State of Tennessee v. Marcus Traveno Cox, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 13, 2016

STATE OF TENNESSEE v. MARCUS TRAVENO COX, JR.

Appeal from the Circuit Court for Marshall County

No. 2012-CR-174 Forest A. Durard, Jr., Judge

No. M2015-00512-CCA-R3-CD – Filed March 31, 2016

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Appellant, Marcus Traveno Cox, Jr., stands convicted (after merger of duplicate counts)

of possession with intent to sell less than .5 grams of cocaine, possession with intent to

sell more than one-half ounce but less than ten pounds of marijuana, possession of a

Schedule III controlled substance (Lortab), possession of drug paraphernalia, and

possession of a firearm with intent to go armed during the commission of a dangerous

felony. The trial court sentenced him to an effective sentence of nine years in the

Tennessee Department of Correction. On appeal, appellant argues that the indictment

and jury instructions for the possession of a firearm charge were fatally deficient and that

he received ineffective assistance of counsel. Following our review, we affirm the

judgments of the trial court.

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

ROGER A. PAGE, SP. J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.

John S. Colley III, Columbia, Tennessee, for the Appellant, Marcus Traveno Cox, Jr..

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel; Robert James Carter, District Attorney General; and Weakley E. Barnard,

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

OPINION

I. Facts

At appellant‟s trial, the State presented evidence that on June 26, 2012, law

enforcement officers searched a house on Thomas Street in Lewisburg, Tennessee,

pursuant to a search warrant and found a 9mm Hi-Point pistol, 363.7 grams of marijuana,

0.47 grams of crack cocaine, and scales. The officers also found mail, a driver‟s license,

and clothing belonging to appellant. After the search, appellant‟s mother indicated that

the room searched was appellant‟s room. The search warrant was based on information

from a “reliable confidential informant” that the informant had been inside the residence

and had seen a large amount of marijuana and scales in appellant‟s bedroom within

twenty-four hours of officers‟ obtaining the search warrant. Parts of the search warrant

affidavit were read into evidence at the insistence of appellant and against his trial

counsel‟s advice.

Appellant, his mother, and his girlfriend each testified that appellant spent his

nights at his girlfriend‟s house and only periodically visited his mother‟s house. He had

only spent one night at his mother‟s house more than a month before the search. He kept

a gun, some clothing, and old mail in the room. However, according to his mother, he

received mail at his grandmother‟s house. He did not have a key to the house and had

been prohibited by his mother and brother from entering the house without a key.

Appellant testified that he owned the gun found in the room but denied any knowledge of

the drugs found therein.

Appellant was convicted of (Count 1) possession with intent to sell less than .5

grams of cocaine; (Count 2) attempted possession with intent to deliver less than .5 grams

of cocaine as a lesser-included offense; (Count 3) possession with intent to sell more than

one-half ounce but less than ten pounds of marijuana; (Count 4) possession with intent to

deliver more than one-half ounce but less than ten pounds of marijuana; (Count 5)

possession of a Schedule III controlled substance (Lortab); (Count 6) possession of drug

paraphernalia; and (Count 7) possession of a firearm with intent to go armed during the

commission of a dangerous felony. The jury unanimously found appellant guilty of

possessing the firearm with intent to go armed during the commission of four dangerous

felonies, representing Counts One through Four.

The trial court merged Count 2 into Count 1 and Count 4 into Count 3. The trial

court sentenced appellant to five years for Count 1; two years for Count 3; eleven

months, twenty-nine days for Count 5; eleven months, twenty-nine days for Count 6; and

four years for Count 7, with Count 7 to be served consecutively to Count 1 by operation

of law. The trial court imposed concurrent sentencing for the remaining convictions.

In appellant‟s motion for new trial, he raised ineffective assistance of counsel,

among other issues. He specifically complained that trial counsel provided ineffective

assistance of counsel (1) by failing to “attack” the search warrant prior to trial; (2) by

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failing to call the confidential informant to the stand after the informant asserted his right

against self-incrimination during a jury-out hearing; (3) by failing to voir dire a juror who

allegedly saw appellant exiting the jail van; and (4) by not objecting to testimony that

appellant placed calls from jail.

At the motion for new trial hearing, trial counsel testified that he did not challenge

the search warrant because the defense position was that appellant had no connection to

the house and therefore would not have “standing”1 to make a challenge. He further

explained that witnesses who could testify that appellant had an expectation of privacy

would be the same witnesses upon whom he intended to rely at trial to testify that

appellant was not a resident at the house. Regarding the juror who saw appellant exiting

the jail van, trial counsel stated that he did not want to draw attention to the incident by

asking for a curative instruction or by questioning the juror further on the matter. He

posited that highlighting the incident would have led to the juror‟s knowing for a

certainty that appellant was in custody when the juror originally only had a vague notion

that he might have seen appellant from a distance. Trial counsel testified that he did not

object to testimony about appellant‟s making calls from jail because appellant had

testified on direct examination about being in custody. Trial counsel believed that

objecting to further testimony “would just look like we were trying to hide something.”

Trial counsel stated that the confidential informant‟s basis for asserting his Fifth

Amendment rights was that the police believed the informant was at the Thomas Street

house to talk to someone in the house about “hiding or obfuscating [a] murder.” Trial

counsel said that appellant initially wanted to challenge the search warrant but later was

“on board” with trial counsel‟s decision not to challenge it. Trial counsel agreed that

appellant denied having met with the confidential informant but did not believe that

appellant‟s denial was sufficient basis to challenge the search warrant.

On cross-examination, trial counsel stated his belief that appellant‟s insistence on

submitting the search warrant as an exhibit to the trial led to appellant‟s being found

guilty. He said that the information about the juror‟s possibly seeing appellant outside

the courtroom came from appellant. Trial counsel testified that after appellant‟s trial, he

asked the juror whether the juror had seen appellant and that the juror responded that he

had not seen appellant. Trial counsel agreed that appellant mentioned having been in jail

several times during his testimony.

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Throughout the motion for new trial hearing and appellant‟s briefing, he seems to use

“standing” as shorthand for establishing a reasonable expectation of privacy. We note that the United

States Supreme Court instructed the bench and bar that while the analysis of a defendant‟s standing to

challenge a search and the analysis of whether a defendant‟s personal Fourth Amendment rights have

been violated are generally the same, “the better analysis forthrightly focuses on the extent of a particular

defendant‟s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably

intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 138-39 (1978).

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The trial court denied appellant‟s motion for new trial. Regarding appellant‟s

allegations of ineffective assistance of counsel, the trial court found that any challenge of

the search warrant would have been without merit and that trial counsel was thus not

ineffective for failing to challenge the warrant. The trial court also found that it would

have refused to allow the confidential informant to testify after the informant made it

clear that he would only assert his Fifth Amendment right not to testify; accordingly, trial

counsel could not be ineffective for failing to pursue the informant‟s testimony. The trial

court found that appellant‟s other two ineffective assistance of counsel issues, regarding

the juror‟s seeing him exiting the jail van and trial counsel‟s not objecting to testimony

about appellant‟s being in jail, were without merit because appellant himself mentioned

being in jail, unsolicited.

II. Analysis

Appellant presents two issues for our review. First, he contends that this court

should dismiss the indictment or grant him a new trial for his conviction for possession of

a firearm with intent to go armed during the commission of a dangerous felony because

the indictment did not identify the predicate dangerous felony and because the jury

instructions set forth the wrong mens rea element by including “knowingly” and

“recklessly” along with “intentionally.” Second, he maintains that he received ineffective

assistance of counsel at trial.

A. Possession of a Firearm Conviction

Appellant first raised the issue regarding the alleged insufficiency of the

indictment in his motion for new trial and first raised the issue regarding an error in the

jury instructions on appeal in his rebuttal brief. Therefore, both issues are waived. See

Tenn. R. Crim. P. 12(b) (motions alleging a defect in the indictment must be made prior

to trial unless the indictment “fails to show jurisdiction in the court or to charge an

offense”); Tenn. R. App. P. 3(e) (issues regarding jury instructions must be included in a

motion for new trial to avoid waiver on appeal); State v. Willie Duncan, No. W2013-

02554-CCA-R3-CD, 2014 WL 4243746, at *9 (Tenn. Crim. App. Aug. 27, 2014), perm.

app. granted (Tenn. Feb. 13, 2015), argued (Tenn. Nov. 4, 2015).

B. Ineffective Assistance of Counsel

Appellant contends that his trial counsel was ineffective for failing to challenge

the search warrant, for not having the confidential informant testify at trial, and for not

questioning the juror who allegedly saw appellant exiting the jail van. In his motion for

new trial, appellant also argued that trial counsel should have objected to testimony that

appellant made telephone calls from jail; however, he has not pursued this issue on

appeal. Rule 10(b) of the Rules of the Court of Criminal Appeals states, “Issues which

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are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this Court.” Therefore, any issues not raised in

appellant‟s brief are waived.

Initially, we note that this court has repeatedly warned appellants against

presenting claims of ineffective assistance of counsel on direct appeal because (1) it may

be difficult to establish ineffective assistance without an evidentiary hearing and (2)

raising the issue on direct appeal bars appellant from raising the issue in a post-conviction

petition. See State v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992); State v.

Thomas D. Taylor, No. E2011-00500-CCA-R3-CD, 2012 WL 6682014, at *9 (Tenn.

Crim. App. Dec. 21, 2012). However, in this case, the first reason for caution has been

mitigated because the trial court used the motion for new trial hearing as an evidentiary

hearing for appellant‟s claim of ineffective assistance.

A post-conviction petitioner bears the burden of proving his or her factual

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The

same standard applies when an appellant raises the claim of ineffective assistance of

counsel on direct appeal. State v. Burns, 6 S.W.3d 453, 461 n.5 (Tenn. 1999) (citing

Anderson, 835 S.W.2d at 607). “„Evidence is clear and convincing when there is no

serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.‟” Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v.

State, 297 S.W.3d 208, 216 (Tenn. 2009)).

Appellate courts do not reassess the post-conviction court‟s determination of the

credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing

R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of

witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,

245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-

conviction court‟s findings of fact are conclusive on appeal unless the preponderance of

the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)

(citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d

615, 631 (Tenn. Crim. App. 1997)). However, conclusions of law receive no

presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453

(Tenn. 2001)). As a mixed question of law and fact, this court‟s review of petitioner‟s

ineffective assistance of counsel claims is de novo with no presumption of correctness.

Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

The Sixth Amendment to the United States Constitution, made applicable to the

states through the Fourteenth Amendment, and article I, section 9 of the Tennessee

Constitution require that a criminal defendant receive effective assistance of counsel.

Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,

523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective

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assistance of counsel, he must demonstrate both that his lawyer‟s performance was

deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation

omitted). It follows that if this court holds that either prong is not met, we are not

compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.

2004).

To prove that counsel‟s performance was deficient, petitioner must establish that

his attorney‟s conduct fell below an objective standard of “„reasonableness under

prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202

S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:

“[T]he assistance of counsel required under the Sixth Amendment is

counsel reasonably likely to render and rendering reasonably effective

assistance. It is a violation of this standard for defense counsel to deprive a

criminal defendant of a substantial defense by his own ineffectiveness or

incompetence . . . . Defense counsel must perform at least as well as a

lawyer with ordinary training and skill in the criminal law and must

conscientiously protect his client‟s interest, undeflected by conflicting

considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial

counsel‟s performance, this court “must make every effort to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to

evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185

S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).

To prove that petitioner suffered prejudice as a result of counsel‟s deficient

performance, he “must establish a reasonable probability that but for counsel‟s errors the

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing

Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to

undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As

such, petitioner must establish that his attorney‟s deficient performance was of such

magnitude that he was deprived of a fair trial and that the reliability of the outcome was

called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463

(Tenn. 1999)).

Appellant‟s first argument is that trial counsel provided ineffective assistance by

not challenging the search warrant prior to trial. This led to appellant‟s insisting, against

counsel‟s advice, during trial to introduce the search warrant affidavit as evidence.

Appellant contends that the search warrant affidavit was deficient and that appellant had

“standing” to challenge the search warrant.

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The Fourth Amendment to the United States Constitution provides that “the right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated. . . .” Article I, section 7 of the

Tennessee Constitution similarly prohibits unreasonable searches and seizures, and our

supreme court has held that this provision is identical in intent and purpose with the

Fourth Amendment. See, e.g., State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); State v.

Vineyard, 958 S.W.2d 730, 733 (Tenn. 1997). “The essence of the prohibition against

unreasonable searches and seizures under the Fourth Amendment is to „safeguard the

privacy and security of individuals against arbitrary invasions of government officials.‟”

State v. Downey, 945 S.W.2d 102, 106 (Tenn.1997) (quoting Camara v. Mun. Court, 387

U.S. 523, 528 (1967)). The state and federal constitutional protections “are implicated

only when a police officer‟s interaction with a citizen impermissibly intrudes upon the

privacy or personal security of the citizen.” State v. Daniel, 12 S.W.3d 420, 424 (Tenn.

2000).

When a defendant seeks to suppress evidence seized pursuant to a search warrant,

the burden is on the defendant to prove by a preponderance of the evidence:

(1) the existence of a legitimate expectation of privacy in the place or

property from which the items sought to be suppressed were seized; (2) the

identity of the items sought to be suppressed; and (3) the existence of a

constitutional or statutory defect in the search warrant or the search

conducted pursuant to the warrant.

State v. Henning, 975 S.W.2d 290, 298 (Tenn. 1998) (citing State v. Evans, 815 S.W.2d

503, 505 (Tenn. 1991); State v. Harmon, 775 S.W.2d 583, 585-86 (Tenn. 1989)).

Tennessee Rule of Criminal Procedure 41(f) requires that the trial court receive evidence

on any issue of fact necessary to decide a motion to suppress. See Evans, 815 S.W.2d at

505. The trial court is not required to set an evidentiary hearing as a matter of course but

must do so only if the motion alleges facts that, if proven, would require the granting of

relief. Id. “Factual allegations that are general and conclusory, or based upon suspicion

and conjecture will not suffice.” Id.

The United States Supreme Court has held that the “rights assured by the Fourth

Amendment are personal rights, and that they may be enforced by exclusion of evidence

only at the instance of one whose own protection was infringed by the search and

seizure.” Simmons v. United States, 390 U.S. 377, 389 (1968). The focus of the inquiry

should be placed “on the extent of a particular defendant‟s rights under the Fourth

Amendment, rather than on any theoretically separate, but invariably intertwined concept

of standing.” Rakas v. Illinois, 439 U.S. 128, 139 (1978). Thus, in evaluating whether a

defendant‟s Fourth Amendment rights have been violated, we must determine (1)

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whether the defendant, by his conduct, has “„exhibited an actual (subjective) expectation

of privacy‟” and (2) whether the defendant‟s subjective expectation of privacy is “„one

that society is prepared to recognize as reasonable.‟” State v. Ross, 49 S.W.3d 833, 840

(Tenn. 2001) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring)). “A defendant has the initial burden of establishing a legitimate expectation

of privacy, and the failure to do so is dispositive in favor of the state.” State v. Talley,

307 S.W.3d 723, 730 (Tenn. 2010). Regarding guests in another person‟s house, this

court has previously stated the following:

[T]he fact that a person is an overnight guest in a residence or an apartment,

standing alone, is sufficient to clothe the guest with a legitimate expectation

of privacy in the premises sufficient to challenge the search and any

resulting seizure. However, a “casual visitor” or a “transient party guest”

does not have a reasonable expectation in the host‟s residence or apartment.

State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996); see United States v.

Dix, No. 94-4065, 1995 WL 351182, at *2 (6th Cir. June 9, 1995) (“As a casual, albeit

frequent, visitor to his sister‟s apartment, who did not keep clothing there, who did not

receive mail there, and who had no key, Dix had no reasonable expectation of privacy in

the premises.”). In addition, “a defendant‟s disclaimer of an interest in the object of a

government investigation will result in a loss of the defendant‟s subjective expectation of

privacy in that object, irrespective of other considerations such as actual ownership or

possession.” Ross, 49 S.W.3d at 842.

On appeal, appellant seemingly relies on evidence produced at trial to support his

argument that he had a reasonable expectation of privacy in the area searched by the

police, specifically that he kept personal property in the room, had lived there in the past,

and had visited within two weeks of the search. He did not present any evidence at the

motion for new trial hearing that he had a reasonable expectation of privacy in the room.

The proof at trial showed that appellant sometimes visited his mother‟s house but had

only spent one night there more than a month before the search. He kept a gun, some

clothing, and old mail in the room. However, he received mail at his grandmother‟s

house. He did not have a key to the house and had been prohibited by his mother and

brother from entering the house without a key. His girlfriend testified that he always

stayed overnight at her house. This evidence tends to show that appellant did not have a

reasonable expectation of privacy.

Moreover, trial counsel testified that his strategy at trial was to distance appellant

from the items found in his mother‟s house. He opined that this strategy would have

been undermined by the proof necessary to establish a reasonable expectation of privacy

for purposes of challenging the search. This court gives deference to matters of trial

strategy as long as the strategy is based on informed and adequate representation. Hellard

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v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Based on our analysis of appellant‟s expectation

of privacy in his mother‟s house, we conclude that trial counsel‟s strategy was valid.

Because this strategy amounted to a disclaimer of possessory interest, appellant could not

challenge the legality of the search. See Ross, 49 S.W.3d at 842. Therefore, we further

conclude that appellant‟s argument in this regard is without merit.

Next, appellant maintains that trial counsel was ineffective for his failure to ensure

that at least part of the confidential informant‟s testimony was heard by the jury and for

not pursuing the question of whether the juror saw appellant exiting the jail van.

However, appellant did not present the confidential informant‟s testimony at the motion

for new trial hearing. „“As a general rule, this is the only way [appellant] can establish

that . . . the failure to have a known witness present or call the witness to the stand

resulted in the denial of critical evidence which inured to the prejudice of [appellant].‟”

Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (quoting Black v. State, 794 S.W.2d

752, 757 (Tenn. Crim. App. 1990)). Regarding the juror issue, trial counsel testified that

after the trial, the juror claimed he had not seen appellant. In addition, trial counsel stated

that his decision not to pursue the issue was a matter of strategy. These arguments by

appellant have no merit.

CONCLUSION

Based on the briefs of the parties, the record, and the applicable law, we affirm the

judgments of the trial court.

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ROGER A. PAGE, SPECIAL JUDGE

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