Ramone Lawson v. State of Tennessee

03/26/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 6, 2018

RAMONE LAWSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 12-00518 J. Robert Carter, Jr., Judge

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No. W2017-00929-CCA-R3-PC

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Petitioner, Ramone Lawson, appeals from the dismissal of his petition for post-conviction

relief following an evidentiary hearing. Petitioner asserts that he was denied effective

assistance of counsel which led to his convictions of one count of first degree murder,

two counts of attempted first degree murder, and two counts of employing a firearm

during the commission of a dangerous felony. After reviewing 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 Criminal Court Affirmed

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

OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Carlissa Shaw, Memphis, Tennessee, for the appellant, Ramone Lawson.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Leslie Fouche,

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

OPINION

A panel of this court summarized the proof presented at trial in the opinion

affirming the convictions on direct appeal:

This case arises from a June 30, 2011 shooting spree in Fox Hollow

Apartments in Memphis. From these events, a Shelby County grand jury

charged the Defendant with first degree premeditated murder of Martezz

Evans, attempted first degree murder of Tristan Mathis, attempted first

degree murder of Aaron Wiggins, and two counts of employing a firearm

during the commission of a dangerous felony. See Tenn. Code Ann. §§

39-12-101, -13-202, -17-1324(b). The Defendant proceeded to trial.

The proof at trial revealed the following facts. On June 30, 2011, the

three victims went to Fox Hollow Apartments to visit some girls. While

waiting for the females to finish dressing, the group decided to go

outside and sit on a green electrical box. Destiny Wright, who lived in

the apartment complex, walked by and saw the men sitting there.

Because she was unfamiliar with the men, she asked them who they were

and where they lived. The men “brush[ed] her off.” At that time, the

group saw an individual named “Rico” walking in their direction.

Soon thereafter, the Defendant came from behind a wall. No words were

exchanged between the men, other than the Defendant saying to the

victims, “yea [racial slur] now what’s up?”, before he started shooting

with a forty-caliber [semi-]automatic pistol. An individual named

“Skinny G” was also present on the scene. When the shooting started,

all three of the victims jumped up off the electrical box. Mathis and

Wiggins were able to run away from the Defendant. However, Evans,

who was closest to the Defendant when the Defendant emerged from

behind the wall, “threw his hands up” in the air. Evans was then shot

three times, once in the left eye, once in the left forearm, and once in the

back of neck, and he fell to the ground, where he died from his injuries.

The Defendant emptied his weapon, running out of bullets before he

ceased firing on the group. Six forty-caliber shell casings, one bullet

fragment, and one projectile were found on the scene. Although Mathis

was able to run away, he suffered a gunshot wound to the foot; Wiggins

stated that his right forearm was grazed by a bullet.

Ms. Wright provided a description of the shooter that was similar to the

Defendant’s appearance. Wiggins and Mathis also identified the

Defendant as the lone shooter. After the Defendant was developed as a

suspect and brought in for questioning by the police, he admitted to

being present at the scene but denied any involvement. While in

custody, the Defendant placed a phone call from the jail. During this

call, the Defendant can be heard saying to the other individual on the

line, “what they got me for is true.” When the Defendant was questioned

the following day for a second time, he again denied any involvement in

the shooting.

The State developed proof of a prior altercation which occurred some

days earlier at a local Citgo gas station. Evans, Mathis, and Wiggins

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were at that gas station, when Evans and Skinny G got into a verbal

disagreement. Rico then walked up and said, “What’s up, Mafia?” On

this day, Evans and Mathis ended up in a physical confrontation with

Skinny G and Rico. According to Mathis, he and Evans “got the best of”

Rico and Skinny G during the fight. Moreover, there was also proof at

trial that Rico and Evans were members of rival gangs.

State v. Ramone Lawson, No. 2013-00324-CCA-R3-CD, 2014 WL 1153268, at *1-2

(Tenn. Crim. App. Mar. 19, 2014), perm. app. denied (Tenn. Aug. 26, 2014).

In his brief, Petitioner argues four examples of ineffective assistance of counsel.

Three of these can be dispensed with promptly, with no need to summarize any testimony

which Petitioner cites to in the record. Petitioner’s entire argument on these three alleged

examples of ineffective assistance of counsel is set forth exactly as presented in his brief:

Appellant testified at the Post Conviction hearing that trial counsel

failed to seek suppression of any statement he made prior to the signing

of the affidavit in his case. Post-Conviction Tr. Vol. 2, 40, 17-10, Feb.

16, 2017. The failure to file a suppression motion is a violation of

Appellant’s constitutional rights.

Appellant testified at the Post Conviction hearing that trial counsel

failed to seek suppression of any statement made by Aaron Wiggins.

Post-Conviction Tr. Vol. 2, 40, 13-17, Feb. 16, 2017. The failure to file

a suppression motion is a violation of Appellant’s constitutional rights.

Appellant testified at the Post-Conviction hearing that trial counsel

failed to adequately advise him that if he decided not to testify that the

State still would be able to use a jail recording against him, and if he had

this information he would have testified. Post-Conviction Tr. Vol. 2, 42,

6-15, Feb. 16, 2017. The failure to advise Appellant is a violation of

Appellant’s constitutional rights.

All three of these issues are waived for appeal. As to suppression of statements by

Petitioner and Mr. Wiggins, Petitioner states no legal theory or citations to legal authority

which would support his argument. Also, the failure to cite any legal authority in all of

the arguments is sufficient in itself to justify waiver on appeal of all three issues. See

Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this

court.”). The quoted arguments are more like a statement of issues than argument on

appeal. For the reasons stated, they are waived.

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In the sole issue that is sufficiently argued to allow review, Petitioner asserts that

trial counsel rendered ineffective assistance by failing to properly object when

victim/witness Aaron Wiggins was declared “unavailable” by the trial court. When Mr.

Wiggins was called as a witness at trial, he refused to testify despite being ordered by the

trial court to do so. Mr. Wiggins asserted his right under the Fifth Amendment to the

United States Constitution not to be forced to incriminate himself.

Evidence at Post-Conviction Hearing

Petitioner had two attorneys representing him at trial, who we will identify as

“lead counsel” and “second counsel.” As the designation implies, lead counsel

represented Petitioner for a longer period of time, did most of the trial preparation, and

apparently handled most of the work during the trial. Lead counsel passed away prior to

the post-conviction hearing. Second counsel testified at the post-conviction hearing.

Second counsel testified that Aaron Wiggins was called at trial to testify as the

prosecution’s first witness. Mr. Wiggins had previously testified at Petitioner’s

preliminary hearing in General Sessions Court. However, at trial Mr. Wiggins did not

testify because he asserted his right not to testify pursuant to the Fifth Amendment to the

United States Constitution. A separate attorney was representing Mr. Wiggins. Mr.

Wiggins’ attorney met privately with Mr. Wiggins and then confirmed to the trial court

that Mr. Wiggins wanted to exercise his Fifth Amendment rights. A recording of Mr.

Wiggins’ testimony at the preliminary hearing was played for the trial jury pursuant to

Tennessee Rule of Evidence 804(b)(1).

Second counsel testified at the post-conviction hearing that this development

prevented Petitioner’s trial counsels from impeaching Mr. Wiggins with a prior statement

inconsistent with his expected trial testimony. The statement was given to a police

officer at the hospital not long after the incident of the shooting. The out of court

statement would have helped Petitioner’s defense, assuming that Mr. Wiggins’ trial

testimony was the same as his preliminary hearing testimony. Second counsel recalled

that he argued at trial that Mr. Wiggins’ purported reason justifying his right to assert his

Fifth Amendment rights must be closely examined.

Petitioner’s trial counsels had the report from a police officer who spoke with Mr.

Wiggins at the hospital on the evening of the incident. Second counsel testified that this

report indicated that Mr. Wiggins basically said that he (Mr. Wiggins) did not see who

had committed the shooting. At the preliminary hearing, Mr. Wiggins identified

Petitioner as the shooter. Once Mr. Wiggins became legally unavailable as a witness by

exercising his Fifth Amendment rights, this avenue for impeachment of his testimony

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was gone. To complicate matters further, the General Sessions Judge at the preliminary

hearing sua sponte interrupted Petitioner’s counsel’s cross-examination to require

counsel to cease a line of questioning because it was only “discovery.”

A transcript of the preliminary hearing was submitted by Petitioner and introduced

as an exhibit at the post-conviction hearing. During cross-examination at the preliminary

hearing, Mr. Wiggins acknowledged that he had spoken with a police officer at the

hospital. However, he testified that he did not provide names or “street names” of the

shooter and the people with the shooter, but just described them as “the black dude, the

red dude, and the brown dude.” He later admitted that he told the police officer that the

men were members of a gang and that one of them was named Atrey Hover. However,

Mr. Wiggins identified Petitioner as the shooter at the preliminary hearing.

The relevant portion of the trial transcript pertaining to Mr. Wiggins’ being

declared unavailable as a witness was made an exhibit at the post-conviction hearing.

The transcript reflects that neither lead counsel nor second counsel objected to the trial

court’s ruling based upon the limitations of cross-examination imposed by the General

Sessions Court Judge. The concern expressed by second counsel upon Mr. Wiggins’

being declared unavailable as a witness at trial was whether enough had been shown to

conclude he was actually “unavailable” as a witness.

The Assistant District Public Defender (General Sessions counsel) who

represented Petitioner at his preliminary hearing also testified at the post-conviction

hearing. She testified that during her cross-examination of Aaron Wiggins, the judge

stopped her from asking Mr. Wiggins about the circumstances of a statement he made to

police. General Sessions counsel said that she had further questions for Mr. Wiggins

which she was prohibited from asking him. She explained that it was her belief that Mr.

Wiggins did not know Petitioner’s last name. She wanted to hear any description of the

shooter that Mr. Wiggins gave to the police and how he knew the shooter was Petitioner.

As to the issue preserved for appeal, Petitioner testified at the post-conviction

hearing that Mr. Wiggins “was technically an available witness, he basically just refused

to testify,” thus Petitioner felt Mr. Wiggins’ “statement,” apparently a reference to the

preliminary hearing testimony, should have been suppressed.

In its order denying relief, the post-conviction court made a factual finding that

Mr. Wiggins refused to testify based upon a “Fifth Amendment rationale” and that Mr.

Wiggins was represented by an attorney when he asserted the right not to testify. The

post-conviction court also made the following factual findings:

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A hearing [at trial] was conducted and the court allowed the

previous testimony (preliminary hearing) [of Mr. Wiggins] to be played

for the jury. Petitioner’s trial counsel objected, but after a hearing, the

court ruled the “prior testimony” to be admissible.

The post-conviction court made the legal conclusion that Petitioner’s trial counsels

did not render deficient performance in their representation of Petitioner.

Analysis

Post-conviction relief is only warranted when a petitioner establishes that his or

her conviction or sentence is void or voidable because of an abridgment of a

constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual

issues, the appellate court will not re-weigh or re-evaluate the evidence;

moreover, factual questions involving the credibility of witnesses or the

weight of their testimony are matters for the trial court to resolve. The

appellate court’s review of a legal issue, or of a mixed question of law or

fact such as a claim of ineffective assistance of counsel, is de novo with

no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation

marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of

proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.

2009). Evidence is considered clear and convincing when there is no serious or

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);

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

In order to prevail on an ineffective assistance of counsel claim, the petitioner

must establish that (1) his lawyer’s performance was deficient and (2) the deficient

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975)). “[A] failure to prove either deficiency or prejudice provides a sufficient basis to

deny relief on the ineffective assistance claim. Indeed, a court need not address the

components in any particular order or even address both if the [petitioner] makes an

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insufficient showing of one component.” Goad v. State, 938 S.W.3d 363, 370 (Tenn.

1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell “below an objective standard

of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,

466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated

once the petitioner establishes “‘a reasonable probability that, but for counsel’s

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

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).

We note that “[i]n evaluating an attorney’s performance, a reviewing court must

be highly deferential and should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d

453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular

set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate decisions regarding

how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,

we note that this “‘deference to matters of strategy and tactical choices applies only if the

choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d

508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

We will only address the narrow issue presented by Petitioner in his brief: that trial

counsel rendered ineffective assistance of counsel by failing to properly object to the

State’s request that Mr. Wiggins was “unavailable,” thereby allowing Mr. Wiggins’ prior

testimony at the preliminary hearing to become admissible evidence as an exception to

the hearsay rule, pursuant to Tennessee Rule of Evidence 804(a)(1) and (b)(1). Petitioner

argues that “[t]he failure to object to the witness[] being declared unavailable resulted in

the denial of critical, exculpatory evidence which gravely prejudiced [Petitioner].”

Presumably, the “exculpatory evidence” that Petitioner refers to is the police report that

second counsel described in his testimony in the post-conviction hearing. Specifically,

second counsel testified:

A. Okay. There was also there was a witness, a police officer, that

interviewed Mr. Wiggins at The Med the night of the incident. And he

gave a different version basically saying he didn’t, I’m paraphrasing

what I remember, he gave a statement basically making it sound like

he didn’t see who did it. All right.

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And where that became important is we wanted to be able to impeach

Mr. Wiggins with that but because he took the Fifth we couldn’t. And

so I think there were discussions in here, and it may be later after they

played his testimony, about whether we could ask that question. I

believe Mr. Campbell objected to us bringing in another party to say

what Mr. Wiggins had said. And then that’s when our research came

up about did he get a full preliminary hearing.

And of my recollection of it was that, that like so often happens, when

a defense attorney asks questions of a witness the State immediately

objects and says, your Honor, that’s discovery. And basically to that

effect trying to limit it just to certain things. And the problem is the

attorney that’s doing the cross-examination doesn’t have discovery or

access to those prior statements. And so then we wanted to be able to

get into that. So I think we had a conversation about that as well.

Importantly for our analysis is the fact that Petitioner did not present at the post-

conviction hearing the referenced statement of Mr. Wiggins, nor the testimony of the

police officer who took the statement, nor any legal argument with any citation of

authority to the post-conviction court as to why the preliminary hearing testimony should

be excluded even if Mr. Wiggins was an “unavailable witness.”

Tennessee Rule of Evidence 804(a)(2) and (b)(1) provide as follows:

Rule 804. Hearsay exceptions; declarant unavailable. – (a)

Definition of Unavailability. – “Unavailability of a witness” includes

situations in which the declarant –

...

(2) Persists in refusing to testify concerning the subject matter of the

declarant’s statement despite an order of the court to do so;

....

(b) Hearsay Exceptions. – The following are not excluded by the

hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. – Testimony given as a witness at another

hearing of the same or different proceeding or in a deposition taken in

compliance with law in the course of the same or another proceeding, if

the party against whom the testimony is now offered had both an

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opportunity and a similar motive to develop the testimony by direct,

cross, or redirect examination.

(Italicized emphasis added).

Petitioner did not specifically argue at the post-conviction hearing or on appeal

that his trial counsels rendered deficient performance by failing to object to the

admissibility of the preliminary hearing testimony of Mr. Wiggins even if he satisfied the

criteria to be declared an “unavailable witness” under Tennessee Rule of Evidence

804(a)(2). However, even if trial counsels rendered deficient representation by failing to

object to the admissibility of the preliminary hearing testimony because the General

Sessions Judge sua sponte prohibited General Sessions counsel from pursuing a line of

cross-examination, Petitioner failed to prove prejudice in order to establish ineffective

assistance of counsel. Theoretically, trial counsels could have argued that the preliminary

hearing testimony did not meet the criteria of Rule 804(b)(1) to be admissible because

Petitioner, due to the General Sessions Judge’s action, did not have “an opportunity . . . to

develop the testimony by . . . cross . . . examination.” Tenn. R. Evid. 804(b)(1).

The preliminary hearing transcript made an exhibit at the post-conviction hearing

contains the following pertinent part:

DEFENSE: BUT DID THEY, DID YOU TALK TO THE

OFFICERS ABOUT WHAT HAD HAPPENED?

WIGGINS: YEA IN THE HOSPITAL. IT WAS SOME DUDE

CAME TO SEE ME I DON’T KNOW WHO HE

WAS.

DEFENSE: OK AND DID YOU GIVE A [ ] DESCRIPTION TO

THE PERSON THAT DID THE SHOOTING, TO

THE OFFICER IN THE HOSPITAL?

WIGGINS: YEA I TRIED TO. WHAT I THOUGHT I SEEN,

YEA.

DEFENSE: OK WHAT DID YOU TELL THE OFFICER?

WIGGINS: ABOUT IT WAS.

DEFENSE: AS FAR AS THE DESCRIPTION OF THE

PERSON?

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WIGGINS: THE RED DUDE, RICO WITH THE

DREADLOCKS AND STUFF. THE LITTLE

SKINNY G DUDE. LITTLE SKINNY, LITTLE

SHORT DUDE, SHORT HAIR OR WHATEVER,

AND RAY-RAY DARK SKIN HE WAS THE ONE

SHOOTING AND SHORT HAIR (INAUDIBLE).

DEFENSE: SO YOU GAVE THE OFFICERS THE NAME OF

RICO, RAY-RAY, AND SKINNY G?

WIGGINS: I JUST SAID, “THE BLACK DUDE, THE RED

DUDE, AND THE BROWN DUDE” OR

WHATEVER.

DEFENSE: SO YOU JUST SAID THE BLACK, THE RED

DUDE, THE BROWN DUDE, AND THE BLACK

DUDE?

WIGGINS: YEA.

DEFENSE: THAT WAS THE DESCRIPTION YOU GAVE

THE OFFICERS?

WIGGINS: YEA.

DEFENSE: YOU DIDN’T GIVE ANY NAMES?

WIGGINS: NAW.

DEFENSE: YOU DIDN’T GIVE ANY STREET NAMES?

WIGGINS: NAW I DIDN’T GIVE ANY STREET NAMES.

DEFENSE: DID YOU GIVE ANY GANG AFFILIATION?

WIGGINS: NO GANG AFFILIATION. I THINK I GAVE

THEM, YEA I THINK SO. I THINK I TOLD

THEM THEY WERE G.D. AND ONE WAS

ATREY HOVER.

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DEFENSE: OK AND DID YOU TELL THEM WHICH ONE

THAT WAS?

WIGGINS: YEA.

DEFENSE: OR DID YOU KNOW?

WIGGINS: YEA I HAD TOLD THEM.

DEFENSE: BUT YOU DIDN’T GIVE ANY NAMES?

WIGGINS: NAW TO THE DETECTIVE DUDE?

DEFENSE: THAT’S WHAT I ASKED YOU.

JUDGE: WHAT’S THE, WHAT’S THE RELEVANCE OF

THIS? WE TALKING ABOUT ONE PERSON

CHARGED WITH THESE CHARGES

(INAUDIBLE).

DEFENSE: WELL I’M I’M TRYING TO GET THE

DESCRIPTION AND THAT’S THE ISSUE.

JUDGE: THAT’S DISCOVERY.

DEFENSE: OK.

JUDGE: THAT’S DISCOVERY.

DEFENSE: OK.

JUDGE: YOU DO THAT UPSTAIRS THIS IS THE

PRELIMINARY HEARING.

DEFENSE: OK.

JUDGE: I’M GOING TO ASK YOU TO MOVE ON WITH

SOMETHING RELEVANT TO RAMONE

LAWSON (INAUDIBLE).

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DEFENSE: OK SO YOU UM AFTER THE HOSPITAL A

COUPLE OF WEEKS LATER YOU GAVE A

STATEMENT OT THE OFFICERS?

WIGGINS: YES, MA’AM.

DEFENSE: OK AND THAT’S WHAT YOU TESTIFIED TO

HERE TODAY?

WIGGINS: YES, MA’AM.

DEFENSE: OK THAT’S ALL I HAVE FOR MISTER

WIGGINS.

STATE: NO REDIRECT JUDGE.

There was a thorough cross-examination of Mr. Wiggins reflected in the transcript

pertaining to his not giving the name of the shooter to the police while he was in the

hospital. It contains inconsistencies and contradictions. At the post-conviction hearing

General Sessions counsel described what she would have tried to elicit at the General

Sessions hearing if she had not been stopped by the General Sessions Judge:

A. Well I was trying to determine I don’t believe he knew Mr. Lawson’s

name. And I was trying to get a description that he may have given to

the police. And from what I understand I believe he said he gave a

statement a couple of weeks after, I mean his written statement a couple

of weeks after, so I was trying to get a little bit of more clarity of what he

actually said and how did he come to know that it was Mr. Lawson.

Q. All right.

A. If he got that information from, you know, somebody else or was that his

actual knowledge.

Without the statement of Mr. Wiggins to the police officer at the hospital, we are

unable to conclude that Petitioner was prejudiced by either a failure to object to Mr.

Wiggins being declared unavailable under Rule 804(a)(2) or that he was prejudiced by a

failure to object to admissibility of the transcript under the criteria of Rule 804(b)(1).

Also, the failure to present the testimony of the officer who purportedly took the

statement of Mr. Wiggins when he allegedly “gave his statement basically making it

sound like he [Mr. Wiggins] didn’t see who did it,” further prevents this court from

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concluding that any prejudice was suffered by Petitioner even if his trial counsels

performed deficiently. We would have to use pure speculation to say that Petitioner is

entitled to post-conviction relief in this case. Accordingly, Petitioner is not entitled to

relief.

CONCLUSION

The judgment of the post-conviction court is affirmed.

____________________________________________

THOMAS T. WOODALL, JUDGE

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