Kedrick Carwell v. State of Tennessee

04/26/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 3, 2018

KEDRICK CARWELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11-03417 James C. Beasley, Jr., Judge

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No. W2017-01899-CCA-R3-PC

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The petitioner, Kedrick Carwell, appeals the denial of his post-conviction petition,

arguing the post-conviction court erred in finding he received effective assistance of

counsel at trial. Within the context of his post-conviction claims, the petitioner attempts

to challenge the jury instructions recited at trial, claiming the instructions led to a non-

unanimous verdict. Following our review, we affirm the denial of the petition and

conclude the petitioner has waived any challenge to the jury instructions or verdict.

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

J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and

ROBERT L. HOLLOWAY, JR., JJ., joined.

Christopher Ingram, Jr., Memphis, Tennessee, for the appellant, Kedrick Carwell.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stephen Ragland,

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

OPINION

FACTS

A Shelby County jury convicted the petitioner of carjacking and employing a

firearm during the commission of a dangerous felony, for which he received an effective

sentence of twenty-five years in confinement. On direct appeal, the petitioner solely

challenged the sufficiency of the evidence supporting his convictions. This Court

summarized the underlying facts leading to the petitioner’s conviction as follows:

State’s Proof

At trial, the victim, Johnathan Gibson, testified that on the evening

of January 9, 2011, he had permission to use his mother’s vehicle, a 2006

Ford Explorer, and drove it to “a little get-together” at the Prescott Place

Apartments in Memphis. His girlfriend and her sister accompanied him.

They decided to leave the party around 11:30 p.m. because it had started

snowing, and the victim went outside to start the vehicle and scrape ice off

the windshield. As he was doing so, he was approached by a man who

asked, “[H]ey, y’all having a party?” Because he had parked his vehicle

underneath a street light, the victim could see that the man had a gun. The

victim put his hands in the air, and the man told him to “get down.” As the

victim got down on the ground, he saw a second man, who was wearing a

hoodie with a white t-shirt over it and jeans, about three feet away with a

gun aimed at him. The first gunman then took the victim’s shoes and pants,

and the two men jumped into the victim’s vehicle and drove away. The

victim acknowledged that the second gunman never spoke to him during

the incident.

The victim said that on January 25, 2011, he was shown three

photographic arrays, from which he identified the [petitioner] as the second

gunman. He again identified the [petitioner] at a preliminary hearing in

March 2011 and identified him in the courtroom at trial. Asked if he had

any doubt as to his identification of the [petitioner] as one of the

perpetrators, the victim replied, “No, I’m not doubting.”

Officer Michael Thomas of the Memphis Police Department testified

that on January 21, 2011, he responded to a suspicious vehicle call at 2107

Imogene where he discovered the victim’s stolen vehicle.

Officer Newton Morgan of the Memphis Police Department testified

that on January 21, 2011, he examined the victim’s vehicle at the crime

scene office and discovered a Kool-Aid package on the front console. He

chemically processed the package to locate possible fingerprints. He

obtained a print and secured it in a lockbox for the latent prints department

to collect.

Debra Finley, a fingerprint technician with the Shelby County

Sheriff’s Department, testified that she obtained fingerprints from the

[petitioner]. Martin Milner, a latent print examiner with the Memphis

Police Department Crime Scene Investigations, testified that the

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fingerprints found on the Kool-Aid package matched those of the

[petitioner].

Defense Proof

Officer Bruce Brown of the Memphis Police Department testified

that he received the robbery report in this case on January 10, 2011, and

interviewed the victim by telephone. The victim told Officer Brown that he

could not identify the perpetrators because he did not get a good look at

them.

The twenty-two-year-old [petitioner] testified that at the time of the

offenses he made his living by selling cocaine, estimating that he made

between $200 and $400 per week. He admitted that he had four felony

convictions for sale of cocaine in 2009, for which he received five years of

probation. The [petitioner] denied any involvement in the carjacking of the

victim or that he had ever carried a gun. However, he admitted driving the

victim’s vehicle, explaining that a “dope friend named Black” had

“pawned” him the vehicle for a couple of hours in exchange for some crack

cocaine. Because “Black” told the [petitioner] that the vehicle belonged to

him and his girlfriend and “Black” had the keys for the vehicle, the

[petitioner] did not think the vehicle was stolen. He said he returned the

vehicle to “Black” after taking his mother to the Nike factory and going to a

shopping mall.

State v. Kedrick Carwell, No. W2012-01868-CCA-R3-CD, 2013 WL 4007530, at *1-2

(Tenn. Crim. App. Aug. 5, 2013). After its review, this Court affirmed the petitioner’s

convictions.

The petitioner then filed a timely petition for post-conviction relief on February

12, 2014, alleging he received ineffective assistance of counsel at trial and on appeal.

After the appointment of counsel, the petitioner filed an amended petition for post-

conviction relief. In the amended petition, the petitioner alleged trial counsel failed to

properly investigate his case, failed to call material witnesses at trial, failed to impeach

the victim at trial, failed to “properly inform [him] of [his potential] exposure,” and

“failed to object to [the] introduction of identification evidence.” The petitioner later

filed a second amended petition for post-conviction relief wherein he also challenged trial

counsel’s failure “to object to an improper verdict by the trial court” and failure “to

include [in] his Motion [for] New Trial that the jury did not [] find the [petitioner] guilty

of employing a firearm during the commission of a dangerous felony.” The petitioner

also alleged appellate counsel failed “to appeal the improper verdict by the trial court.”

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The trial court appointed new counsel for the petitioner, who filed a third amended

petition for post-conviction relief. In that petition, the petitioner further clarified his

allegations, as follows:

Trial counsel failed to call a material witness who could testify as to

how [the] [p]etitioner came into possession of the alleged victim’s vehicle,

thereby, corroborating [the] [p]etitioner’s theory as to how the Kool-Aid

packet, containing [the] [p]etitioner’s fingerprints, was found in the

victim’s vehicle.

Trial counsel failed to object to the inclusion of a “deadly weapon”

definition in the jury instructions creating the potential for a non-unanimous

jury verdict.

According to the petitioner, the inclusion of the definition of “deadly weapon” “permitted

the jury to deliberate upon both means of committing the offense of carjacking, by use of

a deadly weapon or by use of force or intimidation.” As a result, the petitioner argued he

was denied his right to a unanimous jury verdict, explaining:

Given the evidence presented at trial, that the [p]etitioner pointed a

gun at the victim, some jurors very easily could have convicted the

[p]etitioner of carjacking by use of a deadly weapon, a theory under which

the [p]etitioner was not charged, while other jurors may have convicted the

[p]etitioner of carjacking by force or intimidation, the theory under which

the [p]etitioner was charged.

At the subsequent post-conviction hearing, the petitioner offered no substantive

testimony concerning his claims but merely verified the contents of his petition.

Additionally, the petitioner offered copies of the trial transcript and jury instructions into

evidence. The State offered no proof.

After its review of the evidence presented, the post-conviction court denied the

petition, finding the petitioner failed to carry his burden of proof to show ineffective

assistance of trial counsel.1 Further, the post-conviction court dismissed the petitioner’s

claim that the inclusion of the definition of a deadly weapon in the jury instructions

resulted in a non-unanimous verdict, finding the argument to be without merit. The

petitioner timely appealed.

1

At the hearing, the petitioner stated he had no claims against his appellate counsel.

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ANALYSIS

On appeal, the petitioner only seeks review of his plain error claim that the trial

court erred by including “a ‘deadly weapon’ definition in the jury instructions.” The

State contends the petitioner has waived any and all challenges to the jury instructions.

Further, the State argues the petitioner “implicitly concedes that he has waived this issue

by requesting plain error review, which cannot be applied in post-conviction

proceedings.” Following our review of the record and submissions of the parties, we

agree with the State and affirm the judgment of the post-conviction court.

The petitioner bears the burden of proving his post-conviction factual allegations

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

fact established at a post-conviction evidentiary hearing are conclusive on appeal unless

the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500

(Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual

issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate

review of a trial court’s application of the law to the facts is de novo, with no

presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The

issue of ineffective assistance of counsel presents mixed questions of fact and law. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the

petitioner’s post-conviction allegations de novo, affording a presumption of correctness

only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6 S.W.3d 453,

461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show

both that counsel’s performance was deficient and that counsel’s deficient performance

prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687

(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

the standard for determining ineffective assistance of counsel applied in federal cases is

also applied in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the defendant by

the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the

Strickland test must be satisfied. Id. Thus, courts are not required to even “address both

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components of the inquiry if the defendant makes an insufficient showing on one.” Id.;

see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove

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

assistance claim”).

A petitioner proves a deficiency by showing “counsel’s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the

Strickland test is satisfied when the petitioner shows there is a reasonable probability, or

“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

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

Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,

101 (1955)).

Here, under the guise of a post-conviction petition, the petitioner attempts to

challenge the trial court’s inclusion of the definition of a deadly weapon in the jury

instructions, claiming it led to a non-unanimous verdict at trial. However, as noted by the

State, the petitioner has waived any and all challenges to the jury instructions recited by

the trial court, and in turn, the jury’s verdict, as he failed to address this issue at trial, in

his motion for new trial, or on direct appeal. “It is well established that a party may not

raise an issue in a post-conviction petition that could have been raised on direct appeal.”

Floyd W. Smith v. State, No. M2002-01933-CCA-R3-PC, 2003 WL 21486981, at *3

(Tenn. Crim. App. June 27, 2003), perm. app. denied (Tenn. October 27, 2003) (citing

State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000), overruled on other grounds

by State v. Terry, 118 S.W.3d 355 (Tenn. 2003)). In addition, “[a] ground for relief is

waived if the petitioner personally or through an attorney failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the

ground could have been presented.”2 Tenn. Code Ann. § 40-30-106 (g); see also Townes,

56 S.W.3d at 35. Upon our review of the record, it is clear the petitioner failed to raise

his present claim at any of the appropriate times including, at trial, in his motion for new

trial, or on direct appeal. As such, the petitioner’s present issue is waived, and he is not

entitled to relief. See Smith, No. M2002-01933-CCA-R3-PC, 2003 WL 21486981, at *3.

2

While two exceptions exist to this rule, neither applies in the petitioner’s case and therefore, we

will not discuss them.

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Furthermore, the petitioner’s request for plain error review of the issue presented

is unwarranted. “[T]he plain error rule, which would otherwise permit an appellate court

to address the issue sua sponte, may not be applied in post-conviction proceedings to

grounds that would otherwise be deemed either waived or previously determined.”

Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009) (citing State v. West, 19 S.W.3d

753, 756-57 (Tenn. 2000)). As a result, the petitioner’s request for plain error review of

the issue presented is not properly before this Court as we have determined the issue is

waived. Tenn. Code Ann. § 40-30-106 (g); see Strickland, 466 U.S. at 687. The

petitioner, again, is not entitled to relief.

Finally, we note, the record before this Court provides no evidence to support the

petitioner’s underlying claim. Though the petitioner submitted a copy of the trial

transcript and jury instructions into evidence at the post-conviction hearing, nothing in

the record indicates how the inclusion of the definition of “deadly weapon” affected the

verdict at trial. In its written order denying relief, the post-conviction court explained:

. . . [T]he petitioner alleges that the jury instructions provided by the

court were improper and could have led to inconsistent and non-unanimous

verdicts. The court instructed the jury as to the elements of [c]arjacking.

Namely, the court charged the jury that the State must prove that the taking

of a motor vehicle from the possession of another was by force or

intimidation. The court did not instruct the jury about the taking of a motor

vehicle from the possession of another by use of a deadly weapon. The

jury had only one option to consider that was a taking by force or

intimidation. However, within the definitions of terms submitted to the

jury the court defined a deadly weapon. The court acknowledges that said

definition should not have been a part of the instruction because there was

no element involving a deadly weapon. The petitioner alleges that because

he was described as using a firearm during commission of the [c]arjacking

the jury could have considered the alternative type of [c]arjacking and

therefore not have returned a unanimous verdict. Unfortunately, the jury

was never advised that there was an alternative type of [c]arjacking and

they could not or would not have considered it. The definition was at worst

surplus language and would not have led to an alternative type of

[c]arjacking verdict to which the jury was never exposed. There is no proof

that the jury’s verdict was not unanimous therefore this issue is without

merit.

Our review of the issue presented reflects that of the post-conviction court.

Nothing in the record supports the petitioner’s late challenge to the alleged impropriety of

the instruction defining a deadly weapon or the alleged non-unanimity of the jury’s

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verdict. As noted by the post-conviction court, deadly weapon was not listed as an

element in the charged offense. Rather, the definition was simply included within the

charge along with other defined terms. While the definition was unnecessary and

superfluous, the petitioner has failed to show how it affected the outcome of his trial.

Additionally, the record shows this Court upheld the jury’s verdict on direct appeal.

Finally, the record is absent any evidence supporting the petitioner’s present claim as a

valid attack on trial counsel’s performance or how trial counsel’s performance affected

the outcome of his trial. See Tenn. Code Ann. § 40-30-110(f); Goad, 938 S.W.2d at 369.

The petitioner is not entitled to relief.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the post-

conviction court is affirmed.

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J. ROSS DYER, JUDGE

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