Alejandro Neave Vasquez v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Jackson May 5, 2015
ALEJANDRO NEAVE VASQUEZ v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2009-B-1141 Steve R. Dozier, Judge
No. M2014-01404-CCA-R3-PC – Filed May 28, 2015
Petitioner, Alejandro Neave Vasquez, was convicted by a jury of conspiracy to deliver
300 grams or more of cocaine in a drug-free school zone and possession with intent to
deliver 300 grams or more of cocaine in a drug-free school zone. He received concurrent
twenty-year sentences for each count, for a total effective sentence of twenty years in the
Tennessee Department of Correction. Petitioner filed a petition for post-conviction relief
alleging that he received the ineffective assistance of counsel. After a hearing, the post-
conviction court denied relief. On appeal, petitioner argues that he received the
ineffective assistance of counsel because trial counsel: (1) failed to utilize an interpreter
during all meetings and at trial; (2) advised petitioner not to testify; and (3) failed to
adequately explain the school-zone enhancement. Following our review, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROGER A. PAGE, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT W. WEDEMEYER, JJ., joined.
Leah Ruth Wilson, Nashville, Tennessee, for the appellant, Alejandro Neave Vasquez.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and John Zimmerman, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case stems from a controlled cocaine buy. See State v. Alejandro Neave
Vasquez and Nazario Araguz, No. M2010-02538-CCA-R3-CD, 2012 WL 5989875, at *1
(Tenn. Crim. App. Nov. 28, 2012). The police planned for an informant to ask for a
kilogram of cocaine from a source but then return the cocaine to the source, claiming that
it was impure, so that the police could follow the cocaine back to what they called a
“stash house.” Id. The police observed two Hispanic men arrive at the buy location in a
Volkswagen Jetta, bring cocaine to the informant, and then leave the location with the
cocaine. Id. at *1-2. The police followed the Jetta to an apartment complex and watched
as the driver removed a dark-colored block from the trunk and placed it in a white bag.
Id. at *3. The Jetta was driven to a gas station, where the driver removed the white bag
from the Jetta and placed it in a Tahoe. Id. at *2-4. The Tahoe was driven by co-
defendant Jose Aragus. Id. at *4. Aragus drove the Tahoe to a home on Strand Fleet
Drive. Id. Thereafter, petitioner and co-defendant Nazario Araguz arrived at the Strand
Fleet Drive house in a brown Ford F-150 with a license plate reading, “Araguz.” Id. The
police observed petitioner carrying a white bag that he placed in the engine compartment
of the F-150. Id. Petitioner and Araguz then left Strand Fleet Drive in the F-150. Id.
The police stopped petitioner and Araguz on Richards Road after having driven past an
elementary school. Id. at *2, *4-5. The police recovered a block of cocaine from the
engine compartment of the truck, as well as approximately $123,000 from the interior of
the truck. Id. at *2. Subsequently, petitioner was indicted, tried, and convicted of
conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone and
possession with intent to deliver 300 grams or more of cocaine in a drug-free school
zone. Id. at *1. Petitioner unsuccessfully appealed his convictions to this court. Id. at
*7-14.
Petitioner filed a timely petition for post-conviction relief, and the evidentiary
hearing occurred on June 26, 2014.
At the hearing, petitioner stated that he did not speak English very well and that at
trial, he did not have an interpreter, so he was unable to understand the testimony.
Petitioner asserted he made the decision not to have an interpreter at trial after trial
counsel told him that it would “look bad” if he did not understand English. Petitioner
explained that he did not testify at trial due to trial counsel‟s opinion that the District
Attorney was racist. Petitioner asserted that he would have testified if trial counsel had
not advised against it. After being asked if he had an interpreter during meetings with his
attorney, petitioner responded, “Sometimes I did have an interpreter; other times I did
not.” Petitioner stated that trial counsel had explained his charges to him but that he did
not understand the ramifications of the school-zone enhancement or the requirement of
serving the imposed sentence at one hundred percent.
During cross-examination, petitioner explained that if he had testified, he would
have told the jury that he had “never touched a drug” and that he did know to whom the
drugs belonged. Petitioner denied putting the drugs in the vehicle and denied seeing any
money inside of the truck.
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Trial counsel testified that when he met petitioner, petitioner had been living in the
United States for seventeen years and spoke some English. Trial counsel explained that
an interpreter was present when he met with petitioner at the jail on June 26, 2009, and
that he made a note to himself stating that petitioner‟s English was “a lot better than he is
letting me believe.” Trial counsel stated that at that meeting, he and the interpreter
explained the indictments and the ranges of punishment. Subsequently, trial counsel met
with petitioner again, with an interpreter, and trial counsel noted that petitioner spoke
English “well.” Trial counsel asserted that he was able to effectively communicate with
petitioner in meetings in which there was no interpreter present. Trial counsel and
petitioner discussed various aspects of the case. Trial counsel stated that he had no
trouble communicating with petitioner in English during trial and that he believed that
petitioner understood the conversations. Trial counsel explained that he advised
petitioner against testifying because he did not want petitioner to have to concede that he
was connected to the money in the truck. Trial counsel stated that petitioner admitted to
him that he had been collecting the money from various sources earlier in the day. Trial
counsel claimed that the more effective strategy was to argue that the money was not
visible from the passenger seat, where petitioner was sitting, thereby weakening the link
between petitioner and the money. In response to a question regarding why petitioner
thought that the prosecutor was racist, trial counsel testified that when the State failed to
offer or accept a plea bargain, he told petitioner that the most likely explanation was that
the District Attorney was “sending a message to the Mexican/Spanish drug dealer, cartel-
type folks that if you send . . . large quantities of cocaine into Nashville, Tennessee, you
can expect to get a pretty harsh sentence.” Trial counsel denied telling petitioner that the
prosecutor was racist and denied telling petitioner that if he testified, his race would
affect the outcome of the trial. Regarding the school-zone enhancement, trial counsel
explained that he discussed the enhancement with petitioner, both with and without an
interpreter, and that they examined various maps of the route taken on the day of the
arrest. Trial counsel testified that he had spent a minimum of fifty hours working on
petitioner‟s case.
During cross-examination, trial counsel stated that he had numerous conversations
with petitioner about whether petitioner was going to testify. When asked if petitioner
ever asked for an interpreter during meetings or at trial, trial counsel explained that at one
of the meetings, he confronted petitioner about the “no habla ingles scenario” when he
and petitioner “did not have a problem communicating in English” and that he could not
think of a reason that he would have denied petitioner an interpreter at trial if petitioner
had requested one.
The post-conviction court denied post-conviction relief on July 11, 2014, by
written order. In doing so, the court found credible trial counsel‟s testimony that
petitioner understood English and that petitioner did not need an interpreter. The trial
court determined that trial counsel had discussed the charges, the applicable range of
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punishment, and petitioner‟s right to testify on multiple occasions. The post-conviction
court determined that petitioner had failed to show that trial counsel was ineffective in his
representation of petitioner. This appeal follows the post-conviction court‟s denial of
relief.
II. Analysis
Petitioner argues that trial counsel was ineffective for: (1) failing to utilize an
interpreter during all meetings and at trial; (2) advising petitioner not to testify; and (3)
failing to adequately explain the school-zone enhancement. The State responds that trial
counsel was not ineffective in his representation of petitioner. We agree with the State.
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).
Appellate courts do not reassess the post-conviction court‟s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing
R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of
witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,
245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-
conviction court‟s findings of fact are conclusive on appeal unless the preponderance of
the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)
(citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d
615, 631 (Tenn. Crim. App.1997)). However, conclusions of law receive no presumption
of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001)).
As a mixed question of law and fact, this court‟s review of petitioner‟s ineffective
assistance of counsel claims is de novo with no presumption of correctness. Felts v.
State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).
The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
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deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).
To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:
“[T]he assistance of counsel required under the Sixth Amendment is
counsel reasonably likely to render and rendering reasonably effective
assistance. It is a violation of this standard for defense counsel to deprive a
criminal defendant of a substantial defense by his own ineffectiveness or
incompetence. . . . Defense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal law and must
conscientiously protect his client=s interest, undeflected by conflicting
considerations.”
Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial
counsel‟s performance, this court “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “must establish a reasonable probability that but for counsel‟s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
magnitude that he was deprived of a fair trial and that the reliability of the outcome was
called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).
Petitioner has failed to show that trial counsel‟s performance was deficient or that
trial counsel‟s performance caused him to suffer prejudice at trial. Trial counsel testified
that he met with petitioner multiple times, both with and without an interpreter. At these
meetings, trial counsel discussed the indictments, the ranges of punishment, the facts of
the case, the school-zone enhancement, and other various aspects of the case. Trial
counsel explained that he was able to effectively communicate with petitioner without an
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interpreter and that petitioner understood English to a greater extent than his actions
indicated. The post-conviction court credited trial counsel‟s testimony in this regard, and
we will not reweigh or reevaluate credibility determinations on appeal. Dellinger, 279
S.W.3d at 292 (citing R.D.S., 245 S.W.3d at 362). Accordingly, petitioner has failed to
show that trial counsel was deficient by not utilizing an interpreter during all meetings
and at trial and by failing to explain the school-zone enhancement.
Regarding petitioner‟s assertion that trial counsel was ineffective for advising him
not to testify, trial counsel explained that he so advised petitioner due to petitioner‟s
admission that he was connected to the money seized from the vehicle. Trial counsel
explained that his trial strategy was to show that based on the money‟s location in the
truck, it was not visible to petitioner, thereby weakening the link between petitioner and
the money. This court does not second guess strategic and tactical choices made by trial
counsel. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (quoting United States v.
DeCoster, 487 F.2d 1197, 1201 (D.C. Cir. 1973)). Only when those strategic choices are
uninformed based on inadequate preparation does a defendant receive the ineffective
assistance of counsel. Id. However, there is no indication that trial counsel‟s strategy
was from a lack of preparation, but rather, it was a product of his preparation.
Furthermore, the post-conviction court in this case found that trial counsel had discussed
with petitioner the petitioner‟s right to testify and that trial counsel thoroughly questioned
petitioner about his right to testify during a hearing. Petitioner has failed to show that
trial counsel was deficient in this regard; therefore, petitioner is not entitled to relief.
CONCLUSION
Based on the parties‟ briefs, the record, and the applicable law, we affirm the
judgment of the post-conviction court.
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ROGER A. PAGE, JUDGE
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