Maurice Pierre Teague v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 8, 2002 Session

MAURICE PIERRE TEAGUE v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Carroll County

No. 98CR-1212 Julian P. Guinn, Judge

No. W2001-00533-CCA-R3-PC - Filed February 26, 2002

The petitioner was convicted of possession of a controlled substance with intent to sell, and his

conviction was affirmed on direct appeal. In his petition for post-conviction relief, he asserted that

trial counsel was ineffective. The post-conviction court dismissed the petition, following a hearing.

We affirm the order of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G. RILEY,

JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Maurice Pierre Teague.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;

Robert G. Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner was convicted in the Carroll County Circuit Court of possession of a

controlled substance with intent to manufacture or sell and sentenced as a Range I standard offender

to confinement for ten years and a fine of $10,000. The conviction was affirmed upon direct appeal

to this court, and application for permission to appeal was denied. See State v. Maurice Pierre

Teague, No. 02C01-9806-CC-00187, 1999 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Feb.

26, 1999), perm. to appeal denied (Tenn. July 12, 1999). Subsequently, he filed a petition for post-

conviction relief, claiming that trial defense counsel was ineffective in the following ways:

I. Failing to interview and/or properly prepare witnesses;

II. Failing to investigate and/or subpoena and/or call needed or

desired witnesses;

III. Failing to call and impeach or implicate adverse witnesses,

accomplices or co-defendants;

IV. Failing to request/move for separate trials to timely allow

codefendant testimony, or impeachment and implication by Fifth

Amendment plea;

V. Failing to make/request discovery, or make/request effective

discovery;

VI. Failing to fully advise Petitioner of potential

charges/convictions/sentences so that Petitioner cold evaluate benefits

of negotiated guilty plea compared to hazards of unsuccessful trial;

VII. Failing to advise legal ramifications and trial impact of co-

defendant status, guilty pleas and sentences; and

VIII. Failing to advise of legal ramifications and trial impact of

agreeing to stipulations as to drug amount and/or not so stipulating. 1

Based upon our review, we affirm the judgment of the post-conviction court.

In our opinion following the direct appeal of the petitioner’s conviction, the evidence was

set out:

On the afternoon of October 16, 1997, Sergeant Johnny Hill of

the Huntingdon Police Department received information regarding

drug activity at a mobile home on Highway 22 South in Huntingdon.

As a result of this information, the officer believed LaVeta King and

Maurice Pierre Teague were in possession of drugs and their names

were listed on a search warrant. Officer Hill had observed the

appellant at this residence upon previous occasions. Thereafter, the

officers observed the home for four hours before executing a search

warrant upon the residence of LaVeta King. During this four hour

period, the officers maintained surveillance of the only access road

leading to her residence. They observed no vehicles traveling the

road. Upon executing the warrant, Officer Kevin Brown of the

Carroll County Sheriff’s Office entered the residence first. Sergeant

Hill followed closely behind.

1

Since Issues IV and V are not discussed in the appellate brief, they are waived. See Tenn. R. App. P. 27;

Tenn. Ct. Crim. A pp. R. 10(b).

-2-

Upon entering the residence, the officers discovered three

people in the living room including LaVeta King. Officer Brown

proceeded to process those individuals. Officer Hill immediately

went toward the bedroom to the right. The appellant was standing in

the door of the bedroom just three feet away from the bed. Two other

men, Lawrence Sherrill and Danny Ellis, were in the same room.

Officer Hill observed money totaling $330 and two pagers on the bed.

Three other pagers, a loaded pistol, ammunition, and several items of

male clothing were also found elsewhere in the residence. All of

these items remain unclaimed. The three men, including the

appellant were searched. The officer removed a rock of crack cocaine

weighing approximately one-tenth of a gram from the hand of the

appellant and also removed money from his pockets. After searching

the room, “immediately under the bed by where Mr. Teague

[appellant] was standing there was a plate ... [containing]

approximately twenty-two grams of crack cocaine.” The plate

contained one large rock of cocaine and several smaller rocks. It

appeared to the officer to have been pushed under the bed hurriedly

because other smaller rocks were recovered from the floor beside the

plate. The appellant was the only person in the residence with

cocaine found on his person. Officer Hill estimated the street value

of the cocaine to be between four and six thousand dollars.

Following the proper procedures for chain of custody, a forensic

scientist with the TBI identified the substances turned over to her as

cocaine.

The defense called Aaron Dudley, Jr., the uncle of the

appellant. Dudley stated that on the date of the offense that the

appellant lived with him in McKenzie. Upon cross-examination,

Dudley testified that the appellant stayed with him “off and on.” The

appellant spent a considerable amount of nights away from his

uncle’s home. He was aware that the appellant and King had

maintained a relationship with each other prior to this incident.

Dudley was impeached with a prior conviction of sale of cocaine.

LaVeta King testified that she and the appellant were no longer

romantically involved on the date of this occurrence. She stated that

the appellant was at her residence “every now and then.” When the

police arrived, she was sitting on the couch in the living room. The

appellant was in the bedroom located adjacent to the living room.

King never saw the appellant selling any drugs. Upon

cross-examination, King stated that Casey Scott was living with her

at the time. She acknowledged that men’s clothing was found in her

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residence, however, she did not know to whom it belonged. She

stated that the appellant had only been at her mobile home five or ten

minutes when the police arrived with the warrant. She did not know

how he arrived at her home. She had no idea what the men were

doing in her bedroom for thirty minutes nor did she know anything

about the large amount of crack cocaine, pagers, or money found

therein. She admitted that she had previously pled guilty to a charge

in this case.

Kenneth Sherrill, a friend of the appellant, testified that he was

one of the six people arrested at King’s home that evening. He had

also previously pled guilty to charges arising from this occurrence.

He reiterated that the appellant lived with his uncle. He never saw the

appellant sell any drugs. He stated that he had only been at King’s

residence for three minutes when the police arrived. When the police

entered he was in the living room visiting with King. He was

unaware that his brother Lawrence Sherrill was there until the police

brought him out of the bedroom.

The appellant testified that he had never lived with King. At

the time of the arrest, he and King were “broken up.” He stated that

[he] would visit her once or twice a week and spent the night there

“sometimes.” He provided that he never kept any clothing or

personal effects at her residence. He testified that Ellis was returning

King’s car and he went along for the ride to see Lawrence Sherrill.

He admitted to buying a rock of crack cocaine for $15 while in the

bedroom. While he admitted to misdemeanor possession of cocaine,

he denied selling cocaine or any knowledge of the large rock of

cocaine under the bed. He denied that the money and pagers on the

bed belonged to him.

The State impeached the appellant with two prior convictions

including a theft of property and an aggravated burglary. The

appellant admitted to driving King’s car after their relationship had

ended. Furthermore, he admitted that he had several girlfriends and

would stay with each of them. He stated that he worked for Republic

Doors from August until September, however, he was unemployed

during the month of October. He related that his mother, uncle, and

girlfriends provided financial support for him throughout this period.

The appellant stated that he bought the rock of crack cocaine from

Lawrence Sherrill and that he and Ellis were going to share it.

Teague, 1999 Tenn. Crim. App. LEXIS 174, at *1-7 (footnote omitted).

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ANALYSIS

In order to determine the competence of counsel, Tennessee courts have applied standards

developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)

(noting that the same standard for determining ineffective assistance of counsel that is applied in

federal cases also applies in Tennessee). The U.S. Supreme Court articulated the standard in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is widely

accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s assistance

was defective. The standard is firmly grounded in the belief that counsel plays a role that is “critical

to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The

Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient

performance” in the first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable

considering all the circumstances. . . . No particular set of detailed

rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.” House v. State,

44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show

that there is 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a

reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been

different”).

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Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,

104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of

proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-

210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,

therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-

206(d) (1997).

We note that when post-conviction proceedings have included a full evidentiary hearing, as

was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and

weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we

conclude that the evidence contained in the record preponderates against the judgment entered in the

cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must

indulge a strong presumption that the conduct of counsel falls within the range of reasonable

professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-

guess the tactical and strategic choices made by trial counsel unless those choices were uninformed

because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact

that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective

assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).

Finally, a person charged with a criminal offense is not entitled to perfect representation. See

Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6

S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be

perfectly reasonable under the facts of another.”

Trial defense counsel presented three witnesses, in addition to the petitioner. Aaron Dudley,

Jr., testified that the petitioner did not live at the place where he was arrested. LaVeta Shanelle

King, who lived in the house where the arrest occurred, testified that the petitioner did not live there,

and Kenneth Edward Sherrill also testified that the petitioner did not live at the place where he was

arrested. At the post-conviction hearing, the petitioner testified that he had requested his trial

counsel to call Danny Ray Ellis and Lawrence Sherrill as witnesses at the trial. Both of these

witnesses testified at the post-conviction hearing.

Danny Ray Ellis testified at the hearing that he had been arrested at the same time as the

petitioner and had later pled guilty to “possession of drugs with the intent to sell or manufacture.”

He said that he had been one of the two other persons in the room with the petitioner at the time of

the arrest, and that the petitioner was there to buy drugs for his personal use. He said that he had

neither been interviewed nor called to testify by trial defense counsel but that, if he had, his

testimony would have been as he had testified at the post-conviction hearing.

During cross-examination, Ellis testified that he had also gone to the trailer to buy drugs and

gave his assent after being asked if he was buying drugs from the petitioner’s girlfriend, LaVeta

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King. When asked by the court whom the drugs belonged to, Ellis said that “[i]t could have been

several people.” As for whom he paid for the drugs, Ellis testified, “I didn’t pass any money at the

time.” He said that he did not see the petitioner pay anyone.

Lawrence Sherrill testified at the post-conviction hearing that he had been in the bedroom

of the trailer where he was arrested with the petitioner and Danny Ray Ellis. He said that he had pled

guilty to felony possession of cocaine. He testified that the petitioner had bought from him a $20

rock of cocaine, which was a small amount, and that the rest of the cocaine in the room belonged to

him. When asked if he had been interviewed by the petitioner’s trial counsel, he responded, “Naw,

not that I know of.” However, he said that he would have testified if a subpoena had been served

on him. He said that, at the time of the arrest, he had not been asked whom the cocaine belonged

to. He said that, in addition to his conviction for possession of cocaine occurring at the same time

the petitioner was arrested, he also had been convicted of introducing contraband into a penal

institution.

Trial defense counsel testified at the post-conviction hearing that he had discussed trial

strategy with the petitioner, including whom to call as witnesses. They decided to call Dudley to

establish that the petitioner was neither the owner nor the renter of the residence. LaVeta King was

called to testify to show that she lived at the residence and the petitioner did not, and, further, that

she did not see the petitioner with cocaine on the day of his arrest. Counsel said that he and the

petitioner had discussed calling Kenneth Sherrill as a witness and that he had been called to “state

the facts,” counsel believing that he would communicate well to the jury.

Counsel believed that he and the petitioner had discussed whether to call Danny Ray Ellis

and Lawrence Sherrill as witnesses, and they considered the effect of the criminal record of each.

He said that they had discussed the effect of presenting too many witnesses and problems resulting

from a “bunch of witnesses who either can’t communicate or cannot believably describe the

situation, or have, maybe have, a long record, that a jury may not connect with them.”

He said that he could not remember, for certain, whether he had interviewed Danny Ray Ellis

but believed that he had interviewed Lawrence Sherrill, and said that he had known him before. He

said that he had known Ellis and Sherrill had pled guilty to charges against them as the result of the

incident when the petitioner was arrested. The petitioner had the final voice as to whom would be

called as a witness in his behalf. But, his trial counsel did not feel that Lawrence Sherrill would

make a good witness:

I had recommenced that we not use Lawrence Sherrill. I ah,

Lawrence Sherrill, to me, would not have made a good witness. He

comes across in a manner that ah, to me doesn’t connect with a jury.

And of course, like I said, everything that we did was based on our

corroboration. We talked together, and we decided who to call. And

Lawrence Sherrill would not have made a good witness, I don’t – I

still believe that.

-7-

Counsel said that he and the petitioner had talked about the fact that, since Ellis and

Lawrence Sherrill had pled guilty to felony possession of cocaine, the jury might believe that the

drugs belonged to them if, apparently, they testified. However, counsel explained that “credibility

of witnesses . . . played a big role in our decision[.]” He said that Lawrence Sherrill came across

“rather smart aleck,” that he “smiled a lot and joked,” and that he “came across, always, as a

jokester.” Counsel said he was “sure” that he had asked Lawrence Sherrill if the bulk of the cocaine

was his, and that Sherrill’s response was consistent with their defense, that the petitioner had come

to the trailer only to purchase drugs. He said that although it was possible that the jury would have

found Ellis and Sherrill credible, he thought it was a “very, very slight possibility,” and that, in

presenting numbers of witnesses, “sometimes less is better than more.” He disagreed that the

petitioner had asked that Lawrence Sherrill be called as a witness, saying that of those persons whom

the petitioner wanted to testify, only Danny Ray Ellis was not called.

A letter which the petitioner had sent to counsel, and which was dated April 4, 1998, was

made an exhibit to counsel’s testimony. In the letter, the petitioner had set out whom he wanted to

testify and what he expected the testimony of each to be:

LaVeta King This is my ex-girlfriend whose residence it was and

who sent for me to come and pick up my clothes. I feel she can tell

you whose drugs was found.

Kenneth Sherrill This is who said that the firearm that was found

belonged to him.

Danny Ray Ellis This is who my ex-girlfriend sent to pick me up

from my resident [sic] in McKenzie [and] I believe he knows to

whom the drugs belong also.

Arron [sic] Dudley This is who I live with and he can confirm that

I was at home all that day until Danny pick [sic] me up shortly before

the raid.

As for presenting Aaron Dudley, whose trial testimony the petitioner criticized at the post-

conviction hearing, trial counsel said, apparently, that he had talked “briefly” with Dudley and

interviewed him on the telephone. He did not believe that he was aware of Dudley’s felony cocaine

conviction. Counsel agreed that it might have been better to call the petitioner’s aunt as a witness,

rather than his uncle, but they had never talked about calling the aunt, and counsel had “called the

witnesses that [he and the petitioner] had discussed.”

Counsel explained why Kenneth Sherrill had been presented as a witness:

The main reason was that Mr. Sherrill, at the time, he was

present, ah, he could speak well. He had a good command of the

language. He was there; he knew, and told me that he knew, that he

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never saw Mr. Teague with any cocaine. That was a large amount of

cocaine. Ah, someone present at the home, ah, surely would have

noticed, or we would have liked the jury to think, that they would

have noticed someone bringing that in the house.

Also, at the time, well prior to that, there was also a gun charge

that was subsequently dropped, before the trial. And Mr. Sherrill had

told me that he knew that that wasn’t Mr. Teague’s gun. And so, he

had ah, facts that he knew, and he was present. And he presented

himself well, and we just needed a good witness.

Regarding a possible plea agreement by the petitioner to the charges, counsel said that he had

“wanted to negotiate,” but that “Mr. Teague wouldn’t negotiate, because he said he was on probation

and would be violated if he pled guilty. So basically ah, entering into a plea, in his mind was out

of the question.” Counsel said he believed that a plea agreement for the petitioner “would have been

very similar” as that offered to the other defendants, but that he had not discussed it “for a great

length of time with the DA” because the petitioner “was adamant that he couldn’t plead, because he

was on probation.”

Trial counsel said that he had not filed a motion to suppress the evidence seized at the trailer

because, since the petitioner did not live there, he did not have standing to raise such a motion. He

said that he was “sure” he had told the petitioner that he did not know the identity of the informant

for the search warrant.

Following the hearing on the petition for post-conviction relief, the court entered written

findings of fact and conclusions of law:

The petitioner seeks to set aside his conviction for possession

of cocaine in excess of .5 grams with the intent to sell upon the

grounds of ineffective assistance of counsel. This court finds no

grounds for relief.

Following sentencing an appeal was pursued upon the sole

issue of sufficiency of the evidence. The conviction was affirmed on

February 26, 1999.2 Petitioner now raises the same issue, but couches

it in such language as to charge trial counsel with ineffectiveness.

Specifically, petitioner contends that the verdict in his case “could”

have been different had trial counsel called certain witnesses and,

perhaps, not presented another witness who did testify at the trial.

Additionally, he questions a failure to contest the search of the

premises that gave rise to his charges. As to the latter, the petitioner

2

No. 02C01-9806-CC-00187; p.t.a. den. 7/12/99.

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clearly establishes that he had no standing to challenge the questioned

search.

Petitioner contends that two co-defendants, Danny Ray Ellis

and Lawrence David Sherrill, if called, would have testified that he

merely possessed controlled substances, but did not possess them

with the intention of sale. The decision not to call these witnesses at

trial was a joint decision made by counsel and the petitioner

following proper discussion. Assuming that these witnesses would

have testified at the trial as they did in this proceeding, the decision

not to call them was and remains a wise decision. Quite simply

stated, these witnesses are unbelievable under any circumstances,

even if one chooses to ignore their criminal history. Lastly, counsel

is charged with ineffectiveness for having called one Aaron Dudley,

Sr. because of his criminal history and the manner in which he

presented his testimony. This witness was called in an attempt to

establish petitioner’s residence, an important facet of his defense

theory. The witness testified as anticipated, but also revealed that the

petitioner was on parole for a prior felony conviction. As with the

witnesses, Ellis and Sherrill, the calling of the witness Dudley was

agreed upon only after discussion with the petitioner. It is impossible

to weigh the effect of this witness’s testimony on the jury; however,

the overall significance of his testimony pales considerably in view

of the other overwhelming evidence of guilt produced by the state.

A number of other grounds are raised in the amended petition;

however, no evidence has [been] brought forward addressing those

allegations. More importantly, there is nothing to be found anywhere

in the record that would remotely suggest that trial counsel’s

performance was deficient in any manner.

We will now consider the specific claims raised on appeal by the petitioner.

I. Failure to Prepare Trial Witness Aaron Dudley

The petitioner argues that his trial counsel was ineffective in presenting witness Aaron

Dudley at the trial. Dudley was called as a defense witness to testify that the petitioner lived with

him, rather than at the residence where the petitioner was arrested. The specific exchange, occurring

during cross-examination, between Dudley and the prosecutor of which the petitioner complains is

as follows:

Q. Mr. Dudley, how long are you alleging that Mr. Teague lived

with you?

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A. From the time they released him from prison.

Q. When was that?

A. Oh, September, August. I’m not for sure what date when they

released him.

Q. And how long did he live with you?

A. Up until he got arrested.

Q. Would that be October 16th?

A. I guess.

....

Q. Did he have a room by himself over there?

A. Yes.

Q. Okay.

A. His parole officer come in and inspected the house before he

even let him out.

Q. Okay; who was that?

A. Treet or Tree, or some – Darrell Treet or Darrell Tree.

Q. Inspected your house?

A. Yes.

Q. Now, Mr. Dudley, do you have a criminal record?

A. Yes, I do.

Q. What is your criminal record?

A. For the sale of crack cocaine to an undercover police officer.

Q. Okay; you pled guilty to that, did you not?

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A. Yes, I did.

Q. Do you remember the year you pled guilty to it?

A. ‘94 or ‘95, somewhere.

Q. Would it be November the 21st, –

A. I’m not – I don’t–

Q. – 1994?

A. I didn’t plead guilty until January the 9th or 11th, somewhere

there. I pleaded guilty in front of this man here [indicating].

Q. But you did plead guilty to the sale of crack cocaine?

A. Yes, I did.

The petitioner argues that his trial counsel was ineffective in not filing a motion in limine to

prevent the jury from learning about his “prior bad acts, arrest record, convictions, and prison

sentences, etc.” Additionally, as to Aaron Dudley, the petitioner claims that his trial counsel was

ineffective because Dudley “admitted to a prior felony conviction of the same charge as defendant’s

present charge, occurring in the same court, and before the same judge.” The petitioner argues that

had his trial counsel “properly interviewed” Dudley, he should have considered not calling him, but

presenting the same information through another witness, such as Mrs. Dudley, who was available

to testify but did not have a felony conviction, as did her husband. The petitioner argues that, had

Mr. Dudley been properly prepared as a witness, he would not have testified as he did. First, as to

the complaint that trial counsel was ineffective for not filing a motion in limine to prevent the jury

from learning from Aaron Dudley of the petitioner’s convictions, the jury heard specifically of the

petitioner’s two convictions when he was cross-examined at the trial. We are unable to envision how

the petitioner was harmed by Mr. Dudley’s passing reference to the petitioner’s criminal past when

the petitioner was subject to cross-examination about these convictions when he testified.

We note first that the petitioner had asked, in his letter to trial counsel, that Aaron Dudley

be called as a witness. Further, we note that the specific responses about which the petitioner claims

were volunteered information which were only marginally responsive, if at all, to the question.

Legal lore abounds with stories of garrulous witnesses, as it appears that Mr. Dudley was. Since the

petitioner, we presume, was well familiar with his uncle, and asked in writing that he be called as

a witness to establish the petitioner’s place of residence, we cannot fault defense counsel for

complying with his client’s request. Additionally, we cannot presume, as petitioner argues, that trial

defense counsel could have curbed Mr. Dudley’s tongue simply by spending more time preparing

his testimony. As part of his claim, the petitioner argues that his aunt, rather than his uncle, should

have been called to testify as to his place of residence at the time of his arrest. However, his aunt

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did not testify at the post-conviction hearing. We cannot presume, as the petitioner asks, that her

testimony would have been more favorable than that of his uncle. As to complaints about Aaron

Dudley’s testimony, the post-conviction court observed that the petitioner, himself, agreed that

Dudley should be called as a witness and that the “significance” of his testimony “pales

considerably” in view of the other evidence. We agree with this conclusion.

II. Failing to Interview and Call Material Eyewitnesses

The petitioner argues that the testimony of “[Danny Ray] Ellis and [Lawrence] Sherrill is

very probative of the issues at defendant’s trial.” However, for purposes of our review, the question

is whether trial counsel was ineffective for not calling these witnesses to testify. Counsel testified

that both had poor demeanor, especially Lawrence Sherrill, as well as prior convictions. Counsel

further testified that the petitioner agreed that neither should testify at the trial and was, in fact, the

final voice on this matter. We note that Lawrence Sherrill was not on the list of witnesses that the

petitioner sent to trial counsel, although Ellis was listed. The post-conviction court, before which

both testified, found that “these witnesses are unbelievable under any circumstances.” Based even

upon our review of the transcript of the post-conviction hearing, it is apparent that the testimony of

these witnesses would have presented additional problems for trial defense counsel in view of their

testimony, which appeared to be less than forthcoming and appeared to create inconsistences among

the witnesses. Accordingly, we conclude that the record supports the conclusion of the court that

trial counsel was not ineffective.

III, VI-VIII. Failure to Advise Petitioner Regarding Possible Plea of Guilty,

Guilty Pleas of Codefendants, and Pretrial Stipulations

The petitioner lumps together several claims. He claims that his trial counsel did not advise

him of the effect of “agreeing to stipulations as to [the] drug amount,” of “potential

charges/convictions/sentences” so that he could evaluate the “benefits of [a] negotiated guilty plea

compared to [the] hazards” of a trial, and of the “legal ramifications and trial impact of co-defendant

status, guilty pleas and sentences.”

A. Stipulations

The petitioner’s complaint regarding stipulations is not entirely clear. At the post-conviction

hearing, the petitioner testified, apparently regarding the stipulations:

[Trial counsel] advised me to testify and own up to having it,

the one tenth of a gram, in my possession, and that I would do, that’s

what, that I would be responsible for. And in trial, in fact in trial,

when I went to trial and found guilty of – an appeal, it would, an

appeal court, that they would see it as being, having possession of

owning the drugs, one tenth.

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The opinion of this court on direct appeal, affirming the conviction of the petitioner, states

that “[t]he officer removed a rock of crack cocaine weighing approximately one-tenth of a gram from

the hand of the appellant and also removed money from his pockets.” Teague, 1999 Tenn. Crim.

App. LEXIS 174, at *3. However, in his petition for post-conviction relief, the petitioner apparently

denied that he had cocaine in his hand as the officer entered the room, saying that, had Lawrence

Sherrill testified, “[h]is testimony would have been that this petitioner did not have anything in his

hands when the officers arrived. The same for the other requested witness, co-defendnat [sic] Danny

R. Ellis.” We note that, at the trial, Tennessee Bureau of Investigation special agent forensic

scientist Sandra Jean Romanek testified, inter alia, that the smaller of the two cocaine samples

admitted into evidence weighed one-tenth of one gram.

Given this testimony, we do not understand the petitioner’s complaints regarding

stipulations. If he is claiming that his attorney stipulated as to the weight of the smaller sample, that

assertion does not appear to be true. If his claim is that his attorney was ineffective for convincing

him to “stipulate” that he had cocaine in his hand as the officers entered the room, we believe that

the petitioner has an unrealistic view of his trial options. Since the officer testified at the trial that

the petitioner had a rock of crack cocaine in his hand when officers entered the room, it appears that

admitting this was the case, but that he was the purchaser and not the seller of the cocaine, was one

of the petitioner’s least inculpatory options.

In determining whether defense counsel was ineffective, the test is not whether another

lawyer “might” have tried another defense which “might” have been successful. Rather, we evaluate

the objected-to conduct by ascertaining whether any competent counsel would have done as defense

counsel did. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“[T]o show that

the [lawyer’s] conduct was unreasonable, a petitioner must establish that no competent counsel

would have taken the action that his counsel did take.”); Provenzano v. Singletary, 148 F.3d 1327,

1332 (11th Cir. 1998) (noting that conduct of counsel is unreasonable only upon a showing “that no

competent counsel would have made such a choice”).

We conclude, as was implicit in the findings of the post-conviction court, that the petitioner

has failed to establish that trial counsel was ineffective in agreeing to any “stipulations.”

B. Advice as to Charges/Convictions/Sentences

In this regard, the petitioner testified at the post-conviction hearing about the circumstances

under which he would have entered a plea of guilty:

Q. If [trial counsel] had told you you were going to get 10 years

and 10 thousand dollars, or you could have taken the guilty pleas that

the other gentlemen had taken, would you have made a different

decision about going to trial?

A. Yes, sir.

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Q. What did [trial counsel] tell you that your chances were on

going to trial?

A. He said I had, that I stood a good chance of being charged.

Q. And then if you had an appeal, that you’d probably . . .

A. It would be on the attorney.

This testimony contrasts with that of trial defense counsel who said that the petitioner

“wouldn’t negotiate” because a guilty plea would result in his probation for a previous conviction

being revoked. We note that he was cross-examined at trial about a 1996 conviction for aggravated

burglary and a 1991 conviction for theft of property, either or both of which could have been the

basis for his being on probation at the time of the instant offense.

The petitioner also argues that trial counsel testified that “he did not know what plea

agreements Ellis and Sherrill entered” and “did not know what plea agreement had been offered to

defendant.” The record does not support this assertion. Trial defense counsel testified at the post-

conviction hearing that he did not “recall” what sentences Ellis and Sherrill had received. His

testimony was only that, at the time of the hearing, he did not know what their sentences were, not

that he had never known. As for negotiating a plea agreement for the petitioner, trial defense counsel

said that he “didn’t get very far, because Mr. Teague wouldn’t negotiate” and that the petitioner was

“adamant that he couldn’t plead, because he was on probation.” Implicit in the post-conviction

court’s findings was that it accredited trial defense counsel’s testimony that the petitioner could and

would not consider a plea of guilty because it would result in the revocation of a probationary

sentence. We cannot conclude that the post-conviction court erred in this regard.

Based upon the record on appeal, which includes the transcript from the petitioner’s trial, it

is not at all clear that additional witnesses would have advanced his defense. Rather, discrepancies

and additional testimony could have exacerbated the petitioner’s problems. Officers testified that

they watched the trailer for four hours prior to executing the search warrant, and no vehicles came

or went during this period. Thus, although the petitioner claims that he was only purchasing cocaine,

he had devoted at least four hours to the transaction. However, LaVeta King testified that the

petitioner had been at her house for only “five or ten minutes” before officers executed the search

warrant. She said she did not know how he got to her house, although Danny Ray Ellis testified that

he had driven the petitioner there. When asked what the petitioner, Danny Ray Ellis, and Lawrence

Sherrill were doing in her bedroom when officers arrived, Ms. King said, “I don’t know.” She said

that she “would feel like that was being nosy” to see what they were doing in her bedroom. She said

that she had pled guilty to a charge resulting from the incident but did not recall what the charge was.

We cannot conclude that no competent attorney would have decided that the charges could

best be defended by proceeding as did the trial attorney in this matter. Thus, the record on appeal

supports the findings and conclusion of the post-conviction court.

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CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgment of the post-

conviction court dismissing the petition.

___________________________________

ALAN E. GLENN, JUDGE

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