Dondre Johnson v. State of Tennessee

03/16/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 4, 2020

DONDRE JOHNSON V. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 14-01032 Chris Craft, Judge

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No. W2019-00741-CCA-R3-PC

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The Petitioner, Dondre Johnson, was convicted of first degree felony murder and

received a life sentence. He filed a post-conviction petition, asserting that he received

ineffective assistance of counsel because his trial counsel did not file a motion to

suppress the evidence stemming from his seizure. After a thorough review of the record,

we affirm the post-conviction court’s judgment denying relief.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.

GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Terrell Tooten, Cordova, Tennessee, for the appellant, Dondre Johnson.

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

Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Petitioner’s conviction is the result of his participation in an attempted

robbery and the fatal shooting of an innocent victim in downtown Memphis on August

12, 2013. Law enforcement apprehended the Petitioner and two co-defendants in a

vehicle shortly after the crime, and the State’s evidence consisted in part of evidence

obtained in the course of the seizure, including physical evidence recovered from the

vehicle and inculpatory statements made by the Petitioner and one of the co-defendants,

Ms. Jerrica Norfleet.

Trial

Three bystanders witnessed the murder and testified at trial. One testified that he

heard a gunshot and saw a man flee into a car; another testified that she saw the shooting

and witnessed two men jump into a light green or gray Pontiac; the third testified that she

heard a shot and saw a woman and two men flee in a “‘green Grand Am.’” State v.

Dondre Johnson, No. W2015-02401-CCA-R3-CD, 2017 WL 937661, at *1 (Tenn. Crim.

App. Mar. 8, 2017).

The Petitioner and his two co-defendants were apprehended shortly thereafter by

Officer Ashton Britton of the Memphis Police Department, who testified that he had

received a call on his radio alerting him about the shooting and describing the vehicle.

Id. at *2. Our opinion on direct appeal summarized his testimony regarding the seizure

as follows:

Officer Britton proceeded to the nearby Foote Homes area to drive around

and look for the car. In the parking lot of the Foote Homes apartment

complex, Officer Britton saw a car with its parking lights on. Officer

Britton testified that, in his experience, this was unusual, and there had

been a lot of recent car break-ins in the area, so he proceeded to investigate

further. Officer Britton testified that the car appeared to be unoccupied but,

upon approaching the car, he saw “the top of an individual’s head, duck

down into the vehicle.” Officer Britton then drew his gun and told the

individuals in the car to put their hands up. At that point, Officer Britton

testified that he realized their car matched the description of the earlier

broadcast and he called for backup. Officer Britton testified that the

individual in the front seat kept dropping his hands and the individual in the

back seat attempted to get out of the car. Officer Britton testified that he

told them if they got out of the car he would shoot them. Officer Britton

identified the [Petitioner] at trial as the individual sitting in the back

passenger seat who tried to open the door.

Id.

As a result of the seizure and subsequent search of the vehicle, the State obtained a

wealth of information implicating the three in the murder. A weapon found in the vehicle

was determined to have fired the shot which killed the victim. Id. at *4. The vehicle also

contained a ski mask. Id. at *2. Ms. Norfleet, who was the girlfriend of co-defendant

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Mr. Mario Patterson and who was charged as an accessory after the fact, gave a statement

to police and testimony at trial regarding the events that led to the crime, including the

fact that the Petitioner and Mr. Patterson were looking to commit a robbery, that they had

initially targeted and then rejected other randomly chosen victims, that the Petitioner was

wielding the gun, and that the Petitioner summarized the shooting by saying, “‘That

n**** said, get the [f***] out of here, I should have got personal and shot that n****

three more times.’” Id. at *3. Ms. Norfleet also identified a photograph she had taken on

her cell phone which depicted the Petitioner wearing the ski mask and holding the gun

immediately before the murder. Id. at *2. She stated she had seen the Petitioner once or

twice but was not acquainted with him prior to that night. Id.

After he was apprehended, the Petitioner gave a statement acknowledging that he

and the co-defendants were attempting to rob the victim and that he shot the victim. Id.

at *3-4. According to the Petitioner’s statement, the Petitioner decided to flee in the

middle of the attempted robbery, and the gun discharged as the Petitioner was beginning

to flee. Id. at *4. The Petitioner also stated that Mr. Patterson had given him the gun and

mask because Mr. Patterson needed money. Id.

The jury convicted the Petitioner of first degree felony murder, and he received a

life sentence. Id. at *5. On appeal, he challenged the sufficiency of the evidence, and

this court affirmed the conviction. Id. at *6.

Post-Conviction Proceedings

The Petitioner filed a post-conviction petition alleging various errors on the part of

trial counsel. He was appointed post-conviction counsel and filed an amended petition

incorporating his pro se petition and asserting that he received ineffective assistance of

counsel because trial counsel did not move to suppress all of the evidence which resulted

from Officer Britton’s seizure of the suspects and the vehicle.

At the hearing, trial counsel testified that she did not recall whether she had filed a

motion to suppress and that the record would reflect whether she did. She stated that her

general practice was to speak to clients about the circumstances of their arrest or any

statement and to file a motion to suppress if she thought there were grounds to challenge

the evidence, and she testified that she followed that practice in this case. She recalled

that several witnesses had described the vehicle and that a description of the vehicle was

released to law enforcement. Trial counsel testified that Officer Britton’s initial reason

for approaching the vehicle, which was backed into a parking spot, was that the lights

were on in the middle of the night, and she recalled that Officer Britton subsequently saw

movement in the car.

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Trial counsel stated that Ms. Norfleet made a statement to police “[a]lmost

immediately upon arrest.” Law enforcement obtained a warrant to search the vehicle and

recovered the mask, gun, and other items. A copy of the search warrant for a gray

Pontiac Grand Am was introduced at the post-conviction hearing.

Trial counsel elaborated that she saw no legal basis to file a motion to suppress. In

particular, she noted that the Petitioner had no standing to contest the search of the

vehicle, which was owned by Ms. Norfleet, who was also the driver.

Trial counsel noted that the Petitioner was initially represented by the capital

defense team and that she had access to the capital defense team’s investigation into the

case. Trial counsel attempted to depict the Petitioner as less culpable than Mr. Patterson

because Mr. Patterson had supplied the gun and mask, and trial counsel attempted to

attack the credibility of Ms. Norfleet, who claimed she did not know that the others were

planning a robbery. Trial counsel recalled that the photograph was particularly damaging

and that the crime came across as an act of senseless and random violence because the

victim was a college student walking from a restaurant to his car. The State did not make

any plea offers.

The Petitioner testified that he was arrested in the back seat of the vehicle and that

the vehicle was parked and not running. When the officer saw them in the car, the officer

drew his gun and told them he would shoot if they moved. The Petitioner testified that no

motion to suppress was filed in his case and that all the statements to law enforcement

were made after he and his co-defendants were arrested in the vehicle. He agreed that the

car belonged to Ms. Norfleet and that she was driving. He also agreed that he ducked

down when he saw Officer Britton and that he was informed of his rights before he gave

his statement.

The post-conviction court conducted a thorough and detailed analysis of the

Petitioner’s post-conviction claims. Regarding the sole issue raised on appeal, the failure

to file a motion to suppress, the post-conviction court concluded that the physical

evidence was obtained pursuant to a warrant and that the Petitioner had no expectation of

privacy in the vehicle. The post-conviction court also concluded that Officer Britton had

reasonable suspicion to support an investigatory detention based on the fact that the

vehicle was stopped with its lights on and based on his observation that there were

individuals concealing themselves inside the vehicle. The court determined that there

was probable cause to detain the suspects once Officer Britton realized the vehicle and

occupants matched the description of those involved in the robbery and shooting.

Accordingly, the post-conviction court concluded that the motion to suppress would have

been denied and that the Petitioner had not established deficiency or prejudice.

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ANALYSIS

The Post-Conviction Procedure Act provides for relief when a petitioner’s

conviction or sentence is void or voidable due to the abridgment of a right guaranteed by

the United States Constitution or by the Tennessee Constitution. T.C.A. § 40-30-103.

The Petitioner here claims that his sentence is voidable because he received ineffective

assistance from his trial counsel. A claim of ineffective assistance of counsel is a mixed

question of law and fact. Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016). An

appellate court reviews de novo with no presumption of correctness the post-conviction

court’s conclusions of law, its determinations of mixed questions of law and fact, and its

application of law to factual findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.

2015). The post-conviction court’s factual findings are conclusive on appeal unless the

record preponderates otherwise. Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). An

appellate court does not reweigh or reevaluate the evidence or substitute its own

inferences for those of the fact-finder. Kendrick, 454 S.W.3d at 457. On appeal, we

defer to the post-conviction court’s findings regarding witness credibility, the weight and

value of witness testimony, and the resolution of factual issues presented by the evidence.

Id. The petitioner bears the burden of demonstrating the allegations of fact entitling him

to relief by clear and convincing evidence. T.C.A. § 40-30-110(f).

A person accused of a crime is entitled to the assistance of counsel in criminal

proceedings under the Sixth Amendment to the United States Constitution and under

article I, section 9 of the Tennessee Constitution. These provisions guarantee the

reasonably effective assistance of counsel. Nesbit, 452 S.W.3d at 786. The deprivation

of this right is a cognizable claim under the Post-Conviction Procedure Act. Moore, 485

S.W.3d at 418. To prevail on a claim, the petitioner must show that trial counsel’s

representation “‘so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.’” Felts v. State, 354 S.W.3d

266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). In

order to demonstrate that he received ineffective assistance of counsel, a petitioner must

show both that trial counsel performed deficiently and that the deficient performance

prejudiced the defense. Nesbit, 452 S.W.3d at 786 (citing Strickland, 466 U.S. at 687).

Failure to prove either deficiency or prejudice precludes relief, and the court need not

address both components if the petitioner has failed to make a showing on either. Calvert

v. State, 342 S.W.3d 477, 486 (Tenn. 2011).

To show deficient performance, a petitioner must demonstrate that “‘counsel’s

representation fell below an objective standard of reasonableness’ guided by

‘professional norms’ prevailing at the time of trial.” Felts, 354 S.W.3d at 276 (quoting

Strickland, 466 U.S. at 688). In other words, the petitioner must demonstrate that

counsel’s errors were “‘so serious that counsel was not functioning as the “counsel”

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guaranteed the defendant by the Sixth Amendment.’” Id. (quoting Strickland, 466 U.S. at

687). Counsel’s performance is not measured by “‘20-20 hindsight.’” Id. at 277 (quoting

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Instead, the court applies a strong

presumption that counsel’s performance was within the bounds of reasonable

professional assistance. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009).

“‘[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.’” Kendrick, 454 S.W.3d at 458

(quoting Strickland, 466 U.S. at 690-91).

To show prejudice, a petitioner must establish that there is “‘a reasonable

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

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Felts, 354 S.W.3d at 277 (quoting Strickland,

466 U.S. at 694). The question at its core is “‘whether counsel’s deficient performance

renders the result of the trial unreliable or the proceeding fundamentally unfair.’”

Kendrick, 454 S.W.3d at 458 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).

The Petitioner’s sole issue on appeal is the assertion that trial counsel provided

ineffective assistance when she did not file a motion to suppress the evidence obtained as

a result of Officer Britton’s seizure. “In order to succeed in proving ineffective

assistance of counsel with respect to counsel’s failure to file a motion to suppress the

evidence, [a petitioner] must satisfy both prongs of the Strickland test, showing that

counsel’s failure to file the motion was deficient and that the deficient performance

prejudiced the defense.” Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006), abrogated

on other grounds by Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn. 2018). Accordingly,

the Petitioner must demonstrate a reasonable probability that, had the motion been filed,

the outcome of the proceeding would have been different. See Kimmelman v. Morrison,

477 U.S. 365, 375 (1986) (“[T]he defendant must also prove that his Fourth Amendment

claim is meritorious and that there is a reasonable probability that the verdict would have

been different absent the excludable evidence in order to demonstrate actual prejudice.”);

Gary Randall Yarnell v. State, No. E2004-01762-CCA-R3-PC, 2005 WL 1981471, at *5

(Tenn. Crim. App. Aug. 15, 2005) (“To prevail on either or both of these ineffective-

assistance complaints, the petitioner must demonstrate that the motions were

meritorious.”).

Insofar as the Petitioner asserts trial counsel should have challenged the physical

evidence recovered from the vehicle, we conclude that trial counsel’s decision not to file

a motion to suppress was not deficient or prejudicial because the Petitioner lacked

standing to contest the search. When the accused moves to suppress evidence based on a

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search, he or she bears the burden of establishing standing to challenge the search, or a

reasonable expectation of privacy in the place or thing being searched. State v. Oody,

823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (concluding that the driver of the vehicle

had a reasonable expectation of privacy in the vehicle). In evaluating whether the

accused has standing to contest a search, we examine: 1) ownership of the property; 2)

whether the accused has a possessory interest in the item seized; 3) whether the accused

has a possessory interest in the place searched; 4) whether the accused has a right to

exclude others from that place; 5) whether the accused has demonstrated a subjective

expectation that the place would remain free from governmental invasion; 6) whether the

accused took normal precautions to maintain privacy; and 7) whether the accused was

legitimately on the premises. Id. (citing United States v. Haydel, 649 F.2d 1152 (5th Cir.

1981)).

The Petitioner was a passenger who had no ownership or possessory interest in the

car, was not driving the car, asserted no possessory interest in the property seized, and

presented no evidence of a subjective expectation of privacy in or ability to exclude

individuals from the car, which belonged to Ms. Norfleet, with whom he was not

acquainted prior to the night of the crime. We conclude the Petitioner did not have

standing to contest the search of the vehicle. See State v. Marvin Wendell Kelley, No.

M2011-02260-CCA-R3-CD, 2013 WL 5827646, at *6 (Tenn. Crim. App. Oct. 29, 2013)

(concluding that the defendant lacked standing to contest the search of the trunk of a

vehicle in which he was a mere passenger); State v. Maurice Lashaun Nash, No. W2001-

01703-CCA-R3-CD, 2002 WL 1905328, at *4 (Tenn. Crim. App. Aug. 14, 2002) (a

passenger who had no possessory interest in the car and who presented no evidence of a

subjective expectation of privacy could not challenge the search), rev’d on other grounds

by State v. Nash, 104 S.W.3d 495 (Tenn. 2003); State v. James David Lamor Perry, No.

E1999-00271-CCA-R3-CD, 2000 WL 1246577, at *5 (Tenn. Crim. App. Sept. 5, 2000)

(concluding that a passenger with no ownership or possessory interest who presented no

evidence of a subjective expectation of privacy did not have standing to challenge the

search of the vehicle); State v. McAdams, 640 S.W.2d 49, 51 (Tenn. Crim. App. 1982)

(the occupants of a vehicle had no standing to contest search when they did not assert any

ownership of the vehicle or of the items seized and showed no reasonable expectation of

privacy in the vehicle)). Accordingly, any motion to suppress would not have resulted in

the suppression at the Petitioner’s trial of the gun which was identified as the weapon

used in the murder or of the photograph of the Petitioner wearing a mask and wielding

the gun shortly before the crime.

Likewise, the Petitioner would not have succeeded in a challenge to the legality of

Ms. Norfleet’s seizure or to her subsequent testimony. See State v. Strickland, 532

S.W.2d 912, 923 (Tenn. 1975) (concluding that the petitioners lacked standing to

challenge a co-defendant’s confession and subsequent testimony because “[i]llegally

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obtained evidence may be used against one whose rights were not violated in the seizure

of that evidence” and the co-defendant’s testimony was “an independent act of his own

free will sufficient to ‘purge the primary taint’ of the unlawful arrest and subsequent

confession”); State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL

2733821, at *5 (Tenn. Crim. App. Aug. 31, 2009) (quoting United States v. Padilla, 508

U.S. 77, 81-82 (1993), for the proposition that “‘suppression of the product of a Fourth

Amendment violation can be successfully urged only by those whose rights were violated

by the search itself, not by those who are aggrieved solely by the introduction of

damaging evidence’”); 3 Crim. Proc. § 9.1(a) n.5 (4th ed.) (“As for seizure of a person,

one person lacks standing to object to the seizure of another person.”); see also State v.

Austin, 87 S.W.3d 447, 479 (Tenn. 2002) (concluding that “[a] criminal defendant lacks

standing to complain of the violation of a third party’s Fifth Amendment privilege against

self-incrimination” because the right is “personal and cannot be vicariously asserted”)

(appendix). We conclude that trial counsel’s decision not to file a motion to suppress this

evidence was neither deficient nor prejudicial because Ms. Norfleet testified at trial and

because the Petitioner lacked standing to contest the search or the seizure at issue.

The Petitioner also asserts that trial counsel should have challenged the

admissibility of the Petitioner’s own inculpatory statements based on the alleged

illegality of the seizure. However, we conclude that the Petitioner cannot show prejudice

resulting from trial counsel’s actions. The proof at trial established that the victim was

murdered and that one eyewitness saw a man get into a car, another eyewitness saw the

shooting and saw two men get into a light green or gray Pontiac, and a third eyewitness

saw a woman and two men flee in a “‘green Grand Am.’” The Petitioner and the two

co-defendants, a man and a woman, were apprehended shortly after the crime in a nearby

area attempting to conceal themselves in a gray Pontiac Grand Am. The vehicle

contained the gun used to murder the victim and a photograph of the Petitioner, wielding

the gun and wearing a ski mask, taken shortly before the crime. Ms. Norfleet gave a

statement to police and testified that the Petitioner and Mr. Patterson had planned a

robbery, that the Petitioner was in possession of the gun, and that the Petitioner

acknowledged to her that he shot the victim during the attempted robbery. The Petitioner

was convicted of felony murder committed in the perpetration of attempted robbery. We

conclude that there is not a reasonable probability that the results of the proceeding would

have been different had the Petitioner’s inculpatory statement been excluded. See Davis

v. State, 912 S.W.2d 689, 700 (Tenn. 1995) (concluding that the petitioner failed to

establish that the suppression of his statement would have affected the verdict, especially

in light of the strong physical evidence against him); Edgar Ray Bettis v. State, No.

M2017-01845-CCA-R3-PC, 2018 WL 3342830, at *7 (Tenn. Crim. App. July 9, 2018),

perm. app. denied (Tenn. Nov. 14, 2018) (concluding that the petitioner did not show a

reasonable probability that the suppression of his statement would have affected the

outcome of the trial, given the physical evidence implicating him); Broderick Joseph

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Smith v. State, No. M2012-02705-CCA-R3-PC, 2013 WL 5701657, at *8 (Tenn. Crim.

App. Oct. 18, 2013) (there was no prejudice in the failure to file a motion to suppress

when there was substantial evidence against the petitioner). Because the Petitioner has

not shown prejudice, he is not entitled to relief.

CONCLUSION

Based on the foregoing facts and analysis, we affirm the post-conviction court’s

judgment.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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