Jackie Ewing v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 3, 2015

JACKIE EWING v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-13-208 Donald H. Allen, Judge

No. W2014-00273-CCA-R3-PC - Filed March 24, 2015

The petitioner, Jackie Ewing, was convicted of theft of property valued over $1000 and

sentenced as a career offender to twelve years. On direct appeal, this court affirmed the

petitioner’s conviction, and our supreme court denied permission to appeal. State v.

Jackie Ewing, No. W2012-00376-CCA-R3-CD, 2012 WL 6206123, at *1 (Tenn. Crim.

App. Dec. 11, 2012), perm. app. denied (Tenn. Apr. 9, 2013). Subsequently, he filed a

pro se petition for post-conviction relief, alleging he received the ineffective assistance of

counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-

conviction court denied the petition. Based upon our review, we affirm the judgment 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 JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Defendant-Appellant, Jackie Ewing.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS

On direct appeal, this court set out the facts resulting in the petitioner’s conviction:

This case arises from a theft of merchandise in a Sears store in

Jackson, Tennessee. A Madison County grand jury indicted the [petitioner]

for theft of property valued over $1,000.00. At the trial on these charges,

the parties presented the following evidence: David Presson, a Sears Loss

Prevention Manager, testified that he worked at the Sears store located in

the Old Hickory Mall in Jackson, Tennessee.

Presson testified that, at around 9:30 p.m. on December 21, 2010,

while he was on his way home, store management notified him that a

“push-out theft” was in progress. Presson explained that a “push-out theft”

is a theft where an individual places merchandise in a shopping cart and

pushes the cart out of the store without paying for the items. Presson said

that the two suspects were not confronted that night, but, after returning to

the store that night, Presson took statements from various employees. The

following day, December 22, 2010, Presson viewed surveillance video

recordings. Sears maintained fifty-two surveillance video cameras

throughout the store, which captured views from various angles and in

various areas of the store. Presson was able to confirm that a “push-out

theft” had occurred and contacted the Jackson Police Department. Presson

isolated the relevant video segments which captured the two suspects

entering the store, their progress throughout the store, and their exit from

the store. Presson made copies of this video footage and provided it to

police.

Presson testified that, by working with a store employee well-versed

in the store stock and comparing the items placed in the shopping cart on

the video footage with the remaining items in that area of the store, he was

able to compile a list of the stolen items and the value of those items.

Presson said that a store employee identified the female suspect, but he also

said that he was not personally familiar with either suspect.

Charles Chatman, a Sears employee, testified that he worked in the

tools department of the Sears store. On the night of December 21, 2010,

Chatman said he observed a man and a woman in the tools department. He

recognized the woman from Jackson State Community College where he

attended school. He said that she was a tutor for a math lab class. He then

identified the [petitioner] in court as the man he saw on the night of

December 21, 2010. Chatman watched the couple push their cart full of

items to the adjacent fitness department. When he did not see the couple

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return to the register to pay for the items, he went to the fitness department

and yelled out, “Did they pay for that?” The couple, however, had left at

the “perfect time” because the other sales associate who was in the fitness

department had his back to the exit. Chatman reported the incident to his

manager.

Tiffany Baker, a Sears loss prevention associate, testified that,

before working in loss prevention at Sears, she worked in merchandising

and customer assistance. Baker said that, on December 22, 2010, she

watched surveillance video footage from the previous night and compared

items on the floor of the store with what she watched the shoplifters place

in the shopping cart on the video recording. She then compiled a list of

thirty-two items, all from the children’s, men’s, and tool departments, and

the value of each item. The total amount of the items stolen was $2,416.19.

Baker testified that the department store did not recover any of the

stolen items. Baker then named each item and the individual value of that

item for the jury. The State played the video surveillance footage of the

[petitioner’s] progression through the department store on the night of

December 21, 2010. The video showed the [petitioner] selecting various

items from a rack or shelf while the co-defendant stayed with the shopping

cart. It also showed the [petitioner] and co-defendant exiting the store with

the unbagged items in the cart.

On cross-examination, Baker testified that all merchandise sold in

the store is placed into a bag. If the item is too large, the bag is either

stapled or tied to the product to indicate the item has been purchased.

Baker said that the items inside the [petitioner’s] shopping cart as he exited

the store were not in store bags. Baker explained that the video

surveillance camera did not record the [petitioner] taking items in the tool

department but that, due to the location of one of the surveillance cameras,

personnel zoomed in on a frame of the [petitioner’s] shopping cart and

Baker was able to see the nailer kit taken from the tool department.

Chekari Williamson, the co-defendant, testified that her charges

related to these crimes were pending. Williamson recalled that she and the

[petitioner] arrived at Sears at night on December 21, 2010. Williamson

said that the [petitioner] offered to pay her $20.00 if she would drive the

[petitioner] to Sears to buy gifts for his grandchildren. Williamson said that

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she parked at the side entrance of Sears, and they both went inside the store.

Williamson helped the [petitioner] pick clothes, and she placed them in a

shopping cart. She estimated that they were inside Sears for approximately

twenty to thirty minutes.

Williamson testified that she told the [petitioner] she would pull her

car around to the door. She was on her cellular phone as she exited the

store and, when she ended her call, she realized that the [petitioner] was

directly behind her and that he had not stopped to pay for his items. She

said that she used “a few choice words,” and then told the [petitioner] that

he was not getting in her car with “this stuff.” The [petitioner] told

Williamson to “stop tripping” and said, “come on, let’s go.” Williamson

said that she drove away leaving the [petitioner] in the parking lot with the

items. Williamson said that none of the items in the shopping cart were in

bags.

Williamson identified herself and the [petitioner] in the video

surveillance footage. Williamson said that she did not realize the items

were being taken without payment until she and the [petitioner] were in the

parking lot.

On cross-examination, Williamson testified that she is employed at

Jackson State Community College.

Id. at *1-3.

At the December 17, 2013 evidentiary hearing, trial counsel testified that she

represented the petitioner from the city court level through trial. She met with the

petitioner several times to discuss strategy and said that his story about the theft changed

numerous times. She received a copy of the store’s videotape and reviewed it with the

petitioner. The tape clearly showed the petitioner, and the petitioner told counsel that it

was him on the tape, saying, “That’s me, but I didn’t take the items out of the store. I

rolled them out and I left them there because [the co-defendant] would not let me put

them in her car.” However, during the trial, the petitioner told counsel that the man in the

video was the co-defendant’s boyfriend.

Trial counsel said that “[t]here wasn’t much defense that [she] could formulate

other than to try to show that the items perhaps were not over $1000.” She recalled that a

Sears employee testified at trial that the value of the stolen merchandise was $2488.57.

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Counsel tried to convince the jury that that amount was an inflated figure. The petitioner

wanted the co-defendant to testify even though she could identify him on the video

because “she was supposed to help him out.” Asked if there was anything she could have

done differently that would have changed the outcome of the petitioner’s case, counsel

responded, “No. Not with the evidence that the State had against [the petitioner].”

The petitioner testified that he discussed his case with trial counsel several times.

He said he told counsel “from day one” that the man in the video was the co-defendant’s

boyfriend. He claimed that trial counsel should have attacked the co-defendant’s

credibility because she had a prior shoplifting charge. He also claimed that counsel

“didn’t get [his] point across that the theft was under $500 the way she should have.”

The petitioner said that if counsel “had investigated all of the evidence that was brought

before her in trial as far as the amount, . . . and she had objected to letting that be entered

into evidence that wouldn’t have ever been brought . . . to the point to where as the jury

would have looked at it and seen that.”

As to his direct appeal, the petitioner claimed that appellate counsel did not read

the transcripts and, in preparing his brief, “just got something and threw it together.” He

said that appellate counsel did not present the facts from trial regarding the amount of the

stolen merchandise to the appellate court.

Appellate counsel testified that he reviewed the trial transcripts and felt the only

issue he could raise on appeal was sufficiency of the evidence. He said he did not

address the value of the merchandise because it did not have any merit on appeal.

At the conclusion of the hearing, the post-conviction court took the matter under

advisement and subsequently entered an order denying the petition and incorporating into

the order the court’s letter dated January 10, 2014, addressed to defense counsel and the

State.

ANALYSIS

The petitioner argues that trial counsel was ineffective because she did not

emphasize the value of the merchandise to the jury and “should have used her skills of

persuasion as a veteran lawyer to convince the jury that [the petitioner] was not in the

store videos.”

The post-conviction petitioner bears the burden of proving his allegations by clear

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary

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hearing is held in the post-conviction setting, the findings of fact made by the court are

conclusive on appeal unless the evidence preponderates against them. See Tidwell v.

State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely

factual issues, the appellate court should not reweigh or reevaluate the evidence. See

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s

application of the law to the facts of the case is de novo, with no presumption of

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de

novo, with a presumption of correctness given only to the post-conviction court’s

findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6

S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). 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.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a

“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a

reasonable probability that were it not for the deficiencies in counsel’s representation, he

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or she would not have pled guilty but would instead have insisted on proceeding to trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.

2001).

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; 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”).

In the denying the petition, the post-conviction court concluded:

The evidence in this case shows that petitioner’s trial counsel was

retained, beginning at the Jackson City Court preliminary hearing stage,

that she had obtained full discovery from the State, and met with [the

petitioner] several times prior to trial. [Trial counsel] reviewed the

evidence, including the video surveillance evidence with her client in

preparing for the trial. She testified that [the petitioner] admitted to her that

he was in fact the male subject on the store’s security video, and that the

female that was with him was his co-defendant, Ms. Chekari Williamson.

The primary evidence in the case against [the petitioner] consisted of

video surveillance from the Sear[s] store and the testimony from the store’s

employees. Additionally, the co-defendant, Ms. Chekari Williamson,

testified that [the petitioner] was the person that had exited the store with a

shopping cart of merchandise that he had not paid for.

The Court notes that the identification of the [petitioner] as the

person who committed the crime is a question of fact for the trier of fact to

determine. The jury, based upon the evidence presented at the trial, found

beyond a reasonable doubt that the perpetrator of this theft was in fact the

[petitioner]. This Court has reviewed the video evidence submitted to the

jury in this case, and the Court finds that the jury’s determination as to the

identity of the [petitioner] as the perpetrator of this theft is correct and

certainly sufficient to support the conviction. [Trial counsel] further

testified that she did not believe that the Court would have suppressed the

video tape evidence, since there was no legal basis to do so.

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The petitioner testified that his attorney was ineffective at trial for

various reasons. He denied that it was him in the video, and claims that he

never told his attorney that [it] was him. The Court does not credit his

testimony when he states that “it was not him” in the Sear[s] store video.

After a careful review of all the evidence in this case, the Court finds

that none of trial counsel’s actions or omissions were so serious as to fall

below the objective standard of reasonableness under prevailing

professional norms. The Court finds that [trial counsel’s] representation

was appropriate and that she provided [the petitioner] with reasonably

effective assistance. The Court further finds that [the petitioner] has failed

to show that there is a reasonable probability that, but for trial counsel’s

performance, the result of the trial proceeding would have been different.

We conclude that the record supports the post-conviction court’s finding that trial

counsel provided effective representation. Trial counsel testified that the petitioner

admitted to her that he was in the man in the videotape of the theft but, later during the

trial, told her that the man was actually his co-defendant’s boyfriend. The co-defendant

testified that the petitioner was the man in the video. Counsel recalled that a Sears

employee testified that the value of the stolen merchandise was $2488.57, and she tried to

convince the jury that that amount was an inflated figure. She said there was nothing she

could have done differently to change the outcome of the petitioner’s case based upon the

evidence the State had against him.

In sum, the petitioner has failed to show that trial counsel was deficient in her

representation. We conclude, therefore, that the petitioner is not entitled to post-

conviction relief on the basis of his claim of ineffective assistance of counsel.

CONCLUSION

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

conviction court is affirmed.

_________________________________

ALAN E. GLENN, JUDGE

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