CALVIN EUGENE BRYANT v. STATE OF TENNESSEE ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 14, 2013 Session
CALVIN EUGENE BRYANT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2008-B-1478 Steve R. Dozier, Judge
No. M2012-01560-CCA-R3-PC - Filed August 16, 2013
The Petitioner, Calvin Eugene Bryant, appeals the Davidson County Criminal Court’s denial
of post-conviction relief. The Petitioner argues on appeal that trial counsel provided
ineffective assistance of counsel by failing to request a jury instruction on the lesser included
offense of facilitation. Upon review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.
James O. Martin, III, for the Defendant-Appellant, Calvin Eugene Bryant.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Rachel M. Sobrero,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
A Davidson County Grand Jury indicted the Petitioner for three counts of sale of a
Schedule I controlled substance within a Drug-Free School Zone (counts 1, 2, and 4) and two
counts of delivery of a Schedule I controlled substance within a Drug-Free School Zone
(counts 3 and 5). See T.C.A. §§ 39-17-417(a), -432 . At trial, the jury acquitted him of the
first count of sale of a Schedule I controlled substance within a school zone and convicted
him as charged on the remaining counts. The trial court merged the delivery counts with the
sale counts and imposed concurrent sentences of seventeen years for each conviction. On
appeal, this court upheld the Petitioner’s conviction and sentence. State v. Calvin Eugene
Bryant, Jr., No. M2009-01718-CCA-R3-CD, 2010 WL 4324287, at *1 (Tenn. Crim. App.
Nov. 1, 2010), perm. app. denied (Tenn. Apr. 13, 2011). On December 28, 2011, the
Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing,
the court denied post-conviction relief, and the Petitioner filed a timely notice of appeal.
Trial. On direct appeal, this court summarized the evidence presented at trial:
This case arises out of three controlled drug buys that took place on
March 4, March 21, and April 23, 2008, between a confidential informant and
the defendant. The defendant was indicted on three counts of sale of a
Schedule I controlled substance (Counts 1, 2, and 4) and two counts of the
alternate theory of delivery of a Schedule I controlled substance (Counts 3 and
5). Each of the five counts was alleged to have occurred within 1000 feet of
a school in violation of Tennessee Code Annotated section 39-17-432, the
“Drug-Free School Zone Act.” The defendant was originally tried in October
2008, but the jury was unable to reach a verdict. The trial court declared a
mistrial, and the case was transferred to a different trial court division. The
retrial was scheduled for December 2008, and after a continuance, the case
went to trial in February 2009.
State’s Proof
At trial, Detective William Loucks testified that he was a detective with
the Specialized Investigations Division of the Metropolitan Nashville Police
Department in the Gang Unit. He explained that the Specialized Investigations
Division conducts “longer term” and “more indepth” investigations, often
involving federal law enforcement agencies. In early 2008, Detective Loucks
became involved in an investigation of the defendant in an area where “a high
distribution of narcotics” had been taking place. Detective Loucks planned to
use confidential informants to make purchases, and he described how he
developed the informants.
Detective Loucks testified that in February 2008, he arrested Terrance
Knowles on an habitual motor vehicle offender charge, and in the process, he
talked to Knowles who “gave [him] some information that [he] felt was pretty
accurate[.]” Detective Loucks gave Knowles his card and contact information
and told him to contact him “if [he was] interested in working when [he] g[o]t
out[.]” Knowles later contacted Detective Loucks, who met with him and
another detective, and they discussed the rules and regulations for working as
a confidential informant.
-2-
Detective Loucks testified that his next contact with Knowles was on
March 4, 2008, when Knowles was to do a “reliability buy” of twenty pills for
$140–an amount he could purchase “that wouldn’t throw up any flags.”
Around 11:00 a.m. that day, Detective Loucks met with Knowles at an address
in the Edgehill community of Nashville and gave him $140 in previously
photocopied money. Detective Loucks and other detectives followed and
monitored Knowles as he went to a location in a housing complex in Edgehill.
Detective Loucks was not able to visually watch Knowles enter and exit the
house, but he was able to monitor the transaction via the audio device with
which Knowles had been wired. Detective Loucks identified a tape recording
of the March 4 transaction and stated that he had since listened to it and
recognized his voice as well as Knowles’ and the defendant’s.
Detective Loucks testified that after the transaction, he recovered the
pills from Knowles and searched him. He turned the pills into the property
room and submitted a request for forensic analysis by the Tennessee Bureau
of Investigation (“TBI”). Detective Loucks identified “a bag of various
colored pills” as the ones purchased by Knowles on March 4. He noted that
Knowles was paid forty dollars, the standard rate for a reliability buy, and fifty
dollars for providing intelligence on a suspected drug dealer.
Detective Loucks testified that the next transaction took place on March
21, 2008. This transaction was to be for 100 Ecstasy pills for $650. The
transaction took place “[i]n the vicinity of 1305 12th Avenue South, Edgehill
complex.” He elaborated that it was “in the vicinity” because the defendant
was not inside his residence but was standing outside. Detective Loucks
described the same procedure as with the first transaction, whereby he met
with Knowles, searched him and his vehicle, gave him previously photocopied
money, and followed him to the intersection of 12th Avenue and Edgehill. As
with the first transaction, Detective Loucks monitored and recorded the
transaction on audio, while other detectives maintained visual surveillance.
Detective Loucks testified that he had since listened to the recording of
the second transaction and on it recognized his voice as well as Knowles’ and
the defendant’s. After the transaction, Detective Loucks recovered a bag of
pills from Knowles, which he kept until the end of his shift when he
field-tested the pills and turned them in to the property room with an analysis
request form. Knowles was paid $100, the standard rate being a dollar per pill.
Detective Loucks identified “a bag of various colored pills” as the ones
purchased by Knowles on March 21.
-3-
Detective Loucks testified that a third transaction took place on April
23, 2008, around 10:00 p.m. Knowles told Detective Loucks that he had
contacted the defendant and could purchase 200 pills for $1200. After going
through the same procedures as before, Detective Loucks was able to
personally observe this transaction through a pair of binoculars from a distance
of 200 to 250 yards as well as listen to the audio. Detective Loucks testified
that he had since listened to the recording of the third transaction and on it
recognized his voice as well as Knowles’ and the defendant’s. After the
transaction, Detective Loucks recovered “two bags of various colored pills”
from Knowles and paid Knowles $200 at the standard rate of one dollar per
pill. Detective Loucks transported the pills back to his office, where he
conducted a field test and then turned them in to the property room along with
an analysis request form.
Detective Loucks testified that in addition to the money paid for each
of the drug buys, Knowles was paid an additional amount of $680 after the
defendant was indicted and for items recovered pursuant to a search warrant.
He was paid $100 for each of the defendant’s five felony indictments, $100 for
a gun recovered at the location of the defendant’s arrest, and $80 for two
controlled substances that were recovered. These were the standard rates for
payment to informants.
Detective Loucks testified that he spoke with the district attorney about
Knowles’ habitual motor vehicle offender charge and “[i]t was dismissed upon
[his] request,” which was “[n]ot unusual.” He also contacted Knowles’
probation officer in July concerning a violation because he was trying to keep
Knowles out of jail “to further along the investigation.” He did not make any
other promises to Knowles or give him any other assistance than what he had
described. He said that “[n]othing is promised at all to the cooperating
individuals, except . . . that I’m responsible for their safety.” Detective Loucks
stated that after Knowles’ identity as the confidential informant was revealed
at a previous hearing, he made one additional payment to Knowles on
November 6 because “[h]e had stated . . . that he didn’t feel safe in the current
environment, so I paid him eight hundred dollars, again out of our intelligence
fund, for relocation expenses.”
Detective Loucks said that he did not arrest the defendant immediately
after any of the three sales because they “were trying to broaden the
investigation . . . [and] provide more bang for the buck for the taxpaying
citizens.” After the defendant was arrested, Detective Loucks asked him
-4-
“about him selling pills” and the defendant said that “he sold anywhere
between thirty to forty pills” in a week. The defendant did not respond when
Detective Loucks asked him where he was getting the pills.
On cross-examination, Detective Loucks acknowledged that he did not
record any of the conversations between Knowles and the defendant about
setting up the transactions. He stated that the confidential informant contract
states that “they are not to induce any individuals who are not predisposed to
committing a crime.” Detective Loucks acknowledged that the audiotape of
the first transaction reflected that Knowles made several phone calls and no
one answered. With regard to the second transaction, Detective Loucks agreed
that the Ecstasy pills were delivered by a third individual, and Special Agent
Mark Shafer observed the transaction, but he was not in a position to see it.
Detective Loucks said that Knowles returned from the exchange with ten
dollars more than he had been expecting.
Detective Loucks testified that the controlled substances that were
recovered when the defendant was arrested did not come from the defendant’s
home but were found on the awning of the porch across from the defendant’s
home. Someone other than the defendant was seen throwing the package of
substances onto the awning and running away. With regard to his conversation
with the defendant regarding how many pills he sold a week, Detective Loucks
acknowledged that he did not record the statement or have the defendant
submit anything in writing.
Detective Loucks testified that sometime after the first trial in this case,
he appeared at Knowles’ probation violation hearing, and Knowles was
released “a period of time later” and given money to relocate. Knowles was
apprised of the next court date, but Detective Loucks did not issue a subpoena
because “[he] d[id] not have the power to issue a subpoena outside of an
officer involved in an investigation.” On continued cross-examination and
redirect examination, Detective Loucks further testified about his knowledge
of Knowles’ whereabouts and his efforts to find him prior to trial. Detective
Loucks stated that the defendant was “the leader of a set of Gangster Disciple
gang members,” and Knowles was “in fear for his life . . . because he received
threats while he was incarcerated.”
Terrance Knowles FN1 testified that he was presently in custody on a
probation violation. He went to court on the violation in August 2008 but left
court after he was approached by defense counsel, who wanted to speak to him
-5-
about the defendant’s pending case. He was on a one-year probation term for
the felony offense of “habitual driving offender.” Knowles said that he went
to jail and was charged with the driving offense in February 2008, at which
time he had a discussion with Detective Loucks about “helping each other out,
something like that. He told me what he was trying to do, what he was looking
for. And I said I can do that.” Detective Loucks told him that he was working
on “[c]leaning up the Edgehill area,” and the defendant’s name came up during
the conversation. Knowles knew the defendant by the nickname “Fridge.”
Knowles agreed to work with Detective Loucks and did so three times related
to the defendant.
FN1. The testimony of Terrance Knowles from the first trial in
this matter was read into the record by another witness as
Knowles was not present and had been declared unavailable by
the trial court pursuant to Rule 804 of the Tennessee Rules of
Evidence.
Knowles testified that the first time, he called the defendant “the day
before” and told him that he wanted to buy twenty pills. The defendant gave
him the price of $140 and said to call him the next morning. Knowles knew
the defendant prior to this time, already had his phone number, and recognized
his voice when he called him. The next day, Knowles met with the detectives,
who “put a wire on [him],” and gave him instructions on making the
transaction. Knowles went to the defendant’s residence in Edgehill and
attempted to reach him by knocking on the door and calling him, but he
received no answer. While he was outside the residence, the defendant’s sister
arrived, and she discovered that the defendant was asleep.
Knowles testified that the defendant’s sister let him inside the house,
and he woke the defendant and told him that he needed the pills. The
defendant asked him how many pills he wanted and retrieved them from one
of the closets. There was no one else in the bedroom at the time. Knowles and
the defendant then went downstairs, and the defendant asked Knowles if he
had a bag. After Knowles responded that he did not, the defendant gave
Knowles a sandwich bag and put the pills in it. Knowles paid the defendant
$140 for the pills and asked him the price for 100 pills for the next time. The
defendant told him that it would be “[p]robably six fifty or something like
that.” Knowles left and met with the detectives, turning over the pills.
Knowles was paid “[a] hundred dollars, something like that.”
-6-
Knowles described the second time he met with the defendant while
working as a confidential informant. He called the defendant “and told him
[he] needed a hundred pills this time.” Knowles and the defendant agreed on
a time for him to come by the defendant’s house. Prior to going to the
defendant’s house, Knowles met with the detectives to have a wire put on him.
When he arrived at the defendant’s house, he had to wait twenty-five to thirty
minutes “for the pills to get there.” A white Expedition arrived, Knowles gave
the defendant his money, and the defendant walked to the passenger side of the
vehicle and returned with 100 pills. Knowles received some change back from
the deal. Knowles then left and met with the detectives, turning over the pills.
He was paid $100 to $150 for this transaction.
Knowles testified that the day of the third transaction, he called the
defendant and “told him I wanted to get two hundred this time.” The
defendant told him that he was “going to work on it” and that it would cost
$1200. Knowles called the defendant back, and the defendant told him “the
dude was on his way. And, . . . I told him that I would be out there in a little
bit.” Knowles called the detective to “let him know he was on his way.”
After meeting with the detectives, following the same procedure,
Knowles went to meet the defendant by a basketball court near the defendant’s
house in Edgehill. Knowles waited “about an hour” until a Jeep Cherokee
arrived, and the defendant said, “[T]hey’re right here.” Knowles counted the
money and handed it to the defendant, who went and got the pills from the
person in the vehicle. The defendant returned with two bags of different
colored pills, which he gave to Knowles. After he received the pills, Knowles
met with the detectives and turned over the pills.
Knowles testified that Detective Loucks helped him have a driving
charge dismissed in March 2008. In addition to the money he received for
each transaction, Knowles also received $700 after the defendant was arrested.
He did not receive any other money or benefit, nor was he promised anything
in exchange for his testimony. Knowles said that he did not want to testify,
and he was telling the truth about what happened on those three occasions.
On cross-examination, Knowles acknowledged that he discussed his
testimony with the district attorney and Detective Loucks before the trial. He
agreed that his felony habitual motor vehicle offender charge had been
dismissed. After he was released from jail before the first transaction,
Knowles called Detective Loucks and told him he wanted to help himself.
-7-
Prior to the actual transactions, Knowles was not wired with any recording
device when talking to the defendant. Knowles acknowledged that Detective
Loucks told him that the target of the investigation was the defendant and to
contact him when he had a deal arranged with the defendant.
Special Agent Mark Shafer with the Federal Bureau of Investigation,
“FBI,” testified that in the Spring of 2008, he was assigned to the Violent
Crimes and Gangs Task Force and was involved in an investigation of the
defendant. On March 21, 2008, Agent Shafer was working with Detective
Mark Anderson of the Metropolitan Nashville Police Department in a
surveillance van parked inside the Edgehill housing development. The
surveillance “was all part of Detective Loucks’ case.” After they had been
parked for some time, the confidential informant arrived, and Agent Shafer
observed the informant converse with the defendant. A few minutes later, a
white SUV arrived, and the defendant “walk [ed] over to the passenger side of
that SUV. He had money in his hand. He handed money to the occupants of
the SUV and, in turn, received a handful sized bag.” The defendant then gave
the bag to the confidential informant.
On cross-examination, Agent Shafer testified that he never met the
confidential informant. He did not participate in locating Knowles in
December 2008 or afterwards. He would have helped find Knowles if
Detective Loucks had asked for his assistance.
Isaac Martinez, with the Metropolitan Nashville Police Department
Property Room and Evidence Division, described the procedures for receiving
evidence and transporting it to the TBI lab for analysis if requested. Martinez
identified the bags of pills submitted by Detective Loucks and described how
he transported them to the TBI lab for analysis in April 2008. He said that all
of the bags were sealed when he left them with the TBI.
Martinez testified that one of the bags of pills was later taken to the TBI
lab a second time, on October 8, 2008, by Sandra Luther who did not work in
the property and evidence room. On redirect examination, Martinez noted that
another bag of drugs was taken back to the TBI in October 2008 by Luther.
He explained that it was not unusual for drugs to be resubmitted to the TBI for
analysis, nor was it unusual for a detective to take an item to the TBI.
Agent Jennifer Sullivan, a forensic scientist with the TBI, testified as
an expert in forensic chemistry that she analyzed the pills submitted as exhibits
-8-
three and five in this case. Her analysis of the twenty pills in exhibit three
revealed that each of the pills was a Schedule I drug, the majority were “34
methylenedioxymethamphetamine, or MDMA, commonly known as Ecstasy
and methamphetamine” and some were benzylpiperazine and
methamphetamine. Agent Sullivan’s analysis of the 100 pills in exhibit five
revealed that some were the Schedule I substance “34 MDMA and
methamphetamine,” and some were the Schedule II substance
methamphetamine.
Agent John Scott, Jr., a forensic scientist with the TBI, testified as an
expert in the field of forensic chemistry that he analyzed the pills submitted as
exhibit seven in this case. His analysis of the 200 pills that were submitted
revealed that fifty-four of the pills did not contain any controlled substance,
seventy-one of the pills contained the Schedule II controlled substance
methamphetamine, and seventy-five of the pills contained the Schedule I
controlled substance MDMA and methamphetamine.
Mary Beth Stephens, a GIS analyst for the Metro Planning Department,
testified that in October 2008, she went with Detective Loucks, the district
attorney, and defense counsel to the “corner of Edgehill and 12th” for the
purpose of mapping the locations of the drug transactions in the defendant’s
case. Stephens took with her a map of the area created from aerial
photographs and property line data stored in the Planning Department’s
database. From 12th and Edgehill, Detective Loucks directed Stephens to
three separate locations. She made notations on her map of the locations and
used her data to create a larger map that noted the locations of the incidents
and the locations of schools within the 1000 feet “buffer zones” around the
schools in the area.
Stephens identified incident number one as occurring at 1305 12th
Avenue South, which was within 1000 feet of two schools, Carter Lawrence
Elementary and the Murrell Special Education School. Incident number two
occurred at the edge of the pavement immediately across from the housing
development, and incident number three occurred at the edge of the sidewalk
that led to the playground for the school. Both incidents two and three
occurred within 1000 feet of the same two schools as incident one. On
cross-examination, Stephens acknowledged that the incident locations noted
on her map were based on locations described to her by Detective Loucks.
Defendant’s Proof
-9-
Walter Fisher testified that he was an in-school suspension instructor
at Hillsboro High School and had known the defendant for eight of the ten
years he had been teaching. Fisher recalled that during the four years the
defendant attended Hillsboro, the defendant never had any type of violation or
was sent to in-school suspension for any reason. Fisher described the
defendant’s character as “impeccable,” and he said that the defendant was a
“model citizen” and loving toward his family. Fisher recalled the defendant’s
athletic ability and success on the football team, and he described that the
defendant had “always been a leader on those teams[.]” He recalled that the
defendant’s former head football coach, Ron Aydelott, Councilman Ronnie
Greer, and the defendant’s minister had testified on the defendant’s behalf at
an earlier hearing.
Fisher testified that he had never known the defendant to use drugs or
heard any rumors of the defendant being involved with selling drugs. Fisher
knew that the defendant enrolled in college at Tennessee State University
instead of going elsewhere because his father had triple bypass surgery and the
defendant did not want to leave him. Fisher was aware of a fight the defendant
was involved in during high school. To his understanding, another student was
continuously provoking the defendant on the school bus. After they got off the
bus, the defendant tried to walk away but hit the other student after continued
provocation. The defendant only hit the other student once and then walked
away. Fisher said that aside from that one fight, the defendant “was a
peacemaker at school.”
On cross-examination, Fisher clarified that he had coached basketball
and had not been one of the defendant’s football coaches. Since the
defendant’s graduation from high school in 2004, Fisher had seen the
defendant once every two months but saw him every day during his attendance
at Hillsboro. From his observations of the defendant during his school years,
Fisher believed the defendant to be a good student, an intelligent person, and
a good problem solver. Fisher never saw a situation where the defendant was
intimidated during football games.
Fisher testified that he thought it was “[u]nbelieveable” when he heard
the defendant had been arrested for selling drugs. It would surprise him if he
heard the defendant on audiotape participating in a drug transaction. Fisher
had never known the defendant to carry a weapon, and it would surprise him
to learn that the defendant had a prior arrest for carrying a weapon. He
acknowledged that there were some things about the defendant that he did not
-10-
know about. Fisher thought that the defendant being described as a confirmed
leader of the Gangster Disciples was “unbelievable.” Nevertheless, Fisher said
that none of these revelations changed his opinion of the defendant. He agreed
that his impressions of the defendant were from his four years of high school,
which ended in 2004. On redirect examination, Fisher agreed that the
defendant was the type of person who would do anything for a friend.
Suzanne Frensley testified that she was a teacher at Hillsboro High
School and was selected as the 2007 Teacher of the Year for the State of
Tennessee. Frensley had known the defendant for seven years, beginning
when his mother was the caregiver for her godmother. She said that the
defendant was “very generous” with her godmother and spent time watching
basketball and hockey games with her. She maintained contact with the
defendant after she began teaching at Hillsboro. Frensley described the
defendant as “[l]arge and strong with a soft inside and a big heart.” She said
that he was very close to his parents and sister. She noted that he “took a great
interest in the people who live in his neighborhood” and was “supportive of
the community.” Frensley had come to court three times to testify on the
defendant’s behalf and would never hesitate to do so.
On cross-examination, Frensley clarified that the defendant was never
in one of her classes but described herself as his mentor and role model.
Frensley noted that she taught leadership at Hillsboro and was not sure that she
would have identified the defendant as a leader. She thought that “his
leadership is more on a relationship level, caring about people, his family and
friends.” She noted that people looked up to him, but “he never stood out and
said, I’m the leader, I’m the big man.”
Frensley stated that she was not aware of the defendant’s reputation for
carrying a weapon or heard information of him being a confirmed leader of the
Gangster Disciples in Edgehill. Frensley was aware of the allegations in this
case and that the transactions were recorded on audiotape, but her knowledge
of those incidents, although surprising to her, did not change her opinion of the
defendant. Frensley acknowledged that she did not know everything that was
going on in the defendant’s life.
The defendant testified that he had resided with his mother in the
Edgehill housing projects his entire life and attended Hillsboro High School
where he was captain of the championship football team. He identified several
newspaper articles chronicling his football career and described the interest he
-11-
received from many colleges due to his athletic ability. Once he graduated
from high school, the defendant enrolled at Tennessee State University and,
while in school, worked first for The Tennessean newspaper and then Coca-
Cola. He also applied for a job with the United States Post Office, and he had
been scheduled to interview in June 2008. The defendant admitted that, at one
point in college, his grades dropped and he was placed on academic probation.
However, he received a letter saying that he was welcome to come back to
school.
The defendant testified that he knew Detective Loucks prior to his
arrest “[f]rom around the neighborhood.” He said that Detective Loucks had
stopped him on more than one occasion and searched him for weapons or
drugs but had never found anything. On these occasions, the detective never
said that the defendant had done anything wrong, “but they always come
around the neighborhood and say they received calls[.]”
The defendant said that he knew Knowles from “growing up in the
neighborhood,” even though Knowles was seven or eight years older. He and
Knowles “had a personal relationship,” and Knowles had “been around the
family for quite a while.” The defendant acknowledged that Knowles
purchased drugs from him. He explained that before the first transaction,
Knowles approached him near the basketball court and asked if he “kn[e]w
anybody with some pills” because he had someone wanting to buy some from
him. The defendant told Knowles that he did not and that he did not “want to
get involved with it.” However, Knowles kept telling the defendant that he
needed to get the money to feed his family and “called [him] several times
. . . on a day to day basis, . . . [s]o, eventually, [he] gave in and helped him[.]”
The defendant testified that the day before the first transaction,
Knowles called and asked if he could purchase thirty extra pills. The
defendant told Knowles that he could get them, and Knowles was supposed to
come by that night. “[T]he guy” brought the pills to the defendant, but
Knowles did not show up that night. The next day, the defendant was in bed
asleep when his sister and Knowles came and woke him up. Knowles asked
for only twenty Ecstasy pills, and the defendant gave them to him. Knowles
then asked the price for 100 pills, and the defendant “gave him a price on it,”
which was $650. The defendant explained that he knew the price “[b]ecause
in the kind of environment [he] grew up in, you’ll know the prices for things.”
-12-
The defendant admitted that there was a second transaction in which he
sold 100 Ecstasy pills to Knowles for $650. However, the defendant did not
have the pills in his possession–“[someone] brought them to [him] and [he]
gave them to Terrance Knowles.” The defendant admitted that after either the
second or third transaction, he told Knowles to count the pills. The defendant
said that the man who brought the drugs to him was someone he did not know
well but “kn[e]w him well enough.” The defendant noted that Knowles had
called him various times between the first and second transactions and those
calls were not on the audiotapes.
The defendant testified that Knowles also called him after the second
transaction. The defendant explained that “[i]n between these deals, I kind of,
like, was, still, I didn’t want to do it[,]” but Knowles kept talking about his
family and how he had helped raise him. He tried to put Knowles off by
saying that he would see what he could do, but then Knowles would
“eventually pop up on the scene . . . [a]nd that’s when [he would] just go ahead
and call the individual.” The defendant said that he never told Knowles on the
phone to come over. After the third transaction, the defendant refused to help
Knowles “[b]ecause [he] came to a conclusion that [he] didn’t want to
participate in it anymore.”
The defendant acknowledged that he had twice been arrested for
weapons possession. After his first arrest, the defendant obtained his handgun
carry permit, which required that he be fingerprinted and not have any felonies
on his record. With regard to the school bus assault incident when he was
fifteen or sixteen, the defendant explained that the other boy kept picking on
him, and they “passed words.” As he was getting off the bus, the other boy
came at him, so he hit him. The defendant said that he and that boy were now
close friends. The defendant denied being the leader of the Gangster Disciples
but acknowledged that he had been around gang members.
The defendant testified that prior to the first incident with Knowles, he
had never sold drugs to anyone. The defendant explained that when he was
arrested in this case, the police searched him and his house and did not find
any drugs. However, on a nearby roof, the police found drugs that they
believed to be his, which resulted in his being charged.
On cross-examination, the defendant acknowledged that when he was
arrested, he never told the police he was just doing a favor for a friend. Prior
to receiving his handgun permit, the defendant was convicted of unlawful
-13-
possession of a weapon and placed on probation. His permit was revoked
before his second arrest for unlawful possession, but he said he did not know
it had been revoked or he would not have carried a weapon. As to the fight he
was involved in as a juvenile, he said that he was charged for an aggravated
assault but believed it was amended to simple assault because he did not have
a felony on his record.
The defendant acknowledged that during the first transaction, Knowles
asked the price for 100 pills and the defendant told him immediately $650. He
further acknowledged that the recordings did not reflect his ever telling
Knowles that he did not want to sell the drugs. The defendant admitted that
the recording from the second transaction reflected him describing the
different names for the various colored Ecstasy pills and specifically that
Knowles needed to be careful with the “brown bulls” because “[p]eople could
pass out on them[.]” The defendant explained that he “was telling [Knowles]
what the guy told [him].” The defendant acknowledged that the recording of
the third transaction reflects him telling Knowles to count the pills even though
the man who delivered them was “usually good.”
After the conclusion of the proof, the jury found the defendant not
guilty of count 1, the March 4 sale, and guilty of the remaining four counts.
Id. at *1-10.
Post-Conviction Hearing. At the May 18, 2012 post-conviction hearing, the
Petitioner called trial counsel to testify but did not testify in his own behalf.
Trial counsel testified that she represented the Petitioner and obtained a hung jury in
the Petitioner’s first trial. She said that at the time she was appointed to represent the
Petitioner, she had been practicing law for over two years. She stated that the Petitioner’s
case involved a confidential informant and that for the two drug transactions of which the
Petitioner was convicted, a third party brought the drugs to the scene, and the Petitioner acted
as “the go between.” In each of these two transactions, the Petitioner took money from the
confidential informant and brought the money to a third party before returning and giving the
drugs to the confidential informant. She stated that there was no evidence that the Petitioner
received any proceeds from the drug sales.
Trial counsel acknowledged that she did not request an instruction on facilitation. She
said she did not know why she did not request the facilitation instruction and admitted that
she “should have.” She added that she was not very familiar with the offense of facilitation
-14-
at the time. She also stated that she was “new in the law” at the time of her representation
of the Petitioner. Trial counsel said that her failure to request the facilitation instruction was
not a strategic decision to argue for acquittal under the entrapment defense or to argue for
the lesser included offenses of simple possession or casual exchange. She stated that another
attorney assisted her in representing the Petitioner and that she did not discuss the possibility
of requesting a facilitation instruction with this other attorney or the Petitioner.
On cross-examination, trial counsel stated that some time between obtaining her law
license in 2006 and representing the Petitioner in 2009, she began practicing criminal law
exclusively. She said that she had represented other defendants in jury trials prior to
representing the Petitioner but was unable to state exactly how many defendants she had
represented in jury trials. Trial counsel acknowledged that she had been in the courtroom
when the State asked the court whether it was going to charge the jury with a facilitation
instruction but stated that she was unable to “specifically recall” the State mentioning the
facilitation instruction. She said that her defense theory in the Petitioner’s case was
entrapment. Pursuant to the entrapment theory, the Petitioner admitted that he took part in
the sales but claimed that he was enticed to do so. Trial counsel did not recall arguing for
simple possession or casual exchange in her closing argument.
At the conclusion of the post-conviction hearing, the court took the matter under
advisement. On June 15, 2012, the court entered its order denying post-conviction relief.
In it, the court made the following determinations:
Facilitation is a lesser included offense of the charged offenses under
the Burns test, part (c)(1). See State v. Burns, 6 S.W.3d 453, 466-67 (Tenn.
1999). The Court must also determine whether the evidence supports an
instruction on facilitation. Facilitation of a felony occurs when a defendant
knows that “another intends to commit a specific felony” and “knowingly
furnishes substantial assistance” in committing that felony. Tenn. Code Ann.
§ 39-11-403(a). The Sentencing Commission Comments to section -403 state
that application of the facilitation statute is appropriate where an offender
participates substantially in a felony but lacks the intent to promote, assist or
benefit from the offense. State v. Fleming, 19 S.W.3d 195 (Tenn. 2000). In
this case, the evidence showed that the informant would call the defendant,
speak with the defendant about the drugs he wanted to purchase. Although the
defendant would have someone bring the drugs to the location, there were no
other named defendants in this case. It is improbable that in any case a
defendant conducting a drug sale will not need to first obtain pills (or other
illegal drugs) from someone else. The issue is the intent of the defendant. To
convict of facilitation in this case, proof would be required that the petitioner
-15-
knew “that another person intended to commit” the crime of [sale and delivery]
of a controlled substance and that the petitioner furnished “substantial
assistance” to that person, although the petitioner did not have “the intent to
promote or assist in the commission of the crime or to benefit in the proceeds
or results of the offense.” See T.C.A. § 39-11-403. Although the petitioner
may not have had the drugs on him for the deal, it does not follow that he did
not have the requisite intent.
The defendant testified that he had people bring him the drugs. He did
not testify that he was conducting the sales for those people that delivered the
drugs. He attempted to argue that he was just selling these pills to this
informant as a favor and alleged entrapment. The proof in this case fails to
establish the identity or existence of “another person” who participated in the
commission of the crime. It was the petitioner who entered into the drug
transaction and who provided the drugs to the informant. See State v. [Devon]
Wiggins, [No. W2007-01734-CCA-R3-CD, 2009 WL 1362323] (Tenn. Crim.
App. May 15, 2009). Obviously the defendant did more than assist [in] these
sales. Therefore, the Court finds the petitioner has failed to prove this
allegation by clear and convincing evidence.
Notwithstanding the Court’s finding that it was not error to fail to
request an instruction on facilitation given the defense proffered by the
petitioner, the Court further finds that there was no showing of prejudice. The
jury apparently gave weight to the petitioner’s defense that he was entrapped
by finding him not guilty in count one for the transaction in which the drugs
were actually located with the petitioner at the time of the sale but guilty in the
later transactions. Therefore, the Court finds the petitioner has not shown
prejudice by the failure to instruct on facilitation.
Following entry of this order, the Petitioner filed a timely notice of appeal.
ANALYSIS
The Petitioner contends that trial counsel provided ineffective assistance of counsel
by failing to request a jury instruction on the lesser included offense of facilitation. He
argues that trial counsel’s failure to ask for this instruction constituted ineffective assistance
of counsel because it deprived him of his constitutional right to present a defense and of his
right to a complete charge of the law. The Petitioner’s arguments are more specifically
outlined below.
-16-
First, the Petitioner contends that trial counsel was deficient for not arguing both
entrapment and facilitation at trial. He asserts that he is entitled to have “every issue of fact
raised by the evidence and material to his defense submitted to the jury upon proper
instructions by the judge[.]” State v. Brown, 836 S.W.2d 530, 553 (Tenn. 1992) (citing State
v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). The Petitioner argues that his testimony
at trial that Knowles pressured him into the second and third drug sales supports the offense
of facilitation more than an entrapment defense. He also argues that even though the defense
of entrapment failed, trial counsel should have requested a facilitation instruction because
“his reluctance to continue to secure pills for Knowles . . . support[s]” the offense of
facilitation because the supplier of the drugs “intended to commit the offense and he
provided substantial assistance to [the supplier of the drugs] and Knowles.” See T.C.A. §
39-11-403. In support of his argument that counsel was deficient in failing to request the
facilitation instruction, the Petitioner asserts that there was no evidence presented at trial that
he received or requested money in exchange for his assistance in the drug transactions.
Second, the Petitioner argues that despite this court’s conclusion on direct appeal that
it was not clear that the Petitioner did not waive the issue of facilitation for tactical reasons,
the evidence presented at the post-conviction hearing established that trial counsel’s failure
to request a facilitation instruction was not a strategic decision. He claims that trial counsel’s
testimony showed that her failure to request this instruction was based on her own
inexperience in the practice of law. Moreover, he argues that trial counsel’s testimony
established that her failure to request this instruction was not because she was arguing for an
acquittal based on the entrapment defense or for the lesser included offense of simple
possession.
Third, the Petitioner argues that the post-conviction erred in its factual finding that the
evidence “fail[ed] to establish the identity or existence of ‘another person’ who participated
in the commission of the crime” and erred in its legal conclusion that he was not prejudiced
by trial counsel’s failure to request the facilitation instruction. He claims that the evidence
at trial “clearly established the existence of another person” involved in the relevant drug
transactions because he, Detective Loucks, and Knowles all testified that he and Knowles
had to wait on the person with the pills to arrive, that he never had any pills to sell Knowles,
and that after being pressured by Knowles, he had to call another individual for the pills. He
also argues that Detective Loucks testified about someone else throwing pills on top of an
awning and fleeing the scene. In support of this third party argument, the Petitioner claims
that no pills were found on his person or in his home. Regarding the trial court’s finding that
he was not prejudiced by counsel’s failure to request the facilitation instruction, he alleges,
without citation to authority, that the court erroneously concluded that where there is proof
of the greater offense, a defendant is not prejudiced by the failure to charge a lesser offense,
even if that lesser offense is supported by the evidence.
-17-
Fourth, the Petitioner contends that the proof at trial supported a jury instruction for
facilitation. Citing State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999), he argues that “the trial
court must determine whether any evidence exists that reasonable minds could accept as to
the lesser[]included offense” and that “[i]n making this determination, the trial court must
view the evidence liberally in the light most favorable to the existence of the lesser[]included
offense without making any judgments on the credibility of such evidence.” Then, he argues,
“the trial court must determine if the evidence, viewed in this light, is legally sufficient to
support a conviction for the lesser[]included offense.” Id. The Petitioner asserts that because
the evidence at trial established that a third person provided the drugs in the relevant
transactions and that the Petitioner did not benefit from these drug deals, he lacked the
requisite intent for the charged offenses and an instruction for facilitation should have been
given pursuant to Burns. He also asserts that because the proof supported a facilitation
instruction, trial counsel rendered ineffective assistance by failing to request this instruction.
Fifth, the Petitioner argues that State v. Nash, 104 S.W.3d 495 (Tenn. 2003), and State
v. Jimmy Jackson, No. M2011-01077-CCA-R3-CD, 2012 WL 5873506 (Tenn. Crim. App.
Nov. 21, 2012), support the conclusion that a facilitation instruction would have been
required in this case if it had been requested by trial counsel. He argues that pursuant to “the
reasoning employed by our Supreme Court in the Nash decision, there was sufficient
evidence for a jury to conclude that [the Petitioner] knowingly offered substantial assistance
to the unnamed person or persons who delivered the drugs, thus facilitating the sale of the
pills.” See Nash, 104 S.W.3d at 500 (concluding that the evidence was sufficient to support
an instruction and conviction for facilitation of possession of marijuana with the intent to
deliver when the evidence showed that at least one of the individuals in the car had recently
smoked marijuana based on the odor detected by the officers at the time of the stop, that
Nash and Jefferson entered the apartment together for the purpose of obtaining the marijuana,
that Nash saw Jefferson’s attempt to hide the marijuana from the officers by moving it from
the front center console and putting it under the front passenger seat, that Nash, rather than
Jefferson, was in physical control of the marijuana because he was the closest to the
marijuana at the time of the stop, that Nash was willing to substantially assist Jefferson in the
offense of possessing the marijuana with the intent to deliver, even to the extent of claiming
that he was responsible for the offense). In addition, the Petitioner argues that because he
was serving drugs for someone else, just as the defendant did in Jimmy Jackson, the evidence
supported an instruction on facilitation. See Jimmy Jackson, 2012 WL 5873506, at *6
(concluding that the proof supported an instruction on facilitation as a lesser included offense
of the charged offenses when the evidence showed that the confidential informant offered
to pay the defendant $50 for assisting him in a drug transaction, that the defendant did not
have a cellular telephone or any cash other than the buy money on his person at the time of
his arrest, and that the defendant, at the time of his arrest, claimed that he was serving the
drugs for another individual). He argues that Nash and Jimmy Jackson emphasize a
-18-
defendant’s “constitutional right to have the jury consider all possible outcomes raised by and
supported by the evidence.”
The State responds that the Petitioner has failed to establish that trial counsel was
deficient in failing to request the facilitation instruction or that this alleged deficiency
prejudiced the outcome of the Petitioner’s trial. We agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2012). The Tennessee Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal
unless the evidence preponderates otherwise. When reviewing factual issues,
the appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of their
testimony are matters for the trial court to resolve. The appellate court’s
review of a legal issue, or of a mixed question of law or fact such as a claim
of ineffective assistance of counsel, is de novo with no presumption of
correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Vaughn also repeated well-settled principles applicable to claims of ineffective
assistance of counsel:
The right of a person accused of a crime to representation by counsel
is guaranteed by both the Sixth Amendment to the United States Constitution
and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the
range of competence demanded of attorneys in criminal cases.
202 S.W.3d at 116 (internal quotations and citations omitted).
-19-
In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).
We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing
Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of detailed rules for counsel’s
conduct can satisfactorily take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688-89. However, we note that this “‘deference to
matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting
Goad, 938 S.W.2d at 369).
Here, the Petitioner was convicted of knowingly selling a Schedule I controlled
substance within a school zone. See T.C.A. §§ 39-17-417(a), -432. On appeal, the Petitioner
contends that trial counsel provided ineffective assistance in failing to request a jury
instruction on the lesser included offense of facilitation. Facilitation of a felony is defined
as follows:
A person is criminally responsible for the facilitation of a felony, if,
knowing that another intends to commit a specific felony, but without the
intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.
-20-
Id. § 39-11-403(a). Tennessee Code Annotated section 39-11-402(2), which outlines the
theory of criminal responsibility relevant in this case, states that a person is criminally
responsible for a crime committed by the conduct of another, if “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense[.]”
“The facilitation of the commission of a felony is an offense of the class next below
the felony facilitated by the person so charged.” Id. § 39-11-403(b). The comments to the
facilitation statute provide helpful guidance in understanding the offense of facilitation:
[S]ection [39-11-403] recognizes a lesser degree of criminal
responsibility than that of a party under § 39-11-401. The section states a
theory of vicarious responsibility because it applies to a person who facilitates
criminal conduct of another by knowingly furnishing substantial assistance to
the perpetrator of a felony, but who lacks the intent to promote or assist in, or
benefit from, the felony’s commission.
A defendant charged as a party may be found guilty of facilitation as a
lesser included offense if the defendant’s degree of complicity is insufficient
to warrant conviction as a party. The lesser punishment is appropriate because
the offender, though facilitating the offense, lacked the intent to promote,
assist or benefit from the offense.
Id. § 39-11-403, Sentencing Comm’n Comments.
The law is well-settled that facilitation is a lesser included offense to the charged
offenses. Burns, 6 S.W.3d at 466-67. The right to trial by jury is guaranteed by the United
States and Tennessee Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6.
Therefore, “a defendant has a right to a correct and complete charge of the law, so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236,
249 (Tenn.1990)). Accordingly, trial courts have a duty “to give a complete charge of the
law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)
(citing Thompson, 519 S.W.2d at 792). Tennessee Code Annotated section 40-18-110 (Supp.
2008), which was in effect at the time of the Petitioner’s trial in February 2009, requires all
defendants to make a written request regarding the specific lesser included offenses on which
a jury instruction is sought:
-21-
(a) When requested by a party in writing prior to the trial judge’s instructions
to the jury in a criminal case, the trial judge shall instruct the jury as to the law
of each offense specifically identified in the request that is a lesser included
offense of the offense charged in the indictment or presentment. However, the
trial judge shall not instruct the jury as to any lesser included offense unless the
judge determines that the record contains any evidence which reasonable
minds could accept as to the lesser included offense. In making this
determination, the trial judge shall view the evidence liberally in the light most
favorable to the existence of the lesser included offense without making any
judgment on the credibility of evidence. The trial judge shall also determine
whether the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser included offense.
(b) In the absence of a written request from a party specifically identifying the
particular lesser included offense or offenses on which a jury instruction is
sought, the trial judge may charge the jury on any lesser included offense or
offenses, but no party shall be entitled to any lesser included offense charge.
(c) Notwithstanding any other provision of law to the contrary, when the
defendant fails to request the instruction of a lesser included offense as
required by this section, the lesser included offense instruction is waived.
Absent a written request, the failure of a trial judge to instruct the jury on any
lesser included offense may not be presented as a ground for relief either in a
motion for a new trial or on appeal.
(d) Prior to instructing the jury on the law, the trial judge shall give the parties
an opportunity to object to the proposed lesser included offense instructions.
If the defendant fails to object to a lesser included offense instruction, the
inclusion of that lesser included offense instruction may not be presented as a
ground for relief either in a motion for a new trial or on appeal. Where the
defendant objects to an instruction on a lesser included offense and the judge
does not instruct the jury on that offense, the objection shall constitute a
waiver of any objection in the motion for a new trial or on appeal concerning
the failure to instruct on that lesser included offense. The defendant’s
objection shall not prevent the district attorney general from requesting lesser
included offense instructions or prevent the judge from instructing on lesser
included offenses.
(e) When the defendant requests an instruction on a lesser included offense,
the judge may condition the instruction on the defendant’s consent to an
-22-
amendment to the indictment or presentment, with the consent of the district
attorney general, so that if there is a conviction for the requested lesser offense
the request shall constitute a waiver of any objection in the motion for new
trial and on appeal. The defendant may be required to execute a written
document actually consenting to the amendment so that there may be a lawful
conviction for the lesser offense. If the district attorney general does not
consent to the amendment, the defendant may raise the issue of failure to give
the requested charge on appeal. The provisions of this subsection (e) shall not
be construed as requiring an instruction on a lesser offense.
T.C.A. § 40-18-110 (Supp. 2008); see Burns, 6 S.W.3d at 469. We note that in determining
which instructions shall be given, “[t]he trial court must provide an instruction on a
lesser[]included offense supported by the evidence even if such instruction is not consistent
with the theory of the State or of the defense” because “[t]he evidence, not the theories of the
parties, controls whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 187-88
(Tenn. 2002).
We have taken judicial notice of the record from the Petitioner’s direct appeal. See
Calvin Eugene Bryant, Jr., 2010 WL 4324287. At the close of the proof in the Petitioner’s
case, the court had a discussion with defense counsel and the State regarding the instructions
to the jury. The court stated that it was going to instruct the jury on the charged offenses as
well as the sale and delivery of a Schedule I controlled substance not within a school zone.
Defense counsel asked the court if it had included the defense of entrapment in the
instructions, and the trial court replied that it had. The court also stated that it was going to
instruct the jury as to simple possession or casual exchange. Although trial counsel initially
requested a jury instruction on attempt, she abandoned this request after the court informed
her that it was going to instruct on simple possession or casual exchange and questioned
whether the evidence supported an instruction on attempt. Then the following exchange
occurred in the presence of defense counsel:
[The State]: Is facilitation in there or no? Just so that we know what [will be
charged]. Our position is that it shouldn’t be in there, but–
The Court: No, I didn’t have it in there.
Following this exchange, trial counsel stated nothing, and the State moved on to another
issue.
On direct appeal, the Petitioner argued that the trial court erred in failing to instruct
the jury regarding the lesser included offense of facilitation. However, because the Petitioner
-23-
had waived this issue by failing to request the facilitation instruction during trial and by
failing to include this issue in the motion for new trial, the Petitioner asserted that the court’s
failure to give the instruction was plain error. Calvin Eugene Bryant, Jr., 2010 WL 4324287,
at *19. This court, after discussing the law relevant to plain error analysis, concluded that
the trial court did not commit plain error by failing to instruct on facilitation:
We decline to notice plain error because it is not clear that the
defendant did not waive the issue for tactical reasons. See State v. Page, 184
S.W.3d 223, 231 (Tenn. 2006) (finding no plain error in court’s failure to
instruct on facilitation because “[t]he defendant . . . failed to show that he did
not waive th[e] issue for tactical reasons”). Here, the record shows that
defense counsel was obviously present during the exchange between the State
and the court regarding whether facilitation was going to be charged and
presumably attentive to the colloquy. In her closing argument, defense counsel
used the “facts” that allegedly support an instruction on facilitation–that a third
party brought the pills and the defendant did not profit from the transaction–
to argue that the defendant was only guilty of simple possession or casual
exchange, offenses carrying a much lesser penalty than facilitation of a Class
A felony would carry. Given our supreme court’s directive that our discretion
to notice plain error is to be “sparingly exercised,” Bledsoe, 226 S.W.3d at
354, the defendant is not entitled to relief.
Calvin Eugene Bryant, Jr., 2010 WL 4324287, at *20.
While this court previously analyzed this issue based on a plain error analysis, we are
charged with determining whether trial counsel’s failure to make a written request of the
facilitation instruction or to object to the trial court’s decision to omit the instruction
constituted ineffective assistance of counsel. See Aldrick D. Lillard v. State, No. M2011-
01380-CCA-R3-PC, 2012 WL 4479275, at *13 (Tenn. Crim. App. Sept. 27, 2012).
Following the evidentiary hearing, the post-conviction court denied post-conviction relief.
As we will explain, we conclude that the record supports the post-conviction court’s denial
of relief in this case.
The record shows that the trial court instructed the jury on the following lesser
included offenses for the three counts of sale of a Schedule I controlled substance within a
school zone: (1) sale of a Schedule I controlled substance, and (2) simple possession or
casual exchange of a controlled substance. In addition, the trial court instructed the jury on
the following lesser included offenses for the two counts of delivery of a Schedule I
controlled substance within a school zone: (1) delivery of a Schedule I controlled substance,
and (2) simple possession or casual exchange of a controlled substance.
-24-
In determining whether trial counsel provided ineffective assistance of counsel, we
are guided by this court’s opinion on direct appeal, which noted that defense counsel used
the “‘facts’ that allegedly support[ed] an instruction on facilitation–that a third party brought
the pills and the defendant did not profit from the transaction–to argue that the defendant was
only guilty of simple possession or casual exchange, offenses carrying a much lesser penalty
than facilitation of a Class A felony would carry.” At first glance, one might argue that trial
counsel’s failure to request an instruction on facilitation, given the involvement of a third
party who supplied the drugs, was deficient because it fell below the range of competence
demanded of attorneys in criminal cases. However, a more thorough review of the trial
transcript shows that trial counsel’s failure to request this instruction was a strategic decision
to have the Petitioner acquitted of the charged offenses based on the defense of entrapment
or found guilty of the significantly lesser included offenses of simple possession or casual
exchange, Class A misdemeanors, rather being found guilty of the offenses of facilitation of
the sale and delivery of a Schedule I controlled substance within a school zone, Class B
felonies. A review of the trial transcript shows that trial counsel devoted an enormous
amount of her case-in-chief to convincing the jury that the Petitioner was a respected member
of the community who never would have assisted Knowles in obtaining drugs unless
Knowles had induced him into doing so based on Knowles’s false claim that he needed the
drugs to support his family. Given the defense’s proof and theory at trial, it was clear that
trial counsel’s goal was to have the Petitioner acquitted of the charged offenses, or, at worst,
convicted only of the misdemeanor offenses of simple possession or casual exchange;
therefore, we conclude that trial counsel’s failing to request the facilitation instruction was
not deficient performance.
We also conclude, after fully evaluating the record on direct appeal, that a facilitation
instruction was wholly inconsistent with the trial counsel’s theory of entrapment. It would
have been extremely difficult, if not impossible, for trial counsel to fully commit to the theory
that Knowles induced the Petitioner into assisting him in obtaining drugs for the purpose of
supporting his family and then also argue that if the jury refused to accredit the defense’s
proof regarding the Petitioner’s impeccable character and his unwillingness to assist
Knowles, then they should convict him of the serious offense of facilitation of the sale of a
Schedule I controlled substance within a school zone, a Class B felony. Because trial
counsel’s goal was to have the Petitioner emerge from the trial relatively unscathed, it would
have undermined this goal for trial counsel to also argue that the Petitioner was guilty of the
offense of facilitation to the jury. Trial counsel’s unwillingness to undermine her defense
theory is further supported by her abandonment of her request that the trial court instruct the
jury on the lesser included offense of attempt. Despite trial counsel’s admission at the post-
conviction hearing that she did not make a strategic decision not to request the instruction
on facilitation, we conclude that, in light of her defense theory and the evidence presented
-25-
in her case-in-chief, trial counsel’s decision not to pursue a facilitation instruction was a
strategic one, and therefore, not deficient performance.
Finally, the record supports the post-conviction’s determination that the Petitioner
failed to establish that trial counsel’s performance was deficient because the evidence does
not support a facilitation instruction. In its written order, the court noted that although
facilitation is a lesser included offense of the charged offenses, it was required to instruct on
a lesser included offense only if the evidence supported that offense. See Allen, 69 S.W.3d
at 188. It emphasized that whether the proof supported a facilitation instruction depended
on the Petitioner’s intent at the time of the offenses. The court said that the Petitioner did not
have the requisite intent for facilitation in light of the evidence presented at trial, which
showed that the Petitioner “did more than assist [in] these [drug] sales” because he “entered
into the drug transaction and . . . provided the drugs to the informant[.]” The court found that
although the Petitioner testified that he obtained the drugs from a third party to sell to the
confidential informant, he did not testify that he substantially assisted the third party in the
offense but lacked the intent to promote, assist, or benefit from the offense. We also agree
that the fact the Petitioner obtained drugs from a third party does not require a facilitation
instruction unless there is evidence that the Petitioner, though facilitating the offense, lacked
the intent to promote, assist, or benefit from the offense. The court ultimately held that the
trial counsel was not deficient in failing to request an instruction on facilitation in light of the
evidence at trial and the defense of entrapment. As we will explain, the evidence at trial
established that the Petitioner had the intent, at a minimum, to promote or assist in the
commission of the sale of a Schedule I controlled substance within a school zone. For this
reason, we also conclude that trial counsel’s decision not to pursue a facilitation instruction
was not deficient.
In the event of further review by the Tennessee Supreme Court, we must also
determine whether the Petitioner was prejudiced by trial counsel’s failure to request the
instruction on facilitation. This question hinges on whether the failure to instruct the jury
regarding facilitation as a lesser included offense is harmless beyond a reasonable doubt. See
Robert Gentry Galbreath v. State, No. M2003-02807-CCA-R3-PC, 2005 WL 119534, at *16
(Tenn. Crim. App. Jan. 19, 2005). If the error is harmless, then trial counsel’s failure to
request the facilitation instruction did not prejudice the Petitioner. Id. We note that “‘when
determining whether an erroneous failure to instruct on a lesser-included offense requires
reversal, . . . the proper inquiry for an appellate court is whether the error is harmless beyond
a reasonable doubt.’” State v. Davis, 266 S.W.3d 896, 903 (Tenn. 2008) (quoting Ely, 48
S.W.3d 710, 727 (Tenn. 2001)).
This court has recognized two approaches for deciding whether a trial court’s failure
to charge a lesser included offense is harmless error, and these two approaches guide us in
-26-
determining whether the Petitioner was prejudiced by trial counsel’s failure to request a
lesser included offense. The first approach, which is inapplicable to this case, states that a
Petitioner would be unable to prove that he was prejudiced by trial counsel’s failure to
request a lesser included offense if the jury considered and rejected an “intermediate” or
“buffer” offense between the offense the Petitioner argues should have been charged and the
charge of which he was convicted:
The first approach is implicated where the trial court instructs the jury as to the
charged offense as well as other lesser-included offenses thereof but does not
instruct the jury regarding all of the lesser-included offenses supported by the
evidence. When the jury convicts the defendant of the greater charged offense
rather than the lesser-included offense or offenses, the jury necessarily rejects
all of the other lesser offenses. State v. Locke, 90 S.W.3d at 672; State v.
Allen, 69 S.W.3d at 191; State v. Williams, 977 S.W.2d 101, 106 (Tenn.
1998). Where one of the charged but rejected lesser-included offenses is an
intermediate or buffer offense standing between the errantly omitted
lesser-included offense and the offense for which the defendant was convicted,
the charging error is shown to be harmless beyond a reasonable doubt. State
v. Locke, 90 S.W.3d at 675; State v. Allen, 69 S.W.3d at 190.
State v. Banks, 271 S.W.3d 90, 126 (Tenn. 2008); accord Allen, 69 S.W.3d at 189; State v.
Williams, 977 S.W.2d 101, 106 (Tenn. 1998); Larry Payne v. State, No. W2011-01080-CCA-
R3-PC, 2013 WL 501781, at *5 (Tenn. Crim. App. Feb. 8, 2013); Ydale Banks v. State, No.
W2010-01610-CCA-R3-PC, 2012 WL 1067201, at *13 (Tenn. Crim. App. Mar. 27, 2012),
perm. app. denied (Tenn. Sept. 18, 2012). Because we do not consider the sale or delivery
of a Schedule I controlled substance outside a school zone as an intermediate or “buffer”
offense, this approach is not applicable in this case.
The second approach, which is applicable to this case, “requires the reviewing court
to consider the evidence and then to decide ‘whether a reasonable jury would have convicted
the defendant of the lesser[]included offense instead of the charged offense.’” Banks, 271
S.W.3d at 126 (quoting State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002)). Under this
view, the failure of a court to charge the lesser included offense is harmless beyond a
reasonable doubt if “[i]f no reasonable jury would have convicted the defendant of the
uncharged lesser[]included offense rather than the offense for which the defendant was
convicted.” Id. (citing State v. Locke, 90 S.W.3d 663, 675 (Tenn. 2002)).
This court has recognized a strict interpretation of this second approach, which
concludes that “the failure to charge a lesser-included offense can never constitute reversible
error in a criminal case if the defendant has been found guilty of the greater offense.” Larry
-27-
Payne, 2013 WL 501781, at *4. Pursuant to this view, a defendant’s conviction on a greater
offense is incontrovertible proof that the trial court’s failure to charge the lesser included
offense was harmless error:
According to the strict view, juries are presumed to follow the instructions of
the trial court. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). In
accordance with the supreme court’s holding in State v. Davis, 266 S.W.3d
896, 910 (Tenn. 2008), trial courts are mandated to “instruct the jury to
consider the offenses in order from greatest to least within each count” and
further instruct them that they “shall not proceed to consider any
lesser-included offense until [the jury] has made first a unanimous
determination that the defendant is not guilty of the immediately-preceding
greater offense.” Id. at 910. Under this view, even if the jury had been
charged with the lesser-included offense, it was prohibited from considering
such until after it acquitted the defendant of the greater charge. A defendant’s
conviction of the greater charge is thus irrefutable proof that a trial court’s
failure to instruct on a lesser-included offense was harmless error. By the
same reasoning, in post[-]conviction, a petitioner can never show that his trial
counsel’s failure to request a lesser included offense was prejudicial; the jury’s
conviction of the greater charge prohibited any consideration of a lesser
charge, and consequently as a matter of law there was no possibility
whatsoever–much less a reasonable probability–that but for counsel’s failure
to request the lesser-included offense the result of the proceeding would have
been different.
Id.; accord State v. Nathaniel Shelbourne, No. W2011-02372-CCA-R3-CD, 2012 WL
6726520, at *12 (Tenn. Crim. App. Dec. 26, 2012) (Woodall, J., concurring) (concluding that
even if the lesser included offense had been charged, “the jury was prohibited from
considering it because the jury convicted Defendant of the charged offense . . . , never
acquitted Defendant of that charged offense, and thus could never consider the lesser
included offense . . . even if it had been charged”).
In applying this second approach, we must consider the evidence and then determine
whether a reasonable jury would have convicted the Petitioner of the lesser included offense
of facilitation. The evidence presented at trial showed that the Petitioner agreed to sell one
hundred Ecstasy and methamphetamine pills to Knowles on March 21, 2008, and agreed to
sell two hundred Ecstasy and methamphetamine pills to Knowles on April 23, 2008. In each
of these drug transactions, the Petitioner immediately informed Knowles as to the purchase
price of these drugs, directly contacted the supplier of the pills, and gained possession of the
requested pills within a short time frame. The audiotape of the March 21, 2008 drug
-28-
transaction shows that the Petitioner willingly orchestrated the drug sales for Knowles, made
several phone calls to the supplier to confirm the arrival time, described the types of pills that
would be involved in the transaction, warned Knowles of the side effects of one type of pill,
and informed Knowles that he was going take Knowles’s money and obtain the pills from
the supplier. The tape from the April 23, 2008 transaction shows that the Petitioner told
Knowles that the supplier should be there in ten to fifteen minutes, that the Petitioner asked
Knowles how much money he had for the pills, and that the Petitioner told Knowles to count
the pills, even though his supplier was “usually good[.]” In addition to these audiotapes of
the drug transactions, Detective Loucks testified at trial that the Petitioner told him that he
usually sold “thirty to forty” pills a week. Although the Petitioner claimed that Knowles
enticed him into obtaining the pills by saying that he needed the money from the pills to take
care of his family, the jury rejected this entrapment defense. In addition, although the
Petitioner claimed that he knew the price for certain quantities of drugs because of the
environment in which he lived, the jury rejected this claim by convicting him of the charged
offenses in counts two through five. Upon review, we conclude that a reasonable jury would
not have convicted the defendant of facilitation instead of the charged offenses because the
Petitioner knowingly committed the offense of sale of a Schedule I controlled substance and
because this sale took place within a school zone. Cf. Galbreath, 2005 WL 119534, at *16
(concluding that trial counsel’s failure to request an instruction on facilitation of obtaining
a prescription drug by fraud was not harmless beyond a reasonable doubt where some of the
evidence showed that the Petitioner was picking up the prescription for a friend identified
as “Terry Sanders,” that this friend drove the Petitioner to the pharmacy, and that this friend
fled the pharmacy when the Petitioner was arrested). Moreover, we agree with the State’s
assertion that “[a]lthough the petitioner argues broadly that incurring convictions for
facilitation was ‘one of the possible outcomes had counsel requested a facilitation instruction,
he has not shown that but for counsel’s decision not to request the instruction, a reasonable
probability of that outcome exists.’” Accordingly, trial counsel’s failure to request the
facilitation instruction was not prejudicial.
We also conclude that the Petitioner failed to establish that he was prejudiced by trial
counsel’s alleged deficiency pursuant to the strict interpretation of this second approach,
which focuses on “acquittal-first” jury instructions. Here, the jury was instructed on the sale
and delivery of a Schedule I controlled substance within a school zone, the sale and delivery
of Schedule I controlled substance, and simple possession or casual exchange, and the jury
convicted the Petitioner of the charged offenses in all but count one, where the jury acquitted
the Petitioner of the charged offense and all of the charged lesser included offenses. Even
if trial counsel had successfully requested that the jury receive instructions on facilitation,
the jury was precluded from considering the facilitation offense because it convicted the
Petitioner of the charged offenses, Class A felonies, in counts two through five. Therefore,
the Petitioner is unable to prove prejudice because he failed to establish a reasonable
-29-
probability that, but for counsel’s alleged deficiency regarding the facilitation instruction, the
result of his trial would have been different.
The record supports the post-conviction court’s determination that trial counsel did
not provide ineffective assistance by failing to request the facilitation instruction at trial. The
Petitioner has failed to establish his claim of ineffective assistance of counsel by clear and
convincing evidence and, therefore, is not entitled to relief.
CONCLUSION
We conclude that the Petitioner failed to meet his burden of showing that he was
denied effective assistance of counsel at trial. Accordingly, the judgment of the post-
conviction court is affirmed.
______________________________
CAMILLE R. McMULLEN, JUDGE
-30-