Howard Burnett v. State of Tennessee

05/11/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 17, 2021 Session
HOWARD BURNETT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 94159 Scott Green, Judge
No. E2020-00697-CCA-R3-PC
The petitioner, Howard Burnett, appeals the denial of his petition for post-conviction relief,
which petition challenged his conviction of first degree murder, alleging that he was
deprived of the effective assistance of counsel. Because the petitioner failed to show that
he was prejudiced by trial counsel’s representation, 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 ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Howard Burnett.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
A Knox County Criminal Court jury convicted the petitioner of first degree
murder for the shooting death of the victim, Eric Clark, and the trial court imposed a life
sentence. State v. Howard W. Burnett, No. E2007-01788-CCA-R3-CD, 2008 WL 4613531at *1 (Tenn. Crim. App., at Knoxville, Oct. 1, 2008).
The evidence at trial showed that, on the evening of May 26, 2005, the
petitioner, the victim, and “a large group” were hanging out in the parking lot of the
Ridgebrook Apartments in Knoxville. The petitioner left the parking lot after becoming
angry at the victim for flirting with the petitioner’s girlfriend. Soon after the petitioner left,
the petitioner’s friend, Jerome Goines, became “extremely upset because some men from
across town had threateningly flashed their weapons at [Mr.] Goines while driving through
the Ridgebrook complex.” Id.The petitioner returned to the parking lot upon Mr. Goines’ request because
Mr. Goines “wanted to take some action against the men from across town. The victim
opposed this plan and had apparently persuaded [Mr.] Goines to hand over his gun.” Id.Mr. Goines and the petitioner argued with the victim about the gun, and, eventually, the
“victim angrily le[ft] the parking lot . . . , driving in the direction of [his] residence,” and
Mr. Goines and the petitioner “wandered down the hill away from the parking lot area.”
“The victim returned [15] to [20] minutes later . . . . carrying an open bottle of beer and
had a .38 caliber revolver in each of his back pockets.” The victim began searching for the
petitioner and Mr. Goines, “finding them only when they returned to the parking lot area a
few minutes later.” Id., at *1-2.
The petitioner, Mr. Goines, and the victim “began to argue again.” Id. at *2.
At some point, the argument “became violent” and escalated into a shoving match. “Soon
after” the fight broke out, the petitioner
fired [11] rounds, in what might be characterized as three
stages. First, he fired eight rounds into the victim’s torso in
rapid succession as the victim ran from him in an attempt to
take cover behind a nearby car. . . . These injuries caused the
victim to fall onto his back. He continued to move slightly in
an effort to escape.
Next, the [petitioner] walked a few feet to the victim’s
location, stood over him, and fired two additional rounds into
the victim’s head. In addition to . . . testimony that the victim
was moving as the [petitioner] walked over to him, [the Knox
County Medical Examiner, Doctor Sandra Elkins] testified that
the large quantity of blood released from the resulting head
wounds indicated that the victim still had relatively high blood
pressure, and he was thus still alive at the time the [petitioner]
shot him in the head. . . .
Finally, the [petitioner] fired once into the air,
threateningly yelling “did anyone see anything?” [Mr.]
Goines, meanwhile, had started the [petitioner’s] car. The
[petitioner] sat down in the passenger seat, and the two drove
off.
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Id. at *2.
The petitioner filed a timely petition for post-conviction relief. After the
appointment of counsel, the petitioner filed an amended petition,1 alleging that he was
deprived of the effective assistance of counsel.
At the February 19, 2020 evidentiary hearing, trial counsel testified that he
was appointed to represent the petitioner after the petitioner’s original attorney withdrew.
Trial counsel stated that the State had extended a plea offer when the petitioner was
represented by prior counsel and that the petitioner had rejected that offer. Trial counsel
said that the State indicated that it would be willing to renegotiate a plea agreement with
trial counsel. The parties did not reach an agreement, however, and the case proceeded to
trial. Counsel stated that he worked with the petitioner’s prior attorney in preparing for
trial and that he obtained all the discovery materials. Counsel also said that he visited the
crime scene, interviewed witnesses, and talked with Mr. Goines’ attorney about Mr.
Goines’ potential testimony. Counsel explained that his defense strategy was to argue that
the petitioner shot the victim in defense of a third person.
Trial counsel acknowledged that the court officer “tasked with interacting
with the jury and securing the jury” answered a question from a juror regarding the order
in which the jury could consider lesser included offenses “if they couldn’t agree on the
greatest charge.” Counsel recalled that, after the trial court learned that the court officer
had provided an incorrect statement of the law in responding to the juror’s question, the
trial court brought the jury back into the courtroom prior to the jury’s reaching a verdict.
The trial court instructed the jury that “[t]hey had to be unanimous on the first degree
murder” charge “before they could acquit” on that charge. Regarding his failure to move
for a mistrial at that time, counsel stated, “I thought I had moved for a mistrial and if I
didn’t, I would have now, and I couldn’t tell you why I didn’t at that time.”
In its written order denying post-conviction relief, the post-conviction court
found that, although the trial court bailiff incorrectly instructed the jury as to the order in
which they must consider the offenses, the trial court “promptly and correctly instructed
the jury on the law and corrected the bailiff’s erroneous instruction,” and, consequently,
that a mistrial was not warranted.
In this timely appeal, the petitioner reasserts his claims of ineffective
assistance of counsel, arguing that trial counsel performed deficiently by failing to move
for a mistrial after the bailiff’s improper communication with the jury.
1
Because the petitioner was appointed three different attorneys over the course of the post-
conviction proceedings, he filed three amended petitions, the third of which incorporated all the claims
raised in the prior petitions.
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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
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).
Although we agree with the petitioner that trial counsel’s failure to move for
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a mistrial amounted to deficient performance, under the circumstances of this case, the
petitioner has failed to establish that he was prejudiced by counsel’s conduct.
A criminal defendant is guaranteed a right to a trial “by an impartial jury.”
U.S. Const. amend. VI; Tenn. Const art. 1, § 9. “When a jury has been subjected to either
extraneous prejudicial information or an improper outside influence, the validity of the
verdict is questionable.” State v. Adams, 405 S.W.3d, 641, 650 (Tenn. 2013) (citing State
v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984)). When a defendant establishes “that a
juror was exposed to extraneous prejudicial information or subjected to improper influence,
a rebuttable presumption of prejudice arises, and the burden shifts to the State to explain
the conduct or demonstrate that it was harmless.” Walsh v. State, 166 S.W.3d 641, 647
(Tenn. 2005). This burden shifting to the State to rebut the presumption of prejudice that
a defendant was deprived of his right to an impartial jury, however, does not alleviate the
post-conviction petitioner of his burden to establish the prejudice prong of Strickland in an
ineffective assistance of counsel claim. See Strickland, 466 U.S. at 694.
The record here supports the trial court’s finding that the bailiff improperly
instructed the jury as to the order in which they must consider offenses; however, the
petitioner put forth no evidence at his evidentiary hearing to establish that a motion for
mistrial would have been granted. Indeed, had trial counsel moved for a mistrial, the
petitioner would have benefited from the rebuttable presumption of prejudice. Even so,
the State would have then had the opportunity to rebut that presumption. Our supreme
court identified four factors to determine whether the State meets its burden to overcome
the presumption of prejudice in such circumstances:
(1) the nature and content of the information or influence,
including whether the content was cumulative of other
evidence adduced at trial; (2) the number of jurors exposed to
the information or influence; (3) the manner and timing of the
exposure to the juror(s); and (4) the weight of the evidence
adduced at trial.
State v. Adams, 405 S.W.3d 641, 654 (Tenn. 2013).
At his evidentiary hearing, the petitioner did not call any juror or other
witness to testify to the “nature and content” of the bailiff’s statement, the number of jurors
exposed to the bailiff’s statement, or the “manner and timing” of the bailiff’s statement.
The trial record does not indicate the specific content of the bailiff’s statement, the number
of jurors exposed to the information, or how long the jury relied on the bailiff’s statement
before the trial court gave a curative instruction. Because the petitioner has failed to put
forth any evidence that these factors supported a granting of a motion for mistrial, he has
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not shown that he was prejudiced by trial counsel’s failure to move for mistrial.
Accordingly, the judgment of the post-conviction court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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