Shango Aton Ramsey v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 29, 2016
SHANGO ATON RAMSEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Cocke County
No. 4922 Ben W. Hooper, II, Judge
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No. E2015-01464-CCA-R3-PC – Filed August 8, 2016
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Shango Aton Ramsey (“the Petitioner”) appeals the Cocke County Circuit Court‟s denial
of his petition for post-conviction relief. The Petitioner contends that he received
ineffective assistance of counsel in connection with his guilty plea and that the State
withheld evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1962). Upon review, we
affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.
Bryce W. McKenzie, Sevierville, Tennessee, for the appellant, Shango Aton Ramsey.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; James Dunn, District Attorney General; and Brownlow Marsh, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
Plea Colloquy
In November 2011, the Petitioner entered an “open plea” in the Cocke County
Circuit Court to sale of less than .5 grams of cocaine base, a Class C felony. The State
recited the factual basis for the Petitioner‟s plea, as follows:
[O]n or about December 20, 2010, . . . a confidential informant, an[d]
Agent Todd Coleman, of the Drug Task Force, arrived at a house on
Domino Street here in Newport and met with [the Petitioner]. Agent
Coleman also testified that [the Petitioner] used the telephone provided by
the CI to make a telephone call and then Agent Coleman gave a hundred
dollars of Drug Task Force funds to [the Petitioner]. [The Petitioner]
walked up the street and met with a white BMW, came back and gave a
clear, plastic baggie containing a white, rock like substance, weighing two
tenths of a gram to Agent Coleman. And that white rock was sent off to the
TBI Crime Lab and came back as zero point two grams of cocaine base[] or
crack cocaine.
During the plea colloquy, the Petitioner stated that he was thirty-eight years old,
was a high school graduate, and could read and write without difficulty. The Petitioner
indicated that he had no physical, mental, or emotional conditions that would interfere
with his ability to understand the proceedings. The Petitioner indicated that he had
discussed with trial counsel the possible punishment involved based upon the charged
offenses. He agreed that he had discussed the case with trial counsel and that they had
talked about whether or not to proceed to trial. The Petitioner acknowledged that he was
giving up his right to a jury trial, that he had not been forced to plead guilty, and that he
was entering his plea freely and voluntarily. The Petitioner also stated that he was
satisfied with trial counsel‟s performance.
At a subsequent sentencing hearing, the trial court sentenced the Petitioner, as a
Range III persistent offender, to ten years‟ incarceration. The trial court noted that the
Petitioner had a lengthy criminal history, including at least nine felony convictions,
eighteen misdemeanors convictions, and seven prior violations of probation. The
Petitioner filed a notice of appeal with this court but later filed a motion seeking to
voluntarily dismiss the appeal, which this court granted. See State v. Shango Ramsey,
No. E2012-01340-CCA-R3-CD (Tenn. Crim. App. Dec. 11, 2012) (order).
Post-Conviction Proceedings
On August 28, 2013, the Petitioner filed a pro se petition for post-conviction
1
relief. Following the appointment of counsel, an amended petition was filed, alleging
1
The record on appeal does not contain a copy of the judgment of conviction. Without a copy of
the judgment, it is difficult to tell whether the direct appeal was timely filed and, consequently, whether
the petition for post-conviction relief was filed within the one-year statute of limitations. However, the
State did not assert the statute of limitations as a defense, and the post-conviction court ruled on the
merits of the petition. Accordingly, we presume that the petition was timely filed.
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the denial of effective assistance of counsel, an unknowing guilty plea, and a violation of
Brady.
At the post-conviction hearing, the Petitioner testified that trial counsel was
appointed to represent him after his original attorney, who was appointed shortly after his
arraignment in September 2011, had to withdraw from the case because of a conflict of
interest. Consequently, the Petitioner did not speak to trial counsel about his case until he
came to court on November 8, 2011, the day of his guilty plea. The Petitioner stated that
trial counsel played an audio CD of the drug transaction but claimed that counsel showed
him no other discovery relating to his case. The Petitioner explained that the audio
recording contained both the transaction and a minute and a half phone call allegedly
between the confidential informant (“CI”) and himself. He recalled that, while listening
to the recording, he heard the name “Boswell” and recognized the CI as Nick Boswell.
The Petitioner stated that he did not listen to all of the recording with trial counsel; he
only listened to “the part where Nick first come [sic] to my house and stuff.” The
Petitioner maintained that he did not see any other evidence relating to his case before he
entered his plea.
The Petitioner testified that, after speaking with trial counsel and listening to a
portion of the audio recording, he returned to the jury box in the courtroom. At that time,
another inmate, Trevor Stewart, asked the Petitioner, “Who got you?” When the
Petitioner responded, “I think it was Nick Boswell,” Mr. Stewart informed the Petitioner
that Mr. Boswell was deceased. The Petitioner then motioned for trial counsel to come
over, and he told trial counsel that the CI in his case “might be passed away.” According
to the Petitioner, trial counsel spoke to the prosecutor briefly and then told the Petitioner
that he was “mistaken.” The Petitioner stated that, based upon that representation from
trial counsel, he agreed to plead guilty. He testified that he had been in custody for about
a month before the November 8 court date and that he “had no way of learning anything
about Mr. Boswell.” The Petitioner said that he relied upon the information from trial
counsel in deciding whether to enter a plea and, if he had known that Mr. Boswell was in
fact deceased,2 he would not have entered his guilty plea.
On cross-examination, the Petitioner admitted that, when he was listening to the
audio recording with trial counsel, he told trial counsel to “cut it off” after he heard Mr.
Boswell on the recording. He also admitted that Mr. Boswell was the CI that he gave
drugs to during the recorded transaction. The Petitioner testified that he and Mr. Boswell
2
At the hearing, the parties stipulated that Mr. Boswell was deceased. However, the parties were
unaware of the date of Mr. Boswell‟s death, and the Petitioner indicated that he would supplement the
trial record with documentation establishing the date of death. The Petitioner never supplemented the
record.
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had been friends and had “hung out a lot.” He further acknowledged that Mr. Boswell
had been a drug addict and had used crack cocaine.
Trevor Stewart, an inmate in Cocke County, testified that he was in the jury box
with the Petitioner on November 8, 2011. Mr. Stewart recalled telling the Petitioner that
Mr. Boswell was deceased and that he should not plead guilty “without knowing about
his case first[.]” Mr. Stewart stated that the Petitioner had been unaware of Mr.
Boswell‟s death and that the Petitioner then informed trial counsel that Mr. Boswell was
deceased. According to Mr. Stewart, trial counsel did not respond to Petitioner, looked
away, and started talking to the trial judge. Mr. Stewart said trial counsel “didn‟t never
say nothing else about it.”
Trial counsel testified that she was appointed to represent the Petitioner after his
indictment. She recalled that, originally, the public defender‟s office had been appointed
to represent the Petitioner but had to withdraw when a conflict of interest was discovered.
Trial counsel stated that she received discovery from the State, which she reviewed. Trial
counsel could not recall making the Petitioner a copy of the discovery but testified that
she went over the papers and audio recording with him in the jury room. Trial counsel
recalled that the discovery information did not list the name of the CI used in the case.
Trial counsel testified that she had spoken to the Petitioner at previous court dates prior to
November 8, 2011. She stated that she had previously asked the court for a continuance
so that the Petitioner could review discovery. Trial counsel recalled that she had “a hard
time staying in contact” with the Petitioner prior to court appearances, explaining that the
Petitioner did not maintain contact with her office and that it was “very hard to find him.”
Trial counsel agreed that, before the November 8 court appearance, she had not known
the identity of the CI, and she had not listened to the audio recording of the transaction.
Trial counsel recalled that, during court on November 8, she asked the bailiff to
take the Petitioner, who was in custody, to the jury room so that she could review
discovery with him. Trial counsel used her laptop to play part of the audio recording for
the Petitioner. As the Petitioner listened to the recording, he identified the CI to trial
counsel as Mr. Boswell. Trial counsel recalled that, after some discussion, the Petitioner
said that “he had heard enough” and did not want to listen to the rest of the recording, and
he instructed trial counsel to “cut off the tape.” Trial counsel stated, however, that she
had reviewed the entire audio recording by herself before having the Petitioner listen to
it. Counsel explained that, although she did not know Mr. Boswell, the Petitioner
identified Mr. Boswell by voice. The Petitioner told trial counsel that the “[w]ord on the
street” was that Mr. Boswell was deceased. The Petitioner then suggested that trial
counsel tell the prosecutor that the Petitioner knew that the CI was deceased. Trial
counsel stated that she provided this information to the prosecutor, who then contacted
the agent on the case. After speaking with the agent, the prosecutor told trial counsel that
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the agent verified that Mr. Boswell was deceased. However, the prosecutor informed
trial counsel that the agent had seen and heard the drug transaction and that the agent
would be able to testify as a witness at trial, notwithstanding the CI‟s death. Following
her discussions with the prosecutor, trial counsel explained to the Petitioner that the State
“still had an additional witness that . . . would be able to testify at trial against him should
he decide to proceed to trial.”
Trial counsel said that she filed a request for discovery and specifically asked for
Brady material. She stated that she considered the death of the CI potential exculpatory
information. Trial counsel stated that, in her experience with drug cases, she typically
learned the identity of the CI after her client reviewed the audio or video recording of the
drug transaction. Trial counsel explained that, typically, the prosecutor‟s office did not
turn over the name of the CI until about a month away from trial. Counsel stated, “This
case was never set for trial . . . so it was still premature in the procedure here for that
witness to be turned over, the name of the witness.” She stated that she considered the
discovery “ongoing” and explained, “It was very early in the case . . . and I didn‟t expect
the name of the informant to come until later in time.”
Trial counsel recalled that after she reviewed discovery with the Petitioner,
including the audio recording of the drug transaction, the Petitioner was under the
impression that the only witness that the State had was the CI. However, after speaking
to the prosecutor, trial counsel told the Petitioner that he was mistaken and that the State
had an additional witness who could testify at trial. Trial counsel stated that she did not
investigate the CI‟s death any further after the Petitioner told her Mr. Boswell was
deceased and the prosecutor confirmed that information with the agent in charge of the
case.
Trial counsel could not recall if she told the Petitioner that the CI was deceased
after speaking to the prosecutor. However, trial counsel did recall telling the Petitioner
that there was “still another witness.” Trial counsel explained that she spoke
“extensively” with the Petitioner about his entering an “open plea” and about the impact
of the State‟s not having testimony from the CI. She explained to the Petitioner that there
were three possible outcomes to his criminal case—dismissal, trial, or some form of plea.
She discussed with the Petitioner that because the State had an agent that observed and
heard everything in the drug transaction, the case did not “die with the CI.” When trial
counsel asked the Petitioner if he wanted a trial, the Petitioner stated that he thought the
State was “being unfair with the offers that he was being given” and that he would have
“a better shot” with his sentence at a sentencing hearing. Ultimately, the Petitioner told
trial counsel that he wanted to enter a plea of guilty, knowing that the CI was deceased.
Trial counsel stated that she did not ask for a continuance to investigate whether the CI
was deceased because there was “no question that he was dead.” She recalled that the
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Petitioner had no concerns about the death of the CI at the time of his guilty plea. Trial
counsel stated that, in her opinion, the CI was “not a linchpin material witness,” and his
death would not result in a dismissal of the case because the State‟s primary witness was
still available to testify.
On cross-examination, trial counsel stated that the prosecutor was unaware of the
identity of the CI when trial counsel asked about the status of the CI. The prosecutor had
to speak to the case agent to learn the CI‟s identity and whether he was deceased.
Agent Todd Coleman of the Jefferson County Sheriff‟s Department testified that
he was assigned to the Fourth Judicial District Drug Task Force. On December 20, 2010,
Agent Coleman was working with Mr. Boswell as a CI when Mr. Boswell called the
Petitioner to arrange a drug transaction for crack cocaine. Agent Coleman explained,
however, that he did not hear the phone conversation between Mr. Boswell and the
Petitioner until after the transaction, when he listened to the recording of the call. Agent
Coleman testified that he and Mr. Boswell went to a residence on Domino Street in
Newport to meet with the Petitioner as Mr. Boswell arranged. When they got to the
residence, Agent Coleman and Mr. Boswell exited their vehicle and met the Petitioner in
the driveway. Mr. Boswell and the Petitioner agreed to a purchase of one-hundred-
dollars‟ worth of crack cocaine, and Agent Coleman gave the Petitioner a one hundred
dollar bill. The Petitioner then used Mr. Boswell‟s phone to call his supplier. A short
time later, a vehicle arrived “up the street,” and the Petitioner walked to the vehicle. The
Petitioner met with someone in the vehicle and came back holding a piece of crack in his
hand. The Petitioner then handed the crack to Agent Coleman. Agent Coleman recalled
that the Petitioner wanted a piece of the crack rock but stated that he gave the Petitioner
an extra twenty dollars instead. Agent Coleman testified that he later sent the drugs to
the Tennessee Bureau of Investigation crime lab where it was analyzed and found to be
cocaine base, crack cocaine.
On cross-examination, Agent Coleman acknowledged that he did not know the
Petitioner and had not talked to the Petitioner before the day of the transaction. He
explained that another agent, Agent David Norton, was in the car with Mr. Boswell when
Mr. Boswell called the Petitioner and recorded the phone call. Although Agent Coleman
listened to the recorded call following the transaction, he acknowledged that he had not
known what the Petitioner‟s voice sounded like. Agent Coleman stated that he bought
the drugs from the Petitioner for one hundred dollars.
At the conclusion of the hearing, the post-conviction court found that the
Petitioner and trial counsel “were well aware” that the CI was deceased before the
Petitioner entered his guilty plea. The court found that Mr. Boswell‟s death was “fully,
totally, completely discussed” between the Petitioner and trial counsel but that trial
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counsel concluded that the State could still proceed to trial without the CI because it had
an additional witness. The post-conviction court further found that trial counsel
discussed the plea with the Petitioner before it was entered and that counsel provided
adequate advice based on the circumstances. The court concluded that trial counsel‟s
representation was not ineffective and that the Petitioner‟s guilty plea was knowing and
voluntary. Further, the post-conviction court found that the prosecutor had no knowledge
of the CI‟s death prior to the Petitioner‟s court appearance on November 8 and concluded
there was no Brady violation. Based upon these findings, the post-conviction court
denied relief. This timely appeal followed.
II. Analysis
On appeal, the Petitioner contends that he received ineffective assistance of
counsel resulting in an unknowing and involuntary guilty plea. He contends that trial
counsel was ineffective based upon her failure to investigate the identity of the CI and to
determine whether the CI would be available for trial. The Petitioner asserts that, had
trial counsel filed a motion to obtain the CI‟s identity and discovered that the CI was
deceased, he would not have entered a guilty plea but would have insisted on proceeding
to trial. He further contends that trial counsel was ineffective for failing to consider
whether any other avenues of defense existed. Specifically, trial counsel did not
investigate the admissibility of the recorded phone call between the CI and the Petitioner
and whether Agent Coleman could have authenticated the Petitioner‟s voice. The State
responds that trial counsel was effective, and the Petitioner‟s plea was knowing and
voluntary.
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. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court‟s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court‟s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally,
“questions concerning the credibility of the witnesses, the weight and value to be given
their testimony, and the factual issues raised by the evidence are to be resolved by the
[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and
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application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.
Ineffective Assistance of Counsel
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for a court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel‟s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct,
and to evaluate the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.
Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
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A substantially similar two-prong standard applies when the petitioner challenges
counsel‟s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58
(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764,
at *4 (Tenn. Crim. App. Apr. 26, 2012). First, the petitioner must show that his counsel‟s
performance fell below the objective standards of reasonableness and professional norms.
See Hill, 474 U.S. at 58. Second, “in order to satisfy the „prejudice‟ requirement, the
[petitioner] must show that there is a reasonable probability that, but for counsel‟s errors,
he would have not have pleaded guilty and would have insisted on going to trial.” Id. at
59.
Unknowing and Involuntary Guilty Plea
Counsel‟s effectiveness may also implicate the requirement that a plea must be
entered knowingly and voluntarily, i.e., that the petitioner made the choice to plead guilty
after being made aware of the significant consequences of such a plea. State v. Pettus,
986 S.W.2d 540, 542 (Tenn. 1999). When reviewing a guilty plea, this court looks to
both the federal standard as announced in the landmark case Boykin v. Alabama, 395
U.S. 238 (1969), and the state standard as announced in State v. Mackey, 553 S.W.2d 337
(Tenn. 1977), superseded on other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App.
P. 3(b). Don Allen Rodgers, 2012 WL 1478764, at *5. Under the federal standard, there
must be an affirmative showing that the plea was “intelligent and voluntary.” Boykin,
395 U.S. at 242. Likewise, the Tennessee Supreme Court has held that “the record of
acceptance of a defendant‟s plea of guilty must affirmatively demonstrate that his
decision was both voluntary and knowledgeable, i.e. that he has been made aware of the
significant consequences of such a plea . . . .” Mackey, 553 S.W.2d at 340. “[A] plea is
not „voluntary‟ if it is the product of „[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 858 S.W.2d 897,
904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43).
In order to determine whether a plea is intelligent and voluntary, the trial court
must “canvass[] the matter with the accused to make sure he has a full understanding of
what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court
looks to several factors before accepting a plea, including:
[T]he relative intelligence of the defendant; degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel
and had the opportunity to confer with counsel about the options available
to him; the extent of advice from counsel and the court concerning the
charges against him; and the reasons for his decision to plead guilty,
including a desire to avoid a greater penalty that might result from a jury
trial.
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Blankenship, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006).
Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess
the voluntary and intelligent nature of the plea and creates an adequate record for any
subsequent review. Boykin, 395 U.S. at 244.
Statements made by a petitioner, his attorney, and the prosecutor during the plea
colloquy, as well as any findings made by the trial court in accepting the plea, “constitute
a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of
truth, and to overcome such presumption, a petitioner must present more than
“conclusory allegations unsupported by specifics.” Id. at 74.
In this case, the Petitioner has failed to demonstrate that trial counsel was
ineffective or that trial counsel‟s representation led to an involuntary guilty plea. The
post-conviction court accredited trial counsel‟s testimony that she and the Petitioner
discussed in detail the discovery provided by the State. When the Petitioner listened to
the audio recording of the drug transaction, he identified the CI as his friend, Mr.
Boswell. Upon learning from the Petitioner that Mr. Boswell was deceased, trial counsel
immediately approached the prosecutor, who confirmed Mr. Boswell‟s death. Trial
counsel then explained to the Petitioner that the death of the CI did not affect the State‟s
ability to prosecute him because the State had another witness who could testify about the
transaction. After discussing this with the Petitioner, the Petitioner made the decision to
plead guilty and to have the trial court determine his sentence at a sentencing hearing. As
noted by the State, the transcript of the guilty plea submission hearing further supports
the post-conviction court‟s finding that the Petitioner had fully discussed the case with
trial counsel. While the Petitioner insists that trial counsel should have learned of the
CI‟s identity and death earlier, trial counsel testified that it was still “very early” in the
process and that discovery was “ongoing.” Based upon her experience in other drug
cases, trial counsel did not expect the State to provide the name of the CI until after the
case was set for trial. In any event, the record demonstrates that the Petitioner was aware
of the identity of the CI and that the CI was deceased before he decided to enter his plea.
Moreover, trial counsel gave the Petitioner appropriate advice on whether to plead guilty
or go to trial. The Petitioner has not shown deficient performance or resulting prejudice
based upon trial counsel‟s failure to investigate the identity of the CI and discover that
the CI was deceased.
Regarding the Petitioner‟s claim that trial counsel was ineffective for failing to
investigate the admissibility of the recorded phone call between the CI and the Petitioner,
Agent Coleman testified that Agent Norton was in the car with Mr. Boswell when Mr.
Boswell called the Petitioner and that Agent Norton recorded the phone call. Although
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Agent Coleman stated that he would not have been able to identify the Petitioner‟s voice,
it is not clear from the record whether Agent Norton could have identified the Petitioner
as the individual speaking to Mr. Boswell. In any event, Agent Coleman testified that,
after the phone call, he personally met with the Petitioner and gave the Petitioner one
hundred dollars for crack cocaine. Agent Coleman then watched as the Petitioner called
his supplier and met the supplier‟s vehicle. The Petitioner then returned and gave Agent
Coleman the crack cocaine, completing the transaction. The Petitioner has failed to
establish that the recorded phone call was inadmissible or that counsel was deficient.
Because Agent Coleman was present throughout the transaction and was available to
testify at trial, the recorded telephone call would not have been dispositive of the trial‟s
outcome. The Petitioner failed to establish that he would not have pleaded guilty and
would have insisted on going to trial even if the recording had been excluded.
Because the record does not preponderate against the post-conviction court‟s
determination that counsel did not provide ineffective assistance, the Petitioner has failed
to establish his plea was unknowing or involuntary because of counsel‟s alleged deficient
performance. The Petitioner is not entitled to relief on this claim.
Brady Violation
The Petitioner also contends that the post-conviction court erred in finding that no
Brady violation occurred. He argues that the State‟s withholding of information
concerning the death of Mr. Boswell clearly constitutes a Brady violation, regardless of
whether the prosecutor knew of Mr. Boswell‟s death. The State responds that the
Petitioner is not entitled to relief based on an alleged Brady violation because the
Petitioner was aware of Mr. Boswell‟s death and discussed the implications of the CI‟s
death with trial counsel before he entered his guilty plea.
In Brady, the United States Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 83 U.S. at 87. In order to establish a Brady violation, four
prerequisites must be met:
1. The defendant must have requested the information (unless the evidence
is obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
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State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “The prosecution is not required to
disclose information that the accused already possesses or is able to obtain . . . or
information which is not possessed by or under the control of the prosecution or another
governmental agency.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)
(citing State v. Caldwell, 656 S.W.2d 864, 897 (Tenn. Crim. App. 1983); Banks v. State,
556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). The defendant must prove, by a
preponderance of the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d
at 389.
In order to establish a Brady violation, the evidence need not be admissible; it only
needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “„provides some
significant aid to the defendant‟s case, whether it furnishes corroboration of the
defendant‟s story, calls into question a material, although not indispensible, element of
the prosecution‟s version of events, or challenges the credibility of a key prosecution
witness.‟” Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (quoting Commonwealth
v. Ellison, 379 N.E.2d 560, 571 (Mass. 1978)). Evidence is material under Brady “only if
there is a reasonably probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Bagley, 473 U.S.
667, 682 (1985) (citing Strickland, 466 U.S. at 694). A “reasonable probability” is “a
probability sufficient to undermine the confidence in the outcome.” Id. (internal
quotation marks omitted).
In this case, although the post-conviction court found that the prosecutor did not
know of the death of Mr. Boswell before contacting the task force agent assigned to the
case, the Petitioner is correct that the prosecution is tasked with constructive knowledge
of “any favorable evidence known to the others acting on the government‟s behalf in the
case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). However, the
evidence of Mr. Boswell‟s death was not suppressed by the State for purposes of Brady
because the Petitioner already possessed that information. The Petitioner informed trial
counsel of the identity of the CI and told counsel that Mr. Boswell was deceased. When
trial counsel approached the prosecutor with this information, the prosecutor contacted
the case agent and confirmed Mr. Boswell‟s death to trial counsel. Moreover, because
the Petitioner knew of Mr. Boswell‟s death and discussed it with trial counsel prior to his
decision to plead guilty, the Petitioner cannot show that the result of the proceeding
would have been different had the evidence of Mr. Boswell‟s death been disclosed by the
State through discovery or some other means. See Bagley, 473 U.S. at 682. The
Petitioner is not entitled to post-conviction relief based upon this claim.
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III. Conclusion
For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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