The opinion
08/31/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 5, 2018
LYMUS LEVAR BROWN, III v. STATE OF TENNESSEE
Appeal from the Circuit Court for Haywood County
No. 6710 Clayburn L. Peeples, Judge
No. W2017-01726-CCA-R3-PC
_____________________________
A Haywood County jury convicted the Petitioner, Lymus Brown, of aggravated robbery,
and the trial court sentenced him to thirty years in prison. State v. Lymus Brown, No.
W2012-02298-CCA-R3-CD, 2013 WL 12181029, at *1 (Tenn. Crim. App., at Jackson,
Nov. 26, 2013), perm. app. denied (Tenn. Apr. 8, 2014). This court affirmed his
conviction on appeal. The Petitioner filed a petition for post-conviction relief in which
he alleged that his trial counsel was ineffective in failing to interview a witness, failing to
adequately cross-examine another witness, failing to allow him to testify, and failing to
have the jury instructed on facilitation. The post-conviction court denied relief. 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 THOMAS T.
WOODALL and NORMA MCGEE OGLE, JJ., joined.
William J. Milam, Jackson, Tennessee, for the appellant, Lymus Levar Brown, III.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary L. Parham,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This case arises from the Petitioner robbing a Cash Express in January 2011. For
this offense, a Haywood County grand jury indicted him for aggravated robbery. In our
opinion affirming the Petitioner’s convictions, we summarized the facts presented at trial
as follows:
At trial, Terica Gause testified that she was working at Cash Express
on January 18, 2011. Tamika Anderson was also working that day, but Ms.
Anderson left the store to purchase supplies prior to the robbery. Ms.
Gause said that the store normally opened at 9:30 a.m., but that day, a tall,
black man entered the store between 9:00 and 9:30 a.m. He was wearing a
black or blue jacket with white stripes and a black or blue ball cap. When
shown a picture of [the Petitioner] wearing a jacket, she testified that the
jacket [the Petitioner] was wearing “kind of look[ed] like” the one worn by
the robber. Ms. Gause testified that the man asked whether the store cashed
checks. When she responded affirmatively, the man pulled a gun and a
black bag from his jacket, laid the gun on the counter, and told her to give
him all of the money. Ms. Gause recalled that she was crying and terrified,
but the man told her that he would not hurt her. She said that she pulled the
cash drawer out to give him the money. Ms. Gause stated that she believed
there was $525 in the drawer, plus change. She hit the store’s panic button
at some point during the robbery, and after the man left, she locked the
door. At that point, she answered the store’s telephone. The store’s main
office had accessed the store’s security footage when Ms. Gause had
pressed the panic button, and they were calling to verify her safety. The
main office had also contacted the police. Ms. Gause testified that the man
had left a cellular telephone on the floor of the store. She said that she and
Ms. Anderson had closed the store the previous night, and they had
vacuumed the floors at that time. There was not a cellular telephone on the
floor the night before, and no one else had entered the store besides her,
Ms. Anderson, and the robber.
On cross-examination, she agreed that she had previously said that
the robber was taller than she was. She agreed that she was five feet, four
inches tall and that the robber was between five feet, six inches and five
feet, eight inches tall. She further agreed that she never identified [the
Petitioner] in a lineup.
Tamika Anderson, the store manager of the Cash Express, testified
that she was not at the store during the January 18, 2011 robbery. She
explained that she left the store to purchase supplies, and she took $25 from
the cash drawer with her. Ms. Anderson testified that there would have
been $515 in the drawer at that point. She recalled seeing a man standing
outside the Cash Express, whom she described as a black male wearing a
blue or black jacket with white lettering that was trimmed in royal blue and
a dark navy or black baseball cap. When shown a photograph of [the
Petitioner] wearing a jacket and cap, she said that the jacket and cap looked
2
similar to those worn by the man outside of the store on the day of the
robbery. Ms. Anderson said that there was not a telephone on the store’s
floor the night before or the morning of the robbery.
Brownsville Police Investigator Patrick Black testified that he
investigated the robbery at the Cash Express store. He arrived at the store
within two minutes of receiving the call about the robbery. Ms. Gause
informed him that the robber had left a cellular telephone on the floor, and
he took the telephone into evidence. Investigator Black testified that he
obtained a search warrant for the telephone and had the telephone sent to
the Tennessee Bureau of Investigation (“TBI”) laboratory for “serology and
fingerprint identification.” Pursuant to the search warrant, Investigator
Black downloaded photographs from the telephone, which were entered
into evidence. He distributed the photographs to various agencies in West
Tennessee and throughout the patrol division in an attempt to identify the
person in the photographs, and this attempt was successful. Investigator
Black also obtained the number associated with the telephone: 731-879-
0475. Investigator Black testified that information he received from the
TBI laboratory led him to obtain a search warrant for [the Petitioner’s]
DNA. The search warrant was executed, and DNA swabs from [the
Petitioner] were sent to the TBI for testing.
Investigator Black testified that he arrested [the Petitioner] at the
Bureau of Probation and Parole in Jackson, Tennessee. [The Petitioner]
told Investigator Black that he had never been to Brownsville and did not
have anything to do with the robbery. [The Petitioner] said that he had sold
his telephone several weeks earlier for forty-five to fifty dollars to a person
named James. When asked whether [the Petitioner] identified James to
him, Investigator Black responded that [the Petitioner] had James’s driver’s
license. [The Petitioner] did not indicate why he had James’s driver’s
license. Investigator Black testified that Marquisha Lloyd was with [the
Petitioner] when he was arrested. He further testified that photographs of
Ms. Lloyd were found on the cellular telephone associated with the
robbery. Investigator Black testified that [the Petitioner] said that “he had
seen himself on the news and was waiting to come in to see his parole
officer about it.” Investigator Black said that the news footage was shown
within a few days of the robbery and that [the Petitioner] was arrested
thirteen days after the robbery. Investigator Black testified that [the
Petitioner] indicated that he knew he was wanted by the police but did not
turn himself in because he was scared.
3
On cross-examination, Investigator Black said that he believed the
photograph released to the media was one taken from the telephone, not
from Cash Express’s surveillance video. He testified that TBI Agent Brent
Booth and a Jackson Police Department officer followed up on the
information from [the Petitioner] about James. They learned that the
driver’s license was stolen. Investigator Black agreed that Ms. Gause never
positively identified anyone from the lineup he showed her and that he
never found the jacket worn by [the Petitioner] in the photographs.
Probation and Parole Officer Evelyn Hill testified that [the
Petitioner] had been under her supervision in January 2011. [The
Petitioner] met with her at her office on January 11, 2011. As part of the
normal procedure for meetings, he completed an information form that
asked for his telephone number. The number he provided was 731-879-
0475. Officer Hill testified that [the Petitioner] came to her office on
January 31, 2011, “at [her] insistence.” She said that [the Petitioner] had
contacted her between January 11 and January 31 to tell her about a change
to his address but not a change to his telephone number.
....
TBI Agent Mark Dunlap of the serology and DNA unit testified that
he tested the telephone for DNA. . . . He swabbed the telephone for DNA
and developed a DNA profile that he entered into a database. From the
information gathered from the database, Agent Dunlap requested a DNA
sample from [the Petitioner]. Once he received that, he compared the DNA
from the telephone with [the Petitioner’s] DNA. Agent Dunlap testified
that there were at least two people who contributed DNA to what was
found on the phone. [The Petitioner] was the major contributor, and an
unknown female was the minor contributor. On cross-examination, Agent
Dunlap testified that there was no way to tell how long the DNA had been
on the telephone.
Shanee Cohen testified that [the Petitioner] was her ex-boyfriend.
They had dated from March to November 2010. Sometime after the
robbery, [the Petitioner] called her. He told her that he had been involved
in the robbery. [The Petitioner] also told her that one of the women
working at the store and the woman’s boyfriend were supposed to be
involved. He never said anything about whether the woman’s boyfriend
actually participated in the robbery, but he said that the woman had gotten
scared and left the store prior to the robbery.
4
On cross-examination, Ms. Cohen agreed that she had one prior
conviction for theft. She also said that she called [the Petitioner’s] cellular
telephone after they had broken up and that someone other than [the
Petitioner] answered the telephone.
Nimrod White testified that he had been incarcerated with [the
Petitioner]. [The Petitioner] told him that he had been at the Cash Express
during the robbery, but [the Petitioner] did not explicitly say that he had
committed the robbery. [The Petitioner] told Mr. White that he had been
standing outside and saw a woman leave the store and walk by him. He
then went inside the store. [The Petitioner] indicated to Mr. White that he
had a gun with him. [The Petitioner] also told Mr. White about a cellular
telephone that was found at the store after the robbery. [The Petitioner]
said that the only way the police could connect him to the telephone was
through photographs and text messages sent to or received from a female
friend of [the Petitioner] the day before the robbery because [the Petitioner]
had told the police that he had sold the telephone. Mr. White testified that
he believed the female friend’s name was “Marquita or something like that”
and that her last name was Lloyd. Mr. White agreed that he had a cellular
telephone at the county jail and that [the Petitioner] had used his telephone
to call Marquisha Lloyd at a number ending in 7704. On cross-
examination, Mr. White agreed that he had several aggravated burglary,
burglary, theft, and vandalism convictions.
The State recalled Investigator Black. He testified that the cellular
telephone found at Cash Express had one contact number with the last
digits 7704, which was assigned to the name “Budda Bay.” There were
several text messages from Budda Bay on January 17, 2011, the day before
the robbery. Investigator Black also testified that there were photographs
of Marquisha Lloyd on the telephone, and at least one photograph had been
taken the day before the robbery.
On cross-examination, Investigator Black agreed that some of the
photographs on the telephone appeared to have been taken during a time
period in which [the Petitioner] was incarcerated. On re-direct
examination, Investigator Black testified that the boots worn by [the
Petitioner] in the courtroom were similar to those in a photograph from the
telephone. Following this testimony, the State rested.
On behalf of [the Petitioner], Janice Webb, a nurse who provided
5
services at the Haywood County Criminal Justice Complex, testified that
she had weighed [the Petitioner] and taken his height the morning of her
testimony. [The Petitioner] was six feet, one inch tall and weighed 204
pounds.
The State called Investigator Black as a rebuttal witness. He
testified that the description of the robber sent to law enforcement agencies
after the robbery stated that the robber was five feet, eleven inches tall.
Investigator Black testified that the robber’s description came from the
victim, Terica Gause.
Brown, 2013 WL 12181029, at *1-4. Following the close of proof and
deliberations, the jury convicted the Petitioner as charged, and the trial court
sentenced him as a Range III, persistent offender to serve thirty years in the
Tennessee Department of Correction, with a release eligibility of 85%.
B. Post-Conviction Facts
The Petitioner filed a petition for post-conviction relief in which he alleged his
trial counsel was ineffective for: (1) failing to personally interview Mr. White before
trial; (2) failing to adequately cross-examine Ms. Cohen; (3) failing to allow the
Petitioner to testify; and (4) failing to have the jury instructed on facilitation. The parties
presented the following evidence as relevant to the issues on appeal at a hearing on the
post-conviction petition:
Nimrod White testified that he was incarcerated at the time of the post-conviction
hearing. He and the Petitioner had been housed in an open pod together before the
Petitioner’s trial, and Mr. White had testified for the State at the trial. Mr. White
recounted that his testimony entailed details that the Petitioner had given him about the
robbery. Mr. White testified that, at the time of his testimony, he “believed” that he was
truthful. After further reflection, however, Mr. White said he could not recall whether the
Petitioner had told him those details or whether Mr. White had read them when he
reviewed the Petitioner’s discovery. Mr. White said he lied when he had been asked
during the trial whether he had reviewed the Petitioner’s discovery, and he responded that
he had “never really looked at discovery myself.” He agreed that, during the trial, he was
asked this a second time and that he gave the same response. Mr. White said he could not
say for certain whether his testimony was based on conversations he had with the
Petitioner or on discovery. Mr. White said he regretted testifying in the Petitioner’s case.
He admitted that he helped the State with his testimony in hopes of helping himself.
During cross-examination, Mr. White testified that he testified at the trial, which
6
was almost five years before the post-conviction hearing. He said that, at the time of
trial, he was testifying about his interactions with the Petitioner that had occurred two
years before the trial. Mr. White believed that he read the transcript from the General
Sessions hearing.
Mr. White said that he was currently incarcerated awaiting trial on an aggravated
burglary charge and that he had approximately ten felony convictions.
During redirect examination, Mr. White reiterated that some of his trial testimony
was false but that he did not intentionally lie under oath.
The Petitioner testified that he was currently incarcerated on aggravated robbery
charges and serving a sentence of thirty years at 85%. He said that Counsel represented
him, and the trial court declared a mistrial during his first trial, and he was convicted after
his second trial. The Petitioner recalled that the State had offered him ten years, at 85%,
in exchange for his guilty plea, and Counsel tried to “more or less coerce me into taking
the plea agreement.” The Petitioner said, however, that he was adamant that they take the
case to trial.
The Petitioner testified that Counsel failed to properly cross-examine Mr. White.
The Petitioner said that he let Mr. White review his discovery file. The Petitioner said
that Mr. White had not testified during his first trial that ended in a mistrial but that the
State produced him during the second trial. Mr. White testified during the second trial
that the Petitioner admitted that he had committed the aggravated robbery at the Cash
Express.
The Petitioner said that Counsel gave him a potential witness list two weeks
before trial and that Mr. White’s name was on the list. He said that Counsel never
interviewed Mr. White and never moved to exclude Mr. White’s testimony, despite the
Petitioner’s request that he do so. The Petitioner explained that Mr. White testified at
another unrelated case that the Petitioner had pending but mixed up the facts of that case
and the facts of this case. The Petitioner therefore asked Counsel to have Mr. White’s
testimony excluded because Mr. White had perjured himself. The Petitioner stated that
he was never able to see Mr. White’s statement before trial. The Petitioner said that,
when he asked Counsel to interview Mr. White, Counsel responded “Why would I
interview Nimrod White? What would he have to tell me[?]” and that was all Counsel
said on that matter.
The Petitioner said that Shanee Cohen was his former girlfriend and that she also
testified at his trial. Ms. Cohen said that the Petitioner had admitted to her that he had
committed this robbery and that it was an “inside job” in that there were some other
7
individuals involved. The Petitioner alleged that Counsel did not properly cross-examine
Ms. Cohen. He explained that Ms. Cohen, in her statement to police, said that she had
given between five and six thousand dollars to the Petitioner around the time of the
robbery. Counsel asked Ms. Cohen during cross-examination whether she had given the
Petitioner money, and she responded affirmatively, but Counsel never asked her about the
amount of money that she had given to the Petitioner. The Petitioner opined that Counsel
should have asked about the amount of money because, he said, “why would I [have] had
a need to commit a[n] aggravated robbery if I was being furnished with this (x) amount of
dollars . . . .” He felt that this was information that the “jury needed to hear.”
The Petitioner said that Ms. Cohen wrote him letters while he was incarcerated
awaiting trial, and she stated in those letters that the reason that she told police he had
committed the crime was because she had given the Petitioner a large sum of money and
she felt that the Petitioner had taken her money and left. Ms. Cohen said in the letters
that the State was “hunting her like a pack of wild dogs” to get her to testify. The
Petitioner said that he gave the letters to Counsel and that Counsel failed to cross-
examine Ms. Cohen about the letters. The Petitioner expressed frustration that Ms.
Cohen was not present for the post-conviction hearing.
The Petitioner said he wanted to testify in his own defense at trial but that Counsel
was “adamant” that he not testify. Counsel informed the Petitioner that he could be
impeached with his prior convictions. He said that the trial court did not conduct a
Momon hearing. The Petitioner said that, had there been a Momon hearing, he would not
have waived his right to testify, despite his prior convictions.
The Petitioner said that, had he testified, he would have proven that there was no
possibility that he was the culprit. He said he would have offered the letters from Ms.
Cohen, and he would have said that Mr. White was a hostile witness.
The Petitioner said that Counsel was ineffective for “failing to require that the
Court instruct on facilitation as a lesser included instruction to aggravated . . . robbery.”
The Petitioner said that there was a colloquy between Counsel and the trial court during
which the trial court denied the request for the lesser-included instruction. The Petitioner
said that his statements to other witnesses that came in during the trial, which included
that there may have been other people involved, was sufficient evidence to warrant this
instruction. He asserted that, had this instruction been given, he would have been
convicted of a lesser charge and sentenced to only fifteen years at 35%.
During cross-examination, the Petitioner agreed that Counsel had requested a
facilitation instruction and that the trial court denied this request. The Petitioner agreed
that a cell phone with his DNA was found at the scene of the robbery. The Petitioner said
8
that Mr. White should have been disqualified as a witness because his testimony was
untruthful and he was a hostile witness.
The Petitioner said that, had he testified, he would have said that he had not
committed this armed robbery. He agreed that he had previously committed four other
armed robberies and one attempted robbery. He had also been convicted of grand theft
auto in Florida and possession of a Schedule II narcotic with intent to sell.
Counsel testified1 that he had been a practicing attorney since 1997 and that he had
represented multiple criminal defendants and conducted multiple criminal trials. Counsel
said that the State made the Petitioner an offer to plead guilty, but the Petitioner rejected
the offer, maintaining his innocence throughout the duration of Counsel’s representation.
Counsel recalled seeing the State’s list of witnesses before trial. He could not
recall whether Mr. White was listed as a potential witness but, he said, he had more than
a month’s notice that Mr. White was going to be a witness. Counsel said that he told the
Petitioner about Mr. White as soon as Counsel learned that Mr. White would testify, and
the Petitioner had to “be moved to Crockett County . . . because of that.” Counsel said
that, as far as investigating Mr. White, he obtained copies of Mr. White’s prior
convictions. He did not recall interviewing Mr. White.
Counsel said that he did not specifically recall the Petitioner saying that he wanted
to testify. He said that the two discussed the matter and that the Petitioner’s prior
convictions, including multiple robbery convictions, could be used to impeach him.
Counsel said he did not recall questioning the Petitioner on the record about his desire to
testify, but he said that if the Petitioner had wanted to testify that Counsel would have
ensured that he got the opportunity to do so.
Counsel said that Ms. Cohen approached him at some point and said that she loved
the Petitioner. The Petitioner showed him some letters from Ms. Cohen, but he was
“very guarded about those correspondences.” Counsel said that, had there been
statements in the letters that would have assisted the Petitioner, Counsel would have
attempted to present the letters at trial. Counsel did not recall receiving a copy of the
letters, but he agreed that the Petitioner showed him at least one letter during a meeting
between the two men. He identified a letter at the post-conviction hearing, but said he
did not recall ever seeing this specific letter, but did recall reading a letter that referenced
the Petitioner and Ms. Cohen as the “Dutch and Duchess,” which this letter did. The
letter’s author stated that “it just eat me up about all this,” and that she did this because
1
Counsel’s testimony was given on two separate occasions. The post-conviction court continued the hearing to give
Counsel more time to review his file. For brevity, our summary of the facts here summarizes the facts elicited on
direct and cross during both of the hearings.
9
“you wasn’t coming back home and I didn’t want you with nobody else.” Counsel said
he did not have a specific recollection of this letter, he never found a copy of this letter in
his file, and he did not use this letter to impeach Ms. Cohen.
Counsel identified a letter (“Letter Exhibit 1”) that he did recall seeing before trial.
He said that the letter opened the door to the Petitioner’s relationships with other women,
which he thought might be damaging. He agreed that it referenced Ms. Cohen’s actions
being based on anger toward the Petitioner, which was potentially helpful, but he decided
the better legal tactic was to impeach Ms. Cohen with her prior convictions.
Counsel said that the Petitioner filed a complaint against him with the Board of
Professional Responsibility. He did not recall the Board taking any action against him.
During cross-examination, Counsel testified that he did not see any grounds to
disqualify Mr. White as a witness. At trial, Mr. White testified that the Petitioner had
told Mr. White that he had been standing outside the Cash Express on his cell phone the
morning it got robbed. Counsel said that his advice to the Petitioner had been not to talk
to anyone about his case and that the Petitioner clearly did not follow that advice.
He further stated that he did not think the letters from Ms. Cohen would have
assisted the Petitioner because they were “love letters,” so there was not information
regarding the charges. Counsel said that Letter Exhibit 1 also referenced another case
that the Petitioner faced in Chester County, and the letter’s author indicated that she lied
or provided the Petitioner with a false alibi. He said he would have thought “long and
hard” about whether to introduce that letter because the jury would hear that the
Petitioner had other charges pending against him and because Ms. Cohen had previously
lied to help the Petitioner.
Counsel testified he did not recall the Petitioner ever saying that he wanted to
testify, and he did not recall the Petitioner saying what his testimony would be. Counsel
did not recall any discussion regarding facilitation as a lesser-included offense.
Counsel said that he went over with the Petitioner the State’s plea offer. He said
that the two discussed the pros and cons of pleading guilty and that the Petitioner made
an informed decision when he declined the State’s offer.
Based upon this evidence, the post-conviction court denied the Petitioner’s
petition. The post-conviction court stated:
The court does find that the Petition is not well founded.
10
Most of the allegations are totally without merit.
I do want to address a couple of things, though, with regard to
effective assistance of counsel.
I found the latter testimony of Mr. White to be non-believable. I’m
not even sure . . . that he actually changed his testimony, but whether he did
or not, he was unbelievable at the time he did.
I found [Counsel’s] reasons for not using the letter, if you will,
certainly plausible, if not prudent. I did not see anything in the record to
indicate that [Counsel] was ineffective in anyway.
I am concerned, as we all are now, about the fact that a hearing on
the record wasn’t held regarding the [Petitioner’s] election to choose not to
testify. I think the totality of the evidence indicates that he was aware of
his right to testify. I also think that when you weigh the factors that the
State has pointed out, the overall strength of this case was extremely strong.
The decision not to testify was probably, frankly, in terms of evaluating the
proof and what he indicated he would have done had he testified – his
decision not to testify was probably the best one he made during the entire
process. It’s almost impossible to see that it could have altered the state of
the proof in any way positive to the [Petitioner] or made any difference in
the verdict, so that’s my decision.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that the post-conviction court erred when it
denied his petition for post-conviction relief because his trial counsel was ineffective for:
(1) failing to interview Mr. White before trial; (2) failing to adequately cross-examine
Ms. Cohen; (3) failing to allow him to testify; and (4) failing to have the jury instructed
on facilitation. The State counters that the Petitioner failed to establish his claim of
ineffectiveness with adequate proof.
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
11
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the 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.
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
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
12
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.
A. Interview of Mr. White
The Petitioner first contends that Counsel was ineffective for failing to interview
Mr. White before trial. He asserts that, had Counsel interviewed Mr. White, he would
have learned that Mr. White was not being truthful when he said he had “not really”
reviewed the Petitioner’s discovery. The State counters that the post-conviction court did
not find Mr. White credible in his post-conviction court testimony, which is dispositive of
this issue. We agree with the State.
The post-conviction court found, first, that Mr. White’s testimony at the post-
conviction hearing did not vastly differ from his trial testimony. At the trial, Mr. White
said he had “not really” reviewed the discovery. At the post-conviction hearing, Mr.
White said that he had, in fact, reviewed discovery, so he was unsure whether his
testimony came from facts he read in the discovery or facts that the Petitioner told him.
13
The post-conviction court found that Mr. White’s testimony at the post-conviction
hearing was not believable.
A post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. Nichols v. State, 90 S.W.3d 576, 586 (Tenn. 2002).
In this case, the evidence does not preponderate against the post-conviction court’s
finding that Mr. White was not credible during his post-conviction hearing testimony. As
the State notes in its brief, Mr. White did not admit during the post-conviction hearing
that his trial testimony was “false” and instead he said that he did not “feel comfortable”
with his trial testimony. He said that he “believed” that he saw the discovery and that he
was “unsure” whether his trial testimony was based on discovery or what the Petitioner
had told him. We defer to the post-conviction court’s credibility determination. As such,
Mr. White’s trial testimony is not called into question, and Counsel was not ineffective
for not interviewing Mr. White before trial. The Petitioner is not entitled to relief as to
this issue.
B. Cross-Examination of Ms. Cohen
The Petitioner contends that Counsel was ineffective for not adequately cross-
examining Ms. Cohen. He asserts that he gave to Counsel letters that Counsel did not use
during cross examination. The State counters that, as the post-conviction court found,
Counsel’s reasons for not using the letters were “plausible if not prudent.”
After review of the letter, we conclude that the post-conviction court did not err
when it found that Counsel’s decision not to introduce the letter was not ineffective. The
letter contains the statement that “I did say what I said cause I was pissed. Very pissed!!
You told me you had a girlfriend. You were done with me.” The letter does not state
that Ms. Cohen lied when she spoke with police, but only that she spoke with them
because she was angry. While cross-examination with this statement may have aided the
Petitioner slightly, the letter also contained multiple damning statements. First, it states,
“They tried to pin the Chester County shit on you . . . ,” which potentially opens the door
to other offenses the Petitioner had committed. Further, the letter states “You want the
truth about who I been fuc***g? I ran into my brother old classmate . . . . [H]e said you
smoked dope and you were passed out at somebody house in a closet full of dirty clothes
. . . .” Ms. Cohen then goes on to say in the letter that she broke up with this man
because he was a “dope head[].” The letter contains explicit language regarding other
sexual exploits, including her desire for more of those with the Petitioner. Ms. Cohen
discusses in the letter their mutual friends, and how one of them has a child by an older
man who had served twenty-three years in jail but was still “stealing shit” by stealing
from his employer daily. She then says “HaHa” with regard to the man giving stolen
property to their mutual friend. Ms. Cohen discussed that she was “on the run again,”
14
having warrants for violating her probation. Ms. Cohen closed the letter by discussing
the legal troubles of several other mutual friends. She then wrote that she loved the
Petitioner and that she would never do anything to hurt him. She wrote, “AGAINST
YOU NEVER.”
The letter does not clearly state that Ms. Cohen lied to police. The tone and tenor
of the letter is one of someone who loves the Petitioner and wants him to be released
from prison. Her trial testimony included that the Petitioner admitted to committing this
offense. Had Counsel introduced this letter, and had Ms. Cohen stood by her testimony,
the letter could have harmed the Petitioner more than it might have helped him. The
letter does not contradict Ms. Cohen’s testimony that the Petitioner admitted committing
this crime. Further, the letter discusses other charges against the Petitioner, his drug use,
and the illegal activities of their friends and acquaintances. We agree that Counsel’s
decision not to introduce this letter was not ineffective, in part because as part of his trial
strategy, he considered the letter and deemed that it would not be beneficial. The
Petitioner is not entitled to relief on this issue.
C. Right to Testify
Recognizing that a hearing in accordance with Momon was not held in his case,
the Petitioner argues that he did not waive his right to testify and has asked this Court to
review the issue as proof of ineffective assistance of counsel. The State counters that
Counsel ensured that the Petitioner understood his right to testify and that the Petitioner
waived that right. The State further contends that the Petitioner cannot show he was
prejudiced, considering the weight of the evidence.
In Momon, our supreme court determined that the trial court is required to have
defense attorneys conduct a hearing, out of the presence of the jury, to “voir dire” the
defendant about whether he or she had made a knowing, voluntary, and intelligent waiver
of the right to testify. Momon, 18 S.W.3d at 162. However, our supreme court expressly
stated:
The procedures are prophylactic measures which are not themselves
constitutionally required. As such, the procedures adopted herein do not
establish a new constitutional rule which must be retroactively applied . . . .
[T]he mere failure to follow these guidelines will not in and of itself
support a claim for deprivation of the constitutional right to testify if there
is evidence in the record to establish that the right was otherwise personally
waived by the defendant.
Id. at 163. While this Court has stated in State v. Posey, 99 S.W.3d 141, 149 (Tenn.
15
Crim. App. 2002) that “[t]he waiver of a defendant’s right to testify on his own behalf
will not be presumed from a silent record,” the record in this present case was not “void
of any evidence” that the defendant personally waived his right to testify. Id. at 143.
The record in the present case contains evidence that the Petitioner waived the
right. Counsel testified that he ensured that the Petitioner understood the pros and cons
of testifying and that the Petitioner made an informed decision not to testify. Thus, the
failure to conduct a Momon hearing in this case is mere procedural error that does not “in
and of itself support a claim for deprivation of the constitutional right to testify.”
Momon, 18 S.W.3d at 163.
Further, as a ground for ineffective assistance of counsel, even if Counsel’s failure
to follow the prescribed regimen in Momon equated to deficient performance, the
Petitioner must still show a reasonable probability that the oversight prejudiced the
outcome of his trial. See Strickland, 466 U.S. at 694. In Posey, this court turned to a
harmless error test that considered: (1) the importance of the defendant’s testimony; (2)
the cumulative nature of the testimony; (3) the presence or absence of evidence
corroborating or contradicting the defendant on material points; and (4) the overall
strength of the prosecution’s case. Id. at 149.
In the present case, the Petitioner said that, had he testified, he would have said he
did not commit this armed robbery. He said he would have offered the letters from Ms.
Cohen, and he would have said that Mr. White was a hostile witness. Had the Petitioner
testified, he would have been subject to cross-examination regarding his DNA on the cell
phone left at the crime scene by the robber and his multiple prior felony convictions for
aggravated robbery. Given the weight of the State’s evidence, we conclude that the post-
conviction court did not err when it found that the failure to hold a Momon hearing was
harmless error to the outcome of the trial. We cannot conclude that the error prejudiced
the outcome of the trial as to show ineffective assistance of counsel. The Petitioner is not
entitled to relief on this issue.
D. Facilitation Instruction
Finally, the Petitioner contends that Counsel was ineffective “in that he failed to
require the court to instruct the jury [on the] lesser included offense” to aggravated
robbery. The State surmises that the Petitioner is maintaining his argument below that
Counsel was ineffective for failing to obtain a jury instruction for facilitation of
aggravated robbery as a lesser-included offense. It then posits that the evidence did not
support such an instruction.
Ms. Cohen testified at trial that the Petitioner told her that he committed this
16
aggravated robbery and that there was a female Cash Express employee and boyfriend
who were also involved. Ms. Cohen testified that the Petitioner never said anything
about whether the female employee’s boyfriend actually participated in the robbery, but
she said that the woman had gotten scared and left the store prior to the robbery.
Under Tennessee law, “[r]obbery is the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” T.C.A. § 39-13-
401(a) (2014). As charged in this case, aggravated robbery is a robbery “[a]ccomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon; or [w]here the victim suffers serious bodily
injury.” T.C.A. § 39-13-402(a)(1)-(2) (2014). For facilitation of aggravated robbery, the
defendant must have known the other person intended to commit the robbery; and,
without intent to promote or assist in the commission of the robbery or benefit in the
proceeds, “knowingly furnish[ ] substantial assistance in the commission” of the robbery.
T.C.A. § 39-11-403(a) (2014).
In the present case, there is no evidence that someone else committed this robbery
and that the Petitioner knew that they intended to commit the robbery and gave them
substantial assistance. The State offered evidence that the Petitioner committed the
robbery, which included DNA evidence and his admissions to two separate witnesses,
and the Petitioner argued that the State had not met its burden of proof. The evidence
presented by the parties did not warrant a jury instruction of facilitation. Further, the
Petitioner testified that Counsel requested, but did not receive, this instruction. He has
failed to identify what more Counsel could have done to “require” the trial court to
instruct the jury on facilitation. As such, the post-conviction court did not err when it
found that Counsel was not ineffective in this regard. The Petitioner is not entitled to
relief on this issue.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
17