Anthony Blake Wisdom v. State of Tennessee ( 2019 )

04/08/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 20, 2019
ANTHONY BLAKE WISDOM v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2012-C-2245 Steve Dozier, Judge
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No. M2018-00641-CCA-R3-PC
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The Petitioner, Anthony Blake Wisdom, appeals the Davidson County Criminal Court’s
denial of his petition for post-conviction relief from his conviction of aggravated robbery
and resulting fourteen-year sentence. On appeal, the Petitioner contends that he received
the ineffective assistance of trial counsel. Based upon the record and the parties’ briefs,
we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Anthony Blake Wisdom.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glen R. Funk, District Attorney General; and J. Wesley King,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In August 2012, the Davidson County Grand Jury indicted the Petitioner and his
two codefendants, Kira Bukowski and Sarah Syers, for aggravated robbery, a Class B
felony. The victim, Bukowski, and Syers testified against the Petitioner at trial; the jury
convicted him as charged; and the trial court sentenced him as a Range II, multiple
offender to fourteen years in confinement. This court affirmed the Petitioner’s conviction
on direct appeal and stated as follows regarding the sufficiency of the evidence against
him:
In the light most favorable to the State, the record
reflects that the Defendant pushed his way into the victim’s
apartment while holding what the victim believed was a
pistol. The Defendant pushed the victim onto a couch and
held the victim down, placed the gun to the victim’s head,
demanded drugs and money, and instructed Ms. Bukowski to
take two laptop computers. Ms. Bukowski took the
computers. While the Defendant had the gun placed to the
victim’s head, the Defendant took a pack of cigarettes and the
victim’s wallet from the victim’s pocket. The Defendant took
$100 from the victim’s wallet. Witness testimony reflects
that the Defendant knew the victim had $100 just before the
incident occurred, and the Defendant’s fingerprint was found
on the power cord for one of the stolen laptop computers.
The Defendant drove the van with Ms. Bukowski and the
computers to another apartment complex and took the
computers out of the van.
Although the testimony of Ms. Syres, Ms. Bukowski,
and the victim varied on some details, the jury by its verdict
resolved any conflicts in favor of the State, and we may not
revisit matters of witness credibility. The evidence was
sufficient to support the Defendant’s conviction, and he is not
entitled to relief on this basis.
State v. Anthony Blake Wisdom, No. M2015-00099-CCA-R3-CD, 2016 WL 874783, at
*7 (Tenn. Crim. App. at Nashville, Mar. 8, 2016).
The Petitioner filed a timely pro se petition for post-conviction relief, alleging that
he received the ineffective assistance of trial counsel. The post-conviction court
appointed counsel, and post-conviction counsel filed an amended petition, claiming that
trial counsel was ineffective because he failed to advise the Petitioner about the nature of
the charge; failed to investigate the allegations and the case; failed to interview the
State’s witnesses and develop a credible defense strategy; failed to interview the victim’s
neighbor, who would have testified for the defense that the neighbor never saw a gun or
any of the victim’s property on the Petitioner’s person; and erroneously advised the
Petitioner not to testify.
At the evidentiary hearing, the thirty-five-year-old Petitioner testified that trial
counsel was appointed to represent him. The Petitioner was on bond while awaiting trial,
and he met with trial counsel in trial counsel’s office about three times. The case was set
and reset for trial multiple times, and the Petitioner received one fourteen-year offer from
the State but rejected it. Trial counsel and the Petitioner did not know what Bukowski
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and Syers were going to say at trial, and the Petitioner did not know what trial counsel’s
strategy was going to be. The Petitioner said that he wanted to testify at trial but that trial
counsel kept advising him not to testify because of his criminal record. The Petitioner
did not testify, and trial counsel did not present any proof on his behalf.
The Petitioner testified that Bukowski and Syers also had criminal records and
were not credible. Nevertheless, they ended up receiving probation, and the Petitioner
“[took] the fall for everything.” The Petitioner stated that the jury did not get to hear
“what actually happened” and that not testifying at trial was his “greatest regret.” He said
that if he had testified, he would have stated that “there was no gun involved at all” and
that “[i]t was just a date gone wrong.” The Petitioner said he would have told the jury
that he walked up on his codefendants and the victim arguing over money, that the victim
reached out to grab one of the “girls,” and that the Petitioner pushed the victim.
Bukowski grabbed the two laptops and ran, and the Petitioner offered to help the victim
get his computers back. The victim locked his apartment door and followed the
Petitioner down the hallway. The victim’s neighbor came outside, and the victim told the
neighbor, “[P]lease help me, they take my stuff.” The Petitioner “didn’t want to get in
trouble for something [he] didn’t do,” so he fled. The Petitioner did not have a gun, and
the victim’s neighbor did not see a gun. The Petitioner admitted that he pushed the
victim but said that he did not rob the victim. Bukowski took the victim’s laptops and
money, and the Petitioner’s fingerprint ended up on one of the power cords because he
tried to grab it from her. The Petitioner said that he was a drug addict at the time of the
incident but that his memory was “pretty clear.”
The Petitioner testified that the victim gave inconsistent statements. For example,
the victim initially told the police that he did not pay Bukowski or Syers for sex but later
admitted that he was involved in prostitution. At first, the victim testified at trial that he
was smoking a cigarette on his balcony when the defendants entered his apartment;
however, he later testified that he was on “Skype” with his mother when the defendants
came into the apartment. The Petitioner said that if the victim had been on Skype as he
claimed, then his mother should have seen the defendants in the apartment. The victim
failed to show up for court four times. The Petitioner said that the victim did not want to
come to trial because he knew he was lying and that the trial court should have dismissed
the case.
On cross-examination, the Petitioner testified that his main complaints with trial
counsel were that trial counsel did not let him testify and did not have the victim’s
neighbor testify. Trial counsel was young and claimed he had never “lost” a case.
However, the Petitioner did not think counsel had ever been to trial.
The Petitioner testified that although he made bond, Bukowski and Syers remained
in jail. The Petitioner acknowledged having four prior felony convictions, including
three for theft, and multiple misdemeanor convictions. He did not understand, though,
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how the convictions could be used against him when they were more than ten years old.
He said that none of his convictions were for violent crimes and that “I have never been
violent ever.” He acknowledged that he was on probation when he was accused of
robbing the victim.
The Petitioner testified that trial counsel told him there was no reason to have the
victim’s neighbor testify for the defense. The Petitioner acknowledged that the victim’s
neighbor saw the Petitioner come out of the victim’s apartment and that the victim was
“in distress.” The Petitioner also acknowledged that the victim’s neighbor chased him
out of the apartment building. The victim’s neighbor followed the Petitioner down the
street and “rear ended” him at a stoplight. Nevertheless, the Petitioner wanted the
victim’s neighbor to testify at trial that he did not see the Petitioner with a gun.
Trial counsel testified that he had been licensed to practice law since 2009, that he
had been practicing criminal defense almost exclusively since 2010, and that he had
handled felony jury trials. Trial counsel represented the Petitioner at the Petitioner’s
preliminary hearing and at the Petitioner’s December 2013 trial. The Petitioner was on
probation when he allegedly committed the offense, and his probation was revoked. Trial
counsel filed a motion to reduce the Petitioner’s bond, the trial court reduced the bond to
$50,000, and the Petitioner posted bond after he completed the probation revocation.
Trial counsel agreed that he and the Petitioner probably met three times in counsel’s
office. However, trial counsel spoke regularly with the Petitioner and the Petitioner’s
father by telephone. Trial counsel said that he provided discovery to the Petitioner but
that he did not remember if he gave discovery to the Petitioner “all at once or
piecemealed it.”
Trial counsel testified that as the Petitioner’s July trial date approached, trial
counsel learned that the Petitioner’s codefendants were going to testify against him. Trial
counsel asked the trial court for a continuance so that he could change his defense
strategy, and the trial court reset the trial for October. Trial counsel’s aunt died the
Sunday before the trial was scheduled to begin, so the trial court reset the trial for
November. Trial counsel said that the “biggest thing” he and the Petitioner talked about
was whether the victim would show up for trial because the State had indicated that it
could not locate the victim. Trial counsel told the Petitioner that “our chances are much,
much better if the victim does not show.” However, if the victim did show up for trial,
trial counsel had found discrepancies in the victim’s previous testimony. The victim also
had been dishonest with the police about why the codefendants were at his apartment,
and trial counsel had questions about the victim’s “legal status.” Trial counsel said that
he did not interview the codefendants before trial because they made statements to the
police when they were arrested. Therefore, trial counsel “kind of” knew what they
needed to say for the State at trial. The State initially made a fourteen-year plea offer to
the Petitioner but amended the offer to eight years to be served at eighty-five percent
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release eligibility. The Petitioner refused to sign a plea agreement, so trial counsel began
preparing for trial with the assumption that the victim would testify.
Trial counsel testified that he did not think the codefendants should be considered
credible at trial because they were going to receive some type of sentence reduction in
exchange for their testimony. Trial counsel’s investigator spoke with the victim’s
neighbor before trial. The investigator told trial counsel that it was “not going to go
well” for the defense if trial counsel called the neighbor to testify. The victim’s neighbor
had chased the defendants, damaged his own property by ramming their van, and would
have corroborated the victim’s testimony. Trial counsel said the only beneficial
testimony the neighbor could have given for the defense was that he did not see a gun in
the Petitioner’s hands. However, everything else the neighbor would have said could
have been “crippling” to the defense. Trial counsel had another criminal defense attorney
act as a “second pair of eyes” on the Petitioner’s case. The attorney agreed to work on
the case for free and cross-examined the codefendants at trial.
Trial counsel testified that the Petitioner wanted to give the jury his version of the
events, so trial counsel and the Petitioner discussed whether he should testify. Trial
counsel told the Petitioner that it was the Petitioner’s “absolute right” to testify.
However, trial counsel was concerned about the Petitioner’s criminal record, which
included convictions from 2002, and he and the Petitioner talked about the “ten year
rule.” Trial counsel advised the Petitioner that the State may not be able to bring up the
convictions at trial due to the time limit but that he and the Petitioner could address the
issue later. The victim and the codefendants gave similar testimony at trial. After the
State’s proof, trial counsel, the Petitioner’s father, and the Petitioner discussed whether
the Petitioner should take the stand. Trial counsel said he warned the Petitioner that the
Petitioner could be cross-examined by a prosecutor “who [has] been doing this for years”
and that “there are too many things that [the prosecutor] could bring up that would
cripple [your] telling of what happened.” Although trial counsel thought the Petitioner’s
version of events was “very plausible,” trial counsel also thought the benefit of him
testifying was outweighed by the potential cost. Therefore, he advised the Petitioner not
to testify. The Petitioner’s father also advised him not to testify. Trial counsel said that
the Petitioner “was able to weigh the gravity” of trial counsel’s advice, that the Petitioner
listened to his father and trial counsel, and that the Petitioner chose not to testify. Trial
counsel acknowledged that it was the Petitioner’s decision not to testify.
In a written order, the post-conviction court first addressed the Petitioner’s claim
that trial counsel should have called the victim’s neighbor to testify and found that the
Petitioner was not entitled to relief because he did not present the witness at the
evidentiary hearing. Regarding the Petitioner’s remaining claims, the court accredited
trial counsel’s testimony that he met with the Petitioner before trial, that they discussed
the charge and the trial strategy, and that trial counsel provided the Petitioner with
discovery materials. The post-conviction court also accredited trial counsel’s testimony
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that he encouraged the Petitioner not to testify due to the Petitioner’s prior convictions.
The court found that trial counsel properly investigated the case, noting that counsel used
an investigator to aid with the defense. The post-conviction court concluded that the
Petitioner failed to show by clear and convincing evidence that he was entitled to relief
and denied the petition.
II. Analysis
The Petitioner contends that the post-conviction erred by finding that he did not
receive the ineffective assistance of trial counsel because trial counsel failed to present a
meaningful defense, failed to present any witnesses or allow the Petitioner to testify,
failed to call the victim’s neighbor as a witness, failed to impeach the Petitioner’s
codefendants sufficiently, and “failed to produce any evidence which would have helped
the jury understand what occurred from [the Petitioner’s] point of view.” The State
argues that the post-conviction court properly denied the Petition. We agree with the
State.
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel's
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
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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.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance
claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes
an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
Here, the post-conviction court accredited trial counsel’s testimony that he met
with the Petitioner before trial, that he discussed the charge and the trial strategy with the
Petitioner, and that he provided the Petitioner with discovery materials. The court found
that trial counsel properly investigated the case, noting that he used an investigator to aid
with the defense. The post-conviction court also accredited trial counsel’s testimony that
he encouraged the Petitioner not to testify due to the Petitioner’s prior convictions. We
note that trial counsel additionally testified that he advised the Petitioner not to testify
because he was concerned about the State’s potential cross-examination of the Petitioner.
Regarding trial counsel’s failure to call the victim’s neighbor as a witness for the defense,
trial counsel testified that even though the neighbor may have said that he did not see the
Petitioner with a gun, the neighbor’s testimony would have corroborated the victim’s
version of the events.
With regard both to trial counsel’s advice to the Petitioner not to testify and
counsel’s decision not to have the neighbor testify for the defense, criminal defendants
are not entitled to perfect representation, only constitutionally adequate representation.
Denton v. State, 945 S.W.2d 793, 796 (Tenn. 1996). “Thus, the fact that a particular
strategy or tactic failed or even hurt the defense does not, alone, support a claim of
ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Moreover, “an accused is not deprived of the effective assistance of counsel because a
different procedure or strategy might have produced a different result.” Vermilye v.
State, 754 S.W.2d 82, 85 (Tenn. Crim. App. 1987). This court may not “second guess”
counsel’s tactical or strategic choices made in the course of trial. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). In any event, as noted by the post-conviction court, the
Petitioner did not present the neighbor’s testimony at the hearing. “When a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary
hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not
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speculate on what benefit any witness might have offered to the Petitioner’s case. Id.
Therefore, the Petitioner is not entitled to relief.
With regard to the Petitioner’s claim that trial counsel failed to impeach his
codefendants sufficiently, the Petitioner has included the trial transcript in the appellate
record. Our review of the transcript shows that the defense cross-examined the
Petitioner’ codefendants about their immunity agreements with the State, their
involvement in prostitution with the victim, and their versions of the events in the
victim’s apartment. The Petitioner has not alleged what more trial counsel should have
done to impeach their testimony or what evidence trial counsel should have presented
that would have changed the outcome of his trial. Accordingly, we agree with the post-
conviction court that he has failed to demonstrate that counsel was deficient or that he
was prejudiced by any deficiency.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
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NORMA MCGEE OGLE, JUDGE
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