Ayatollah William Wallace v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 28, 2010
AYATOLLAH WILLIAM WALLACE v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Bradley County
No. M-09-191 Carroll Ross, Judge
No. E2009-02208-CCA-R3-PC - Filed July 9, 2010
A jury convicted the petitioner, Ayatollah William Wallace, of three counts of aggravated
kidnapping. The trial court sentenced him to an effective sixteen-year sentence in the
Tennessee Department of Correction. On direct appeal, this court upheld the convictions and
sentences. The petitioner filed a petition for post-conviction relief alleging the ineffective
assistance of counsel at trial and on direct appeal. The Criminal Court for Bradley County
denied post-conviction relief, and the petitioner now appeals. Following a review of the
parties’ briefs, the record, and applicable law, we affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J.C. M CL IN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J AMES C URWOOD W ITT, J R., J., joined.
David K. Calfee, Cleveland, Tennessee, for the appellant, Ayatollah William Wallace.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Background
A grand jury indicted the petitioner, Ayatollah William Wallace, on charges of
especially aggravated kidnapping, aggravated robbery, aggravated burglary, and aggravated
assault. The facts of the cases, as summarized by this court on direct appeal, are as follows:
Amy Ashe testified that on December 18, 2003, she was separated from her
husband, the late Dennis Allen Ashe. Ms. Ashe went to her husband’s
apartment to confront him after learning that another woman had been seen
entering the apartment. Mr. Ashe refused to allow her into the apartment so
she went across the street “to spy.” She saw two black males and a white male
approach the apartment; the black males entered while the white male
remained outside. A few minutes later, one of the black males emerged and
spoke with the white male, then both entered the apartment.
Ms. Ashe returned to the apartment and, as she approached the door,
heard muffled screaming and sounds of a struggle. Mr. Ashe opened the door,
pulled his wife into the apartment, and told the three men, “My wife is here
now, you all just need to please leave, just please leave.” Ms. Ashe later
learned that the three men were Patrick Lee Jones, Timothy Saxe, and the
[petitioner]. She noticed that Mr. Ashe’s pants were on wrong side out and his
shirt was torn and saw Melissa Moats sitting on the couch crying. Ms. Ashe
testified that the [petitioner] and Jones both had knives; Jones’ knife was five
to six inches long. The [petitioner] told Jones that no one was to leave and
then forced Mr. Ashe to go upstairs with him. While the [petitioner] and Mr.
Ashe were upstairs, Ms. Ashe heard Mr. Ashe tell the [petitioner] that he did
not have any money, to which the [petitioner] repeatedly replied, “You owe me
$450.00 and you are a narc and narcs get dealt with.” Mr. Ashe then said,
“Stop it man, stop it. What’s wrong with you? Stop it. Why do I owe you
money, what do I owe you money for? If I owe you money then what do I owe
it to you for?” Ms. Ashe began crying and asked Jones and Saxe to allow her
to leave to see her son, but they refused. Saxe approached her and punched her
on the arm. Then the [petitioner] and Mr. Ashe descended the stairs in a
struggle, and Ms. Ashe noticed that Mr. Ashe was bleeding from his neck. Mr.
Ashe attempted to dial 9-1-1, but Jones removed the phone cord from the wall
and cut it. The [petitioner] then forced Mr. Ashe back upstairs. Shortly
thereafter, Officer Parks of the Cleveland Police Department arrived, and Ms.
Ashe told him that the [petitioner] was holding Mr. Ashe upstairs. As Officer
Parks ascended the stairs to investigate, Jones and Saxe ran out the front door.
On cross-examination, Ms. Ashe testified that none of the three men
forced their way into the apartment. She said she was not living with her
husband at the time of the incident because he had a drug problem. She
testified that later on the night of the incident she identified Jones and Saxe
from a physical line-up, and several months later she identified all three men
in a photographic line-up.
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Melissa Moats testified that she knew Dennis Ashe because they used
drugs together. She said she “[p]artially” remembered the evening of
December 18, 2003, and was “pretty drunk” at the time. That night, she was
visiting Mr. Ashe to buy drugs when she heard a knock on the door. She
testified that Mr. Ashe answered the door, there was a commotion, and a black
male came upstairs and dragged her down the stairs by her hair, holding a
knife to her throat. She said a white male blocked the door as a second black
male detained Mr. Ashe with a knife. As the men argued, Ms. Ashe came to
the door and the men allowed her inside. Ms. Moats testified that she did not
try to leave because she was afraid. On cross-examination, she acknowledged
that she did not remember how she arrived at Mr. Ashe’s apartment or what
time the events in question took place.
Timothy Saxe, a codefendant, testified that he pled guilty to kidnapping
charges and was sentenced to eight months in jail and probation in return for
his truthful testimony about the events of December 18, 2003. He said the
[petitioner] and Jones picked him up from his house and told him they were
going to get some marijuana. When the three men arrived at Mr. Ashe’s
residence, he waited outside while the other two searched Mr. Ashe’s truck
and entered the apartment. After approximately ten to fifteen minutes, Saxe
walked inside and heard the [petitioner] yell, “You owe me money,” and Mr.
Ashe reply, “I don’t know what you are talking about, I don’t owe you no
money.” Jones searched the apartment while the [petitioner] hit Mr. Ashe in
the face, demanding money. When Ms. Ashe knocked on the door, the
[petitioner] was on top of Mr. Ashe, strangling and hitting him. Ms. Ashe
attempted to separate the two men, but Saxe pulled her away. When the police
arrived, Saxe ran out the front door.
Saxe recalled that both Jones and the [petitioner] carried knives that
night. He testified that the victims appeared scared and tried to leave, but
Jones would not let them. He said he had no role in the incident and was only
there to buy drugs. On cross-examination, Saxe testified that he carried a
pocketknife with him that night but did not display it. Although unsure, he
said he believed Mr. Ashe allowed Jones and the [petitioner] into the
apartment and that they did not force their way in.
Officer Bill Parks of the Cleveland Police Department testified that he
was called to Mr. Ashe’s apartment on December 18, 2003, to investigate a
disconnected 9-1-1 call. When he arrived, he saw two males to his right and
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two females sitting on a couch. He recognized Ms. Ashe, who said, “He’s
upstairs with Allen [Ashe].” Mr. Ashe then emerged from upstairs and said,
“Get him, get him, it’s Black FN1 . . . he’s getting out the window.” Officer
Parks ascended the stairs as the two males to his right exited through the front
door. When he arrived upstairs, the bedroom window was open, but he did not
see anyone. He ran down the stairs and outside and embarked on a foot pursuit
with Officer Steve Ross. The two officers apprehended Saxe, and Officer
Parks was returning to the apartment complex when he noticed a dark purple
car he had seen the [petitioner] driving previously. He discovered the
[petitioner] hiding inside the vehicle and took him into custody.
FN1. Saxe’s testimony indicated that the [petitioner] is also
known as “Black.”
Detective Kevin Felton of the Cleveland Police Department testified
that he observed a patrol officer conduct a “show-up” at the crime scene in
which Mr. and Ms. Ashe identified the [petitioner] and Saxe as two of their
assailants. He later displayed a photographic line-up to Ms. Ashe from which
she identified Jones as the third assailant.
The [petitioner] testified that on the day of the incident he received a
call from Mr. Ashe, who wished to purchase drugs from him. He went to Mr.
Ashe’s apartment, sold him cocaine, and left. He later received a second
phone call from Mr. Ashe requesting more drugs and asked Jones to drive him
back to Mr. Ashe’s apartment; they picked up Saxe on the way. When the
three arrived at the apartment complex, Ms. Ashe was standing outside and
accompanied Mr. Ashe and the [petitioner] into the apartment. The
[petitioner] testified that Mr. and Ms. Ashe began arguing about Ms. Moats.
He took Mr. Ashe aside and asked for payment for the drugs he previously
delivered. Mr. Ashe first responded that he did not have any money and then
told the [petitioner] his money was upstairs. When he and Mr. Ashe went
upstairs to retrieve the money, the [petitioner] heard Jones say, “Black, police
out here.” He jumped out of the bedroom window because he was carrying an
ounce of cocaine. The [petitioner] testified that he did not carry a knife to Mr.
Ashe’s apartment that night.
After deliberation, the jury found the [petitioner] guilty of the
aggravated kidnappings of Dennis Allen Ashe, Amy D. Ashe, and Melissa Kay
Moats. The trial court sentenced him on each count to sixteen years in the
Department of Correction, with all three sentences to be served concurrently.
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State v. Ayatollah W. Wallace, No. E2007-00150-CCA-R3-CD, 2008 WL 341445, at *1-3
(Tenn. Crim. App. at Knoxville, Feb. 7, 2008), perm. app. denied, (Tenn. 2008).
The petitioner appealed his convictions to this court arguing that in light of State v.
Anthony1 , this court must overturn his convictions. Id. at *1. This court affirmed the
petitioner’s convictions, and the Tennessee Supreme Court denied the petitioner’s application
for permission to appeal on June 30, 2008. Id.
On April 13, 2009, the petitioner timely filed a pro se petition for post-conviction
relief alleging that he received ineffective assistance of counsel, he was denied a speedy trial,
and he was denied the right to confront witnesses. The court appointed post-conviction
counsel for the petitioner, and post-conviction counsel filed an amended petition for post-
conviction relief. In the amended petition, the petitioner again alleged that he received
ineffective assistance of counsel, was denied a speedy trial, and was denied the right to
confront witnesses. The Criminal Court for Bradley County held a hearing on the petition
for post-conviction relief, and the parties presented the following evidence.
Trial counsel A2 testified that he worked for the public defender’s office and was one
of the attorneys who tried the petitioner’s case at the circuit court level. He had co-counsel,
trial counsel C, who tried the case with him. Trial counsel A remembered the general facts
of the petitioner’s case, but he did not remember much about the trial. Trial counsel A
recalled that the petitioner had several cases pending leading up to the trial for the present
case and was on bond several times. He met with the petitioner several times at the
courthouse. Trial counsel A stated that “there was a lot of negotiation between [himself] and
the State’s attorney trying to resolve this case, along with a number of other cases [the
petitioner] had pending.” Because of these negotiations, he communicated with the
petitioner “quite a bit.”
Trial counsel A could not specifically recall whether he and co-counsel had access to
witness statements while preparing for the case but said he was sure they did because they
had all of the discovery provided by the state. Trial counsel A recalled speaking with the
1
State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991) (precluding dual convictions for kidnapping
and another accompanying felony when the movement or confinement supporting the kidnapping charge is
“essentially incidental” to that required to commit the accompanying felony), abrogated by State v. Dixon,
957 S.W.2d 532 (Tenn. 1997).
2
During his trial, the petitioner had four attorneys. Throughout this opinion, we will refer to them
as trial counsel A, B, C, and D. On appeal, the petitioner had one attorney who we will refer to as appellate
counsel.
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petitioner numerous times about his charges, but he did not recall specific conversations.
Trial counsel A did not recall any issues with jury selection, and he did not remember why
he did not represent the petitioner during the sentencing hearing. Trial counsel A likewise
could not recall if he argued the motion to fingerprint the knife or why counsel continued the
case several times. However, he stated that if he “was involved in the continuance, it was
something to do with negotiating a resolution of this case as well as the other pending cases.”
On cross-examination, trial counsel A testified that the petitioner had charges in both
state and federal courts and was facing a substantial amount of jail time. According to
counsel, the petitioner “was in a desperate situation” in federal court. Trial counsel A said
that he was not aware that he had abandoned any issues at trial or that he did not use
statements that could have impeached two witnesses’ testimony. Trial counsel A stated that
the jury did not convict the petitioner of “the top charge,” but instead, they convicted the
petitioner of a lesser included offense. Trial counsel A agreed that he delayed the petitioner’s
trial in part because he was “trying to get . . . a package deal for [the petitioner] to limit his
exposure, and the possibility of consecutive sentencing.”
Upon further examination, trial counsel A stated that he did not recall filing a motion
for a speedy trial but said that if the petitioner had asked for such a motion, he would have
filed it. Trial counsel A testified that he counseled the petitioner on “consecutive sentencing,
not getting a package deal, [and] forcing the State into trials that [could] then be used to
enhance in subsequent prosecutions.”
Trial counsel B testified that he took issue with law enforcement’s failure to
fingerprint the knife. When law enforcement testified at the petitioner’s trial, trial counsel
B cross-examined them about the issue. He stated that the petitioner’s defense team agreed
that having the knife fingerprinted was a “double-edged sword” because if the petitioner’s
fingerprints were on the knife it “would have been devastating” to his case, and if the test
was inconclusive, then law enforcement could argue that they tried to test the knife. He
further stated that “without [law enforcement] even trying, it [gave him] a pretty hard
argument that they didn’t do a very good job on the case.” Trial counsel B said that he had
successfully attacked law enforcement investigations during his time as a prosecutor and a
criminal defense attorney.
Trial counsel B thought the Anthony case was important because the issue was not
only whether the state could proceed with both charges but also the state “choosing the more
serious crime over the less serious crime. . . .” He agreed that the defense’s argument at trial
and on appeal was that “the State abused its discretion and the Judge should have ruled that
they abused their discretion by allowing them to go on the more serious charge.”
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On cross-examination, trial counsel B stated that during jury selection, there was only
one3 African American in the jury pool, and that potential juror “was set so far back in the
pool that relatively, [they] were never going to get to that person” even if both parties used
all their challenges. He further stated that the only way they could have gotten to that juror
was if the parties made several for cause challenges to jurors. Trial counsel B thought he
made a motion for a mistrial during jury selection. He recalled that after the defense had
exhausted all of their challenges, they discovered that a juror had failed to disclose that he
knew one of the law enforcement officers and had also previously sat on a grand jury. The
defense asked if the court would excuse that juror for cause, and the trial court denied their
request. Trial counsel B agreed that the court asked the jurors if they believed that they could
render a fair verdict based only on the evidence.
Trial counsel C testified that the petitioner had spoken to him about the knife more
than once and recalled telling the petitioner that the state’s theory was that the petitioner was
the leader of the crime regardless of whether he had the knife. Trial counsel C said that there
were two witnesses that were going to testify at trial that the petitioner had the knife. He also
said that the state could convict the petitioner without his fingerprints being on the knife.
Trial counsel C stated that when asking law enforcement for something to be done there was
“always that concern . . . that you don’t get the result that you want or expect.” He further
stated that defense counsel could argue to the jury what the state and investigators failed to
do and that he had successfully made that argument in previous cases.
Regarding the continuances of the petitioner’s trial, trial counsel C recalled that the
petitioner failed to appear for a trial date, which caused a continuance. Trial counsel C also
recalled working with the state to resolve this case and three subsequent drug cases in state
court to prevent the state from presenting the petitioner’s drug cases to the federal court.
Trial counsel C was concerned that the federal court would sentence the petitioner to a
mandatory prison sentence if convicted in the drug cases. Trial counsel C recalled discussing
with the petitioner whether he would plead guilty to the robbery and kidnapping charges to
which the sentences for the drug cases would run concurrently.
Trial counsel C did not recall having the petitioner execute a waiver of appearance for
his sentencing hearing. He stated that the state gave notice that the petitioner was a Range
II multiple offender. He further stated that he was unaware of any bases to object to the
court’s considering the petitioner’s prior criminal history or the court’s finding that the
petitioner was the leader in the commission of the crimes.
3
During the post-conviction hearing trial counsel B stated that there was one African American potential juror,
however, during the motion for mistrial, trial counsel B stated that “over the entire panel of possible jurors there’s not
a single African[]American out there . . . .”
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Trial counsel C had several pending appeals and asked appellate counsel to handle the
petitioner’s appeal. Trial counsel C said that appellate counsel had never appealed a case.
He gave the petitioner’s file to appellate counsel and discussed the appeal with him. He
stated that defense counsel normally raises the issue of sufficiency of evidence after an
adverse jury verdict; however, he said that he has had “very little success appealing on the
sufficiency of the evidence.” Trial counsel C could not recall whether he advised appellate
counsel to raise the sufficiency of the evidence on appeal and said that was his mistake and
not appellate counsel’s. He said that he did not raise the issue of the trial court’s denial of
the motion to fingerprint the knife because he “made the decision that it was within the
Court’s discretion, and that it would have to be a showing of abuse of discretion to win that
issue on appeal, so [he] didn’t think that [the] issue would have merit . . . .”
Trial counsel C agreed that he made strategic decisions when trying cases. When
making these decisions he takes his clients’ wishes into account, but he also has an ethical
duty to defend his clients to the best of his ability. He testified that his decision to not have
the knife fingerprinted was strategic. The petitioner was persistent that counsel file the
motion; however, trial counsel C “was concerned about the result,” and he “knew what the
proof was going to be.”
On cross-examination, trial counsel C stated that he represented the petitioner in
general sessions court, and the court reappointed him in criminal court. Trial counsel C
assigned the case to trial counsel A, and trial counsel B assisted him with the case. Trial
counsel C explained that he made the decision to allow them to try the case because of trial
counsel B’s experience as a prosecutor and public defender. Trial counsel D represented the
petitioner in his drug cases, and she also became involved in the present case.
Trial counsel C agreed that counsel argued the motion to fingerprint the knife on April
4, 2005, and the case did not go to trial until July 2006. He stated that his office did not
renew the motion after the trial court denied it because he had made the decision that they
could proceed without having the knife fingerprinted. He stated that he thought the results
of the fingerprinting would have been inconclusive because it would be hard for authorities
to develop a latent print.
In addition to the petitioner’s failure to appear, trial counsel C said that the court
continued the case for over two years because the petitioner’s subsequent charges slowed the
trial process and the negotiations between defense counsel and the state. Trial counsel C said
that he resumed representation of the petitioner at the sentencing hearing because trial
counsel A and B had left the public defender’s office. He did not recall the petitioner
disputing the prior criminal history alleged by the state in their range notice. Trial counsel
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C conceded that he should have objected to the allegation that the petitioner was the leader
in the commission of the crimes; however, he also said that the trial judge heard the proof at
trial and was in the best position to make that determination.
Trial counsel C did not recall the petitioner requesting a speedy trial, and he did not
think that the issue of whether the petitioner had a speedy trial would be meritorious on
appeal. He recalled that Mr. Ashe being deceased at the time of trial concerned the
petitioner, but he stated that the state dismissed the aggravated robbery charge. Trial counsel
C did not argue the issue of the juror that remained on the panel after counsel asked the court
to dismiss him because counsel did not raise the issue in the motion for new trial. He did not
remember the petitioner expressing concern about counsel’s failure to raise the jury issues
on appeal. He recalled that the petitioner was concerned about the fingerprint motion after
he had perfected the appeal and provided the petitioner with a copy of the appellate brief.
Trial counsel C said that at the trial level, counsel A and D argued a pretrial motion,
which the trial court denied, that requested that the state dismiss the aggravated kidnapping
charge because the confinement that occurred was only what was necessary to commit the
alleged robbery. Trial counsel C stated that case law supported the motion, and he appealed
the issue so this court could review the trial judge’s decision for an abuse of discretion. After
the state dismissed the aggravated robbery charge, it proceeded solely with the aggravated
kidnapping charges. Counsel stated that he still pursued the issue on appeal because the
defense’s position was that the state should not have charged the petitioner with aggravated
kidnapping and could only charge him with aggravated robbery. He agreed that the jury’s
verdict resolved that question; however, their motion was to have the court dismiss the
robbery counts.
On redirect examination, trial counsel C testified that he should have objected to the
trial court’s finding that the petitioner was the leader in the commission of the crimes “for
the benefit of [the petitioner.]” He further stated that the trial judge would have made an
independent decision whether to apply that enhancement factor and that the court could have
sentenced the petitioner to the maximum. Trial counsel C did not think that the sentence the
trial court imposed was excessive considering the petitioner’s record, and he did not choose
to appeal the sentence. Trial counsel C stated that he appeals the issues with the most merit
and that “appellants are not necessarily realistic about their opportunity on appeal.”
Appellate counsel, an assistant public defender, testified that he handled the
petitioner’s case on appeal. While preparing for the petitioner’s case, appellate counsel
spoke with the petitioner over the phone, met with trial counsel C, and reviewed the court
files and motions. Appellate counsel estimated that he spoke with the petitioner between
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“half a dozen to a dozen times.” He further estimated that he spoke with trial counsel C
“[m]aybe a dozen to two dozen” times.
Appellate counsel did not recall discussing potential issues for appeal or how he
would handle the case with the petitioner. However, he stated that he discussed the appeal
with trial counsel C, and trial counsel C wanted him to appeal the Anthony issue because it
“had the most merit and [it was] most likely to win the appeal.” Appellate counsel was aware
that counsel had already raised the issue during trial and that the state chose to proceed with
only aggravated kidnapping charges. According to appellate counsel, “other issues were
spoken of, but none were addressed in the appeal.” He said that he was unaware of any
issues with the jury. Appellate counsel stated that he discussed “the trial court’s ruling on
the fingerprinting motion” with trial counsel C, but he did not pursue that issue on appeal.
Appellate counsel also stated that he and trial counsel C did not discuss the speedy trial issue,
and he did not “think that was an issue.”
On cross-examination, appellate counsel testified that the petitioner was aware that
he was handling the appeal. Appellate counsel told the petitioner the issues for appeal, and
the petitioner did not object or suggest additional issues. Appellate counsel did not discuss
whether the appeal was frivolous and unlikely to succeed with trial counsel and stated that
the Public Defender’s Office did not “routinely file frivolous appeals.”
Appellate counsel had tried approximately ten trials before he handled the petitioner’s
appeal, and he felt that he was competent to identify things that occurred in trial that could
form the bases for an appeal. In other trials, appellate counsel had made the strategic
decision to mention law enforcement’s failure to do something, such as fingerprinting a
knife, instead of requesting that they conduct a fingerprint analysis which could incriminate
his client. Appellate counsel said that he had seen attorneys use this strategy successfully “on
many occasions.”
On redirect examination, appellate counsel could not recall whether the petitioner
raised the fingerprint motion issue to him; however, he did recall that when the petitioner
would call, he would either speak with appellate counsel or trial counsel regarding his appeal.
Appellate counsel did not speak with the petitioner about a juror who had previously served
on a grand jury and personally knew one of the officers involved in the case. Appellate
counsel stated that, to his recollection, the first time he heard about the issue of whether there
were African Americans on the jury panel was during the post-conviction hearing. He also
did not recall the petitioner telling him that there were no African Americans on the jury. On
recross-examination, appellate counsel said that while he was working on the appeal, the
petitioner never mentioned the issue of a juror serving on a previous grand jury.
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The petitioner testified that he had four attorneys during trial and one on direct appeal.
The petitioner stated that he wanted the knife involved in his case fingerprinted because he
“did not handle the knife.” He raised the issue with trial counsel C and D and requested that
they file a motion to have the knife fingerprinted. He first asked trial counsel C to file the
motion in general sessions court; however, trial counsel C did not want to file the motion
because a previous client requested a similar motion, and the evidence had that client’s DNA
on it. Ultimately, trial counsel D filed the motion shortly before trial. The petitioner was
present for the motion hearing and understood that the court denied the motion “[b]ecause
it was like too close to trial and . . . [trial counsel C] didn’t want it to be done . . . .”
The petitioner said that there was only one African American juror for his trial, but
she was “way in the back” and was not brought up for jury selection. The petitioner also said
that one of the selected jurors knew the brother of a detective that had investigated his case.
The petitioner stated that trial counsel should have used the inconsistencies in Melissa
Moats’s statements and Amy Ashe’s statement that the incident “was about drugs” during
his trial.
The petitioner testified that the trial court continued his case ten times but did not
recall if it was because trial counsel A was securing an offer from the state. He stated that
he and trial counsel D were prepared for trial “numerous times,” but the state requested a
continuance. The petitioner stated that he was satisfied with how trial counsel A, B, and D
handled his case and did not feel that they should have done anything more to prepare for
trial. The petitioner did not know that trial counsel B represented him until the day of trial.
The petitioner said that he did not meet with trial counsel while he was out on bond, and he
only met with him when he was in court.
Trial counsel C represented the petitioner at the sentencing hearing, and the petitioner
was not present.4 The petitioner did not feel that there was anything more that trial counsel
C should have done during the sentencing hearing, but he stated that
because [trial counsel C] had my case since day one, from sessions court he
was appointed to me and criminal court also. And I feel like . . . he had better
knowledge of my whole case, and I feel like he should have been the one
representing me instead of passing me on.
4
Upon questioning from the court, the petitioner admitted that he was not present during his
sentencing hearing because he refused to come to court that day. The petitioner agreed that he had the
opportunity to be present and understood that he could have attended the hearing, but he chose not to be
present.
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According to the petitioner, trial counsel C told him that he did not handle his case on trial
because he was preparing for an election. The petitioner testified that trial counsel D
adequately explained his charges, and he “knew the seriousness of these charges and what
[he] was facing . . . .”
The petitioner did not recall having any discussions with appellate counsel before
appellate counsel filed his brief. He stated that he did not know appellate counsel
represented him or what issues appellate counsel raised on appeal until he received notice
that the court denied his appeal. After he discovered appellate counsel represented him, they
talked “numerous” times over the phone. He stated that he did not talk to trial counsel C
until after the appeal. After the appeal, he discussed with trial counsel C and appellate
counsel why they raised the Anthony issue when trial counsel D had already addressed it in
a motion in the trial court and asked counsel why they did not appeal the fingerprinting and
jury issues.
On cross-examination, the petitioner testified that the trial court sentenced him to
sixteen years for each count, which was in the middle of the sentencing range. The court
ordered that he serve his sentences concurrently, and the petitioner agreed that the court
could have ordered consecutive sentences. When the state charged the petitioner with
especially aggravated kidnapping, they “ranged [him] up” to a Range II offender. The
petitioner denied knowing that as a Range II offender he faced a possible twenty-five to
forty-year sentence if the jury convicted him. The petitioner agreed that the jury convicted
him of a lesser included offense, and they did not convict him of the “top charge.”
When asked, on redirect examination, why he did not attend his sentencing hearing,
the petitioner said,
[I]t was just something I felt like I shouldn’t have to be there, because . . . I
know how I would have acted, because I feel like there’s some things that
went on at trial, as far as the jury and a lot of other things, that I don’t feel like
it would have been in my best interest.
The petitioner said that he discussed his decision not to be present during sentencing with
trial counsel C, and the petitioner signed a waiver which indicated he did not wish to be
present.
After hearing the testimony, the post-conviction court denied post-conviction relief
finding that the petitioner failed to show that counsel was ineffective at trial or on appeal.
The petitioner appeals the court’s denial of post-conviction relief.
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Analysis
1. Ineffective Assistance at Trial
On appeal, the petitioner argues that trial counsel5 was ineffective for (1) not filing
the motion to have law enforcement fingerprint the knife until shortly before his trial, and (2)
failing to object to the enhancement factors introduced at the sentencing hearing. The state
responds that trial counsel made a tactical decision to not pursue the fingerprinting motion
and the enhancement factors presented were applicable to the petitioner. We agree with the
state.
In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations of fact set forth in his petition by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction
court’s findings unless the petitioner proves that the evidence preponderates against those
findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction
court’s factual findings, such as findings concerning the credibility of witnesses and the
weight and value given their testimony, is de novo with a presumption that the findings are
correct. See id. Our review of the post-conviction court’s legal conclusions and application
of law to facts is de novo without a presumption of correctness. Fields v. State, 40 S.W.3d
450, 457-58 (Tenn. 2001).
To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d
784, 787 (Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an
objective standard of reasonableness under prevailing professional standards. Strickland, 466
U.S. at 688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). A fair assessment of counsel’s performance “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference
is made to trial strategy or tactical choices if they are informed ones based upon adequate
5
During the hearing on the petition for post-conviction relief, the petitioner stated that he was
satisfied with the performance of trial counsel A, B, and D; however, in his petition for post-conviction relief
and appellate brief, the petitioner does not distinguish which trial counsel was insufficient. We will presume
that the petitioner is alleging ineffective assistance of all of his trial counsel.
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preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular
strategy or tactical decision failed does not by itself establish ineffective assistance of
counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Prejudice is shown if, but for
counsel’s unprofessional errors, there is a reasonable probability that the outcome of the
proceeding would have been different. Strickland, 466 U.S. at 694. Both deficient
performance and prejudice must be established to prove ineffective assistance of counsel.
Id. at 697; see also Goad, 938 S.W.2d at 370 (Tenn. 1996). If either element of ineffective
assistance of counsel has not been established, a court need not address the other element.
Strickland, 466 U.S. at 697.
The petitioner contends that trial counsel’s handling of the motion to fingerprint the
knife amounted to ineffective assistance. Specifically, he argues that the trial court’s denial
of his motion to have the knife fingerprinted was based in part on trial counsel’s delay in
filing the motion. He also argues that “the finger print motion is indicative of the lack of
meaningful communication between [the petitioner] and counsel during the preparation and
conduct of trial.” Finally, the petitioner asserts that trial counsel was ineffective for not
renewing the motion to have the knife fingerprinted after the trial court continued the case.
The petitioner asked trial counsel multiple times to file a motion to have the knife
fingerprinted. Counsel testified that they were apprehensive about filing the motion because
either the petitioner’s DNA would be present on the knife or the test would be inconclusive
and take away the defense argument that law enforcement’s investigation was inadequate.
Further, counsel testified that having the knife fingerprinted was unnecessary because there
were eyewitnesses who stated that the petitioner had the knife, and the state could prove their
case without the petitioner’s fingerprints on the knife. The post-conviction court found that
there was overwhelming proof at trial that the petitioner committed the crimes, the jury
verdict resolved any issues of fact, and the petitioner may not second-guess counsel’s
reasonably based trial strategy. The evidence does not preponderate against the findings of
the post-conviction court. We conclude that the petitioner has not shown that counsel’s
belief that the fingerprinting motion was unnecessary and the resulting failure to timely file
the requested motion fell below the objective standard of reasonableness. Likewise, the
petitioner has not shown that but for counsel’s failure to file the motions, the outcome of the
trial would have been different.
Next, the petitioner argues that trial counsel C should have objected to the court’s
consideration of his prior criminal history and his role as the leader in the commission of the
crimes as enhancement factors. The trial court sentenced the petitioner on each count to a
sixteen-year sentence to be served concurrently. The petitioner chose not to attend the
sentencing hearing because he feared that he would have an outburst while in the courtroom;
however, he stated that there was nothing more that trial counsel should have done during
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the sentencing hearing. Trial counsel C conceded that he should have objected to the court’s
consideration of enhancement factors. Trial counsel C stated that the petitioner did not
dispute his criminal history, and counsel thought the trial judge was in the best position to
make the determination of applicable enhancement factors. The post-conviction court did
not make a specific finding as to this issue, but the court found that, overall, the petitioner’s
counsel was not deficient. The petitioner has not alleged on what legal basis trial counsel C
could have objected. Furthermore, the court sentenced the petitioner to an effective sixteen-
year sentence, which is the mid point of the sentencing range, and the petitioner has not
shown how the application of the sentencing factors prejudiced him. Accordingly, we find
that this issue is without merit and the petitioner is not entitled to relief.
2. Ineffective Assistance on Appeal
The petitioner further argues that appellate counsel was ineffective for only raising
the Anthony opinion on appeal. The state replies that counsel was not necessarily ineffective
for unsuccessfully pursuing the Anthony issue on appeal, and the petitioner cannot show that
counsel would have succeeded in pursuing the other issues.
The same principles that apply determining whether trial counsel was ineffective
apply when determining the effectiveness of appellate counsel. Campbell v. State, 904
S.W.2d at 594, 596 (Tenn. 1995). A petitioner alleging ineffective assistance of appellate
counsel must prove 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. See
e.g., State v. Robbins, 528 U.S. 259, 285 (2000). If a claim of ineffective assistance of
counsel is based on the failure to raise a particular issue, the reviewing court must determine
the merits of the issue. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). If an issue
has no merit or is weak, counsel’s performance will not be deficient for failure to raise it, and
the petitioner will have suffered no prejudice. Id. Appellate counsel is not constitutionally
required to raise every conceivable issue on appeal, and the determination of which issues
to raise is generally within counsel’s sound discretion. Id. “[A reviewing court] should not
second-guess such decisions, and every effort must be made to eliminate the distorting
effects of hindsight. Deference to counsel’s tactical choices, however, applies only if such
choices are within the range of competence required of attorneys in criminal cases.” Id.
(citations omitted).
The petitioner contends that appellate counsel was ineffective for pursuing only the
Anthony issue on appeal despite the numerous issues that arose during trial. The petitioner
alleges appellate counsel should have raised the issues of only one African American sitting
on his jury and the court’s failure to dismiss a juror who knew an investigating officer and
had previously sat on a grand jury.
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Because the petitioner’s claim of ineffective assistance of counsel is based on the
failure to raise particular issues, we must determine the merits of the issues. We note that
the record on appeal only contains the transcript of the post-conviction proceeding and is
void of the jury voir dire and trial transcript. It is the duty of the petitioner to provide a
record that conveys a fair, accurate, and complete account of what transpired with regard to
the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor,
992 S.W.2d 941, 944 (Tenn. 1999). Ordinarily, without an adequate record we would be
unable to review the merits of the omitted issues, and we would “presume that the trial
court’s ruling was adequately supported by the record.” State v. Beech, 744 S.W.2d 585, 588
(Tenn. Crim. App. 1987). However, “[t]he rule has long since been firmly established in this
State that a Court may take judicial knowledge of facts which it has learned in an earlier
hearing of the same case and of what it has done at a previous hearing of that case.” Pruitt
v. State, 460 S.W.2d 385, 395 (Tenn. Crim. App. 1970). The Post-Conviction Procedure Act
contemplates a petitioner filing only one petition for post-conviction relief. See Tenn. Code
Ann. § 40-30-102(c). In this case, the Assistant District Attorney General, at the start of the
evidentiary hearing, presented the trial record which he had obtained from the appellate court
archive. The post-conviction judge, who was also the trial judge, indicated that he had his
extensive notes from the trial and opined that his own recollection, as supported by his notes,
afforded him adequate knowledge of the trial. Thus, the trial judge had the opportunity to
be informed about the trial proceedings. In light of this, and because this is the petitioner’s
sole chance to appeal the denial of his petition for post-conviction relief, we will take judicial
notice of the record on direct appeal, which contained the transcript of the jury voir dire, and
we will review the issues that the petitioner claims counsel should have pursued on appeal.
The petitioner first argues that appellate counsel was ineffective for failing to raise
on appeal the issue of his jury pool containing only one African American. During jury
selection, there was one African American juror in the pool of potential jurors, and trial
counsel B testified that this juror was “so far back in the pool that relatively, [they] were
never going to get to that person.” Trial counsel B had used all available challenges and
moved the court to declare a mistrial because “over the entire panel of possible jurors there’s
not a single African[]American out there, and [his] client is an African American.”
Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant the
right to a jury from “the county in which the crime shall have been committed.” See State
v. Upchurch, 620 S.W.2d 540, 542 (Tenn. Crim. App. 1981). Moreover, a criminal
defendant has a constitutional right to a jury drawn from a venire that represents a fair
cross-section of the community. State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (citing
Taylor v. Louisiana, 419 U.S. 522, 528 (1975)). To establish a prima facie violation of the
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right to have a jury that is selected from a fair cross-section of the community, the petitioner
must show:
(1) that the group alleged to be excluded is a “distinctive” group in the
community;
(2) that the representation of this group in venires from which juries are
selected is not fair and reasonable in relation to the number of such persons in
the community; and
(3) that this under[-]representation is due to the systematic exclusion of the
group in the jury-selection process.
State v. Nelson, 603 S.W.2d 158, 161 (Tenn. Crim. App. 1980) (quoting Duren v. Missouri,
439 U.S. 357, (1979)). One does not have a constitutional right to be tried by a jury wholly
or partially composed of persons of his or her own race. Harvey v. State, 749 S.W.2d 478,
481 (Tenn. Crim. App. 1987); see also Wheeler v. State, 539 S.W.2d 812, 815 (Tenn. Crim.
App. 1976). The bare fact that an African-American defendant was tried by a jury of
Caucasian jurors does not violate any right. Harvey, 749 S.W.2d at 481.
As to the first prong, the petitioner automatically satisfies it because African
Americans clearly represent a distinctive group in the community. State v. Mann, 959
S.W.2d 503, 535 n. 24 (Tenn. 1997). Regarding the other prongs, the petitioner failed to
offer any proof as to how the court conducted the venire selection process or any evidence
on the proportion of African Americans in the population from which the court drew the
venire. He simply argues that there was a lack of African Americans on the jury, and the
petitioner is African American. Moreover, the petitioner did not offer any proof that the
under-representation of African Americans on the venire from which the parties drew his jury
was due to a systematic exclusion of African Americans. The petitioner’s claim regarding
the lack of African Americans on his jury is without merit. Accordingly, we conclude that
counsel’s performance was not deficient for failing to raise the issue on appeal, and the
petitioner suffered no prejudice because of counsel’s failure to raise the issue.
Next, the petitioner contends that counsel should have raised on appeal the issue of
the trial court’s failure to dismiss a juror who knew an investigating officer in this case and
had previously sat on a grand jury. According to trial counsel B, after they had exhausted
all of their peremptory challenges, the defense discovered that the juror had failed to disclose
that he knew one of the investigating officers in this case and that he had previously sat on
a grand jury. The defense asked if the court would excuse that juror for cause, and the trial
court denied their request.
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Rule 24(b) of the Tennessee Rules of Criminal Procedure governs challenges to
potential jurors for cause and, in pertinent part, states, “Any party may challenge a
prospective juror for cause if . . . there exists any ground for challenge for cause provided by
law; [or] the prospective juror’s exposure to potentially prejudicial information makes the
person unacceptable as a juror.” We note that a trial court has wide discretion in ruling on
the qualifications of jurors. State v. Kilburn, 782 S .W.2d 199, 203 (Tenn. Crim. App. 1989).
The ultimate goal of voir dire is to ensure that jurors are competent, unbiased, and impartial,
and the decision of how to conduct voir dire rests within the sound discretion of the trial
court. State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). Moreover, unless there has been
clear abuse, the trial court’s discretion in determining the qualifications of jurors is not
subject to review. Lindsey v. State, 225 S.W.2d 533, 538 (Tenn. 1949).
During the voir dire, the following colloquy ensued:
[JUROR]: I think I failed to mention that I’ve been acquainted with
Kevin Felton.
THE COURT: Okay. Is it a casual acquaintance?
[JUROR]: Yeah, I just knew him, and then I was on the grand jury.
THE COURT: Okay. Well, the fact that you know him, would that
have any influence, if you felt the state didn’t prove their case would you have
any hesitancy to return a not guilty verdict?
[JUROR]: No
THE COURT: Okay. The fact that you have the knowledge of knowing
him it wouldn’t affect your decision one way or the other?
[JUROR]: No
....
[TRIAL COUNSEL B]: The fact that you know these people and had
that grand jury experience, can you set all that aside?
[JUROR]: Yes.
[TRIAL COUNSEL B]: And if you was [sic] to find the government
hadn’t proved its case beyond a reasonable doubt that you could find him not
guilty?
[JUROR]: Yes.
[TRIAL COUNSEL B]: And you would make the government prove
that?
[JUROR]: Yes.
[TRIAL COUNSEL B]: And you set [sic] on a grand jury before?
[JUROR]: Yes.
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The trial court refused to strike the potential juror for cause based upon the juror’s
acquaintance with Detective Felton and prior participation on a grand jury.
After reviewing the answers of the juror, we conclude that the trial court did not err
by failing to remove him for cause. The juror stated that his knowing Detective Felton would
not influence his decision in this case nor would it affect his ability to find the defendant
guilty if the state proved its case beyond a reasonable doubt. He also confirmed that he
would set aside knowing Detective Felton and his previous grand jury experience and make
the state prove its case. The petitioner has not established that the trial court’s determination
was erroneous. In addition, we note that the petitioner has failed to show that the alleged
error prejudiced his case. “[I]rrespective of whether the trial judge should have excluded the
. . . challenged [juror] for cause, any error in this regard is harmless unless the jury who heard
the case was not fair and impartial.” Howell, 868 S.W.2d at 248 (citing State v. Thompson,
768 S.W.2d 239, 246 (Tenn. 1989)). The issue of the trial court failing to exclude the juror
has no merit. Thus, counsel’s performance was not deficient for failure to raise the issue, and
the petitioner suffered no prejudice. Accordingly, the petitioner is not entitled to relief on
the issue.
Conclusion
Based on the foregoing, we affirm the judgment of the post-conviction court.
___________________________________
J.C. McLIN, JUDGE
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