Robert E. Boling v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 18, 2015

ROBERT E. BOLING v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sullivan County

No. C56458 Robert H. Montgomery, Jr., Judge

No. E2014-02258-CCA-R3-PC – Filed September 24, 2015

_____________________________

Petitioner, Robert E. Boling, appeals the denial of his petition for post-conviction relief,

arguing that the post-conviction court erred in concluding that he failed to prove that he

received ineffective assistance from his trial counsel. Based upon a thorough review of

the record and the applicable law, the decision of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR., and JOHN EVERETT WILLIAMS, JJ., joined.

L. Dudley Senter, III, Bristol, Tennessee, for the appellant, Robert Edward Boling.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Barry Staubus, District Attorney General; and William Harper, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Procedural Background

Petitioner was convicted of aggravated robbery for snatching Sarah McMurray‟s

purse away from her while in a Kroger parking lot in Kingsport, Tennessee, on October

5, 2006. He was sentenced to imprisonment for thirty years with release eligibility at

60% as a Career Offender. In his direct appeal to this Court, his conviction was upheld,

but because Petitioner‟s motion for new trial had been untimely filed, we only reviewed

the sufficiency of the evidence. State v. Robert Edward Bowling, No. E2008-00351-

CCA-R3-CD, 2009 WL 482763, at *1 (Tenn. Crim. App. Feb. 26, 2009), no perm. app.

filed.1

Petitioner‟s first petition for post-conviction relief was granted, and Petitioner

received an opportunity to file another motion for new trial, which was followed by a

delayed appeal. This Court again affirmed his conviction. State v. Robert Edward

Boling, No. E2011-00429-CCA-R3-CD, 2013 WL 816174, at *1 (Tenn. Crim. App. Mar.

5, 2013), no perm. app. filed.

After the conclusion of the delayed appeal, Petitioner filed a motion to reopen the

post-conviction proceedings, alleging ineffective assistance of trial counsel. After an

evidentiary hearing, the post-conviction court denied relief through an order entered on

October 30, 2014. Petitioner filed a timely notice of appeal and now raises the issue of

whether his trial counsel provided ineffective assistance by (1) failing to seek suppression

of a witness‟s pre-trial identification of Petitioner, (2) failing to seek suppression of

Petitioner‟s incriminating statements and confession, and (3) failing to adequately

investigate the case.

II. Factual Background

A. Trial2

On October 5, 2006, the victim and her husband were shopping at a Kroger

grocery store in Kingsport, Tennessee. As they returned to their parked vehicle near the

back of the parking lot, the victim saw a man, whom she believed to be a store employee

collecting abandoned shopping carts. Suddenly, the man “jerked” her pocketbook away

and fled. The victim‟s pocketbook contained credit cards, checks, and cash. The force of

the jerk caused the victim to fall to the ground. She bruised her head and broke her left

arm.

Tracy Lawson worked for a laundry cleaning company which owned a store in the

same shopping center as the Kroger. She was unloading a delivery van, when she

observed a man come around the corner of the building. Ms. Lawson watched the

individual carefully because it was odd for someone to be walking into the employee

parking area. She then heard yelling, and the man began running past her, “carrying a

woman‟s pocketbook.” She then saw two other males chasing the man. Ms. Lawson

observed that the man with the purse wore an orange tee shirt, a baseball cap, and blue

1

We note that Petitioner‟s name in the court file for his direct appeal is spelled “Boling,” while

the filed opinion and judgment form have it spelled “Bowling.”

2

The following facts are derived from this Court‟s opinions in Robert Edward Bowling, 2009 WL

482763, at *1-4, and Robert Edward Boling, 2013 WL 816174, at *6-7, *9.

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jeans. He also “had a little bit of a goatee.” Ms. Lawson told one of her coworkers to

call 911.

One of the pursuers was the victim‟s husband, and the other was Larry Beckner.

Mr. Beckner saw the man carrying a pocketbook and began chasing the man after hearing

the victim‟s husband call for help. Eventually, Mr. Beckner caught up with the

perpetrator and grabbed his leg. The perpetrator freed his leg, but threw down the

pocketbook and continued running.

Mr. Beckner described the perpetrator as having “like a ball cap on, sun glasses,

sort of stubby facial hair, like reddish blond, a reddish color.” He also said the

perpetrator was wearing “a pair of blue jeans, an orange shirt and . . . work boots or

something like that.” However, Mr. Beckner testified that he had difficulty seeing the

perpetrator because the sun was “sort of in [his] eyes.”

A Kingsport Police Officer later spotted a man sitting on a picnic bench, who he

believed matched the description of the purse-snatcher. The suspect was wearing a gray

tee shirt, and his head was shaven. He also had facial hair and a mustache. The police

officer observed a black ball cap several feet behind the suspect and arrested him.

Petitioner was that man.

Petitioner was taken to Ms. Lawson‟s workplace for identification. She testified

that there was “no doubt” that Petitioner was the man she saw fleeing with the

pocketbook, even though he “had changed clothes and took his hat off.” Ms. Lawson

again identified Petitioner in court. However, Mr. Beckner was unable to identify

Petitioner as the man he chased down.

Shirley Aston was a cashier at a convenience store, which was located

approximately one mile from the Kroger. On October 5, 2006, one hour prior to the

robbery, Petitioner bought lottery tickets at the store. Ms. Aston recognized Petitioner

because she had known him for “a long time.” She identified herself and Petitioner in

two photographs from the store‟s security surveillance cameras taken on October 5th. In

the photograph, Petitioner was wearing a black baseball cap, an orange tee shirt, and blue

jeans.

B. Post-Conviction Hearing3

Petitioner testified that after he was arrested on October 5, 2006, he was

handcuffed, placed in the back of a police car, and taken to the Kroger parking lot where

3

These facts were presented over the course of several hearings held on January 27, 2010,

February 3, 2010, and September 19, 2014.

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the crime occurred. The arresting officer instructed Petitioner to step out of the car.

Petitioner stood behind the open back door and looked over the back door for about two

minutes. Petitioner was then taken to the Kingsport Police Department.

After being booked, Petitioner accompanied Detective David Joe Cole to an

interview room. According to Petitioner, Detective Cole said, “Mr. Boling, you know

you‟re in a lot of trouble . . . . you‟re probably facing twelve to fifteen years for

aggravated robbery.” Petitioner responded, “Well, I guess I need a lawyer then, huh?”

Detective Cole said, “Well, normally I‟d say yes, but in this case, I don‟t think that‟s

going to be necessary. The woman recovered her pocketbook and nobody was hurt, so I

tell you what I‟m going to do. If you just tell me what happened, go ahead and confess to

this, we‟ll close the book on it. I‟ll charge you with a misdemeanor, and you can get out

of here.” Petitioner asked, “What do you need to know?” Detective Cole told Petitioner

to tell him everything that he had done that day. Petitioner told Detective Cole

everything that he had done since he awoke, including going to the convenience store.

When Petitioner‟s story arrived at the robbery, he told Detective Cole, “I‟m not

confessing to that.” Detective Cole replied, “Without the confession, there‟s no deal.”

Petitioner said, “I don‟t guess there‟s a deal then.” Detective Cole told someone to “lock

him up,” and Petitioner was taken to a holding cell “for a little while.” Because Detective

Cole smelled alcohol on Petitioner, he asked another officer to administer a breathalyzer

test to Petitioner.

Later, Petitioner was taken back to the interview room, and Detective Cole gave

Petitioner a pack of cigarettes. He told Petitioner, “This is it. This is your last chance,

and if [I] walk out of this room without your confession, it‟s aggravated robbery.”

Petitioner mulled over the proposition and then asked, “What do you want me to say?”

Detective Cole answered, “Tell me how you robbed her.”

Petitioner denied taking the pocketbook from the victim‟s arm and said that he

took it from her shopping cart. Detective Cole disagreed with him, so Petitioner said,

“Just write it down, and I‟ll sign it.” Together, they went through everything again, while

Detective Cole wrote it down. Petitioner signed the written statement without reading it

and asked, “So you‟re gonna go out there and tell them to drop this charge?” Detective

Cole responded, “Absolutely not. You just confessed to aggravated robbery.” Petitioner

denied being given Miranda warnings by Detective Cole or reading the typed Miranda

warnings at the top of the statement form. Petitioner said that some of the initialing on

the statement form was not made by him.

The Public Defender‟s Office was appointed to represent Petitioner at trial, and he

was notified by mail which attorney had been assigned to his case. Petitioner first met

his trial counsel at a court date. Petitioner met with trial counsel three times in the

courtroom before the trial for a total of fifteen minutes. “From the minute this thing

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started,” Petitioner wanted trial counsel to file a motion to suppress his statements and

confession. When he first met with trial counsel, Petitioner told him the “whole story . . .

exactly what happened.” However, Petitioner did not know if trial counsel pursued a

motion to suppress, even though he remembered being present for a brief hearing on a

motion to suppress. Afterward, trial counsel told Petitioner that he had “messed up” and

that Petitioner had “grounds for post-conviction.”

Petitioner “wrote letters and letters and phone calls” to trial counsel, but could not

get trial counsel to discuss the case with him. Petitioner wrote a letter to the judge and

then wrote three times to the Board of Professional Responsibility. Subsequently, there

was a hearing on whether trial counsel should be removed from the case, but the trial

court decided that trial counsel would continue representing Petitioner. According to

Petitioner, he did not meet with trial counsel until “five minutes before trial.”

Detective Cole testified that he had been in the Criminal Investigations Unit of the

Kingsport Police Department since 1990. On October 5, 2006, he was assigned to

investigate this case. At 3:53 p.m., he began interviewing Petitioner about the robbery.

He filled in Petitioner‟s personal information and then read the Miranda warnings aloud

to Petitioner as typed on the statement form. Usually, Detective Cole also has a

defendant read the waiver of rights aloud before signing that portion of the form.

Petitioner appeared to understand his rights.

During the first interview, Petitioner denied being at the crime scene, and he was

sent back to his jail cell. Because Petitioner said that he had consumed alcohol during the

day, Detective Cole had another officer administer a breathalyzer test. The results

showed that Petitioner‟s blood alcohol content was .13. However, during the first

interview, Detective Cole did not observe that Petitioner was noticeably impaired or too

intoxicated to make a statement.

Later, Petitioner asked to speak with Detective Cole, and a second interview

commenced around 9:30 p.m. Detective Cole again read Petitioner the Miranda

warnings. Petitioner gave a different statement, this time admitting to taking the

pocketbook. Detective Cole watched Petitioner read the statement before signing it, and

Petitioner initialed several corrections that he asked Detective Cole to make to the

statement.

Detective Cole denied that Petitioner ever asked for an attorney and also denied

that he made any promises to Petitioner to induce him to make a statement. Detective

Cole said that he did not, at any point, tell Petitioner that he would only be charged with a

misdemeanor if he cooperated with the investigation.

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Trial counsel testified that he was an Assistant Public Defender and had practiced

criminal defense since 1993. Once appointed to represent Petitioner, trial counsel filed a

motion for discovery and reviewed all of the statements contained therein. Trial counsel

recalled meeting with Petitioner, but he could not identify the specific dates that he did

so. Usually, those meetings occurred in the holding cell when Petitioner was scheduled

for court appearances. Because the State would not make a plea offer below the

maximum sentence, trial counsel began preparing for trial “from the moment [he] talked

with the prosecutor.”

Trial counsel investigated the circumstances of Petitioner‟s statements to

Detective Cole. Petitioner told trial counsel that he had been drinking, and trial counsel

obtained a copy of the breathalyzer test results from the prosecutor. Trial counsel filed a

motion to suppress those statements and any resulting evidence based on Petitioner‟s

intoxication. Trial counsel did not remember Petitioner‟s informing him that he had been

offered a misdemeanor charge or had attempted to invoke his right to an attorney during

the interviews. Accordingly, the motion to suppress the statements was not based on a

theory of coercion or a violation of the right to counsel. Trial counsel asserted that he

would have included such bases in the motion to suppress had he believed that there were

grounds for either. When trial counsel interviewed Detective Cole about the statements,

Detective Cole reported that Petitioner initially denied everything but later asked to speak

to Detective Cole and gave a voluntary statement.

On the day of the suppression hearing, the prosecutor agreed not to use the

statements as evidence so trial counsel did not go forward with the hearing. Both parties

announced the agreement to the trial court. Consequently, trial counsel did not expect for

Ms. Aston to testify about Petitioner‟s presence at the convenience store because that

information was obtained through Petitioner‟s statement to Detective Cole. When Ms.

Aston was called to testify during the trial, trial counsel objected and recalled having an

“aside” on the issue of whether she could testify, but a jury-out hearing was not held.

The trial court admitted Ms. Aston‟s testimony because a separate motion to suppress

evidence from the statements as “fruit of the poisonous tree” had not been filed. Trial

counsel admitted that he felt he was “winning” Petitioner‟s case until her testimony was

introduced. He testified, “[I]n retrospect, yes, I believe I should have had [a suppression

hearing].” Trial counsel also admitted that he told Petitioner that he should file a petition

for post-conviction relief on this issue. However, trial counsel also stated that it was his

“true belief” that, had he proceeded with the suppression hearing, the trial court would

have denied the motion and ruled Petitioner‟s statements to be admissible. Thus, had trial

counsel not prevailed in the suppression hearing, Petitioner would have had “a real

problem” because the State most likely would have introduced the statements at trial, in

addition to the testimony of Ms. Aston and the security camera images.

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Trial counsel also interviewed the arresting officer about the case. Part of the trial

defense was based on the discrepancies in the eyewitness descriptions provided to the

officer and Petitioner‟s appearance when he was arrested. Trial counsel was aware that

Ms. Lawson made a field identification of Petitioner after he was arrested, and trial

counsel looked into the nature of the identification. Trial counsel did not file a motion to

suppress the identification, but he cross-examined Ms. Lawson about this issue at trial.

Tammy Boling testified that Petitioner was her ex-husband. They divorced before

the crime in this case occurred, but she and Petitioner continued to maintain an “amicable

relationship” after the divorce. After Petitioner was arrested, he called her from jail and

told her that he had been arrested, but he did not tell her why. He then called her the

following day and explained what had happened to him, including Detective Cole‟s offer

of a misdemeanor charge in exchange for a confession. After trial counsel was

appointed, Petitioner introduced Ms. Boling to trial counsel and told him that he was

authorized to discuss the case with her. Several weeks later, Petitioner asked Ms. Boling

to contact trial counsel and ask him some questions about the case. Ms. Boling called

trial counsel numerous times but she never was able to speak with him on the phone.

At some point, Petitioner asked Ms. Boling to contact the Kingsport Police

Department and inquire about the results of the breathalyzer test administered to him.

She did so and learned that the results were available, so Ms. Boling then left a specific

voicemail informing trial counsel that Petitioner wanted him to get a copy of the test

results. Petitioner later told Ms. Boling that the State had “agreed not to use the

statement and anything from that statement could not be used.”

After the trial, Ms. Boling and Petitioner‟s mother were outside of the courthouse

when trial counsel approached them and said something to indicate that he had “screwed

up” and that his performance was a basis for Petitioner‟s appeal.

III. Analysis

Petitioner claims that he is entitled to post-conviction relief from his conviction for

aggravated robbery and argues that his trial counsel provided ineffective assistance by (1)

failing to seek suppression of Ms. Lawson‟s pre-trial identification of Petitioner, (2)

failing to seek suppression of Petitioner‟s statements and confession, and (3) failing to

adequately investigate the case.

Post-conviction relief is available for any conviction or sentence that is “void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d

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152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or

substantial doubt about the correctness of the conclusions drawn from the evidence.”

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Both the Sixth Amendment to the Constitution of the United States and article I,

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective

assistance of counsel. In order to sustain a claim of ineffective assistance of counsel, a

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 the two prong test established by Strickland v. Washington, 466

U.S. 668, 687 (1984), a petitioner must prove that counsel‟s performance was deficient

and that the deficiency prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408

(Tenn. 2002). Because a petitioner must establish both elements in order to prevail on a

claim of ineffective assistance of counsel, “failure to prove either deficient performance

or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley,

960 S.W.2d at 580. “Indeed, a court need not address the components in any particular

order or even address both if the [petitioner] makes an insufficient showing of one

component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466

U.S. at 697).

The test for deficient performance is whether counsel‟s acts or omissions fell

below an objective standard of reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the

questionable conduct from the attorney‟s perspective at the time, Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel‟s

conduct falls within the wide range of reasonable professional assistance.” State v.

Burns, 6 S.W.3d 453, 462 (Tenn. 1999). A defendant in a criminal case is not entitled to

perfect representation, only constitutionally adequate representation. Denton v. State,

945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of

ineffective assistance of counsel, „we address not what is prudent or appropriate, but only

what is constitutionally compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). This Court will not use

hindsight to second-guess a reasonable trial strategy, Adkins v. State, 911 S.W.2d 334,

347 (Tenn. Crim. App. 1994), even if a different procedure or strategy might have

produced a different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.

App. 1980). “The fact that a particular strategy or tactic failed or hurt the defense does

not, standing alone, establish unreasonable representation.” House v. State, 44 S.W.3d

508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369). However, 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).

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Even if a petitioner shows that counsel‟s representation was deficient, the

petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain

relief. Prejudice is shown where “there is a reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different.” Burns, 6

S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). This reasonable probability must be

“sufficient to undermine confidence in the outcome.” Id.

Whether a petitioner has been denied the effective assistance of counsel presents a

mixed question of law and fact. Burns, 6 S.W.3d at 461. This Court will review the

post-conviction court‟s findings of fact “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 v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh

or re-evaluate the evidence presented or substitute our own inferences for those drawn by

the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness credibility, the

weight and value to be given to testimony, and the factual issues raised by the evidence

are to be resolved by the post-conviction court. Momon, 18 S.W.3d at 156 (citing

Henley, 960 S.W.2d at 578). However, the post-conviction court‟s conclusions of law

and application of the law to the facts are reviewed under a purely de novo standard, with

no presumption of correctness. Fields, 40 S.W.3d at 458.

A. Pre-Trial Identification

The post-conviction court concluded that Petitioner had not proven prejudice from

trial counsel‟s failure to challenge the pre-trial identification by Ms. Lawson because

there was not a reasonable probability that the identification would have been suppressed

even had such a motion been filed.

To avoid exclusion from trial, “an identification must not have been conducted in

such an impermissibly suggestive manner as to create a substantial likelihood of

irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing

Simmons v. United States, 390 U.S. 377 (1968)). Nonetheless, an identification that is

conducted in an impermissibly suggestive manner will not be excluded if the witness‟s

identification was otherwise reliable under the circumstances. State v. Philpott, 882

S.W.2d 394, 400 (Tenn. Crim. App. 1994). Courts use a multi-factor inquiry to

determine reliability, which includes “the opportunity of the witness to view the criminal

at the time of the crime; the witness‟s degree of attention at the time of the crime; the

accuracy of the witness‟s prior description; the level of certainty demonstrated at the

confrontation; the time elapsed between the crime and the confrontation.” Id. (citing Neil

v. Biggers, 409 U.S. 188, 199 (1972)) (internal numbering omitted). Tennessee courts

have long permitted identifications where “the show-up occurs as an on-the-scene

investigatory procedure shortly after the commission of the crime.” State v. Thomas, 780

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S.W.2d 379, 381 (Tenn. Crim. App. 1989); see, e.g., Joseph Lamont Johnson, Jr. v. State,

No. M2012-02310-CCA-R3-PC, 2014 WL 793636, at *11 (Tenn. Crim. App. Feb. 27,

2014), perm. app. denied (Tenn. July 14, 2014).

Based on the evidence in the record, we agree with the post-conviction court that

Ms. Lawson‟s identification was neither the product of an impermissibly suggestive

procedure nor unreliable. The show-up occurred shortly after the crime occurred, and

Petitioner was apprehended as part of the ongoing on-the-scene investigation. Moreover,

Ms. Lawson gave an accurate description of the perpetrator before the show-up occurred,

specifically noted that Petitioner had changed his shirt and discarded his ball cap, and

testified that she had “no doubt” that Petitioner was the man she saw fleeing the Kroger

parking lot with a pocketbook. Because there is not a reasonable probability that a

motion to suppress the identification would have been successful, Petitioner has not

established either deficient performance or prejudice and is not entitled to relief on this

basis.

B. Statements and Confession

The post-conviction court concluded that trial counsel was not ineffective for

failing to pursue the motion to suppress Petitioner‟s statements to a judicial conclusion

because there was not a reasonable probability that such a motion would have been

granted. The court specifically accredited the testimony of Detective Cole over that of

Petitioner and found that Petitioner was not too impaired to make a voluntary statement

and also that Detective Cole did not induce or coerce Petitioner to make the statements by

promising to charge Petitioner with a misdemeanor rather than a felony.

The constitutions of the United States and the State of Tennessee prohibit the

government from compelling a criminal defendant to make self-incriminating statements.

State v. Brock, 327 S.W.3d 645, 687 (Tenn. Crim. App. 2009) (citing U.S. Const. amend

V; Tenn. Const. art. I, § 9). Thus, only statements that are made voluntarily are

admissible against a defendant. State v. Climer, 400 S.W.3d 537, 567-68 (Tenn. 2013).

When evaluating the voluntariness of a statement, “the essential inquiry . . . is whether a

suspect‟s will was overborne so as to render the confession a product of coercion.” Id. at

568 (citing Dickerson v. United States, 530 U.S. 428, 432-33 (2000)). Indeed, “coercive

police activity is a necessary predicate to finding that a confession is not voluntary . . . .”

Brock, 327 S.W.3d at 687 (quoting State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996)).

Whether a statement is voluntary requires examination of the totality of the

circumstances, and relevant circumstances include:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and

prolonged nature of the questioning; the length of the detention of the

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accused before he gave the statement in question; the lack of any advice to

the accused of his constitutional rights; whether there was an unnecessary

delay in bringing him before a magistrate before he gave the confession;

whether the accused was injured[,] intoxicated[,] or drugged, or in ill health

when he gave the statement; whether the accused was deprived of food,

sleep[,] or medical attention; whether the accused was physically abused;

and whether the suspect was threatened with abuse.

Climer, 400 S.W.3d at 568 (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn.

1996)) (alteration in original). Furthermore, an incriminating statement “must not be

extracted by any sort of threats or violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion of improper influence.” Brock, 327 S.W.3d

at 687 (quoting Bram v. United States, 168 U.S. 532, 542-43 (1897)).

The voluntariness of a confession is a question of fact, State v. Sanders, 452

S.W.3d 300, 305 (Tenn. 2014) (citations omitted), and the State bears the burden of

proving the voluntariness of a confession by a preponderance of the evidence, id. (citing

State v. Stamper, 863 S.W.2d 404, 405 (Tenn. 1993)).

The evidence shows that Petitioner‟s blood alcohol content was elevated to nearly

.13 at the time he was first interviewed by Detective Cole. However, the post-conviction

court accredited Detective Cole‟s testimony that Petitioner was not noticeably impaired

during either the first interview or the second interview that occurred several hours after

the breathalyzer test was administered. Intoxication, standing alone, is not a sufficient

ground to suppress a statement if the evidence shows that the defendant understood his

rights. State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). As long as that

statement is coherent, State v. Perry, 13 S.W.3d 724, 738 (Tenn. Crim. App. 1999), as

shown by the fact that the accused was able to narrate events and state his own

participation, the statement is admissible. State v. Green, 613 S.W.2d 229, 232-33 (Tenn.

Crim. App. 1980). Detective Cole testified that he informed Petitioner of his

constitutional rights before the first and second interviews and that Petitioner appeared to

understand his waiver of these rights, which is also supported by Petitioner‟s signature on

the statement form.

According to Detective Cole, Petitioner initiated the second interview in which he

confessed to the crime and made the confession voluntarily—not in exchange for a

reduced charge. The evidence does not preponderate against the factual findings of the

post-conviction court. Accordingly, Petitioner has failed to prove that trial counsel‟s

decision not to pursue the motion to suppress his statements to a judicial conclusion was

prejudicial because there is not a reasonable probability that the motion to suppress

would have been granted.

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It follows then that, if Petitioner‟s statements and confession were made

voluntarily and without violation of his constitutional rights, the rule of exclusion for

“fruit of the poisonous tree” would be inapplicable to Ms. Aston‟s testimony and the

security camera images, which were introduced at trial, because there was no “poisonous

tree” to bear fruit in the first place. Consequently, trial counsel could not have performed

ineffectively for failing to seek a judicial ruling on the admissibility of such evidence.

We also note that trial counsel‟s decision to rely on the representation of the

prosecutor that Petitioner‟s statements would not be used at trial, rather than pursuing a

judicial ruling on the motion to suppress, could also be considered a tactical decision.

Whereas the prosecutor‟s agreement ensured that the statements would not be used

against Petitioner, even though Ms. Aston‟s testimony and the security images were

introduced, judicial resolution of the motion to suppress could have resulted in all of the

incriminating evidence, including the statements, being admitted against Petitioner.

Petitioner has not shown that trial counsel‟s performance was deficient in this regard.

C. Investigation

The post-conviction court concluded that trial counsel‟s preparation for and

presentation of Petitioner‟s case at trial was not deficient. Defense counsel has a duty to

investigate “all apparently substantial defenses available.” Baxter, 523 S.W.2d at 935

(quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)); see also Burns, 6

S.W.3d at 462. Defense counsel also “has a duty to make reasonable investigations or to

make a reasonable decision that makes particular investigations unnecessary.” Burns, 6

S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). However, Petitioner has not

presented any evidence of what additional preparation or investigation by trial counsel

would have produced in Petitioner‟s favor. Simply put, Petitioner merely claims that trial

counsel‟s performance did not satisfy his own expectations. The post-conviction court

found that trial counsel met with Petitioner several times, adequately prepared a defense,

and ably presented that defense at trial. Because the evidence in the record supports these

findings, we agree that Petitioner has failed to prove that trial counsel rendered

ineffective assistance by failing to adequately investigate Petitioner‟s case. Petitioner is

not entitled to relief on this basis.

In his appellate brief, Petitioner suggests that the presumed prejudice standard of

United States v. Cronic, 466 U.S. 648, 656-57 (1984), should be applied in this case,

rather than the traditional standard for ineffective assistance provided in Strickland. “A

reviewing court will presume prejudice to an accused‟s right to counsel only when there

has been the complete deprivation of counsel at a critical stage of the proceedings, a

complete failure to subject the State‟s case to adversarial testing, or under circumstances

of such magnitude that no attorney could provide effective assistance.” Berry v. State,

366 S.W.3d 160, 174 (Tenn. Crim. App. 2011). For support, Petitioner cites Rickman v.

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Bell, 131 F.3d 1150 (6th Cir. 1997). In Rickman, the court found that the defendant was

constructively denied the effective assistance of counsel when his trial counsel failed to

advocate for the defendant throughout the trial and repeatedly engaged in overtly hostile

conduct against the defendant, his own client. 131 F.3d at 1159-60. However, the facts

of that case are clearly distinguishable from this case, where Petitioner has pointed only

to his dissatisfaction with the amount of time trial counsel spent discussing the case with

him before trial. We will not presume prejudice in a situation where there has been no

showing of actual or constructive denial of counsel or of an actual conflict of interest

between trial counsel and a defendant. See Strickland, 466 U.S. at 692; Cronic, 466 U.S.

at 662.

IV. Conclusion

Because Petitioner has not proven by clear and convincing evidence that he

received ineffective assistance from trial counsel, he is not entitled to post-conviction

relief. Therefore, the post-conviction court‟s denial of the petition is affirmed.

_________________________________

TIMOTHY L. EASTER, JUDGE

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