# Coty Shane Smith v. State of Tennessee

> Court of Criminal Appeals of Tennessee · September 22, 2020

URL: https://www.frixlaw.com/law-library/cases/4567805

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** September 22, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge James Curwood Witt, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

09/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 23, 2020

COTY SHANE SMITH v. STATE OF TENNESSEE

Appeal from the Criminal Court for Monroe County
No. 16-167 Sandra Donaghy, Judge

No. E2019-00963-CCA-R3-PC

The petitioner, Coty Shane Smith, appeals the denial of his petition for post-conviction
relief, which petition challenged his guilty-pleaded conviction of second degree murder,
alleging that he was deprived of the effective assistance of counsel. Discerning no error,
we affirm the denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Donald Winder, III, Athens, Tennessee, for the appellant, Coty Shane Smith.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Matthew Dunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Monroe County Grand Jury charged the petitioner with felony murder
and conspiracy to commit aggravated robbery, arising from the March 2012 robbery and
murder of Luther “Luke” Vineyard. State v. Coty Shane Smith, No. E2014-00490-CCA-
R3-CD, slip op. at 1-2 (Tenn. Crim. App., Knoxville, Dec. 26, 2014). Co-defendants
Lorenz Freeman, Joshua Steele, and Jessica Payne were also charged for their participation
in the offenses. Id. Pursuant to a plea agreement, the petitioner pleaded guilty to the lesser
included offense of second degree murder, and the State dismissed the remaining charge.
Id., slip op. at 2. The facts as recited at the plea submission hearing are as follows:

[O]n March the 4th, 2012, that Mr. Freeman, [the petitioner,]
and Ms. Payne had an attempt to go and rob the victim in this
case, a Mr. Vineyard. That they went to his place of residence,
that the female, Ms. Payne, stayed in the vehicle and the two
gentlemen get out. That they approached his residence when
another vehicle shows up and they get spooked and leave and
so there’s no event that happens at that point. They go to a
residence where they get hold of Mr. Steele. At that point,
sometime later on, and Ms. Payne does not return with them,
but Mr. Freeman, [the petitioner], and Mr. Steele go back to
Mr. Vineyard’s residence, and at that point they go in [wearing
masks] and it is Mr. Freeman and Mr. Steele who are the ones
that hold on to the victim Mr. Vineyard and he’s hit in the head
with a piece of iron, a piece of wrought iron, and eventually
dies—
....
[The petitioner] was involved in the planning, [the petitioner]
goes through the house, the house is ransacked looking for
what we expect they were looking for cash, there were some
rumors going around that the victim . . . had a large amount of
cash that was there. After this happens they leave, go back,
and there’s some other conversations that goes on. Fortunately
law enforcement gets on top of this thing fairly quickly and
does a[n] outstanding job of investigating the case and
statements are taken from Mr. Freeman and Mr. Steele, and
Ms. Payne that would support the facts that I’ve outlined to the
court.

Id., slip op. at 2 (first, fourth, fifth, and ninth alterations in original) (footnote omitted).
Prior to his sentencing hearing, the petitioner, through counsel, moved to withdraw his
guilty plea. Id., slip op. at 3. Trial counsel promptly moved to withdraw from
representation, asserting that he had a conflict of interests. Id. The trial court denied
counsel’s motion to withdraw, and after a hearing, the court also denied the petitioner’s
motion to withdraw his guilty plea. Id. The trial court imposed a sentence of 25-years’
incarceration.

In April 2016, the petitioner filed a timely pro se petition for post-conviction
relief, and, after the appointment of counsel, he filed an amended petition. After two
substitutions of counsel, the petitioner filed a second amended petition, alleging, among
other things, numerous instances of deficient performance by trial counsel.

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At the December 2019 evidentiary hearing, trial counsel testified that he was
appointed to represent the petitioner in June 2012. After receiving discovery materials
from the State, counsel met with the petitioner at the jail to review the evidence. Included
in the discovery materials were video recordings of the petitioner’s and co-defendants’
incriminating interviews with law enforcement officers. Trial counsel acknowledged that
the petitioner could not view those materials because no computer was available at the jail
and because he did not bring a laptop with him. He also did not make copies of the video
recordings for the petitioner to keep and attempt to view later. Counsel met with the
petitioner at the jail several other times but made no effort to bring a laptop on his
subsequent visits. Counsel stated, however, that the petitioner “was aware of the contents”
of the recordings because they included the petitioner’s own statement and because he was
provided with summaries of the interviews.

In coordination with the other defense attorneys, trial counsel moved to
suppress the incriminating statements by the petitioner and the co-defendants, which
motion was denied. He moved for interlocutory appeal on the matter. Prior to the
resolution of the interlocutory appeal, the State presented a plea offer, a condition of which
was that the petitioner “waive any appellate rights.”

Trial counsel described his trial preparation as consisting of “dealing with
the evidence that the State was going to introduce against” the petitioner. He considered
hiring an investigator for the case, but ultimately decided against it, although he could not
remember why. Counsel was aware of Detective Brannon’s past conduct that could be
used for impeachment but said that Detective Brannon’s interactions with the petitioner
“were somewhat tangential” because the petitioner’s interviews were conducted by
Tennessee Bureau of Investigation (“TBI”) agents. Counsel could not recall whether the
petitioner had named any potential witnesses that he wanted counsel to interview, but in
January 2013, the petitioner mentioned that he was at Walmart at the time of the offense,
and counsel made a note to himself to look into the matter. Counsel acknowledged that he
did not attempt to obtain any video footage from Walmart, explaining that, in his
experience, “Walmart does not keep video for more than . . . [90] days.” He also noted
that the petitioner did not mention this alibi in his statement to the police. Counsel did not
seek an independent autopsy because “the wounds to . . . the victim’s head were pretty
self[-]explanatory.” He also did not seek independent analysis of a shoe print found at the
crime scene because the TBI’s analysis of the print was inconclusive as to the petitioner.

Trial counsel acknowledged that the discovery materials indicated that the
victim’s neighbor had identified someone who had previously threatened the victim but
that he did not investigate that allegation. He also acknowledged that Dennis Talent had
told the police that Daniel Bookout had said that he could receive a life sentence for what
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happened to the victim, but counsel did not investigate that allegation because “there were
no details in this statement” that indicated that Mr. Talent or Mr. Bookout had helpful
information, noting that the statement indicated that the victim was killed with a gun, but
no gun was actually involved in the offense. Counsel acknowledged that Starla Cooper
had told the police that “she knew that . . . the victim . . . was going to be robbed,” but
counsel did not seek to interview Ms. Cooper because she “wasn’t very specific, who was
going to rob him or anything like that” and because it was “common knowledge” that the
victim “sold pills out of his home, and was reputed to keep large amounts of cash in his
home.”

Trial counsel received the plea offer from the State in early June and relayed
the information to the petitioner on June 11. He explained to the petitioner the terms of the
offer and his sentencing exposure if he should be convicted at trial. Counsel recalled that
the petitioner had difficulty understanding the concept of felony murder, asking “how he
could be guilty of murder if he was not the one who inflicted the . . . injuries” to the victim.
Counsel stated that he was confident that the petitioner understood the proceedings and the
implications of a guilty plea, but the petitioner continued to question how he could be
convicted for murder. The petitioner did not immediately accept the plea offer and
requested his discovery materials. Counsel met with the petitioner on June 19 at the jail
and gave the petitioner all discovery materials, although the petitioner still did not have the
ability to view the video recordings. Counsel also gave the petitioner a letter that
memorialized the discussion that they had on June 11. Before counsel met with the
petitioner, he learned that all the other co-defendants were accepting plea offers. Counsel
explained to the petitioner that the co-defendants would likely testify against him if he went
to trial and advised him to accept the plea offer because he was otherwise facing a life
sentence. Counsel also explained to the petitioner that accepting the plea offer would
require that he give up certain rights, including his right to the interlocutory appeal that
was pending. At that time, the petitioner decided to accept the plea offer.

After the petitioner pleaded guilty but two or three weeks prior to his
scheduled sentencing hearing, the petitioner told trial counsel that he wished to withdraw
his guilty plea because he could not “in good conscience go to prison for something that
somebody else . . . [had] done,” because he did not understand what he was doing when he
entered his plea, and because counsel had failed to advise him of the implications of his
plea. Counsel moved to withdraw the plea at the petitioner’s request, and he also moved
to withdraw as counsel, believing that he had a conflict of interests because the petitioner
intended to present a claim that counsel’s representation was deficient at the plea stage of
the proceedings. The State had also indicated that it would call trial counsel as a witness
in a hearing on the plea withdrawal motion. Before moving to withdraw from
representation, counsel contacted the Board of Professional Responsibility about the matter
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and followed their advice to withdraw as counsel. The trial court denied counsel’s motion
to withdraw, ordering him to continue representing the petitioner during the plea
withdrawal hearing. At that point, counsel requested a continuance of the hearing, noting
that, because of the conflict of interests, he had not prepared the petitioner to testify. The
trial court denied the motion, and the hearing proceeded that day.

At the hearing on the motion to withdraw the plea, the petitioner did not
express any displeasure with counsel’s representation, and the trial court denied the motion.
Counsel then met with the petitioner to prepare for the sentencing hearing, discussing what
witnesses, if any, the petitioner wished to call and his appeal options after sentencing. The
petitioner decided that he did not want to call any witnesses. Counsel discussed appealing
the length of the sentence with the petitioner, but he did not provide the petitioner with a
draft of the appellate brief because he “was running out of time” to file it. Counsel stated
that he did not raise the denial of the motion to withdraw as counsel on appeal because the
petitioner had not alleged any deficiency in counsel’s representation at the motion hearing.
He also did not appeal the denial of the motion to withdraw the plea because he did not
believe there was any basis on which to do so.

During cross-examination, trial counsel testified that because of the
petitioner’s statement to the police, in which he detailed the offense, counsel believed that
it would be difficult to argue an alibi defense, particularly since the petitioner did not raise
his alibi in his interviews with law enforcement. Additionally, each co-defendant and
another witness placed the petitioner at the scene. If the petitioner had gone to trial, counsel
believed that the State’s case “would have been very strong” and that the co-defendants
would testify that the robbery was the petitioner’s idea. Counsel stated that the TBI had
investigated Mr. Talent’s statement and had summarized their findings in a report,
concluding that Mr. Bookout had not implicated himself in the offenses. The TBI had also
investigated other potential suspects. Counsel stated that he was less concerned with the
vague statements of witnesses about other potential suspects than he was about the
defendant’s incriminating statements. Counsel questioned Detective Brannon and Ms.
Cooper at the suppression hearing.

Trial counsel stated that he prepared for the plea withdrawal hearing by
researching the legal standard to prevail on such a motion and by explaining to the
petitioner that he would question him about his satisfaction with counsel’s representation.
Counsel told the petitioner that he should “say what you have to say, that you think fairly
represents what you think is the truth” regarding his representation. In the motion hearing,
the petitioner did not make any allegation of deficient representation by counsel and instead
indicated that he entered his plea under duress and pressure from the significant sentencing
exposure he faced if convicted at trial. Based on the petitioner’s testimony, counsel
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believed he had no legal grounds on which to appeal the denial of the motion. On appeal
of the petitioner’s sentence, counsel challenged the trial court’s application of enhancement
factors and the length of the sentence. Counsel was aware that the petitioner attempted to
file a pro se notice of appeal, raising additional issues, but counsel stated that the petitioner
asserted evidence that was not in the record and could not have served as the basis of an
appeal.

The petitioner testified that he had asked trial counsel to investigate “[a]libi
issues, location issues, [and] text message issues,” asserting that security footage from
Walmart would have shown that he was at the store at the time of the offenses. He asserted
that text messages between him and co-defendant Freeman would show that co-defendant
Steele had returned to the crime scene after the robbery. The petitioner stated that counsel
failed to do any investigation other than review the discovery materials despite the
petitioner’s telling him of other potential suspects and potentially exonerating statements
by witnesses. The petitioner said that he wanted counsel to seek additional analysis of the
footprint found at the scene to potentially prove that it belonged to someone else. He also
said that counsel failed to tell him that he could request funds to hire an investigator or
expert witness to aid in the defense. He asserted that counsel was focused on the potential
felony murder conviction rather than “actually investigating the facts of the case” and
developing a theory of defense for trial.

The petitioner said that he was unable to view certain electronic discovery
materials prior to entering his plea because, although he asked counsel to bring a computer
to the jail, counsel never did so. The petitioner stated that upon review of those materials
sometime later, he discovered numerous issues that would have caused him to reject the
plea offer and go to trial. The petitioner said that, during his plea submission hearing, he
“didn’t understand anything to do with the actual court” and that he did not know at that
time that trial counsel had not done what he should have in his representation. The
petitioner consented to counsel’s moving to withdraw prior to the plea withdrawal hearing
because he believed that counsel had a conflict of interests. He stated that counsel was not
prepared for the hearing and had not provided him with the questions that counsel intended
to ask or the standards the petitioner had to meet to succeed on the motion.

The petitioner stated that he had asked counsel to call his grandmother and
great uncle as witnesses at the sentencing hearing, and although both were present at the
hearing, counsel failed to call them and did not explain why. Counsel wrote the petitioner
a letter, stating that it was not worthwhile to pursue an appeal of the denial of his motion
to withdraw as counsel or the motion to withdraw the guilty plea, but he did not explain
why he would not pursue those issues. Counsel did not meet with the petitioner after the
sentencing hearing to prepare the appeal, and the petitioner stated that he was not given an
-6-
opportunity to participate in his appeal. The petitioner pursued a pro se appeal because
counsel “told me he wasn’t gonna file an appeal.” He did not receive a copy of the appellate
brief until after it was filed. The petitioner contended that counsel’s conflict of interests
persisted through the appeals process, and, accordingly, counsel did not provide adequate
representation.

During cross-examination, the petitioner acknowledged that he told the
police that he planned the robbery, kicked in the victim’s door, and saw co-defendant Steele
hit the victim with a lead pipe, but he stated that little physical evidence tied him to the
scene. He was aware that counsel sought to have his incriminating statements suppressed.
The petitioner recalled that, at his plea withdrawal hearing, he testified that he “had a
change of heart” about his plea and should not have been convicted of second degree
murder because he did not take part in the victim’s death. He acknowledged that the fear
and duress that he claimed caused him to plead guilty stemmed from the sentencing
exposure he faced if convicted at trial.

TBI Special Agent Josh Melton interviewed the petitioner three days after
the victim’s death but had “technical difficulties” during the interview, causing him to
record only a portion of the petitioner’s statements. After the technical issues were
resolved, he asked the petitioner to repeat the portions of his statement that had not been
recorded, and the petitioner asserted his right to counsel at that time, “and the conversation
only lasted a period of time after that.” Special Agent Melton said that during the interview,
the petitioner implicated himself in the attempted robbery and, although he identified co-
defendant Steele as having been the one to strike the victim, he indicated that “he was there
and did participate in the acts . . . that caused [the victim’s] death.” At no point did the
petitioner indicate that he had an alibi or that co-defendant Steele had returned to the
victim’s house after the robbery.

At the close of the evidence, the post-conviction court accredited trial
counsel’s testimony over that of the petitioner and made findings of fact on the record. The
court found that counsel failed to facilitate the petitioner’s review of the electronic
discovery materials but that counsel had provided the petitioner with the TBI summary
reports of the recorded interviews and that the petitioner “had the benefit of all the
information.” The court also found that although counsel did not investigate the alleged
statements of potential witnesses, he had the report of the TBI’s investigation of Mr.
Bookout’s statements, and counsel questioned Ms. Cooper at the suppression hearing.
Additionally, the court found that counsel investigated Detective Brannon’s potentially
impeachable conduct and questioned him at the suppression hearing. The court found that
the petitioner did not notify counsel of his potential alibi until six or seven months into the
case and that counsel did not seek the Walmart video footage because it was his experience
-7-
that Walmart did not preserve the recordings beyond three months. The court concluded
that counsel’s decisions to not pursue the alleged text messages or additional analysis of
the shoe print were strategic because the petitioner had already made incriminating
statements, placing himself at the scene, and an inconsistent statement in the texts could
have been used against the petitioner at trial.

In its written order denying relief, the post-conviction court concluded that
the petitioner failed to establish that counsel’s failure to appeal the denials of the motion to
withdraw as counsel and the motion to withdraw the guilty plea and continuing
representation despite a conflict of interests constituted deficient performance. The court
determined, at any rate, that the petitioner failed to establish that he was prejudiced by
counsel’s performance. As to the claim that counsel failed to sufficiently investigate the
case, the court concluded that because the petitioner failed to present what evidence
counsel could have discovered with additional investigation at the post-conviction hearing,
he could not prevail on that claim. Additionally, the court concluded that counsel’s
decision to forgo the use of an investigator or expert witness was a reasonable, tactical
decision. Although the court found that trial counsel’s failure to facilitate the petitioner’s
viewing of the electronic discovery materials constituted deficient performance, the court
concluded that the petitioner failed to establish that he was prejudiced by counsel’s actions.

In this timely appeal, the petitioner reasserts that he was deprived of the
effective assistance of counsel by trial counsel’s failing to independently investigate the
case, failing to facilitate his review of electronic discovery materials, continuing in
representation despite an ongoing conflict of interests, and failing to properly appeal all of
the issues.

We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
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clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

Here, the petitioner has failed to carry his burden to prove by clear and
convincing evidence sufficient facts to support his claim that trial counsel’s representation
was deficient. First, the petitioner failed to show what evidence trial counsel could have
discovered if he had conducted further investigation in the case. Although the petitioner
contends that additional investigation by counsel could have established his alibi or
revealed beneficial witnesses, the petitioner failed to present this undiscovered evidence at
the post-conviction hearing. Generally, a petitioner fails to establish his claim that counsel
did not properly investigate or call a witness if he does not present the witness or evidence
to the post-conviction court because a post-conviction court may not speculate “on the
question of . . . what a witness’s testimony might have been if introduced” at trial. Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.”)
Consequently, this claim lacks merit.

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As to the issue of counsel’s failing to facilitate the petitioner’s review of
electronic discovery materials, we agree with the post-conviction court that the petitioner
failed to show that he was prejudiced by counsel’s actions. Trial counsel’s accredited
testimony established that the petitioner was aware of the contents of the materials, and
one of the recordings was of the petitioner’s own statement. The petitioner did not put on
any proof as to what information these recordings contained that he did not already know
that would have caused him to reject the plea offer, and, accordingly, failed to establish
that he was prejudiced in this matter.

Next, as to the petitioner’s claim that trial counsel performed deficiently by
continuing to represent him despite an ongoing conflict of interests, counsel’s accredited
testimony established that counsel sought to withdraw from the case because he anticipated
a conflict of interests, but the trial court denied his motion. Additionally, the petitioner’s
testimony at the hearing on his motion to withdraw his plea revealed that no conflict of
interests actually existed because the petitioner was not attacking the validity of his plea
on any alleged deficiency of counsel. Because counsel did, indeed, attempt to withdraw
from representation, the petitioner cannot show that counsel performed deficiently on this
issue.

Finally, trial counsel’s accredited testimony established that he did not appeal
the denial of the motion to withdraw as counsel because the petitioner did not allege any
deficiency of counsel at the plea withdrawal hearing. Similarly, he did not appeal the denial
of the motion to withdraw the petitioner’s plea because he did not find any legal basis on
which to do so. Additionally, the petitioner has failed to show how he could have achieved
a different outcome on appeal had counsel showed him a draft of the appellate brief before
filing it. Consequently, the petitioner has failed to establish that he was deprived of the
effective assistance of counsel on appeal.

Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4567805. Public record. Not legal advice.