Gary Randall Yarnell v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 22, 2005

GARY RANDALL YARNELL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Blount County

No. C-11964 D. Kelly Thomas, Jr., Judge

No. E2004-01762-CCA-R3-PC Filed August 15, 2005

Gary Randall Yarnell, the petitioner, appeals the Blount County Circuit Court’s denial of his petition

for post-conviction relief. The lower court found his allegations of ineffective assistance of counsel

and unknowing and involuntary guilty pleas unsupported by the evidence and denied relief. Because

we are unpersuaded of error, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and

JERRY L. SMITH , JJ., joined.

Robert M. Cohen, Maryville, Tennessee, for the Appellant, Gary Randall Yarnell.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;

Michael L. Flynn, District Attorney General; and Rocky Young, Assistant District Attorney General,

for the Appellee, State of Tennessee.

OPINION

In 1998, the petitioner pleaded guilty to first degree murder, especially aggravated

robbery, and especially aggravated burglary. He received concurrent sentences of life imprisonment

with the possibility of parole, 15 years, and 12 years respectively. From the record, we glean that

his convictions stemmed from the 1996 baseball-bat bludgeoning death of Steven Mote. The

victim’s body was stuffed into the trunk of his own vehicle, and that vehicle was driven to a secluded

area of Douglas Lake and set on fire.

The TVA Police unit on duty at Douglas Lake was dispatched to the scene of the fire.

The record before us contains a TVA Police Uniform Incident Report in which the following details

appear:

INITIAL OBSERVATIONS OF OFFICER LOVIN:

On 10/15/96, at approximately 0732 hours, while in route to the fire

scene, I observed a white male, later identified as [the petitioner],

walking on Highway 338 in Sevier County near the scene. [The

petitioner] was dressed in brown or light black dress pants, a buttonup

shirt, a cap, and brown or black dress shoes. [The petitioner] stated

that he was going to work, and that he worked at Tennessee Cylinder

Head, on Chapman Highway, in Knoxville. I ask[ed] where he had

been. [The petitioner] stated that he had stayed with his brother the

night before, who he said lived just across the hill, and had gotten up

early to go meet his girlfriend. [The petitioner] stated that his

girlfriend was supposed to pick him up. [The petitioner] stated that

she had not show[n] up, so he decided to walk down the road to see

if he could find her anywhere. [The petitioner] stated that he was

going to the Lakeway Market to call his sister and have her come and

take him to work, if he could not find his girlfriend. Knoxville

Communications verified that there were no wants or warrants on [the

petitioner]. After this, I proceeded to the scene of the fire.

....

After the investigators took over the crime scene, Capt. Majors

informed me to go back to where I had seen [the petitioner]. I was

advised to locate[ and] to bring [the petitioner] back to the scene. I

was unable to locate [the petitioner] in the area of Douglas Dam. I

proceeded to [the petitioner’s] residence, . . . [and w]hile at the

residence, I spoke with [the petitioner’s] mother . . . [who] admitted

that her son had called her this morning, around 0800 hours from the

Lakeway Market in Sevier County. She advised me that her son told

her that he had called his sister to come to pick him up and that his

sister was on her way.

Eventually, law enforcement officers located the petitioner, and he gave an

inculpatory statement to the police implicating himself and a female companion, Candace McCarter,

in the robbery and murder of the victim. The petitioner admitted to the police that he struck the

victim with a bat, but the petitioner maintained that he did not mean to kill the victim. Based on the

circumstances of the homicide, the state initially sought the death penalty but later agreed to

withdrawn its notice in exchange for the petitioner’s plea.

Slightly less than one year after entry of his guilty pleas, the petitioner filed a pro se

petition for post-conviction relief. Thereafter, the petition was amended several times, and five

different attorneys were appointed to represent the petitioner, four of whom were permitted to

withdraw. An evidentiary hearing was conducted on May 13 and 14, 2004; the litigated issues were

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ineffective assistance of counsel, involuntary guilty pleas, prosecutorial misconduct, illegal

confession, and lack of culpable mental state.

At the post-conviction hearing, the petitioner’s lead trial counsel testified about his

appointment to represent the petitioner. Inasmuch as the state was seeking the death penalty, defense

co-counsel was also appointed to work on the case. Lead counsel was asked about the initial stop

of the petitioner on Highway 338, near the fire scene. Trial counsel had not filed a pretrial motion

challenging the stop as illegal, and lead counsel testified that he saw no basis to attack the stop

inasmuch as the encounter took place in a public place and no seizure occurred.

Lead counsel had filed a pretrial motion to suppress the statements that the petitioner

gave to law enforcement officers. The motion alleged that the petitioner was first interviewed on

May 15, 1996, and that during the interview he requested that counsel be present during any further

questioning. The petitioner provided the name of his attorney, and because the petitioner could not

reach his attorney, the interview concluded at that time. According to the suppression motion,

approximately three days later, an officer contacted the petitioner directly and requested that the

petitioner go to the Blount County Sheriff’s Department to be photographed and provide fingerprints.

The request, the motion alleged, was a ruse to interview and obtain evidence from the petitioner

without the presence of counsel, and indeed, the petitioner ultimately made inculpatory statements

to the officers without the benefit of counsel. Lead counsel testified that part of the plea agreement

with the state required the defense to withdraw that motion; consequently, the suppression motion

was never litigated.

Regarding investigation into the petitioner’s culpable mental state, lead counsel

acknowledged that no mental evaluation was performed. He recalled, however, that co-counsel

contacted an expert on the effects of marijuana and other intoxicants to explore a possible defense.

The facts, however, appeared to show considerable deliberation and activity, including clubbing the

victim, stealing his property, loading up the victim’s car and placing the victim’s body in the trunk,

driving to another county, and setting the car on fire. As a result, lead counsel was not convinced

that voluntary intoxication was a viable defense. Likewise, lead counsel did not believe that it was

possible to successfully argue criminally negligent homicide to a jury. Even so, lead counsel

specifically recalled discussing lesser included offenses with the petitioner, although counsel was

not encouraging about the prospect of a lesser included offense conviction.

Lead counsel was shown a copy of an undated statement handwritten by a female who

was an inmate at the Blount County Jail at the same time the petitioner’s female co-defendant was

detained. The writer reports that on September 1, 1997 – before the petitioner pleaded guilty – co-

defendant, Candace McCarter, made sexual advances toward the writer, assaulted the writer, and

admitted holding the baseball bat and killing the victim. Lead counsel could not recall ever receiving

that exculpatory statement from the state. Had counsel been aware of the statement, counsel said

that he would have discussed it with the petitioner and could have used it to impeach the co-

defendant had she testified.

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The state’s death penalty notice had cited three aggravating circumstances: that the

murder was especially heinous, atrocious, or cruel; that the murder was knowingly committed during

the perpetration of enumerated felonies; and the body of the victim was knowingly mutilated after

death. Lead counsel testified that he had not filed any motions attacking the aggravating factors as

unconstitutionally vague.

The petitioner, who was 23-years old when the victim was killed, testified about being

stopped by the TVA officer as he was walking down the road near Douglas Dam. The officer drove

past the petitioner but then turned around and stopped where the petitioner was standing. According

to the petitioner, the officer “got out of the vehicle and patted [him] down and asked for [his] I.D.”

The petitioner did not have a driver’s license, but he supplied his name and address. The officer

“phoned” in the information and asked where the petitioner had been. The petitioner told the officer

that he had spent the night at his brother’s house and was walking to Lakeway Market. The officer

told the petitioner to stay where he was until the information was checked. The petitioner estimated

that the officer detained him “about five minutes.”

The petitioner’s next contact with law enforcement was later that night when several

officers came to his mother’s house and questioned him about Candace McCarter. At the officers’

request, the petitioner drove to the TBI office to discuss the matter further. The petitioner said that

at a certain point, he told the officers he was uncomfortable and wanted his attorney present. The

petitioner was unable to reach his attorney that evening, and he left the TBI office with the agreement

that he would contact the officers after he had spoken with his attorney. The following day, the

petitioner learned that his attorney was out of town and would not return for several days. The

petitioner then called one of the officers to advise that his attorney was out of town but that the

petitioner would ask the attorney to call the officers when he returned.

Two days later, one of the investigators first contacted the petitioner’s mother and

later the petitioner to ask that he provide his fingerprints and be photographed. The petitioner was

at work and told the investigator that he had no transportation, whereupon the investigator arranged

for transportation. During that meeting, the petitioner gave a statement to one of the investigators.

The petitioner agreed that counsel had filed a motion to suppress that statement.

The petitioner testified that he and counsel had several discussions about pleading

guilty to avoid the death penalty. The petitioner rejected the idea of pleading and agreeing to a

sentence of life without the possibility of parole. When, however, an offer was made involving a

sentence of life with the possibility of parole, the petitioner, the petitioner’s family members, and

counsel met to discuss the offer. The petitioner said that he asked counsel about lesser included

offenses to which counsel responded that “there is no need to worry about a lesser-included offense

because there is no way we can keep you from death row.” Counsel showed the family members

photographs of the victim and the crime scene. The petitioner said that the pictures profoundly

affected his family. In addition, counsel told the petitioner that the co-defendant McCarter was

considering a plea offer involving testifying against the petitioner.

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At the time of the plea discussions, the petitioner had been in pretrial confinement

for almost two years. He testified that he had become depressed and had suicidal thoughts. The

petitioner claimed that when he mentioned a psychological evaluation, counsel resisted the idea on

the basis that the petitioner was “competent.” Because of his depression, the petitioner said that his

plea was not knowing or voluntary. Furthermore, he maintained that counsel never discussed or

explained to him the requirements that first degree murder be intentional and premeditated. As for

witnesses who may have heard the co-defendant admit to killing the victim, the petitioner said that

counsel never advised him of such individuals.

The final post-conviction witness was Detective James Widener, who participated

in the homicide investigation. He described the murder scene and the area of Douglas Lake where

the vehicle was set on fire. He also was asked about the evidence in the case and about the

inculpatory statement the petitioner had given to the officer.

From the evidence and testimony presented, the post-conviction court made the

following findings: (1) Trial counsel were not ineffective for failing to challenge the officer’s stop

of the petitioner in the vicinity of the fire inasmuch as no legal basis existed to contest the brief

investigatory stop; (2) the state’s failure to disclose exculpatory evidence regarding the statement of

the inmate to whom co-defendant McCarter had confessed to the homicide did not adversely impact

the outcome of the trial; (3) had the motion to suppress the petitioner’s statement been pursued, it

would not have been successful because the statement was voluntarily made after the petitioner had

initiated a conversation with law enforcement; (4) the petitioner failed to demonstrate that he was

suffering from any mental or cognitive problems that undermined the voluntariness of his guilty plea;

(5) the evidence refutes the petitioner’s claim that drug and alcohol use and depression rendered him

incapable of intentional, premeditated homicide; and (6) the threat of receiving the death penalty

would not have abated even had one of the statutory aggravators been successfully challenged.

Accordingly, the post-conviction court dismissed the petition.

In post-conviction proceedings, the petitioner has the burden of proving by clear and

convincing evidence the claims raised. Tenn. Code Ann. § 40-30-110(f) (2003). On appeal, the

lower court’s findings of fact are reviewed de novo with a presumption of correctness that may only

be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

When a petitioner challenges the effective assistance of counsel, he has the burden

of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel’s services fall below

the range of competence demanded of attorneys in criminal cases. Bankston v. State, 815 S.W.2d

213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for deficient

representation, the outcome of the proceedings would have been different. Overton v. State, 874

S.W.2d 6, 11 (Tenn. 1994). When it is alleged that the ineffective assistance of counsel resulted in

a guilty plea, the burden is upon the defendant to establish the prejudice prong of Strickland by

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proving that “there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.

Ct. 366, 370 (1985). On review, there is a strong presumption of satisfactory representation. Barr

v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). If prejudice is absent, there is no need to

examine allegations of deficient performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Two of the petitioner’s complaints relate to pretrial motions that he insists should

have been filed and/or litigated before a plea agreement was reached. First, the petitioner assails trial

counsel’s performance in not raising the legality of the investigatory stop by Officer Lovin; second,

the petitioner argues that trial counsel was ineffective in failing to pursue the motion, which had been

filed, to suppress the petitioner’s incriminating statements to law enforcement. To prevail on either

or both of these ineffective-assistance complaints, the petitioner must demonstrate that the motions

were meritorious. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583 (1986)

(where failure to litigate suppression is basis of ineffectiveness claim, defendant must also prove

suppression motion is meritorious).

We review de novo the post-conviction court’s legal conclusion that no basis in the

law existed to challenge Officer Lovin’s stop. See Fields, 40 S.W.3d at 458. The petitioner, we

note, seemingly frames the issue in terms of whether a “seizure” occurred when he was stopped.

However, even if the petitioner was constitutionally “seized,” the matter does not end. He must

further demonstrate prejudice in the post-conviction context by proving that the “seizure” was

unreasonable.

When a police officer’s interaction with a citizen impermissibly intrudes upon the

privacy or personal security of the citizen, it violates the Fourth Amendment to the United States

Constitution and Article 1, section 7 of the Tennessee Constitution. Not every encounter between

police officers and citizens is a “seizure,” however. State v. Randolph, 74 S.W.3d 330, 338 (Tenn.

2002). A seizure occurs only when an officer restrains the liberty of an individual by means of

physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16

(1968). The courts have recognized three distinct types of police-citizen interactions: (1) a full scale

arrest supported by probable cause; (2) a brief investigatory detention supported by reasonable

suspicion; and (3) a brief police-citizen encounter, which requires no objective justification. State

v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000).

A law enforcement officer does not violate the Fourth Amendment by merely

approaching a person in a public place and posing a question. United States v. Drayton, 536 U.S.

194, 200, 122 S. Ct. 2105, 2110 (2002). Even if an officer has no basis for suspecting a crime is

being committed, he or she may pose questions or ask for identification, provided he or she does not

induce cooperation by coercive means. Id., 122 S. Ct. at 2110; see Daniel, 12 S.W.3d at 425. To

determine if an interaction between an officer and an individual is a seizure or a consensual

encounter, the court must consider all the surrounding circumstances and ascertain whether the

“police conduct would have communicated to a reasonable person that the person was not free to

decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S.

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429, 439, 111 S. Ct. 2382, 2389 (1991).

In this case, from Officer Lovin’s account of the encounter, we discern that he

stopped the petitioner in a public place on Highway 338 near the fire scene, inquired where the

petitioner had been and where he was going, obtained personal identification information from the

petitioner, checked the information, and then proceeded to the scene of the vehicle fire. According

to the petitioner’s testimony, the encounter lasted “about five minutes,” during which time he was

“patted down,” asked for identification, asked where he had been and where he was going, and was

told to “stay” until the information was verified.

In our opinion, it is unnecessary to engage in a protracted analysis whether the

encounter constituted a brief investigatory detention or a brief police-citizen interaction. Even

viewed as a brief investigatory detention, Officer Lovin acted reasonably. Officer Lovin encountered

the petitioner in the vicinity of the vehicle fire. The petitioner was wearing “dress pants,” a

“buttonup shirt,” and “dress shoes,” and he claimed to be headed to work at Tennessee Cylinder

Head on Chapman Highway. Under the circumstances, Officer Lovin acted reasonably in asking for

identification and detaining the petitioner no longer than necessary to verify the information. See

State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (detention of the person must last no longer than

necessary to effectuate the purpose of the stop). Moreover, it plainly appears that Officer Lovin

employed the least intrusive means reasonably available to investigate his suspicions in a short

period of time, after which the detention promptly terminated. See Florida v. Royer, 460 U.S. 491,

500, 103 S. Ct. 1319, 1325-26 (1983). Consequently, we agree with the post-conviction court that

Officer Lovin’s stop of the petitioner could not have been successfully challenged had a suppression

motion been filed; therefore, the petitioner failed to sustain his claim of ineffective assistance of

counsel on this basis.

Finally, on this claim we are at a loss to discern how a successful suppression motion

would have benefitted the petitioner. No evidence was discovered or seized from the petitioner

during his encounter with Officer Lovin. The petitioner’s incriminating statements were not made

until several days after the encounter with Officer Lovin; the intervening events would have purged

or attenuated any illegal detention. See State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). As for

Officer Lovin learning the petitioner’s identity, the record shows that other investigative efforts

underway would inevitably have led law enforcement to the petitioner via the co-defendant

McCarter. See Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984).

Regarding the motion that was filed to suppress the petitioner’s incriminating

statements, the petitioner, likewise, has not shown that trial counsel was ineffective in failing to

pursue the motion. First, the petitioner has not demonstrated that counsel’s actions were objectively

unreasonable – that is, outside the range of competence demanded of attorneys in criminal cases.

Lead counsel testified that the plea agreement required that the suppression motion be abandoned

in exchange for the state withdrawing its request for the death penalty. Trial counsel’s concerns that

the state would likely obtain the death penalty if the case proceeded to trial were obviously valid, and

the state could properly insist on withdrawal of the suppression motion as a condition of avoiding

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the death penalty.

Second, the petitioner has not demonstrated that he would have prevailed on the

suppression motion. The post-conviction court found that “[t]he facts in the present case establish

that [the petitioner], not Officer Widener[,] initiated the discourse and that Widener told [the

petitioner] of his right to have his lawyer present.” That finding, which is entitled to a presumption

of correctness, see Fields, 40 S.W.3d at 450, satisfies the legal requirement that once a suspect

makes an unequivocal request to deal with the police only through counsel, the subject may not be

further interrogated until counsel has been made available, unless the suspect “initiates further

communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,

485, 101 S. Ct. 1880, 1885 (1981).

The petitioner’s assault on counsel’s effectiveness in failing to challenge the

“especially heinous, atrocious, or cruel” death penalty aggravating factor gains no momentum on

appeal. As the post-conviction court noted, eliminating one of the state’s noticed aggravating

sentencing factors would not have removed the threat that the petitioner could receive the death

penalty. Prejudice, therefore, has not been shown. Furthermore, we are not convinced that a

constitutional vagueness challenge to Tennessee’s current or former version of the “heinous,

atrocious, or cruel” aggravating circumstance would necessarily succeed. See Bell v. Cone, ___ U.S.

___, ___, 125 S. Ct. 847, 854-55 (2005) (narrowing construction of the aggravator that Tennessee

Supreme Court applied in State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), was not unconstitutionally

vague).

The petitioner’s argument that his guilty pleas were not knowingly, voluntarily, or

intelligently entered, likewise, fails. Certainly, due process demands that a guilty plea be entered

voluntarily, knowingly, and understandingly. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.

Ct. 1709, 1711-13 (1969). A plea is involuntary if the accused is incompetent or “only if it is the

product of ‘ignorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant

threats.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at

242-43, 89 S. Ct. at 1712). A defendant’s testimony at a plea hearing that his or her plea is voluntary

is a “formidable barrier in any subsequent collateral proceedings” because “[s]olemn declarations

in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.

Ct. 1621, 1629 (1977).

Nothing in the transcript of the petitioner’s plea submissions suggests that he was

incapable of rationally weighing the advantages of pleading guilty versus proceeding to trial. In

addition, other than the petitioner’s self-serving testimony regarding his depression, he offered no

independent corroboration that he was incapable of making a rational decision.1 The post-conviction

1

To the extent that the petitioner is also claiming that trial counsel were ineffective in failing to obtain a

psychological evaluation or to recruit expert testimony to negate premeditation, the petitioner has failed to demonstrate

what a psychological evaluation or expert testimony would have uncovered, and he has not demonstrated that a

reasonable probability exists that, “but for counsel’s errors, he would not have pleaded guilty and would have insisted

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court accepted, as reasonable, the petitioner’s claim that he was depressed, but it correctly assessed

that claim as inadequate, without more, to prove that his guilty pleas were involuntary. We agree.

The last matter concerns the state’s failure to provide to the petitioner the exculpatory

evidence that co-defendant McCarter had confessed to killing the victim. The post-conviction court

found that the state had withheld exculpatory evidence but that the outcome of the proceeding was

not affected.

In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the Supreme Court held

that “suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; see also Hartman v.

State, 896 S.W.2d 94, 101 (Tenn. 1995). In order to establish a due process violation under Brady,

four prerequisites must be met: (1) the defendant must have requested the information (unless the

evidence is obviously exculpatory, in which case the state is bound to release the information,

whether requested or not); (2) the state must have suppressed the information; (3) the information

must have been favorable to the accused; and (4) the information must have been material. State v.

Edgin, 902 S.W.2d 387, 389 (Tenn. 1995).

The burden of proving a Brady violation rests with the defendant, and the violation

must be proven by a preponderance of the evidence. Id. When determining the materiality of

undisclosed information, a reviewing court must assess whether “in [the] absence [of the

information, the defendant] received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1556 (1995). In other words,

evidence is considered material only if there is a reasonable probability that had the evidence been

disclosed to the defense, the results of the proceeding would have been different. Edgin, 902 S.W.2d

at 390-91.

We agree with the post-conviction court’s assessment that the evidence does not

satisfy the materiality prong of Brady. The petitioner has failed to show how the statement would

have led to a reasonable probability that either he would not have pleaded guilty or that he would

have obtained a more favorable plea agreement. The state’s theory that both the petitioner and

McCarter were intimately involved in the homicide was no secret, and both subjects had criminal

responsibility for the victim’s death. Accordingly, we conclude that the petitioner is entitled to no

relief on this ground.

For the foregoing reasons, we conclude that none of the petitioner’s claims merits

relief. Accordingly, the judgment of the post-conviction court is affirmed.

on going to trial.” Hill, 474 U.S. at 59, 106 S. Ct. at 370; see also Walton v. State, 966 S.W .2d 54, 55 (Tenn. Crim. App.

1997).

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____________________________________

JAMES CURWOOD WITT, JR., JUDGE

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