Stacy Lee Fleming v. State of Tennessee ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 3, 2014
STACY LEE FLEMING v. STATE OF TENNESSEE
Appeal from the Circuit Court for Tipton County
No. 6115 Honorable Joe H. Walker, III, Judge
No. W2013-02160-CCA-R3-PC - Filed August 27, 2014
The Petitioner, Stacy Lee Fleming, appeals the Tipton County Circuit Court’s denial of post-
conviction relief from his conviction for delivery of .5 grams or more of cocaine. On appeal,
the Petitioner argues that he received ineffective assistance of counsel. Upon review, we
affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN, J.,
joined. J EFFREY S. B IVINS, J., Not Participating.
Gary F. Antrican, Somerville, Tennessee, for the Defendant-Appellant, Stacy Lee Fleming.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Mike Dunavant, District Attorney General; and Jason R. Royner, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
This appeal stems from an undercover drug purchase by two informants, Sean and
Samantha Newman, and John Thompson, Director of the 25 th Judicial District Drug Task
Force. This undercover drug purchase led to the arrest and subsequent conviction of the
Petitioner for delivery of .5 grams or more of cocaine. This court summarized the underlying
facts on direct appeal as follows:
[O]n the night of December 1, 2007, the confidential informants met with
Director Thompson and arranged to make a drug purchase. They originally
planned to buy drugs from a particular individual, not [the Petitioner], at a gas
station. All three of them got into Newman’s vehicle and went to the gas
station. Newman was the driver, Samantha1 rode in the front passenger seat,
and Director Thompson, dressed in plain clothes, sat in the back seat.
Newman testified that they arrived at the gas station and Samantha
immediately recognized [the Petitioner] in a parked vehicle. Newman said [the
Petitioner] was in the driver’s seat and had a passenger. The passenger got out
of the vehicle and walked into the store. Newman said he pulled to the right
of [the Petitioner]’s vehicle and began a conversation. Newman asked [the
Petitioner] if he had any Xanax bars. [The Petitioner] provided a non-
responsive answer. Newman then asked, “What you got on you?” [The
Petitioner] held up a bag containing what appeared to be cocaine. He then
offered to sell the cocaine for fifty dollars.
Newman asked Director Thompson if he wanted to buy the cocaine. Director
Thompson told Newman to make the purchase and he gave Newman fifty
dollars. Newman said [the Petitioner] asked about the passenger in the back
seat, referring to Director Thompson. Newman told [the Petitioner] that
Director Thompson’s name was “Little Darrell.” Newman testified that he
gave [the Petitioner] fifty dollars in exchange for a bag of cocaine. Newman
then returned to his vehicle and handed the cocaine to Director Thompson.
Newman said [the Petitioner] was alone in his vehicle when the transaction occurred.
Newman admitted that he pled guilty to two counts of submitting worthless
checks, two counts of retaliation for past actions, five counts of forgery, one
count of theft over a thousand dollars, and one count of failing to make a court
appearance. He pled guilty to these offenses in July of 2009. He denied,
however, receiving a plea deal in those cases or receiving any leniency in
criminal proceedings based on his work as a confidential informant. He
claimed he entered a “blind plea,” in which the trial court decided his sentence.
On cross-examination, Newman testified that he was not currently in prison.
He said he was serving a probationary sentence of four and a half years.
Newman acknowledged that he was paid for testifying in court and having
previously worked as a confidential informant.
Samantha testified and substantially corroborated Newman’s testimony. In
addition, she explained that she had known [the Petitioner] for several years
before the drug purchase. She acknowledged that she was also being paid to
1
Because both confidential informants share the same last name, we will refer to Samantha Newman
by her first name only. We intend no disrespect in doing so.
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testify and that she had pending charges in Tipton County.
Director Thompson testified and further corroborated the testimony of the
confidential informants. He additionally testified that they did not use a wire
or video equipment that night. At the gas station, Director Thompson noticed
[the Petitioner] was in the driver’s seat and another individual was in the
passenger’s seat. The passenger got out of the vehicle and went into the store.
Director Thompson said Newman pulled up next to [the Petitioner]’s vehicle
and began a conversation. [The Petitioner] asked about the identity of Director
Thompson. Newman referred to him as “Little Darrell.” Director Thompson
said Newman asked [the Petitioner] if he had any “ladders,” meaning Xanax.
[The Petitioner] gave a non-responsive answer. He then held up a bag
containing a white substance and said, “Fifty.” Director Thompson said
Newman asked him whether to make the purchase. Director Thompson told
Newman to buy the cocaine and handed him fifty dollars. Newman then got
out of his vehicle, went to the passenger’s window of [the Petitioner]’s
vehicle, and conducted the transaction. Director Thompson said Newman
immediately returned to his vehicle and handed him the bag of cocaine.
Director Thompson testified that the bag remained in his custody until he gave
it to Investigator Robbins.
Agent Erica Moody Katherine, a forensic scientist for the Drug Identification
Unit of the Tennessee Bureau of Investigation and an expert in drug
identification, examined a rocklike substance which she received from the
Atoka Police Department. The subject name was Stacy Fleming. She found
that the substance contained 0.55 grams of cocaine. Agent Katherine said this
measurement had a standard deviation of 0.03 grams. On cross-examination,
Agent Katherine acknowledged that the weight of a substance could be
affected by outside factors.
Randall Robbins, an investigator with the Drug Task Force of the Atoka Police
Department, testified that the confidential informants involved in this case
were each paid fifty dollars for their services. Investigator Robbins testified
that on December 1, 2007, he received contraband from Director John
Thompson. Investigator Robbins placed the contraband in a plastic bag and
filed a request for examination with the crime lab for the Tennessee Bureau of
Investigation. He put the contraband in a safe at the Atoka Police Department
so that Investigator Christopher Ellwood could send it to the crime lab the
following morning. Investigator Robbins said he was not at the scene of the
drug purchase.
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On cross-examination, Investigator Robbins acknowledged that many
confidential informants have drug problems, criminal records, or face pending
charges. He said Newman was under investigation for several offenses at the
time he served as a confidential informant. Investigator Robbins
acknowledged that Newman was subsequently convicted of multiple felonies.
Investigator Robbins said he spoke with the district attorney’s office about
Newman’s work as a confidential informant.
Investigator Christopher Ellwood testified he transported the contraband from
the Atoka Police Department to the crime lab for the Tennessee Bureau of Investigation.
Mary Payne (“Payne”), a friend of [the Petitioner]’s, testified that she, and her
husband, Joshua Payne (“Joshua”), were with [the Petitioner] on the night of
the offense. They drove to Memphis in [the Petitioner]’s vehicle to buy
cocaine. Payne said she paid fifty dollars for half a gram. The dealer weighed
the cocaine before the purchase. Payne testified that on the drive home, they
ingested cocaine. She said they sniffed the cocaine off their car keys, which
they dipped into the bag. Payne stated, “I know I did probably about three
keys . . . .” Upon returning to Tipton County, they stopped at a gas station to
buy beer and cigarettes. Payne went into the store by herself. [The Petitioner]
and Joshua remained in the vehicle. They were upset when she returned. She
stated, “Well, my husband and [the Petitioner] were pretty upset because
[Newman] had come up to the car and they were keying the powder and he had
snatched it from them and threw the money in the car.” Payne did not observe
these events. She said [the Petitioner] gave her fifty dollars when she got in
the vehicle. Payne testified that at the time, she was under the influence of
wine, cocaine, and marijuana. She said her husband and [the Petitioner] were
also under the influence while at the gas station.
[The Petitioner] testified that he was with Payne and Joshua on the night of the
offense. They drank a few glasses of wine before driving to Memphis to
purchase cocaine. [The Petitioner] said Payne purchased half a gram for fifty
dollars. They started using the cocaine on the drive home. [The Petitioner]
testified that they stopped at a gas station to get beer and cigarettes. He parked
in the front of the store and Payne went inside. [The Petitioner] noticed that
Newman was parked behind the gas pump. [The Petitioner] said he had
known Newman since elementary school and that they were friends. He
claimed they had done drugs together in the past. [The Petitioner] said
Newman once told him that he was a confidential informant. He testified that
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at the gas station, Newman got out of his vehicle and started walking towards
him. Newman went to the driver’s side window and asked [the Petitioner] if
he could get fifty dollars worth of cocaine. [The Petitioner] told Newman that
he did not have fifty dollars worth; however, he offered to give Newman a line
of cocaine. Joshua was in possession of the bag of cocaine. [The Petitioner]
said Newman stuck his head in the window and snatched the bag from
Joshua’s hand. Newman ran back to his vehicle and handed the bag to
somebody inside. Newman came back to [the Petitioner]’s vehicle and threw
fifty dollars inside. Newman then returned to his vehicle and drove away.
[The Petitioner] estimated that the stolen bag contained only 0.3 grams of
cocaine.
Following the testimony at trial, [the Petitioner] was convicted of delivering
more than 0.5 grams of cocaine, a Schedule II controlled substance. The trial
court found that he qualified as a career offender based on four prior Class B
felonies. [The Petitioner] was sentenced to thirty years in the Tennessee
Department of Correction.
State v. Stacy Lee Fleming, W2009-02192-CCA-R3CD, 2011 WL 1135760, at *1-3 (Tenn.
Crim. App. Mar. 28, 2011), perm. app. denied (Tenn. July 14, 2011). This court affirmed the
Petitioner’s conviction on appeal. Id. at *1. On July 30, 2012, the Petitioner filed a timely
pro se petition for post-conviction relief. The Petitioner was subsequently appointed counsel,
and an amended petition was filed on his behalf.
At the August 27, 2013 post-conviction hearing, the Petitioner testified that after he
was indicted in the instant case he went to Leslie Ballin’s office to hire him as an attorney
but “agreed to accept an interview with [counsel]” instead. The Petitioner stated, “from that
point I guess [counsel] just put himself on my case.” The Petitioner estimated that he and
counsel only met three to four times before trial. The Petitioner wanted counsel to continue
his case, but counsel refused to do so. The Petitioner “never got a chance to pay [counsel]
all of his money,” and the Petitioner believed that “caused [counsel’s] performance to be
lacking.”
The offense occurred outside of “Connie’s Store,” and the Petitioner thought it would
be “a good idea” to go to the scene with counsel but “it never happened.” Additionally,
counsel never attempted to talk to any of the employees at Connie’s Store that were working
on the evening of the offense or other possible witnesses. The Petitioner talked to counsel
about a surveillance video that the Petitioner believed “would have proved a lot of [his]
testimony as to what . . . really happened.” However, “at that time [the Petitioner and
counsel] kind of came to the conclusion that it was probably too late to [obtain] the
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videotape.” The Petitioner could not recall whether counsel had checked on the existence
of the video.
The Petitioner testified that all of the witnesses at trial testified that the substance the
Petitioner delivered was a powder. However, the lab report stated that the substance was a
“rock-like substance.” The Petitioner testified that he knew “for sure” that the substance
taken from him that night was not the same substance that was sent to the lab because he
remembered snorting powder cocaine that night and “[y]ou can’t snort a rock.” The
Petitioner acknowledged that counsel “might have mentioned” the discrepancy in the
evidence during trial but stated that counsel did not “put up an argument about it.” The
Petitioner asked counsel about having the substance independently analyzed and weighed,
but counsel told the Petitioner that the “judge probably would lock both of [them] up if [he]
asked that.”
The Petitioner testified that he had known Sean Newman, one of the State’s
informants, since kindergarten. The Petitioner knew Mr. Newman was an informant and
maintained that he had never sold drugs to Mr. Newman before. Prior to the offense, Mr.
Newman accused the Petitioner of having an affair with his wife, Samantha. The Petitioner
told counsel about the accusation, but counsel never brought it up at trial or questioned Mr.
Newman about whether he would have an incentive to lie about the Petitioner. Additionally,
during trial, the Petitioner tried to testify that the Newmans’ children had recently been taken
from them in an attempt “to prove[] that [Mr. Newman] was desperate and that he was
willing to do just about anything to get those children back.” The prosecution objected to
this testimony, which was sustained by the trial court, and counsel failed to make an offer of
proof.
The Petitioner wanted counsel to talk to Kevin Watson, a possible witness, before
trial, but counsel never did. Mr. Watson was alleged to be the intended target of the drug
purchase by the informants that night. The Petitioner believed that it would be important to
talk to Mr. Watson “to see if Sean Newman was wearing a wire, or [whether] they ha[d] any
surveillance, and what type of drug was purchased from Mr. Watson the same night and at
what time.” He believed Mr. Watson’s testimony could have at least contested the time line
of events. The Petitioner also thought counsel should have attacked Director Thompson’s
ability to see the transaction on the night in question. The Petitioner testified that he was
driving a Ford Explorer with very tinted windows, which sat much higher that the Toyota
Camry in which Director Thompson was sitting during the transaction. The Petitioner
“thought all those facts were important” to show that Director Thompson could not see the
transaction, but counsel never “mentioned anything about it” during trial.
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The Petitioner recalled that during trial, counsel asked Investigator Robbins whether
the Newmans were being compensated for their testimony. Investigator Robbins
acknowledged that they were being paid for their testimony and time but did not say anything
about a plea deal for the Newmans regarding their pending charges. Counsel attempted to
question Mr. Newman about possible sentences Mr. Newman might receive for his pending
charges and about compensation for his testimony, but the trial court sustained the
prosecution’s objection regarding this testimony. Counsel failed to make an offer of proof
on these issues. The Petitioner was “hoping to show that [Mr. Newman] received some kind
of deal and that was his incentive for giving his testimony.” The Petitioner recalled that
counsel did not pursue that line of questioning with Samantha.
The Petitioner wanted counsel to attack the validity of the indictment because the
indictment charged him with the delivery of .5 grams of cocaine, not .5 grams “or more.”
Counsel told the Petitioner that the indictment was sufficient so he did not challenge its
validity.
Counsel testified that at the time of the Petitioner’s trial, he had been practicing law
for five years and had conducted 15 to 20 trials. Counsel did not know whether the Petitioner
came to his firm’s law office to hire someone specifically. He testified that when someone
comes into the office to speak with a specific attorney, he will talk with the person if the
other attorney is unavailable. However, counsel maintained that if a client wants to hire a
specific attorney, the firm “will honor that request.” He added that he has “more work” than
he can handle so if the Petitioner wanted to hire another attorney, he would have been “glad
to give” the case to “whoever else [the Petitioner] requested.”
Counsel testified that he met with the Petitioner “numerous times” during his
representation of the Petitioner. Counsel stated that he did not go to Connie’s Store, the
location where the crime occurred, nor seek a video from the store for the night of the
offense. He stated that he did not “remember there ever being discussions about videos
existing or not existing,” and if the Petitioner had talked about a video, counsel would have
asked the State for a copy of the video. The offense occurred on December 1, 2007, the
indictment was issued on November 2, 2008, and counsel was retained in 2009; thus, counsel
would have “been surprised” if any video still existed at that point. Counsel reviewed
pictures of Connie’s Store prior to trial, and he talked to all of the testifying witnesses.
Counsel recalled that the State’s witnesses testified that the cocaine delivered by the
Petitioner was powder, which was “completely inconsistent” with the rock-like cocaine
introduced into evidence. He testified that during closing argument, he picked up the
evidence bag and shook it so the jury could hear the “rock rattle around,” and he pointed out
the inconsistency in the evidence to the jury. Counsel did not recall discussing with the
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Petitioner whether to hire an independent expert to analyze and weigh the cocaine. He
agreed that there was “no reason not to have” it independently analyzed and stated, “[I]n
retrospect, if I had it to do over again, it would probably have been a good idea.” Counsel
added, however, that he had no reason to believe that the evidence was anything other than
cocaine.
Counsel recalled that the Petitioner mentioned that Mr. Newman had previously
accused the Petitioner of having an affair with his wife, Samantha, and agreed that it could
have been incentive for the Newmans to present untrue testimony against the Petitioner.
Counsel did not recall specifically trying to elicit testimony from the Newmans about
whether their children had been removed from their home but agreed that sounded “familiar.”
Counsel testified that Mr. Newman’s “bias or motive to lie came up during cross-
examination;” however counsel was “cut off” by an objection during this line of questioning
and did not make an offer of proof. Counsel stated that he did not pursue that line of
questioning as much with Samantha because he believed that some of her testimony was
helpful to the Petitioner so he did not “want[] to tear her down too much.”
Counsel did not contact Kevin Watson and could not recall whether Mr. Watson was
the original intended target for the drug purchase at Connie’s Store. He did not recall
discussing Mr. Watson at length with the Petitioner and stated that he did not believe it was
a big issue because “regardless of who [Director Thompson was] there to buy from, . . . – that
wouldn’t have changed the testimony that they bought from [the Petitioner].” Counsel could
not recall whether he “ma[d]e an issue out of the fact that the [Petitioner’s Ford Explorer]
windows were tinted and it set up a lot higher that then Toyota Camry,” making it difficult
for Director Thompson to observe the transaction.
Counsel did not recall talking to the Petitioner about a defect in the indictment but
testified that he did not think he “would have done anything differently had [the Petitioner]
brought that up” to counsel. The indictment charged the Petitioner with delivering .5 grams
of cocaine, which was not worded exactly like the statute, but counsel did not “believe it has
to be.”
Following the hearing, the court took the matter under advisement and issued an order
denying relief on August 23, 2013. In denying relief, the court concluded that the Petitioner
failed to establish deficient performance by counsel or prejudice to the Petitioner.
It is from this order that the Petitioner timely appeals.
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ANALYSIS
On appeal, the Petitioner contends that he received ineffective assistance of counsel,
raising numerous alleged deficiencies as grounds for his claim. The State responds that the
Petitioner has failed to establish deficient performance or prejudice arising therefrom, and
therefore, the post-conviction court properly denied relief. Upon review, 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 (2006). 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 further 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.
Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).
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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.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (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).
The Petitioner first complains that counsel never went to the scene of the crime and
did not inquire about the availability of a surveillance video to corroborate the Petitioner’s
testimony. The Petitioner maintains that the video “would have shown the scene to be
favorable to [the Petitioner]’s testimony,” and “could have shown what actually took place.”
Counsel acknowledged that he did not visit the crime scene but testified that he reviewed
photographs of the scene and the vehicles involved. Further, he testified that he did not recall
any discussions with the Petitioner about a surveillance video and would have been
“surprised” if one existed when he was retained more than a year after the crime. The post-
conviction court implicitly accredited the testimony of counsel and concluded that the
Petitioner failed to establish deficient performance or prejudice. The record supports the
post-conviction court’s conclusions.
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Although the Petitioner correctly asserts that counsel has a duty to investigate and the
“failure to conduct a reasonable investigation constitutes deficient performance,” see Burns,
6. S.W.3d at 463, the Petitioner fails to put forth any facts to support the conclusion that
counsel’s decisions were not reasonable. As noted by the post-conviction court, “[t]his case
was not a complex factual situation.” Counsel reviewed photographs of the scene and
interviewed all testifying witnesses. It is unclear what more could have been gleaned by
visiting the scene. Likewise, the Petitioner’s mere assertion that a surveillance video may
have existed and may have been favorable to his testimony does not satisfy his burden of
proving the factual allegations in his petition by clear and convincing evidence. Without
more, the Petitioner’s allegations amount to mere conjecture and do not establish deficient
performance or prejudice. We agree with the post-conviction court’s conclusion that counsel
was not ineffective in this regard.
The Petitioner next complains that counsel did not hire an independent expert to
analyze and weigh the cocaine, and counsel did not “make an issue” or object to the
inconsistent evidence presented at trial. The post-conviction court concluded, and we agree,
that the Petitioner failed to establish that counsel rendered ineffective assistance of counsel.
Although there was discrepancy in the evidence as to whether the Petitioner delivered
powder cocaine or rock cocaine, there was no dispute that the substance delivered was, in
fact, cocaine. The Petitioner admitted that the substance delivered was cocaine and the
State’s expert testified that the substance analyzed contained .55 grams of cocaine. Counsel
pointed out to the jury the discrepancy in the evidence by shaking the bag of cocaine during
closing argument so that the jury could hear the “rock rattle around;” however, he testified
that he had no reason to believe that the substance was anything other than cocaine. The
Petitioner offered no proof that the substance was not cocaine, that it weighed less than the
State’s expert indicated at trial, or that there was a defect in the chain of custody. Thus, we
discern no ineffective assistance of counsel in this regard.
The Petitioner next asserts that counsel did not attempt to speak to Kevin Watson, the
alleged original target of the drug purchase on the night in question. The Petitioner maintains
Mr. Watson’s testimony could have been important to determine whether Mr. Newman “was
wearing a wire, the type of substance (rock or powder) sold in that transaction, and if there
was a conflict in times.” However, the Petitioner did not call Mr. Watson to testify at the
post-conviction hearing. This court has concluded that “[w]hen a petitioner contends that
trial counsel failed to discover, interview, or present witnesses in support of his defense,
these witnesses should be presented by the petitioner at the evidentiary hearing.” Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). “‘As a general rule, this is the only
way the petitioner can establish that . . . the failure to have a known witness present or call
the witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.’” Pylant, 263 S.W.3d 854, 869 (Tenn. 2008) (quoting Black, 794
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S.W.2d at 757). Neither the post-conviction court nor this court may speculate on “what a
witness’s testimony might have been if introduced by defense counsel.” Black, 794 S.W.2d
at 757. Accordingly, the Petitioner is not entitled to relief on this issue.
Similarly, the Petitioner asserts that counsel failed to make an issue of the fact that
Director Thompson probably could not see the transaction from where he was sitting because
the Petitioner’s vehicle had tinted windows and sat much higher than the vehicle in which
Director Thompson was sitting during the transaction. The Petitioner did not, however, offer
any proof in support of his allegations or call Officer Thompson to testify at the post-
conviction hearing. Again, this court cannot speculate as to what the witness’s testimony
might have been. Black, 794 S.W.2d at 757. The Petitioner is not entitled to relief on this
issue.
The Petitioner also asserts that counsel should have impeached the Newmans’
testimony “by showing that they had an incentive to tell untruths.” The Petitioner maintains
that he told counsel that the Newmans’ children were taken away by the state and the
Newmans would “have done almost anything” to get the children back. Additionally, he told
counsel that Mr. Newman accused the Petitioner of having an affair with his wife, Samantha.
He believed that counsel should have used this information to impeach the Newmans. At the
post-conviction hearing, counsel could not recall whether he asked the Newmans about their
children or the alleged affair. He stated, however, that he elicited testimony from Mr.
Newman about his “bias and motive to lie” during cross-examination by asking Mr. Newman
about his pending charges and compensation for his testimony. He noted that he did not
pursue that line of questioning “as much” with Samantha because he believed that some of
her testimony was helpful to the Petitioner and did not want to “tear her down too much.”
The post-conviction court denied relief on this ground, reasoning that the Petitioner failed
to establish that counsel’s performance was deficient or that the Petitioner was prejudiced.
The record supports the conclusion of the post-conviction court.
Initially we note that other than the Petitioner’s own testimony at the post-conviction
hearing, the Petitioner failed to present proof supporting his allegations. There is no
evidence in the record that the Newmans’ children had been taken away or that Mr. Newman
accused the Petitioner of having an affair with Samantha. Thus, the Petitioner has failed to
carry his burden of proof to establish his factual assertions by clear and convincing evidence.
Moreover, the transcript of the trial reveals that counsel questioned both of the Newmans
about their pending cases and whether they were being paid for their testimony. “Counsel
should not be deemed to have been ineffective merely because he failed to employ additional
modes of impeachment which may or may not have produced a different result.” Raymon
Haymon v. State, No. W2005–01303–CCA–R3–PC, 2006 WL 2040434, at *10
(Tenn.Crim.App. July 10, 2006) (citing Williams v. State, 599 S.W.2d 276, 279–80
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(Tenn.Crim.App.1980)). “Postulating about one more thing that trial counsel could have done
does not mandate a finding that he did not perform effectively.” Charlton Garner v. State,
W2011-01861-CCA-R3PC, 2012 WL 2384058, at *11 (Tenn. Crim. App. June 25, 2012).
The Petitioner is not entitled to relief on this issue.
The Petitioner next asserts that counsel rendered ineffective assistance of counsel by
failing to make an offer of proof at trial regarding Mr. Newman’s compensation as a
confidential informant after the trial court sustained the State’s objection. He argues that had
counsel made an offer of proof, “this issue could have been used on appeal to show the
incentive for the Newmans to be untruthful.” As noted by this court on direct appeal, “[t]he
purpose of an offer of proof is to enable the appellate court to determine if the trial court’s
exclusion of the evidence constituted reversible error.” Stacy Lee Fleming, 2011 WL
1135760, at *7 (citing Dossett v. City of Kingsport, 258 S.W.3d 139, 145 (Tenn. Ct. App.
2007)). Despite the absence of an offer of proof by counsel in the Petitioner’s trial, however,
this court reviewed the Petitioner’s claim because the error was apparent from the trial
transcript.2 Stacy Lee Fleming, 2011 WL 1135760, at *7. Thus, regardless of any deficiency
by counsel, the Petitioner cannot establish prejudice arising therefrom. He is not entitled to
relief on this issue.
As his final ground for relief, the Petitioner argues that counsel provided ineffective
assistance of counsel by not challenging the validity of the indictment. The Petitioner argues
that the indictment was insufficient because it charged the Petitioner with delivery of cocaine
in the amount of .5 grams rather than .5 grams “or more.” Initially we note that this ground
was not raised in the Petitioner’s petition or addressed by the post-conviction court.3 Failure
to include this ground in the petitioner for post-conviction relief typically results in waiver
of the issue. See T.C.A. § 40-30-106(g) (2012) (“A ground for relief is waived if the
petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented,” with certain exceptions not applicable to this case); see also State v. Turner, 919
S.W.2d 346, 356-57 (Tenn. Crim. App. 1995) (“A party may not raise an issue for the first
time in the appellate court.”) (footnote omitted). Waiver notwithstanding, the Petitioner is
not entitled to relief.
2
After considering the merits of the Petitioner’s claim, this court concluded that the trial court’s
error was harmless beyond a reasonable doubt. Stacy Lee Fleming, 2011 WL 1135760, at *7.
3
Although not included as a ground for relief in his petition, the Petitioner testified at the evidentiary
hearing that he urged counsel to challenge the validity of the indictment. The post-conviction court did not
address this ground in its order denying relief.
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Every defendant has the constitutional right to be informed of “the nature and cause
of the accusation.” U.S. Const. amend. VI, XIV; Tenn. Const. art. I, § 9. It is well
established that an indictment is sufficient if it “contains allegations that (1) enable the
accused to know the accusation to which answer is required; (2) furnish the trial court an
adequate basis for entry of a proper judgment; and (3) protect the accused from a subsequent
prosecution for the same offense.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000)
(citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)). Under Tennessee Code Annotated
section 40-13-202, an indictment “must state the facts constituting the offense in ordinary
and concise language, without prolixity or repetition, in a manner so as to enable a person
of common understanding to know what is intended and with that degree of certainty which
will enable the court, on conviction, to pronounce the proper judgment.” Indictments that
are patterned after the “pertinent language of the statute” are typically “sufficient for
constitutional and statutory purposes[.]” Hammonds, 30 S.W.3d at 302 (internal footnote
omitted). “The fundamental test of the sufficiency of an indictment is the adequacy of the
notice to the defendant conveyed by its terms.” Green v. State, 143 S.W.2d 713, 715 (Tenn.
1940). “[I]ndictments which achieve the overriding purpose of notice to the accused will be
considered sufficient to satisfy both constitutional and statutory requirements.” Hammonds,
30 S.W.3d at 300.
In the present case, the Petitioner’s indictment reads in pertinent part as follows:
STACY LEE FLEMING, on or about December 1, 2007, in Tipton
County, Tennessee, and before the finding of this indictment, did unlawfully,
feloniously, and knowingly deliver a controlled substance, to-wit: Cocaine, a
Schedule II controlled substance as classified in Section 39-17-408 of the
Tennessee Code Annotated, in the amount of .5 grams, in violation of T.C.A.
§ 39-17-417, against the peace and dignity of the State of Tennessee.4
As noted by the Petitioner in his brief, subsection (c) of the statute at issue differentiates
between amounts of the controlled substance in order to determine what class of crime has
been committed. Delivery of .5 grams or more of cocaine is a Class B felony, while delivery
of less than .5 grams of cocaine is a Class C felony. T.C.A. § 39-17-417(c)(1), (2). The
Petitioner argues that the indictment in the present case is insufficient because it only charges
the Petitioner with delivery of “.5 grams” of cocaine rather than “.5 grams or more” as set
4
The Petitioner did not include a copy of the indictment in the record on appeal. The appellant has
a duty to prepare a record that conveys “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). However, the Petitioner set forth the
wording of the indictment in his brief to this court. Thus, we elect to address the Petitioner’s appeal on the
merits despite the less than complete appellate record.
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out in section 39-17-417(c)(1). In support of his argument, the Petitioner relies on State v.
Hilliard, 906 S.W.2d 466 (Tenn. Crim. App. 1995), where this court held that an indictment
was insufficient because it failed to allege the amount of the controlled substance involved
and thus, failed to put the defendant on notice that she was facing an enhanced punishment
for possession of .5 grams or more of cocaine. Hilliard is quite distinguishable from the
present case, however. In contrast to Hilliard, wherein the indictment failed to allege any
amount of controlled substance, the indictment in the present case clearly sets forth that the
Petitioner delivered .5 grams of cocaine. Even without the precise language of the statute,
the indictment provided sufficient notice to the Petitioner that he had been indicted on the
delivery of .5 grams or more of cocaine and was subject to an enhanced punishment. Thus,
the Petitioner has failed to establish that counsel’s decision not to challenge the indictment
fell below an objective standard of reasonableness or that the Petitioner suffered prejudice.
The Petitioner is not entitled to relief.
CONCLUSION
Based on the foregoing authorities and analysis, we affirm the judgment of the
post-conviction court.
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CAMILLE R. McMULLEN, JUDGE
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