Roy Len Rogers v. State of Tennessee ( 2018 )

04/23/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 20, 2017
ROY LEN ROGERS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Rhea County
No. 16878 J. Curtis Smith, Judge
No. E2017-00445-CCA-R3-PC
The petitioner, Roy Len Rogers, appeals the denial of post-conviction relief from his
2010 Rhea County Criminal Court jury convictions of first degree premeditated murder,
second degree murder, and reckless endangerment, for which he received a sentence of
life imprisonment. In this appeal, the petitioner contends only that he was denied the
effective assistance of counsel at trial. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
M. Keith Davis, Dunlap, Tennessee, for the appellant, Roy Len Rogers.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Michael J. Taylor, District Attorney General; and James W. Pope, III,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Rhea County Grand Jury charged the petitioner with one count each of
first degree premeditated murder, felony murder, and attempted first degree murder,
arising out of the murder of the victim, Gregory Keith Brown, and the attempted murder
of the petitioner’s ex-wife, Vanessa Collett. Following a jury trial, the petitioner was
convicted as charged of first degree premeditated murder and was convicted of the lesser-
included offenses of second degree murder and reckless endangerment. The trial court
merged the first and second degree murder convictions and imposed a mandatory life
sentence, to be served concurrently with a sentence of 11 months and 29 days for the
reckless endangerment conviction. This court affirmed the convictions and sentences on
direct appeal. See State v. Roy Len Rogers, No. E2011-02529-CCA-R3-CD (Tenn. Crim.
App., Knoxville, Sept. 23, 2013), perm. app. denied (Tenn. Apr. 11, 2014).
The evidence adduced at the petitioner’s trial established that the petitioner
and Mrs. Collett met in October 2006 and married two months later. Id., slip op. at 2.
Because the petitioner “was very controlling and threatening from the start,” the brief
marriage ended in March 2007, and Mrs. Collett and her daughter, Ciera Bennett, moved
in with Mrs. Collett’s mother for a short time before moving into an apartment. Id.
Following the separation, the petitioner called Mrs. Collett “sometimes . . . hundreds of
[times] a day,” both prior to and after Mrs. Collett had changed her telephone number,
and the petitioner would often drive by Mrs. Collett’s residence, even going so far as to
knock on the door of Mrs. Collett’s mother’s residence. Id. Mrs. Collett eventually
contacted the police, who, after numerous calls to her apartment, advised Mrs. Collett to
seek an order of protection. Id., slip op. at 2-3. Although Mrs. Collett did obtain an order
of protection, the petitioner continued his harassment and even threatened Mrs. Collett
during a telephone call, “saying that ‘if he couldn’t have [her,] no one else could.” Id.,
slip op. at 3.
Having met with an attorney and believing that her divorce paperwork was
being processed in April, Mrs. Collett met the victim on June 8, 2007, unaware that the
divorce papers were not actually filed until June 15. Id. When Mrs. Collett met the
victim, he had already learned about her from the petitioner. Id. Mrs. Collett and the
victim began dating, which prompted the petitioner to call and text the victim multiple
times a day, demanding to know the status of the victim’s relationship with Mrs. Collett.
Id. According to Mrs. Collett, the victim instructed the petitioner to stop contacting him.
Id.
While Mrs. Collett and the petitioner were married, Mrs. Collett was aware
that the petitioner “owned quite a few guns and ammunition and would often shoot at
targets in the backyard.” Id., slip op. at 2. Following their separation, the petitioner
followed Mrs. Collett on several occasions, “including to and from church.” Id., slip op.
at 3. Mrs. Collett had filed reports with the police to document these incidents of
“stalking.” Id.
On the evening of Saturday, July 28, 2007, Mrs. Collett and Ms. Bennett
were watching television in their apartment when they heard the sound of their
windchime; a domestic violence counselor had advised Mrs. Collett to place a windchime
on her door to alert her to an intruder. Id. Mrs. Collett testified that Ms. Bennett looked
through the door’s peephole and stated, “‘Mama, it’s Len.’” Id. Mrs. Collett called 9-1-1
and reported a prowler but did not tell the 9-1-1 operator that the prowler was the
petitioner. Id. When police officers arrived at her home, the petitioner was gone. Id.
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The following morning, Mrs. Collett and Ms. Bennett attended church and
returned in the evening for a second church service. Id. Following the evening service,
the victim met Mrs. Collett at her apartment, and the pair went to dinner in Cleveland
with Ms. Bennett and Ms. Bennett’s boyfriend. Id., slip op. at 3-4. After dinner, the
foursome visited Mrs. Collett’s son. Id., slip op. at 4. During these events, the petitioner
called the victim’s cellular telephone “three or four times,” but the victim ignored the
calls. Id. After returning Ms. Bennett’s boyfriend to his residence, the trio returned to
Mrs. Collett’s apartment between 11:15 and 11:30 p.m. Id.
The victim, an electrician, was leaving to go out of
town the next day, so he had packed a suitcase. He had
previously decided to spend the night with Mrs. [Collett]
because he was “worried with everything going on[.]” Mrs.
[Collett] went into the bedroom to show the victim where to
put his suitcase and to help him pick out his clothes for the
following day. The victim’s .380 handgun, which was
holstered, was lying on a bedroom chair at that time. The
victim had brought the handgun to give to Mrs. [Collett] for
her protection. While Mrs. [Collett] was standing beside the
victim in her bedroom, she heard a “pop” and “felt . . . a
burning on [her] left hand and the side of [her] face.” She
saw blood drip onto the victim’s hand, and the victim fell to
the floor. Upon realizing that the victim had been shot, she
ran to her daughter’s room to get the phone in order to call
911. Mrs. [Collett] initially reported that the victim had shot
himself.
Mrs. [Collett] testified that the [petitioner] had
threatened to kill her at least twice, that he had said to Mrs.
[Collett’s] sister that Mrs. [Collett] “was as good as dead,”
and that in the past, he had threatened Mrs. [Collett] with a
gun. According to Mrs. [Collett], the [petitioner] did not call
her anymore after the victim had been shot.
Ms. Bennett, [who was] eighteen at the time of trial,
confirmed the many incidents of stalking, harassment, and
repetitive phone calls by the [petitioner] against her mother.
Ms. Bennett also heard some of the threats the [petitioner]
made to her mother. According to Ms. Bennett, the
[petitioner] would call and say, “Dead”; her mother would
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then ask, “What are you saying?”; and the [petitioner] would
respond, “D-E-A-D.” The [petitioner] also called Ms.
Bennett’s phone on a number of occasions, prompting her to
change her number. Ms. Bennett confirmed that she saw the
[petitioner] outside their apartment on the night before the
shooting when alerted by the windchimes.
Id., slip op. at 4 (internal footnote omitted).
Mrs. Collett’s mother testified that, during the time in which Mrs. Collett
and Ms. Bennett were living with her following the separation, the petitioner, on at least
eight occasions, would “wake her up every morning by ringing the doorbell and leaving
notes on the door,” that she had to disconnect her home telephone because of the
petitioner’s incessant calls, and that the petitioner would “follow them while they were
out.” Id., slip op. at 4-5. Mrs. Collett’s sister, Dottie Hawkins, testified that the
petitioner had once contacted her to inform her that he “was on his way to kill” Mrs.
Collett. Id., slip op. at 5. Ms. Hawkins immediately contacted the police, and police
officers responded to Mrs. Collett’s residence and escorted her from the apartment. Id.
Ms. Hawkins testified that she resembled Mrs. Collett and that she had once borrowed
her vehicle. Id. While driving Mrs. Collett’s vehicle, the petitioner attempted to run her
off the road, apparently mistaking Ms. Hawkins for Mrs. Collett. Id. Ms. Hawkins
testified that the petitioner had once threatened to “use” a weapon he was holding on her
and that the petitioner once told her “that he wanted her dead because she ‘looked like’
her sister.” Id. Ms. Hawkins estimated that the petitioner had contacted her between 100
to 150 times to make threats against Mrs. Collett and that the petitioner had also
threatened the life of Ms. Bennett. Id. Ms. Hawkins testified that she was married to
Terry Janow and that she and her husband were in bed asleep at the time of the shooting.
Id. Mrs. Collett’s friend, Janice Franklin, testified about five or six instances when the
petitioner had stalked them while they were together, including an instance when the
petitioner had followed them from church. Id. Ms. Franklin was also present with Mrs.
Collett on three or four occasions in which the petitioner called Mrs. Collett. Id.
Rhea County Sheriff’s Department (“RCSD”) Detective Chris Hall
discovered a bullet hole in Mrs. Collett’s bedroom window and a nine-millimeter shell
casing on the ground outside the window. Id. Due to a gap in the window covering,
Detective Hall had an unobstructed view into Mrs. Collett’s bedroom from outside. Id.
Detective Hall also noticed an area near the window where “moss ‘was mashed down’”
in a way that indicated “‘that someone had been standing right there at the edge of the
window.’” Id., slip op. at 5-6. Approximately 100 feet from Ms. Collett’s apartment
building, Detective Hall located a set of tire tracks with “three visible longitudinal
stripes” and “‘fresh skid marks’ where it appeared that the ‘vehicle had dragged the
-4-
underside, . . . like the vehicle had backed out, or came out and bottomed out.’” Id., slip
op. at 6. Detective Hall testified that insufficient detail in the tracks rendered a positive
identification of the vehicle impossible. Id.
RCSD Deputy Gerald Brewer measured the distance between Mrs. Collett’s
apartment and the petitioner’s residence as between 7.9 and 8.1 miles depending on the
route taken. Id., slip op. at 5. When Deputy Brewer drove the most direct route at the
posted speed limit, it took him approximately 10 minutes, but by increasing his speed to
10 to 15 miles per hour over the speed limit, he was able to make the drive in
approximately seven minutes. Id.
In the early morning hours of July 30, the defendant was brought in for
questioning by Tennessee Bureau of Investigation (“TBI”) Special Agent Luke Muhonen.
Id., slip op. at 6. The petitioner told Agent Muhonen that he had previously arranged for
his children to stay overnight with his parents because his air conditioning unit was
broken. Id. The petitioner asked to speak with an attorney, and the interview ceased at
that time. Id.
During a search of the petitioner’s property following the execution of a
search warrant, officers located two nine-millimeter shell casings. Id., slip op. at 6. TBI
testing on those shell casings as well as the shell casing found at the scene revealed that
all were fired from the same firearm, were manufactred by Winchester, and were nine-
millimeter Luger cartridge cases. Id., slip op. at 7.
The bullet which killed the victim was determined to be of
9mm caliber. Among the many brands that could have fired
the bullet recovered from the victim’s body was a Star-
manufactured weapon. There was also testimony presented
about an audit of the Soddy Daisy Pawn Shop, where the
[petitioner] had worked from August 2006 until April 2007.
While working there, the [petitioner] was often alone in the
store. The pawnshop was audited for a period of September
3, 2007, to September 2, 2008. During this audit, it was
discovered that a 9mm firearm, a Star Super brand, was
missing. The weapon was received by the pawn shop on
March 26, 2007, and the [petitioner] was the employee who
processed that transaction. The police later placed a hold on
the weapon on April 25, 2007, meaning that the item was not
for resale. The [petitioner] would have been the employee to
notate the hold on the firearm in the computer system.
-5-
Id.
Officers searched the petitioner’s vehicles on the property and discovered
the following:
Inside a Dodge Durango, officers confiscated a camera and,
on that camera, found pictures taken on July 12, 2007, of Mrs.
[Collett’s] apartment with two vehicles parked out front. The
[petitioner’s] 1993 Honda Civic was also taken from the
property for further examination. The tires on the Civic had
three longitudinal stripes, similar to the ones found on the
scene at the nearby roadbed. There were also several “fresh
scrape marks” on the undercarriage of the Civic. The marks
on the vehicle were determined to be “fresh” because they
were “real bright” and “[t]he metal was shining through[.]”
Id., slip op. at 6. With respect to the petitioner’s telephone activity on the day of and the
morning after the shooting, the State introduced the following evidence:
After learning of the shooting, the [petitioner’s] brother,
Russell Rogers, then an RCSD officer, called the [petitioner]
on his cell phone at 12:05 a.m. but received no answer.
Given the initial report of a suicide or accidental shooting at
Mrs. [Collett’s] apartment, Mr. [Rogers] was afraid [the
petitioner] was involved. [Mr. Rogers] then called his
parent[s’] house at 12:09 a.m., located next door to the
[petitioner’s], and they informed [Mr. Rogers] that the
[petitioner] “was at his house.” [Mr. Rogers] called the
[petitioner’s] house at 12:10 a.m. but still the [petitioner] did
not answer. The [petitioner] returned [Mr. Rogers’] call,
using his cell phone, at 12:12 a.m.
Daniel Witherow testified that the [petitioner] called
him from his cell phone at 12:09 a.m. and that they talked for
two or three minutes. According to Witherow, the
[petitioner] called him a second time from the [petitioner’s]
home phone at 12:16 [a.m.], again talking for two or three
minutes “at the most.” During that first call from the
[petitioner’s] cell phone, Witherow said he could hear an
oscillating fan that the [petitioner] usually kept running in his
bedroom, leading Witherow to conclude that the [petitioner]
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was at home during the call. He also recalled the
[petitioner’s] home phone ringing in the background.
In addition to the [petitioner’s] home phone, two cell
phones were linked to the [petitioner], although the
[petitioner] later disputed that one of the cell phones belonged
to him. It was determined that between 9:08 a.m. and 10:05
p.m. on July 29, 2007, the [petitioner] called the victim’s cell
phone fifteen times. The last outgoing call from the
[petitioner’s] cell phone was made at 11:08 p.m., and the next
incoming call was from his brother Russell after midnight.
The [petitioner’s] home phone records reflected an outgoing
call at 11:20 p.m., and the next call was made at 12:16 a.m. to
Witherow. The third, disputed cell phone showed an
outgoing call at 10:08 p.m. and then not another call until
1:03 a.m.
Id., slip op. at 6-7 (internal footnote omitted).
Detective Hall and Agent Muhonen interviewed Mr. Janow in relation to
the shooting and searched his home and vehicles. Id., slip op. at 8. Detective Hall
testified that Mr. Janow was not a suspect, that he was interviewed “to ‘clarify some
stuff,’” and that the search of his home and vehicles revealed no connection to the
victim’s murder. Id.
The petitioner testified and denied any involvement in the shooting, ever
threatening Mrs. Collett, or taking the firearm from the pawn shop. Id. The petitioner
denied ownership of one of the cellular telephones and insisted that his “conversations
with the victim were cordial.” Id. With respect to his telephone call to the victim on the
day of the shooting, the petitioner claimed that he had called the victim “because the
victim had called him first,” and he was merely returning the victim’s call. Id. During
his second telephone conversation with Mr. Witherow in the early morning hours of July
30, the petitioner “was aware of the shooting” at Mrs. Collett’s residence and, concerned
that he might be questioned about the shooting, told Mr. Witherow “that he was going to
write down the times of the phone calls.” Id. Mr. Witherow told the petitioner “that ‘he
would save the calls and lock them on this phone so they were there.’” Id.
The petitioner explained that the nine-millimeter shell casings found in his
home were due to a visit from Mr. Janow in which the latter had attemped to sell him a
nine-millimeter handgun. Id. Although, according to the petitioner, he and Mr. Janow
had “fired the weapon outside a few times to test it,” he did not purchase the handgun.
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Id. The petitioner also testified that, prior to his making the acquaintance of Mrs. Collett,
she and Mr. Janow had engaged in an affair. Id.
The petitioner’s father testified that, although the petitioner “‘couldn’t hit
the broad side of a barn with a handgun[,]’” the petitioner “was extremely accurate with a
‘[l]ong gun’ because he ‘was in the ROTC rifle team,’” and he confirmed that Mr. Janow
had visited the petitioner’s house in an attempt to sell him a nine-millimeter handgun. Id.
The petitioner’s brother, Mr. Rogers, testified that the petitioner “was ‘not very [good] at
all’ with a handgun” and that the petitioner “did not have a reputation for violence.” Id.
Mr. Witherow testified that, during his telephone conversation with the petitioner
immediately after the shooting, the petitioner “sounded ‘normal’ and did not sound
‘upset, or nervous, or worried.’” Id.
In its rebuttal proof, the State called one of the petitioner’s former
employees, Karen Zimmerley, who testified that she once heard the petitioner threaten to
kill his former wife, Holly Peak. Id. Ms. Peak testified that she was the mother of the
petitioner’s children and that the petitioner once told her “that ‘if he couldn’t have [her],
nobody could.’” Id., slip op. at 8-9. Ms. Peak stated that, following her separation from
the petitioner, he would frequently drive by her home and would call her “incessantly.”
Id., slip op. at 9. Ms. Peak testified that she had obtained an order of protection against
the petitioner. Id. Mrs. Collett was recalled to the stand and “denied ever having an
affair with Terry Janow.” Id.
On July 14, 2014, the petitioner filed, pro se, a timely petition for post-
conviction relief, alleging, inter alia, that he was deprived of the effective assistance of
trial counsel. Following the appointment of counsel, the post-conviction court conducted
an evidentiary hearing on November 3, 2016.
At the evidentiary hearing, trial counsel testified that he had practiced law
for 15 years and that, although his current practice focused on medical malpractice and
municipality defense, he handled criminal matters and taught criminal justice classes.
Trial counsel confirmed that he had been appointed to represent the petitioner and that the
petitioner’s was his second or third homicide case.
Trial counsel focused “pretty extensively” during his closing argument on
the lack of any eyewitnesses to the shooting, and counsel confirmed that the petitioner
had never confessed, that the murder weapon had never been found, and that there were
no fingerprints or DNA matching that of the petitioner at the crime scene. Trial counsel
agreed that the State’s case was primarily based on the testimony of Mrs. Collett, the
three bullet casings, and the nine-millimeter handgun that was missing from the
petitioner’s pawn shop, as well as the tire marks and undercarriage scrapes on the
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petitioner’s vehicle. Trial counsel admitted that he had not questioned potential jurors on
the issue of domestic violence during voir dire, but he explained that he had sought
suppression of all orders of protection and that he did not want to raise the specter of
domestic violence by mentioning such issues to the jury prior to the start of trial.
Trial counsel conceded that he did not object to Mrs. Collett’s testimony
about the handgun the victim had brought her for protection, explaining that the
testimony was not objectionable as hearsay because Mrs. Collett was testifying to what
the victim had done rather than what he had said. Moreover, counsel was concerned that
an objection would have resulted in the State’s laying a foundation for the testimony and
would have potentially led to Mrs. Collett expanding upon her testimony to include
things counsel had sought to exclude. Trial counsel did not object or ask the court to
strike Ms. Hawkins’ testimony that the petitioner had threatened her with a weapon and
had threatened Ms. Bennett because such statements were nonresponsive to his questions,
and he believed that an objection or request to strike would have served to draw more
attention to her responses. Trial counsel also thought that Ms. Hawkins’ “credibility was
generally poor” and that she had no evidence to support her testimony.
Trial counsel acknowledged that one of his first witnesses was Michael
Gaither and that he had asked Mr. Gaither for his opinion on the petitioner’s character for
peacefulness. Counsel agreed that he had opened the door for the State’s introduction of
the petitioner’s prior violent behavior, but counsel stated that he believed the State’s
rebuttal witnesses lacked credibility. In addition, trial counsel thought that Ms. Peak’s
testimony about the petitioner’s behavior toward her following their separation could
have been beneficial to the defense because the petitioner never “act[ed] on it.”
On cross-examination, trial counsel testified that another criminal defense
attorney had assisted him with the petitioner’s case, both in terms of pretrial preparation
and assistance at the trial itself. Trial counsel agreed that he had argued vehemently for
the introduction into evidence of the audio recording of Mrs. Collett’s 9-1-1 call on the
evening of Saturday, July 28 but that the trial court had ruled that the audio recording was
inadmissible. The trial court did, however, permit the defense to enter into evidence a
written transcript of the 9-1-1 call. Although trial counsel failed to have the audio
recording admitted into evidence for the purpose of identification and preservation of the
issue for appeal, counsel agreed that the appellate court found the failure constituted
harmless error on direct appeal.
Trial counsel believed Ms. Hawkins’ credibility before the jury was so poor
that “the crazier the things that she said, the better off” the case was for the petitioner.
Counsel confirmed that he, along with the petitioner and their legal team, made the
conscious decision to introduce the petitioner’s character for peacefulness through the
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testimony of the petitioner’s pastor, Mr. Gaither, and the petitioner’s father and brother.
Until the day of trial, counsel was unaware that the petitioner had any issues with his
former wife, Ms. Peak. When trial counsel cross-examined Ms. Peak, he attacked her
credibility by emphasizing that she had voluntarily relinquished custody of the couple’s
children to the petitioner and that the petitioner had then become the children’s sole
caretaker.
With respect to the issue of counsel’s failure to voir dire the jurors on
domestic violence, counsel agreed that he had asked the jurors whether any had been
accused of or had been the victim of a crime, which he believed at least covered whether
any jurors had been involved in criminal charges of domestic violence. Trial counsel also
stated that the defense theory “was that [the petitioner] had always said and testified at
trial [that] he didn’t do any of this stuff,” so trial counsel did not want to address
domestic violence.
Trial counsel sought suppression of the search warrant, and the trial court
held “two or three hearings” on the motion, but counsel did not attack the description of
the petitioner’s property that was contained in the search warrant. Attached to the search
warrant, which was executed by RCSD Investigator Chris Hall, were both an affidavit
and an exhibit, and both documents were incorporated into the search warrant. The
exhibit listed specific directions to the petitioner’s property and described the petitioner’s
residence with particularity. Trial counsel testified that he did not believe the description
of the petitioner’s property to be problematic, and he knew of no grounds to attack the
warrant on that basis.
The petitioner testified that he “had questions about the sufficiency of” his
meetings with trial counsel. The petitioner thought that there were “some of the things
[trial counsel] could have made objections to” and “some things could be stricken from
the record.” On cross-examination, the petitioner did not know “what [he] could have
specifically told” trial counsel in additional meetings, and the petitioner admitted that
trial counsel provided him with copies of his discovery materials and would answer any
questions the petitioner had.
With this evidence, the post-conviction court denied relief, finding no clear
and convincing evidence of any fact to suggest that trial counsel had rendered ineffective
assistance of counsel. In its detailed order denying relief, the court found, in pertinent
part, as follows:
[Mrs.] Collet[t] testified that [the victim] brought her a
handgun for protection against [the petitioner]. She did not
repeat anything that [the victim] had said, therefore the
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testimony is not hearsay. The testimony was relevant to
explain why there was a gun in the room and why Mrs.
Collet[t] originally thought that [the victim] had accidentally
shot himself with the gun. [The p]etitioner has failed to show
trial counsel’s performance was not reasonably effective on
this issue or the outcome of the trial would have been
different if the objection had been made[.]
....
[The p]etitioner complains that counsel did not
introduce the 911 recording as an exhibit at the trial or at the
motion for new trial. A verbatim transcript of the recording
was introduced at trial as substantive evidence. The issue was
preserved for appeal and was addressed by the appellate court
and found to be harmless error. The appellate court found
that “Any distinction regarding admission of the transcript
versus the actual tape is tedious at best.” [Roy Len Rogers,
slip op. at 35.] Any claims of ineffective assistance of
counsel in a post-conviction petition that are identical to a
petitioner’s claims on direct appeal and determined by the
appellate court not to rise to the level of plain error will also
fail to establish prejudice in a post-conviction proceeding. . . .
[The p]etitioner cannot meet his burden as to the prejudice
prong of Strickland[ v. Washington]. Further, this issue was
previously determined in favor of the State.
....
[Ms.] Hawkins testified that [the p]etitioner had
threatened her with a weapon. The testimony was
nonresponsive to the State’s question and very brief. An
objection by the defense would have only served to bring
more attention to the testimony. [Ms.] Hawkins was a biased
witness and admitted on cross-examination that she hated [the
p]etitioner. Trial counsel’s decision not to object was a
reasonable trial strategy and should not be “second guessed.”
....
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[Ms.] Hawkins testified that [the p]etitioner had
threatened [Ms.] Bennet[t]. This testimony came about on
cross-examination by the defense and was nonresponsive to
the question. The defense was able to show through cross-
examination that Ms. Hawkins had no evidence of the alleged
threats by [the p]etitioner. Trial counsel’s decision not to
object was a reasonable trial strategy and should not be
“second guessed.” . . . Even if trial counsel should have
objected, the admission of this testimony did not change the
outcome of the case under the standard of Strickland[.]
....
Michael Gaither testified about [the p]etitioner’s
character. The decision by the defense to introduce [the
p]etitioner’s character for peacefulness was a reasonably
based trial strategy. Several witnesses for the defense
testified to [the p]etitioner’s character as well. The State
cross-examined Mr. Gaither only with matters already in the
record. Trial counsel testified at the post-conviction hearing
that [the p]etitioner had not informed him of his prior threats
to Holly [Peak]. Trial counsel’s decision to introduce
character evidence was a reasonable trial strategy and should
not be “second guessed.”
....
During his cross-examination of the State’s rebuttal
witness, trial counsel asked questions of Holly [Peak] which
allowed her to testify that [the p]etitioner kept driving by her
home and calling her house all of the time after she had
broken up with him. Further questioning of Ms. [Peak] by
trial counsel resulted in her testifying that she had obtained an
Order of Protection against [the p]etitioner and that she did
not fight [the p]etitioner for custody of her children because
she was afraid for her two children.
Holly [Peak] testified regarding [the p]etitioner’s
character and [trial] counsel was obligated to challenge [Ms.
Peak’s] credibility. Counsel was able to elicit favorable
testimony from her such as: [the p]etitioner committed no acts
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of violence against her; [the p]etitioner only called or drove
by; [the p]etitioner had her parental rights terminated; and
[Ms. Peak] had a motive to be biased against [the p]etitioner.
Trial counsel’s cross-examination was a reasonable trial
strategy and should not be “second-guessed.” . . . Even if
error, the admission of this testimony did not change the
outcome of the case under the standard in Strickland[.]
....
Trial counsel pursued a trial strategy of attempting to
exclude the introduction of [Ms. Peak’s] order of protection
and any criminal charges against [the p]etitioner through
pretrial motions. Trial counsel testified he did not want to
open the door for the State to address these issues in front of
the jury nor infer such conduct by [the p]etitioner from any
questions on the subject. Counsel made a reasonably based
trial strategy not to voir dire potential jurors regarding
domestic violence.
....
An address for the place to be searched is not required
in a search warrant. The test of the legal sufficiency of a
search warrant’s description is whether or not it points to a
definitely ascertainable place so as to exclude all others and
enables an officer to locate the place to be searched with
reasonable certainty. The description is sufficient if it
informs the officer how to get there by direction. In rural
areas, the description of the premises occupied by a named
person is sufficient even though the property is incorrectly
described. An incorrect description can also be overcome if
the affiant is the same officer that executed the search
warrant. Where the description in the affidavit is
incorporated by reference in the warrant, the warrant is valid
since the description is then a part of the search warrant.
O’Brien v. State, 158 Tenn. 400, 14 S.W.2d 51 (1929).
The search warrant in this case states that the evidence
is “on the premises of Len Rogers more particularly described
in Exhibit “A” to the Affidavit and made a part of this
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Warrant as if copied verbatim herein.” The affidavit for
search warrant states, “Len Rogers’ residence is more
particularly described in Exhibit “A” attached to and made
part of this Affidavit as if copied verbatim herein.” The
description in Exhibit “A” leads to [the petitioner’s] premises
by direction, describes the driveway, describes the mobile
home, describes the porch, and states the property is [the
petitioner’s] residence or is under his control. Investigator
Chris Hall was the affiant in the search warrant and the
officer that executed the search warrant. The [p]etitioner has
not shown a motion to suppress regarding the description
would have been successful and failing to file the motion
would not have changed the outcome of this case under the
standard in Strickland[.]
In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to include in his
motion to suppress the search warrant’s lack of a particular description of the petitioner’s
property; failing to object to Mrs. Collett’s testimony regarding the victim’s reason for
providing her with a firearm; failing to object to Ms. Hawkins’ testimony regarding the
petitioner’s prior bad acts; opening the door to evidence of the petitioner’s character for
violence; failing to include the audio recording of the 9-1-1 call as part of the record on
direct appeal; and failing to voir dire potential jurors on the issue of domestic violence.
In addition, the petitioner contends that the cumulative effect of these errors prevented
him from receiving a fair trial. The State contends that the court did not err by denying
relief.
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
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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
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 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) (citing Strickland, 466 U.S. at 689), 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 claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010);
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453,
461 (Tenn. 1999). When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).
In our view, the record fully supports the denial of relief in this case. Trial
counsel’s reasoning for not objecting to Mrs. Collett’s testimony about the victim’s
purpose in providing her with a handgun or to Ms. Hawkins’ testimony about the
petitioner’s prior threats were “reasonably based trial strateg[ies]” that we will not
“second-guess.” See Adkins, 911 S.W.2d at 347. Likewise, trial counsel’s decisions to
introduce evidence of the petitioner’s character for peacefulness and refrain from
questioning potential jurors about domestic violence were reasonable trial strategies
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employed after adequate trial preparation. See id.; Cooper, 847 S.W.2d at 528. With
respect to the failure to include the 9-1-1 audio recording in the record on appeal, this
court previously found that the failure to include the audio recording was harmless, see
Roy Len Rogers, slip op. at 35, and thus, the petitioner cannot show that the failure to
include the recording would have resulted in a different outcome. Strickland, 466 U.S. at
694. Additionally, the petitioner has failed to show how trial counsel’s failure to seek
suppression of the search warrant on the basis of an alleged insufficient description of the
petitioner’s property would have affected the outcome of his trial.
Given the overwhelming evidence against the petitioner, he cannot
establish that, but for counsel’s alleged errors, the outcome would have differed. See
Strickland, 466 U.S. at 694. As such, we hold the petitioner has failed to prove by clear
and convincing evidence any facts that demonstrate that trial counsel’s representation
was deficient or prejudicial. Finally, having considered the petitioner’s issues on appeal
and having concluded that he is not entitled to relief for any, we need not consider the
cumulative effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010)
(“To warrant assessment under the cumulative error doctrine, there must have been more
than one actual error committed.”).
The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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