Alvin Green v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 12, 2011
ALVIN GREEN v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 03-08074 J. Robert Carter, Jr., Judge
No. W2010-01614-CCA-R3-PC - Filed October 11, 2011
The petitioner, Alvin Green, filed for post-conviction relief from his convictions for
aggravated kidnapping and attempted aggravated robbery and resulting effective sentence
of forty-six years, contending that he received ineffective assistance of counsel. The post-
conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm
the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.
Vicki M. Carriker, Memphis, Tennessee, for the appellant, Alvin Green.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffery D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and David Zak, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
At trial, Patricia and Marion Gelston testified that the petitioner came to their house
under the pretext of inquiring about a car they had for sale. State v. Alvin Green, No.
W2007-00570-CCA-R3-CD, 2008 WL 2115363, at *1 (Tenn. Crim. App. at Jackson, May
19, 2008). While the petitioner was at the residence, the Gelstons’ son, Mark Berretta, came
to the house. Id. at *2. The petitioner pointed a gun at the Gelstons and Beretta. Id. The
petitioner apologized for his behavior but said he needed the money. Id. The petitioner made
Mrs. Gelston walk outside so she could drive her car to the bank to withdraw $7,000 from
the Gelstons’ bank account. Id. However, before Mrs. Gelston could leave, a SWAT team
apprehended the petitioner outside of the Gelstons’ house. Id. A detective testified that after
the petitioner was in jail, he overheard a telephone conversation in which the petitioner said
he wanted the victims killed and negotiated to have the killings committed for $10,000. Id.
In his defense, the petitioner testified that he had been a drug courier for a number of years
but that he wanted to stop. Id. at *3. He said his “superiors” told him that he needed to “‘buy
[his] way out’” of the drug business by making payments of $5,000 to $20,000 per month.
Id. When he was unable to make a payment, three individuals, whom he would not identify,
told him that his family would be harmed if he did not rob the Gelstons. Id. After hearing
the foregoing proof, the jury found the petitioner guilty of three counts of especially
aggravated kidnapping and two counts of attempted aggravated robbery, for which he
received a total effective sentence of forty-six years. Id. at *1.
Thereafter, the petitioner filed a petition for post-conviction relief. He alleged, in
pertinent part, that his trial counsel was ineffective by failing to advise the petitioner that he
could receive consecutive sentencing if convicted at trial and for failing to adequately present
mitigating evidence at sentencing. He also alleged that counsel “failed to prepare himself
and petitioner for the possible admission of evidence of pending solicitation [of murder]
charges.”
At the post-conviction hearing, the petitioner’s trial counsel testified that he was
appointed to represent the petitioner in the especially aggravated kidnapping and aggravated
robbery case. He also represented the petitioner on a subsequent charge of solicitation to
commit murder which was pending at the time of the petitioner’s trial. Counsel said that he
had ample time to prepare for the petitioner’s trial.
Trial counsel said that he received discovery and reviewed it with the petitioner.
Counsel stated that during plea negotiations, the State offered a minimum sentence of thirty-
one years. The petitioner told counsel that he would consider accepting a twenty-year
sentence, but an agreement was never reached and the case proceeded to trial. Trial counsel
said that he thoroughly discussed with the petitioner the sentences he was facing for each
offense charged in the indictment, including the risk of consecutive sentencing.
Counsel said that the petitioner admitted he committed the offenses but maintained
that he acted under duress. Counsel acknowledged that he advised the petitioner that a
defense of duress was rarely successful because it was difficult to prove. However, counsel
said that it was the only viable defense because the petitioner was “caught on the scene . . .
red handed.” Counsel had Dr. Angelillo do a mental evaluation of the petitioner to show that
the petitioner sought to please others and was easily pressured by others. Counsel said that
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the night or the weekend before trial, Dr. Angelillo kind of
backed off his statements and felt – and stated that he felt that
the defense was not going to be successful and he was very
uncomfortable on testifying on that point, so we did not call him
in the trial, but he did testify in the sentencing hearing.
Counsel said that Dr. Angelillo’s absence left the defense with no medical testimony
and no witnesses. Trial counsel recalled that the petitioner never disclosed the identity of the
individuals who allegedly forced him to commit the crimes. Additionally, other potential
witnesses either did not want to testify or knew nothing that would help the defense. Counsel
advised the petitioner that he could subpoena the witnesses, but the petitioner refused.
Accordingly, the defense was limited to the petitioner’s testimony.
Counsel stated that the petitioner’s solicitation to commit murder charges resulted
from the petitioner’s attempt to have the victims of the kidnapping and robbery offenses
killed. Counsel said that he and the petitioner discussed the possibility that the solicitation
charge might be admitted, and he kept the petitioner advised of the developments. Counsel
filed a motion in limine to prohibit the State from introducing proof of the solicitation during
the trial on the kidnapping and robbery charges. Counsel said that the State initially said that
it would not be presenting evidence of the solicitation. However, the second morning of trial
the State filed a motion to introduce evidence of the solicitation based upon comments trial
counsel made during voir dire and opening statement. Counsel objected, but the trial court
overruled the objection. Counsel said that he had one night to review the tapes of the
petitioner’s conversation and develop a strategy to deal with them. Counsel said that he
pointed out to the jury that the person speaking with the petitioner raised the issue. Trial
counsel raised the issue of the admissibility of the solicitation in the motion for new trial and
on appeal.
Counsel said that the petitioner testified regarding his version of the offenses.
Petitioner admitted that he had been a drug courier for fourteen years and said that when he
tried to stop, his drug bosses threatened him and made him rob the victims to get money.
Counsel said the petitioner’s version of events failed to explain a twenty-four-hour time
“gap,” and counsel advised the petitioner that he could be cross-examined about his activities
during this time. The petitioner testified that during that time period “he was on the side of
the road asleep.” Counsel opined that the petitioner’s explanation “threw a dent in the
imminent threat of a duress defense.” Before the petitioner testified, counsel had advised
him that the State would be able to cross-examine him and point out problems with his
version of events.
Trial counsel said that Dr. Angelillo’s main purpose at the sentencing hearing was to
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raise the issue of the petitioner’s level of culpability. Counsel said that the petitioner was
intelligent, had a college education, and had a job involving computers. Trial counsel said
that he could not think of anything that he would have done differently in his representation.
The petitioner testified that counsel reviewed discovery with him and that he
understood “everything that was going on with the case.” The petitioner said that he was
evaluated by Dr. Angelillo and was prescribed Seroqil. The petitioner said that around the
time of the evaluation, he was charged with solicitation of murder. The petitioner thought
the solicitation charge would be tried before the kidnapping and robbery charges.
The petitioner said that he gave counsel the names of witnesses but that the witnesses
did not want to testify. The petitioner acknowledged that he and counsel talked about
consecutive sentencing prior to trial. The petitioner said that he did not “see any
enhancement factors” and that he thought some positive aspects in his life would serve to
mitigate his sentence. Therefore, the petitioner believed the longest sentence he would
receive was twenty-five years. Accordingly, he refused the State’s plea offer of thirty-one
years, believing “he had nothing to lose.”
The petitioner said that he had a bachelor of science degree in mathematics and a
master’s degree in computer science. He said that he had a history of employment from 1985
to the time of his arrest that was not adequately reflected on the presentence report. The
petitioner acknowledged that he “ran drugs” for fourteen years; however, he said that he also
had “real job[s]” during that time and that he did not run drugs “all the time, constantly, like
it’s being implied.” The petitioner said that counsel should have verified his employment.
When asked if trial counsel could have done anything differently to obtain a different verdict,
the petitioner responded, “[A] different verdict, maybe not, but the sentencing I thought was
unreasonable.”
The post-conviction court denied the petition, finding that the petitioner failed to
establish that his counsel was ineffective. The post-conviction court noted that the petitioner
acknowledged that counsel discussed consecutive sentencing with him. Additionally, trial
counsel said that he talked with the petitioner about the possibility of receiving consecutive
sentencing at trial. Regarding the admission of the solicitation charges, the post-conviction
court said that trial counsel filed a motion in limine to keep out evidence of the solicitation
and objected to the admission of the evidence at trial. Additionally, counsel raised the issue
in the motion for new trial and on direct appeal. The post-conviction court said that counsel
was prepared to address the issue at trial. Therefore, the court found that counsel adequately
argued against the admission of the solicitation and was prepared to cross-examine the
witnesses once the evidence was admitted. The court found that the petitioner was intelligent
and, after being informed that counsel filed a motion in limine to keep out evidence of the
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solicitation, should have been aware of the risk of the evidence being admitted at trial.
Finally, the post-conviction court said that “[a]lthough the Petitioner’s presentence report
may not have obtained as much depth and investigation into the Petitioner’s work history as
the Petitioner would have liked, there is no evidence that this lack of depth prejudiced the
Petitioner’s length of sentence.” On appeal, the petitioner challenges the post-conviction
court’s ruling.
II. Analysis
To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of 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 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the
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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 [petitioner] makes an
insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the petitioner complains that the post-conviction court should have found
that his trial counsel was ineffective by failing to advise the petitioner that he could receive
consecutive sentencing if convicted at trial, for failing to prepare for the possibility of the
solicitation of murder charges being introduced at trial, and for failing to adequately present
mitigating evidence at sentencing.
The post-conviction court correctly noted that the petitioner and trial counsel both
testified that they discussed the possibility of consecutive sentencing. The post-conviction
court found that the petitioner was adequately advised regarding consecutive sentencing.
Additionally, the post-conviction court accredited counsel’s testimony that he made every
attempt to keep evidence of the solicitation from being introduced during trial, filing a
motion in limine, objecting to the evidence at trial, and raising the issue in a motion for new
trial and on direct appeal. The post-conviction court said that counsel was prepared to deal
with the issue. Finally, the post-conviction court noted that the petitioner acknowledged that
he was a drug courier for fourteen years and that his involvement in the drug trade eventually
led him to commit the kidnapping and robbery offenses. The post-conviction court stated
that, given the lengthy nature of the petitioner’s involvement with drugs, any additional
evidence regarding the petitioner’s legitimate work history would have had no effect on his
sentencing. Upon our review of the record, we conclude that the evidence does not
preponderate against the post-conviction court’s findings.
III. Conclusion
In sum, we conclude that the petitioner failed to establish that his counsel was
ineffective. Therefore, we conclude that the post-conviction court did not err in denying
post-conviction relief.
_________________________________
NORMA McGEE OGLE, JUDGE
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