Billy Dean Sizemore v. State of Tennessee ( 2019 )

05/20/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 16, 2019
BILLY DEAN SIZEMORE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lewis County
No. 2016-CR-19 Deanna B. Johnson, Judge
No. M2018-00278-CCA-R3-PC
The petitioner, Billy Dean Sizemore, appeals the denial of his petition for post-conviction
relief, which petition challenged his 2012 conviction of delivery of a controlled
substance, alleging that he was deprived of the effective assistance of counsel.
Discerning no error, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Cory L. Ricci, Columbia, Tennessee, for the appellant, Billy Dean Sizemore.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arose from an incident in which the petitioner sold two pills of
morphine to Dale Potter, a confidential informant, during a controlled drug transaction
monitored by law enforcement. State v. Billy Dean Sizemore, No. M2013-01853-CCA-
R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, July 15, 2014) (Sizemore I), perm.
app. denied (Tenn. Mar. 12, 2015). This court summarized the evidence on direct appeal
as follows:
[O]n June 2, 2009, Mr. Potter contacted the appellant and
asked if he had any pills to sell. The appellant said yes. Mr.
Potter informed Agent [Joe] Ashmore about the potential
drug buy, and Agent Ashmore equipped him with a recording
device . . . and gave him $60 in order to buy three morphine
pills from the appellant. Mr. Potter telephoned the appellant,
they agreed to meet on Fite Road, and [Mr. Potter and his
wife] went to the meeting place. There, the appellant
informed Mr. Potter that he had only two pills to sell because
he wanted to keep two pills for himself. Mr. Potter gave the
appellant $40, and the appellant gave Mr. Potter two pills.
Agent Ashmore listened to and recorded the transaction . . . .
After the transaction, Mr. Potter gave the pills and remaining
$20 to Agent Ashmore, and TBI testing confirmed that the
pills were morphine.
Id., slip op. at 6. The jury convicted the petitioner of delivering a Schedule II controlled
substance, and the trial court sentenced the petitioner to 14 years’ incarceration as a
Range III offender. Id., slip op. at 4. On direct appeal, this court affirmed the
petitioner’s conviction. Id., slip op. at 12.
The petitioner filed a timely pro se petition for post-conviction relief, and,
after the appointment of counsel, he filed an amended petition for post-conviction relief,
alleging the ineffective assistance of trial counsel. The State filed an answer to the
petitioner’s amended petition for post-conviction relief, and the post-conviction court
dismissed the petition, denying relief without conducting an evidentiary hearing. On
appeal, this court reversed the post-conviction court’s decision dismissing the petition
and ordered the post-conviction court to conduct an evidentiary hearing. Billy Dean
Sizemore v. State of Tennessee, M2016-02531-CCA-R3-PC, slip op. at 6 (Tenn. Crim.
App., Nashville, Sept. 26, 2017).
At the January 9, 2018 evidentiary hearing, trial counsel testified that he
represented the petitioner at trial and on appeal in this case. He recalled filing a motion
in limine seeking to exclude from evidence an audio recording of certain statements by
the petitioner made during the controlled drug transaction as improper character evidence
under Tennessee Rule of Evidence 404. Trial counsel recalled that the trial court granted
the motion as to one statement but denied the motion as to the statement, “I got $500
worth yesterday and now I got two left,” finding that the statement was “relevant as it
relate[d] to intent, motive and telling the jury the full story here.” The trial court,
however, indicated that it would give a limiting instruction to the jury regarding the
proper use of that statement. Trial counsel testified that the State played the audio
recording of the petitioner’s statement for the jury twice during its case in chief, and he
requested a jury-out hearing when he believed the State was going to play the recording a
third time. He explained that he requested the jury-out hearing rather than object to the
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playing of the recording because he “didn’t want to draw attention to it,” arguing that the
statement was “particularly prejudicial.” Trial counsel acknowledged that the State
repeated the petitioner’s statement twice during its closing argument.
Trial counsel acknowledged that he forgot to request the limiting
instruction despite having time to review and discuss the jury instructions and that the
trial court failed to include a limiting instruction in its charge to the jury. Trial counsel
stated that, had he remembered the need for the limiting instruction, he “wouldn’t have
asked [the court] to put it in there because [he] didn’t want to draw attention” to the
petitioner’s damaging statement. Trial counsel explained that he did not raise the trial
court’s failure to give a limiting instruction in the motion for new trial because he forgot
about the issue and did not receive the trial transcripts until “maybe a day or two before
the hearing.” During the hearing on the motion for new trial, trial counsel stated, the trial
court noted that the transcript indicated its intention to give a limiting instruction, at
which point trial counsel argued the issue during the hearing.
Trial counsel testified that, at the time he moved to exclude the petitioner’s
statement, he was aware of the strictures of Rule 404(b), specifically that the court must
find a prior bad act by clear and convincing evidence. He acknowledged that he did not
“specifically remember asking the Judge to say on the record that it was clear and
convincing.”
During cross-examination, trial counsel explained that his decision to ask
the court to prevent the State from playing the petitioner’s damaging statement a third
time was “absolutely” a tactical decision because he believed the statement was
prejudicial to the petitioner and he wished to limit the jury’s repeated hearing of the
statement. Trial counsel agreed that the court gave him time to review the proposed jury
instructions between the first and second days of trial but again acknowledged that he
forgot to request a limiting instruction. Trial counsel testified that he raised the trial
court’s failure to give a limiting instruction on direct appeal because he “felt at that point
like [he] pretty much had to” despite failing to properly raise the issue in the motion for
new trial.
No other witnesses testified at the evidentiary hearing. At the close of trial
counsel’s testimony, the post-conviction court took the matter under advisement and
issued a written order denying post-conviction relief on January 22, 2018. The post-
conviction court found that trial counsel forgot to request a limiting instruction regarding
the petitioner’s statement from the audio recording, but had he remembered, he would not
have requested it to avoid drawing more attention to the statement. The court also found
that trial counsel failed to raise the issue of the limiting instruction in the motion for new
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trial, but he raised it at the motion for new trial hearing and on direct appeal. The post-
conviction court concluded that the trial court made the necessary findings under Rule
404 and that the petitioner failed to prove prejudice on that matter. The court also found
that the petitioner failed to show that he was prejudiced by trial counsel’s failure to
request a limiting instruction because, on direct appeal, this court considered the lack of a
limiting instruction and found “no error” because of the strength of the State’s case.
In this timely appeal, the petitioner argues that the post-conviction court
erred by denying post-conviction relief, asserting that he was deprived of the effective
assistance of counsel by trial counsel’s failing to request a limiting instruction on the use
of the petitioner’s recorded statement, failing to ensure that the trial court adhered to the
mandatory provisions of Rule 404(b), and failing to raise the lack of a limiting instruction
in the motion for new trial. Each of these alleged instances of trial counsel’s deficient
performance stems from the admission at trial of the following statement made by the
petitioner during the recorded drug transaction: “I got $500 worth yesterday and now I
got two left.”
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
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petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears
the burden of overcoming this presumption,” id. (citations omitted). We will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). Such deference to the tactical decisions of counsel, however, applies only if the
choices are made after adequate preparation for the case. Cooper v. State, 847 S.W.2d
521, 528 (Tenn. Crim. App. 1992).
Here, the petitioner has failed to carry his burden to prove by clear and
convincing evidence sufficient facts to support his claim that trial counsel’s
representation was ineffective. Any error resulting from trial counsel’s failing to request
a jury instruction limiting the use of the petitioner’s statement was harmless in light of
the substantial evidence of the petitioner’s guilt. In post-conviction proceedings, whether
a petitioner has suffered prejudice resulting from his counsel’s failure to advocate proper
jury instructions depends on “whether a reasonable probability exists” that the jury would
have reached a different conclusion had they been properly instructed. Moore v. State,
485 S.W.3d 411, 420-21 (Tenn. 2016) (citing Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008)). Here, the jury heard testimony that a confidential informant contacted the
petitioner and arranged to purchase some pills. The petitioner sold two morphine pills to
the confidential informant during a controlled drug transaction that was monitored and
recorded by law enforcement. The jury heard an audio recording of the transaction.
With this evidence, it is unlikely that the jury would have reached a different conclusion,
even if they had been instructed on the proper, limited use of the petitioner’s statement of
a prior bad act.
Next, the petitioner argues that trial counsel performed deficiently by
failing to ensure that the trial court adhered to the mandatory provisions of Tennessee
Rule of Evidence 404(b). Rule 404(b) provides,
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
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conformity with the character trait. It may, however, be
admissible for other purposes. The conditions which must be
satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside
the jury’s presence;
(2) The court must determine that a material issue
exists other than conduct conforming with a character trait
and must upon request state on the record the material issue,
the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime,
wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its
probative value is outweighed by the danger of unfair
prejudice.
Tenn. R. Evid. 404(b).
The post-conviction court specifically found that the trial court “did follow
the mandates of Rule 404(b).” On direct appeal, this court found that “the trial court did
not err by ruling that the statement was admissible” and that the trial court found the
petitioner’s prior act by clear and convincing evidence. Sizemore I, slip op. at 9; Tenn. R.
Evid. 404(b)(3). The petitioner now asserts that the trial court failed to state on the
record that it found that the prejudicial effect of the statement did not outweigh its
probative value and that trial counsel performed deficiently by failing to ask the trial
court to put such a finding in the record. The petitioner argues that, had counsel asked
the court to weigh the probative value against the prejudicial effect of the statement on
the record, the court would have reached a different conclusion. We disagree.
The petitioner failed to elicit any testimony during the evidentiary hearing
regarding trial counsel’s failure to ask the trial court to enter into the record an explicit
finding weighing the probative value of the statement against its prejudicial effect.
Additionally, the trial transcript shows that the trial court considered the admitted
statement to be probative of the petitioner’s acting knowingly and that the court weighed
the probative value and the prejudicial effect of the statement. The trial court
differentiated between the admitted statement and a second statement, stating that the
second statement “is more prejudicial than probative.” See State v. Electroplating, Inc.,
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990 S.W.2d 211, 223 (Tenn. Crim. App. 1998) (“Although the trial judge did not
specifically weigh the probative value of the evidence against its potential prejudicial
effect in his findings, his earlier comments indicate that he considered the evidence
highly probative and, therefore, the probative value outweighed the unfair prejudice.”).
Because this court has already found that the trial court admitted the statement in
compliance with the conditions of Rule 404(b), see Sizemore I, slip op. at 9, and because
the record supports the finding of the post-conviction court, the petitioner has failed to
show prejudice in this matter.
Finally, the petitioner contends that trial counsel performed deficiently by
failing to raise the lack of a limiting instruction in a motion for new trial. Trial counsel
testified that he did not raise the issue in the written motion for new trial because he
forgot to do so and because he did not receive the trial transcripts until one or two days
prior to the motion for new trial hearing. He did, however, argue the issue during the
hearing after the trial court noted that the trial transcript indicated that the court intended
to give a limiting instruction. As explained above, the petitioner has failed to show that
he was prejudiced by the lack of a limiting instruction, and, therefore, has likewise failed
to establish prejudice on this claim. In consequence, we need not determine whether
counsel performed deficiently by failing to include the issue in the motion for new trial.
See Strickland, 466 U.S. at 697.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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