Sheddrick Harris v. State of Tennessee

04/06/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 11, 2017 Session

SHEDDRICK HARRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 09-00594 W. Mark Ward, Judge

No. W2016-00904-CCA-R3-PC

The Petitioner, Sheddrick Harris, appeals from the denial of his petition for post-

conviction relief, wherein he challenged his jury convictions for first degree felony

murder and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202(a)(2), -

403. In this appeal as of right, the Petitioner raises the following ineffective assistance of

counsel claims: (1) that trial counsel was ineffective for failing to inform the Petitioner

that he had a constitutional right to a trial before a different judge than the one who

signed the search warrant for the Petitioner’s automobile; (2) that trial counsel was

ineffective for failing to seek recusal of the trial judge because the trial judge had an ex

parte communication with a head deputy that led to enhanced courtroom security

procedures, evincing the trial judge’s bias against the Petitioner, and because the trial

judge was the same judge who issued the search warrant; (3) that trial counsel was

ineffective for failing to challenge the warrantless search of the Petitioner’s vehicle,

failing to challenge the search warrant by requesting a Franks v. Delaware, 438 U.S. 154

(1978) hearing, and failing to challenge the Petitioner’s illegal detention effectuated

without probable cause and without an arrest warrant and solely for the purpose of

gathering additional evidence against the Petitioner; and (4) that trial counsel failed to

adequately impeach an attorney witness who was facing disciplinary action by the Board

of Professional Responsibility at the time of the Petitioner’s trial.1 After a thorough

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

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and CAMILLE R. MCMULLEN, JJ., joined.

1

We have restructured the Petitioner’s ineffective assistance of counsel claims for the purposes of clarity

and efficiency.

Seth M. Segraves (on appeal) and Michael R. Working (at hearing and on appeal),

Memphis, Tennessee, for the appellant, Sheddrick Harris.

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

Attorney General; Amy P. Weirich, District Attorney General; and D. Gregory Gilbert

and Omar Z. Malik, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTUAL BACKGROUND

In August 2010, a Shelby County jury convicted the Petitioner of first degree

felony murder and especially aggravated robbery in connection with “an ill-fated drug

deal turned robbery during which the victim . . . suffered the theft of over $10,000 and a

fatal gunshot wound to the chest.” State v. Sheddrick Harris, No. W2010-02512-CCA-

R3-CD, 2012 WL 29203, at *1 (Tenn. Crim. App. Jan. 5, 2012), perm. app. denied

(Tenn. May 16, 2012). For these crimes, the Petitioner was sentenced to life

imprisonment without the possibility of parole for the murder conviction and to a

consecutive sixty years for the especially aggravated robbery conviction. Id.

A. Trial. The thirty-eight-year-old victim, Corey Lester, was found shot to death

in his Memphis home on May 20, 2008. Harris, 2012 WL 29203, at *1. He had suffered

gunshot wounds to the left side of his chest, his left knee, and his right knee. Id. at *5.

According to the medical examiner, the chest injury was not survivable. Id.

Memphis Police Department (“MPD”) Detective Charles Teeters arrived at the

victim’s home after the victim’s body had been removed and observed what appeared to

be a “sizeable amount of cocaine” on the kitchen counter. Harris, 2012 WL 29203, at *4.

According to Detective Teeters, he believed “the substance to be approximately two kilos

of cocaine based upon its appearance and packaging[,]” but when he sampled the

substance, it did not have “the normal texture” of cocaine. Id. Detective Teeters

performed a field test of the substance that did not produce a “positive test for cocaine,”

and later testing at the property room confirmed that the substance was in fact not

cocaine. Id. There was, however, a small amount of cocaine recovered from a saucer on

the kitchen counter. Id. In addition, another detective recovered the victim’s wallet from

the master bedroom, which contained approximately $500 inside. Id. at *5.

MPD Detective Alpha Hanks processed the crime scene, noting spent shell casings

found in the front doorway, in a kitchen garbage can, and behind the living room couch.

Harris, 2012 WL 29203, at *4. She also documented a blood trail leading from the

kitchen to the victim’s body near the pool table, bullet holes in the couch, and one bullet

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hole in a pair of blue jeans. Id. She collected five spent .380 casings and two spent

bullets for ballistics testing. Id.

Two witnesses, Derron Macklin and Rocky2 Hilliard, placed the Petitioner at the

scene of the victim’s murder. At the Petitioner’s trial, they testified to the following:

Derron Macklin had known the victim “about a year” and considered

the victim a friend. On May 20, 2008, Mr. Macklin and another individual,

Rock[y] Hilliard, met with the victim at a Memphis Marshall’s department

store to arrange a drug deal with the [Petitioner], whom Mr. Macklin knew

as “Sed.” As Mr. Macklin explained, “[Mr. Hilliard] knew where some

drugs w[ere] and that [the Petitioner] want[ed] to see the money first.” Mr.

Macklin, however, became nervous about the drug deal because “who in

their right mind is going to show you the money first without seeing the

product.” After arranging a meeting between the victim and the [Petitioner]

for later that day, Mr. Macklin telephoned the victim and told the victim

that he was not “comfortable with what was fixing to go down” and

attempted to call off the transaction. The victim, however, told Mr.

Macklin that he would “go through” with the meeting.

Mr. Macklin and Mr. Hilliard picked up the [Petitioner] at a Fred’s

store and drove to a Shell station near the victim’s home. The victim had

told Mr. Macklin that he did not want Mr. Hilliard to come to his home

because Mr. Hilliard had been recently paroled from federal prison.

Therefore, Mr. Macklin, Mr. Hilliard, and the [Petitioner] met the victim at

the Shell station, where the [Petitioner] and Mr. Macklin got into the

victim’s white pickup truck and went to the victim’s home.

When they arrived at the victim’s home, Mr. Macklin went into a

living room area and began “racking up” a game of pool at the victim’s

pool table. The [Petitioner] received a phone call and “his whole attitude

changed.” The [Petitioner] demanded to see the money, so the victim

“brought out a little black pouch” containing money and placed it on the

kitchen table. The [Petitioner] became angry over the amount of money

presented. When the victim said, “[T]hat’s all the money I got,” the

[Petitioner] shot the victim in the leg. The [Petitioner] then asked for “the

rest of the money.” When the victim told him that the money was “back

there” in the victim’s bedroom, the [Petitioner] directed Mr. Macklin to

retrieve the money from the victim’s bedroom dresser. Mr. Macklin went

2

Sometimes this witness’s first name is spelled “Rockie,” but we will refer to him as “Rocky” to be

consistent.

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to the victim’s bedroom and returned with another small container of

money.

Next, the [Petitioner] ordered the victim and Mr. Macklin to the

living room couch. The [Petitioner] forced the victim and Mr. Macklin to

“strip down to [their] underwear” and told them that he was “going to have

to . . . kill [them].” Both men begged for their lives. When the [Petitioner]

telephoned someone but got no answer, the victim offered the [Petitioner]

any of his vehicles in return for leaving them without any further harm.

The [Petitioner] instructed Mr. Macklin to dress and go start one of the

vehicles—either a white pickup truck or a Corvette. The [Petitioner] stood

in the doorway of the home, watching both the victim and Mr. Macklin, as

Mr. Macklin walked outside to start the victim’s white pickup truck. Mr.

Macklin “got around the truck [and] stuck the key in the ignition[, but] it

didn’t fit. So [he] laid down and ran.”

Mr. Macklin fled the victim’s driveway and ran door to door seeking

help. Unable to summon any help from neighbors, Mr. Macklin went to the

Shell station where he telephoned Vincent Halliburton to warn him of what

had occurred because Mr. Halliburton was on his way to the victim’s home.

Mr. Macklin then telephoned 9-1-1 to report the shooting and returned to

the victim’s home to meet the police.

As Mr. Macklin walked back to the victim’s home, he saw the

[Petitioner] and Mr. Hilliard in Mr. Hilliard’s car. When Mr. Hilliard and

the [Petitioner] saw Mr. Macklin, “they hit the brakes so [he] just stepped

over in the bushes and then they left.” When Mr. Macklin returned to the

victim’s home, Mr. Halliburton was already standing outside. Mr. Macklin

told Mr. Halliburton that he and the victim had been robbed. Mr. Macklin

looked inside the door and saw the victim lying on his back by the pool

table.

The police soon arrived, and Mr. Macklin gave them a statement

during which he “tried to shy away” from discussion of the drugs because

he did not want to be charged in any conspiracy concerning the drugs.

Later at the police station, however, Mr. Macklin admitted to police that he

had been untruthful at the scene and “told them everything [he] knew at that

point,” including identifying the [Petitioner] as the shooter. He testified, “I

told [the police] that . . . we [were] there to buy drugs and we [were] getting

them from [the Petitioner] and he pulled up a gun and robbed us.” Mr.

Macklin only witnessed the [Petitioner’s] firing the first shot in the victim’s

leg, did not see any other shots fired, and did not see the drugs at any time.

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At trial, Mr. Macklin denied visiting the [Petitioner’s] home on the day of

the shooting.

Rocky Hilliard had known the [Petitioner] approximately six to

[twelve] months at the time of the shooting. He met the victim for the first

time on May 20, 2008. Mr. Hilliard assisted Mr. Macklin in setting up the

drug deal by getting Mr. Macklin in touch with the [Petitioner]. Mr.

Hilliard also expressed some reservations about the deal and told Mr.

Macklin and the victim to “leave it alone.” Mr. Hilliard testified that when

he and Mr. Macklin picked up the [Petitioner] at the [Petitioner’s] home,

Mr. Macklin went inside the [Petitioner’s] home for “maybe five minutes”

before both men came outside and got into Mr. Hilliard’s car. Mr. Hilliard

recalled that the [Petitioner] carried a large “dark black” bag to the car,

which he assumed contained drugs. Mr. Hilliard drove the men to the Shell

station to meet the victim and waited at a “wing place” restaurant near the

Shell station while the men went to the victim’s home.

Mr. Hilliard spent [thirty] to [forty] minutes “just sitting” at the

restaurant while the men were at the victim’s home. At one point, he

telephoned the [Petitioner] to ask what was taking so long, and the

[Petitioner] told him that they were about to test the drugs. Sometime later,

Mr. Macklin telephoned Mr. Hilliard, told him “you set us up,” and hung

up the phone. Soon thereafter, the [Petitioner] telephoned Mr. Hilliard for a

ride and told Mr. Hilliard that the victim and Mr. Macklin were “trying to

rob” him. Mr. Hilliard picked up the [Petitioner] on a nearby street and

took him home. On the trip to the [Petitioner’s] home, the [Petitioner]

repeatedly told Mr. Hilliard that the other men had tried to rob him.

Mr. Hilliard left the [Petitioner] at the [Petitioner’s] home and

traveled alone to Tunica, Mississippi. A[n MPD] detective telephoned Mr.

Hilliard in Tunica to ask him who killed the victim. Mr. Hilliard was

“shocked” to learn of the victim’s death. The next morning and while

accompanied by his attorney, Mr. Hilliard gave a statement to the

detectives and identified the [Petitioner] from a photographic lineup.

Harris, 2012 WL 29203, at *1-3 (“defendant” altered to “Petitioner” throughout; all other

alterations in the original).

Javier Bailey, Mr. Hilliard’s attorney, testified at the Petitioner’s trial that he

received a telephone call from Mr. Hilliard in the “wee hours of the morning” of May 21,

2008. Harris, 2012 WL 29203, at *4. He agreed to meet Mr. Hilliard at his office and

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accompany him to the MPD station later that morning, where Mr. Hilliard gave a

statement to MPD detectives. Id.

Robert Lambe testified at the Petitioner’s trial that he sold the Petitioner his 1998

black Cadillac DeVille at approximately 7:30 a.m. on May 21, 2008. Harris, 2012 WL

29203, at *4. According to Mr. Lambe, the Petitioner paid $4,900 cash, and he gave the

Petitioner a bill of sale and title transfer. Id. Mr. Lambe further testified that he had

removed all of his personal property from the vehicle prior to selling it and that he did not

leave over $13,000 in cash inside the vehicle or a Lorcin .380 pistol in the glove

compartment. Id.

MPD Detective Michael Garner arrested the Petitioner at a Memphis muffler shop

on May 21, 2008. Harris, 2012 WL 29203, at *4. “The [Petitioner] did not immediately

submit, but when cornered by Detective Garner and his team, the [Petitioner] ‘gave up.’”

Id. Although the Petitioner told Detective Garner that he did not have a vehicle at the

shop, the Petitioner “held a set of keys in his hand at his arrest. The officers confirmed

the keys belonged to a black Cadillac DeVille parked on the lot. A plain view search of

the vehicle uncovered paperwork relevant to the [Petitioner’s] recent purchase of the car

that morning.” Id. MPD Detective Samuel McMinn assisted Detective Garner in the

Petitioner’s arrest, testifying “at trial consistently with Detective Garner’s testimony

concerning the circumstances of the [Petitioner’s] arrest and search of the vehicle.” Id.

MPD Detective Barry Hanks prepared the search warrant for the Petitioner’s

vehicle and conducted the search. Harris, 2012 WL 29203, at *5. Detective Hanks

“discovered paperwork concerning the [Petitioner’s] ownership of the vehicle and

receipts showing the [Petitioner’s] payment of fines on the morning of May 21 in order to

have his driving privileges reinstated.” Id. Another officer found “two boxes containing

a large amount of money in the backseat” of the Cadillac and a handgun in the glove

compartment. Id.

On cross-examination, Detective Hanks acknowledged that he had averred in the

search warrant affidavit that no money was recovered at the victim’s residence. Harris,

2012 WL 29203, at *5. He explained, however, that “with the quantity of drugs or

suspected drugs that was on the scene,” he was thinking about “a large amount of money”

that would be needed “to purchase a kilo of cocaine” and that he “did not even think

about the five hundred dollars” found in the victim’s wallet when preparing the affidavit.

See id. He was also asked about his statement in the affidavit that he did not know how

Mr. Macklin left the scene. Detective Hanks believed that statement to be true,

reasoning,

When [Mr. Macklin] got a chance[,] he left the scene, [and] he went

down to a service station to try to summon help. . . . [H]e saw [the

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Petitioner] later leaving the area with Rock[y,] but he did not see [the

Petitioner] come out of the house and get into Rock[y]’s car and leave

because he also was gone from the scene.

Special Agent Raymond DePriest, a firearms examiner, determined that the Lorcin

.380 semi-automatic pistol found in the glovebox of the Cadillac was “fully functional.”

Harris, 2012 WL 29203, at *5. “Through his examination of the shell casings and bullets

recovered at the scene, he determined that they all were consistent with having been fired

from the pistol. Likewise, he determined that the bullets recovered from the victim’s

body had been fired from the same pistol.” Id.

B. Post-conviction. Following his unsuccessful direct appeal, the Petitioner filed

a timely pro se petition for post-conviction relief. Counsel was appointed, and two

successive amended petitions were filed. The Petitioner claimed that he received

ineffective assistance of counsel in the following ways: (1) trial counsel failed to inform

the Petitioner of his constitutional right to have a trial judge other than the one who

signed the search warrant preside over his case; (2) trial counsel failed to move for

recusal of the trial judge; (3) trial counsel failed to “move for suppression, based upon the

unlawful seizure and search, of [the] Petitioner and the gun and currency found” in the

black Cadillac; (4) trial counsel failed to impeach attorney Javier Bailey; (5) trial counsel

failed to obtain and present evidence of the Petitioner’s financial records; (6) trial counsel

failed to adequately investigate “all aspects of the case”; (7) trial counsel failed to obtain

a mitigation expert for the Petitioner’s sentencing phase; (8) trial counsel failed to

adequately meet and communicate with him; and (9) trial counsel failed to adequately

investigate and present mitigation evidence at the sentencing phase. He also alleged a

Brady violation and that appellate counsel was ineffective for failing “to raise all non-

frivolous issues” on appeal.

Thereafter, hearings were held on March 31, April 6, and April 8, 2016. We will

limit our recount of the facts from the post-conviction hearings to those that are relevant

to the ineffective assistance claims the Petitioner presents on appeal.

Trial counsel testified that he represented the Petitioner in both federal and state

court for charges relating to the victim’s death. In federal court, trial counsel obtained an

acquittal for the Petitioner on the charge of being a convicted felon in possession of a

firearm. Trial counsel maintained that the defense prevailed at the federal trial because

the jurors did not find Mr. Macklin or Mr. Hilliard credible, so their strategy “remained

consistent” in state court to likewise challenge their credibility. Trial counsel also

proffered as a reason for the federal acquittal that the jurors may have believed that Mr.

Hilliard planted the gun in the Petitioner’s Cadillac.

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Trial counsel recollected that Mr. Hilliard’s attorney, Javier Bailey, testified at the

Petitioner’s state trial, although Mr. Bailey did not testify in the federal trial. According

to trial counsel, Mr. Hilliard was “less than credible” at the federal trial, but Mr. Bailey

provided Mr. Hilliard with an alibi at the state trial, thus boosting Mr. Hilliard’s

credibility. Trial counsel was “disappointed” that Mr. Bailey was called to testify

because that essentially disproved Mr. Hilliard’s ability to plant the murder weapon

inside the Petitioner’s Cadillac because Mr. Hilliard’s whereabouts were then accounted

for prior to the Petitioner’s purchasing the Cadillac.

When asked if he considered impeaching Mr. Bailey at trial, trial counsel said that

he “did to a certain extent.” Trial counsel then confirmed his awareness that, prior to the

Petitioner’s trial, Mr. Bailey had been censured by the Board of Professional

Responsibility and that he “may have been suspended for inappropriate conduct”;

however, trial counsel noted that such “conduct occurred prior to 2010 and that conduct

[involved] dereliction of client’s matters.” Trial counsel also knew that there were

pending complaints against Mr. Bailey at the time of the Petitioner’s trial, but Mr. Bailey

was not disbarred until 2012. Trial counsel averred that he would have had no hesitation

about impeaching a fellow lawyer if he had felt the need to do so and provided an

example where he had done just that. In addition, trial counsel testified that he thought

the jury would find Mr. Bailey’s assertion “that he arrived at work at seven o’clock every

day” farfetched, and trial counsel did not want to weaken his credibility with the jury by

impeaching Mr. Bailey with “unfounded allegations” of misconduct. Trial counsel

denied that his personal liking for Mr. Bailey clouded his professional judgment.

In federal court, trial counsel filed a motion to suppress the evidence found in the

Petitioner’s black Cadillac, asserting that the Petitioner “was not close to the Cadillac

when he was detained or arrested by the officers” at the muffler shop. However, that

motion was denied. Trial counsel confirmed that he did not make a specific challenge to

the search warrant itself or to the Petitioner’s being illegally detained without a warrant

when his property was seized. While trial counsel did not believe that Detective Hanks

intentionally placed false information in the search warrant, the warrant did contain

“some inaccuracies,” in trial counsel’s opinion.

Trial counsel did not remember having any discussions with the Petitioner about

filing a suppression motion in state court and did not remember the Petitioner’s filing a

pro se motion to suppress or demanding a suppression hearing during the July 26, 2010

motion for a continuance proceeding. According to trial counsel, the Petitioner “was

more concerned about going to trial as fast as possible so [he] could get the same verdict”

from the federal trial.

Regarding recusal of the trial judge, trial counsel had no recollection of whether

the trial judge stated “on the record in that July pretrial hearing when the continuance was

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granted that [the Petitioner] would have an absolute right to transfer to a different

division for review of the warrant[.]” Trial counsel “may have told [the Petitioner] that

[he] would get a fair trial” in the trial judge’s courtroom.

Rachel Geiser testified that she worked on the Petitioner’s defense team as “the

guilt-innocence investigator” and that she assisted with the Petitioner’s cases in both

federal and state court. She interviewed some of the federal jurors following the

Petitioner’s acquittal on the firearm charge, and she would have prepared “reports” on

those interviews and given them to trial counsel. Ms. Geiser acknowledged that she did

not investigate Javier Bailey, explaining that Mr. Bailey was not “an actual fact witness”

because Mr. Bailey “was called to bolster” Mr. Hilliard’s testimony that Mr. Hilliard was

in Mr. Bailey’s office at a certain time.

The Petitioner testified that trial counsel failed to file certain pretrial motions. The

Petitioner stated that he requested a Franks hearing on the search warrant while speaking

with the trial judge on July 26, 2010, when the State’s motion for a continuance was

granted. The Petitioner also claimed that he asked trial counsel to file a suppression

motion but that trial counsel declined, instead telling the Petitioner that he would say at a

post-conviction proceeding that he should have filed a suppression motion.

As for specifics of a suppression motion, the Petitioner said that he wanted a

suppression motion filed because the police searched the Cadillac before a warrant was

issued. According to the Petitioner, the police came to the muffler shop with guns drawn

and took the Petitioner’s keys out of his pocket. The Petitioner said that the Cadillac was

forty or fifty feet away from him when he was arrested and claimed that he had “never set

foot in that car.” The Petitioner averred that he could see officers searching his car and

that no one would tell him why he was being arrested. The Petitioner further claimed that

there were false statements in the search warrant affidavit—those being that there was no

currency found at the scene, that Mr. Macklin was unaware of how the Petitioner left the

scene when his statement to the police indicated otherwise, and that the owner of the

muffler shop said that he saw the Petitioner in the black Cadillac. The Petitioner also

believed that he was arrested without probable cause and detained “under an unlawful

forty-eight-hour hold[.]”

The Petitioner felt that the search of the car was illegal. When asked if the

Petitioner as a federal probationer consented to a search of his property and car without

objection, he said that he did not.

According to the Petitioner, trial counsel did not file a motion for recusal of the

trial judge, which the Petitioner wanted because the trial judge signed the search warrant

and the trial judge’s “reviewing the evidence and having prior knowledge of this case.”

The Petitioner also claimed that trial counsel failed to inform him of his constitutional

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right to have a trial judge other than the one who signed the search warrant. Moreover,

the Petitioner averred that the trial judge had an ex parte communication “with one of the

head deputies” about the Petitioner’s being “a dangerous and vicious individual[,]” which

led to the heightened security measures at trial, showing that the trial judge had a

preformed opinion of the Petitioner.

Additionally, the Petitioner asserted that trial counsel failed to adequately

investigate Javier Bailey. The Petitioner confirmed that trial counsel presented the

defense in federal court that the Petitioner was essentially set up by Mr. Hilliard, which

was what the Petitioner wanted at the state trial.

MPD Detective Joe Stark testified that he spoke with both Mr. Macklin and Mr.

Hilliard after the victim’s death and that he knew they both had “extensive experience”

with the criminal justice system. Although Detective Stark had no prior interaction with

either of these individuals, he found them believable about the circumstances surrounding

the victim’s death because they were admitting involvement in a drug transaction.

Detective Stark recalled that the Petitioner was placed in an interrogation room

within a few hours after his arrest. According to Detective Stark, the Petitioner refused to

give a statement. Detective Stark also testified that he was involved in preparing the

forty-eight-hour-hold paperwork for the Petitioner following the Petitioner’s arrest.

Detective Stark had the arrest ticket and affidavit of complaint stamped on May 21st.

Sergeant Alisa Styles, the keeper of the Shelby County Jail’s records, confirmed

that the Petitioner first arrived at the jail on May 21, 2008. She stated that, at 12:52 p.m.

on May 22, 2008, the Petitioner was “located from post-booking to Lower Level C to a

housing unit.” At that time, the Petitioner was to be segregated from other inmates,

although the records did not indicate the reason for segregation other than the Petitioner

had “pending charges.” Sergeant Styles confirmed that the Petitioner was sent to court at

approximately 7:56 a.m. on May 27, 2008, to see a magistrate. She could not discount

the possibility that the Petitioner had a video arraignment on May 23.

Terrance Johnson, the owner of the muffler shop where the Petitioner was

arrested, testified. Mr. Johnson stated that he did not see the Petitioner drive onto the lot

on the morning of May 21, 2008. When the police asked Mr. Johnson that day what car

the Petitioner arrived in, Mr. Johnson told them that he did not know but that the

Petitioner had called earlier and asked to have some work done on a Cadillac. Mr.

Johnson conveyed that he spoke with an officer while standing in front of the trunk of the

Petitioner’s Cadillac, that he saw the doors of the Cadillac open at that time, and that he

saw paperwork in an officer’s hands.

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The Petitioner entered a multitude of exhibits to the post-conviction hearing.

Those exhibits include: a copy of the search warrant; the typewritten statements of Mr.

Hilliard and Mr. Macklin; a transcript of the federal suppression hearing conducted on

November 20, 2009; a July 26, 2010 transcript of the motion for a continuance; the trial

transcript of the cross-examination of Detective Hanks; a one-page computer print-out

showing the various dates and actions of disciplinary proceedings against Javier Bailey

by the Board of Professional Responsibility; a “Petition for Discipline” filed against Mr.

Bailey on September 16, 2009; a supplemental disciplinary petition filed against Mr.

Bailey on April 28, 2010; an April 26, 2012 press release showing Mr. Bailey’s

disbarment; the trial transcript of Mr. Bailey’s examination; the Petitioner’s May 21,

2008 arrest ticket; the affidavit of complaint; the Petitioner’s jail records; the Petitioner’s

intake papers; certificates earned by the Petitioner while incarcerated; an August 5, 2010

pretrial motion transcript about the enhanced courtroom security measures; and the

transcript of the motion for new trial.

After the conclusion of the proof, the post-conviction court denied the Petitioner

relief in an extensive written order filed on April 11, 2016, concluding therein that the

Petitioner had failed to establish his claims of ineffective assistance of counsel. This

timely appeal followed.

ANALYSIS

On appeal, the Petitioner argues (1) that trial counsel was ineffective for failing to

inform the Petitioner that he had a constitutional right to a trial before a different judge

than the one who signed the search warrant for the Petitioner’s automobile; (2) that trial

counsel was ineffective for failing to seek recusal of the trial judge because the trial judge

had an ex parte communication with a head deputy that led to enhanced courtroom

security procedures, evincing the trial judge’s bias against the Petitioner, and because the

trial judge was the same judge who issued the search warrant; (3) that trial counsel was

ineffective for failing to challenge the warrantless search of the Petitioner’s vehicle,

failing to challenge the search warrant by requesting a Franks v. Delaware, 438 U.S. 154

(1978) hearing,3 and failing to challenge the Petitioner’s illegal detention effectuated

without probable cause and without an arrest warrant and solely for the purpose of

gathering additional evidence against the Petitioner; and (4) that trial counsel failed to

adequately impeach an attorney witness who was facing disciplinary action by the Board

3

The Supreme Court in Franks held that, if a criminal defendant makes a sufficient showing that an

affiant knowingly, intentionally, or recklessly included in a search warrant affidavit a false statement

material to probable cause, the Fourth Amendment requires the court to conduct an evidentiary hearing at

his request. 438 U.S. at 171-72.

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of Professional Responsibility at the time of the Petitioner’s trial. We will address each

of the Petitioner’s issues in turn.

Post-conviction relief is available when a “conviction or sentence is void or

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

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.

Criminal defendants are constitutionally guaranteed the right to effective assistance of

counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.

amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective

assistance of counsel is made under the Sixth Amendment to the United States

Constitution, the burden is on the petitioner to show (1) that counsel’s performance was

deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.

668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because 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.”

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been

applied to the right to counsel under article I, section 9 of the Tennessee Constitution.

State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

Deficient performance requires a showing that “counsel’s representation fell

below an objective standard of reasonableness,” despite the fact that reviewing courts

“must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court

reviews a lawyer’s performance, it “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). Additionally, a

reviewing court “must be highly deferential and ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’”

State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at

689). We will not deem counsel to have been ineffective merely because a different

strategy or procedure might have produced a more favorable result. Rhoden v. State, 816

S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to

tactical choices only applies if the choices are informed ones based upon adequate

preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

As to the prejudice prong, the petitioner must establish “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466

U.S. at 694). “A reasonable probability is a probability sufficient to undermine

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confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must

establish that his counsel’s deficient performance was of such a degree that it deprived

him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,

263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.

1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies

the second prong of Strickland.” Id.

The burden in a post-conviction proceeding is on the petitioner to prove his

allegations of fact supporting his grounds for relief by clear and convincing evidence.

Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we

are bound by the post-conviction court’s findings of fact unless we conclude that the

evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d

450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of witnesses,

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

evidence are to be resolved” by the post-conviction court. Id. Because they relate to

mixed questions of law and fact, we review the post-conviction court’s conclusions as to

whether counsel’s performance was deficient and whether that deficiency was prejudicial

under a de novo standard with no presumption of correctness. Id. at 457.

I. Right to Different Judge and Recusal

The Petitioner argues that trial counsel was ineffective for failing to inform him

that he had a constitutional “right to have a different judge oversee the trial than the judge

who issued the search warrant,” citing Hamilton v. State, 403 S.W.2d 302 (Tenn. 1966),

in support of his assertion. In that same vein, the Petitioner argues that trial counsel was

ineffective for failing to file a motion to recuse the trial judge because the trial judge had

an ex parte communication with a head deputy that led to enhanced courtroom security

procedures, evincing the trial judge’s bias against the Petitioner, and because the trial

judge was the same judge who issued the search warrant for the Petitioner’s automobile.

The Petitioner also notes that he “asked for a recusal” of the trial judge during the hearing

on the State’s motion for a continuance and that the trial judge told him at the motion for

new trial hearing that he “would have been entitled to . . . a recusal, if he had asked for

it.” Finally, while acknowledging that in Hawkins v. State, 586 S.W.2d 465 (Tenn.

1979), our supreme court “pointed out that issuing a search warrant does not

automatically make a judge impartial,” the Petitioner asserts that this case “is different

due to allegations of the affiant[’s] withholding information about the informant from the

issuing judge.” According to the Petitioner, the trial judge “would have been a potential

fact witness during any motion to suppress.” He concludes, “The prejudice in this case

was that the motion for recusal would have resulted in a trial in a different courtroom

with a completely different trial and sentencing judge and a potentially different

prosecutor.”

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The State responds that the post-conviction court did not err “because Tennessee

law does not forbid a judge who signed a search warrant from sitting in judgment of a

case.” According to the State, a motion to recuse would have been futile based upon the

holding in Hawkins and, therefore, the Petitioner has not established deficient

performance.

The Petitioner filed a reply brief, contending that, regardless of the Hawkins

court’s holding, “the State cannot escape the reality that the trial court explicitly agreed

recusal might have been proper, had counsel for [the Petitioner] raised the issue.” The

Petitioner also notes the heightened security measures at trial due to an ex parte

communication as further evidence of the trial judge’s bias and submits that his “request

for disqualification was not based solely on the search warrant[.]” The Petitioner

continues, although “[t]rial counsel opposed the heightened security measures,” trial

counsel “did not seek disqualification” of the trial judge despite the Petitioner’s request.

The Petitioner claims that, at the motion for new trial hearing, the trial judge stated

the Petitioner “would have been entitled to a Franks hearing and a recusal, if he had

asked for it.” That is somewhat of an overstatement of the trial judge’s commentary at

the motion for new trial hearing. Instead, the trial judge made the following remarks

indicating that he would have allowed another judge to hear the suppression issue if he

had been asked: “[I]f anyone wanted to challenge this search warrant that I would allow

this to be randomly assigned back to the Criminal Court Clerk’s Office to give to another

[j]udge, to hear the search warrant issue.”; “[I]f [trial counsel] had wanted me to have a

hearing on the search warrant, I would have been glad to have let another [j]udge do it.”;

and “I would have been glad to recu[se] myself of any suppression motion, if been asked,

but I was never asked to and we never had a hearing on the warrant.” None of these

comments signify that the trial judge would have recused himself from presiding over the

Petitioner’s trial. Even so, any gratuitous comments made by the trial judge at the motion

for new trial hearing are not binding on this court regarding the ultimate issues presented

here.

A trial judge “is not disqualified from hearing a case because he or she has

knowledge of the facts of the case.” State v. Thornton, 10 S.W.3d 229, 237 (Tenn. Crim.

App. 1999) (citing State ex rel Phillips v. Henderson, 423 S.W.2d 489, 492 (Tenn.

1968)). Likewise, a judge “who initially issues a search warrant is not thereafter so

interested in the cause as to be disqualified[.]” Hawkins, 586 S.W.2d at 466.

What is more, this court has already addressed the issue of the Petitioner’s right to

a different trial judge. The Petitioner appealed the summary dismissal of his May 2016

pro se petition for a writ of habeas corpus, wherein he argued that the trial judge’s

signing the search warrant and presiding over his trial deprived the trial court of

jurisdiction. See Sheddrick Harris v. Randy Lee, Warden and State of Tennessee, No.

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E2016-01573-CCA-R3-HC, 2016 WL 7176984, at *1 (Tenn. Crim. App. Dec. 9, 2016),

perm. app. denied (Tenn. Mar. 9, 2017). In his habeas corpus petition, the Petitioner

again relied on Hamilton, 403 S.W.2d 302, and the trial judge’s comments at the motion

for new trial hearing in support of his argument. Id. at *1.

This court first stated that the Petitioner’s reliance on Hamilton was misplaced,

reasoning as follows:

In Hamilton, the defendant sought appellate relief on the basis that

the criminal court judge who presided over the defendant’s trial had also

issued the arrest warrant in his capacity as a general sessions court judge.

[403 S.W.2d] at 302. Our supreme court concluded that the defendant’s

constitutional rights were violated by the judge’s signing the arrest warrant

in his capacity as a general sessions court judge and by the same judge’s

presiding over the defendant’s trial in his capacity as a criminal court judge.

Id.; see Tenn. Const. art. 6, § 11 (“No Judge of the Supreme or Inferior

Courts shall preside on the trial of any cause . . . in which he may have

presided in any inferior Court, except by consent of all the parties.”);

T[enn]. C[ode] A[nn]. § 17-2-101(4) (2009) (“No judge . . . shall be

competent, except by consent of all parties, to sit . . . [w]here the judge . . .

has presided on the trial in an inferior court[.]”); see also Hawkins[], 586

S.W.2d [at] 465 []).

Harris, 2016 WL 7176984, at *2. After deciding that the constitutional violation at issue

in Hamilton was cognizable in a post-conviction proceeding not a habeas corpus petition,

this court nonetheless addressed the merits of the issue and, noting the procedural posture

of the case, determined that the Petitioner was not entitled to relief. Id. at *3. In so

concluding, this court explained,

[T]he record reflects that the judge who signed the search warrant and who

presided over the trial acted, in both instances, pursuant to his authority as a

criminal court judge. Nothing prohibits a criminal court judge from issuing

a search warrant relative to an individual’s property and later presiding over

the individual’s criminal trial. The search warrant attached to the petition

for a writ of habeas corpus reflects that it was issued on May 21, 2008, by

Criminal Court Judge Chris Craft. The record also reflects that the same

judge, in his capacity as a criminal court judge, presided over the

Petitioner’s trial.

Id. Therefore, no inferior court was involved; article 6, section 11 of the Tennessee

Constitution was not implicated; and no constitutional provisions were violated.

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Again, the Petitioner is not entitled to relief. We agree with the post-conviction

court that a trial judge’s issuing a search warrant would not disqualify the same judge

from presiding over the case at a later date and that the Petitioner has failed to prove

ineffective assistance of counsel for any failure to be so informed. E.g., Herman

McKinley v. State, No. W2016-02351-CCA-R3-PC, 2018 WL 799166, at *5 (Tenn.

Crim. App. Feb. 8, 2018) (citing Harris, 2016 WL 7176984, at *3); State v. William

Lance Walker, No. M2011-02588-CCA-R3-CD, 2013 WL 5436704, at *14 (Tenn. Crim.

App. Sept. 27, 2013) (citing Thornton, 10 S.W.3d at 237).

Furthermore, the Petitioner has also not established his factual allegation by clear

and convincing evidence that the trial judge would be required to testify as a fact witness

in this case regarding the falsity or truth of the affiant’s statements in the search warrant

affidavit. If the falsity of certain statements in the affidavit is established by a

preponderance of the evidence, then the falsehoods are removed from the affidavit, and

the court will determine whether the information remaining in the affidavit is sufficient to

support a finding of probable cause. Franks, 438 U.S. at 155-56. We see no need, under

normal circumstances, why the judge who issued the search warrant is a needed witness

at a Franks hearing. The Petitioner’s logic is “flawed because trial judges [are] asked to

review their previous rulings on other matters, including whether to grant a motion for a

new trial.” See Walker, 2013 WL 5436704, at *13. “[T]he judicial system [is] based on

the notion that trial judges review their own rulings for mistakes and erroneous findings.”

See id. “It has long been provided . . . that the magistrate who issues a search warrant

may hear and determine any contests concerning its validity or the grounds upon which it

was issued.” See id. (quoting Hawkins, 586 S.W.2d at 465). The Petitioner has failed to

demonstrate ineffective assistance in this regard.

Regarding trial counsel’s failure to seek recusal due to any ex parte

communication involving enhanced security procedures, the Petitioner argues that the

State ignored this ground for post-conviction relief in its brief. However, the Petitioner

did not mention this allegation on appeal until his reply brief. Issues raised for the first

time in a reply brief are waived. See State v. Walter Francis Fitzpatrick, III, No. E2014-

01864-CCA-R3-CD, 2015 WL 5242915, at *8 (Tenn. Crim. App. Sept. 8, 2015), perm.

app. denied (Tenn. Feb. 18, 2016); State v. Franklin Sanders, No. 02C01-9305-CR-

00102, 1994 WL 413465, at *10 (Tenn. Crim. App. Aug. 10, 1994) (“The defendant

cannot change issues from his original brief to his reply brief any more than he can

change theories from the trial court to the appellate court.”), aff'd, 923 S.W.2d 540 (Tenn.

1996); see also Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7); Carruthers v.

State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991).

Waiver notwithstanding, the August 5, 2010 pretrial motion transcript reflects that

the trial judge implemented heightened security measures after a discussion with “[his]

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head deputy” about the dangerousness of the Petitioner. The transcript indicates that the

trial judge imposed these procedures in light of the Petitioner’s record, which included

intimidating a witness, “the alleged facts of the case, from talking with the State of

Tennessee, . . . [and] input from the Federal Gang Task Force.” Accordingly, the trial

judge was informing the Petitioner and his counsel about the nature of those

conversations. Moreover, trial counsel did object to the heightened security measures

and that issue was raised in the Petitioner’s direct appeal. On direct appeal, this court

concluded that “the trial court did not abuse its discretion by imposing additional security

measures in the courtroom[,]” properly “consider[ing] the particular circumstances

presented in this case and t[aking] appropriate measures to protect all the participants in

the trial.” Harris, 2012 WL 29203, at *10. This court further determined that the

Petitioner had not “establish[ed] that the increased security measures utilized by the trial

court prejudiced his trial.” Id. (citing State v. Taylor, 771 S.W.2d 387, 396 (Tenn.

1989)). In light of these findings on direct appeal, the Petitioner has shown neither

deficient performance nor prejudice for trial counsel’s failure to seek recusal of the trial

judge on this ground.

Finally, the Petitioner contends that the post-conviction court erred by relying on

trial counsel’s testimony that he believed the Petitioner could get a fair trial in the trial

judge’s courtroom as a basis for “ruling that failing to file a motion for recusal was a

matter of trial strategy.” According to the Petitioner, “nothing in the record indicates

failing to file a motion for recusal was a tactical or strategic decision.” Because the

Petitioner’s underlying issues regarding recusal of the trial judge are without merit, trial

counsel was not required to file a futile motion irrespective of the deliberate nature of the

decision. See, e.g., Kyrie T. Adams v. State, No. W2011-02051-CCA-R3-PC, 2012 WL

6206043, at *6 (Tenn. Crim. App. Dec. 11, 2012) (“As such, trial counsel’s failure to file

a motion on grounds that would have ultimately been fruitless cannot be considered

ineffective assistance of counsel.”).

II. Motion to Suppress

The Petitioner contends that trial counsel was ineffective because he failed to file a

motion to suppress challenging the initial warrantless search of his car, the subsequent

search warrant affidavit, and the failure to promptly take him before a magistrate after his

arrest. Because it is important to our resolution of these issues, we note that trial counsel

did file a motion to suppress the evidence in the Petitioner’s federal case challenging the

Petitioner’s arrest and the search of the black Cadillac. Although the written motion

itself is not a part of the record on appeal, the transcript of the federal suppression hearing

is included. The federal judge denied suppression of the evidence, concluding that there

was probable cause for the Petitioner’s arrest, that there was not a full search of the car

prior to the issuance of the warrant, that the search warrant was valid, and that even if the

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warrant was invalid, the search would have been justified as either incident to a valid

arrest or under the inevitable discovery doctrine.

A. Warrantless Search and Search Warrant

The Petitioner submits that officers searched his car outside of the muffler shop

before securing a search warrant. The Petitioner also alleges that the following three

statements made by Officer Hanks in the affidavit supporting the search warrant were

false: (1) “[N]o currency was found on the scene.”; (2) “Macklin did not know how [the

Petitioner] left the scene.”; and (3) “Terrance Johnson told officers that he saw [the

Petitioner] in this black Cadillac.” Accordingly, trial counsel, in the Petitioner’s opinion,

should have filed a motion for a hearing pursuant to Franks. The State replies that trial

counsel made a reasonable strategic decision not to file a suppression motion in state

court when the matter had been “fully litigated” unsuccessfully in federal court, instead,

“focus[ing] his time and efforts elsewhere rather than hoping for some different result in

state court based on the vague possibility of the Tennessee Constitution’s providing some

greater protection.”

Regarding the initial warrantless entry into the Petitioner’s automobile at the

muffler shop, MPD Officer Michael Garner testified at the federal suppression hearing

that he did not search the Petitioner’s Cadillac on the scene. Officer Garner did admit to

briefly entering the vehicle: “I opened the driver’s side door to make sure there was no

damage inside the vehicle and maybe list items of value that may have been in the car to

remove liability when we send it to our lot for storage.” Officer Garner stated that he

observed only “registration papers and a couple of tickets sitting under the center

armrest.” This was confirmed by Detective Hanks’s testimony at the Petitioner’s trial.

Harris, 2012 WL 29203, at *5. None of the evidence obtained during the preliminary

entry of the Petitioner’s car was used to obtain the search warrant, and all other items

inside the car—the murder weapon and money—were seized after the search warrant was

secured. Based upon Officer Garner’s testimony, these items were in plain view.

Nonetheless, the evidence was discoverable pursuant to exceptions to the warrant

requirement discussed below.

Turning to the Franks issue, the United States Supreme Court has concluded that

evidence seized pursuant to a search warrant is subject to suppression when the

supporting affidavit includes deliberate or recklessly false statements by the affiant that

are material to the establishment of probable cause. 438 U.S. at 155-56. Our Tennessee

Supreme Court has concluded that two circumstances exist that “authorize the

impeachment of an affidavit sufficient on its face, (1) a false statement made with intent

to deceive the [c]ourt . . . and (2) a false statement, essential to the establishment of

probable cause, recklessly made.” State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978).

“Recklessness may be established by showing that a statement was false when made and

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that affiant did not have reasonable grounds for believing it, at that time.” Id.

“[F]raudulent misrepresentation of a material fact will invalidate a search warrant.” Id. at

406. However, “[a]llegations of negligence or innocent mistakes are insufficient to

invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293, 297 (Tenn. Crim. App.

1999); see Franks, 438 U.S. at 171. In order to invalidate a search warrant, the false

statement must be “the only basis for probable cause set out in the affidavit.” State v.

Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App. 1980).

We agree with the State and the post-conviction court that trial counsel had the

unique benefit of hindsight and made a strategic decision not to file a similar motion in

state court. While it is accurate that the Tennessee Constitution provides more protection

than the Fourth Amendment, the Petitioner provides no explanation as to how this would

have changed the results of a motion to suppress in state court, and we know of none.

Because there was no apparent reason to anticipate any more success with the same

suppression motion in state court, we do not question counsel’s strategical decision. See

e.g., Bruce Reliford v. State, No. W2012-02339-CCA-R3-PC, 2013 WL 6199280, at *9

(Tenn. Crim. App. Nov. 27, 2013) (noting that trial counsel “had the unique benefit of

hindsight” because “the case had already been tried in federal court, and they knew which

strategies were unsuccessful”).

While we also believe it is true that the Petitioner has failed to show that he was

entitled to a Franks hearing, we decline to digress into a lengthy discussion on whether

the statements made by Officer Hanks in the affidavit were reckless in nature or whether

the search warrant was supported by probable cause without those statements. This is so

because, even if the search warrant was invalid, we agree with the federal court and the

post-conviction court that the police lawfully searched the Petitioner’s Cadillac pursuant

to valid exceptions to the warrant requirement.

At the outset, we note our agreement with the post-conviction court and the federal

court that the Petitioner’s arrest was supported by probable cause. “Probable cause for an

arrest without a warrant exists if, at the time of the arrest, the facts and circumstances

within the knowledge of the officers, and of which they had reasonably trustworthy

information, are ‘sufficient to warrant a prudent man in believing that the [defendant] had

committed or was committing an offense.’” State v. Bridges, 963 S.W.2d 487, 491

(Tenn. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The police had the

statements of Mr. Hilliard and Mr. Macklin indicating that they helped arrange a drug

deal between the Petitioner and the victim on the evening the victim was shot and killed.

Mr. Macklin was present when the Petitioner tried to rob the victim, made him undress,

and shot him in the leg. Mr. Macklin dialed 9-1-1 when he later discovered the victim

and waited until police arrived. Mr. Hilliard stated that he picked up the Petitioner near

the victim’s home, that the Petitioner had a black bag in his possession at that time, and

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that the Petitioner made some questionable statements during the car ride indicating that

he had taken some money from the victim. The victim was found shot to death inside his

Memphis home, and a substance that appeared to be cocaine was present therein.

Therefore, the Petitioner has failed to show deficient performance from trial counsel’s

failure to challenge the Petitioner’s arrest for lack of probable cause.

Next, turning to the inventory exception to the warrant requirement, law

enforcement had the option of having the Petitioner’s car towed and subsequently

searched; a procedure that occurred in this case. See State v. Clay Stuart Gregory, No.

M2012-00546-CCA-R3-CD, 2013 WL 6187919, at *20 (Tenn. Crim. App. Nov. 25,

2013) (holding that a warrantless search could be conducted after the seizure of the

automobile); State v. Carrie Lynn Ronewicz, No. W2011-01332-CCA-R3-CD, 2012 WL

6719646, at *20 (Tenn. Crim. App. Dec. 26, 2012) (same). While the State must show

that impounding the vehicle was necessary, see State v. John Beasley Seay, No. M2011-

02769-CCA-R3-CD, 2013 WL 3777169, at *6 (Tenn. Crim. App. Jul. 16, 2013), the

search would have likely been justified pursuant to this exception. There is nothing in the

direct appeal record to show that impounding the Petitioner’s car was inappropriate under

the guidelines set forth in Drinkard v. State, 584 S.W.2d 650, 652-53 (Tenn. 1979).4

Therefore, “it was incumbent on the Petitioner to establish an adequate record at his post-

conviction hearing upon which this [c]ourt could determine the likelihood of success of a

motion to suppress.” Jason Lee Fisher v. State, No. M2014-02327-CCA-R3-PC, 2015

WL 5766521, at *6 (Tenn. Crim. App. Oct. 2, 2015) (quotation omitted).

In addition, applying the automobile exception to the warrant requirement, courts

of this state have upheld warrantless vehicle searches when law enforcement had

probable cause to believe that the vehicle contained contraband or evidence of criminal

activity. See State v. Leveye, 796 S.W.2d 948, 949 (Tenn. 1990) (upholding the search

of a defendant’s car after his arrest pursuant to the automobile exception where the car

was parked in a truck stop lot approximately seventy-five yards from the place where the

defendant was arrested); Ronewicz, 2012 WL 6719646, at *20 (concluding that the

victim’s identification of stolen items in the van gave probable cause to search); State v.

Jason Paul Sherwood, No. M2005-01883-CCA-R3-CD, 2007 WL 189376, at *9 (Tenn.

4

In Drinkard, our supreme court set forth guidelines to determine the validity of an inventory search of a

vehicle:

[I]f the circumstances that bring the automobile to the attention of the police in the first

place are such that the driver, even though arrested, is able to make his or her own

arrangements for the custody of the vehicle, or if the vehicle can be parked and locked

without obstructing traffic or endangering the public, the police should permit the action

to be taken rather than impound the car against the will of the driver and then search it.

Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to

take his vehicle into custody.

584 S.W.2d at 653.

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Crim. App. Jan. 26, 2007) (concluding that there was probable cause to search a van

when police knew that a shooting had occurred two hours earlier at a salvage yard and a

suspect had driven off in a white van, and when the defendant and van matched the

description of the suspect, the defendant was present in an area that the suspect was

thought to live, and there was an engine visible in the van’s interior); State v. Leslie

Darrell Debord, No. E2001-02808-CCA-R3-CD, 2003 WL 21476507, at *5-6 (Tenn.

Crim. App. June 26, 2003) (finding probable cause to seize the truck when police found a

stolen ATV in a secluded area next to the truck which was still warm and contained

machinery in the back); State v. Andre Anthony, No. W2002-01377-CCA-R3-CD, 2003

WL 23100339, at *11 (Tenn. Crim. App. Dec. 30, 2003) (concluding that, when the

defendant was apprehended while trying to use a stolen credit card, had no identification

other than the victim’s, and was parked nearby in a public parking lot, there was probable

cause to believe that the vehicle contained other property reported stolen and belonging

to the victim); Tony A. Makoka v. State, No. 01C01-9603-CC-00124, 1997 WL 469528,

at *3 (Tenn. Crim. App. Aug. 15, 1997) (determining probable cause existed to search a

vehicle when a shooting had just taken place, police saw the petitioner standing in the

area with or near a gun, and ammunition could be seen in the vehicle). Accordingly, the

Petitioner has failed to establish ineffective assistance of counsel in this regard.

B. Illegal Arrest

The Petitioner also argues that trial counsel was ineffective for failing to file a

motion to suppress “evidence and statements obtained as a result of the [Petitioner’s]

being held in custody without an arrest warrant” in violation of State v. Huddleston, 924

S.W.2d 666 (Tenn. 1996), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

According to the Petitioner, he was arrested on May 21, 2008, without the issuance of an

arrest warrant, and he was not taken before a magistrate until May 27, 2008. The

Petitioner contends that the MPD arrested him without probable cause “in order to

develop sufficient evidence to establish probable cause” and that he “was not brought in

front of the magistrate because the State needed time to establish a basis for the arrest.”

The State responds that the Petitioner’s arrest “was legal and founded upon

probable cause and [that] the exclusionary rule does not apply to evidence obtained

before a legal detention exceeds forty-eight hours in duration[.]” Accordingly, the State

surmises that the Petitioner has failed to establish his ineffective assistance of counsel

claim.

In Huddleston, our supreme court held that a judicial determination of probable

cause must occur within forty-eight hours of a warrantless arrest to protect a defendant’s

Fourth Amendment rights. 924 S.W.2d at 672 (adopting McLaughlin, 500 U.S. 44). A

confession obtained in violation of this forty-eight-hour time line is subject to being

excluded under a “fruit of the poisonous tree” analysis. Id. at 674.

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The Petitioner asserts that “evidence and statements” should be excluded as “fruit

of the poisonous tree” because they were obtained during his illegal detention while the

police built a case against him. It appears that the Petitioner is maintaining that the

evidence seized from his car, which was searched the same day he was arrested, should

have been suppressed due to his illegal detention. He also notes that, “[w]hile this case

did not directly deal with a confession,” he was brought “to the homicide bureau for

questioning immediately after his arrest.” While the Petitioner was questioned

“immediately after his arrest” at the homicide bureau, Detective Stark testified that the

Petitioner refused to give a statement. The Petitioner provides little insight into what, if

any, statements were used against him at trial that should have been suppressed.

Regardless, the Petitioner makes no real argument that any evidence was obtained

after the forty-eight-hour-mark; instead, his argument is that he was arrested without

probable cause and thereafter illegally detained. A delay shorter than forty-eight hours

may still be unreasonable and unconstitutional if it is “for the purpose of gathering

additional evidence to justify the arrest” or if it is “motivated by ill will against the

arrested individual[.]” McLaughlin, 500 U.S. at 56. As discussed above, the Petitioner’s

arrest was based upon probable cause. Thus, in order to prevail on a Huddleston claim,

the Petitioner would have been required to show that the government delayed the

probable cause hearing for unreasonable purposes, such as out of ill will or to gather

additional evidence. See McLaughlin, 500 U.S. 56-57. In the record, there is no evidence

of any such unreasonable purpose. Consequently, even if trial counsel had raised this

issue in a motion to suppress, the trial judge would have been compelled to find that there

was no Huddleston violation. When, for Strickland purposes, the Petitioner’s allegations

of deficient conduct is that his counsel failed to raise a claim that would have been denied

in any event, it is clear that the Petitioner has failed to demonstrate ineffective assistance

of counsel. See, e.g., Oscar C. Wells v. State, No. W2009-02231-CCA-R3-PC, 2010 WL

3583967, at *3 (Tenn. Crim. App. Sept. 15, 2010) (finding no ineffective assistance of

counsel for failing to raise a Huddleston issue).

Moreover, as noted above, trial counsel did file a motion to suppress in federal

court, challenging the Petitioner’s arrest, but the federal judge determined that the

Petitioner’s arrest was based upon probable cause. Again, trial counsel made a strategical

judgment not to file a similar motion in state court. Therefore, the post-conviction court

did not err in denying the Petitioner’s request for relief.

III. Impeachment of Javier Bailey

As his final issue, the Petitioner avers that trial counsel was ineffective for failing

to impeach attorney Javier Bailey with evidence of his disciplinary infractions.

According to the Petitioner, Mr. Bailey “was called [at the Petitioner’s trial] to establish

that . . . Rocky Hilliard was at Mr. Bailey’s office and could not have planted a gun in the

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black Cadillac.” The Petitioner maintained that, because Mr. Bailey “faced charges of

lack of candor to the tribunal and lack of diligence” at the time of the Petitioner’s trial,

trial counsel should have attempted to impeach Mr. Bailey’s testimony that he arrived at

7:00 a.m. every morning for work. The Petitioner contends that trial counsel’s decision

not to do so was unreasonable. The State asserts the counter proposition, asserting the

reasonableness of trial counsel’s strategy.

Trial counsel said that he was aware of allegations against Mr. Bailey at the time

of the Petitioner’s trial. Trial counsel testified, however, that he believed Mr. Bailey’s

testimony that he arrived at the office at 7:00 a.m. daily was inherently unbelievable and

that he did not want to attack another lawyer in front of the jury with matters that had not

yet been adjudicated. The post-conviction court found that this was “a matter of trial

strategy made with full information.” We agree.

Initially, we note that our review of Mr. Bailey’s trial testimony does not uncover

the statement to which the Petitioner refers regarding Mr. Bailey’s everyday arrival at

7:00 a.m. Mr. Bailey testified that, after Mr. Hilliard phoned him in “wee hours of the

morning” on May 21, 2008, he told Mr. Hilliard to meet him at his office before it opened

at 8:00 a.m. Mr. Bailey stated simply that “[he] g[o]t up very early anyway, and so he

told [Mr. Hilliard] that [he] would meet [Mr. Hilliard] at [his] office when nobody else

was there[,]” i.e., prior to 8:00 a.m.

Moreover, the Petitioner asserts that, prior to his trial, Mr. Bailey’s license had

been suspended once already and that Mr. Bailey had been censured. From the

documentation submitted at the post-conviction hearing, all that is apparent is that Mr.

Bailey was “on probation” with the Board of Professional Responsibility in 2004 and that

he was censured in 2007. While petitions for discipline had been filed against Mr. Bailey

at the time of the Petitioner’s trial, Mr. Bailey was not disbarred until April 2012.

Besides, Detective Stark testified at the federal suppression hearing corroborating much

of Mr. Bailey’s trial testimony. Detective Stark said that Mr. Hilliard arrived at the

police station around 10:00 a.m. on May 21, 2008, accompanied by Mr. Bailey.

Detective Stark also relayed that Mr. Bailey had phoned him “first thing in the morning”

when Detective Stark arrived at work. We cannot conclude that trial counsel was

deficient for failing to impeach Mr. Bailey with mere allegations of misconduct, the

introduction of which may have resulted in a mini-trial concerning those collateral

matters and unnecessarily alienated the jury.

In addition, the Petitioner asserts that “the testimony of Javier Bailey was one of

the only distinctions in proof from the federal trial” and that, “had trial counsel properly

impeached the witness, a reasonable probability exists that the result would have been

different, and would have resulted in an acquittal like the federal trial.” We cannot assess

the veracity of the Petitioner’s claim without the record of the federal trial. We only

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know that the Petitioner was acquitted of a federal firearm possession charge in

connection with these events. As such, we cannot speculate what might have happened at

the Petitioner’s state trial had Mr. Bailey been so impeached. See Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that, when an ineffective assistance

of counsel claim is predicated upon trial counsel’s failure to present witnesses or

introduce evidence, such witnesses’ testimony and evidence should be offered at the

evidentiary hearing in order for the post-conviction court to determine whether the failure

to call a witness or introduce evidence prejudiced the petitioner). The Petitioner has

failed to demonstrate that he was prejudiced by trial counsel’s alleged failure.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, we affirm the

judgment of the post-conviction court.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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