Opinion

Frederick E. Braxton v. State of Tennessee

Court: Court of Criminal Appeals of Tennessee
Filed: Aug 31, 2016
Status: Published
On the bench: Judge Robert H. Montgomery, Jr.
Cited by: 0 cases
Authority: More cited than 2.8%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 9, 2016

FREDERICK E. BRAXTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-C-2845 Mark J. Fishburn, Judge

No. M2016-00161-CCA-R3-PC – Filed August 31, 2016

The Petitioner, Frederick E. Braxton, appeals the Davidson County Criminal Court’s denial

of his petition for post-conviction relief from his 2010 convictions for selling less than 0.5

gram of cocaine within 1000 feet of a school zone, evading arrest, and criminal

impersonation and his effective fifteen-year sentence. The Petitioner contends that he

received the ineffective assistance of counsel. We affirm the judgment of the post-conviction

court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and J. ROSS DYER, J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Frederick E. Braxton.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Victory S. (Torry) Johnson III, District Attorney General; and Wesley King,

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

OPINION

This case arises from the Petitioner’s selling cocaine to undercover police officers.

The Petitioner appealed his convictions, and in its opinion affirming the convictions, this

court summarized the facts as follows:

At trial, Detective Matthew Atnip of the Metro Nashville Police

Department recalled the events leading to Appellant’s arrest. In October of

2007, Detective Atnip was assigned to the Hermitage Crime Suppression Unit.

Detective Atnip was working with Detective Josh Walters on an undercover

“buy bust operation” that targeted street-level drug dealers. The two detectives

wore plain clothes and traveled in the area around Murfreesboro Road in an

undercover vehicle. Several other members of the Crime Suppression Unit

assisted in the operation.

On October 8, 2007, Detective Atnip drove the undercover vehicle to a

Mapco gas station at the corner of Murfreesboro Road and Thompson Lane.

He saw Appellant walking either to or from a Cadillac. Detective Walters

asked Appellant if he had any “work,” a slang term for drugs. Appellant stated

that he did not have any drugs. At that time, the undercover officers drove

away, heading down Murfreesboro Road toward downtown.

Detective Atnip next pulled into another gas station on Murfreesboro

Road near Spence Lane and the Waffle House. The vehicle was backed into

the parking space near the pay phone. A few minutes later, Appellant pulled

up next to them in his vehicle and asked the men what they needed. Detective

Walters told Appellant that they wanted a “40” of crack cocaine. Appellant

told the men it was “hot,” meaning that there were police in the area, and asked

them to follow him down the road. The detectives followed Appellant in his

car to the intersection of Blanton and Hill Avenues. Detective Atnip pulled his

car next to Appellant’s car.

Appellant asked the men if they were police officers. The detectives

denied being police officers. According to the detectives, Appellant handed

Detective Walters three or four loose rocks of crack cocaine. Detective

Walters tried to hand Appellant the forty dollars for the drugs; Appellant told

him to throw it to the ground. Detective Walters complied. Detective Atnip

drove away from the scene, giving the takedown signal to the other officers

involved in the operation. By the time the officers approached with lights and

sirens, Appellant had turned his car around so that he could pick up the money.

Appellant took off, “squealing his tires” and heading toward Hill Avenue.

Appellant was surrounded and taken into custody. Detective James Anthony

King, who was also a part of the investigation, recalled that the arrest of

Appellant took place near the intersection of Blanton and Hill Avenue, near

Murfreesboro Road.

Appellant gave his name as “Frederick Jones” and “Frederick Brown”

when he was read his Miranda rights. Detective Walters thought that

Appellant was actually “booked” as “Frederick Brown.” At some point during

the arrest, Appellant stated that he “just f[ ] up” and should “lay down” and go

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to “jail.” Following the arrest, Detective Atnip went to the location of the drug

purchase and recovered a bag that contained a large white rock. The substance

tested field positive for cocaine. . . .

. . . The contents of the bag were later tested by TBI scientist Ella

Carpenter . . . . Ms. Carpenter analyzed a sealed plastic bag that contained 2.8

grams of cocaine. She did not test the additional amount of cocaine in the bag

because it was not enough to increase the penalty. In other words, the amount

of cocaine was less than twenty-six grams, the statutory threshold for a greater

penalty. The report indicated that “[n]o analysis was performed on additional

rock-like substance. The gross weight of this additional rock-like substance is

3.4 grams.[1] The total[] weight for all the rock-like substances would not

exceed 26 grams.” Ms. Carpenter tested the substance and determined that it

was, indeed, crack cocaine, weighing 2.8 grams.

In May of 2009, the district attorney’s office requested that the

remainder of the substance be tested by the TBI. . . . The remaining substance

was also determined to be cocaine, weighing .4 grams. . . .

....

David Kline, the manager of the mapping division for Metropolitan

Planning Department, prepared a map of the area in anticipation of trial. The

map outlined an area 1000 feet around the Nashville School of the Arts.

According to the map, the intersection of Blanton Avenue and Hill Avenue

was within 1000 feet of the property of Nashville School of the Arts. In fact,

the intersection is 822 feet away from the property line of the school.

Appellant took the stand in his own defense. He described himself as

an “entertainer” trying to break into the music industry. On October 8, 2007,

Appellant was at the Mapco Station to meet a friend, Pamela Sircy. Appellant

was going to give Ms. Sircy a CD so that she could pass it along to her

“connections” on Music Row.

Appellant testified that he went into the store to buy some items for Ms.

Sircy when he noticed a new Mustang vehicle outside. He saw two men inside

the car. They asked him for “something.” Appellant claimed that he told the

men to go away, and he walked to his car. Appellant could sense that the men

This includes the weight of the packaging. Ms. Carpenter later explained that the gross

weight of the cocaine was 3.2 grams.

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were police officers. Appellant insisted that he did not sell drugs and had no

drugs on him that night.

Appellant told the men to go away when they asked him for drugs a

second time. Appellant testified that at some point, he heard a CB radio go off

inside the Mustang. Appellant claimed that he knew the men were police.

Appellant left the gas station in his car. He claimed that the Mustang

was following him. Appellant planned to get on the interstate when a car cut

in front of him. Appellant kept going straight and tried to perform a U-turn.

Appellant saw a “No U-turn” sign, so he turned on Blanton Avenue. When he

drove down the street to turn around, the Mustang pulled in front of him and

two other cars activated their blue lights, blocking him . . . on the street.

Appellant claimed that the police jumped out of their cars with their guns

drawn and that he did not make it to the intersection of Blanton and Hill before

this happened.

According to Appellant, the police never asked his name. They made

him get out of the car, searched him, and cuffed him. Appellant claimed that

the police told him to “shut up” when he asked what was going on that night.

Appellant insisted that he did not give a false name to police, instead he told

them that his identification was inside his pocket. Appellant admitted that he

used the alias Frederick Frank Brown when he was a teenager but claimed that

he has not used it since. Additionally, Appellant admitted that he was driving

on a suspended license.

State v. Frederick Edward Braxton, No. M2010-01998-CCA-R3-CD, 2011 WL 5573357, at

*1-3 (Tenn. Crim. App. Nov. 15, 2011), perm. app. denied (Tenn. Apr. 12, 2012).

On March 26, 2012, the Petitioner filed the instant petition for post-conviction relief

alleging multiple grounds of the ineffective assistance of counsel. The Petitioner’s sole

contention on appeal is that trial counsel provided ineffective assistance by failing to present

a material witness who would have supported his claim of innocence. Our recitation of the

evidence presented at the post-conviction hearing is limited to this issue.

At the post-conviction hearing, trial counsel testified that she and co-counsel

represented the Petitioner. Counsel said that she had practiced criminal law for thirty years

and that she had tried between thirty and fifty jury trials. She said that she began working on

the Petitioner’s case in the beginning of 2010, after a colleague left the public defender’s

office. She said that she examined the discovery, spoke with an investigator, determined

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what pretrial motions needed to be filed, met with the Defendant four or five times, and

prepared an opening statement, witness cross-examinations, and a closing argument to

prepare for the trial.

Trial counsel testified that during her meetings with the Petitioner, they discussed the

facts of the case, reviewed the charges and possible punishments, obtained the Petitioner’s

input, and prepared him for the trial. She said they discussed the possible defenses and the

benefits and pitfalls of the Petitioner’s testifying. She noted that the jury acquitted the

Petitioner of the Class A felony drug charge. She said that before the trial, she investigated

Pamela Jenkins and that she prepared “an examination” but could not recall whether Ms.

Jenkins testified.

On cross-examination, trial counsel testified that her meetings with the Petitioner were

usually two hours. She thought she began representing the Petitioner about six months

before the trial. She said that she and the Petitioner spoke about various things the Petitioner

wanted investigated and that she took photographs of the scene and presented the

photographs at the trial.

Trial counsel testified that she did not personally meet with Ms. Jenkins before the

trial but that her office investigated Ms. Jenkins. Counsel said that her file indicated she

prepared questions to ask Ms. Jenkins, leading counsel to believe that she had expected Ms.

Jenkins to testify at the trial. Counsel’s file did not indicate whether someone interviewed

Ms. Jenkins. She did not recall what, if anything, the Petitioner said about Ms. Jenkins.

Counsel was unsure whether someone interviewed Ms. Jenkins.

Trial counsel testified that the Petitioner was involved in his case, that he expressed

his opinions, and that they discussed trial strategy at length. Although she did not recall the

details of their discussions, she recalled discussing the case extensively.

Pamela Jenkins testified that she was incarcerated for especially aggravated robbery at

the time of the post-conviction hearing and that she had known the Petitioner for about ten

years. She said that she and the Petitioner were together when the Petitioner was arrested but

that nobody from the district attorney’s office or the public defender’s office contacted her.

She recalled the Petitioner’s driving her red, two-door Cadillac but said later, though, that the

Cadillac belonged to her uncle.

Ms. Jenkins testified that before the Petitioner’s trial, she spoke to the Petitioner’s

attorney on the telephone, that Ms. Jenkins told the attorney what occurred, and that the

attorney told Ms. Jenkins that Ms. Jenkins could not testify because of her background. Ms.

Jenkins did not know the attorney’s name. Ms. Jenkins said that on the night of the offense,

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the Petitioner was driving her car, that she called the Petitioner and requested he pick her up

from a friend’s home, that the Petitioner picked her up, and that they were driving to meet a

woman regarding the Petitioner’s music. Ms. Jenkins said the Petitioner stopped at a

convenience store at Ms. Jenkins’s request, that they went inside and purchased items, and

that when they returned to her car, she saw two undercover police officers walking toward

the Petitioner. Ms. Jenkins heard the officers ask the Petitioner if the Petitioner knew where

they could find drugs. Ms. Jenkins said that the Petitioner told the officers he did not know

where to find drugs but that the officers harassed the Petitioner about where to find drugs.

Ms. Jenkins said that she heard the officers’ radios, that she and the Petitioner were getting

ready to leave, and that she asked the Petitioner if he was okay. Ms. Jenkins said the

Petitioner told her that his driver’s license “was messed up.” She said that she and the

Petitioner got inside her car, that the officers stopped them from leaving, and that the officers

harassed the Petitioner, threw him on the ground, and took him to jail. She said later, though,

that they drove about three blocks before the police stopped them. She denied the Petitioner

was speeding or attempting to “chase away.”

Ms. Jenkins testified that when the officers stopped them three blocks from the

convenience store, they asked the Petitioner to get out of the car and asked for permission to

search the car. Ms. Jenkins said that the Petitioner became angry and that the officers asked

the Petitioner what was his “problem.” She said the officers searched the car and arrested the

Petitioner. She said neither she nor the Petitioner consented to a search of the car. She did

not know what, if anything, the police found during the search. She said the officers flirted

with her and asked what she “had on.”

On cross-examination, Ms. Jenkins testified that at the time of the Petitioner’s arrest,

she went by the name Pamela Searcy and that she had been previously convicted of theft and

attempted alteration of a vehicle license plate. She said the Petitioner was never outside her

presence between the Petitioner’s picking her up and the Petitioner’s arrest. She said that the

Petitioner was arrested near the convenience store on Murfreesboro Road. She said she was

sitting in the front passenger seat of the car. She denied she saw the Petitioner make a hand-

to-hand drug deal and said she did not see the Petitioner throw drugs on the ground.

Ms. Jenkins testified that she did not know the Petitioner testified at his trial that he

was alone at the time of his arrest. She said she and the Petitioner had been good friends at

the time of the Petitioner’s arrest, that they had not remained good friends, and that she last

saw the Petitioner in 2008. She said that she did not speak to the officers, other than when

they flirted with her.

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The Petitioner testified that he pleaded guilty in two or three previous cases because

he was guilty of the charges and that he went to trial in two cases because he was not guilty.

Relative to co-counsel, the Petitioner said he met with her once for about thirty minutes just

before the trial regarding a twenty-year plea offer from the prosecutor. The Petitioner said he

rejected the offer because he was not guilty.

The Petitioner testified that he met with trial counsel twice before the trial, that the

second meeting was the day before the trial, and that the meeting was less than one hour. He

said that he did most of the talking, that counsel said she would “do all this,” and that counsel

did not do anything before the trial.

The Petitioner testified that he told trial counsel about Ms. Jenkins, that he thought

counsel and co-counsel had interviewed Ms. Jenkins before the trial, and that he thought

counsel intended to present Ms. Jenkins as a trial witness. The Petitioner said that when he

realized Ms. Jenkins was not going to testify, counsel told him that Ms. Jenkins’s testimony

was not needed. The Petitioner did not understand. The Petitioner said that counsel told him

that counsel had interviewed Ms. Jenkins and that a few months before the trial, counsel

thought Ms. Jenkins would be a good witness.

The Petitioner testified that he was released on bond at the time of his arrest. He said

that he knew the people at the convenience store were police officers and that he initially

laughed at the officers when they stopped him a few blocks away from the store.

On cross-examination, the Petitioner testified that he did not ask Ms. Jenkins to leave

after their first encounter with the police officers at the convenience store. The Petitioner

agreed that he provided details about the events during his trial testimony. He agreed that he

was on bond for attempt to commit first degree murder at the time of his arrest and that he

was ultimately convicted of attempted second degree murder. He agreed his previous

convictions placed him in a higher offender classification, which resulted in a longer

sentence in the present case. He agreed he had previous convictions for possession with the

intent to sell less than 0.5 gram of cocaine, unlawful possession of a handgun, and voluntary

manslaughter.

The Petitioner stated that he chose to testify at the trial and that the jury credited the

police officers’ testimony. He said that he and trial counsel discussed the possible defenses

and that he received the State’s discovery package.

On redirect examination, the Petitioner testified that he did not speed as he and Ms.

Jenkins drove away from the convenience store, that he wore a seatbelt, and that he looked

both ways before driving onto the roadway. He admitted he had a suspended license at the

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time of his arrest. He said that when the police officers stopped the car, the officers did not

request his license and that the officers pulled him out of the car. He believed Ms. Jenkins’

testimony would have resulted in the jury’s acquitting him of all charges.

The post-conviction court denied relief. The court acknowledged the merits of the

Petitioner’s complaint that trial counsel dismissed Ms. Jenkins from testifying at the trial

without consulting him. The court found that counsel should have discussed dismissing Ms.

Jenkins with the Petitioner before Ms. Jenkins was released. The court found, though, that

Ms. Jenkins did not provide testimony at the post-conviction hearing that would have called

into question the validity of the jury’s verdicts. The court found that although Ms. Jenkins

corroborated the Petitioner’s testimony regarding his initial encounter with the police, Ms.

Jenkins was not present to add any insight into the actual events that led to the drug

transaction that might have resulted in a different verdict. The court found that although

corroborative evidence was generally relevant and material, the absence of Ms. Jenkins’s

testimony did not rise to the level of deficient performance because her corroborative

evidence related to undisputed facts.

The post-conviction court found that counsel made a strategic and tactical decision not

to call Ms. Jenkins as a witness, that counsel pursued a legitimate defense strategy based

upon adequate preparation, and that counsel communicated properly with the Petitioner. The

court determined that the Petitioner failed to establish by clear and convincing evidence that

counsel’s performance was deficient or that the Petitioner was prejudiced by counsel’s

performance. This appeal followed.

The Petitioner contends that trial counsel provided ineffective assistance by failing to

present Ms. Jenkins as a trial witness. He argues that Ms. Jenkins’s testimony was critical

because she was the only witness to the Petitioner’s encounter with the police. He argues

that because the Petitioner’s defense was actual innocence, Ms. Jenkins’s testimony would

have corroborated the Petitioner’s testimony that he did not sell cocaine to the officers.

Post-conviction relief is available “when the conviction or sentence is void or voidable

because of the abridgement of any right guaranteed by the Constitution of Tennessee or the

Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden

of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)

(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must

defer to them “unless the evidence in the record preponderates against those findings.”

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-

57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is

subject to a de novo standard of review without a presumption of correctness. Fields, 40

S.W.3d at 457-58.

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