Frank E. Small v. State of Tennessee ( 2021 )

10/18/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 28, 2021
FRANK E. SMALL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Sullivan County
No. C71483 William K. Rogers, Judge
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No. E2020-00722-CCA-R3-PC
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Petitioner, Frank E. Small, was convicted in 2016, after a jury trial, of robbery and home
improvement fraud. This Court affirmed Petitioner’s convictions and sentences on direct
appeal. State v. Frank E. Small, No. E2017-01266-CCA-R3-CD, 2018 WL 2383033, at
*1 (Tenn. Crim. App. May 25, 2018), perm. app. denied (Tenn. Sept. 13, 2018).
Petitioner appeals from the denial of his petition for post-conviction relief, in which he
alleged that he received ineffective assistance of counsel at trial. Having reviewed the
entire record and the briefs of the parties, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Post-Conviction Court
Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
David Barnette, Kingsport, Tennessee, for the appellant, Frank E. Small.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Barry Staubus, District Attorney General; and Emily
Hutchins, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Petitioner was indicted by the Sullivan County Grand Jury with one count of
robbery and one count of home improvement fraud in March of 2012. After a jury trial,
Petitioner was convicted as charged and sentenced to an effective five-year sentence.
Petitioner appealed his convictions and this Court affirmed. Frank E. Small, 2018 WL
2383033, at *1.
As relevant to the issues raised in this appeal, the following facts were
summarized by this Court on direct appeal. Joseph Beverly, the victim, was 79 years old
at the time the events occurred, and 84 years old at trial. Id. On January 31, 2011,
Petitioner “got into the victim’s car” at a gas station and offered to sell him leftover
asphalt for the discounted price of $6 per square foot rather than the usual price of $18
per square foot. Id. The victim agreed. Id. The victim thought Petitioner “would pave
three feet at the end of the victim’s driveway to connect the driveway to the road.” Id.Instead, Petitioner paved the majority of the concrete driveway with a thin layer of
asphalt and charged the victim $9000 for the work. The victim wrote Petitioner a check
for $6500. Id. The victim tried cancelling the check later that day, but it had already
been cashed. Id. at *2.
The victim testified about his health and possible memory problems. Id. He said
that he had previously suffered a stroke and was residing in an assisted living facility. Id.
In response to whether the stroke had left residual memory issues, the victim stated,
“Well, not—not so much about that.” Id. The victim “disagreed that he had memory
problems and stated that he had a [‘]pretty good memory[’] and could recall his birthdate,
the month and year he was [‘]born again,[’] the month and year he joined a church, and
the names of his pastors.” Id. The victim testified that “he met with lawyers who
showed him [‘]stuff to read[’] to refresh his memory.” Id. The victim testified that he
remembered the events of January 31, 2011. Id.
Post-conviction Hearing
Petitioner timely filed a pro se petition seeking post-conviction relief, raising
several claims of ineffective assistance of counsel.1 Among Petitioner’s claims,
Petitioner alleged that his trial counsel was ineffective for failing “to adequately
investigate and impeach [the] State’s witnes[s].” Petitioner was appointed post-
conviction counsel and filed an amended petition.
At the post-conviction evidentiary hearing, trial counsel recalled that the jury
convicted Petitioner of robbery and home improvement fraud. Trial counsel testified he
called two witnesses at trial: Petitioner’s wife and one of Petitioner’s workers. Trial
counsel testified that he cross-examined the victim. Trial counsel recalled that the trial
“was put off a few times because [the victim] was in the hospital.” Trial counsel stated
1
On appeal, Petitioner abandons several claims of ineffective assistance of counsel. Therefore,
we will not review them or include trial counsel’s testimony or the post-conviction court’s conclusions
regarding those claims. See Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL
3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009) (determining claims raised in the trial court but not
raised on appeal are deemed abandoned), perm. app. denied (Tenn. Apr. 16, 2010).
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that because the victim appeared to have memory issues, his theory was that the victim
only “remembered what was presented to him in [‘]recollection of facts[’].” However,
during voir dire, trial counsel found the victim to be “very sharp on some of the issues.”
Trial counsel did not recall whether he cross-examined the victim regarding his
medications. Trial counsel believed he “presented pretty well in front of the jury that [the
victim] could not identify himself [on video] when he went into the [gas station], and that
obviously [] what he did recall was scripted.”
On cross-examination, trial counsel testified that he had been practicing law for 34
years and had represented clients in approximately 100 jury trials. Trial counsel stated he
had handled several cases for Petitioner over the past 10 years. Trial counsel testified his
theory was that “[the victim] had health issues [and] that he didn’t have any memory
other than what was written down.” Trial counsel said, “Everybody on the jury liked [the
victim]. Everybody kind of perceived him as maybe their – their older uncle or older
grandfather, that he was very well liked in front of the jury.” Trial counsel expounded
that because everyone liked the victim, his strategy was to show that the victim was “an
elderly gentleman who just did not recall all the facts.”
Petitioner complained that trial counsel did not listen to him at trial. Petitioner
testified that he asked trial counsel to “bring up the part where [the victim] accused
[Petitioner] of getting in the car at the service station.” Petitioner said he never got into
the car, but that his trial counsel told him “[t]hey got [sic] a video.” Petitioner testified
that he attempted to “fire” trial counsel “[c]ause [he] didn’t feel [he] was getting proper
service[,]” but the trial court would not let him.
Post-conviction Court’s Findings and Conclusions
In a written order, the post-conviction court addressed each of Petitioner’s claims
and denied relief. Relevant to the issue raised in this appeal, the post-conviction court
found that trial counsel established a theory with Petitioner “that did not revolve around a
vigorous attack of the victim[,]” because, as trial counsel testified, the jury liked the
victim and viewed him as a “grandfather.” Trial counsel believed that “a strenuous
cross[-]examination would have back[]fired.” The post-conviction court found that trial
counsel still cross-examined the victim, but “chose to treat him with kid gloves[,]” and
“that strategy [was] proper under the circumstances.” The post-conviction court
concluded that Petitioner failed to establish that trial counsel provided ineffective
assistance. This appeal followed.
Analysis
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Petitioner argues that the post-conviction court erred in denying his petition.
Specifically, Petitioner asserts that his trial counsel was ineffective because he failed to
aggressively cross-examine the victim as to his memory deficiencies. The State responds
that as a preliminary matter, Petitioner failed to include references to the record or
citations to relevant legal authority in support of his claim, and therefore, Petitioner
waived review of the issue. Alternatively, the State argues that the post-conviction court
properly denied relief because trial counsel’s trial strategy on cross-examination was
tactical, and Petitioner offered no evidence to prove that his outcome would be different
had trial counsel chosen a more aggressive cross-examination strategy.
Tennessee Rule of Appellate Procedure 27(a)(7), requires briefs in this Court to
contain an argument “setting forth the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including the reasons why the contentions
require appellate relief, with citations to the authorities and appropriate references to the
record (which may be quoted verbatim) relied on.” Tenn. R. App. P. 27(a)(7). Petitioner
does not cite to any of the post-conviction hearing testimony and only cites to one of the
post-conviction court’s findings. In his vague argument, Petitioner states that trial
counsel’s cross-examination was proper, but that he “should have further inquired into
the alleged victim’s memory problems.” Petitioner cites no authority to support his
argument. “Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived.” Tenn. Ct. Crim. App. R.
10(b). Petitioner has waived this issue for failing to cite authority and make appropriate
references to the record. Despite the waiver, the overwhelming evidence supports the
findings of the post-conviction court.
To establish a post-conviction claim of ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993).
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). “[F]ailure to prove either deficiency or prejudice provides a sufficient basis to
deny relief on the ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996). To establish the performance prong, a petitioner must show that “the
advice given, or the services rendered . . . are [not] within the range of competence
demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975); see Strickland, 466 U.S. at 690. The post-conviction court must determine if these
acts or omissions, viewed in light of all of the circumstances, fell “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. A petitioner “is not
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entitled to the benefit of hindsight, may not second-guess a reasonably based trial strategy
by his counsel, and cannot criticize a sound, but unsuccessful, tactical decision.” Adkins
v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d
854, 874 (Tenn. 2008). This deference, however, only applies “if the choices are
informed . . . based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992). To establish the prejudice prong, a petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.Petitioner admits in his brief “that the manner in cross-examining [the victim] was
proper, however, trial counsel could have inquired more about the inconsistencies in the
testimony versus actual video surveillance.” Petitioner’s trial counsel had been practicing
law for 34 years and had tried roughly 100 cases in front of a jury. Trial counsel
recognized the jury’s favor for the victim and made a strategic decision to forego
aggressive cross-examination of the victim. Trial counsel chose a sound strategy, and
Petitioner agreed it was proper. This Court will not second guess trial counsel’s tactical
decision. See Adkins, 911 S.W.2d at 347. Petitioner has not demonstrated that trial
counsel performed deficiently, and the evidence does not preponderate against the post-
conviction court’s finding. Petitioner is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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