Garrick Graham v. State of Tennessee

05/04/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 31, 2021

GARRICK GRAHAM v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sullivan County

No. C67396 James F. Goodwin, Jr., Judge

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No. E2020-00775-CCA-R3-PC

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Garrick Graham, Petitioner, appeals the post-conviction court’s denial of post-conviction

relief. After a thorough review of the record and applicable law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J. and TIMOTHY L. EASTER J., joined.

Nicholas A. Schaefer (on appeal) and David Barnette (at hearing), Kingsport, Tennessee,

for the appellant, Garrick Dionte Graham.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant

Attorney General; Barry P. Staubus, District Attorney General; and Lewis Combs, Jr.,

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

OPINION

Procedural History

Following eight controlled drug buys by a confidential informant (the “CI”) over

period of approximately nine weeks during 2011, Petitioner and his codefendant were

charged by presentment with numerous drug offenses. Petitioner was convicted of sixteen

offenses by a jury, and following a sentencing hearing, the trial court imposed an effective

sentence of thirty-seven years’ incarceration. The convictions and sentences were affirmed

on direct appeal. The direct appeal opinion summarized the convictions and sentences as

follows:

Specifically, Defendant Graham was convicted of three counts of delivery of

.5 grams or more of cocaine (counts 1, 3, 5), three counts of sale of .5 grams

or more of cocaine (counts 2, 4, 6), delivery of .5 grams or more of cocaine

within 1,000 feet of a recreation center (count 7), sale of .5 grams or more of

cocaine within 1,000 feet of a recreation center (count 8), facilitation of

delivery of .5 grams or more of cocaine within 1,000 of a school (count 9),

facilitation of .5 grams or more of cocaine within 1,000 feet of a school

(count 10), facilitation of delivery of .5 grams or more of cocaine within

1,000 feet of a daycare (count 11), facilitation of sale of .5 grams or more of

cocaine within 1,000 feet of a daycare (count 12), delivery of .5 grams or

more of cocaine (count 13), facilitation of sale of .5 grams or more of cocaine

(count 14), conspiracy to sell more than 26 grams of cocaine within 1,000

feet of a school (count 21) and conspiracy to deliver more than 26 grams of

cocaine within 1,000 feet of a school (count 22). The trial court merged

counts 1 and 2, counts 3 and 4, counts 5 and 6, counts 7 and 8, counts 9 and

10, counts 11 and 12, counts 13 and 14, and counts 21 and 22. Defendant

Graham received twelve-year sentences for the resulting convictions in

counts 1, 3, 7, 9, and 13. He received a six-year sentence for count 11, and

a 25-year sentence for count 21. The trial court imposed concurrent sentences

for counts 1, 3, 5, 11, 13, and 21 to be served consecutively to concurrent

sentences in counts 7 and 9 for an effective 37-year sentence.

State v. Garrick Graham, No. E2014-01267-CCA-R3-CD, 2016 WL 892013, at *1 (Tenn.

Crim. App. Mar. 8, 2016).

Post-Conviction Petitions

Petitioner filed a pro se Petition for Post-Conviction Relief on November 28, 2016,

and counsel was appointed. It is clear from the record that the relationship between

Petitioner and post-conviction counsel soon became acrimonious. Petitioner sent several

letters to counsel and the post-conviction court demanding that counsel raise specific

claims in the amended petition. Petitioner filed two complaints with the Board of

Professional Responsibility. Counsel twice moved to withdraw. Both motions were

denied. Counsel continued to represent Petitioner zealously through the post-conviction

hearing and until post-conviction court allowed counsel to withdraw. New counsel was

appointed to handle the post-conviction appeal.

Although in the post-conviction court, the Petitioner raised numerous claims, he

limits the issues raised on appeal to two claims of ineffective assistance of counsel. He

claims trial counsel was ineffective for failing to object to the amendment of the

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presentment and for failing to impeach the CI. We therefore limit our discussion of the

proceedings in the post-conviction court to matters relevant to the issues raised on appeal.

Post-Conviction Hearing

CI’s testimony

The Petitioner’s post-conviction relief hearing was held on September 12, 2018. 1

Trial counsel was called by Petitioner. Counsel testified that he did not notice anything

peculiar about the way the CI was behaving or speaking when he testified. He agreed that

he included in the motion for new trial a claim that the CI might have been under the

influence when he testified. He said that he did so at the request of Petitioner. Counsel

said that he could not recall asking the CI if he was under the influence. He said that he

cross-examined the CI about his use of illegal drugs. He said that the CI’s memory had to

be refreshed on a few occasions and that he cross-examined the CI about his memory

problems.

On cross-examination by the State, trial counsel said that the CI testified over a

period of two days and that he provided many details about the eight controlled buys. He

said that during the second day of testimony, Petitioner nudged him and said that he thought

the CI was inebriated or stoned or something. Counsel questioned Petitioner about how he

knew the CI was under the influence and Petitioner answered “I can just tell.” Counsel

said that he “did not personally perceive [or] observe anything that would have led [him]

to believe that [the CI] was under the influence.” Counsel discussed the issue with his co-

counsel and out of caution counsel asked to approach the bench about the issue. At the

bench conference, the trial court stated that “the witness is what he is” and the jury can

determine if he is credible. The court said that the witness was competent and that it would

not have the CI drug tested but would allow counsel to cross-examine the CI on that issue.

Counsel said that on appeal, this court determined that the trial court did not err in refusing

to drug test the CI or do anything other than to allow further cross-examination. He said

co-counsel then questioned the CI about using illegal drugs. The CI testified: “I’ve never

used drugs and I’ll be glad to take a hair sample, or a drug test right here now.”

1

At the outset of the hearing, the post-conviction court announced that it would consider

Petitioner’s claim concerning the convictions for facilitation in a drug-free zone resulted in illegal sentences

as a motion filed under Rule 36.1 of the Rules of Criminal Procedure in light of State v. Gibson, 506 S.W.3d

450 (Tenn. 2016) (the increased felony classification under Drug-Free School Zone Act does not apply to

a conviction for facilitation.) The court granted Rule 36.1 relief on the facilitation convictions that were

enhanced by the drug-free statute and stated that it would conduct a separate hearing on those counts. The

record on appeal does not include sufficient information to determine what occurred at the hearing on the

Rule 36.1 motion and that issue is not raised on appeal.

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Amendment of Presentment

Trial counsel said that the State moved on the first day of jury selection to amend

the presentments in the two conspiracy counts to reduce the weight of the cocaine from

300 grams or more to 26 grams or more. Counsel explained to Petitioner that the

amendment would result in Petitioner being charged with and tried for a less serious

offense and that Petitioner did not object to the amendment. The trial court granted the

State’s motion on the second day of jury selection and before the jury was sworn.

Petitioner testified that he did not agree to an amendment of the presentment,

offering the following explanation:

Yeah, I told him because the 26 grams, that’s how, you know, it’s the

same thing as the, as a buy that was on, I think it was the 26th, count on 9/26,

so they were going to try to use that conspiracy and I knew that --- I told him

that ---- I just hoped that the judge believes me, but I’m telling you that I

wouldn’t agree to that. I would have set my own self up and 26 grams, 300

is not no lesser included defense and, man, I would not agree to, you know,

setting my own self up. This would have been four, what the fourth

indictment that was changed. They had sent these back to the grand jury,

why didn’t they send the other ones?

Petitioner said that trial counsel never discussed with him “why the drug[-]free zone

and the sale of cocaine [were] included together[.]”

Concerning the CI’s testimony, Petitioner stated: “Because throughout the whole

testimony, he had to be refreshed the whole time, had to be shown documents. He ain’t

that old, he ain’t that much older than me so how can you forget that and he was slurring.

He was high, [h]e was high. I know he was.” Petitioner claimed he was prejudiced because

allowing the CI to testify “violates my right to due process.”

Order Denying Post-Conviction Relief

On May 6, 2020, the post-conviction court filed a thorough and comprehensive

order denying post-conviction relief and dismissing the petition. The order set out the

court’s findings of fact and conclusions of law on the issues raised in the petitions and

argued at the hearing. We will limit our opinion to the post-conviction court’s findings

that impact the two issues raised on appeal.

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Credibility Findings

The post-conviction court found that Petitioner was hostile to his attorney and the

court during his testimony, that Petitioner “blurted out” and disrupted the testimony of trial

counsel, that Petitioner “did not answer the questions of his counsel directly,” and that

Petitioner “remembered some things, but not others.” The post-conviction court did not

“accredit the testimony of Petitioner for those reasons.”

The post-conviction court found that trial counsel “appeared thoughtful when

answering both direct and cross-examination questions, and he appeared to answer

questions openly and honestly” and that counsel’s demeanor never changed. The court

found that counsel remembered the events leading up to the trial, at trial, and post-trial.

The court found that trial counsel “recalled numerous discussions with Petitioner at every

stage of the defense” regarding strategy. The post-conviction court accredited the

testimony of trial counsel.

Amendment of the Presentment Findings

The post-conviction court found that the State discussed amendment to the

conspiracy counts of the presentment with trial counsel on the first day of trial, that

Petitioner did not object to the amendment, that trial counsel’s performance was not

deficient, and that there was no proof of prejudice. The court found the issue was without

merit and dismissed that claim.

Impeachment of CI Findings

The post-conviction court found that trial counsel impeached the CI during cross-

examination by being “able to demonstrate to the jury that [the CI] was inconsistent

regarding his testimony regarding his drinking of alcohol.” The court found that trial

counsel utilized a reasonable trial strategy to avoid “asking questions that would tend to

bolster [the CI’s] credibility” and that counsel “was able to point out to the jury

inconsistencies and gaps in the CI’s memory of events.” The court found no deficient

performance on the part of trial counsel or prejudice to Petitioner and dismissed this claim.

Analysis

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

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

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

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

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

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findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). Additionally, “questions

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

testimony, and the factual issues raised by the evidence are to be resolved by the [post-

conviction court].” Fields, 40 S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997); see also Kendrick, 454 S.W.3d at 457. The post-conviction court’s

conclusions of law and application of the law to factual findings are reviewed de novo with

no presumption of correctness. Kendrick, 454 S.W.3d at 457.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the Strickland analysis, the petitioner “must show that there is a reasonable probability that,

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

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).

Conclusion

The post-conviction court found that Petitioner was not credible and we will defer

to that court’s findings. Petitioner has failed to present any credible evidence proving that

the trial counsel was deficient in its cross-examination of the CI or in not objecting to the

amendment of the presentments.

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We affirm the judgment of the post-conviction court.

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ROBERT L. HOLLOWAY, JR., JUDGE

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