State v. Larry Hart ( 1998 )

IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1997 SESSION FILED
March 12, 1998
LARRY G. HART, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellant, ) C.C.A. No. 02C01-9612-CC-00487
)
vs. ) Hardin County
)
STATE OF TENNESSEE, ) Honorable C. Creed McGinley
)
Appellee. ) (Post-Conviction)
)
FOR THE APPELLANT: FOR THE APPELLEE:
MS. NAN BARLOW JOHN KNOX WALKUP
Attorney At Law Attorney General & Reporter
P.O. Box 398
Savannah, TN 38372 SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOHN OVERTON
Assistant Attorney General
Hardin County Courthouse
Savannah, TN 38372
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Larry G. Hart, appeals from the Hardin County Circuit
Court’s dismissal of his post-conviction petition. The defendant was convicted in the
trial court on December 13, 1993 of possession of more than .5 grams of cocaine
(Schedule II) with intent to sell, and this court affirmed the conviction on June 29,
1995. State v. Larry G. Hart, No. 02C01-9406-CC-00111 (Tenn. Crim. App.,
Jackson, June 28, 1995), supplemental opinion on motion for rehearing (Tenn.
Crim. App., Jackson, July 26, 1995). The post-conviction matter now before us was
initiated by the filing of a post-conviction petition in the trial court on March 20, 1996.
After the appointment of counsel and the filing of a brief and an amended petition,
a post-conviction hearing was held on July 29, 1996. The trial court entered an
order on August 7, 1996, denying post-conviction relief. It is from this order that the
defendant appeals. After a complete review of the record and the briefs, we affirm.
On February 26, 1993, a Tennessee Highway Patrol officer received
a telephone call informing him that the defendant was driving a red Chevrolet pick-
up truck toward Savannah on Highway 128 “with a load of dope.” Within a few
minutes of the call, the trooper spotted the defendant, whom the officer knew,
driving the red Chevrolet pick-up as described by the caller. The trooper stopped
the defendant, advised him that he was stopped because the trooper had
information the defendant was transporting drugs, and asked the defendant for
permission to search the truck and the defendant’s person. The defendant
consented to the searches, and the trooper found eighteen rocks of crack cocaine
in a cigarette package in the defendant’s shirt pocket.
The defendant’s attorney filed a motion to suppress the contraband,
alleging it was obtained in violation of the defendant’s rights under the Fourth
Amendment to the United States Constitution and article I, section 7, of the
Tennessee Constitution. However, while at court awaiting hearing on the motion,
defense counsel learned that the call to the trooper was made by James Holt, a
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jailer with the Hardin County Sheriff’s Office. Defense counsel then interviewed Mr.
Holt for approximately a half hour. At the post-conviction hearing, the defendant's
trial counsel testified that Mr. Holt told him that the information about the
defendant’s possession of drugs came from a citizen informant whose name Mr.
Holt would not reveal but who, Holt said, had given information to Holt in the past
and who, on this occasion, said he witnessed the defendant engaging in a drug
transaction just prior to the call. Defense counsel testified that, after this interview,
he believed the suppression motion was not well-founded, and he withdrew the
motion prior to any hearing. The defendant went to trial approximately four months
later, and although the defendant did not testify, his defense was based upon a “set-
up,” positing that the contraband had been surreptitiously placed on him by the
person, or by persons in league with the person, who made the call to Mr. Holt.
The defendant’s post-conviction claim is that he was deprived of his
federal and state constitutional rights to be free of unreasonable searches and
seizures and that he was deprived of the opportunity to pursue the search-and-
seizure claim because of the ineffective assistance of his trial counsel.
First, we consider the defendant's claim of constitutional shortcoming
related to the search and seizure. This claim of a free-standing constitutional error
must fail, however, because the issue was not presented to the trial court via a
pretrial motion to suppress as is required by Tennessee Rule of Criminal Procedure
12(b)(3). The failure to pursue a pretrial motion constitutes waiver unless good
cause is shown for the failure to move for suppression in a timely manner. Tenn.
R. Crim. P. 12(f); State v. Roger Odell Godfrey, No. 03C01-9402-CR-00076, slip op.
at 3-4 (Tenn. Crim. App., Knoxville, Mar. 20, 1995); State v. Hamilton, 628 S.W.2d
742, 744 (Tenn. Crim. App. 1981); State v. Zyla, 628 S.W.2d 39, 41 (Tenn. Crim.
App., 1981); State v. Davidson, 606 S.W.2d 293, 295 (Tenn. Crim. App. 1980).
There was no good cause for failing to pursue the suppression motion
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to a hearing and a dispositive order. In fact, failure to pursue the matter was a
calculated, deliberate action of trial counsel. As a result, the free-standing
constitutional search-and-seizure issue is waived. See Tenn. Code Ann. §§ 40-30-
206(g), -210(f) (1997); see also State v. Miller, 668 S.W.2d 281, 286 (Tenn. 1984).
We now review the defendant’s claim of ineffective assistance of
counsel. When an appeal challenges the effective assistance of counsel, the
appellant has the burden of establishing (1) deficient representation and (2)
prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Deficient representation occurs when counsel provides assistance that falls
below the range of competence demanded of criminal attorneys. Bankston v. State,
815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable
likelihood that, but for deficient representation, the outcome of the proceedings
would have been different. Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). On
review, there is a strong presumption of satisfactory representation. Barr v. State,
910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).
In the present case, the claim of ineffective assistance of counsel is
predicated upon the assertion that trial counsel failed to protect the defendant from
inculpatory evidence that was the fruit of an illegal investigatory stop. Because a
review of the Strickland prejudice prong preemptively disposes of Hart’s ineffective
assistance claim, we discuss only the prejudice claim and decline to review the
performance claim. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (no need
to “address both components of the inquiry if the defendant makes an insufficient
showing on one”). We hold the defendant failed to establish that he was prejudiced
by the alleged ineffective assistance of counsel.
In this proceeding brought under the 1995 Post-Conviction Procedure
Act, the defendant bears the burden of proving his claim by clear and convincing
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evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
The record contains no evidence about the informant except for the
testimony of trial counsel who described his interview with Mr. Holt. Neither Holt nor
the informant were called as witnesses at the post-conviction hearing. By failing to
offer Holt and/or the informant as post-conviction witnesses, the defendant has
failed to demonstrate what proof would have been presented at the suppression
hearing. Trial counsel’s knowledge -- or lack thereof -- of the informant’s
circumstances may well be probative of the effectiveness or ineffectiveness of his
performance, but it does little to address the prejudice issue. While the burden of
establishing the reasonableness of the detention and search may have rested upon
the state at a pretrial suppression hearing, 1 in the proceeding before us the burden
rested upon the defendant to show by clear and convincing evidence that the state’s
suppression burden could not have been carried. This post-conviction burden has
not been carried by the defendant.
Moreover, to the extent that the defendant’s post-conviction proof
revealed any facts related to the reliability of the tip, we would be constrained to find
that such facts, as a matter of law, support the investigatory stop and the search,
with the result that no prejudicial ineffective assistance occurred.
In support of the defendant’s claim that the contraband was the fruit
of an illegal investigatory stop of the defendant’s vehicle, the defendant relies
primarily upon State v. Coleman, 791 S.W.2d 504 (Tenn. Crim. App. 1989). In
Coleman, this court held that the state constitutionality of an investigative stop
based entirely upon an informant’s tip is gauged by the two-prong Aguilar-Spinelli
test. Coleman, 791 S.W.2d at 505. See Spinelli v. United States, 393 U.S. 410, 89
1
See State v. Burton, 751 S.W.2d 440, 445 (Tenn. Crim. App. 1988)
(commenting that, once defendant seeking suppression of allegedly illegally
seized evidence shows he has a protectable privacy interest, identifies the items
to be suppressed, and shows the absence of a warrant, the “burden then shifts
to the prosecution . . . [to establish] by a preponderance of the evidence” the
justification for the warrantless search and seizure).
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S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964); see also
State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989). While Mr. Holt’s information
satisfies the basis-of-knowledge prong (in that the caller told Holt that he had seen
the defendant participating in a drug transaction just prior to the defendant’s trip into
Savannah), the defendant argues that the veracity prong was not satisfied.2 Under
this prong of the Arguilar-Spinelli test, the police must know “the informant is
credible or his information is reliable.” Jacumin, 778 S.W.2d at 436. Based on a
lack of proof to satisfy the veracity prong (the officer in Coleman “did not know the
informant before the tip was provided,” Coleman, 791 S.W.2d at 507) and the basis-
of-knowledge prong (the proof failed to show any basis of the informant’s
knowledge), we found in Coleman no “‘reasonable and articulable suspicion’” to
support the detention and search under the state constitution.
However, our supreme court has recently filed an opinion which
controls the search-and-seizure question now before us, at least based on the facts
presented at the post-conviction hearing. See State v. Simpson, --- S.W.2d ---, No.
02S01-9702-CC-00010 (Tenn. Feb. 23, 1998). In Simpson, an officer received a
call from a “confidential informant” advising the officer that Simpson and another
named person were transporting “100 dilaudid pills from Memphis to McNairy
County... traveling from Memphis on Highway 64 in a two-door cream or beige
colored Oldsmobile and would arrive in Selmer ‘any minute.’” Simpson, --- S.W.2d
at ---, slip op. at 2. The officer knew the informant, who was a convicted felon.
Nevertheless, the officer believed the informant to be credible. Id., --- S.W.2d at ---,
slip op. at 3. He conveyed the information to the Sheriff who located the
2
For purposes of our review of the facts of the present case, we find no
constitutional significance in the fact that the informant spoke with one officer,
Mr. Holt, who formed articulable suspicions about the reliability of the tip,
although a different officer, the trooper, conducted the investigatory stop. See
United States v. Hensley, 469 U.S. 221, 233, 105 S. Ct. 675, 682 (1985) (holding
that police from one department may make an investigatory stop of a vehicle “in
objective reliance on a flyer or bulletin” issued by another police department, if
the police who issued the flyer or bulletin possessed a reasonable suspicion
justifying a stop”) (italics in original). See also State v. Simpson, --- S.W.2d ---,
No. 02S01-9702-CC-00010 (Tenn. Feb. 23, 1998).
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defendant’s car and stopped it. The defendant gave the officers consent to search,
first her vehicle, and then her person. During this latter search, drugs were found
in the defendant's coat. Simpson relied upon the Aguilar-Spinelli test as embraced
by Jacumin, as does the defendant in the present case, to assert that “because the
reliability of the tip was not sufficiently established, the tip did not give rise to a
reasonable suspicion justifying an investigatory stop.” Id., --- S.W.2d at ---. slip op.
at 7.
Our supreme court rejected Simpson’s claim and held that the
reliability of the tip was supported by the evidence and provided reasonable and
articulable suspicion for the investigatory stop. Id., --- S.W.2d at ---, slip op. at 17.
The court observed that “the two-pronged test of reliability need not be as strictly
applied if the informant’s tip is being used to establish reasonable suspicion rather
than probable cause,” id., -- S.W.2d at ---, slip op. at 13, and the court found that
the “reasonable suspicion” inquiry was supported by the officer’s acquaintance with
the informant, buttressed by the confirmed accuracy of the information about the
defendant’s “future behavior,” and by the informant’s basis of knowledge, where the
“circumstances under which the tip was given indicate that the informant was an
eye-witness.” Id., --- S.W.2d at ---, slip op. at 15.
We note that the bases for satisfying both prongs are even stronger
in the present case, compelling the conclusion, per Simpson, that the officer’s
suspicion of Hart was reasonable, supported by specific and articulable facts, and
justifying the investigatory stop. Id., --- S.W.2d at ---, slip op. at 16; see Adams v.
Williams, 407 U.S. 143, 92 S. Ct. 1921 (1972); see also State v. Pulley, 863 S.W.2d
29 (Tenn. 1993).
Having found the detention “constitutionally valid,” id., --- S.W.2d at
---, slip op. at 17, the supreme court disposed of Simpson’s claim that the search
“was unreasonable and exceeded the scope of a valid Terry [v. Ohio, 392 U.S. 1,
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88 S. Ct. 1880 (1968)] stop” by finding that the search of her person was
consensual. Simpson, --- S.W. 2d at ---, slip op. at 19. Although the defendant in
the present case has not claimed an invalid search of his person apart from the
predicate illegality of the investigatory detention, we find that the consent offered by
the defendant supports the ultimate search and the seizure of the contraband,
based on Simpson. See also State v. Brown, 836 S.W.2d 530, 547 (Tenn. 1992)
(validating a consent to search that is “unequivocal, specific, intelligently given, and
uncontaminated by duress or coercion”).
Therefore, based on Simpson and the facts shown by the defendant,
the suppression motion should have been denied, and for this additional reason, no
prejudice is found, and the ineffective assistance claim must fail.
Accordingly, the judgment of the trial court is affirmed.
_________________________
CURWOOD WITT, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
JERRY L. SMITH, JUDGE
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