Harold Francis Butler, III v. State of Tennessee ( 2019 )

09/18/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 26, 2019 Session
HAROLD FRANCIS BUTLER, III v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 299585 Don W. Poole, Judge
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No. E2018-00914-CCA-R3-PC
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The Petitioner, Harold Francis Butler, III, appeals the Hamilton County Criminal Court’s
denial of his petition for post-conviction relief from his convictions of first degree felony
murder, attempted first degree premeditated murder, attempted especially aggravated
robbery, and employing a firearm during the commission of a dangerous felony and
resulting sentence of life plus thirty-one years. On appeal, the Petitioner contends that
the State violated his constitutional rights by conducting an unduly suggestive
identification procedure that rendered the identification unreliable and by eliciting false
testimony from a key witness at trial. He also raises numerous allegations of ineffective
assistance of trial counsel and contends that he is entitled to a new trial under the
cumulative error doctrine. 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 CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.
Brennan Maureen Wingerter (on appeal), Knoxville, Tennessee, and Brian Pearce (at
hearing), Chattanooga, Tennessee, for the appellant, Harold Francis Butler, III.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The Hamilton County Grand Jury indicted Steven Ballou, Unjolee Moore, John
Simpson, and the Petitioner for the first degree felony murder of Bernard Hughes, the
attempted especially aggravated robbery of Hughes, the attempted first degree
premeditated murder of Timothy Westfield, and employing a firearm during the
commission of a dangerous felony. The charges resulted from a failed robbery that was
committed by several masked men on the night of June 28, 2010.
A jury convicted the Petitioner of the indicted offenses. On direct appeal of his
convictions, this court summarized the proof at trial as follows:
[O]n the evening of June 28, 2010, Timothy Westfield, Myra Collier, and
Cindy Cross were visiting their friend, Bernard Hughes, at his apartment on
Oakwood Drive in Chattanooga. Shortly before 11:00 p.m., someone
knocked on Mr. Hughes’s front door. Mr. Hughes looked through the
peephole on the door and turned back to Mr. Westfield with a “peculiar”
look on his face. Mr. Hughes then opened the front door. Mr. Westfield
testified that he saw two men standing outside the front door; one man, later
identified as the [Petitioner], was wearing a ski mask, a black baseball cap,
a black jacket, and black pants, and that man ordered Mr. Hughes to “lay it
down,” which Mr. Westfield interpreted to mean that the men were there to
rob Mr. Hughes. Mr. Westfield identified the other man as John Simpson.
Mr. Hughes immediately ran outside and closed the front door
behind him. Mr. Westfield instructed Ms. Collier and Ms. Cross to go
upstairs, and Mr. Westfield hurried outside. As soon as Mr. Westfield
appeared outside, he noticed that Mr. Hughes was attempting to fight off
both of the would-be robbers. The [Petitioner] then raised a handgun and
fired two shots at Mr. Westfield, striking him in his left forearm and right
ring finger. Mr. Westfield briefly lost consciousness. When he regained
consciousness, he saw a silver Nissan Maxima pull up, saw someone get
into the Maxima, and saw the car pull away. Mr. Westfield attempted to
render aid to Mr. Hughes, who was lying in a pool of blood on the front
porch just outside his front door, and Mr. Westfield yelled for Ms. Collier
and Ms. Cross to call 9-1-1. Mr. Westfield retrieved a blanket from the
sofa in Mr. Hughes’s apartment and used it to cover Mr. Hughes’s body.
The medical examiner, Doctor James Metcalfe, testified that gunshot
wounds to Mr. Hughes’s head and chest caused his death and that the
manner of death was homicide.
Mr. Westfield testified that he had never seen Mr. Simpson prior to
June 28 but that he had seen the [Petitioner] on several prior occasions,
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including during the time period in which both the [Petitioner] and Mr.
Westfield had attended barber college together. Mr. Westfield admitted at
trial that he initially told law enforcement officers that he did not know
either of the men who attempted to rob Mr. Hughes, but he later identified
the [Petitioner], explaining that both he and the [Petitioner] have very
distinctive eyes and noses. Mr. Westfield stated that he was “an artist” and
that he paid “very close attention to detail.” Mr. Westfield explained that
he and the [Petitioner] both share a “high bridge” on their noses, which,
according to Mr. Westfield, is uncommon among African-Americans and is
usually a sign of “Indian heritage.”
Chattanooga Police Department (“CPD”) Officer Ken Burnette
testified that, when he responded to the crime scene on June 28, he
collected two .45-caliber shell casings and one live round of .45-caliber
ammunition. He also collected one size-eight athletic shoe and a white
baseball cap. He later processed a gold Nissan Maxima owned by Unjolee
Moore. In the trunk of the Maxima, Officer Burnette found a pair of size
eight-and-a-half Jordan athletic shoes and a ski mask, and he located a light
blue bandana on the rear floorboard of the vehicle. Mr. Westfield testified
that the size-8 shoe collected from the crime scene belonged to the
[Petitioner]. Ms. Collier explained that Steven Ballou was her ex-boyfriend
and that she knew Mr. Moore only by association. Ms. Collier recalled that
on one prior occasion, Mr. Moore and Mr. Ballou had stopped by Mr.
Hughes’s apartment when Ms. Collier was visiting him. Ms. Collier
testified that she did not know either Mr. Simpson or the [Petitioner].
John Simpson testified as a witness for the State and denied that he
knew who had killed Mr. Hughes. Over the [Petitioner]’s objection, the
trial court allowed the prosecutor to introduce the prior recorded statement
Mr. Simpson made to law enforcement officers on July 15, 2010, in which
Mr. Simpson stated that the [Petitioner] had, in fact, shot and killed Mr.
Hughes.
CPD Sergeant Michael Wenger testified that, following an interview
of Mr. Moore, he obtained arrest warrants for Mr. Simpson and the
[Petitioner]. The [Petitioner] turned himself in to authorities on July 14,
and Mr. Simpson was arrested on that same date. Sergeant Wenger
interviewed Mr. Simpson on July 15 after fully advising him of his rights,
and Mr. Simpson executed a written waiver of those rights. Sergeant
Wenger testified that he did not threaten or coerce Mr. Simpson and that he
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did not discuss any potential “deals” with Mr. Simpson prior to his
statement.
With this evidence, the State rested. Following the trial court’s
denial of the [Petitioner]’s motion for judgments of acquittal and a Momon
colloquy, the [Petitioner] chose not to testify but did elect to present proof.
Doctor Jeffrey Neuschatz, a professor of psychology at the University of
Alabama at Huntsville, testified as an expert in the area of eyewitness
identification. Doctor Neuschatz addressed the fallacies inherent in
eyewitness identification and explained the concept of unconscious
transference, wherein a person views a suspect in a lineup and selects that
individual simply because the suspect looks familiar but not because the
suspect actually committed the crime.
State v. Harold Francis Butler, No. E2014-00631-CCA-R3-CD, 2015 WL 2233122, at
*1-2 (Tenn. Crim. App. at Knoxville, May 11, 2015), perm. app. denied, (Tenn. Sept. 17,
2015).
After our supreme court denied the Petitioner’s application for permission to
appeal, he filed a timely petition for post-conviction relief. In his pro se petition and the
three amended petitions filed by counsel, the Petitioner alleged various reasons he
received the ineffective assistance of counsel as well as a number of acts by the
prosecution that deprived him of due process.
At the evidentiary hearing, Officer Mark Hamilton of the CPD testified for the
Petitioner that part of his job duties involved cellular technology. He stated that cellular
telephone companies sometimes recorded cellular telephone tower communications and
that based on the data, he could identify the approximate location of a cellular device.
Officer Hamilton said that using historical records, he could place a cellular telephone in
a “sector” but could not locate the telephone with great accuracy. He did not need the
actual device to locate the telephone. In 2010, AT&T saved engineering data for ten days
and sector data for one year. He said that using the sector data, he could have located a
device but that the location would have been measured in square miles and “wouldn’t
have been very accurate.”
Timothy Westfield, one of the victims in this case, testified that on the night of the
shooting, he had been at Bernard Hughes’ home about ten minutes when they heard a
knock on the door. Hughes opened the door, and Westfield saw the muzzles of two guns
being held by two men. Hughes ran outside, and Westfield followed him. Westfield
jumped toward the first person he saw. Westfield later saw the Petitioner on the news
and recognized him as the person toward whom he jumped. Westfield said that the
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Petitioner had cut Westfield’s hair previously and that they had an encounter at a gas
station a couple months before the shooting. The Petitioner was wearing a ski mask at
the time of the shooting, but Westfield was able to recognize him from “something
peculiar about his eyes” and the bridge of his nose.
Westfield testified that four men were in the yard: himself, Hughes, the Petitioner,
and another man. As he dove toward the Petitioner, he saw “two flashes and everything
went black.” The next thing he remembered was seeing Hughes lying in front of the
front door. He saw a silver Nissan Maxima pull up and “a black figure” come out from
behind Westfield’s car. The figure got into the Maxima, and the Maxima drove away.
He recalled that the Petitioner was wearing black and teal blue clothing. Westfield
acknowledged that the first time he identified the Petitioner as one of the perpetrators was
at the preliminary hearing.
John Simpson, the Petitioner’s codefendant, testified that he was arrested on July
13, 2010, and gave a recorded statement to the police a couple of days later. He spoke
with Sergeant Wenger for thirty or forty minutes before giving his recorded statement.
During that time, Sergeant Wenger told him certain things Sergeant Wenger knew about
the case. Namely, Sergeant Wenger told him that the Petitioner was his primary focus
and that the police had found a boot and a shotgun. When Sergeant Wenger began
recording Simpson’s statement, Simpson used the information to say what Sergeant
Wenger wanted him to say. Simpson said that his statement was false and that he gave
the false statement because Sergeant Wenger told him that he would get a fifteen-year
sentence.
Simpson testified that he told Sergeant Wenger other stories before Sergeant
Wenger started recording. However, the sergeant did not like what Simpson had to say,
so he told Simpson “exactly what he had and how he felt that those things actually went.”
For example, Sergeant Wenger asked Simpson about the Nissan Maxima. Simpson said
the car was black but learned just before the recording started that it was gold.
Simpson testified that he told Sergeant Wenger that he put on a mask and knocked
on Bernard Hughes’s door. Sergeant Wenger said the person who knocked on the door
was not wearing a mask, so Simpson changed his story. He also invented a story about
having a collision with another car on the way out of the parking lot.
Simpson testified that he gave a second statement on August 3 in which he told
Sergeant Wenger that he and the Petitioner buried a gun in the Petitioner’s backyard.
However, his second statement also was false. Simpson had never been to the
Petitioner’s home, and the police did not find any guns or freshly-dug holes in the
Petitioner’s yard.
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Simpson testified that the Petitioner’s trial counsel did not ask Simpson at trial
about any of his lies to the police. Trial counsel asked him if the Petitioner killed
Bernard Hughes, and the truthful answer to that question was no. Simpson described
some of the information he gave to police officers in his various statements and said he
learned the information from Sergeant Wenger. He said he inserted the Petitioner’s
involvement into the shooting because “that’s what [the police] wanted [him] to do” in
order to receive a sentence less than life in prison.
On cross-examination, Simpson acknowledged sending a letter to the district
attorney general before the Petitioner’s trial. In the letter, he stated that there was a
“‘strong gang presence in this case’” and that the Petitioner and Ballou were “pushing”
him not to testify because they could receive life sentences. However, he denied the
veracity of the letter and said that “I can put anything I want into a letter.” He said that
he was stabbed in prison but that the stabbing had nothing to do with gangs or the
Petitioner. Simpson acknowledged that the jury only heard a portion of his statement to
Sergeant Wenger. Specifically, the jury heard the part of his statement in which he said
he saw the Petitioner shoot Hughes and heard the Petitioner admit to shooting Hughes.
He acknowledged that on cross-examination at trial, trial counsel asked him if the
Petitioner shot Hughes. Simpson told trial counsel no.
On redirect examination, Simpson acknowledged that he no longer had a life
sentence “hanging over his head.” He therefore had no reason to lie about the
Petitioner’s involvement in the crimes.
Trial counsel testified for the Petitioner that he was appointed to represent the
Petitioner in 2011 and that the Petitioner went to trial in 2013 or 2014. Trial counsel had
tried three or four cases at the time of the Petitioner’s trial, but none of them were first
degree murder cases. Trial counsel acknowledged that he received a “considerable”
amount of discovery from the State, which he reviewed before trial. He applied for an
expert in identification but did not seek to have an investigator appointed because he did
not think there was “any investigation that required the use of an investigator.” He and
the Petitioner discussed an alibi defense but ultimately decided against it. He did not
remember the Petitioner ever explicitly requesting that he present an alibi. The Petitioner
was “never definitive as far as he was at a certain place,” and trial counsel did not think
he had enough information to find the people mentioned by the Petitioner or to
corroborate an alibi.
Post-conviction counsel asked if trial counsel remembered the name “Michelle
Angel.” At first, trial counsel said no. However, he then said he thought she was
associated with Unjolee Moore, one of the Petitioner’s codefendants. Trial counsel did
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not speak with Myra Collier, who was at Bernard Hughes’ house at the time of the
shooting. He recalled the name “Ariel” being mentioned in some of the codefendants’
statements, but he did not try to find or interview her. He also recalled that codefendants
Steven Ballou and Moore were accused in separate robberies prior to their involvement in
Hughes’ death; however, he did not interview anyone related to the other offenses to see
if there was a connection to the Petitioner.
Trial counsel testified that he filed several motions before trial, one of which
related to the Petitioner’s cellular telephone. The issue was that the Chattanooga police
examined the telephone but never collected it. Trial counsel thought that was significant
and wondered if the police did not collect the telephone because it contained exculpatory
information. He recalled that the police behaved in an “unusual” manner in response to
questioning about the telephone.
Trial counsel testified the he did not subpoena the Petitioner’s telephone records or
have location analysis performed because he “didn’t know what was on the cell phone”
and was concerned about producing evidence that could be used against the Petitioner.
The Petitioner never indicated that there would be exculpatory evidence on his telephone
or assured trial counsel that it did not contain inculpatory information, which was part of
trial counsel’s decision not to subpoena the telephone records. He elaborated that he
never wanted to “create evidence that could be used against a client” and that he did not
know what kind of evidence would be found if he subpoenaed the records.
Trial counsel recalled that codefendant Simpson gave two different statements to
the police and that Simpson testified in at least three hearings before the Petitioner’s trial.
Trial counsel listened to both of the statements and reviewed transcripts of Simpson’s
prior testimony. Trial counsel said he went to trial assuming that Simpson would testify
in accordance with Simpson’s first statement to the police in order to get a lighter
sentence. Therefore, he prepared an extensive cross-examination based on
inconsistencies between Simpson’s statement and the physical evidence. However,
Simpson testified that the Petitioner “was in fact not involved,” and trial counsel did not
know what Simpson was going to say if he asked Simpson additional questions. Trial
counsel explained, “My concern was that at that point any further impeachment I tried to
do, risked [muddying] those waters as well as [risked] him changing his mind again and
testifying in accordance with the statement and saying things that would be damaging to
[the Petitioner].” Trial counsel also was concerned that further cross-examination could
open the door to additional portions of Simpson’s statement coming into evidence.
Trial counsel testified that Timothy Westfield’s testimony at the preliminary
hearing was inconsistent with his trial testimony and that Westfield “tended to exaggerate
things in inconsistent ways.” Trial counsel did not consider filing a motion to suppress
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Westfield’s identification of the Petitioner because he did not think there was a legal
basis for such a motion. However, he attacked the credibility of Westfield’s
identification by having an eyewitness identification expert, Dr. Neuschatz, testify to
undermine the State’s eyewitness proof.
Trial counsel testified that the State’s “lowest” offer to the Petitioner was for a
plea to second degree murder with a fifteen-year sentence “to serve.” He conveyed the
offer to the Petitioner, but the Petitioner was not interested in the offer.
Trial counsel testified that he and the Petitioner discussed whether the Petitioner
would testify and the Petitioner’s right to testify. Trial counsel advised the Petitioner not
to testify because he did not think the jury would find the Petitioner credible. Trial
counsel did not tell the Petitioner that he was concerned about the Petitioner’s
misdemeanor record if he chose to testify. Trial counsel emphasized that he would not
have told the Petitioner that he could be asked about being a suspect in another murder if
he testified. Trial counsel recalled that the substance of the Petitioner’s testimony would
have been an alibi defense, but the Petitioner did not give him any first or last names,
which made the possibility of locating alibi witnesses very difficult. The Petitioner never
told him that the Petitioner was in a crowded bar, J.J.’s, with potential alibi witnesses.
Sergeant Michael Wenger of the CPD testified that he was the lead investigator in
the case. Sergeant Wenger interviewed Simpson and took two formal statements from
him. Sergeant Wenger recalled a number of things that Simpson told the police that
turned out to be untrue or unsubstantiated. However, there also were numerous
consistencies between what Simpson told him and what the evidence showed.
Sergeant Wenger testified that the recorded portion of his interview with Simpson
was a “mirror” of the conversation they had prior to starting the recording. He said it was
common practice for investigators to interview a suspect prior to the recorded interview
so that the recorded interview was “in a chronological order” and “more understandable.”
He denied giving Simpson information about the shooting prior to the recorded interview
or telling Simpson that he was “after” the Petitioner. Sergeant Wenger reiterated that he
was not “targeting” the Petitioner. Sergeant Wenger thought Simpson’s statement was
based on Simpson’s own recollections.
Sergeant Wenger testified that he was not aware of a photograph array ever being
shown to Timothy Westfield. If an array had been shown to Westfield, it would have
been reflected in “someone’s” report, and Sergeant Wenger would have been made aware
of it. Sergeant Wenger recalled that no one other than Simpson and Westfield gave the
police any information that the Petitioner was involved in the crime. On cross-
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examination, though, Sergeant Wenger recalled that codefendant Unjolee Moore
identified the Petitioner as one of the perpetrators.
The Petitioner testified that he knew Unjolee Moore from cutting Moore’s hair in
1998 or 1999 but that he did not see Moore again until a couple of weeks before the
shooting. He was familiar with Simpson from living in the same neighborhood. The
Petitioner claimed that he asked trial counsel to contact Michelle Angel because she was
Moore’s girlfriend, and Moore was directly involved in the case. He said that he did not
know Ms. Angel or any of the other people involved in the shooting, including the
victims.
The Petitioner testified that he was at J.J.’s nightclub on the night of the shooting.
He told trial counsel that he was there and that the “bouncers” knew him. He said he also
told trial counsel that he was at someone’s home cutting hair before going to J.J.’s. He
gave trial counsel nicknames and the full name of one of the witnesses, and he told trial
counsel the name of the housing project where the witnesses lived. The Petitioner
complained that trial counsel “never did anything I asked him,” such as subpoena
witnesses, follow up on his alibi, or cross-examine Simpson.
The Petitioner testified that in his opinion, Simpson’s only concern after being
arrested was getting out of the situation by any means necessary. The Petitioner stated
that according to Simpson, Sergeant Wenger told Simpson, “[Y]ou make sure I get [the
Petitioner] and I’ll make sure you don’t get a life sentence.” The Petitioner denied
threatening Simpson if Simpson testified at trial. The Petitioner said he was in the lowest
custody level possible in prison and could not be in that level if he were an active gang
member or had violence on his record.
The Petitioner testified that the only portion of Simpson’s recorded statement that
the State played at trial was the part in which Simpson said he saw the Petitioner raise the
gun and shoot Hughes. The Petitioner said that trial counsel asked Simpson “less than
five questions” on cross-examination, establishing only that Simpson did not actually see
the Petitioner shoot Hughes and that Simpson’s original statement to the police was false.
The Petitioner stated that he asked trial counsel to introduce evidence of Simpson’s
frequent dishonesty, such as his story about guns being buried in the backyard and the car
hitting another car while leaving the shooting, but trial counsel did not. The Petitioner
speculated that Simpson substituted the Petitioner for Moore’s role in the shooting, as
well as removed himself from being an aggressor.
The Petitioner testified that he was aware that Simpson had written several
jailhouse letters, including one saying Simpson shot Hughes in the shoulder. In
Simpson’s first statement to the police, though, Simpson said that Hughes was shot one
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time and that the Petitioner was the shooter. In actuality, Hughes was shot in the head
and the chest by two different caliber guns. The Petitioner asserted that trial counsel also
should have impeached Simpson about his claim that his family members were receiving
threats because none of Simpson’s recorded jailhouse telephone calls referred to threats.
The Petitioner testified that trial counsel advised him not to testify because the
State would use his misdemeanor record against him. He said that trial counsel only
spoke to him about a twenty-five-year plea offer for this case and another case but that he
did not want to “cop out to something that [he was] not even charged with.” The
Petitioner said he would have accepted a fifteen-year offer.
The Petitioner testified that he used to be a member of the Gangster Disciples but
was no longer in a gang. Simpson also was a member of the Gangster Disciples. The
Petitioner acknowledged that a gang member was not supposed to “snitch” on a fellow
member and said that there were “consequences” for doing so. The Petitioner
acknowledged that he had told people while he was in prison that he was “second in
command” in one of the prison gangs. That statement was not true, though. He denied
being involved in Simpson’s prison stabbing.
At the conclusion of the hearing, the post-conviction court entered a lengthy order
denying the petition for post-conviction relief. The Petitioner filed a motion to reconsider
and reopen the proof, arguing that he should be allowed to recall trial counsel in order to
ask why trial counsel did not raise two issues on direct appeal: the State’s improper
reliance on codefendant Simpson as a witness and the State’s improper closing argument.
The post-conviction court denied the motion.
The Petitioner appeals the court’s denial of his petition for post-conviction relief,
arguing that the State violated due process by: (1) bolstering Westfield’s trial testimony
with Westfield’s pretrial identification, which was obtained under the suggestive
conditions of the preliminary hearing and (2) impermissibly impeaching Simpson’s trial
testimony with Simpson’s prior inconsistent statement, which was obtained under the
pressure of a plea deal and uncorroborated by other evidence. In addition, he raises six
issues regarding his receiving the ineffective assistance of trial counsel: (1) counsel
failed to conduct an adequate pretrial investigation that would have revealed evidence to
corroborate his alibi; (2) counsel failed to inform him about a fifteen-year plea offer; (3)
counsel failed to suppress Westfield’s in-court identification, which the State used to
bolster the witness; (4) counsel failed to cross-examine Simpson about the circumstances
surrounding his plea deal and the false information he provided to the police; (5) counsel
failed to advise the Petitioner adequately about his right to testify; and (6) counsel failed
to challenge the sufficiency of the evidence on direct appeal. He further argues that he is
entitled to relief based on cumulative error.
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II. Analysis
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. Identification Procedure
First, the Petitioner makes the stand-alone claim that the State employed an unduly
suggestive identification procedure in eliciting Westfield’s identification of him at the
preliminary hearing. However, this issue had been waived because the Petitioner did not
include it in his post-conviction petition or any of the amended petitions. “Issues not
included in a post-conviction petition may not be raised for the first time on appeal and
are waived.” Bobby J. Croom v. State, No. W2015-01000-CCA-R3-PC, 2016 WL
690689, at *8 (Tenn. Crim. App. at Jackson, Feb. 19, 2016) (citing Walsh v. State, 166
S.W.3d 641, 645 (Tenn. 2005); Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim.
App. 2004)).
Moreover, this issue should have been raised on direct appeal of his convictions.
As this court has explained:
It is well established that a party may not raise an issue in a post-conviction
petition that could have been raised on direct appeal. State v. Townes, 56
S.W.3d 30, 35 (Tenn. Crim. App. 2000). “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.” Tenn. Code Ann. § 40-30-
206(g). “The opportunity to raise the issue during a direct appeal of the
conviction, coupled with a failure to pursue that appeal or a failure to raise
the issue during that appeal, constitutes a waiver of the issue pursuant to
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Code section 40-30-206(g)1 for purposes of a post-conviction relief
proceeding.” Townes, 56 S.W.3d at 35.
Andrew Cole v. State, No. W2002-01432-CCA-R3-PC, 2003 WL 22071451, at *4 (Tenn.
Crim. App. at Jackson, Aug. 29, 2003). Nevertheless, we will address the identification
procedure below in the context of ineffective assistance of counsel.
B. Eliciting False Testimony
Next, the Petitioner makes the stand-alone claim that the State knowingly elicited
false testimony from codefendant Simpson in violation of the Petitioner’s due process
rights and principles of fairness. However, this issue also has been waived because it
should have been presented on direct appeal. See id.
Regardless, the Petitioner asserts that “[d]espite the fact that none of Mr.
Simpson’s statements were corroborated by the police investigation, the State forced Mr.
Simpson to testify at [the Petitioner]’s trial because it wanted the jury to hear the one pre-
trial statement that implicated [him] in the crimes.” However, this court already disposed
of this claim on direct appeal when the Petitioner argued that the State impermissibly
called Simpson as a witness for the sole purpose of impeaching him with his otherwise
inadmissible statement—an argument this court rejected. Harold Francis Butler, No.
E2014-00631-CCA-R3-CD, 2015 WL 2233122, at *8.
Even if not waived or previously decided, the claim is without merit. When a
witness testifies falsely, either on direct or cross-examination, the State has an affirmative
duty to correct the false testimony. State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim.
App. 1993). To prevail on his claim that the State knowingly presented false testimony,
the Petitioner must establish by a preponderance of the evidence “(a) that false or
perjured testimony was admitted at trial, (b) that the [S]tate either knowingly used such
testimony or knowingly allowed it to go uncorrected, and (c) that the testimony was
material and deprived him of a fair trial.” Roger Morris Bell v. State, No. 03C01-9210-
CR-00364, 1995 WL 113420, at *8 (Tenn. Crim. App. at Knoxville, Mar. 15, 1995).
The Petitioner contends that “none of Mr. Simpson’s pre-trial statements were
supported or corroborated by credible information in the State’s possession.” However,
the post-conviction court found that the jury returned a verdict of guilt based in part on
the following evidence that corroborated Simpson’s testimony: Westfield’s initial
description of the shooter, which matched the Petitioner; Westfield’s initial description of
1
Former Tennessee Code Annotated section 40-30-206 has been renumbered to Tennessee Code
Annotated section 40-30-106.
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the shooter matched the Petitioner more than any of the other suspects; the general
agreement between Westfield’s and Simpson’s accounts of the events; the shoe found at
the scene was the Petitioner’s size and not the size of any of the other suspects or the
victims; DNA on the shoe did not exclude the Petitioner or Westfield but excluded the
other suspects; and the possibility from the pre-search disturbance of earth behind the
Petitioner’s residence that Simpson was correct in that firearms had been buried behind
the residence. The court also found that Simpson’s inculpation of himself and the
Petitioner was consistent with Moore’s inculpation of Simpson and the Petitioner. The
Petitioner’s claim that no credible proof linked him to the crimes is incorrect, and the
Petitioner’s allegation that the State knowingly presented false testimony has not been
established by a preponderance of the evidence.
C. Ineffective Assistance of Counsel
The Petitioner claims that he received ineffective assistance of counsel because
trial counsel: (1) failed to conduct an adequate pretrial investigation that would have
revealed evidence to corroborate his alibi; (2) failed to inform the Petitioner about a
fifteen-year plea offer that he would have accepted; (3) failed to suppress the in-court
identification used by the State to bolster its eyewitness; (4) failed to cross-examine
Simpson about the circumstances surrounding his plea deal and the false information he
provided to the police; (5) failed to advise the Petitioner adequately about his right to
testify; and (6) failed to challenge the sufficiency of the evidence on direct appeal.
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
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,
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[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).
1. Pretrial Investigation
The Petitioner contends that trial counsel rendered ineffective assistance by failing
to conduct an adequate pretrial investigation, which would have revealed evidence to
corroborate his alibi. Specifically, he asserts that trial counsel’s investigation was
deficient in three areas: trial counsel did not interview key witnesses Michelle Angel,
Myra Collier, and “Ariel”; did not investigate his alibi defense; and did not preserve his
cellular telephone records.
As to trial counsel’s failure to interview the above-named witnesses or investigate
the Petitioner’s alibi defense, the Petitioner did not present the testimony of the three
named witnesses or any alleged alibi witnesses at the evidentiary 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 speculate on what benefit any witness might have offered to the Petitioner’s
case. Id. In addition, “[w]ithout offering any proof as to an alibi, the petitioner cannot
demonstrate that he was prejudiced by his trial attorneys’ failure to investigate and raise
an alibi defense.” Michael Stanley Dotson v. State, M2001-00045-CCA-R3-PC, 2002
WL 369901, at *7 (Tenn. Crim. App. at Nashville, Mar. 8, 2002).
Moreover, with regard to trial counsel’s investigation of the Petitioner’s alibi, trial
counsel testified that he and the Petitioner discussed an alibi defense but ultimately
decided not to present such a defense. Counsel testified that the Petitioner’s alibi was
never very definitive and that counsel did not think he had enough information to find the
people the Petitioner mentioned only by nickname. The post-conviction court found no
deficiency in counsel’s actions and accredited trial counsel’s testimony that the Petitioner
“did not mention a crowded bar or provide counsel with any specific information, names,
addresses, or times” from which an alibi could be corroborated.
Regarding the cellular telephone records, trial counsel testified at the hearing that
the Petitioner never indicated the telephone contained any exculpatory information or
assured him that it did not contain inculpatory information, which played a role in trial
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counsel’s decision not to subpoena the telephone records. The post-conviction court
accredited trial counsel’s testimony and found trial counsel’s decision to be reasonable
given that the Petitioner transferred the telephone to a third party sometime after the
shooting and that the police found the telephone in the possession of the third party. The
court noted that the State’s lack of cellular telephone records connecting the Petitioner to
the codefendants and the crime scene created a favorable inference to the defense.
On direct appeal of his convictions, this court analyzed an exculpatory evidence
claim by the Petitioner and observed,
Although the defendant argues that the telephone would have been relevant
to determine his location at the time of the murder, hence potentially
providing the defendant with an alibi, his argument is misplaced. The mere
location of the telephone, or the fact that it was being used for text
messaging or other data entry, would in no way prove that the defendant
was in possession of the telephone at that time.
Harold Francis Butler, No. E2014-00631-CCA-R3-CD, 2015 WL 2233122, at *5.
Furthermore, the Petitioner’s own witness testified at the evidentiary hearing that his
analysis of the telephone records would have produced an inaccurate result and would
have placed the telephone within a sector that composed several square miles. Therefore,
we conclude that the Petitioner has failed to establish prejudice.
2. Plea Offer
The Petitioner asserts that trial counsel rendered ineffective assistance by failing to
inform him about a fifteen-year plea offer that he would have accepted. We conclude
that the Petitioner is not entitled to relief.
The Strickland standard also applies during plea negotiations. Missouri v. Frye,
566 U.S. 134, 143-48 (2012); Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014). “[A]s
a general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
accused.” Frye, 566 U.S. at 145.
The Petitioner testified that trial counsel conveyed a twenty-five-year offer that he
did not accept. Trial counsel testified that he conveyed a fifteen-year offer to the
Petitioner but that the Petitioner was not interested in the offer. The post-conviction
court did not think that the State extended a fifteen-year offer to the Petitioner, reasoning
that it was unlikely that the Petitioner, who was the alleged shooter, would have received
a more favorable offer than codefendant Simpson, who was cooperating and was not the
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shooter. The court determined that absent any evidence to corroborate the fifteen-year
offer, the evidence indicated that the offer was for twenty-five years. Accordingly, the
post-conviction court found no clear and convincing evidence of deficiency in counsel’s
performance, and we conclude that nothing preponderates against the court’s
determination.
3. Suppression of Identification
The Petitioner asserts that trial counsel rendered ineffective assistance by failing to
suppress Westfield’s in-court identification, which the State used to bolster the witness.
Again, we conclude that the Petitioner is not entitled to relief.
When a Petitioner claims that counsel was constitutionally ineffective by failing to
file pretrial motions to suppress evidence, the Petitioner must show that a motion to
suppress would have been granted and that there was a reasonable probability the
proceedings would have concluded differently. Vaughn v. State, 202 S.W.3d 106, 120
(Tenn. 2006). In Neil v. Biggers, the United States Supreme Court established a two-part
analysis to assess the validity of a pretrial identification. 409 U.S. 188, 198-99 (1972).
First, the trial court must determine whether the identification procedure was unduly
suggestive. Id. at 198. “To be admissible as evidence, an identification must not have
been conducted in such an impermissibly suggestive manner as to create a substantial
likelihood of irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn.
1998) (citing Simmons v. United States, 390 U.S. 377 (1968)). If the trial court
determines that the identification was unduly suggestive, it must then consider whether,
under the totality of the circumstances, the identification procedure was nonetheless
reliable. Biggers, 409 U.S. at 198-99. The Supreme Court identified five factors for
determining the reliability of an identification: (1) the opportunity of the witness to view
the perpetrator at the time of the offense; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s prior description of the perpetrator; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the time between the crime and
the identification. 409 U.S. at 199-200; see also State v. Philpott, 882 S.W.2d 394, 400
(Tenn. Crim. App. 1994). If, using the Biggers standard, a pretrial confrontation was so
impermissibly suggestive that it violated an accused’s right to due process, both the out-
of-court and in-court identifications are excluded. State v. Shanklin, 608 S.W.2d 596,
598 (Tenn. Crim. App. 1980).
Regarding trial counsel’s failure to file a motion to suppress Westfield’s in-court
identification of the Petitioner based on an unduly suggestive identification procedure
used at the preliminary hearing, the post-conviction court found that from the totality of
the circumstances, Westfield’s identification of the Petitioner was sufficiently reliable to
be admissible and, therefore, that there was no prejudicial deficiency in the failure to seek
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suppression. At the evidentiary hearing, trial counsel testified that he did not consider
filing a motion to suppress Westfield’s identification because he did not think there was a
legal basis for such a motion. However, he attacked the credibility of Westfield’s
identification by calling an eyewitness identification expert to undermine the State’s
eyewitness proof at trial. Counsel recalled that Westfield seemed to think that the
Petitioner was one of the people involved in the shooting even before the preliminary
hearing.
As noted by the post-conviction court, the circumstances that weighed in favor of
the reliability of the identification included: Westfield’s initial, apparently clear, pre-
struggle view of the perpetrators at the front door, about ten feet away, and in decent
view from two porch lights; the visibility of the shooter’s eyes and the bridge of his nose
despite wearing a half-mask; the distinctiveness of the shooter’s eyes and the high bridge
of the shooter’s nose; and Westfield’s description of himself as an artist who paid “very
close attention to detail” and his creation of composite drawings of the shooter’s eyes and
nose. The court noted that despite Westfield’s initial statement that he did not know
either of the perpetrators, by the time of the preliminary hearing, which was within two
months of the shooting, Westfield was certain about his identification of the Petitioner.
The court found that Westfield’s explanation at trial for his certainty was credible.
The Petitioner has failed to demonstrate that a motion to suppress would have
been granted. The post-conviction court’s findings, which are attuned to the concerns of
the Biggers factors, support the reliability of the identification. In addition, the record
reveals strategic decision-making on counsel’s part that he did not think he had a legal
basis to suppress the identification and, instead, attacked the reliability of the
identification.
4. Cross-Examination of Simpson
The Petitioner claims that trial counsel rendered ineffective assistance by failing to
cross-examine Simpson about the circumstances surrounding Simpson’s plea agreement
and the false information he provided to police. We conclude that the Petitioner has
failed to show that he is entitled to relief.
Trial counsel testified that on cross-examination, he elicited from Simpson that
Simpson lied to the police about the Petitioner’s involvement in the shooting. Trial
counsel said that he decided not to cross-examine Simpson further because he was
concerned that any further attempts at impeachment would risk Simpson’s changing his
mind again and offering unfavorable testimony. Trial counsel also was concerned that
further cross-examination could open the door to additional portions of Simpson’s
statement to police being admitted into evidence. The post-conviction court found that
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trial counsel limited his cross-examination for fear of opening the door to more of
Simpson’s prior statements. Additionally, the court noted that trial counsel cross-
examined Sergeant Wenger about inaccuracies in Simpson’s statements to police.
This court has previously noted that “cross-examination is a strategic and tactical
decision of trial counsel which is not to be measured by hindsight.” State v. Kerley, 820
S.W.2d 753, 756 (Tenn. Crim. App. 1991). Moreover, “[a]llegations of ineffective
assistance of counsel relating to matters of trial strategy or tactics do not provide a basis
for post-conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App.
1991). Given Simpson’s history of contradictory statements, we conclude that trial
counsel’s strategy was reasonable, and we will not second-guess counsel’s decision. We
note, as did the post-conviction court, that trial counsel elicited additional impeachment
of Simpson by questioning Sergeant Wenger about inaccuracies in Simpson’s statements
to police.
5. Advice on Testifying
The Petitioner argues that trial counsel rendered ineffective assistance by failing to
advise him adequately about his right to testify. He asserts that trial counsel advised him
that his misdemeanor criminal history could be used against him if he chose to testify.
At the evidentiary hearing, trial counsel testified that he and the Petitioner
discussed whether the Petitioner would testify and the Petitioner’s right to testify. He
said he advised the Petitioner not to testify because he did not think the jury would find
his testimony credible. He said he did not tell the Petitioner that the State could question
the Petitioner about his misdemeanor record if the Petitioner chose to testify.
The post-conviction court accredited trial counsel’s testimony. The court noted
that the defense’s theory was misidentification and that presenting noncredible testimony
would have made the Petitioner seem more like a dishonest perpetrator and less like an
innocent victim of misidentification. The evidence does not preponderate against the
findings of the post-conviction court.
6. Challenge to Sufficiency of the Evidence on Direct Appeal
Finally, the Petitioner argues that trial counsel rendered ineffective assistance by
failing to challenge the sufficiency of the evidence on direct appeal. However, the
Petitioner has waived this issue for failing to raise it in his post-conviction petition or
amended petitions. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996)
(stating that “[o]rdinarily, issues raised for the first time on appeal are waived”). Even in
his motion to reopen the post-conviction proof, the Petitioner did not specifically allege
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that counsel should have challenged the sufficiency of the evidence on appeal, although
he specifically alleged other deficits.
The Petitioner suggests that because this court routinely reviews sufficiency even
when it has otherwise been waived, it should do so here. However, that rule applies to
direct appeals, not post-conviction appeals. “It has long been established in this
jurisdiction that a petitioner may not litigate the sufficiency of the evidence in a post-
conviction suit.” Workman v. State, 868 S.W.2d 705, 711 (Tenn. Crim. App. 1993).
The Petitioner also suggests that this court could reverse the post-conviction
court’s denial of his motion to reopen the proof and remand the case in order for him to
develop the issue. In support of his claim, the Petitioner cites Tennessee Code Annotated
section 40-30-117(a)(4). However, the entire statute for reopening a post-conviction
proceeding provides as follows:
(a) A petitioner may file a motion in the trial court to reopen the first
post-conviction petition only if the following applies:
(1) The claim in the motion is based upon a final
ruling of an appellate court establishing a constitutional right
that was not recognized as existing at the time of trial, if
retrospective application of that right is required. The motion
must be filed within one (1) year of the ruling of the highest
state appellate court or the United States supreme court
establishing a constitutional right that was not recognized as
existing at the time of trial; or
(2) The claim in the motion is based upon new
scientific evidence establishing that the petitioner is actually
innocent of the offense or offenses for which the petitioner
was convicted; or
(3) The claim asserted in the motion seeks relief from
a sentence that was enhanced because of a previous
conviction and the conviction in the case in which the claim is
asserted was not a guilty plea with an agreed sentence, and
the previous conviction has subsequently been held to be
invalid, in which case the motion must be filed within one (1)
year of the finality of the ruling holding the previous
conviction to be invalid; and
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(4) It appears that the facts underlying the claim, if
true, would establish by clear and convincing evidence that
the petitioner is entitled to have the conviction set aside or the
sentence reduced.
Tenn. Code Ann. § 40-30-117(a) (emphasis added). The Petitioner’s attempt to show
ineffective assistance of counsel for failure to challenge sufficiency does not fit any of the
three narrow statutory scenarios. Therefore, he is not entitled to relief.
D. Cumulative Error
Finally, the Petitioner contends that he is entitled to relief based upon cumulative
error. However, the Petitioner has not shown any error. Accordingly, we find no merit to
this claim.
III. Conclusion
We affirm the judgment of the post-conviction court.
____________________________________
NORMA MCGEE OGLE, JUDGE
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