Michael Bland v. State of Tennessee ( 2021 )

01/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 10, 2020
MICHAEL BLAND v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-05597 James M. Lammey, Judge
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No. W2020-00454-CCA-R3-PC
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Michael Bland, Petitioner, was indicted for and convicted of first-degree murder.
Petitioner received a life sentence. This Court affirmed Petitioner’s conviction and
sentence on direct appeal, and our supreme court denied further appellate review. State v.
Michael Bland, No. W2014-00991-CCA-R3-CD, 2015 WL 3793697, *1 (Tenn. Crim.
App. June 16, 2015), perm. app. denied (Tenn. Oct. 15, 2015). Petitioner filed a petition
for post-conviction relief in which he raised claims of ineffective assistance of counsel.
After an evidentiary hearing, the post-conviction court denied relief. Finding no error,
we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
Jason M. Matthews, Memphis, Tennessee, for the appellant, Michael Bland.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Greg Gilbert,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
Petitioner was indicted by the Shelby County Grand Jury for one count of first
degree premeditated murder. After a jury trial, Petitioner was convicted as charged and
sentenced to life imprisonment. Petitioner appealed his conviction and this Court
affirmed. Michael Bland, 2015 WL 3793697, at *1.
The following facts were presented by this Court on Petitioner’s direct appeal.
Prior to his murder, the victim allegedly robbed Petitioner during a dice game. Id. On
July 12, 2012, Petitioner and his brother, David Bland, armed themselves after Petitioner
spotted the victim upon the victim’s return to his residence. Id. Petitioner and David
Bland were with Christopher Williams at the time. Id. Mr. Williams claimed that
Petitioner planned to shoot the victim in the legs and rob him. Id. at *2. Mr. Williams
recalled that he and David Bland remained on a side street while Petitioner waited for the
victim in a concealed spot. Id. at *1. When the victim approached, Petitioner fired at
him multiple times. Id.
Decorrio Morgan, a neighbor, heard a gunshot and saw Petitioner and another man
standing over the victim. Id. at *2. Mr. Morgan initially stated that he observed
Petitioner shoot the victim. Id. In a statement to prosecutors, he stated that it was Mr.
Williams who shot the victim, but at trial he was certain that Petitioner shot the victim.
Id. Rosie Mae Fason lived in the area and testified that she heard gunshots and saw two
African American men run through the alley. Id. Francie Hunt, another neighbor,
testified that she passed Petitioner, Mr. Williams, and another man. Id. Ms. Hunt
testified that the men were carrying guns and that she heard Petitioner state, “I shot that
bitch.” Id. Jessica Bland, Petitioner’s sister, testified that she drove Petitioner to another
sister’s house on the day of the shooting. Id. at *3. Ms. Bland admitted that her
testimony at trial differed from her pretrial statements to police. Id. She admitted that
she told police that she was aware that the victim robbed her brothers during a dice game.
Id. Ms. Bland informed police that after the robbery, Petitioner stated that he was going
to “beat that boy.” Id.
Petitioner filed a petition for post-conviction relief in which he argued that trial
counsel was ineffective because he failed to properly investigate the case, failed to call
witnesses to testify on Petitioner’s behalf, failed to raise all viable issues on appeal,
failed to object to the trial court’s omission of a second degree murder jury instruction,
failed to argue that the State did not prove Petitioner committed premeditated first degree
murder, and failed to have Mr. Williams deemed an accomplice.
The post-conviction court held an evidentiary hearing on February 19, 2020.
Rachel Geiser testified at the hearing that she worked as an investigator for Petitioner’s
trial counsel. Ms. Geiser became aware of a potential witness, Rodriquez Blackwell,
during her investigation prior to the trial. She interviewed Mr. Blackwell and created a
transcript of the interview. Mr. Blackwell told Ms. Geiser that he saw Petitioner and
David Bland about forty-five minutes before the victim’s murder. Mr. Blackwell was
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sitting outside with the victim. When the victim left, Mr. Blackwell entered his
residence. While inside, Mr. Blackwell heard a gunshot. He then went outside and heard
three more gunshots. Mr. Blackwell saw the victim on the ground, and he saw “J Rock’s
son” leaving the scene. Ms. Geiser was unable to ascertain the identity of J Rock or his
son. Mr. Blackwell claimed that Petitioner was not present during the victim’s murder.
Ms. Geiser recalled that the defense’s theory was that Mr. Williams shot the victim. Ms.
Geiser interviewed Petitioner’s family members to investigate a possible alibi.
Trial counsel filed a subpoena for Mr. Blackwell to appear at Petitioner’s trial, but
ultimately decided not to call Mr. Blackwell as a witness because Mr. Blackwell’s
testimony did not support trial counsel’s theory that Mr. Williams was the shooter. Trial
counsel recalled that he interviewed Mr. Williams and that Mr. Williams stated that it
was Petitioner’s idea to shoot the victim. Trial counsel recalled that Mr. Morgan
identified both Petitioner and Mr. Williams as the shooter at different times. Trial
counsel remembered that Ms. Hunt testified that she saw Petitioner running away from
the murder scene. Trial counsel stated that he interviewed Petitioner’s family members,
but did not come up with a “solid alibi witness.” He noted that Ms. Bland testified at
trial, and her testimony contradicted what Petitioner’s other sister, Jennifer Miller, stated
at the post-conviction hearing. Trial counsel explained that it was more effective to
cross-examine a State witness than it would be to call a witness for direct-examination.
Trial counsel argued that the trial court should instruct the jury that Mr. Williams was an
accomplice to the murder as a matter of law so that the jury could not convict Petitioner
on Mr. Williams’ testimony alone. The trial court ruled that the jury should make the
determination as to whether Mr. Williams was an accomplice.
Ms. Miller testified that prior to trial, she informed defense counsel that Petitioner
arrived at her house about 2:30 p.m. Her house was about 20-30 minutes away from the
murder scene. After Petitioner arrived at her house, Ms. Miller and Ms. Bland went to
their mother’s house, located near the murder scene. Upon arrival, Ms. Miller saw seven
or eight police cars. Ms. Miller claimed that she saw Mr. Williams in one of the police
cars. She further claimed that she heard Mr. Williams state that he “did it for the A.”
She clarified that “A” was the nickname that the street had been given. Ms. Miller
testified that Ms. Hunt informed Petitioner’s stepfather that if Petitioner’s family “gave
her more than what they were giving her, then she would say whatever [Petitioner’s
family] wanted her to say.” Ms. Miller admitted that Ms. Hunt never acknowledged that
she was paid for her testimony.
Petitioner testified that defense counsel should have called Mr. Blackwell to
testify. Petitioner claimed that Mr. Blackwell would have testified that Petitioner did not
shoot the victim and that Mr. Blackwell’s testimony would have supported his alibi
defense. Petitioner claimed he was at Ms. Miller’s house during the shooting. He
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admitted that the victim robbed him prior to the victim’s murder. Petitioner admitted that
Ms. Bland testified at trial that Petitioner vowed revenge for the robbery. He also
claimed that David Bland was present at Ms. Miller’s house with him during the
shooting. In 2019, Petitioner received a letter from Mr. Williams that claimed Mr.
Williams testified against Petitioner because Mr. Williams believed that Petitioner was
trying to frame him for the victim’s murder. Petitioner denied that he killed the victim.
Petitioner claimed that he instructed Mr. Williams to rob the victim.
The post-conviction court stated that it was “having trouble identifying any place
where [defense counsel] had deficient performance.” The post-conviction court further
stated that without finding deficient performance, “there can be no prejudice.” The trial
court surmised that it was easy to look back and “second guess the trial strategy.” The
trial court denied post-conviction relief. It is from that denial that Petitioner now appeals.
Analysis
On appeal, Petitioner argues that the post-conviction court erred in failing to
perform the proper analysis in determining if trial counsel was ineffective for not calling
Ms. Miller and Mr. Blackwell to testify on Petitioner’s behalf.1 Petitioner further argues
that the post-conviction court erred in finding that trial counsel was not ineffective for
failing to present an alternative theory of the case. The State argues that the post-
conviction court properly concluded that trial counsel’s representation of Petitioner was
reasonable and did not prejudice Petitioner. We agree with the State.
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
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Petitioner appears to abandon all other arguments from his petition on appeal. See Ronnie
Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App.
Oct. 26, 2009) (holding that claims raised in the trial court but not raised in the appellate brief are deemed
abandoned), perm. app. denied (Tenn. Apr. 16, 2010).
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conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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).
The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), 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). This Court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). However, this
deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).
Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
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364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
I. Failure to Call Witnesses at Trial
Petitioner specifically argues that the post-conviction court erred when it found
that trial counsel was not ineffective because he failed to call witnesses to testify on
Petitioner’s behalf at trial. The State argues that trial counsel’s decision not to call Mr.
Blackwell or Ms. Miller was reasonable and did not prejudice Petitioner. We agree with
the State.
As an initial note, Petitioner asserts that the testimony of Ms. Miller and Mr.
Blackwell were admissible at trial and material to Petitioner’s defense. However,
Petitioner only called Ms. Miller to testify at the post-conviction hearing. Petitioner did
not present Mr. Blackwell at the post-conviction hearing. Petitioner only presented
testimony from Ms. Geiser as to what Mr. Blackwell told her. Because Mr. Blackwell
did not testify at the post-conviction hearing, the Petitioner cannot show prejudice. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither the post-
conviction court nor this Court can “speculate or guess” about whether Mr. Blackwell’s
testimony would have affected the outcome of Petitioner’s trial. See id. Therefore,
Petitioner failed to establish by clear and convincing evidence that trial counsel’s
decision not to call Mr. Blackwell as a witness was deficient or caused Petitioner
prejudice.
Petitioner argues that the post-conviction court must determine whether the
testimony would have been admissible at trial and material to the defense. See Plyant v.
State, 263 S.W.3d 854, 869 (Tenn. 2008). Once those determinations have been made,
the post-conviction court must assess the witness’s credibility. See State v. Dych, 227
S.W.3d 21, 40 (Tenn. Crim. App. 2006). In Plyant, the issue was testimony that the post-
conviction court struck and refused to consider after finding the testimony was
inadmissible hearsay. 263 S.W.3d at 870. Here however, it is not a question of the
testimony being admissible and material or a matter of witness credibility. It is a matter
of trial strategy. As to trial counsel’s decision to not call Ms. Miller, trial counsel
testified that he did not call her because her testimony would not support the defense
theory that Mr. Williams was the shooter. Trial counsel also testified that Ms. Miller’s
story “conflicted a bit” with that of Ms. Bland, who testified for the State. Trial counsel
stated that “it is much easier to cross-examine somebody and get information that is
favorable to your client rather than on direct questioning.” Trial counsel testified that he
“didn’t want to throw a wrench into my theory that would take the jury away for [Mr.]
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Williams” as the shooter. We will not second guess a reasonable trial strategy. See
Adkins, 911 S.W.2d at 347.
The post-conviction court stated that “it’s a two prong test, you have to have
deficient performance and you have to have prejudice because of that [deficient
performance.” The post-conviction court stated it was “having trouble identifying
deficient performance.” The post-conviction court further said that trial counsel “just
wasn’t able to convince the jury that it was really Mr. Williams.” In its order, the post-
conviction court stated that Petitioner “has failed to carry his burden of proof as to either
deficient performance or prejudice.” The evidence does not preponderate against the
findings of the post-conviction court. Petitioner is not entitled to relief.
II. Failure to Present Alternate Theory
Petitioner argues that the post-conviction court erred in determining that trial
counsel was not ineffective for failing to raise an alternate theory of the case. The State
argues that trial counsel’s defense theory and trial strategy were reasonable and did not
prejudice Petitioner. We again agree with the State.
Specifically, Petitioner argues that trial counsel was deficient because he “had but
a single theory of the case – that [Mr.] Williams and not Mr. Bland, was the sole person
responsible for the murder of the victim.” Petitioner argues that trial counsel should have
presented an argument that Mr. Williams and Mr. Bland were accomplices and their
intent was “nothing more than to rob the victim.” Petitioner asserts that if trial counsel
had presented this theory it could have led to Petitioner being found guilty of a lesser
charge. However, trial counsel asked the trial court to instruct the jury that Mr. Williams
was the Petitioner’s accomplice as a matter of law. The trial court made the decision that
the jury should make the factual determination as to whether Mr. Williams was an
accomplice, and this Court affirmed that decision on direct appeal. Michael Bland, 2015
WL 3793697, at *6. Trial counsel chose a reasonable strategy and this Court will not
second guess that decision. See Adkins, 911 S.W.2d at 347. The evidence does not
preponderate against the finding of the post-conviction court. Petitioner is not entitled to
relief.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
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TIMOHTY L. EASTER, JUDGE
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