Sheddrick Harris v. State of Tennessee ( 2018 )

04/06/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 11, 2017 Session
SHEDDRICK HARRIS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 09-00594 W. Mark Ward, Judge
No. W2016-00904-CCA-R3-PC
The Petitioner, Sheddrick Harris, appeals from the denial of his petition for post-
conviction relief, wherein he challenged his jury convictions for first degree felony
murder and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202(a)(2), -
403. In this appeal as of right, the Petitioner raises the following ineffective assistance of
counsel claims: (1) that trial counsel was ineffective for failing to inform the Petitioner
that he had a constitutional right to a trial before a different judge than the one who
signed the search warrant for the Petitioner’s automobile; (2) that trial counsel was
ineffective for failing to seek recusal of the trial judge because the trial judge had an ex
parte communication with a head deputy that led to enhanced courtroom security
procedures, evincing the trial judge’s bias against the Petitioner, and because the trial
judge was the same judge who issued the search warrant; (3) that trial counsel was
ineffective for failing to challenge the warrantless search of the Petitioner’s vehicle,
failing to challenge the search warrant by requesting a Franks v. Delaware, 438 U.S. 154
(1978) hearing, and failing to challenge the Petitioner’s illegal detention effectuated
without probable cause and without an arrest warrant and solely for the purpose of
gathering additional evidence against the Petitioner; and (4) that trial counsel failed to
adequately impeach an attorney witness who was facing disciplinary action by the Board
of Professional Responsibility at the time of the Petitioner’s trial.1 After a thorough
review of the record, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
1
We have restructured the Petitioner’s ineffective assistance of counsel claims for the purposes of clarity
and efficiency.
Seth M. Segraves (on appeal) and Michael R. Working (at hearing and on appeal),
Memphis, Tennessee, for the appellant, Sheddrick Harris.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and D. Gregory Gilbert
and Omar Z. Malik, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL BACKGROUND
In August 2010, a Shelby County jury convicted the Petitioner of first degree
felony murder and especially aggravated robbery in connection with “an ill-fated drug
deal turned robbery during which the victim . . . suffered the theft of over $10,000 and a
fatal gunshot wound to the chest.” State v. Sheddrick Harris, No. W2010-02512-CCA-
R3-CD, 2012 WL 29203, at *1 (Tenn. Crim. App. Jan. 5, 2012), perm. app. denied
(Tenn. May 16, 2012). For these crimes, the Petitioner was sentenced to life
imprisonment without the possibility of parole for the murder conviction and to a
consecutive sixty years for the especially aggravated robbery conviction. Id.
A. Trial. The thirty-eight-year-old victim, Corey Lester, was found shot to death
in his Memphis home on May 20, 2008. Harris, 2012 WL 29203, at *1. He had suffered
gunshot wounds to the left side of his chest, his left knee, and his right knee. Id. at *5.
According to the medical examiner, the chest injury was not survivable. Id.
Memphis Police Department (“MPD”) Detective Charles Teeters arrived at the
victim’s home after the victim’s body had been removed and observed what appeared to
be a “sizeable amount of cocaine” on the kitchen counter. Harris, 2012 WL 29203, at *4.
According to Detective Teeters, he believed “the substance to be approximately two kilos
of cocaine based upon its appearance and packaging[,]” but when he sampled the
substance, it did not have “the normal texture” of cocaine. Id. Detective Teeters
performed a field test of the substance that did not produce a “positive test for cocaine,”
and later testing at the property room confirmed that the substance was in fact not
cocaine. Id. There was, however, a small amount of cocaine recovered from a saucer on
the kitchen counter. Id. In addition, another detective recovered the victim’s wallet from
the master bedroom, which contained approximately $500 inside. Id. at *5.
MPD Detective Alpha Hanks processed the crime scene, noting spent shell casings
found in the front doorway, in a kitchen garbage can, and behind the living room couch.
Harris, 2012 WL 29203, at *4. She also documented a blood trail leading from the
kitchen to the victim’s body near the pool table, bullet holes in the couch, and one bullet
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hole in a pair of blue jeans. Id. She collected five spent .380 casings and two spent
bullets for ballistics testing. Id.
Two witnesses, Derron Macklin and Rocky2 Hilliard, placed the Petitioner at the
scene of the victim’s murder. At the Petitioner’s trial, they testified to the following:
Derron Macklin had known the victim “about a year” and considered
the victim a friend. On May 20, 2008, Mr. Macklin and another individual,
Rock[y] Hilliard, met with the victim at a Memphis Marshall’s department
store to arrange a drug deal with the [Petitioner], whom Mr. Macklin knew
as “Sed.” As Mr. Macklin explained, “[Mr. Hilliard] knew where some
drugs w[ere] and that [the Petitioner] want[ed] to see the money first.” Mr.
Macklin, however, became nervous about the drug deal because “who in
their right mind is going to show you the money first without seeing the
product.” After arranging a meeting between the victim and the [Petitioner]
for later that day, Mr. Macklin telephoned the victim and told the victim
that he was not “comfortable with what was fixing to go down” and
attempted to call off the transaction. The victim, however, told Mr.
Macklin that he would “go through” with the meeting.
Mr. Macklin and Mr. Hilliard picked up the [Petitioner] at a Fred’s
store and drove to a Shell station near the victim’s home. The victim had
told Mr. Macklin that he did not want Mr. Hilliard to come to his home
because Mr. Hilliard had been recently paroled from federal prison.
Therefore, Mr. Macklin, Mr. Hilliard, and the [Petitioner] met the victim at
the Shell station, where the [Petitioner] and Mr. Macklin got into the
victim’s white pickup truck and went to the victim’s home.
When they arrived at the victim’s home, Mr. Macklin went into a
living room area and began “racking up” a game of pool at the victim’s
pool table. The [Petitioner] received a phone call and “his whole attitude
changed.” The [Petitioner] demanded to see the money, so the victim
“brought out a little black pouch” containing money and placed it on the
kitchen table. The [Petitioner] became angry over the amount of money
presented. When the victim said, “[T]hat’s all the money I got,” the
[Petitioner] shot the victim in the leg. The [Petitioner] then asked for “the
rest of the money.” When the victim told him that the money was “back
there” in the victim’s bedroom, the [Petitioner] directed Mr. Macklin to
retrieve the money from the victim’s bedroom dresser. Mr. Macklin went
2
Sometimes this witness’s first name is spelled “Rockie,” but we will refer to him as “Rocky” to be
consistent.
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to the victim’s bedroom and returned with another small container of
money.
Next, the [Petitioner] ordered the victim and Mr. Macklin to the
living room couch. The [Petitioner] forced the victim and Mr. Macklin to
“strip down to [their] underwear” and told them that he was “going to have
to . . . kill [them].” Both men begged for their lives. When the [Petitioner]
telephoned someone but got no answer, the victim offered the [Petitioner]
any of his vehicles in return for leaving them without any further harm.
The [Petitioner] instructed Mr. Macklin to dress and go start one of the
vehicles—either a white pickup truck or a Corvette. The [Petitioner] stood
in the doorway of the home, watching both the victim and Mr. Macklin, as
Mr. Macklin walked outside to start the victim’s white pickup truck. Mr.
Macklin “got around the truck [and] stuck the key in the ignition[, but] it
didn’t fit. So [he] laid down and ran.”
Mr. Macklin fled the victim’s driveway and ran door to door seeking
help. Unable to summon any help from neighbors, Mr. Macklin went to the
Shell station where he telephoned Vincent Halliburton to warn him of what
had occurred because Mr. Halliburton was on his way to the victim’s home.
Mr. Macklin then telephoned 9-1-1 to report the shooting and returned to
the victim’s home to meet the police.
As Mr. Macklin walked back to the victim’s home, he saw the
[Petitioner] and Mr. Hilliard in Mr. Hilliard’s car. When Mr. Hilliard and
the [Petitioner] saw Mr. Macklin, “they hit the brakes so [he] just stepped
over in the bushes and then they left.” When Mr. Macklin returned to the
victim’s home, Mr. Halliburton was already standing outside. Mr. Macklin
told Mr. Halliburton that he and the victim had been robbed. Mr. Macklin
looked inside the door and saw the victim lying on his back by the pool
table.
The police soon arrived, and Mr. Macklin gave them a statement
during which he “tried to shy away” from discussion of the drugs because
he did not want to be charged in any conspiracy concerning the drugs.
Later at the police station, however, Mr. Macklin admitted to police that he
had been untruthful at the scene and “told them everything [he] knew at that
point,” including identifying the [Petitioner] as the shooter. He testified, “I
told [the police] that . . . we [were] there to buy drugs and we [were] getting
them from [the Petitioner] and he pulled up a gun and robbed us.” Mr.
Macklin only witnessed the [Petitioner’s] firing the first shot in the victim’s
leg, did not see any other shots fired, and did not see the drugs at any time.
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At trial, Mr. Macklin denied visiting the [Petitioner’s] home on the day of
the shooting.
Rocky Hilliard had known the [Petitioner] approximately six to
[twelve] months at the time of the shooting. He met the victim for the first
time on May 20, 2008. Mr. Hilliard assisted Mr. Macklin in setting up the
drug deal by getting Mr. Macklin in touch with the [Petitioner]. Mr.
Hilliard also expressed some reservations about the deal and told Mr.
Macklin and the victim to “leave it alone.” Mr. Hilliard testified that when
he and Mr. Macklin picked up the [Petitioner] at the [Petitioner’s] home,
Mr. Macklin went inside the [Petitioner’s] home for “maybe five minutes”
before both men came outside and got into Mr. Hilliard’s car. Mr. Hilliard
recalled that the [Petitioner] carried a large “dark black” bag to the car,
which he assumed contained drugs. Mr. Hilliard drove the men to the Shell
station to meet the victim and waited at a “wing place” restaurant near the
Shell station while the men went to the victim’s home.
Mr. Hilliard spent [thirty] to [forty] minutes “just sitting” at the
restaurant while the men were at the victim’s home. At one point, he
telephoned the [Petitioner] to ask what was taking so long, and the
[Petitioner] told him that they were about to test the drugs. Sometime later,
Mr. Macklin telephoned Mr. Hilliard, told him “you set us up,” and hung
up the phone. Soon thereafter, the [Petitioner] telephoned Mr. Hilliard for a
ride and told Mr. Hilliard that the victim and Mr. Macklin were “trying to
rob” him. Mr. Hilliard picked up the [Petitioner] on a nearby street and
took him home. On the trip to the [Petitioner’s] home, the [Petitioner]
repeatedly told Mr. Hilliard that the other men had tried to rob him.
Mr. Hilliard left the [Petitioner] at the [Petitioner’s] home and
traveled alone to Tunica, Mississippi. A[n MPD] detective telephoned Mr.
Hilliard in Tunica to ask him who killed the victim. Mr. Hilliard was
“shocked” to learn of the victim’s death. The next morning and while
accompanied by his attorney, Mr. Hilliard gave a statement to the
detectives and identified the [Petitioner] from a photographic lineup.
Harris, 2012 WL 29203, at *1-3 (“defendant” altered to “Petitioner” throughout; all other
alterations in the original).
Javier Bailey, Mr. Hilliard’s attorney, testified at the Petitioner’s trial that he
received a telephone call from Mr. Hilliard in the “wee hours of the morning” of May 21,
2008. Harris, 2012 WL 29203, at *4. He agreed to meet Mr. Hilliard at his office and
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accompany him to the MPD station later that morning, where Mr. Hilliard gave a
statement to MPD detectives. Id.
Robert Lambe testified at the Petitioner’s trial that he sold the Petitioner his 1998
black Cadillac DeVille at approximately 7:30 a.m. on May 21, 2008. Harris, 2012 WL
29203, at *4. According to Mr. Lambe, the Petitioner paid $4,900 cash, and he gave the
Petitioner a bill of sale and title transfer. Id. Mr. Lambe further testified that he had
removed all of his personal property from the vehicle prior to selling it and that he did not
leave over $13,000 in cash inside the vehicle or a Lorcin .380 pistol in the glove
compartment. Id.
MPD Detective Michael Garner arrested the Petitioner at a Memphis muffler shop
on May 21, 2008. Harris, 2012 WL 29203, at *4. “The [Petitioner] did not immediately
submit, but when cornered by Detective Garner and his team, the [Petitioner] ‘gave up.’”
Id. Although the Petitioner told Detective Garner that he did not have a vehicle at the
shop, the Petitioner “held a set of keys in his hand at his arrest. The officers confirmed
the keys belonged to a black Cadillac DeVille parked on the lot. A plain view search of
the vehicle uncovered paperwork relevant to the [Petitioner’s] recent purchase of the car
that morning.” Id. MPD Detective Samuel McMinn assisted Detective Garner in the
Petitioner’s arrest, testifying “at trial consistently with Detective Garner’s testimony
concerning the circumstances of the [Petitioner’s] arrest and search of the vehicle.” Id.
MPD Detective Barry Hanks prepared the search warrant for the Petitioner’s
vehicle and conducted the search. Harris, 2012 WL 29203, at *5. Detective Hanks
“discovered paperwork concerning the [Petitioner’s] ownership of the vehicle and
receipts showing the [Petitioner’s] payment of fines on the morning of May 21 in order to
have his driving privileges reinstated.” Id. Another officer found “two boxes containing
a large amount of money in the backseat” of the Cadillac and a handgun in the glove
compartment. Id.
On cross-examination, Detective Hanks acknowledged that he had averred in the
search warrant affidavit that no money was recovered at the victim’s residence. Harris,
2012 WL 29203, at *5. He explained, however, that “with the quantity of drugs or
suspected drugs that was on the scene,” he was thinking about “a large amount of money”
that would be needed “to purchase a kilo of cocaine” and that he “did not even think
about the five hundred dollars” found in the victim’s wallet when preparing the affidavit.
See id. He was also asked about his statement in the affidavit that he did not know how
Mr. Macklin left the scene. Detective Hanks believed that statement to be true,
reasoning,
When [Mr. Macklin] got a chance[,] he left the scene, [and] he went
down to a service station to try to summon help. . . . [H]e saw [the
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Petitioner] later leaving the area with Rock[y,] but he did not see [the
Petitioner] come out of the house and get into Rock[y]’s car and leave
because he also was gone from the scene.
Special Agent Raymond DePriest, a firearms examiner, determined that the Lorcin
.380 semi-automatic pistol found in the glovebox of the Cadillac was “fully functional.”
Harris, 2012 WL 29203, at *5. “Through his examination of the shell casings and bullets
recovered at the scene, he determined that they all were consistent with having been fired
from the pistol. Likewise, he determined that the bullets recovered from the victim’s
body had been fired from the same pistol.” Id.
B. Post-conviction. Following his unsuccessful direct appeal, the Petitioner filed
a timely pro se petition for post-conviction relief. Counsel was appointed, and two
successive amended petitions were filed. The Petitioner claimed that he received
ineffective assistance of counsel in the following ways: (1) trial counsel failed to inform
the Petitioner of his constitutional right to have a trial judge other than the one who
signed the search warrant preside over his case; (2) trial counsel failed to move for
recusal of the trial judge; (3) trial counsel failed to “move for suppression, based upon the
unlawful seizure and search, of [the] Petitioner and the gun and currency found” in the
black Cadillac; (4) trial counsel failed to impeach attorney Javier Bailey; (5) trial counsel
failed to obtain and present evidence of the Petitioner’s financial records; (6) trial counsel
failed to adequately investigate “all aspects of the case”; (7) trial counsel failed to obtain
a mitigation expert for the Petitioner’s sentencing phase; (8) trial counsel failed to
adequately meet and communicate with him; and (9) trial counsel failed to adequately
investigate and present mitigation evidence at the sentencing phase. He also alleged a
Brady violation and that appellate counsel was ineffective for failing “to raise all non-
frivolous issues” on appeal.
Thereafter, hearings were held on March 31, April 6, and April 8, 2016. We will
limit our recount of the facts from the post-conviction hearings to those that are relevant
to the ineffective assistance claims the Petitioner presents on appeal.
Trial counsel testified that he represented the Petitioner in both federal and state
court for charges relating to the victim’s death. In federal court, trial counsel obtained an
acquittal for the Petitioner on the charge of being a convicted felon in possession of a
firearm. Trial counsel maintained that the defense prevailed at the federal trial because
the jurors did not find Mr. Macklin or Mr. Hilliard credible, so their strategy “remained
consistent” in state court to likewise challenge their credibility. Trial counsel also
proffered as a reason for the federal acquittal that the jurors may have believed that Mr.
Hilliard planted the gun in the Petitioner’s Cadillac.
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Trial counsel recollected that Mr. Hilliard’s attorney, Javier Bailey, testified at the
Petitioner’s state trial, although Mr. Bailey did not testify in the federal trial. According
to trial counsel, Mr. Hilliard was “less than credible” at the federal trial, but Mr. Bailey
provided Mr. Hilliard with an alibi at the state trial, thus boosting Mr. Hilliard’s
credibility. Trial counsel was “disappointed” that Mr. Bailey was called to testify
because that essentially disproved Mr. Hilliard’s ability to plant the murder weapon
inside the Petitioner’s Cadillac because Mr. Hilliard’s whereabouts were then accounted
for prior to the Petitioner’s purchasing the Cadillac.
When asked if he considered impeaching Mr. Bailey at trial, trial counsel said that
he “did to a certain extent.” Trial counsel then confirmed his awareness that, prior to the
Petitioner’s trial, Mr. Bailey had been censured by the Board of Professional
Responsibility and that he “may have been suspended for inappropriate conduct”;
however, trial counsel noted that such “conduct occurred prior to 2010 and that conduct
[involved] dereliction of client’s matters.” Trial counsel also knew that there were
pending complaints against Mr. Bailey at the time of the Petitioner’s trial, but Mr. Bailey
was not disbarred until 2012. Trial counsel averred that he would have had no hesitation
about impeaching a fellow lawyer if he had felt the need to do so and provided an
example where he had done just that. In addition, trial counsel testified that he thought
the jury would find Mr. Bailey’s assertion “that he arrived at work at seven o’clock every
day” farfetched, and trial counsel did not want to weaken his credibility with the jury by
impeaching Mr. Bailey with “unfounded allegations” of misconduct. Trial counsel
denied that his personal liking for Mr. Bailey clouded his professional judgment.
In federal court, trial counsel filed a motion to suppress the evidence found in the
Petitioner’s black Cadillac, asserting that the Petitioner “was not close to the Cadillac
when he was detained or arrested by the officers” at the muffler shop. However, that
motion was denied. Trial counsel confirmed that he did not make a specific challenge to
the search warrant itself or to the Petitioner’s being illegally detained without a warrant
when his property was seized. While trial counsel did not believe that Detective Hanks
intentionally placed false information in the search warrant, the warrant did contain
“some inaccuracies,” in trial counsel’s opinion.
Trial counsel did not remember having any discussions with the Petitioner about
filing a suppression motion in state court and did not remember the Petitioner’s filing a
pro se motion to suppress or demanding a suppression hearing during the July 26, 2010
motion for a continuance proceeding. According to trial counsel, the Petitioner “was
more concerned about going to trial as fast as possible so [he] could get the same verdict”
from the federal trial.
Regarding recusal of the trial judge, trial counsel had no recollection of whether
the trial judge stated “on the record in that July pretrial hearing when the continuance was
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granted that [the Petitioner] would have an absolute right to transfer to a different
division for review of the warrant[.]” Trial counsel “may have told [the Petitioner] that
[he] would get a fair trial” in the trial judge’s courtroom.
Rachel Geiser testified that she worked on the Petitioner’s defense team as “the
guilt-innocence investigator” and that she assisted with the Petitioner’s cases in both
federal and state court. She interviewed some of the federal jurors following the
Petitioner’s acquittal on the firearm charge, and she would have prepared “reports” on
those interviews and given them to trial counsel. Ms. Geiser acknowledged that she did
not investigate Javier Bailey, explaining that Mr. Bailey was not “an actual fact witness”
because Mr. Bailey “was called to bolster” Mr. Hilliard’s testimony that Mr. Hilliard was
in Mr. Bailey’s office at a certain time.
The Petitioner testified that trial counsel failed to file certain pretrial motions. The
Petitioner stated that he requested a Franks hearing on the search warrant while speaking
with the trial judge on July 26, 2010, when the State’s motion for a continuance was
granted. The Petitioner also claimed that he asked trial counsel to file a suppression
motion but that trial counsel declined, instead telling the Petitioner that he would say at a
post-conviction proceeding that he should have filed a suppression motion.
As for specifics of a suppression motion, the Petitioner said that he wanted a
suppression motion filed because the police searched the Cadillac before a warrant was
issued. According to the Petitioner, the police came to the muffler shop with guns drawn
and took the Petitioner’s keys out of his pocket. The Petitioner said that the Cadillac was
forty or fifty feet away from him when he was arrested and claimed that he had “never set
foot in that car.” The Petitioner averred that he could see officers searching his car and
that no one would tell him why he was being arrested. The Petitioner further claimed that
there were false statements in the search warrant affidavit—those being that there was no
currency found at the scene, that Mr. Macklin was unaware of how the Petitioner left the
scene when his statement to the police indicated otherwise, and that the owner of the
muffler shop said that he saw the Petitioner in the black Cadillac. The Petitioner also
believed that he was arrested without probable cause and detained “under an unlawful
forty-eight-hour hold[.]”
The Petitioner felt that the search of the car was illegal. When asked if the
Petitioner as a federal probationer consented to a search of his property and car without
objection, he said that he did not.
According to the Petitioner, trial counsel did not file a motion for recusal of the
trial judge, which the Petitioner wanted because the trial judge signed the search warrant
and the trial judge’s “reviewing the evidence and having prior knowledge of this case.”
The Petitioner also claimed that trial counsel failed to inform him of his constitutional
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right to have a trial judge other than the one who signed the search warrant. Moreover,
the Petitioner averred that the trial judge had an ex parte communication “with one of the
head deputies” about the Petitioner’s being “a dangerous and vicious individual[,]” which
led to the heightened security measures at trial, showing that the trial judge had a
preformed opinion of the Petitioner.
Additionally, the Petitioner asserted that trial counsel failed to adequately
investigate Javier Bailey. The Petitioner confirmed that trial counsel presented the
defense in federal court that the Petitioner was essentially set up by Mr. Hilliard, which
was what the Petitioner wanted at the state trial.
MPD Detective Joe Stark testified that he spoke with both Mr. Macklin and Mr.
Hilliard after the victim’s death and that he knew they both had “extensive experience”
with the criminal justice system. Although Detective Stark had no prior interaction with
either of these individuals, he found them believable about the circumstances surrounding
the victim’s death because they were admitting involvement in a drug transaction.
Detective Stark recalled that the Petitioner was placed in an interrogation room
within a few hours after his arrest. According to Detective Stark, the Petitioner refused to
give a statement. Detective Stark also testified that he was involved in preparing the
forty-eight-hour-hold paperwork for the Petitioner following the Petitioner’s arrest.
Detective Stark had the arrest ticket and affidavit of complaint stamped on May 21st.
Sergeant Alisa Styles, the keeper of the Shelby County Jail’s records, confirmed
that the Petitioner first arrived at the jail on May 21, 2008. She stated that, at 12:52 p.m.
on May 22, 2008, the Petitioner was “located from post-booking to Lower Level C to a
housing unit.” At that time, the Petitioner was to be segregated from other inmates,
although the records did not indicate the reason for segregation other than the Petitioner
had “pending charges.” Sergeant Styles confirmed that the Petitioner was sent to court at
approximately 7:56 a.m. on May 27, 2008, to see a magistrate. She could not discount
the possibility that the Petitioner had a video arraignment on May 23.
Terrance Johnson, the owner of the muffler shop where the Petitioner was
arrested, testified. Mr. Johnson stated that he did not see the Petitioner drive onto the lot
on the morning of May 21, 2008. When the police asked Mr. Johnson that day what car
the Petitioner arrived in, Mr. Johnson told them that he did not know but that the
Petitioner had called earlier and asked to have some work done on a Cadillac. Mr.
Johnson conveyed that he spoke with an officer while standing in front of the trunk of the
Petitioner’s Cadillac, that he saw the doors of the Cadillac open at that time, and that he
saw paperwork in an officer’s hands.
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The Petitioner entered a multitude of exhibits to the post-conviction hearing.
Those exhibits include: a copy of the search warrant; the typewritten statements of Mr.
Hilliard and Mr. Macklin; a transcript of the federal suppression hearing conducted on
November 20, 2009; a July 26, 2010 transcript of the motion for a continuance; the trial
transcript of the cross-examination of Detective Hanks; a one-page computer print-out
showing the various dates and actions of disciplinary proceedings against Javier Bailey
by the Board of Professional Responsibility; a “Petition for Discipline” filed against Mr.
Bailey on September 16, 2009; a supplemental disciplinary petition filed against Mr.
Bailey on April 28, 2010; an April 26, 2012 press release showing Mr. Bailey’s
disbarment; the trial transcript of Mr. Bailey’s examination; the Petitioner’s May 21,
2008 arrest ticket; the affidavit of complaint; the Petitioner’s jail records; the Petitioner’s
intake papers; certificates earned by the Petitioner while incarcerated; an August 5, 2010
pretrial motion transcript about the enhanced courtroom security measures; and the
transcript of the motion for new trial.
After the conclusion of the proof, the post-conviction court denied the Petitioner
relief in an extensive written order filed on April 11, 2016, concluding therein that the
Petitioner had failed to establish his claims of ineffective assistance of counsel. This
timely appeal followed.
ANALYSIS
On appeal, the Petitioner argues (1) that trial counsel was ineffective for failing to
inform the Petitioner that he had a constitutional right to a trial before a different judge
than the one who signed the search warrant for the Petitioner’s automobile; (2) that trial
counsel was ineffective for failing to seek recusal of the trial judge because the trial judge
had an ex parte communication with a head deputy that led to enhanced courtroom
security procedures, evincing the trial judge’s bias against the Petitioner, and because the
trial judge was the same judge who issued the search warrant; (3) that trial counsel was
ineffective for failing to challenge the warrantless search of the Petitioner’s vehicle,
failing to challenge the search warrant by requesting a Franks v. Delaware, 438 U.S. 154
(1978) hearing,3 and failing to challenge the Petitioner’s illegal detention effectuated
without probable cause and without an arrest warrant and solely for the purpose of
gathering additional evidence against the Petitioner; and (4) that trial counsel failed to
adequately impeach an attorney witness who was facing disciplinary action by the Board
3
The Supreme Court in Franks held that, if a criminal defendant makes a sufficient showing that an
affiant knowingly, intentionally, or recklessly included in a search warrant affidavit a false statement
material to probable cause, the Fourth Amendment requires the court to conduct an evidentiary hearing at
his request. 438 U.S. at 171-72.
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of Professional Responsibility at the time of the Petitioner’s trial. We will address each
of the Petitioner’s issues in turn.
Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure 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). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. When a court
reviews a lawyer’s performance, it “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Additionally, a
reviewing court “must be highly deferential and ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
State v. Honeycutt, 54 S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at
689). We will not deem counsel to have been ineffective merely because a different
strategy or procedure might have produced a more favorable result. Rhoden v. State, 816
S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, however, that “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to undermine
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confidence in the outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must
establish that his counsel’s deficient performance was of such a degree that it deprived
him of a fair trial and called into question the reliability of the outcome.” Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn.
1999)). “A reasonable probability of being found guilty of a lesser charge . . . satisfies
the second prong of Strickland.” Id.
The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we
are bound by the post-conviction court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of witnesses,
the weight and value to be given their testimony, and the factual issues raised by the
evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.
I. Right to Different Judge and Recusal
The Petitioner argues that trial counsel was ineffective for failing to inform him
that he had a constitutional “right to have a different judge oversee the trial than the judge
who issued the search warrant,” citing Hamilton v. State, 403 S.W.2d 302 (Tenn. 1966),
in support of his assertion. In that same vein, the Petitioner argues that trial counsel was
ineffective for failing to file a motion to recuse the trial judge because the trial judge had
an ex parte communication with a head deputy that led to enhanced courtroom security
procedures, evincing the trial judge’s bias against the Petitioner, and because the trial
judge was the same judge who issued the search warrant for the Petitioner’s automobile.
The Petitioner also notes that he “asked for a recusal” of the trial judge during the hearing
on the State’s motion for a continuance and that the trial judge told him at the motion for
new trial hearing that he “would have been entitled to . . . a recusal, if he had asked for
it.” Finally, while acknowledging that in Hawkins v. State, 586 S.W.2d 465 (Tenn.
1979), our supreme court “pointed out that issuing a search warrant does not
automatically make a judge impartial,” the Petitioner asserts that this case “is different
due to allegations of the affiant[’s] withholding information about the informant from the
issuing judge.” According to the Petitioner, the trial judge “would have been a potential
fact witness during any motion to suppress.” He concludes, “The prejudice in this case
was that the motion for recusal would have resulted in a trial in a different courtroom
with a completely different trial and sentencing judge and a potentially different
prosecutor.”
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The State responds that the post-conviction court did not err “because Tennessee
law does not forbid a judge who signed a search warrant from sitting in judgment of a
case.” According to the State, a motion to recuse would have been futile based upon the
holding in Hawkins and, therefore, the Petitioner has not established deficient
performance.
The Petitioner filed a reply brief, contending that, regardless of the Hawkins
court’s holding, “the State cannot escape the reality that the trial court explicitly agreed
recusal might have been proper, had counsel for [the Petitioner] raised the issue.” The
Petitioner also notes the heightened security measures at trial due to an ex parte
communication as further evidence of the trial judge’s bias and submits that his “request
for disqualification was not based solely on the search warrant[.]” The Petitioner
continues, although “[t]rial counsel opposed the heightened security measures,” trial
counsel “did not seek disqualification” of the trial judge despite the Petitioner’s request.
The Petitioner claims that, at the motion for new trial hearing, the trial judge stated
the Petitioner “would have been entitled to a Franks hearing and a recusal, if he had
asked for it.” That is somewhat of an overstatement of the trial judge’s commentary at
the motion for new trial hearing. Instead, the trial judge made the following remarks
indicating that he would have allowed another judge to hear the suppression issue if he
had been asked: “[I]f anyone wanted to challenge this search warrant that I would allow
this to be randomly assigned back to the Criminal Court Clerk’s Office to give to another
[j]udge, to hear the search warrant issue.”; “[I]f [trial counsel] had wanted me to have a
hearing on the search warrant, I would have been glad to have let another [j]udge do it.”;
and “I would have been glad to recu[se] myself of any suppression motion, if been asked,
but I was never asked to and we never had a hearing on the warrant.” None of these
comments signify that the trial judge would have recused himself from presiding over the
Petitioner’s trial. Even so, any gratuitous comments made by the trial judge at the motion
for new trial hearing are not binding on this court regarding the ultimate issues presented
here.
A trial judge “is not disqualified from hearing a case because he or she has
knowledge of the facts of the case.” State v. Thornton, 10 S.W.3d 229, 237 (Tenn. Crim.
App. 1999) (citing State ex rel Phillips v. Henderson, 423 S.W.2d 489, 492 (Tenn.
1968)). Likewise, a judge “who initially issues a search warrant is not thereafter so
interested in the cause as to be disqualified[.]” Hawkins, 586 S.W.2d at 466.
What is more, this court has already addressed the issue of the Petitioner’s right to
a different trial judge. The Petitioner appealed the summary dismissal of his May 2016
pro se petition for a writ of habeas corpus, wherein he argued that the trial judge’s
signing the search warrant and presiding over his trial deprived the trial court of
jurisdiction. See Sheddrick Harris v. Randy Lee, Warden and State of Tennessee, No.
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E2016-01573-CCA-R3-HC, 2016 WL 7176984, at *1 (Tenn. Crim. App. Dec. 9, 2016),
perm. app. denied (Tenn. Mar. 9, 2017). In his habeas corpus petition, the Petitioner
again relied on Hamilton, 403 S.W.2d 302, and the trial judge’s comments at the motion
for new trial hearing in support of his argument. Id. at *1.
This court first stated that the Petitioner’s reliance on Hamilton was misplaced,
reasoning as follows:
In Hamilton, the defendant sought appellate relief on the basis that
the criminal court judge who presided over the defendant’s trial had also
issued the arrest warrant in his capacity as a general sessions court judge.
[403 S.W.2d] at 302. Our supreme court concluded that the defendant’s
constitutional rights were violated by the judge’s signing the arrest warrant
in his capacity as a general sessions court judge and by the same judge’s
presiding over the defendant’s trial in his capacity as a criminal court judge.
Id.; see Tenn. Const. art. 6, § 11 (“No Judge of the Supreme or Inferior
Courts shall preside on the trial of any cause . . . in which he may have
presided in any inferior Court, except by consent of all the parties.”);
T[enn]. C[ode] A[nn]. § 17-2-101(4) (2009) (“No judge . . . shall be
competent, except by consent of all parties, to sit . . . [w]here the judge . . .
has presided on the trial in an inferior court[.]”); see also Hawkins[], 586
S.W.2d [at] 465 []).
Harris, 2016 WL 7176984, at *2. After deciding that the constitutional violation at issue
in Hamilton was cognizable in a post-conviction proceeding not a habeas corpus petition,
this court nonetheless addressed the merits of the issue and, noting the procedural posture
of the case, determined that the Petitioner was not entitled to relief. Id. at *3. In so
concluding, this court explained,
[T]he record reflects that the judge who signed the search warrant and who
presided over the trial acted, in both instances, pursuant to his authority as a
criminal court judge. Nothing prohibits a criminal court judge from issuing
a search warrant relative to an individual’s property and later presiding over
the individual’s criminal trial. The search warrant attached to the petition
for a writ of habeas corpus reflects that it was issued on May 21, 2008, by
Criminal Court Judge Chris Craft. The record also reflects that the same
judge, in his capacity as a criminal court judge, presided over the
Petitioner’s trial.
Id. Therefore, no inferior court was involved; article 6, section 11 of the Tennessee
Constitution was not implicated; and no constitutional provisions were violated.
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Again, the Petitioner is not entitled to relief. We agree with the post-conviction
court that a trial judge’s issuing a search warrant would not disqualify the same judge
from presiding over the case at a later date and that the Petitioner has failed to prove
ineffective assistance of counsel for any failure to be so informed. E.g., Herman
McKinley v. State, No. W2016-02351-CCA-R3-PC, 2018 WL 799166, at *5 (Tenn.
Crim. App. Feb. 8, 2018) (citing Harris, 2016 WL 7176984, at *3); State v. William
Lance Walker, No. M2011-02588-CCA-R3-CD, 2013 WL 5436704, at *14 (Tenn. Crim.
App. Sept. 27, 2013) (citing Thornton, 10 S.W.3d at 237).
Furthermore, the Petitioner has also not established his factual allegation by clear
and convincing evidence that the trial judge would be required to testify as a fact witness
in this case regarding the falsity or truth of the affiant’s statements in the search warrant
affidavit. If the falsity of certain statements in the affidavit is established by a
preponderance of the evidence, then the falsehoods are removed from the affidavit, and
the court will determine whether the information remaining in the affidavit is sufficient to
support a finding of probable cause. Franks, 438 U.S. at 155-56. We see no need, under
normal circumstances, why the judge who issued the search warrant is a needed witness
at a Franks hearing. The Petitioner’s logic is “flawed because trial judges [are] asked to
review their previous rulings on other matters, including whether to grant a motion for a
new trial.” See Walker, 2013 WL 5436704, at *13. “[T]he judicial system [is] based on
the notion that trial judges review their own rulings for mistakes and erroneous findings.”
See id. “It has long been provided . . . that the magistrate who issues a search warrant
may hear and determine any contests concerning its validity or the grounds upon which it
was issued.” See id. (quoting Hawkins, 586 S.W.2d at 465). The Petitioner has failed to
demonstrate ineffective assistance in this regard.
Regarding trial counsel’s failure to seek recusal due to any ex parte
communication involving enhanced security procedures, the Petitioner argues that the
State ignored this ground for post-conviction relief in its brief. However, the Petitioner
did not mention this allegation on appeal until his reply brief. Issues raised for the first
time in a reply brief are waived. See State v. Walter Francis Fitzpatrick, III, No. E2014-
01864-CCA-R3-CD, 2015 WL 5242915, at *8 (Tenn. Crim. App. Sept. 8, 2015), perm.
app. denied (Tenn. Feb. 18, 2016); State v. Franklin Sanders, No. 02C01-9305-CR-
00102, 1994 WL 413465, at *10 (Tenn. Crim. App. Aug. 10, 1994) (“The defendant
cannot change issues from his original brief to his reply brief any more than he can
change theories from the trial court to the appellate court.”), aff'd, 923 S.W.2d 540 (Tenn.
1996); see also Tenn. Ct. Crim. App. R. 10(b); Tenn. R. App. P. 27(a)(7); Carruthers v.
State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991).
Waiver notwithstanding, the August 5, 2010 pretrial motion transcript reflects that
the trial judge implemented heightened security measures after a discussion with “[his]
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head deputy” about the dangerousness of the Petitioner. The transcript indicates that the
trial judge imposed these procedures in light of the Petitioner’s record, which included
intimidating a witness, “the alleged facts of the case, from talking with the State of
Tennessee, . . . [and] input from the Federal Gang Task Force.” Accordingly, the trial
judge was informing the Petitioner and his counsel about the nature of those
conversations. Moreover, trial counsel did object to the heightened security measures
and that issue was raised in the Petitioner’s direct appeal. On direct appeal, this court
concluded that “the trial court did not abuse its discretion by imposing additional security
measures in the courtroom[,]” properly “consider[ing] the particular circumstances
presented in this case and t[aking] appropriate measures to protect all the participants in
the trial.” Harris, 2012 WL 29203, at *10. This court further determined that the
Petitioner had not “establish[ed] that the increased security measures utilized by the trial
court prejudiced his trial.” Id. (citing State v. Taylor, 771 S.W.2d 387, 396 (Tenn.
1989)). In light of these findings on direct appeal, the Petitioner has shown neither
deficient performance nor prejudice for trial counsel’s failure to seek recusal of the trial
judge on this ground.
Finally, the Petitioner contends that the post-conviction court erred by relying on
trial counsel’s testimony that he believed the Petitioner could get a fair trial in the trial
judge’s courtroom as a basis for “ruling that failing to file a motion for recusal was a
matter of trial strategy.” According to the Petitioner, “nothing in the record indicates
failing to file a motion for recusal was a tactical or strategic decision.” Because the
Petitioner’s underlying issues regarding recusal of the trial judge are without merit, trial
counsel was not required to file a futile motion irrespective of the deliberate nature of the
decision. See, e.g., Kyrie T. Adams v. State, No. W2011-02051-CCA-R3-PC, 2012 WL
6206043, at *6 (Tenn. Crim. App. Dec. 11, 2012) (“As such, trial counsel’s failure to file
a motion on grounds that would have ultimately been fruitless cannot be considered
ineffective assistance of counsel.”).
II. Motion to Suppress
The Petitioner contends that trial counsel was ineffective because he failed to file a
motion to suppress challenging the initial warrantless search of his car, the subsequent
search warrant affidavit, and the failure to promptly take him before a magistrate after his
arrest. Because it is important to our resolution of these issues, we note that trial counsel
did file a motion to suppress the evidence in the Petitioner’s federal case challenging the
Petitioner’s arrest and the search of the black Cadillac. Although the written motion
itself is not a part of the record on appeal, the transcript of the federal suppression hearing
is included. The federal judge denied suppression of the evidence, concluding that there
was probable cause for the Petitioner’s arrest, that there was not a full search of the car
prior to the issuance of the warrant, that the search warrant was valid, and that even if the
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warrant was invalid, the search would have been justified as either incident to a valid
arrest or under the inevitable discovery doctrine.
A. Warrantless Search and Search Warrant
The Petitioner submits that officers searched his car outside of the muffler shop
before securing a search warrant. The Petitioner also alleges that the following three
statements made by Officer Hanks in the affidavit supporting the search warrant were
false: (1) “[N]o currency was found on the scene.”; (2) “Macklin did not know how [the
Petitioner] left the scene.”; and (3) “Terrance Johnson told officers that he saw [the
Petitioner] in this black Cadillac.” Accordingly, trial counsel, in the Petitioner’s opinion,
should have filed a motion for a hearing pursuant to Franks. The State replies that trial
counsel made a reasonable strategic decision not to file a suppression motion in state
court when the matter had been “fully litigated” unsuccessfully in federal court, instead,
“focus[ing] his time and efforts elsewhere rather than hoping for some different result in
state court based on the vague possibility of the Tennessee Constitution’s providing some
greater protection.”
Regarding the initial warrantless entry into the Petitioner’s automobile at the
muffler shop, MPD Officer Michael Garner testified at the federal suppression hearing
that he did not search the Petitioner’s Cadillac on the scene. Officer Garner did admit to
briefly entering the vehicle: “I opened the driver’s side door to make sure there was no
damage inside the vehicle and maybe list items of value that may have been in the car to
remove liability when we send it to our lot for storage.” Officer Garner stated that he
observed only “registration papers and a couple of tickets sitting under the center
armrest.” This was confirmed by Detective Hanks’s testimony at the Petitioner’s trial.
Harris, 2012 WL 29203, at *5. None of the evidence obtained during the preliminary
entry of the Petitioner’s car was used to obtain the search warrant, and all other items
inside the car—the murder weapon and money—were seized after the search warrant was
secured. Based upon Officer Garner’s testimony, these items were in plain view.
Nonetheless, the evidence was discoverable pursuant to exceptions to the warrant
requirement discussed below.
Turning to the Franks issue, the United States Supreme Court has concluded that
evidence seized pursuant to a search warrant is subject to suppression when the
supporting affidavit includes deliberate or recklessly false statements by the affiant that
are material to the establishment of probable cause. 438 U.S. at 155-56. Our Tennessee
Supreme Court has concluded that two circumstances exist that “authorize the
impeachment of an affidavit sufficient on its face, (1) a false statement made with intent
to deceive the [c]ourt . . . and (2) a false statement, essential to the establishment of
probable cause, recklessly made.” State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978).
“Recklessness may be established by showing that a statement was false when made and
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that affiant did not have reasonable grounds for believing it, at that time.” Id.
“[F]raudulent misrepresentation of a material fact will invalidate a search warrant.” Id. at
406. However, “[a]llegations of negligence or innocent mistakes are insufficient to
invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293, 297 (Tenn. Crim. App.
1999); see Franks, 438 U.S. at 171. In order to invalidate a search warrant, the false
statement must be “the only basis for probable cause set out in the affidavit.” State v.
Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App. 1980).
We agree with the State and the post-conviction court that trial counsel had the
unique benefit of hindsight and made a strategic decision not to file a similar motion in
state court. While it is accurate that the Tennessee Constitution provides more protection
than the Fourth Amendment, the Petitioner provides no explanation as to how this would
have changed the results of a motion to suppress in state court, and we know of none.
Because there was no apparent reason to anticipate any more success with the same
suppression motion in state court, we do not question counsel’s strategical decision. See
e.g., Bruce Reliford v. State, No. W2012-02339-CCA-R3-PC, 2013 WL 6199280, at *9
(Tenn. Crim. App. Nov. 27, 2013) (noting that trial counsel “had the unique benefit of
hindsight” because “the case had already been tried in federal court, and they knew which
strategies were unsuccessful”).
While we also believe it is true that the Petitioner has failed to show that he was
entitled to a Franks hearing, we decline to digress into a lengthy discussion on whether
the statements made by Officer Hanks in the affidavit were reckless in nature or whether
the search warrant was supported by probable cause without those statements. This is so
because, even if the search warrant was invalid, we agree with the federal court and the
post-conviction court that the police lawfully searched the Petitioner’s Cadillac pursuant
to valid exceptions to the warrant requirement.
At the outset, we note our agreement with the post-conviction court and the federal
court that the Petitioner’s arrest was supported by probable cause. “Probable cause for an
arrest without a warrant exists if, at the time of the arrest, the facts and circumstances
within the knowledge of the officers, and of which they had reasonably trustworthy
information, are ‘sufficient to warrant a prudent man in believing that the [defendant] had
committed or was committing an offense.’” State v. Bridges, 963 S.W.2d 487, 491
(Tenn. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). The police had the
statements of Mr. Hilliard and Mr. Macklin indicating that they helped arrange a drug
deal between the Petitioner and the victim on the evening the victim was shot and killed.
Mr. Macklin was present when the Petitioner tried to rob the victim, made him undress,
and shot him in the leg. Mr. Macklin dialed 9-1-1 when he later discovered the victim
and waited until police arrived. Mr. Hilliard stated that he picked up the Petitioner near
the victim’s home, that the Petitioner had a black bag in his possession at that time, and
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that the Petitioner made some questionable statements during the car ride indicating that
he had taken some money from the victim. The victim was found shot to death inside his
Memphis home, and a substance that appeared to be cocaine was present therein.
Therefore, the Petitioner has failed to show deficient performance from trial counsel’s
failure to challenge the Petitioner’s arrest for lack of probable cause.
Next, turning to the inventory exception to the warrant requirement, law
enforcement had the option of having the Petitioner’s car towed and subsequently
searched; a procedure that occurred in this case. See State v. Clay Stuart Gregory, No.
M2012-00546-CCA-R3-CD, 2013 WL 6187919, at *20 (Tenn. Crim. App. Nov. 25,
2013) (holding that a warrantless search could be conducted after the seizure of the
automobile); State v. Carrie Lynn Ronewicz, No. W2011-01332-CCA-R3-CD, 2012 WL
6719646, at *20 (Tenn. Crim. App. Dec. 26, 2012) (same). While the State must show
that impounding the vehicle was necessary, see State v. John Beasley Seay, No. M2011-
02769-CCA-R3-CD, 2013 WL 3777169, at *6 (Tenn. Crim. App. Jul. 16, 2013), the
search would have likely been justified pursuant to this exception. There is nothing in the
direct appeal record to show that impounding the Petitioner’s car was inappropriate under
the guidelines set forth in Drinkard v. State, 584 S.W.2d 650, 652-53 (Tenn. 1979).4
Therefore, “it was incumbent on the Petitioner to establish an adequate record at his post-
conviction hearing upon which this [c]ourt could determine the likelihood of success of a
motion to suppress.” Jason Lee Fisher v. State, No. M2014-02327-CCA-R3-PC, 2015
WL 5766521, at *6 (Tenn. Crim. App. Oct. 2, 2015) (quotation omitted).
In addition, applying the automobile exception to the warrant requirement, courts
of this state have upheld warrantless vehicle searches when law enforcement had
probable cause to believe that the vehicle contained contraband or evidence of criminal
activity. See State v. Leveye, 796 S.W.2d 948, 949 (Tenn. 1990) (upholding the search
of a defendant’s car after his arrest pursuant to the automobile exception where the car
was parked in a truck stop lot approximately seventy-five yards from the place where the
defendant was arrested); Ronewicz, 2012 WL 6719646, at *20 (concluding that the
victim’s identification of stolen items in the van gave probable cause to search); State v.
Jason Paul Sherwood, No. M2005-01883-CCA-R3-CD, 2007 WL 189376, at *9 (Tenn.
4
In Drinkard, our supreme court set forth guidelines to determine the validity of an inventory search of a
vehicle:
[I]f the circumstances that bring the automobile to the attention of the police in the first
place are such that the driver, even though arrested, is able to make his or her own
arrangements for the custody of the vehicle, or if the vehicle can be parked and locked
without obstructing traffic or endangering the public, the police should permit the action
to be taken rather than impound the car against the will of the driver and then search it.
Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to
take his vehicle into custody.
584 S.W.2d at 653.
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Crim. App. Jan. 26, 2007) (concluding that there was probable cause to search a van
when police knew that a shooting had occurred two hours earlier at a salvage yard and a
suspect had driven off in a white van, and when the defendant and van matched the
description of the suspect, the defendant was present in an area that the suspect was
thought to live, and there was an engine visible in the van’s interior); State v. Leslie
Darrell Debord, No. E2001-02808-CCA-R3-CD, 2003 WL 21476507, at *5-6 (Tenn.
Crim. App. June 26, 2003) (finding probable cause to seize the truck when police found a
stolen ATV in a secluded area next to the truck which was still warm and contained
machinery in the back); State v. Andre Anthony, No. W2002-01377-CCA-R3-CD, 2003
WL 23100339, at *11 (Tenn. Crim. App. Dec. 30, 2003) (concluding that, when the
defendant was apprehended while trying to use a stolen credit card, had no identification
other than the victim’s, and was parked nearby in a public parking lot, there was probable
cause to believe that the vehicle contained other property reported stolen and belonging
to the victim); Tony A. Makoka v. State, No. 01C01-9603-CC-00124, 1997 WL 469528,
at *3 (Tenn. Crim. App. Aug. 15, 1997) (determining probable cause existed to search a
vehicle when a shooting had just taken place, police saw the petitioner standing in the
area with or near a gun, and ammunition could be seen in the vehicle). Accordingly, the
Petitioner has failed to establish ineffective assistance of counsel in this regard.
B. Illegal Arrest
The Petitioner also argues that trial counsel was ineffective for failing to file a
motion to suppress “evidence and statements obtained as a result of the [Petitioner’s]
being held in custody without an arrest warrant” in violation of State v. Huddleston, 924
S.W.2d 666 (Tenn. 1996), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
According to the Petitioner, he was arrested on May 21, 2008, without the issuance of an
arrest warrant, and he was not taken before a magistrate until May 27, 2008. The
Petitioner contends that the MPD arrested him without probable cause “in order to
develop sufficient evidence to establish probable cause” and that he “was not brought in
front of the magistrate because the State needed time to establish a basis for the arrest.”
The State responds that the Petitioner’s arrest “was legal and founded upon
probable cause and [that] the exclusionary rule does not apply to evidence obtained
before a legal detention exceeds forty-eight hours in duration[.]” Accordingly, the State
surmises that the Petitioner has failed to establish his ineffective assistance of counsel
claim.
In Huddleston, our supreme court held that a judicial determination of probable
cause must occur within forty-eight hours of a warrantless arrest to protect a defendant’s
Fourth Amendment rights. 924 S.W.2d at 672 (adopting McLaughlin, 500 U.S. 44). A
confession obtained in violation of this forty-eight-hour time line is subject to being
excluded under a “fruit of the poisonous tree” analysis. Id. at 674.
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The Petitioner asserts that “evidence and statements” should be excluded as “fruit
of the poisonous tree” because they were obtained during his illegal detention while the
police built a case against him. It appears that the Petitioner is maintaining that the
evidence seized from his car, which was searched the same day he was arrested, should
have been suppressed due to his illegal detention. He also notes that, “[w]hile this case
did not directly deal with a confession,” he was brought “to the homicide bureau for
questioning immediately after his arrest.” While the Petitioner was questioned
“immediately after his arrest” at the homicide bureau, Detective Stark testified that the
Petitioner refused to give a statement. The Petitioner provides little insight into what, if
any, statements were used against him at trial that should have been suppressed.
Regardless, the Petitioner makes no real argument that any evidence was obtained
after the forty-eight-hour-mark; instead, his argument is that he was arrested without
probable cause and thereafter illegally detained. A delay shorter than forty-eight hours
may still be unreasonable and unconstitutional if it is “for the purpose of gathering
additional evidence to justify the arrest” or if it is “motivated by ill will against the
arrested individual[.]” McLaughlin, 500 U.S. at 56. As discussed above, the Petitioner’s
arrest was based upon probable cause. Thus, in order to prevail on a Huddleston claim,
the Petitioner would have been required to show that the government delayed the
probable cause hearing for unreasonable purposes, such as out of ill will or to gather
additional evidence. See McLaughlin, 500 U.S. 56-57. In the record, there is no evidence
of any such unreasonable purpose. Consequently, even if trial counsel had raised this
issue in a motion to suppress, the trial judge would have been compelled to find that there
was no Huddleston violation. When, for Strickland purposes, the Petitioner’s allegations
of deficient conduct is that his counsel failed to raise a claim that would have been denied
in any event, it is clear that the Petitioner has failed to demonstrate ineffective assistance
of counsel. See, e.g., Oscar C. Wells v. State, No. W2009-02231-CCA-R3-PC, 2010 WL
3583967, at *3 (Tenn. Crim. App. Sept. 15, 2010) (finding no ineffective assistance of
counsel for failing to raise a Huddleston issue).
Moreover, as noted above, trial counsel did file a motion to suppress in federal
court, challenging the Petitioner’s arrest, but the federal judge determined that the
Petitioner’s arrest was based upon probable cause. Again, trial counsel made a strategical
judgment not to file a similar motion in state court. Therefore, the post-conviction court
did not err in denying the Petitioner’s request for relief.
III. Impeachment of Javier Bailey
As his final issue, the Petitioner avers that trial counsel was ineffective for failing
to impeach attorney Javier Bailey with evidence of his disciplinary infractions.
According to the Petitioner, Mr. Bailey “was called [at the Petitioner’s trial] to establish
that . . . Rocky Hilliard was at Mr. Bailey’s office and could not have planted a gun in the
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black Cadillac.” The Petitioner maintained that, because Mr. Bailey “faced charges of
lack of candor to the tribunal and lack of diligence” at the time of the Petitioner’s trial,
trial counsel should have attempted to impeach Mr. Bailey’s testimony that he arrived at
7:00 a.m. every morning for work. The Petitioner contends that trial counsel’s decision
not to do so was unreasonable. The State asserts the counter proposition, asserting the
reasonableness of trial counsel’s strategy.
Trial counsel said that he was aware of allegations against Mr. Bailey at the time
of the Petitioner’s trial. Trial counsel testified, however, that he believed Mr. Bailey’s
testimony that he arrived at the office at 7:00 a.m. daily was inherently unbelievable and
that he did not want to attack another lawyer in front of the jury with matters that had not
yet been adjudicated. The post-conviction court found that this was “a matter of trial
strategy made with full information.” We agree.
Initially, we note that our review of Mr. Bailey’s trial testimony does not uncover
the statement to which the Petitioner refers regarding Mr. Bailey’s everyday arrival at
7:00 a.m. Mr. Bailey testified that, after Mr. Hilliard phoned him in “wee hours of the
morning” on May 21, 2008, he told Mr. Hilliard to meet him at his office before it opened
at 8:00 a.m. Mr. Bailey stated simply that “[he] g[o]t up very early anyway, and so he
told [Mr. Hilliard] that [he] would meet [Mr. Hilliard] at [his] office when nobody else
was there[,]” i.e., prior to 8:00 a.m.
Moreover, the Petitioner asserts that, prior to his trial, Mr. Bailey’s license had
been suspended once already and that Mr. Bailey had been censured. From the
documentation submitted at the post-conviction hearing, all that is apparent is that Mr.
Bailey was “on probation” with the Board of Professional Responsibility in 2004 and that
he was censured in 2007. While petitions for discipline had been filed against Mr. Bailey
at the time of the Petitioner’s trial, Mr. Bailey was not disbarred until April 2012.
Besides, Detective Stark testified at the federal suppression hearing corroborating much
of Mr. Bailey’s trial testimony. Detective Stark said that Mr. Hilliard arrived at the
police station around 10:00 a.m. on May 21, 2008, accompanied by Mr. Bailey.
Detective Stark also relayed that Mr. Bailey had phoned him “first thing in the morning”
when Detective Stark arrived at work. We cannot conclude that trial counsel was
deficient for failing to impeach Mr. Bailey with mere allegations of misconduct, the
introduction of which may have resulted in a mini-trial concerning those collateral
matters and unnecessarily alienated the jury.
In addition, the Petitioner asserts that “the testimony of Javier Bailey was one of
the only distinctions in proof from the federal trial” and that, “had trial counsel properly
impeached the witness, a reasonable probability exists that the result would have been
different, and would have resulted in an acquittal like the federal trial.” We cannot assess
the veracity of the Petitioner’s claim without the record of the federal trial. We only
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know that the Petitioner was acquitted of a federal firearm possession charge in
connection with these events. As such, we cannot speculate what might have happened at
the Petitioner’s state trial had Mr. Bailey been so impeached. See Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that, when an ineffective assistance
of counsel claim is predicated upon trial counsel’s failure to present witnesses or
introduce evidence, such witnesses’ testimony and evidence should be offered at the
evidentiary hearing in order for the post-conviction court to determine whether the failure
to call a witness or introduce evidence prejudiced the petitioner). The Petitioner has
failed to demonstrate that he was prejudiced by trial counsel’s alleged failure.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, we affirm the
judgment of the post-conviction court.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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