Shundell Lynn Dickerson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 10, 2011
Petition to Rehear Granted October 9, 2012
SHUNDELL LYNN DICKERSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2004-A-538 Cheryl Blackburn, Judge
No. M2011-00644-CCA-R3-PC - Filed February 27, 2013
Petitioner, Shundell Lynn Dickerson, appealed the trial court’s denial of post-conviction
relief, and this court affirmed the judgment of the post-conviction court. Shundell Lynn
Dickerson v. State of Tennessee, No. M2011-00644-CCA-R3-PC, 2012 WL 2564376 (Tenn.
Crim. App. at Nashville, filed July 3, 2012). In that opinion, Petitioner raised the issue of
whether his appellate counsel was ineffective for failing to challenge the sufficiency of the
convicting evidence on direct appeal. We acknowledged that pursuant to our supreme
court’s decision in State v. Parker, 350 S.W.3d 883 (Tenn. 2011), appellate review of the
sufficiency of the evidence must be undertaken with respect to the offense for which a
defendant was convicted rather than the greater offense with which he or she was charged.
We were precluded, however, from fully considering the issue because the summary of the
facts contained in our opinion in the direct appeal was not adequate to allow for review of
the issue, and, through no fault of Petitioner, the appellate record in the direct appeal was
destroyed in the historic Nashville flood in May, 2010. Therefore, this court could not
determine from the record whether Petitioner suffered prejudice by appellate counsel’s
deficient performance in failing to challenge the sufficiency of the convicting evidence on
appeal. Since the filing of that opinion, this court has granted Petitioner’s petition to rehear
the issue of the ineffectiveness of appellate counsel, and Petitioner has supplemented the
record with copies of the trial transcript. Both parties have filed supplemental briefs. After
a review of the record before us, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
James O. Martin, Nashville, Tennessee, (on appeal) and Kristen VanderKooi, Nashville,
Tennessee, (at trial) for the appellant, Shundell Lynn Dickerson.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, the State of Tennessee.
OPINION AFTER REHEARING
Facts
Trial
Stormy Woods testified that on the afternoon of October 19, 2003, she went shopping
with her friend Rhonda Thompson and Ms. Thompson’s friend Eric Johnson. Ms. Woods
was parked outside of a strip mall, waiting on Ms. Thompson and Mr. Johnson to return to
the car from the store. When they returned to the car, “[j]ust as [Ms. Thompson] had opened
the passenger side door a car came from behind [them] and started shooting.” Ms. Woods
saw Mr. Johnson get shot and fall to the ground. She testified that she saw the shooter in
the driver’s seat of the car, which she described as a newer, four-door, dark green car. She
could not tell if anyone else was in the car. She described the shooter as a “medium skinned,
African-American man, . . . around mid to early twenties.” He was wearing a sports jersey,
and he had a black bandana on his head. When the shooting stopped, Ms. Thompson got
inside the car and Ms. Woods drove away. Ms. Thompson told Ms. Woods to leave Mr.
Johnson there. They drove to a friend’s house, and the friend called the police. When the
police arrived, Ms. Thompson was taken to the hospital. Ms. Woods testified that her car
had four or five bullet holes in the passenger side. She was not able to identify Petitioner
as the shooter, and she did not see anyone besides the shooter inside of the vehicle.
Rhonda Thompson testified that as she and Mr. Johnson approached Ms. Woods’ car,
a dark-colored car with tinted windows “drove up and started shooting.” She testified that
the driver’s side window was down and she saw one person firing a gun. Ms. Thompson
was unable to identify the shooter, but she testified that the shooter was African-American
and “light skinned.” Ms. Thompson also testified that she saw one other person inside the
vehicle.
Officer Terry Burnett, of the Metro Nashville Police Department, responded to the
scene of the shooting. When he arrived, he saw Mr. Johnson lying on the ground and
“bleeding extremely bad.” He also saw several shell casings on the ground. An ambulance
arrived and transported Mr. Johnson to the hospital.
Dr. Feng Li, an assistant medical examiner for Davidson County, testified that Mr.
Johnson suffered six gunshot wounds. Dr. Li recovered three projectiles from Mr.
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Johnson’s body. The cause of his death was multiple gunshot wounds and the manner of
death was homicide.
Tameka Buchanan witnessed the shooting. She was leaving the parking lot when she
heard gunshots. She saw two cars fleeing the scene. One of the cars was driven by “two
white girls,” and the other was a black Monte Carlo with tinted windows. She could not see
who was inside the Monte Carlo.
Alice Douglass, Ms. Buchanan’s sister, testified that she was at the shopping center
with Ms. Buchanan when the shooting occurred. She heard gunshots and turned and saw
a black Monte Carlo with tinted windows speed away. Ms. Douglass testified that while Ms.
Buchanan tended to Mr. Johnson, she went into a nearby store to use the telephone. She
testified that the same black car drove by again, “[l]ooked at the body, whatnot, the guy.
And said he didn’t know that fool – they didn’t know that fool. And then they left.” Ms.
Douglass testified that there were two black males inside the car. The driver had braids, and
the passenger had a blue bandana around his face.
Katrina Frierson had two children with Petitioner. She testified that Petitioner told
her that he killed Mr. Johnson. Ms. Frierson testified that in her initial interview with
detectives, however, she did not state that Petitioner had told her that he killed Mr. Johnson.
She testified that she did not tell detectives initially because Petitioner had threatened to
“take [her] kids.” On cross-examination, she testified that she had been charged with four
counts of aggravated robbery. She was released from jail after her bond was reduced, which
was after she agreed to testify in this case.
Ms. Frierson testified that Petitioner told her “that somebody had to pay.” Petitioner
told her that he had followed Mr. Johnson to a shopping center and “emptied his clip on
him” when he came out of the store. He told her that Mr. Johnson was with “a white girl.”
He said that he was with “a couple of his home boys.” She testified that Petitioner was
“scared” and that he told her “that if anything happened to him to make sure [she] took care
of his kids.”
Ms. Frierson also testified that on October 24, 2003, Petitioner shot her television in
her bedroom with a nine millimeter handgun. A neighbor heard the gunshot and called the
police. When the police arrived, they found Petitioner hiding in her closet. She
acknowledged that she initially lied to the police about Petitioner being in her home.
Officer Jacob Pilarski, of the Metro Nashville Police Department, responded to the
incident at Ms. Frierson’s house. When he arrived, he observed that the television “appeared
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to be broken, shattered. The tube was shattered.” He found “one spent shell casing” from
a nine millimeter behind the television.
Officer Michael Pyburn, of the Metro Nashville Police Department, examined three
projectiles and eight shell casings that were recovered from the scene of the shooting. He
determined that two of the three bullets recovered from the scene were nine millimeter
bullets that were fired from “an unknown firearm.” The third bullet was a .45 caliber bullet
that was fired from “a second unknown firearm.” Officer Pyburn testified that seven of the
eight discharged cartridge cases were Winchester .45 auto cartridge cases, and one was a
discharged Remington nine millimeter Luger cartridge case. He also examined the three
projectiles that were recovered from the victim’s body. One was a nine millimeter projectile,
which had insufficient markings to determine from what firearm it was discharged. The
other two were .45 caliber projectiles that were fired from the same unknown .45 caliber
firearm from which the projectiles found at the scene were fired. Officer Pyburn also
examined the nine millimeter shell casing found in Ms. Frierson’s home and determined that
it was discharged by the same unknown nine millimeter handgun that fired the nine
millimeter bullets and shell casings found at the crime scene. Officer Pyburn testified that
“at least two different firearms” were fired at the crime scene.
Tamara Elliott, Clarence Elliott’s wife and Eric Johnson’s cousin, testified that on
September 20, 2003, she was present when Mr. Elliott shot Terrence Gregory in their yard.
She testified that Mr. Johnson was across the street painting. Ms. Elliott did not call the
police after that incident. She testified that she learned from Petitioner that Mr. Johnson had
been killed approximately two days after the shooting, when Petitioner went to her house
and told her he “knocked [the victim] off.” On cross-examination, Ms. Elliott did not tell
detectives that Petitioner had admitted to her that he shot Mr. Johnson when she initially met
with him. She also testified that she learned about Mr. Johnson being killed by “some
woman on the street.”
Terrence Gregory testified that he was with Petitioner and Petitioner’s brother Montez
Dickerson when Mr. Gregory was shot four times by Clarence Elliott on September 20,
2003. Petitioner had told Mr. Gregory that Mr. Elliott “wanted to buy some coke.” Mr.
Gregory believed that Petitioner and Montez Dickerson had set him up to be shot by Mr.
Elliott. Mr. Gregory testified that he was incarcerated with Petitioner, and Petitioner told
him that he did not set him up to be shot and that Mr. Johnson was one of the people who
shot Mr. Gregory. Petitioner told Mr. Gregory that “he wasn’t going to let him slide with
that so he knocked him off.”
Dawn Dickerson, Petitioner’s sister-in-law, testified that Petitioner lived with her and
Montez Dickerson in 2003. She testified that she was with Petitioner on the day of the
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shooting. She testified that they were at home that morning, and that night, they were at
Lacreissa Newbell’s house for a birthday party for Montez Dickerson. They went to Ms.
Newbell’s house in the afternoon and stayed until after 11:00 p.m. She testified that she had
never seen Defendant carrying a nine millimeter handgun.
Lacreissa Newbell testified that she had a party at her house for Petitioner on the date
of the shooting. She testified that Petitioner arrived with Montez and Dawn Dickerson
sometime between 3:00 and 4:00 p.m.
Post-conviction hearing
As noted in the original opinion filed in this case, Petitioner’s appellate counsel
acknowledged at the post-conviction hearing that he did not challenge the sufficiency of the
convicting evidence on direct appeal. He testified that he reviewed the record in preparing
the appellate brief. He believed that the evidence at trial was legally sufficient to support
the indicted offense of first degree murder and the convicted offense of facilitation to
commit first degree murder, although he did not recall evidence showing that Petitioner
knew of another person intending to kill Mr. Johnson. Appellate counsel testified, “[i]t’s
generally true that if the evidence was legally sufficient to support the greater offense it
would also be sufficient to support a lesser included offense.” He stated his reasons for not
challenging the sufficiency of the evidence on direct appeal as follows:
[Appellate counsel]: I don’t recall any cases where the appellate
courts reversed a conviction based on
insufficient evidence while simultaneously
holding that there was sufficient evidence to
support a greater charge.
The State: All right. Is that why you didn’t include this
as an issue?
[Appellate counsel]: I think that may have been one reason. There
– I think also given the proof that connected
[Petitioner] to the murder weapon in the car
from where the shots were fired, that that
arguably could have supported a verdict for
facilitation.
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Analysis
Standard of review
Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” Tenn. Code Ann. § 40–30–103. To prevail on a post-conviction claim
of a constitutional violation, the petitioner must prove his or her allegations of fact by “clear
and convincing evidence.” Tenn. Code Ann. § 40–30–110(f); see Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). This court will not overturn a post-conviction court’s
findings of fact unless the preponderance of the evidence is otherwise. Pylant v. State, 263
S.W.3d 854, 867 (Tenn. 2008); Sexton v. State, 151 S.W.3d 525, 531 (Tenn. Crim. App.
2004). We will defer to the post-conviction court’s findings with respect to the witnesses’
credibility, the weight and value of their testimony, and the resolution of factual issues
presented by the evidence. Momon, 18 S.W.3d at 156. With respect to issues raising mixed
questions of law and fact, however, our review is de novo with no presumption of
correctness. See, e.g., Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011).
Retroactive application of State v. Parker
In determining whether Petitioner’s appellate counsel was ineffective for failing to
raise on direct appeal the sufficiency of the convicting evidence, we must first address the
issue of whether the ruling in State v. Parker, 350 S.W.3d 883 (Tenn. 2011), is applicable.
Appellate counsel testified at the post-conviction hearing that he relied upon case law that
was specifically overruled by Parker in deciding not to challenge the sufficiency of the
evidence on direct appeal. He also testified that he believed there was evidence at trial to
support Petitioner’s facilitation conviction.
In Parker, the Tennessee Supreme Court reviewed the sufficiency of the convicting
evidence where the defendant had been indicted for felony murder but convicted of the
lesser included offense of second degree murder. The court recognized, “[t]he issue before
us is whether, in spite of the insufficient evidence to support the offense of second degree
murder, the conviction should nevertheless be affirmed because there was sufficient
evidence to support the greater offense of felony murder.” 350 S.W.3d at 905. This court,
relying on State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), concluded that since the proof
was sufficient to support the greater, indicted offense, the conviction for second degree
murder “‘survive[d] despite the deficient proof of its elements.’” Parker, 350 S.W.3d. at
905 (quoting State v. Joshua Lynn Parker, 2010 WL 3706090, at *12). Our supreme court
reversed the conviction, overruling Mellons, and held that “a court reviewing the sufficiency
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of the evidence must determine whether each element of the conviction offense is supported
by sufficient proof.” Id. at 909. The court stated, “when reviewing a convicted defendant’s
claim that the evidence is not sufficient to support his or her conviction, the review must be
undertaken with respect to the crime of which the defendant was convicted, not the crime
with which he was charged.” Id. at 907 (citing Jackson v. Virginia, 443 U.S. 307, 324, n.
16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
The State asserts that the supreme court’s decision in Parker did not announce a new
constitutional rule of law, and therefore, it should not be applied retroactively, citing
Meadows v. State, 849 S.W.2d 748, 754 (Tenn. 1993) (“[A] new state constitutional rule is
to be retroactively applied to a claim for post-conviction relief if the new rule materially
enhances the integrity and reliability of the fact finding process of the trial.”). Petitioner
concedes that Parker did not announce a new rule of law and recognizes that the holding in
Parker relied upon well-settled law in Tennessee. Petitioner contends, however, that it is
precisely because the holding in Parker recognized an already established rule of law,
“[t]here is no need for retroactive application of the holding in Parker in order for
[Petitioner] to complain that the evidence in his case was not sufficient to support his
conviction . . . [because], as recognized by the opinion in Parker, it has long been the law
in Tennessee that a [d]efendant can do just that.”
We note that in post-conviction cases, the retroactive application of a new
constitutional rule analysis is generally relevant in the context of a post-conviction petition
that is filed outside of the one-year statute of limitations. See Tenn. Code Ann. § 40-30-
102(b)(1) (allowing for tolling of the statute of limitations where the claim in the petition
is based upon an appellate court decision establishing a new rule of constitutional law that
requires retroactive application). That is not the case here. There is not an issue regarding
the timeliness of Petitioner’s post-conviction petition. Rather, the issue is whether
Petitioner’s appellate counsel was ineffective for relying upon case law, decided prior to the
supreme court’s ruling in Parker, that seemed to hold that a conviction for a lesser included
offense would be upheld, notwithstanding the lack of evidence to support the lesser included
offense, where the evidence is sufficient to support a conviction for the greater charged
offense. See State v. Mellons, 557 S.W.2d at 499.
In Parker, the supreme court examined the viability of the holding in Mellons and
concluded that “[t]he proposition for which the majority [of the intermediate appellate court]
relied on is, in fact, mere dictum.” 350 S.W.3d at 907. The court noted that Mellons was
predicated upon a statute that had long since been repealed. Id. (citing Tenn. Code Ann. §
40-2520 (1955)). The court based its conclusion on “subsequent developments in the law,”
including the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. at
316, 99 S. Ct. 2781, which provided that due process requires that every element of a
7
convicted offense be proven beyond a reasonable doubt and Tennessee Rule of Appellate
Procedure 13(e), which provides that “[f]indings of guilt in criminal actions . . . shall be set
aside if the evidence is insufficient to support the findings by the trier of fact beyond a
reasonable doubt.” The court also noted its 1999 decision in State v. Burns, in which the
court adopted the test for analyzing lesser-included offenses. 6 S.W.3d 453 (Tenn. 1999).
In State v. Ely, the court clearly stated that a lesser-included offense should be charged to
the jury only when “the evidence is legally sufficient to support a conviction for the lesser-
included offense.” 48 S.W.3d 710, 722 (Tenn. 2001) (citing Burns, 6 S.W.3d at 467, 469).
The court also noted that the legislature “echoed [its] holding in Burns with its passage of
Tennessee Code Annotated section 40-18-110.” Parker, 350 S.W.3d at 308. The court
concluded, “[w]ith the elimination of the statutory support upon which Mellons relied,
combined with the subsequent significant developments in our lesser-included offense
jurisprudence and statutes, we are forced to conclude that Mellons does not control the
outcome of this case.” Id. at 909. The court also clarified its decision in State v. Bolin, 922
S.W.2d 870, 875 (Tenn. 1996), in which the court cited Mellons. The court stated,
[a]s in Mellons, however, this Court did not actually hold in State v. Bolin
[citation omitted] that a defendant may stand convicted of a lesser-included
offense where there is no proof as to an element necessary to support the
lesser-included offense, even if the proof would support the greater
offense.”
Parker, 350 S.W.3d at 910.
Our supreme court made clear by its holding in Parker that long-standing law
prevents a defendant from being convicted of a lesser-included offense that is not supported
by the proof, even when the greater charged offense is supported by the proof. Therefore,
we agree with Petitioner in this instance. The State’s argument is misplaced. The analysis
of whether Parker announced a new rule of constitutional law and whether the holding in
Parker should be retroactively applied is not necessary in the present case. If, as both parties
assert, the holding in Parker was based on already established law in Tennessee, which
existed at the time of Petitioner’s conviction, then an appellate counsel could arguably have
been deficient for failing to raise the issue of sufficiency of the evidence on appeal. As
stated in our original opinion filed in this case,
Parker supports Petitioner’s assertion that his appellate counsel should
have challenged the sufficiency of the evidence to support his conviction.
In other words, appellate counsel should not have relied upon Mellons for
the proposition that as long as there was sufficient evidence to sustain the
conviction of the charged offense of premeditated first degree murder, then
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Petitioner’s challenge to the sufficiency of the evidence for the conviction
of any lesser-included offense would automatically be without merit.
Dickerson, 2012 WL 2564376, at *12.
This, however, does not end our analysis. While, according to the analysis in Parker,
appellate counsel should not have relied upon Mellons in deciding whether or not to
challenge the sufficiency of the evidence, counsel may not have been ineffective for failing
to raise the issue if the evidence at trial was, in fact, sufficient to support the lesser-included
facilitation conviction.
Sufficiency of the evidence
Petitioner asserts that appellate counsel’s performance was deficient because there
was “no evidence presented at trial that [Petitioner] knew another intended to kill [Johnson],
a required element” of the offense of facilitation, for which Petitioner was convicted.
Petitioner also points to appellate counsel’s testimony at the post-conviction hearing that he
did not recall any evidence being presented at trial that Petitioner knew another intended to
kill the victim. In order to determine whether appellate counsel’s performance was deficient
or whether Petitioner was prejudiced by any deficient performance, we must first analyze
whether the evidence at trial was sufficient to support Petitioner’s facilitation conviction.
A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits the
testimony” of the State’s witnesses and resolves all conflicts in the testimony in favor of the
State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54,
75 (Tenn. 1992). Thus, a guilty verdict removes the presumption of innocence and replaces
it with one of guilt. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the
defendant to demonstrate the insufficiency of the convicting evidence. Id.
The relevant question the reviewing court must answer is whether any rational trier
of fact could have found the accused guilty of every element of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318–19
(1979). In making this decision, we are to accord the State “the strongest legitimate view
of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences
for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d
9at 779. Further, questions concerning the credibility of the witnesses and the weight and
value to be given to evidence, as well as all factual issues raised by such evidence, are
resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392–93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence,
the standard of review for the sufficiency of that evidence is the same whether the conviction
is based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); See Tuggle, 639 S.W.2d
at 914.
The offense of facilitation requires that a defendant, without the intent to promote or
assist in the commission of the offense, knowingly furnishes substantial assistance in the
commission of the offense and that the defendant knew the other person intended to commit
the offense. Tenn. Code Ann. § 39-11-403(a). The applicable definition of first degree
murder is “[a] premeditated and intentional killing of another.” Tenn. Code Ann. §
39-13-202(a)(1). Premeditation necessitates “a previously formed design or intent to kill,”
State v. West, 844 S.W.2d 144, 147 (Tenn.1992) (citations omitted), and “an act done after
the exercise of reflection and judgment . . . [meaning] that the intent to kill must have been
formed prior to the act itself.” Tenn. Code Ann. § 39-13-202(d). In order to support
Petitioner’s conviction for facilitation of first degree murder, the evidence must establish
that Petitioner knew that another person intended to commit premeditated murder and that
Petitioner furnished substantial assistance in the commission of the offense. See id.
The proof clearly establishes that the murder was premeditated. Viewed in the light
most favorable to the State, a vehicle with at least two individuals inside drove up to where
the victims were standing in a parking lot and stopped. At least one gunman fired multiple
shots at the victims, and the car then fled the scene. The proof establishes that two weapons
were fired, and one of the weapons was used by Petitioner five days after the murder when
he shot at Ms. Frierson’s television. The State argues that the jury could have reasonably
concluded that Petitioner assisted in the murder of Eric Johnson. The evidence that the State
relies upon in its assertion that there was proof of facilitation is Ms. Thompson’s testimony
that she saw two men inside the shooter’s car and that one of them was firing a gun; Ms.
Douglass’ testimony that she also saw two men in the car fleeing the parking lot after she
heard gunshots; and Ms. Frierson’s testimony that Petitioner told her he was with “a couple
of his home boys” when Johnson was killed. The State further asserts that the jury could
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have found Petitioner’s confessions to Frierson and Terrence Gregory, that he killed Mr.
Johnson, not credible.
We conclude that although the proof of facilitation is not overwhelming, the jury
could have inferred that Petitioner was the second individual in the car, but that he was not
the shooter; that one of the weapons used by the shooter to kill the victim was a nine
millimeter handgun provided the shooter by Petitioner; and that Petitioner knew that the
shooter intended to kill the victim because he was in the car with the shooter and the shooter
used his gun to commit the murder. None of the witnesses could identify Petitioner as the
shooter. Two witnesses testified that there were two people inside the shooter’s car.
Ballistics evidence showed that Petitioner was in possession of one of the murder weapons
four days after the murder.
As instructed by this court in the order granting Petitioner’s request for rehearing,
both parties cite and address the applicability of State v. Joseph Bernette Driver, No.
M2011-00536-CCA-R3-CD, 2012 WL 3776671 (Tenn. Crim. App. Aug. 31, 2012). In that
case, the defendant challenged his conviction for facilitation of aggravated robbery as a
lesser-included offense of aggravated robbery. Specifically, the defendant asserted that the
evidence was not sufficient that he had knowledge of the robbery or that he substantially
assisted the robber. In that case, as in the present case, there was evidence at trial that
another individual who was never apprehended was involved in the commission of the
offense. A panel of this court held that the jury could have reasonably concluded, based on
evidence of another individual, that the defendant facilitated the robbery. This court stated
in that opinion,
As an initial matter, this Court distinguishes the facts in Parker from those
in this case. In Parker, the proof did not support one of the elements
required to sustain a second degree murder conviction. Here, as outlined
in detail below, the evidence is sufficient to support the jury’s finding that
the Defendant’s actions satisfied the elements of facilitation of aggravated
robbery, even if some of the proof presented is inconsistent with an element
or elements of facilitation. Inconsistent evidence, which may be rejected
by a jury, is not synonymous with insufficient, or a lack of, evidence of an
element.
Driver, 2012 WL 3776671, at *9. (Emphasis added).
We conclude that the evidence was sufficient in this case to sustain Petitioner’s
conviction for facilitation of first degree murder.
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Ineffectiveness of counsel
“To establish ineffective assistance of counsel, the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). In evaluating whether the
petitioner has met this burden, this Court must determine whether counsel’s performance
was within the range of competence required of attorneys in criminal cases. See Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn.1975).
The principles for determining the effectiveness of counsel at trial and on appeal are
the same in a post-conviction proceeding. See Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995). A petitioner alleging ineffective assistance of appellate counsel must proof
both that 1) appellate counsel was objectively unreasonable in failing to raise a particular
issue on appeal, and 2) absent counsel’s deficient performance, there was a reasonable
probability that the petitioner’s appeal would have been successful before the state’s highest
court. See Smith v. Robbins, 528 U.S. 259, 285 (2000).
Appellate counsel is not constitutionally required to raise every conceivable issue on
appeal. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). The decision as to which
issues to raise on appeal is generally within appellate counsel’s discretion and “should be
given considerable deference . . . if such choices are within the range of competence
required of attorneys in criminal cases.” Id.
Because we conclude that the evidence was legally sufficient to support Petitioner’s
conviction on appeal, we cannot therefore conclude that appellate counsel’s performance
was deficient for failing to challenge the sufficiency of the evidence. Furthermore,
Petitioner could not have been prejudiced by counsel’s performance, even if it was deficient,
where he would not be entitled to relief on appeal had appellate counsel raised the issue.
Therefore, Petitioner is not entitled to relief.
CONCLUSION
The judgment of the post-conviction court is affirmed.
_________________________________
THOMAS T. WOODALL, JUDGE
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