John R. Jackson v. State of Tennessee

07/20/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 18, 2018 Session

JOHN R. JACKSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 41100157 William R. Goodman, III, Judge

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No. M2017-00787-CCA-R3-PC

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A Montgomery County jury convicted the Petitioner, John R. Jackson, of two counts of

facilitation of aggravated robbery, one count of aggravated burglary, one count of

facilitation of theft of property valued over $500, and one count of aggravated sexual

battery. The trial court imposed a total effective sentence of twenty years in the

Tennessee Department of Correction. On appeal, this court affirmed the judgments and

sentence. See State v. John R. Jackson, No. M2013-00696-CCA-R3-CD, 2014 WL

2039761 (Tenn. Crim. App., at Nashville, May 16, 2014), perm. app. denied (Tenn. Sept.

22, 2014). The Petitioner filed a post-conviction petition, and the post-conviction court

denied relief following a hearing. On appeal, the Petitioner maintains that he received the

ineffective assistance of counsel, his convictions are based on illegal evidence presented

at trial, and the State committed prosecutorial misconduct during opening and closing

statements. After review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

Taylor R. Dahl, Clarksville, Tennessee, for the appellant, John R. Jackson.

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

John W. Carney, Jr., District Attorney General; and J. Lee Willoughby, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

A Montgomery County jury convicted the Petitioner of two counts of facilitation

of aggravated robbery, one count of aggravated burglary, one count of facilitation of theft

of property over $500, and one count of aggravated sexual battery. On direct appeal, this

court summarized the evidence presented at the Petitioner’s August 2012 trial as follows:

[K.M.]1 testified that she was living in Shannon Woods Apartments

in Clarksville, Tennessee, on September 27, 2010. Xavier Brown was her

roommate. On the day in question, she left work at 3:00 a.m. and went

home. She and Brown watched a movie. At about 6:00 a.m., they began

watching a second movie. At approximately 6:15 a.m., [K.M.] heard the

door handle jiggle. When she looked up, she saw that the door was open,

and three men were standing there. Two of the men were armed and

masked. The third man was not masked.

The three men entered the apartment without consent. They began

screaming and pointing their guns at [K.M.] and Brown, telling them to get

up. The men were yelling about drugs. According to [K.M.], one of the

masked men went into her bedroom and bathroom and began “searching

and ransacking.” The unmasked man was looking through the cabinets and

closet in the living room, and the other masked man was talking to [K.M.].

The men made Brown get on his knees, and they made both Brown and

[K.M.] close their eyes. The men also made both victims strip to their

underwear. One of the men held a gun to the back of Brown’s head.

Another assailant said, “Don’t shoot that guy.”

The masked man that was speaking to [K.M.] asked her about her

fiancé. She testified that, “at first,” this person was “kind of just trying to

be nice.” Then, he told her to take off the rest of her clothes. When she

had done so, he told her “that if this was a different situation or under

different circumstances, he would try to talk to [her], that he liked [her]

tattoos.” [K.M.] testified that the man “rubbed his gun on” her tattoos and

then he “smacked [her] butt.” [K.M.] clarified that he rubbed his gun

across her chest. She added that these actions made her feel as if she had

been raped.

When the second masked man returned from the back of the

apartment, he asked the others what they were doing. [K.M.] asked him if

she could put her clothes back on, and he said yes. As the men were

leaving the apartment, they took [K.M.]’s phone apart and “threw it all in

different places,” warning her not to call the police. One of the men then

noticed [K.M.]’s engagement ring. He asked her to take it off, which she

1

It is the policy of this court to refer to victims of sexual crimes by their initials.

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did, and she began to cry. He put the ring back on her finger and said, “I

wouldn’t do that to you.” One of the other men then came up, put a gun to

her head, and took her ring, saying, “I’ll do that to you.” The men also took

an X–Box, a PlayStation, her laptop computer, CDs, and DVDs.

After the men left, [K.M.] went to her father’s house. Her sister

called the police.

Some weeks later, [K.M.] was doing her laundry at the apartment

complex’s facilities. The [Petitioner] approached her and began talking to

her. He asked if her fiancé was home. She became uncomfortable because

she did not recall having any previous conversation with him. On another

occasion, a friend of hers was at her apartment and asked if one of his

friends could join them. She said yes, and the [Petitioner] came over. She

remembered him from the laundry facilities. They had a conversation, and

she recounted the robbery. The [Petitioner] began explaining that his

brother, Demetrius, had been involved in the robbery. At the same time,

the [Petitioner] was blaming the robbery on “Flint.” The [Petitioner] did

not implicate himself in the robbery. During this same conversation at

[K.M.]’s apartment, the [Petitioner] asked to see her phone. When she

expressed reluctance, he asked if she was afraid that he was going to look at

her pictures. When she answered affirmatively, the [Petitioner] said, “I

wouldn’t do that to you.” She testified that she then thought, “[T]hat

sounds familiar.”

On cross-examination, [K.M.] stated that, at one point, the unmasked

man put a gun in her face, but she did not know if it was a third gun or if he

had gotten the gun from one of the masked men. She also stated that the

men indicated that they were there because of Brown and that they were not

there for her. She explained that Brown had been her roommate for two to

three weeks at that point.

[K.M.] acknowledged that she misidentified three suspects from

photographic arrays about one week after the assault. She acknowledged

that she never identified the [Petitioner] from a photographic array. She

stated that it was about two months after the attack that she saw the

[Petitioner] in the laundry facilities and that she “most definitely didn’t

recognize him.” She acknowledged that she did not know which man took

her property, but she saw them leaving with a duffle bag. She clarified that

one of her tattoos was on her breast, and the other one was on her hip. She

also said, “The nice guy had dreadlocks at the time.”

-3-

On re-direct examination, [K.M.] acknowledged that she initially

was dishonest with the police about Brown’s presence at her apartment

because he told her that he was in trouble. She kicked him out of the

apartment “[r]ight after it all happened.” She clarified that the [Petitioner]

was not pictured in the three photographic arrays in which she circled other

suspects. She also clarified that she never identified with certainty any of

the people she circled. On a fourth photographic array, she identified co-

defendant Dimetrius Ford with a notation that she was “80% sure.”

Xavier Brown testified that he stayed with [K.M.] at her apartment

for three or four months. He was planning on moving to Alaska and

intended to finance his move through selling marijuana. To this end, he

had asked some people around the apartment complex about where he

could purchase the marijuana.

At about 6:00 a.m. on September 27, 2010, he was watching a movie

with [K.M.]. They were both sitting on the couch. He heard the doorknob

jiggle, and then the door flew open and three men entered the apartment.

Two of the men were masked. The third man “grabbed his shirt and was

covering his mouth with it.” One of the masked men had dreadlocks, and

he had a gun. One of the other men also had a gun. The man with the

dreadlocks put his gun to Brown’s head and asked, “Where’s the green at?

Where’s the money?” Brown understood “green” to be a reference to

marijuana. The man made him and [K.M.] get up and empty their pockets

and take off their outer clothing. Brown took his wallet and phone out of

his pockets, and these items were taken.

Brown told the men that he did not know what they were talking

about, and they started going through the apartment. One of the men kept

him and [K.M.] under surveillance, one of the men went to the back of the

apartment, and the third man was in the kitchen. Brown was turned into a

corner, limiting his ability to see what was happening. He did not know if

the man in the kitchen was masked or not. Later, the man with the

dreadlocks put Brown on the floor, pulled Brown’s hoodie over him, and

hit him in the back of the head with the butt of his gun. Brown heard the

other two men tell the man with the dreadlocks not to shoot Brown.

Brown later identified a photograph of the [Petitioner] as the man

with the dreadlocks.

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On cross-examination, Brown admitted that he misidentified another

suspect from another photographic array. He also admitted that he was

untruthful in his written statement to the police. He admitted to previous

charges of assault and aggravated burglary. He admitted that he currently

was on probation. He acknowledged that he knew that selling half of a

pound of marijuana was a felony. He stated that the men made him and

[K.M.] disrobe in order to make sure they were unarmed.

Co-defendant Marquan Hudson testified that he participated in the

instant crimes with the [Petitioner] and Ford. He stated that the robbery

was the [Petitioner]’s and Ford’s idea and that those two men had

handguns, but he did not. Ford drove them in Hudson’s girlfriend’s truck.

The [Petitioner] and Ford covered their faces but Hudson did not. He heard

the other two men talking about getting “some weed.” He did not know

their destination, however.

When they got to the apartment at Shannon Woods, all three men got

out of the truck. Hudson tried to cover his face by pulling his shirt up.

They walked up to the apartment and found the door unlocked, so they

went inside. They saw a man and a woman in the apartment. Hudson

gathered some DVDs, video games, and CDs and put them in a bag. He

stated that, initially, he went into the back of the apartment with Ford but

then returned to the living room when he heard some commotion. He saw

that Brown was wearing nothing but his underwear and [K.M.] was naked.

The [Petitioner] was with them. He stated that he “tr[ied] to stop [the

Petitioner] from doing all the extra curricular activities.” He told the

[Petitioner] not to shoot Brown. The [Petitioner] walked over to [K.M.]

and rubbed his gun on her breasts and “butt.” The [Petitioner] was

laughing. When Ford returned to the front of the apartment, Ford told the

victims to put their clothes back on. Ford noticed [K.M.]’s engagement

ring. Initially, Ford took the ring but then gave it back to [K.M.]. Hudson

“ended up taking the ring.”

Hudson stated that they left the apartment with the bag containing

the items that he gathered. They returned to Ford’s house. Hudson stated

that he did not get any of the property that they took, but he acknowledged

using a cell phone that they got from the apartment. He pleaded guilty to

two counts of robbery in this case, and he agreed to testify against the

[Petitioner] as part of his plea agreement.

-5-

On cross-examination, Hudson reiterated that there were only two

guns used during the offenses.

Angelica Espinoza testified that she was dating Hudson in

September 2010. On the night of September 26, 2010, she drove herself to

a party at an apartment complex on Airport Road. At the party were

Hudson, Ford, and several other people. The [Petitioner] arrived after she

did. She went to bed there at about 2:30 a.m. and awoke at about 6:30 or

7:00 a.m. She and another woman were the only people still in the

apartment. Hudson had taken her vehicle at about the same time she went

to bed, telling her that Ford was going with him. After she woke up, she

saw her vehicle pull up. Ford was driving it, and with him were Hudson

and the [Petitioner].

Detective Eric Ewing of the Clarksville Police Department testified

that he was the lead investigator on this matter. After he developed the

[Petitioner] as a suspect, he interviewed the [Petitioner]. After being

advised of his rights, the [Petitioner] agreed to give a statement. Initially,

the [Petitioner] told Det. Ewing that Conway Lowder, nicknamed “Twenty

Two,” told him about having committed the crimes at [K.M.]’s apartment

with Ford and Hudson, nicknamed “Flint.” Because of the amount of detail

that the [Petitioner] related to Det. Ewing about the crimes, Det. Ewing told

the [Petitioner] that he did not believe that the [Petitioner]’s knowledge was

second-hand.

The [Petitioner] then admitted to having been with Ford and Hudson

during the crimes. The [Petitioner] gave two written statements that were

admitted into evidence. In these written statements, the [Petitioner]

claimed that the attack was Hudson’s idea and that, when Hudson talked

Ford into participating, the [Petitioner] went along to protect Ford, the

[Petitioner]’s “little brother.” When the three men entered the apartment,

the [Petitioner] went to the back and searched the bedroom closet. He

heard Hudson telling the victims to strip. When the [Petitioner] returned to

the living room, Ford went into the bedroom. As the [Petitioner] was

searching the kitchen, he heard Hudson say, “get naked.” When the

[Petitioner] looked, he saw “the girl is naked.” Ford returned and told

Manor to put her clothes on, and the [Petitioner] returned to the bedroom.

The [Petitioner] denied seeing anyone touch Manor in a “sexual manner,”

explaining that he “was facing the kitchen area when [Hudson] made her

strip.” The [Petitioner] also stated that he was unarmed during the attack

and that the only thing he took were some DVDs.

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Det. Ewing stated that he recovered [K.M.]’s engagement ring from

Ford’s attorney. The remainder of the stolen property was not recovered.

On cross-examination, Det. Ewing acknowledged that there was no

physical evidence connecting the [Petitioner] to these crimes. He

acknowledged that, initially, both victims provided some false information.

Also, when he first spoke with Hudson, Hudson denied being involved.

After Hudson was arrested, Hudson claimed to have been pressured into

participating.

The State rested its case-in-chief after Det. Ewing’s testimony and

dismissed the second charge of aggravated sexual battery. The [Petitioner]

waived his right to testify, and the defense presented no witnesses.

Based upon this proof, the jury found the [Petitioner] guilty of two

counts of facilitation of aggravated robbery, one count of aggravated

burglary, one count of facilitation of theft over $500, and one count of

aggravated sexual battery. On September 28, 2012, the [Petitioner] filed a

motion for judgment of acquittal on his aggravated sexual battery

conviction. On October 5, 2012, the trial court conducted a sentencing

hearing and denied the [Petitioner]’s motion for judgment of acquittal. The

trial court sentenced the [Petitioner] as a Range III persistent offender to

fifteen years for each of the facilitation of aggravated robbery offenses, to

fifteen years for the aggravated burglary, to eleven months and twenty-nine

days for the facilitation of theft, and to twenty years for the aggravated

sexual battery. The trial court ordered these sentences to be served in

prison, concurrently to each other but consecutively to previous sentences.

The judgment orders were entered and filed on October 5, 2012. The

Defendant filed a notice of appeal on November 5, 2012. The Defendant

filed a motion for new trial on November 14, 2012. The trial court held a

hearing on the [Petitioner]’s motion for new trial on March 28, 2013, and

subsequently denied it.

Jackson, 2014 WL 2039761 at *1-5.

The Petitioner filed a post-conviction petition raising numerous issues, including

ineffective assistance of counsel, use of illegal evidence, and prosecutorial misconduct.

At the hearing on the petition, the parties presented the following evidence: The

Petitioner testified that his trial attorney (“Counsel”) failed to cross-examine the State’s

witness, K.M., on prior inconsistent statements. He stated that K.M.’s statements to the

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police did not include a description of any of the suspects’ hair. The reports indicate that

she told the police that the intruders’ faces were covered so all she could see were the

suspects’ eyes. Additionally, K.M. testified consistently at a November 10, 2011

Community Corrections violation hearing. At trial, however, K.M. testified that one

suspect wore his hair in dreadlocks. The Petitioner recalled that he told Counsel to

question K.M. about her prior statements that did not include the detail about dreadlocks

and that Counsel “said he wouldn’t do it.” The Petitioner identified K.M.’s statement to

the police dated September 27, 2010. The statement is included in the record and makes

no mention of dreadlocks.

The Petitioner testified that another State witness, Xavier Brown, spoke with

police following the home invasion making no mention of dreadlocks. At the

Community Corrections violation hearing, however, Mr. Brown testified that one of the

suspects wore his hair in dreadlocks. The Petitioner identified Mr. Brown’s September

30, 2010 statement to police recounting the events of the home invasion. In the

statement, Mr. Brown did not describe the suspects’ appearances other than to say they

were armed. The Petitioner confirmed that Counsel did not cross-examine Mr. Brown at

trial about the lack of description in his initial statement to the police. The Petitioner

recalled that he specifically requested in several letters to Counsel and at trial that

Counsel introduce the police statements. The Petitioner stated that Counsel “didn’t

impeach the victims at all, whatsoever.”

The Petitioner testified that, at the Community Correction violation hearing, K.M.

“came up first and she stated that all she seen was eyes, she couldn’t see nothing else, and

their head was covered, neck was covered.” The Petitioner confirmed that he asked

Counsel the Thursday before his trial began to introduce the violation hearing testimony.

He reiterated that Counsel did not raise the discrepancies between K.M.’s prior statement

and her testimony at trial.

The Petitioner testified that Counsel was deficient for failing to seek the trial

court’s determination of the admissibility of his prior convictions at trial. According to

the Petitioner, before trial, Counsel never discussed the use of the Petitioner’s prior

convictions at trial with him. The Petitioner recalled that Counsel did not object when

the trial court asked about the State cross-examining the Petitioner on his prior

convictions. As it related to his decision not to testify, the Petitioner said the option was

never discussed; Counsel simply told him he would not be testifying at trial. The

Petitioner stated that he wanted to testify at trial but that he deferred to Counsel’s

judgment. He explained, “I mean, he was my lawyer so, as I said, I felt like he knew best

in that particular aspect of this.”

-8-

The Petitioner testified that “[a]t the time of trial” he told Counsel he wanted to

accept the State’s offer to plead guilty but that Counsel said that the State’s offer was “off

the table.” The Petitioner explained that the State’s notice of intent to seek enhanced

punishment referenced Tennessee Code Annotated section 40-35-106, which provides for

Range II, multiple offenders. Further, at a settlement date, the trial court had stated that

the Petitioner was a Range II, multiple offender. On the morning of the trial, however,

the trial court reviewed the notice and stated, “we’re going to make him a range three.” It

was at this point that the Petitioner decided that he wanted to accept the State’s offer.

The Petitioner said that he also asked Counsel to seek a continuance but that Counsel

responded that “I don’t think I’ll be able to do that.” The Petitioner said that Counsel

never asked the State if they would enter the plea agreement with the Petitioner or asked

the trial court whether it would grant a continuance. The post-conviction court entered

into evidence an April 21, 2012 letter from Counsel referencing the State’s offer. The

letter indicated the State’s offer of a guilty plea as a Range II offender for a fifteen-year

sentence. The Petitioner confirmed that he had no notice before trial that he was a Range

III offender. He confirmed that, had he known he would be sentenced as a Range III

offender, he would have accepted the State’s offer.

The Petitioner testified that Counsel did not prepare him for the sentencing

hearing. He recalled that Counsel discouraged him from speaking at the sentencing

hearing, but the trial judge allowed him to speak. He said that there were no witnesses on

his behalf and no mitigating factors presented. The Petitioner stated that Counsel did not

file a motion for new trial in a timely manner. The Petitioner said that he filed one

himself on October 29, 2012, within thirty days of the judgment. The Petitioner

identified Counsel’s untimely motion for new trial filed on November 14, 2012. The

Petitioner testified that, as a result of Counsel’s failure to timely file the motion for new

trial, many of the Petitioner’s issues were waived on appeal.

The Petitioner testified that he wanted to give the closing argument at trial.

Counsel told the trial court and the trial court denied the request. The Petitioner then

recounted the following exchange between he and the trial court, the trial court stated,

“no; said you have an attorney. I said well, can I fire him? He said you didn’t hire him

you can’t fire him.” The Petitioner agreed that this interfered with his right to present his

own defense.

The Petitioner testified that, during jury deliberations, the jurors asked about

K.M.’s description of the person or persons who touched her. Initially, the trial court

suggested that the response be that there was no description. The State, however,

disagreed and suggested the response be that the jury “needed to rely on their own

recollection.” The Petitioner testified that Counsel agreed to that instruction rather than

arguing that the jury should be told that there was no description.

-9-

The Petitioner testified that his first attorney filed a motion to suppress his

statement to the police. The Petitioner alleged that Detective Ewing told him that if he

gave an incriminating statement, “he’d give me a bond.” His first attorney believed the

statement would be suppressed on that basis. By the time of the suppression hearing,

however, the Petitioner was unable to pay his attorney so that attorney “dropped off [his]

case and sent somebody else over [ ] to handle it.” The subsequent attorney “didn’t argue

or fight for the case.” Counsel did not file a renewed motion regarding the suppression

motion.

The Petitioner testified about his allegation of prosecutorial misconduct. He said

that during opening argument the State said that he “molested” and “fondled” the victim.

The Petitioner said that the victim never alleged that someone “rubbed her, touched her,

caressed her, there was nothing sexual in nature for it.” He said the victim’s tattoo was

located “way up here by her collarbone.” The Petitioner said that Counsel also used the

word “fondle” during cross-examination of K.M. During closing argument, the State also

referenced testimony from Mr. Brown that he saw one of the suspects go over to K.M.

The Petitioner stated that Mr. Brown never testified to that but rather testified that “he

couldn’t see nothing the entire time.”

On cross-examination, the Petitioner agreed that K.M. testified that she saw the

Petitioner on two additional occasions after the burglary. The Petitioner agreed that

Counsel did cross-examine K.M. about her misidentification of the perpetrators. The

Petitioner read a sentence from the State’s notice of intent to seek enhanced punishment:

“The Defendant is a Career Offender pursuant to Tenn. Code Ann. § 40-35-106.”

Acknowledging that the statute was incorrect, the State inquired whether the actual

wording “Career Offender” made him aware that the State sought sentencing as a career

offender. The Petitioner agreed that he had seen the wording but that the trial court had

discussed Range II with him, so he believed he would be sentenced accordingly. The

Petitioner agreed that in court on the morning of trial the State announced career offender

and that he was actually sentenced below that as a persistent offender.

The Petitioner agreed that he argued with Counsel throughout the trial, attempted

to have him removed from his case, and wanted to do his own closing argument due to

his lack of faith in Counsel’s abilities. Given the discord between Counsel and the

Petitioner, the State inquired as to why the Petitioner followed Counsel’s “advice” about

testifying at trial. The Petitioner stated that he did so because he “didn’t know nothing

about that.”

The Petitioner testified that, if given the opportunity, he would have called his

wife, sister, brother, Community Corrections officer, and former teachers as “character

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witness[es]” at his sentencing hearing. The Petitioner said that he believed the trial court,

in mitigation, should have considered that the Petitioner was in school, he had “family

responsibilities, his sister had Lupus, and he was involved in community “fund raisers.”

The Petitioner stated that he was aware that his offenses had mandatory one hundred

percent sentences. He acknowledged that the trial court did sentence him at a lower

range than the career offender the State sought and that he received the minimum

sentence in the range for his aggravated sexual battery conviction.

The Petitioner agreed that, other than his concerns about the cross-examination of

K.M. and Mr. Brown, he had no complaints about Counsel’s examination of the other

witnesses at trial.

Counsel testified that he believed that portions of the Community Corrections

violation hearing would have been admissible, but had he sought the admission of those

portions it may have allowed the State to introduce portions that might have been harmful

to the defense. Counsel said that his trial strategy with respect to the aggravated sexual

battery charge was not to challenge whether the act occurred but to argue whether the act

constituted aggravated sexual battery under the law. Counsel stated that he did not

believe the Petitioner was the primary actor and felt he successfully conveyed this to the

jury based upon their finding of guilt as to facilitation. He said that he was “shocked” by

the aggravated sexual battery conviction because he did not believe the evidence

supported it.

Counsel testified that co-defendant Marquan Hudson placed the Petitioner at the

scene as did the Petitioner himself when the Petitioner spoke with Detective Ewing. As

to his agreement with reference to the Petitioner’s prior convictions, Counsel said he

agreed that they were valid convictions, but he did not address whether the Petitioner

could be impeached with those convictions. He stated that, had the Petitioner chosen to

testify, the issue of the use of the convictions would have then been addressed. About a

client’s right to testify, Counsel said that he typically told clients that there were three

areas in which the client must decide how to proceed: (1) whether to plead guilty or

proceed to trial, (2) whether to testify; and (3) whether to appeal. Counsel said that he

had “extensive discussions” with the Petitioner about “it” but that the Petitioner never

indicated he wanted to testify. Counsel said the only time he recalled the Petitioner

wanting to speak was for closing argument, and the trial court denied the request.

Counsel testified that he spoke with the Petitioner’s wife “a couple times” and that

she “wanted no part of it.” He said that no family or friends attended the trial on the

Petitioner’s behalf. Counsel testified that Counsel’s wife bought the Petitioner clothing

to wear at trial. The only name the Petitioner provided to Counsel as a potential witness

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was the Petitioner’s wife. Counsel said he did not recall any applicable mitigating

factors.

Counsel testified that he conveyed the State’s offer to the Petitioner and said that

he had “multiple conversations” with the Petitioner about the offer. Counsel explained to

the Petitioner that the offer had an expiration date as indicated on the offer letter. The

trial court also explained the offer to the Petitioner and “urged [him] to strongly consider

the State’s offer.” Counsel said that the State, the trial court, and he all went to “great

lengths” to ensure that the Petitioner was aware of the consequences of proceeding to

trial. Counsel stated, “There’s no doubt in my mind [the Petitioner] knew the risk he was

running by going to trial.” Counsel stated that the plea offer was no longer available at

the time of trial, but that if the Petitioner had asked him to, he would have “at least

asked.”

Counsel testified that, other than the issue addressed in the suppression motion

filed by the Petitioner’s first attorney, he did not find any other evidence that could be

suppressed. Counsel said that after the trial he filed a “motion for judgment of acquittal

based on the agg sex bat.” The trial court held a hearing and denied the motion. He said

he then filed the motion for new trial, but it was not within the required thirty days. He

admitted that the late filing was an oversight on his part.

About the Petitioner’s allegation that Counsel mishandled the response to the

question asked by the deliberating jury, Counsel testified that the trial court stated that it

did not normally comment on the evidence. Counsel said that his experience with that

particular trial judge was that the judge preferred that a jury make decisions based upon

what was presented. Counsel’s recollection of the exchange was that the trial court

appeared very reluctant to comment other than to instruct the jury to rely on their

memory of the evidence.

On cross-examination, Counsel testified that he did not recall the Petitioner asking

him to introduce K.M.’s previous statements, but agreed that the Petitioner asked “a lot of

questions during the trial” while Counsel was trying to listen to witnesses or the trial

court. Counsel agreed that he did not seek to introduce the prior statements into the

record. Counsel stated that he did not use K.M.’s previous statements to impeach her

because his trial strategy was not to challenge whether she was touched with a gun or not

but whether she was touched with the gun for purposes of sexual gratification. Counsel

denied telling the Petitioner “he was not going to testify.” He said that he would “never”

tell any criminal defendant they could not testify.

Counsel testified that he did not recall whether he met with the Petitioner before

the sentencing hearing, but noted that he could not produce anyone to testify on the

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Petitioner’s behalf. Counsel said that he did not recall the Petitioner, on the morning of

trial, stating that he wanted to accept the State’s offer. Counsel clarified, however, that if

the Petitioner had stated as much, Counsel would have spoken to the State about it.

Counsel acknowledged that there had been testimony during the post-conviction hearing

about confusion over the Petitioner’s range of sentencing. He stated that his recollection

was that the Petitioner was a Range III offender. Counsel stated that he did not recall the

Petitioner asking for a continuance to determine his range but said that, had the Petitioner

done so, he would have asked the trial court for a continuance. Counsel said that he was

never under the impression that the Petitioner was only proceeding to trial because he

thought he was a Range II offender. He said that, based upon his conversation with the

Petitioner, the Petitioner pursued trial because he believed he could “beat it.”

Counsel testified that he did not file a motion to suppress the Petitioner’s

statements to the police because prior counsel had already litigated the suppression issue.

Counsel admitted that he failed to timely file a motion for new trial; however, based upon

the trial, he believed the only valid issue to be raised on appeal was sufficiency of the

evidence, which was preserved.

Counsel testified that the trial court’s position with jury questions was to allow the

jury to rely on their recollection of the testimony rather than to comment on the evidence.

Counsel testified that was the decision made with respect to the jury question during the

Petitioner’s trial. Counsel said that he did not deny the Petitioner the opportunity to

present closing argument at trial. He said he conveyed the Petitioner’s request to the trial

court, and the trial court denied the request.

After hearing the evidence, the trial court took the matter under advisement and

later issued an order denying relief. It is from this judgment that the Petitioner appeals.

II. Analysis

On appeal, the Petitioner asserts that he received the ineffective assistance of

counsel, his convictions are based on illegal evidence presented at trial, and the State

committed prosecutorial misconduct during opening and closing statements. The State

asks that we affirm the post-conviction court’s judgment.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional

right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual

allegations in the petition for post-conviction relief by clear and convincing evidence.

T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate

the evidence below; all questions concerning the credibility of witnesses, the weight and

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

resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156

(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-

conviction court’s factual findings are subject to a de novo review by this Court;

however, we must accord these factual findings a presumption of correctness, which can

be overcome only when a preponderance of the evidence is contrary to the post-

conviction court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

A post-conviction court’s conclusions of law are subject to a purely de novo review by

this Court, with no presumption of correctness. Id. at 457.

1. Ineffective Assistance of Counsel

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9, of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The

following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] 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 [petitioner] by

the Sixth Amendment. Second, the [petitioner] must show that the

deficient performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,

a trial whose result is reliable. Unless a [petitioner] makes both showings,

it cannot be said that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772

S.W.2d 417, 419 (Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must

determine whether the advice given or services rendered by the attorney are within the

range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at

936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show

that counsel’s representation fell below an objective standard of reasonableness.” House

v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369

(Tenn. 1996)).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking

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into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,

753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the

“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”

Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly

deferential and “should indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,

we note that a defendant in a criminal case is not entitled to perfect representation, only

constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.

Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been

ineffective merely because a different procedure or strategy might have produced a

different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

“‘The fact that a particular strategy or tactic failed or hurt the defense, does not, standing

alone, establish unreasonable representation. However, deference to matters of strategy

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

preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).

If the petitioner shows that counsel’s representation fell below a reasonable

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by

demonstrating “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability

must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

a. Cross-examination

The Petitioner asserts that Counsel failed to impeach K.M. and Mr. Brown at trial

with inconsistencies from their police statements and Community Corrections violation

hearing testimony. He further asserts that Counsel was deficient for failing to introduce

the Community Corrections violation hearing transcript. The State responds that the

proof shows that Counsel properly cross-examined the victims about their statements and

prior testimony. In its order denying relief, the trial court made the following findings:

A review of the trial transcript reflects that trial counsel covered many, if

not all of the inconsistencies in [K.M.’s] prior statement. Petitioner makes

specific reference to testimony which he contends establishes that the

victim did not see the petitioner. The transcript of the violation of

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Community Corrections hearing reflects that the victim kept her eyes

closed “most” of the time. The victim further stated that she “sometimes”

saw who was doing various things to her during the robbery. As pointed

out by the State, to say that the victim kept her eyes closed the entire time is

factually incorrect.

Trial counsel established many inconsistencies, established that the

victim did not immediately call the police, and that the victim initially was

untruthful with the police. Therefore the court finds that trial counsel

afforded proper cross-examination, and that counsel’s performance was

neither deficient nor prejudicial to the defense.

....

The transcript of the Community Corrections hearing confirmed much of

the testimony of the victim, and while there were some inconsistencies, the

introduction of the transcript may very well have been detrimental to the

cause of the petitioner. Therefore this court does not find the failure to

introduce the transcript as being either deficient in the representation of

counsel, or prejudicial to the petitioner.

The evidence does not preponderate against the post-conviction court’s findings.

Counsel testified that he did not seek to enter the revocation hearing transcript into

evidence because of the potential for allowing the State to use the transcript to the

detriment of the defense. Counsel, however, questioned K.M. at trial about

inconsistencies in her statements and testimony. Specifically, he pointed out to K.M. that

at trial she testified three men were armed when previously she testified that only two of

the men were armed. Counsel elicited responses from K.M. indicating she did not know

which suspect carried her belongings out of her residence. Counsel also elicited from

K.M. her admission that she was not initially truthful with the police and did not

immediately call police after the incident. Likewise, Mr. Brown admitted to making false

statements to the police and failing to call the police at all following the robbery. Further,

the Petitioner has not shown that “there is a reasonable probability that, but for counsel’s

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

Strickland, 466 U.S. at 694.

Accordingly, the Petitioner has not shown that he is entitled to relief under the

Strickland standard. In our view, Counsel’s cross-examination of both witnesses was

reasonable. He stated his reasoning for not introducing the transcripts at the hearing,

which was an informed decision. By so doing, he limited the State’s ability to emphasize

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aspects of the testimony that were contrary to the defense theory. He did, however,

cross-examine both witnesses about discrepancies and elicited responses related to their

honesty as it related to the offense. Thus, we conclude that the Petitioner has failed to

show that Counsel was ineffective in his cross-examination of K.M. and Mr. Brown or

that any alleged deficiency prejudiced him. The Petitioner is not entitled to relief as to

this issue.

b. Admissibility of Prior Convictions

The Petitioner asserts that Counsel failed to seek a determination by the trial court

regarding the admissibility of the Petitioner’s prior convictions. The State responds that

the Petitioner has failed to prove deficiency in Counsel’s judgment regarding the prior

convictions and failed to show that his prior convictions would not have been admitted

for impeachment purposes. In the order denying relief, the trial court impliedly

accredited Counsel’s testimony as follows:

The testimony of trial counsel at the hearing for post conviction relief

reflected that the petitioner made a knowing decision not to testify. Since

the petitioner did not testify there was no reason for the trial court to

address the question of the admissibility of the petitioner’s prior

convictions.

At the post-conviction hearing, Counsel testified that the agreement to which the

Petitioner referred was Counsel agreeing that the convictions were valid; however,

Counsel had not been agreeing that the convictions could be admitted for impeachment

purposes. Counsel stated that the Petitioner did not intend to testify but had the Petitioner

indicated that he wished to testify at trial, Counsel would have pursued a determination

from the trial court as to the admissibility of the Petitioner’s prior convictions. Because

the Petitioner expressed no interest in testifying, a determination as to the admissibility of

the prior convictions was unnecessary. Accordingly, the post-conviction court did not err

in denying relief as to this issue.

c. Right to Testify at Trial

The Petitioner contends that Counsel failed to explain to him his right to testify

and instead told the Petitioner he would not be testifying. The State responds that the

Petitioner has failed to show that Counsel was deficient in this respect. In its order

denying relief, the post-conviction court made the following findings:

The testimony of trial counsel at the hearing for post conviction relief was

that trial counsel discussed at length with the petitioner concerning

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petitioner’s right to testify. In addition, the trial court reviewed with the

petitioner his right to testify, as reflected in the trial transcript. Further, the

petitioner executed a written waiver further confirming that he knowingly

and voluntarily waived his right to testify.

(citations to the record omitted).

At trial, after the State concluded its case-in-chief, Counsel announced that the

Petitioner was not going to testify. The Petitioner executed a waiver of his right to

testify, and the trial court questioned him about it. Specifically, the trial court asked the

Petitioner if he understood his waiver of the right to testify, and the Petitioner answered

in the affirmative. The Petitioner then identified his signature on the waiver. At the post-

conviction hearing, Counsel testified that he advised all clients that it was their decision

whether to testify. He said that he had “extensive discussions” with the Petitioner about

his rights and that the Petitioner never indicated any interest in testifying. Accordingly,

the Petitioner has not shown that he is entitled to relief under the Strickland standard.

d. Sentencing Hearing

The Petitioner asserts that Counsel was not prepared for the sentencing hearing

because he did not call any witnesses or present evidence of mitigating factors. The State

responds that the Petitioner has failed to show any deficiencies because, at the post-

conviction hearing, he did not present any of the witnesses he complains Counsel did not

call at the sentencing hearing. Further, the State points out that the Petitioner failed to

prove how his proposed mitigating factors would have changed the sentence.

We agree that Counsel’s failure to present known and available material witnesses

at trial may be grounds for post-conviction relief; however, only when the witnesses

testify at the post-conviction evidentiary hearing and the testimony’s absence from trial

“resulted in the denial of critical evidence which inured to the prejudice of the

petitioner.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). As the State

correctly notes, the Petitioner has failed to present any of the witnesses that allegedly

would have testified on his behalf at sentencing. We cannot speculate as to what the

witnesses’ testimony might have been. See Black, 794 S.W.2d at 757-58. Thus, it is

impossible to conclude that the Petitioner was prejudiced.

As to the Petitioner’s complaint with respect to mitigating factors, we conclude

that the Petitioner has failed to show a deficiency in Counsel’s performance. The

Petitioner merely asserts that his school attendance, family obligations and involvement

in community events were sufficient to mitigate his sentence. The evidence in the record

does not preponderate against the post-conviction court’s finding that the Petitioner failed

- 18 -

to show by clear and convincing evidence that he was deprived of his constitutional right

to effective assistance of counsel. The Petitioner had ten prior felony convictions and

was serving a Community Corrections sentence at the time of these offenses. The

Petitioner has failed to demonstrate how evidence of any mitigating factors would have

had a reasonable probability of changing the outcome of the sentencing hearing. The

Petitioner is not entitled to relief as to this issue.

e. State’s Plea Offers

The Petitioner asserts that Counsel was deficient because he did not “pursue a

resolution of this case short of trial.” He contends that he desired to reach a settlement in

this case and Counsel “refused” to convey his interest to the State. The State responds

that the Petitioner has failed to prove that Counsel’s performance was deficient and

prejudicial. As to this issue, the trial court made the following findings:

Trial counsel testified that he advised the petitioner of the offers from the

State, and that the petitioner declined such offers, and indicated that he

wanted to proceed with trial. Trial counsel also testified concerning forms

signed by the petitioner acknowledging the penalties that he was facing,

nevertheless the petitioner decided to proceed to trial.

The evidence does not preponderate against the post-conviction court’s findings.

An April 21, 2012 letter drafted by Counsel conveying the State’s offer to the Petitioner

was entered as an exhibit at the post-conviction hearing. The letter conveyed the terms of

the agreement and the Petitioner’s exposure at trial, warning the Petitioner of the

potential for “a significantly longer sentence.” At the bottom of the page is the

Petitioner’s signature acknowledging his receipt of the letter. Consistent with Counsel’s

testimony that he, the State, and the trial court all attempted to make the Petitioner aware

of his significant exposure at trial, was the State’s offer letter, outlining the offer and

indicating that the offer would expire on August 21, 2012. It was also signed by the

Petitioner. Additionally, in the record is a transcript of an August 24, 2012 settlement

hearing, reflecting that the trial court addressed the potential punishment the Petitioner

could face following a trial. The Petitioner claims he wanted to accept the offer on the

morning of trial, August 27, 2012, after its expiration; however, Counsel had no

recollection of the Petitioner requesting that Counsel attempt to accept the expired offer.

Counsel testified that, as was his practice, if the Petitioner had made such a request,

Counsel would have approached the State regardless of the expiration of the offer.

Further, the Petitioner has not shown that “there is a reasonable probability that, but for

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

Strickland, 466 U.S. at 694. The Petitioner presented no evidence showing that the State

- 19 -

would have extended its offer beyond the stated expiration. Accordingly, the Petitioner

has not shown he is entitled to relief as to this issue.

f. Pre-trial Motion

The Petitioner asserts that Counsel was deficient because he failed to file a motion

to suppress the Petitioner’s statement to the police. He contends that he provided the

statement based upon the promise of leniency. The State responds that Counsel was not

deficient because the Petitioner’s first trial counsel filed a suppression motion based upon

“promises of leniency and favoritism if he implicated himself in the crimes.” Jackson,

2014 WL 2039761, at *8. The post-conviction court denied relief, finding that Counsel

was not deficient for not filing a suppression motion on an issue already determined. We

agree. Counsel is not required to file a second motion raising the same grounds for which

the initial motion was denied. The Petitioner is not entitled to relief as to this issue.

g. Motion for New Trial

The Petitioner asserts that Counsel is ineffective for failing to timely file a motion

for a new trial. The State responds that, because the Petitioner failed to prove that he was

abandoned on appeal and that the State’s case was not subjected to the adversarial

process, he cannot establish a finding of presumed prejudice.

The Petitioner filed a pro se motion for new trial raising one issue related to jury

instructions. Because the Petitioner was represented at the time, his motion was not

considered by the trial court. Counsel also filed a motion for new trial; however, it was

untimely. Thereafter, Counsel withdrew from representation and a new attorney was

appointed. The new attorney filed an amended motion for new trial and the trial court

considered it on the merits. On direct appeal, the Petitioner alleged that “the trial court

erred in denying his pre-trial motion to suppress; erred in failing to determine whether the

[Petitioner]’s prior convictions were admissible; erred in failing to grant a continuance

after finding error in the State’s notice of intent to seek enhanced punishment; erred in

failing to instruct the jury on theft as a lesser-included offense of aggravated robbery; that

the evidence was not sufficient to support his conviction of aggravated sexual battery;

that the trial court failed to act as thirteenth juror; and that he should not have been

sentenced as a Range III offender.” This court determined that these issues were waived

due to the untimely filing of the motion for new trial but reviewed each of the issue for

plain error, finding none.

Here, the Petitioner relies on Wallace v. State to support his proposition that trial

Counsel’s failure to timely file his motion for new trial was ineffective and resulted in his

case not being subjected to “the adversarial appellate process.” 121 S.W.3d 652, 659

- 20 -

(Tenn. 2003). However, the Petitioner’s reliance on Wallace is misplaced. Similar to the

Petitioner’s case, the motion for new trial was untimely filed in Wallace. In Wallace,

however, as a result of the untimely filing, the Petitioner did not receive appellate review

of specific issues raised in the motion for new trial regarding alleged errors at trial as to

evidentiary issues and comments the trial judge made in front of the jury. In determining

whether the petitioner was entitled to post-conviction relief as a result of trial counsel’s

untimely filing of the motion for new trial, our supreme court held “a petitioner in a post-

conviction proceeding must establish that he or she intended to file a motion for new trial

and that but for the deficient representation of counsel, a motion for new trial would have

been filed raising issues in addition to sufficiency of the evidence.” Id. Further, the court

held, “[a]s a direct result of counsel’s ineffective assistance, the defendant was

procedurally barred from pursuing issues on appeal, and the State’s case was not

subjected to adversarial scrutiny upon appeal.” Id. at 660.

The Wallace court’s reasoning does not apply here. According to the record, the

Petitioner’s motion for new trial appears to challenge the trial court’s failure to instruct

on the lesser-included offense of theft as to the aggravated robbery charge because the

evidence did not support the aggravated robbery conviction. Counsel’s untimely filed

motion challenged the sufficiency of the evidence and sentencing. He testified at the

post-conviction hearing that sufficiency was the only issue of merit he identified and this

issue was preserved and reviewed on direct appeal. In Wallace, our supreme court held

that prejudice was presumed under United States v. Cronic, 466 U.S. 648 (1984), because

“[c]ounsel’s abandonment of his client at such a critical stage of the proceedings resulted

in the failure to preserve and pursue the available post-trial remedies and the complete

failure to subject the State to the adversarial appellate process.” 121 S.W.3d at 658.

Because trial counsel’s deficiency in failing to file a timely motion for new trial still

resulted in appellate review for plain error, we will not presume prejudice under Cronic.

Thus, the Petitioner must show how the untimeliness of the motion prejudiced him,

which he failed to do. Instead, the record indicates the Petitioner received direct

appellate plain error review of the issues raised in his motion for new trial and was

accordingly denied relief, and he is not entitled to post-conviction relief as a result. See

Jackson, No. M2013-00696-CCA-R3-CD, 2014 WL 2039761 (Tenn. Crim. App., at

Nashville, May 16, 2014).

We note that this court was unable to review the issue related to the trial court’s

failure to instruct on the lesser-included offense of theft because the record was

incomplete. This waiver of review, however, cannot be attributed to Counsel, as Counsel

had withdrawn before the case was appealed. The Petitioner is not entitled to relief as to

this issue.

h. Continuance

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The Petitioner faults Counsel for failing to seek a continuance following the trial

court’s determination that the Petitioner would be sentenced as a Range III offender. The

Petitioner asserts that, had Counsel sought a continuance, the trial court would have

granted the motion and the State would have agreed to settle the case based upon its

previous expired offer. The State responds that the Petitioner has failed to show that the

trial court would have granted a continuance and that the State would have agreed to the

then-expired offer. We agree with the State.

More than one year prior to trial, the State filed a Notice of Enhancement that

stated that the Petitioner was a “Career Offender pursuant to Tenn. Code Ann. 40-35-

106.” The notice listed ten prior felony convictions with attached corresponding

judgments. The Petitioner claims that this notice was not valid because, although it

clearly states “Career Offender,” the notice was confusing because the statute cited is the

statute governing Range II, multiple offenders. The State made an offer of settlement in

April 2012, and in its formal offer for a settlement with the Defendant, the State also

indicates that the Petitioner “is a Career Offender.” The Defendant signed the document

acknowledging his receipt of the document. On the morning of trial, the Petitioner

successfully argued that some of his prior convictions were not applicable. As part of

that discussion, the trial court announced that the Petitioner was a Range III, persistent

offender, rather than career offender or a Range II, multiple offender. The Petitioner then

proceeded to trial. He alleges that he asked Counsel to request a continuance, and

Counsel refused. Counsel testified that he did not recall the Petitioner making this

request, but had the Petitioner done so, Counsel would have made a motion for a

continuance. Counsel stated that, in his opinion, the Petitioner did not proceed to trial on

the basis of his sentencing range, but because he thought he could “beat it.”

The Petitioner has failed to show that Counsel was deficient for failing to move for

a continuance based upon the fact that Petitioner was “entitled to the proper ten (10) day

notice.” The Petitioner was given proper notice. Furthermore, the Petitioner has failed to

show that the trial court would have granted a continuance or that the State would have

entered into the expired plea agreement. Therefore, he has not shown that he is entitled

to relief under the Strickland standard.

i. Prejudicial Statements to the Jury

The Petitioner asserts that Counsel “prejudiced [the] Petitioner with his statements

to the jury in his opening statement and closing argument, which were not

constitutionally effective.” The Petitioner alleges that in his opening argument, Counsel

“gave an admission of guilt” and made prejudicial statements in closing argument. The

- 22 -

State responds that Counsel exercised reasonable judgement during his opening statement

and closing argument.

During the State’s opening argument, the State told the jury that they would hear

Detective Ewing testify that the Petitioner admitted to being in the residence at the time

of the robbery but that he stated that he did not have a gun. Counsel’s opening argument

was as follows: 2

[The State] has given you something of an outline of the case, along

with a possible interpretation of events that occurred. I want to say a

couple of things about that, about what you are going to hear.

First of all, the people who were the victims of this crime were not

truthful to the police. You are going to hear evidence of that. They made

misstatements, they made signed - - they gave the police signed statements

that weren’t true.

You will hear that [K.M.] did not identify [the Petitioner] in photo

lineups. In fact, she misidentified numerous people. Said yeah, that’s the

guy, that’s the guy, that’s the guy - - [ ] people that had [nothing] to do with

this at all. Mr. Brown lied to the police. You are not going to hear, I don’t

suspect, I am not sure but I don’t think you are going to hear from anybody

involved directly either as a victim or an accused, that doesn’t have a

criminal record. Some of those criminal convictions are crimes of

dishonesty and Judge Jones will talk to you about that later when he

charges you.

You will hear that [the Petitioner] admitted to the police that he was

there, but here’s what you are going to have to figure out. Based on the

facts that are presented, there were three people that went into that

apartment.

“Cases addressing a defense counsel’s admission that his client is guilty generally

fall into one of two categories.” Paul Galbreath v. State, NO. 01C01-9603-CC-00097,

1997 WL 576495, at *2 (Tenn. Crim. App., at Nashville, Sept. 18, 1997). In some cases,

defense counsel’s admission of his client’s culpability is characterized as a “functional

guilty plea” and constitutes the ineffective assistance of counsel. See, e.g., Wiley v.

2

Several pages appear to be missing from the transcript, including a portion of Counsel’s

argument. The Petitioner cites to the wrong page in the transcript but it appears that it is this

portion of the argument to which he refers.

- 23 -

Sowders, 647 F.2d 642, 649-50 (6th Cir.1981). In other cases, however, counsel’s

admission of his client’s culpability has been characterized as a reasonable strategic

choice under the circumstances since it leaves open the possibility of the jury finding the

defendant guilty of a lesser-included offense. See, e .g., State v. Caldwell, 671 S.W.2d

459, 466 (Tenn.1984).

In our view, Counsel did not make an admission of guilt; he acknowledged the

State’s evidence to be presented at trial. The State outlined the evidence it intended to

present at trial, and Counsel responded consistently with his trial strategy of mitigating

the Petitioner’s role in the charged offenses. Counsel was, to some degree, successful in

this strategy as indicated by the jury’s verdict of facilitation of some of the charged

offenses. Counsel’s statements in response to the State’s overview of the evidence were

a “reasonable strategic choice under the circumstance.” Id.

The Petitioner asserts that in closing argument Counsel “state[d] that ‘the murder

of a hit man is still murder,’ that ‘rape of a prostitute is still rape,’ and ‘robbery of a drug

dealer is still robbery.’” The State responds that these phrases served as a preface to an

attack on the credibility of the State’s witnesses and that Counsel’s statements during

closing argument were reasonable. We agree with the State.

The argument to which the Petitioner references is as follows:

You heard from [K.M.], Xavier Brown, [and] Marquan Hudson . . . . To

use an illustration, the murder of a hit man is still murder. Rape of a

prostitute is still rape. Robbery of a drug dealer is still robbery. Here’s the

problem. When people are involved in criminal activity, they have a

tendency to not tell the truth. Your challenge is to determine what is truth

and what wasn’t. There were a number of self-serving statements made by

people sitting in that chair, people who had a vested interest in wanting you

to see certain things. This wasn’t an innocent bystander on the street that

saw a bank hold up. These people were intimately involved with what

happened.

[K.M.] you have as exhibits people she pointed out in the lineups

that had absolutely nothing to do with this. I say that to say this, it’s clear

from the time that she looked at those photos and could not identify [the

Petitioner] that she doesn’t know in the apartment who did what. Marquan

Hudson, [the Petitioner], and Demetrius Ford, those three people were in

the apartment and I told you when this trial began you got to figure who did

what? She couldn’t even tell us who touched her, if you recall that[.] She

- 24 -

didn’t report this crime to the police. Her sister overheard her telling her

father about it and her sister called the police.

Counsel then went on to challenge Mr. Brown’s “false statements to the police.” He

highlighted that Mr. Hudson pleaded guilty to robbery of the cell phone and that the

evidence indicated that Mr. Hudson had the cell phone, but, at the Petitioner’s trial, Mr.

Hudson denied taking the cell phone.

Counsel’s statements in closing are consistent with the defense strategy to mitigate

the Petitioner’s involvement in the offenses. As Counsel testified at the hearing, the co-

defendant and the Petitioner placed the Petitioner in the apartment, thus precluding a

valid argument of total innocence. In light of the evidence against the Petitioner,

Counsel’s strategy was reasonable and his statements in closing argument were consistent

with the strategy. The Petitioner is not entitled to relief as to this issue.

j. Closing Argument

The Petitioner contends that Counsel was deficient because he “failed to allow

Petitioner to present his own closing argument.” The State responds that because the trial

court denied the Petitioner’s request, he cannot show that Counsel was deficient. We

agree with the State.

Our supreme court has long recognized that closing argument is a valuable

privilege for both the State and the defense and have allowed wide latitude to counsel in

arguing their cases to the jury. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1994).

Trial judges in turn are accorded wide discretion in their control of those arguments, State

v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995), and this discretion will not be

interfered with on appeal in the absence of abuse thereof. Smith v. State, 527 S.W.2d

737, 739 (Tenn. 1975).

The Petitioner asserts that Counsel is at fault for not allowing him to present

closing argument; however, it was not Counsel’s prerogative to decide whether the

Petitioner was to address the jury in closing. After closing arguments, Counsel made the

trial court aware that the Petitioner wanted to address the jury. The Petitioner explained

his position to the trial court and, ultimately, the trial court denied the Petitioner’s request

finding that the Petitioner was represented by Counsel who provided the closing

argument. We discern no deficiency on Counsel’s part with respect to this complaint.

The Petitioner made Counsel aware of his desire to address the jury and Counsel relayed

that request to the trial court who denied the request. The Petitioner is not entitled to

relief as to this issue.

- 25 -

k. Supplemental Instruction to the Jury

The Petitioner asserts that Counsel agreed to jury instructions that were to the

detriment of the Petitioner. The State responds that Counsel’s decision regarding the

supplemental instruction to the jury in response to a jury question was reasonable.

“The trial court has the authority to respond to jury questions with a supplemental

instruction.” State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (citing State

v. Moore, 751 S.W.2d 464, 467 (Tenn. Crim. App. 1988)). When a trial court repeats

instructions or gives supplemental instructions, the instructions must be:

(1) appropriately indicated by questions or statements from jurors, or from

the circumstances surrounding the deliberative and decisional process, (2)

comprehensively fair to all parties, and (3) not unduly emphatic upon

certain portions of the law to the exclusion of other parts equally applicable

to the area of jury misunderstanding or confusion.

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct. App. 1984). “‘An instruction should

be considered prejudicially erroneous only if the jury charge, when read as a whole, fails

to fairly submit the legal issues or misleads the jury as to the applicable law.’” State v.

Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010) (quoting State v. Faulkner, 154 S.W.3d

48, 58 (Tenn. 2005)); see State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing

Forbes, 918 S.W.2d at 447; Graham v. State, 547 S.W.2d 531, 544 (Tenn. 1977)).

The record reflects that the jury submitted the question, “Did Brown testify to

seeing the perpetrator of the assault?” and the trial court responded, “That’s a question of

fact that I cannot answer for you.” The foreperson clarified that the jury had recollections

about Mr. Brown’s testimony and wanted to rehear a portion of the audio recording of

Mr. Brown’s testimony. During a recess, both attorneys and the trial judge reviewed the

recordings and agreed Mr. Brown did not identify the person touching K.M. The trial

court stated, “Normally, I would not comment on the evidence whatsoever, but it would

seem to be better just to tell the jury that Mr. Brown did not provide any testimony.” The

State suggested that the trial court advise the jury to “rely on your own recollection”

rather than speaking to the testimony, explaining that the concern was that the jury would

simply adopt the position that there was no description when “some of them obviously

think there was.” The trial court then called in the jury and stated, in relevant part, “The

answer is . . . without my commenting on the evidence, you must rely on your own

memory as to what a witness did or did not say.”

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The Petitioner claims that Counsel should have objected to this instruction,

however, the Petitioner fails to show that the supplemental instruction was objectionable.

The instruction was in response to a question asked by the jurors. The instruction was

fair to both parties in that it did not preclude jurors who recalled a description from

relying on that testimony, and did not cause misunderstanding or confusion. The

instruction was a fair statement of the law in that judges are prohibited from commenting

upon the evidence in a case. State v. Hester, 324 S.W.3d 1, 89 (Tenn. 2010).

Furthermore, the Petitioner provided no evidence that, upon Counsel’s objection, the trial

court would have instructed the jury that there was no description. Accordingly, the

Defendant has failed to show that Counsel was deficient in this respect and that this

alleged deficiency caused prejudice. He is not entitled to relief as to this issue.

l. Breakdown of the Adversarial System

The Petitioner claims that, although he has demonstrated prejudice in each of the

above discussed issues, he need not do so. He claims, citing United States v. Cronic, 466

U.S.648, 659 (1984), that Counsel “failed entirely to subject the prosecution to

meaningful adversarial testing” such that he was denied his right to Sixth Amendment

protections. The Petitioner makes no specific claims of deficiencies under this issue, so

we presume that he relies upon his prior issues in support of this argument.

As we have already stated, the Petitioner has failed to establish any prejudice to

his case as a result of the actions or inactions of Counsel. The Petitioner claims that the

failures of Counsel should be considered “per se” prejudicial. A reviewing court will

presume prejudice to an accused’s right to counsel only when there has been the complete

deprivation of counsel at a critical stage of the proceedings, a complete failure to subject

the State’s case to adversarial testing, or under circumstances of such magnitude that no

attorney could provide effective assistance. Id. at 659-60. Although the Petitioner claims

that prejudice should be presumed because Counsel “failed entirely to subject the

prosecution to meaningful adversarial testing,” the record establishes that the State’s case

was indeed subjected to adversarial testing at his trial, the primary arena of true

adversarial testing in our system of justice. See Cronic, 466 U.S. at 656 (“When a true

adversarial criminal trial has been conducted - even if defense counsel may have made

demonstrable errors—the kind of testing envisioned by the Sixth Amendment has

occurred.” (footnote omitted)).

The Supreme Court, in Bell v. Cone, specifically limited Cronic to those situations

where counsel’s “failure to test the prosecutor’s case” was “complete.” 535 U.S. 685,

696-97 (2002). In Cone, the Court characterized the petitioner’s argument as “not that

his counsel failed to oppose the prosecution throughout the . . . proceeding as a whole,

but that his counsel failed to do so at specific points” and concluded that such an

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argument should be assessed under the rule of Strickland rather than that of Cronic. Id. at

697. As such, the standard announced in Strickland rather than that announced in Cronic

is the appropriate one for review of the Petitioner’s claims in this case. Consequently, the

Petitioner must establish prejudice resulting from his Counsel’s deficient performance.

Cronic, 466 U.S. at 658 (“Absent some effect of challenged conduct on the reliability of

the trial process, the Sixth Amendment guarantee is generally not implicated.”). As a

result, the Petitioner is not entitled to relief on this issue.

2. Use of Illegal Evidence

The Petitioner asserts that his conviction is based upon illegal evidence and

therefore cannot stand. He essentially raises the arguments made in his suppression

motion as a basis for this challenge. The State responds that this issue is waived because

it was “previously determined.” We agree with the State. Post-conviction is not to be

used to relitigate decided legal questions. See T.C.A. § 40-30-106 (2014); See also, Gant

v. State, 507 S.W.2d 133, 135 (Tenn. Crim. App. 1973). The Petitioner is not entitled to

relief as to this issue.

3. Prosecutorial Misconduct

The Petitioner complains that prosecutorial misconduct occurring during opening

and closing argument requires reversal. Specifically, he complains that the State made

untrue statements and misconstrued trial testimony during argument to the jury. The

State responds that the Petitioner’s issue is waived because he failed to raise the issue on

direct appeal.

We agree that this claim has been waived. The post-conviction statute defines

waiver:

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 unless:

(1) The claim for relief is based upon a constitutional right not recognized

as existing at the time of trial if either the federal or state constitution

requires retroactive application of that right; or

(2) The failure to present the ground was the result of state action in

violation of the federal or state constitution.

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T.C.A. § 40-30-106(g). This claim of prosecutorial misconduct was available on direct

appeal and neither of the exceptions apply. The Petitioner is not entitled to relief as to

this issue.

III. Conclusion

Based on the foregoing authorities and reasoning, we affirm the post-conviction

court’s denial of post-conviction relief.

____________________________________

ROBERT W. WEDEMEYER, JUDGE

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