Lamar M. Cullom v. State of Tennessee

11/05/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 28, 2018
LAMAR M. CULLOM v. STATE OF TENNESSEE
Appeal from the Criminal Court for White County
No. CR5977 David A. Patterson, Judge
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No. M2017-02165-CCA-R3-PC
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The Petitioner, Lamar M. Cullom, appeals the White County Criminal Court’s denial of
his petition for post-conviction relief, arguing that trial counsel provided ineffective
assistance with regard to Exhibit 6, an unedited audio/video recording of the drug
transaction between the Petitioner and a confidential informant that was not shown to the
jury. The Petitioner specifically contends that (1) trial counsel failed to object to the
prosecutor’s comment that the unedited recording did not have “substance”; (2) trial
counsel failed to use the unedited recording during his cross-examination of the
confidential informant; (3) trial counsel failed to object to the trial court’s comment to the
jury that the unedited recording contained just transportation, that no one was there, and
that anything else on it was irrelevant; (4) trial counsel failed to object to the prosecutor’s
comment to the jury that the trial court was correct in stating that the unedited recording
contained just transportation, that no one was there, and that anything else on it was
irrelevant; (5) trial counsel failed to object to the trial court’s ruling that the jury could
not view the unedited recording; and (6) the cumulative effect of trial counsel’s errors
prejudiced him. We affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.
Matthew S. Bailey, Spencer, Tennessee, for the Petitioner, Lamar M. Cullom.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Bruce MacLeod, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Trial. In February 2013, the Petitioner was charged with two counts of violating
the drug-free zone statute. State v. Lamar Mandell Cullom, No. M2014-00414-CCA-R3-
CD, 2015 WL 3898088, at *1 (Tenn. Crim. App. June 25, 2015); see T.C.A. § 39-17-432.
The case arose from a drug transaction between the Petitioner and a confidential
informant (hereinafter “CI”), who was working for the narcotics division of the White
County Sheriff’s Department. Lamar Mandell Cullom, 2015 WL 3898088, at *1.
At trial, the CI testified that she contacted the Petitioner and asked if he had any
drugs available for purchase, and the Petitioner told her to meet him at his apartment
thirty minutes later. Id. Before driving to the Petitioner’s apartment, the CI met with
Detectives Joey Williams and Craig Capps, who searched her person and her vehicle,
wired her with an audio/video recording device, and gave her $200 cash for the purchase
of the drugs. Id.
When the CI arrived at the Petitioner’s apartment, she talked with the Petitioner’s
girlfriend, Sara Cressman, until the Petitioner arrived approximately ten minutes later.
Id. Moments later, the Petitioner pulled the drugs out of his pocket and gave them to the
CI, and the CI gave him the $200. Id. During this transaction, the CI asked the Petitioner
if the substance was “soft or hard” cocaine, and the Petitioner replied that it was “soft.”
Id. He told her “that it was some really good stuff” and that he could acquire more if she
needed it. Id. After the transaction was complete, the CI got into her vehicle and exited
the apartment’s parking lot. Id. As she was leaving, she encountered a friend. Id. The
CI lowered her window and spoke to her friend, but neither woman exited her vehicle.
Id. At the conclusion of this conversation, the CI drove back to the “staging area” where
she gave the cocaine to the detectives and was searched a second time. Id. The State
played Exhibit 7, a redacted version of the audio/video recording of the drug transaction
for the jury. Id.
On cross-examination, the CI admitted that she had entered a guilty plea to theft
prior to the Petitioner’s trial. Id. at *2. She acknowledged that she had been paid $100
for her participation in this drug transaction and that if she set up a transaction that did
not occur, she would not be paid. Id.
Detective Williams testified that he met with the CI at the “staging area” and gave
her $200 of “controlled buy money.” Id. When the CI left, Detective Williams followed
the CI to ensure that she did not leave the area of the Petitioner’s apartment without his
knowledge. Id. He also trailed the CI back to the staging area after the drug transaction
with the Petitioner was complete. Id. Detective Williams said that the recording device
he provided to the CI was “extremely difficult” to use because it was a hand-held
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recorder, and the user “can’t just hold it up and point it at [the subject].” Id. He stated
that the drug transaction involving the Petitioner occurred near a public park. Id.
On September 12, 2013, the Petitioner was convicted in Count 1 of casual
exchange of cocaine and in Count 2 of delivery of 0.5 grams or more of cocaine in a
drug-free zone, for which he received an effective fifteen-year sentence. Id. at *1. This
court affirmed the Petitioner’s convictions on direct appeal and remanded for entry of a
corrected judgment. Id.
Redacted Recording. At trial, Exhibit 7, the redacted audio/video recording
depicting the drug transaction between the Petitioner and the CI, was played for the jury.
While no drugs or money are clearly visible in Exhibit 7 given the position of the
recording device, Exhibit 7 does show the Petitioner taking something, presumably the
cocaine, out of his pocket. Perhaps most significantly, Exhibit 7 contains the following
conversation between the Petitioner, the CI, and Sara Cressman that occurred during the
drug transaction:
Petitioner: Here you go. [3:22:27]1
CI: Ya got something for me? [3:22:28]
Petitioner: [unintelligible] [3:22:34]
CI: Is it hard or soft? [3:22:26]
Petitioner: Soft. That’s it, though. It’s, d[--]n, where’s it at? [3:22:39]
CI: Don’t tell me you lost that s[---]. [3:22:40]
Cressman: Yeah, that’d not be good. [3:22:45]
Petitioner: [pulling something from his pocket] Uh-huh. [3:22:45]
Cressman: You’d be in big trouble. [3:22:46]
Petitioner: That’s all he had left, too, man. [3:22:48]
CI: Can you get more later? [3:22:50]
1
Time references refer to the elapsed time at the conclusion of the statement.
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Petitioner: He’s gonna get some, I promise. It’s . . . hey, uh, give me till,
‘bout probably well I’d say . . . I’d say to this evening, like
this evening, he’d be good. I was gonna bring it up at the end
but that’s all he had left. [3:23:02]
CI: Will you text me when you get more? [3:23:03]
Petitioner: Yeah. [3:23:03]
CI: Alright. [3:23:04]
Petitioner: You’ll probably, that s[---]s just good as far as . . . . [3:23:06]
CI: Alright, well just, uh . . . . [3:23:08]
Petitioner: I’m not the only one sweating so f[---]ing much, man.
[3:23:10]
CI: Well, just call me. [3:23:11]
Cressman: Probably have. [3:23:13]
Petitioner: Ah yeah, that’s perfect, right now. That’s just a good day for
it anyway. I’m scare to smoke a cigarette, right now, I know
what you mean. I’ll be, uh, I’ll call ya when I get some more.
It, uh, it won’t be long. [3:23:23]
CI: Alright. I’ll talk to y’all later. [3:23:24]
Petitioner: [unintelligible] [3:23:25]
Cressman: Bye. [3:23:26]
CI: Bye y’all. [3:23:26]
Unedited Recording. Exhibit 6, the unedited audio/video recording, was
admitted at trial but was not played for the jury. It was also admitted as an exhibit at the
post-conviction hearing. Exhibit 6 shows the officers giving the CI money to make the
drug buy and providing her with the recording device. It then shows the CI traveling to
the Petitioner’s apartment and talking with Sara Cressman until the Petitioner arrives
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home. Exhibit 6 also contains the following conversation between the Petitioner, the CI,
and Cressman prior to the drug transaction:
Petitioner: D[--]n, it’s f[--]king, it’s hot, I went and got that s[--]t and
drank it. That s[--]t made me sweat, sweat, sweat, sweat, and
sweat. [3:21:33]
Cressman: That’s part of what happens. [3:21:35]
Petitioner: That’s s[--]ts not cool. It’s only been 45 minutes.
[unintelligible]. [3:21:42]
CI: What you’d do? [3:21:43]
Petitioner: I didn’t do nothing. I just drunk one of them detox pills.
[3:21:45]
CI: Oh, that’s, that’s what you’re talking about. [3:21:48]
Petitioner: Yeah, them things, they make you sweat, sweat, sweat, sweat.
[3:21:52]
CI: You got a drug test? No? [3:21:54]
Petitioner: No, I just a . . . . [3:21:56]
Cressman: Took it because his PO. [3:21:58]
Petitioner: [unintelligible]
Cressman: Most of the time he’s clean in advance, but he didn’t and he’s
scared. [3:22:03]
Petitioner: Cause I forgot the only pill [unintelligible] . . . two days from
now and it’s not, would be . . . . [3:22:09]
Cressman: Don’t matter, either way you wouldn’t have been clean for it.
[3:22:11]
Petitioner: I wouldn’t have. I would be clean if I had done my pills and
two days from now I would have. [3:22:14]
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Cressman: No, you wouldn’t have. [3:22:15]
Petitioner: How much you wanna bet? [3:22:17]
Cressman: Yeah, taking a detox pill. [3:22:18]
CI: No, I wouldn’t be taking no detox pill. [3:22:18]
Cressman: Yeah, you would have. [3:22:20]
Petitioner: I would be clean from just not doing nothing. [3:21:21]
Cressman: No, you wouldn’t have. [3:22:22]
After depicting the drug transaction, Exhibit 6 shows the CI returning to her car and
beginning to exit the parking lot of the Petitioner’s apartment. Moments later, the CI
appears to stop her car to greet a friend. Exhibit 6 contains the following conversation
between the CI and her friend:
CI: Hi, what are you doing? [3:24:45]
Friend 1: What’s up? [03:24:46]
CI: What have you been doing? [03:24:47]
Friend 1: Nothing. [3:24:49]
CI: I’ve been trying to text you. [3:24:50]
Friend 1: I know but you know why I haven’t been f[---]ing
answering. [3:24:53]
CI: Why though? [3:24:54]
Friend 1: Because of Jayson. [3:24:55]
CI: Me and him split up. [3:24:56]
Friend 1: Well, that’s what I heard, but I didn’t know. [3:24:57]
CI: Yeah, I left it there. [3:24:59]
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Friend 1: You know . . . . [3:24:59]
Possibly Friend 2: Everybody split up. [3:25:01]
CI: [unintelligible] [3:25:01]
[unidentifiable sound]
Possibly Friend 2: It’s in the air. [3:25:02]
CI: I’m telling you, break that s[---]. Well, is your number
still the same, will you talk, will you text me?
[3:25:07]
Friend 1: Do what? [3:25:08]
CI: Will you text me later? [3:25:09]
Friend 1: Yeah. [3:25:10]
CI: Are you sure? [3:25:11]
Friend 1: I promise. [3:25:11]
CI: I love you, Mandy. [3:25:13]
Friend 1: I love you, too. [3:25:14]
CI: Don’t hate me because of Jayson. [3:25:15]
Friend 1: I won’t. [3:25:16]
CI: You swear? What are you doing? [3:25:18]
[pause]
Friend 1: I’ll text you. [3:25:21]
CI: Text me. [3:25:23]
Friend 1: Okay. [3:25:23]
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CI: Alright. [3:25:24]
Friend 1: [unintelligible] [3:25:24]
CI: Give me your, I mean, I ain’t got the kids till three,
let’s go. [3:25:27]
Friend 1: Okay. [3:25:27]
CI: Alright. 2631 is my number. [3:25:31]
Friend 1: 5652 my number’s still the same. [3:25:33]
CI: The 212. [3:25:34]
Friend 1: Yeah. [3:25:35]
CI: Hang on. 212 . . . . [3:25:38]
Friend 1: 5652. [3:25:40]
CI: Alright, I’m texting you right now. [3:25:42]
Friend 1: Alright. [3:25:42]
CI: Okay. [3:25:42]
Friend 1: Alright. [3:25:42]
CI: Bye, I love you. [03:25:44]
The aforementioned conversation appears unrelated to the prior drug transaction
between the Petitioner and the CI that occurred minutes earlier. In addition, Exhibit 6
contains no indication of a transfer of drugs between the CI and her friend. A careful
review of this portion of the recording indicates that a second friend may have been
present and may have spoken during this brief encounter, as indicated.
Post-Conviction. On June 24, 2016, the Petitioner filed a timely pro se petition
for post-conviction relief. Following the appointment of counsel, the Petitioner filed
three amended post-conviction petitions.
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At the post-conviction hearing, the Assistant District Attorney who prosecuted the
Petitioner at trial testified that although he did not personally edit the video recording of
the drug transaction, he was present when another individual from the district attorney’s
office edited the recording. The prosecutor explained that there was a “an extensive full
version video” in Exhibit 6 that included the search of the CI, the CI’s drive to the buy
location, the drug transaction between the Petitioner and the CI, and the CI’s drive back
from the buy location. He acknowledged that in Exhibit 6, the CI did “appear to stop her
vehicle and have a brief conversation with an individual on her way back to the original
staging area.” However, he said that the only recording played for the jury was Exhibit 7,
which was “the drug transaction itself.” He added,
Prior to the drug transaction, there’s nothing of substance in my opinion.
The drug transaction itself was edited because [the Petitioner] talks about
testing positive for drugs in the urine stream and a violation of parole or
probation, so that was edited [out]. And the portion of [the] CI . . . leaving
the buy location [and driving] back to the staging area [was edited out],
because again, I don’t believe there is anything of substance [related to her]
leaving that area[.]
The prosecutor said that the CI could not have gotten the drugs from the friend she
encountered after leaving the Petitioner’s apartment because both recordings show that
the CI bought the drugs from the Petitioner. He asserted that the “discussion from the
time [the CI] arrives at the apartment complex until the time she leaves is an indication
that there’s a drug transaction going on.”
When questioned about the portion of Exhibit 6 showing the encounter between
the CI and her friend, the prosecutor said, “I do not believe anybody exits the[ir] vehicle,”
and “I do not believe there is any drug talk” during that part of the recording. The
prosecutor said that although the CI did not initially testify about encountering her friend,
he specifically asked the CI if she had met anyone as she was leaving, which gave the CI
the opportunity to correct her testimony before the jury. The prosecutor denied hearing a
car door shut on the portion of the recording showing the encounter between the CI and
her friend. He said that during this part of the unedited recording, the CI can be heard
talking to another person in a different vehicle, although this person is not shown on the
recording. He added, “I do not believe that what is contained on that [unedited] video
[recording] has any substance to it. There is . . . nobody on the video. It is simply of [the
CI] talking to somebody. She travels back to the . . . staging area where the cocaine that
she purchased from [the Petitioner] is recovered.” The prosecutor also stated that during
trial, either Detective Capps or Detective Williams testified that they maintained visual
surveillance of the CI from the time she arrived at the buy location at the Petitioner’s
apartment until the time that she arrived back at the staging area, which also assured him
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that the CI had not obtained the drugs from her friend after she left the Petitioner’s
apartment. In addition, the prosecutor noted that the Petitioner’s trial counsel thoroughly
cross-examined the CI about whether she obtained the drugs from her friend rather than
the Petitioner.
The prosecutor said that during deliberations, the jury asked to see Exhibit 6, the
unedited recording, but the trial court refused, stating that “[t]here’s nothing on [Exhibit
6] other than the transportation, from the time the device was given to the C.I.,
transporting it to the alleged scene and from the alleged scene,” which was “edited out”
in Exhibit 7. The prosecutor said the court informed the jury that Exhibit 6 contained
“some things that are not relevant and would be inadmissible,” which made it
“inappropriate” for the jury to view. He said the trial court then said, “You really don’t
see much in the transportation. There’s no one there, just driving down the road, as I
understand it?” The prosecutor replied, “That’s correct,” to the court’s question because
he believed the trial court’s statement regarding the contents of the unedited recording
was appropriate under the circumstances. The prosecutor explained, “[T]here [was]
inadmissible evidence [in Exhibit 6] that could not be played for the jury, i.e., [the
Petitioner’s] prior drug use and parole history or probation issue.”
The prosecutor asserted the unedited recording in Exhibit 6 showed nothing
nefarious between the CI and her friend during their encounter. However, he opined that
the admission of Exhibit 6 would have prejudiced the Petitioner because in it, the
Petitioner talks about having to take a drug test for his probation officer. The prosecutor
also opined that Exhibit 6 would not have helped the Petitioner’s case because it shows
that there was no transfer of drugs between the friend and the CI. He explained that
Exhibit 7, the redacted recording that was played for the jury, clearly indicates that a drug
transaction occurred between the Petitioner and the CI.
Trial counsel, who also testified at the post-conviction hearing, discussed his
strategy at the Petitioner’s trial, stating: “[I] argue[d] basically, in [Exhibit 7, the
redacted] video . . . you never saw cocaine and you never saw a transaction.” Trial
counsel said there were many times at trial when he suggested that the CI could have
obtained the cocaine from someone other than the Petitioner. Trial counsel said he
specifically argued that because the officers had not searched the CI’s undergarments
prior to the drug transaction, the CI could have hidden drugs on her person prior to going
to the Petitioner’s apartment. He also suggested that the CI was dishonest because she
had a prior conviction for theft.
When asked about the portion of Exhibit 6 showing the CI’s brief conversation
with her friend after leaving the Petitioner’s apartment, trial counsel stated that “there’s
really no substance to it” because the CI “says a few words to her [friend] and drives on.”
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He added that the encounter was “[v]ery short” and took place in “less than a minute.”
When questioned about whether one or two friends spoke to the CI during this encounter,
trial counsel replied, “You can only hear one other person. If there was another person
there, you don’t see them.” Trial counsel said it was his belief that the CI was only
talking to one other person during the encounter. He said he did not play Exhibit 6, the
unedited recording, for the jury because “it would have prejudiced [the Petitioner] more
than it helped him.” Specifically, he said that Exhibit 6 was prejudicial because it
showed the Petitioner talking about his inability to pass a drug test. He also said the
encounter between the CI and her friend would not have helped the Petitioner’s case
because nothing about drugs or a drug transaction was discussed.
Trial counsel stated that he did not object to Exhibit 6, the unedited recording,
being admitted at trial because the parties had agreed that Exhibit 6 was never going to be
viewed by the jury. He said that before the trial court told the jury that they would not be
able to view this recording, the court asked if there was an issue about showing it, and
counsel for both parties replied that the unedited recording should not be shown to the
jury. Trial counsel specifically told the trial court that the unedited recording should not
be shown because it included the Petitioner talking about being on probation and not
being able to pass a drug test.
Trial counsel stated that it was his trial strategy to not allow the jury to view the
unedited recording in Exhibit 6. He stated that although Exhibit 6 was not shown to the
jury, he was able to cross-examine the CI about whether the drugs in this case came from
her friend rather than the Petitioner.
At the conclusion of this hearing, the post-conviction court made the following
oral ruling as to whether trial counsel had provided ineffective assistance regarding the
unedited recording:
Regarding the video, there [wa]s an agreement before trial . . . that
the video ha[d] been redacted so that certain things that [we]re prejudicial
to the [Petitioner we]re not shown. Trial counsel has helped the court to
understand that these [we]re uncontroverted redactions. They [we]re
necessary to remove the prejudicial evidence of the [Petitioner’s] prior
misconduct and drug use, where he’s on probation or parole and that he’s
using.
The redaction as to the confidential informant stopping and speaking
with a friend or two friends or three friends, the trial attorney showed it was
appropriate for that part of the video to be redacted. It does not show any
drug activity. It does not [al]lude to any drug activity. The court has had
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the opportunity to see it. The court had the opportunity to hear more of it
today again, but I viewed it because the [P]etitioner’s attorney and the
[S]tate’s attorney gave me a copy[,] and I looked at it, looked at the entire
video which is marked as number three today. And I do not find any reason
to believe that it would have been good trial strategy for [trial counsel] to
play [Exhibit 6, the unedited] tape. I do not find that there is good relevant
evidence for the [Petitioner] in his defense certainly. [The Petitioner wa]s
able to argue and cross[-]examine [the CI] without that [unedited] video
that there was a stopping and an opportunity for there to be a drug
transaction other than the one with the [P]etitioner. This activity takes
place for a minute or less. And to show the video would have lessened the
[P]etitioner’s argument that the drug transaction could have taken place
with another [person] other than the [P]etitioner.
....
The issue regarding the [unedited] video, there is no indication of
prosecutorial misconduct, nor is there any indication of ineffective
assistance of counsel. That allegation is without merit.
On October 18, 2017, the post-conviction court entered an order denying post-
conviction relief. In it, the court made the following findings of fact and conclusions of
law regarding the ineffective assistance of counsel claim:
The Petitioner alleged that his trial attorney was ineffective in his
representation by allowing the State to play a redacted version of the
audio/video recording of the events of the drug transaction and those
surrounding the transaction.
The Petitioner proposed that, had the jury viewed [Exhibit 6]
recording in its entirety, they would have seen (or heard) an encounter the
confidential informant had with a friend following the transaction. The
portion of the recording was redacted by agreement of the Petitioner’s trial
attorney. Some of the redacted portion contained material that was
prejudicial to the Petitioner and/or irrelevant to the proceedings. The
Petitioner proposed that had the video been shown in its entirety, it could
[have] be[en] argued by the Petitioner, that the subject drugs were not
acquired by the confidential informant from the [Petitioner], but from the
friend.
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Contrary to this claim of ineffective assistance of [c]ounsel, the
testimony of the Petitioner’s trial attorney and the trial transcript showed
that the Petitioner’s trial attorney cross-examined the confidential informant
to establish this encounter. The Petitioner’s trial attorney also showed that,
had the jury seen and heard the portion of the recording involving the
confidential informant’s friend, the Petitioner’s argument that he was not
involved in the transaction would have been weakened. This is because the
encounter [between the CI and her friend] was brief, contained no video
that could be construed to be a drug transaction, and contained no “drug-
related” conversation.
The Court finds that this allegation is without merit.
....
Having considered all proof presented by the Petitioner, the proof
presented by the State, and the record as a whole, the Court finds that
Petitioner has not carried the burden to demonstrate that he should be
granted relief.
Following entry of this order, the Petitioner filed a timely notice of appeal.
ANALYSIS
The Petitioner makes numerous ineffective assistance of counsel claims related to
the unedited recording of the drug transaction between the CI and the Petitioner.
Specifically, the Petitioner contends: (1) trial counsel failed to object to the prosecutor’s
comment that the unedited recording did not have “substance”; (2) trial counsel failed to
use the unedited recording to cross-examine the CI; (3) trial counsel failed to object to the
trial court’s comment to the jury that the unedited recording was just transportation, that
no one was there, and that anything else on it was irrelevant; (4) trial counsel failed to
object to the prosecutor’s comment to the jury that the trial court was correct in stating
that the unedited recording was just transportation, that no one was there, and that
anything else on it was irrelevant; (5) trial counsel failed to object to the trial court’s
ruling that the jury could not view the unedited recording; and (6) the cumulative effect
of trial counsel’s errors prejudiced him.
Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:
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A post-conviction court’s findings of fact are conclusive on appeal unless
the evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of
their testimony are matters for the trial court to resolve. The appellate
court’s review of a legal issue, or of a mixed question of law or fact such as
a claim of ineffective assistance of counsel, is de novo with no presumption
of correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010).
A post-conviction petitioner has the burden of proving the factual allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1);
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is considered clear
and convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); Grindstaff
v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998).
In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “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, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). “Because a petitioner
must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.
We note that “[i]n evaluating an attorney’s performance, a 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.” State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). However, this “‘deference to
matters of strategy and tactical choices applies only if the choices are informed ones
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based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369).
1. Failure to Object to Prosecutor’s Comment that Unedited Recording did
not have “Substance.”
The Petitioner argues that trial counsel was ineffective in failing to object to the
prosecutor’s comment that the unedited recording did not have “substance.” He claims
that this false comment on the evidence prejudiced him because it confirmed the CI’s
testimony and bolstered her credibility. He asserts that no curative instructions were
given following this comment and that the comment confused the trial court, causing it to
provide an erroneous instruction regarding the unedited recording to the jury during
deliberations.
The Petitioner maintains that the unedited recording does have “substance”
because it shows that the CI’s encounter with her friend, which was “more than a simple
“Hi,” “Hey” and “Call me later,” gave the CI the time and opportunity to obtain the drugs
from her friend rather than the Petitioner. He also asserts that the CI’s comment during
the unedited recording, which he interprets as “take that s[--]t,” along with a sound that
he characterizes as a car door shutting, and the CI’s question, “What are you doing?”
followed by silence may have appeared suspicious to the jury. Finally, he contends that
although the CI testified that she talked with one friend, the unedited recording shows
that two friends were present during the encounter and can be heard on the recording.
At trial, the CI testified that she had reviewed the two compact discs containing
audio and video footage from the date of the drug transaction and that these two
recordings were a “very accurate” depiction of what occurred on that date. The CI stated
that there was a full version of what occurred and a shortened version that did not contain
her drive from the staging area to the buy location and from the buy location back to the
staging area. When the court indicated that it was confused about the two different
recordings, the following exchange occurred:
The Court: I’m not sure I understand, [Prosecutor].
[Prosecutor]: Yes, Your Honor, I probably can make that more clear.
For the record, there’s a full version of the video and
the audio of the time that the video/audio started until
it was stopped, after the drug transaction was
completed.
The Court: And you’ve introduced that as Exhibit 6?
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[Prosecutor]: That’s correct. And then Exhibit 7 would be a
shortened version for the purposes of time.
The Court: The shortened version, you just took a part of Exhibit 6
onto this disc?
[Prosecutor]: That’s correct.
When the prosecutor asked to play Exhibit 7, the shorter, redacted version of the
recording for the jury, the following conversation occurred:
The Court: And [Exhibit 7] is just of the return from the—
[Prosecutor]: [Exhibit 7] is . . . from the beginning of the transaction,
where [the CI’s] been fitted with the device and given
the money, and then it moves past the travel from the
buy location—from the staging area to the buy
location. That part is not here, because it’s a few
minutes and doesn’t have substance. Then there’s the
buy, the buy that occurs, and then there’s a part that’s
cut out from the buy location back to the staging area
that doesn’t have substance to it.
The Court: So, what you’re showing is, allegedly, the [drug]
transaction?
[Prosecutor]: That’s correct, yes.
At the post-conviction hearing, both the prosecutor and trial counsel testified that
the portion of the unedited recording dealing with the CI’s brief encounter with her friend
contained nothing of substance. Moreover, the prosecutor and trial counsel agreed that
the unedited recording would have been prejudicial to the Petitioner if admitted at trial
because it contained the Petitioner’s statements that he was afraid he would fail the drug
test given by his probation or parole officer. In addition, the prosecutor and trial counsel
agreed that the unedited recording was prejudicial to the Petitioner because it clearly
showed that there was no transfer of drugs between the CI and her friend, thereby
strengthening the State’s case that the Petitioner was the individual who sold the CI the
cocaine. The trial transcript shows that the prosecutor brought up the CI’s encounter with
her friend on direct examination and that trial counsel thoroughly cross-examined the CI
about whether she obtained the cocaine from her friend rather than the Petitioner.
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The prosecutor also testified that the CI could not have gotten the cocaine from her
friend because the redacted recording, which was admitted at trial, clearly showed that
the CI purchased the drugs from the Petitioner. He also asserted that the unedited
recording did not show the CI or her friend exiting their vehicles and did not include any
discussion regarding drugs. Additionally, the prosecutor stated that a detective had
testified at trial that he maintained visual surveillance of the CI from the time she arrived
at the Petitioner’s apartment until the time that she returned to the staging area, which
also assured him that the CI had not obtained the drugs in this case from her friend.
Trial counsel noted that the encounter between the CI and her friend was “very
short” and lasted “less than a minute.” He explained that the State and the defense had an
agreement that the unedited recording would not be shown to the jury because it
contained the Petitioner’s statements about not being able to pass a drug test given by his
parole or probation officer. Trial counsel confirmed that it was a part of his trial strategy
not to allow the jury to view the unedited recording because it was prejudicial to the
Petitioner.
The post-conviction court, in its oral ruling at the conclusion of the evidentiary
hearing, found that the parties had agreed prior to trial to admit only the redacted
recording to prevent the jury from hearing the evidence prejudicial to the Petitioner that
was on the unedited recording. The post-conviction court also ruled that the portion of
the unedited recording depicting the brief exchange between the CI and her friend was
not relevant to trial, explaining:
It does not show any drug activity. It does not [al]lude to any drug activity.
The court has had the opportunity to see it. . . . And I do not find any
reason to believe that it would have been a good trial strategy for [trial
counsel] to play the tape. I do not find that there is good relevant evidence
for the [Petitioner] in his defense certainly. [The Petitioner wa]s able to
argue and cross[-]examine without that [unedited] video that there was a
stopping and an opportunity for there to be a drug transaction other than the
one with the [P]etitioner. This activity takes place for a minute or less.
And to show the video would have lessened the [P]etitioner’s argument that
the drug transaction could have taken place with another [person] other than
the [P]etitioner.
We agree with the post-conviction court’s conclusion that the Petitioner failed to
establish that trial counsel was ineffective in failing to object to the prosecutor’s
comment that the unedited recording did not have “substance.” Our review of the
unedited recording shows that it does not, in any way, indicate that the CI obtained the
cocaine from her friend, rather than the Petitioner. The proof presented at the post-
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conviction hearing shows that the unedited recording was irrelevant and inadmissible,
and our review of the unedited recording fully supports this conclusion. Consequently,
we conclude that the Petitioner has failed to establish that trial counsel was deficient in
not objecting to the prosecutor’s comment or that but for counsel’s alleged deficiency, the
result of the trial would have been different. The Petitioner is not entitled to relief on this
issue.
2. Failure to Use the Unedited Recording During Cross-examination.
The Petitioner also contends that trial counsel was ineffective in failing to use the
unedited recording to cross-examine the CI. He suggests that trial counsel could have
impeached the CI’s credibility by making the jury aware of the presence of a second
friend during the exchange, by showing that the conversation between the CI and her
friend lasted longer than a brief exchange, and by suggesting that the recording captured
the sound of a car door closing, all of which he claims left open the possibility that the CI
obtained the drugs from her friend rather than the Petitioner.
At trial, the prosecutor asked the CI about the interaction with her friend following
the drug transaction:
Q. Okay. Did you go straight back to the staging area?
A. Yes.
Q. At some point, did you stop on the way out?
A. On the way out, I was pulling out of Knoll Crest [Apartments], and a
friend was pulling in . . . . She pulled right next to me. She said,
“Hi.” I told her, “Hey,” to call me later. I didn’t get out of the
vehicle, she didn’t get out of the vehicle, and we just drove off. I
drove off.
Later, during cross-examination, Petitioner’s trial counsel asked the CI about her
encounter with her friend:
Q. Now, when you—when you stopped to talk to that friend on the way
out, how do we know that you didn’t get the drugs from her and give
that money to her?
A. I did not get out of my vehicle, she didn’t get out of her vehicle, and
it was actually, as you’re pulling out of Knoll Crest, there’s a sign in
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the middle. There’s a way in and a way out. I’m on one side of the
sign, and she’s on the other side. And it’s just a simple
conver[sation]—there—the vehicle was just—there’s actually a car-
length vehicle even between us. Neither one of us got out of the
vehicle. And, again, the video showed, as he’s saying that it’s some
good stuff, as he’s handing it to me.
In its oral ruling at the conclusion of the post-conviction hearing, the court made
the following findings: “[The Petitioner wa]s able to argue and cross[-]examine without
that [unedited] video that there was a stopping and an opportunity for there to be a drug
transaction other than the one with the [P]etitioner.” In addition, the post-conviction
court made the following findings in its order denying relief:
Contrary to this claim of ineffective assistance of Counsel, the testimony of
the Petitioner’s trial attorney and the trial transcript showed that the
Petitioner’s trial attorney cross-examined the confidential informant to
establish this encounter. The Petitioner’s trial attorney also showed that,
had the jury seen and heard the portion of the recording involving the
confidential informant’s friend, the Petitioner’s argument that he was not
involved in the transaction would have been weakened. This is because the
encounter [between the CI and her friend] was brief, contained no video
that could be construed to be a drug transaction, and contained no “drug-
related” conversation.
The record clearly shows that trial counsel cross-examined the CI about whether
she obtained the drugs from her friend rather than the Petitioner. In addition, the
prosecutor testified that the CI could not have gotten the drugs from the friend because
the redacted recording played for the jury showed that the Petitioner was the individual
who gave the drugs to the CI.. We agree with the post-conviction court that trial counsel
was able to cross-examine the CI about whether she actually obtained the drugs from her
friend without the need for the jury to see the prejudicial, unedited recording. Again, our
review of the entire unedited recording shows that it does not, in any way, indicate that
the CI obtained the cocaine from her friend, rather than the Petitioner. For all these
reasons, we conclude that the Petitioner has failed to establish that trial counsel was
deficient in not using the unedited recording to cross-examine the CI or that but for this
alleged deficiency, the result of the trial would have been different.
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3. Failure to Object to the Trial Court’s Comment Regarding the Unedited
Recording.
The Petitioner also argues that trial counsel was ineffective in failing to object to
the trial court’s comments to the jury about the unedited recording. He specifically
references the trial court’s comments that the unedited recording was just transportation,
that no one was there, and that anything else was irrelevant. The Petitioner claims that
trial counsel’s failure to object to the court’s comments regarding the unedited recording
prejudiced his case because these comments supported the CI’s testimony and bolstered
her credibility.
During deliberations, the jury asked to view Exhibit 6, which prompted the
following discussion:
The Court: Members of the jury, you’ve sent out a request here for
the full unedited disc, and that was introduced as
evidence because it forms the basis for the . . . shorter
disc. And on the shorter disc that you saw, there was
the relevant evidence presented. There’s nothing on
the longer one other than the transportation, from the
time the device was given to the C.I., transporting it to
the alleged scene and from the alleged scene. That
was edited out, along with some things that are not
relevant and would be inadmissible, and so that has not
been redacted from the full version, so, I think it would
be inappropriate [to allow you to view Exhibit 6, the
full version]. You really don’t see much in the
transportation. There’s no one there, just driving down
the road, as I understand it?
[Prosecutor]: That’s correct.
The Court: And then, if there is something else, basically, it’s
inadmissible, and so we redacted [the longer version
to] the relevant parts [in] the short version[, which is
Exhibit 7].
Would you like to see the short version again, rather
than the long version? If I understand it, you wanted
to see the unedited disc?
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Juror: Sure. Let’s watch it again, yes.
The court then replayed Exhibit 7, the redacted recording for the jury.
After viewing the unedited recording in Exhibit 6, we agree with the post-
conviction court that the details of the CI’s transportation and the CI’s brief exchange
with her friend were irrelevant to the Petitioner’s case. Exhibit 6 does not provide any
indication that drugs were transferred between the CI and her friend but does contain
prejudicial evidence about the Petitioner using drugs while on probation or parole. The
trial court’s comment was appropriate because it informed the jury that Exhibit 6
contained irrelevant evidence but did not disclose the prejudicial nature of some of the
evidence contained therein. Accordingly, we conclude that the Petitioner has failed to
establish that trial counsel was deficient in failing to object to the trial court’s comments
to the jury about the unedited recording or that but for this alleged deficiency, the result
of the trial would have been different.
4. Failure to Object to the Prosecutor’s Comments to the Jury.
Next, the Petitioner contends that trial counsel provided ineffective assistance in
failing to object to the prosecutor’s comment that he believed the trial court was correct
in stating that the unedited recording was just transportation, that no one was there, and
that anything else was irrelevant. He again claims that trial counsel’s failure to object to
this comment supported the CI’s testimony and bolstered her credibility.
We have already concluded that the unedited recording was irrelevant, and we find
nothing problematic about the prosecutor’s comment that the trial court was correct in its
statement to the jury regarding Exhibit 6. Because the Petitioner has failed to establish
that trial counsel’s performance was deficient or that but for the alleged deficiency, the
outcome of the trial would have been different, he is not entitled to relief on this issue.
5. Failure to Object to Trial Court’s Ruling that the Jury Could Not View the
Unedited Recording.
The Petitioner also argues that trial counsel was ineffective in failing to object to
the trial court’s ruling that the jury could not view the unedited recording, which had
been previously admitted into evidence. He claims that counsel’s failure to object
prejudiced him because the unedited recording shows that the CI “was less than truthful
and that there was ample opportunity for [her] to obtain the drugs from her friend(s)”
rather than the Petitioner.
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Once again, we agree with the post-conviction court that the trial court properly
found that the unedited recording, which contained material that was irrelevant and
inadmissible at trial, had been redacted by agreement between the parties. Because the
trial court’s ruling regarding the unedited recording was proper, trial counsel was not
ineffective in failing to object to the trial court’s ruling or to the court’s instruction to the
jury. The record makes it clear that the only reason the unedited recording was admitted
was to show the basis for the redacted recording. While we agree that a better practice
would have been to admit the unedited recording for identification purposes only, we
agree with the State that the intent of the parties as to this agreement was clear and that
the trial court honored the parties’ agreement to have the jury view only the redacted
recording. For these reasons, we conclude the Petitioner has failed to establish that trial
counsel was deficient in failing to object to the trial court’s ruling or that but for this
alleged deficiency, the outcome of the trial would have been different.
6. Cumulative Effect of Trial Court’s Errors.
Finally, the Petitioner contends that “[t]he cumulative effect of trial counsel’s
errors prejudiced [him] as evidenced by the jury asking to see the unedited video and the
jury convicting him of a lesser-included offense.” However, we recognize that “[t]o
warrant assessment under the cumulative error doctrine, there must have been more than
one actual error committed in the trial proceedings.” State v. Hester, 324 S.W.3d 1, 77
(Tenn. 2010). Because we have concluded that the Petitioner is not entitled to relief on
any of the issues he raises on appeal, we need not consider the cumulative effect of any
alleged errors committed by trial counsel.
CONCLUSION
Because the Petitioner has failed to establish that trial counsel provided ineffective
assistance, the judgment of the post-conviction court is affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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