Ray Neil Thompson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 12, 2015

RAY NEIL THOMPSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2008-D-3845 Steve R. Dozier, Judge

No. M2014-01935-CCA-R3-PC – Filed November 5, 2015

The Petitioner, Ray Neil Thompson, appeals from the denial of post-conviction relief by

the Criminal Court for Davidson County. He was convicted by a jury of one count of

aggravated robbery and later entered a guilty plea to two counts of aggravated robbery

and one count of evading arrest. For these offenses, he received an effective sentence of

fifty years at 100 percent in the Tennessee Department of Correction. On appeal, the

Petitioner argues that he received ineffective assistance of counsel. Upon our review, we

affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

David Harris, Nashville, Tennessee, for the Defendant-Appellant, Ray Neil Thompson.

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

Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant

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

OPINION

The Petitioner was indicted for three counts of aggravated robbery involving three

Nashville businesses, Smoothie King (count one), Twenty-One and Up Video (count

two), Baskin Robbins (count three), and evading arrest (count four). See T.C.A. §§ 39-

13-402, -16-603. Following severance of count one, a jury convicted the Petitioner as

charged, and he received a sentence of twenty-seven years at 100 percent as a Range III,

persistent offender. The Petitioner later entered “open” guilty pleas for the remaining

counts, for which he received two twenty-three year sentences at 100 percent for counts

two and three and eleven months and twenty-nine days for count four. The trial court

ordered counts two, three, and four to be served concurrently with one another but

consecutively to count one, for an effective sentence of fifty years. In two separate direct

appeals, this court affirmed the convictions and sentences in counts one through four.

See State v. Ray Neil Thompson, No. M2011-01613-CCA-R3-CD, 2013 WL 53977

(Tenn. Crim. App. Jan. 3, 2013), perm app. denied (Tenn. May 7, 2013) (direct appeal of

count one); State v. Ray Neil Thompson, No. M2012-01064-CCA-R3-CD, 2013 WL

1912591 (Tenn. Crim. App. May 8, 2013), perm. appeal denied (Tenn. Sept. 11, 2013)

(direct appeal of counts two through four).

In his appeal of count one, the Petitioner argued that the trial judge (1) improperly

refused to recuse himself; (2) improperly denied a motion to suppress Appellant‟s

statement; and (3) improperly sentenced Appellant. Ray Neil Thompson, 2013 WL

53977, at *1. In his appeal of counts two through four, the Petitioner argued that he was

improperly sentenced under Tennessee Code Annotated section 40-35-501(k)(2) because,

in the commission of the offense, he used a water gun and not a firearm as described in

the statute and that the trial court improperly imposed consecutive sentencing. Ray Neil

Thompson, 2013 WL 1912591, at * 1.

As relevant to the issues presented in this post-conviction appeal, the facts

supporting count one, the aggravated robbery of the Smoothie King, as outlined in this

Court‟s opinion on direct appeal are as follows:

[A]n employee [of Smoothie King in Belle Meade] was preparing to close

that store on the night of September 12, 2008, at around 9:00 p.m. [She]

was alone in the store after her two co-workers left to take out the trash.

[The Petitioner] entered the store. [She] asked [the Petitioner] if he needed

any help. [The Petitioner] replied that he was trying to decide what type of

smoothie he wanted to order. [The Petitioner] walked around to the cash

register at that point and pulled an object out of his pocket that was

wrapped in a bandana. [She] stated that it appeared to be a gun. [The

Petitioner] pointed the object at [the employee] and instructed her to take

the money out of the register. [The Petitioner] took the money out of the tip

jar as [the employee] emptied the register. [The Petitioner] asked for a bag.

[She] told [the Petitioner] she did not have a bag. [The Petitioner] told [the

employee] to get down on the ground. . . [and] she was able to pull the

silent alarm to alert authorities.

Four days after the incident, [the employee] identified [the

Petitioner] in a photographic lineup. She was about 80 percent sure that the

person in the photograph was the perpetrator. [The employee] later

identified [the Petitioner] in person and at trial. She was confident that she

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positively identified [the Petitioner] because during the robbery she was

able to observe [the Petitioner] from a distance of approximately three feet

and had an unobstructed view of his face.

Ray Neil Thompson, 2013 WL 53977, at *1.

Three other witnesses provided similar descriptions to the police and one victim

provided police with a partial license plate number. Id. The Petitioner was eventually

arrested and police discovered “an orange and yellow water gun wrapped in a red

bandana” inside the Petitioner‟s vehicle. Upon apprehension, the Petitioner was bitten by

a canine officer and taken to the hospital. Id. at *2. While he was at the hospital, he was

interviewed by police about the robberies and told the interviewing officer that he was

addicted to crack cocaine. Id. The officer did not think that the Petitioner appeared

intoxicated or impaired during the interview. Id. The Petitioner later testified that, on the

day of his arrest, he was on “drug bender” and had not slept in three days. Id. He stated

that during the interview, he could not think clearly. Id.

At the January 27, 2012 guilty plea colloquy for counts two through four, the

Petitioner agreed to the following factual basis supporting the plea:

[T]he State‟s proof in count two would be that on September 14th of

2008 at approximately 6:15 in the evening,[ the Petitioner] entered into the

21 and Up Video Store located on White Bridge Road here in Davidson

County. He had what appeared to be a handgun wrapped in a bandana.

When he went in, he pointed the item in the direction of the clerk, Ms.

Elaina Harper. He took money from the 21 and Up Video Store without her

consent and left. There was in this particular case a surveillance video, a

color surveillance video, that captured [the Petitioner] on the video as well

as part of the vehicle in a nearby parking lot.

The [Petitioner] then on September 16th, 2008 in the evening hours

also went to 840 Hillwood Boulevard to the Baskin Robbins there also here

in Davidson County. He went in likewise, on that particular occasion and

had what appeared to be a weapon wrapped in a bandana and used that to

threaten Ms. Hunabin Bauctok (phonetic) took money from the store

without her consent. He fled during that time. A partial tag number was

recovered from a witness in that particular case. As a result of that partial

tag and the surveillance video with the vehicle, the [Petitioner] was

developed as a suspect. And on September 16th, 2008, later in the same

evening, officer Sun Yung Park (phonetic) encountered the [Petitioner] at

920 Chickasaw where he saw the [Petitioner] in the vicinity of the vehicle

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matching the get-away vehicle in these robberies. When Officer Park

ordered the [Petitioner] to stop, he fled on foot and was ultimately

apprehended when K–9 found where he was hiding.

Ray Neil Thompson, 2013 WL 1912591, at *1-2. In the petition to enter his guilty plea

signed by the Petitioner, it was noted that the Petitioner faced eight to thirty years at 100

percent for each count of aggravated robbery. Id. at *4. Within the same signed form,

the Petitioner acknowledged that the trial court would consider (1) all of his prior

convictions, (2) each count of the multiple offense indictment as a separate offense, and

(3) that each count of the multiple offense indictment may be ordered to be served

consecutively. Service at 100 percent for each count of aggravated robbery was also

discussed at the guilty plea hearing. Id.

Following the denial of his direct appeals, the Petitioner filed an eighty-page,

handwritten petition for post-conviction relief on December 26, 2013. The trial court

appointed counsel, who filed an amended petition incorporating and adopting all of the

Petitioner‟s grounds for relief, on July 14, 2014.

At the July 31, 2014 post-conviction hearing, the Petitioner and four attorneys who

represented the Petitioner at different stages of his case testified. The Petitioner said that

he and first counsel “didn‟t click” and that first counsel was hostile toward him. He

conceded that first counsel had presented him with a plea offer from the State for an

eighteen-year sentence at 100 percent. The Petitioner claimed that he rejected the offer

because counsel failed to adequately inform him of the controlling law and weight of the

evidence against him. He said that he did not understand why he should accept the offer

because he did not realize that the use of a water gun could elevate his charge to

aggravated robbery, thus rendering him a persistent offender. The Petitioner testified that

he could not make an informed decision regarding the plea offer and was therefore

“forced into trial.” He claimed that he did not understand this until several months later

when second counsel explained why he was to be sentenced at 100 percent.

The Petitioner claimed that second counsel filed a severance motion against his

will, and put him “in greater danger and detriment . . . because it subjected him to more

time.” He was adamant in asking counsel not to file the motion and wrote him a letter to

that effect. He said he would rather face the charges against him in one proceeding rather

than “piece by piece.” He stated that, despite his objection, second counsel filed the

motion without consulting him, but told him that he did not think it would be granted.

The Petitioner then confirmed that the motion was granted, and count one of aggravated

robbery was severed from the other aggravated robbery charges.

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The Petitioner testified that neither first nor second counsel communicated with

him. On two occasions, he told the trial court that his counsel was ineffective and

displayed bias and prejudice toward him. He also filed a complaint with the Board of

Professional Responsibility. The Petitioner asserted that his complaints “seemed to fall

on deaf ears,” and that out of an “act of desperation,” he spit on second counsel. After

this altercation, third counsel was appointed to the Petitioner‟s case and represented him

at trial.

The Petitioner testified that third counsel was ineffective by failing to suppress a

photographic lineup at trial. He contended that the photo array was “tainted” because the

background of his photo was darker, and he was the only person in the lineup wearing a

white shirt. He noted that the perpetrator of the aggravated robbery offenses was also

alleged to have worn a white shirt. He thought that these disparities created “issues of

suggestivity” that brought harm to his case. He acknowledged that he did not discuss

suppressing the lineup with third or fourth counsel, but he thought they “potentially

overlooked” the issue. The Petitioner also asserted that third counsel failed to raise the

issue of prosecutorial vindictiveness. He argued that after conflict arose with first

counsel, “everybody took a prejudice position toward [the Petitioner]; especially, the

DA” for invoking his right to seek effective assistance of counsel. He claimed that the

State withdrew their first plea offer in part because he had made complaints about his

representation and requested new counsel. The Petitioner said that when he confronted

third counsel with the vindictiveness issue, he was told that nothing could be done.

On cross-examination, the Petitioner said that he rejected the State‟s initial plea

offer because first counsel did not adequately inform him. He conceded that first counsel

advised him to accept the offer of eighteen years and could see now that it was good

advice. He agreed that he rejected a second plea offer of thirty years at 100 percent even

though first and second counsel told him that he was eligible for a maximum sentence of

ninety years at 100 percent. The Petitioner acknowledged that there were surveillance

videos that showed him committing two of the aggravated robbery offenses. He claimed

that first counsel only went over one of the videos with him and never showed him the

audio recording of his police interrogation. He testified that he was not aware of the

video evidence when he rejected the first plea offer but confirmed that he had seen the

video evidence before rejecting the second. He said that he rejected the second offer

because “the damage had already been done,” and he felt “forced into a trial situation.”

On redirect examination, the Petitioner confirmed that it was his “reasoned

opinion” that he would have had a better result at sentencing if the judge had seen all the

evidence at once, rather than separately. He claimed that he had conveyed this opinion to

second counsel. He also stated that, after trial, he was advised to enter a guilty plea for

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the remaining charges because there was a good possibility the sentence would run

concurrent with his trial sentence.

First counsel, who represented the Petitioner from the preliminary hearing to

criminal court, was an assistant public defender for nearly ten years when he was

appointed to the Petitioner‟s case. He met with the Petitioner on court dates and for

multiple hours at the prison where he was incarcerated. He testified that they discussed

the sentencing exposure and reviewed the discovery together. He remembered that they

watched the video surveillance together but could not recall whether they reviewed the

audio recording. Counsel further testified that the Petitioner rejected the initial eighteen-

year plea offer. He explained that the State had no obligation to keep the offer open and

that it was common for a plea offer to increase after it is rejected and more investigation

was done. He also noted that the State accepted his original counter-offer of twelve to

twenty years at a sentencing hearing, but the Petitioner changed his mind and refused the

plea agreement. Counsel confirmed that he and the Petitioner had communication

problems and that on at least two occasions, the Petitioner tried to remove him from the

case.

Second counsel, one of the most experienced public defenders in his office,

assumed the Petitioner‟s case from first counsel due to communication problems. He

testified that he had reviewed the evidence with the Petitioner and had “an extended

discussion” about why the Petitioner qualified to serve his sentence at 100 percent.

Second counsel also communicated with the State about the previous eighteen-year plea

offer, but the offer was no longer available because the State had reviewed the video

evidence of the crime. The State reevaluated the cases and increased the offer to thirty

years at 100 percent, which the Petitioner declined. Second counsel testified that he filed

a motion to sever the Petitioner‟s charges and that the motion “was a strategic decision

designed to keep out damaging proof that would have more than likely lead to a

conviction” at trial. He attempted to explain the advantages of severing the charges, but

acknowledged that the Petitioner repeatedly opposed the motion. Second counsel

proceeded with the motion because he thought not doing so would have amounted to

ineffective assistance of counsel. On cross-examination, he disagreed that the Petitioner

had a well-reasoned objective for trying the cases together.

Third counsel, the Metropolitan Davidson County Public Defender, assumed

representation of the Petitioner on the day his trial was set after he had spit on second

counsel. She had been a public defender for seventeen years and had handled a wide

range of criminal cases. She selected fourth counsel, another assistant public defender, to

assist her in trying the case. She did not recall or believe that she and the Petitioner had

ever discussed suppressing the photographic lineup or prosecutorial vindictiveness. She

indicated that there was no legal basis for filing a motion to suppress the photographic

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lineup. She also noted that the victim that had identified the Petitioner from the lineup

had also identified the Petitioner at the preliminary hearing and at trial. Lastly, she

testified that she told the Petitioner the potential sentences he faced at trial and that he

understood.

Fourth counsel, an assistant public defender for nearly eighteen years, had handled

thousands of criminal cases when he was assigned to the Petitioner‟s case. He reviewed

the evidence, law, and sentence ranges with the Petitioner. He considered the audio

recording of the police interrogation harmful evidence because it referenced the

Petitioner‟s drug use and prior convictions. He said that even the redacted version of the

audio recording could have led to the introduction of damaging evidence. He asserted

that it was a strategic and tactical decision not to use the recording at trial. On cross-

examination, he agreed that the statements in the recording did not amount to a full

confession, but they were nonetheless “damning.” He also agreed that the interviewing

detective‟s direct testimony was the only evidence of the police interrogation introduced

at trial. He could not recall deciding not to file a motion to suppress the photographic

lineup. He testified, “if I would have seen something that would have lead me to believe

that it would be beneficial, I would have filed it.” The defense theory centered on the

fact that the victim was only eighty percent sure that she had selected the perpetrator

from the photographic lineup and that the twenty percent supported reasonable doubt that

it was not the Petitioner.

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

advisement. On September 8, 2014, the court entered a written order denying relief. It is

from this order that the Petitioner now appeals.

ANALYSIS

On appeal, the Petitioner argues that the post-conviction court erred in concluding

that counsel rendered effective assistance of counsel.1 He contends that first counsel was

deficient by failing to adequately inform him about the eighteen-year plea bargain and

second counsel was deficient by filing the motion to sever. He argues that third and

fourth counsel were ineffective by failing to raise the issue of prosecutorial

vindictiveness, failing to suppress the photographic lineup, and failing to introduce the

audio recording of his police interview. The State responds that the post-conviction court

properly denied relief because the Petitioner provided no proof of his allegations at the

post-conviction hearing and thus failed to establish ineffective assistance of counsel. We

agree with the State.

1

We have re-ordered the Petitioner‟s issues for clarity. We also note that the Petitioner raised

several other issues in his petition for post-conviction relief which were not developed at the post-

conviction hearing nor supported by argument in the brief. These issues are accordingly waived.

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Post-conviction relief is only warranted when a petitioner establishes that his or

her conviction is void or voidable because of an abridgement of a constitutional right.

T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court‟s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual

issues, the appellate court will not re-weigh or re-evaluate the evidence;

moreover, factual questions involving the credibility of witnesses or the

weight of their testimony are matters for the trial court to resolve. The

appellate court‟s review of a legal issue, or of a mixed question of law or

fact such as a claim of ineffective assistance of counsel, is de novo with no

presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation marks and

citations omitted). “The petitioner bears the burden of proving factual allegations in the

petition for post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. §

40-30-110(f); Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is

considered clear and convincing when there is no serious or substantial doubt about the

accuracy of the conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn.

Crim. App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992)).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States

Constitution and article I, section 9, of the Tennessee Constitution. Both

the United States Supreme Court and this Court have recognized that this

right to representation encompasses the right to reasonably effective

assistance, that is, within the range of competence demanded of attorneys in

criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient

performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668,

687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim. Indeed, a court need not address the components in any particular order

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or even address both if the defendant 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).

A petitioner successfully demonstrates deficient performance when the evidence

establishes that the attorney‟s conduct fell below “an objective standard of

reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466

U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated

once the petitioner establishes “„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.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694). This two-prong Strickland

test applies to claims of ineffective assistance of counsel at either the trial or appellate

levels. See Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey,

469 U.S. 387 (1985)).

We note that “[i]n evaluating an attorney‟s performance, a reviewing court must

be highly deferential 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) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o 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.” Strickland, 466 U.S. at 688-89. However,

this “„deference to matters of strategy and tactical choices applies only if the choices are

informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d 508, 515

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

I. First Counsel and Failure to Adequately Inform. The Petitioner argues that

because first counsel “fail[ed] to provide even the most basic and fundamental

information regarding the prosecution‟s case against him,” he had no choice but to reject

any offer from the State. He contends that but for counsel‟s error, he would have

accepted the State‟s initial plea offer of eighteen years at 100 percent. In denying relief,

the post-conviction court reasoned as follows:

[First counsel] . . . said that he went over the evidence against the

petitioner, as well as the law and potential exposure. The petitioner

acknowledged that [first counsel] showed him the video evidence and told

the petitioner his exposure at trial. The petitioner also said that [first

counsel] advised him to take the offer and now sees that was good advice.

The petitioner has failed to prove this allegation by clear and convincing

evidence.

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Upon our review, we agree with the post-conviction court and conclude that the

Petitioner has failed to prove that first counsel was deficient in providing him with

information about his case in order to accept the eighteen-year plea offer. Although the

Petitioner contends that there is ample proof in the record to establish that he was “bereft

of information” at the time the eighteen-year plea offer was conveyed, he does not point

out what information first counsel excluded from their plea discussions. Instead, he

directs our attention to the multiple board complaints he filed against first counsel.

Interestingly, in his letter to the Board, the Petitioner complains that first counsel

continued to pressure the Petitioner, no less than four times, to consider and accept the

eighteen-year offer and that it was likely to “go up” if he did not. The letter also outlines

each of the Petitioner‟s requests for information about his case and how first counsel

responded. While the Petitioner may have been dissatisfied with first counsel‟s tone and

overall responsiveness, the letter demonstrates that first counsel‟s representation was well

within the range of competence demanded of attorneys in criminal cases. Because the

Petitioner has failed to establish deficient performance or prejudice arising therefrom, he

is not entitled to relief on this issue.

II. Second Counsel and Motion to Sever. The Petitioner further argues that

second counsel was ineffective by filing a motion to sever offenses over his direct

objection. He believes that the partial severance led to a longer sentence because the

imposition of consecutive sentences was more likely where the convictions arose from

two separate proceedings. In its written order denying relief, the post-conviction court

determined that:

[F]iling the motion was a strategic decision and was made in the best

interest of the client. [Second counsel] said that he thoroughly explained

the benefits to the petitioner and he did not think the [petitioner‟s] reasons

made sense. The petitioner has not shown that this decision was the result

of unreasonable professional judgment. The petitioner has failed to prove

this allegation by clear and convincing evidence.

In regard to this issue, the record shows that the Petitioner was indicted for three

aggravated robberies, two of which were captured on video. Each robbery was of a

business, occurred in the evening, and was committed with an item wrapped in a bandana

fashioned to look like a gun. In addition to his trial testimony, second counsel

memorialized his reasoning for filing the motion to sever in a letter to the Petitioner, the

relevant portion of which provides:

[The motion to sever] is [an] attempt to separate the four charges

against you into distinct and individual trials during which the jury would

not learn of the other allegations and would be focused only upon one

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crime. At present, a trial consolidating all four charges would present all

that evidence to the same jury at the same time. Obviously, that

substantially increases the prospect of your conviction on all of the charges.

Think of it this way-a juror might understand a single wrong in isolation or

have a doubt about the identification by a single witness of you as a robber

on Friday. But, if the same juror hears testimony that you did exactly the

same thing on Sunday, and that you did the exact same thing on the next

Tuesday . . . each of your individual charges becomes more believable. . . .

Thus, the reasons for the Motion to Sever are; 1. if successful, it has

a tactical advantage outlined above and screws up the State‟s presentation

of their case by requiring the witnesses to avoid mentioning the other

charges; 2. if unsuccessful, it creates a potential error to be argued on

appeal . . . .

Based on the above testimony and reasoning, we agree with the post-conviction

court and conclude that the decision of second counsel to file a motion to sever was

indeed tactical and did not amount to deficient performance. As an initial matter, our

review of the Petitioner‟s letters during trial, his testimony at the post-conviction hearing,

and the argument in his brief reveal that he is more aggrieved with the trial court‟s

decision to impose consecutive sentencing in his cases than whether he was deprived of a

fair trial due to second counsel‟s performance. In any event, we begin resolution of the

issue presented with the well-settled proposition of law that this court will not second-

guess the informed tactical and strategic decisions of trial counsel. Pylant v. State, 263

S.W.3d 854, 874 (Tenn. 2008) (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn.

1997)). Moreover, separate offenses may be permissively joined if they are part of a

common scheme or plan or are of the same or similar character. Tenn. R. Crim. P. 8(b).

If, however, they are not part of a common scheme or plan or if the evidence of one is not

admissible at the trial of the other, the defendant has a right to a severance of offenses.

See Tenn. R. Crim. P. 14(b)(1). There are three categories of common scheme or plan

evidence: “(1) offenses that reveal a distinctive design or are so similar as to constitute

„signature‟ crimes; (2) offenses that are part of a larger, continuing plan or conspiracy;

and (3) offenses that are all part of the same criminal transaction.” State v. Moore, 6

S.W.3d 235, 240 (Tenn. 1999). For the offenses to reveal a distinct design, the modus

operandi employed “must be so unique and distinctive as to be like a signature.” Id. at

240; State v. Carter, 714 S.W.2d 241, 245 (Tenn. Crim. App. 1986). Evidence of

signature crimes, likely the basis for joinder in this case, is typically offered to prove a

defendant‟s identity. Moore, 6 S.W.3d at 239. Although the offenses do not have to be

identical in every respect, a common scheme or plan is not found merely because there

was evidence that the defendant committed the multiple offenses or because the

similarities of the offenses outweigh the differences. Moore, 6 S.W.3d at 240-41.

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“Rather, the trial court must find that a distinct design or unique method was used in

committing the offenses .” Id. at 241. The danger in not severing offenses is that the jury

will improperly find the accused guilty of a crime by inferring his propensity to commit

the crime from the evidence of the other crimes. Id. at 239.

Although we are without the benefit of the motion to sever, the State‟s response,

or the transcript from the hearing on the motion to sever offenses in this case, the record

clearly shows that the decision of counsel to file the motion to sever was an informed part

of his defense strategy.2 In addition to the above letter, second counsel explained to the

Petitioner that the trial court may or may not grant the motion. If the trial court denied

the motion, then second counsel opined that the failure to sever would be grounds for a

new trial in the Petitioner‟s direct appeal. See State v. Shirley, 6 S.W.3d 243, 247

(Tenn.1999), overruled on other grounds by State v. Copeland, 226 S.W.3d 287

(Tenn.2007) (reversing the denial of motion to sever on virtually identical facts and

remanding for a new trial). Given the aforementioned authority, we cannot say that filing

a motion to sever on these facts was improper. See e.g., Beamon v. State, No.

E200801138CCAR3PC, 2009 WL 2922841, at *7-8 (Tenn. Crim. App. Sept. 14, 2009).

Counsel made a well-informed, legally sound decision to file the motion to sever in this

case. Accordingly, the Petitioner has failed to demonstrate deficient performance of

counsel or prejudice to his case.

III. Third Counsel and Prosecutorial Vindictivness and Photographic Lineup.

Next, the Petitioner contends that third counsel was ineffective by failing to suppress the

photographic lineup introduced at trial and by failing to address the issue of prosecutorial

vindictiveness. He argues that the State “demonstrated retaliatory behavior by

withdrawing a plea bargain offer of 18 years at 100% in retaliation for [the Petitioner]

invoking his right to challenge the underlying indictment, to file pretrial motions, and to

insist on having the presentation of competent and zealous counsel in the process.” In

regard to the suppression of the photographic lineup, he argues that it was “unduly

suggestive” and that third counsel‟s failure to challenge its use at trial caused harm to his

case.

In the Petitioner‟s brief, he stresses that the photographic lineup was “obviously

unduly suggestive” because none of the other photographs depicted persons wearing

white and the backgrounds in the photographs were different than his. In resolving this

2

We note that the appellant has a duty to prepare a record that conveys “a fair, accurate and

complete account of what transpired with respect to those issues that are the bases of appeal.” Tenn. R.

App. P. 24(b). “In the absence of an adequate record on appeal, we must presume that the trial court‟s

ruling was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991)

(citing Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d

226, 230 (Tenn. Crim. App. 1979)).

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issue, we must, once again, point out that the Petitioner failed to include a copy of the

photographic lineup in the record on appeal for our review. Nevertheless, third counsel

testified that she did not have a legal basis to support a motion to suppress the

photographic lineup. She explained that although the victim who selected the Petitioner

from the photographic lineup said she was eighty percent certain that the Petitioner was

the perpetrator of the offense, the victim later positively identified the Petitioner at the

preliminary hearing and at trial. In addition, two of the aggravated robberies were

recorded on video and depicted the Petitioner committing the crimes. In its written order,

the post-conviction court noted that “[third counsel] did not believe there was a legal

basis for the motion” and that the Petitioner failed to “prove[] any prejudice or show[]

how not filing the motion to suppress impacted his trial or representation.” We agree and

conclude that the Petitioner is not entitled to relief on this issue.

In regard to the Petitioner‟s claim that third counsel failed to argue that the

prosecutors were vindictive by increasing their settlement offer, we are guided by the

following authority:

“Prosecutorial vindictiveness” is a term of art with a precise and

limited meaning. The term refers to a situation in which the government

acts against a defendant in response to the defendant‟s prior exercise of

constitutional or statutory rights....The Supreme Court has established two

ways in which a defendant may demonstrate prosecutorial vindictiveness.

First, the defendant may show “actual vindictiveness” that is, he may prove

through objective evidence that a prosecutor acted in order to punish him

for standing on his legal rights. This showing is, of course, exceedingly

difficult to make. Second, a defendant may in certain circumstances rely on

a presumption of vindictiveness: when the facts indicated “a realistic

likelihood of „vindictiveness[,]‟ ” a presumption will arise obliging the

government to come forward with objective evidence justifying the

prosecutorial action. If the government produces such evidence, the

defendant‟s only hope is to prove that the justification is pretextual and that

actual vindictiveness has occurred. But if the government fails to present

such evidence, the presumption stands and the court must find that the

prosecutor acted vindictively.

State v. Michael Gentry, No. 01C01-9510-CC-00336, 1996 WL 648523, at *3 (Tenn.

Crim. App. Nov. 8, 1996) (quoting United States v. Meyer, 810 F.2d 1242 (D.C.

Cir.1987), cert. denied, 485 U.S. 940 (1988)).

In this case, as in Gentry, the record shows there was no reindictment. An initial

18-year offer of settlement by the State was made and repeatedly rejected by the

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Petitioner. Second counsel advised the Petitioner that the eighteen-year offer was the

best offer that the Petitioner was going to get and that the offer would likely increase.

The record does not establish that the State, by increasing the offer to thirty years,

attempted to punish the Petitioner for exercising his constitutional rights. The testimony

at the post-conviction hearing further established that the State increased its offer after

reviewing the video evidence capturing the Petitioner in the commission of the crimes.

Finally, the Petitioner ultimately accepted the State‟s offer to plead guilty to the

remaining two counts of aggravated robbery and evading arrest. This court has

previously held that a defendant who ultimately accepts the State‟s offer to plead guilty

gives up his claim of prosecutorial vindictiveness. See State v. Turner, 919 S.W.2d 346,

360 (Tenn. Crim. App. 1995) (holding that the issue of prosecutorial vindictiveness had

been waived when the defendant has knowingly and voluntarily entered the plea of guilt).

Having failed to establish deficient performance of counsel or prejudice to his case, the

Petitioner is not entitled to relief on this issue.

IV. Fourth Counsel and Audio Recording. As his final ground for relief, the

Petitioner argues fourth counsel was ineffective by failing to introduce the recording of

his police interview. We disagree. In regard to this issue, fourth counsel, the testimony

of whom the post-conviction court accredited, said that the defense did not use the audio

because the Petitioner‟s statements were “damaging” and were of no benefit. Fourth

counsel also said that it was a strategic decision not to utilize the audio from the

Petitioner‟s interview with the police. Although we are without the benefit of the audio,

based on fourth counsel‟s testimony, the Petitioner discussed his drug use and prior

convictions during the recorded interview. Given this testimony, we are perplexed by the

Petitioner‟s claim that fourth counsel was ineffective in failing to admit his statement to

police. Our confusion is compounded by the fact that the Petitioner filed an unsuccessful

motion to suppress the interview at trial and challenged the denial of the motion in his

direct appeal. Ray Neil Thompson, 2013 WL 53977, at *5-6. We recognize the

Petitioner‟s belief that fourth counsel‟s failure to admit the audio of the interview

amounted to prejudice because the jury only heard the interviewing detective‟s testimony

about the interview. However, based on the authority discussed in issue II, it is clear that

fourth counsel made a well-informed strategic decision to exclude from trial the audio

from the Petitioner‟s police interview. The Petitioner is not entitled to relief.

CONCLUSION

Discerning no error, we affirm the judgment of the post-conviction court.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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