The opinion
01/29/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs at Knoxville January 24, 2024
MICKEY EDWARDS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-05547 Chris Craft, Judge
No. W2023-00653-CCA-R3-PC
The Petitioner, Mickey Edwards, appeals from the denial of his petition for post-conviction
relief for his jury trial convictions for four counts of aggravated burglary, four counts of
theft of property, identity theft, and fraudulent use of a credit card, for which he is serving
an effective sixty-year sentence. On appeal, he contends that the post-conviction court
erred in denying relief on his ineffective assistance of counsel claim related to trial
counsel’s lack of objections to instances of alleged prosecutorial misconduct. He also
alleges a free-standing claim that he was denied a fair trial due to the alleged prosecutorial
misconduct. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which TOM
GREENHOLTZ and KYLE A. HIXSON, JJ., joined.
Mickey Edwards, Whiteville, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant
Attorney General; Steve Mulroy, District Attorney General; Karen Cook, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The Petitioner’s convictions relate to a series of residential burglaries, theft from a
delivery person of a package addressed to one of the burglary victims, and related offenses
the Petitioner committed in June and November 2011. See State v. Mickey Edwards, No.
W2014-00987-CCA-R3-CD, 2015 WL 5169110, at *1-12 (Tenn. Crim. App. Aug. 27,
2015, perm. app. denied (Tenn. Dec. 11, 2015). On appeal of his convictions, he argued
that the trial court erred in denying a motion to suppress evidence seized when he was
arrested, that the court erred in denying his motion for a severance, that the court erred in
admitting evidence of his prior convictions, and that the evidence was insufficient to
support his convictions. Id. at *1. This court affirmed, and the supreme court denied his
Rule 11 application. Id.
This case has a protracted procedural history. The Petitioner filed a pro se post-
conviction petition. Post-conviction counsel was appointed. The Petitioner became
dissatisfied with appointed counsel, and he retained private counsel. Various amended
petitions were filed, and an initial evidentiary hearing was conducted. The post-conviction
court adjourned the matter in order for the Petitioner to obtain medical records, which the
record reflects was a lengthy process, and the COVID-19 pandemic caused additional
delays. The record reflects, as well, that the Petitioner had health issues during the
pendency of the case. The court received evidence at additional hearings. The Petitioner
became dissatisfied with his retained counsel, and the Petitioner sought and the court
granted the Petitioner’s request to proceed pro se. The court appointed advisory counsel.
After the Petitioner filed additional amended petitions, which the court viewed as repetitive
of previous filings, the Petitioner agreed for the documents to be considered as written
arguments. Subpoenaed medical records were received as exhibits, and documents
authored by the Petitioner were also received as exhibits and considered as his closing
argument. Upon consideration of the evidence and the arguments before it, the court
denied relief on each of the Petitioner’s numerous ineffective assistance of counsel claims
and concluded that a trial-related evidentiary issue had been previously determined. The
Petitioner has waived his right to appellate counsel and continues to represent himself in
the present appeal.
The Petitioner raised numerous ineffective assistance of counsel allegations in his
petition and amended petitions. The issues raised in this appeal are limited to alleged
prosecutorial misconduct in closing argument, related to the prosecutor’s arguments that
the evidence demonstrated the Petitioner’s guilt, and to trial counsel’s lack of objections to
the alleged misconduct. Accordingly, we focus our review of the post-conviction evidence
to the facts relevant to the issues raised on appeal and briefly summarize other matters
presented at the numerous hearings.
The Petitioner was represented at the trial by two attorneys from the public
defender’s office. At the first post-conviction hearing, which was held on June 1, 2018,
trial counsel testified that she met with the Petitioner and co-counsel on several occasions.
She said the Petitioner was the only defense witness who testified at the trial. She said
getting the Petitioner to testify in question-and-answer format, rather than in narrative
form, was challenging.
Co-counsel testified that he had represented the Petitioner previously. Co-counsel
said the Petitioner was a “difficult” and “opinionated” client with mental health issues who,
though competent, did not have a realistic view of the case and “doesn’t really listen to his
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lawyers very much.” Co-counsel said that the crimes in the present case had been “well
orchestrated, well planned, well executed . . ., [and] clearly done for profit” and that the
State had a strong case against the Petitioner, a career offender.
Co-counsel said that, although trial counsel had been a less experienced attorney,
trial counsel had prepared the case thoroughly and had consulted with other attorneys in
the public defender’s office in anticipation of the trial. Co-counsel said he assisted and
supervised trial counsel at the trial and that she did an excellent job in defending the
Petitioner. Co-counsel said he prompted trial counsel to object during the trial a couple of
times. He did not identify the subject of those objections. Co-counsel said that he
represented the Petitioner at the sentencing hearing and that, ultimately, the Petitioner
received a more favorable sentence than the plea offer which had been extended before the
trial. Co-counsel said the district attorney had taken a personal interest in the case due to
her familiarity with some of the victims.
Neither trial counsel nor co-counsel were questioned at this hearing about their
objections, or lack thereof, during the State’s closing argument.
The post-conviction court held a second hearing on December 17, 2018, at which
the Petitioner testified about his communications with trial counsel and co-counsel and his
complaints about trial counsel’s representation related to suppression, severance, and
evidentiary issues. Despite co-counsel’s assurances about trial counsel’s abilities, the
Petitioner thought trial counsel was ineffective because she was inexperienced. The
Petitioner said he had no complaints about his appellate counsel.
The Petitioner testified that he had been diagnosed as paranoid schizophrenic in
approximately 2002 and that he had not been taking his prescribed psychiatric medication
at the time of the crimes. He said he had been using cocaine. He said he had received
mental health treatment during his incarceration after he was convicted and that he had
taken psychiatric medication for part of the time that he was in pretrial confinement but
stopped due to the side effects.
During the Petitioner’s testimony, he repeated words and phrases in incomplete
sentences, and he remained focused on issues related to the questions of severance and the
admissibility of other acts evidence pursuant to Tennessee Rule of Evidence 404(b). The
post-conviction court perceived that the Petitioner was reciting memorized words that did
not constitute sentences and repeatedly advised the Petitioner to testify about facts and to
speak in sentence form. The court told the Petitioner on several occasions to move on to
any other issues he wanted to present, but the Petitioner remained focused on the severance
and Rule 404(b) issues. Notably, the Petitioner did not testify about any complaints he had
with a lack of objections by trial counsel and co-counsel to the State’s closing argument.
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The post-conviction court conducted a third hearing on February 22, 2019, at which
the court received the Petitioner’s mental health records.
On April 30, 2021, the post-conviction court held another hearing, at which the
Petitioner testified about additional complaints with trial counsel and co-counsel. The
Petitioner said trial counsel failed to object to the prosecutor’s stating in opening statement
and in closing argument that the Petitioner was guilty. The Petitioner said the trial court
admonished the prosecutor about the statement the Petitioner was guilty. The Petitioner
said that the prosecutor made the statement five times and that his attorneys did not object.
The Petitioner said the prosecutor made a propensity evidence argument based upon factual
similarities in the modus operandi of the charged offenses. He said no prosecutorial
misconduct issue was raised on appeal. He acknowledged that the court had denied trial
counsel’s motion for a severance.
After the parties submitted written arguments, the post-conviction court held a
hearing on September 21, 2021, in order to receive the parties’ oral arguments.
The Petitioner began representing himself pro se, and he filed additional
amendments to the petition. On July 1, 2022, the post-conviction court held another
hearing, at which the court permitted the Petitioner to recall trial counsel as a witness.1
Trial counsel testified that she did not object during the prosecutor’s closing argument
because she did not think prosecutorial misconduct occurred. Trial counsel agreed that she
had not included prosecutorial misconduct in the motion for a new trial because she had
not thought misconduct occurred. Trial counsel explained, “I guess my thinking was that
because the severance motion had been denied, that those arguments were ruled
permissible and [the prosecutor] was able to do that and that’s why I didn’t make a
contemporaneous objection at trial.” Trial counsel did not recall anything to which she
should have objected in the prosecutor’s opening statement.
The post-conviction court held another hearing on February 24, 2023, at which it
questioned the Petitioner about additional documents the Petitioner had mailed to the court.
The Petitioner agreed for the court to treat the documents as additional closing argument.
In an April 17, 2023 written order, the post-conviction court denied relief. As
relevant to this appeal, the court found that the prosecutor mentioned the word “guilty” or
“guilt” seven times in her initial closing argument and the word “guilty” once in her final
argument. The court found, “All the conclusions the prosecutor stated to the jury in her
closing arguments were based on her review of reasonable inferences to be drawn from the
evidence made immediately prior to making those statements.” The court found that the
1
The court noted that trial counsel had been unavailable to testify at a previous hearing.
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prosecutor’s arguments were “temperate, . . . based upon evidence introduced at trial, and
. . . pertinent to the issues being tried.” See Coker v. State, 911 S.W.2d 357, 368 (Tenn.
Crim. App. 1995). The court determined that the prosecutor’s arguments were
“conclusions based upon inference supported by evidence in the record.” See State v.
Brown, 836 S.W.2d 530, 552-53 (Tenn. 1992). Thus, the court concluded that no
objectionable prosecutorial misconduct occurred. The court found that trial counsel and
co-counsel had not performed deficiently by not objecting and that the Petitioner had not
shown prejudice from the lack of objection. The court concluded that the Petitioner failed
to prove his ineffective assistance of counsel claim relative to lack of objections to alleged
prosecutorial misconduct during closing argument.
On appeal, the Petitioner contends that he was denied a fair trial due to the alleged
prosecutorial misconduct during closing argument and that the post-conviction court erred
in denying relief in his ineffective assistance of counsel claim based upon counsel’s lack
of objection to the alleged prosecutorial misconduct. The State responds that the court
properly denied relief. We agree with the State.
Post-conviction relief is available “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 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
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Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed . . . based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice
prong, a 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.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
The record reflects that the post-conviction court considered the record from the
Petitioner’s conviction proceedings. We have reviewed the transcript of the closing and
rebuttal arguments from the prior appellate record. See Tenn. R. Evid. 201(b), (c) (judicial
notice). The post-conviction court found that the prosecutor summarized the trial evidence
and that the prosecutor had argued that the evidence supported findings of guilt of the
charged offenses.
Although an exhaustive list of the bounds of prosecutorial impropriety cannot be
defined, five general areas of prosecutorial misconduct have been recognized:
1. It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his personal
belief or opinion as to the truth or falsity of any testimony or evidence or the
guilt of the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn.
Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App.
1978); Tenn. Code of Prof’l Responsibility DR 7–106(c)(4).
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury. See [State v.] Cauthern, 967 S.W.2d [726,]
737 [Tenn. 1994]; State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).
4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury’s verdict. See Cauthern,
967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).
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5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.
STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE DEFENSE
FUNCTION §§ 5.8–5.9 Commentary (ABA Project on Standards for Criminal
Justice, Approved Draft 1971).
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).
Regarding her lack of objection to the prosecutor’s closing arguments, trial counsel
testified that she did not perceive any prosecutorial misconduct. Upon its review of the
trial record, the post-conviction court concluded that the prosecutor’s arguments
summarizing the evidence and inviting the jury to infer guilt therefrom did not constitute
prohibited prosecutorial misconduct. The court found, as well, that trial counsel and co-
counsel had not performed deficiently in declining to object to this argument because no
basis existed for the court to sustain the objection in the absence of misconduct and that
the Petitioner was not prejudiced by the lack of objection. The evidence does not
preponderate against the court’s factual findings regarding the lack of deficient
performance and prejudice. Likewise, the court’s findings support its conclusion that the
Petitioner failed to carry his burden of proving his ineffective assistance of counsel claim
based upon the lack of objection to closing arguments. The court did not err in denying
relief based on this ineffective assistance of counsel claim.
To the extent that the Petitioner has raised a free-standing constitutional claim that
he was denied his right to a fair trial due to prosecutorial misconduct, we conclude that the
issue is waived because he failed to present it in his appeal of the convictions. See T.C.A.
§ 40-30-106(g) (2018) (providing that “[a] ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding
before a court of competent jurisdiction in which the ground could have been presented,”
with limited exceptions); see Jeffrey Boyd Trusty v. State, No. M2012-01128-CCA-R3-PC,
2013 WL 5883813, at *16 (Tenn. Crim. App. Oct. 31, 2013) (holding that the post-
conviction petitioner’s free-standing constitutional claim related to alleged prosecutorial
misconduct was waived for failure to present it in the appeal of the convictions), perm.
app. denied (Tenn. Mar. 11, 2014).
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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