James Alfred Reed, Jr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 23, 2014 Session
JAMES ALFRED REED, JR. v. STATE OF TENNESSEE
Appeal from the Criminal Court for Monroe County
No. 12378 Amy A. Reedy, Judge
No. E2014-00227-CCA-R3-PC - Filed September 4, 2014
A Monroe County jury convicted the Petitioner, James Alfred Reed, Jr., of one count of the
sale of one-half gram or more of cocaine within 1000 feet of a school and one count of the
sale of less than one-half gram of cocaine within 1000 feet of a school. The trial court
sentenced him as a Range II, multiple offender and ordered the Petitioner to serve an
effective sentence of forty years. The Petitioner appealed, and this Court affirmed the
judgments of the trial court. State v. James Alfred Reed, Jr., No. E2010-01138-CCA-R3-CD,
2011 WL 2766766, at *5 (Tenn. Crim. App., at Knoxville, July 18, 2011), perm. app. denied
(Tenn. Dec. 13, 2011). The Petitioner subsequently filed a petition for post-conviction relief
in which he alleged that his trial counsel was ineffective for failing to file a motion to compel
the State to disclose its confidential informant at trial and that his Momon hearing was
improperly conducted. The post-conviction court dismissed the petition after a hearing.
After a thorough review of the record and applicable law, we affirm the post-conviction
court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., J., and T IMOTHY L. E ASTER, S P. J., joined.
W. Tyler Weiss, Madisonville, Tennessee, for the Appellant, James Alfred Reed, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Steven Bebb, District Attorney General; Heather Higginbotham, Assistant District
Attorney General, for the Appellee, State of Tennessee.
1
OPINION
I. Facts
A. Trial
This case arises from the Defendant’s sale of cocaine near Vonore Elementary School
in Vonore, Tennessee. On direct appeal, this Court summarized the underlying facts of the
case as follows:
At the trial, Vonore Police Lieutenant Robby Lovingood testified that
he investigated narcotics cases. He said that on June 20, 2008, a confidential
informant called him and said, “I’ve got a guy that sells crack cocaine.” He
said the alleged dealer lived in Blount County. He said that he called the
Blount County Police to see if they were interested in investigating but that
they declined because they were too understaffed. He said that he asked the
informant if the transaction could be in Vonore and that the informant agreed.
He said they agreed on a location they previously used because it was on the
highway with a good surveillance spot.
Lieutenant Lovingood testified that he and the confidential informant
met at the WilSav Drug Store in Vonore off Highway 411 near Vonore
Elementary School at about 8:00 p.m. He said that he was in contact with the
informant before arriving at the scene but that he did not see the [Petitioner]
until he arrived. He said he wore a body wire and took currency that he
photocopied for identification purposes. He said he paid the [Petitioner] $220
for the crack cocaine.
Lieutenant Lovingood testified that he thought the confidential
informant and the [Petitioner] arrived in a van. He said he and the informant
arrived at about the same time, got out of their vehicles, and greeted each
other. He said he asked the informant if the man in the van was the one selling
crack. He said that he entered the driver’s seat of the van and that the
[Petitioner] was the only person in the van. He said he did not see where the
informant went during that time.
Lieutenant Lovingood testified that he did not give his real name or tell
the [Petitioner] he was a police officer. He said he pointed out Vonore
Elementary School and told the [Petitioner] he was a teacher there. He said
that he asked if the [Petitioner] had what he needed and that the [Petitioner]
looked at and pointed his finger at the floorboard. He said the [Petitioner]
would not speak. He said he looked at where the [Petitioner] pointed and saw
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a plastic bag containing crack cocaine.
Lieutenant Lovingood testified that he and the [Petitioner] left the
parking lot at about the same time. He said he put the crack cocaine in a
cellophane bag, sealed it, took it to the Vonore Police Department, placed the
cellophane bag inside an evidence bag, put it in the evidence locker, and had
it transported to the Tennessee Bureau of Investigation (TBI). He said that
Vonore Police Officer Shane Carr transported items to the TBI laboratory for
the department and that to his knowledge, Officer Carr transported the
evidence bag. He identified the examination request he completed for the TBI
laboratory and the TBI laboratory’s report and said that both were dated June
20, 2008.
Lieutenant Lovingood testified that on June 26, 2008, the confidential
informant contacted him and arranged a second meeting. He said he met the
informant and the [Petitioner] between 9:00 and 9:30 p.m. at the Wil-Save
Drug Store in Vonore. He said the informant drove the [Petitioner] to the
meeting in the same van as on June 20. He said he photocopied the currency
for identification and wore a body wire. He said that the informant left before
the transaction and that he was alone in the van with the [Petitioner]. He said
that he left $80 in the van and that he left the van with a plastic bag containing
crack cocaine. After he left the van, other police officers took the [Petitioner]
into custody.
Lieutenant Lovingood testified that he took the cocaine to the Vonore
Police Department, placed it in an evidence bag, and put it in the evidence
locker. He identified the evidence bag and said Officer Carr transported the
evidence bag to the TBI laboratory. He identified the June 26, 2008
examination request and the laboratory report he received on the sample.
Lieutenant Lovingood testified that during one of the two transactions,
the [Petitioner] told him that if he set the money on the floor, it would not be
a “sell and delivery.” He said he was not sure if this conversation took place
during the first or second transaction but that the tape would provide that
information. He said he put the money on the floorboard and took the crack
cocaine. He said that when he left the van, the [Petitioner] was the only person
inside.
Lieutenant Lovingood testified that students attended Vonore
Elementary School daily and that it was within 1000 feet of the Wil-Save Drug
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Store. He said that he had measured the distance but that he did not remember
the exact measurement. He said the store property connected to the school
property.
On cross-examination, Lieutenant Lovingood testified that he was not
with Officer Carr when Officer Carr took the evidence to the TBI laboratory.
He said that he was trained to conduct undercover drug operations but that no
training existed for working with confidential informants. He agreed he
investigated informants before working with them. He agreed that some
informants tried to help themselves after being charged with crimes and that
other informants were paid money by law enforcement. He said the informant
in this case was paid for both transactions. He did not remember how much
the informant was paid but said the department typically paid $100 for an
“indictment bust.”
Lieutenant Lovingood testified that the confidential informant also
worked with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
and the Drug Enforcement Administration (DEA). He said that the informant
called him a couple of times a week when the informant found a
methamphetamine laboratory or someone selling drugs. He said that he
worked with the informant for slightly less than a year and that the informant
set up other drug “busts,” although he did not remember if those were before
the [Petitioner’s] arrest. He said that he did not investigate the informant’s
employment but that the informant told him he worked in construction. He
said he did not administer a drug test on the informant. He said that he met
with the informant in person many times but that he only talked to him about
the [Petitioner] on the telephone.
Lieutenant Lovingood testified that he recorded transactions using
either a body wire or a digital recorder. He said that the body wire was a little
box with an antenna and wire running from it, that he could hide it in his
clothes or hand, and that it picked up the conversation of the person wearing
the wire and those around him. He said that the transmission from the body
wire could be heard in “real time” from about a quarter-mile away but that
weather and background noise could affect clarity. He said that he also had
digital recorders but that he did not have enough for all cases. He said that he
had a camcorder but that he could only use it to record a transaction if he could
hide the camera.
Lieutenant Lovingood testified that both transactions with the
4
[Petitioner] occurred in the evening but that it was not “pitch dark.” He agreed
the only information he knew about the [Petitioner] before the first transaction
was what the confidential informant told him. He said he knew the [Petitioner]
did not have a driver’s license and would not drive to the meeting. He said
that he did not investigate the [Petitioner’s] background until after the arrest
and that then he only investigated the [Petitioner’s] criminal history.
Lieutenant Lovingood testified that he did not monitor any
conversations between the confidential informant and the [Petitioner]. He said
he did not have an opportunity to search the informant’s van before either
transaction. He said he set the ground rules with the informant, including the
requirement that the informant leave before each transaction. He agreed it was
ideal to search an informant and his vehicle before a transaction to ensure that
any drugs found did not belong to the informant. He said he could not search
the informant before the transactions in this case because he did not have
jurisdiction to search people and arrange deals in Blount County.
Lieutenant Lovingood testified that June 20, 2008, was a Friday and
that June 26 was a Thursday. He agreed the elementary school was not in
session for the summer. He said that he had used the Wil-Save Drug Store
parking lot for other drug transactions, that he had measured the distance from
the store to the school at under 1000 feet, and that no fence separated the store
and the school.
Lieutenant Lovingood testified that the confidential informant, the
[Petitioner], and he did not discuss either transaction when all three were
together. He said that he did not remember exactly what he and the informant
said when they greeted each other but that he remembered pointing toward the
[Petitioner], who was still in the van, and asking if the informant had him
“hooked up.” He said he told the [Petitioner] he was the informant’s cousin.
He said that during the first transaction, he told the [Petitioner] the crack
cocaine was for his wife or girlfriend in order to keep the [Petitioner] from
asking him to smoke some.
Lieutenant Lovingood testified that he searched the confidential
informant and the informant’s van after the second transaction but that he did
not search after the first transaction. He said the police ordered the informant
and the [Petitioner] to take off their shoes in order to search them thoroughly.
He said that when the [Petitioner] was arrested, the [Petitioner] had only his
clothes, a marijuana pipe, and a cast on his arm. He said that the [Petitioner]
5
had no money in his possession at the time of the arrest and that the police
found no additional drug paraphernalia. He said that the cocaine in the first
transaction weighed 1.3 grams and that the crack cocaine in the second
transaction weighed 0.3 grams.
Lieutenant Lovingood testified that he did not recover the money after
the first transaction but that he recovered the money from the van floorboard
near the passenger seat after the second transaction. He said that after the first
transaction, he paid the confidential informant by sending an officer to him
with the money. He said that after the second transaction, he “took down” the
informant as well as the [Petitioner] to make it look like the informant did not
set up the [Petitioner]. He agreed the informant had a cell phone and had met
him in Vonore before. He said that all he knew about where the drugs
originated was that they came from Alcoa in Blount County.
On redirect examination, Lieutenant Lovingood testified that a “buy
bust” referred to when the police arranged a controlled purchase, in which the
officer buying the drugs gave a take-down signal to other officers, who then
took the suspect into custody. He said the [Petitioner’s] arrest on June 26,
2008, was the result of a buy bust. He said he decided to arrange the buy bust
for the second transaction because he wanted to show that the [Petitioner] sold
the drugs more than once but also because he did not want to waste drug fund
money by arranging additional transactions. He said he also needed to arrange
the drug bust to obtain complete identification of the [Petitioner] that he could
not obtain from the confidential informant. He said that he was the designated
buyer for the buy bust and that the informant was not involved in the
transaction. He agreed he arranged each transaction to be between the
[Petitioner] and him only.
On recross-examination, Lieutenant Lovingood testified that he often
had confidential informants purchase drugs for him because many suspects in
his area recognized him. He said he searched informants before they
purchased drugs in those situations. He said that in this case, the [Petitioner]
did not know him, which allowed him to speak with the [Petitioner] about the
drugs and purchase the drugs. He agreed he did not record what happened
with the confidential informant before the transactions.
....
Michael Bleakley, an expert in the field of forensic drug chemistry,
6
testified that he worked with the TBI Crime Laboratory in Knoxville and that
he tested the substance from the first transaction. He said the substance
weighed 1.3 grams. He said he tested the substance using UV
spectrophotometry and infrared spectrometry, which revealed that the
substance was cocaine base. He said that he tested the substance from the
second transaction, that the substance weighed 0.3 grams, and that tests
revealed it was cocaine base.
Reed, 2011 WL 2766766, at *1-5. The jury convicted the Petitioner of the sale of one-half
gram or more of cocaine within 1000 feet of a school and the sale of less than one-half gram
of cocaine within 1000 feet of a school. The trial court imposed an effective sentence of
forty years of confinement. Reed, 2011 WL 2766766, at *5.
B. Post-Conviction Hearing
The Petitioner filed a petition for post-conviction relief, claiming that he received the
ineffective assistance of counsel because his trial counsel, (“Counsel”), failed to file a motion
to compel the State to disclose the identity of the confidential informant present during the
commission of the crime. The Petitioner further claimed that the Momon hearing conducted
during his guilty plea hearing was improper and that Counsel was ineffective for failing to
object to the way the hearing was conducted.1 The post-conviction court held an evidentiary
hearing, where the parties presented the following evidence:
The Petitioner testified that he was convicted for drug sales that occurred on June 20,
2008, and June 26, 2008, in Monroe County. He stated that he was living in Blount County
with his mother at the time of the offenses. The Petitioner testified that on June 20, 2008,
the informant picked him up from his mother’s house and drove him to meet Officer
Lovingood at a store in Monroe County. He agreed that he and the informant “smoked
crack” on their drive to meet Officer Lovingood and stated that the informant kept the drugs
in his shirt pocket during the drive. The Petitioner stated that the informant told him that he
was taking a “package” to his daughter’s boyfriend. The Petitioner stated that, upon arrival
at the store, the informant got out of the car and placed the drugs on the floorboard of the
vehicle. The Petitioner stated that the informant told him to give the drugs to Officer
Lovingood when he approached the car, to which the Petitioner responded, “I’m not passing
nothing or receiving nothing from nobody.”
The Petitioner testified that Officer Lovingood got into the informant’s vehicle and
asked the Petitioner “where the dope was at[.]” Officer Lovingood then picked the drugs up
1
This issue is not being raised in this appeal.
7
from the floorboard and placed cash in its place. The informant got back in the van, counted
the money, and then he drove the Petitioner home.
The Petitioner stated that on June 26, 2008, the informant picked up the Petitioner
from his mother’s house to take “something” to the informant’s daughter’s boyfriend. The
informant took the Petitioner to Vonore, Tennessee and stopped outside the “Quicksave or
Quickway Market” until Office Lovingood walked up to the vehicle. The Petitioned stated
that again the informant left drugs on the floorboard of the vehicle and exited the car.
Officer Lovingood got in the car and asked the Petitioner if he had brought “anything.”
Officer Lovingood took the drugs that were on the floorboard and left money in its place.
The Petitioner stated that police officers then took him into custody. The Petitioner told the
officers he had nothing to do with the drugs. The Petitioned testified that he had not spoken
with the informant since that day.
The Petitioner testified that Counsel was appointed to represent him in General
Sessions Court. He stated that he told Counsel about the informant and asked Counsel to
subpoena him. He stated that, during Counsel’s representation of him, Counsel did not “try
to build a case.” The Petitioner told Counsel that he had been “brought into a situation that
was controlled out of [his] means and that [he] didn’t bring no dope into no county and
especially into no school zone.” The Petitioner testified that he told Counsel to file a motion
to compel the State to disclose the identity of the informant but that Counsel did not believe
the State would reveal his identity. He stated that Counsel “made some kind of mention . .
. during trial and it go[t] rejected . . . .”
On cross-examination, the Petitioner agreed that, when he rode with the informant to
deliver the “package” to the informant’s daughter’s boyfriend, the Petitioner was “aware”
that the package contained drugs. He stated that he wanted a “free high,” so he agreed to ride
with the informant for that reason. The Petitioner said that Counsel told him how the trial
would go and answered all of his questions, but she did not object when the State asked
contradictory questions and “let the case go on.” The Petitioner recalled that Counsel told
him it was in his best interest not to testify and that Counsel said the Petitioner’s prior
convictions for sale and delivery of drugs would be used against him. He stated that he was
“agreeable” to not taking the stand to testify.
On redirect-examination, the Petitioner stated that he wrote a letter to Counsel’s
supervisor saying that Counsel had a lack of interest in his case and that a false case against
him was being built.
Counsel testified that she was employed by the Public Defender’s Office and was
appointed to represent the Petitioner. She stated that she represented him during a
8
preliminary hearing. Counsel testified that she spoke with the Petitioner and his family more
than once about the facts of his case and that they identified issues for further investigation.
One of the issues that the Petitioner and his family raised was that the confidential informant
“was selling drugs in their community.” Counsel stated that she had discussed the issue of
“entrapment” with the Petitioner and also the Petitioner’s defense that the drugs belonged to
the informant. The Petitioner maintained that he was “stuck in the middle” of the drug
purchase. Counsel said that she explained to the Petitioner that she was unable to find
evidence to support that defense because there was
an audio recording where [the Petitioner] was the one conversing with
the officer and [the Petitioner] made some statements about [the officer]
needed to pick [the drugs] up so it’s not a sell and delivery. So even though
[the Petitioner] asserted he was trapped into the transaction it didn’t exonerate
him from a delivery [charge]. Technically under the statute that set of facts did
not exonerate [the Petitioner] under a delivery theory.
Counsel testified that the fact that there were two drug transactions on separate days
hurt the Petitioner’s theory of defense that he was “accidentally” there for the drug
transaction. As far as calling the informant as a witness at trial, Counsel stated that she based
her decision on several theories of defense. One theory was that Counsel was able to illicit
“whatever we wanted about the confidential informant through the cross-examination” of
Officer Lovingood, who admitted in front of the jury that he did not know the informant and
had not drug tested him. Counsel stated that she also wanted to “attempt to reduce [the
Petitioner’s] exposure” with the hope of getting a conviction for a lesser-included offense
such as facilitation. Counsel stated that her third theory of defense was that she felt she could
prove to the jury that the State did not prove their case and was not forthcoming in their
prosecution by failing to produce the confidential informant as a witness. Counsel thus
“dwelled on” the confidential informant “a lot” in front of the jury. She also requested a
missing witness instruction. She agreed that it was a “strategy call” to not use the
confidential informant as a witness as the Petitioner requested.
On cross-examination, Counsel testified that she learned “early on” that a confidential
informant was involved in the case, and she had information that he was a “professional”
confidential informant. Counsel agreed that she did not file a motion at trial requesting that
the State disclose the confidential informant. Counsel stated it was “a strategy” to not call
the confidential informant as a witness at trial. Counsel further stated that she did not seek
the identity of the informant because “typically in [plea] negotiations with the District
Attorney’s Office” a plea deal will not be offered if the identity of the informant is revealed.
She agreed that a plea offer to a twelve-year sentence was offered to the Petitioner, but the
trial court rejected the plea agreement.
9
Counsel testified that she requested a “facilitation instruction” but that the trial court
judge denied her request, ruling that the “proof wasn’t sufficiently raised.” Counsel agreed
she did not raise a claim about the Drug Free School Zone Act violating the 8 th Amendment,
but she raised issues on appeal regarding sentencing and specifically the school zone
enhancement of the Petitioner’s sentence.
Based upon this testimony, the post-conviction court denied post-conviction relief.
In its order, the post-conviction court found that the Petitioner was not a credible witness,
noting the Petitioner’s testimony that he was “high” during the drug transaction and also a
“crack addict.” The post-conviction court noted that the Petitioner testified inconsistently
about the history of his case. The trial court further found that Counsel was a credible
witness and noted the various strategies she utilized at the Petitioner’s trial. It is from this
judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that Counsel’s failure to file a motion to compel
the identity of the confidential informant was deficient representation because the Petitioner
had a “right to the disclosure” of the informant’s identity at trial. The Petitioner further
contends that Counsel’s decision not to file the motion was not an informed decision based
on adequate preparation. The State responds that the evidence supports the post-conviction
court’s finding that Counsel made an “informed and strategic decision” to not seek the
confidential informant’s identity because Counsel’s testimony made it clear that her decision
not to file the motion was part of a strategy to highlight the informant’s absence in front of
the jury. The State also responds that the burden was on the Petitioner to present the
confidential informant as a witness at the post-conviction hearing, and his failure to do so
prevented the post-conviction court, had it found Counsel’s performance deficient, from
determining what the confidential informant’s testimony would have been. We agree with
the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
10
issues raised by the evidence are to be resolved by the trial court judge, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to
a purely de novo review by this Court, with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457 (Tenn. 2001).
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] 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 [petitioner] by the
Sixth Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
11
Finally, we note that a defendant in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective
assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United
States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The
fact that a particular strategy or tactic failed or hurt the defense does not, standing alone,
establish unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.”
House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).
In its order denying the Petitioner relief on this issue, the post-conviction court found
that Counsel was a credible witness, noting that she made strategic and tactical choices
throughout her preparation for the Petitioner’s trial, and further noting that her testimony at
the post-conviction hearing was corroborated by the testimony at trial. The post-conviction
court found that Counsel “had a strategy, [was] a very experienced criminal defense attorney
and her performance was not proven to be deficient or below objective standards of
reasonableness.” The post-conviction court found that the Petitioner’s testimony was not
credible.
The Petitioner cites House v. State, 44 S.W.3d 508 (Tenn. 2001), in support of his
argument that the Petitioner had a “right to disclosure” of the informant’s identity. The Court
in House held that, while a defendant “may [have] a right to pretrial disclosure of the
informant’s identity,” 44 S.W.3d at 515 (emphasis added), counsel in that case was
ineffective because his decision not to seek disclosure of the informant was not a matter of
strategy or part of a tactical decision. Id. at 516 (emphasis added). The Court also gave
weight to the fact that counsel was uncertain about whether disclosure of the informant’s
identity was required. Thus, the Court held that counsel’s performance was deficient. Id.We conclude that the evidence does not preponderate against the post-conviction
12
court’s findings. Counsel was not deficient in her representation of the Petitioner when she
did not file a motion to compel the identity of the confidential informant. Counsel testified
that such motions generally ended plea bargain negotiations and that the State had made a
plea offer which she thought the Petitioner might accept. Counsel stated that her strategy
was to focus on the absence of the confidential informant through her cross-examination of
the police officer. Counsel recalled that she had several theories of defense that informed
her decision not to file the motion, including her theory that the State would not be able to
prove its case without presenting the informant’s testimony, which would have led to an
acquittal. We conclude that her decision was not indicative of deficient performance but of
a multi-pronged defense strategy for the Petitioner’s trial.
Counsel further testified about her trial strategies, saying that she attempted to shield
the Petitioner from negative exposure in front of the jury and focused on the confidential
informant’s absence as a witness when cross-examining the police officer. Counsel
requested, unsuccessfully, a missing witness instruction to further highlight the informant’s
absence. The Petitioner did not present the confidential informant as a witness at the post-
conviction hearing. This is required for him to show Counsel’s representation prejudiced
him, as “this is the only way the [P]etitioner can establish that . . . the failure to have a known
witness present or call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the [P]etitioner.” Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990).
The Petitioner has not shown by clear and convincing evidence that Counsel’s
decision not to file a motion to compel the informant’s identity constituted representation that
falls below the standard of reasonableness. Accordingly, we do not conclude that Counsel’s
representation fell below an objective standard of reasonableness. Thus, the Petitioner is not
entitled to relief.
III. Conclusion
After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied relief. Accordingly, we affirm the judgment of the
post-conviction court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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