Maurice Pierre Teague v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 8, 2002 Session
MAURICE PIERRE TEAGUE v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Carroll County
No. 98CR-1212 Julian P. Guinn, Judge
No. W2001-00533-CCA-R3-PC - Filed February 26, 2002
The petitioner was convicted of possession of a controlled substance with intent to sell, and his
conviction was affirmed on direct appeal. In his petition for post-conviction relief, he asserted that
trial counsel was ineffective. The post-conviction court dismissed the petition, following a hearing.
We affirm the order of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G. RILEY,
JJ., joined.
Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Maurice Pierre Teague.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Robert G. Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The petitioner was convicted in the Carroll County Circuit Court of possession of a
controlled substance with intent to manufacture or sell and sentenced as a Range I standard offender
to confinement for ten years and a fine of $10,000. The conviction was affirmed upon direct appeal
to this court, and application for permission to appeal was denied. See State v. Maurice Pierre
Teague, No. 02C01-9806-CC-00187, 1999 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Feb.
26, 1999), perm. to appeal denied (Tenn. July 12, 1999). Subsequently, he filed a petition for post-
conviction relief, claiming that trial defense counsel was ineffective in the following ways:
I. Failing to interview and/or properly prepare witnesses;
II. Failing to investigate and/or subpoena and/or call needed or
desired witnesses;
III. Failing to call and impeach or implicate adverse witnesses,
accomplices or co-defendants;
IV. Failing to request/move for separate trials to timely allow
codefendant testimony, or impeachment and implication by Fifth
Amendment plea;
V. Failing to make/request discovery, or make/request effective
discovery;
VI. Failing to fully advise Petitioner of potential
charges/convictions/sentences so that Petitioner cold evaluate benefits
of negotiated guilty plea compared to hazards of unsuccessful trial;
VII. Failing to advise legal ramifications and trial impact of co-
defendant status, guilty pleas and sentences; and
VIII. Failing to advise of legal ramifications and trial impact of
agreeing to stipulations as to drug amount and/or not so stipulating. 1
Based upon our review, we affirm the judgment of the post-conviction court.
In our opinion following the direct appeal of the petitioner’s conviction, the evidence was
set out:
On the afternoon of October 16, 1997, Sergeant Johnny Hill of
the Huntingdon Police Department received information regarding
drug activity at a mobile home on Highway 22 South in Huntingdon.
As a result of this information, the officer believed LaVeta King and
Maurice Pierre Teague were in possession of drugs and their names
were listed on a search warrant. Officer Hill had observed the
appellant at this residence upon previous occasions. Thereafter, the
officers observed the home for four hours before executing a search
warrant upon the residence of LaVeta King. During this four hour
period, the officers maintained surveillance of the only access road
leading to her residence. They observed no vehicles traveling the
road. Upon executing the warrant, Officer Kevin Brown of the
Carroll County Sheriff’s Office entered the residence first. Sergeant
Hill followed closely behind.
1
Since Issues IV and V are not discussed in the appellate brief, they are waived. See Tenn. R. App. P. 27;
Tenn. Ct. Crim. A pp. R. 10(b).
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Upon entering the residence, the officers discovered three
people in the living room including LaVeta King. Officer Brown
proceeded to process those individuals. Officer Hill immediately
went toward the bedroom to the right. The appellant was standing in
the door of the bedroom just three feet away from the bed. Two other
men, Lawrence Sherrill and Danny Ellis, were in the same room.
Officer Hill observed money totaling $330 and two pagers on the bed.
Three other pagers, a loaded pistol, ammunition, and several items of
male clothing were also found elsewhere in the residence. All of
these items remain unclaimed. The three men, including the
appellant were searched. The officer removed a rock of crack cocaine
weighing approximately one-tenth of a gram from the hand of the
appellant and also removed money from his pockets. After searching
the room, “immediately under the bed by where Mr. Teague
[appellant] was standing there was a plate ... [containing]
approximately twenty-two grams of crack cocaine.” The plate
contained one large rock of cocaine and several smaller rocks. It
appeared to the officer to have been pushed under the bed hurriedly
because other smaller rocks were recovered from the floor beside the
plate. The appellant was the only person in the residence with
cocaine found on his person. Officer Hill estimated the street value
of the cocaine to be between four and six thousand dollars.
Following the proper procedures for chain of custody, a forensic
scientist with the TBI identified the substances turned over to her as
cocaine.
The defense called Aaron Dudley, Jr., the uncle of the
appellant. Dudley stated that on the date of the offense that the
appellant lived with him in McKenzie. Upon cross-examination,
Dudley testified that the appellant stayed with him “off and on.” The
appellant spent a considerable amount of nights away from his
uncle’s home. He was aware that the appellant and King had
maintained a relationship with each other prior to this incident.
Dudley was impeached with a prior conviction of sale of cocaine.
LaVeta King testified that she and the appellant were no longer
romantically involved on the date of this occurrence. She stated that
the appellant was at her residence “every now and then.” When the
police arrived, she was sitting on the couch in the living room. The
appellant was in the bedroom located adjacent to the living room.
King never saw the appellant selling any drugs. Upon
cross-examination, King stated that Casey Scott was living with her
at the time. She acknowledged that men’s clothing was found in her
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residence, however, she did not know to whom it belonged. She
stated that the appellant had only been at her mobile home five or ten
minutes when the police arrived with the warrant. She did not know
how he arrived at her home. She had no idea what the men were
doing in her bedroom for thirty minutes nor did she know anything
about the large amount of crack cocaine, pagers, or money found
therein. She admitted that she had previously pled guilty to a charge
in this case.
Kenneth Sherrill, a friend of the appellant, testified that he was
one of the six people arrested at King’s home that evening. He had
also previously pled guilty to charges arising from this occurrence.
He reiterated that the appellant lived with his uncle. He never saw the
appellant sell any drugs. He stated that he had only been at King’s
residence for three minutes when the police arrived. When the police
entered he was in the living room visiting with King. He was
unaware that his brother Lawrence Sherrill was there until the police
brought him out of the bedroom.
The appellant testified that he had never lived with King. At
the time of the arrest, he and King were “broken up.” He stated that
[he] would visit her once or twice a week and spent the night there
“sometimes.” He provided that he never kept any clothing or
personal effects at her residence. He testified that Ellis was returning
King’s car and he went along for the ride to see Lawrence Sherrill.
He admitted to buying a rock of crack cocaine for $15 while in the
bedroom. While he admitted to misdemeanor possession of cocaine,
he denied selling cocaine or any knowledge of the large rock of
cocaine under the bed. He denied that the money and pagers on the
bed belonged to him.
The State impeached the appellant with two prior convictions
including a theft of property and an aggravated burglary. The
appellant admitted to driving King’s car after their relationship had
ended. Furthermore, he admitted that he had several girlfriends and
would stay with each of them. He stated that he worked for Republic
Doors from August until September, however, he was unemployed
during the month of October. He related that his mother, uncle, and
girlfriends provided financial support for him throughout this period.
The appellant stated that he bought the rock of crack cocaine from
Lawrence Sherrill and that he and Ellis were going to share it.
Teague, 1999 Tenn. Crim. App. LEXIS 174, at *1-7 (footnote omitted).
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ANALYSIS
In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The U.S. Supreme Court articulated the standard in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is widely
accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s assistance
was defective. The standard is firmly grounded in the belief that counsel plays a role that is “critical
to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The
Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:
In any case presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances. . . . No particular set of detailed
rules for counsel’s conduct can satisfactorily take account of the
variety of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal
defendant.
Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
As for the prejudice prong of the test, the Strickland Court stated: “The defendant 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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).
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Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,
104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).
By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. § 40-30-
210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for relief,
therefore all factual allegations must be presented in one claim. See Tenn. Code Ann. § 40-30-
206(d) (1997).
We note that when post-conviction proceedings have included a full evidentiary hearing, as
was true in this case, the trial judge’s findings of fact and conclusions of law are given the effect and
weight of a jury verdict, and this court is “bound by the trial judge’s findings of fact unless we
conclude that the evidence contained in the record preponderates against the judgment entered in the
cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The reviewing court must
indulge a strong presumption that the conduct of counsel falls within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless those choices were uninformed
because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact
that a strategy or tactic failed or hurt the defense does not alone support the claim of ineffective
assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn. Crim. App. 1997).
Finally, a person charged with a criminal offense is not entitled to perfect representation. See
Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained in State v. Burns, 6
S.W.3d 453, 462 (Tenn. 1999), “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”
Trial defense counsel presented three witnesses, in addition to the petitioner. Aaron Dudley,
Jr., testified that the petitioner did not live at the place where he was arrested. LaVeta Shanelle
King, who lived in the house where the arrest occurred, testified that the petitioner did not live there,
and Kenneth Edward Sherrill also testified that the petitioner did not live at the place where he was
arrested. At the post-conviction hearing, the petitioner testified that he had requested his trial
counsel to call Danny Ray Ellis and Lawrence Sherrill as witnesses at the trial. Both of these
witnesses testified at the post-conviction hearing.
Danny Ray Ellis testified at the hearing that he had been arrested at the same time as the
petitioner and had later pled guilty to “possession of drugs with the intent to sell or manufacture.”
He said that he had been one of the two other persons in the room with the petitioner at the time of
the arrest, and that the petitioner was there to buy drugs for his personal use. He said that he had
neither been interviewed nor called to testify by trial defense counsel but that, if he had, his
testimony would have been as he had testified at the post-conviction hearing.
During cross-examination, Ellis testified that he had also gone to the trailer to buy drugs and
gave his assent after being asked if he was buying drugs from the petitioner’s girlfriend, LaVeta
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King. When asked by the court whom the drugs belonged to, Ellis said that “[i]t could have been
several people.” As for whom he paid for the drugs, Ellis testified, “I didn’t pass any money at the
time.” He said that he did not see the petitioner pay anyone.
Lawrence Sherrill testified at the post-conviction hearing that he had been in the bedroom
of the trailer where he was arrested with the petitioner and Danny Ray Ellis. He said that he had pled
guilty to felony possession of cocaine. He testified that the petitioner had bought from him a $20
rock of cocaine, which was a small amount, and that the rest of the cocaine in the room belonged to
him. When asked if he had been interviewed by the petitioner’s trial counsel, he responded, “Naw,
not that I know of.” However, he said that he would have testified if a subpoena had been served
on him. He said that, at the time of the arrest, he had not been asked whom the cocaine belonged
to. He said that, in addition to his conviction for possession of cocaine occurring at the same time
the petitioner was arrested, he also had been convicted of introducing contraband into a penal
institution.
Trial defense counsel testified at the post-conviction hearing that he had discussed trial
strategy with the petitioner, including whom to call as witnesses. They decided to call Dudley to
establish that the petitioner was neither the owner nor the renter of the residence. LaVeta King was
called to testify to show that she lived at the residence and the petitioner did not, and, further, that
she did not see the petitioner with cocaine on the day of his arrest. Counsel said that he and the
petitioner had discussed calling Kenneth Sherrill as a witness and that he had been called to “state
the facts,” counsel believing that he would communicate well to the jury.
Counsel believed that he and the petitioner had discussed whether to call Danny Ray Ellis
and Lawrence Sherrill as witnesses, and they considered the effect of the criminal record of each.
He said that they had discussed the effect of presenting too many witnesses and problems resulting
from a “bunch of witnesses who either can’t communicate or cannot believably describe the
situation, or have, maybe have, a long record, that a jury may not connect with them.”
He said that he could not remember, for certain, whether he had interviewed Danny Ray Ellis
but believed that he had interviewed Lawrence Sherrill, and said that he had known him before. He
said that he had known Ellis and Sherrill had pled guilty to charges against them as the result of the
incident when the petitioner was arrested. The petitioner had the final voice as to whom would be
called as a witness in his behalf. But, his trial counsel did not feel that Lawrence Sherrill would
make a good witness:
I had recommenced that we not use Lawrence Sherrill. I ah,
Lawrence Sherrill, to me, would not have made a good witness. He
comes across in a manner that ah, to me doesn’t connect with a jury.
And of course, like I said, everything that we did was based on our
corroboration. We talked together, and we decided who to call. And
Lawrence Sherrill would not have made a good witness, I don’t – I
still believe that.
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Counsel said that he and the petitioner had talked about the fact that, since Ellis and
Lawrence Sherrill had pled guilty to felony possession of cocaine, the jury might believe that the
drugs belonged to them if, apparently, they testified. However, counsel explained that “credibility
of witnesses . . . played a big role in our decision[.]” He said that Lawrence Sherrill came across
“rather smart aleck,” that he “smiled a lot and joked,” and that he “came across, always, as a
jokester.” Counsel said he was “sure” that he had asked Lawrence Sherrill if the bulk of the cocaine
was his, and that Sherrill’s response was consistent with their defense, that the petitioner had come
to the trailer only to purchase drugs. He said that although it was possible that the jury would have
found Ellis and Sherrill credible, he thought it was a “very, very slight possibility,” and that, in
presenting numbers of witnesses, “sometimes less is better than more.” He disagreed that the
petitioner had asked that Lawrence Sherrill be called as a witness, saying that of those persons whom
the petitioner wanted to testify, only Danny Ray Ellis was not called.
A letter which the petitioner had sent to counsel, and which was dated April 4, 1998, was
made an exhibit to counsel’s testimony. In the letter, the petitioner had set out whom he wanted to
testify and what he expected the testimony of each to be:
LaVeta King This is my ex-girlfriend whose residence it was and
who sent for me to come and pick up my clothes. I feel she can tell
you whose drugs was found.
Kenneth Sherrill This is who said that the firearm that was found
belonged to him.
Danny Ray Ellis This is who my ex-girlfriend sent to pick me up
from my resident [sic] in McKenzie [and] I believe he knows to
whom the drugs belong also.
Arron [sic] Dudley This is who I live with and he can confirm that
I was at home all that day until Danny pick [sic] me up shortly before
the raid.
As for presenting Aaron Dudley, whose trial testimony the petitioner criticized at the post-
conviction hearing, trial counsel said, apparently, that he had talked “briefly” with Dudley and
interviewed him on the telephone. He did not believe that he was aware of Dudley’s felony cocaine
conviction. Counsel agreed that it might have been better to call the petitioner’s aunt as a witness,
rather than his uncle, but they had never talked about calling the aunt, and counsel had “called the
witnesses that [he and the petitioner] had discussed.”
Counsel explained why Kenneth Sherrill had been presented as a witness:
The main reason was that Mr. Sherrill, at the time, he was
present, ah, he could speak well. He had a good command of the
language. He was there; he knew, and told me that he knew, that he
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never saw Mr. Teague with any cocaine. That was a large amount of
cocaine. Ah, someone present at the home, ah, surely would have
noticed, or we would have liked the jury to think, that they would
have noticed someone bringing that in the house.
Also, at the time, well prior to that, there was also a gun charge
that was subsequently dropped, before the trial. And Mr. Sherrill had
told me that he knew that that wasn’t Mr. Teague’s gun. And so, he
had ah, facts that he knew, and he was present. And he presented
himself well, and we just needed a good witness.
Regarding a possible plea agreement by the petitioner to the charges, counsel said that he had
“wanted to negotiate,” but that “Mr. Teague wouldn’t negotiate, because he said he was on probation
and would be violated if he pled guilty. So basically ah, entering into a plea, in his mind was out
of the question.” Counsel said he believed that a plea agreement for the petitioner “would have been
very similar” as that offered to the other defendants, but that he had not discussed it “for a great
length of time with the DA” because the petitioner “was adamant that he couldn’t plead, because he
was on probation.”
Trial counsel said that he had not filed a motion to suppress the evidence seized at the trailer
because, since the petitioner did not live there, he did not have standing to raise such a motion. He
said that he was “sure” he had told the petitioner that he did not know the identity of the informant
for the search warrant.
Following the hearing on the petition for post-conviction relief, the court entered written
findings of fact and conclusions of law:
The petitioner seeks to set aside his conviction for possession
of cocaine in excess of .5 grams with the intent to sell upon the
grounds of ineffective assistance of counsel. This court finds no
grounds for relief.
Following sentencing an appeal was pursued upon the sole
issue of sufficiency of the evidence. The conviction was affirmed on
February 26, 1999.2 Petitioner now raises the same issue, but couches
it in such language as to charge trial counsel with ineffectiveness.
Specifically, petitioner contends that the verdict in his case “could”
have been different had trial counsel called certain witnesses and,
perhaps, not presented another witness who did testify at the trial.
Additionally, he questions a failure to contest the search of the
premises that gave rise to his charges. As to the latter, the petitioner
2
No. 02C01-9806-CC-00187; p.t.a. den. 7/12/99.
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clearly establishes that he had no standing to challenge the questioned
search.
Petitioner contends that two co-defendants, Danny Ray Ellis
and Lawrence David Sherrill, if called, would have testified that he
merely possessed controlled substances, but did not possess them
with the intention of sale. The decision not to call these witnesses at
trial was a joint decision made by counsel and the petitioner
following proper discussion. Assuming that these witnesses would
have testified at the trial as they did in this proceeding, the decision
not to call them was and remains a wise decision. Quite simply
stated, these witnesses are unbelievable under any circumstances,
even if one chooses to ignore their criminal history. Lastly, counsel
is charged with ineffectiveness for having called one Aaron Dudley,
Sr. because of his criminal history and the manner in which he
presented his testimony. This witness was called in an attempt to
establish petitioner’s residence, an important facet of his defense
theory. The witness testified as anticipated, but also revealed that the
petitioner was on parole for a prior felony conviction. As with the
witnesses, Ellis and Sherrill, the calling of the witness Dudley was
agreed upon only after discussion with the petitioner. It is impossible
to weigh the effect of this witness’s testimony on the jury; however,
the overall significance of his testimony pales considerably in view
of the other overwhelming evidence of guilt produced by the state.
A number of other grounds are raised in the amended petition;
however, no evidence has [been] brought forward addressing those
allegations. More importantly, there is nothing to be found anywhere
in the record that would remotely suggest that trial counsel’s
performance was deficient in any manner.
We will now consider the specific claims raised on appeal by the petitioner.
I. Failure to Prepare Trial Witness Aaron Dudley
The petitioner argues that his trial counsel was ineffective in presenting witness Aaron
Dudley at the trial. Dudley was called as a defense witness to testify that the petitioner lived with
him, rather than at the residence where the petitioner was arrested. The specific exchange, occurring
during cross-examination, between Dudley and the prosecutor of which the petitioner complains is
as follows:
Q. Mr. Dudley, how long are you alleging that Mr. Teague lived
with you?
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A. From the time they released him from prison.
Q. When was that?
A. Oh, September, August. I’m not for sure what date when they
released him.
Q. And how long did he live with you?
A. Up until he got arrested.
Q. Would that be October 16th?
A. I guess.
....
Q. Did he have a room by himself over there?
A. Yes.
Q. Okay.
A. His parole officer come in and inspected the house before he
even let him out.
Q. Okay; who was that?
A. Treet or Tree, or some – Darrell Treet or Darrell Tree.
Q. Inspected your house?
A. Yes.
Q. Now, Mr. Dudley, do you have a criminal record?
A. Yes, I do.
Q. What is your criminal record?
A. For the sale of crack cocaine to an undercover police officer.
Q. Okay; you pled guilty to that, did you not?
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A. Yes, I did.
Q. Do you remember the year you pled guilty to it?
A. ‘94 or ‘95, somewhere.
Q. Would it be November the 21st, –
A. I’m not – I don’t–
Q. – 1994?
A. I didn’t plead guilty until January the 9th or 11th, somewhere
there. I pleaded guilty in front of this man here [indicating].
Q. But you did plead guilty to the sale of crack cocaine?
A. Yes, I did.
The petitioner argues that his trial counsel was ineffective in not filing a motion in limine to
prevent the jury from learning about his “prior bad acts, arrest record, convictions, and prison
sentences, etc.” Additionally, as to Aaron Dudley, the petitioner claims that his trial counsel was
ineffective because Dudley “admitted to a prior felony conviction of the same charge as defendant’s
present charge, occurring in the same court, and before the same judge.” The petitioner argues that
had his trial counsel “properly interviewed” Dudley, he should have considered not calling him, but
presenting the same information through another witness, such as Mrs. Dudley, who was available
to testify but did not have a felony conviction, as did her husband. The petitioner argues that, had
Mr. Dudley been properly prepared as a witness, he would not have testified as he did. First, as to
the complaint that trial counsel was ineffective for not filing a motion in limine to prevent the jury
from learning from Aaron Dudley of the petitioner’s convictions, the jury heard specifically of the
petitioner’s two convictions when he was cross-examined at the trial. We are unable to envision how
the petitioner was harmed by Mr. Dudley’s passing reference to the petitioner’s criminal past when
the petitioner was subject to cross-examination about these convictions when he testified.
We note first that the petitioner had asked, in his letter to trial counsel, that Aaron Dudley
be called as a witness. Further, we note that the specific responses about which the petitioner claims
were volunteered information which were only marginally responsive, if at all, to the question.
Legal lore abounds with stories of garrulous witnesses, as it appears that Mr. Dudley was. Since the
petitioner, we presume, was well familiar with his uncle, and asked in writing that he be called as
a witness to establish the petitioner’s place of residence, we cannot fault defense counsel for
complying with his client’s request. Additionally, we cannot presume, as petitioner argues, that trial
defense counsel could have curbed Mr. Dudley’s tongue simply by spending more time preparing
his testimony. As part of his claim, the petitioner argues that his aunt, rather than his uncle, should
have been called to testify as to his place of residence at the time of his arrest. However, his aunt
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did not testify at the post-conviction hearing. We cannot presume, as the petitioner asks, that her
testimony would have been more favorable than that of his uncle. As to complaints about Aaron
Dudley’s testimony, the post-conviction court observed that the petitioner, himself, agreed that
Dudley should be called as a witness and that the “significance” of his testimony “pales
considerably” in view of the other evidence. We agree with this conclusion.
II. Failing to Interview and Call Material Eyewitnesses
The petitioner argues that the testimony of “[Danny Ray] Ellis and [Lawrence] Sherrill is
very probative of the issues at defendant’s trial.” However, for purposes of our review, the question
is whether trial counsel was ineffective for not calling these witnesses to testify. Counsel testified
that both had poor demeanor, especially Lawrence Sherrill, as well as prior convictions. Counsel
further testified that the petitioner agreed that neither should testify at the trial and was, in fact, the
final voice on this matter. We note that Lawrence Sherrill was not on the list of witnesses that the
petitioner sent to trial counsel, although Ellis was listed. The post-conviction court, before which
both testified, found that “these witnesses are unbelievable under any circumstances.” Based even
upon our review of the transcript of the post-conviction hearing, it is apparent that the testimony of
these witnesses would have presented additional problems for trial defense counsel in view of their
testimony, which appeared to be less than forthcoming and appeared to create inconsistences among
the witnesses. Accordingly, we conclude that the record supports the conclusion of the court that
trial counsel was not ineffective.
III, VI-VIII. Failure to Advise Petitioner Regarding Possible Plea of Guilty,
Guilty Pleas of Codefendants, and Pretrial Stipulations
The petitioner lumps together several claims. He claims that his trial counsel did not advise
him of the effect of “agreeing to stipulations as to [the] drug amount,” of “potential
charges/convictions/sentences” so that he could evaluate the “benefits of [a] negotiated guilty plea
compared to [the] hazards” of a trial, and of the “legal ramifications and trial impact of co-defendant
status, guilty pleas and sentences.”
A. Stipulations
The petitioner’s complaint regarding stipulations is not entirely clear. At the post-conviction
hearing, the petitioner testified, apparently regarding the stipulations:
[Trial counsel] advised me to testify and own up to having it,
the one tenth of a gram, in my possession, and that I would do, that’s
what, that I would be responsible for. And in trial, in fact in trial,
when I went to trial and found guilty of – an appeal, it would, an
appeal court, that they would see it as being, having possession of
owning the drugs, one tenth.
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The opinion of this court on direct appeal, affirming the conviction of the petitioner, states
that “[t]he officer removed a rock of crack cocaine weighing approximately one-tenth of a gram from
the hand of the appellant and also removed money from his pockets.” Teague, 1999 Tenn. Crim.
App. LEXIS 174, at *3. However, in his petition for post-conviction relief, the petitioner apparently
denied that he had cocaine in his hand as the officer entered the room, saying that, had Lawrence
Sherrill testified, “[h]is testimony would have been that this petitioner did not have anything in his
hands when the officers arrived. The same for the other requested witness, co-defendnat [sic] Danny
R. Ellis.” We note that, at the trial, Tennessee Bureau of Investigation special agent forensic
scientist Sandra Jean Romanek testified, inter alia, that the smaller of the two cocaine samples
admitted into evidence weighed one-tenth of one gram.
Given this testimony, we do not understand the petitioner’s complaints regarding
stipulations. If he is claiming that his attorney stipulated as to the weight of the smaller sample, that
assertion does not appear to be true. If his claim is that his attorney was ineffective for convincing
him to “stipulate” that he had cocaine in his hand as the officers entered the room, we believe that
the petitioner has an unrealistic view of his trial options. Since the officer testified at the trial that
the petitioner had a rock of crack cocaine in his hand when officers entered the room, it appears that
admitting this was the case, but that he was the purchaser and not the seller of the cocaine, was one
of the petitioner’s least inculpatory options.
In determining whether defense counsel was ineffective, the test is not whether another
lawyer “might” have tried another defense which “might” have been successful. Rather, we evaluate
the objected-to conduct by ascertaining whether any competent counsel would have done as defense
counsel did. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (“[T]o show that
the [lawyer’s] conduct was unreasonable, a petitioner must establish that no competent counsel
would have taken the action that his counsel did take.”); Provenzano v. Singletary, 148 F.3d 1327,
1332 (11th Cir. 1998) (noting that conduct of counsel is unreasonable only upon a showing “that no
competent counsel would have made such a choice”).
We conclude, as was implicit in the findings of the post-conviction court, that the petitioner
has failed to establish that trial counsel was ineffective in agreeing to any “stipulations.”
B. Advice as to Charges/Convictions/Sentences
In this regard, the petitioner testified at the post-conviction hearing about the circumstances
under which he would have entered a plea of guilty:
Q. If [trial counsel] had told you you were going to get 10 years
and 10 thousand dollars, or you could have taken the guilty pleas that
the other gentlemen had taken, would you have made a different
decision about going to trial?
A. Yes, sir.
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Q. What did [trial counsel] tell you that your chances were on
going to trial?
A. He said I had, that I stood a good chance of being charged.
Q. And then if you had an appeal, that you’d probably . . .
A. It would be on the attorney.
This testimony contrasts with that of trial defense counsel who said that the petitioner
“wouldn’t negotiate” because a guilty plea would result in his probation for a previous conviction
being revoked. We note that he was cross-examined at trial about a 1996 conviction for aggravated
burglary and a 1991 conviction for theft of property, either or both of which could have been the
basis for his being on probation at the time of the instant offense.
The petitioner also argues that trial counsel testified that “he did not know what plea
agreements Ellis and Sherrill entered” and “did not know what plea agreement had been offered to
defendant.” The record does not support this assertion. Trial defense counsel testified at the post-
conviction hearing that he did not “recall” what sentences Ellis and Sherrill had received. His
testimony was only that, at the time of the hearing, he did not know what their sentences were, not
that he had never known. As for negotiating a plea agreement for the petitioner, trial defense counsel
said that he “didn’t get very far, because Mr. Teague wouldn’t negotiate” and that the petitioner was
“adamant that he couldn’t plead, because he was on probation.” Implicit in the post-conviction
court’s findings was that it accredited trial defense counsel’s testimony that the petitioner could and
would not consider a plea of guilty because it would result in the revocation of a probationary
sentence. We cannot conclude that the post-conviction court erred in this regard.
Based upon the record on appeal, which includes the transcript from the petitioner’s trial, it
is not at all clear that additional witnesses would have advanced his defense. Rather, discrepancies
and additional testimony could have exacerbated the petitioner’s problems. Officers testified that
they watched the trailer for four hours prior to executing the search warrant, and no vehicles came
or went during this period. Thus, although the petitioner claims that he was only purchasing cocaine,
he had devoted at least four hours to the transaction. However, LaVeta King testified that the
petitioner had been at her house for only “five or ten minutes” before officers executed the search
warrant. She said she did not know how he got to her house, although Danny Ray Ellis testified that
he had driven the petitioner there. When asked what the petitioner, Danny Ray Ellis, and Lawrence
Sherrill were doing in her bedroom when officers arrived, Ms. King said, “I don’t know.” She said
that she “would feel like that was being nosy” to see what they were doing in her bedroom. She said
that she had pled guilty to a charge resulting from the incident but did not recall what the charge was.
We cannot conclude that no competent attorney would have decided that the charges could
best be defended by proceeding as did the trial attorney in this matter. Thus, the record on appeal
supports the findings and conclusion of the post-conviction court.
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CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgment of the post-
conviction court dismissing the petition.
___________________________________
ALAN E. GLENN, JUDGE
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