Curtis Keller v. State of Tennessee ( 2021 )

07/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 2, 2021 Session
CURTIS KELLER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-02756 J. Robert Carter, Jr.,1 Judge
No. W2020-00590-CCA-R3-PC
The petitioner, Curtis Keller, appeals the denial of his petition for post-conviction relief,
which petition challenged his convictions of especially aggravated kidnapping, aggravated
robbery, attempted aggravated robbery, aggravated burglary, and evading arrest. In this
appeal, the petitioner alleges that he was deprived of the effective assistance of trial and
appellate counsel and that the post-conviction court erred by denying his motions for a
continuance and to inspect grand jury materials. Discerning no error, we affirm the denial
of post-conviction relief.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.
Lance R. Chism, Memphis, Tennessee, for the appellant, Curtis Keller.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
This case arose from a June 2008 home invasion in Germantown, for which
the petitioner was convicted of three counts of especially aggravated kidnapping, three
counts of aggravated robbery, four counts of attempted aggravated robbery, one count of
aggravated burglary, and one count of evading arrest. State v. Curtis Keller, No. W2012-
01457-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. Jackson, Sept. 29, 2014) (Keller I).
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Judge Chris Craft recused himself upon the petitioner’s motion, and the case was transferred to
Judge Carolyn Blackett, who later recused herself. The case was then transferred to Judge J. Robert Carter,
Jr., who presided over the evidentiary hearing.
The petitioner received an effective 300-year sentence. Id. This court affirmed the
petitioner’s convictions on direct appeal, and, after remand by our supreme court to
reconsider the case in light of recent opinions, this court again affirmed the petitioner’s
convictions. Id. This court summarized the evidence at trial:
The crimes for which the [petitioner] stands convicted
arose out of a home invasion robbery at the Chan home in
Memphis. Although the [petitioner] was not physically present
at the home, he was the mastermind behind the planning and
organization of the event. As such, he was convicted of the
crimes under a theory of criminal responsibility.
On June 12, 2008, Mom Houon and Thourn Chan lived
in a three story home, and Jeffrey Land, Sr. and his daughter,
Claire Land, were living with them. Two of the Chan’s
children, Naree and Dara, were also home from college for the
summer, as was Jeffrey Land, Jr. Mom Houon and Thourn
Chan shared the master bedroom located on the first floor. The
other occupants had their own rooms on the second or third
floors of the home.
Around three o’clock in the morning, Mom Houson
[sic] was awakened by the sound of glass breaking in the home.
Thourn, her husband, went to the adjacent exercise room where
he believed the sound had come from and was confronted by
“a bunch” of masked men in dark colored clothing. The men
aimed flashlights in his face and identified themselves as police
officers. Mr. Chan was handcuffed and “dragged” back into
the bedroom where his wife remained. Although the bedroom
was dark, Mom Houson [sic] could see that several people,
armed with guns, had entered the bedroom. The men
handcuffed Mom Houson [sic], pointed guns at the couple, and
ordered them to lie face-down on the floor. Some of the men
left the room to secure the other occupants of the home.
Dara Chan was awakened by the sound of heavy
footsteps and banging doors. He heard someone yell
“Germantown Police.” He and his sister Naree Chan peered
out the doors of their respective rooms to see what was wrong.
Naree Chen [sic] was able to place a call to 911. A large
African-American man wearing a ski mask and gloves forced
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his way into Dara Chan’s bedroom, pointed a gun at his head,
and demanded to know where the money was. A second man
entered the bedroom and began searching for valuables while
the first man held him at gunpoint. After the search, the man
grabbed Dara Chan by the back of the neck, aimed the gun at
him, and dragged him down the stairs towards his parent’s
bedroom. As he went, he heard his sister Naree screaming
inside her own bedroom. One of the men had seen Naree Chan
on the phone and had taken her phone, throwing it on the floor.
Dara Chan was handcuffed and ordered to lie on the floor in
his parents [sic] bedroom.
Jeffery Land, Jr. was also awakened by someone pulling
his arms and forcibly removing him from the bed. Initially, he
was able to put the man in a headlock, but another man entered
the room, subdued him, and placed him in handcuffs. These
men also identified themselves as “Germantown Police.” The
men pointed a gun at Jeffrey Land, Jr.’s head, and he informed
the men his wallet was inside the dresser. After the men
retrieved his wallet, he was then forced out of his bedroom and
taken down the stairs to the master bedroom with the others
where they all remained at gunpoint until the intruders left.
Jeffrey Land, Sr. was awakened by men shining a light
in his face and identifying themselves as “FBI.” While lying
in his bed, he was handcuffed with his hands in front of him.
Thereafter, he was jerked from the bed and taken to the master
bedroom at gunpoint. Jeffrey Land, Sr. heard his daughter,
Claire Land, crying, and he heard someone yell at her to shut
up or that he would kill her. She, as were all the other
occupants of the house, was handcuffed and placed on the floor
in the master bedroom at gunpoint.
The intruders repeatedly asked Thourn Chan, the owner
of three jewelry and pawn shops, the location of the safe and
the jewelry. He begged the men not to harm his family and
offered to take them to the jewelry store. The intruders
slammed him to the floor. Upon learning from him that there
was not a safe in the home, the intruders ransacked the other
rooms of the home and took $5,000 from Mom Houon’s purse
which was located in the hallway. They also took Thourn
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Chan’s Cartier watch and $1,500 from a chest of drawers in the
bedroom. During this time period, the intruders kept urging
each other to hurry because the police were coming. The men
departed the home, leaving the victims handcuffed in the
bedroom. The entire incident lasted approximately ten
minutes, and the police arrived soon after the intruders
departed.
Id., slip op. at 2-3.
The petitioner filed a timely pro se petition for post-conviction relief on
March 3, 2015. The post-conviction court appointed counsel, and, in October 2016, the
petitioner filed an amended petition for post-conviction relief.2
Before a hearing on his post-conviction petition, the petitioner filed a pro se
petition for writ of error coram nobis and, with the assistance of counsel, amended the
coram nobis petition, alleging that the State erroneously “proceeded as though they did not
have [the petitioner’s] DNA sample” despite a newly-discovered 2009 report that showed
that the State indeed had a DNA sample from the petitioner and had matched that sample
to the DNA found on a ski mask. Curtis Keller v. State, No. W2019-01652-CCA-R3-ECN,
slip op. at 3-4 (Tenn. Crim. App., Jackson, Jan. 27, 2021), perm. app. denied (Tenn. May
14, 2021) (Keller II). The coram nobis court summarily dismissed the petition,
“conclud[ing] that the 2009 report contained the same information as the 2010 report . . .
[and] was merely cumulative[] and that it would not have resulted in a different judgment.”
Id., slip op. at 4-5. In January 2021, this court affirmed the summary dismissal of the
petition for writ of error coram nobis. Id., slip op. at 1. Although no order appears in the
record, it appears that the post-conviction court stayed the post-conviction proceedings
pending the outcome of the coram nobis petition.
While the denial of the coram nobis petition was pending appeal, the
petitioner filed a second amended petition for post-conviction relief on January 9, 2020,
arguing that the petitioner was deprived of the effective assistance of trial and appellate
counsel and incorporating all claims from his pro se petition.
At the January 2020 evidentiary hearing, trial counsel testified that he began
representing the petitioner 11 months before the March 2012 trial. He stated that he met
2
Prior to filing the amended petition, post-conviction counsel moved to withdraw, but no order
denying or granting the motion is included in the record. The court later granted counsel’s renewed motion
to withdraw and appointed new counsel. The court then permitted that attorney to withdraw and appointed
current post-conviction counsel on November 2, 2017. Present counsel is the third attorney to represent the
petitioner in this post-conviction proceeding and also represented the petitioner on his coram nobis petition.
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with the petitioner “on numerous occasions” and that they “had no problems
communicating with each other” and “got along fine until the trial date.” Before trial,
counsel understood that the “gist of the State’s case” was to present the testimony of the
victims and of several of the co-defendants, each of whom counsel expected to testify that
the petitioner was “the organizer” of the offenses. Counsel stated that he had discussed
with the petitioner that a ski mask found in the get-away van contained the petitioner’s
DNA and was the only piece of evidence “that tied him physically to the scene.”
Trial counsel acknowledged that he did not interview Doctor Qadriyyah
Debnam or Tennessee Bureau of Investigation (“TBI”) Special Agent Lawrence James
prior to trial or subpoena the TBI’s file on the DNA testing, explaining that he “didn’t view
the DNA attachment to the mask as a significant issue.” He also stated that he had worked
with Agent James in prior cases and “found him to be a pretty straight shooter” and “had
no reason to doubt that [he] . . . was being straight forward about his testing” in this case.
Similarly, trial counsel explained that he did not retain a DNA expert to assist in the
petitioner’s defense or to retest the ski mask because he “had no reason to question [the]
results” of the State’s testing and because he did not deem the ski mask a significant piece
of evidence. He explained that the ski mask was found in the get-away van, that the State
did not allege that the petitioner was ever in the van or at the crime scene, and that the
absence of the petitioner’s DNA on the ski mask would not have contradicted the State’s
theory of prosecution. Trial counsel said that he believed the outcome of the case hinged
on the credibility of the co-defendant witnesses.
Trial counsel testified that he learned that in early 2009, a DNA swab was
taken from the petitioner but, again, explained that he did not consider the possibility of
cross-contamination of the ski mask with the petitioner’s DNA swab because he “didn’t
have a reason to question the testing of the mask leading up to our trial.” He reiterated that
he did not believe that the ski mask was “pivotal to whether or not [the petitioner] was the
mastermind . . . in this home invasion.” He stated that he “never in a million years” would
have argued to the jury that the petitioner’s DNA found on the ski mask was the result of
the co-mingling of evidence from a separate case in which the petitioner was charged in
another home invasion because he would not “have wanted to even imply in front of the
jury that [the petitioner] . . . was involved in any home invasion in any other part of the city
in any other date or time.” He said that “[t]he only hope we had of winning his case was”
to make the co-defendants out to be “unbelievable to the jury.” As to Doctor Debnam’s
testimony about the petitioner’s DNA being a match to only two of 13 locations on the ski
mask, in contradiction to Agent James’s testimony that the petitioner’s DNA was a match
on 11 of 13 locations, trial counsel explained that “if it was something I heard her say on
the witness stand and I thought it was problematic, I would’ve questioned her about it.”
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Trial counsel stated that, in light of the petitioner’s being excluded from the
courtroom during the trial, he did not object to the trial court’s allowing a show-up
identification of the petitioner by bringing the petitioner into the courtroom outside the
presence of the jury so that witness Jeremy Munson could identify him. Counsel explained
that he could not “think of a method that we could’ve done . . . where Mr. Munson wouldn’t
have picked [the petitioner] out.” He said that he also “wanted to make it as seamless as
possible” and “was trying to keep [the petitioner] from doing more harm to his case” after
his yelling at the judge in front of the jury before being removed from the courtroom.
Counsel said that he mentioned the issue of the kidnapping being incidental
to the robbery during his closing argument “in hopes that” at least some members of the
jury would find that to be the case but explained that he did not argue the matter more
strenuously because his “opinion of the testimony as it had come out at trial was that it was
clearly not incidental” and because he “didn’t want to draw a ton of attention to it.” He
further explained that he did not object to the State’s calling the petitioner a “super
predator” during closing argument because his “general philosophy is that I don’t interrupt
a prosecutor, because I never want them to interrupt me in a closing argument.” He also
said that had he objected to the prosecutor’s use of the term “super predator,” he would
“essentially [be] telling the jury I’m afraid of that comment and afraid that the prosecutor
has properly identified my client.”
Trial counsel acknowledged that the petitioner’s name was the last name
listed on the original indictment and was in a different type-face than the co-defendant’s
names. He stated that he did not object to the indictment because even if he succeeded in
having that indictment dismissed for error, the State would have simply re-indicted the
petitioner, noting “[i]t’s very curable.” Counsel said that he knew that the State believed
that the petitioner was “part of this conspiracy” and that he never doubted that the petitioner
“was an intended target” for prosecution. He added that he did not see the difference in
type face of the petitioner’s name as a reason to challenge the indictment and that any error
in the original indictment was cured with the superseding indictment.
Trial counsel testified that he did not move for a mistrial when the petitioner
was removed from the courtroom after holding up a sign that said “massive corruption”
and yelling at the jury because he could not “imagine [the court] at that point granting a
mistrial.” He explained that the court had already denied the petitioner’s motion to
continue the trial and that he “was quite certain” that the court viewed the petitioner’s
conduct “as a tactic to get a reset despite [the court’s] denying him a reset.” Counsel also
stated that he “really didn’t have a real problem with [the petitioner’s] saying that the
system was corrupt . . . because that’s what an innocent person might say too.” Counsel
stated that, because the petitioner had been removed from the courtroom, jury voir dire
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proceeded without the petitioner’s presence, and the court instructed trial counsel to discuss
jury selection with the petitioner outside of the courtroom.
Counsel stated that when he entered the room where the petitioner was
seated, the petitioner “[i]mmediately . . . jumped up and punched me in the arm, and I slid
out of the room and . . . [officers] came in and tackled him.” He said that the petitioner
yelled at him, calling him a sell-out. Counsel reported to the trial court what had happened.
Counsel recalled that the trial court questioned the petitioner about the incident and
instructed him that he must behave appropriately if he was to remain in the courtroom
during trial and that the petitioner continued saying that trial counsel was selling him out.
He also recalled that, after the court’s numerous attempts to get the petitioner to agree to
cooperate in the trial, the petitioner said that the trial could proceed without him, and the
court had the petitioner removed from the courtroom for the duration of trial. Counsel
stated that he did not object to the petitioner’s removal from the courtroom because he
“was worried that [the petitioner] was going to do himself some more damage in front of
the jury.” He continued, “So my first reaction was, okay, he’s let the jury know that he
thinks this process is messed up and that it’s corrupt. . . . Now he’s not here. He can’t
mess it up anymore, and I get to fight his case the way I want to legally fight his case.”
Trial counsel stated that he asked the trial court for permission to withdraw
from the case, telling the court that he was capable of continuing representation but was
“not interested.” The court denied the motion, and counsel assured the court that he was
prepared for trial and would do his job. Counsel said that despite the petitioner’s having
punched him, he provided zealous representation. Counsel denied that he acted under a
conflict of interests with the petitioner. He acknowledged that the State had led him to
believe that the trial might be continued to a later date but said that he was fully prepared
for trial and “had been ready for a long time.”
During cross-examination, trial counsel reiterated that he had no reason to
question the State’s DNA testing and believed that the DNA evidence in this case “was
sort of just the cherry on top for the State, because it really wasn’t part of the essential
elements of the crimes.” He clarified that he did not seek a mistrial when the petitioner
was first removed from the court room but that he did move for mistrial at the same time
that he moved to withdraw from the case after the petitioner had punched him. He stated
that he sustained only a bruise from the incident and was physically able to continue in the
trial, providing zealous advocacy for the petitioner.
Alisa Styles, a record keeper for the Shelby County Sheriff’s Office, testified
that the collection of all DNA samples during an inmate’s booking is recorded in a log
book with the date and time the DNA was collected and the inmate’s name and booking
number. The jail also keeps a record from the envelope used to mail the samples to the
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TBI laboratory. According to the records, Ms. Styles stated that the petitioner’s DNA was
collected by buccal swabs on March 16, 2009.
The petitioner testified that trial counsel met with him nine to 10 times in
preparation for trial. He said that counsel provided him with some discovery materials but
that there was “a whole lot of my discovery that . . . he didn’t even give me that I never did
see.” The petitioner stated that he was not properly indicted on the original indictment,
noting that he had appeared in court numerous times between February 26 and March 20,
2009, and at each appearance, the State indicated that the indictment against him had not
yet been returned. At a March 20, 2009 appearance, the State had obtained an indictment
against the petitioner, but the petitioner pointed out that his name appeared to have been
“typed in at the last second,” using a different and smaller font than that used for the co-
defendants’ names. The petitioner recalled that, at that same hearing, the court could not
find its file for the petitioner’s case. The petitioner stated that a superseding indictment
issued sometime in 2010.
The petitioner stated that Doctor Debnam testified at trial that when she first
entered the petitioner’s DNA into CODIS, she did not find a match and that trial counsel
failed to cross-examine her about that issue. The petitioner said that the March 2009 DNA
sample was associated with case number 09-01311 and that, because those charges were
ultimately dismissed, that DNA sample was destroyed. The petitioner asserted that the
State destroyed that DNA sample as “a cover up” in this case, noting that he did not know
before trial that Agent James had found a match of the DNA on the ski mask to the
petitioner’s DNA sample from March 2009. He also said that counsel failed to cross-
examine Doctor Debnam and Agent James about the discrepancies in their results on the
DNA matches. The petitioner stated that trial counsel told him that he would file a motion
requesting funds for a DNA expert but that he never filed that motion. He also said that he
repeatedly asked counsel to obtain an independent DNA expert. He said that trial counsel
failed to investigate the DNA issue because counsel did not believe the case was going to
go to trial.
The petitioner stated that the trial court acknowledged that the show-up
method of identification used during Mr. Munson’s testimony was suggestive but that
counsel did not object to the method. He said that Mr. Munson had only ever seen him one
time prior to trial.
The petitioner testified that, after he was removed from the courtroom at his
trial, the court told him that he would be able to view the proceeding by video feed but that
no video was provided for him. He said that when trial counsel came to discuss jury
selection with him, the petitioner asked how he was expected to participate in jury selection
when he could not see or hear the proceedings. He said that counsel called him a mother
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f*****, “just totally disrespected me,” and “walked basically on my feet didn’t say excuse
me.” The petitioner acknowledged that, at that point, he “just swung on [counsel] for just
. . . stepping on my feet, didn’t say excuse me or none of that.” He said that he “didn’t
really hit him” and that counsel put “his arm up, and I just -- a little baby hit on the arm.”
The petitioner stated that he was not satisfied with the issues that appellate
counsel raised, explaining that he wanted counsel to raise every issue that was raised in the
motion for new trial.
In the interest of time, the post-conviction court stated that the petitioner
could “supplement the record of this hearing with an affidavit from [appellate counsel] if
you choose to” and with any documents not already included in the trial record. The
hearing was continued to January 23, 2020, at which time appellate counsel’s affidavit was
exhibited to the hearing, and the parties gave their closing arguments.
In his affidavit, appellate counsel stated that it was not his “common practice
to argue on appeal every issue raised in a motion for new trial,” and, instead, he focused
on those that he believed “were the best issues that had a chance of being overturned.” He
also stated that it was his practice to review all issues raised in a motion for new trial and
argue any issue that he deemed to have merit. Specific to the petitioner’s appeal, appellate
counsel stated that he did not argue the trial court’s denial of the petitioner’s motion for
continuance because the issue was not likely to merit relief and because the record did not
“show that the outcome would have been different had the trial court granted the motion.”
As to the issue of the trial court’s permitting the trial to continue after the petitioner was
removed from the courtroom, appellate counsel stated that he did not argue the issue on
appeal because “[p]revailing on the issue would have been difficult since [the petitioner]
did punch his attorney.” Finally, appellate counsel stated that he did not argue the trial
court’s denying trial counsel’s motion to withdraw because he believed that “trial counsel
was professional and effective at representing” the petitioner. Appellate counsel
concluded, “I thought the better strategy was to omit from the appeal that the [petitioner]
had attacked his trial counsel.”
At the close of the hearing, the post-conviction court took the matter under
advisement.
In its written order denying post-conviction relief, the post-conviction court
stated that the “[p]etitioner’s insistence of the fraudulent nature of the DNA evidence
borders on the obsessive. He has appealed it, filed petitions for writ of error coram nobis
regarding it, and generally continues to be fixated upon it.” The court implicitly concluded
that the petitioner failed to establish that he was prejudiced by counsel’s actions as to the
DNA evidence because other evidence sufficiently corroborated the testimony of two
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accomplices and because the petitioner failed to establish that the potential testimony of
two witnesses that he wished to call at the evidentiary hearing would have been favorable.
The court concluded that the petitioner failed to establish any instance of deficient
performance by counsel, stating, “The purpose of a post-conviction [proceeding] is not to
second guess an attorneys [sic] strategy. In this case, [the p]etitioner refuses to accept the
fact that his behavior had consequences. These consequences were not the fault of his
attorney[.]”
In this timely appeal, the petitioner reasserts his argument that he was
deprived of the effective assistance of trial and appellate counsel and that the post-
conviction court erred by denying a continuance of the evidentiary hearing and denying the
petitioner an opportunity to inspect records of the grand jury proceedings.
I. Motion for Continuance
The petitioner argues that the post-conviction court erred by denying his
motions for continuance to allow him time to have an independent DNA test of the ski
mask and to allow him to re-subpoena Doctor Debnam to testify at the evidentiary hearing.
The State argues that the post-conviction court properly exercised its discretion by denying
the motions.
“[T]he granting or denying of a continuance is a matter which addresses itself
to the sound discretion of the trial judge.” Moorehead v. State, 409 S.W.2d 357, 358 (Tenn.
1966) (citing Bass v. State, 231 S.W.2d 707, 710-11 (Tenn. 1950)). An abuse of discretion
is demonstrated by showing that the failure to grant a continuance denied the defendant a
fair hearing or that it could be reasonably concluded that a different result would have
followed had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579 (Tenn.
1995) (citation omitted). “The burden rests upon the party seeking the continuance to show
how the court’s action was prejudicial. The only test is whether the defendant has been
deprived of his rights and an injustice done.” State v. Goodman, 643 S.W.2d 375, 378
(Tenn. Crim. App. 1982) (citing Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App.
1973)). Tennessee Supreme Court Rule 28, § 8(B) provides that an evidentiary hearing
“shall not be continued except by order of the court finding that unforeseeable
circumstances render a continuance a manifest necessity.” Tenn. Sup. Ct. R. 28, § 8(B).
At the beginning of the evidentiary hearing, the petitioner moved for a
continuance to allow him time to have a ski mask tested for DNA evidence by an expert
hired by the petitioner’s family. The post-conviction court denied the motion, finding that
because of the lengthy delays in the post-conviction proceedings, the petitioner had ample
time to test the ski mask before the hearing but neglected to do so. The court further found
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that, even if a new DNA test contradicted the evidence at trial, the ski mask was
“inconsequential to . . . the case.”
Also during the evidentiary hearing, the petitioner noted that Doctor Debnam
had been subpoenaed to testify at the hearing but was not present, and the post-conviction
court noted that it had no record that Doctor Debnam had been served with the subpoena.
The petitioner moved for a continuance to allow time to have Doctor Debnam re-
subpoenaed. The post-conviction court denied the motion, finding that Doctor Debnam’s
potential testimony was irrelevant to the post-conviction issues.
The post-conviction court did not abuse its discretion in denying the
petitioner’s motions for continuance. We agree with the post-conviction court that the ski
mask was not critical to the State’s case. The ski mask on which the petitioner’s DNA was
found was located in the get-away van. The State prosecuted the petitioner under a theory
of criminal responsibility and, at no point, alleged that the petitioner wore a ski mask or
was in the get-away van during the robbery. See State v. Curtis Keller, No. W2012-01457-
CCA-R3-CD, slip op. at 15 (Tenn. Crim. App., Jackson, Nov. 6, 2013) (Keller III); see
also Keller I, slip op. at 2. Consequently, even if additional testing contradicted the State’s
finding of the petitioner’s DNA on the ski mask, the petitioner would not be entitled to
post-conviction relief, and the petitioner cannot show that a continuance of the hearing
would have reasonably resulted in a different outcome of the post-conviction proceeding.
Additionally, the post-conviction court did not err by finding that the
petitioner had ample time to seek independent DNA testing of the ski mask prior to his
January 2020 evidentiary hearing. The petitioner initiated this post-conviction proceeding
in March 2015, and current counsel had represented the petitioner in this case since
November 2017. Current counsel also represented the petitioner throughout his coram
nobis proceedings, which case also involved a claim related to the DNA evidence on the
ski mask. The petitioner’s failure to seek additional DNA testing of the ski mask during
the nearly five years that his post-conviction case was pending does not constitute
“unforeseeable circumstances render[ing] a continuance a manifest necessity.” Tenn. Sup.
Ct. R. 28, § 8(B).
Similarly, the post-conviction court did not abuse its discretion by denying
the petitioner’s motion for continuance to allow him to re-subpoena Doctor Debnam. The
post-conviction court found that Doctor Debnam’s potential testimony was irrelevant to
the issues raised in the post-conviction petition, and the record supports that finding. The
petitioner asserts that Doctor Debnam may have testified that it was possible for the ski
mask to have been contaminated before her testing it for the presence of DNA. Even if
Doctor Debnam’s potential testimony is as the petitioner suggests, that testimony would
not result in a different outcome of the post-conviction proceeding. As stated above, the
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ski mask was not critical to the State’s theory of prosecution. At most, Doctor Debnam’s
potential testimony would cast doubt on the veracity of the State’s DNA testing of the ski
mask. Because this court has already determined that other evidence sufficiently
corroborated the testimony of the accomplices at trial, see Keller II, slip op. 7-8, the
petitioner cannot establish that he was prejudiced by the post-conviction court’s denial of
his motion for continuance to subpoena Doctor Debnam.
II. Motion to Inspect Grand Jury Proceedings
Next, the petitioner contends that the trial court erred by denying his motion
to inspect the records of the grand jury proceedings relative to the original indictment,
arguing that his name’s being listed last and typed in a smaller type-face than the co-
defendants’ names suggests that his “name may have been added to the indictment in a last
minute effort.” The State argues that the trial court properly exercised its discretion in
denying the motion.
Prior to the evidentiary hearing, the petitioner moved for permission to
review the grand jury materials related to his case. At the hearing, the post-conviction
court denied the motion, stating that the grand jury “does not keep any materials other than
[the] indictment” and that transcripts of the proceedings do not exist.
It is well-settled that grand jury proceedings are secret. Tenn. R. Crim. P.
6(k)(1) (“Every member of the grand jury shall keep secret the proceedings of that body
and the testimony given before it, except as provided in Rule 6(k)(2)”); see also, T.C.A. §
40-12-209(a)(3); State v. Caruthers, 35 S.W.3d 516, 533 (Tenn. 2000). Certain records of
grand jury proceedings may be disclosed only in limited circumstances. See Tenn. R. Crim.
P. 6(k)(2) (providing as an exception to the rule of secrecy that “[t]he court may require a
grand juror to reveal the testimony of a grand jury witness . . . to ascertain whether the
grand jury testimony is consistent with that given by the witness before the court[,] or . . .
to disclose the grand jury testimony of any witness charged with perjury”); T.C.A. § 40-
12-209(b) (permitting the disclosure of grand jury materials to “[t]he district attorney
general for use in the performance of the district attorney general’s duty” and to
“[g]overnment personnel . . . as those personnel are deemed necessary by the district
attorney general to assist . . . in the performance of the district attorney general’s duties”);
id § 40-12-210 (permitting the “[d]isclosure of grand jury documents and proceedings”
when “[d]irected by a court preliminarily to or in connection with a judicial proceeding,”
“[d]isclosure is made by the district attorney general to another grand jury,” or “[p]ermitted
by a court upon motion of the defendant showing grounds exist for a motion to dismiss the
indictment because of matters occurring before the grand jury”).
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Furthermore, although “[t]he district attorney general, the witness under
examination, an interpreter when needed and, for the purpose of taking the evidence, a
stenographer may be present while the investigative grand jury is in session,” “no person
other than jurors and alternates may be present while the grand jury is deliberating or
voting,” T.C.A. § 40-12-207, and no stenographic record is made of the proceedings while
the grand jury is deliberating and voting, id. § 40-12-208(a).
Because no record is kept of grand jury deliberations, it is unclear what
materials the petitioner believes would reveal the intention of the grand jury to charge the
petitioner in the original indictment. Furthermore, because the circumstances permitting
the disclosure of secret grand jury records are not present here, even if grand jury records
exist which support the petitioner’s claim, the petitioner is not entitled to those records.
III. Ineffective Assistance of Counsel
Finally, the petitioner alleges that he was deprived of the effective assistance
of trial and appellate counsel, arguing numerous instances of alleged deficient
performance. The State contends that the petitioner has failed to establish any instance of
deficient performance.
We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103. A post-conviction petitioner bears
the burden of proving his or her factual allegations by clear and convincing evidence. Id.
§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s
findings of fact the weight of a jury verdict, and these findings are conclusive on appeal
unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).
Before a petitioner will be granted post-conviction relief based upon a claim
of ineffective assistance of counsel, the record must affirmatively establish, via facts
clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the
burden of overcoming this presumption,” id. (citations omitted). We will not grant the
petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).
A. Failure to Challenge State’s DNA Evidence
First, the petitioner argues that trial counsel performed deficiently by failing
to seek independent DNA testing of a ski mask. Relatedly, the petitioner asserts that trial
counsel performed deficiently by failing to interview Doctor Debnam prior to trial and to
adequately cross-examine her about her testing the ski mask for DNA.
Trial counsel’s decision to not challenge the State’s DNA evidence is
precisely the sort of strategic decision that we will not second-guess on post-conviction.
See Adkins, 911 S.W.2d at 347. Trial counsel testified that he did not deem the State’s
DNA evidence to be critical to this case, and, consequently, he did not perform deficiently
by focusing his efforts on other theories of defense. Furthermore, even if additional DNA
testing of the ski mask contradicted the State’s reports, it would not have changed the
outcome at trial. As we explained above, because the ski mask was found in the get-away
van and the petitioner was never alleged to have been in the van or to have worn a ski mask,
the absence of his DNA on the mask would do nothing to contradict the State’s theory of
prosecution. Consequently, trial counsel did not perform deficiently by failing to seek
independent DNA testing of the ski mask or to interview and question Doctor Debnam
about her testing of the ski mask.
B. Failure to Object to State’s Closing Argument
Next, the petitioner argues that trial counsel performed deficiently by failing
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to object to and move for a mistrial following the State’s referring to the petitioner as a
“super predator” during its closing argument.
During the State’s closing argument, the prosecutor made the following
statements about the petitioner and his co-defendants:
This ain’t drug deals on the corner. This isn’t an ATM robbery.
This isn’t even a murder, even, when they get mad at
somebody. These guys, this is like a military operation. If
criminals are predators, these are the super predators. . . . we
have all of them, we have the team, super predators, all stone
cold caught and all stone cold guilty.
After describing the theory of criminal responsibility, the prosecutor said, “And so he is
guilty of this, on all seventeen counts of the crimes, of being a predator, of being a super
predator.”
Here, we easily conclude that the prosecutor’s referring to the petitioner as a
“super predator” in closing argument was inappropriate. See State v. Hartman, 42 S.W.3d
44, 60 n.14 (Tenn. 2001) (stating that “the prosecutor erred during closing argument by
referring to . . . the defendant as a ‘predator’”); State v. Cauthern, 967 S.W.2d 726, 737
(Tenn. 1998) (stating that the State’s use of the epithet “evil one” to characterize the
defendant was “improper and potentially appealed to the bias and passion of the jury”
(citations omitted)); State v. Richard Shawn O’Rourke, No. M2017-00375-CCA-R3-CD,
slip op. at 10 (Tenn. Crim. App., Nashville, Sept. 18, 2018) (concluding that a prosecutor’s
referring to a defendant as a “sexual predator” during closing argument was improper,
“likely inflamed the passion and prejudice of the jury,” and “call[ed] upon the jury to find
the [d]efendant guilty to prevent him from reoffending”); State v. Thomas Dee Huskey, No.
E1999-00438-CCA-R3-CD, slip op. at 136 (Tenn. Crim. App., Knoxville, June 28, 2002)
(“We believe that describing the defendant as a human predator was derogatory and
improper.” (citations omitted)).
Trial counsel’s decision not to object to the prosecutor’s statements,
however, was strategic, and consequently, trial counsel did not perform deficiently in this
matter. Trial counsel testified that he did not object to the prosecutor’s statements because
he did not want to draw the jury’s attention to the potentially damaging characterization.
Indeed, in the petitioner’s closing argument, trial counsel attempted to mitigate any
prejudice created by the State’s argument by arguing that the State’s closing argument “was
dramatic and it was emotional,” reminding the jury that they were to “try this case without
passion, without prejudice” and asking the jury to “disregard” the State’s argument. This
was a reasonable and strategic decision, and we will not now second-guess counsel’s
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strategy.
C. Failure to Challenge Original Indictment
Next, the petitioner contends that trial counsel failed “to investigate whether
the [p]etitioner was actually indicted by the grand jury” in the original indictment.
As we explained above, the petitioner is not entitled to the secret records of
the grand jury proceedings—assuming such records exist—and, consequently, trial counsel
did not perform deficiently by failing to seek grand jury records in order to challenge the
validity of the indictment. Trial counsel explained that he did not challenge the original
indictment because he did not believe that the different type-face used for the petitioner’s
name rendered the indictment invalid and because he believed that the State could easily
cure any error. Furthermore, even if the petitioner could prove that he was not properly
indicted on the original indictment, he went to trial on a superseding indictment, and the
original indictment was dismissed.
D. Failure to Object to Exclusion from Trial
Next, the petitioner argues that trial counsel should have objected to the trial
court’s ruling that the petitioner waived his right to be present during his trial and that
counsel should have moved for a mistrial when the petitioner was removed from the
courtroom.
It is without question that a criminal defendant has a fundamental right to be
present during his trial. State v. Mosley, 200 S.W.3d 624, 631 (Tenn. Crim. App. 2005)
(“A defendant has a fundamental right under both the federal and state constitutions to be
present during his trial.”) (citations omitted); see also Tenn. R. Crim. P. 43(a); State v.
Muse, 967 S.W.2d 764, 766 (Tenn. 1998)). The defendant may waive that right, however,
by disruptive behavior. Tenn. R. Crim. P. 43(b) (“The further progress of the trial . . . shall
not be prevented and the defendant shall be considered to have waived the right to be
present whenever a defendant, initially present . . . [a]fter being warned by the court that
disruptive conduct will result in removal from the courtroom, persists in conduct justifying
exclusion from the courtroom.”).
Here, the record indicates that after the trial court denied the petitioner’s
motion for a continuance—outside the presence of the venire—the petitioner said, “You
can have the damn trial without me even being here.” After the jury venire entered the
courtroom, the petitioner held up a sign that read, “massive corruption within the courts.”
The petitioner held the sign so that all potential jurors could see it. The trial court twice
asked the petitioner to lower the sign, but the petitioner “flipped it around so that everyone
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could see it.” At that point, the trial court asked the jury to leave the courtroom. As the
jury venire began leaving the courtroom, the following exchange occurred:
THE [PETITIONER]: It’s the truth. They don’t want
you to know the truth.
THE COURT: Be quiet, Mr. Keller. Don’t say another
word.
THE [PETITIONER]: You all are forcing me to go to
trial, it’s the truth.
THE COURT: Take him out, please, take him out.
THE [PETITIONER]: (Indiscernible) You don’t want
them to hear the truth, that’s the truth.
The petitioner was removed from the courtroom before the jury venire had fully vacated
the courtroom.
Once the jury venire was outside of the courtroom, the trial court had the
petitioner brought back in and informed the petitioner of his right to be present at trial but
warned him that, unless the petitioner would “promise . . . that you will behave yourself in
front of the jury,” he would waive that right and be excluded from trial. When the trial
court allowed the petitioner the opportunity to discuss with trial counsel whether he would
behave and remain in the courtroom, the petitioner said, “This man ain’t even representing
me.” He also said, “I ain’t got nothing to talk to him about.” The trial court again gave
the petitioner an opportunity to discuss the matter with trial counsel, but the petitioner
continued to argue with the court that he could not have a fair trial if he was not present
and would not be permitted to “have my witnesses.” After much back-and-forth, the
petitioner again said, “Well, you can have the trial without me because this ain’t no fair
trial,” at which point, the trial court found that the petitioner had waived his right to be
present at trial and ordered the petitioner removed from the courtroom.
After jury voir dire, the trial court took a recess to allow trial counsel time to
discuss jury selection with the petitioner. Trial counsel returned to the courtroom and,
outside the presence of the jury, explained to the trial court that the petitioner had assaulted
him. The court determined that the petitioner did “not want to cooperate in having input
in his trial” and asked counsel if he was able to continue to represent the petitioner “to the
best of your ability without his input?” Counsel stated that he could continue representing
the petitioner but told the court that he may have a conflict of interests because he chose
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not to subpoena a witness that the petitioner wished to call. Counsel stated, “[I]f the [c]ourt
doesn’t feel it’s a strong enough conflict, I can go forward.” Counsel also noted that his
“defense would be somewhat hampered by not being able to talk to [the petitioner]” but
that he could “do what I’ve prepared to do.” The trial court stated that it was up to counsel’s
professional discretion—with the input of the petitioner—whether to call witnesses. The
trial court stated that it was satisfied that the petitioner’s physical assault on trial counsel
did not raise a conflict such that counsel could no longer represent the petitioner.
At that point, trial counsel moved for a mistrial, stating that because the
petitioner had “tried to attack me outside the courtroom here, I do think that it’s incumbent
upon me to at least ask you to at this point declare a mistrial . . . and reset the case and
maybe appoint him another lawyer.” The trial court noted that the petitioner’s case had
been pending since March 2009 and that “conflicting ideas” between the petitioner and
trial counsel were not grounds to continue the trial or to appoint new counsel. Upon
counsel’s assurance that he could continue to represent the petitioner, the court implicitly
denied the motion, and the trial proceeded with the petitioner excluded from the courtroom.
It is clear from the record that the trial court, as required by Tennessee Rule
of Criminal Procedure 43(b), warned the petitioner numerous times that his continued
disruptive behavior would result in his waiving his right to be present at trial. See Tenn.
R. Crim. P. 43(b). The court also gave the petitioner multiple opportunities to agree to
conduct himself appropriately and remain in the courtroom. Furthermore, trial counsel’s
testimony established that he did not object to the petitioner’s exclusion from trial for
tactical reasons. Counsel stated that he did not deem the petitioner’s outburst about
“massive corruption” to be harmful to his defense “because that’s what an innocent person
might say too” and that he believed that additional outbursts by the petitioner could be
detrimental to his defense. Counsel also testified that he did not believe that the trial court
would have granted a mistrial in light of its previous denial of his motion for continuance.
Because the trial court implicitly denied a motion for a mistrial upon ensuring that trial
counsel was willing and able to proceed without conflict, the petitioner has not shown that
the trial court would have granted a mistrial had counsel made such a motion as soon as
the petitioner was removed from the courtroom. In consequence, because the petitioner
has failed to establish that he would have been successful on a motion for mistrial and
because counsel’s decision not to object to his exclusion was strategic, this claim lacks
merit.
E. Failure to Object to Show-Up Identification
Related to his exclusion from trial, the petitioner argues that trial counsel
should have objected to the trial court’s allowing a “show-up” identification by State
witness Jeremy Munson.
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A show-up identification is a “one-on-one confrontation” in which “a single
person is presented as a suspect to a viewing eyewitness.” State v. Thomas, 780 S.W.2d
379, 381 n.1 (quoting United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir. 1976)).
Generally, this method of identification occurs when the police arrange an observation of
the defendant by the victim. State v. Dixon, 656 S.W.2d 49, 51 (Tenn. Crim. App. 1983).
A show-up as a form of identification of a defendant is, by its nature, inherently suggestive.
Thomas, 780 S.W.2d at 381. For that reason, the use of show-ups to establish the
identification of a person suspected of committing a criminal offense has been repeatedly
condemned absent special circumstances. Id. One such circumstance exists when “there
are imperative circumstances which necessitate a show[-]up.” Id.
Here, because the petitioner was excluded from the courtroom, the trial court
had the petitioner brought to the courtroom outside the presence of the jury for Mr. Munson
to make an in-court identification. See Keller III, slip op. at 7 n.4. After the petitioner was
removed from the courtroom, the trial court informed the jury that Mr. Munson had
positively identified the petitioner as the person known as “Big Daddy,” who briefly
entered the hotel room where Mr. Munson and the other co-defendants were preparing for
the robbery.
Trial counsel testified that he did not object to the trial court’s using this
method of in-court identification at trial because he had no reason to doubt that Mr. Munson
would identify the petitioner regardless of the method of identification used. The record
established that Mr. Munson saw the petitioner when the petitioner arrived at the hotel
room where the co-defendants were preparing for the robbery. The petitioner has failed to
establish that Mr. Munson was influenced by the suggestive nature of the in-court
identification or that Mr. Munson would not have identified him had some other method
been used. Furthermore, Mr. Munson’s in-court identification of the petitioner was not the
only evidence identifying the petitioner as a participant in the conspiracy; Curtis Hayes,
who had known the petitioner for at least a year prior to the robbery, identified the
petitioner from a photograph as one of the men who told him of the plan and invited him
to participate in the robbery. Keller III, slip op. at 8. Therefore, even if Mr. Munson’s
identification of the petitioner was unduly suggestive, the petitioner has failed to establish
that he was prejudiced by counsel’s failure to object in light of Mr. Hayes’s identification.
Consequently, this claim lacks merit.
F. Conflict of Interests
Next, the petitioner argues that trial counsel performed deficiently because
he represented the petitioner despite a conflict of interests. Specifically, the petitioner
contends that the breakdown in communication between the petitioner and counsel and the
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petitioner’s punching counsel created an actual conflict of interests that negatively affected
counsel’s representation.
Ineffective assistance of counsel may result if counsel’s performance is
affected by a conflict of interests. Strickland, 466 U.S. at 692. A conflict of interests exists
when “an attorney is placed in a position of divided loyalties.” McCullough v. State, 144
S.W.3d 382, 385 (Tenn. Crim. App. 2003) (citing State v. Culbreath, 30, S.W.3d 309, 312
(Tenn. 2000)); see also Tenn. Sup. Ct. R. 8, RPC 1.7(2) (“A concurrent conflict of interest
exists if . . . there is a significant risk that the representation of one or more clients will be
materially limited by . . . a personal interest of the lawyer.”).
Here, the petitioner has failed to establish that trial counsel represented him
while laboring under a conflict of interests. Neither a breakdown in communication nor a
physical altercation between an attorney and a client necessarily gives rise to a conflict of
interests. While it is true that the petitioner punched counsel when counsel tried to discuss
jury selection with him, the trial court questioned counsel about his ability to continue
representing the petitioner, and counsel assured the court that he was able to proceed and
to fulfill his ethical duties in representing the petitioner. The only conflict that trial counsel
raised to the trial court was that the petitioner disagreed with counsel’s decision not to call
a certain witness, and the trial court found that a difference of opinion in a defense strategy
did not give rise to a conflict in this case.
The trial court considered whether a conflict of interests existed and
determined that it did not. Additionally, counsel moved for a mistrial and suggested that
the petitioner be provided a new attorney, but the trial court denied that motion. Because
the record indicates that trial counsel alerted the trial court to a potential conflict and moved
to withdraw and that the trial court found no conflict existed and denied the motion, the
petitioner cannot establish that counsel performed deficiently in this matter.
G. Failure to Argue Certain Issues on Appeal
Next, the petitioner argues that appellate counsel performed deficiently by
failing to argue on appeal certain issues raised in the motion for new trial. Specifically, he
contends that he could have been successful on appeal had counsel argued that the trial
court erred by excluding him from trial and by denying trial counsel’s motion to withdraw
from representation.
It is well-established that appellate counsel is not “required to raise every
conceivable issue on appeal.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004)
(citing King v. State, 989 S.W.2d 319, 334 (Tenn. 1999); Campbell v. State, 904 S.W.2d
594, 596-97 (Tenn. 1995)). Generally, “[t]he determination of which issues to raise on
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appeal is . . . within appellate counsel’s sound discretion[,] . . . [and] appellate counsel’s
professional judgment with regard to which issues will best serve the appellant on appeal
should be given considerable deference.” Carpenter, 126 S.W.3d at 887 (citations
omitted). To succeed on a claim of ineffective assistance of appellate counsel for failure
to raise certain issues, a petitioner “must show that th[e] omission was ‘so serious as to fall
below an objective standard of “reasonableness under prevailing professional norms.”’”
Id. (quoting Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001)).
Here, the petitioner has failed to establish that appellate counsel performed
deficiently. As we have already stated, the petitioner has not shown that he would have
been likely to succeed on an objection to his removal from the courtroom or on a motion
for the appointment of new trial counsel. Moreover, appellate counsel stated in his affidavit
that his decision not to pursue all issues raised in the motion for new trial was strategic.
Accordingly, appellate counsel did not perform deficiently by failing to raise these issues
on appeal.
H. Cumulative Error
Finally, the petitioner argues that the cumulative effect of counsel’s errors
prejudiced the petitioner such that he should be granted post-conviction relief. Because
the petitioner has failed to establish a single instance of deficient performance or error, the
cumulative error doctrine does not afford him relief.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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