Opinion

William Thomas Mayers v. State of Tennessee

Court
Court of Criminal Appeals of Tennessee
Filed
Mar 31, 2016
Status
Published
On the bench
Judge Norma McGee Ogle
Cited by
0 cases
Authority
More cited than 43.2%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 12, 2015 Session

WILLIAM THOMAS MAYERS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2010-A-572 J. Randall Wyatt, Jr., Judge

No. M2014-01704-CCA-R3-PC – Filed March 31, 2016

The Petitioner, William Thomas Mayers, filed a petition for post-conviction relief in the

Davidson County Criminal Court, alleging that his counsel was ineffective at trial and on

appeal. The post-conviction court denied the petition, and the Petitioner appeals. Upon

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

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

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

Richard C. Strong, Nashville, Tennessee, for the Appellant, William Thomas Mayers.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Glenn Funk, District Attorney General; and Amy Hunter, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

A Davidson County Criminal Court Jury convicted the Petitioner of aggravated

burglary, attempted aggravated burglary, and theft of property over $500, and he received

a total effective sentence of twenty-five years. See State v. William Thomas Mayers, No.

M2011-00954-CCA-R3CD, 2012 WL 4572169, at *1 (Tenn. Crim. App. at Nashville,

Oct. 1, 2012). The record reveals that on November 13, 2009, Robin Tate-Johnson, who

“was kind of the neighborhood watch lady,” was looking out of a window of her house

when she saw a slender white man, who was not carrying anything, walk past her house.

A few minutes later, Ms. Tate-Johnson saw the same man walking past her house in the

opposite direction with a backpack over his shoulder and a box in his arms. Ms. Tate-

Johnson followed the man and saw him walk up to a house and attempt to raise a front

window. Thereafter, the man walked behind the house, and Ms. Tate-Johnson briefly lost

sight of him. When Ms. Tate-Johnson regained sight of the man, she followed him to a

CVS drug store on Murfreesboro Road. The man went into the store for a few minutes.

When he came out, Ms. Tate-Johnson followed him to the Budget Inn on Murfreesboro

Road. She saw the man get into a Chevrolet Blazer with the license plate number “036

VZV.” At that time, Ms. Tate-Johnson called the police to report the suspicious activity.

The police learned that the home of Ms. Tate-Johnson‟s neighbor, Laurel Smith,

had been burglarized on November 13. Ms. Smith testified at trial that after the burglary,

she searched for two hours before locating her three cats and “very large redbone

coonhound” that had gotten loose in the neighborhood. Later that evening, when Ms.

Smith tried to touch her dog, the dog “would hit the floor like she was being struck at,”

which it had never done before the burglary. Ms. Smith said that “it was obvious [the

dog] had gone through some kind of trauma.”

A couple of days after November 13, Nashville Police Detective Kevin Wallace

went to the Budget Inn to perform surveillance. He saw two black men, a slender white

man, and a white woman get into the Blazer Ms. Tate-Johnson had seen and drive away.

Detective Wallace followed the Blazer and eventually made an investigative stop.

Detective Wallace spoke with the white man, who was the Petitioner, and the Petitioner

denied any involvement in the burglary. Nevertheless, the police arrested the Petitioner

and the woman on outstanding warrants.

Thereafter, the police checked the records of area pawnshops and learned that

someone using the Petitioner‟s name had pawned three pieces of jewelry at Berry‟s Pawn

Shop on November 13. Detective Wallace placed a hold on the items. On November 21,

Detective Wallace, the victim, and the victim‟s roommate went to the pawnshop. The

victim and her roommate identified two rings pawned by the Petitioner as the victim‟s

property; the third piece of jewelry did not belong to her. Detective Wallace explained

that pursuant to police policy, he left the jewelry at the pawnshop but placed a hold on the

items. He later learned that the pawnshop had “melted down” the rings.

Detective Wallace contacted the person who lived at the house where the

Petitioner had tried to raise the front window and learned that the front window and rear

door had been damaged but that nothing had been taken.

Detective Wallace said that fingerprints were taken from the victim‟s residence

but that the prints did not match the Petitioner‟s prints. Ms. Tate-Johnson was not shown

a lineup and identified the Petitioner for the first time at the preliminary hearing.

Detective Wallace stated that he thought a photograph identification was required to

pawn items at Barry‟s Pawn Shop but that he was not sure. He knew that the Petitioner‟s

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name, driver‟s license number, and birthdate were written on the pawn ticket for the

rings. A surveillance video from a nearby CVS showed a white male carrying a

backpack and wearing a baseball cap and sunglasses walking into the store. Detective

Wallace opined that the man was the Petitioner.

After this court denied relief on direct appeal, the Petitioner filed a petition for

post-conviction relief, which is the subject of the instant appeal, alleging that his counsel

was ineffective at trial and on appeal. At the post-conviction hearing, the Petitioner

testified that trial counsel was appointed to represent the Petitioner after he was indicted.

The Petitioner said that counsel met with him four or five times and that the longest

meeting lasted approximately thirty minutes.

The Petitioner acknowledged that trial counsel provided him copies of the

discovery. The Petitioner maintained that he did not review the discovery with counsel

but that he reviewed it on his own and called counsel to discuss any problems he noticed.

Trial counsel never indicated to the Petitioner that he interviewed either the victim or Ms.

Tate-Johnson.

The Petitioner said that he and counsel discussed the destruction of the rings. At

the Petitioner‟s behest, counsel filed a Ferguson1 motion regarding the destroyed

evidence and a motion for bond reduction on the basis that none of the fingerprints found

at the scene belonged to the Petitioner. The Petitioner said that from reviewing the

discovery, he learned that the person the State intended to use to introduce the CVS

surveillance video at trial had been the manager for only a few months and was not the

manager at the time the video was made. The Petitioner asked counsel to file a motion to

exclude the evidence if the State could not find the person who was the manager at the

time the video was made, and counsel complied.

The Petitioner said that the victim testified at trial about the behavior of her pets

after the burglary. The Petitioner said that he did not know anything about the victim‟s

pets until trial and that counsel did not file a pretrial motion to exclude the testimony.

The Petitioner stated that he and counsel discussed the sentencing ranges for the

charged offenses and that counsel advised him that his sentences would be concurrent

because they were part of a “crime spree.” The Petitioner said that Ms. Tate-Johnson was

emotional during her testimony at the sentencing hearing because she had been a victim

of a burglary two weeks prior to trial. He said that “my interpretation of that is she was –

she has been a victim of burglary more than once during my incarceration.”

1

In State v. Ferguson, 2 S.W.3d 912, 915-18 (Tenn. 1999), our supreme court addressed whether a

defendant was entitled to relief when allegedly exculpatory evidence was lost or destroyed by the State.

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The Petitioner said that he did not talk to counsel about the issues counsel planned

to raise at the motion for new trial and did not request that counsel raise the State‟s

failure to reveal prior to trial that Ms. Tate-Johnson had been a victim of a crime. The

Petitioner was not cross-examined by the State.

The State called the Petitioner‟s counsel to testify. Counsel testified that he was

licensed to practice in 2007 and that his practice was primarily criminal defense. He was

appointed to the Petitioner‟s case in January 2011. Another attorney volunteered to work

on the case with counsel; co-counsel spent approximately forty-five hours on the case and

sat as “second” during the trial.

Counsel said that the Petitioner had ten to twelve court dates and that he met with

the Petitioner “for an extended period of time at each one.” Counsel visited the Petitioner

at least five or six times at the jail and interviewed the Petitioner in person or by

telephone approximately thirty times. As soon as counsel received discovery, he made a

copy and provided it to the Petitioner. The Petitioner complained to the Board of

Professional Responsibility that counsel did not provide discovery. Counsel was advised

to give the Petitioner another copy of discovery. Counsel did so, but the Petitioner filed

another complaint against counsel. Counsel said that the discovery was approximately

800 pages and that he reviewed the discovery with the Petitioner.

Counsel said that prior to trial, he filed fourteen motions in limine. Additionally,

he filed an “extensive” bond reduction motion and a Ferguson motion concerning the

destroyed evidence. Counsel said that after a hearing, the trial court denied the Ferguson

motion, reasoning “that there was so much other substantive information that the

witnesses provided regarding the crime that this one area didn‟t affect it in such a bad

way, because the State really had a very very solid case in this situation.” Counsel met

with the Petitioner before the motion for new trial and explained that an issue had to be

raised in the motion for new trial before it could be raised on appeal. Thereafter, the

Petitioner provided counsel with a handwritten list of the issues he wanted addressed.

Counsel researched the issues and discovered that none of the Petitioner‟s issues “h[e]ld

any water[.]” Counsel also researched the Ferguson issue and learned that the case law

“was completely 100 percent opposite” of the defense‟s position. He discussed the issues

with three experienced attorneys and was advised that the Ferguson argument would not

be successful. After those discussions, counsel informed the Petitioner that he saw

nothing of merit in the issues the Petitioner wanted raised on appeal. Counsel spoke with

another attorney about the Petitioner‟s case, and, after obtaining the attorney‟s

permission, he advised the Petitioner to call the attorney to discuss his appellate issues.

Counsel said that he did not know prior to trial that the victim would testify that

her pets‟ behavior changed after the offenses. Counsel opined:

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I think that was honestly, I don‟t particularly care for

everybody knowing, but I think that was a brilliant question

left by the district attorney‟s office to ask. It created a great

sympathetic movement for anyone who is an animal lover on

the jury and . . . at the preliminary hearing it never came up

and it was just a great question that they asked and it‟s the

facts, I mean, people love dogs and animals and if your dog

acts weird people get upset and that is basically what it did. It

was a very strong, strong statement.

Counsel said that no “hardcore” proof was presented that the pets were physically harmed

during the burglary.

Counsel said that he discussed sentencing, including the Petitioner‟s range and the

possibility of consecutive sentencing, with the Petitioner on several occasions. He

acknowledged that he advised the Petitioner that some of his crimes might be considered

a “crime spree.” Specifically, counsel believed the Petitioner‟s theft conviction would be

merged into his aggravated burglary conviction, which the trial court did at the

sentencing hearing. Counsel warned the Petitioner that he likely would not receive

leniency due to his extensive criminal record.

Counsel opined that Ms. Tate-Johnson‟s being a victim of a burglary prior to trial

had no effect on the trial, noting that her testimony was limited and “quite unemotional.”

Counsel stated that prior to trial, he advised the Petitioner that the State‟s case was

strong and that the Petitioner likely would be convicted at trial. Counsel believed that

raising the issue of the sufficiency of the evidence was “a completely frivolous argument

as was almost all of the appeal.”

On cross-examination, counsel acknowledged that he did not represent the

Petitioner at the preliminary hearing but said that he gave the Petitioner a “mock

transcript” of the preliminary hearing because the hearing had not been transcribed.

Counsel did not hire an investigator because he did not feel that it was needed. Counsel

did not personally interview Ms. Tate-Johnson but learned about her prospective

testimony during two pretrial hearings. Counsel opined that the testimony at the pretrial

hearings was “more beneficial . . . than interviewing, because once you have them on the

stand if they change their story you‟ve nailed them down.” Counsel acknowledged that

he did not interview the victim prior to trial but stated that he would have been aware of

her testimony at the preliminary hearing. Counsel said that “in this situation her

statement was that her house was broken into and I felt that Mr. – the other, the other

people‟s testimony was more important.” Counsel attempted to contact the owner of the

pawn shop, but the owner did not respond to his calls.

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Counsel acknowledged that he did not file a pretrial motion to exclude the victim‟s

trial testimony regarding the behavior of her pets. He did not object to the testimony

during trial “[b]ecause it is her position other than it‟s her speculation, but she can testify,

it is her house.” Counsel said that the victim did not identify the Petitioner as the

perpetrator. Counsel did not recall the State‟s asking the victim about the value of the

stolen property on direct examination but did recall that she decribed the rings that were

taken. When asked if he “elicited the testimony regarding the value of the items, counsel

responded, “I did? . . . Oh, good, okay. Then it did come up, okay.” Counsel explained

that his goal in cross-examining the victim was to see how “solid [she was] on the facts.”

Counsel was not sure when he learned that Ms. Tate-Johnson had been a victim of

a burglary but thought it was at the sentencing hearing. He knew, however, that “there

had been a lot of burglaries in this particular area.” On appeal, counsel did not raise an

issue regarding the admission of evidence that Ms. Tate-Johnson had been a victim of a

burglary. Counsel thought that cross-examining Ms. Tate-Johnson regarding her

potential bias as a burglary victim could have made her a sympathetic witness, and he

made a strategic decision not to do so.

Counsel acknowledged that the statement of facts in the Petitioner‟s appellate brief

was “not written in a narrative form” and that it “just contain[ed] citations to the record

and witness‟s testmony and [wa]s not formatted in[to] complete sentences.” He did not

explain why he wrote the brief that way. On appeal, counsel raised the Ferguson issue, a

challenge to the admission of photographs from the CVS security video, and the

imposition of consecutive sentencing. Counsel said that he chose not to appeal the

sufficiency of the evidence because the State‟s case was strong, and he had no argument

that would be successful. Counsel acknowledged that the failure to raise issues in an

appellate brief often foreclosed appellate review of those issues.

Counsel checked out the appellate record but was not sure whether he noticed that

the transcript of the hearing on the Ferguson motion was not in the record. He

acknowledged that the inadequacy of the appellate record caused this court to consider

the Ferguson issue waived.

After the hearing, the post-conviction court issued an order denying the petition.

On appeal, the Petitioner challenges this ruling.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. ' 40-30-110(f). “„Clear and convincing evidence means

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evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded

their testimony, and the factual questions raised by the evidence adduced at trial are to be

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are

entitled to substantial deference on appeal unless the evidence preponderates against

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact.

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction

court‟s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s

performance was deficient and that the deficiency prejudiced the defense.” Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s

performance was below “the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the

petitioner must show that “there is a reasonable probability that, but for counsel‟s

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

test, 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 or even address both if the [petitioner]

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to

determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,

126 S.W.3d 879, 886 (Tenn. 2004).

The Petitioner complains that his counsel was ineffective at trial by failing to

investigate or interview witnesses prior to trial. He argues that with a more thorough

investigation, counsel would have been prepared to limit the victim‟s irrelevant testimony

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regarding her pets‟ behavior after the crimes. He contends that “[t]he only purpose for

th[e] question [about the victim‟s pets] was to prejudice the jury against [the Petitioner]

through appealing to the emotions of the jury.” At the post-conviction hearing, counsel

conceded that he did not interview either the victim or Ms. Tate-Johnson prior to trial. He

said that he cross-examined Ms. Tate-Johnson at a pretrial hearing to get her “story . . .

nail[ed] . . . down.” Regarding the victim, counsel asserted that he reviewed her

testimony at the preliminary hearing. This court has previously cautioned that “it is

unwise for any criminal defense attorney not to at least make an effort to have potential

witnesses interviewed even if the witnesses are uncooperative.” Paul Neil Laurent v.

State, No. M2008-01836-CCA-R3-PC, 2009 WL 2502004, at *8 (Tenn. Crim. App. at

Nashville, Aug. 17, 2009). However, the Petitioner failed to prove what further

investigation would have revealed. See Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). Moreover, the post-conviction court found that the allegation of

prejudice regarding the testimony about the victim‟s pets was merely speculative.

Particularly in light of counsel‟s testimony regarding the strength of the State‟s case

against the Petitioner, we agree with counsel and the post-conviction court. This court

has previously stated that “[p]rejudice is not established by speculation.” William L.

Handley v. State, No. 01C01-9301-CC-00025, 1993 WL 331819, at *3 (Tenn. Crim.

App. at Nashville, Aug. 26, 1993). The Petitioner is not entitled to relief on this issue.

Additionally, the Petitioner contends that counsel was ineffective because he

established an element of the offense of theft, namely the value of the items taken, during

his cross-examination of the victim. Counsel testified that his goal in cross-examining

the victim was “to see how solid [she was] on the facts, to see if there [was] anything that

[would] lead to a different presumption[.]” The post-conviction court found that “the

questions asked by counsel on cross-examination [were] within the purview of counsel‟s

strategy.” We agree. Generally, “cross-examination is a strategic and tactical decision of

trial counsel, which is not to be measured by hindsight.” State v. Kerley, 820 S.W.2d

753, 756 (Tenn. Crim. App. 1991). On appeal, this court may not second-guess the

tactical or strategic choices of counsel unless those choices are based upon inadequate

preparation, nor may we measure counsel‟s behavior by “„20-20 hindsight.‟” State v.

Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Moreover, “[a]llegations of ineffective assistance

of counsel relating to matters of trial strategy or tactics do not provide a basis for post-

conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991). The

post-conviction court also found that the Petitioner failed to show prejudice because he

did not show “that the elements of the offenses would not have been established but for

these questions.” We agree. The State could have asked about the value of the stolen

items on redirect examination. See State v. Rafael A. Bush, No. M2002-02390-CCA-R3-

CD, 2004 WL 794755, at *14 (Tenn. Crim. App. at Nashville, Apr. 14, 2004).

Regardless, the Petitioner failed to show how he was prejudiced in this regard.

Next, the Petitioner complains that counsel was ineffective on direct appeal. He

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argues that the brief submitted by counsel “was so deficient that it was tantamount to

having no brief filed at all.” This court has previously observed:

“[F]ailure to preserve and/or assert all arguable issues on

appeal is not per se ineffective assistance of counsel, since the

failure to do so may be a part of the counsel‟s strategy of

defense. Counsel is not constitutionally required to argue

every issue on appeal, or present issues chosen by his client.

The determination of which issues to present on appeal is a

matter of counsel‟s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.

Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate

counsel are not constitutionally required to raise every conceivable issue on appeal.”

Carpenter, 126 S.W.3d at 887.

Our supreme court has set forth the following “non-exhaustive list” of factors

which “is useful in determining whether an attorney on direct appeal performed

reasonably competently in a case in which counsel has failed to raise an issue”:

1) Were the omitted issues “significant and obvious”?

2) Was there arguably contrary authority on the omitted

issues?

3) Were the omitted issues clearly stronger than those

presented?

4) Were the omitted issues objected to at trial?

5) Were the trial court‟s rulings subject to deference on

appeal?

6) Did appellate counsel testify in a collateral proceeding as

to his appeal strategy and, if so, were the justifications

reasonable?

7) What was appellate counsel‟s level of experience and

expertise?

8) Did the petitioner and appellate counsel meet and go over

possible issues?

9) Is there evidence that counsel reviewed all the facts?

10) Were the omitted issues dealt with in other assignments

of error?

11) Was the decision to omit an issue an unreasonable one

which only an incompetent attorney would adopt?

Id. at 888.

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The post-conviction court cited this court‟s opinion on direct appeal, in which we

noted the inadequacy of the brief and the appellate record and concluded that counsel was

deficient on appeal. See State v. William Thomas Mayers, No. M2011-00954-CCA-R3-

CD, 2012 WL 4572169 (Tenn. Crim. App. at Nashville, Oct. 1, 2012). The post-

conviction court stated that the Petitioner had

not shown, or even suggested, that a “specific issue should

have been addressed by the appellate brief which would have

had the effect of changing the result of the appeal had it been

discussed.” Instead, he simply argues that he suffered

prejudice because the Court of Criminal Appeals was unable

to consider some of his claims. [The post-conviction court]

finds that this is not enough to demonstrate that the outcome

of the appeal would have been different had counsel

effectively briefed the issues, and therefore does not satisfy

the prejudice prong of the Strickland analysis.

We agree.

The Petitioner argues that he was prejudiced by the deficiency because his

Ferguson issue was waived on appeal due to counsel‟s failure to include a transcript of

the motion hearing or to provide a “coherent legal argument” on the issue. Id. at *2. In

order to determine prejudice, we must consider whether the Petitioner‟s Ferguson issue

has merit.

We note that the Due Process Clause of the Fourteenth Amendment to the United

States Constitution and article I, section 8 of the Tennessee Constitution afford every

criminal defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn.

2001). As such, the State has a constitutional duty to furnish a defendant with

exculpatory evidence pertaining to the defendant=s guilt or innocence or to the potential

punishment faced by a defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Our

supreme court has explained:

The language of the “due process” provisions in the United

States Constitution differs from the “law of the land”

provision found in the Tennessee Constitution. Although the

terms on occasion have been viewed as synonymous, the

United States Supreme Court‟s interpretations of the United

States Constitution establish a minimum level of protection

while this Court, as final arbiter of the Tennessee

Constitution, is always free to extend greater protection to its

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citizens.

Seals v. State, 23 S.W.3d 272, 277 (Tenn. 2000) (citations omitted).

In State v. Ferguson, 2 S.W.3d 912, 915-18 (Tenn. 1999), our supreme court

addressed the issue of when a defendant is entitled to relief in the event the State has lost

or destroyed evidence that was alleged to have been exculpatory. The court explained

that a reviewing court must first determine whether the State had a duty to preserve the

lost or destroyed evidence. Ferguson, 2 S.W.3d at 917. Ordinarily, “the State has a duty

to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16,

or other applicable law.” Id.

If the proof demonstrates the existence of a duty to preserve the evidence and

further shows that the State has failed in that duty, we must proceed with a balancing

analysis involving consideration of the following factors:

1. The degree of negligence involved;

2. The significance of the destroyed evidence, considered in

light of the probative value and reliability of secondary or

substitute evidence that remains available; and

3. The sufficiency of the other evidence used at trial to

support the conviction.

Id. (footnote omitted). If the court‟s consideration of these factors reveals that a trial

without the missing evidence would lack fundamental fairness, the court may consider

several options such as dismissing the charges or providing an appropriate jury

instruction. Id. We will review a trial court‟s decision concerning the fundamental

fairness of the trial under a de novo standard. State v. Merriman, 410 S.W.3d 779, 790

(Tenn. 2013). In the event we determine the trial would be fundamentally unfair in the

absence of the lost evidence, we will review the remedy applied by the trial court under

an abuse of discretion standard. Id.

In its order regarding the Ferguson motion, the trial court found that the State had

the duty to preserve the stolen rings. The trial court further found that the destruction of

the stolen rings was not attributable to the State‟s negligence, noting that Detective

Wallace had put a hold on the evidence pursuant to police policy. The trial court also

found that the evidence was “rather significant due to the fact that it connects the victim‟s

items with the pawn shop on the day of the burglary.” Nevertheless, the trial court found

that “there [wa]s secondary or substitute evidence available in the form of the victim‟s

identification of the rings and description provided.” The trial court noted that the State

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possessed substantial evidence that would support a conviction, including the pawn

shop‟s records reflecting that the Petitioner pawned the stolen items the day of the

burglary, the victim‟s positive identification of the stolen items, and the detective‟s

witnessing of the identification. Additionally, the trial court found “that this loss of

evidence should be remedied by a proper jury instruction.”

The post-conviction court found that even if counsel was deficient regarding the

Ferguson issue, the Petitioner failed to prove prejudice. From the record before us, we

likewise conclude that the Petitioner would not have been entitled to relief on the

Ferguson issue on appeal and that, accordingly, he was not prejudiced by counsel‟s

deficiency regarding the appeal of that issue.

III. Conclusion

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

_________________________________

NORMA MCGEE OGLE, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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