# Corey Gilbert v. State of Tennessee

> Court of Criminal Appeals of Tennessee · February 7, 2019

URL: https://www.frixlaw.com/law-library/cases/4365737

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 7, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Timothy L. Easter
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4365737

## How later opinions describe it (automated extraction)

- noting that the same standard for determining ineffective assistance of counsel applied in federal cases also applies in Tennessee

## Opinion text

02/07/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 17, 2019

COREY GILBERT v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County
No. 40901308 William R. Goodman III, Judge
___________________________________

No. M2017-02071-CCA-R3-PC
___________________________________

After his convictions for felony murder and aggravated robbery were upheld on direct
appeal, Petitioner, Corey Gilbert, sought post-conviction relief. In the petition for post-
conviction relief, Petitioner alleged ineffective assistance of trial counsel and appellate
counsel as well as prosecutorial misconduct. After a hearing, the post-conviction court
denied relief. We affirm the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Patrick McNally, Nashville, Tennessee (at post-conviction hearing), and Allan
Thompson, Clarksville, Tennessee (on appeal), for the appellant, Corey Demoris Gilbert.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior
Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Robert
Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

Petitioner was convicted of felony murder and attempted aggravated robbery for
his role in the shooting death of George Labront Miller in July of 2009 at the A&W
Motel. State v. Corey D. Gilbert, No. M2012-01231-CCA-R3-CD, 2013 WL 2643164, at
*1 (Tenn. Crim. App. June 11, 2013), perm. app. denied (Tenn. Oct. 16, 2013). The
proof at trial came primarily from one of the codefendants, Shawntay Evans, who
established that a total of four individuals, including Petitioner, “made a plan to rob” the
victim. Id. at *1-2. Petitioner’s statement to police was introduced during trial. Id. at *6.
In the statement, he admitted that there was a “plan to rob somebody” at the motel.
When they arrived at the motel room, Defendant “couldn’t tell what was happening”
because he remained directly outside the room and there was “a lot of noise and then a
gunshot.” Id. Petitioner denied shooting a gun but admitted that he possessed a .22
caliber handgun during the incident. Id. There was also proof at trial from an eyewitness
who was able to identify Petitioner and testimony regarding DNA evidence that linked
Petitioner to the crime. Id. at *1, *3. Petitioner is serving an effective life sentence as a
result of his convictions. Id. at *1. On direct appeal, this Court reviewed only the
sufficiency of the evidence, determining that the evidence was sufficient to support the
convictions. Id.

In October of 2014, Petitioner filed, with the assistance of counsel, a petition for
post-conviction relief in which he argued that he received ineffective assistance of trial
counsel and appellate counsel. The petition was based on multiple instances of allegedly
ineffective performance, including, inter alia, failure to adequately investigate the case,
failure to interview witnesses, failure to develop a theory of defense, failure to make
timely objections and motions, failure to call witnesses at trial, failure to properly cross-
examine witnesses, failure to negotiate a settlement, failure to preserve issues for appeal,
and failure to raise issues on appeal. Petitioner also alleged that the State failed to
disclose favorable evidence prior to trial. In December of 2016, a “Supplement To
Petition for Post-Conviction Relief” was filed that raised additional allegations of
ineffective assistance of counsel and argued that prosecutorial misconduct occurred
during closing argument at trial.

Post-conviction Hearing

At the post-conviction hearing, Petitioner explained that his mother hired a lawyer
to represent him at trial. This lawyer did not ultimately try the case because “he wanted
to run for judge and passed the case along to somebody else” in the law firm. Trial
counsel worked in this law firm and became Petitioner’s lawyer about six months prior to
trial. According to Petitioner, trial counsel came to see him “one time” while he was
incarcerated. Petitioner actually made bail prior to trial, so he was not incarcerated the
entire time leading up to the trial.

Petitioner claimed that trial counsel “never ask[ed] what happened” and that he
presented his story to trial counsel for the first time in a letter he wrote on October 15,
2010, about two months after trial counsel took over the case and about four months prior
to trial. In the letter, Petitioner explained the circumstances under which he gave his
statement to police, including police coercion and threats of taking his baby’s mother to
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jail. Petitioner claimed that police held him in a cold room, refused to give him a blanket,
and threatened him during his detention. Petitioner insisted that he was suffering from a
sinus infection at the time of his arrest and that he was in pain as a result of this infection.
He explained that he gave a false statement “[b]ecause [he] felt like they would leave
[him] alone, and [he] was scared that they really might take [the mother of his child] to
jail.”

Petitioner asked trial counsel to file a motion to suppress his statement to police
for several months after trial counsel took over on the case. Trial counsel eventually filed
a motion a few days prior to trial. Petitioner claimed that he first met with trial counsel in
person outside of jail “probably within two, three, four[ ]days, maybe” before the
suppression hearing. After a hearing, the trial court orally denied the motion to suppress.
Petitioner stated that trial counsel did not discuss the effect of the denial of the motion to
suppress or the eventual introduction of Petitioner’s statement on his defense.

Petitioner recalled trial counsel presenting him with an offer to settle the case and
thought that this occurred after the suppression hearing. From this meeting at trial
counsel’s office, Petitioner understood that the offer was “17[ ]years” and that the offer
“might be the best [trial counsel] can do.” At the time, Petitioner was twenty years old.
Petitioner identified a form he signed acknowledging that he and trial counsel discussed
the State’s offer. Petitioner admitted that he declined the State’s offer.

Petitioner testified that trial counsel did not discuss the elements of the offenses
for which he was charged and did not talk to him about a defense or whether he should
testify at trial. Petitioner recalled that he brought several witnesses to see trial counsel,
including Kassandra Santos,1 Shawntre2 Brown, and “[s]omebody else.” Petitioner
wanted these witnesses to testify at trial. According to Petitioner, these witnesses came
to trial but were not called to testify. In fact, Petitioner claimed that there was “not
really” any proof put on during defense.

Petitioner recalled trial counsel had a private investigator assigned to the case, but
Petitioner claimed that he did not know the name of the investigator and never met with
the investigator. Petitioner remembered that the investigator “interviewed [Petitioner’s]
mom, and then when he was backing out of the driveway he ran into the neighbor’s
mailbox, and that’s the last time we heard of him.”

1
Ms. Santos’s name is spelled with both a “C” and a “K” in the record. We are uncertain of the
correct spelling and have tried to remain consistent, spelling it with a “K.”
2
Ms. Brown’s name is spelled several different ways in the record. We are uncertain of the
correct spelling and have tried to remain consistent throughout this opinion.
-3-
Petitioner was offended at trial when counsel for the State “called [him] a
terrorist.” Petitioner was upset that trial counsel did not object. After Petitioner was
convicted, he learned that he and trial counsel had actually dated the same woman,
Brittany Vanwormer. Petitioner was dating Ms. Vanwormer at the time of his trial.
Petitioner explained that he “probably woulda chose somebody else” to be his lawyer had
he known this information. However, Petitioner admitted that there was no way trial
counsel would have known that Petitioner was dating Ms. Vanwormer because he
brought the mother of his children to meetings with trial counsel, not Ms. Vanwormer. In
fact, Petitioner acknowledged that Ms. Vanwormer was actually a codefendant in “the
Subway robbery.”3

Naomi Porter, the mother of Petitioner’s son and daughter, testified at the post-
conviction hearing. She attended the trial for “moral support” but did not appear as a
witness. During the trial, Ms. Porter saw one witness get off the witness stand and leave
the courtroom. Shortly thereafter, Ms. Porter “was walking out to use the rest room” and
saw the witness talking to another witness. She informed the trial judge about what she
saw and heard but did not recall whether the trial court called her as a witness to testify
about what she heard the witnesses say in the hallway. Ms. Porter further testified that
she saw trial counsel talking to Ms. Vanwormer in the hallway during Petitioner’s
sentencing hearing. Ms. Porter confronted trial counsel and Ms. Vanwormer at trial but
explained that she and Petitioner were not dating at the time of trial. She explained that
she and Petitioner broke up for a while for “personal issues.” When the couple was
separated, Petitioner dated Ms. Vanwormer.

Terri Tomlinson, Petitioner’s mother, testified at the post-conviction hearing. She
confirmed that she initially hired someone else to represent Petitioner but that this lawyer
ended up running for judge. The lawyer recommended trial counsel, another lawyer at
the law firm. Ms. Tomlinson met with trial counsel on “[q]uite a few” occasions to
discuss Petitioner’s defense. She thought Petitioner was eighteen years old at the time he
was arrested and around twenty when the case went to trial. She recalled that there were
some concerns about Petitioner’s mental state which led to evaluations being performed
on Petitioner. Ms. Tomlinson claimed that trial counsel did not prepare a defense but
“just kept trying to get [Petitioner] to plead.” Ms. Tomlinson became aware of witnesses,
including Ms. Santos, Ms. Brown, and several neighbors at the A&W Motel who would
have helped Petitioner’s defense. However, trial counsel “investigated nothing,” even
after Ms. Tomlinson “found the girl that was in the car with [Petitioner].” Ms. Tomlinson
had some of these witnesses come to trial, but trial counsel said that he was not going to
use them at trial.

3
From what we can glean, the “Subway robbery” is a different case involving both Petitioner and
Ms. Vanwormer.
-4-
Trial counsel testified that he “inherited” Petitioner’s case when a lawyer in his
firm was elected as a judge. He did not recall if he met with Petitioner prior to taking
over his case but acknowledged that he filed a motion to substitute counsel on which trial
counsel “signed [Peititoner’s] name by permission.” At the time he took over Petitioner’s
case, he had participated in “[z]ero” criminal trials, jury trials, or murder cases. Trial
counsel did not seek assistance from any of the other lawyers at the firm because there
was not another criminal defense attorney at the firm. Trial counsel filed a motion to
declare Petitioner indigent and for appointment of a private investigator. The trial court
appointed Jeff Fowler. Trial counsel was under the impression that Investigator Fowler
talked to a “number” of witnesses, but he never received any reports from the
investigator. In fact, trial counsel testified that the firm was “dissatisfied with
[Investigator Fowler’s] performance” and had “not used his services anytime thereafter.”

Trial counsel met with Petitioner five times at jail and eight times in person prior
to trial. According to his file, he had some difficulty getting Petitioner to meet with him
once he was out on bail, but trial counsel “thought [they] had a decent relationship.”
Trial counsel recalled that he filed a motion to suppress prior to trial and that the trial
court held a hearing on the motion. Petitioner testified at the hearing, and the trial court
denied the motion. Trial counsel explained that he waited to file the motion until
approximately eleven days before trial because there was the possibility of a plea
agreement. When Petitioner failed to accept the State’s settlement offer of twenty years
at 85%, he filed the motion to suppress.

Trial counsel acknowledged that the codefendants, both juveniles, accepted plea
agreements in exchange for their testimony. He explained that they received a “slap on
the wrist” for their involvement in the crime. After the trial court denied the motion to
suppress, trial counsel explained that the “defense was the lack of evidence that the State
would have that [Petitioner] actually participated in the robbery” and that one of the
codefendants actually committed the robbery. He explained, “candidly, . . . it was a
challenge given the felony murder [charge].”

Trial counsel acknowledged that he did not seek funds for a false confession
expert or a DNA expert. After reviewing a portion of the trial transcript, trial counsel
recalled that the State attempted to introduce a DNA report that “could not exclude
[Petitioner] as a minor contributor” to DNA found on a bandana that was stuffed in a
macaroni and cheese box in the trash can inside Petitioner’s apartment. Trial counsel
explained that he objected to the introduction of the report because it had not been
disclosed by the State. The trial court sustained the objection. Trial counsel admitted
that he failed to ask the trial court to strike the testimony of the witness and failed to ask
for a mistrial. He agreed that there was no strategic reason to ask to strike the testimony
-5-
since the trial court was already striking the report from evidence and admonished the
jury on what to do with the evidence.

Trial counsel did not recall an instance during trial when there were allegations of
witnesses talking in the hallway. However, when he reviewed the transcript, he
acknowledged that there was something that happened at trial with regard to witnesses
talking in the hallway. He initially could not recall if he filed a “skeletal motion for new
trial to toll the statutory timeline” but acknowledged that the record reflected that he filed
a motion for new trial prior to sentencing. He acknowledged that he did not include the
witness issue in the motion for new trial but explained that he merely filed a motion for
new trial in order to toll the statute of limitations.

Trial counsel acknowledged that he represented Petitioner through the sentencing
hearing, at which he made an oral motion to withdraw. Trial counsel explained on cross-
examination that he became aware at the sentencing hearing that Petitioner may have
been dissatisfied with the representation. He admitted that the motion did not include any
complaints with regard to the denial of the suppression motion and acknowledged that
there was no order denying the motion to suppress in the technical record. In his opinion,
this “prejudiced [Petitioner] by not having that order [denying the motion to suppress]
brought to the attention of appellate counsel so as to bring it up in the motion for new
trial and appeal.” Trial counsel thought that the denial of the motion to suppress would
be brought up on appeal.

Trial counsel recalled going on a “few dates” with Ms. Vanwormer in 2007 or the
beginning of 2008. He did not characterize their relationship as “serious” and explained
that he met his wife in May of 2008. Trial counsel saw Ms. Vanwormer in 2009 because
she was at the law firm after she had been charged with a crime. Trial counsel never saw
Petitioner and Ms. Vanwormer together but recalled that they may have been charged as
codefendants in a case.

Appellate counsel was appointed to represent Petitioner after the sentencing
hearing. Appellate counsel had worked on approximately 800 appeals, “a lot of those
criminal.” A preliminary motion for new trial had already been filed by trial counsel.
Appellate counsel filed “at least one, if not two” more motions for new trial. He called
the initial motion for new trial he filed was a “marker motion” until the transcripts were
filed and he was able to review the record. When he finally received and reviewed the
record, he noticed that “there was no evidence that there had ever been a hearing” on the
motion to suppress. He explained that “[i]f there had been an order or something like that
[on the motion to suppress, he would] have probably [gone] in a different direction” with
the motion for new trial. For this reason, he determined “sufficiency [of the evidence]
really was the only horse to ride” on appeal, so it was the only thing that he included in
-6-
the motion for new trial. Appellate counsel recalled that “the State had a very strong
case” with an eyewitness and fingerprints but acknowledged that if the motion to
suppress was denied and the case proceeded to trial, it was “probably” an issue he would
raise on appeal. Appellate counsel acknowledged that he abandoned the issue with
regard to corroboration of statements made by codefendants on appeal because it was
without merit.

Brittany Nicole Myrick, formerly Brittany Vanwormer, testified at the hearing.
She recalled that she dated Petitioner but could not recall an exact date. She thought that
it was before 2011 when she was charged in the “Subway robbery.” Ms. Myrick also
admitted that she went on several dates or “hung out” with trial counsel when she was
seventeen, in approximately 2007. Ms. Myrick never informed trial counsel that she was
dating Petitioner.

After the hearing, the post-conviction court denied relief. The post-conviction
court noted that neither Shawntre Brown nor Kassandra Santos testified at the post-
conviction hearing and there was “no proof in the record to substantiate that either of
these individuals would or could testify.” The post-conviction court determined that,
without Ms. Brown’s or Ms. Santos’s testimony, Petitioner could not prove that trial
counsel was deficient. The post-conviction court found that trial counsel met with
Petitioner on a number of occasions prior to trial and secured a settlement offer from the
State, which was communicated to Petitioner as evidenced by his signature on an
acknowledgement form. As a result, the post-conviction court determined that trial
counsel was not deficient. Further, the post-conviction court reviewed the trial record
and determined that trial counsel did not fail in his performance at trial by failing to
object to certain questions posed to or statements made by witnesses because the
evidence would not have been excluded at trial. With regard to the allegation that the
State withheld evidence, the post-conviction court determined that there was no evidence
presented at the hearing or in the petition to support this allegation. Finally, the post-
conviction court determined that appellate counsel, who was highly qualified, was not
ineffective and that Petitioner failed to establish the first prong of Strickland.

Petitioner filed a timely notice of appeal. He now challenges the post-conviction
court’s denial of post-conviction relief.

Analysis

On appeal, Petitioner argues that the post-conviction court improperly denied
relief. Specifically, Petitioner argues that he received ineffective assistance of counsel
because he was “prejudiced multiple ways relating to the late filing of the motion to
suppress” and that he did not understand or have time to process the settlement offer after
-7-
the motion to suppress was denied in such close proximity to trial. Petitioner also
complains about the lack of a trial court order denying the motion to suppress and the fact
that the suppression issue was not included in a motion for new trial or on appeal.
Additionally, Petitioner complains that mistakes made during trial, including trial
counsel’s failure to exclude the testimony of agent Brad Everett about a DNA report and
trial counsel’s failure to move to exclude the testimony of prosecution witnesses who
were observed talking to each other in the hallway, led to his inability to appeal the
issues. He further argues that trial counsel’s deficiencies led to Petitioner’s inability to
pursue certain issues on appeal.

Post-Conviction Standard of Review

Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, this Court will
review the post-conviction court’s findings of fact “under a de novo standard,
accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing
Tenn. R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Id. at
458.

Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
-8-
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed, a court need
not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697). Whether a petitioner has been denied
the effective assistance of counsel presents a mixed question of law and fact. State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), 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. This Court will not use hindsight to second-guess a reasonable trial
strategy, even if a different procedure or strategy might have produced a different result.
See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Williams v. State,
599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this deference to the
tactical decisions of trial counsel is dependent upon a showing that the decisions were
made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694). “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. (quoting Strickland, 466 U.S. at 691).

A. Motion to Suppress

The State argues that Petitioner waives any issue with regard to whether trial
counsel was ineffective for filing the motion to suppress “only 11 days before trial”
because he raises it “for the first time on appeal.” We have reviewed the petition and
amended petition for post-conviction relief and agree.4 However, Petitioner’s complaint

4
In our review of the record, the only issues raised by Petitioner with regard to the motion to
suppress appear in the first petition for post-conviction relief. They include: (1) trial counsel failed to
-9-
on appeal seems to be tied more closely to how the timing of the filing of the motion to
suppress impacted his understanding of the State’s settlement offer and/or the inability of
trial counsel to secure a favorable offer − an allegation of ineffective assistance contained
within his petition. With regard to this allegation, the post-conviction court determined
that trial counsel met with Petitioner on a number of occasions and that there was no
proof in the record that trial counsel failed to negotiate a settlement. In fact, the post-
conviction court noted that trial counsel did receive a settlement offer and that the record
included an acknowledgement form that was signed by Petitioner with regard to the
settlement offer. The record does not preponderate against the post-conviction court’s
findings of fact on this issue. Moreover, Petitioner has failed to prove prejudice by clear
and convincing evidence – he never testified that, but for counsel’s alleged deficiency in
filing the motion to suppress so close to trial, he would have accepted the plea agreement.

Petitioner’s brief also goes on to argue that both trial counsel and appellate
counsel were ineffective because they failed to challenge the denial of the motion to
suppress in the motion for new trial and on appeal. Of course, a defendant has a right to
effective representation both at trial and on direct appeal. Campbell v. State, 904 S.W.2d
594, 596 (Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985)). The test for
ineffective assistance of counsel is the same for both trial and appellate counsel, under
the Strickland standard set forth above. Id. That is, a petitioner alleging ineffective
assistance of appellate counsel must prove both that appellate counsel was deficient in
failing to adequately pursue or preserve a particular issue on appeal and that, absent
counsel’s deficient performance, there was a reasonable probability that the issue “would
have affected the result of the appeal.” Id. at 597; see also Carpenter v. State, 126
S.W.3d 879, 886-88 (Tenn. 2004).

Regarding claims of ineffective assistance by appellate counsel, our supreme court
has provided:

Appellate counsel are not constitutionally required to raise every
conceivable issue on appeal. Indeed, experienced advocates have long
emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most a few key issues.

The determination of which issues to raise on appeal is generally
within appellate counsel’s sound discretion. Therefore, appellate counsel’s

identify as a ground for new trial that the trial court erred in admitting [Petitioner’s] out of court
statements to law enforcement officials; and (2) appellate counsel failed to argue in the motion for new
trial or on appeal that the trial court erred in admitting the out of court statements. The “Supplement to
Petition for Post-Conviction Relief” does not raise any issues with regard to the motion to suppress.
- 10 -
professional judgment with regard to which issues will best serve the
appellant on appeal should be given considerable deference.

Carpenter, 126 S.W.3d at 887 (internal quotation marks and citations omitted).

When a petitioner alleges that counsel was deficient for failing to raise an issue on
direct appeal, the reviewing court must determine the merits of that issue. Id.
“Obviously, if an issue has no merit or is weak, then appellate counsel’s performance will
not be deficient if counsel fails to raise it.” Id. Further, when an omitted issue is without
merit, the petitioner suffers no prejudice from appellate counsel’s failure to raise the issue
on appeal and cannot prevail on an ineffective assistance of counsel claim. Id. at 887-88.
Appellate counsel’s professional judgment is entitled to considerable deference with
regard to which issues best served the petitioner on appeal. Id. at 887.

Petitioner takes particular issue with the fact that there was no written order filed
by the trial court denying the motion to suppress. The record before this Court includes
the record from the direct appeal that was submitted as an exhibit at the post-conviction
hearing. In February the 17, 2011 transcript of the hearing on the motion to suppress, the
trial court clearly stated he did “not find that there are any factors that would even
suggest the suppression of this statement. So, this statement will be admissible and may
be presented to the jury.” In other words, the trial court clearly denied the motion to
suppress. Moreover, Rule 12(e) of the Tennessee Rules of Criminal Procedure does not
require a trial court to enter a written order denying a pretrial motion. The rule mandates
that the trial court “shall state its essential findings on the record” in cases were “factual
issues are involved in deciding a motion.” Tenn. R. Crim. P. 12(e). The trial court in this
case made a ruling on the motion on the record at the hearing.

In reviewing a trial court’s ruling on a motion to suppress, this Court will uphold
the trial court’s findings of fact “unless the evidence preponderates otherwise.” State v.
Bell, 429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556
(Tenn. 2013)). Witness credibility, the weight and value of the proof, and the resolution
of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at
529. “The party prevailing in the trial court is entitled to the strongest legitimate view of
the evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The trial court’s
resolution of questions of law and application of the law to the facts are reviewed de novo
with no presumption of correctness. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008).
On appeal, the losing party bears the burden of demonstrating that a trial court’s decision
concerning a motion to suppress was erroneous. State v. Harts, 7 S.W.3d 78, 84 (Tenn.
Crim. App. 1999). “[I]n evaluating the correctness of a trial court’s ruling on a pretrial
- 11 -
motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

At the hearing on the motion to suppress, Petitioner and Ms. Porter testified that
Petitioner was sick at the time of the interview. Petitioner claimed that he was
threatened, that the room in which he was held was cold, and that officers denied him a
blanket. However, Detective Tim Finley’s testimony was contradictory to the testimony
of Petitioner. The trial court accredited the detective’s recollection of the events and
denied the motion.

The denial of the motion for new trial was raised in the petition for post-conviction
relief and discussed at the post-conviction hearing. However, the post-conviction court
failed to make any specific findings with regard to this issue in its order dismissing the
petition. While the post-conviction court did not specifically discuss the motion to
suppress in its order, the post-conviction court concluded that Petitioner was not
prejudiced by trial counsel’s or appellate counsel’s representation. Moreover, a post-
conviction court’s failure to set forth findings with regard to each and every ground
presented in a post-conviction petition does not necessitate reversal. See Michael Davis
v. State, No. W2017-01592-CCA-R3-PC, 2018 WL 3599959, at *5 (Tenn. Crim. App.
July 26, 2018), no perm. app. filed. Petitioner did not establish that any challenge to the
denial of the motion to suppress would have been successful if presented on appeal, and
our review of this issue indicates that Petitioner would not have been successful had the
issue been raised on appeal because the evidence does not preponderate against the trial
court’s findings of fact. Thus, Petitioner did not establish that he was prejudiced by the
failure of trial counsel and/or appellate counsel to raise this issue on appeal and Petitioner
is not entitled to relief on this ground.

B. Trial testimony of Agent Brad Everett

Petitioner argues that trial counsel was ineffective for failing to move to exclude
all the testimony of Agent Brad Everett after the trial court excluded a DNA report that
the State failed to turn over to the defense in discovery. Petitioner concedes that trial
counsel properly objected to the admission of the report into evidence and that the trial
court sustained the objection. However, Petitioner complains that the substance of the
report was before the jury even though the report itself was excluded from evidence. To
support his argument, Petitioner notes that this Court relied on the introduction of DNA
evidence against Petitioner at trial to support a finding that the evidence was sufficient.
The State asserts that Petitioner failed to demonstrate that trial counsel was deficient.

As discussed above, at trial, during the testimony of Agent Everett, the State
attempted to introduce a DNA report that had not been disclosed to the defense. Trial
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counsel objected, the report itself was not admitted into evidence, and the parties were
precluded from referencing the contents of the report in closing argument. Agent Everett
was, however, permitted to testify that he conducted DNA analysis of the substance
found on a bandana recovered from Petitioner’s apartment and that tests indicated the
presence of blood on the bandana and on the gun that was recovered near a restaurant.
Agent Everett was also allowed to testify that DNA from the bandana was a mixture of at
least three individuals, including the victim, and that Petitioner and codefendant Hodges
could not be excluded as minor contributors. Trial counsel did not ask to strike all of the
testimony of Agent Everett. At the post-conviction hearing, trial counsel could not recall
what strategy guided his decision but recalled discussing the issue with Petitioner at trial
and indicated it could have been a strategic decision. Petitioner has not established that
he was prejudiced either by trial counsel’s failure to move to strike the testimony or by
appellate counsel’s failure to raise this issue on appeal. Thus, Petitioner is not entitled to
relief on this ground.

C. Witnesses Violating Rule of Sequestration

Lastly, in a three-sentence paragraph with no citation to authority, Petitioner
complains that “prosecution witnesses spoke in the hallway outside the courtroom,
against the sequestration rules/order of the court.” Ordinarily, “[i]ssues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this [C]ourt.” Tenn. Ct. Crim. App. R. 10(b). Despite the waiver,
we note that at trial, the matter was brought to the attention of the trial court. The trial
court had a jury-out hearing at which both women told the trial court the substance of
their conversation and the trial court denied Petitioner’s motion to exclude the testimony
of one of the women, Ms. Evans. At the post-conviction hearing, Petitioner brought Ms.
Porter to testify about the things she overheard the witnesses discussing in violation of
the rule of sequestration. Ms. Porter was unable to offer any testimony that these State
witnesses had any inappropriate discussions. Thus, Petitioner failed to prove this
allegation with clear and convincing evidence. Petitioner is not entitled to relief on this
issue.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

____________________________________
TIMOTHY L. EASTER, JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4365737. Public record. Not legal advice.