Ameale Hudson v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 1, 2016 Session
AMEALE HUDSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. 13267 Kyle Atkins, Judge
No. W2015-01096-CCA-R3-PC - Filed May 3, 2016
_____________________________
The Petitioner, Ameale Hudson, appeals from the denial of his petition for post-
conviction relief. The Petitioner contends that he was denied the effective assistance of
counsel based upon trial counsel‘s failure to include in his motion for new trial the issue
of the trial court‘s denial of two of the Petitioner‘s pretrial motions, which resulted in the
waiver of the issues on direct appeal. He further asserts that the cumulative effect of trial
counsel‘s errors entitles him to post-conviction relief. After a thorough review, we affirm
the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT H. MONTGOMERY, J., joined.
Joshua B. Dougan, Jackson, Tennessee, for the appellant, Ameale Hudson.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Jerry Woodall, District Attorney General; and Al Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural History
Before trial, the Petitioner filed a motion to bar all parties from referring to the
Petitioner by his nickname, ―Pistol,‖ and a motion to prohibit the display of photographs
to the jury of the victim either before or after his death.1 Following a hearing, the trial
court denied both motions. Regarding the issue of the Petitioner‘s nickname, the trial
court found that witnesses should be allowed to refer to the defendant as ―Pistol‖ ―where
necessary for identification purposes.‖ The trial court also ruled that the photographs of
the victim before and after his death ―may be relevant and admissible.‖ The trial court
instructed the State to show defense counsel any photographs of the victim it intended to
enter into evidence in order to allow defense counsel the opportunity to seek a side bar
conference before the entry of the photographs.
Following a trial in the Madison County Circuit Court, a jury found the Petitioner
guilty of first degree felony murder and especially aggravated robbery, and the trial court
imposed an effective sentence of life imprisonment in the Department of Correction. See
State v. Ameale Hudson, No. W2010-02625-CCA-R3-CD, 2012 WL 4044841, at *1
(Tenn. Crim. App. Sept. 14, 2012), perm. app. denied (Tenn. Feb. 13, 2013). On direct
appeal, this court summarized the facts at trial, as follows:
The [Petitioner‘s] charges stemmed from the death of the victim,
Troy Mitchell. At trial, Johnnie McKinnie, a maintenance man who
worked at Guardian Courts Apartments, testified that he was at the complex
on the morning of October 28, 2009. McKinnie‘s coworker, Darryl Wayne
Kizer, was having car trouble, and McKinnie attached a chain from his
truck to Kizer‘s car to pull it up the hill of the apartment complex. At the
top of the hill, the men saw the victim, who was a locksmith and the owner
of Mitchell‘s Lock and Safe, working on a yellow Chevrolet Cavalier that
was parked outside apartment 220, the [Petitioner‘s] apartment, which was
located on the bottom floor. The victim‘s van was parked ―catty cornered‖
to the building. McKinnie asked the victim to move his van for a moment
so McKinnie could tow Kizer‘s car beyond it. The victim complied then
went back to work on the yellow car.
While McKinnie and Kizer were removing the chain from Kizer‘s
car, the [Petitioner], whom McKinnie knew as ―Pistol,‖ came outside and
―started . . . cussing and rushing people[ ] away.‖ McKinnie heard the
[Petitioner] say, ―Hurry up. Let‘s get the H–E–L–L out of here. These
folks got to go to school.‖ McKinnie said that the [Petitioner] was six to
ten feet away from the victim and that he was ―scoping‖ the victim,
repeatedly glancing at him. McKinnie saw the [Petitioner] make hand
1
To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner‘s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.
2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
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signals to communicate with two men, one of whom was Justin Gray. The
men were standing at the [Petitioner‘s] open, bedroom window and
watching the [Petitioner]. McKinnie thought the [Petitioner] ―was up to
something,‖ but he and Kizer left before anything happened. Later,
McKinnie identified the [Petitioner] and Gray from a photograph line-up.
Kizer testified consistently with McKinnie, noting that when the
[Petitioner] tried to make them leave, he pushed and shook Kizer‘s car even
though it was not blocking any vehicle.
Montrez McAlister testified that around 9:45 or 10:00 a.m. the
morning of the shooting, he went to apartment 220 where he saw the
[Petitioner], whom he knew as ―Pistol‖; Gray; and another man he referred
to as ―Dude.‖ ―Dude‖ was later identified as Cornelius Roberson. The
[Petitioner‘s] fourteen-or fifteen-year-old sister, Calvinette, was asleep on
the living room couch. McAlister assumed that the [Petitioner‘s] mother
was next door with her boyfriend. McAlister recalled that the victim‘s
locksmith van and a yellow car were in front of the [Petitioner‘s] bedroom
window. He identified the window from a photograph.
McAlister testified that when he walked into the apartment, Gray
was putting a navy blue bandana with designs on it around his face,
covering his mouth and nose. McAlister stated that the blue bandana
depicted in Exhibit 19, which was a photograph, looked like the one Gray
wore at the time of the shooting. Gray was dressed in a black jacket turned
insideout, a black hoodie with the hood pulled over his head, black pants,
and black ―Air Force 1 low top‖ tennis shoes. McAlister said that the
[Petitioner] handed Gray a black .22 or .25 caliber ―six shooter‖ revolver
and told Gray that ―[o]h, when he get through handling their business, just
put it [the gun] back and we‘re going to take all this stuff off when you get
done.‖ McAlister said that he did not know to what ―business‖ the
[Petitioner] was referring.
McAlister said Gray left the apartment with the gun in his pocket.
McAlister went to the back of the apartment and asked Roberson what was
going on, and Roberson responded, ―I guess Justin [Gray is] fixing to do
something stupid.‖ McAlister heard a loud noise and looked out of the
[Petitioner‘s] bedroom window. He saw Gray ―coming up out of the
[yellow] car like he—in a pulling motion, like he were pulling something
out.‖ Afterward, Gray ran around the building and returned to the
[Petitioner‘s] apartment. The [Petitioner] opened the door, and Gray threw
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the revolver and bandana in the apartment. Then, Gray and the [Petitioner]
walked toward Hollywood Drive. McAlister said he left the [Petitioner‘s]
apartment because he thought that Gray had stolen a CD player from the
car.
McAlister conceded that his first statement to police on November 4,
2009, in which he stated that he heard the shot while standing outside, was
false. He explained that he was not truthful because he was afraid that if he
admitted being in the apartment, he would be charged with a crime. Later
that same day, McAlister gave a second statement to police in which he
acknowledged that he was in the [Petitioner‘s] bedroom at the time of the
shooting. McAlister said that he had a clear view of events from the
window. Additionally, McAlister identified Gray from a photograph line-
up. McAlister acknowledged that his nickname was ―Money.‖
Darlene Echols testified that at the time of the shooting, she lived in
apartment 130 of Guardian Courts Apartments. That morning, she saw a
man, whom she later identified from a photograph line-up as ―Justin
[Gray],‖ and the [Petitioner], whom she knew as Pistol, ―running from
Guardian Courts Apartments, running on Hollywood to the blue house.‖
She said that as they ran, the men looked behind them toward the
[Petitioner‘s] apartment. She noticed them because ―[i]t‘s unusual for
people to run through the projects.‖ A few minutes later, Echols heard an
ambulance and the police arrive. She walked toward the commotion and
learned that a man had been shot. Shortly thereafter, she went back to her
apartment. She saw the [Petitioner‘s] girlfriend pull into a driveway, the
[Petitioner] quickly got into the car, and the car ―zoomed off.‖ Gray did
not get into the car, and Echols did not see where he went.
Echols stated that she knew the [Petitioner] and his family ―from the
neighborhood.‖ She said that young boys in the neighborhood ―mostly
hang around‖ and that when the [Petitioner] ―got out of jail he sort of
someway claimed the younger boys to his house, you know. He hang
around with the older boys, he hung around with the younger boys.‖ She
stated that she stopped her sixteen-year-old son from associating with the
[Petitioner], explaining, ―They always hang around with him. Too tough,
you know . . . . I just didn‘t like him.‖ She said that she did not want her
son ―hanging around that spot‖ because ―there‘s a lot of drugs and stuff like
that being—dealing around in that area.‖
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Jasmine Carlson, the [Petitioner‘s] girlfriend, testified that the
[Petitioner] spent the night of October 27 with her, and, on her way to
college the next morning, she drove the [Petitioner] to apartment 220 in her
silver Pontiac Grand Am. She picked the [Petitioner] up later in the day but
could not recall the exact time or location. She did not believe that she
picked the [Petitioner] up from anyone‘s driveway. Carlson stated that the
[Petitioner] and Gray were ―buddies,‖ that they were frequently together,
and that the [Petitioner] called Gray ―his little brother.‖ On cross-
examination, Carlson said that she did not see the [Petitioner] with a gun on
the night of October 27. She stated that the next day, she picked the
[Petitioner] up after she attended chapel at Lane University, maintaining
that ―[c]hapel is over at about twelve, twelve-thirty.‖
Jackson Police Officer Ted Maxwell testified that on the morning of
October 28, 2009, he was dispatched to 1170 Hollywood Drive, the
location of the Guardian Courts Apartments complex, following a report of
a possible shooting. When Officer Maxwell arrived, he saw some people
gathered around a yellow Chevrolet Cavalier. The driver‘s side door of the
car was open, and the victim was sitting on the ground with his back
against the car. The victim‘s face was bleeding, he was awake, but he was
not coherent. An ambulance arrived, and some of the blood was removed
from the victim‘s face, revealing ―a possible bullet entry‖ at the bridge of
the victim‘s nose.
....
Jackson Police Investigator Chris Chestnut testified that on October
28, 2009, he responded to a report that a man had been shot at Guardian
Courts Apartments. Upon his arrival, Investigator Chestnut saw ―several
police officers already on the scene, an ambulance, a vehicle belonging to a
locksmith, and a yellow car that had some blood on the ground beside it.‖
As the victim was loaded into the ambulance, Investigator Chestnut took
photographs of him. After the ambulance left, Investigator Chestnut
photographed the scene then went to the hospital. While at the hospital,
Investigator Chestnut saw that the victim had a single gunshot wound that
appeared to be from a small caliber bullet. The bullet had entered the left
side of the victim‘s nose.
When the victim was taken for a CAT scan, Investigator Chestnut
spoke with the victim‘s family. During the conversation, Investigator
Chestnut learned that the victim‘s black leather wallet and Samsung cellular
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telephone were missing. Thereafter, he returned to the scene to assist with
the search of the area.
As Investigator Chestnut and Sergeant Mike Doran were searching
the apartment complex, a maintenance man, Mr. Patterson, asked the
officers what they were doing. After being informed of the reasons for the
officers‘ presence, Mr. Patterson told Investigator Chestnut that earlier that
day, he had locked some vacant apartments ―that were standing open,‖ one
of which was apartment 210. Patterson unlocked the apartments for
Investigator Chestnut and Sergeant Doran to search. During the search,
Sergeant Doran alerted Investigator Chestnut that he had found a black
Samsung telephone in a drawer under the bathroom sink in apartment 210.
In a cabinet underneath the drawer, Investigator Chestnut found digital
scales, small Ziploc bags, and rubber gloves, which he described as drug
paraphernalia. Later, the victim‘s son, Larry Joe Mitchell, confirmed that
the telephone belonged to the victim.
Mike Doran, a sergeant with the Madison County Sheriff‘s
Department assigned to the Metro Narcotics Unit, testified that on the
afternoon of October 29, 2009, he was called to the scene to assist in
searching the apartment complex. He stated that ―several other
investigators [from] the Narcotics Unit, the Gang Unit, and the Jackson
Police Department Violent Crimes Unit‖ were also involved in the search.
Sergeant Doran said that he and Investigator Chris Chestnut entered
apartment 210, which was vacant. In a bathroom drawer, Sergeant Doran
found a black Samsung telephone. Sergeant Doran informed Investigator
Chestnut of his discovery.
....
Investigator Terry Buckley testified that on the day of the shooting,
the [Petitioner] was developed as a suspect and was brought to the police
station for an interview. After being informed of his Miranda rights, the
[Petitioner] waived his rights and agreed to speak with police. The
[Petitioner] initially told Investigator Buckley that he had spent the
previous evening with his girlfriend, Jasmine Carlson, and that she had
driven him to his mother‘s apartment the next morning. He spoke briefly
with ―a dude‖ and went inside. He played music for five to ten minutes,
walked to Brookfield, then returned home. Thereafter, the [Petitioner] went
back to Brookfield; on the way, he saw people ―hovering‖ around a car,
then police and an ambulance arrived. The [Petitioner] left and ―hung out‖
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for a while before returning to Guardian Courts Apartments where he was
apprehended by police. The [Petitioner] maintained, ―I didn‘t have
anything to do with Dude getting robbed or shot and I don‘t know anything
about it or who did it.‖
On November 4, 2009, Investigator Tyreece Miller, the head of the
Jackson Police Department‘s Violent Crimes Unit, brought the [Petitioner]
in for a second interview. During the first part of the interview, the
[Petitioner] acknowledged that he had been in apartment 210 where the
victim‘s cellular telephone was found, maintaining that on October 9 or 10
a girl gave him oral sex in that apartment. The [Petitioner] also said that his
fingerprints would be on scales and plastic bags that were in a bathroom
cabinet in apartment 210 because he put those items there. Investigator
Miller said that the cabinet where the drug paraphernalia was found was
located directly under the drawer where the victim‘s cellular telephone was
discovered.
The interview was suspended for a break, and, when it resumed, the
[Petitioner] said that he had spent the night of October 27 with Carlson.
The next morning, Carlson drove to class at Lane University, taking her
cousin, Robin, with her. On the way to school, Carlson took him to
apartment 220 where his mother lived. The [Petitioner] said that
Calvinette, Gray, Roberson, and a man he knew as ―Money‖ were in the
apartment. The [Petitioner], Gray, and Roberson went in the [Petitioner‘s]
bedroom then went outside for a few minutes. The [Petitioner] walked to
Brookfield and returned to apartment 220 approximately ten to fifteen
minutes later. The [Petitioner] saw ―Money,‖ which was McAlister‘s
nickname, outside; Gray and Roberson were in the [Petitioner‘s] bedroom.
The [Petitioner] saw the victim driving around ―looking for the car‖ before
he began working on a yellow car. The [Petitioner] and McAlister went
back to Brookfield. Gray and Roberson stayed in the [Petitioner‘s]
bedroom.
When the [Petitioner] and McAlister returned, the victim was
working inside the car. The [Petitioner] and McAlister went in the
apartment, and Gray and Roberson called the [Petitioner] over to the
window. The [Petitioner] said, ―My bedroom window overlooks the
parking lot and you can look out my bedroom window and see the
locksmith.‖ Gray said, ―Let‘s rob him.‖ The [Petitioner‘s] replied, ―No.‖
Gray and Roberson asked ―[w]hat we going to do?‖ The [Petitioner]
responded, ―I ain‘t doing shit,‖ and Roberson agreed with the [Petitioner].
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The [Petitioner] said that Gray ―got up the nerve to go rob him‖ and went
outside. The [Petitioner], McAlister, and Roberson followed Gray outside.
After the [Petitioner] smoked a cigarette, the four men went back to the
[Petitioner‘s] bedroom. Gray said, ―I‘m fixing to go—I‘m fixing to do it,‖
and the four men went back outside. Gray ―ran up on‖ the victim, pointed
the gun at him, and took the victim‘s wallet. The [Petitioner] stated that
―the gun went off. Everybody went their separate ways,‖ with the
[Petitioner] going back to Brookfield alone.
Investigator Miller testified that around 5:30 p.m., they took a break
and got food from Burger King for the [Petitioner] and resumed at 7:45
p.m. Investigator Miller said that ―during the time that we started back,‖
the [Petitioner] gave information about McAlister‘s whereabouts.
Investigator Miller had other officers locate McAlister and bring him in for
an interview. During the interview, McAlister implicated the [Petitioner] in
the crime. Investigator Miller explained, ―[T]hat was the reason for the last
interview that we did.‖
In his final version of events, the [Petitioner] said:
―When I first got home that morning, [Gray, Roberson,
and McAlister] were inside my apartment. There was a gun
laying on my bed. The gun was a black revolver. I handed
[Gray] the gun and told him to get this away from me because
I‘m on ten years paper, [meaning on probation].
―I left and went to Brookfield and came back. [Gray,
Roberson, and McAlister] stayed there. When I came back
[Gray and Roberson] called me to the window. [McAlister]
was just in the room. He really didn‘t say anything.
―[Gray and Roberson were] talking about robbing the
locksmith that was working on the yellow car. I went out—I
went inside the house. I told [Gray], ‗If you going to rob him,
then rob him. You got the gun. I ain‘t got shit to do with
this.‘
―Everybody went outside. [Gray] shot and robbed him.
We went back inside my apartment. [Gray] had on his solid
black hoody coat. He had something covering his face.
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[Gray] had the locksmith‘s wallet and phone. That‘s when
we all left and went our separate ways.
―I got out of jail back on October the 8th. I got a
revolver on October 9th because I was being threatened. I
kept the gun sometimes and [Gray] kept the gun sometimes.
This was the same gun that was used in this robbery.‖
Lieutenant Christopher Wiser, the supervisor of the Gang
Enforcement Team, testified that he was involved in the homicide
investigation and that he was one of a team of officers who executed a
search warrant at Gray‘s residence at 1221 Hollywood Drive. After they
entered the residence, found it unoccupied, and secured the scene, they
broke ―into two-man search teams per room.‖ Lieutenant Wiser and
Sergeant Charles Wayne Mathis searched Gray‘s bedroom. On a shelf,
Lieutenant Wiser found a school progress report bearing Gray‘s name and
some trophies. Also in the bedroom, the officers found two blue bandanas;
one was a darker blue and the other was a lighter blue. A photograph of the
darker blue bandana was entered into evidence as Exhibit 19. Sergeant
Mathis stated that the dark bandana was found lying on top of a pair of
black jeans. Sergeant Mathis found a letter addressed to Gray from the
State Department of Safety and, in Gray‘s nightstand, he found a ―live .22
bullet.‖ Lieutenant Wiser said that he was present when Gray was arrested
at Jackson–Central Merry High School. Lieutenant Wiser acknowledged
that he was not aware of any evidence found at Gray‘s home that could be
linked to the [Petitioner].
....
Investigator Buckley was recalled to the stand and testified that
while the [Petitioner] was in jail, he had a telephone conversation with his
father. Investigator Buckley said that the recording of the conversation
reflected that the [Petitioner‘s] father asked, ―Did they find a gun yet?‖
The [Petitioner] responded, ―They got a gun but it ain‘t [the] gun that was
committed in this robbery and this murder.‖ The [Petitioner‘s] father
inquired, ―Well, then, you ain‘t—Where the gun at that you supposed to
have gave the boy?‖ The [Petitioner] replied, ―I don‘t know.
Dr. Feng Li, the medical examiner who performed an autopsy on the
victim‘s body, stated that the manner of the victim‘s death was homicide
and that the cause of death was a gunshot wound to the bridge of the
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victim‘s nose. Dr. Li stated that the victim‘s eyes were blackened and that
the bullet penetrated the cranial cavity, causing several injuries to the brain
tissues. From powder tattooing to the victim‘s skin, Dr. Li deduced that the
shot was fired from two-and-a-half to three feet from the victim. Dr. Li
retrieved two small bullet fragments from the victim‘s head. Because of
the size of the fragments, Dr. Li believed that the bullet was a small caliber.
However, the murder weapon was never recovered.
In the [Petitioner‘s] defense, his mother, Dorothy Hudson, testified
that her father nicknamed the [Petitioner] ―Pistol‖ when she was pregnant
and that the [Petitioner] had always been called ―Pistol.‖ She said that she
lived in apartment 220 but that on the morning of October 28, 2009, she
was next door in her boyfriend‘s apartment. Around 8:00 a.m., she took
her dog outside and saw the [Petitioner] walking toward the apartments
from Brookfield. When she finished walking her dogs, the [Petitioner] was
sitting on the porch of apartment 220. Ms. Hudson testified that she did not
hear a gunshot but that she later learned someone had been shot.
The jury found the [Petitioner] guilty of felony murder and
especially aggravated robbery. The trial court sentenced the [Petitioner] to
life imprisonment for his felony murder conviction and imposed a
concurrent sentence of twenty-five years for the especially aggravated
robbery conviction.
Ameale Hudson, 2012 WL 4044841, at *1-7.
As grounds for relief on direct appeal, the Petitioner argued that the trial court
erred by (1) denying his motion for a change of venue; (2) denying his motion to bar the
State from referring to him by his nickname, ―Pistol‖; and (3) denying his motion to
prohibit the admission of postmortem photographs of the victim. The Petitioner also
asserted that the evidence was insufficient to support his convictions. Id. at *1. In
addressing the Petitioner‘s claims that the trial court erred in denying his pretrial motions,
this court ruled that the Petitioner had waived consideration of the issues by failing to
raise them in his motion for new trial. Id. at *7-8. After determining that the evidence
was sufficient to sustain the Petitioner‘s convictions, this court affirmed the judgments of
the trial court. Id. at *10.
Post-Conviction Proceedings
The Petitioner filed a timely pro se petition for post-conviction relief in September
2013. Following the appointment of counsel, the Petitioner filed an amended petition for
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post-conviction relief, to which the State filed a written response. At a subsequent
hearing, the Petitioner testified that trial counsel was appointed to represent him before
his preliminary hearing and that trial counsel‘s representation continued through the
Petitioner‘s appeal. The Petitioner stated that he only met with trial counsel to discuss a
possible plea bargain and that trial counsel never spoke to him about a defense strategy.
The Petitioner recalled that trial counsel filed a motion for discovery and that included in
the State‘s discovery response were photographs of the victim. The Petitioner and trial
counsel agreed that the photographs were ―gruesome‖ and should be excluded. Trial
counsel filed a motion to exclude the photos; however, the trial court denied the motion
after a hearing. The Petitioner recalled that the photographs were later displayed to the
jury at trial. According to the Petitioner, trial counsel also filed a pretrial motion for
change of venue based upon the publicity received by the Petitioner‘s case. However, the
trial court denied this motion as well.
The Petitioner testified that, following his conviction, trial counsel filed a motion
for new trial but that trial counsel failed to include the trial court‘s denial of his pretrial
motions in the motion. As a result, the appellate court found that these issues were
waived.
On cross-examination, the Petitioner recalled that the trial court admitted the
photographs of the victim because they were relevant to the medical examiner‘s
explanation of cause of death and manner of death. The Petitioner also agreed that the
State had been required to prove serious bodily injury as an element of especially
aggravated robbery. He stated that the photos were ―relevant, but . . . not relevant
because I never committed any type of robbery.‖
Regarding the use of his nickname at trial, the Petitioner said that some of the
State‘s witnesses knew him as ―Pistol‖ but that other witnesses knew his legal name. He
agreed that trial counsel called his mother to testify about how he got his nickname. She
testified that the Petitioner‘s grandfather gave the Petitioner the nickname before the
Petitioner‘s birth. Moreover, she testified that the Petitioner‘s nickname was not based
upon the Petitioner‘s use of pistols.
Trial counsel testified that, following his appointment to represent the Petitioner,
he filed several pretrial motions, including a motion for change of venue, motion to
prohibit the use of the Petitioner‘s nickname, ―Pistol,‖ and a motion to exclude
photographs of the victim. Trial counsel acknowledged that he did not argue these issues
in the Petitioner‘s motion for new trial. Instead, he made a ―strategic decision‖ to focus
the motion for new trial on the sufficiency of the evidence and on the argument that the
State‘s key witnesses were unindicted co-conspirators.
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Regarding the use of the Petitioner‘s nickname by the State and its witnesses, trial
counsel stated that it was ―an identification issue.‖ Trial counsel stated that the defense
addressed the issue of the Petitioner‘s nickname at trial so that the jury understood it was
a childhood nickname given to the Petitioner by his grandfather. Trial counsel recalled
that he reviewed the trial testimony at the end of each day of trial and concluded, ―I just
didn‘t see where the nickname—where Pistol was playing a big role. I don‘t feel like the
prosecution abused it.‖
Trial counsel testified that the photographs of the victim were ―fairly clinical in
nature,‖ and he noted that the trial court found that the photos were relevant to the issue
of serious bodily injury. Additionally, the number of photographs actually shown to the
jury was small. Trial counsel stated that he did not think that the appellate court would
overrule the trial court on the issue.
On cross-examination, trial counsel testified that he had practiced law for about
fifteen years and that a large percentage of his practice was in criminal law. Trial counsel
agreed that the pretrial motions filed by the defense were not frivolous and that they had a
reasonable ground in law and fact. He recalled that the trial judge conducted an extensive
hearing on the motions and issued thorough rulings.
Trial counsel stated that, during trial, he paid attention to the issue of the use of the
Petitioner‘s nickname. Counsel took notes on when the nickname was used and in what
context, and he reviewed those notes each night during the trial. He stated that, at the
conclusion of the trial, he ―did not find that it played that much of a factor.‖ Trial
counsel recalled that most of the references to ―Pistol‖ came from witness testimony. As
a result, he was ―put in that position as to whether to just let it go or raise an objection
and bring more attention to it.‖ Trial counsel testified that, in hindsight, he did not
believe that the use of the Petitioner‘s nickname was ―that big of an issue,‖ although he
acknowledged that he did not know what impact, if any, it had on the jury.
Regarding his failure to raise in the Petitioner‘s motion for new trial the issue of
the trial court‘s denial of these motions, trial counsel explained that,
[A]fter fifteen years, it‘s my practice to try to narrow down the issue that I
feel like is going to give my client the best opportunity for some sort of
relief. In this case, after hearing all the trial testimony I felt like that a
sufficiency of the evidence argument was going to be . . . [the Petitioner‘s]
best chance of post[-]trial relief.
Following the hearing, the post-conviction court entered a written order denying
relief. This timely appeal follows.
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II. Analysis
The Petitioner asserts that he was denied the effective assistance of counsel based
upon trial counsel‘s failure to preserve as issues for appeal the trial court‘s denial of the
motion to prohibit the use of his nickname, ―Pistol,‖ and the motion to exclude
photographs of the victim. He contends that, although his nickname had no relevance, it
nonetheless ―saturated‖ the trial testimony such that the jury likely concluded, based
upon the Petitioner‘s nickname, that the Petitioner instructed his co-defendant to engage
in the robbery and murder. The Petitioner also contends that the ―gruesome‖ photographs
of the victim had no probative value and that, even if they did hold some relevance, the
danger of unfair prejudice far outweighed any probative value. Finally, the Petitioner
asserts that the cumulative effect of counsel‘s errors necessitates the granting of post-
conviction relief.
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court‘s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court‘s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
―questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].‖ Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court‘s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel‘s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for a court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not
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satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)).
Additionally, review of counsel‘s performance ―requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s
challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.‖
Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-
guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, ―counsel‘s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.‖ Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate ―that counsel‘s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.‖ Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.
Even if counsel‘s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner ―must show that there is a reasonable probability
that, but for counsel‘s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.‖ Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
A. Failure to Preserve Issues for Appeal
A defendant has a right to effective representation both at trial and on direct
appeal. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey,
469 U.S. 387 (1985)). The test for ineffective assistance of counsel is the same for both
trial and appellate counsel, under the Strickland standard set forth above. Id. That is, a
petitioner alleging ineffective assistance of appellate counsel must prove both that
appellate counsel was deficient in failing to adequately pursue or preserve a particular
issue on appeal and that, absent counsel‘s deficient performance, there was a reasonable
probability that the issue ―would have affected the result of the appeal.‖ Id. at 597; see
also Carpenter v. State, 126 S.W.3d 879, 886-88 (Tenn. 2004).
Regarding claims of ineffective assistance by appellate counsel, our supreme court
has provided:
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Appellate counsel are not constitutionally required to raise every
conceivable issue on appeal. Indeed, experienced advocates have long
emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most a few key issues.
The determination of which issues to raise on appeal is generally within
appellate counsel‘s sound discretion. Therefore, appellate counsel‘s
professional judgment with regard to which issues will best serve the
appellant on appeal should be given considerable deference.
Carpenter, 126 S.W.3d at 887 (citing King v. State, 989 S.W.2d 319, 334 (Tenn. 1999);
Campbell, 904 S.W.2d at 596-97).
When a petitioner alleges that trial counsel was deficient for failing to raise an
issue on direct appeal, the reviewing court must determine the merits of that issue. Id.
―Obviously, if an issue has no merit or is weak, then appellate counsel‘s performance will
not be deficient if counsel fails to raise it.‖ Id. Further, when an omitted issue is without
merit, the petitioner suffers no prejudice from appellate counsel‘s failure to raise the issue
on appeal and cannot prevail on an ineffective assistance of counsel claim. Id. at 887-88.
In this case, the post-conviction court found no deficient performance or prejudice
based upon counsel‘s failure to preserve as an issue for appeal the denial of the
Petitioner‘s motions to prohibit the use of his nickname and to exclude photographs of
the victim. Regarding the use of the Petitioner‘s nickname at trial, the post-conviction
court stated:
In reviewing the transcript, the Court notes that every witness who testified
referred to the [Petitioner] by his nickname, [―]Pistol. [‖] In fact, most of
the witnesses did not know his correct legal name. According to his
mother, [the Petitioner] has been called [―]Pistol[‖] his entire life. Further,
all of those witnesses could only identify the [P]etitioner by his nickname
―Pistol.‖ The name ―Pistol‖ was not used [ ] in a derogatory manner. It
was merely used to identify the [Petitioner]. Therefore, the [P]etitioner has
not shown any prejudice from the use of the nickname Pistol.
Turning to the photographs of the victim, the post-conviction court found that
―[t]he pictures introduced at trial were very clinical in nature‖ and ―were not gruesome or
inflammatory.‖ Moreover, the court concluded that the Petitioner had offered no proof
that show that the admission of the photographs had a prejudicial effect at trial.
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Finally, the post-conviction court found that trial counsel‘s decision to omit these
issues from the Petitioner‘s motion for new trial was a strategic decision, stating:
Trial counsel . . . testified that he chose to leave those issues out of the
motion for new trial because he did not want to clutter the issues on appeal.
[Trial counsel] testified that he did not feel those issues would be
overturned on appeal. Therefore, [trial counsel] wanted to focus the appeal
on the lack of corroborating testimony from someone other than a co-
conspirator. [Trial counsel] testified that this was a strategy decision.
[Trial counsel] testified that he only has a small window to argue at the
Court of [Criminal] Appeals. Counsel testified he did not want to spend
time addressing issues that he felt the [appellate court] would find harmless
error. Therefore, [trial counsel‘s] strategy was to focus the appeal only on
the issue of the uncorroborated testimony from the co-conspirators. The
Court finds [trial counsel] to be a credible witness. . . . The Court finds that
his strategy of focusing the appeal on the insufficiency of the evidence was
within the standard of reasonableness under the prevailing professional
norms and was not deficient. Further, the court finds that the petitioner did
not prove by clear and convincing evidence that there was any prejudice as
a result of the alleged deficient performance.
Applying the analysis outlined in Carpenter, we conclude that the Petitioner has
failed to establish deficient performance or prejudice with respect to trial counsel‘s
failure to preserve the two issues that were waived on direct appeal. First, trial counsel
was an experienced advocate who testified that he wanted to focus the motion for new
trial on the sufficiency of the evidence and on the argument that the State‘s key witnesses
were unindicted co-conspirators, and he made a ―strategic decision‖ not to raise the issue
of the pretrial motions in the motion for new trial. Trial counsel stated that, based upon
his fifteen years‘ experience and knowledge of the case, he believed that the sufficiency
of the evidence argument was the Petitioner‘s ―best chance of post[-]trial relief,‖ and the
post-conviction court accredited this testimony. We give trial counsel‘s professional
judgment considerable deference. See Carpenter, 126 S.W.3d at 887.
1. Use of the Petitioner‘s Nickname
This court has previously stated that ―[n]icknames should generally be avoided‖
during a trial and that ―trial judge should closely monitor any misuse.‖ State v. Zirkle,
910 S.W.2d 874, 886 (Tenn. Crim. App. 1995). In this case, the record supports the post-
conviction court‘s findings that the witnesses who used the nickname ―Pistol‖ only knew
the Petitioner by his nickname. The nickname was not used in a derogatory manner;
rather, it was used to identify the Petitioner. Thus, the Petitioner‘s nickname was
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relevant because it went to establishing his identity. Also, in our examination of the
record, we do not believe that the use of the Petitioner‘s nickname ―saturated‖ the trial to
the extent that the record affirmatively shows that it affected the jury‘s verdict. See State
v. Joey Dewayne Thompson, No. E2003-00569-CCA-R3-CD, 2004 WL 1592817, at *10
(Tenn. Crim. App. July 16, 2004) (holding that, while improper, the prosecutor‘s multiple
use of the defendant‘s name during its questioning of several witnesses was harmless
error because the defendant failed to show that the error ―affirmatively affected the result
of the trial‖). As pointed out by the State, of the twenty-two witnesses that testified for
the State, only three witnesses relied on the Petitioner‘s nickname, and they did so
because that was how they knew the Petitioner.2 While the prosecutor did use the
Petitioner‘s nickname several times, the prosecutor did not ―misuse[]‖ the nickname. See
Zirkle, 910 S.W.2d at 886. Generally, when using the nickname, the prosecutor was
merely repeating a witness‘s testimony back to the witness in order to clarify the
witness‘s testimony. Moreover, the Petitioner‘s mother testified that the nickname
―Pistol‖ was not the result of any criminal behavior but was the nickname innocently
given to the Petitioner by his grandfather before the Petitioner‘s birth. Thus, because this
issue has no merit, trial counsel was not deficient for failing to include the trial court‘s
denial of the motion to prohibit the use of his nickname as a ground for relief in the
Petitioner‘s motion for new trial, and the Petitioner suffered no prejudice from trial
counsel‘s failure to preserve the issue for appeal.
2. Photographs of the Victim
The Petitioner‘s challenge to the trial court‘s admission of photographs of the
victim is also without merit. ―Tennessee courts have consistently followed a policy of
liberality in the admission of photographs in both civil and criminal cases.‖ State v.
Carter, 114 S.W.3d 895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949
(Tenn. 1978)). ―The general rule . . . is that photographs of a murder victim‘s body are
admissible if they are ‗relevant to the issues on trial, notwithstanding their gruesome and
horrifying character.‘‖ Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-
51). The admissibility of photographs lies within the discretion of the trial court whose
ruling will not be overturned on appeal, except upon ―a clear showing of abuse of
discretion.‖ Banks, 564 S.W.2d at 948.
At trial, the State introduced four photographs of the victim‘s face—one before the
victim was taken from the scene and three from the victim‘s autopsy—which depicted a
2
The record from the Petitioner‘s direct appeal does not include a transcript of the State‘s
opening statement and closing argument; consequently, we have been unable to review those portions of
the Petitioner‘s trial. However, in his brief, the Petitioner does not assert that the State improperly or
abusively used his nickname during its opening statement or closing argument.
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small entry wound to the bridge of the victim‘s nose. The photographs were relevant to
the State‘s establishing the cause of death and the element of serious bodily injury
required by the charge of especially aggravated robbery. Moreover, we agree with the
post-conviction court that the photographs were ―clinical in nature‖ and not gruesome or
inflammatory. In this case, there is no clear showing of an abuse of discretion by the trial
court in admitting the photographs of the victim. Thus, trial counsel was not deficient for
failing to include this issue in the Petitioner‘s motion for new trial, and the Petitioner
suffered no prejudice from trial counsel‘s failure to preserve the issue for appeal.
The Petitioner has failed to prove that trial counsel‘s conduct fell below an
objective standard of ―reasonableness under prevailing professional norms.‖ Finch, 226
S.W.3d at 315 (internal quotations omitted). Furthermore, even if counsel‘s performance
was deficient, the Petitioner has failed to establish prejudice.
B. Cumulative Error
Finally, the Petitioner asserts that the cumulative effect of trial counsel‘s errors
caused him prejudice. The cumulative error doctrine recognizes that there may be many
errors committed in trial proceedings, each of which constitutes mere harmless error in
isolation, but ―have a cumulative effect on the proceedings so great at to require reversal
in order to preserve a defendant‘s right to a fair trial.‖ State v. Hester, 324 S.W.3d 1, 76
(Tenn. 2010). When considering cumulative error, this court may look to the case as a
whole, the numbers of errors committed, their interrelationship and combined effect, and
the strength of the State‘s case. Id. (quoting United States v. Sepulveda, 15 F.3d 1161,
1196 (1st Cir. 1993)). In this case, the Petitioner has failed to carry his burden that his
counsel deviated from the required standard of assistance. Accordingly, the Petitioner
has not established that the cumulative effect of trial counsel‘s errors resulted in
prejudice.
III. Conclusion
For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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