearing,

Ms. Floyd testified that she told Petitioner that the victim was a violent person who would turn on

him. Ms. Floyd told Petitioner she had seen something similar happen eight years earlier when her

door was kicked in and “they killed my friend, shot me bad, left me in bad shape and killed my two

year old daughter.” Ms. Floyd testified that the victim’s brother was convicted of the crime, but it

was her understanding that the victim was the person who kicked in her door. The trial court

permitted the testimony regarding the victim’s reputation, but did not allow any evidence of the prior

event.

Initially, we note that counsel’s choices as to the issues to raise on appeal are generally

entitled to substantial deference. Strickland, 466 U.S. 689, 104 S. Ct. at 2065. Our supreme court

has stated that counsel on appeal has no obligation to raise every conceivable argument which might

be made. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing King v. State, 989 S.W.2d

319, 334 (Tenn. 1999)). This Court has further stated that “ineffectiveness is very rarely found in

cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal,

primarily because the decision of what issues to raise is one of the most important strategic decisions

to be made by appellate counsel.” Kennath Henderson v. State, No. W2003-01545-CCA-R3-PD,

2005 WL 1541855, at *44 (Tenn. Crim. App., at Jackson, June 28, 2005) perm. to appeal denied,

(Tenn. Dec. 5, 2005).

The post-conviction court found no evidence that counsel was ineffective in failing to appeal

the exclusion of Ms. Floyd’s testimony. The court stated that even if counsel’s actions were

ineffective, Petitioner failed to demonstrate prejudice. We see nothing in the record to preponderate

against the trial court’s findings. Trial counsel testified that he saw no reason to appeal the exclusion

of evidence given the testimony from numerous other witnesses regarding the victim’s violent

tendencies. Trial counsel found it particularly noteworthy that the victim’s girlfriend testified

regarding the victim’s violent nature and his intention to kill Petitioner. Trial counsel said he

thought the evidence that was admitted made it “sufficiently clear how bad [the victim] was.” We

cannot conclude that counsel’s failure to appeal the exclusion of evidence was anything other than

reasonable appellate strategy. Furthermore, Petitioner has not shown how he was prejudiced by the

exclusion of evidence. As such, Petitioner is not entitled to relief on this issue.

2. Failure to Call Witnesses

Petitioner next argues that trial counsel was ineffective for failing to call Larry Nolen, Joshua

Garrett, and James Barr to testify at trial, and failing to request a continuance in order to secure

James Barr’s presence to testify. Petitioner asserts that Larry Nolen was in court on the day of trial,

Joshua Garrett was in the county jail, and both men were readily available to testify. Both Mr. Barr

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and Mr. Garrett’s statements were introduced as exhibits at the post-conviction hearing. Petitioner

argues that counsel was particularly ineffective in failing to call James Barr to testify. He claims that

Mr. Barr removed a gun from the victim’s vehicle following the shooting and his testimony in this

regard would have supported Petitioner’s theory of self-defense. The post-conviction court found

that Petitioner failed to demonstrate how he was prejudiced as a result of trial counsel’s decision not

to call these witnesses and not to request a continuance. The court reviewed Mr. Barr’s statement

to police and found nothing in the statement that would have been beneficial to Petitioner at trial.

The court also found that trial counsel made a strategic, informed decision not to call Joshua Garrett

as a witness.

We agree with the post-conviction court. Trial counsel testified that he did not recall a

witness named Larry Nolen and did not remember discussing this individual with Petitioner. He said

that he chose not to call Joshua Garrett to testify given his violent criminal history and the fact that

he was incarcerated for aggravated robbery and attempted murder. With respect to James Barr, trial

counsel stated that a continuance might have been beneficial to Petitioner’s case provided (1) Mr.

Barr could be located and subpoenaed, and (2) Mr. Barr then testified that he had taken a gun from

the victim’s vehicle after the shooting. At the time of trial, however, Mr. Barr could not be located,

and neither the State nor defense counsel had reliable information that Mr. Barr could testify to this

effect. Mr. Barr did not testify at the post-conviction hearing regarding what his trial testimony

might have been. Nor was there any discussion or explanation from Petitioner as to why Mr. Barr

was not called to testify at the hearing. There is nothing in Mr. Barr’s statement, which was

introduced as an exhibit at the post-conviction hearing, indicating that he removed a gun from the

victim or his car following the shooting. As such, there is nothing to indicate the outcome of

Petitioner’s trial would have been different had Mr. Barr testified. Larry Nolen likewise did not

testify at the hearing, and Petitioner offered no evidence as to why Mr. Nolen was not called or what

he might have said had he been called at trial. Without such evidence, we cannot conclude that

Petitioner was prejudiced by trial counsel’s failure to call Mr. Barr or Mr. Nolen. See Black v. State,

794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Finally, as noted by the trial court, trial counsel

made a reasonable, strategic decision not to call Mr. Garrett to testify given his criminal background.

This is a decision we will not second-guess. Accordingly, Petitioner is not entitled to relief on this

issue.

3. Statement

Petitioner also contends that counsel was ineffective in failing to allow him to explain his

prior statement to police to the jury. Petitioner testified that the transcribed version of his statement

to police appeared to say that he did not like Josh Garrett. Petitioner wanted to clarify at trial that

what he actually said was “he did not like the way [the victim] treated Josh, not that he didn’t like

Josh.” Petitioner asserts that trial counsel was ineffective for failing to give him an opportunity to

make this clarification at trial. Petitioner presented no evidence at the post-conviction hearing to

indicate how he was prejudiced by the alleged error in the statement or trial counsel’s failure to give

him an opportunity to clarify the error. Nor is there anything in the record to indicate that counsel’s

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performance was deficient in this regard. In our view, Petitioner has failed to meet his burden of

proof and is not entitled to relief on this issue.

C. Blakely Violation

In his next argument, Petitioner contends that his sentence was unconstitutionally enhanced

in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Petitioner argues that had his sentence been appealed at the time of his direct appeal, which occurred

prior to our supreme court’s decision in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), the sentence

would have been illegal under Blakely since the enhancement factors were not found by a jury.

In Blakely, the United States Supreme Court concluded that the “‘statutory maximum’ for

Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),] purposes is the maximum sentence

a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant. Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. Subsequent to that decision, our supreme

court decided State v. Gomez, in which a majority of the court concluded that, unlike the sentencing

scheme in Blakely, “Tennessee’s sentencing structure does not violate the Sixth Amendment.”

Gomez, 163 S.W.3d at 661. However, the United States Supreme Court recently vacated our

supreme court’s ruling in Gomez and remanded the case for reconsideration in light of its recent

decision in Cunningham v. California, 549 U.S. ____, 127 S. Ct. 856 (2007). Thus, we no longer

follow Gomez given the Supreme Court’s instruction. State v. James A. Mellon, No. E2006-00791-

CCA-R3-CD, 2007 WL 1319370, *9 (Tenn. Crim. App., at Knoxville, May 7, 2007) (no Tenn. R.

App. 11 application filed). In the present case, Petitioner raised the issue in a collateral attack. This

Court has previously held that retrospective application of the rule announced in Blakely is not

applicable to cases on collateral review. Roy Allen Burch v. State, No. E2004-02365-CCA-R3-PC,

2005 WL 1584379, *2 (Tenn. Crim. App., at Knoxville, July 7, 2005) (no Tenn. R. App. P. 11

application filed) (citing Isaac Lydell Herron v. State, No. W2004-02533-CCA-R28-PC (Tenn.

Crim. App., at Jackson, Nov. 22, 2004)). Petitioner is not entitled to relief on this issue.

D. Pre-trial Disclosure of Evidence

In his next argument, Petitioner contends that he was denied his right to pre-trial disclosure

of evidence. Specifically, Petitioner asserts that, during discovery, the prosecution withheld a box

of physical evidence containing, among other things, a pair of gloves which were displayed to the

jury during his trial. Petitioner contends that the failure to disclose this evidence denied him his

constitutional right to a fair trial. Petitioner cites only his own testimony at the post-conviction

hearing in support of his argument. Trial counsel testified that he had no recollection of a box of

evidence or a pair of gloves. The trial transcript reflects that one brown work glove and a box of

ammunition were recovered from the Petitioner’s van. The items were introduced as an exhibit at

trial. Trial counsel affirmed that he had seen the items and did not object to their introduction into

evidence. The post-conviction court found that Petitioner offered no proof that the physical evidence

existed or that the State failed to disclose the alleged evidence prior to trial. The evidence does not

preponderate against the trial court’s findings. Petitioner is not entitled to relief on this issue.

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E. Judicial Prejudice

Petitioner next argues that the trial judge made certain facial expressions during the trial that

were prejudicial to Petitioner’s case and denied him his constitutional right to a fair trial. Petitioner

offers no proof in support of his argument. The trial transcript shows that trial counsel, out of the

presence of the jury, stated that the trial judge made a facial expression while ruling on a matter of

evidence. Trial counsel was not sure if the jury saw the facial expression, but felt it was prejudicial

nonetheless and deprived Petitioner of his right to a fair trial. The trial court allowed counsel’s

statement for the record, but did not comment on any potential prejudice and stated that the record

would speak for itself. The court later instructed the jury that its rulings on matters of evidence were

not a reflection of the court’s opinions about the facts of the case or what the jury’s verdict should

be. The post-conviction court found no basis for this allegation of prejudice and stated that “the

record of the testimony adequately indicates that the Court was correcting trial counsel after the

Court had made a ruling and trial counsel was continuing to argue his point.” In any event, the court

found that the issue was waived because Petitioner had failed to properly raise it on direct appeal and

it was not proper in a petition for post-conviction relief. We see nothing in the record to

preponderate against the findings of the post-conviction court. Petitioner is not entitled to relief on

this issue.

F. Compromised Verdict

Petitioner next argues that the jury reportedly reached a compromised verdict. Once again,

Petitioner offered no proof at the post-conviction hearing to support this contention. The post-

conviction court found no evidence of a compromised verdict at the hearing or in the trial record.

To the contrary, the post-conviction court found that the jury was polled regarding the verdict, and

the verdict was unanimous. The post-conviction court cited to the following portion of the

transcript:

THE COURT: Has the jury reached a verdict?

JUROR: Yes, sir.

THE COURT: If you would, would you pass it up here, please, ma’am? All

right, the jury verdict form reads as follows: “We, the jury,

find as follows: Guilty of second degree murder.”

Is this the decision of each and every one of you? If it is,

would you raise your right hand? Let the record show that it’s

a unanimous decision from the jury.

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Is there anything that we need to do now before we dismiss

the jury?

[TRIAL COUNSEL]: No, Your Honor.

[PROSECUTOR]: No, Your Honor.

It is clear from the transcript that the jury’s verdict was unanimous. We therefore conclude

this issue is without merit. Petitioner is not entitled to relief.

CONCLUSION

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

___________________________________

THOMAS T. WOODALL, JUDGE

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