Millard Ellis Spurgeon v. State of Tennessee

10/06/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 28, 2021

MILLARD ELLIS SPURGEON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Sevier County

No. 19269 James L. Gass, Judge

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No. E2020-01328-CCA-R3-PC

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Petitioner, Millard Ellis Spurgeon, appeals the denial of post-conviction relief from his

2015 Sevier County convictions for burglary, theft of property valued at $1,000 or more,

vandalism of property valued at $1,000 or more, and possession of burglary tools, for which

he received an effective sixteen-year sentence. Petitioner argues that he was denied the

effective assistance of counsel at trial. After a thorough review of the record and applicable

law, we affirm the judgment of the post-conviction court.

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

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

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

Susan H. Harmon, Sevierville, Tennessee, for the appellant, Millard Ellis Spurgeon.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant

Attorney General; Jimmy B. Dunn, District Attorney General; and George C. Ioannides,

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

OPINION

Factual and Procedural Background

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

The Sevier County Grand Jury charged [Petitioner] and David Way

via presentment with one count each of burglary, theft of property valued at

$1,000 or more, vandalism of property valued at $1,000 or more, and

possession of burglary tools for his role in the August 19, 2012 break-in at

Gatlinburg-Pittman High School.

At the December 16, 2015 joint trial, Gatlinburg-Pittman High School

principal Tony Ogle testified that at approximately 5:00 a.m. on Sunday

August 19, 2012, the school’s security monitoring firm notified him by

telephone that an alarm had been triggered at the school. Mr. Ogle confirmed

that he wanted the police dispatched to the school, and he dressed quickly

and drove to the school. When he arrived, a number of officers from the

Gatlinburg Police Department (“GPD”) were present. Mr. Ogle entered the

school with officers and reviewed the video footage from the school’s

security cameras. On the video, Mr. Ogle observed two perpetrators use

various tools to break into the ATM, soft drink vending machines, and a

change machine. The perpetrators wore dark or camouflage clothing, hoods,

masks, and gloves. The shorter of the two perpetrators had a very distinctive

gait. Mr. Ogle explained that the individual “display[ed] a kick of his heels

where he raises the heel up to touch the back of his leg or his thigh.” The

perpetrators used pry bars, pliers, a tool with a forked end, and a chisel to

break open the ATM. After opening the ATM, the individuals pried open

the “cash cassette” or money box and pocketed its contents. They then

cleaned up the area, and the taller of the two used a spray bottle to clean the

floor. Mr. Ogle said that the perpetrators entered through a window in the

teacher’s lounge.

Mr. Ogle said that he did not recall any officer’s having collected any

evidence from the school on August 19 but that the school was locked after

he and the officers left the school. On the following day, a Monday, school

was in session. Mr. Ogle said that he and a school janitor cleaned up debris

from the floor before students arrived and made efforts to cordon off the

ATM until the police could collect it.

GPD Detective Gary McCarter responded to the high school on

August 19. He reviewed the video surveillance with Mr. Ogle and observed

damage to the ATM, vending machines, and change machine. He did not

collect any evidence from the school that day and took no steps to preserve

the scene because “[t]he school was secured. It was locked down that day

because there were no kids there, so it was locked up.” After leaving the

school that morning, Detective McCarter went to McKinney’s Market, where

he told clerk Jamilla Byrd about the burglary and asked her to be on the

lookout for the perpetrators. He described the clothing they wore in the video

surveillance and demonstrated the peculiar gait of the shorter perpetrator. A

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few hours later, Ms. Byrd telephoned and told him that a man displaying such

a gait had entered the market. Detective McCarter dispatched uniformed

patrol officers to the market and then drove there himself.

When Detective McCarter arrived at McKinney’s Market, he found

[Petitioner] and Mr. Way being questioned by the uniformed patrol officers.

After being provided with Miranda warnings, Mr. Way consented to a search

of the van in which the men had been traveling. Inside the van, Detective

McCarter found “a box of tools” and wet clothing that was “very similar to”

the clothing worn by the perpetrators in the surveillance video, including

“several pair” of gloves that were “similar to the ones that you’ll see in the

video. They have the white writing on them.” Detective McCarter

recognized among the tools he collected a “pry bar” that was the same type

of tool carried by the perpetrators in the surveillance video. Detective

McCarter also recognized a chisel and a “bearing puller” “that appear[ed] to

be similar” to the one used to open the ATM machine. He acknowledged

that he did not find masks, backpacks, or large sums of money inside the

vehicle.

Both men provided written statements detailing their whereabouts for

the previous evening. [Petitioner and Mr. Way] told Detective McCarter that

“[t]hey had been home and they were taking that vehicle to work on

somebody’s car or they had been working it, taking it back, something like

that.” Detective McCarter took the items he collected to the Gatlinburg

Police Department, photographed them, and put them into his office. He did

not wear gloves when collecting the tools and did not individually tag them

at that time. He then telephoned Mr. Way’s mother, who told the detective

that Mr. Way had been home all night. When he finished, Detective

McCarter left to go out of town, and Detective Rodney Burns took over the

investigation.

Jamilla Byrd testified that Detective McCarter, who was a regular

customer at McKinney’s Market, came in on the morning of August 19,

2012, and told her about the burglary at the high school. She said he

described the perpetrators to her: “The first one he said was kind of tall and

had a lazy eye, and he said the second one had a very distinct characteristic.

He was short and then he did a leg kick behind him.” At approximately 11:00

a.m. that same morning, “a gentleman came in and wanted to get lottery

tickets.” She said that the man, whom she identified as Mr. Way, spent

“roughly about two or three hundred dollars” buying lottery tickets and that

he remained inside the store for 10 to 15 minutes while buying and cashing

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in his various tickets. While Mr. Way was in the market, another man came

in with lottery tickets, and Ms. Byrd observed the man, whom she identified

as [Petitioner], “standing at the counter kicking his legs back like” Detective

McCarter had demonstrated.

Detective Burns testified that on August 20, 2012, “[t]he chief told

[him] to go ahead and begin to start investigating it because Detective

McCarter had started vacation.” Detective Burns began his investigation

with a trip to the high school, where he photographed the damaged ATM

machine and vending machines. Detective Burns also “collected some

chippings of the metal on the floor, some pieces of the paint” from the area

around the ATM and “a little bit of dirt off the window sill” of the “window

in the rear of the school” that was the apparent entry point used by the

perpetrators. After photographing the machines and collecting the other

evidence, Detective Burns “unbolted the ATM from the floor” using a

wrench that he borrowed from someone on the maintenance crew at the

school and then asked some “school maintenance workers for the county” to

“cut the pieces [he] wanted cut off” of the ATM using a blow torch.

Detective Burns gathered all of the items into his vehicle and

transported them to the police station, where he “wrapped up the pieces of

the ATM” with thick, brown paper “and taped them, secured them and”

placed them in his office. Later that day, he interviewed [Petitioner], who

told him that he had spent the previous evening at his aunt’s house on Chelan

Drive. When the detective asked about the clothing and tools discovered

inside the van, [Petitioner] said “something along the fact, you mean you’re

going to charge me with this based on that?” In a separate interview, Mr.

Way told Detective Burns that he worked as a mechanic and sometimes

borrowed his mother’s van to go to various jobs but “that he was basically

having it rough financially at that time, that he didn’t have any money and

that he was on food stamps.” Mr. Way claimed ownership of the clothing

and tools discovered inside his mother’s van and explained that the clothing

in the van had become wet because it had been l[y]ing out on the ground all

night. Mr. Way said “that he had loaded” the tools and clothing into the van

that morning “to take with him” to work.

On the following day, Detective Burns returned to the police

department and retrieved the tools from Detective McCarter’s office.

Wearing gloves, Detective Burns wrapped the tools individually in thick,

brown paper and presented them to the evidence clerk to be placed into the

evidence locker at the police department. He also placed the wrapped

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portions of the ATM into the evidence locker. Detective Burns transported

the ATM pieces, tools, clothing, and other items to the Tennessee Bureau of

Investigation (“TBI”) on October 24, 2012. He took “a drink bottle and some

swabs” to the Knoxville TBI office and the remaining items to the Nashville

TBI office, explaining, “Knoxville does DNA testing, but Knoxville does not

do ballistic testing or tool mark testing.” After he retrieved the items from

the TBI, he took them back to the evidence locker.

Detective Burns testified that he did not attempt to obtain fingerprints

from the ATM, vending machines, or tools because the video surveillance

clearly showed the perpetrators wearing gloves. He acknowledged having

wiped some of the smaller tools “that were down inside the toolbox . . .

because . . . they had the power steering fluid and all that on them.”

TBI Special Agent and Forensic Scientist Randall Nelson collected

paint scrapings from several tools and “did an analysis to compare the paint”

collected from the tools “to the paint on the ATM pieces.” Ultimately, Agent

Randall determined that the paint collected from two pry bars “could not

have come from the ATM” but that paint collected from a chisel and a

“forked tool” “was consistent with the paint from the ATM with respect to

color, type, texture, binder composition and pigment composition.” He

concluded that “the paint scrapings” on the chisel and the forked tool “could

have come from the ATM represented by Exhibits 3A and 4A, or another

object with the same paint history.”

TBI Special Agent and Forensic Scientist Teri Arney performed tool

mark examinations on the tools and ATM after Agent Randall finished his

analysis. Agent Arney used a silicone casting medium to preserve the

microscopic characteristics of each individual tool and created “test tool

marks” by striking the tool on a sheet of lead. She found usable tool marks

“on the door of this ATM” and matched three of the tool marks to the forked

tool.

Tennessee State Bank electronic banking manager Stephanie Randles

testified that she was responsible for the management of offsite ATMs,

including the one at Gatlinburg-Pittman High School. Ms. Randles said that

the ATM was damaged beyond repair, and “a new one had to be purchased,

and the total for that was” $3,600. At the time of the burglary, the ATM

contained $1,540.

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Based upon this evidence, the jury convicted [Petitioner] and Mr. Way

as charged.

State v. Millard Ellis Spurgeon, No. E2016-02210-CCA-R3-CD, 2018 WL 2193240, at *1-

3 (Tenn. Crim. App. May 14, 2018) (footnote omitted), no Rule 11 app. filed. This court

affirmed the judgments of conviction on appeal. Id. at *6.

Thereafter, Petitioner filed a timely pro se petition for post-conviction relief.

Following the appointment of counsel, two amended petitions were filed.

At an evidentiary hearing, trial counsel testified that he represented Petitioner during

his December 2015 jury trial. Trial counsel explained that, as part of discovery, he received

an audio recording of Petitioner’s interview with Detective Burns. Trial counsel stated that

he decided to use part of the recording to attack Detective Burns’ investigation, which was

part of counsel’s trial strategy. Trial counsel recalled that he cross-examined Detective

Burns on the detective’s failure to: ensure that the scene at the ATM was secured; timely

send the machine to the TBI for testing; make certain that workers handled the ATM while

“taking necessary precautions[;]” and investigate Petitioner’s alibi. Trial counsel said that

he had also intended to cross-examine Detective Burns about lies the detective told

Petitioner during his interview in an attempt to get Petitioner to confess. Trial counsel

explained:

And during the interview Detective Burns had informed [Petitioner]

that they had already matched the tool marks from the tools they had seized

to the ATM housing, which was a lie. So . . . the portion of the audio that I

played was when he made that statement to [Petitioner].

Unfortunately, as soon as he said it, it was like I couldn’t stop the

recording in time before the statement . . . came out where [Detective Burns]

mentioned something about being a convicted felon.

Trial counsel said that he knew the comment about Petitioner being a convicted felon was

on the recording and that he intended to stop the recording before that comment. He

explained, however, that the audio recording was played on a laptop computer and that the

computer would not respond when he attempted to stop the recording.

Trial counsel did not request a mistrial or ask for a curative instruction. Trial

counsel testified:

The way I saw it, I didn’t think it would be enough for a mistrial, and

I felt that if I asked for a limiting instruction that it w[ould] just call more

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attention to it to the jurors if any of them had heard it. Or if any of them

hadn’t if the judge gives a limiting instruction, then you can be sure they all

heard it. So it was just a tactical decision in the moment.

Trial counsel said that he “thought it would be best to pursue the cross-examination” at that

point, and he asked Detective Burns about the lie and how, “even in the face of that lie,

[Petitioner] still denied having had any involvement in [the] matter.”

On cross-examination, trial counsel said that he had practiced law for eighteen years

and that his work in the area of criminal defense was “pretty extensive.” Trial counsel

agreed that the jury was shown the film of the “unique walk of the perpetrator at the

Gatlinburg-Pittman High School[.]” Trial counsel described the walk as “almost like a

nervous tick, like kind of a heel kick when he would take certain steps.” Trial counsel

agreed that, at a traffic stop of Petitioner, Petitioner was wearing a “very similar if not the

same” shirt as one of the perpetrators in the video footage of the offense. He said that the

State also offered proof about the paint similarities between the paint on the ATM and that

found on the tools in Petitioner’s possession, as well as testimony that the tool marks on

the ATM matched one of those tools. He noted that he also offered the preliminary hearing

testimony of Petitioner’s alibi witness to the jury.1

Jessica Sisk testified that she was a licensed attorney and that she was co-counsel

for Petitioner’s co-defendant during the trial. Ms. Sisk recalled the portion of trial

counsel’s cross-examination during which he played the audio recording of Detective

Burns’ interview with Petitioner. She recalled that the recording was played on the State’s

laptop computer and that a courtroom microphone was placed by the laptop. She said that

she was sitting at the defense table when it was played and that she heard Detective Burns’

comment.

At the conclusion of proof, the post-conviction court stated:

The Court does find that . . . [Petitioner] . . . was identified in the proof

for the jury at trial as the person who had an unusual step or walk wherein . .

. one leg would kick much higher, almost as though . . . he was kicking

himself with his heel as he took steps that were observed by the police

department. That observation of that characteristic was observed by a store

employee near Gatlinburg which had been forewarned to be on the lookout

by detective of anyone with that particular type of walk. It was also shown

from the testimony here that there was an individual recorded by security

tapes at the Gatlinburg-Pittman High School . . . that one of the two

1

Trial counsel testified that Petitioner’s alibi witness died before trial.

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individuals there, although wearing masks, had a unique walk like

[Petitioner] had which was recognized by the store employee and, later,

officers of the Gatlinburg Police Department.

This Court also heard testimony that there was camouflage in the

video worn by the two individuals that broke into the Gatlinburg-Pittman

High School, and that camouflage of a consistent or similar pattern was in

the possession of [Petitioner] and the same was shown to be the case at trial,

including a leaf pattern in the camouflage from the garments or garment

taken from [Petitioner’s] vehicle . . . . There was also evidence in this record

that . . . after the break-in . . . there was evidence of gauge or scratch marks

from tools on an ATM at the high school.

...

There was also testimony that the gauge or scratch marks on the ATM

were caused by the tools possessed by [Petitioner] and his co-defendant . . .

. The Court recognizes that that type of proof can be very damaging . . . for

the defense of an individual if offered at a criminal trial.

....

The Court recognizes that [trial counsel] had a strategy in this case

and that was . . . to display to the jury flaws or inconsistencies in the

investigation . . . by the Gatlinburg detectives to turn up and expose to this

jury things that maybe they should have done or did not do properly. As part

of that plan, he offered the playing of this tape to show, and it was his intent

in doing so, that the detective was lying to [Petitioner] during the course of

this investigation . . . and further to show that the detective ignored an alibi

witness or witnesses that could have assisted in exonerating [Petitioner].

This Court finds that those are reasonable and proper measures taken by [trial

counsel] in the course of this defense.

To further that, it was [trial counsel’s] expectation that he could play

only a short portion of this audiotape to enable the jury to hear the spoken

word about the lie . . . . Unfortunately for [trial counsel], the machine in

which he was playing these remarks did not respond to his command to stop.

It was not his intention . . . to play to the jury any remark by Detective Burns

. . . that says “You’re a convicted felon.” However, . . . despite the best

efforts of [trial counsel] . . . he was not able to stop this recording and [ ]

some recorded sound with that type of verbiage was exposed to this jury[.]

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...

[Trial counsel] has explained his logic, and the Court so finds that

logic to have been reasonable. It . . . would have been in hindsight . . . to

have asked for a curative instruction from the Court to disregard any portion

of the recording that might have reflected a conversation about [Petitioner’s]

prior history . . . but that was not done. This Court, however, does not find

that that omission by [trial counsel] was ineffective assistance of counsel. He

has stated his reasons, that that would be tantamount to ringing the bell once

again and hammering home . . . that his client might well be a convicted

felon. And this Court can appreciate that logic, although I believe the

curative measure would have been the best course to take.

....

The Court further finds that even if [trial counsel’s] actions in failing

to ask for a curative instruction from the Court because the machine did not

respond correctly, even if that rose to ineffective assistance of counsel, this

Court cannot find in any place in this record that that action in any way would

have changed the outcome of this case. To have a video . . . of an individual

with a unique walk, an individual wearing a unique set of clothing, and an

individual with that same walk and in possession of that same unique

clothing and in possession of tools that are matched to the damage on an

ATM within the building burglarized all within a short period of time and

geographic proximity to the burglary would be overwhelming proof in the

eyes of this Court of [Petitioner’s] guilt.

So this Court concludes . . . that the actions of [trial counsel] . . . would

have had no effect on the outcome of the jury’s decision in this case in

convicting [Petitioner].

Based on these findings, the post-conviction court denied relief. This timely appeal

follows.

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). When reviewing the post-

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

its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 S.W.3d at

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

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

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

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

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

law to factual findings are reviewed de novo with no presumption of correctness. Kendrick,

454 S.W.3d at 457.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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).

On appeal, Petitioner contends that he was denied the effective assistance of counsel

based on trial counsel’s failure to move for a mistrial or request a curative instruction after

counsel inadvertently played an audio recording for the jury that contained a reference to

Petitioner as a “convicted felon.” Petitioner argues that he was prejudiced by trial counsel’s

deficient performance because the jury was allowed to consider improper and damaging

character information.

In order to establish prejudice resulting from trial counsel’s failure to request a

mistrial, Petitioner must show that such relief would have been granted. Vaughn v. State,

202 S.W.3d 106, 120 (Tenn. 2006) (noting that a petitioner must show both that the failure

to file a motion was deficient and that the deficiency resulted in prejudice), abrogated on

other grounds by Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn. 2018). For a mistrial to

be declared, there must be a manifest necessity for such action. Arnold v. State, 563 S.W.2d

792, 794 (Tenn. Crim. App. 1977). A manifest necessity exists when “no feasible

alternative to halting the proceedings” exists. State v. Knight, 616 S.W.2d 593, 596 (Tenn.

Crim. App. 1981). When determining whether a mistrial was necessary after improper

testimony, this court has often considered the following factors: (1) whether the State

elicited the testimony, (2) whether the trial court gave a curative instruction, and (3) the

relative strength or weakness of the State’s case. State v. Welcome, 280 S.W.3d 215, 222

(Tenn. Crim. App. 2007). Here, Detective Burns’ comment that Petitioner was a

“convicted felon” was not elicited by the State. Although no curative instruction was

given, the evidence as outlined by the post-conviction court linking Petitioner to the crime

was strong. Petitioner has not established that the trial court would have granted a request

for a mistrial trial and, thus, has failed to show any prejudice resulting from trial counsel’s

failure to request one. Vaughn, 202 S.W.3d at 120.

Regarding Petitioner’s claim that trial counsel’s performance was deficient based

on his failure to request a curative instruction after Detective Burns’ comment, trial counsel

testified that he did not request such an instruction because he did not want the comment

to be reiterated to the jury, and he explained that it was a tactical decision on his part not

to request one. See Granderson, 197 S.W.3d at 790. In denying relief, the post-conviction

court concluded that, “in hindsight,” it would have been better for trial counsel to have

asked for a curative instruction; however, review of counsel’s performance requires that

we must “eliminate the distorting effects of hindsight[.]” Strickland, 466 U.S. at 689.

Thus, we agree with the post-conviction court’s determination that Petitioner failed to show

deficient performance based on trial counsel’s failure to request a curative instruction.

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Furthermore, Petitioner has not established prejudice under Strickland. As

previously stated, the evidence against Petitioner was strong. The video surveillance from

Gatlinburg-Pittman High School showed two individuals breaking into the school and

using a variety of tools, including a tool with a forked end, to break into an ATM. One of

the perpetrators displayed a very distinctive gait, and Petitioner was identified by this

distinctive gait by an employee at a nearby market the same day as the break-in. When

officers searched the van used by Petitioner and Mr. Way, they found tools consistent with

those seen in the video surveillance and clothing that appeared to be the same or similar

clothing worn by the perpetrators. Additionally, examination of the tools by the TBI crime

lab determined that the forked tool found in the possession of Petitioner and Mr. Way made

the marks on the door of the ATM and that paint chips on the forked tool and on a chisel

were consistent with the paint from the ATM. When viewed in the context of the entire

case, Petitioner has not shown, by a probability sufficient to undermine the outcome of the

trial, that the results of the proceeding would have been different if trial counsel had

requested a curative instruction. See Goad, 938 S.W.2d at 370. Petitioner is not entitled

to relief.

Conclusion

Based on the foregoing, we affirm the judgment of the post-conviction court.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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