Joseph B. Thompson v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2005
JOSEPH B. THOMPSON v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Sullivan County
No. C48,041 R. Jerry Beck, Judge
No. E2004-00920-CCA-R3-PC - Filed October 12, 2005
The Petitioner, Joseph B. Thompson, was convicted of aggravated robbery and aggravated
kidnapping, and the trial court sentenced him to an effective sentence of forty years. On direct
appeal, this Court affirmed the Petitioner’s convictions and sentences. The Petitioner filed a petition
for post-conviction relief, which the post-conviction court dismissed after a hearing. On appeal, the
Petitioner contends that the post-conviction court erred when it dismissed his petition because: (1)
he received ineffective assistance of counsel; (2) the State caused exculpatory evidence to be lost and
unavailable to the Petitioner; (3) the trial court denied his right to allocution; (4) the trial court
improperly limited trial counsel’s time for closing argument; (5) the trial court erred when it ruled
that the Petitioner could not instruct his trial counsel about trial strategy; and (6) the trial court erred
by instructing the jury concerning the amount of fines to be imposed. After thoroughly reviewing
the record and the applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR., and ALAN E. GLENN , JJ., joined.
Mark H. Toohey, Kingsport, Tennessee, for the appellant, Joseph B. Thompson.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Greeley Wells, District Attorney General; and B. Todd Martin, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Facts
A Sullivan County Jury convicted the Petitioner of aggravated robbery and of aggravated
kidnapping. The trial court sentenced the Petitioner to twenty years for each offense, to be served
consecutively, for an effective sentence of forty years. On direct appeal, this Court affirmed the
Petitioner’s convictions and sentence. State v. Joseph B. Thompson, No. E2002-00061-CCA-R3-
CD, 2003 WL 1202979, at *1 (Tenn. Crim. App., at Knoxville, Mar. 17, 2003), perm. app. denied
(Tenn. 2003). In our opinion, we summarized the facts as follows:
During the early morning hours of June 20, 1999, the sixty-two-year-old
victim, Shirley Huffman, a desk clerk at the Microtel motel in Kingsport, was
attacked and beaten by a man wearing a ski mask. The victim, who suffered injuries
to her head and face, felt the sensation of being dragged before she lost
consciousness. When she briefly regained consciousness, she realized that she was
in the restroom adjacent to the manager’s office.
Robin Lynette Blix, also a desk clerk at the motel, testified that the
[Petitioner], whom she recognized as an acquaintance of her ex-boyfriend, entered
the lobby of the motel through the front door just before midnight. According to Ms.
Blix, the [Petitioner] left the lobby before the victim, who began her shift at
midnight, arrived for work. She recalled that the victim had locked all of the motel’s
exterior doors shortly after her arrival. Ms. Blix remembered that the [Petitioner] had
been a guest at the Microtel several days earlier, but was not registered on the night
of the robbery.
Alicia Hendrickson, general manager of the Microtel, explained that key cards
issued to guests were programmed to open both the individual guest rooms and the
exterior doors. She explained that each key card could be used until a new key was
created with the same room number. Ms. Hendrickson, who attended the same high
school as the [Petitioner], recalled that he was a guest at the motel from June 5
through June 12, and still owed more than $200 for his lodging. She testified that
when the [Petitioner] checked into the motel on June 5, he paid for one day and made
arrangements to pay for the balance of his stay when he received his paycheck. Ms.
Hendrickson explained that she had made a similar arrangement with the [Petitioner]
on an earlier occasion and that he had paid the full balance. After being notified of
the robbery, Ms. Hendrickson went to the motel and gave the [Petitioner’s] name to
police based upon the description of the perpetrator provided by other witnesses. Ms.
Hendrickson testified that more than $400 was missing after the robbery.
Robert Wayne Hughes, who was training as a reserve deputy for the Sullivan
County Sheriff’s Department at the time of the offenses, testified that he and his
girlfriend, Suzanne Faye Lawson, arrived in separate cars at the Microtel between
1:00 and 1:30 a.m. As Hughes drove closer to the entrance of the motel, he saw a
masked black male, who was wearing dark brown clothing, lurking in a hallway near
the lobby. According to Hughes, the individual retreated into the hallway after seeing
him outside. Hughes then directed Ms. Lawson to follow him to an adjacent parking
lot so that they could not be seen from the lobby. Afterward, Hughes drove back
toward the lobby and walked to the call box to summon an attendant. After the victim
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allowed him into the lobby, Hughes checked the hallway near the lobby to see if
anyone was there. He stated that when he informed the victim that he had seen a man
lurking near the lobby, she did not seem concerned, apparently believing that the
individual was a registered guest.
Suzanne Faye Lawson, Hughes’ girlfriend, testified that she observed an
individual, whom she later identified as the [Petitioner], drive a car from the rear
parking lot of the motel, park, and then walk toward her vehicle. Ms. Lawson stated
that she saw the [Petitioner’s] face as he walked within ten feet of her car. She
described the [Petitioner] as wearing dark gray clothing and having black hair, a
medium complexion, and a slim build. Later, she saw the [Petitioner] enter a back
door of the motel. Ms. Lawson remembered that when she informed Hughes that she
had seen the [Petitioner] enter through the back door, Hughes checked the floors and
then called the front desk to tell the clerk of the [Petitioner’s] presence. After the
robbery, Ms. Lawson identified the [Petitioner] from a photographic lineup as the
individual she had seen enter the motel.
James Alexander Bardinelli and Joel Dingus, employees of a Kroger located
adjacent to the Microtel, were standing outside their place of business sometime
between 2:00 and 2:15 a.m. They were approached by the [Petitioner], who offered
to sell them some sporting tickets. Bardinelli, who identified the [Petitioner] from a
photographic lineup, recalled that he and his brother had seen the [Petitioner] the day
before. Dingus saw the [Petitioner] drive into the parking lot of the Microtel and
enter through a back door.
At 2:39 a.m., Sergeant Dan Brookshire and Officer Mark Osterman of the
Kingsport Police Department responded to the silent alarm at the Microtel. Upon
their arrival, the front door was locked and there was no clerk located in the desk
area. After someone inside opened the door, Officer Osterman examined the front
desk area while Sergeant Brookshire stayed in the lobby. Sergeant Brookshire
observed a screwdriver stuck in the doorjamb of the restroom located adjacent to the
front desk. Officer Osterman, who had seen a large amount of blood on the floor
behind the front desk and on the restroom door, was unable to open the restroom door
because the screwdriver had been lodged between the door and the frame. When the
screwdriver was removed, the officers discovered that the door was locked. After
gaining entry by the use of a knife, officers discovered the victim, who was badly
injured and lying in a pool of blood.
Detective Penny Kindle of the Kingsport Police Department testified that she
interviewed the victim at Wellmont Hospital on the day following the crimes. She
took several photographs which depicted the various injuries the victim had suffered
during the attack. After the [Petitioner’s] arrest, Detective Kindle noticed that
[Petitioner’s] right hand was swollen.
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Mary Kay Arnold, who was dating the [Petitioner] at the time of the offenses,
testified that the [Petitioner] was at her residence until 10:00 p.m. on the day before
the robbery. She recalled that he was wearing blue jeans and a red tee shirt when he
left. According to Ms. Arnold, the [Petitioner] returned shortly after 3:00 a.m. the
following morning. Awakened by the sound of running water in her kitchen sink, she
walked downstairs and heard the [Petitioner] say, “Do not come into the kitchen.”
According to Ms. Arnold, the [Petitioner] was wearing the same clothing he had on
earlier in the evening. She noticed that his right hand was swollen. She testified that
the [Petitioner] then left the residence and, when he returned shortly after sunrise, he
was wearing a yellow shirt, yellow hat, and blue jeans and was carrying a Proffitt’s
bag. The [Petitioner] handed her a pair of brown suede boots and asked her to discard
them. According to Ms. Arnold, the boots had dark red or brown stains on the toe
area. She recalled that the [Petitioner] asked her to drive to the Laundromat, where
he dumped clothing from a black plastic bag into a washing machine. Ms. Arnold
testified that she did not see the clothing that had been in the bag and conceded that
she had originally lied to the police regarding the [Petitioner’s] whereabouts on the
night of the offenses. She explained that she “was scared because [she] had thrown
away some boots and my friend told me that he might have been the one.”
Officer David Quillen testified that the [Petitioner] asked to speak with him
on the day after the robbery. According to Officer Quillen, the [Petitioner] initially
denied any involvement, claiming that he had been living in his car and was asleep
at the time. Eventually, the [Petitioner] acknowledged that he had been at the
Microtel prior to the robbery. When Officer Quillen noticed that the [Petitioner’s]
right hand was badly swollen, the [Petitioner] explained that he had hit someone but
refused to identify the individual. The officer stated that the [Petitioner] at first
denied committing the robbery but later qualified his claim, pointing out that “no
person saw [him] commit any crime.”
Dr. Joann D’Aprile Lukes, who treated the victim, testified that there was a
three-centimeter laceration on the victim’s left eyebrow, a five-centimeter laceration
on her left ear, a one-centimeter scalp laceration, and a one-centimeter laceration on
her left middle finger. She described the victim as having extensive swelling on the
right side of her face. Her right eye was swollen shut, her lips were swollen, and her
entire facial area was black and blue.
Dr. Timothy A. Urbin, a neuropsychologist, observed severe injuries to both
sides of the front part of the victim’s brain and lesser injuries to the right side of the
back part of her brain. He diagnosed the victim with a concussion and
Post-Traumatic Stress Disorder. It was his opinion that the victim would experience
difficulties with her thought processes for the remainder of her life.
The victim, sixty-five-year-old Shirley Huffman, recalled that just prior to the
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attack, a guest warned her that he had seen a man lurking in the lobby. As a result,
she removed $200 from the cash drawer behind the front desk and placed it in the
safe. Later, just after the same guest telephoned the front desk to tell her that he had
seen someone on the second floor of the motel, a light-skinned black male appeared
in the lobby, jumped over the counter, and began to beat her with his right fist,
eventually threatening to shoot her. The victim testified that she struggled to reach
the alarm button but was not sure if it was activated because she eventually lost
consciousness. She recalled that when she regained consciousness, she realized that
she was on the floor of the restroom and was able to lock the door from the inside.
The victim was unable to identify the defendant’s face because he wore a ski mask
during the attack, but otherwise described him as only slightly taller than her.
Karen N. Lanning, an agent with the FBI, testified for the defense. Ms.
Lanning, an expert in the field of fiber and hair analysis, stated that she had examined
a number of hairs collected from inside the [Petitioner’s] vehicle and determined that
none of them belonged to the victim. She also examined hairs found on the victim
and concluded that they were not those of the [Petitioner]. Ms. Lanning stated that
if the perpetrator were wearing a mask, gloves, a long-sleeve shirt, pants, and boots,
she would not expect to find his hair at the crime scene.
Three forensic scientists with the TBI testified for the defense. Hoyt Phillips
testified that he compared two latent fingerprints and one palm print found at the
scene with the known prints of the [Petitioner] and determined that the prints found
at the scene were not those of the [Petitioner]. Joe Minor testified that he examined
the accelerator pedal and brake pedal from the [Petitioner’s] car and concluded that
there was no blood on either. He also found no blood on the floor mats from the
[Petitioner’s] car. Minor stated that no blood was found on the six pairs of the
[Petitioner’s] shoes that were tested. Linda Littlejohn compared the [Petitioner’s]
shoes with impressions left at the scene and determined that none of the shoes tested
matched the impression.
Id. at *1-4.
As previously stated, the Petitioner contends, among other things, that he received ineffective
assistance of counsel. He asserts that his trial counsel was ineffective in nineteen ways, and he
offered testimony in support of each of these claims at the post-conviction hearing. Because of our
standard of review, we must examine all the proof presented that is relevant to the Petitioner’s claims
in this appeal. To that end, the following relevant evidence was presented at the post-conviction
hearing:
James Moffitt, a detective with the Kingsport Police Department, testified that, on June 21,
1999, he arrested the Petitioner at an apartment located in a government housing apartment complex
in Johnson City, Tennessee. A Johnson City police officer transported the Petitioner to the Johnson
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City limits, near Kingsport, and, in Kingsport, a Kingsport police officer took custody of the
Petitioner. The detective said that the Petitioner’s 1978 Chevrolet Caprice was legally parked in the
parking lot of the apartment complex, and the car was confiscated and towed to the Kingsport Police
Department. Detective Moffitt did not have a search warrant for the vehicle, and he assumed that,
after the vehicle was taken to Kingsport, a search warrant was issued before the vehicle was
searched. On cross-examination, Detective Moffitt testified that the apartment belonged to someone
other than the Petitioner, namely a woman named Kathy Pierce. He discovered the apartment’s
address by looking through phone records at the Microtel Inn, which showed that phone calls had
been made to the apartment from a room registered to the Petitioner. Detective Moffitt testified that
he had a description of the Petitioner’s vehicle, which is how he identified the vehicle in the
apartment parking lot.
Frank Light, a detective with the Kingsport Police Department, identified a Sullivan County
search warrant for the Petitioner’s vehicle. Detective Light testified that Detective David Joe Cole
told him that he had a valid arrest warrant for the Petitioner, and Detective Light went to Kathy
Pierce’s apartment to arrest the Petitioner. He said that he went to the apartment complex with other
detectives and talked with Pierce, who informed him that the Petitioner was not at the apartment.
Detective Light testified that, when he was returning to the police department, he received a page
from Pierce informing him that the Petitioner was at her apartment. The detective said that the other
detectives returned to the residence looking for the Petitioner’s vehicle. When the detective returned
to the residence, he knocked on the door, and Pierce answered, and she allowed the police inside the
apartment. Detective Light then arrested the Petitioner. On cross-examination, Detective Light
testified that Detective Cole informed him that there was an arrest warrant for the Petitioner.
Detective Cole also advised him that the Petitioner might be driving a 1978 Caprice, and, before
seeing the vehicle at the apartment, Detective Light did not request a search warrant for the vehicle.
Detective Light testified that the Petitioner was arrested in Johnson City, and Johnson City police
transported the Petitioner to the Sullivan County line. The Petitioner was then taken to the Kingsport
City Jail. He stated that the Petitioner’s vehicle was towed to Sullivan County, and it was taken as
evidence to the Kingsport Police Department.
Detective Cole testified that, as part of this investigation, he recovered a Montgomery Ward
receipt when he searched the Petitioner’s vehicle. He said that when he first saw the receipt it did
not mean anything to him, and he put it in a box labeled “various papers.” Detective Cole stated
that, subsequently, the victim told him about a second Montgomery Ward receipt found at the crime
scene. The detective identified the screwdriver that was found in the door of the bathroom at the
Microtel. He said that he accompanied post-conviction counsel and Charles Coomer to the hotel to
view the bathroom door and to run a test on the door. When he examined the door, it appeared to
be unchanged from the night of the robbery. Detective Cole testified that he found a mark on the
door just above the hinge where the screwdriver had been placed during this crime. Detective Cole
said that, after determining where the mark was located, he assisted post-conviction counsel by
lodging the screwdriver in that same area of the door. Coomer then opened the door without
difficulty, and the screwdriver fell on the floor. On cross-examination, Detective Cole testified that
he did not know if the screwdriver found at the scene belonged to the hotel, and there were no tools
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stored near the area where the screwdriver was found. Based on his investigation, the screwdriver
appeared to be placed in the door to keep the door closed, but he thought that the victim locked the
door from the inside.
Both sides stipulated that Charles Coomer, a resident of Kingsport, went to the Microtel with
post-conviction counsel and Detective Cole, and he witnessed Detective Cole place the screwdriver
in the doorjamb. After the screwdriver was placed in the door in two different positions, Coomer
opened the door without difficulty.
Dan Brookshire, an officer with the Kingsport Police Department, testified that he responded
to the robbery at the Microtel, and, when he gained entrance to the hotel, he found the clerk in the
bathroom and a screwdriver lodged into the top of the left side of the door near the hinge. He stated
that the door was locked from the inside, and he was unable to open the door by turning the handle.
The officer did not know whether the screwdriver prevented the door from opening, and he thought
that Detective Moffitt gained access to the door by using either a screwdriver or a knife to open the
latch of the door.
Mark Edward Osterman, an officer with the Kingsport Police Department, testified that he
responded to an alarm at the Microtel, and, when he arrived, he noticed a screwdriver stuck in the
doorjamb near the hinge at the top left side of the bathroom door. He said that the door was locked
when he arrived. The officer did not know who removed the screwdriver, he did not recall seeing
the door open, he did not remember exactly when the screwdriver came out of the door, and he did
not know if the screwdriver in the door prevented the door from being opened.
The Petitioner testified that he initially filed a pro se petition for post-conviction relief in
which he alleged that his trial counsel, (“Counsel”), was ineffective for several reasons. The
Petitioner asserted that Counsel was ineffective for failing to file several pre-trial motions, and for
failing to request a change of venue based upon pretrial publicity. The Petitioner informed Counsel
of pretrial publicity that the Petitioner believed was false and prejudicial to his trial. Additionally,
the Petitioner stated that Counsel was ineffective for failing to file a motion for individual voir dire
of the jury before trial to determine if they had seen or read any of the prejudicial pretrial publicity.
Also, based upon this publicity, the Petitioner stated that Counsel should have filed a motion to
dismiss the indictment and should have asked the trial court to inquire if the grand jury was
influenced by the newspaper article. He stated that he discussed this issue with Counsel on
numerous occasions, both in person and by letters.
The Petitioner testified that Counsel was ineffective for failing to file a motion to suppress
evidence based on his illegal arrest. He clarified that Counsel ineffectively failed to investigate the
fact that his arrest was illegal. The Petitioner alleged that his arrest was illegal because it occurred
at an apartment owned by someone other than the Petitioner, and, when the owner asked the police
officers if they had a warrant, the officers were obligated to get a search warrant. He said that,
instead, the officers entered the home, arrested him, and took his car keys, shoes, and other items
from him. The Petitioner testified that the officers wrongfully took him to the Kingsport City Jail
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instead of the Washington County Jail. The Petitioner identified an arrest warrant for him that
alleged that he committed aggravated robbery. He noted that the warrant stated that it was applied
for by Detective Cole and signed by Dwayne Snodgrass. The warrant stated that it was to be
executed at 941 Maple Street, but the Petitioner asserted that Counsel should have challenged the
affidavit that supported the warrant because it lacked probable cause. He believed that, had Counsel
addressed this issue, his arrest would have been found unlawful and the evidence against him would
have been suppressed.
Similarly, the Petitioner testified that Counsel failed to file a motion to suppress a
Montgomery Ward receipt that was illegally seized from his car. The Petitioner testified that a
search warrant for his vehicle was issued on June 22, 1999, and it gave police “authority to look for
blood, clothing, ski masks, Microtel keycard, money, AAU basketball tickets, and any evidence
pertaining to aggravated robbery at the Microtel on [June 20, 1999].” The warrant stated that the
Petitioner’s vehicle was located in the basement of the Justice Center in Kingsport, Tennessee, but
the Petitioner had not given anyone permission to move his vehicle from Pierce’s apartment. The
Petitioner stated that the Montgomery Ward receipt was not listed on the search warrant, and the trial
court should have ruled that it was inadmissible. The Petitioner said that there was a second
Montgomery Ward receipt found at the Microtel four or five weeks after the robbery, and it was also
introduced at trial. The Petitioner testified that he discussed the receipts with Counsel because the
Petitioner thought that the receipts were the only physical evidence that linked him to this crime.
When the Petitioner discussed the receipts with Counsel, Counsel stated that he did not want to
suppress the receipt because that would also result in the suppression of other evidence that was
favorable to the Petitioner, such as the forensic evidence that came from the vehicle with test results
showing “no match” for the Petitioner. The Petitioner, however, wanted Counsel to argue the illegal
seizure of the vehicle and of the receipt. The Petitioner conceded that, at trial, Counsel objected to
the introduction of the second receipt, arguing that it was irrelevant and prejudicial. Also, with
regard to the receipts, the Petitioner asserted that Counsel was ineffective for failing to object to the
chain of custody.
The Petitioner also asserted that Counsel ineffectively failed to file a motion for a speedy
trial. The Petitioner testified that he contacted Counsel, prior to any delays in the trial, and
specifically stated that he wanted Counsel to file a motion for a speedy trial. He stated that, had this
been done, the investigations would have been completed sooner, and he could have possibly located
other witnesses for his trial.
The Petitioner testified that Counsel ineffectively failed to investigate the Petitioner’s case
in several ways. The Petitioner testified that Counsel should have investigated whether the grand
jury foreman was properly authorized. He said that the same grand jury foreman indicted him for
other offenses, and the foreman was, therefore, not properly authorized. The Petitioner also asserted
that Counsel failed to adequately investigate the case by not hiring a private investigator. He said
that an investigator was necessary because his case was complicated, and the police investigation
was faulty. The Petitioner testified that Counsel failed to adequately investigate the screwdriver in
the door. He asserted that Counsel should have conducted tests on the screwdriver found at the hotel
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to determine if the screwdriver prevented the victim from exiting the restroom. He stated that, based
on these tests, he believed that the State would not have proven the forced confinement element
required for aggravated kidnapping.
The Petitioner also asserted that Counsel was ineffective during his trial because he failed
to object to the trial court’s determination that closing arguments be limited to forty minutes, which
was unfair because of the complexity of his case. He agreed that Counsel asked the Court for
additional time for his closing argument, and, further, that Counsel raised this issue on direct appeal.
During the trial, the Petitioner testified that Counsel was ineffective when he failed to object to the
trial court’s instruction that trial decisions were to be made by Counsel, not the Petitioner. He also
testified that Counsel was ineffective for not attempting to admit a witness’ statement to Officer
Osterman that implicated someone else in this crime. He asserted that Counsel failed to get that
witness’ name and address so that the witness would be present at trial. Similarly, he stated that
there was exculpatory information from three witnesses who stated that they had observed another
black male outside the hotel prior to the robbery. The Petitioner admitted that there were jury-out
hearings during the trial on this issue, and the trial court ruled that Officer Osterman could not testify
about the statement because it was hearsay. The Petitioner testified, though, that he wanted Counsel
to tell the jury about this hearsay statement during his opening statement, which was prior to the trial
court’s ruling on this issue, in order to establish to the jury that the police were negligent in their
investigation. The Petitioner said that he instructed Counsel to tell the jury that the police officers
failed in their investigation. The Petitioner also testified that Counsel failed to object to the trial
court’s instruction to the jury, before their verdict, about the amount of the Petitioner’s fine.
The Petitioner asserted that Counsel was ineffective during the sentencing phase of the trial
because he failed to object to the trial court’s finding not to allow the Petitioner the right of
allocution. He explained that Counsel should have objected because the trial court sentenced him
without asking the Petitioner if he wished to make a statement in court, and he said that he did not
know that he had the right to allocution until after his sentencing hearing. He stated that, if he had
been able to speak, he might have been able to persuade the judge not to give him the maximum
sentence. He explained that he would have stated that the case was weak and full of errors and that
he would have explicitly stated that the screwdriver could not have prevented the victim from
leaving the restroom at the Microtel. The Petitioner testified that he asked Counsel to raise this issue
in the motion for new trial, but Counsel did not do so, and Counsel did not raise this issue on direct
appeal.
The Petitioner asserted that Counsel was ineffective during his direct appeal. First, he
testified that Counsel represented him on appeal against the Petitioner’s will. He stated that, on
December 6, 2002, he filed a civil lawsuit against Counsel. He said that this lawsuit was filed prior
to Counsel’s submission of his appellate brief and prior to the oral argument in this case.
Additionally, the Petitioner stated that he sent letters to Counsel asking Counsel to withdraw, and
he filed motions with the appellate court asking that Counsel be removed from his case. The
Petitioner testified that Counsel did not file a motion to withdraw until the time period for filing the
petition to rehear had expired. He testified that Counsel’s failure to file a timely motion to withdraw
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prevented the Petitioner from representing himself or getting new counsel appointed. He explained
that Counsel should have filed a motion to withdraw when Counsel was notified of the Petitioner’s
lawsuit against him, but Counsel did not file a motion to withdraw until four months after Counsel
was served with the civil lawsuit.
The Petitioner testified that, in his direct appeal, Counsel was ineffective for not raising the
issue that the Petitioner’s vehicle was illegally searched, and that the Montgomery Ward receipt was
inadmissible as fruit of the illegal search. He asserted that this prejudiced him because Counsel
would have been successful with this issue on direct appeal. The Petitioner noted that the Court of
Criminal Appeals ruled in his direct appeal that the Montgomery Ward receipt found at the Microtel
was inadmissible, but that the error was harmless. He asserted that the Court would have found the
error harmful if the Montgomery Ward receipt found in his car was also improperly admitted.
Therefore, he asserted that he was prejudiced by Counsel’s failure to appeal this issue.
The Petitioner asserted that Counsel was ineffective because Counsel breached a written
contract with the Petitioner. The Petitioner testified that, according to the contract, Counsel was
supposed to file a supplemental brief that the Petitioner had drafted with Counsel’s appellate brief.
The Petitioner testified that his mother delivered the Petitioner’s supplemental brief to Counsel’s
office, but Counsel never filed the supplemental brief. He stated that he attempted to file his pro se
brief with the Court, but his request was denied because the Petitioner was represented by Counsel.
The Petitioner testified that his supplemental brief contained issues not raised by Counsel’s appellate
brief, and he believed that, if Counsel had raised those issues, he may have had a different result on
appeal. The Petitioner testified that Counsel failed to provide him with a copy of Counsel’s appellate
brief prior to filing the brief.
On cross-examination, the Petitioner testified that he did not tell Counsel that he had an
“alibi,” but he told Counsel that he was at Club Harvey’s on the night of this crime, and he asked
Counsel to talk to Marshall Dover, a doorman at Club Harvey’s to verify this. The Petitioner
testified that he met with Counsel on this case “no more than five times,” not sixteen times. The
Petitioner testified that Counsel did not tell him that the State had turned its file over to Counsel, and
he did not receive copies of everything in the file.
With regard to the pretrial motions, the Petitioner testified that he told Counsel that, unless
something was planted in his vehicle, there was nothing from his vehicle that would connect him to
this crime. The Petitioner testified that he filed a number of newspaper articles containing pretrial
publicity. He said that the trial court asked the jurors if they had read any of the newspaper articles,
but none had. The Petitioner testified that he wanted the Montgomery Ward receipt from his vehicle
excluded, but he also wanted other evidence from the search that was beneficial to him to be
admitted. The Petitioner testified that he compared the receipt found at the hotel with the receipt
found in his vehicle, and he told Counsel that the receipt from the vehicle was his, and the other
receipt could belong to him. He testified that Counsel failed to file a motion to suppress his arrest,
which he asserted was illegal because he was taken to Kingsport and not to the Washington County
Jail. He explained that he should have been taken to the nearest magistrate. The Petitioner admitted
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that Kingsport had a warrant for his arrest, but he stated that there was no probable cause to issue
the warrant. The Petitioner testified that Counsel should have hired a private investigator to
investigate the officers, crime scene, and the evidence, and he stated that Counsel did not investigate
or go to the scene himself.
The Petitioner testified that Counsel did not move for a speedy trial, even though he told
Counsel that he wanted to “move on with this case fast as possible” in late 1999 or early 2000. The
Petitioner testified that he did not recall asking for a continuance on January 18, 2000, to obtain
reports and evidence from the TBI and the FBI. He said that he and Counsel agreed with the State’s
request for a continuance to obtain test results from the TBI or FBI, which he stated did not place
him at the scene. The Petitioner did not recall if the State asked for a continuance on July 17, 2000,
or if the defense requested a continuance on September 18, 2000. The Petitioner testified that
Officer Osterman’s testimony created the need for a continuance on February 21, 2001. He
concluded that, of four continuances, he only remembered that the defense asked for one. He agreed
that, if any of the agents could not appear in court, the defense would have been forced to request
a continuance to get their testimony on the record. He stated that, after the defense determined that
the evidence was beneficial to the Petitioner, the defense would have wanted those witnesses to
testify.
The Petitioner recalled telling Counsel during trial that Counsel had done a good job on some
of the issues. The Petitioner said that, after the trial, and at sentencing, he wanted to speak to the
trial court about his sentence. He identified a sentencing report that stated that “the [Petitioner] did
not wish to make a statement.” The Petitioner testified that he and Counsel were present during his
sentencing, and he recalled that there was no presentence hearing report for this case, so the
presentence report for a different case was utilized.
The Petitioner testified that he asked Counsel to withdraw from this case on numerous
occasions, both prior to and during the appeal, but Counsel refused to withdraw. He identified a
document showing that the Court of Criminal Appeals denied Counsel’s motion to substitute counsel
because the Petitioner did not show good cause for the removal of his attorney. He stated that
Counsel has represented him on several other cases, some of which are still pending. The Petitioner
testified that he filed a malpractice lawsuit against Counsel, which was dismissed because the
Petitioner was unable to a pay an independent attorney to file an affidavit stating that Counsel’s
conduct was negligent. The Petitioner received a letter from Counsel on March 26, 2003, stating that
Counsel could not represent the Petitioner because the Petitioner filed a lawsuit against Counsel.
He said that Counsel actually withdrew on April 2, 2003, one day prior to the time limit for filing
a motion for rehearing. The Petitioner conceded that Counsel gave him a copy of his appellate brief
after it was filed.
Counsel testified about his investigation and preparation for trial. He said that, for this case,
he met with the Petitioner sixteen times to prepare for trial and to discuss issues related to the
Petitioner’s case, and each meeting lasted between thirty minutes and two hours. Counsel testified
that he also met with the Petitioner several other times, and he received about thirty or more phone
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calls from the Petitioner. Counsel testified that he had open-file discovery from the State, meaning
that he had access to everything in the State’s file other than work product. He said that he had
access to all witnesses’ statements before trial, but he remembered that some witnesses did not give
a statement. Counsel testified that he went through the file, page-by-page, copied whatever he
needed and took notes, and he provided the Petitioner with a copy of everything he had, including
the witnesses’ statements. Counsel stated that the Petitioner called and asked specifically about the
witnesses’ statements, and he said he was sure that the Petitioner had every witness statement that
Counsel had. He said that, in comparison to his other criminal defense cases, the State in this case
provided him the most access to the prosecution’s file, and anything he asked to see he was given.
Counsel testified that he never thought about hiring an investigator, and he did not recall if he
discussed this issue with the Petitioner. He testified that he spent approximately 149 hours out-of-
court on the Petitioner’s case, he interviewed all of the officers and witnesses, and he went to the
hotel and surrounding area a couple of times.
Counsel recalled that, during his investigation, the Petitioner mentioned a potential alibi, but
at different times the Petitioner gave him different alibis. Counsel testified that the Petitioner
admitted he was at the crime scene, and several witnesses placed the Petitioner at the Microtel.
Counsel agreed that the Petitioner stated that he was in the area selling stolen AAU tickets when he
returned to the Microtel, and, another time, the Petitioner told Counsel that he was selling cocaine
in the area and at Harvey’s Club. He did not recall the Petitioner wanting to use these illegal
activities as an alibi. Counsel testified that the Petitioner mentioned Mary Kay Arnold as a potential
alibi witness, but the Petitioner was adamant that he did not want Arnold involved.
Counsel testified that he and the Petitioner discussed the reasons for, and against, filing a
motion for a speedy trial. Counsel stated that the first trial date was January 18, 2000, and he and
the Petitioner agreed to ask for a continuance in order to get evidence from both the TBI and FBI.
He explained that this evidence was beneficial to the Petitioner, and he and the Petitioner decided
that they did not want to proceed to trial without it. Counsel explained that the Petitioner was
adamant that none of the evidence would link him to the crime, and the Petitioner stated there would
be no blood, fibers, or shoe prints connecting the Petitioner to the hotel. On the next trial date, July
17, 2000, the State filed a motion for a continuance because Detective Cole was going to be out of
town. Counsel testified that he opposed this motion, but the trial court granted the State’s motion.
The trial was set for September 18, 2000, but, on that date, Counsel said that he filed a second
motion for a continuance because some of the expert witnesses from the TBI and FBI could not be
present for trial. Counsel said that the State proposed that they stipulate to the testimony of the
experts, but the Petitioner wanted the experts to testify in court. Counsel testified that the trial date
was moved to February 21, 2001, and, close to that date, Counsel requested another continuance to
investigate evidence of a statement that Officer Osterman heard about the crime. Counsel testified
that this evidence was previously unknown to the defense. Counsel testified that the Petitioner
agreed to the continuance, and the trial court granted the continuance and set the trial date for July
23, 2001, and the trial proceeded on that date.
Counsel testified that he and the Petitioner discussed the issue of suppressing the evidence
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from the Petitioner’s vehicle. He stated that “it was a very fine line” because most of the evidence
from the vehicle helped the defense. He said that because the crime was so violent the lack of
forensic evidence in the Petitioner’s car was very important to the defense. Counsel testified that
he and the Petitioner discussed this issue several times, and they decided that they wanted the
evidence to be admitted. With regard to the motion for change of venue, Counsel testified that he
had no indication that the grand jury had been tainted by newspaper articles, and he did not recall
discussing this with the Petitioner. Finally, concerning the motion to suppress the Petitioner’s arrest,
Counsel testified that, while he was aware that the Petitioner was arrested in Johnson City, which
is located in Washington County, not Sullivan County, he was unaware that there was anything
illegal about the Petitioner’s arrest. He opined that any motion regarding the Petitioner’s arrest
would have been frivolous.
Counsel testified that, during trial, the Petitioner’s comments about Counsel’s performance
were very positive, and the Petitioner indicated that he was pleased with Counsel’s handling of the
case. He remembered that the Petitioner wanted Counsel to present in opening arguments the
statement that Officer Osterman had heard, but the judge had ruled that the statement was
inadmissible hearsay. Counsel testified that he had the opportunity to cross-examine Officer
Osterman, and he referenced and challenged the way the officer handled the crime scene. Counsel
testified that, during this cross-examination, he went through the information that the Petitioner
wanted him to cover. Counsel also recalled that, after closing arguments and during jury
deliberation, the Petitioner was confident that the jury would acquit him. Counsel testified that he
and the Petitioner resolved their issues about the case either in person or on the phone, and he said
that there were no unresolved issues. Counsel testified that he was certain that the Petitioner would
have told him if the Petitioner had any unresolved issues.
Counsel testified that he and the Petitioner had discussions about the Petitioner’s sentencing.
He stated that they reviewed the presentence report, the victim impact statements, and the
Petitioner’s prior convictions to ensure that all of these were accurate. The Petitioner did not
indicate that the report was inaccurate or that it omitted information.
Counsel testified that the Petitioner filed a civil rights complaint against him on December
6, 2002, twelve days after oral arguments before the Court of Criminal Appeals. He testified that
he received an order from the Court of Criminal Appeals on December 16, 2002, denying the
Petitioner’s request to remove Counsel. Counsel testified that one of the Petitioner’s complaints
involved Counsel’s refusal to file a supplemental brief that the Petitioner drafted. He said that he
had received this document from the Petitioner, but he had not agreed to submit the brief. Counsel
stated that he read the Court of Criminal Appeals decision when it was released, and, at that time,
he sent a letter to the Petitioner informing him that Counsel would make a request to withdraw. He
testified that the letter also informed the Petitioner that he could appeal his case, and the letter set
forth the deadlines in the Petitioner’s case. Counsel stated that he also sent this information to the
Court of Criminal Appeals.
On cross-examination, Counsel again testified about the Petitioner’s complaint that he was
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ineffective for failing to file pretrial motions. He said that he knew that he could have filed a motion
to exclude the Montgomery Ward receipt obtained from the Petitioner’s car without requesting that
other evidence from the car be suppressed. He testified that he did not recall whether he filed a
motion in this case, but he knew that he had raised the issue on the morning of the Petitioner’s trial.
Counsel conceded that he knew about the two Montgomery Ward receipts well in advance of trial,
but he and the Petitioner were not concerned about the receipt from the vehicle because it was
irrelevant. Counsel testified that he and the Petitioner were concerned about the receipt found in the
victim’s belongings because that was the only piece of evidence that placed the Petitioner on the side
of the counter with the clerk. About the speedy trial motion, Counsel testified that he and the
Petitioner discussed the speedy trial issues but had resolved those issues. He explained to the
Petitioner that, by agreeing to or seeking continuances, the Petitioner was giving up his right for a
speedy trial. About the motion to suppress the Petitioner’s arrest, Counsel testified that he reviewed
the arrest warrant to determine if probable cause existed, and he discussed this with the Petitioner.
About the motion for a change of venue, Counsel testified that he first became aware of newspaper
articles about the crime when he first met with the Petitioner, and he did not file a motion for a
change of venue or for individual voir dire of the jurors. He explained that he felt that, by filing a
motion, the issue would be brought to the jurors’ attention. Counsel testified that he did not recall
any jurors having knowledge of the case, which surprised him.
With regard to his investigation of this case, Counsel testified that, when he was appointed
to the case, he met with Detective Cole first to determine the names of the officers that were present
at the crime scene. He stated that he then interviewed every officer that was present at the crime
scene. He testified that he interviewed Officer Osterman, and the officer did not tell him that the
officer had heard a third party statement. Counsel recalled that he thoroughly discussed the crime
scene with Officer Osterman, and he testified that Officer Osterman never mentioned the statement
until just before the February 2001 trial date. Counsel testified that this statement was helpful to the
defense, and he said that Officer Osterman offered no explanation on why it took him so long to
recall this statement. Counsel testified that he went to the Microtel on at least two occasions, but
he did not attempt to determine whether the screwdriver prevented the door from opening. He
explained that he inspected the door and the bathroom, and he spoke with the officers about this
issue. Counsel testified that the Petitioner complained that no tests had been done on the door early
on, but Counsel decided that it was best to not test the door and to argue that the State failed to prove
that the screwdriver prevented the door from opening. Counsel said that he also raised this issue on
appeal.
Counsel testified that, just before closing arguments, the Petitioner demanded that he raise
the issue of an illegal arrest. Counsel thought that he did not have enough facts to support this issue,
so he approached the trial court, and the trial court ruled that he could not address this issue. He
testified that he did not raise the issue of illegal arrest on appeal. He explained that his
understanding of the Petitioner’s argument related to the illegal arrest is that Sullivan County officers
arrested the Petitioner in Washington County, and he stated that he did not think that the Petitioner’s
arrest was illegal. Counsel testified that he explained to the Petitioner that the Petitioner had a right
to speak at his sentencing, but the Petitioner chose not to speak. He said that the Petitioner felt that
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this was an issue to raise on appeal. Counsel did not recall if he had ever tried an aggravated robbery
or aggravated kidnapping case before the Petitioner’s case, but he stated that he had tried felonies
of every class.
Counsel testified that, at various stages throughout his representation, the Petitioner would
communicate that he was satisfied or unsatisfied with Counsel’s performance. Counsel testified that
the Court of Criminal Appeals ruled, on more than one occasion, that there was not just cause for
Counsel’s removal. He stated that, after oral argument, he did not feel that he needed to withdraw
because he was waiting for the opinion to be released. Counsel testified that he reviewed the
Petitioner’s supplemental appellate brief for any legitimate issues, but he did not see any issues in
the supplemental brief that he thought should have been raised on appeal. Counsel thought that he
had addressed every issue he could legitimately raise with the Court of Criminal Appeals. He stated
that it was not his understanding that he agreed with the Petitioner to file the supplemental brief.
Counsel testified that he did not raise some of the issues that the Petitioner complained about
during the post-conviction hearing in the Petitioner’s direct appeal. Counsel testified that he met
with the Petitioner prior to filing a motion for new trial, and he stated that they went through each
of the issues that the Petitioner had written down. Counsel recalled that they reached a resolution
on each of the issues, and he said that the Petitioner was satisfied. He stated that, except for the
illegal arrest issue which he thought lacked merit, he raised those issues on appeal. Counsel said that
he raised thirteen issues on appeal, including the issue about the statement that Officer Osterman
heard, which was an important one to the Petitioner. Counsel said that he did not raise issues that
he deemed frivolous because they were unsupported by law. Counsel recalled that the Petitioner was
satisfied with the thirteen issues raised on appeal. He said that he raised the issue, on appeal, of how
many photographs were introduced about the victim’s injuries, and he testified that the Court of
Criminal Appeals determined that the issue was harmless error.
On redirect examination, Counsel testified that he made a motion to exclude items at trial,
and he called the trial court’s attention to the issue of the Petitioner’s illegal arrest, and the court
ruled on that issue. Counsel stated that, with regard to the failure to subpoena witnesses, the
Petitioner had certain people transported from the Department of Correction, including the
Petitioner’s brother, but once the witnesses arrived, the Petitioner decided that he did not want to call
them as witnesses. He testified that the Petitioner did not give him the names of any witnesses to
subpoena to support the Petitioner’s alibi or any other defense at trial.
Based upon this evidence, the post-conviction court issued an extensive order of dismissal
addressing numerous issues and concluded:
The [P]etitioner is not entitled to Post Conviction Relief upon any issue, or any of his
testimony, or any combination of issues, or upon his conclusions that he is entitled
to Post Conviction Relief, whether or not specifically addressed [in this order].
WHEREFORE the Post Conviction Petition is dismissed and the prayer for relief
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is denied upon this Court’s finding that the [P]etitioner has failed to prove by clear
and convincing proof that he is entitled to Post Conviction Relief or that he has failed
to establish actual prejudice.
It is from this order of the trial court that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that: (1) he received ineffective assistance of counsel; (2)
the State caused exculpatory evidence to be lost and unavailable to the Petitioner; (3) the trial court
denied his right to allocution; (4) the trial court improperly limited trial counsel’s time for closing
argument; (5) the trial court erred when it ruled that the Petitioner could not instruct his trial counsel
about trial strategy; and (6) the trial court erred by instructing the jury concerning the amount of fines
to be imposed.
In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
Upon review, this court will not re-weigh or re-evaluate the evidence below; all questions concerning
the credibility of witnesses, the weight and value to be given their testimony, and the factual issues
raised by the evidence are to be resolved by the trial judge, not the appellate courts. Momon v. State,
18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-
conviction court’s factual findings are subject to a de novo review by this Court; however, we must
accord these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.
A. Ineffective Assistance of Counsel
The Petitioner claims that the post-conviction court erred when it dismissed his petition
because Counsel was ineffective in four ways: (1) for failing to file several pretrial motions; (2) for
failing to adequately investigate the case; (3) for failing to adequately represent him at trial and
during sentencing; and (4) for failing to adequately represent him on appeal. The right of a
criminally accused to representation is guaranteed by both the Sixth Amendment to the United States
Constitution and Article I, section 9, of the Tennessee Constitution. Id.; Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). This right to representation includes the right to “reasonably effective”
assistance. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The Tennessee Supreme Court has held
that the issue of ineffective assistance of counsel is a mixed question of law and fact and, as such,
is subject to a de novo review. Id.
In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
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the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the requirement of prejudice, a
petitioner must show a reasonable probability that, but for counsel’s unreasonable error, the fact
finder would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695.
This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish unreasonable
representation. House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citation omitted); Thomas
Brandon Booker v. State, No. W2003-00961-CCA-R3-PC, 2004 WL 587644, at *4 (Tenn. Crim.
App., at Jackson, Mar. 24, 2004), perm. app. denied (Tenn. 2004). However, deference to matters
of strategy and tactical choices applies only if the choices are informed ones based upon adequate
preparation. House, 44 S.W.3d at 515.
1. Pretrial Motions
The Petitioner asserts that Counsel was ineffective for failing to file five different pretrial
motions: (a) a motion to suppress the seizure of his vehicle and, relatedly, a motion to suppress the
Montgomery Ward receipt found in the vehicle; (b) a motion to suppress fruits of his arrest; (c) a
motion for change of venue; (d) a speedy trial motion; and (e) a motion to hire a private investigator.
a. Motion to Suppress Vehicle Search
The Petitioner contends that Counsel was ineffective for failing to file a motion to suppress
all the evidence obtained from search of the Petitioner’s vehicle because it was illegally sized. The
State responds that Counsel was not ineffective for failing to file a motion to suppress because much
of the evidence from the Petitioner’s vehicle was helpful to the Petitioner. Additionally, the
Petitioner contends that Counsel was ineffective for failing to file a motion to suppress the
Montgomery Ward receipt found in the Petitioner’s vehicle. The State counters that Counsel was
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not ineffective because neither Counsel nor the Petitioner was concerned with the receipt, and neither
saw the value of attempting to suppress the receipt. Further, the State asserts that the Petitioner did
not prove prejudice.
With regard to whether Counsel was ineffective for failing to file a motion to suppress the
Petitioner’s vehicle’s seizure, the post-conviction court found:
The [P]etitioner was arrested in or at a home of a third party in Johnson City,
Tennessee (Washington County), and not out of his automobile. As a result, the
seizure of the vehicle was not a true and full Carroll doctrine seizure, but the officers
had exigent circumstances.
The officers knew the [P]etitioner’s car and Frank Light, Kingsport Police
Department officer, had a belief that the car had been used in criminal activity . . . .
In any case, the car was parked at a housing project parking lot and was evidently
mobile and capable of being operated.
The police did not search the car at the scene, but opted to tow the car to
Kingsport (Sullivan County) and then attempt to obtain a search warrant from a
Sullivan County General Sessions Judge.
....
Here, the police officers testifying at the Post Conviction hearing were about
five (5) years removed from the seizure and their memory at the time. The
automobile to be seized was in a public parking lot and mobile and the officer was
able to remember they had reason to believe the car was used in a crime. Also see:
search warrant.
In such circumstances, the Court cannot find the seizure or search was
unreasonable notwithstanding that some lack of detail supplied by the officers at the
Post Conviction hearing, to wit: generally car matches description of car at . . . scene
of crime. The [P]etition[er] seems to only say his car was seized; therefore, original
trial [counsel] was ineffective.
Further, original defense counsel testified that the police were searching for
blood that may have been carried into some portion of the car due to the great bloody
injury to the victim. The police checked the car out from stem to stern [driver’s
compartment to trunk where the papers/receipt were found]. The [original counsel]
indicated that he and the [Petitioner] were anxious to show that the lab report came
up zero in regards to the victim’s blood. Clearly, a trial tactic was involved.
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The post-conviction court concluded:
The towing of the car issue is without merit and the [P]etitioner has failed to prove
by clear and convincing evidence that the [P]etitioner’s original counsel was
ineffective to raise the towing [seizure] or search of the car issue at trial or on appeal.
Further, the [P]etitioner has failed to establish that he was prejudiced.
We conclude that the evidence does not preponderate against the post-conviction court’s
findings. The evidence shows that Counsel discussed with the Petitioner several times the issue of
suppressing the evidence from the Petitioner’s vehicle based on its allegedly illegal seizure. The two
concluded that Counsel should not file such a motion to suppress all the evidence found as a result
of the car’s search and seizure because much of the evidence, or rather the lack of blood evidence,
found in the car was favorable to the Petitioner. Indeed, the lack of forensic evidence from the car
was an important part of the Petitioner’s defense. Clearly, this was a tactical decision, and we will
not find Counsel ineffective merely because a different procedure might have produced a different
result. See Williams, 599 S.W.2d at 279-80. Under these circumstances, the Petitioner has not
proven that Counsel was ineffective, and he has not shown how he was prejudiced.
The Petitioner next contends that Counsel was ineffective for not filing a motion to suppress
the Montgomery Ward receipt that was found in the Petitioner’s car. The Petitioner asserts that the
search warrant for the Petitioner’s vehicle did not list items such as a receipt, and, therefore, a
motion to suppress the receipt would have been successful had it been filed by Counsel.
Furthermore, the Petitioner contends that, had this receipt been successfully suppressed, he would
not have been convicted. The State counters that Counsel was not ineffective in this regard because
neither he nor the Petitioner were concerned with the receipt because it was irrelevant. The post-
conviction court found:
The importance of the Montgomery Ward receipt taken from the car was that it
contained similarities with a Montgomery Ward receipt found at the scene of the
crime. In the State’s theory at trial, the Montgomery Ward receipt from the car
would connect the [P]etitioner to the Montgomery Ward receipt found at the scene.
. . . The Montgomery Ward receipt from the vehicle had no significance in itself,
unless considered in relation to the Montgomery Ward receipt found at the scene
bearing the name Thompson. . . .
The Montgomery Ward receipt found at the scene of the crime [not the one
found in the vehicle] was directly addressed on appeal. . . . Basically on direct appeal,
the Appellate panel determined that the Montgomery Ward receipt should not have
been admitted into evidence . . . and indirectly found that the Montgomery Ward
receipt found in the vehicle did not tend to authenticate the Montgomery Ward
receipt found at the scene. . . . Notwithstanding, the error of the trial court, the
Appellate panel found the admission of the Montgomery Ward receipt found at the
scene to be harmless error beyond a reasonable doubt. . . . .
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The post-conviction court concluded that Counsel was not ineffective for failing to move to suppress
the Montgomery Ward receipt found in the Petitioner’s car, and, further, the Petitioner had not
proved prejudice.
We conclude that the evidence does not preponderate against the post-conviction court’s
conclusion. The evidence showed that Counsel and the Petitioner were not concerned about the
receipt found in the Petitioner’s vehicle because it was “irrelevant.” The two were concerned with
other items found in the car, and Counsel filed a motion to suppress those items. Counsel’s theory
involved showing that there were innocuous items in the car, including a Montgomery Ward receipt.
This receipt then became important only when the State used it to tie the Petitioner to the crime by
showing that a similar receipt was found at the crime scene. We cannot judge Counsel’s
performance in hindsight, but we must judge it from Counsel’s perspective at the time. Cooper, 849
S.W.2d at 746. Under these circumstances, we cannot conclude that Counsel was ineffective for
failing to file a motion to suppress the receipt found in the Petitioner’s car.
b. Motion to Suppress Fruits of Arrest
The Petitioner contends that Counsel was ineffective when he failed to file a motion to
challenge the Petitioner’s arrest and to suppress evidence obtained as a result of the arrest, because
the arrest warrant, by which the Petitioner was arrested, was issued without probable cause. The
State asserts that the Petitioner has failed to demonstrate that his arrest was illegal, and, therefore,
Counsel was not ineffective for failing to file a motion to suppress the Petitioner’s arrest warrant.
The post-conviction court stated the following:
The [P]etitioner says that after the robbery and kidnap[p]ing in Kingsport,
Sullivan County, Tennessee, he was arrested in another’s home in Johnson City,
Washington County, Tennessee. . . . [The Petitioner] says they just came in and got
him. The [P]etitioner says things were taken from his person, but does not describe
anything inculpatory or anything taken from his person. Further, the [P]etitioner did
not establish his standing to object.
In any case, the State offered testimony at the Post Conviction hearing of the
officers that made the arrest. . . . The State’s witness at the Post Conviction hearing
[Moffitt and Light] indicated that they were aware that an arrest warrant was issued.
They believed the [Petitioner] was at a particular home in Johnson City [Washington
County, Tennessee]. They went to the home and the owner stated that [the
Petitioner] was not there. The police asked the homeowner to call if [the Petitioner]
showed up later. . . . Later, the homeowner called the police to tell them that the
[Petitioner] had showed up at her house. . . . The Kingsport Police accompanied by
Johnson City Police Officers returned to the home of the third party and knocked on
the door. The [Petitioner] was seen at the house and was arrested and taken into
custody.
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The Court credits the testimony of the officers testifying at the Post
Conviction hearing. . . . The allegation that original defense counsel was ineffective
for not attacking the arrest is without merit.
We conclude that the evidence does not preponderate against the post-conviction court’s findings.
Prior to closing arguments, the Petitioner asked Counsel to raise the issue of an illegal arrest.
Counsel specifically stated that he did not think that there was anything illegal about the Petitioner’s
arrest. The Petitioner bears the burden of proving that Counsel was ineffective. Our review of the
record supports the post-conviction court’s finding that Counsel’s performance in this regard was
within the range of competence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d
at 936. Further, to show prejudice, the Petitioner must prove that the outcome of the trial would be
different. Accordingly, he must show that this motion would have been granted. From the evidence
before us, we cannot conclude that a motion to suppress the arrest warrant would have been
successful, and, therefore, the Petitioner cannot meet the prejudice prong of our analysis. The
Petitioner is not entitled to relief based upon this issue.
c. Motion for Change of Venue
The Petitioner alleges that Counsel was ineffective for failing to move for a change of venue.
He asserts that a change of venue was necessary due to pretrial publicity. The State responds that
the Petitioner has failed to show that Counsel was ineffectiveness or that the Petitioner was
prejudiced by Counsel’s performance. Regarding this issue, the post-conviction court found as
follows:
The [P]etitioner alleges his original trial counsel was ineffective for not
seeking a change of venue. . . . The [P]etitioner offered newspaper clippings of news
stories from the Kingsport Times News, a newspaper of general circulation in
Sullivan County, Tennessee. . . . The voir dire conducted at the original trial indicated
that the prospective jurors were questioned in some detail about any prior knowledge
of the allegations . . . . Upon a review of the trial transcript . . . evidence it appears
that the [Petitioner] had a fair jury and that steps were taken to insure that the jury
was not tainted by outside influences such as news stories. . . . This issue is without
merit.
“[V]enue may be changed . . . if it appears to the court that, due to undue excitement against the
defendant in the county where the offense was committed or any other cause, a fair trial probably
could not be had.” Tenn. R. Crim. P. 21(a). The ultimate test is whether the jurors who actually sat
and rendered verdicts were prejudiced by the pretrial publicity. State v. Garland, 617 S.W.2d 176,
187 (Tenn. Crim. App. 1981). Prejudice will not be presumed by a mere showing that there was
considerable pretrial publicity. Dobbert v. Florida, 432 U.S. 282, 303 (1977); State v. Kyger, 787
S.W.2d 13, 19 (Tenn. Crim. App. 1989). Relevant factors to consider in determining whether to
grant a motion for a change of venue include:
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1. Nature, extent, and timing of pre-trial publicity.
2. Nature of publicity as fair or inflammatory.
3. The particular content of the publicity.
4. The degree to which the publicity complained of has permeated the area
from which the venire is drawn.
5. The degree to which the publicity circulated outside the area from which
the venire is drawn.
6. The time elapsed from the release of the publicity until the trial.
7. The degree of care exercised in the selection of the jury.
8. The ease or difficulty in selecting the jury.
9. The veniremen’s familiarity with the publicity and its effect, if any, upon
them as shown through their answers on voir dire.
10. The defendant’s utilization of his peremptory challenges.
11. The defendant’s utilization of his challenges for cause.
12. The participation by police or by prosecution in the release of publicity.
13. The severity of the offense charged.
14. The absence or presence of threats, demonstrations or other hostility
against the defendant.
15. Size of the area from which the venire is drawn.
16. Affidavits, hearsay, or opinion testimony of witnesses.
17. Nature of the verdict returned by the trial jury.
State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979).
In our view, the Petitioner has failed to present specific evidence of any prejudice to the
verdict. Counsel stated that he was aware of the newspaper articles about the crime but he did not
recall any of the jurors having knowledge of the case. He realized that, if he filed a motion for
change of venue, the jury pool may be tainted, and, it was to the Petitioner’s advantage to not file
such a motion because there were two years for people “to forget the incident.” Counsel thought that
the issue would be brought up again if he filed a motion to change venue. Further, Counsel had no
indication that the grand jury had been tainted by newspaper articles.
We conclude that Counsel’s decision not to request a change of venue “falls within the wide
range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel made a strategic
decision to not file a motion to change venue in order to minimize the possibility of jurors recalling
any publicity about the case. Further, the Petitioner presented no evidence that Counsel failed to
consider those factors listed in Hoover. Moreover, even if we were to find that Counsel erred, the
Petitioner has presented no evidence of prejudice or that the outcome of the trial would be different.
Accordingly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.
d. Speedy Trial Motion
The Petitioner next contends that Counsel was ineffective for failing to file a motion for a
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speedy trial. The State asserts that by agreeing to continuances that benefitted his case, the Petitioner
gave up his right to a speedy trial. The post-conviction court did not specifically address this issue,
but it concluded that the Petitioner “is not entitled to Post Conviction Relief upon any issue, or any
of his testimony, or any combination of issues, or upon his conclusions that he is entitled to Post
Conviction Relief . . . .” Further, we note that the post-conviction court stated the following about
the credibility of witnesses:
In reaching this opinion, the Court observed the [P]etitioner’s demeanor while
testifying, his own statements that he put things in the Post Conviction pleading
under oath without any basis for the allegation, etc. The Court finds that the
[P]etitioner has no credibility before this Court. The Court finds that original trial
counsel is fully entitled to belief and is credible in his testimony before this Court.
The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI;
see State v. Simmons, 54 S.W.3d 755, 758 (Tenn. 2001). Similarly, the Tennessee Constitution
provides that “in all criminal prosecutions, the accused hath the right to . . . a speedy public trial.”
Tenn. Const. Art. I, § 9; see Simmons, 54 S.W.3d at 758; see also Tenn. Code Ann. § 40-14-101
(2003) (stating “In all criminal prosecutions, the accused is entitled to a speedy trial . . . .”). The
speedy trial guarantee is designed to protect the accused from oppressive pre-trial incarceration, the
anxiety and concern due to unresolved criminal charges, and the risk that the accused’s defense will
be impaired by dimming memories or lost evidence. Simmons, 54 S.W.3d at 758; see Doggett v.
United States, 505 U.S. 647, 654 (1992); State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The
United States Supreme Court enunciated a four-factor balancing test for courts to apply when
evaluating a claim that the accused was denied a speedy trial: “(1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice suffered by the
defendant from the delay.” Simmons, 54 S.W.3d at 759 (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)).
At the post-conviction hearing, testimony was presented that, during the Petitioner’s case,
there were several continuances, and the defense asked for some of these continuances. The
Petitioner’s trial was initially set for January 18, 2000, but he and the Petitioner agreed to ask for a
continuance in order to get evidence from the TBI and FBI that would help the Petitioner’s case. The
trial was moved to July 17, 2000, and the State was granted a continuance, although Counsel
objected, because one of the officers would be unavailable to testify at trial. The trial was then set
for September 18, 2000, when, again, Counsel filed a second motion for a continuance because some
expert witnesses could not be present for trial. The State proposed a stipulation as to the testimony
of the experts, in order to proceed to trial, but the Petitioner wanted the experts to testify in court.
The trial was then moved to February 21, 2001,and, prior to that date, Counsel learned of Officer
Osterman’s statement. Counsel and the Petitioner discussed this and decided that it would be
advantageous to request another continuance in order to fully investigate this new information. The
trial was set for July 23, 2001, and it proceeded on that date. We conclude that the evidence does
not preponderate against the post-conviction court’s conclusion that the Petitioner was not denied
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effective assistance of his counsel in this instance. We cannot conclude that the Petitioner has met
his burden of showing that Counsel’s performance was deficient. Further, he has not proven
prejudice.
e. Motion to Hire a Private Investigator
The Petitioner asserts that Counsel was ineffective because he failed to make a motion for
a private investigator to investigate the Petitioner’s case, especially because the case was so complex.
The State contends that Counsel was not ineffective for failing to hire a private investigator, and,
further, the Petitioner has not established how a private investigator would have helped his case. The
post-conviction court found, summarily, that the Petitioner was not entitled to relief on this issue.
Counsel testified that he never thought of hiring a private investigator, but he spent
approximately 149 hours on the case, he went to the crime scene and surrounding area, and he
interviewed all of the officers and witnesses. Further, Counsel sought and was given a six-month
continuance in order to investigate a statement heard by Officer Osterman. We conclude that the
evidence does not preponderate against the post-conviction court’s finding that Counsel was not
ineffective. Further, the Petitioner has not demonstrated how he was prejudiced by Counsel’s
alleged failure to seek the services of a private investigator. Therefore, the Petitioner is not entitled
to relief on this issue.
2. Investigation
The Petitioner next contends that Counsel was ineffective because he failed to adequately
investigate this case by: (1) not conducting tests on the screwdriver; (2) not investigating lost and
exculpatory evidence; and (3) not investigating whether the grand jury foreman was properly
authorized.
a. Screwdriver Test
The Petitioner contends that Counsel was ineffective because he failed to perform tests on
the screwdriver used to prevent the victim from leaving the bathroom to determine if the screwdriver
actually prevented the opening of the bathroom door. The State asserts that Counsel made a strategic
decision to not perform such tests on the screwdriver, and, further, the Petitioner has not established
prejudice. The post-conviction court stated the following:
[T]he [P]etitioner says that . . . [C]ounsel should have performed a test or had a test
performed to determine if a screwdriver placed in a bathroom door at the scene of the
crime would have actually prevented the victim from leaving the bathroom where the
[Petitioner] placed her (victim) after beating her senseless, dragging her bleeding
body to the bathroom, putting her inside and putting a screw driver in between the
door and the door jam.
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The police that arrived at the scene of the crime observed a screwdriver
jammed into the crack between the door and the jam. The theory at trial was that the
screwdriver was placed in the door jam to prevent the victim from escaping her
confinement.
At trial, it was established that the victim locked the door from the inside and
this was commented on in the opinion on direct appeal.
The [P]etitioner in anticipation of the Post Conviction hearing attempted to
establish by test that the door could be opened notwithstanding the screwdriver being
placed in the door jam and offered witnesses to say the door could be opened
notwithstanding the screwdriver in the door jam. The [P]etitioner offered no
exacting proof from a recreation standpoint as to the condition of the screwdriver on
the night of the robbery except as to location.
....
In the case, there is no question . . . that the victim was placed in the
bathroom so detection of the crime could be avoided and to prevent the . . . victim
from summonsing help and that the robber placed the screwdriver in the door jam
from the outside in an attempt to keep her in the bathroom and that the placement of
the injured victim placed [the victim] in greater danger. Further, the robbery took
place at the check-in counter, not the bathroom. The victim was only placed in the
bathroom after she was seriously injured bleeding and beaten senseless. . . .
The allegation that [C]ounsel was ineffective because he failed to perform a
test on the door is not proven to be clear and convincing evidence. Further, this is
a previously decided issue.
Also, the persons who performed the test in anticipation of the Post
Conviction hearing appeared to be healthy men, not a person of elderly years that had
been beaten senseless. Irregardless of whether or not the screw driver would have
prevented the victim’s escape from the bathroom, there is absolutely no question that
the victim was placed in a much greater danger. In her condition to even open a
closed door would have been an ordeal or impossible. When the police arrived at the
scene, she was in such bad condition that they thought she was dead.
We conclude that the evidence does not preponderate against the post-conviction court’s
findings. In Counsel’s investigation, he inspected the door at the crime scene, and he spoke with the
police officers that were present at the scene. Counsel’s strategy was to attack the State’s proof, and
to argue in both opening and closing argument that the State had not proven that the screwdriver
prevented the door from opening. Furthermore, the State’s evidence at trial showed that the door
was locked from the inside of the bathroom. Counsel’s performance, which did not include
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conducting independent tests on the door, did not fall below an object standard of reasonableness.
Furthermore, even were we to conclude otherwise, the Petitioner has not proven prejudice. We, as
did the post-conviction court, note that the tests performed on the door for the post-conviction
hearing were not conducted under the same conditions that existed at the time of the crime.
Specifically, the persons who conducted the test were not in the same physical or mental state as the
victim. Further, as we said previously, the proof at trial was that the bathroom door was locked form
the inside and not that the screwdriver alone locked the door. Under these circumstances, we
conclude that the Petitioner has not proven prejudice and is not entitled to relief on this issue.
b. Exculpatory Evidence
The Petitioner next contends that Counsel was ineffective for failing to properly investigate
the issue of whether the State fulfilled its duty to provide exculpatory evidence. The State asserts
that Counsel was not ineffective, and, further, because the evidence was disclosed, the Petitioner has
not shown prejudice. The post-conviction court found that this issue was previously decided on
direct appeal. Further, the post-conviction court stated the general conclusion that it “finds that no
prejudice in a Post Conviction sense fell upon the [Petitioner] in regards to his counsel’s conduct
upon direct appeal.” In addressing this issue on direct appeal, this Court concluded the following:
In this instance, the information does not fall within the rule of Brady because the
information, although delayed was disclosed. Brady only applies to a complete
failure to disclose exculpatory information and does not apply to delayed disclosure
unless the delay itself causes prejudice. Because disclosure was delayed and not
denied, the [Petitioner] must demonstrate prejudice in order to qualify for relief. The
trial court granted a lengthy continuance so that the [Petitioner] could attempt to
locate the individual who made the comment. Although the [Petitioner] was unable
to find the potential witness, the record does not establish that the inability to locate
the witness was the result of the delayed disclosure. Officer Osterman was unable
to provide a description, other than the fact that he was white, making it unlikely that
an earlier disclosure would have assisted the [Petitioner] in identifying the individual.
In our view, the [Petitioner] has failed to demonstrate that he was prejudiced by the
delayed disclosure of this statement.
Thompson, 2003 WL 1202979, at *13 (citations omitted).
We conclude that the Petitioner has not shown that Counsel’s failure to investigate the State’s
compliance with its duty to provide exculpatory evidence fell outside the range of competence
demanded of attorneys in criminal cases. This Court determined that the evidence, although delayed,
was disclosed to Counsel, and the Petitioner was not able to show, on direct appeal, that this delay
caused him prejudice. Id. Further, Counsel interviewed the officers at the scene, including Officer
Osterman, and he was not told of a third-party statement at that time. When Counsel learned of the
statement, he proceeded to investigate and he further questioned Officer Osterman. We cannot
conclude that the Petitioner has met his burden of showing how Counsel’s performance prejudiced
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him. He is, therefore, not entitled to relief on this issue.
c. Grand Jury Foreman
The Petitioner contends that Counsel was ineffective because he failed to investigate and
determine whether the grand jury foreman was authorized to serve by law. Specifically, the
Petitioner raises the issue because the grand jury foreman was the same person who voted to indict
the Petitioner in a prior matter or matters. The post-conviction court stated:
[The] Petitioner says that his original attorney was ineffective for not attacking the
long tenure of the Grand Jury Foreman, Art Salyers. . . . The [P]etitioner, in his
testimony, seems to have concluded that Art Salyers had served too long. . . . Based
upon the evidence presented at hearing, this issue is totally without merit.
The Petitioner admits in his brief that this Court has previously decided that a grand jury foreperson
may serve longer than the statutory term of two years. See Nelson v. State, 499 S.W.2d 956, 956
(Tenn. Crim. App. 1972) (holding “[w]e find no authority holding and can think of no valid reason
why a grand jury foreman appointed for two years under [the statute] is disqualified to serve longer
either by reappointment or holding over.”). Accordingly, we see no valid argument that the grand
jury foreman was improperly authorized or that Counsel was ineffective. This issue is without merit.
3. Trial and Sentencing
The Petitioner next contends that Counsel was ineffective when Counsel represented him
during trial and at sentencing. Specifically, he asserts that Counsel ineffectively: (1) addressed an
eyewitness statement; (2) failed to object to a jury instruction concerning his fine; and (3) allowed
the trial court to deny the Petitioner’s right to allocution at the sentencing hearing.
a. Witness Statement
The Petitioner contends that Counsel was ineffective by failing to mention, during opening
arguments, a witness’ statement heard by Officer Osterman or to introduce evidence of this statement
during trial. A witness told Officer Osterman that another black male, not the Petitioner, was at the
crime scene prior to the commission of the crime, and the Petitioner contends that Counsel was
ineffective because the jury never heard this statement. The State counters that Counsel was not
ineffective for failing to introduce the statement, and, further, the Petitioner has not demonstrated
that he was prejudiced because, during trial, the trial court ruled that this statement was inadmissible
hearsay and this Court affirmed that ruling on appeal. The post-conviction court concluded that there
was no merit to the Petitioner’s claim.
The evidence presented at the post-conviction hearing showed that Counsel learned about
this statement late in his investigation of this case, and he sought a continuance to investigate the
statement further and attempt to locate the witness. Counsel could not locate this witness, and he
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did not mention the statement in opening argument because he anticipated that the trial court might
rule that it was inadmissible hearsay. Counsel explained to the Petitioner that he felt that it was
improper to mention the statement in opening argument before the trial court had the opportunity to
decide whether this statement was hearsay. The trial court did, in fact, rule that this statement was
inadmissible, and Counsel raised this issue on appeal. This Court affirmed the trial court’s ruling
about the statement. Thompson, 2003 WL 1202979, at *14. We fail to see how Counsel’s
representation fell below an objective standard of reasonableness. Further, the Petitioner has in no
way shown prejudice in this regard. The Petitioner is not entitled to relief on this issue.
b. Jury Instruction Regarding Fine
The Petitioner next asserts that Counsel was ineffective for failing to object to the trial
court’s instruction, prior to deliberations, regarding the amount of fine to be imposed. The State
contends that the instruction was proper, and, therefore, Counsel was not ineffective. The post-
conviction court held the following:
Each of the crimes the [P]etitioner was convicted of carried fines of in excess
of fifty dollars ($50). The Tennessee Constitution requires that any fine in excess of
fifty dollars ($50) be set by a jury unless the defendant voluntarily agrees otherwise.
Tennessee Constitution, Article 6, sec 14. State of Tennessee v. John Thomas
Scopes, 154 Tenn. 105, 289 S.W. 363, 367 (Tenn. 1926). . . . This issue is totally
without merit.
The trial court’s instruction to the jury regarding the fines to be imposed was proper. The
Petitioner failed to prove that Counsel was ineffective for not objecting to the trial court’s
instruction. Moreover, even if we were to find that Counsel erred, the Petitioner has failed to show
a reasonable probability of reasonable doubt “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Accordingly, we conclude that the Petitioner is not entitled to post-
conviction relief on this issue.
c. Allocution
The Petitioner next asserts that Counsel was ineffective for failing to request that the trial
court allow the Petitioner the right of allocution at the sentencing hearing. The State contends that
the Petitioner chose not to speak at the sentencing hearing, and, therefore, Counsel was not
ineffective. Further, the State asserts that the Petitioner has not shown prejudice. The post-
conviction court reasoned the following:
At the sentencing hearing, the [Petitioner] and his attorney did not ask the
Court that the [Petitioner] be allowed to make an uncross-examined statement prior
to sentencing. . . . In death penalty cases tried by a jury, case law has indicated that
there is not [a] constitutional right . . . of Allocution, but in some recent cases, it has
been held that there is a right of Allocution where the judge is conducting a
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sentencing hearing. . . . The [P]etitioner although stating that he did not ask to make
a statement at sentencing, the trial judge had a duty to inform him of his right of
Allocution. . . . The [P]etitioner says he was prejudiced by not being able to point out
his opinion that the case was a close one (sufficiency of the evidence), various legal
errors, and that the jury or the Court was misled by the testimony of Officer
Brookshire (seemingly concerning the screwdriver theory). . . . Assuming it is
required that the trial court point out the right of Allocution, the thing the [Petitioner]
wanted to say would go to a Motion for New Trial, to wit: the sufficiency of the
evidence, Anthony issue, etc. that were raised on appeal.
Further, if an objection is not made at trial, the issue is waived. . . . Also, the
[P]etitioner has not established prejudice. This issue is without merit and no
prejudice is shown.
Allocution has been defined “as the formality of the court’s inquiry of a convicted defendant
as to whether he has any legal cause to show why judgment should not be pronounced against him
on the verdict of conviction.” State v. Stephenson, 878 S.W.2d 530, 551 (Tenn. 1994) (citing
BLACK’S LAW DICTIONARY 76 (6th ed. 1990)) (footnote omitted). It is “an unsworn statement from
a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy,
explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the
impending sentence. This statement is not subject to cross-examination.” BLACK’S LAW
DICTIONARY 75 (7th ed. 1999); see also United States v. Gilbert, 244 F.3d 888, 924 (11th Cir. 2001).
Tennessee Code Annotated Section 40-35-210(b)(7)(2003) mandates that, in a non-capital case, a
defendant be allowed allocution before a sentencing judge or jury. This section provides, “To
determine the specific sentence and the appropriate combination of sentencing alternatives that shall
be imposed on the defendant, the court shall consider . . . [a]ny statement the defendant wishes to
make in the defendant’s own behalf about sentencing.” Tenn. Code Ann. § 40- 35-210(b)(7). “The
trial judge, in determining the appropriate sentence . . . shall consider, among several factors, any
statement the defendant wishes to make in his own behalf about sentencing . . . .” Stephenson, 878
S.W.2d at 551.
Clearly, any defendant’s right to allocution is dependant on that defendant’s desire to make
a statement. In the case under submission, the evidence showed that Counsel asked the Petitioner
prior to sentencing whether the Petitioner wanted to testify on his own behalf or make a statement.
After sentencing, the Petitioner mentioned to Counsel that the trial judge did not ask the Petitioner
if he wanted to speak, and the Petitioner told Counsel that the trial judge’s failure gave the Petitioner
a ground for appeal. Counsel explained to the Petitioner at that time that the Petitioner had every
right to speak but had chosen not to do so. The Petitioner chose not to execute his right to allocution.
The Petitioner has failed to prove that Counsel was ineffective, and he has failed to prove how he
was prejudiced. Accordingly, we conclude that the Petitioner is not entitled to relief on this issue.
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3. On Appeal
The Petitioner asserts that Counsel was ineffective when he represented him on appeal. We
employ the same two-prong standard that is used in considering claims of ineffective assistance of
trial counsel to evaluate allegations of ineffective assistance of appellate counsel. See, e.g.
Porterfield v. State, 897 S.W.2d 672, 677-78 (Tenn. 1995). Typically, a decision regarding which
issues should be raised on appeal is one that is left to the professional judgment and sound discretion
of appellate counsel. Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993); Porterfield, 897 S.W.2d
at 678.
a. Response Brief Regarding Factual Misstatements
The Petitioner asserts that Counsel was ineffective for failing to address factual
misstatements in the State’s brief. Specifically, he states that he prepared a brief addressing these
issues, delivered the brief to Counsel, but Counsel failed to file the brief. The State contends that
Counsel and the Petitioner discussed the issues to be raised on direct appeal, and those issues were
addressed in Counsel’s brief. Therefore, The State asserts that the Petitioner has not shown how
Counsel was ineffective, and, further, he has not shown prejudice. The post-conviction court opined:
As a general statement of law, appellate counsel may exercise reasonable
discretion as to how [to] present a case on direct appeal and what issues to present.
Issues raised or to be raised must be viewed in light of the “strategic value” of
limiting the number of arguments presented on direct appeal.
Here the Court finds that no prejudice in a Post Conviction sense fell upon
the [Petitioner] in regards to his [C]ounsel’s conduct upon direct appeal.
The evidence at the post-conviction hearing proved that Counsel reviewed the Petitioner’s
supplemental brief for any issues that had merit. Finding none, Counsel submitted a brief based
upon the issues that Counsel thought were properly appealed. Counsel used his professional
judgement and sound discretion to determine the issues that had merit. We conclude that Counsel’s
performance in this regard was within the range of competence demanded of attorneys in criminal
cases. See Baxter, 523 S.W.2d at 936. Further, the Petitioner has failed to prove prejudice.
Accordingly, the Petitioner is not entitled to post-conviction relief on this issue.
b. In-Court Identification
Next, the Petitioner contends that Counsel was ineffective for failing to address the issue of
an allegedly illegal in-court identification on direct appeal. The Petitioner asserts that the victim,
Huffman, stated on direct examination that she found a receipt from Montgomery Ward that was
signed by “Jo Jo Thompson.” During cross-examination, Huffman admitted that the receipt was
signed by “J. Thompson.” The Petitioner asserts that the nickname “Jo Jo” was given to him by the
police department, and it is not a nickname that he uses. He asserts that Counsel’s failure on appeal
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to challenge the victim’s use of this nickname deprived him of a fair trial and calls into question the
reliability of the outcome of this case. The State asserts that Counsel was not ineffective because
he determined that this was not an issue that could properly be raised on appeal. The post-conviction
court found that this issue was without merit.
The evidence at the post-conviction hearing proved that, when Huffman testified, she said
that she did not know the Defendant, had never seen him, and could not identify him as her attacker
because her attacker wore a ski mask. She also testified at trial that she could not identify the
Defendant’s signature. Counsel said that the Petitioner did not like the nickname “Jo Jo” and that
the victim should only refer to him by his given name, Joseph, or his nickname Joe. Counsel
testified that he discussed this issue with the Petitioner, explaining to the Petitioner that while the
victim referred to him using the nickname, it did not affect the Petitioner’s case. Further, Counsel
said that when he cross-examined the victim, she testified that the receipt was signed by “J.
Thompson.” Counsel determined that this issue would fail if pursued in the direct appeal. We
conclude that the evidence does not preponderate against the post-conviction court’s finding that
Counsel’s performance in this regard was within the range of competence demanded of attorneys in
criminal cases. See Baxter, 523 S.W.2d at 936. Furthermore, the Petitioner has not shown that he
was prejudiced. Therefore, the Petitioner is not entitled to relief on this issue.
c. Prejudicial Photographs
The Petitioner asserts that Counsel was ineffective because he failed to demonstrate in the
direct appeal, by citing more clearly to the record, that the introduction of prejudicial photographs
warranted a new trial. Specifically, the Petitioner contends that Counsel did not place particular
emphasis on enough citations to the record to convince the Court of Criminal Appeals that the in-
court identification was so unreliable that it would require a new trial. The post-conviction court
addressed this issue in the context of Counsel’s general appellate performance and stated:
As explained above, the Appellate Court cannot and are not required to enter
a detailed finding on every detail that might be contained in an Appellate record.
This does not mean they did not fairly review the record. . . . [A]ppellate counsel may
exercise reasonable discretion as to how [to] present a case upon direct appeal and
what issues to present. Issues raised or to be raised must be viewed in light of the
“strategic value” of limiting the number of arguments presented on direct appeal.
Here the Court finds that no prejudice in a Post Conviction sense fell upon the
[Petitioner] in regards to his counsel’s conduct upon direct appeal.
We conclude that the evidence does not preponderate against the post-conviction court’s
findings. The Petitioner fails in his brief to state which pictures were prejudicial, and why they were
prejudicial. Further, this Court reviewed this issue on appeal, finding that there were adequate
citations so as not to waive this issue. We cannot conclude that the Petitioner has met his burden
of showing that Counsel’s performance was deficient. Further, because we addressed this issue on
its merits on direct appeal, we fail to see how the Petitioner was, in any way, prejudiced.
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Accordingly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.
d. Petition to Rehear
Next, the Petitioner contends that Counsel was ineffective for failing to file a petition to
rehear in order for this Court to reconsider its opinion because of erroneous facts. See Tenn. R. App.
P. 39(a)(1). The State asserts that Counsel was not ineffective because he did not believe sufficient
grounds existed to file a Rule 39 petition to rehear, and, further, the Petitioner has not shown
prejudice. The post-conviction court stated:
[T]he issue concerning failure to file a Rule 39 motion is without merit. It is not a
routine duty that Appellate Counsel file a Rule 39 motion. Obviously, the opinion
on direct appeal was detailed and balanced. A reasonable appellate attorney would
not be expected to file a Rule 39 motion in such circumstances.
The proof does not preponderate against this finding. We conclude that the Petitioner has
failed to meet his burden of showing that Counsel’s performance was deficient. Further, he has not
proven prejudice.
e. Withdrawal and Contract
Finally, the Petitioner contends that Counsel was ineffective because he failed to timely
withdraw as Counsel, and, as a related issue, he asserts that Counsel failed to adhere to the terms of
a contract with the Petitioner. The post-conviction court concluded the following:
The [P]etitioner says his trial and appellate counsel did not withdraw timely
after the [P]etitioner had sued him in a pro se civil action. . . . [The] Petitioner says
he sued his [Counsel], but [Counsel] did not seek withdrawal before the Tennessee
Court of Criminal Appeals until the time had run for filing a Rule 39 Motion to
Rehear. Therefore, he says [Counsel] was ineffective [on appeal].
Evidently, the [P]etitioner wanted the Court of Criminal Appeals to rehear the
Brady/Ferguson issue and the exception to the hearsay rule discussed by Judge Wade
upon direct appeal. . . . The Post Conviction Court cannot instruct the Tennessee
Court of Criminal Appeals to conduct any hearing or require them to file additional
minute findings of law or fact. . . . On direct appeal, the Brady/Ferguson issue was
heard and became a portion of the Criminal Court of Appeals opinion on direct
appeal. Further, a Rule 11 T.R.A.P. motion was filed with the Supreme Court.
It would be rank speculation for this Court to hold that a pro se Rule 39 T. R.
App. P. motion would have availed the [Petitioner] anything.
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The issue that appellate counsel was ineffective is totally without merit.
The evidence at the post-conviction hearing proved that the Petitioner filed multiple motions
with this Court attempting to have Counsel removed, and we determined that there was not just
cause for Counsel’s removal. The Petitioner sought to have Counsel removed because Counsel
refused to include, in the brief prepared by Counsel, all of the issues contained in the Petitioner’s pro
se supplemental brief. The Petitioner believed that, had Counsel withdrawn, the Petitioner would
have been able to successfully file his pro se supplemental brief. Counsel said that he reviewed the
Petitioner’s pro se brief for issues that had merit, and there were none. Counsel determined that his
brief addressed all the issues appropriate for appeal. Counsel learned that the Petitioner had filed
a civil law suit against Counsel twelve days after oral argument, and, once he learned of this lawsuit,
he filed a motion to withdraw from the case. We conclude that the Petitioner has failed to prove that
Counsel’s performance fell below the standard of reasonably effective assistance. Further, the
Petitioner has failed to prove prejudice because he failed to prove that any issues raised in the
Petitioner’s supplemental brief would have successful on appeal. Accordingly, the Petitioner is not
entitled to relief on this issue.
B. Other Issues
1. Issues Previously Raised On Direct Appeal
The next two issues presented by the Petitioner are previously determined because they were
previously raised on direct appeal. The Petitioner contends that the State intentionally or negligently
caused exculpatory evidence to become lost and unavailable to the Petitioner. The Petitioner alleges
that the trial court erred in allowing Counsel only forty minutes for closing arguments. The post-
conviction court stated the following:
The [P]etitioner in great part basically raised exactly the same issues that were
raised upon direct appeal. Although issues raised upon direct appeal cannot again be
raised in a post conviction hearing . . . the [P]etitioner took the position that maybe
if original trial counsel had asked a few more questions here or there or asked them
in a different light, the Appellate Court may have ruled differently on the issues.
This Post Conviction Court gave counsel some leeway in developing the
theory, but the end result of the testimony was that the [P]etitioner was only stating
conclusions or theories upon issues already decided upon direct appeal.
The Post Conviction Court concluded at the end of the hearing that the basic
issues were attacking the things addressed upon direct appeal, and such attacks are
prohibited by the 1995 Post Conviction Act. The Court nonetheless will make
various findings below and review issues not raised on direct appeal.
The 1995 Post Conviction Act provides that:
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A ground for relief is previously determined if a court of competent jurisdiction has
ruled on the merits after a full and fair hearing. A full and fair hearing has occurred
where the petitioner is afforded the opportunity to call witnesses and otherwise
present evidence, regardless of whether the petitioner actually introduced any
evidence.
Tenn. Code Ann. § 40-30-106(h). Regarding the exculpatory evidence, we conclude that this issue
was previously determined on direct appeal, as this Court found that the information, although
delayed, was disclosed. Thompson, 2003 WL 1202979, at *12-13. As to the issue of the length of
closing arguments, we conclude that this issue was previously determined on direct appeal. This
Court found that the Petitioner originally agreed to a thirty-minute time limit but later requested
forty-five minutes for closing argument. Id. at *15. The trial court then determined that forty
minutes for each side was sufficient, and this Court determined that the Petitioner failed to establish
that the trial court abused its discretion. Id. Accordingly, we conclude that these two issues were
previously determined on direct appeal, and, therefore, the Petitioner is not entitled to post-
conviction relief.
2. Issues Not Raised On Direct Appeal
The next three issues raised by the Petitioner are waived. The Petitioner contends that the
trial court erred in not allowing the Petitioner his right to allocution. Next, the Petitioner alleges that
the trial court erred in ruling that the Petitioner could not instruct his Counsel about trial strategy.
Finally, the Petitioner contends that the trial court erred in instructing the jury about the amount of
fines to be imposed prior to deliberations. A post-conviction court shall dismiss claims which have
been waived. Tenn. Code Ann. § 40-30-106(g) (2003). “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
certain exceptions not applicable in the present case. Tenn. Code Ann. § 40-30-106(g). Because
these issues could have been raised on direct appeal, we conclude that these issues are waived in this
post-conviction proceeding pursuant to code section 40-30-106(g). Accordingly, we conclude that
the Petitioner is not entitled to relief on these issues.
Further, we note that the Petitioner is not entitled to plain error review of these issues because
“the plain error doctrine has no application in post-conviction relief proceedings.” Corwyn E.
Winfield v. State, 2003 WL 22922272, at *5 (Tenn. Crim. App., at Jackson, Dec. 10, 2003), perm.
app. denied (Tenn. May 10, 2004); see also State v. West, 19 S.W.3d 753, 756-47 (Tenn. 2000). We
conclude, therefore, that these issues are waived.
III. Conclusion
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In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.
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ROBERT W. WEDEMEYER, JUDGE
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