Terrance Heard v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 9, 2016 at Nashville
TERRANCE HEARD v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 98-02267 W. Mark Ward, Judge
No. W2015-00447-CCA-R3-PC - Filed March 16, 2016
The petitioner, Terrance Heard, appeals the denial of his petition for post-conviction
relief, which petition challenged his August 2001 Shelby County Criminal Court jury
convictions of first degree murder and especially aggravated kidnapping. Because the
petitioner failed to prepare an adequate record for our review, we presume the ruling of
the post-conviction court is correct and, therefore, affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Eric Mogy, Memphis, Tennessee, for the appellant, Terrance Heard.
Herbert H. Slatery III, Attorney General and Reporter; Clarence Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
In August 2001, a Shelby County Criminal Court jury convicted the
petitioner of one count of first degree premeditated murder, one count of murder in the
perpetration of a kidnapping, and two counts of especially aggravated kidnapping for his
role in “the kidnapping and murder of Marshall „Pokey‟ Shipp and the kidnapping and
beating of Ricky „Kuboo‟ Aldridge.” State v. Terrance Heard, No. W2001-02605-CCA-
R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, Nov. 6, 2003), perm. app. denied
(Tenn. Mar. 22, 2004). This court affirmed the convictions and accompanying total
effective sentence of life plus 50 years on direct appeal. See id., slip op. at 1, 23. The
evidence adduced at the petitioner‟s trial established that the petitioner, a member of the
Gangster Disciples, and 14 fellow gang members kidnapped and beat the victims for
violations of gang rules. See generally id. The perpetrators kidnapped the victims, drove
them to a Memphis park, and then beat Mr. Shipp with fists, feet, tire irons, crowbars,
and bats before shooting him. The perpetrators beat Mr. Aldridge with their hands and
feet. With regard to the petitioner‟s participation in the crimes, the evidence established
“that Gangster Disciples armed with handguns put [the victims] under „Gangster Disciple
arrest‟ and escorted them” to a meeting, at which the petitioner was present, “where
Gangster Disciples were debating what punishments” the victims should receive for their
violations, which included Mr. Shipp‟s interfering with the beating of “Devin Haywood,
a mentally handicapped man” by other Gangster Disciples, id., slip op. at 4, 23; that he
“drove a black pickup which carried several other Gangster Disciples and led a three
vehicle caravan to” the park where the beatings occurred, id., slip op. at 22; that he “and
other Gangster Disciples used bats and crowbars to beat Shipp,” id.; and that he “held
Shipp from behind so other Gangster Disciples could beat him with their weapons,” id.
Mr. Shipp was also shot “because he was a „rebellious brother‟ who disrespected ranking
Gangster Disciples and fought with fellow gang members.” Id.
On October 20, 2004, the petitioner filed a timely petition for post-
conviction relief, alleging, among other things, that he had been denied the effective
assistance of counsel. The post-conviction court appointed attorney Greg Carman to
represent the petitioner, and Mr. Carman filed an amended petition for post-conviction
relief in December 2005, alleging that the petitioner‟s trial counsel performed deficiently
by failing to properly investigate the case, by failing to subpoena crucial witnesses in the
petitioner‟s defense, and by failing to effectively cross-examine two State‟s witnesses and
claiming that but for trial counsel‟s deficient performance the result of the trial would
have been different. No action was taken on the petition until 2008, when the post-
conviction court granted Mr. Carmen‟s request for additional time to investigate and
leave to file a second amended petition. In August 2010, the post-conviction court
granted Mr. Carman‟s motion to withdraw based upon Mr. Carmen‟s having taken a
position in the district attorney‟s office and appointed attorney David A. Stowers to
represent the petitioner. More than two years later, the post-conviction court granted Mr.
Stowers‟ motion to withdraw on grounds that Mr. Stowers had relocated his office
outside of Shelby County. The post-conviction court then appointed attorney Allen
Steele to represent the petitioner. Less than two weeks later, Mr. Steele was allowed to
withdraw, and the post-conviction court appointed Bridgett Stigger to represent the
petitioner. Although no order allowing Ms. Stigger to withdraw appears in the record, a
November 15, 2012 order appointing attorney Eric Mogy to represent the petitioner does.
Mr. Mogy filed an amended petition for post-conviction relief on the petitioner‟s behalf
on June 24, 2014, nearly 10 years after the petitioner‟s filing of his original petition.1 The
1
In the order denying post-conviction relief, the post-conviction court indicates that the
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second amended petition contained claims of ineffective assistance of counsel and
prosecutorial misconduct. A third amended petition added more claims of ineffective
assistance and prosecutorial misconduct.
The post-conviction court conducted an evidentiary hearing in two parts on
September 11, 2014, and January 21, 2015. A transcript of those proceedings was not
included in the record on appeal. The post-conviction court summarized the evidence
presented at the evidentiary hearing as follows:
[The petitioner] complained that his attorney had not spoken
to [State‟s witness and victim] Ricky Aldridge and [State‟s
witness] Timothy Aldridge prior to trial and did not subpoena
Carlos Bean and Ervin Brooks as witnesses. According to
[the petitioner], Mr. Bean and Mr. Brooks would have
testified that the [p]etitioner had attended the meetings
discussing the conflicts between Mr. Bean and the murder
victim, because [the p]etitioner was from the same “deck” as
Mr. Bean and was there in his support. [The p]etitioner also
testified that he asked [trial counsel] to subpoena some of his
co-defendants to testify in [his] trial, but she failed to do so.
[The petitioner] further testified that he had obtained a
transcript of the trial of his co-defendants Antonio Sykes and
Matrin Becton and had compared the testimony of Ricky and
Timothy Aldridge in that trial [which took place prior to the
[p]etitioner‟s trial] with their testimony in [his] trial and
found many significant inconsistencies which he alleges
should have been utilized by [trial counsel] for impeachment
purposes. . . .
....
[The petitioner] also testified that [trial counsel] had
failed to develop a proper trial strategy, neither he nor his
post-conviction counsel offered any better trial strategy. In
this regard, [the p]etitioner‟s principal theory of defense was
that he was acting under “duress.” [The p]etitioner testified
that he voluntarily joined the “Gangster Disciples” street gang
responsibility for the delay lay with the petitioner, who “would voice dissatisfaction with his court
appointed attorney and/or request additional time to prepare for the evidentiary hearing” each time the
case was set for hearing.
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and that he knew the rules of the organization, including the
fact that punishments included the commission of aggravated
assaults and murder. . . . Thus, the [p]etitioner contends that
under his version of the events he did not know that a murder
was going to take place and he could do nothing to prevent it
or walk away as it would have been in violation of gang rules.
Therefore, he concludes that if his version of the events had
been properly established the jury would have found he acted
under duress.
[The petitioner] also testified that [trial counsel] failed
to bring before the jury the fact that Ricky Aldridge had
admitted to perjury in another trial. He also complained that
[trial counsel] did not subpoena the police officer who
conducted the photo lineup in which Ricky Aldridge
identified the [p]etitioner. . . .
Finally, [the petitioner] testified that he believed the
prosecutor had committed prosecutorial misconduct by
presenting the testimony of Ricky and Timothy Aldridge
because of the inconsistencies in their testimony cataloged
above. His theory was that the State was presenting known
false testimony.
. . . . [Trial counsel] testified that she met with the
[p]etitioner many times prior to trial and since he was going
to be placed on the scene and did not have an alibi, they
decided to go with some form of duress defense. Either she
or her investigator spoke with Carlos Bean and Ervin Brooks.
She could not speak to any co-defendants because they were
privileged not to speak with her. She testified that she
obtained the transcripts of the two prior trials and the
preliminary hearing, and she thought she also had all of the
witnesses pre-trial statements. With these she made a chart of
all the different versions or inconsistencies and then selected
which ones to use for effective cross-examination. She
testified further that if she did not bring out an inconsistency
it could have been for several reasons. They may have been
minor. They may not have been material. They may not
have helped the defense. As far as whether [the p]etitioner
was driving the truck[,] [trial counsel] did not have any
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witnesses to testify otherwise and believed it really did not
matter whether he was driving or in the back of the truck.
(eleventh alteration in original). The post-conviction court concluded that the petitioner
had failed to establish that his trial counsel performed deficiently. The court
want[ed] to make it abundantly clear that even if, for sake of
argument, trial counsel was „deficient‟ in any or all of these
matters, based on the particular facts of this case, there is not
a reasonable probability that the outcome of the proceedings
would have been different. [The petitioner] has failed to
establish „prejudice‟ with regard to any and all of the various
allegations he has raised.
In this appeal, the petitioner, without a single citation to the record,
contends that he was deprived of the effective assistance of counsel at trial “when trial
counsel failed to properly impeach the State‟s eyewitnesses.”
Unfortunately for the petitioner, the record on appeal contains neither the
transcript of the evidentiary hearing nor any exhibits thereto. See Tenn. R. App. P. 24(b),
(c). The record indicates that despite being given ample time and opportunity, the
petitioner failed to ensure that the transcript was included for our review. The appellant
bears the burden of preparing an adequate record on appeal, see State v. Ballard, 855
S.W.2d 557, 560 (Tenn. 1993), which includes the duty to “have prepared a transcript of
such part of the evidence or proceedings as is necessary to convey a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of
appeal,” Tenn. R. App. P. 24(b). If the appellant fails to file an adequate record, this
court must presume the trial court‟s ruling was correct. See State v. Richardson, 875
S.W.2d 671, 674 (Tenn. Crim. App. 1993). Because the petitioner failed to include the
transcript of the evidentiary hearing, we must presume that the ruling of the post-
conviction court denying relief was correct.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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