Jerome Perkins v. State of Tennessee

10/02/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 24, 2018 at Knoxville

JEROME PERKINS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Wilson County

No. 11-CR-343 John D. Wootten, Jr., Judge

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No. M2017-00801-CCA-R3-PC

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The petitioner, Jerome Perkins, appeals the denial of his post-conviction petition, arguing

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

trial. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

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

Tillman W. Payne III, Nashville, Tennessee, for the appellant, Jerome Perkins.

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

General; Neal Pinkston, District Attorney General; and Cameron Williams, Assistant

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

OPINION

Facts and Procedural History

During a traffic stop on November 6, 2010, officers discovered the petitioner was

driving on a revoked license and was hiding cocaine in his shoe. As a result, the

petitioner was charged with and convicted of driving on a revoked license, third offense,

and possession of 0.5 grams or more of cocaine, a Schedule II controlled substance, with

intent to sell or deliver.1 State v. Jerome Perkins, No. M2013-02164-CCA-R3-CD, 2014

WL 2829390, at *1 (Tenn. Crim. App. June 20, 2014), perm. app. denied (Sept. 25,

1

Prior to trial, the petitioner pled guilty to the driving offense. As such, he proceeded to trial on

the drug offense alone.

2014). On direct appeal, this Court affirmed the petitioner’s drug conviction and, in

doing so, provided the following summary of the underlying facts:

At [the petitioner’s] October 11, 2012 trial, the State called Officer

James Tuggle with the Lebanon Police Department as its first witness. He

had attended several schools involving drug interdiction and drug

identification and had also amassed on-the-job training in his over nine

years of law enforcement experience. Officer Tuggle testified that on

November 6, 2010, he was working in the West Main Street area, which

was known for drug activity. As Officer Tuggle observed a residence, he

saw [the petitioner] pull away from the residence driving a white Chrysler

Sebring. The vehicle had a nonfunctioning brake light, so Officer Tuggle

initiated a traffic stop of the vehicle on Hill Street. After obtaining [the

petitioner’s] personal information, Officer Tuggle confirmed that [the

petitioner’s] driver’s license had been revoked. Officer Tuggle then placed

[the petitioner] under arrest. During the search incident to arrest, Officer

Tuggle found a plastic bag that contained what appeared to be crack

cocaine in [the petitioner’s] left shoe. Officer Tuggle believed that [the

petitioner] possessed the crack cocaine for the purpose of selling it based

upon his presence at a residence known by police to be a “drug den;” his

possession of $83 in his pocket coupled with his being unemployed; his

lack of drug paraphernalia that would indicate possession for personal use;

and his general health and appearance, which suggested that [the petitioner]

did not use drugs himself.

On cross-examination, Officer Tuggle admitted that he was unaware

of whether [the petitioner] possessed the crack cocaine when he entered the

residence or whether he purchased it while visiting the residence. He also

acknowledged that he found neither a weapon nor scales in [the

petitioner’s] possession, which would be common for a drug dealer to

possess. He also confirmed that he did not return to the residence or

interview any of the occupants therein to corroborate his opinion. Officer

Tuggle stated that the plastic bag containing crack cocaine was not

subjected to fingerprint testing. Officer Tuggle opined that a person would

not smoke more than 0.5 grams of crack cocaine at one time, so he inferred

that [the petitioner] possessed 1.6 grams to sell.

On redirect examination, Officer Tuggle stated that a “crack head”

would not normally wait to use the remainder of the drugs in his possession

at a later time. He characterized the size of the rock as the size of a

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thumbnail, whereas the amount that would fit inside a crack pipe was

smaller than a “pinkie” nail.

Tennessee Bureau of Investigation Special Agent Forensic Scientist

William Stanton testified next and confirmed that the rock was crack

cocaine that had been “cut,” or combined with another substance, and that it

weighed 1.6 grams.

Lebanon Police Officer Jason Toporowski testified that he

responded to Officer Tuggle’s traffic stop of [the petitioner’s] vehicle.

When he arrived, Officer Tuggle had already taken [the petitioner] into

custody. Officer Tuggle requested that [the petitioner] remove his shoes,

and when he complied, Officer Toporowski observed a clear plastic bag fall

from the shoe. He also confirmed that he knew the residence in question to

be a “drug house,” or a place that people frequented to use drugs. The State

then rested its case-in-chief.

[The petitioner] did not present any evidence. Upon the State’s

proof, the jury found [the petitioner] guilty of possession of more than 0.5

grams of cocaine with intent to sell or deliver.

At a subsequent hearing, the trial court sentenced [the petitioner] as

a multiple offender to fifteen years for possession of cocaine and the

agreed-upon concurrent sentence of eleven months, twenty-nine days for

driving on a revoked license, third offense.

Id. at *1-2.

The petitioner timely filed a pro se petition for post-conviction relief which was

later amended by counsel. In the amended petition, the petitioner argued trial counsel

was ineffective for failing to investigate and prepare his defense, failing to challenge the

constitutionality of the traffic stop which led to his arrest, failing to pursue possible

defense strategies resulting from the State’s alleged failure to preserve video footage of

the traffic stop, failing to review the audio recording of the petitioner’s preliminary

hearing to aid in his defense, failing to file any pretrial motions to limit testimony about

John Mack Draper, the owner of the alleged “drug house” who died prior to the

petitioner’s trial, failing to challenge the chain of custody of the drugs entered into

evidence at trial, and failing to present evidence to challenge Officer Tuggle’s testimony

or establish the petitioner’s drug addiction as a defense.

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At the post-conviction hearing, the petitioner focused on the constitutionality of

the traffic stop which led to his arrest and the alleged ineffectiveness of trial counsel

regarding the same. Shanetta Browne, the owner of the car the petitioner was driving at

the time of the traffic stop, testified the tail lights were working properly when the

petitioner borrowed her car on November 6, 2010. After the petitioner’s arrest, Ms.

Browne’s car was towed to a lot where she picked it up the next day. Upon retrieving her

car, the tow lot employees “said that everything was working fine,” and she relayed this

information to the petitioner. Ms. Browne further stated, “I’ve never had to get anything

fixed on the car.” Ms. Browne did not discuss the condition of her car with trial counsel

because, “[h]e didn’t bring it up” and she did not believe it was an issue.

In contrast, Officer Tuggle testified he pulled the petitioner over after observing

the passenger side brake light out on the petitioner’s car as he left “a known drug house”

on November 6, 2010. Officer Tuggle arrested the petitioner during the traffic stop after

discovering the petitioner’s driver’s license had been revoked. During the subsequent

search, Officer Tuggle found “what [he] believed was crack cocaine in [the petitioner’s]

shoe.” Officer Tuggle believed the petitioner intended to sell the cocaine, and he testified

to the same at trial. Though his police vehicle captured the traffic stop on video, the

video was not preserved. During cross-examination, Officer Tuggle explained it was the

policy of the Lebanon Police Department to destroy video footage from police vehicles

after ninety days absent a hold to save the same. He stated holds were typically only used

for “DUIs and [u]ses of [f]orce” cases due to the storage space available at the time.

The petitioner then testified, stating though he met with trial counsel numerous

times, they did not discuss his case “until about a week before the trial.” Instead, the

meetings consisted of the petitioner “just giving [trial counsel] money and [trial counsel]

giv[ing] [the petitioner] another court date.” During one meeting, however, the petitioner

asked trial counsel to request the video footage of his traffic stop and arrest as he believed

it would show the brake light was working prior to the stop. According to the petitioner,

trial counsel refused stating, “I’m not going to ask for that video tape. That tape is not

gonna help you.” The petitioner also wanted trial counsel to contact witnesses, including

Shanetta Browne, John Mack Draper, and tow lot employees, to support his assertion that

the brake light was functioning properly at the time of the initial traffic stop, but trial

counsel refused to do so.

The petitioner admitted to discussing a proposed plea deal with trial counsel, but

stated they did not discuss discovery, the suppression of evidence, or witnesses. As such,

the petitioner complained trial counsel did not investigate his case or pursue his theory

that the traffic stop was illegal. Further, the petitioner stated trial counsel did not file any

pretrial motions to limit testimony about Mr. Draper or to suppress evidence from the

traffic stop, including the amount of cocaine found during the search. The petitioner did

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admit Mr. Draper passed away before trial counsel had the chance to speak with him, but

also claimed trial counsel refused to meet with Mr. Draper or Ms. Browne. According to

the petitioner, trial counsel’s trial strategy was “[n]othin.” The petitioner believed his

defense was “basically [his] word against this cop.”

The petitioner also argued the audio recording of his preliminary hearing was not

captured in full. The petitioner offered testimony from Heather Brown, an employee in

the General Sessions Court for Wilson County, in an attempt to show trial counsel did not

request a copy of the audio recording of the preliminary hearing. Ms. Brown testified she

received a request for the audio recording of the preliminary hearing from post-

conviction counsel, a copy of which was entered into evidence. Though Ms. Brown

stated she received no other requests for the preliminary hearing recording, she also

testified she began working in the clerk’s office on August 15, 2012 and was unaware of

any requests made prior to that date.

During cross-examination, the petitioner admitted that while his present charges

were pending, he was under indictment for aggravated assault for which trial counsel also

represented him. The petitioner explained he retained trial counsel in August 2011, after

his preliminary hearing in this case. The petitioner claimed he did not know Mr. Draper

passed away in July, prior to his retaining trial counsel in August.

The petitioner continued to assert trial counsel “didn’t do nothing.” He stated trial

counsel did not discuss the risk of him testifying and being subject to cross-examination

at trial. However, the petitioner also stated:

All [trial counsel] told me was, that we’re not gonna put you on the

stand because they -- I already been to trial I know what’s goin on at trial.

So I already know that if I get on the stand they gonna open up and bring

up all my past history. That was all he told me.

The petitioner denied telling trial counsel that he wanted to pursue an addiction defense,

but then stated, “I’m tellin him I done been to rehab and everything. They need to know

this. He didn’t never want to bring that up.” The petitioner told trial counsel that he was

high on cocaine during his trial, but trial counsel refused to “bring that up” as well.

The petitioner admitted to having “some powder and that little rock” of cocaine on

him during his arrest. However, he stated he did not have any paraphernalia indicating

his use of cocaine other than “some rolling papers.” The petitioner explained he did not

use needles or a pipe to get high and further admitted he told Officer Tuggle during his

arrest that he was high and had “just bought dope” from Mr. Draper’s house. Despite

clear evidence indicating the video of the traffic stop was unavailable, the petitioner

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stated, “If y’all can get that video tape, I promise you it will set the record straight. The

officer lied.”

During redirect examination, the petitioner stated he did not see any of the pre-trial

motions filed by the State and did not discuss any motions with trial counsel. The

petitioner again asserted trial counsel refused to pursue the video tape evidence prior to

and during trial.

During recross-examination, the petitioner recalled that during trial, trial counsel

mentioned the petitioner’s drug use during closing argument, pointed out the amount of

cocaine found in the petitioner’s shoe did not affect the way he walked, noted Officer

Tuggle did not know if the petitioner possessed cocaine before entering Mr. Draper’s

house prior to his arrest, indicated the petitioner did not have a weapon on him at the time

of his arrest, argued the baggie found on the petitioner was not fingerprinted and there

was no evidence of how long the cocaine had been in the petitioner’s shoe, objected to

references to Mr. Draper’s house as a drug den, and cross-examined all of the State’s

witnesses. Though he acknowledged trial counsel employed these trial strategies and

techniques, the petitioner remained focused on the fact that trial counsel “didn’t ask for

that video tape.” The petitioner stated, “[trial counsel] did a little something, but he just

didn’t do what I asked him to do. I mean, like for one, challenging that stop, that illegal

stop, illegal search and seizure. He didn’t want to challenge that.”

The petitioner recalled Ms. Browne, who again testified the lights on her car were

working when she picked it up from the tow lot after the petitioner’s arrest. The

petitioner then closed his proof.

The State offered testimony from trial counsel who stated he was retained to

represent the petitioner for his drug case and an aggravated assault case. Trial counsel

met with the petitioner “[a]pproximately 20 times.” He admitted “the vast majority of

[his] investigation was primarily focused on the assault” because it “was the more serious

because it was a crime of violence and there was a gun involved.” During their initial

meeting, trial counsel and the petitioner discussed the charges and facts surrounding the

petitioner’s cases and developed “a plausible defense.”

Trial counsel stated he was present for the petitioner’s preliminary hearing, though

he did not represent the petitioner at the time. However, trial counsel indicated he

requested a copy of the recording of the preliminary hearing and discussed it with the

petitioner. Subsequent to the preliminary hearing, trial counsel learned video footage of

the petitioner’s arrest did not exist and discovered “there was no other indicia[] of him

being a [drug] dealer other than a possession charge.” Trial counsel used the information

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learned at the preliminary hearing to form his trial strategy, which he explained, as

follows:

I mean, the stop, I mean, it was a consent search initially. Then it

was a search incident to a lawful arrest on the [d]riving on a [s]uspended.

The cocaine was found in his shoe. So we really couldn’t say, [w]ell, it’s

not my cocaine. It’s not my shoes. The real issue at trial that we tried to

convince the jury was, it was kind of entire defense strategy was, [h]ey,

we’re not saying this is not cocaine. We’re not saying it’s not his cocaine.

We’re saying he’s not a drug dealer. He’s rather only a drug user.

Substantial different issue.

While trial counsel proceeded to trial with the understanding that no video existed,

he continued to request a copy of the same, explaining “on the eve of trial we just

followed up again to make sure that there was not [a video] and there was not. We

learned after the fact that [the video] was destroyed sometime after the preliminary

hearing but prior to me being retained on the case.” As a result, trial counsel believed a

motion to suppress evidence from the petitioner’s traffic stop would be unsuccessful

“absent a video.” Furthermore, trial counsel did not believe a Ferguson motion would be

appropriate to file in regards to the missing video footage because no evidence of bad

faith on behalf of the State existed to support the same. State v. Ferguson, 2 S.W.3d 912

(Tenn. 1999). Trial counsel did not file a motion for discovery because “[he was]

provided everything [he] asked for.”

Regarding witnesses, trial counsel explained he considered calling Ms. Browne to

testify to the brake light working on her car, but believed her testimony “would not have

been credible because she was not present at the time of the actual stop and also in that,

basically that her testimony would be questioned because of her relationship with [the

petitioner].” Trial counsel confirmed Mr. Draper passed away prior to his representation

of the petitioner and as a result he was unable to interview him. Trial counsel also

explained trial testimony about Mr. Draper’s house as a known drug house “was more

consistent with [their] defense theory” because it supported the theory that the petitioner

went to Mr. Draper’s house to buy drugs, not to sell them. Further, trial counsel did not

challenge the chain of custody of the drugs entered into evidence because the State

presented a reasonable chain of custody at trial.

Regarding Officer Tuggle’s testimony, trial counsel explained he employed all

available strategies to challenge his testimony during cross-examination. For example,

trial counsel objected when Officer Tuggle offered opinion testimony describing the

typical appearance and characteristics of drug users, a mold within which the petitioner

did not fit according to Officer Tuggle. While trial counsel objected to Officer Tuggle’s

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implication that the petitioner was a drug dealer, rather than a drug user, he did not want

to put the petitioner on the stand to support a drug user defense because of his past

criminal record which included a prior drug sale.

Trial counsel discussed the ten-year plea offer with the petitioner “on a number of

occasions” but the petitioner “was not in a position where he was willing to consider any

kind of plea.” Trial counsel later discussed a subsequent eight-year offer with the

petitioner, but he rejected that too.

After trial, trial counsel filed a motion for new trial on the petitioner’s behalf, but

their relationship soon deteriorated. The petitioner fired trial counsel from the assault

case which was still pending and after the appointment of new counsel, a “pretty

favorable” plea deal was made.

Trial counsel provided discovery to the petitioner twice, both prior to and after

trial. Prior to trial, trial counsel provided the petitioner with “a copy [of discovery] to

draw all over, make [his] notes, come back and [] go over it” with trial counsel. After

trial, the petitioner filed a complaint with the Tennessee Board of Professional

Responsibility claiming trial counsel failed to provide him with the discovery in his case.

As a result, trial counsel provided the petitioner with “another copy of his entire file.”

During cross-examination, trial counsel stated he did not have the petitioner reject

the State’s plea offers in writing. Rather, “[the petitioner] said he didn’t want to take [the

offers] so we set it for trial.” Trial counsel reviewed the preliminary hearing tape with

the petitioner which “is what provided us the basis of going forward on our defense

strategy.” Additionally, in preparation for trial, trial counsel stated he spoke to

preliminary hearing counsel regarding the petitioner’s case. Trial counsel noted Mr.

Draper was “never an option” as a witness “because [Mr. Draper] was already deceased

by the time [trial counsel] became involved in the case.” He also did not believe video

footage of the petitioner’s traffic stop was critical to the petitioner’s case, noting again

that the tape did not exist according to preliminary hearing counsel and trial counsel’s

attempts to request a copy of the same. Trial counsel stated the petitioner and Ms.

Browne told him “all rear lights on the vehicle” were working after the petitioner’s arrest.

Regarding Officer Tuggle, trial counsel stated he objected to his testimony

“repeatedly, everywhere [he] possibly could,” but he did not present evidence to rebut

Officer Tuggle’s testimony because it supported their defense theory. Trial counsel again

explained:

Everything that Officer Tuggle testified to factually was consistent

with a possession charge rather than possession with intent to resale (sic).

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His testimony if you may not recall about his observations on [the

petitioner] being more consistent with a drug dealer than a drug user. I

objected, thoroughly, repeatedly, and again, and again, and again. I even

objected on the grounds that, hey, you’re not qualified to make those calls.

Trial counsel asserted the jury “got it wrong” as the evidence only supported

possession rather than possession with the intent to resell. He explained “[t]he best

evidence I had was the State’s own testimony” which demonstrated the petitioner did not

have a weapon, a significant amount of money, scales, or ledgers at the time of his arrest.

Trial counsel did not believe any witnesses existed to support his defense theory.

The petitioner testified again in rebuttal. He reaffirmed many of the issues

reviewed during direct examination, but also admitted trial counsel discussed the defense

theory of possession for use rather than resale with him. He further claimed trial counsel

only relayed the ten-year plea offer to him, not the eight-year offer, claiming he would

have taken the eight-year offer for both the drug and aggravated assault charges. The

petitioner again asserted he discussed Mr. Draper with trial counsel and urged trial

counsel to speak to Mr. Draper.

During rebuttal cross-examination, the petitioner admitted to a 2001 “Schedule II

felony.” He also explained he believed the ten-year plea offer was for both of his

charges, though he refused it. The petitioner stated he tried to fire trial counsel at trial

because “he wouldn’t do nothing that [he] said,” but trial counsel told him it was too late.

The petitioner claimed trial counsel told him “to dress like an addict” for trial.

Finally, the State offered rebuttal proof from trial counsel who detailed the plea

offers made prior to trial, stating:

The original offer was ten years to serve. Then there were two

separate cases. Eventually [the State] agreed to reduce the more serious

charge to an eight-years to serve, which I shared with [the petitioner]. But

his statement to me was, [i]f it was not a probated sentence he was not

going to take anything.

Additional testimony revealed the final offer was a ten-year sentence for the drug charge

to run consecutively to an eight-year sentence for the aggravated assault charge, which

the petitioner rejected.

After taking the matter under advisement, the post-conviction court denied the

petition. This timely appeal followed.

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Analysis

On appeal, the petitioner argues trial counsel was ineffective for not investigating

his case or “develop[ing] a defense strategy to challenge the credibility of the [S]tate’s

main witness[,] Officer Tuggle.” The petitioner asserts trial counsel “refused to engage

and left the [S]tate’s case unchallenged but for cross[-]examination.” The petitioner

asserts trial counsel’s alleged ineffectiveness prejudiced his case, arguing absent trial

counsel’s ineffectiveness “there is a reasonable possibility that a jury would have found

[the petitioner] guilty of a lesser[-]included offense.” The State contends the post-

conviction court properly denied the petition because the petitioner “failed to overcome

the strong presumption that trial counsel exercised reasonable judgment in all significant

decisions [or] that counsel’s alleged failings inured to his prejudice.” Following our

review of the record and submissions of the parties, we agree with the State and affirm

the judgment of the post-conviction court.

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that

his or her “conviction or sentence is void or voidable because of the abridgement of any

right guaranteed by the Constitution of Tennessee or the Constitution of the United

States.” Tenn. Code Ann. § 40-30-103. The petitioner bears the burden of proving his

post-conviction factual allegations by clear and convincing evidence. See Tenn. Code

Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary

hearing are conclusive on appeal unless the evidence preponderates against them. See

Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or

reevaluate evidence of purely factual issues. See Henley v. State, 960 S.W.2d 572, 578

(Tenn. 1997). However, appellate review of a trial court’s application of the law to the

facts is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,

96 (Tenn. 1998). The issue of ineffective assistance of counsel presents mixed questions

of fact and law. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court

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

correctness only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6

S.W.3d 453, 461 (Tenn. 1999).

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

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

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

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

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

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

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

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

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

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

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

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

whose result is reliable.

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

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

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

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

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

assistance claim”).

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

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

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

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

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

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

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

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

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

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

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

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

101 (1955)).

The petitioner asserts trial counsel was ineffective for not investigating his case or

properly challenging Officer Tuggle’s testimony at trial. At the post-conviction hearing,

however, trial counsel explained his investigation into the petitioner’s case and detailed

his efforts to demonstrate the petitioner was a drug user, rather than a drug dealer,

through Officer Tuggle’s testimony. As noted by the post-conviction court:

[Trial counsel] testified that he thought the best theory in this case

was to try to show the amount in question – I’m talking about the amount

of the drug in question was small – and that he was essentially a user rather

than possessing for the purpose of sale or delivery.

The crime laboratory report showed that the quantity of the drug was

1.6 grams, which is the amount which is in excess of .5 grams that the

indictment charges.

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As I said, the whole theory was to convince the jury that the

petitioner was a user rather than a dealer. [Trial counsel] vigorously cross[-

]examined [Officer Tuggle] regarding the fact that there were no scales,

paraphernalia, drug sale journals, or any other indicia that would indicate

that he was a merchant of drugs.

Similarly, at the post-conviction hearing, the petitioner admitted trial counsel

pursued the drug user theory at trial by challenging the amount of cocaine found on the

petitioner, noting Officer Tuggle did not know when and where the petitioner obtained

the cocaine, objecting to testimony characterizing Mr. Draper’s house as a drug den, and

cross-examining all of the State’s witnesses. Furthermore, trial counsel explained he

vigorously cross-examined Officer Tuggle during trial and objected to his opinion

testimony that the petitioner fit the profile of a drug dealer rather than a drug user. Upon

trial counsel’s cross-examination, Officer Tuggle admitted “he found neither a weapon

nor scales in [the petitioner’s] possession, which would be common for a drug dealer to

possess,” he “confirmed that he did not return to the residence or interview any of the

occupants therein to corroborate his opinion,” and he “stated that the plastic bag

containing crack cocaine was not subjected to fingerprint testing.” State v. Jerome

Perkins, 2014 WL 2829390, at *1. It is clear trial counsel utilized Officer Tuggle’s

testimony to support the defense theory that the petitioner was a drug user, not drug

dealer and nothing in the record indicates trial counsel’s strategies regarding Officer

Tuggle were not sound. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.

1992). Simply because trial counsel’s strategies were unsuccessful does not render his

assistance ineffective. Id. The petitioner is not entitled to relief as to this issue.

The record also indicates trial counsel effectively investigated the petitioner’s

case. Trial counsel stated he met with the petitioner approximately 20 times during

which they reviewed the preliminary hearing recording, discussed the discovery file, and

considered witnesses for trial. Regarding witnesses, trial counsel explained he did not

call Ms. Browne to testify at trial because of credibility issues and the fact she was not on

the scene during the petitioner’s arrest. Trial counsel noted he did not interview Mr.

Draper as he passed away prior to his involvement in the petitioner’s case. Regarding the

alleged missing police video of the petitioner’s stop and arrest, the record indicates trial

counsel effectively addressed the same by attempting to obtain the video up until the eve

of trial. Because no video existed, trial counsel reasoned any motions relating to the

petitioner’s stop and arrest would be fruitless. Based upon the foregoing, the petitioner

has failed to show by clear and convincing evidence how trial counsel’s investigation of

the case constituted ineffective assistance of counsel. See Strickland, 466 U.S. at 694.

The petitioner is not entitled to relief.

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Conclusion

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

conviction court is affirmed.

____________________________________

J. ROSS DYER, JUDGE

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