Opinion

Christopher Lee Shaw v. State of Tennessee

Court: Court of Criminal Appeals of Tennessee
Filed: Apr 17, 2019
Status: Published
On the bench: Judge Robert L. Holloway, Jr.
Cited by: 0 cases
Authority: More cited than 7.4%

stating that the same standard for ineffective assistance of counsel applies in both federal and Tennessee cases

How later courts described this case

stating that the same standard for ineffective assistance of counsel applies in both federal and Tennessee cases

Written by the judges who cited it.

The opinion

04/17/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 16, 2019 Session

CHRISTOPHER LEE SHAW v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2011-A-15 Cheryl A. Blackburn, Judge

___________________________________

No. M2017-02379-CCA-R3-PC

___________________________________

Christopher Lee Shaw, Petitioner, appeals the Davidson County Criminal Court’s denial

of post-conviction and error coram nobis relief from his convictions of possession of

more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free

zone, evading arrest while operating a motor vehicle, and possession of drug

paraphernalia, for which he received an effective sentence of fifteen years in the

Tennessee Department of Correction. On appeal, Petitioner contends that he is entitled to

post-conviction relief because he was denied the effective assistance of counsel.

Specifically, he contends that trial counsel failed to: (1) adequately investigate Adrian

Wilkerson; (2) obtain funds to retain a fact investigator to investigate Mr. Wilkerson and

an expert witness in undercover narcotics investigations; (3) inform Petitioner that two

additional witnesses made out-of-court identifications of Petitioner driving the white

Nissan SUV; (4) file a pretrial motion to suppress a suggestive single photographic

identification and tainted in-court identification; and (5) ensure a unanimous jury verdict

for Petitioner’s conviction in Count 1 of the indictment—possession of more than twenty-

six grams of cocaine with the intent to sell or deliver within a drug-free zone—by filing a

motion for bill of particulars, requesting an election of offenses, and challenging the jury

instruction to raise an issue of a unanimous verdict. Petitioner further asserts that the trial

court1 improperly determined that the petition for writ of error coram nobis was time-

barred, asserting that he was entitled to due process tolling of the statute of limitations.

Following a thorough review, we affirm the trial court’s denial of post-conviction and

error coram nobis relief.

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

Although we typically refer to the trial court as “the post-conviction court” when dealing with

post-conviction matters, we will refer to the lower court as “the trial court” throughout this opinion

because the case involves both post-conviction and writ of error coram nobis issues.

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL and TIMOTHY L. EASTER, JJ., joined.

Patrick T. McNally, Nashville, Tennessee, for the appellant, Christopher Lee Shaw.

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

Attorney General; Glenn Funk, District Attorney General; and Megan King, Assistant

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

OPINION

I. Factual and Procedural Background

Trial

On direct appeal, this court summarized the facts presented at trial as follows:

Ms. Rosetta Williams and Ms. Patricia Taylor, mother and daughter,

resided in an apartment complex in Goodlettsville, Tennessee. In January

2010, they contacted the Goodlettsville Police Department (GPD) to report

a “problem” with an individual who frequently visited their apartment

complex driving different cars. The problem with the individual was not

described in any detail at trial. In September 2010, Ms. Williams met with

Detective Les Carlisle and was advised to copy the tag numbers of the

different cars in an effort to identify the individual. Ms. Williams was also

advised to notify the police the next time she observed the individual in the

area. Ms. Taylor assisted her mother in collecting the tag numbers of the

different cars driven by the individual when he came to their apartment

complex.

Ms. Williams testified that she observed the individual at the

complex at least ten times. Ms. Taylor said that she observed the individual

at the complex at least three or four times a day. At some point prior to the

offense, Detective Carlisle investigated the tag numbers of the cars

provided to him by Ms. Williams and determined that they were registered

to [Petitioner]. A photograph of [Petitioner] was then shown to Ms.

Williams and Ms. Taylor, each of whom identified [Petitioner] as the man

they had seen in their apartment complex. One of the cars Ms. Williams

had observed [Petitioner] driving while in their complex was a white

Nissan SUV with tag number “Titan 18TF03.” She had reported the tag

number to Detective Carlisle prior to the offense date.

-2-

On the day of the offense, Ms. Williams and Ms. Taylor were sitting

on Ms. Williams’s porch and observed [Petitioner] drive a white SUV into

their complex. Ms. Williams observed [Petitioner] exit the white SUV and

walk upstairs to the apartment complex. Both Ms. Williams and Ms.

Taylor testified that they recognized [Petitioner] and called Detective

Carlisle to notify him that [Petitioner] was at the apartment complex.

Neither Ms. Williams nor Ms. Taylor recorded the tag number on this

occasion, but they identified the car as the same white SUV they had seen

[Petitioner] driving on previous occasions in their apartment complex.

Later, Ms. Taylor and Ms. Williams watched through the window as

[Petitioner] returned to the SUV and began to drive away. Ms. Williams

called Detective Carlisle and advised him that [Petitioner] was leaving the

apartment complex.

Detective Les Carlisle of the Goodlettsville Police Department

testified and confirmed that he investigated a complaint by Ms. Williams

concerning an individual frequenting her apartment complex. In response

to Ms. Williams’s concerns, Detective Carlisle advised her to copy the tag

numbers of the different cars and to notify him the next time the individual

was at her apartment complex. He confirmed that [Petitioner] was later

identified as the subject of Ms. Williams’s complaint. On the day of the

offense, Detective Carlisle received a phone call from Ms. Williams and,

along with Detective Joseph Bardeal, he drove to her apartment complex in

an unmarked car. Detective Carlisle also called Sergeant Gene Martin of

the Metropolitan Police Department, who was already familiar with the

investigation and identity of [Petitioner], and requested the assistance of

additional marked police cars.

Detective Carlisle received another phone call from Ms. Williams as

he neared the apartment complex exit. She advised him that [Petitioner]

was leaving the complex. He then observed [Petitioner] driving out of the

complex in a white SUV. Detective Carlisle testified that [Petitioner] was

the only person in the SUV. He followed the white SUV south on

Dickerson Road and verified its tag number as one previously given to him

by Ms. Williams. Detective Carlisle then called Sergeant Martin to

coordinate a plan to initiate a traffic stop of [Petitioner’s] SUV.

Detective Carlisle continued to follow the white SUV in a

northbound direction to an intersection, and Sergeant Martin and other

uniformed officers were waiting for [Petitioner] in the southbound direction

on the other side of the intersection. Sergeant Martin and Detective

-3-

Carlisle surrounded [Petitioner] and activated their blue lights. Sergeant

Martin’s car was in front of the SUV, and Detective Carlisle’s car was

behind the SUV. Detective Carlisle testified that [Petitioner] “paus[ed] just

for a few seconds . . . pull[ed] around [a] police car, and [took] off.”

Detective Carlisle followed the SUV until [Petitioner] turned left off of

Brick Church Pike, at which point he lost sight of the car. A white SUV,

which Detective Carlisle confirmed as the same SUV driven by

[Petitioner], later crashed into a nearby fire hydrant. [Petitioner] was not

present at the scene. After a short foot chase, [Petitioner] was arrested in a

creek behind a residential area. Detective Carlisle identified [Petitioner] as

the driver of the white SUV that had crashed into the fire hydrant.

On cross-examination, Detective Carlisle acknowledged that the

white SUV was not registered to [Petitioner]. He had no knowledge of the

owner of the car or of who drove it earlier that day.

Officer Mike Wilson testified that he was familiar with the

investigation and [Petitioner’s] identity in October 2010. On the day of the

offense, Officer Wilson was in uniform, drove a marked police car, and

participated in the search and pursuit of [Petitioner]. He testified that

[Petitioner] was the driver of the white SUV and that he did not observe

any other occupants inside the SUV. When Officer Wilson attempted to

block [Petitioner’s] SUV, [Petitioner] “stopped for a split second and then

drove around us and began driving erratically away.” Officer Wilson

continued to follow [Petitioner] but eventually lost sight of the SUV.

After turning onto a few residential streets in the area, Officer

Wilson observed the same white SUV after it had crashed into a fire

hydrant at the intersection of Oak Valley Drive and Oak Ridge Drive.

Officer Wilson testified that [Petitioner] was no longer in the SUV. He

further estimated that there were “two minutes at the most” between the

moment when [Petitioner] initially evaded the police and the moment when

he saw the wrecked SUV at the fire hydrant. Five minutes after Officer

Wilson arrived at the scene of the wreck, [Petitioner] was apprehended “a

block or two away.” [Petitioner] was brought back to the scene of the

wreck, and Officer Wilson identified him as the driver of the SUV that had

crashed into the fire hydrant.

Officer Wilson conducted a search of the SUV and recovered a

round piece of crack cocaine, a baggy of cocaine powder, and a set of

digital scales. He said the baggy of cocaine powder “was still compressed

-4-

and appeared to have been chipped off of a kilo block.” The bag of cocaine

powder was plainly visible in the front console, the piece of crack cocaine

was in a cup holder wrapped in a paper towel, and the scales were in the

passenger side front floorboard. A field test of each item was positive for

cocaine base. The powder cocaine weighed 7.8 grams, and the crack

cocaine weighed 32.5 grams. Officer Wilson also field tested a substance

recovered from [Petitioner’s] pants, which was positive for cocaine base

and weighed 3.5 grams. He stated that $1,070.00 was taken from

[Petitioner’s] person in the following denominations: three $100 bills;

thirty-five $20 bills; four $10 bills; and six $5 bills.

On cross-examination, Officer Wilson testified that he also found a

traffic ticket issued to Adrian Wilkerson, a known drug dealer. He was

unable to determine where the digital scales that were recovered from the

SUV were located before it crashed into the fire hydrant, and he agreed that

the scales may have shifted during the crash. Officer Wilson further agreed

that the driver of the SUV may have been unaware of the presence of the

crack cocaine because it was wrapped in a paper towel. Finally, Officer

Wilson said he did not subject the items recovered from the SUV to

fingerprint analysis or testing.

Detective Christopher Jones testified that on the day of the offense

he and his partner, Officer Truan, participated in the search of [Petitioner]

following the wreck involving the white SUV. Detective Jones said he

heard from radio dispatch that [Petitioner] “had bailed on foot somewhere

off Oakwood off Dickerson Road.” His squad car was equipped with

computer equipment which enabled him to retrieve a description and

photograph of [Petitioner]. He heard from dispatch that [Petitioner] had

been observed in the backyard of a residential area and proceeded in that

direction. As he approached the area, he observed [Petitioner], seated in

another car, a light colored Lincoln Mark VIII, at the intersection of

Larkspur and Ewing Street. A female was driving the car, [Petitioner] was

in the front passenger seat, and another female passenger was in the

backseat.

Detective Jones activated his lights and siren, and [Petitioner]

jumped out of the car and began to run. Detective Jones initially followed

[Petitioner] in his car, and his partner chased [Petitioner] on foot. They

attempted to “box in” [Petitioner]; however, the female driver of the

Lincoln obstructed the pathway of Detective Jones’s squad car.

Consequently, Detective Jones lost control of his car and crashed into a

-5-

rock wall. He then chased [Petitioner] on foot behind a creek and

unsuccessfully deployed his taser. Detective Jones said that he eventually

grabbed [Petitioner], pulled him to the ground, and took him into custody.

Ms. Linda Williams testified that she worked at Martha’s Learning

Enrichment Center, a daycare center located at 108 Oak Valley Drive,

Nashville, Tennessee. On the day of the offense, Martha’s Learning

Enrichment Center was an active, operating daycare center. Mr. David

Kline, an employee of the Metropolitan Nashville Planning Department,

testified that three different day care centers, including Martha’s Learning

Enrichment Center, were located “exactly” 1,000 feet from the intersection

of Oak Valley Drive and Oak Ridge Drive.

The testimony of Sergeant Gene Martin corroborated in large part

the testimonies of Detective Carlisle and Officer Wilson regarding the

events leading up to the offense. Sergeant Martin also testified that on the

day of the offense he was contacted by Detective Carlisle and participated

in the search and pursuit of [Petitioner]. He issued a radio advisory, which

contained [Petitioner’s] name, appearance, and location. During the traffic

stop, Sergeant Martin observed an individual driving the SUV but was

unable to confirm his identity. He said Officer Wilson was closer to the

SUV and had a better view of the driver. Officer Martin said that after the

SUV sped away, he did not observe [Petitioner] until after he was in

custody. He described [Petitioner] as “soaked and dirty” and “tired . . . like

he had just been running.” He said that [Petitioner’s] pants were soaked

and fell down to his ankles. He took [Petitioner’s] pants off and gave them

to Officer Alan Earls.

Sergeant Martin confirmed that [Petitioner] did not own the SUV, a

Nissan Armada, and that it was not stolen. He testified that the SUV was

not registered to [Petitioner] and that it was never claimed by anyone after

the wreck. He explained that he did not require the “I.D. Unit” to process

the SUV:

[W]e knew the subject that was driving the vehicle.

He was being followed to a point. And then Officer Wilson

and myself followed him to another point. And then we

followed him to the next point in the creek. It was a matter of

minutes. So we knew who was going to be driving the

vehicle and who was in the vehicle, who had got out of the

vehicle. So . . . there was not a need to process the vehicle.

-6-

Finally, Sergeant Martin said that, in his experience, processing a vehicle

did not always result in fingerprints.

Officer Alan Earls searched [Petitioner’s] pants and found “a large

wad of money” and a baggy containing a white, powdery, rock-like

substance. Officer Earls testified that the substance appeared to be drugs.

He took a photograph of the money, which was shown to the jury. He gave

the money and the powdery substance to Officer John Tuberville, who later

gave them to Officer Wilson. Officer Earls described a series of

photographs taken of [Petitioner] after his arrest. The photographs showed

[Petitioner], dressed in his boxer shorts, immediately after he had vomited.

Officer Earls said, in his experience, it was common for an individual to

vomit after ingesting drugs and running from the police.

Officer John Tuberville testified that he participated in the search

and pursuit of [Petitioner] on the day of the offense. After receiving

information from the other officers that the suspect was running through a

creek, he drove up a driveway in the residential area near the scene of the

wrecked SUV. He observed Officer Traun and Sergeant Martin take

[Petitioner] into custody. He confirmed that 3.5 grams of powder cocaine

and $1,075.00 were recovered from [Petitioner]. He drove back to the

scene of the wreck and gave the drugs and money to Officer Wilson. While

at the scene, [Petitioner] vomited and “started going into convulsions,

having muscle spasms that were uncontrollable.” Officer Tuberville called

an ambulance, and [Petitioner] was taken to the hospital. Officer Tuberville

later obtained warrants for [Petitioner’s] arrest. Officer Tuberville’s arrest

report indicated that [Petitioner] replied “none” for his place of

employment. It also noted the tag number of the SUV, which included the

symbol “TF” indicating a Titans fan.

Isaac Martinez of the Davidson County Metropolitan Police

Department Property and Evidence Division confirmed that Officer Wilson

submitted $1,070.00 in cash, drugs, and drug paraphernalia to the property

room in connection with this case. The money was initially stored in a safe

and later deposited into a bank or treasury department account. He stated

that the drugs were initially sealed and placed in a secure location. In

response to a request from the District Attorney’s Office, he submitted the

drugs to the Tennessee Bureau of Investigation (“TBI”) Crime Lab for

testing and analysis. He confirmed that he picked up the sealed bags

containing the drugs following testing.

-7-

Agent John Scott of the Tennessee Bureau of Investigation testified

as an expert in the area of forensic chemistry. The larger, solid chunk of

crack cocaine recovered from the SUV and the substance recovered from

[Petitioner’s] pants testified positive for cocaine base and weighed 28.82

grams and 1.41 grams, respectively. Agent Scott added the individual

weight of each drug and “round [ed] off” or “truncated” it to arrive at a total

combined weight of 30.2 grams. The white powdery substance recovered

from the SUV tested positive for the presence of cocaine and weighed 6.8

grams.

William Mackall, a lieutenant with the Narcotics Interdiction Unit

and DEA Task Force, testified as an expert in the field of undercover

narcotics investigations. He distinguished between crack cocaine users and

sellers and said that users “always [had] a crack pipe on them” and did not

have money with them. He further opined that [Petitioner] intended to sell

or deliver the drugs recovered in this case based on the amount and

appearance of the drugs, the amount and denominations of the cash

recovered from [Petitioner], and the presence of the digital scales. On

cross-examination, Lieutenant Mackall conceded that he had seen drug

users, who were not sellers, with large amounts of money. Additionally, he

testified that 1.41 grams of cocaine, the equivalent of 6 or 7 “hits,” was not

an unreasonable amount for a user to purchase.

By stipulation, the parties agreed that Officer Thomas Simpkins of

the Metropolitan Nashville Police Department analyzed the evidence in

relation to this case and that “no prints were developed from any of the

items submitted.”

Ms. Lauren Rolston testified on behalf of [Petitioner]. She lived in

the same apartment complex as Ms. Williams and Ms. Taylor. She “knew

of [Petitioner]” because they grew up in the same neighborhood. She

testified that she had never seen [Petitioner] driving a white Nissan SUV in

her apartment complex. Ms. Rolston explained that she did hair for extra

money at her apartment. She specialized in “locks or dreds” and identified

several photographs of African American men with that type of hairstyle.

She testified that Mr. Wilkerson, the registered owner of the wrecked SUV,

was a hair client of hers and the father of her best friend’s son. She said he

“always” visited her apartment in October 2010. She was certain that

[Petitioner] was not in her apartment complex on the day of the offense.

-8-

Ms. Amber Phillips, another friend of [Petitioner’s], testified that

[Petitioner] spent the night at her home on October 6, 2010, and was with

her all morning. She said he then rode in her car, a cream-colored Infiniti

J30, to pick up a mechanic. Phillips said that the money recovered from

[Petitioner] was intended to pay the mechanic for repairs to her car. When

the police approached her car with their blue lights on, [Petitioner] jumped

out of the car without explanation.

Based on the above proof, the jury convicted [Petitioner] of

possession of more than twenty-six grams of cocaine with the intent to sell

or deliver within 1,000 feet of a child care agency, evading arrest while

operating a motor vehicle, and possession of drug paraphernalia.

State v. Christopher Lee Shaw, No. M2012-01437-CCA-R3-CD, 2013 WL 5310489, at

*1-6 (Tenn. Crim. App. Sept. 20, 2013), perm. app. denied (Tenn. Dec. 23, 2013)

(footnote omitted). This court affirmed Petitioner’s convictions. Id. at *1. Thereafter,

the Tennessee Supreme Court denied Petitioner’s application for further review. Id.

Post-Conviction and Error Coram Nobis Proceedings

On December 22, 2014, Petitioner filed a timely petition for post-conviction relief,

alleging that he received ineffective assistance of counsel. He filed amended petitions for

post-conviction relief on February 25, 2016, and March 30, 2017. Additionally, he filed

a petition for writ of error coram nobis on October 25, 2016. In his petition for writ of

error coram nobis, Petitioner acknowledged that the petition was untimely filed but

asserted that he was entitled to due process tolling.

At a hearing on the petitions, Adrian Wilkerson testified that he was incarcerated

at Northwest Correctional Facility but thereafter repeatedly invoked his Fifth Amendment

right to remain silent, refusing to indicate if he went to post-conviction counsel’s office to

prepare the affidavit and refusing to identify whether his signature appeared on the

document.

Peggy Hayden testified that she was previously employed by post-conviction

counsel as a legal assistant and was commissioned as a notary public. Ms. Hayden

identified an affidavit signed by Mr. Wilkerson, which she notarized. She stated that the

information in the affidavit was sworn to and subscribed before her by Mr. Wilkerson on

January 13, 2016. In the affidavit, Mr. Wilkerson admitted that he drove the white

Nissan SUV on October 7, 2010 and claimed ownership of the powder and crack cocaine

in the SUV. He said that he used the SUV before Petitioner and that he left the drugs in

the vehicle. Mr. Wilkerson further stated that he was charged with multiple drug offenses

-9-

at the time “of these events” and that his attorney instructed him not to speak to

Petitioner’s trial counsel. Ms. Hayden testified that she notarized the affidavit at post-

conviction counsel’s office and that Mr. Wilkerson’s attorney was not present at the time.

Scott Cothran, a private investigator, testified as an expert in undercover narcotics.

Mr. Cothran explained that he was an officer with the Metropolitan Police Department

for over sixteen years and worked in the Crime Suppression Unit, which was a “street

level drug unit where [he was] responsible for street level dealers and prostitution.” He

stated that he had also been involved in a number of “major” drug buys and in breaking

up large-scale drug operations. Mr. Cothran testified that he was retained by post-

conviction counsel to review the trial testimony of Lieutenant Mackall, the preliminary

hearing transcript, photographs, and the lab reports prepared by the TBI. He stated that,

although Lieutenant Mackall testified that “about ninety percent of crack users were

found in possession of crack pipes[,]” he “found that number to be high[.]” Mr. Cothran

stated that, in his experience, only “around sixty percent” of crack users were arrested

with crack pipes. He further testified that it was “not uncommon” for drug buyers to

have scales because they “don’t want to get ripped off[.]” Mr. Cothran said that 1.41

grams of cocaine base found on Petitioner at the time of his arrest “could be for personal

use,” explaining that the amount could equal three to five uses depending “on the person,

their tolerance, their addiction level[.]”

On cross-examination, Mr. Cothran testified that he was still employed with the

police department at the time of Petitioner’s trial on January 23, 2012. He further

testified that, when taking into consideration the “thirty or so grams” of drugs found in

the white Nissan SUV along with the drugs found on Petitioner at the time of his arrest,

he would opine that the amount had been for resale and not personal use.

Petitioner testified that, while awaiting trial in the instant case, he was incarcerated

on a parole violation. He explained that, in October 2011, he retained trial counsel to

represent him on the current charges in criminal court but that he had been represented by

another attorney in general sessions court. According to Petitioner, trial counsel met with

him two times at the facility where he was housed prior to trial, but Petitioner did not

meet with trial counsel in court until the day of his trial. Petitioner recalled that he and

trial counsel discussed defense strategy, which was “to put on proof that [Petitioner] was

not driving [the white Nissan SUV] and that the drugs were not [Petitioner’s].” Petitioner

explained that he and trial counsel developed this strategy because “there were no out-of-

court identifications of [Petitioner]” and “[n]o one could . . . say that [Petitioner] was in

[the] vehicle.” Petitioner acknowledged that his original attorney filed a motion for

discovery and that he reviewed the State’s response with his original attorney and with

trial counsel. Petitioner testified that the State’s initial discovery response filed in April

2011 indicated that there were no known witnesses who made a pretrial identification of

- 10 -

Petitioner. Petitioner acknowledged that he and trial counsel reviewed the police reports

and affidavits provided by the State’s discovery response.

Petitioner recalled that the trial court held a 404(b) hearing on Friday, January 20,

2012, three days before his trial began. He stated that Ms. Williams testified during the

hearing, and he learned that Ms. Williams and her daughter, Ms. Taylor, had previously

identified Petitioner “as being at the apartments” and driving the SUV at the time of the

incident that led to Petitioner’s arrest. Petitioner asserted that this was the “first [he]

heard of that[,]” and he claimed that he had never had any prior “dealings with” Ms.

Williams and Ms. Taylor. Petitioner testified that, based upon Ms. Williams’ testimony

at the 404(b) hearing, he decided that he needed to “make a plea deal come Monday

morning.” He recalled that trial counsel approached the State about a plea deal, but trial

counsel reported that “nothing was on the table at that time.” Petitioner stated that he did

not discuss with trial counsel the possibility of suppressing Ms. Williams’ identification

or changing the defense strategy at trial. Additionally, he and trial counsel did not

discuss obtaining a continuance after learning of the proposed testimony of Ms. Williams

at the 404(b) hearing.

On cross-examination, Petitioner acknowledged that he had a preliminary hearing

in general sessions court, during which the State called officers who testified that they

saw Petitioner driving the SUV. Petitioner agreed that trial counsel filed a notice of alibi

and that his alibi witness, Amber Phillips, testified on his behalf at trial. Petitioner

further agreed that he and trial counsel discussed Mr. Wilkerson prior to trial. He stated

that he asked trial counsel to “do some research with [Mr.] Wilkerson about the traffic

ticket that was found in the [SUV].” Petitioner testified, however, that trial counsel did

not have adequate time to “do the extensive research that he needed to do” on Mr.

Wilkerson before trial. Petitioner agreed that trial counsel filed a motion to suppress his

statements to police, in which Petitioner admitted that he had been driving the SUV, and

that, based on the motion to suppress, the State agreed not to introduce Petitioner’s

admission that he was the driver of the SUV. Petitioner denied ever seeing the State’s

supplemental response to the motion for discovery that was filed in December 2011,

which included the statements of Ms. Williams and Ms. Taylor.

Trial counsel testified that he was retained to represent Petitioner at the end of

September 2011. He explained that he had been a practicing attorney since 2002 and that

in 2011 “at least fifty to sixty percent of the overall workload in [his] office” was

dedicated to criminal defense. Trial counsel recalled that he obtained a copy of the

State’s initial discovery response from the court file after he filed a notice of appearance

on Petitioner’s behalf. Trial counsel testified that he later received supplemental

discovery responses from the State that were filed in October and December 2011. Trial

counsel said that he met with Petitioner at each of the three scheduled court appearances

- 11 -

prior to trial, and he visited Petitioner three or four times at the prison where Petitioner

was housed.

Trial counsel testified that he and Petitioner talked about Mr. Wilkerson, and trial

counsel drafted an examination for Mr. Wilkerson “had [they] chosen to use that at trial.”

However, trial counsel explained that Mr. Wilkerson “had his own criminal issues at that

point in time” and that he could not have spoken to Mr. Wilkerson without his attorney

present. Trial counsel informed Petitioner that he “could not foresee any circumstance

where Mr. Wilkerson would claim the drugs on the [witness] stand” and that he did not

believe that relying on Mr. Wilkerson to claim ownership of the drugs “would be an

effective defense for [Petitioner].”

Trial counsel confirmed that he did not request funds to retain a narcotics expert to

rebut Lieutenant Mackall’s testimony because Petitioner’s family indicated that they

could not afford an expert in addition to paying for trial counsel’s services. Because

Petitioner’s family had retained counsel, trial counsel did not believe that the trial court

would approve funds to retain an expert under Tennessee Supreme Court Rule 13. In

addition, trial counsel believed that cross-examining Lieutenant Mackall was comparable

to having a competing expert provide rebuttal testimony.

Trial counsel recalled that Ms. Williams and Ms. Taylor were late-disclosed

witnesses for the State; they did not become known to the defense until the supplemental

discovery response filed on December 1, 2011. Trial counsel explained that the

supplemental discovery response led him to request the 404(b) hearing, but the trial court

ultimately decided that the witnesses’ testimony was admissible. Following the trial

court’s ruling, Petitioner indicated that he was open to a plea deal, but the prosecutor

informed trial counsel that “all offers [were] off the table[.]” Trial counsel testified:

At that point we were left with essentially two options. We could

proceed to trial as scheduled. At that point in time [Petitioner] had been

waiting for a while. Or I could move to continue the case. Based upon

what the defense was going to be and the fact that we had a potential alibi

coming in, another witness that would testify that Mr. Wilkerson was the

one who had been driving the vehicle, and based upon the testimony Ms.

Williams gave at the . . . 404(b) hearing[,] I thought she was going to be

subject to cross-examination to call her identification into question. But at

that point in time[,] it made more sense to go ahead and proceed with the

trial because based upon our conversations[,] I don’t know any other

witnesses or anybody else we would have called to rebut that had we

continued the case.

- 12 -

Trial counsel testified that he saw no need to request an election of offenses at the

close of the State’s proof. Additionally, he did not file a motion for a bill of particulars

because based upon the discovery and information in the indictment, trial counsel “knew

exactly what [Petitioner] was being charged with and the quantities and the location and

the date.” Trial counsel recalled that Petitioner decided not to testify primarily because if

Petitioner testified that he was not in the white Nissan SUV, the trial court would have

likely allowed the State to present as impeachment evidence that Petitioner admitted to

police he was the driver of the SUV. Trial counsel continued, “And at that point the

whole defense kind of goes up because we’re bringing alibi witnesses and people to

testify that he wasn’t driving the car. If a jury hears a statement that he allegedly

admitted he was in the car, that’s kind of the end of your day.”

On cross-examination, trial counsel agreed that, following the 404(b) hearing, he

did not file a motion to suppress the photographic identification of Petitioner. He further

acknowledged that he did not apply for funds to hire an investigator. Trial counsel stated

that he did not believe an investigator was necessary because “[w]e were aware of what

the officers’ testimony was going to be[,]” and trial counsel thought their testimony

“could be handled through cross-examination.” Trial counsel stated that he did not

research whether Mr. Wilkerson was the owner of the SUV. He explained:

It was actually better for us at trial given the way we were

proceeding if that person wasn’t -- we had both [Mr.] Wilkerson who we

know there was a ticket in the vehicle with his name and then potentially

even somebody else. And it was our theory that the more people who could

have been driving in that vehicle the more people other than [Petitioner]

could have been the ones to put that . . . cocaine in there.

Trial counsel testified that he spoke to Mr. Wilkerson’s attorney at an early court

appearance and asked if he could speak to Mr. Wilkerson. Trial counsel recalled, “And I

think the answer was not just no but hell no.”

Appellate counsel testified that he had been licensed to practice law since 1996

and that he was in private practice in 2012, “doing mostly . . . criminal defense appellate

work.” Appellate counsel was retained to represent Petitioner at the motion for new trial

hearing and on appeal and recalled that he met with Petitioner a few times prior to filing

the appeal. He explained that Petitioner challenged the sufficiency of the evidence on

appeal but that the appellate court affirmed the judgments of conviction.

On cross-examination, appellate counsel agreed that succeeding on a challenge to

the sufficiency of the evidence on appeal was typically unlikely. Appellate counsel

agreed that courts have expressed concern over single photo identification. He also

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agreed that the issue was not raised on appeal or preserved in the motion for new trial. In

regard to appealing issues as to the jury instructions, appellate counsel stated that he

believed the law required any objections to jury instructions to be filed in writing and that

because no written objections were filed by trial counsel, any challenge on appeal would

have been reviewed only for plain error. Appellate counsel testified that he had

previously pursued a number of appeals in which he raised claims under plain error

review.

Trial Court’s Ruling

At the conclusion of the hearing, the trial court took the matter under advisement.

The court later filed an extensive written order with findings of fact and conclusions of

law. In denying post-conviction relief, the trial court determined that Petitioner failed to

establish he was denied the effective assistance of counsel. As to Petitioner’s claim that

trial counsel failed to investigate Mr. Wilkerson, the trial court found:

When [t]rial [c]ounsel was questioned about this issue, he testified

that he was aware of [Mr.] Wilkerson who had charges pending at the same

time. Trial [c]ounsel testified he spoke with Mr. Wilkerson’s counsel, . . .

but [Mr. Wilkerson’s counsel] advised his client would not speak with

[t]rial [c]ounsel. This Court credits the testimony of [t]rial [c]ounsel.

Moreover, Petitioner has failed to establish how he was prejudiced by this

alleged deficiency. Information concerning Mr. Wilkerson was before the

jury as evidenced in the record and Petitioner’s citations thereof.

Specifically, the trial record shows that [t]rial [c]ounsel cross[-]examined

witnesses about Mr. Wilkerson to establish he was the owner of the [white

Nissan SUV].

(citation omitted).

Additionally, the trial court concluded that counsel was not deficient for failing to

offer an expert to rebut the State’s expert proof that the amount of cocaine possessed by

Petitioner was evidence of an intent to sell the drugs. The trial court reasoned:

At the post-conviction hearing, the Petitioner presented one

proposed defense expert, former Metro Officer Scott Cothran, who testified

as to the quantity of controlled substance seized and what it could mean as

far as personal use versus sale.

As to the quantity of drugs recovered and whether the amount is

indicative of resale, Petitioner presented the testimony of former Metro

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Officer Scott Cothran. Although Mr. Cothran spoke highly of his former

supervisor, [Lieutenant] Mackall, Mr. Cothran testified his opinion differed

as to the number of crack cocaine users being seized while in possession of

a crack pipe. Additionally, Mr. Cothran testified the amount of money

seized from Petitioner did not seem like a high amount and the 1.41 grams

seized from Petitioner also “was not a large amount” and “could have been

for personal use” depending on the person’s tolerance and addiction level.

As pointed out by the State during its cross-examination of Mr.

Cothran, when Petitioner’s case was tried in January 2012, Mr. Cothran still

was employed by the Metro Nashville Police Department and would not

have been available as defense expert. However, even had he testified, Mr.

Cothran was unable to definitively say the amount could not have been for

resale. His testimony was the Petitioner possessed “not a high amount” of

money and that the 1.41 grams—the amount recovered from Petitioner’s

person in addition to the amount recovered from the vehicle—“could have

been for personal use” with the caveat it depended on the individual’s

addiction or tolerance level. This information is similar to what [t]rial

[c]ounsel elicited from [Lieutenant] Mackall at trial through cross-

examination. After the portion of the appellate opinion quoted by

Petitioner above, the Court of Criminal Appeals noted:

On cross-examination, Lieutenant Mackall conceded that he

had seen drug users, who were not sellers, with large amounts

of money. Additionally, he testified that 1.41 grams of

cocaine, the equivalent of 6 or 7 “hits,” was not an

unreasonable amount for a user to purchase.

Accordingly, the Court finds that Petitioner has not established by clear and

convincing evidence that the outcome of the trial would have been different

if [t]rial [c]ounsel called Mr. Cothran—or someone else who would testify

as did Mr. Cothran at the evidentiary hearing—as an expert witness at trial.2

Moreover, [t]rial [c]ounsel testified at the post-conviction hearing that at

the time of the trial, Petitioner’s family was not in a position financially to

retain expert services nor did [t]rial [c]ounsel believe the trial court would

We note that the trial court applied an incorrect standard, i.e., clear and convincing evidence, in

evaluating whether Petitioner established prejudice. The proper standard is whether there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694. Nevertheless, as explained below, we reach the same conclusion

that Petitioner failed to establish prejudice under the Strickland standard.

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have approved expert funds pursuant to Rule 13 of the Tennessee Supreme

Court Rules. . . . This Court credits the testimony of [t]rial [c]ounsel.

Regarding the motion to suppress the pretrial identification by Ms. Williams, the

trial court determined that

[t]rial [c]ounsel testified that the State gave pre-trial notice of the

identifications made by Ms. Williams and Ms. Taylor. Trial [c]ounsel

testified the State’s notice prompted him to file his 404(b) motion, which

resulted in the pre-trial hearing on January 20, 2012, addressing whether

evidence of the outstanding warrants on harassment and the parole violation

could be introduced at trial. Information about the single photo

identification was placed on the record during Detective Les Carlisle’s

testimony at the January 20 hearing. Trial [c]ounsel testified that at the

time he was aware of case law regarding single-[photo] identifications and

conceded that Petitioner would benefit had the identification been

suppressed, but [t]rial [c]ounsel did not believe a motion to suppress would

be successful based on the evidence. This Court credits [t]rial [c]ounsel’s

testimony. Moreover, Petitioner has not demonstrated a suppression

motion would have been meritorious nor has he presented evidence to

support the other pre-trial motions referenced in his petition.

(citation and footnote omitted). The trial court found that Petitioner failed to show that

trial counsel’s performance was deficient for not filing the referenced pretrial motions

and that he was prejudiced by any alleged deficiency.

Regarding Petitioner’s claim that trial counsel failed to file a pretrial motion for a

bill of particulars and a motion challenging the defective indictment, the trial court found

that Petitioner’s complaints lacked merit. The trial court concluded, “Trial [c]ounsel

testified a bill of particulars was not necessary in this case because the indictment

provided sufficient notice of the charges contained therein. This Court credits [trial]

counsel’s testimony.” The trial court also found that trial counsel was not deficient in

failing to seek an effective election of offenses. The trial court determined that the

unpublished case relied on by Petitioner—Gregory Justice v. State, No. M2012-00183-

CCA-R3-PC, 2013 WL 1965999, at *1 (Tenn. Crim. App. May 13, 2013), perm. app.

denied (Tenn. Oct. 16, 2013)—did not support Petitioner’s claim. The trial court

reasoned that “[Gregory] Justice . . . holds the opposite: when charged with the offenses

of possession with intent to sell or deliver, the defendant is charged with one offense;

thus, no basis exists for the State to make an election.”

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In denying the petition for writ of error coram nobis, the trial court found that the

petition was not timely filed. The trial court ruled:

The statute of limitations for seeking a writ of error coram nobis is

one year from the date the judgment becomes final in the trial court—not

one year after the final action in the highest court as with a post-conviction

petition. TENN. CODE ANN. §§ 40-26-105, 27-7-103; Mixon, 983

S.W.2d at 671. Here, Petitioner’s judgment became final in the trial court

after the verdict in early 2012, but the petition for a writ of error coram

nobis was not filed until October 25, 2016, during the pendency of the

post[-]conviction proceeding.

The trial court considered whether principles of due process precluded the use of

the statute of limitations to bar Petitioner’s coram nobis claim but determined that

“[n]othing in the record implicates any due process concerns that would require tolling

the statute of limitations[.]” The trial court reasoned:

[T]he evidence was not “later-arising” since it was available pretrial

and during the statutory limitations period . . . . Likewise, the “evidence”

concerning [Mr.] Wilkerson does not constitute “newly discovered

evidence.” The parties knew of [Mr.] Wilkerson prior to trial and he was

referenced during the trial testimony.

....

Perhaps most significantly, however, despite the fact Petitioner

presented evidence from a notary confirming Mr. Wilkerson signed the

prepared affidavit admitting to drug ownership, when Mr. Wilkerson was

called to testify at the post-conviction hearing, he would not confirm it was

his signature on the affidavit and he invoked his Fifth Amendment right [to

remain silent].

The trial court ultimately found that Petitioner failed to meet his burden to warrant a writ

of error coram nobis. Petitioner’s timely appeal follows.

II. Analysis

A. Petition for Post-Conviction Relief

On appeal, Petitioner contends that he is entitled to post-conviction relief because

he was denied the effective assistance of counsel. Specifically, he contends that trial

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counsel failed to: (1) adequately investigate Adrian Wilkerson; (2) obtain funds for and

hire a fact investigator to investigate Mr. Wilkerson; (3) retain an expert witness to

consult with and/or offer rebuttal testimony to the State’s expert in undercover narcotics

investigations; (4) inform Petitioner that Rosetta Williams and Patricia Taylor made out-

of-court identifications of Petitioner driving the white Nissan SUV; (5) file a pretrial

motion to suppress a suggestive single photographic identification and tainted in-court

identification; and (6) ensure a unanimous jury verdict for Petitioner’s conviction in

Count 1 of the indictment—possession of more than twenty-six grams of cocaine with the

intent to sell or deliver within a drug-free zone—by filing a motion for bill of particulars,

requesting an election of offenses, and challenging the jury instruction to raise an issue of

a unanimous verdict.

In order to prevail on a petition for post-conviction relief, a petitioner must prove

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound

by the post-conviction court’s factual findings unless the evidence preponderates against

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing

the post-conviction court’s factual findings, this court does not reweigh the evidence or

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,

“questions concerning the credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence are to be resolved by the

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);

see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and

application of the law to factual findings are reviewed de novo with no presumption of

correctness. Kendrick, 454 S.W.3d at 457.

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,

a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same

standard for ineffective assistance of counsel applies in both federal and Tennessee

cases). Both factors must be proven in order for the court to grant post-conviction relief.

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of

counsel’s performance “requires that every effort be made to eliminate the distorting

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effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

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

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

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong

of the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks

omitted).

Trial counsel has a duty to “conduct appropriate investigations, both factual and

legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at

933. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Strickland, 466 U.S. at 691; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).

However, “when a defendant has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691.

In cases where a petitioner contends that trial counsel failed to present a witness in

support of the petitioner’s defense, the petitioner must present such witness at the post-

conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

Neither a trial nor an appellate judge can speculate as to whether that witness’s testimony

would have been favorable to the defense. Id. Therefore, the petitioner must “produce a

material witness who . . . would have testified favorably in support of his defense if

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called [at trial]. Otherwise, the petitioner fails to establish the prejudice requirement

mandated by Strickland v. Washington.” Id. at 758.

“If a petitioner alleges that trial counsel rendered ineffective assistance of counsel

by failing to . . . file a motion to suppress . . . the petitioner is generally obliged to present

the witness or the other evidence at the post-conviction hearing in order to satisfy the

Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3-

PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013) (citing Pylant v. State,

263 S.W.3d 854, 869 (Tenn. 2008)), perm. app. denied (Tenn. Mar. 17, 2014).

1. Failure to adequately investigate Mr. Wilkerson

Petitioner asserts that trial counsel made no attempt to interview Mr. Wilkerson

about why a speeding ticket with his name on it was found in the white Nissan SUV.

Petitioner contends that Mr. Wilkerson wanted to speak to trial counsel and that Mr.

Wilkerson’s admission of ownership of the drugs in the SUV would have been “powerful

evidence” to refute the State’s argument that Petitioner was in constructive possession of

the drugs in the SUV.

At the post-conviction hearing, trial counsel testified that he and Petitioner talked

about Mr. Wilkerson, and trial counsel drafted an examination for Mr. Wilkerson “had

[they] chosen to use that at trial.” However, trial counsel explained that because criminal

charges were also pending against Mr. Wilkerson, he could not have spoken to Mr.

Wilkerson without his attorney present. Trial counsel informed Petitioner that he “could

not foresee any circumstance where Mr. Wilkerson would claim the drugs on the

[witness] stand” and that he did not believe that “would be an effective defense for

[Petitioner].” Trial counsel testified that he spoke to Mr. Wilkerson’s attorney at an early

court appearance and asked if he could speak to Mr. Wilkerson. Trial counsel recalled,

“[T]he answer was not just no but hell no.” Trial counsel stated that he did not research

whether Mr. Wilkerson was the owner of the SUV because

[i]t was actually better for us at trial given the way we were proceeding if

that person wasn’t -- we had both [Mr.] Wilkerson who we know there was

a ticket in the vehicle with his name and then potentially even somebody

else. And it was our theory that the more people who could have been

driving in that vehicle the more people other than [Petitioner] could have

been the ones to put that . . . cocaine in there.

As to Petitioner’s claim that trial counsel failed to investigate Mr. Wilkerson, the

trial court found that Petitioner failed to establish deficient performance. The trial court

determined:

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