Joe Martin v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 10, 2004
JOE DAVIS MARTIN v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 96-A-155 J. Randall Wyatt, Jr., Judge
No. M2003-00534-CCA-R3-PC - Filed March 10, 2004
The petitioner appeals the denial of his post-conviction relief petition relating to his convictions for
first degree murder, attempted first degree murder, and attempted second degree murder. On appeal,
the petitioner contends: (1) the state withheld exculpatory evidence; (2) the state failed to correct
perjured testimony at trial; and (3) he received ineffective assistance of counsel at trial. Upon review
of the record and the applicable law, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.
David M. Hopkins (on appeal) and Mike Anderson (at hearing), Nashville, Tennessee, for the
appellant, Joe Davis Martin.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Thomas B. Thurman, Deputy District Attorney
General; and Katrin Novak Miller, Assistant District Attorney General, for the appellee, State of
Tennessee.
OPINION
The petitioner was convicted of premeditated first degree murder of Jermiyer Warfield,
attempted first degree murder of Kevin Robinson, and attempted second degree murder of Timothy
Miller resulting from a drive-by shooting on December 17, 1995.1 See State v. Ladonte Montez
Smith, Joe Davis Martin, and Shaun Fly Smith, No. M1997-00087-CCA-R3-CD, 1999 Tenn. Crim.
App. LEXIS 1276, at *16 (Tenn. Crim. App. Dec. 17, 1999), perm. to app. denied (Tenn. 2000).
The petitioner received a sentence of life with the possibility of parole for his first degree murder
1
Co-defendants Ladonte Montez Smith and Shaun Fly Smith were tried along with the petitioner and were each
convicted of first degree murder and two counts of attempted first degree murder.
conviction, a twenty-year sentence for his attempted first degree murder conviction, and a ten-year
sentence for his attempted second degree murder conviction. See id. at ** 17, 59-60. The trial court
ordered the petitioner to serve his twenty-year and ten-year sentences concurrently with each other
but consecutively to his life sentence. See id. at *60.
I. FACTS
We glean the following facts from this court’s opinion on direct appeal:
Arnett Hayes testified that on Sunday, December 17, 1995, he and Chevron
“Chevy” McAfee were driving around in a car Hayes had borrowed for the day from
William “Tiger” Harris as part of a drug transaction. McAfee wanted to go to the
home of the Smith defendants’ mother, and despite Hayes’s preference to the
contrary, he drove to the residence. When they arrived, Hayes observed a suspicious
gray van sitting ten to fifteen feet from the house with its lights on. Upon seeing the
van, Hayes and McAfee drove to Vira [sic] Ashby’s house. Vira [sic] Ashby is
Dallas Smith’s girlfriend; Dallas Smith is the Smith defendants’ brother. The
defendants, Gary Jordan, Mitchell “Mo” Smith, Vira [sic] Ashby, and other persons
were there. After a while, Hayes told the Smiths what he had seen at their mother’s
house. The defendants became animated and anxious to go to the house. Defendant
Shaun Fly Smith asked to use the car Hayes was driving, and Hayes agreed. . . . The
defendants and Gary Jordan went into the back room and retrieved guns, coats,
gloves, and ski masks. [The petitioner] had a long rifle-like gun; Gary Jordan had a
shorter gun with a pump on the end; Defendant Ladonte Montez Smith had a Tec-9
or an Uzi. Hayes did not see Shaun Fly Smith with a gun, but he thought Smith
probably had one.
About an hour and a half later, Vira [sic] Ashby received a phone call. After
the call, she informed Hayes that he was to say the car had been stolen and that he
should not talk to the police. She also informed him not to worry, “they” would take
care of the problem and the car. Ashby also informed Mitchell Smith, “The problem
was solved. It was through, taken care of.” Ashby later received a second call.
According to Hayes, the caller wanted everyone to leave the house and for the guns
“and stuff” to be put up. Hayes observed others in the house put guns in the attic.
Hayes spoke with Shaun Fly Smith by telephone two times. Smith told Hayes to say
that he had been robbed of the car at a market down the street by individuals wearing
ski masks. If Hayes was taken to jail, he should not talk to the police, and Smith
would hire an attorney for Hayes.
...
Gary Jordan, a state witness, testified that he was being held on a first degree
murder charge and two attempted first degree murder charges. He was testifying for
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the state as part of an agreement whereby his case was severed from that of the
Smiths and [the petitioner], and he hoped to gain favorable consideration at
sentencing for his truthful testimony.
In December 1995, Jordan was living back and forth between Vira [sic]
Ashby’s house and his aunt’s house. Jordan’s aunt is the Smiths’ mother. About two
weeks before December 17, 1995, Jordan and Shaun Fly Smith committed an armed
robbery of Willie Gene, who is an associate of Phillip Patton, and someone named
Cory. The heist yielded four kilos of cocaine, which had a street value in excess of
$100,000. Jordan had expected to get one kilo for his participation in the crime, but
he received nothing. Nevertheless, he testified he was not upset that he had not
received anything.
According to Jordan, on December 16[,] Mitchell Smith, who is the Smith
defendants’ brother, was shot in the foot outside his mother’s home. Jordan believed
the shooting was in retaliation for the robbery Jordan and Shaun Fly Smith
committed approximately two weeks earlier. Prior to Mitchell Smith being shot,
Jordan had overheard Shaun Fly Smith arguing on the telephone about the robbery.
After Mitchell Smith was shot, Shaun Fly Smith asked Jordan to get some
ammunition, ski masks and gloves, which Jordan did.
...
Jordan stood guard at Ashby’s house all night on December 16 and the
morning of December 17. When he woke up in the early afternoon, Arnett Hayes and
Chevron McAfee were discussing a suspicious van they had seen in front of the
Smiths’ mother’s house. Jordan and the defendant selected weapons–Jordan had a
12 gauge Bryan pump shot gun, Shaun Fly Smith had a 9 millimeter Glock, Ladonte
Montez Smith had an assault rifle. [The petitioner] had a .44 revolver and an assault
rifle. The defendants and Jordan also took ski masks and gloves. They loaded into
a car they got from Hayes. They drove by the Smiths’ mother’s house and through
a housing project known as “Dodge City” but saw no sign of the van. They also
checked some houses where some of the people associated with Phillip Patton lived.
According to Jordan, they thought Phillip Patton’s associates were behind Mitchell
Smith’s shooting.
Finally, at about 2:00 p.m., the defendants and Jordan approached a
neighborhood market which was a known hangout for Phillip Patton’s associates.
As they rounded the corner to the store, they donned the gloves and ski masks.
Shaun Fly Smith called out, “What’s up, Kevin?” to Kevin Robinson, and started
firing. Jordan fired next, but his gun jammed. [The petitioner] and Ladonte Montez
Smith proceeded to fire, as well, as the car drove by the market.
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The defendants and Jordan abandoned the car one street over from Dodge
City, taking the weapons with them. They threw out as many shells as they could on
the way. They ran through a yard and scaled a fence to get into Dodge City. The
defendants and Jordan left the weapons in the trunk of a car belonging to one of
Shaun Fly Smith’s friends. . . .
...
. . . Twelve-year-old Jermiyer Warfield, . . . who was in the market purchasing
ice cream, was killed by the gunfire. Kevin Robinson was shot in the leg; however,
his injuries were not fatal. Congsuinia Holland, Jermiyer Warfield’s sixteen-year-old
cousin, discovered a bullet hole in her jeans after the incident. Several other people
who were in the market escaped injury, despite the extensive gunfire.
Other evidence offered by the state established that Phillip Patton owned the
market at which the shooting occurred. The market was managed by Tim Miller and
Marcus Jordan. Miller was inside the store at the time of the crimes.
Arnett Hayes identified the car he had loaned to the defendants and Jordan in
a photographic exhibit. Several other witnesses identified this vehicle from the
photograph, as well. During his testimony, Kevin Robinson identified the photograph
of the vehicle in which he had seen three men wearing ski masks with guns pointed
out the window. Detective Clinton Vogel, who was walking toward the market at the
time of the shooting, identified the same photograph as depicting the vehicle in which
he had seen four black males wearing ski masks shooting out of the car at the market.
William Seats, who was walking to work at the time of the incident, heard shooting
and saw a car with four people wearing ski masks and hoods inside. The car was
traveling in the direction of Dodge City. He identified the car in the photographic
exhibit. Billy Wright, who lives on a street behind Dodge City, saw a suspicious car
park near his house. Four young, black men hurriedly got out of the car and went
over the fence behind his house into Dodge City. One of the men had something
under his coat. . . . Mr. Wright identified the car from the photograph.
Within a short time after the crimes, officers who arrived at the scene of the
shooting and the abandoned car collected evidence, including shells and bullets. A
search warrant was executed at the Ashby residence on December 19, two days after
the shooting. Guns and ammunition were recovered from the attic area over the
kitchen. Photographs of guns and ammunition were also found, although the
weapons depicted in these photographs were not recovered.
A forensic scientist testified that 7.62 x. 39 cartridge casings from the crime
scene were fired from the same weapon as the same type casings found in the
abandoned car. These spent casings had been fired from a semi-automatic or fully
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automatic assault rifle. Live 7.62 x 39 rounds recovered from the Ashby residence
were the same manufacturer as the spent casings recovered earlier. Spent 9
millimeter bullets recovered had characteristics most commonly seen with firing
from a Glock semi-automatic pistol. Markings at the scene were consistent with a
shotgun blast, and the ammunition recovered from Ashby’s house included shotgun
shells. However, none of the weapons recovered from the search of the Ashby house
two days after the shooting could be determined to have fired the shell casings
recovered.
...
Mitchell Smith . . . testified that he was the only person at Ashby’s house on
December 17 when Arnett Hayes and Chevron McAfee came by. Smith claimed the
only guns and ammunition he had ever seen at the Ashby residence was the gun he
himself carried. Mitchell Smith essentially denied that any of the defendants were
there that day; he denied having seen Jordan at the Ashby house on any occasion.
Shaun Fly Smith took the stand and . . . denied any participation in the
shootings with which he was charged. . . . He denied any prior acquaintance with [the
petitioner].
[The petitioner] testified on his own behalf. He claimed he was living with
his girlfriend, Angelina Majors, in December 1995. He had been temporarily
disabled in a car wreck and was unable to work; . . . however, his girlfriend was
working at a nursing home on December 17. On that date, the [petitioner] was home
cooking dinner. Miss Majors called [the petitioner] on her breaks around 10:00 a.m.,
12:30 p.m. and 2:15. She made a third call right before she left work, and she arrived
home around 4:00 p.m. [The petitioner] denied any involvement with the shooting
on December 17, and he denied any previous acquaintance with his co-defendants,
Arnett Hayes, Gary Jordan, Vira [sic] Ashby or Dallas Smith. He denied having ever
been to Ashby’s house.
[The petitioner] also offered the testimony of Angelina Majors. She echoed
[the petitioner’s] testimony that she was working on December 17 and that she had
called him at their home on her breaks and he was cooking dinner. She
acknowledged that she was still romantically involved with [the petitioner] and
visited him in jail.
Ebony McAllister testified that she went to [the petitioner’s] and Majors’
home after she and Majors got off work on December 17, and [the petitioner] was
present and had cooked dinner.
Ladonte Montez Smith, et al., 1999 Tenn. Crim. App. LEXIS 1276, at ** 4-15.
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II. POST-CONVICTION RELIEF PROCEEDINGS
During the post-conviction relief hearing, the parties stipulated trial counsel did not file any
pretrial motions but orally adopted a number of the motions filed by the other defense attorneys.
A. Petitioner’s Proof
William Terrell “Tiger” Harris testified that on December 17, 1995, between 1:00 and 2:00
p.m., he loaned his vehicle to Arnett Hayes. Later that night, Hayes returned and informed Harris
that the vehicle had been “carjacked.” Harris stated he provided the police with this information.
Harris further stated one of the defense attorneys, who was also aware of this information, contacted
him and requested he testify at trial. Harris testified the defense attorney subsequently informed him
that his testimony was not needed.
Martin Szeigis, who represented co-defendant Gary Jordan, testified Detective Grady Eleam
provided him with a photographic lineup to show Jordan. Szeigis stated he did not know the identity
of the suspect in the lineup, and neither he nor the police influenced Jordan’s identification of the
petitioner.
Szeigis testified that shortly after Jordan surrendered to the police, Jordan expressed his
willingness to cooperate and subsequently gave a statement to the police. Szeigis stated that in
return for Jordan’s testimony, the state agreed to sever his case from his co-defendants’ case. Szeigis
further stated that although they were “hoping for anything other than first degree,” the state did not
assure them that Jordan would receive a lesser sentence in exchange for his testimony. According
to Szeigis, the state only assured them that Jordan’s “cooperation would be taken into consideration
and that his case would be severed and he would not be going to trial with the co-defendants.” Szeigis
testified that three months after the petitioner’s trial, Jordan pled guilty to second degree murder and
attempted first degree murder and received consecutive sentences of fifteen years at 100% for second
degree murder and ten years at 30% for attempted first degree murder.
Billy Wright stated that prior to testifying at trial, he was not present inside the courtroom
while other witnesses testified.
Detective Grady Eleam, who investigated the shooting, testified he prepared a report
regarding his interview with “Tiger” Harris, who had been on a “drug binge” for a period of time
prior to the interview. Harris informed Detective Eleam that he had pawned his vehicle to Arnett
Hayes and that Hayes told Harris that the vehicle had been “carjacked.” Detective Eleam testified
he prepared a photographic lineup which included the petitioner’s photograph. He stated he did not
personally show the lineup to Jordan but gave it to Jordan’s attorney who then showed it to Jordan.
Virie Ashby testified that one month prior to the petitioner’s trial, she pled guilty to accessory
after the fact of murder as a result of the shooting. She, nevertheless, testified that prior to being
questioned by the police, she had never heard of the petitioner nor had he ever been to her residence.
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Ashby further stated that on the day of the shooting, she was at church, and the petitioner, Arnett
Hayes, and Gary Jordan were not at her residence. Ashby denied knowing who hid the automatic
weapons and ammunition found inside of her attic.
Ashby testified trial counsel never contacted her prior to trial and that had he done so, she
would have likely been unwilling to testify. Ashby stated she knew she could not be interviewed
because she was then represented by counsel. She further stated she did not want to testify at trial
because she was “concerned” for herself. Ashby maintained her plea agreement was contingent upon
her not testifying at trial.
Dallas Smith testified that in December 1995, he was living with Ashby, his girlfriend. He
stated he did not know the petitioner and never saw him at his residence. Smith further stated he was
not present at his residence on the day of the shooting and did not know who placed the guns inside
his residence. Smith testified trial counsel never contacted him and that he testified at co-defendant
Ladonte Smith’s juvenile transfer hearing.
The petitioner testified the attorney who initially represented him filed for discovery, and they
reviewed it together. The petitioner stated he subsequently fired the attorney, and his family hired
trial counsel. The petitioner further stated trial counsel met with him on two or three occasions prior
to trial for a total of approximately two hours.
The petitioner testified that upon being retained, trial counsel questioned him regarding a
possible defense, and the petitioner provided trial counsel with the names of his girlfriend and her
friend as alibi witnesses. The petitioner stated he was “fine” with the alibi defense “[v]erses [sic]
anything [he] could have come up with.” The petitioner testified that although trial counsel stated
he would interview the state’s witnesses, he never reported the results of the interviews to the
petitioner. The petitioner stated he was unaware of whether trial counsel was working with the co-
defendants’ counsel in preparing for trial. The petitioner testified the state provided trial counsel
with four additional reports as discovery materials and that trial counsel failed to provide him with
the reports. These materials included a report regarding a tip that the police received from an
anonymous caller.
The petitioner testified that during trial, he observed witness Billy Wright sitting inside the
courtroom for approximately one hour while other witnesses testified. The petitioner stated he
informed trial counsel who instructed him “not to worry about it.” The petitioner then recalled the
testimony of Frankie Blakely, Hayes’ grandmother. The petitioner stated that during trial, the trial
judge referred to Blakely as a “church woman.”
B. State’s Proof
Trial counsel was deceased at the time of the post-conviction hearing. Katherine Ryan, who
was his legal secretary and paralegal prior to trial counsel’s death, testified the petitioner’s case was
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of the highest priority, and trial counsel worked a “substantial” amount of hours on the case. Trial
counsel also worked with the other two defense attorneys in preparing for trial.
Ryan stated she participated in contacting the two alibi witnesses and scheduling their
meeting with trial counsel. Ryan further stated that although she had no personal knowledge of
interviews between trial counsel and other witnesses, trial counsel’s failure to interview these
witnesses would have been “unusual.” Ryan explained she did not have access to the petitioner’s
file because trial counsel closed his office once he became ill, and the majority of the files were then
purged.
Monte Watkins testified he was appointed to represent co-defendant Ladonte Smith, while
Carlton Lewis represented co-defendant Shaun Smith. Watkins stated he, Lewis, and trial counsel
met to discuss the case on three or more occasions. On one occasion, the defense attorneys met at
the district attorney’s office for a pretrial conference during which time they reviewed all of the
physical evidence and discussed the testimony of the witnesses, the ballistics report, and an overview
of the entire case. Watkins testified the defense attorneys also met after the pretrial conference and
discussed their defenses. Watkins stated trial counsel planned to present an alibi defense, and the
petitioner was the only defendant who had “any kind of real defense.”
Watkins testified he interviewed “Tiger” Harris who stated he had pawned his vehicle to
Arnett Hayes. He stated he decided not to call Harris as a witness at trial. Watkins further stated
he interviewed Detective Clint Vogel and Detective Grady Eleam. Watkins explained he was unable
to interview Gary Jordan and Virie Ashby because they were both represented by counsel. Watkins
stated he was unable to locate the remaining witnesses.
Watkins testified someone had attempted to kill Hayes, and as a result, Hayes went into
hiding and was, therefore, unavailable for interviews. Watkins said the state provided the defense
attorneys with Hayes’ tape recorded statement to the police and the transcript of co-defendant
Ladonte Smith’s juvenile transfer hearing during which Hayes testified.
Watkins testified he believed the state provided him with all Jencks material prior to trial and
that he was not surprised by any of the evidence which the state presented at trial. In regard to the
items listed in the petitioner’s post-conviction relief petition as exculpatory evidence which the state
allegedly withheld, Watkins stated the only item with which he was unfamiliar was the TBI report
of an anonymous telephone call. Watkins testified he had viewed or was familiar with the
information provided in the remaining items listed in the petition.
Tom Thurman, the assistant district attorney general who prosecuted the case, testified he
answered the discovery motion filed by the petitioner’s original defense counsel. Trial counsel then
began representing the petitioner and filed a notice of an alibi defense as well as affidavits from the
alibi witnesses relating to their proposed testimony. Thurman stated he subsequently sent trial counsel
a letter which included the final autopsy report, a report of the fingerprint test results, Ashby’s
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statement, and information which the police received from an anonymous individual who had called
on two separate occasions and identified three possible suspects.
Thurman testified he did not provide the defense with a TBI report regarding an anonymous
caller who identified “Sydney Allen” as having been involved in a drive-by shooting in December
1995. Thurman stated he was unaware of the report prior to receiving the post-conviction relief
petition. Thurman explained that the report was dated January 16, 1996, approximately two weeks
prior to the return of the indictments, and the report was likely not included in the state’s original
file. Thurman maintained that had he known about the report, he would have provided it to the
petitioner as possible exculpatory evidence. However, Thurman stated Allen’s name never appeared
during the state’s investigation, and whether the anonymous caller was referring to this particular
shooting was unclear from the report.
Thurman testified Officer David Pugh’s report regarding a latent fingerprint lifted from the
vehicle used in the shooting would have been provided to the defense as Jencks material. Thurman
stated he did not believe the report was exculpatory because the fingerprint was not a useable print.
Thurman further stated he believed the parties discussed the report during the pretrial conference,
and testimony was presented at trial regarding the report. Thurman testified he also provided the
defense attorneys with Detective Eleam’s report regarding a fingerprint which was lifted from an
ammunition box found at Ashby’s residence, which did not belong to any of the defendants. Thurman
recalled that Detective Al Gray testified at trial regarding the fingerprint.
Thurman stated Jordan did not have an agreement with the state prior to testifying at trial.
According to Thurman, Jordan’s case was severed from the co-defendants’ case, and Thurman
informed Jordan that he would provide “consideration” if Jordan testified truthfully at trial.
Thurman stated Jordan’s tape recorded statement which the state provided to the defense revealed
this information. Thurman further stated that after trial, the state provided Jordan with “consideration”
through his sentence.
Thurman testified he provided the defense with Detective Eleam’s report regarding his
interview with Harris as Jencks material. Thurman stated the attorney who represented co-defendant
Ladonte Smith at his juvenile transfer hearing cross-examined Detective Eleam on this information.
Thurman further stated he provided the defense with Hayes’ tape recorded statement to the police
in which he discussed his initial claim that the vehicle was “carjacked.”
Thurman testified an anonymous caller contacted the police on two separate occasions and
provided them with the names of co-defendant Shaun Smith and two individuals who were not
charged. Thurman stated both Detective Putman and Detective Fuqua prepared separate reports
regarding the caller. Thurman explained he provided the defense with Detective Fuqua’s report
which was more detailed and listed the addresses of the three suspects.
Thurman testified he believed he provided the defense with Detective Eleam’s report
regarding ballistics tests conducted by TBI Agent Heflin as Jencks material. Thurman further stated
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the defense received Agent Heflin’s final report; the parties discussed the report during the pretrial
conference; and Agent Heflin’s testimony at trial was consistent with the information provided in
the report.
Thurman testified that after Hayes agreed to testify at trial, two people attacked Hayes and
shot him twice in the head. Although Hayes survived, he became afraid and went into hiding. The
state contacted Hayes by leaving a message with his grandmother requesting he call. Thurman stated
Hayes refused to be interviewed by the defense; however, prior to the attack, Hayes gave a tape
recorded statement to the police and testified under oath at co-defendant Ladonte Smith’s juvenile
transfer hearing. Thurman stated he provided the defense with the tape recorded statement and a
transcript of the hearing. Thurman testified co-defendants Jordan and Ashby were unavailable for
interviews because they were represented by counsel. Thurman further stated the parties discussed
the testimony of the remaining witnesses during the pretrial conference.
Thurman McLean, who represented Ashby in the case, testified Ashby’s plea agreement did
not contain any contingencies requiring her not to testify at the petitioner’s trial. McLean recalled
that because Ashby was afraid, he arranged for her plea hearing to be held in the afternoon when the
courtroom would be less populated. McLean stated Carlton Lewis approached him regarding
Ashby’s role as a potential defense witness; however, when McLean informed Lewis that Ashby had
entered a guilty plea, Lewis lost interest.
III. POST-CONVICTION COURT’S FINDINGS
In a written order denying the petition, the post-conviction court found the petitioner failed
to establish that the state withheld exculpatory evidence which was prejudicial to the outcome of the
trial. The court noted that according to Thurman’s testimony, the TBI report regarding an anonymous
tip was the only document listed in the petition that the state failed to furnish. The court further
noted Thurman testified the omission was not intentional. The post-conviction court found the
petitioner failed to establish the withholding of the report resulted in prejudice. The court further
found the petitioner failed to present sufficient evidence to support his remaining claims of
withholding exculpatory evidence.
In regard to the petitioner’s allegations that the state failed to correct perjured testimony of
Arnett Hayes, Detective Eleam, and Gary Jordan, the post-conviction court found the petitioner
failed to establish the testimony was perjurous or that the state’s failure to correct the testimony
resulted in prejudice. The court noted any alleged inconsistencies between the witnesses’ testimony
and their prior statements were adequately addressed through cross-examination at trial.
The post-conviction court found the petitioner’s claim that the state failed to reveal an
agreement with Jordan was without merit. The court noted that according to the record, the state
only promised Jordan severance from the other co-defendants if Jordan gave a truthful statement,
and Jordan’s counsel stated he did not relay any specific offers to Jordan prior to his testimony at
trial. The post-conviction court found the petitioner failed to establish he suffered prejudice as a
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result of the trial court’s reference to a witness as a “church woman” and noted that in the context
in which the term was used, the trial court did not intend to influence the jury nor did it do so. The
court further found the petitioner failed to establish that any alleged violation of the sequestration
rule impacted Billy Wright’s testimony or resulted in prejudice.
In regard to the petitioner’s claim of ineffective assistance of counsel, the post-conviction
court found the petitioner failed to establish trial counsel was deficient and that any alleged
deficiency resulted in prejudice. The court noted that according to Ryan’s testimony, trial counsel
spent a significant amount of time preparing the case for trial. The court further noted Watkins’
testimony that all defense counsel met on at least three occasions and discussed the case. The post-
conviction court found that based upon the record and the evidence presented during the hearing,
trial counsel competently represented the petitioner and diligently prepared the case for trial. Finally,
the court noted trial counsel employed his extensive experience in making strategic decisions
regarding objections, motions, jury instructions, and argument.
IV. STANDARD OF REVIEW
The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Jaco v. State,
120 S.W.3d 828, 830 (Tenn. 2003). This court may not reweigh or reevaluate the evidence, nor
substitute its inferences for those drawn by the post-conviction court. State v. Honeycutt, 54 S.W.3d
762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under
a purely de novo standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).
V. EXCULPATORY EVIDENCE
The petitioner contends the state withheld exculpatory evidence at trial in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, the petitioner
maintains the state withheld witness Gary Jordan’s statement to the police, ballistic reports, police
reports regarding anonymous telephone calls, fingerprint evidence, and William Terrell Harris’
statement to the police. The petitioner further submits the state’s withholding of this evidence
resulted in prejudice. We disagree.
A. Brady Standards
In Brady v. Maryland, the 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 good faith or bad faith of the prosecution.” 373 U.S.
at 87, 83 S. Ct. at 1196-97; see also Sample v. State, 82 S.W.3d 267, 270 (Tenn. 2002). The duty
to disclose extends to all “favorable information” regardless of whether the evidence is admissible
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at trial. Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001). In United States v. Bagley, 473 U.S. 667,
676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985), the Supreme Court held that both exculpatory
and impeachment evidence fall under the Brady rule. However, the state is not required to disclose
information that the defendant already possesses or is able to obtain. State v. Marshall, 845 S.W.2d
228, 233 (Tenn. Crim. App. 1992).
Before an accused is entitled to relief under this theory, he must establish several
prerequisites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed
must have been favorable to the accused; and (c) the evidence must have been material. See Bagley,
473 U.S. at 674-75, 105 S. Ct. at 3379-80; Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v.
Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is considered material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the results of the
proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.
2d 490 (1995); Edgin, 902 S.W.2d at 389.
In order to prove a Brady violation, a defendant must show that “the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566; see also Strickler v. Greene, 527 U.S. 263, 290,
119 S. Ct. 1936, 1952, 144 L. Ed. 2d 286 (1999). The Court in Kyles urged that the cumulative effect
of the suppressed evidence be considered to determine materiality. 514 U.S. at 436, 115 S. Ct. at
1567.
B. Gary Jordan’s Prior Statement
The petitioner first contends the state withheld witness Gary Jordan’s statement to the police.
The petitioner submits he could have utilized this statement to impeach Jordan’s credibility as a
witness at trial by showing that Jordan anticipated receiving a plea bargain and was biased against
a co-defendant due to a prior drug deal. However, Thurman testified he provided the defense with
Jordan’s tape recorded statement, and Watkins, who represented a co-defendant, testified he had
viewed or was familiar with all of the documents that the state allegedly withheld other than the TBI
report regarding an anonymous tip. Jordan testified at trial that the state agreed to sever his case
from his co-defendants’ case in exchange for his testimony and that he hoped to gain favorable
consideration from the state regarding his sentence. See Ladonte Montez Smith, et al., 1999 Tenn.
Crim. App. LEXIS 1276, at *6. Accordingly, the petitioner has failed to establish a Brady violation.
C. The Ballistics Reports
The petitioner maintains the state withheld ballistics reports which he could have utilized in
impeaching the state’s witnesses at trial regarding the number of weapons involved in the shooting.
However, Thurman testified he provided the defense with Detective Eleam’s preliminary report of
ballistics tests performed by TBI Agent Heflin as Jencks material and with Agent Heflin’s final
report of the results of the ballistics tests. Watkins stated he received all Jencks material from the
state prior to trial, and both Watkins and Thurman testified the parties discussed the ballistics reports
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at the pretrial conference. The post-conviction court accredited Thurman’s testimony. Therefore,
we conclude the petitioner has failed to establish that the state suppressed this evidence.
D. Reports on Anonymous Tips
The petitioner maintains the state suppressed various police reports concerning anonymous
callers who identified potential suspects and, thereby, deprived him of the ability to investigate these
suspects and cross-examine the state’s witnesses at trial regarding these suspects.
According to Thurman’s testimony at the post-conviction hearing, an anonymous individual
contacted the police on two separate occasions and identified the same three suspects: co-defendant
Shaun Smith and two individuals who were not charged. Detectives Putman and Fuqua prepared
separate reports regarding the information, and the state provided the defense with Detective Fuqua’s
report which was more detailed and listed the addresses of the three suspects. Therefore, the
petitioner has failed to establish a Brady violation.
However, Thurman stated he was unaware of and, thus, failed to provide the defense with
a TBI report relating to an anonymous caller who identified “Sydney Allen” as being involved in a
drive-by shooting in December 1995. Watkins confirmed he did not receive that report. Thurman
explained that had he been aware of the report’s existence, he would have provided it to the defense
as possible exculpatory evidence.
We conclude the petitioner failed to establish that the report was material. As indicated by
Thurman’s testimony, the report does not specify the shooting to which the anonymous caller was
referring. Thurman further stated Allen’s name never arose during the course of the state’s
investigation of this case. Finally, the petitioner failed to present any evidence at the post-conviction
hearing regarding Allen’s alleged involvement in the offenses. Therefore, we are unable to conclude
that had the state disclosed the report to the petitioner, the results of the proceedings would have
been different.
E. Fingerprint Evidence
The petitioner next maintains the state failed to disclose fingerprint evidence, thus denying
him the opportunity to conduct an independent fingerprint analysis. (P’s Brief, p. 14) However,
Thurman testified he provided the defense with Detective Eleam’s report concerning a fingerprint
which did not belong to any of the defendants and which officers lifted from an ammunition box at
Ashby’s residence. Furthermore, Detective Al Gray testified at trial regarding this fingerprint. Thus,
the petitioner has failed to establish that the state suppressed this report.
Officer David Pugh also prepared a report regarding a latent fingerprint which officers lifted
from the vehicle used in the shooting. According to Thurman’s testimony, the fingerprint was tested
and determined to be unusable. Thurman further testified that although he did not believe the report
was exculpatory, he provided the report to the defense as Jencks material and believed the parties
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discussed the report during the pretrial conference. Watkins stated he received all Jencks material
prior to trial. Therefore, we conclude the petitioner failed to establish that the state suppressed the
report or that the report was exculpatory.
F. William Terrell Harris’ Statement
Finally, the petitioner contends the state suppressed Harris’ statement to the police. The
petitioner maintains the suppression denied him the opportunity to present Harris as a witness at trial
and hindered his ability to impeach Arnett Hayes’ credibility as a witness at trial. We disagree.
Detective Eleam prepared a report regarding an interview with Harris. Thurman testified that
prior to trial, he provided the report to the defense including the attorney who represented co-defendant
Ladonte Smith at his juvenile transfer hearing. The attorney then used the information in cross-
examining Detective Eleam during the hearing. Both Thurman and Watkins indicated that the state
provided the defense with a transcript of the hearing. Watkins further testified Detective Eleam’s
report appeared “familiar,” he interviewed Harris, and he was aware of the information in the report.
Therefore, the petitioner has failed to establish that the state withheld this evidence.
VI. FAILURE TO CORRECT PERJURED TESTIMONY
The petitioner contends the state failed to correct perjured testimony of its witnesses at trial
in violation of his due process rights. We conclude this contention is without merit.
The state may not knowingly present false testimony and has an affirmative duty to correct
the false testimony of its witnesses. See Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763,
766, 31 L. Ed. 2d 104 (1972); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993).
The state’s failure to correct false testimony of a witness violates due process of law as guaranteed
by the United States and Tennessee constitutions. Giglio, 405 U.S. at 153-54; Spurlock, 874 S.W.2d
at 618. In order to obtain a new trial, the accused must establish that the prosecution presented false
testimony, which it knew to be false, and that the testimony was material. State v. Cureton, 38
S.W.3d 64, 74-75 (Tenn. Crim. App. 2000). In determining the materiality of the testimony, the
inquiry becomes whether a reasonable likelihood exists that the false testimony could have affected
the jury’s judgment. See Giglio, 405 U.S. at 154.
The petitioner contends the state failed to correct the following allegedly false testimony at
trial:
(1) Detective Eleam testified at trial that the police presented Gary Jordan with a
photographic lineup in which Jordan identified the petitioner, whereas Jordan’s
attorney actually presented the lineup to Jordan;
(2) Arnett Hayes’ testimony at trial differed from his “pre-trial testimony” regarding
whether the petitioner possessed a ski mask on the date of the shooting;
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(3) Jordan explained in his statement to the police that he attempted to enter Virie
Ashby’s residence after the shooting, whereas at trial, he testified regarding other
places to which he fled;
(4) Jordan testified at trial that he was not upset with co-defendant Shaun Smith
regarding drugs obtained in a robbery, whereas he explained in his statement to the
police that he and Smith had a “falling out” over the incident; and
(5) Jordan testified at trial that he hoped to receive leniency for testifying, whereas
he had been told prior to trial that he would receive a plea agreement.
We conclude that the petitioner had access to all of this information at the time of trial. By
failing to raise the issue of perjured testimony on direct appeal, it may not be raised in a post-
conviction context as an independent basis for relief. Regardless, the allegations are without merit.
As to the first four allegations, we agree with the post-conviction court’s finding that this
testimony had no prejudicial effect on the outcome of the trial. As to the first contention, although
Jordan’s counsel was the person who showed the photographic lineup to Jordan, counsel testified
he did not influence Jordan in his identification. The person who showed the lineup to Jordan was
immaterial. As to the second contention, the testimony of other witnesses at trial established that
the perpetrators were wearing ski masks during the shooting. In our view, whether Hayes actually
saw the petitioner with a ski mask at the residence before the shooting was not significant. Both at
the juvenile transfer hearing and at the trial, Hayes testified the petitioner and the other perpetrators
secured weapons before leaving the residence. As to the third contention, Jordan’s testimony at trial
was consistent with his statement to the police regarding other places to which he fled after the
shooting. The fact that he did not mention the Ashby residence does not establish perjury nor
prejudice to the outcome of the trial. Finally, regardless of whether Jordan and co-defendant Shaun
Smith had a “falling out,” Jordan’s testimony at trial relating to the actual events of the shooting was
consistent with his statement. Accordingly, the petitioner has failed to demonstrate a reasonable
likelihood that the challenged testimony could have affected the jury’s judgment.
Furthermore, the petitioner has failed to establish that a plea agreement existed between
Jordan and the state which Jordan failed to reveal at trial. At the post-conviction hearing, both
Thurman and Jordan’s trial counsel testified that prior to trial, the state agreed to sever Jordan’s case
from his co-defendants’ case and provide him with “consideration” in exchange for his truthful
statement. Jordan also testified to this “agreement” at trial and stated he hoped to gain favorable
consideration at sentencing. While Jordan may have hoped his testimony would result in favorable
treatment, the record does not establish any further agreement existed between the state and Jordan
at the time of the petitioner’s trial. See Hartman v. State, 896 S.W.2d 94, 101-02 (Tenn. 1995).
Moreover, the fact that Jordan later pled guilty to lesser charges and received a lesser sentence does
not establish the existence of a prior agreement. See State v. Williams, 690 S.W.2d 517, 525 (Tenn.
1985). Accordingly, this argument is without merit.
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VII. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends he received ineffective assistance of counsel at trial. Specifically,
he maintains trial counsel was ineffective in failing to investigate the facts and interview witnesses,
in failing to file a motion to suppress Gary Jordan’s pre-trial identification of the petitioner, in failing
to call witnesses at trial, in failing to effectively cross-examine the state’s witnesses at trial, in
allowing a witness for the state to testify in violation of the rule of sequestration, in failing to object
to the trial court’s comment regarding a witness for the state, and in failing to request and present
evidence supporting an accomplice instruction as to Arnett Hayes.
A. Standards
For a petitioner to successfully overturn a conviction based on ineffective assistance of
counsel, the petitioner must first establish that the services rendered or the advice given was below
“the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled
to relief. Our supreme court described the standard of review as follows:
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. Indeed, a
court need not address the components in any particular order or even
address both if the defendant makes an insufficient showing of one
component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at
2069). The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess
a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,
tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The petitioner bears the burden of proving his allegations by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f) (2003). The findings of fact made by the post-conviction court are
conclusive and will not be disturbed unless the evidence contained in the record preponderates
against them. See Jaco, 120 S.W.3d at 830.
B. Failure to Investigate and Interview Witnesses
The petitioner submits trial counsel failed to adequately investigate the case in that he did not
review Hayes’ prior sworn testimony, did not file any pretrial motions, met with the petitioner only
two hours, and did not insist on complete discovery from the state. However, Katherine Ryan, trial
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counsel’s paralegal, testified the petitioner’s case was of the highest priority and that trial counsel
worked for a “substantial” amount of hours in preparing for trial. Thurman testified trial counsel
filed a notice of an alibi defense along with accompanying affidavits and received discovery from
the state, including Hayes’ tape recorded statement to the police and a transcript of co-defendant
Ladonte Smith’s juvenile transfer hearing during which Hayes testified. According to Watkins,
counsel for a co-defendant, all defense counsel met on three or more occasions to discuss the case;
they met with the state during a pretrial conference during which they reviewed all the physical
evidence and discussed the witnesses’ testimony and an overview of the entire case. Watkins stated
defense counsel met after the pretrial conference and discussed their defenses. Although trial
counsel did not file any pretrial motions, he orally adopted motions filed by the other defense
attorneys. The post-conviction court found trial counsel diligently prepared for trial and represented
the petitioner in a competent and thorough manner. The evidence does not preponderate against the
findings of the post-conviction court.
The petitioner further maintains trial counsel failed to interview Virie Ashby, Detective
Eleam, and William Terrell Harris. However, the evidence presented at the post-conviction hearing
establishes that Ashby was unavailable for interviews because she was then represented by counsel.
Thurman testified he provided trial counsel with Ashby’s statement to the police. Although Detective
Eleam was unable to recall whether he had spoken with trial counsel, Thurman stated he observed
trial counsel speaking to various law enforcement officers in the hallway and that he provided trial
counsel with reports prepared by Detective Eleam. Watkins testified he interviewed Detective Eleam
and that the parties discussed the proposed testimony of the witnesses during the pretrial conference.
Finally, Watkins testified he interviewed Harris who stated he had pawned his vehicle to
Hayes; Watkins was familiar with the information in Detective Eleam’s report regarding the detective’s
interview with Harris; and Watkins decided against calling Harris as a witness at trial. As noted above,
Watkins further stated defense counsel discussed the testimony of the witnesses during the pretrial
conference. Furthermore, at the post-conviction relief hearing, Harris acknowledged he had spoken
to a defense attorney prior to trial and the defense attorney later informed him that his testimony was
not needed. Accordingly, the petitioner had failed to demonstrate trial counsel was deficient in failing
to interview witnesses and that any deficiency resulted in prejudice.
C. Failure to File a Motion to Suppress
The petitioner next submits that trial counsel was ineffective in failing to file a motion to
suppress Jordan’s pretrial identification of the petitioner in a photographic lineup. We disagree.
Convictions based on eyewitness identification at trial following a pre-trial photographic
identification will be set aside only if the photographic identification was “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons
v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). According to the
evidence presented at the post-conviction relief hearing, Detective Eleam prepared a photographic
lineup and presented it to Jordan’s counsel, who then presented it to Jordan. Jordan subsequently
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identified the petitioner from the lineup. Jordan’s counsel described the lineup as a standard police
lineup with six photographs; he did not know the identity of the suspect in the lineup; and neither
he nor the police influenced Jordan in identifying the petitioner. Based upon this limited evidence,
we are unable to conclude that if trial counsel filed a motion to suppress, the trial court would have
granted the motion. Therefore, the petitioner has failed to demonstrate deficiency or prejudice.
D. Failure to Call Witnesses at Trial
The petitioner claims trial counsel was ineffective in informing the jury during his opening
statement that Virie Ashby would testify and then failing to call her as a witness at trial. The
petitioner argues that Ashby’s testimony would have discredited Gary Jordan’s testimony and would
have supported the petitioner’s testimony that he had never been to Ashby’s residence.
This court has noted the potential adverse effect resulting from a trial counsel’s failure to
present evidence promised during opening statements. See State v. Zimmerman, 823 S.W.2d 220,
225 (Tenn. Crim. App. 1991). However, regardless of any deficiency, we conclude the petitioner
has failed to establish prejudice. According to the evidence presented at the post-conviction relief
hearing, Ashby was reluctant to testify at trial and had pled guilty prior to trial to charges resulting
from the shooting. Her post-conviction testimony was seemingly at odds with her plea of guilty to
accessory after the fact. It is certainly understandable why she was not called as a witness. Although
Ashby testified at the post-conviction hearing that the petitioner was not at her residence on the date
of the shooting, she further testified she also was not present at her residence on that date. After
counsel’s opening statement, the trial jury heard incriminating testimony about Ashby’s involvement.
Although trial counsel may well have been deficient in indicating Ashby would be a witness, we are
unable to conclude that this statement or the actual decision not to call Ashby was prejudicial in
terms of rendering a reasonable probability that the result of the trial was unreliable or the
proceedings fundamentally unfair. See Strickland, 466 U.S. at 687.
The petitioner further submits that trial counsel was ineffective in failing to call Mario
McGee, whom he alleges would have impeached Hayes’ testimony as to the individuals present at
Ashby’s residence on the date of the shooting. However, McGee did not testify at the post-
conviction relief hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(holding that when a petitioner claims trial counsel was ineffective in failing to present witnesses
at trial, the petitioner should present the witnesses at the evidentiary hearing in order to establish
prejudice). Accordingly, this argument is without merit.
E. Failure to Adequately Cross-Examine Witnesses
The petitioner claims trial counsel failed to adequately cross-examine Gary Jordan at trial
regarding any agreements he had with the state in exchange for his testimony. However, as we have
previously noted, the proof establishes that in exchange for Jordan’s truthful statement, the state
agreed to sever his case from his co-defendants’ case and to provide him with “consideration.”
Jordan testified to this “agreement” at trial. Accordingly, this argument is without merit.
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The petitioner further claims trial counsel failed to adequately cross-examine Arnett Hayes
at trial regarding his drug activities, his knowledge of the petitioner, and his inconsistent testimony
at trial and at prior proceedings. However, the post-conviction court found that any inconsistencies
in the testimony of the various witnesses were adequately addressed at trial during cross-
examination. At the post-conviction hearing, the petitioner recalled that trial counsel attempted to
question Hayes at trial as to whether he was a drug dealer, and the trial court refused to permit it.
Furthermore, the petitioner has failed to establish that any alleged deficiency resulted in prejudice.
This argument lacks merit.
F. Failure to Object to Violation to Sequestration of Witnesses
The petitioner contends trial counsel was ineffective in failing to object to the testimony of
witness Billy Wright, who was inside the courtroom during the testimony of other witnesses at trial.
See Tenn. R. Evid. 615 (requiring exclusion of witnesses from courtroom except during their
testimony). At the post-conviction relief hearing, Wright stated that prior to testifying at trial, he did
not remain inside the courtroom while other witnesses testified. The post-conviction court found
the petitioner failed to establish that any alleged violation of the sequestration rule impacted Wright’s
testimony and resulted in prejudice. The evidence does not preponderate against the findings of the
post-conviction court.
G. Failure to Object to Trial Judge’s Comment
The petitioner submits trial counsel was ineffective in failing to object or request a curative
instruction regarding the trial judge’s characterization of state witness Frankie Blakely as a “church
woman.” The post-conviction court found the petitioner failed to establish prejudice and noted that
in the context in which the term was used, the trial court did not intend to influence the jury nor did
it do so. The evidence does not preponderate against the post-conviction court’s findings.
H. Failure to Request an Accomplice Instruction
Finally, the petitioner maintains trial counsel was ineffective in failing to request a jury
instruction regarding Arnett Hayes’ role as an accomplice and in failing to present evidence
supporting an instruction. We disagree.
An accomplice is a person who knowingly, voluntarily and with a common intent unites with
the principal offender in the commission of a crime. State v. Allen, 976 S.W.2d 661, 666 (Tenn.
Crim. App. 1997). On direct appeal, the petitioner claimed the trial court erroneously failed to
instruct the jury that Hayes was an accomplice as a matter of law or, in the alternative, that the trial
court erroneously failed to submit the question of whether Hayes was an accomplice to the jury as
the trier of fact. Ladonte Montez Smith, et al., 1999 Tenn. Crim. App. LEXIS 1276, at *23. A panel
of this court held that the petitioner waived the issue by failing to request a special instruction and
by failing to object at trial. Id. at **28-29. This court further held that regardless of waiver, no basis
for concluding that Hayes was an accomplice as a matter of law existed. Id. at *28. This court
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further noted that although the evidence presented at trial might have raised the issue of Hayes’ role
as a facilitator, the evidence did not fairly raise the issue of his role as an accomplice. Id. We
conclude the petitioner has failed to establish that any alleged deficiency resulted in prejudice.
VIII. CONCLUSION
In summary, we conclude the petitioner failed to establish that: (1) the state violated Brady;
(2) the state did not correct perjured testimony at trial; or (3) he received ineffective assistance of
counsel at trial. Accordingly, we affirm the judgment of the post-conviction court.
____________________________________
JOE G. RILEY, JUDGE
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