Victor Thompson v. State of Tennessee

12/11/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 5, 2018

VICTOR THOMPSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Gibson County

No. 18590 Clayburn Peeples, Judge

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No. W2017-00679-CCA-R3-PC

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Petitioner, Victor Thompson, appeals the denial of his post-conviction petition.

Petitioner argues that he was denied the right to testify at trial, and trial counsel was

ineffective for failing to request a Momon hearing. Following a review of the briefs of

the parties and the entire record, we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Brian Clay Johnson, Jackson, Tennessee (on appeal) and Christie Hopper, Jackson,

Tennesseee (at trial), for the appellant, Victor Thompson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Garry G. Brown, District Attorney General; and Hillary Parham,

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

OPINION

Background

The facts of this case as set forth by this court on direct appeal are as follows:

This case relates to the stabbing death of Charlie Reagan. The evidence

shows that Carl Pickler was good friends with the victim, the owner of a

local muffler shop. They visited almost daily at the victim’s shop, and

Mr. Pickler routinely picked up automotive parts for the victim. On June

16, 2011, Mr. Pickler stopped by the shop to determine if the victim

needed parts. When he was there, a customer paid the victim $200, and

the victim placed the cash in his shirt pocket. Mr. Pickler saw the

Defendant ask the victim to use his telephone, and the victim told the

Defendant where to find the telephone. The victim was known to keep

watermelons and a large knife near the telephone the Defendant used.

As Mr. Pickler began to leave the shop, he heard the victim yell, “No.”

Five or six minutes after Mr. Pickler left, he saw police cars traveling

toward the shop. He learned minutes after seeing the police cars that the

victim had been stabbed.

The victim was known to keep about $300 or $400 in his pants pocket.

The victim always paid Mr. Pickler with cash from his pants pocket for

automotive parts. The day of the killing, though, Mr. Pickler saw the

victim place the $200 from the customer in his shirt pocket.

Mike Williams arrived at the victim’s muffler shop for new tires around

2:40 p.m. He found the victim face down and attempted to wake him.

The victim told Mr. Williams to call 9-1-1 and said, “I’ve been stabbed

and I’m dying.” The victim lifted his right hand into the air and shook it

and went limp.

Laura Hardin, a registered nurse, treated the victim in the emergency

room at Milan General Hospital. The victim did not have a heart beat or

a pulse when he arrived, although CPR continued for sometime. She

saw four stab wounds to the abdomen. Several medications were

administered and medical procedures were unsuccessfully performed in

an attempt to restart the victim’s heart.

Milan Police Officer Chad Autry was told to be on the look out for the

Defendant because Investigator Williams wanted to talk to him about the

victim’s stabbing. He went to the local Walmart after learning the

Defendant was heading there in a red Pontiac with Shadarra Gadlen. He

stopped the Pontiac, but the Defendant was not in the car. Ms. Gadlen

claimed that she dropped off the Defendant at Walmart. He and Officers

Finnessee and Cook found the Defendant at Walmart and arrested him.

The Defendant met a Walmart employee and placed a bag of clothes on

the employee’s car. The bag contained bloody clothes, a telephone, a

video camera, and shoes. The clothes were sent to the Tennessee Bureau

of Investigation (TBI) crime laboratory for analysis. The Defendant did

not have visible injuries, weapons, or money at the time of his arrest.

Ms. Gadlen’s Pontiac was later searched by Humbolt police.

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Milan Police Investigator Jason Williams, the lead investigator assigned

to this case, asked the victim who hurt him, but the victim was unable to

talk. He identified photographs of a homemade mallet or hammer lying

near the victim, which had blood on it, and a pool of blood in the area

where the victim was found. A bloody, large socket wrench and a pair

of pliers were found at the scene. The hammer, socket wrench, and

pliers were sent to the TBI crime laboratory for analysis. Blood spatter

was found on the wall and boxes nearby, and swabs were taken to the

TBI crime laboratory for analysis. Footprints leading from the back door

of the victim’s shop were also recovered. A customer’s check was found

on the desk inside the office, but no cash was found. The victim’s

family later found cash in the shop. The victim’s clothes were sent to the

TBI crime laboratory for analysis. Investigator Williams learned from

an informant that the Defendant might have been involved in the

victim’s death.

The Defendant’s recorded police interview was played for the jury. The

Defendant stated that when he arrived at the shop an older man was there

and that a woman also stopped by the shop. He was embarrassed and

waited for them to leave but talked to the older man. He asked the

victim for a job, but the victim refused. He asked the victim why he

could not have a job because he had previously worked for the victim.

He said that the victim called him a “n––––,” that he told the victim he

was not a “n––––,” and that the victim picked up a sledge hammer and

came toward his face. The Defendant said that he attempted to block the

hammer but that it hit his face and “busted his lip.” The Defendant

grabbed a knife when the victim came toward him with the hammer. He

claimed that the victim came at him several times, that the knife went

into the victim, and that he did not “give it a force.” They struggled, and

the knife “slid across” the Defendant’s hand because his hand was loose

around the knife handle. The Defendant picked up the knife and ran. He

provided the police directions to the knife’s location. The knife matched

a knife set owned by the victim.

The Defendant claimed to have mentioned the killing to his uncle Bug

when he was at his uncle’s mother’s house in Milan on the day of the

stabbing. His then-girlfriend was with him when he spoke to his uncle,

but the Defendant denied telling her what occurred, although he told her

he might have killed someone. When asked if he thought the victim was

going to hurt him, he said, “No, I didn’t think—I don’t know if he’d hurt

. . . I really thought I was gonna use my fist, but then I saw the knife and

I was like, he got a hammer.” He denied taking anything from the

victim. The Defendant had $11 at the time of his arrest. The Defendant

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changed clothes before the interview and admitted the clothes he wore

during the stabbing were inside the bag recovered by the police. Buccal

swabs were obtained from the Defendant and sent to the TBI crime

laboratory for analysis. Although the Defendant said the victim hit him

with a hammer in the lobby of the muffler shop, no blood was found

there. All the blood was found in the shop area. Investigator Williams

did not see any wounds on the Defendant’s head or lip, although the

Defendant had a small cut to his finger.

Investigator Williams believed a robbery occurred because no money

was found at the scene, although the victim’s wallet, pocket calend[a]r,

and some money were found by the victim’s family. The victim’s

family found $599 cash at the victim’s shop, which was provided to the

police. The $200 cash given to the victim by the customer the day of the

stabbing was not found. Although money was found inside the shop

sometime after the killing, no money was found on the victim’s person.

It was this missing money that was the basis for the robbery charge.

Chad Ferrell, the victim’s son-in-law, knew the victim always to have

money in his pockets when he was at work. He recalled one occasion

when the victim pulled $3000 from his pocket to help Mr. Ferrell

purchase a truck. He said the victim carried money loose in his pants

pocket. Mr. Ferrrell found the victim’s wallet and calend[a]r wallet

inside the shop in its usual place two days after the killing.

Sara Reagan, the victim’s daughter, knew the victim to keep money in

his right pocket. Larry Reagan, the victim’s brother, knew the victim

always carried money in either his pants or shirt pockets. The victim

kept the money folded in his shirt and pants pockets and used it to make

change for his customers.

Shadarra Gadlen and the Defendant were “trying to date” before his

arrest. She and the Defendant visited often, and he spent the night at her

apartment a few times. On June 16, 2011, she visited her friend, T.J., in

Milan, and the Defendant asked to join her. The Defendant asked to be

dropped off at the four-way stop just inside the Milan city limits. She

dropped off the Defendant and met her friend. Before she and the

Defendant drove to Milan, the Defendant had money and helped pay for

gas. She took him to Walmart earlier that week to pick up at least $50

from his father. The Defendant arrived at T.J.’s house sometime after

lunch and asked if she was ready to leave, and they left. The Defendant

was not wearing a shirt when he arrived. As they got in her car, the

Defendant asked to stop by a friend’s house, and she took him there.

-4-

The Defendant talked to his friend, and they left between 2:00 and 3:30

p.m. and returned to her apartment. The Defendant offered to pay for

gas on the way home. The Defendant took a shower when they arrived

at her apartment and watched television but left to talk to his cousin.

The Defendant returned and asked her to drive him to the Walmart in

Milan because of a family emergency. She drove the Defendant there

and noticed he had a bag of clothes, money, and a cell phone. The

Defendant told her, “Today, I hurt someone.” She thought the

Defendant was in a fight, but the Defendant said, “I killed someone.”

Ms. Gadlen thought the Defendant acted “weird” when they returned to

her apartment because he paced and talked to various people on the

phone. She did not recall the Defendant’s complaining of a headache or

seeing a busted lip. She only saw a little, thin cut on his finger. She said

the Defendant lied about his name and his age. Although she denied that

the Defendant had a “larger” amount of money after they returned from

Milan, she said the Defendant’s “roll” of money looked “fairly larger.”

Jason McCain had known the Defendant for about five years. On June

16, 2011, he saw the Defendant at Mr. McCain’s mother’s house in

Milan, which was a two minute drive from the victim’s shop. He called

the Defendant that day, who came to see him immediately. They talked,

and the Defendant admitted stabbing and killing someone and taking

money from the person he killed.

William Jerrell had known the Defendant for about seven years and had

served time in jail with the Defendant. When they were both in police

custody, the Defendant told him that he planned to go “in there” and take

money but that things did not go as planned. It was supposed to be “a

run of the mill robbery.” The Defendant heard the victim had money,

did not expect the victim to fight back, and stabbed the victim when he

fought back. The Defendant took up to $4000 from the victim and

bragged about “getting” thousands of dollars. The Defendant threatened

to “do [Mr. Jerrell] just like he did that old man” if he testified. The

Defendant referred to the victim as the old man.

Justin Adams also spent time in the local jail with the Defendant. The

Defendant admitted killing the victim “[b]ecause he wouldn’t sell me no

tires” and taking $4000. The Defendant said the victim fought back with

a hammer when the victim was about to stab him. The Defendant

assaulted Mr. Adams and threatened that he knew “gang people” who

could “get” to Mr. Adams’s family.

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Gibson County Correctional Officer Joel Hughey was involved in an

altercation with the Defendant after attempting to remove contraband

from his cell. The Defendant stated, “Well, you know what happened to

Charlie. It will happen to you, too.” A second altercation occurred

during the Defendant’s pretrial confinement regarding a lighter the

Defendant had inside his cell. Sergeant Bobby Rogers and Officer Chad

Droke searched the Defendant’s cell after they smelled something

burning. The officers attempted to perform a strip search, but the

Petitioner refused and said, “Y’all are just picking on me because I killed

your friend, Charlie Reagan.” The Defendant threatened to kill Officers

Hughey and Droke.

TBI Special Agent Jennifer Milsaps, an expert in serology and DNA

analysis, analyzed the evidence. She concluded that the victim’s blood

and DNA were on the hammer and that partial DNA profiles matching

the Defendant were on four places on the handle of the hammer. She

concluded that a partial DNA profile matching the victim’s was on the

socket. Regarding the Defendant’s clothes recovered at the time of his

arrest, she concluded that the victim’s blood and DNA were on the front,

lower right portion of the blue t-shirt and that the victim’s DNA was on

the Defendant’s jeans. Although blood was present on the knife blade

and handle, she was unable to detect the presence of DNA.

Miguel Laboy, an expert in the field of forensic pathology, performed

the victim’s autopsy and concluded that the cause of death was sharp

force injuries to the chest. He found four stab wounds and one

superficial incision. One stab wound extended into the chest cavity,

injured three ribs, and perforated the lower right lung. Another stab

wound perforated the left chest wall and penetrated the left chest. A

third stab wound penetrated the soft tissue of the abdominal wall. He

concluded that the victim died within minutes to hours of receiving the

injuries and that it was possible the victim was able to fight his attacker

before collapsing. The victim had defensive wounds on his left cheek,

right arm, right elbow, right forearm, right wrist, right hand, left elbow,

left hand, left middle knuckle, and left ring finger.

Upon this evidence, the jury convicted the Defendant of second degree

murder and theft. The trial court sentenced the Defendant as a Range I,

standard offender to consecutive terms of twenty-five years for second

degree murder and eleven months, twenty-nine days for theft. This

appeal followed.

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State v. Thompson, No. W2013-00226-CCA-R3CD, 2014 WL 605441, at *1-5 (Tenn.

Crim. App. Feb. 14, 2014)

Post-Conviction Hearing

Petitioner testified that he wanted to testify on his own behalf at trial. He and trial

counsel discussed the issue, and he said that he wrote to trial counsel several times about

the matter. He said that one letter was written on January 3, 2012, before trial, asking

trial counsel when he could testify. Petitioner testified that trial counsel wanted him to

accept a plea offer. He said that he wanted to testify because there were no other

witnesses to the crime, and he was the “only person that could have testified in my behalf

as to what exactly took place and how it took place. . . .” Petitioner testified that he told

trial counsel that he acted in self-defense and that he repeatedly told trial counsel that he

wanted to testify at trial.

Petitioner testified that he was not familiar with a Momon hearing at the time of

trial, but he knew what it was at the time of the post-conviction hearing. He said that

there was no Momon hearing outside the presence of the jury during his trial. Petitioner

also read a portion of the trial transcript during which trial counsel told the trial court that

trial counsel did not want a Momon hearing. Petitioner testified that he was never

questioned about his desire to testify, and he wanted to testify.

Petitioner testified that he was on medication at the time of trial due to his mental

health evaluation. He was taking Thorazine and Benadryl which slowed his thought

process and comprehension. Petitioner testified that the medication also affected him

“memory wise.” He said that if he had not been on the medication, he would have told

the trial court that he wanted to testify.

When asked what his trial testimony would have been, Petitioner testified that he

would have told the jury that he went to the victim’s muffler shop to seek employment

because he was previously employed by the victim. He said that there were some

customers in the shop, including Mary Quinton and Carl Pickler, and the victim told him

to hold on. Petitioner testified that he helped the victim with Mr. Pickler’s muffler and

asked the victim about a job. He said that the victim yelled: “I do not want a [racial slur]

working for me because somebody just stole something from me yesterday[.]” Petitioner

testified that Mr. Pickler left the shop, and Petitioner told the victim was he was not a

[racial slur] and asked the victim not to refer to him as such. He said that the victim

again called him [racial slur] because he was black, and Petitioner responded that he was

black but not a [racial slur]. Petitioner testified that the victim picked up a hammer and

started toward him, and petitioner apologized to the victim. He said:

Right there by that phone was - - there was a steak knife right there.

Now, when - - when we came out the shop, when we was - - we was

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coming out the - - the little waiting area where it’s nice and cool into the

shop, which is like the garbage area where there is heat, when he picked

the mallet up, he came towards me and when he’s coming towards me, I

can’t - - I’m not going to turn my back when there’s a hammer coming

towards me. I’m not going to. Period. Ever in my life.

So I - - I put my hands up to stop the swing, and I stopped it, but it still

hit me through my - - it still hit me a little bit. It busted my lip. And I

picked the knife up off the shelf. When I picked the knife - - The shelf

was close to the exit of the - - of the garage.

So I picked the knife up in my hand, and I held the knife up. He still

kept on coming at me. When he came at me, he swang again, but he

didn’t get me because I put my arms up. It hit my hand, and I put the

knife in him. Every time he came at me, I stabbed him.

* * *

To tell you the truth, I did not go towards him. I - - I - - I was - - I had

the knife. I was so nervous and had the knife so loosely in my hand that

the knife actually slipped and cut my hand. I still have the scar to this

day, and it slid on a - - on a downward cut, which means that I had the

knife - - the point was protruding from the - - the palm, which means that

I’m - - I’m – I have the back of my hand to protect my body - -

Petitioner testified that he was backing away from the victim, and the victim advanced

toward him four times. He said that the victim fell to the floor after the fourth time that

Petitioner stabbed him. Petitioner testified that he then left out the back door, and “kept

on running . . .” until he got tired. When asked about the victim’s tone before the

stabbing, Petitioner testified: “He snapped clean off.” He also said that the victim

appeared angry. Petitioner agreed that his argument with the victim was confrontational

until “it got physical.” Petitioner testified that his testimony could have corroborated Mr.

Pickler’s testimony that he heard the victim say, “No,” as Mr. Pickler was leaving the

shop.

Petitioner testified that he told Jason McCain what happened, and Mr. McCain

advised him to stay out of town and to not go to the police. Petitioner said that he could

have testified at trial that he was a non-violent person and had not had any charges of

violence prior to the victim’s murder. He agreed that he “recently just got in trouble for

something that has something to do with violence on my name and that’s from me

coming to this jail.” He acknowledged getting into several physical altercations while in

prison.

-8-

Petitioner agreed that William Jarrell testified at trial that Petitioner said he stole

$4,000 from the victim and that Petitioner went to the muffler shop for the purpose of

robbing the victim and that the robbery went bad. Mr. Jarrell also testified that Petitioner

told him that he did not expect the victim to fight back and that Petitioner was “scared

and really didn’t know that was going on at the time. All he knew is or was afraid that

[the victim] would hurt him.” Petitioner testified that he knew Mr. Jarrell because they

were in confinement together. He denied telling Mr. Jarrell anything about his case, and

he would have testified at trial that the other inmates “joked around” with his case

because they had nothing else to do. Petitioner testified that his case was a “high profile”

case, and it was of interest to other inmates in the jail and some of the officers. Petitioner

agreed that Mr. Jarrell testified at trial “that he would get his charge dropped that he had

inside this county because he had - - he was on probation or something for another

charge.” He agreed that trial counsel cross-examined Mr. Jarrell about the deal he would

receive for testifying against Petitioner, but he said that trial counsel did not go into

enough detail.

Petitioner testified that Justin Adams was also confined in the same cell with Mr.

Jarrell, who Petitioner had previously testified was in solitary confinement. He said that

Mr. Adams testified that Petitioner killed the victim “for $4,000.00 and that I wanted to

rob him for some - - because he wouldn’t sell me no tires.” Petitioner said that if he had

been allowed to testify at trial he would have told the jury that Mr. Jarrell and Mr. Adams

were cell mates and that they did not get along with Petitioner “at all. Period.” Petitioner

testified that he and Mr. Adams had a physical altercation at the jail over Petitioner’s case

and the jokes that were being made about Petitioner’s case. He thought that Mr. Adams

also had a deal with the State to testify against him. Petitioner said that he would have

disputed all of Mr. Adams’ testimony if Petitioner had testified at trial. He said that he

never went to the victim’s shop to buy tires because he walked there.

Petitioner testified that he would have also rebutted the testimony of Officer Joel

Hughey. He said that he and Officer Hughey had “so much conflict before trial and after

trial and, I guess, during the trial because he came and testified on me too.” Petitioner

testified that Officer Huey’s testimony at trial was a “misstatement.” He said he got into

an altercation with Officer Huey over some cigarettes. Petitioner claimed that Officer

Huey’s testimony was false because Petitioner only had a “wick” for somebody else to

smoke rather than a cigarette, and Officer Huey got mad when Petitioner tossed the wick

into the toilet. Petitioner denied telling Officer Huey that he was going to treat Officer

Huey like he had treated the “old man.” Petitioner testified that he had issues with other

correctional officers too because they all knew the victim and the officers beat Petitioner

so badly that he defecated blood. He claimed that the beatings occurred every week.

Petitioner acknowledged that his statement was played for the jury. He said:

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- - My concern was that during that . . . statement, it was so - - it

was fresh because it was the same night of the murder, and I - - I

cried, and I - - I was - - so I was breaking apart and from time-to-

time to actually give an in-depth explanation to the - - to the - -

the investigator at the night of the crime took place, and I could

have - - I could have elaborated into each part of the statement. I

could have broken it down as to exactly what took place and

elaborated more onto each part where so the jury can get a clear

understanding as to what took place, so they could have a clearer

vision as to how each step happened.

On cross-examination, Petitioner testified that trial counsel waived his right to

testify without a hearing and without his consent. He said that when the trial began, he

was under the presumption that he was going to testify. Petitioner testified that trial

counsel was trying to get Petitioner’s grandmother to tell him not to testify and to accept

a plea deal.

Petitioner said that he could have testified at trial concerning his second interview

that was played for the jury. He also would have testified that the crime scene

photographs of the “blood spatters that . . . was exactly where I said it . . . was when I

said I pulled the knife out right when I fell into the chair. There’s blood spatter right arm

[sic] on the chair.” Petitioner further testified that he could have testified that Officer

Huey, Mr. Jarrell, and Mr. Adams committed perjury. When asked what his testimony

would have added to the second statement, Petitioner replied: “I wouldn’t never changed

my statement, ma’am.” Petitioner then testified:

It was about 1 o’clock, what 12 o’clock, 1 o’clock, 2 o’clock. And I

wasn’t functioning properly, and there was so much more stuff that I

could have spoke on, like I said, in pertaining to exactly how - - how the

incident took place, from where it started, what words were exchanged,

who moved what certain type of way, where - - what - - where did he

move from, what location that it - - that it started, what words were

exchanged, who moved what certain type of way, where - - what - -

where did he move from, what location that it - - that it started, and what

location did it ended [sic] because there were two different locations

because it did - - the verbal altercation started in the little resting area.

Now, the physical part got into the - - the bay area where - - where the

lift is at, the car lift, and all that.

Now, please note, by the blood, like - - like I said, I also could have

testified to the crime scene photographs. Now, if you - -No, that’s - -

that’s factual evidence.

- 10 -

And that second - - that second statement I made shows that I wasn’t

lying by the factual evidence, by the photographic evidence, by the blood

splatter being right here, blood splatter being - - being on the arm of the

chair, blood splatter being all over. You know what I’m saying, ma’am?

That - - That shows that’s mutual combat.

Even by the hammer, the mallet that I complained of being hit with, I

described that. Out of all the tools in that shop, ma’am, I described

exactly how it looked the same night. Exactly how it looked. And it

was - - And it was [. . .], if you look at the crime scene photographs, it

was less than probably two feet from the initial blood - - from the initial

blood splatter where the victim was found at, which is [. . .] where I’m

meaning, where I’m going at, it was in arm’s - - arm’s length distance

from the victim’s - - from the victim. That’s what I’m saying, and - -

and I’m trying to show that - - that he had a weapon and, yeah, I

obtained a weapon that was there already.

* * *

Yeah, but I never got a chance to elaborate. There’s - - There’s - -

There’s just so much stuff I could have elaborated on. See, you cannot

just use my second statement as [. . .] my testimony because there’s part

[. . .] there’s just so much stuff that - - that could have been asked. You

know what I’m saying? Questions that could have been asked to clear - -

clarify, so it started right here, right? Yeah, it started over here then we

went over here. Just - -just something that the jury, I believe the jury

need to hear so they could actually see exactly what took place. They

can image, put a picture in their mind. You know what I’m saying? To

see exactly what took - - what took place, ma’am. That’s - - That’s what

I’m saying.

I wanted the jury to hear my side because there was no other witnesses

there, ma’am. I was the only other witness. And [. . .] who could testify

for me but me? And - - And my testimony would have been

corroborated by factual evidence; photographic evidence; my second

statement, which is corroborated by the photographic evidence.

Petitioner testified that he and trial counsel did not “really” discuss all of this

before trial and that trial counsel’s questions were more focused on whether Petitioner

was lying about what happened. He said that trial counsel acted more like an investigator

and “not really for me, but against me.” When asked if he and trial counsel discussed the

advantages and disadvantages of testifying, Petitioner replied: “I just told him that I

wanted to testify.” He began telling trial counsel that he wanted to testify in January of

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2012 if not before that time. Petitioner said that trial counsel advised him not to testify.

On redirect examination, Petitioner again went over what his testimony would have been

at trial.

Nora Smith, Petitioner’s grandmother, testified that Petitioner wanted to testify at

trial and “let everyone hear his side of the story, and the lawyer was against it. He

wouldn’t do it.” Ms. Smith said that she talked with trial counsel, and he said that it was

better if Petitioner did not testify because Petitioner could “end up with more time, and

[trial counsel] wanted [Petitioner] to take a plea of 40 years, and [Petitioner] was against

it.” On cross-examination, Ms. Smith testified that she and trial counsel discussed the

pros and cons of Petitioner testifying at trial. She said that Petitioner was present when

they discussed the issue, and trial counsel would walk out of the room so that she and

Petitioner could discuss the matter. Ms. Smith testified that Petitioner’s aunts encouraged

him to accept the plea offer. Ms. Smith was aware of one assault committed by Petitioner

while he was in prison.

Trial counsel, who had twenty-five years of experience in the Public Defender’s

Office, testified that Petitioner was originally charged in juvenile court, and the Public

Defender’s Office was appointed to represent petitioner. He began representing Petitioner

at that time and represented Petitioner throughout the appellate process. Concerning

Petitioner’s desire to testify at trial, the following exchange took place:

[Prosecutor]: . . . I understand [Petitioner] to testify here today that

he was not given an option to testify. What is your recollection - -

[Trial counsel]: This will be the [. . .] one thing that I will be

absolutely the most certain about. It didn’t happen that way.

[Prosecutor]: Tell us how it happened.

[Trial counsel]: Because it is always the client’s choice to testify.

Now, I may have explained to him why I thought it was a bad idea and

all the reasons that I thought things could go bad and at that moment, he

may have said, okay, I’m not going to testify.

I can’t recall specifically what was said, but had he wanted to testify and

made that clear to me, in any shape, form, or fashion, at that moment that

that came up, then he would have been allowed to testify, whether I

thought it was a good idea or not.

He didn’t. I’m - - I’m pretty sure I tried to convince him that - - that

where we were in the trial was as good as I thought we could get, and it

was all going to go downhill once he took the witness stand because I

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did not think that he - - while he is extremely talkative, he does not

always answer questions head on. Sometimes he’s answering some

other question; sometimes, as with your examination of him.

And he would open the way to a skilled examiner, whether it had been

Mr. Scott or you or General Brown, whoever it might have been, to have

done significant damage to him, plus there might be other things out

there that y’all did not have to disclose to us that you could then impeach

him with that would undermine everything else that he had said, which

we thought had been positive; in the initial interviews, extremely

positive. So that was - - that was my thinking.

[Prosecutor]: In the days leading up to the trial, is that something

that the two of you discussed?

[Trial counsel]: It would have been.

[Prosecutor]: Okay. And tell me how you would have normally

gone about that discussion, other than what you would have - - what you

just told us.

[Trial counsel]: Well, we - - we would have gone over what the - -

what we felt the proof was going to be. We would have talked about you

will have the opportunity to testify if you want to. Now, here’s the pros

and here’s the cons.

But I would have said something along the lines, but, [Petitioner], until

we get there that day and are in the trial, we won’t know because that’s

something that has to be assessed literally at that moment in almost all

cases.

[Prosecutor]: Would you have talked to him about the jury not

being able to draw any inference of his failure to testify, had he chose

not to?

[Trial counsel]: We - - we went over some of the jury instructions.

Literally, I had the pattern instructions there and went over them. Now,

as to telling him that and having the pattern jury instruction before me at

that time, I can’t say that I had the pattern jury instruction.

Yes, he would have been told just like the Judge has in his instructions

that they will be given the instruction that they’re not to draw any

inference from that.

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I don’t know of any defense lawyer that is entirely comfortable when

their client doesn’t testify, but sometimes that’s the best strategy, and we

felt that was the best strategy at that moment.

[Prosecutor]: And was [Petitioner] advised that no one could

prevent him from testifying if he so chose to do that?

[Trial counsel]: Absolutely.

[Prosecutor]: Okay. And you’ve already stated that you went over

the advantages and disadvantages and that it was, at that point, your

recommendation that he not testify?

[Trial counsel]: That - - That would have been what I did, yes.

[Prosecutor]: Okay. Would - - in this particular case, did you or - -

in addition to you, did anyone else from your office also go over those

things with [Petitioner]?

[Trial counsel]: I don’t know that any other lawyer did. My

investigators at some point may have done that, but they’re very, very

cautious about doing anything that appears to be practicing law or giving

legal advice. So I sort of doubt that they did. We might have - - been

together at some time doing it and - - and some of that subject matter

may have come up at some other time. I do not recall another lawyer

being involved, other than me, on that subject though.

[Prosecutor]: In speaking with [Petitioner] in preparation of that

decision, did you feel as if there was anything in his testimony or what

his testimony would be if he did testify that would have been in addition

to his statement that he gave to police?

[Trial counsel]: Well, I think there was certainly things that - - that

[Petitioner] was - - was eager to tell again. Many clients wish to take the

witness stand not realizing how dangerous that can be with the cross

examination they would face from the State.

But did he have anything that was of any significance that was - - he was

going to add? Not that I recall.

[Prosecutor]: Okay.

[Trial counsel]: Now, my view, obviously is a whole lot different

from what my client’s view is sometimes.

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[Prosecutor]: As far as –

[Trial counsel]: Just as - - Just as - - well, he thought the two

jailhouse snitches, the fact that they were in there together and could

concoct perjury was important. To me what was important was that one

or both of them were getting good plea deals and showed bias and

prejudice that I could argue to the jury.

Trial counsel testified that “there was no disagreement about [Petitioner] not testifying”

at the time that trial counsel and the State had the bench conference about Petitioner

testifying. The following exchange took place at the post-conviction hearing:

[Trial counsel]: . . . To my recollection, there was no - - because if there

had been any issue there, it’s not an issue. The client - - That’s one of

the things that - - and - - and probably the most important thing that a

client had control of and that is whether they testify or not in their own

behalf.

[Prosecutor]: And at the time of the bench conference, I believe

General Brown asked if we needed to have a jury out hearing and what

has been referred to as the Momon hearing.

[Trial counsel]: And, foolishly, because I thought there was no

controversy about this, I guess I thought that would hold off in the future

too. In hindsight, sure. There should have been the hearing because

then it would have all been on the record. But there was none and - - and

clearly, I think if [Petitioner], if I’m not stating this correctly, if

[Petitioner] was sitting there next to me and wanted to testify, the

disruption he would have made would have been so evident that

everybody would have known that he wanted to testify. As - - As it

should have been for him or any other client of mine or any other

defense lawyer that doesn’t get to testify when they want to.

On rebuttal, Petitioner testified that he did not tell the trial court that he wanted to

testify because trial counsel had told him “if I make any outburst in your Court, [. . . ], I

would be charged with contempt of court.” Petitioner said that he did not hear the bench

conference where trial counsel told the court that Petitioner was not going to testify.

Analysis

Initially, we will address Petitioner’s argument that the failure to conduct a

Momon hearing should result in automatic reversal. As pointed out by the State, both the

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Tennessee Supreme Court and this court have rejected this argument. In Momon v. State,

18 S.W.3d 152, 163-69 (Tenn. 1999), the supreme court held that trial counsel’s failure to

advise a client of his or her right to testify is subject to harmless error review. The court

also stated:

Only a very limited class of errors have been found to be “structural,”

and subject to automatic reversal. See Gideon *166 v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of

counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749

(1927) (adjudication by a biased judge); Vasquez v. Hillery, 474 U.S.

254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in

selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct.

944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller

v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of

public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124

L.Ed.2d 182 (1993) (defective reasonable doubt instruction); State v.

Muse, 967 S.W.2d 764, 768 (Tenn.1998) (denial of right to be present at

jury selection); State v. Benson, 973 S.W.2d 202, 207 (Tenn.1998)

(denial of right to impartial judge); State v. Bobo, 814 S.W.2d 353, 357

(Tenn.1991) (denial of right to trial by jury).

Id. at 165-66; see also Isaac Eugene Jones, III, No. E2020-02115-CCA-R3-PC, 2011 WL

3612156, at *8(Tenn. Crim. App. Aug. 17, 2011)(“We acknowledge the Petitioner’s

argument that harmless error review of this type of violation is not appropriate.

However, the law is well-settled in Tennessee that violations of this type should be

subjected to harmless error review.”).

Petitioner also seems to raise a stand-alone claim that the failure to conduct a

Momon hearing alone warrants post-conviction relief regardless of trial counsel’s

performance in this area. He asserts that his petition for post-conviction relief should be

granted “due to the trial court’s failure to actively demand that a Momon hearing be

conducted.” However, this issue should have been raised on direct appeal and is not

cognizable in a post-conviction proceeding. “A post-conviction petition is not a vehicle

to review errors of law as a substitute for direct appeal.” French v. State, 824 S.W.2d

161, 163 (Tenn. 1992); see T.C.A. § 40-30-106(g) (“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 . . .”); Mario Deangelo Thomas v. State, No. W2004-01704-CCA-R3-PC, 2005

WL 1669898, at *2 (Tenn. Crim. App. July 18, 2005)(Petitioner’s free-standing claim of

a Momon violation is waived); Dedrick D. Chism v. State, No. W2005-00427-CCA-R3-

PC, 2005 WL 3059433, at *7 n. 9)(Tenn Crim. App. Nov. 7, 2005)(“The free-standing

claim of a Momon violation has been waived because it was not presented to the trial

court nor raised on direct appeal.”) .

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As to Petitioner’s claim of ineffective assistance of counsel, he argues that trial

counsel failed to “demand a Momon hearing.” More specifically, Petitioner argues that if

he had been afforded a Momon hearing, he “would have had the opportunity to have

taken the stand, looked at the juror’s faces and into their eyes, and told them his side of

the story. He could have done so while the testimony of the State’s witnesses were fresh

in his mind and in that of the jurors.”

To obtain post-conviction relief, a petitioner must prove that his or her conviction

or sentence is void or voidable because of the abridgement of a right guaranteed by the

United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell v.

State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner bears the burden

of proving his or her allegations of fact by clear and convincing evidence. T.C.A. § 40-

30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is clear

and convincing when there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.

2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an

appeal of a court’s decision resolving a petition for post-conviction relief, the court’s

findings of fact “will not be disturbed unless the evidence contained in the record

preponderates against them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

A petitioner has a right to “reasonably effective” assistance of counsel under both

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

Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to

effective assistance of counsel is inherent in these provisions. Strickland v. Washington,

466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective

assistance of counsel, a petitioner must prove both deficient performance and prejudice to

the defense. Strickland, 466 U.S. at 687. Failure to satisfy either prong results in the

denial of relief. Id. at 697.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of

counsel falls within the range of reasonable professional assistance, see Strickland, 466

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial

counsel unless those choices were uninformed because of inadequate preparation. See

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is

satisfied by showing a reasonable probability, i.e., 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.

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A defendant has a constitutional right, under both federal and state law, to testify.

Momon, 18 S.W.3d at 157. Because the right to testify is a fundamental right, the right

must be personally waived by a defendant. Id. at 161. “To ensure that the defendant’s

right to testify has been personally waived by the defendant, the court in Momon adopted

procedural guidelines that call for defense counsel to request a jury-out hearing to

demonstrate that the defendant’s waiver of the right to testify has been knowingly,

intelligently, and voluntarily made.” State v. Posey, 99 S.W.3d 141, 148 (Tenn. Crim.

App. 2002) (citing Momon, 18 S.W.3d at 163).

“Defense counsel is not required to engage in any particular litany, but counsel

must show at a minimum that the defendant knows and understands that:

(1) the defendant has the right not to testify, and if the defendant does

not testify, then the jury (or court) may not draw any inferences from the

defendant’s failure to testify;

(2) the defendant has the right to testify and that if the defendant wishes

to exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the

decision whether or not to testify; that the defendant has been advised of

the advantages and disadvantages of testifying; and that the defendant

has voluntarily and personally waived the right to testify.”

Momon, 18 S.W.3d at 162. The court in Momon also 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 . . . . [M]ere 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.

Concerning this issue, the post-conviction court concluded:

As for the question regarding the hearing as set forth in State v. Momon,

[trial counsel’s] testimony was emphatic. [Trial counsel] was passive

versus active in many areas of his testimony, but was absolutely certain

that he absolutely advised the Defendant of his right to testify. The

Court finds that [trial counsel’s] recollection is correct. However, this

does not simply answer the Momon question. Testimony shows that the

[. . . ] Defendant was advised of his right to testify. However, because of

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the lack of hearing on the record, we move to the question of whether the

harmless error exception vitiates this case. The Court finds that the

Defendant’s testimony was important to his case. However, it had

already been given in the form of his recorded statement, so the

important aspects were already in the record. Therefore, the Court finds

that the testimony would have been cumulative. The Court finds that

there was not a lot of corroborating or contradicting the defendant on

material issues because the defendant did not testify; however, the Court

finds that there could have or would have been admissible contradicting

material to the defendant’s testimony had the defendant chosen to testify

that had not been admissible. The Court finds that the overall strength of

the State’s case may not have been as strong as the State thought it was,

but the verdict in a case is not representative of the strength of the case.

Therefore, the Court finds that the Defendant was advised of his

Constitutional right to testify and made a strategic decision not to testify

upon recommendation of counsel. The Court also finds that the State

proved beyond a reasonable doubt that the failure to have the hearing

required under Momon was harmless.

The record supports the post-conviction-court’s conclusions. Petitioner in this case

did not prove his allegations by clear and convincing evidence nor has he shown

prejudiced by any alleged deficiencies in trial counsel’s performance in this area. Trial

counsel testified that the one thing that he was “absolutely the most certain about” was

the issue of whether Petitioner was given the option to testify and that it did not happen

the way that Petitioner had testified to at the post-conviction hearing. Trial counsel noted

that he could not specifically recall what was said, but had Petitioner “wanted to testify

and made that clear to me, in any shape, form, or fashion, at that moment that that came

up, then he would have been allowed to testify, whether I thought it was a good idea or

not.” Trial counsel also said that it was always the client’s choice to testify. He testified

that he might have explained to Petitioner why it was a bad idea for him to testify and “all

reasons that I thought things could go bad and at that moment, [Petitioner] may have said,

okay, I’m not going to testify.”

Trial counsel testified that he and Petitioner would have gone over what the proof

would have been and the pros and cons of testifying. He said that he would have also

told Petitioner that the jury would be given an instruction that they could not draw any

inference from Petitioner’s failure to testify. Trial counsel testified that Petitioner was

“absolutely” advised that no one could prevent him from testifying if he chose to do so.

He said that there was “no disagreement about [Petitioner] not testifying” at the time that

trial counsel and the State had the bench conference about Petitioner testifying. Trial

counsel also specifically noted that if Petitioner “was sitting there next to me and wanted

to testify, the disruption he would have made would have been so evident that everybody

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would have known that he wanted to testify.” Therefore, the post-conviction court

properly concluded that trial counsel advised Petitioner of his right to testify.

Even if trial counsel was deficient concerning this issue, Petitioner has not

demonstrated any prejudice. As pointed out by the post-conviction court, Petitioner’s

testimony would have been cumulative to his statement to police that was introduced at

trial. When asked if there was anything of significance that Petitioner’s testimony would

have added to the statement, trial counsel replied, “Not that I recall.” Trial counsel also

testified that he was “pretty sure” that he tried to convince Petitioner that “where we were

in the trial was as good as I thought we could get, and it was all going to go downhill

once he took the witness stand because I do not think that he - - while he is extremely

talkative, he does not always answer questions head on.” Trial counsel also noted that a

“skilled examiner” would have done significant damage to Petitioner and that there

“might be other things out there that [the State] did not have to disclose to us that you

could then impeach him with that would undermine everything else that he had said,

which we thought had been positive; in the initial interviews, extremely positive.” Also,

as pointed out by the State, there was a risk of Petitioner’s prior juvenile record and other

illegal activities, which were noted by this court on direct appeal, being admitted as a

result of his testimony. See Victor Thompson, 2014 WL 605441, at *5. Additionally,

there was testimony at the post-conviction hearing that Petitioner had been involved in

multiple assaults while he was incarcerated which Petitioner risked being admitted at trial

if Petitioner had testified as he wanted to do concerning his non-violent nature.

Therefore, the post-conviction court properly determined that Petitioner had not

demonstrated any prejudice by trial counsel’s failure to request a Momon hearing. See

McCall v. State, No. W2015-01171-CCA-R3-PC, 2016 WL 689639, at *9 (Tenn. Crim.

App. Feb. 19, 2016)(no prejudice where “[t]he risk of substantial damage to the

Petitioner’s credibility was great”); Porter v. State, No. E2012-00481-CCA-R3-PC, 2013

WL 5299305, at *12-13 (Tenn. Crim. App. Sept. 18, 2013)(no prejudice where

Petitioner’s testimony may have strengthened the State’s case, and he would have been

subject to cross-examination about inconsistent statements); Jones v. State, No. E2010-

02115-CCA-R3-PC, 2011 WL 3612156, at *8-14 (Tenn. Crim. App. Aug. 17, 2011)(no

prejudice where petitioner’s testimony on a particular issue would not have been

beneficial to the defendant, testimony on another issue would have been cumulative,

petitioner would have faced a vigorous cross-examination, and the State’s case against

petitioner was strong). Petitioner is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing and the record as a whole, we affirm the judgments of the

post-conviction court.

______________________________________

THOMAS T. WOODALL, JUDGE

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