Carlos D'Juan Campbell, Jr. v. State of Tennessee

11/08/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2019 Session

CARLOS D’JUAN CAMPBELL, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 110071 Steven Wayne Sword, Judge

___________________________________

No. E2018-01877-CCA-R3-PC

___________________________________

The Petitioner, Carlos D’Juan Campbell, Jr., appeals the Knox County Criminal Court’s

denial of his petition for post-conviction relief from his two convictions for attempted

first degree murder and one conviction for employing a firearm during the commission of

a dangerous felony, arguing (1) he received ineffective assistance of counsel and (2) the

post-conviction court erred in allowing the State to present proof and argument at the

post-conviction hearing after the State failed to file a written response to his petition. We

affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Gregory P. Isaacs and J. Franklin Ammons, Knoxville, Tennessee, for the Petitioner,

Carlos D’Juan Campbell Jr.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton and

TaKisha M. Fitzgerald, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

A Knox County grand jury indicted the Petitioner on seven counts of attempted

first degree murder, two counts of employing a firearm during the commission of a

dangerous felony, and two counts of felony reckless endangerment. State v. Carlos

Campbell, No. E2014-00697-CCA-R3-CD, 2015 WL 6155893, at *1 (Tenn. Crim. App.

Oct. 20, 2015), perm. app. denied (Tenn. Apr. 6, 2016) (designated a “Not for Citation”

case). Before trial, the Petitioner filed a motion to suppress all the statements he made to

police during his October 2012 interview because they were the result of police coercion.

Id. at *5. The trial court denied this motion, holding that although the officers’ remarks

were coercive in nature, the Petitioner’s will was not overborne. Id. at *12. Immediately

prior to the start of trial, the State dismissed the two counts of felony reckless

endangerment. Id. at *1.

Trial. The evidence presented at trial established that two shootings occurred at a

residence on Wilder Place in Knoxville. Id. at *1-4. The first shooting took place around

3:00 a.m. on August 13, 2012. Id. at *1. When the police arrived, they noticed multiple

bullet holes in both a silver Lincoln belonging to Devante Nail and a black Nissan

Maxima, which were parked outside the Wilder Place residence. Id. In addition, ten

Smith and Wesson .40 caliber shell casings were collected from a nearby intersection. Id.

at *2. Officers also noted that the residence on Wilder Place was struck two times by

gunfire, although these bullets did not make it all the way through to the inside of the

residence. Id. The evidence showed that Brittaney Nail, Lakeshia Reynolds, Tamichael

Bennett, Davante Nail, and Darlessa Clemons, who was Devante Nail’s girlfriend, were

present in the residence at the time of this shooting. Id.

The second shooting occurred at the same Wilder Place residence around 2:30

a.m. on August 15, 2012. Id. Brittaney Nail testified that she was watching movies with

Darlessa Clemons inside the residence on that date when numerous bullets pierced the

drywall of her home. Id. Ms. Nail1 said that she called 9-1-1 and informed the operator

that the Petitioner was responsible for this shooting because Clemons had told her she

heard the Petitioner’s name “a lot in conversation.” Id. Ms. Nail added that she knew

that the Petitioner and her brother, Devante Nail, “had something between each other.”

Officer Hopkins testified that the inside of the Wilder Place residence “was riddled with

gunshots” and that “there were pieces of drywall just scattered all over the place.” Id. at

*3. He also noted that Darlessa Clemons had “a through and through hole in her shirt”

and a “scratch mark” on her back where he opined that a bullet had nearly struck her. Id.

Investigator Chas Terry also testified that there were “bullet holes throughout the entire

house.” Id. Numerous photographs were admitted showing the damage these bullets

caused to the residence, the hole in Clemons’ shirt, and Clemons’ injury.

The Petitioner was questioned by police about these shootings in August 2012 and

in October 2012. Id. The State presented an approximately fifty-minute excerpt of the

Petitioner’s October 2012 interview with police. Id. During this excerpt, the Petitioner

stated that he participated in the robbery of Devante Nail’s younger brother, that Devante

Nail retaliated for his brother’s robbery by coming to the Petitioner’s neighborhood and

1

Although we generally refer to witnesses by their last name for the purposes of efficiency, we

will refer to Brittaney Nail as Ms. Nail to distinguish her from her brother, Davante Nail.

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shooting at a house twice, and that this feud between the Petitioner and Davante Nail

resulted in an ongoing Twitter exchange. Id. The Petitioner also disclosed during his

excerpted statement that he only drove the car during the Wilder Place shootings and

never fired a gun, that Cuben Lagrone and Laquinton Brown fired the shots during the

first shooting, and that Lagrone, Brown, and a juvenile were in his car during the second

shooting. Id. at *4. Investigator Brandon Wardlaw testified that the Petitioner, at a

pretrial hearing in this case, admitted he was one of the shooters. Id.

Patricia Resig, an expert in firearm identification, testified that the ten Smith and

Wesson .40 caliber casings recovered from the August 13, 2012 shooting came from the

same unknown gun. Id. After examining the bullets and casings recovered from the

scene of the second shooting, Resig opined that three guns had been used in the August

15, 2012 shooting. Id.

At the conclusion of trial, the Petitioner was convicted of two counts of attempted

first degree murder, one count of employing a firearm during the commission of a

dangerous felony, and five counts of misdemeanor reckless endangerment, and the trial

court imposed an effective sentence of forty-six years. Id. at *5.

The Petitioner appealed,2 and this court affirmed his convictions for attempted first

degree murder and employment of a firearm during the commission of a dangerous

felony but reversed and dismissed his convictions for misdemeanor reckless

endangerment on the basis that misdemeanor reckless endangerment is not a lesser

included offense of attempted first degree murder. Id. at *23-24. The Tennessee

Supreme Court denied the Petitioner’s application for permission to appeal. Id. at *1.

On March 3, 2017, the Petitioner filed a timely petition for post-conviction relief,

alleging, in part, that trial counsel was ineffective in failing to advise him of the State’s

plea offer, in eliciting detrimental testimony from him at the suppression hearing, in

failing to object to Investigator Wardlaw’s testimony at trial concerning the Petitioner’s

admission at the suppression hearing that he fired shots at the scene, in failing to make a

written request for the missing witness instruction, in failing to argue or present any

mitigating evidence at his sentencing hearing, and in failing to include a Rule 404(b)

issue in the motion for new trial. He also argued that the cumulative effect of trial

counsel’s errors constituted ineffective assistance of counsel. Thereafter, the Petitioner

filed an amended petition, wherein he additionally alleged that trial counsel was

ineffective both in failing to make a written request to sever the counts of the indictment

2

Trial counsel passed away in a single vehicle accident before filing the Petitioner’s appellate

brief on direct appeal. Thereafter, appellate counsel was appointed as counsel of record for the Petitioner.

See Carlos Campbell, 2015 WL 6155893, at *1 n.1.

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and in failing to make a written request for an instruction on solicitation of first degree

murder.

Post-Conviction Hearings. The post-conviction court conducted evidentiary

hearings on August 30, 2018, and September 6, 2018. At the August 30, 2018 hearing,

the Petitioner testified that he met with trial counsel three or four times between his

indictment and trial. During these meetings, trial counsel talked to the Petitioner about

getting his statement to police suppressed because he had implicated himself.

The Petitioner said that trial counsel informed him of the plea offers from the State

over two meetings. He said the State’s first offer was fifteen years at thirty percent but

was contingent on his codefendant Laquinton Brown also entering a guilty plea. The

State’s second offer was twenty years at thirty percent, with no future indictments on his

other cases, and was contingent on the Petitioner testifying against his codefendants. The

Petitioner stated that in hindsight, he would have taken the second plea deal and would

have willingly testified against his codefendants if he had known about the sentence he

was facing if convicted at trial.

The Petitioner said trial counsel never showed him his indictment, never discussed

the elements of the charged offenses, never talked to him or presented him with a

document in writing about the potential sentence he was facing on each of the counts of

the indictment, never explained the difference between concurrent and consecutive

sentencing, and never discussed how the State could use his juvenile convictions to

enhance his sentence. He also said trial counsel never talked to him about the sentence

he would receive if convicted of the charge of employment of a firearm during the

commission of a dangerous felony. He said trial counsel advised him to accept the

State’s offer because it consolidated and resolved all of his cases. The Petitioner stated

that although trial counsel was very concerned about the State threatening additional

charges in his unrelated case, trial counsel never explained what would happen if he were

convicted at trial. When trial counsel communicated the State’s offer to him, the

Petitioner understood that “the most time [he] would get would be 25 years[,]” which was

the maximum for a Class A felony. He said that trial counsel never told him he would be

required to serve eighty-five percent of his sentence and never explained the sentencing

ranges for his charged offenses. He also said trial counsel never informed him of the

number of years he was facing at trial versus the number of years in the State’s offer,

never advised him about whether the court would sentence him concurrently or

consecutively, and never talked to him about what impact his criminal history could have

on his sentence. The Petitioner said that it was only after he was convicted at trial and

just before his sentencing hearing that trial counsel told him his sentences could be

ordered to be served consecutively, or “stacked,” and that he was facing significantly

more time than twenty-five years. He said he was angry when trial counsel first informed

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him of his sentencing exposure because he would have accepted the State’s plea deal had

he known he was facing more than twenty-five years. The Petitioner described the

conversation he had with trial counsel shortly before his sentencing hearing:

[Trial counsel] was like—all he said was, “They’re trying to . . . run

your sentences consecutive,” and I was like, “What does that mean?” He

was like, “Basically stacked.” I was like, “I thought it could only be 25

[years] for a class A felony.” He was like, “No[,]” [and then] he

explain[ed] consecutive [sentencing] to me after the fact. I was like, “Well,

is there any way that I could get my deal back?” He was like, “No. It’s too

late.” And I was like, “Well, that’s messed up ‘cause I didn’t know that.”

The Petitioner said that at the time of his sentencing hearing, he was not aware that trial

counsel never filed a sentencing memorandum in response to the State’s sentencing

memorandum so he could request mitigating factors and concurrent sentencing. The

Petitioner stated that he had no doubt in his mind that he would have accepted the State’s

plea offer if trial counsel had explained his sentencing exposure.

The Petitioner acknowledged that he had entered guilty pleas to two prior

misdemeanor drug convictions but claimed that he did not recall receiving consecutive

sentences for those convictions. He said trial counsel met with him to discuss the

suppression of his second statement to police.

The Petitioner remembered Gary Lamb, trial counsel’s investigator, being present

at several of the meetings he had with trial counsel, including at least one meeting where

they discussed the State’s plea offer. He also recalled meeting with Lamb without trial

counsel a few times. The Petitioner said Lamb showed him a video recording of his first

or second statement to police and that Lamb also showed him the statements made by his

codefendants in the unrelated shooting case. The Petitioner said that after his trial, he

met with Lamb more than trial counsel. Upon being convicted in this case, the Petitioner

informed trial counsel and Lamb that he wanted to receive a sentence of fifteen years at

thirty percent, but the State refused to agree to this sentence unless his codefendant

Laquinton Brown entered a guilty plea as well. The Petitioner said that trial counsel and

Lamb never discussed the consecutive sentences he had received for his earlier drug

convictions in general sessions court and never explained that the trial court could impose

consecutive sentencing for his convictions in this case.

Gary Lamb testified for the State. He stated that he worked with trial counsel on

the Petitioner’s case but was unable to attend the Petitioner’s trial. Lamb said that he met

with the Petitioner several times and asserted that there were “several occasions” when he

and trial counsel met with the Petitioner. He noted that “before we even started working

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the case, there was an offer that we discussed with [the Petitioner].” When asked about

the discussions with the Petitioner regarding this offer, Lamb stated:

We had watched [the Petitioner’s] interview several times, and I

remember saying that if we took each one of these cases to trial that he

would get a lot more time than what he was looking at [pursuant to the

State’s offer]. The offer was 20 years, but [the State] wanted him to testify

against the people that he spoke about, and . . . [the Petitioner] didn’t think

that was in his best interest.

Lamb said he explained to the Petitioner that consecutive sentencing could result in more

time if he were convicted at trial, stating: “[W]e had a[n] . . . almost seven-hour

interview where [the Petitioner] admitted some part in several different cases, and we had

discussed how he could get time for each one [of these cases] and it would stack up and

would be a lot more time if he was convicted of each charge.” He said the Petitioner

ultimately decided not to accept the State’s offer.

Lamb admitted that he was not a licensed attorney or paralegal and was not

authorized to give legal opinions, including advice regarding a client’s sentencing

exposure. He said that while the jail records showed that trial counsel visited with the

Petitioner four times at jail, he could not say how many of these meetings he attended.

Although Lamb could not identify the “specific day” when trial counsel advised the

Petitioner concerning his sentencing exposure, he insisted that he was present when this

topic was discussed. Although Lamb acknowledged that he did not advise the Petitioner

regarding the applicable sentencing law or the sentencing ranges for each of the charged

offenses, he said trial counsel informed the Petitioner of “the ranges. . . for these charges

in all of these cases that he had.” He admitted he did not recall the “specifics” of any

meetings with the Petitioner and did not remember anyone explaining to the Petitioner

“the impact of a sentence if he were convicted versus the plea agreement.”

Lamb asserted that he was with trial counsel at least one time when they discussed

the Petitioner’s sentencing exposure and that he talked to the Petitioner about his

sentencing exposure on “several occasions.” He said that while he originally had a case

file for the Petitioner containing his records and notes, he was unable to locate this file in

time for the post-conviction hearing and, therefore, was unable to present records

corroborating anything he said he did or discussed with the Petitioner during the case.

Following these hearings, the post-conviction court entered a written order

denying post-conviction relief on October 2, 2018. Regarding trial counsel’s advice on

the plea offer, the court concluded:

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[T]he court does not find the Petitioner credible when he states that he was

unaware that he could receive consecutive sentences. . . . Despite the fact

that [deceased trial counsel] is no longer with us to explain his actions, the

court finds that the Petitioner has failed to establish by clear and convincing

evidence that [trial counsel] was deficient in his advice to the Petitioner

concerning the plea offer and potential consequences of going to trial.

[Trial counsel] went so far as to place on the record before the trial began

that he was advising the Petitioner to take the very favorable offer in

exchange for testifying. The court addressed this with the Petitioner and he

clearly indicated a desire to proceed to trial. The offer would conclude all

the Petitioner’s cases. . . . The emphasis on the plea deal resolving all

potential cases against the Petitioner certainly points to some consideration

of potentially consecutive sentences. The Petitioner was certainly aware of

the possibility of consecutive sentences based upon his recent experience in

General Sessions Court.

....

Although the court finds the Petitioner has failed to establish the

[deficiency] prong of the Strickland standard, the court will still evaluate

the prejudice prong. . . .

The court finds that the Petitioner has failed to establish [that he

would have accepted the plea]. Even after being convicted and sentenced

in this case to consecutive sentences, the Petitioner proceeded to trial on his

other attempted murder case where he once again received consecutive

sentences. His attorney [in that case] strongly advised him to take the offer

of 20 years. He rejected this offer and elected to go to trial. The court

believes it is only hindsight that leads the Petitioner to state that he would

have accepted the offer.

Regarding whether trial counsel elicited unfavorable testimony from the Petitioner

at the suppression hearing, the post-conviction court held:

The Petitioner argues that trial counsel was in[ ]effective by eliciting

testimony from [him] during a suppression hearing that [he] fired a weapon

during one of the offenses in question. He . . . argues that counsel’s direct

examination resulted in a new admission of criminal conduct that was used

against [him] during trial. The basis of his claim is that in his statements to

the police[,] he only admitted to driving the car. He denied firing a

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weapon. It was only during the suppression hearing that he admitted to

firing a gun.

This is an inaccurate statement. [The Petitioner] did tell the police

on October 12, 2012 that he fired a gun. . . . He only admitted this after the

investigators had told him he would be raped in prison. Trial counsel was

attempting to demonstrate to the court that the admission of shooting a gun

was the product of coercion. The Petitioner was simply explaining at the

suppression hearing why he had said he was a shooter and not just a driver.

He was not giving any new information.

It is true that the State did not introduce at trial the portion of the

Petitioner’s interview where he admitted that he fired a gun. Also,

Investigator Wardlaw testified during the trial that the Petitioner denied

being a shooter until the suppression hearing. However, this testimony was

incorrect, as explained above. Thus, counsel did not elicit any new

incriminating information from the Petitioner during the suppression

hearing. Counsel cannot be faulted for the Petitioner’s testimony. It was

consistent with what he had already told the police. The fact[] that the

State did not introduce during trial the initial admission and a witness

testified incorrectly about what was said on October 12, 2012[,] cannot be

held against trial counsel in a pre-trial hearing. The Petitioner has failed to

establish deficient performance on this issue.

As to trial counsel’s failure to object to Investigator Wardlaw’s testimony

concerning the Petitioner’s admission at the suppression hearing to firing a gun at the

scene, the court concluded:

The court now has no way of knowing why counsel did not object.

It could be that he didn’t object because his client had previously admitted

to the investigators that he fired a weapon[,] and he expected that testimony

to come in during another part of the trial. Such proof is not before the

court. The testimony in question would have been disallowed had an

objection been made by counsel. Without any discernable strategic reason

for not objecting, the court finds that the failure of counsel to object to this

testimony was deficient performance. The court will now examine the

prejudice prong.

Although the Court of Criminal Appeals focused on the in-court

testimony of the Petitioner as the corroboration of his statement to the

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investigators, there was additional corroborating evidence outside the

testimony of Investigator Wardlaw about the suppression hearing testimony

of the Petitioner. Brittaney Nail testified that she was in the home during

the shooting in question. She called 911. The recording of that call was

played during the trial. Ms. Nail stated that the Petitioner was one of the

people who committed the act. She testified that she knew that Devante

Nail and the Petitioner “had something between each other” . . . . She

further testified that Darlessa Clemons, who was also in the house during

the shooting, knew it was the Petitioner and told her the name. Proof was

introduced during the trial about multiple shootings based upon an ongoing

conflict between Mr. Nail and the Petitioner, establishing motive for the

Petitioner to commit the crime. Finally, a large amount of physical

evidence was introduced proving that multiple shots were indeed fired into

the home on the nights in question.

....

There was a tangible injury in this case. There were multiple bullet

holes in the property and the clothing of one of the victims, Ms. Clemons,

with an apparent slight physical injury from a bullet on her body. The court

finds that the physical evidence provides substantial independent evidence

showing that the injury actually occurred. The court also finds that the

Petitioner’s statement was trustworthy based upon the court’s reasoning

outlined in the order denying the motion to suppress. Furthermore, the

circumstantial evidence of the on-going battle and animosity between the

Petitioner and Mr. Nail combined with the physical evidence and the

consistent admissions in both statements of the Petitioner support the

finding that his statement was trustworthy. Although not necessary, the

court finds that the testimony of Ms. Nail, the proof of motive, and the 911

call link the Petitioner to the crime.

Finally, the court instructed the jury on criminal responsibility for

the conduct of another. Even if there was no proof that the Petitioner fired

a weapon, he had clearly admitted many times that he participated as a

driver. This proof would be sufficient to support the convictions even if the

Petitioner did not fire the gun.

In sum, the court finds that the State has sufficiently corroborated

the Petitioner’s statement to police completely independent of his

suppression hearing testimony. Had trial counsel objected to the admission

of the Petitioner’s testimony from the hearing, the proof would still be

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sufficient to support the convictions. Therefore, he has failed to establish

that he was prejudiced by counsel’s deficiency in this area.

Next, regarding trial counsel’s failure to request a severance, the post-conviction

court held:

The charges in the indictment encompass two separate shootings that

occurred two days apart. Petitioner claims that counsel should have filed a

motion requesting that the two incidents be severed for trial. Once again,

without the testimony of trial counsel, the court cannot discern from the

record alone if the decision was a strategic choice. Although there was

significant pre-trial litigation to exclude [Rule] 404(b) type evidence, a

motion to sever was not filed. . . .

....

. . . The evidence presented during the trial shows that the two

incidents were part of an ongoing battle between the Petitioner and his

friends and Mr. Nail and his friends. There were so many shootings that

the incidents could be classified as being part of an ongoing war. The

distinguishable goal of each shooting charged in the indictment was a

response to threatening actions of Mr. Nail. Thus, the court finds that they

were part of a larger, continuing plan or conspiracy.

The issue of what would be appropriate to explore by both parties

was litigated pre-trial and during the trial. The court ruled pursuant to Rule

404(b) that the evidence in both shootings would be admissible in this trial.

Evidence from other incidents was excluded. The proof in each of these

two incidents would be admissible in each case had there been separate

trials. Finally, the court found, and still holds, that the danger of unfair

prejudice did not outweigh the probative value regarding the material issues

of motive or intent in each incident. A motion to sever would have been

denied. Since the court finds that a motion to sever would have been

denied had it been filed, the Petitioner has failed to establish the deficiency

and prejudice prongs on this issue.

As to trial counsel’s failure to request the missing witness instruction, the

post-conviction court concluded:

[T]he Petitioner claims that trial counsel was ineffective in not requesting a

jury instruction on missing material witnesses. He bases his argument on

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the fact that the State did not call to the stand multiple individuals who

were in the home during the shootings and were named victims. Counsel

argued numerous times during closing argument that their absence should

cause the jury to question the State’s case. But, he did not request

[Tennessee Pattern Jury Instruction] 42.16.

The court finds that the extensive record in this case shows that the

missing witnesses were never cooperative with the State. In order to justify

an instruction on a material witness, the missing witness must not have

been equally available to both sides, the witness was not truly unavailable,

and the testimony was not as likely to be favorable to one party as the other.

See State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984).

In this case, there is no evidence that the missing witnesses were

peculiarly available to the State over the Petitioner. The background of the

shootings shows that Mr. Nail had also engaged in criminal behavior

leading up to these shootings. The witnesses were certainly not cooperative

with the investigators. Thus, it was just as likely that the witnesses would

have shown up to testify had they been subpoenaed by the Petitioner as by

the State. The court finds that the record did not support including

[Tennessee Pattern Jury Instruction] 42.16 in the instructions. Therefore,

the Petitioner has failed to show that counsel was deficient in his

performance on this issue.

Regarding trial counsel’s failure to request an instruction on solicitation of first

degree murder as a lesser included offense to attempted first degree murder, the court

held:

The Petitioner argues that counsel was ineffective in failing to

request that solicitation of first degree murder be instructed as a lesser

included offense. Solicitation of first degree murder is a lesser included

offense of attempted first degree murder. See[,] e.g.[,] [Orlando] Crenshaw

v. State, [No. M2004-00045-CCA-R3-CD,] 2004 WL 2984856 (Tenn.

Crim. App. 2004). However, there was no evidence presented that the

Petitioner in any way commanded, requested, or attempted to command or

request that someone else commit a criminal offense. With no supporting

evidence, it would have been improper for the court to instruct on

solicitation. Therefore, the Petitioner has failed to establish that counsel

was deficient in this area.

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As to trial counsel’s failure to present mitigation argument and proof during

sentencing, the post-conviction court concluded:

Although counsel did not file a sentencing memorandum or present

additional evidence during the sentencing phase, he did argue mitigation in

the form of lack of intent to injure, not shooting during the first incident,

and his young age. The Petitioner also gave an allocution prior to the entry

of judgment. The court found that the enhancing factors significantly

outweighed any mitigation and that consecutive sentences were warranted.

The Petitioner did not present any evidence during the post-

conviction hearing as to what proof trial counsel should have introduced

during the sentencing hearing or what mitigation argument should have

been made on his behalf. Therefore, he has failed to establish that trial

counsel was deficient on this issue.

Regarding trial counsel’s failure to raise the Rule 404(b) issue in the motion for

new trial, the post-conviction court held:

The Petitioner argues that trial counsel was deficient in failing to

raise in his motion for new trial that the State played portions of the

Petitioner’s statement to the police that should have been excluded under

Rule 404(b). Trial counsel objected during trial and requested a mistrial.

The trial court overruled the objection and denied the motion for mistrial.

[Appellate] counsel[, who was appointed after trial counsel’s death,] raised

this issue on appeal; however, since [trial counsel] did not raise it in the

motion for a new trial, the appellate court only reviewed the issue under the

plain error standard.

. . . Since appellate counsel raised the issue on appeal, the court can

see no reasonable explanation not to raise the issue in the motion for a new

trial. The court finds [trial] counsel was deficient on this issue and will

next examine the prejudice prong.

The Court of Criminal Appeals in reviewing this issue stated,

“We agree with the trial court’s conclusion that the robbery of

Mr. Nail’s brother was one of several precipitating events in

this feud that led to the shootings and was admissible to

establish the Defendant’s motive and intent.” State v.

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[Carlos] Campbell, No. 2014-00697-CCA-R3-CD, 2015 WL

6155893[,] at *16 (Tenn. Crim. App. 2015).

Although the appellate court was only examining the issue under the plain

error standard, this statement reflects that the trial court was correct in the

crux of its ruling on the issue. The Petitioner has failed to make any

additional argument that would lead the court to find a reasonable

probability that the appellate result would have been different under a lower

standard of review. The court finds that the Petitioner has failed to

establish that he was prejudiced by appellate counsel’s deficiency.

As to whether the cumulative effect of all of trial counsel’s errors amounted to

ineffective assistance of counsel, the post-conviction court concluded:

Although the court has found some deficient performance by

trial/appellate counsel, the court finds they do no[t] warrant the granting of

a new trial. The record indicates that trial counsel properly investigated the

case and prepared for trial. He was an experienced and successful trial

attorney. He vigorously litigated the Petitioner’s defense and was able to

achieve the reduction of five counts of attempted first degree murder to

misdemeanor convictions for reckless endangerment. The court finds that

the Petitioner received competent counsel who was able to present his

defense effectively.

Following entry of the order denying post-conviction relief, the Petitioner filed a

timely notice of appeal.

ANALYSIS

I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel

was ineffective in failing to adequately advise him regarding plea offers, in eliciting

detrimental testimony at his suppression hearing, in failing to object to Investigator

Wardlaw’s testimony concerning the Petitioner’s admission at the suppression hearing to

firing a gun, in failing to make a written request to sever the charges in this case, in

failing to make a written request for a missing witness instruction, in failing to make a

written request for an instruction on solicitation of first degree murder, in failing to

present argument or evidence in support of mitigation at his sentencing hearing, and in

failing to include a Rule 404(b) objection in his motion for new trial. He also contends

that the cumulative effect of all of trial counsel’s errors deprived him of the effective

assistance of counsel. The State counters that trial counsel’s performance was not

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deficient because it was within the professional norms expected of defense counsel and

that it did not prejudice the Petitioner. We conclude that trial counsel was not ineffective.

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

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

constitutional right. Tenn. Code Ann. § 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. Tenn. Code Ann. § 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 Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

A petitioner successfully demonstrates deficient performance when the petitioner

establishes that his attorney’s conduct fell “below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(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). “Because a petitioner

must establish both prongs of the test, a failure to prove either deficiency or prejudice

provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.

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State’s Plea Offers. The Petitioner contends that trial counsel was ineffective in

failing to adequately advise him of plea offers made by the State. Although he

acknowledges that trial counsel advised him to accept the State’s plea offer, he insists

that he was unable to make an informed decision about the offer because trial counsel

failed to warn him that he could receive a sentence in excess of twenty-five years if the

trial court imposed consecutive sentencing. Consequently, the Petitioner asks that this

court remand his case and order the State to reinstate its original plea offer and then

negotiate in good faith. See State v. Harris, 875 S.W.2d 662, 667 (Tenn. 1994).

The trial transcript shows that immediately prior to the start of trial, trial counsel

placed on the record that the State had made “a favorable offer” early in the case that

included not only this case but also the other cases the Petitioner faced. Trial counsel

said it was his recommendation to accept that offer, but the Petitioner decided to reject

that offer and proceed to trial. Trial counsel said the Petitioner had “a good reason why .

. . he would not accept the offer[,]” but he wanted to place this information on the record

because he believed it would be “helpful down the road[.]” At that point, the following

conversation occurred between the trial court, trial counsel, the State, and the Petitioner:

The Court: . . . Would you please state the offer on the record,

please?

[Trial counsel]: The offer was, and I’m not positive whether it was 18

or 20, but it was a 30 percent offer and would count all

of his cases and [he would] not to be prosecuted on

other potential drive-by’s that he could be charged

with.

The Court: All right. General, is that your understanding of the

agreement?

[The State]: That was, but it also included him testifying truthfully.

The Court: Okay.

[Trial counsel]: And it did include testifying truthfully against any and

all co-defendants. I think that’s where the bump was,

but I need that on the record.

The Court: Yes, sir. All right. [Petitioner,] your attorney has

announced that there was an offer in this case. Now,

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the decision on accepting that offer is yours and yours

completely. [Trial counsel] can give you advice on it,

but ultimately, it’s your decision on whether or not to

accept that offer. Do you understand that?

[Petitioner]: Yes, sir.

The Court: And so, since we’re here for trial today, I assume you

did reject that offer. Is that accurate?

[Petitioner]: Yes, sir.

The Court: All right. And so, that’s what you want to do. Nobody

is forcing you to go to trial, this is your free choice; is

that correct?

[Petitioner]: Yes, it is.

At the post-conviction hearing, the Petitioner asserted that trial counsel never

discussed the risk of receiving consecutive sentencing. However, Investigator Lamb

testified that he was present when trial counsel talked to the Petitioner about the State’s

offer and his sentencing exposure.

“The Strickland standard for determining whether a defendant received effective

assistance of counsel applies during plea negotiations as well as during trial.” Nesbit v.

State, 452 S.W.3d 779, 787 (Tenn. 2014) (citing Missouri v. Frye, 566 U.S. 134, 144-47

(2012); Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). Trial counsel must “promptly

communicate and explain to the defendant all plea offers made by the prosecuting

attorney.” Frye, 566 U.S. at 145 (citing ABA Standards for Criminal Justice, Pleas of

Guilty 14-3.2(a) (3d ed. 1999)). “‘[A] lawyer must abide by his client’s decision [to

accept or reject a plea] only after having provided the client with competent and fully

informed advice, including an analysis of the risks that the client would face in

proceeding to trial.’” Nesbit, 452 S.W.3d at 800 (quoting Burt v. Titlow, 571 U.S. 12, 19

(2013) (Sotomayor, J., concurring)). A defendant asserting that trial counsel’s

performance was deficient during the plea negotiations process must “show by a

reasonable probability that, but for counsel’s deficient representation, (1) the defendant

would have accepted the plea, (2) the prosecution would not have withdrawn the offer,

and (3) the trial court would have accepted the terms of the offer, such that the penalty

under its terms would have been less severe than the penalty actually imposed.” Id. at

800-01 (citing Lafler v. Cooper, 566 U.S. 156, 164 (Tenn. 2012)).

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The post-conviction court specifically found that the Petitioner did not provide

credible testimony that he was unaware he could be subject to consecutive sentencing if

he proceeded to trial. The court specifically noted that trial counsel, prior to trial, placed

on the record that he had advised the Petitioner to accept the State’s favorable offer,

which resolved all of the Petitioner’s cases in exchange for him testifying against his

codefendants, and the Petitioner informed the trial court that he wanted to proceed to

trial. The post-conviction court found that “[t]he emphasis on the plea deal resolving all

potential cases against the Petitioner certainly points to some consideration of potentially

consecutive sentences” and that the Petitioner “was certainly aware of the possibility of

consecutive sentences based upon his recent experience in General Sessions Court.” It

held that even though trial counsel was deceased and therefore unable to explain his

actions concerning the plea at the post-conviction hearing, the Petitioner had failed to

establish by clear and convincing evidence that trial counsel was deficient in the advice

he gave to the Petitioner concerning the State’s plea offer and the potential consequences

to proceeding to trial. The post-conviction court also held that the Petitioner failed to

show that he would have accepted the plea.

The evidence does not preponderate against the credibility determinations and

factual findings made by the post-conviction court. The record clearly shows that the

Petitioner chose to reject the State’s offer because it required him to testify against his

codefendants, which he was unwilling to do. Because the Petitioner has failed to

establish that trial counsel was deficient in the advice he gave concerning the plea offer

and the potential consequences of proceeding to trial and has failed to show that this

alleged deficiency resulted in prejudice to him, he is not entitled to relief on this issue.

Elicitation of Detrimental Testimony. The Petitioner also contends that trial

counsel was ineffective in eliciting the damaging admission from him at the suppression

hearing that he was a shooter at the scene. He claims that because trial counsel “took no

measures to proactively address [the damaging testimony’s] use and admission at trial,”

Investigator Wardlaw was able to testify at trial that the Petitioner admitted during the

suppression hearing that he was a shooter. The Petitioner contends that trial counsel’s

performance on this issue was both deficient and prejudicial because the State was able to

use his damaging admission against him at trial “to substantiate the charges and to

corroborate [his] extrajudicial statements.” He claims that had trial counsel not elicited

this damaging admission, the outcome of his trial would likely have been different

because his admission was the “most significant evidence implicating [him] as a shooter

at Wilder Place on August 15, 2012.”

During his October 2012 interview with police, the Petitioner admitted to not only

driving the shooters to the August 13, 2012 and the August 15, 2012 shootings but also to

firing shots while at the scene of the August 15, 2012 shooting. Prior to trial, the

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Petitioner filed a motion to suppress all the statements he made to police in October 2012

on the basis that they were the result of threats or coercion. The Petitioner specifically

claimed that he confessed to being a shooter only after the police told him he would be

raped in prison.

At the suppression hearing, Investigator Wardlaw testified that during the October

2012 interview, the Petitioner initially stated that he drove the shooters to the Wilder

Place residence but later admitted that he “actually did shoot there.” On redirect

examination during this hearing, the Petitioner provided the following testimony:

[Trial counsel]: Is the driver in trouble, in your mind, at that time?

[The Petitioner]: No, sir.

[Trial counsel]: So to you, saying, I drove, but I didn’t know what’s

going to happen, that’s not really admitting

involvement, in your mind, is it?

[The Petitioner]: No. Right. Correct.

[Trial counsel]: And that’s what you said [during the interview] in

August?

[The Petitioner]: Correct.

[Trial counsel]: And then, after hearing this rape stuff [from the

police], you started saying, okay, maybe I’m the

shooter?

[The Petitioner]: Correct.

Immediately thereafter, the Petitioner provided the following testimony to the

State during recross-examination:

[The State]: And now, [Petitioner], I just want to make sure I heard

that correctly. Are you telling us that you are

admitting to shooting into D[evante] Nail’s house [at

Wilder Place]?

[The Petitioner]: Yes, sir. I mean, yes, ma’am.

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[The State]: And in August [2012], you admitted that you were the

driver—

[The Petitioner]: Yes, ma’am.

[The State]: —of the vehicle?

And you’re telling us that in October [2012], you

admitted to shooting?

[The Petitioner]: Yes, ma’am.

[The State]: Both times or just once?

[The Petitioner]: Just once.

We conclude that trial counsel’s questioning of the Petitioner, which prompted his

admission to the State that he was a shooter, was not deficient. At the time this testimony

was elicited, the Petitioner had already admitted during his October 2012 interview that

he was one of the shooters, which prompted trial counsel to file a motion to suppress.

The suppression hearing transcript shows that trial counsel questioned the Petitioner

about the police’s coercive tactics before asking the Petitioner whether he confessed to

firing shots at the scene because of this coercion. Trial counsel’s questioning was aimed

at establishing that the Petitioner’s admission to being one of the shooters was

involuntary because he was coerced by the police. Under these circumstances, we

conclude that trial counsel was not deficient in questioning the Petitioner about his

previous admission to police that he fired a gun.

However, we do conclude trial counsel was deficient in failing to proactively

address the use and admission at trial of the Petitioner’s testimony at the suppression

hearing, including his confession to being a shooter. Trial counsel could have easily

requested a ruling from the trial court that any testimony provided by the Petitioner at the

suppression hearing could not be used to determine his guilt and could only be used for

the purpose of determining whether his statement should be suppressed. This could have

been done at the beginning of the suppression hearing or after the Petitioner made his

admission to being a shooter. Obtaining such an order would have prevented the State

from having Investigator Wardlaw testify at trial about the Petitioner’s admission at the

suppression hearing. Although trial counsel likely believed the State would seek to admit

the Petitioner’s October 2012 interview to police, which included his admission to being

one of the shooters, we conclude that trial counsel was, in fact, deficient in failing to

prevent the State from using whatever admissions the Petitioner made at the suppression

hearing.

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However, we conclude that trial counsel’s deficiency did not result in prejudice to

the Petitioner. In light of the Petitioner’s multiple admissions that he drove the shooters

to the scene and the fact that the jury was instructed on criminal responsibility, we

conclude that the Petitioner has failed to establish a reasonable probability that, but for

trial counsel’s conduct regarding this admission, the outcome of trial would have been

different. Although we will more fully discuss this issue in the next section of this

opinion, the Petitioner’s multiple admissions that he drove the shooters to the scene were

more than sufficiently corroborated by other evidence presented by the State at trial,

including the testimony from Brittaney Nail, Officer Hopkins, Investigator Chas Terry,

and Patricia Resig. Because the Petitioner has failed to establish that trial counsel’s

performance as to this issue was prejudicial, he is not entitled to relief.

Failing to Object to Investigator Wardlaw’s Testimony. The Petitioner next

argues that trial counsel was ineffective in failing to object to Investigator Wardlaw’s

testimony at trial concerning the Petitioner’s admission during the suppression hearing

that he was a shooter. The Petitioner contends that trial counsel’s failure to object was

both deficient and prejudicial because, without Investigator Wardlaw’s testimony about

the Petitioner’s admission, the State would have been unable to corroborate his

extrajudicial confession. He also asserts that the theory of criminal responsibility does

not preclude a conclusion of prejudice because the jury rejected the State’s theory of

criminal responsibility for the shooting on August 13, 2012, for which he did not confess

to firing a gun.

At trial, the State asked Investigator Wardlaw what the Petitioner testified to on

May 2, 2013, the date of the Petitioner’s suppression hearing. Investigator Wardlaw

replied that the Petitioner had admitted at that hearing that he was one of the shooters.

The State then asked if the Petitioner’s admission at the hearing was consistent with what

the Petitioner had told him in October 2012, and Investigator Wardlaw surprisingly stated

that it was different because in October 2012, the Petitioner only admitted to being the

driver and never admitted to being a shooter.

In denying relief on this issue, the post-conviction court acknowledged that trial

counsel’s failure to object was deficient but concluded that such deficiency was not

prejudicial because “the State ha[d] sufficiently corroborated the Petitioner’s statement to

police completely independent of [the Petitioner’s] suppression hearing testimony.” In

particular, the post-conviction court referenced Brittaney Nail’s testimony regarding the

problems between Devante Nail and the Petitioner and the evidence showing that

multiple shootings had occurred because of an “ongoing conflict between Mr. Nail and

the Petitioner,” which established a “motive for the Petitioner to commit the crime.”

Moreover, the post-conviction court, recognizing that the jury had been instructed on the

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theory of criminal responsibility, found that “[e]ven if there was no proof that the

Petitioner fired a weapon, he had clearly admitted many times that he participated as a

driver.” Accordingly, the court held that “[t]his proof would be sufficient to support the

convictions even if the Petitioner did not fire a gun.”

On direct appeal, the Petitioner argued that there was no evidence to corroborate

his confessions, and the State countered that the confessions were corroborated by the

Petitioner’s admission at the suppression hearing that he was a shooter. Carlos Campbell,

2015 WL 6155893, at *16. When considering this issue, this court noted that the

Petitioner, at the suppression hearing, admitted not only that he was present for the

shootings but also that he fired shots and that this admission required no independent

corroboration:

Under Tennessee law, “a person cannot be convicted solely on the

basis of an uncorroborated extrajudicial confession.” State v. Bishop, 431

S.W.3d 22, 61 (Tenn. 2014). However, “[a] statement made under oath in

open court . . . requires no independent corroboration.” Id. “An

infrajudicial statement can therefore serve as corroboration for an

extrajudicial one.” Id. (citing 7 John H. Wigmore, Evidence § 2071, at 524

(Chadbourn Rev. 1978)). Here, the Defendant testified at the suppression

hearing that he was not only present for the shootings but actually shot at

the house on Wilder Place.

Id. The court then recognized that when a defendant testifies at a suppression hearing to

assert a constitutional right, that testimony may not be admitted against him at trial on the

issue of guilt unless the defendant fails to make an objection:

When a defendant testifies at a pretrial hearing in an attempt to

vindicate a constitutional right “his testimony may not thereafter be

admitted against him at trial on the issue of guilt unless he makes no

objection.” Simmons v. United States, 390 U.S. 377, 394 (1968) (emphasis

added) (regarding testimony to support a suppression motion on Fourth

Amendment grounds); see also United States v. Garcia, 721 F.2d 721, 723

(11th Cir.1983) (applying Simmons to a pre-trial double jeopardy hearing).

Id. at *17. Applying this law to the facts of the Petitioner’s case, the court then held,

“Trial counsel made no objection to Inv[estigator] Wardlaw’s testimony regarding the

[Petitioner’s] confession during his suppression hearing testimony; therefore, those

statements could be used to corroborate the [Petitioner’s] extrajudicial confessions.” Id.

- 21 -

After reviewing the record, we agree with the post-conviction court’s conclusion

that trial counsel was deficient in failing to object to Investigator Wardlaw’s testimony

concerning the Petitioner’s admission. The court specifically noted that “had an

objection been made by counsel,” Investigator Wardlaw’s testimony would have been

“disallowed.” Under these circumstances, we believe that trial counsel should have

objected and asked for a mistrial when the State elicited Investigator Wardlaw’s

testimony regarding the Petitioner’s admission from the suppression hearing. Having

determined that trial counsel was deficient on this issue, we must next consider whether

trial counsel’s failure to object to Investigator Wardlaw’s testimony was prejudicial.

First, the Petitioner argues that trial counsel’s failure to object was prejudicial

because had he objected, Investigator Wardlaw’s testimony would not have been

admissible against him to corroborate his extrajudicial confessions made to police during

his interviews. He claims that without Investigator Wardlaw’s testimony, there was

insufficient independent evidence presented at trial to corroborate his admission to police

during his interviews that he drove the shooters to the scene on August 15, 2012. We

disagree.

We reiterate that “a person cannot be convicted solely on the basis of an

uncorroborated extrajudicial confession.” Bishop, 431 S.W.3d at 61. The Tennessee

Supreme Court, in adopting the modified trustworthiness corroboration test for

extrajudicial confessions, stated:

When a defendant challenges the admission of his extrajudicial confession

on lack-of-corroboration grounds, the trial court should begin by asking

whether the charged offense is one that involves a tangible injury. If the

answer is yes, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, plus

independent prima facie evidence that the injury actually occurred. If the

answer is no, then the State must provide substantial independent evidence

tending to show that the defendant’s statement is trustworthy, and the

evidence must link the defendant to the crime.

Id. at 58-59 (footnotes omitted).

We do not believe that the two counts of attempted first degree murder against

Brittaney Nail and Darlessa Clemons or one count of employment of a firearm associated

with the August 15, 2012 shooting involved a tangible injury. Accordingly, the State was

required to provide substantial independent evidence tending to show that the Petitioner’s

statement is trustworthy, and the evidence must sufficiently link the Petitioner to the

crime.

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At trial, the State presented the Petitioner’s statement to police that he had driven

the shooters to the Wilder Place residence on August 13, 2012 and August 15, 2012.

Brittaney Nail testified that on August 15, 2012, she was watching movies with Darlessa

Clemons inside the Wilder Place residence when numerous bullets pierced the drywall of

her home. Ms. Nail said that she told the 9-1-1 operator that the Petitioner was

responsible for the August 15, 2012 shooting because Clemons had told her that she

heard the Petitioner’s name “a lot in conversation.” Ms. Nail added that she knew the

Petitioner and Devante Nail “had something between each other.” Officer Hopkins

testified that upon his arrival, he noticed that the inside of the Wilder Place residence

“was riddled with gunshots” and “there were pieces of drywall just scattered all over the

place.” He stated that Darlessa Clemons had “a through and through hole in her shirt”

and a “scratch mark” on her back where he opined that a bullet had nearly struck her.

Investigator Chas Terry testified that he observed “numerous bullet holes throughout the

entire house.” Patricia Resig, an expert in firearm identification, opined that three guns

had been used during the August 15, 2012 shooting. Numerous photographs were

admitted showing the bullet holes and damage that these bullets caused to the residence,

the hole in Clemons’ shirt, and Clemons’ injury. Although the Petitioner contends that

Nail and Clemons were biased against him because they knew about the feud between the

Petitioner and Devante Nail and had reason to embellish or fabricate evidence against

him, we conclude that all of the aforementioned evidence, when viewed together, tends to

show that the Petitioner’s admission to driving the shooters on August 13, 2012 and

August 15, 2012 was trustworthy. We also conclude that there was sufficient evidence

linking the Petitioner to the crime.

Because the Petitioner’s multiple admissions to driving the shooters were

presented and because an instruction on criminal responsibility was given, a rational jury

could have found the Petitioner’s guilty of attempted first degree murder for the August

15, 2012 shooting under the theory of criminal responsibility, even if Investigator

Wardlaw had not testified regarding the Petitioner’s admission at the suppression hearing

that he was a shooter. Accordingly, we conclude that the trial counsel’s failure to object

to Investigator Wardlaw’s testimony was not prejudicial.

Second, the Petitioner asserts that the post-conviction court’s reliance on criminal

responsibility in concluding there was no prejudice was erroneous, given that “the jury

rejected the State’s theory of criminal responsibility for the shootings on August 13,

2012[,] for which there was no confession to discharging a firearm.” The Petitioner

asserts that the only difference between the charges associated with the August 13, 2012

shooting, for which the Petitioner was acquitted of the attempted murder and employment

of a firearm charges, and the charges associated with the August 15, 2012 shooting, for

which he was convicted of two counts of attempted first degree murder and one count of

- 23 -

employment of a firearm, was Investigator Wardlaw’s testimony concerning his

admission during the suppression hearing that he fired shots. The Petitioner asserts that

“the jury verdicts alone are demonstrative of the impact of [his] confession on the

outcome of trial.” He claims that based on these verdicts, “there is a reasonable

probability that but for trial counsel’s failure to object to the introduction of [his]

confession at the suppression hearing, the result of trial would have been different.”

Once again, we disagree with the Petitioner.

We believe the Petitioner over-emphasizes the significance of Investigator

Wardlaw’s testimony about his confession at the suppression hearing. Given the

evidence presented at trial, a rational jury could have found that because the two gunshots

at the residence did not penetrate the interior of the home and because no one was injured

during the August 13, 2012 shooting, it was unreasonable to find the Petitioner guilty of

anything greater than misdemeanor reckless endangerment. A jury could have easily

found that compared to the injuries to person and property associated with the August 15,

2012 shooting, the August 13, 2012 shooting was much less serious. Because there was

substantial independent evidence, other than Investigator’s Wardlaw’s testimony about

the Petitioner’s confession at the suppression hearing, that tended to show that the

Petitioner’s statement that he drove the shooters to the scene was trustworthy and that

sufficiently linked the Petitioner to the crime, we conclude that the Petitioner has failed to

show that trial counsel’s deficiency on this issue was prejudicial.

Severance. The Petitioner also contends that trial counsel was ineffective in not

seeking to sever the charges associated with the August 15, 2012 shooting from the

charges associated with the August 13, 2012 shooting. He asserts that trial counsel’s

failure to request a severance was both deficient and prejudicial because it allowed the

jury to infer guilt based on his propensity to commit crimes against the alleged victims in

this case.

In its order denying relief, the post-conviction court held that both the August 13,

2012 shooting and August 15, 2012 shooting occurred because of an ongoing feud

between the Petitioner and Davante Nail and, therefore, were “part of a larger, continuing

plan or conspiracy.” The court referenced its Rule 404(b) ruling, wherein it held that

although the evidence of the August 13, 2012 shooting and the August 15, 2012 shooting

would be admissible in this trial, the evidence from other incidents was excluded. The

court also held that proof regarding these two shootings would have been admissible in

each case had there been separate trials. Finally, the court held that this evidence was

relevant to the material issue of the Petitioner’s motive or intent for the shootings and that

that the danger of unfair prejudice did not outweigh its probative value. The post-

conviction court also held that even if trial counsel had requested a severance, this

request would have been denied. Consequently, the court held that the Petitioner had

- 24 -

failed to establish that trial counsel’s performance on this issue was deficient and

prejudicial.

Tennessee Rule of Criminal Procedure 8 provides for both mandatory and

permissive joinder of offenses. Two or more offenses shall be mandatorily joined in the

same indictment, presentment, or information if the offenses are: “(A) based on the same

conduct or arise from the same criminal episode; (B) within the jurisdiction of a single

court; and (C) known to the appropriate prosecuting official at the time of the return of

the indictment(s), presentment(s), or information(s).” Tenn. R. Crim. P. 8(a)(1). In

addition, two or more offenses may be permissively joined in the same indictment,

presentment, or information if “(1) the offenses constitute parts of a common scheme or

plan; or (2) they are of the same or similar character.” Tenn. R. Crim. P. 8(b).

A trial court’s decision “to consolidate or sever offenses pursuant to Rules 8(b)

and 14(b)(1) [is] to be reviewed for an abuse of discretion.” State v. Shirley, 6 S.W.3d

243, 247 (Tenn. 1999). In the event that the offenses were permissively joined, “the

defendant has the right to a severance of the offenses unless the offenses are part of a

common scheme or plan and the evidence of one would be admissible in the trial of the

others.” Tenn. R. Crim. P. 14(b)(1). In the event that the offenses were mandatorily

joined, the State or the defendant may file a motion for severance before trial, and the

court must grant this request if “the court finds a severance appropriate to promote a fair

determination of the defendant’s guilt or innocence of each offense.” Tenn. R. Crim. P.

14(b)(2)(A). A trial court must determine whether joinder was mandatory or permissive

before deciding whether to grant or deny a motion to sever.

Pursuant to Rule 8(a)(1)(A), two or more offenses shall be mandatorily joined in

the same indictment if the offenses are “based on the same conduct or arise from the

same criminal episode[.]” Tenn. R. Crim. P. 8(a)(1)(A). Offenses based on the same

conduct involve “a single act that results in a number of interrelated offenses.” State v.

Johnson, 342 S.W.3d 468, 473 (Tenn. 2011). On the other hand, offenses that arise from

the same criminal episode “‘normally are generated by separate physical actions.’” Id. at

474 (quoting 2 ABA Standards for Criminal Justice § 13-1.2 cmt., at 13.10). These

separate physical actions “must occur simultaneously or in close sequence and must

occur in the same place or in closely situated places.” Id. at 475. A gap in time between

these actions “may be sufficient to interrupt the temporal proximity required for a single

criminal episode to exist.” Id. (citing David L. Raybin, Tennessee Criminal Practice and

Procedure § 17:17, at 601).

Here, because there was a gap in time of two days between the shootings, we, like

the post-conviction court, conclude that offenses associated with the August 13, 2012

- 25 -

shooting and the offenses associated with the August 15, 2012 shooting were subject to

permissive joinder. See Tenn. R. Crim. P. 8(b).

The Petitioner, quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App.

1992), asserts that “the suggestion of shared motivation for two otherwise separate crimes

is insufficient under 8(b) and 14(b)(1) to establish a [‘]common scheme or plan.[’]”

However, the record shows these two shootings were part of a common scheme or plan

because they occurred at the same location, took place only two days apart, and were

committed because of the ongoing feud between the Petitioner and Devante Nail.

Moreover, because evidence of each shooting was relevant to the material issue of the

Petitioner’s motive and intent to retaliate against Devante Nail, evidence of the first

shooting would have been admissible in the trial of the second shooting, and vice versa.

Because these shootings were part of a common scheme or plan and because evidence of

one shooting would have been admissible in the trial of the other shooting, the Petitioner

did not have a right to sever the August 13, 2012 offenses from the August 15, 2012

offenses. See Tenn. R. Crim. P. 14(b)(1). This conclusion coincides with the post-

conviction court’s finding that even if trial counsel had requested a severance, it would

have been denied. Consequently, we conclude the Petitioner has not established that trial

counsel’s failure to request a severance was deficient. The Petitioner has also failed to

establish a reasonable probability that, had a motion to sever been filed, the outcome of

his trial would have been different. Accordingly, the Petitioner is not entitled to relief on

this issue.

Missing Witness Instruction. In addition, the Petitioner argues that trial counsel

was ineffective in not requesting a missing witness instruction for Devante Nail, Lakeshia

Reynolds, Darlessa Clemons, and Tamichael Bennett, who were not called by the State to

testify at trial. He asserts that trial counsel’s failure to request this instruction, thereby

emphasizing that these witnesses may have been unfavorable had they been presented by

the State, meant that trial counsel never challenged the strength of the State’s case,

especially Darlessa Clemons’ purported injury.

Tennessee Pattern Jury Instruction 42.16, generally known as the missing witness

instruction, provides in pertinent part:

When it is within the power of the state or the defendant to produce a

witness who possesses peculiar knowledge concerning facts essential to

that party’s contentions and who is available to one side at the exclusion of

the other, and the party to whom the witness is available fails to call such

witness, an inference arises that the testimony of such witness would have

been unfavorable to the side that should have called or produced such

witness. Whether there was such a witness and whether such an inference

- 26 -

has arisen is for you to decide and if so, you are to determine what weight it

shall be given.

7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.16 (2018 ed.) (footnote omitted). This

instruction explains that if a party fails to call a particular witness, an inference may be

drawn that had the witness testified, the testimony would have been unfavorable to that

party. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984).

In denying relief, the post-conviction court found that although trial counsel did

not request a missing witness instruction, he argued several times during closing

argument that the absence of these witnesses should make the jury question the State’s

case. The court, recognizing that Devante Nail had also engaged in criminal behavior,

found that the missing witnesses were never cooperative with the State or the

investigators and that these witnesses were not peculiarly available to the State over the

Petitioner. Finally, the court concluded that because the record did not support the

inclusion of the missing witness instruction, the Petitioner had failed to show that trial

counsel was deficient in not requesting this instruction.

The Petitioner asserts that the equally available provision simply means that “a

witness would be as likely to be favorable to one party as the other.” See David L.

Raybin, Tennessee Criminal Practice and Procedure § 30:17 (2008-09 ed.) (stating that

“where it can be established that a witness is biased against a party and favorable to the

other party, the missing witness rule might apply notwithstanding that the witness could

arguably be summoned by either side”). The Petitioner contends that because Devante

Nail, Lakeshia Reynolds, Darlessa Clemons, and Tamichael Bennett were obviously

biased against him, trial counsel should have filed a written request for the missing

witness instruction.

The Tennessee Supreme Court has held that in order for the missing witness

instruction to be appropriate, “the evidence must show that the witness had knowledge of

material facts, that a relationship exists between the witness and the party that would

naturally incline the witness to favor the party and that the missing witness was available

to the process of the Court for trial.” Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979).

However, this rule is not without limits:

The mere fact that a party fails to produce a particular person who may

have some knowledge of the facts involved does not justify application of

the inference against him. However, when it can be said “with reasonable

assurance that it would have been natural for a party to have called the

absent witness but for some apprehension about his testimony,” an

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inference may be drawn by the jury that the testimony would have been

unfavorable.

Francis, 669 S.W.2d at 88-89 (footnote and citation omitted). In addition, the missing

witness instruction is inappropriate “where the only object of calling such witness would

be to produce corroborative, cumulative, or possibly unnecessary evidence[.]” Dickey v.

McCord, 63 S.W.3d 714, 721 (Tenn. Ct. App. 2001)).

We conclude that any testimony offered by Devante Nail, Lakeshia Reynolds,

Darlessa Clemons, and Tamichael Bennett would have been cumulative to the testimony

offered by Brittaney Nail. Because the record does not show that the aforementioned

witnesses “had unique or otherwise essential information from which a negative

inference might be drawn about the State’s proof,” State v. Melvin Crump, No. M2006-

02244-CCA-R3-CD, 2009 WL 723524, at *42 (Tenn. Crim. App. Mar. 18, 2009), the

missing witness instruction was inapplicable, and trial counsel was not deficient in failing

to request such an instruction. Moreover, as recognized by the post-conviction court, trial

counsel argued multiple times during closing argument that the absence of these

witnesses should make the jury question the State’s case. Consequently, the Petitioner

has also failed to show that trial counsel’s failure to request the missing witness

instruction prejudiced his case. Accordingly, he is not entitled to relief on this issue.

Solicitation Instruction. The Petitioner also asserts that trial counsel was

ineffective in failing to make a written request for an instruction for solicitation of first

degree murder. He claims trial counsel’s failure to request the instruction on solicitation,

which is a lesser included offense of attempted first degree murder, was both deficient

and prejudicial because a reasonable jury “could have inferred from the evidence that

[he] solicited Mr. Lagrone and Mr. Brown to attempt to commit a criminal offense by

driving the individuals to the house on Wilder Place.”

Although the post-conviction court recognized that solicitation of first degree

murder is a lesser included offense of attempted first degree murder, it found that there

“was no evidence presented that the Petitioner in any way commanded, requested, or

attempted to command or request that someone else commit a criminal offense.” The

court held that because it would have been improper to instruct the jury on solicitation of

first degree murder based on the evidence presented at trial, the Petitioner had failed to

establish that trial counsel was deficient in failing to request such an instruction.

A conviction for solicitation of an offense may lie where a person “by means of

oral, written or electronic communication, directly or through another, intentionally

commands, requests or hires another to commit a criminal offense . . . with the intent that

the criminal offense be committed . . . .” Tenn. Code Ann. § 39-12-102(a). Even if an

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offense qualifies as a lesser included offense, “the trial court still must determine whether

the evidence in the particular case merits a jury instruction for that lesser[]included

offense.” State v. Thorpe, 463 S.W.3d 851, 859 (Tenn. 2015) (citing State v. Burns, 6

S.W.3d 453, 467 (Tenn. 1999)).

The Petitioner contends that his trial testimony that he drove two other people to

the Wilder Place home shows that he commanded, requested, or hired individuals to

commit a criminal offense. However, we disagree. At trial, the State presented proof

showing that the Petitioner had committed the offenses of attempted first degree murder

based on his own conduct, or alternatively, based on the conduct of his codefendants

pursuant to a theory of criminal responsibility. See Tenn. Code Ann. § 39-11-402(a)(2)

(“A person is criminally responsible for an offense committed by the conduct of another

if . . . [a]cting with intent to promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to

aid another person to commit the offense[.]”). In response, the Petitioner argued that the

State had not met its burden of proof, that the shots fired during the first incident were

aimed at the cars and not the residence, and that the Petitioner lacked the intent to murder

anyone because he thought no one was home at the time of the second shooting. No

proof was presented that the codefendants fired shots on August 13, 2012 and August 15,

2012 at the Petitioner’s request or that the Petitioner did not participate in the offenses.

Because the record is devoid of proof supporting a solicitation of first degree murder

instruction, the Petitioner has not established that trial counsel’s failure to seek a

solicitation instruction was deficient or that he was prejudiced by this alleged deficiency.

Mitigation at Sentencing. The Petitioner additionally argues that trial counsel

was ineffective in failing to present evidence or argument in support of mitigation at his

sentencing hearing. Specifically, he claims that trial counsel was deficient in failing to

inform him of the State’s notice of its intent to seek enhanced punishment, in failing to

submit a sentencing memorandum, in failing to argue against the State’s request for seven

enhancement factors and for consecutive sentencing, in failing to present any witnesses,

evidence, or argument at the sentencing hearing, and in failing to argue for the mitigating

factors that he played only a minor role in the commission of one of the offenses and that

he lacked substantial judgment in committing the offenses because of his youth. The

Petitioner asserts that trial counsel’s aforementioned deficiencies were prejudicial

because the trial court sentenced him to an effective sentence of forty-six years.

Although the post-conviction court found trial counsel did not file a sentencing

memorandum or present additional evidence at the sentencing hearing, it noted that trial

counsel did argue that the Petitioner did not have an intent to injure the victims, that the

Petitioner did not fire shots during the first shooting, and that the Petitioner should be

granted leniency because of his young age at the time of the offenses. The court also

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recognized that trial counsel had the Petitioner give an allocution during the sentencing

hearing. The post-conviction court held that the enhancement factors outweighed any

mitigating factors and that consecutive sentences were warranted in the Petitioner’s case.

Significantly, the court concluded that because the Petitioner failed to present any

evidence during the post-conviction hearing regarding the proof or argument that trial

counsel should have presented, the Petitioner has failed to establish that trial counsel’s

performance was deficient.

The record shows that trial counsel, who corrected the presentence investigation

report to show that the Petitioner was nineteen rather than twenty-nine, argued that the

trial court should consider the Petitioner’s youth as a mitigation factor, especially given

that he did not have “support from [his] mother or father at all.” In addition, trial counsel

vehemently argued against the application of the enhancement factor (9), that he

possessed or employed a firearm during the commission of the offense, on the basis that

the Petitioner was already “being hammered for it in the charge itself.” See id. § 40-35-

114(9). He argued that employing a firearm is “part and parcel” of the offense of

attempted first degree murder and is “encompassed in a rather severe sentence for the

attempted first” conviction. He also asserted that this enhancement factor should not

apply because the Petitioner was convicted of employing a firearm that resulted in “an

additional mandatory consecutive 85 percent sentence.” Trial counsel asserted that the

Petitioner’s employment of a firearm was being “double and triple” counted in this case.

In addition, trial counsel asserted that enhancement factor (10), that the Petitioner had no

hesitation about committing a crime when the risk to human life was high, was

inapplicable to the attempted first degree murder convictions because it was “part of the

charge” and “goes with the territory.” See id. § 40-35-114(10). Additionally, trial

counsel argued that the Petitioner lacked the intent required for the two attempted first

degree murder convictions, given that he told the police he “didn’t want to shoot

anybody.” He also asserted that because the Petitioner was receiving a mandatory

consecutive sentence for the firearm charge, concurrent sentencing was appropriate

because the Petitioner was going to receive “enough time to learn better ways to get

rehabilitated in prison even at a minimum sentence.” Trial counsel maintained that it

would be “financially beneficial for all concerned” for the “low end [of the sentence to]

be imposed by the Court[,]” which was “still a very significant sentence.” Finally, trial

counsel also ensured that the Petitioner made an allocution in which he said that he “was

truly sorry for what happened,” that he “didn’t shoot on the second time,” and that he did

not “have the heart to hurt anybody.”

We conclude that the Petitioner has failed to show that trial counsel’s conduct at

the sentencing hearing fell “below an objective standard of reasonableness under

prevailing professional norms.” Goad, 938 S.W.2d at 369. Moreover, because the

Petitioner presented no evidence at the post-conviction hearing of what mitigating proof

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or argument trial counsel should have presented at his sentencing hearing, we conclude

that he has has failed to establish that he was prejudiced by trial counsel’s performance.

Accordingly, he is not entitled to relief on this issue.

Motion for New Trial. In addition, the Petitioner contends that trial counsel was

ineffective in failing to include a Rule 404(b) issue regarding the Petitioner’s prior acts in

his motion for new trial, which meant that it was subject to plain error review on direct

appeal. He asserts that trial counsel was deficient in failing to properly preserve this

issue on appeal and counsel’s deficiency prejudiced him because it prevented him from

receiving relief on appeal.

The record shows that several days prior to trial, trial counsel filed a motion for an

order prohibiting the State from using portions of the Petitioner’s statements to police

detectives which referred to “other crimes, alleged bad acts, and ongoing investigations.”

Carlos Campbell, 2015 WL 6155893, at *15. Immediately prior to the start of trial, the

trial court ruled that the prior bad acts contained within the fifty-three-minute excerpt of

the Petitioner’s statement offered by the State at trial were “directly related” to the

Petitioner’s “motive and . . . intent” to commit the charged offenses in the instant case.

The court held that because the “probative value as to motive/intent” outweighed any

“danger of unfair prejudice,” the challenged portions of the statement were admissible at

trial. Later, after the excerpt of the Petitioner’s October 2012 statement was played to the

jury, trial counsel renewed his objection and asked for a mistrial because the excerpted

statement contained references to the uncharged robbery of Devante Nail’s younger

brother and to an officer receiving messages on Twitter indicating that the Petitioner was

responsible for criminal acts. The trial court overruled the objection and denied the

motion for a mistrial. First, the court ruled that the officer’s statements regarding the

messages he received on Twitter were admissible because they concerned the Petitioner

being responsible for the first shooting, for which the Petitioner was on trial. Second, the

court reaffirmed its earlier ruling, stating that the references to the robbery of Devante

Nail’s brother went “directly to motive and intent” because the robbery explained why

the charged offenses at issue in this trial occurred.

When this court reviewed the Rule 404(b) issue for plain error on direct appeal, it

held as follows:

While evidence of a person’s prior bad acts are not admissible to prove his

character and to show that his actions were in conformity with that

character, see Tennessee Rule of Evidence 404(b), otherwise inadmissible

conduct may be offered to prove the motive of the defendant or intent. See

State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003). Here, there was an

ongoing feud between the Defendant and Mr. Nail. We agree with the trial

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court’s conclusion that the robbery of Mr. Nail’s brother was one of several

precipitating events in this feud that led to the shootings and was admissible

to establish the [Petitioner’s] motive and intent. As such, plain error review

of this issue is not warranted.

Id. at *16.

Although the post-conviction court held that trial counsel was deficient in not

raising the Rule 404(b) issue in the motion for new trial, it concluded that the Petitioner

had failed to establish that trial counsel’s deficiency was prejudicial in light of this

court’s conclusion that the robbery of Devante Nail’s brother was admissible to show the

Petitioner’s motive and intent to commit the charged offenses in this case.

In evaluating this issue, we recognize that although trial counsel filed the motion

for new trial, trial counsel passed away in a single car accident before filing the

Petitioner’s brief on direct appeal, and appellate counsel filed the brief and chose the

issues to be presented on appeal. Because trial counsel was deceased at the time of the

post-conviction hearing, he was unable to testify about why he did not include the Rule

404(b) issue in the Petitioner’s motion for new trial, and the Petitioner failed to present

any evidence showing that trial counsel’s failure to include this issue was deficient.

Because the record is devoid of any proof on this issue, we conclude that the Petitioner

failed to provide clear and convincing evidence establishing that counsel’s omission of

the Rule 404(b) issue in the motion for new trial was deficient. As to whether trial

counsel’s alleged deficiency was prejudicial, we wholeheartedly agree with the post-

conviction court’s determination that the robbery of Devante Nail’s brother was

admissible to show the Petitioner’s motive and intent to commit the charged offenses,

precludes a conclusion of prejudice. Because the Petitioner has failed to establish that

trial counsel’s performance on this issue was deficient and this deficiency was

prejudicial, he is not entitled to relief.

No Cumulative Error. The Petitioner also claims that the cumulative effect of all

of trial counsel’s errors deprived him of the effective assistance of counsel. The

cumulative error doctrine “is a judicial recognition that there may be multiple errors

committed in trial proceedings, each of which in isolation constitutes mere harmless

error, but when aggregated, have a cumulative effect on the proceedings so great as to

require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester,

324 S.W.3d 1, 76 (Tenn. 2010). However, the circumstances that would warrant a

reversal of a conviction or sentence “remain rare.” Id. Although we concluded that trial

counsel was deficient on two issues raised by the Petitioner, we also held that these

deficiencies were not prejudicial. In light of the overwhelming evidence of the

Petitioner’s guilt in the form of his multiple admissions that he drove to both the

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shootings, and therefore was criminally responsible for the offenses, the Petitioner has

failed to demonstrate that the cumulative effect of trial counsel’s errors was so great as to

require reversal. Accordingly, we conclude that the Petitioner is not entitled to relief.

II. State Presenting Proof and Argument at Hearing. Finally, the Petitioner

contends that the post-conviction court erred in allowing the State to present proof and

argument at the post-conviction hearing after the State failed to file a response to his

post-conviction petition. He asserts that the post-conviction court’s erroneous ruling

deprived him of a fair hearing, incentivized the State to violate the rules, and gave the

State an unfair tactical advantage because it did not have to disclose its legal position

prior to the post-conviction hearing. The Petitioner seeks a new post-conviction hearing

where the State is required to file a response or is precluded from presenting proof and

argument. In response, the State asserts that the Petitioner has failed provide any law to

support his claim that the appropriate sanction was to preclude the State from arguing or

offering evidence, especially in light of Rule 28, which does not require the imposition of

sanctions. See Tenn. Sup. Ct. R. 28, §5. We conclude that the Petitioner is not entitled to

relief on this issue.

At the post-conviction hearing, the Petitioner objected to the State’s introduction

of certified copies of his judgments for warrants 997935 and 1013362 and its presentation

of testimony from Gary Lamb on the basis that the State had violated Tennessee Supreme

Court Rule 28. When the Petitioner specifically asked that the trial court sanction the

State by precluding it from presenting any proof at the post-conviction hearing, the trial

court replied:

Well, I don’t think that[’s] the appropriate remedy—the [S]tate should have

filed a written response . . . . I don’t think the appropriate remedy would be

to deny [the State] the opportunity to present evidence in response to the

proof that was presented through [the Petitioner] last week. So I’m gonna

admit the sessions warrants, as well as take judicial notice of the technical

record, [and] allow [the State] to present proof.

The Tennessee Post-Conviction Procedure Act states that the “district attorney

shall represent the state and file an answer or other responsive pleading within thirty (30)

days[.]” Tenn. Code Ann. § 40-30-108(a); see Tenn. Sup. Ct. R. 28, §5(G). However,

the State’s failure to file an answer, as contemplated, “shall not entitle petitioner to relief

without proof, but may result in the imposition of sanctions in the exercise of the trial

judge’s discretion.” Tenn. Sup. Ct. R. 28, §5(I); see Tenn. Code Ann. § 40-30-108(a)

(“Failure by the state to timely respond does not entitle the petitioner to relief under the

Post-Conviction Procedure Act.”).

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The record shows that the State did not file a written response to the post-

conviction petition. However, the post-conviction court, in exercising its discretion, held

that it would be inappropriate to issue a sanction that prevented the State from offering

proof and argument at the post-conviction hearing. While we believe that the State’s

failure to file a written answer to the post-conviction petition was unconscionable, we

recognize that decisions regarding whether to impose sanctions and which sanctions to

impose are left to the discretion of the post-conviction court. See Tenn. Sup. Ct. R. 28, §

5(I). Based on this record, we cannot conclude that the post-conviction court abused its

discretion in allowing the State to present evidence at the post-conviction hearing. We

recognize that the State did not offer any unexpected proof at the evidentiary hearing, see

Clifford Leon Farra v. State, No. E2005-00963-CCA-R3-PC, 2006 WL 859202, at *3

(Tenn. Crim. App. Apr. 3, 2006), and that the Petitioner has not shown he was prejudiced

by the State’s failure to file a written response to his petition. Consequently, we conclude

that the Petitioner is not entitled to relief on this issue.

CONCLUSION

Based on the aforementioned authorities and reasoning, the judgment of the post-

conviction court is affirmed.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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