Gary Lee Bragg, Jr. v. State of Tennessee ( 2024 )

10/30/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 27, 2024
GARY LEE BRAGG, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 117446 Hector Sanchez, Judge
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No. E2023-01247-CCA-R3-PC
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Petitioner, Gary Lee Bragg, Jr., claims that trial counsel provided ineffective assistance by
failing to request that the jury be instructed on the lesser-included offenses of aggravated
burglary. The post-conviction court found that trial counsel “was deficient for not
requesting applicable lesser-included jury instructions” but found that “Petitioner was not
prejudiced as a result” and denied relief. We determine that trial counsel’s decision not to
request an instruction on lesser-included offenses was an “informed choice based upon
adequate preparation,” Moore v. State, 485 S.W.3d 411, 420 (Tenn. 2016), and that
Petitioner failed to overcome the presumption that counsel provided adequate assistance
and used reasonable professional judgment to make the strategic decision to employ an
“all-or-nothing” defense strategy. We agree with the post-conviction court’s ruling that
Petitioner failed to prove the prejudice prong of Strickland v. Washington, 466 U.S. 668,
687 (1984). Discerning no reversible error, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and MATTHEW J. WILSON, JJ., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Gary Lee Bragg, Jr.
Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney
General; Charme P. Allen, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Petitioner was convicted following a jury trial of two counts of Class C felony
aggravated burglary, two counts of Class A misdemeanor drug possession, and one count
of Class A misdemeanor possession of burglary tools. The trial court sentenced Petitioner
to twelve years for each aggravated burglary conviction and eleven months, twenty-nine
days for each misdemeanor conviction. The court aligned the two aggravated burglary
sentences consecutively and the misdemeanor sentences concurrently for an effective
sentence of twenty-four years. This court affirmed the judgments on direct appeal. State
v. Bragg, No. E2018-01789-CCA-R3-CD, 2019 WL 4054961, at *1, *4 (Tenn. Crim. App.
Aug. 28, 2019), perm. app. denied (Tenn. Jan. 15, 2020).
Factual Summary
On November 23, 2015, Knoxville Police Officer Raiques Crump responded to a 9-
1-1 call regarding a burglary of a home on Iredell Avenue, where Frederick Dorsett and his
son lived. Id. at *1. Officer Crump said that a side door appeared to have been “pried
open” by some type of object and that the home had been “ransacked.” Id. Mr. Dorsett
testified that various items, including a computer, had been taken from the home. Id. He
said the police later returned his computer. Id.
On November 25, 2015, Knoxville Police Officers David Gerlach and Roger
McNutt were dispatched in response to two 9-1-1 calls. Id. at *1-2. In one call, a female
caller reported that “someone had ‘broken into’ a neighboring apartment” on Gallaher
View Road and “that the men were still inside the apartment.” Id at * 1. The caller
provided directions to the apartment and said she would remain “on the line until police
officers arrived and placed the men in custody.” Id.
Miguel Martinez testified that he lived at the apartments on Gallaher View Road.
Id. at *3. He said that he saw two men on the second floor of the apartment building and
that he first thought they “might have been locked out of their apartment.” Id. A short
time later, Mr. Martinez noticed “that the apartment door where the men had been standing
had been ‘busted into,’” and he saw “a man peeking out of the window.” Id. Mr. Martinez
called 9-1-1 and waited inside his car until the police arrived, and then he pointed out the
apartment. Id.
Officer Gerlach testified that when he arrived “he saw two men leaving the
apartment where a burglary had been reported.” Id. at *1. The men were ordered to lie
down, and they were handcuffed and searched. Id. Officer Gerlach found a set of keys
with a key fob when he searched Petitioner. Id. When Officer Gerlach activated the key
fob, the headlights of a vehicle in the parking lot flashed. Id. At Officer Gerlach’s request,
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a police dog unit came to the scene. Id. After “the dog ‘did a passive alert’ for the presence
of narcotics,” Officer Gerlach searched the vehicle. Id. Officer Gerlach found marijuana,
Opana pills, and Petitioner’s identification in the vehicle’s center console. Id. He also
found “four computers and a Kindle tablet” on the back seat. Id. Officer Gerlach entered
serial numbers of the computers into the National Crime Information Center (“NCIC”)
database. Id. The serial number on one computer matched the serial number of a computer
that had been reported stolen from the Iredell Avenue home. Id.
Officer Gerlach testified that the front door to the apartment “had been broken and
that a pry bar was found on a sofa cushion inside the apartment.” Id. at *2. Inside the
apartment, he found “that two PlayStation consoles had been disconnected and placed on
the floor in the middle of the room.” Id. He also found inside the apartment an “SKS
assault rifle” which was loaded with “thirty-seven live rounds,” a “.45-caliber Glock
handgun,” and a small bag of marijuana. Id.
Officer McNutt testified that he also responded to the incident on Gallaher View
Road and that, before entering the apartment, he spoke to Mr. Martinez, who stated that
the men were still inside the apartment. Id. at *3. Officer McNutt stated that, when
Petitioner and co-defendant Iran Lyons walked out of the apartment, Officer Gerlach
ordered them to lie down and placed them in handcuffs. Id.
Ariella Douglas testified that she lived in the Gallaher View Road apartment that
was burglarized. Id. at *2. She testified “that her apartment had been ‘trashed’ and that
the rifle, the handgun, and the pry bar found inside her apartment did not belong to her.”
Id. She testified that the guns and marijuana were not inside her apartment when she left
for work and that she “did not give [Petitioner] and codefendant Lyons permission to enter
her apartment.” Id.
Petitioner testified at trial that, “on the night of his arrest, he and codefendant Lyons
went to the apartment complex to visits their friends, C.C. and Tonya.” Id. at *3. Petitioner
said that “nobody was at the apartment when they arrived and that, when they were leaving,
they saw a police car pull into the parking lot.” Id. Petitioner said they initially turned
around and walked back up the steps toward the apartment because codefendant Lyons had
an outstanding arrest warrant. Id. He said that they decided to go back down the steps to
leave because they “had done nothing wrong.” Id. Petitioner claimed that “as they walked
down the steps, the police officers ‘jumped out’ with their firearms pointed at them and
instructed them to lie on the ground.” Id. He said “the officers placed him under arrest,
searched him, took his car keys, and placed him in the back of a police car.” Id.
On cross-examination, Petitioner testified that “he and codefendant Lyons knocked
on the door of apartment 208 and that he did not pay attention to determine if anyone was
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attempting to break into Ms. Douglas’s apartment.” Id. at *4. He also stated that “he never
entered Ms. Douglas’s apartment,” that he “did not recall seeing anyone run from Ms.
Douglas’s apartment,” and that “he and codefendant Lyons did nothing wrong.” Id.
Petitioner admitted that he owned the vehicle in which the marijuana and Opana pills were
found and that the marijuana and pills belonged to him. Id. He “agreed that the laptop
computers found inside his car did not belong to him and that one of the computers
belonged to Mr. Dorsett. Id. Petitioner said that he did not know Mr. Dorsett and that, two
weeks before his arrest, he bought “all of the laptops ‘off the street’” from a man named
“Jim[] from the east side,” whom he described as “a crackhead.” Id. Petitioner said he
bought the computer owned by Mr. Dorsett as a Christmas gift. Id. Petitioner testified that
his fingerprints were not found on anything inside Ms. Douglas’ apartment, that he was not
wearing gloves, and that none of Ms. Douglas’s property was in his possession at the time
of his arrest. Id.
Petitions for Post-Conviction Relief
On April 22, 2020, Petitioner filed a pro se Petition for Post-Conviction Relief (“the
Pro Se Petition”), claiming that he received ineffective assistance of counsel. Petitioner
did not state in the Pro Se Petition how trial counsel’s representation was deficient. Instead,
Petitioner claimed that there was insufficient evidence to support his convictions and that
the trial court erred in its ruling on several evidenciary issues. Petitioner also claimed that
appellate counsel was ineffective for failing to raise “all of the issues” in the direct appeal.
Appointed post-conviction counsel filed an amended petition (“the First Amended
Petition”), raising two grounds of ineffective assistance of counsel: (1) trial counsel failed
to request that the jury be charged with the lesser-included offenses of aggravated burglary,
and (2) appellate counsel failed to raise on appeal the trial court’s failure to grant the motion
to suppress evidence discovered during the search of Petitioner’s vehicle. Post-conviction
counsel filed a second amended petition (“the Second Amended Petition”), raising two
additional grounds: (1) trial counsel was deficient in failing to object to the State’s notice
of enhancement factors, and (2) Petitioner’s due process rights were violated when the trial
court allowed the enhancement notice to be filed during trial.
Post-Conviction Hearing
The following dialogue is quoted from the transcript of the direct examination of
Petitioner, with questions posed by post-conviction counsel and answers provided by
Petitioner:
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Q. All right. You also allege in your petition that the trial court did
not charge any lesser-included offenses or certain lesser-included offenses in
the jury instructions?
A. They didn’t put no -- [the trial judge] didn’t put no lesser-included
offenses in the jury instructions.
Q. Okay. Did [trial counsel] have any discussion with you prior to
the jury charge about what was going to be charged to the jury?
A. No, he didn’t have -- he didn’t say nothing about lesser-included
offenses. He didn’t explain nothing. He didn’t do nothing.
Q. Okay. And do you recall whether [trial counsel] made any
objections at trial --
A. He didn’t make no --
Q. -- to the jury as charged -- to the jury --
A. He didn’t make no objections at the trial.
Q. Okay. What jury instructions did you want included that were not
included?
A. Due to the witness getting on the stand and saying -- stating that
nothing was t[a]ken and nothing was stolen and basically the apartment was
just vandali[zed]. I was wanting like burglary, it was -- I wanted like
aggravated burglary, burglary, criminal trespassing, vandalism. That’s what
I wanted in the jury instructions.
Q. Okay. But those lesser[-]includeds were not charged?
A. Weren’t none of them charged. They didn’t give the jury nothing
to, nothing to decide for but aggravated burglary.
Q. Okay. Did [trial counsel] have any discussion with you about any
rationale for not including lesser-included[s] or charging lesser-included[s]?
A. [Trial counsel] didn’t speak on that matter. He didn’t say nothing
about it.
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Q. No discussion that it might have been a trial tactic or anything?
A. No. I looked it, I looked it up myself, but I knew that it was
supposed to be lesser[-]included[s] in the jury instructions. I got a few cases,
but I didn’t bring them with me today, but it say it mandatory supposed to
have lesser-included offenses in the jury instructions.
In regard to the Iredell Avenue burglary, Petitioner testified on direct examination
as follows:
I didn’t do none of that, and then one of the burglaries, [the assistant
district attorney] got me found guilty for charged for one of the burglaries, I
was never on the scene. Only thing they did on the illegal search and seizure,
went in my car, found a computer that I bought off the street from a guy, was
fixing to give to my family for Christmas and [the assistant district attorney]
charged me with aggravated burglary for that.
And the guy got on the stand and said he didn’t even know me, never
seen me or nothing. My fingerprints wasn’t in the house or nothing to tie me
to no burglary. If anything, I should have been charged with a theft, not an
aggravated burglary.
On cross-examination, Petitioner agreed that his defense at trial was that he was
never in the apartment on Gallaher View Road and that he was “walking up the steps and
[he] passed by the burglar who was running out of the apartment.”
Trial counsel testified that the trial date was set when he was appointed to represent
Petitioner. During direct examination by the State, trial counsel provided the following
explanation of the reasons he decided not to request the jury be instructed on lesser-
included offenses:
[T]he investigator and I went to the scene. Investigated the scene, went
around the building. There was some indication, I think came out at trial, of
the possibility that the actual perpetrators had gone out the back window or
had run down the steps passing [Petitioner].
There were some identification issues based on the color of
[Petitioner’s] jacket that was described. [Petitioner] was wearing -- I
remember he was wearing a NASCAR jacket, I believe, that was blue with
white sleeves, and there was some confusion whether it was a blue coat or a
white coat.
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We discussed -- [Petitioner] was insistent that he did not go into the
apartment. So[,] he didn’t actually enter that apartment. There was video
from a cruiser, which I think the officer testified they could see him look
through the window. So we went over that video, showed that, looked over
that, discussed the scene. I know that we went -- the investigator and I went
several times to the scene based on conversations we had with [Petitioner]
about how things could have been, if they could have gone out the back of
the stairwell or some, you know, some other way other than back toward the
sidewalk where [Petitioner] actually came in contact with the officer.
When asked if he came up with “a plan for this trial,” trial counsel stated:
Yes, and I -- part of that was [Petitioner] was, again, he was insistent
that he was not in that apartment. So[,] we kind of went with that, and . . .
part of our strategy was that if he wasn’t in the apartment, it was an all or
nothing.
And that was part of why we didn’t do lesser-includeds because we
didn’t want to take a position -- we didn’t want to hedge a position and say,
yeah, we partially did this or, you know, maybe we did it, but we’re saying
we didn’t but we might have.
We didn’t want to take that position and so we -- and [Petitioner] -- I
think we talked about it. I recall having discussions, and I know we talked
about it, the investigator and I talked about it at length, about how to go
forward and what our -- how to present the defense and what we would
present that.
And that was, that was part of why we didn’t have lesser-includeds,
and I believe we had a colloquy with [the trial court] about there was no
allegation that there was any -- that, that it would -- that would have led to a
lesser-included argument.
And we weren’t making that defense. So[,] I think that was part of
why nothing was included there.
During post-conviction counsel’s cross-examination of trial counsel, the following
exchange occurred:
Q. Okay, okay. Did you specifically discuss with [Petitioner] the
question of whether to ask for lesser[-]included offenses?
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A. I think we did because I think I remember the conversation right
there and talking to him about it, you know, if he wasn’t there, he didn’t go
in at all, then we can’t -- we don’t want -- maybe I said we can’t, but we don’t
want to be in the position -- we can’t put ourselves in the position of then
asking to be found in there.
So[,] I do remember having that. “If you weren’t in there, we weren’t
in there” conversation. I don’t know if that was -- I can’t say for sure when
that conversation happened, a hundred percent. But I mean I’m pretty sure
that’s -- that would have been the time we would have had that conversation
was when we were talking about what was going to be in the, you know,
whether we were going to have lesser-includeds or not included in the jury
instructions, so.
Q. Well, you would agree with me that there was proof in the record
that might have supported one or more of those lesser-included offenses?
A. Well, sure. I mean, if they found that he had been in there, it would
have supported that, yeah.
Trial counsel also agreed that there were two aggravated burglaries and that the laptop
computer found in Petitioner’s car was supposedly stolen in one of the burglaries.
Post-Conviction Court’s Order
Following the hearing, the post-conviction court took the matter under advisement
and issued a written order. The court denied all grounds raised in the Pro Se Petition, other
than the general claim that Petitioner received the ineffective assistance of counsel, because
these grounds “could have been . . . and should have been addressed on direct appeal.” The
court found that the State timely filed a notice of the enhancement factors that applied to
Petitioner’s case and denied relief on all claims raised in the Second Amended Petition.
The court stated that it would consider Petitioner’s claim that trial counsel provided
ineffective assistance by “failing to request jury instruction on applicable lesser-included
offenses” but denied all other grounds for relief in the First Amended Petition.
The post-conviction court noted that trial counsel “testified that the defense in
Petitioner’s case was that law enforcement got the wrong guy and therefore, the strategy
was not one involved in arguing a lesser degree of culpability which would support lesser-
included offenses, but rather actual innocence.” The court stated that trial counsel “testified
that in hindsight, he believed the proof fairly raised potential lesser-included offenses
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regarding the aggravated burglary counts.” Concerning trial counsel’s failure to request
that lesser-included offenses be charged to the jury, the post-conviction court concluded:
In considering whether [trial counsel] performed deficiently, and
[whether] the deficient performance prejudiced [] Petitioner, the [c]ourt is
guided to Moore v. State, 485 S.W.3d 411 (Tenn. 2016). In the Moore case,
the Tennessee Supreme Court was faced with facts very analogous to the case
sub judice. The defense at trial [in Moore] was an all-or-nothing defense in
which the jury was going to believe that the defendant was not there entirely
or find him guilty as charged. The defense attorney further failed to request
jury instructions on lesser-included offenses in writing as well. The same
occurred in this case. In a decision authored by Justice Sharon Lee, the
[s]upreme [c]ourt found that although trial counsel was deficient for failing
to request jury instructions on lesser-included offenses, he was not prejudiced
and therefore fell short of satisfying the [second prong] of Strickland because
a reasonable jury would not have convicted him of a lesser-included offense
given the record. Id. For the purposes of this Petition, the [c]ourt does find
that [trial counsel] did perform deficiently by not requesting jury instructions
on lesser-included offenses of counts 1 and 2 charging aggravated burglary.
In reviewing the record in the case sub judice, the [c]ourt finds that
the proof was simply overwhelming regarding Petitioner’s guilt in the two
aggravated burglary counts of the indictment. In the Gallaher View Road
aggravated burglary, Petitioner was seen by an eyewitness inside of the
victim’s apartment. Petitioner was taken into custody by responding officers
just after exiting the apartment. Regarding the Iredell Avenue aggravated
burglary, Petitioner was found with a computer that was reported stolen just
two days later when he was arrested during the commission of the Gallaher
View apartment investigation. Furthermore, the proof in the record
established that Petitioner’s co-defendant knew the victim’s daughter and
where she lived in the Iredell investigation. In short, a reasonable and
properly instructed jury would have convicted Petitioner as charged and
therefore, he has failed to show this [c]ourt that he suffered prejudice from
the deficient performance of trial counsel. In Moore, the [s]upreme [c]ourt
considered the prejudice analysis through three factors: (1) the distinguishing
element between the greater and lesser offenses, (2) the strength of the
evidence of the distinguishing element, and (3) the existence of contradicting
evidence of the distinguishing element. Id. at 423.
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The post-conviction court found Petitioner failed to prove by clear and convincing
evidence the prejudice prong of Strickland and denied relief on Petitioner’s claim for
ineffective assistance of trial counsel.
Petitioner timely appealed.
ANALYSIS
In this appeal, Petitioner asserts that “trial counsel was constitutionally ineffective
for failing to request lesser-included jury instructions” and that the error “was prejudicial.”
The State responds that “trial counsel made an informed and strategic decision to not
request these lesser-included instructions, and [P]etitioner was not prejudiced by this
decision.” The State argues that the post-conviction court properly denied relief because
Petitioner failed to meet his burden of proving both prongs of Strickland. We agree with
the State.
Standard of Review
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Phillips v. State, 647 S.W.3d 389,
400 (Tenn. 2022). Post-conviction relief cases often present a “mixed question of law and
fact.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial court’s
findings of fact under a de novo standard with a presumption that those findings are correct
unless proven otherwise by a preponderance of the evidence. Phillips, 647 S.W.3d at 400;
Tenn. R. App. P. 13(d). The trial court’s conclusions of law and application of the law to
factual findings are reviewed de novo with no presumption of correctness. Phillips, 647
S.W.3d at 400; Howard v. State, 604 S.W.3d 53, 57 (Tenn. 2020).
Both the United States Constitution and the Tennessee Constitution guarantee a
criminal defendant the right to receive effective assistance of counsel. Strickland, 466 U.S.
at 686; Moore, 485 S.W.3d at 418. The standard used to determine if counsel provided
effective assistance is “whether the advice given, or the services rendered . . . are within
the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). “Counsel’s representation becomes ineffective when it ‘so
undermine[s] the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.’” Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013);
quoting Strickland, 466 U.S. at 686.
“To prevail on a claim of ineffective assistance of counsel, a petitioner must
establish both that counsel’s performance was deficient and that counsel’s deficiency
prejudiced the defense.” Moore, 485 S.W.3d at 419, citing Strickland, 466 U.S. at 687. To
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show that a trial counsel’s performance was deficient, “a petitioner must show that
counsel’s acts or omissions were so serious as to fall below an objective standard of
‘reasonableness under prevailing professional norms.’” Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006) (citing Strickland, 466 U.S. at 688). This standard does not entitle a
petitioner to perfect representation, but only constitutionally adequate representation.
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). A reviewing court “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 669; see Phillips, 647 S.W.3d
at 407. A petitioner “must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” State v. Honeycutt, 54
S.W.3d 762, 767 (Tenn. 2001) (quoting Strickland, 466 U.S. at 669).
Jury Instructions as to Lesser-Included Offenses
A criminal defendant has “a constitutional right to a complete and correct charge of
the law, so that each issue of fact raised by the evidence will be submitted to the jury on
proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011). However, a
trial court is not required to give an instruction “simply because an offense is a lesser-
included offense of another.” State v. Dellinger, 79 S.W.3d 458, 496 (Tenn. 2002) (citing
State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000)). In deciding whether to charge a lesser-
included offense, the trial court should undertake a two-step analysis. Burns, 6 S.W.3d at
469. “First, the trial court must determine whether any evidence exists that reasonable
minds could accept as to the lesser-included offense.” Id. “Second, the trial court must
determine if the evidence, viewed in this light, is legally sufficient to support a conviction
for the lesser-included offense.” Id.
Tennessee Code Annotated section 40-18-110(a) provides in pertinent part:
When requested by a party in writing prior to the trial judge’s instructions to
the jury in a criminal case, the trial judge shall instruct the jury as to the law
of each offense specifically identified in the request that is a lesser included
offense of the offense charged in the indictment or presentment . . . unless
the judge determines that the record does not contain any evidence which
reasonable minds could accept as to the lesser[-]included offense.
“Absent a written request, the failure of a trial judge to instruct the jury on any
lesser[-]included offense may not be presented as a ground for relief either in a motion for
a new trial or on appeal.” Tenn. Code Ann. § 40-18-110(b). However, the failure of trial
counsel to make a written request for an instruction on a lesser-included offense can
amount to deficient performance if counsel’s decision was not “an informed choice based
upon adequate preparation.” Moore, 485 S.W.3d at 419-20.
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In this case, Petitioner was charged with two aggravated burglaries. The first
burglary occurred on November 23, 2015, at Mr. Dorsett’s residence on Iredell Avenue;
the second occurred on November 25, 2015, at Ms. Douglas’s apartment on Gallaher View
Road. Based on the evidence presented at trial, the lesser-included offenses for aggravated
burglary included attempted aggravated burglary, facilitation of aggravated burglary,
burglary, attempted burglary, facilitation of burglary, aggravated criminal trespass,
attempted aggravated criminal trespass, and criminal trespass. See State v. Terry, 118
S.W.3d 355, 359 (Tenn. 2003).
A. Trial Tactics
Trial counsel and his investigator visited the Gallaher View Road address multiple
times to prepare for trial and to develop a trial strategy. Based on the investigation and
Petitioner’s insistence that neither he nor codefendant Lyons entered Ms. Douglas’s
apartment or committed any criminal offense, trial counsel decided to employ an “all or
nothing” strategy in the Gallaher View Road aggravated burglary and argue that the actual
perpetrators had gone out the back window or had run down the steps. Concerning the
Iredell Avenue aggravated burglary that occurred two days before the Gallaher View Road
aggravated burglary, trial counsel knew that a door had been kicked in at Mr. Dorsett’s
residence and that a laptop computer had been reported stolen. A laptop computer
matching the serial number of Mr. Dorsett’s stolen computer was found during the search
of Petitioner’s car, which was parked in the parking lot of Ms. Douglas’s apartment.
Counsel also knew that Petitioner claimed that he bought Mr. Dorsett’s laptop computer
from a “junkie” two weeks before the aggravated robbery of Ms. Douglas’s apartment.
B. Presumption that Counsel Provided Adequate Assistance
Trial counsel devised a trial strategy which included a decision not to request
instructions on lesser-included offenses on either count of aggravated burglary after
conducting pretrial investigation and preparation. Petitioner’s testimony at trial provided
no reason for trial counsel to change his trial strategy before the jury was charged. Trial
counsel was aware that there were lesser-included offenses of aggravated burglary that he
could request to be charged to the jury. Petitioner has not met his burden of proving that
the trial counsel’s failure to request a lesser-included offense instruction was not an
informed strategic decision which was reasonable based on the facts known to him and the
law applicable to Petitioner’s case.
There is a “strong presumption that counsel provided adequate assistance and used
reasonable professional judgment to make all strategic and tactical significant decisions.”
Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014). Petitioner bore “the burden of
overcoming this presumption.” Id. Although trial counsel’s trial strategy was not
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successful, we will not afford Petitioner “the benefit of hindsight, second-guess a
reasonably based trial strategy, or provide relief on the basis of a sound . . . tactical decision
made during the course of the proceedings.” Berry v. State, 366 S.W.3d 160, 172 (Tenn.
Crim. App. 2011).
C. Distinguishing the Facts of Moore
The post-conviction court found that the facts in this case were “very analogous” to
the facts in Moore v. State, 485 S.W.3d 411. Although the post-conviction court was
correct to a certain extent, we determine that a key fact in Moore is not present in this case.
In Moore, just like in this case, trial counsel failed to request jury instructions on lesser-
included offenses, and the jury was faced with “an all-or-nothing defense” in which the
jury, if they reached a verdict, could either find the defendant guilty as charged or find him
not guilty. Id. The supreme court in Moore, like the post-conviction court in this case,
determined that trial counsel was deficient for failing to request jury instructions on lesser-
included offenses. Id. at 426. What distinguishes the facts in Moore from the facts in this
case is, that in Moore, the supreme court determined that “[t]rial counsel’s decision to
forego requesting instructions on any lesser-included offenses . . . was not an informed
choice based upon adequate preparation.” Moore, 485 S.W. 3d at 420 (emphasis added).
The fact that the proof at trial supported an instruction for lesser-included offenses,
standing alone, does not establish deficient performance. Moore, 485 S.W.3d at 419. In
this case, Petitioner has failed to show that trial counsel’s strategic decision not to request
that the court instruct the jury on lesser-included offenses was “so deficient as to fall below
an objective standard of ‘reasonableness under prevailing professional norms.’” Vaughn,
202 S.W.3d at 120 (quoting Strickland, 466 U.S. at 688).
Trial counsel made a strategic decision, after investigation and preparation, to seek
an acquittal on the charged counts and not to request instructions on any lesser-included
offenses. Trial counsel’s decision was an informed choice based on a reasonable, although
unsuccessful, strategy. Petitioner has failed to show that counsel’s trial strategy was not
reasonable “under prevailing professional norms.” Id. We determine that the evidence
preponderates against the post-conviction court’s finding that post-conviction counsel was
deficient in failing to request an instruction on lesser-included offenses.
D. The Prejudice Prong of Strickland
The post-conviction court concluded that Petitioner failed to show that he suffered
prejudice, finding that (1) “the proof was simply overwhelming regarding Petitioner’s guilt
in the two aggravated burglary counts of the indictment,” and (2) a jury instructed on lesser-
included offenses “would have convicted Petitioner as charged.” Those findings are
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presumed correct, and we determine that the evidence does not preponderate against those
findings.
Conclusion
We affirm the judgment of the trial court denying post-conviction relief.
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ROBERT L. HOLLOWAY, JR., JUDGE
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