Keith Lamont Brown v. State of Tennessee

12/01/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 5, 2021
KEITH LAMONT BROWN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Tipton County
No. 8805 Joe H. Walker, III, Judge
No. W2020-01268-CCA-R3-PC
A Tipton County jury convicted the Petitioner, Keith Lamont Brown, of delivery of 0.5
grams or more of cocaine, and the trial court sentenced him as a Range III, persistent
offender to twenty-five years of incarceration. The Petitioner appealed his convictions to
this court, and we affirmed the judgments. State v. Keith Lamont Brown a.k.a. “Kee Kee”,
No. W2018-00731-CCA-R3-CD, 2019 WL 2158103, at *6 (Tenn. Crim. App., at Jackson,
May 16, 2019), no perm. app. filed. Subsequently, the Petitioner filed a petition for post-
conviction relief, claiming that he received the ineffective assistance of counsel, which the
post-conviction court denied after a hearing. After review, we affirm the post-conviction
court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS, P.J. and ROBERT L. HOLLOWAY, JR., JJ., joined.
Bryan R. Huffman, Covington, Tennessee, for the appellant, Keith Lamont Brown.
Herbert H. Slatery III, Attorney General and Reporter; Kayleigh Butterfield, Assistant
Attorney General; Mark E. Davidson, District Attorney General; and Erik Haas, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Background
This case originates from the Petitioner’s participation in the sale of cocaine in a
controlled buy with a confidential informant for the Twenty-Fifth Judicial District Drug
Task Force in Covington, Tennessee, on February 25, 2016. Id. at *1. Based on these
events, a Tipton County grand jury indicted the Petitioner for delivery of 0.5 grams or more
of cocaine.
A. Trial
The following is a summary of the facts presented at trial:
Investigator Randal Robbins testified that Mr. Sean Browder, the
confidential informant, contacted him and identified the [Petitioner] as
someone from whom he could purchase drugs. Investigator Robbins and
Officer Tony Doss met with Mr. Browder prior to the drug transaction.
Investigator Robbins patted down Mr. Browder and had Mr. Browder empty
his pockets and turn them inside out. Investigator Robbins placed an
audio/video recording device on Mr. Browder’s person and gave him $ 150
in bills with recorded serial numbers to purchase drugs.
Investigator Robbins testified that Mr. Browder engaged in a text
message exchange with someone who was listed as “Key” in Mr. Browder’s
cell phone. Investigator Robbins stated that the [Petitioner] was known as
“KiKi,” and Officer Doss testified that he was aware that the telephone
number to which Mr. Browder sent text messages belonged to the
[Petitioner]. Mr. Browder sent the first text message to the [Petitioner] at
2:17 p.m., and the final text message from the [Petitioner] was received at
4:27 p.m. and stated, “My boy is meeting you. He’s there.” The drug
transaction occurred within five minutes of the final text message. Mr.
Browder sent screenshots of his text message exchange with the [Petitioner]
to Investigator Robbins.
Investigator Robbins stated that the [Petitioner] chose the location of
the drug transaction and directed Mr. Browder to multiple locations before
the drug transaction occurred. Investigator Robbins explained that drug
dealers often conduct “counter surveillance” by instructing a buyer to go to
multiple locations while someone who works for the dealer watches to ensure
no one is following the buyer. Mr. Browder was walking down Highway 51
during a portion of the text message exchange with the [Petitioner], and
Investigator Robbins and Officer Doss were able to maintain visual
surveillance of Mr. Browder. However, the officers were unable to maintain
visual surveillance of Mr. Browder once he began walking in a residential
area. Investigator Robbins maintained contact with Mr. Browder through
text messages and telephone conversations.
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At 4:15 p.m., Mr. Browder sent Investigator Robbins a text message,
stating that the [Petitioner] wanted to meet at Mr. Browder’s home. Mr.
Browder told Investigator Robbins that the [Petitioner] refused to meet in a
public setting. Investigator Robbins feared that the battery to the
audio/visual recording device attached to Mr. Browder was low, so he met
with Mr. Browder to replace the recording device. Shortly after Investigator
Robbins replaced the recording device, Mr. Browder contacted him and
stated that the [Petitioner] was sending someone to complete the transaction.
Investigator Robbins testified that to avoid arrest, drug dealers often have
others perform the “leg work.”
The video recording of the transaction showed a white sport utility
vehicle with two people inside drive up beside Mr. Browder, the passenger
hand Mr. Browder an item in clear wrapping while Mr. Browder gave the
passenger the money, and the vehicle drive away. Shortly after the
transaction, Investigator Robbins met with Mr. Browder, who turned over
the drugs that he had purchased. Investigator Robbins described the drugs
as “a white, chalky-like substance” wrapped in cellophane. A field test of
the substance indicated that the drugs were cocaine based. The drugs were
sent to the Tennessee Bureau of Investigation (“TBI”) for testing, and the
TBI confirmed that the drugs were cocaine based and weighed 0.81 grams.
Mr. Browder was paid $ 100 for his work as a confidential informant.
Investigator Robbins obtained the tag number of the white vehicle
involved in the drug transaction and learned that the vehicle was registered
to Mrs. Sandra Whittington and her husband. Investigator Robbins showed
a photograph of Mrs. Whittington to Mr. Browder, who identified her as the
driver of the vehicle. Mr. Sterling Brown was identified as the passenger.
The [Petitioner], Mrs. Whittington, and Mr. Brown were not arrested until
after they were indicted in November 2016. Mrs. Whittington and Mr.
Brown both gave statements to law enforcement following their arrests.
On cross-examination, Investigator Robbins testified that the arrests
did not occur until approximately nine months following the offense because
he wanted to continue to use Mr. Browder as an informant. Investigator
Robbins stated he also was involved in the investigation of a large drug case
in another county at the time. He continued to use Mr. Browder as an
informant for two or three weeks following the drug transaction. Mr.
Browder had been an informant for Investigator Robbins in the early 1990s
and began serving as an informant again around the beginning of 2016.
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Investigator Robbins acknowledged that the [Petitioner] was not in the video
recording of the drug transaction.
Mr. Sean Browder testified that he was incarcerated at the time of trial
but that he had not been made any promises in exchange for his testimony.
He had been convicted of theft offenses in May and November of 2007. He
worked as a confidential informant for Investigator Robbins on February 25,
2016, and was paid $ 100 for his work. Mr. Browder told Investigator
Robbins that he could purchase drugs from the [Petitioner] and met with the
investigator at approximately 2:00 p.m. to set up the drug transaction. Mr.
Browder testified that the [Petitioner] previously had given his telephone
number to Mr. Browder. Mr. Browder had the Defendant’s telephone
number stored in his cell phone under the name, “Key,” and he believed the
telephone number belonged only to the [Petitioner].
Mr. Browder sent a text message to the [Petitioner], asking to
purchase $ 150 in drugs. Mr. Browder testified that it was known that he
used crack cocaine. The [Petitioner] sent a text message, asking for Mr.
Browder’s location. At 2:25 p.m., Mr. Browder responded that he was
leaving Munford and that his boss was driving him home. Mr. Browder
testified that he was actually with Investigator Robbins, who dropped him
off in a parking lot. Mr. Browder and the [Petitioner] continued to exchange
text messages, and the [Petitioner] suggested that they meet at Subway,
which was located on Highway 51 and a few blocks from Mr. Browder’s
home. Mr. Browder sent a text message, instructing the [Petitioner] to call
when he was ready to complete the transaction.
When the [Petitioner] failed to contact him, Mr. Browder sent a text
message to him at 3:41 p.m., asking, “[W]hat’s up?” Mr. Browder received
a text message from the [Petitioner] asking for his location and the identity
of those with him. Mr. Browder responded with his location and stated that
he was alone. He received a text message from the [Petitioner], requesting
his home address. Mr. Browder provided his home address but attempted to
direct the drug deal away from his address because the officers would have
had difficulty monitoring the drug deal. The [Petitioner] refused to meet in
public. Mr. Browder sent a text message stating that he would meet the
[Petitioner] at Mr. Browder’s mailbox, and the [Petitioner] responded, “My
boy meeting you. He’s there.” Mr. Browder stated that he had assumed that
the [Petitioner] would be present for the drug transaction. As Mr. Browder
was walking down the road, a car pulled up, and he purchased drugs from
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the occupants. Mr. Browder did not recognize the occupants at the time of
the transaction. He then gave the drugs to Investigator Robbins.
On cross-examination, Mr. Browder testified that he had a problem
with drugs for approximately twenty years and had served as a confidential
informant on twenty or thirty occasions. He acknowledged that he
sometimes used the money he received as an informant to purchase crack
cocaine.
Mr. Browder explained that he communicated with the [Petitioner]
through text messages in order to maintain a record of their conversation.
Mr. Browder stated that he also spoke to the [Petitioner] briefly over the
telephone prior to the drug transaction regarding Mr. Browder's location.
Mrs. Sandra Whittington testified that she pled guilty to delivery of
0.5 grams or more of cocaine as a result of the drug transaction in the instant
case. She served four months in jail and was not incarcerated at the time of
the [Petitioner’s] trial. She denied receiving any special treatment in
exchange for her testimony at trial. She said she had been using cocaine for
approximately one year prior to the offense and had continued using cocaine
for three or four months after the offense. She purchased her drugs from the
[Petitioner], whom she knew as “KiKi.”
Mrs. Whittington testified that on the day of the offense, she went to
the [Petitioner’s] home because Mr. Brown was there and needed her to drive
him to work. Mrs. Whittington stated that the [Petitioner] offered her $40 in
drugs to drive Mr. Brown to a location to conduct a drug transaction. Mrs.
Whittington agreed, and the [Petitioner] told her where to go. She stated that
Mr. Brown’s job was to hand the drugs to the purchaser. When Mrs.
Whittington and Mr. Brown arrived at the location, they met a man who
handed Mr. Brown money in exchange for the drugs. Mrs. Whittington
stated that Mr. Brown held onto the money until he could give it to the
[Petitioner]. Mrs. Whittington later received the drugs promised to her for
conducting the transaction. She was not present when Mr. Brown gave the
money to the [Petitioner], and she did not know what compensation Mr.
Brown received for his participation. She said she contacted law
enforcement officers following her arrest and provided a written statement.
On cross-examination, Mrs. Whittington testified that Mr. Brown was
like a son to her and was living with her in February 2016. She was aware
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that Mr. Brown was on probation for an unrelated offense at the time of the
drug transaction. She stated that she received an eight-year sentence as a
result of her guilty plea. She was incarcerated for four months following her
arrest and was released on probation on the day that she was sentenced.
Mr. Sterling Brown, who was also known as Mr. Sterling Dixon,
testified that he pled guilty to delivery of cocaine as a result of the offense.
He was on probation for an unrelated conviction at the time of the offense,
and his probation was subsequently revoked. He gave a statement to the
police regarding his participation in the offense following his arrest. He
stated that he was not made any promises in exchange for his statement but
that he was threatened with prison if he refused to provide a statement.
Mr. Brown testified that on the day of the offense, the [Petitioner],
who was his cousin, gave him a quantity of drugs and asked him to deliver
them. Mr. Brown stated that he was surprised by the [Petitioner’s] request
because the [Petitioner] had not made such a request previously. The
[Petitioner] informed him of the location of the drug transaction. Mr. Brown
stated that Mrs. Whittington drove him to the location where he gave a man
the drugs. Mr. Brown had met the man on a prior occasion but did not recall
the man’s name. He believed that the man gave him $ 80 for the drugs. He
understood that the money was to go to the [Petitioner], but he did not recall
whether he or Mrs. Whittington gave the money to the [Petitioner].
On cross-examination, Mr. Brown testified that he received a sentence
of seven months’ incarceration followed by probation. He believed that his
agreement to testify at the [Petitioner’s] trial was beneficial to him regarding
his sentence. Mr. Brown stated that he used the [Petitioner’s] cell phone on
occasion while at the [Petitioner’s] home but did not recall whether he used
the [Petitioner’s] cell phone on the day of the offense.
Brown, at *1-4. The jury convicted the Petitioner of the delivery of 0.5 grams or more of
cocaine, and the trial court sentenced him to serve twenty-five years as a Range III,
persistent offender to be served at forty-five percent. Id.B. Post-Conviction Proceedings
The Petitioner filed a petition for post-conviction relief, pro se, alleging that he had
received the ineffective assistance of counsel on numerous bases. Appointed counsel filed
an amended petition alleging, relevant to this appeal, that trial counsel (“Counsel”) was
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ineffective for failing to file a motion to suppress; seek a continuance; and for failing to
adequately prepare for trial.
The parties presented the following evidence at a hearing on the petition: The
Petitioner testified that he met with Counsel two or three times before trial, for about ten
minutes each time. They did not discuss the evidence against the Petitioner or the possible
witnesses to be presented at trial. The Petitioner recalled there being a discussion about a
video of the drug transaction but stated he was not depicted in the video. The Petitioner
stated that he was shown pictures of his text messages to the confidential informant.
Counsel told him that there was a “good chance of winning” his case, and they did not
discuss potential defenses or lesser-included offenses. Counsel told the Petitioner that he
was not guilty of delivery of drugs since he was not at the scene when the drugs were
delivered. According to the Petitioner, Counsel did not request a jury instruction on lesser-
included offenses or accomplice liability related to the other people involved in the
transaction.
The Petitioner maintained that he was innocent of the crime and that his guilt “boiled
down” to a telephone call from the confidential informant, which the Petitioner stated his
cousin answered without him knowing. The Petitioner stated that it must have been his
cousin who “made the [sale]” and that the Petitioner had no knowledge of it. The Petitioner
stated that, on the day of trial, the State produced a “fake document” from the Covington
Police Department detailing the Petitioner’s involvement in a prior domestic dispute. The
Petitioner testified that he was acquitted in the domestic case and that the evidence should
not have been presented at trial. The Petitioner testified that despite its surprise
introduction, Counsel did not move to suppress the document, although Counsel objected
to its introduction. The Petitioner wanted Counsel to investigate the document and seek to
suppress the evidence. He maintained that the outcome of his trial would have been
different if not for the document.
The Petitioner stated that the telephone number used to arrange the drug transaction
was not registered in his name. He stated that he and Counsel did not have much time to
prepare for trial and that Counsel did not possess the facts and information necessary to
represent him adequately.
On cross-examination, the Petitioner stated that he was released from jail while
awaiting trial and met with Counsel, however, he stated that most of the time Counsel was
not available. The Petitioner agreed that the two men did in fact meet at Counsel’s office.
The Petitioner agreed that Counsel gave him discovery materials. He agreed that he did
not provide Counsel with any witnesses’ names to contact. He agreed that Counsel had an
opportunity to cross-examine the two witnesses who were called and that they testified that
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the Petitioner had set up the transaction.
Regarding the “fake document,” the Petitioner testified that it was brought in to
show the jury that he had a prior domestic case. He agreed that Counsel objected to its
introduction but felt that Counsel’s effort was inadequate. As to the jury instruction, the
Petitioner testified that the jury should have been instructed on “accomplice testimony.”
Counsel testified that he represented the Petitioner at trial and, following their
discussions about what had occurred, Counsel felt they had a good position going into trial.
He recalled that the Petitioner’s cousin testified and, during cross-examination, his cousin
admitted to using the Petitioner’s telephone on the day of the transaction. Counsel stated
that he specifically wanted this information to come out at trial. The Petitioner’s cousin
also testified during cross-examination that he did not remember whether he had given any
money to the Petitioner for the drug transaction. Counsel argued to the jury that the
Petitioner’s cousin kept the money and, thus, without possessing the money or using the
telephone, the Petitioner had little or no culpability. Counsel recalled that the State was
using the theory of criminal responsibility to convict the Petitioner because they had no
evidence of his presence at the transaction or that he ever possessed the drugs.
Counsel could not recall how many times he had met with the Petitioner but believed
that it was more than two or three times. Counsel recalled reviewing the text messages
from the informant with the Petitioner, which he stated were “very important.”
Regarding the document from the Petitioner’s prior domestic case, Counsel recalled
that he did not move to suppress it because he did not have advance notice, but that he did
object to its introduction on more than one basis. Counsel recalled that the State introduced
the document, a report dated within a couple of months of the drug transaction, not to show
that the Petitioner had a prior domestic incident but to show that the telephone number in
the drug transaction belonged to the Petitioner. Counsel recalled that the State had other
proof of the Petitioner’s telephone number, particularly testimony of other witnesses who
were familiar with the Petitioner and testified that the telephone number was his. Counsel
agreed that the document’s introduction was prejudicial to the Petitioner’s case but not
necessarily inadmissible.
The post-conviction court issued an order denying the Petitioner relief and stating
the following:
1. [Counsel] failed to communicate and did not meet with Petitioner
sufficiently. [The] Petitioner testified that he hired [Counsel] to represent
him. He went by the office to meet with his attorney. He remembers meeting
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with [C]ounsel only a few times of about ten minutes each time. Counsel
told him that the State did not have good evidence against him. Counsel went
over the evidence, that it consisted of text messages and the actual drug
delivery was done by other people. Counsel discussed that the phone used
to set up the drug transaction was in [the] [P]etitioner’s name.
[The] Petitioner complains that he did not see the videos, however he
was not on the videos as the [S]tate did not allege [the] [P]etitioner was
present at the drug deal.
....
[The] Petitioner admitted that his theory of the case was brought out
at trial by [Counsel].
[The] Petitioner alleges his attorney was ineffective for allowing a
false document into the trial. However, he admits that his attorney objected
to the document and the court allowed the document.
[Counsel] testified that he met with [the Petitioner] multiple times and
presented his position at the trial. [Counsel] usually went to the office at 6
am and would often meet with [the] [P]etitioner at 6 am when the [Petitioner]
would be at the office. He used the witnesses suggested by the [P]etitioner,
including [the Petitioner’s cousin].
[The] Petitioner alleges [Counsel] was ineffective in allowing an
illegal document into evidence. [The] Petitioner admits that [C]ounsel
objected to the document used by the [S]tate. [Counsel] stated he was
surprised by the document, which was only used to show that the phone
number used at the drug deal was the phone number of the [P]etitioner. His
objection was overruled and the document allowed into evidence. And [the]
[P]etitioner did testify at the hearing that the phone number used in the drug
transactions (the same as on the document) was his phone number. So the
document did not present incorrect information.
....
The Court finds that the [P]etitioner received effective assistance of
counsel.
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The Court finds that the [P]etitioner has failed to establish the factual
allegations contained in his petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210.
The [P]etitioner has not shown that (a) the services rendered by
[Counsel] were deficient and (b) the deficient performance was prejudicial.
The [P]etitioner has not shown that the services rendered or the advice given
was below the range of competence demanded of attorneys in criminal cases.
The [P]etitioner has not shown that there is a reasonable probability that, but
for [C]ounsel’s deficient performance, the result of the proceeding would
have been different.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that, because he received the ineffective
assistance of counsel, the post-conviction court erred when it denied his petition. He
contends that Counsel was ineffective for failing to seek a continuance when a document
concerning alleged domestic abuse by the Petitioner was produced by the State at trial. He
further contends that he felt rushed to go to trial because Counsel had not adequately
prepared him for trial. The State responds that both of the Petitioner’s arguments fail
because the Petitioner has not shown how Counsel’s alleged errors amount to deficient
representation or how they prejudiced his case. We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2018). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2018). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and value
to be given their testimony and the factual issues raised by the evidence are to be resolved
by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s
conclusions of law, however, are subject to a purely de novo review by this Court, with no
presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
10
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] 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 [petitioner] by
the Sixth Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be
said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To
prevail on a claim of ineffective assistance of counsel, a petitioner must show that
“counsel’s representation fell below an objective standard of reasonableness.” House v.
State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at
690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must
be highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.
Finally, we note that a defendant in a criminal case is not entitled to perfect representation,
only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
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Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a
particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.”
House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).
If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;
Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
Specifically, the Petitioner contends that Counsel was ineffective for failing to
challenge the introduction of the document from the prior domestic case and/or failing to
move for a continuance on account of its surprise introduction. The post-conviction court
found that Counsel provided effective representation to the Petitioner when he objected to
the introduction of the document. The evidence does not preponderate against this finding.
Counsel testified that, although he was surprised to learn of the document, it did not contain
false information, so continuing the trial on account of the document would not have helped
much. Counsel testified that he objected unsuccessfully to the document on several bases,
including prejudice to the Petitioner. He further testified that, because witnesses agreed
that the phone number listed on the document belonged to the Petitioner, the document
contained relevant evidence.
The Petitioner also contends that Counsel did not adequately prepare for trial and
that he felt “rushed” into trial. The post-conviction court found that Counsel and the
Petitioner had met multiple times and that the Petitioner had not shown any deficiencies or
prejudice regarding the manner in which Counsel prepared for trial. The evidence does not
preponderate against this finding. Counsel testified that he felt the Petitioner’s case was in
a good position going into trial and that they were able to present the defense theory that
the Petitioner was not involved with the transaction. Counsel testified that this included a
productive cross-examination of the Petitioner’s cousin, who admitted to being the
individual who took the initial telephone call arranging the transaction. The Petitioner has
not shown how a delay in the trial or further time to prepare would have resulted in a
different outcome. The Petitioner is not entitled to relief.
III. Conclusion
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After a thorough review of the record and the applicable law, we conclude the post-
conviction court properly denied the Petitioner’s petition for post-conviction relief. In
accordance with the foregoing reasoning and authorities, we affirm the judgment of the
post-conviction court.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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