Quanya Revell Prewitt v. State of Tennessee

03/27/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2017
QUANYA REVELL PREWITT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2012-A-48 Cheryl A. Blackburn, Judge
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No. M2017-01029-CCA-R3-PC
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The Petitioner, Quanya Revell Prewitt, appeals the denial of her petition for post-
conviction relief from her conviction for possession of dihydrocodeinone in a school zone
with intent to sell. She argues that she received ineffective assistance of counsel and that
the State committed prosecutorial misconduct. After review, we affirm the denial of the
petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Andrew Chad Davidson, Nashville, Tennessee, for the appellant, Quanya Revell Prewitt.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and Megan M. King, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
In 2012, the Petitioner was indicted and convicted of possession of
dihydrocodeinone in a school zone with intent to sell, and she was sentenced to three
years in confinement at 100% followed by one year of probation. The Petitioner
appealed, and this court affirmed the judgment of the trial court on June 26, 2013.
The underlying facts of the case were recited by this court on direct appeal as
follows:
On July 12, 2011, Metropolitan Nashville Police Department
(“Metro”) Officer Charles Large was on patrol when an employee of the Z-
Mart gas station approached him in the parking lot of the station and made
a complaint. Based upon the information he received, Officer Large asked
the [Petitioner] and another individual, Tory Crawley, to come to his car.
Mr. Crawley showed Officer Large “a bunch of pills,” and Officer Large
confiscated the 12 pills.
During this time, the [Petitioner], who had not complied with the
officer’s request to come to the car, walked to “the side of the building next
to a dumpster and a light pole.” After standing there for 20 or 30 seconds,
she then walked to where Officer Large stood with Mr. Crawley. After the
[Petitioner] denied any knowledge of the pills confiscated from Mr.
Crawley, Officer Large walked to the area where the [Petitioner] had gone
after exiting the store and “found a prescription pill bottle sitting on a light
post base with her name on them.” The bottle was labeled with the
[Petitioner]’s name and the prescription name “hydrocholorothiazide,” and
it contained 17 hydrocodone pills identical to those taken from Mr.
Crawley.
Officer Large placed both individuals under arrest, and as they drove
to the police station, the [Petitioner] “said that she just wanted to trade the
pills for beer because she had been drinking and wanted more to drink.”
Officer Large utilized a map prepared by Metropolitan Planning
Department cadastral analyst Thomas Corcoran and which highlighted a
1,000 foot “buffer” around Cameron Middle School to demonstrate that the
Z-Mart parking lot was located inside the buffer.
Mohammed Ayesh was working at the Z-Mart on July 12, 2011,
when the [Petitioner] came to the counter, placed some pills on the counter,
and asked if she could trade the pills for beer. The cashier asked the
[Petitioner] to leave, and then either Mr. Ayesh or the cashier reported the
incident to Officer Large.
Chemical testing by the Tennessee Bureau of Investigation (“TBI”)
established that the pills confiscated from the [Petitioner] and Mr. Crawley
were hydrocodone, the same chemical compound also known as
dihydrocodeinone and sold under the brand name Vicodin.
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Hydrocholorothiazide, the medication for which the bottle was labeled,
does not contain dihydrocodeinone but is instead a diuretic.
The [Petitioner] testified that she was prescribed hydrocodone on
July 1, 2011, for pain associated with an injury. She said that she went to
the Z-Mart on July 12, 2011, to purchase cigarettes and that when she got
inside, she saw Mr. Crawley “in it seemed like an altercation with the
clerk,” so she left the store. She claimed that she did not see Officer Large
and did not hear him call to her the first time. She said that she stopped
when the Officer called a second time and that she placed the pill bottle
next to the light post because she was aware that she had hydrocodone in
the wrong prescription bottle. She claimed that the hydrocodone pills got
into the hydrochlorothiazide bottle when all her pills spilled into her purse.
The [Petitioner] denied drinking on the night of the offense and
maintained that she did not attempt to trade her pills for beer. She claimed
that she was simply walking to a friend’s house and not trying to evade
Officer Large.
During cross-examination, the [Petitioner] said that when her friend
telephoned and asked the [Petitioner] to come to her house, she “picked up
a pill bottle and put it in [her] purse” and headed to the friend’s house
despite the late hour. She insisted that she grabbed the pills because she
thought they were either for her hypertension or hyperthyroid and that she
intended to take them the following morning. She said that, inexplicably,
two bottles of medication had emptied into her purse at the same time and
became mixed together. Despite having said during direct-examination that
she combined the pills into a single bottle, she claimed that she randomly
returned the pills to two bottles. She could not explain how the bottle for
hydrochlorothiazide came to contain only hydrocodone pills.
The [Petitioner] said that she used her cellular telephone to call her
friend from the parking lot of the Z-Mart just after she exited the store
ahead of Mr. Crawley. She denied that she and Mr. Crawley exited the
store together and insisted that Officer Large was lying when he said that
they did. Despite having claimed on direct examination that she put the pill
bottle on the ground because she knew that the pills were in the wrong
bottle, she denied knowing that hydrocodone pills were in the bottle. The
[Petitioner] also confusingly claimed that she “didn’t have nothing but one
bottle” and that her other pills must have been “in the other bottle.” She
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claimed that the officer lied when he testified that she told him that she had
tried to trade the pills for beer.
State v. Quanya Revell Prewitt, No. M2012-01627-CCA-R3-CD, 2013 WL 3282869, at
*1-2 (Tenn. Crim. App. June 26, 2013), perm. app. dismissed (Tenn. Oct. 20, 2014),
perm. app. denied (Tenn. Jan. 19, 2016).
On February 26, 2014, the Petitioner filed a petition for post-conviction relief, and
on June 27, 2014, the post-conviction court dismissed the petition without prejudice
noting that “[t]he State agreed that Petitioner is entitled to a delayed Rule 11 appeal.”
On October 20, 2014, our supreme court dismissed the Petitioner’s application for
permission to appeal as untimely. Thereafter, on January 20, 2015, the Petitioner filed
another petition for post-conviction relief. An amended petition was filed through
appointed counsel, and the court conducted an evidentiary hearing on May 27, 2015. The
testimony focused on the four primary grounds for relief raised in the petition: (1)
counsel was ineffective for failing to adequately investigate the Petitioner’s case and
consult with her about the facts of her case and nature of the charges against her, as well
as her options; (2) counsel was ineffective for not requesting an interpreter for witness
Mohammad Ayesh and allowing him to testify to hearsay, and by not presenting evidence
in her defense; (3) counsel was ineffective for failing to timely file a Rule 11 application
for permission to appeal; and (4) the State engaged in prosecutorial misconduct by filing
a superseding indictment for the purpose of intimidating the Petitioner, and counsel was
ineffective for failing to file a motion to dismiss the superseding indictment.
At the hearing, the Petitioner testified that she was originally charged with simple
possession of a controlled substance and counsel was appointed to represent her in
general sessions court. At some point, a superseding indictment was issued charging her
with possession of a controlled substance in a school zone with intent to sell. Counsel
represented her at trial, and she was convicted. She recalled that after the result of her
“first appeal” came back, counsel told her that it would cost $600 to file another appeal.
When she could not come up with the money to file the appeal, “[her] bondsman called
[her] and told [her] that [she] had to come and surrender.” The Petitioner was, therefore,
unsure whether a Rule 11 Application for Permission to Appeal to the Tennessee
Supreme Court was filed in her case.
The Petitioner testified that counsel was ineffective for failing to investigate and
consult with her about her case. She did not recall meeting with counsel prior to the trial,
saying, “I think we met once at the location . . . where the police arrested me, but I rarely
interacted with him or would discuss the case.” However, she “believe[d]” that she met
with counsel at status court dates but could not recall the number of times. She said that
counsel did not provide her with copies of discovery or review the discovery with her on
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any occasion. She claimed that counsel should have advised her about the school zone
element of her offense before trial, elaborating:
I wasn’t aware that the school – that it would – it would go from a
forty-five-day sentence, from a misdemeanor to a felony, with three years at
100 percent without the possibility of parole or suspended sentence. I
wasn’t aware that it was three years at 100 percent including a year of
probation.
The Petitioner agreed that a plea offer had been made, and counsel told her “that
they were offering a year probation.” However, she said that she rejected the offer
because
[counsel] informed [her] that this case was somewhat . . . a small case, . . .
that up on the 6th floor they had bigger fish to fry and this case would be
dismissed. And I was also trying to point out to [counsel] that the store had
cameras, video cameras, and I was . . . wanting them to . . . order for the
tapes . . . to come to court to prove that I did not try to sell my pills or trade
my pills.
The Petitioner claimed that she was not aware that a police officer was going to testify
“that [she] was trying to trade [her] pills for beer.” After she was convicted, she saw a
statement in the discovery materials by the police officer stating such that had she known
about beforehand, she would have accepted a plea offer rather than go to trial.
The Petitioner recalled that it was brought up at trial whether her pills were in the
wrong containers, which could have been easily straightened out, but counsel did not
discuss that with her prior to trial or present evidence at trial that she had two
prescriptions that were in similar looking bottles. She recalled that counsel told her that
“the number of pills that he got from Mr. Crawley and [her] pills added up to the quantity
of the pills that were prescribed.” She complained that counsel failed to present evidence
that “Mr. Crawley . . . was the one that had taken the pills in the store and put them on the
counter.” The Petitioner said that Mr. Crawley was arrested on the same night as she and
for the same offense, but his case was resolved in general sessions court. The Petitioner
wanted counsel to show that it was Mr. Crawley who “came out of the store with the pills
and the fact that . . . he’s the one that placed the pills up on the counter.” She tried to
explain to counsel that “Mr. Crawley must have stole[n] [her] pills and taken them to the
store.” However, to her knowledge, counsel did not attempt to locate or subpoena Mr.
Crawley.
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The Petitioner testified that she was not taking any medications during the
pendency of her trial, although she was supposed to be taking medication for
schizophrenia and major depression. She told counsel about her conditions. The
Petitioner denied knowing that she was facing a school zone charge until the final court
date before her trial. She asked counsel
how was it that it can go from a misdemeanor to a felony because I
wouldn’t take an offer. I wanted to know how is it that I was placed with a
school zone on me when it wasn’t my original charge, was it due to the fact
that I did not take the plea, is that the reason why I was charged with a
school zone. I mean, to me . . . that’s charging me twice to be honest with
you. . . . [T]o me it was like if you don’t take this plea, then we’re going to
. . . make it harder on you and in essence, . . . from forty-five days to three
years at 100 percent plus a year of probation.
The Petitioner complained that counsel allowed Mohammad Ayesh to testify to
hearsay – that “another clerk . . . told him that’s what I was trying to do was put my pills
on the counter and tried to trade them.” She elaborated that Mr. Ayesh initially testified
that he had heard the Petitioner “say some things and then it came out later that he did not
actually hear those things, that it was another clerk that told him.” The Petitioner noted
that when Mr. Ayesh testified at trial, he appeared to have some language barriers, but no
interpreter was present.
On cross-examination, the Petitioner agreed that shortly after counsel was
appointed in general sessions court, “an offer was made to [her] to plead to simple
possession and have a couple of days to serve.” She rejected that offer and “wound up in
[c]riminal [c]ourt” where she had multiple court appearances. She denied receiving an
offer in criminal court “to plead to simple possession and get nine months with a
sentencing hearing.” The only offer she recalled receiving in criminal court involved a
sentence of a year of probation, which she rejected. The Petitioner admitted that she was
aware that the State was going to seek a superseding indictment, changing her charge
from a misdemeanor to a felony.
The Petitioner denied meeting with counsel several times leading up to trial but
conceded that she and counsel went to the crime scene together. She did not recall
counsel taking photographs at the crime scene, counsel explaining the drug-free school
zone law to her, or speaking with counsel about the facts of the case. She said that
counsel did not show her the discovery materials. She did not have any memory of
counsel taking her to Elam Mental Health Facility, claiming she went on her own. She
also did not have any memory of being arraigned on the felony drug charge after the State
brought back a superseding indictment.
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Counsel testified that he was appointed to represent the Petitioner in general
sessions court, and he appeared with her “at least twice, maybe three times” in that court.
At the general sessions level, counsel and the Petitioner
went over the facts of the case as much as we could. And then we
discussed what the district attorney had offered as a plea deal, and then I
made a counter offer and just basically told [the Petitioner] that she . . .
c[ould] take this plea deal, we can try to have a trial here in sessions or you
can have a preliminary hearing or you can bind it over on waivers, do
whatever you want to. I just conveyed the offer and told her what her
options were.
....
Her decision in this case – I got the State down to ten days to serve.
I believe she maybe had served three or something to that extent. She said
that she – I recall her saying she was about to get her SSI check or
something to that effect and that she would rather bond out and fight the
case rather than take anything. And . . . I think she might have wanted to
bind it over on waivers. I don’t think we had a preliminary hearing.
Counsel recalled that he met with the Petitioner “on at least two or three
discussion dates.” However, when the Petitioner came to court, “somebody was under
the impression she was intoxicated and . . . it seems like it was two or three dates she
ended up being locked up to where [counsel] couldn’t really talk to her.” Counsel
elaborated that he tried to talk to the Petitioner at those times, but he did not “want to
have a meaningful legal discussion with somebody who is too drunk to be in court.”
The Petitioner was arraigned on the superseding indictment, and counsel filed for
discovery. After that, counsel “met with [the Petitioner] numerous, numerous times,”
including times outside of court appearances. He recalled specifically meeting with her
at the gas station where the incident in the case occurred.
Counsel testified that he went over the discovery with the Petitioner, noting that
“this was one of the worst cases I’ve ever had to deal with just because of the facts of the
case and somebody not wanting to . . . take a plea deal, just due to the amount of
evidence.” Counsel said that he explained to the Petitioner that “within a thousand feet of
the school zone” was not the same as “the driving on the road school zone.” Counsel
remembered that the State made a plea offer at the criminal court level, but he did not
recall the specifics of the initial offer other than that it was “somewhat higher than what
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was offered in sessions. . . . [A] misdemeanor offer with some time to serve. And she
could petition if she were to complete a drug and alcohol program . . . before that amount
of time to serve had expired.” He discussed the offer with the Petitioner, but she “wasn’t
interested in accepting it.”
Counsel recalled that the Petitioner had several court dates to consider the
misdemeanor offer, and counsel tried to negotiate with the prosecutor. At some point
before the superseding indictment was brought, the prosecutor informed counsel that the
Petitioner “could take the offer that he had made that day, or he would file a superseding
indictment.” Counsel asked that the Petitioner have a week to make the decision because
she had been “taken into custody because of her intoxication,” and counsel explained to
the Petitioner that “it would be a new and different charge carrying a lot higher range of
punishment.” Counsel believed that the Petitioner understood that the new charge would
require that she serve time.
Counsel testified that he investigated Mr. Crawley and, based on Mr. Crawley’s
record, did not think he would be a beneficial witness. Counsel said that he and the
Petitioner “discussed at length the medication she was taking . . . [and] why she was
taking it.” Counsel talked to clinicians at Elam Mental Health Facility to make sure the
Petitioner’s medications did not prevent her from understanding what was happening.
Counsel testified that he prepared for trial and spoke with witnesses, including Mr.
Ayesh. Counsel acknowledged that English was not Mr. Ayesh’s first language and that
“he can be a little difficult to understand.” However, after talking to Mr. Ayesh,
counsel’s position was that “the last thing [he] wanted the jury to hear and understand
[was] what [Mr. Ayesh] had [t]o say [as] . . . he wasn’t a favorable witness to say the
least.” Therefore, counsel did not request an interpreter for Mr. Ayesh because he “didn’t
want anybody to understand what he was saying.”
As to the Petitioner’s allegation that counsel should have presented evidence that
Mr. Crawley committed the crime, counsel said, “I would have loved to have known that
Mr. Crawley stole her medication. This is the first time I’ve ever heard about that.”
Asked about his failure to file a Rule 11 application for permission to appeal to the
Tennessee Supreme Court, counsel explained:
I filed the initial appeal, and then [the Petitioner’s] sister, who I had been
trying to get help from regarding alcoholism or drug use and things like that
or just her family history, I never heard anything from any family until after
the trial. So after the appeal, her sister came in and informed me that they
were hiring somebody to appeal to the Supreme Court. I informed [the
Petitioner] and her sister that they had a certain amount of time to file the
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appeal and that there was a fee involved with filing that appeal. I said, if
you want to hire another attorney, that’s fine. Contact me if you don’t. I
never heard anything, so I assumed that there was an issue with the appeal
bond and they just never were interested in that.
On cross-examination, counsel admitted that he failed to request that he be
relieved as the Petitioner’s counsel after the conclusion of the direct appeal, explaining,
“I was under the impression she had retained counsel. I should have gotten that in
writing. I did file the appeal to the Court of Appeals, but I did not file anything to the
State Supreme Court.” With regard to evidence about the Petitioner’s bottles of
medication, counsel testified that he considered whether the Petitioner’s pills and bottles
looked similar and “that perhaps she had confused which pills went in which bottle” but
conceded that he did not present any such evidence. Counsel explained:
[I]n that regard my worry was that looking at the discovery the Lortabs
appear to be the same. What I was worried about was that we had the
testimony from the officer and the testimony from the gentleman that was
working at the cash register.
....
And I didn’t want the . . . jury to think that she had this caché of just
a big variety of pills that she was trying to trade. After having already
spoken to the clerk, the clerk was definitely going to say that she was trying
to trade medication for the beer. So I felt like that would probably leave an
even worse impression on the jury if we had several different opiate drugs
of different varieties.
Counsel testified that he provided the Petitioner with a copy of her discovery and
went over it with her “as far as what affects this case.” Counsel recalled that, in addition
to eight occasions when the Petitioner appeared for court proceedings, he met with her
out of court as well. He elaborated:
I picked her up at her house to go meet at the gas station. I’ve met her at
the gas station. I had met with her at my office at one point. It was either
my office or I may have – I don’t live too terribly far from her. Maybe she
met in this common area close to my condo, I think, at one point. Yeah, I
definitely met with her outside of this courthouse several times and a
couple of times at Elam.
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Counsel testified that he did not think the Petitioner was intoxicated when he met
with her and thought she “sobered up a little bit” as the case progressed. He said that he
took her to Elam Mental Health Facility to have her evaluated because she “kept being
taken into custody every court date.” He also wanted to make sure she was competent
and understood the things he discussed with her, given she had “a possible three year at a
hundred percent sentence hanging over [her] head and on the other hand . . . ha[d] a
misdemeanor offer.”
Counsel testified that he met with the Petitioner on two or three court dates
between her arraignment on the superseding indictment and trial. He said that he would
not have discussed the school zone issue with the Petitioner before the superseding
indictment because it was not yet an issue. Counsel recalled that on the day the Petitioner
was going to be indicted on the superseding indictment, the Petitioner was intoxicated
when she appeared in court and was taken into custody. He met with her when she was
released, and they “went to the location so [they] could discuss the school zone.”
Counsel recalled his conversation with the prosecutor regarding the superseding
indictment:
I think he was a little perturbed that . . . it was a simple possession
misdemeanor charge that kept lingering and kept lingering. And I think he
was bothered that the offers he was making – I would go back and convey
them but, you know, General she’s intoxicated, she’s in the back, there’s
not a whole lot we can do. I would convey them to her, and she might just
not want the offer. And so then he finally got to the point where he said if
she doesn’t plead to – I forget what the exact offer was. But if she doesn’t
plead to this deal, then I’m going to supersede indict her under the school
zone drug charge.
Counsel said that there was no reason for the superseding indictment other than the
Petitioner’s refusal to accept a plea offer.
In an order filed on October 14, 2015, the post-conviction court denied post-
conviction relief but granted the Petitioner a delayed Rule 11 appeal. The Petitioner filed
a notice of appeal on October 20, 2015. While the post-conviction appeal was in
progress, our supreme court denied the Petitioner’s application for permission to appeal
this court’s direct appeal decision.
On March 8, 2017, this court determined that the post-conviction court failed to
comply with the mandates of Tennessee Supreme Court Rule 28, section 9(D)(1)(b)(i),
which requires a post-conviction court to stay proceedings pending the final disposition
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of a delayed appeal. This court reversed the denial of post-conviction relief and ordered
that, on remand, the Petitioner be allowed to “amend the original petition to challenge
any ‘new issues cognizable in a post-conviction proceeding result[ing] from the handling
of the delayed appeal.’” The post-conviction court conducted a status hearing on March
24, 2017, after which it relieved post-conviction counsel and appointed new counsel to
represent the Petitioner “on any further post-conviction proceedings.” The court directed
new counsel to “consult with the Petitioner to determine whether to amend her post-
conviction proceeding to include any issues resulting from the delayed appeal.” On April
24, 2017, new post-conviction counsel filed a notice that there were no new issues to add
to the previously filed amended petition for post-conviction relief. On May 9, 2017, the
post-conviction court “issue[d] the final order . . . denying [the] Petitioner’s request for
post-conviction relief for all the reasons stated in [its] October 14, 2015 [o]rder.”
ANALYSIS
The Petitioner argues that she received ineffective assistance of counsel and that
the State committed prosecutorial misconduct.
The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:
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First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
The Petitioner argues that counsel rendered ineffective assistance because he
failed to “conduct appropriate investigations” or “adequately meet” with her to
“adequately discuss” her case and the evidence against her. She claims that counsel was
also ineffective because he failed to call her co-defendant, Mr. Crawley, as a witness at
trial to testify that he stole her prescription pills and attempted to trade the pills for beer
and for allowing Mr. Ayesh to give hearsay testimony.
With regard to the Petitioner’s claim that counsel failed to “conduct appropriate
investigations” or “adequately meet” with her to “adequately discuss” her case and the
evidence against her, counsel testified that he met with the Petitioner on numerous
occasions both in and out of court. Counsel said that he went over the discovery with the
Petitioner and explained the superseding indictment and drug-free school zone element
once that became an issue. Counsel and the Petitioner discussed the medications she was
taking, and he had her assessed at Elam Mental Health Facility to ensure her
understanding of the proceedings. Counsel stated that the first time he heard the
Petitioner’s allegation that Mr. Crawley stole her pills to trade them was at the post-
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conviction hearing. The post-conviction court found that the Petitioner “failed to show
that the number of meetings [s]he had with counsel was so deficient as to constitute
ineffective assistance of counsel. Nothing in the record indicates that Trial Counsel
failed to meet with the Petitioner and keep her informed of the proceedings.” The court
also found “it not credible that [the] Petitioner maintains she never discussed the State’s
evidence against her with Trial Counsel.” The record supports the findings of the post-
conviction court.
With regard to the Petitioner’s claim that counsel failed to call her co-defendant,
Mr. Crawley, as a witness at trial to testify that he stole her prescription pills and
attempted to trade the pills for beer, the Petitioner did not present Mr. Crawley’s
testimony at the post-conviction hearing and, thus, failed to establish prejudice. In order
to succeed on a claim that counsel did not properly investigate or call favorable witnesses
at trial, a petitioner must generally elicit favorable testimony from those witnesses at the
evidentiary hearing, as a post-conviction court may not speculate “on the question of . . .
what a witness’s testimony might have been if introduced” at trial. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990).
As to her final allegation of ineffective assistance of counsel, the Petitioner alleges
that trial counsel was ineffective for allowing Mr. Ayesh “to testify regarding what
another clerk overheard [her] allegedly say regarding trading her pills for beer, which was
the central issue at trial.” In considering this claim, the post-conviction court reviewed
the trial transcript and noted that Mr. Ayesh’s “rudimentary understanding of English
grammar . . . caused some confusion as to whether Mr. Ayesh heard [the] Petitioner make
a statement about trading pills for beer or if he was told about her statement by the
cashier.” However, the post-conviction court concluded that “[a] review of Mr. Ayesh’s
testimony in its totality demonstrates his personal knowledge of [the] Petitioner’s
statements and actions.” We have likewise reviewed the transcript of Mr. Ayesh’s
testimony and conclude that the record supports the post-conviction court’s determination
that trial counsel did not render deficient performance.
The Petitioner also argues that the State engaged in prosecutorial misconduct by
filing a superseding indictment solely because the prosecutor was “perturbed” that the
Petitioner would not enter a guilty plea to simple possession. The evidence showed that
the offense was in fact committed in a drug-free school zone. “Although the State may
not bring a superseding indictment to harass or intimidate the accused, a legitimate
decision to bring a superseding indictment is uniquely within the State’s authority.” State
v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000). “[S]o long as the prosecutor has probable
cause to believe that the accused committed an offense . . ., the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely in
his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). The post-conviction
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court recalled that counsel testified that once the superseding indictment was obtained, he
met with the prosecutor to confirm that the offense occurred in a drug-free school zone
and such was verified. The court noted that it was not an uncommon practice at the time
of the Petitioner’s case for the State to seek a superseding indictment as a case progressed
in cases where the offense occurred in a drug free school zone. The post-conviction court
found that “[o]ther than speculation, there is no evidence before the Court indicating that
the State sought the superseding indictment to harass or intimidate [the] Petitioner.” The
record supports this determination.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.
____________________________________
ALAN E. GLENN, JUDGE
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