Casey Colbert v. State of Tennessee

06/13/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2022
CASEY COLBERT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 09-07785 James M. Lammey, Judge
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No. W2021-00778-CCA-R3-PC
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The Petitioner, Casey Colbert, appeals the denial of post-conviction relief from his
convictions for first degree felony murder and attempted aggravated robbery, alleging that
he received ineffective assistance of counsel and that the State committed prosecutorial
misconduct depriving him of his right to a fair trial. After review, we affirm the judgment
of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and TIMOTHY L. EASTER, JJ., joined.
Casey Colbert, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The charges in this case arose from a May 7, 2009 robbery that resulted in the fatal
shooting of victim, Ben Walker. In December 2009, a Shelby County Grand Jury jointly
indicted the Petitioner and his co-defendant, William Peete, under a theory of criminal
responsibility, for first degree felony murder, attempted aggravated robbery, and
employing of a firearm during the commission of a dangerous felony. State v. Casey
Colbert, No. W2012-00099-CCA-R3-CD, 2013 WL 3128698, at *1 (Tenn. Crim. App.
June 18, 2013), perm. app. denied (Tenn. Nov. 13, 2013). In August 2011, the Petitioner
was indicted for two counts of bribing a witness and two counts of coercing a witness in
connection with the charges in the 2009 indictment. Id. Over the defense’s objection, the
trial court consolidated the charges from the 2009 and 2011 indictments into a single trial
for the Petitioner. Id. At the conclusion of trial, the jury found the Petitioner guilty as
charged of first degree felony murder, attempted aggravated robbery, employing a firearm
during the commission of a dangerous felony, two counts of bribing a witness, and two
counts of coercing a witness. Id. The trial court imposed an effective sentence of life
imprisonment plus twenty-two years. Id. A detailed summary of the evidence presented
at the Petitioner’s trial can be found in this court’s opinion on direct appeal. Casey Colbert,
2013 WL 3128698, at *1-13.
On direct appeal, the Petitioner argued that the evidence was insufficient to support
his murder conviction, that the trial court erred in consolidating the bribery and coercion
offenses with the other offenses, that the prosecutor engaged in improper argument, that
the cumulative errors entitled him to a new trial, and that his sentence was excessive. Id.
at *1. This court held that while the trial court erred in consolidating the Petitioner’s
indictments into a single trial, this error was harmless as to the Petitioner’s convictions for
first degree felony murder and attempted aggravated robbery and affirmed those
convictions. Id. However, because the error regarding consolidation was not harmless as
to the Petitioner’s two convictions for bribing a witness and his two convictions for
coercing a witness, it reversed those convictions and remanded those charges for further
proceedings. Id. In addition, the court held that because the Petitioner had not employed
a firearm during the commission of a “dangerous felony,” as that term was defined by
statute, it reversed the Petitioner’s conviction for the firearm offense. Id. Finally, the court
remanded the case for a new sentencing hearing for the Petitioner’s convictions for first
degree felony murder and attempted aggravated robbery. Id. The Petitioner subsequently
entered guilty pleas to the two counts of bribing a witness and the two counts of coercing
a witness. See State v. Casey Colbert, No. W2017-01998-CCA-R3-CD, 2018 WL
4960225, at *1 (Tenn. Crim. App. Oct. 15, 2018), perm. app. denied (Tenn. Feb. 25, 2019).
Following a sentencing hearing, the trial court merged the two bribery convictions into a
single conviction for bribery and merged the two coercion convictions into a single
conviction for coercion before imposing a six-year sentence for bribery and a four-year
sentence for coercion served consecutively for an effective sentence of ten years. Id. These
sentences were affirmed on appeal. Id.In 2014, the Petitioner timely filed a pro se petition for post-conviction relief and
then filed several amended petitions, alleging in pertinent part that trial counsel provided
ineffective assistance in failing to conduct a reasonable investigation, in failing to call
various witnesses, in failing to impeach and thoroughly cross-examine the State’s
witnesses, in failing to present viable alibi and third-party perpetrator theories of defense,
in failing to object to co-defendant William Peete’s surprise testimony placing the
Petitioner at the scene when a notice of alibi had been given, in failing to object to the
State’s leading questioning of its witnesses, and in failing to object to improper closing
arguments by the State at trial. Casey Colbert v. State, 2020 WL 2394141, at *1. The
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Petitioner also raised allegations of newly discovered evidence and prosecutorial
misconduct. Id.The post-conviction court conducted an evidentiary hearing, and entered an order
denying relief, stating that it had “elected to make [its] findings of fact and conclusions of
law orally” and that “[a] transcript of the hearing and oral ruling [was] incorporated by
reference . . . .” The Petitioner timely appealed, and this court reversed the judgment of
the post-conviction court and remanded the case after concluding that the post-conviction
court failed to make sufficient findings of fact and conclusions of law in its order denying
relief. Id. at *16. In our opinion on remand, this court engaged in an extensive factual
recitation of the testimony adduced at the post-conviction evidentiary hearing, which we
rely upon and incorporate by reference herein, Casey Colbert v. State, 2020 WL 2394141at *5-11. On remand, the post-conviction court entered a supplemental order, provided
extensive factual findings and conclusions of law, and denied relief. Thereafter, the
Petitioner filed a timely notice of appeal. The case is now properly before this court for
review.
ANALYSIS
The Petitioner argues that trial counsel provided ineffective assistance on multiple
grounds and that the State committed prosecutorial misconduct depriving him of his right
to a fair trial. In response, the State contends that the Petitioner failed to show that trial
counsel was ineffective, and it asserts that the Petitioner waived his claims regarding
prosecutorial misconduct. We conclude that the Petitioner is not entitled to post-conviction
relief.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see
Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
I. Ineffective Assistance of Counsel. The Petitioner contends that trial counsel
provided ineffective assistance. Specifically, he asserts that trial counsel failed to object
and request a mistrial based on the State’s violations of Rule 12.1(b) and Rule 16, failed to
conduct a reasonable investigation, failed to call various witnesses, failed to thoroughly
cross-examine and impeach the State’s witnesses, failed to present an alibi defense or third-
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party perpetrator defense, failed to object and request a mistrial after the State made
improper comments during closing, and failed to object and request a mistrial after the
State asked leading questions of its witness.1 The Petitioner also asserts that he is entitled
to relief based on the cumulative effect of trial counsel’s errors.
A claim for post-conviction relief based on alleged ineffective assistance of counsel
presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013)
(citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). A post-conviction court’s
findings of fact are conclusive on appeal unless the evidence in the record preponderates
against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216; State v.
Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, we generally defer to a post-
conviction court’s findings with respect to witness credibility, the weight and value of
witness testimony, and the resolution of factual issues presented by the evidence.” Mobley,
397 S.W.3d at 80 (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)). However,
we review a post-conviction court’s application of the law to its factual findings de novo
without a presumption of correctness. Id. (citing Grindstaff, 297 S.W.3d at 216; Finch v.
State, 226 S.W.3d 307, 315 (Tenn. 2007); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.
2006)).
The right to effective assistance of counsel is protected by both the United States
Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I,
§ 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) this deficient performance
prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient
performance when the petitioner establishes that his attorney’s conduct fell “below an
objective standard of reasonableness under prevailing professional norms.” Goad, 938
S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes
“‘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.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).
“Because a petitioner must establish both prongs of the test, a failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Id.In assessing an attorney’s performance, we “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 (citing Strickland, 466 U.S.
1We have reordered the Petitioner’s issues for clarity.
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at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge
the reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 689-90. “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. “‘The fact that a particular strategy
or tactic failed or hurt the defense, does not, standing alone, establish unreasonable
representation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad, 938
S.W.2d at 369). Nevertheless, “‘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, 938 S.W.2d at 369).
Failure to Object and Request a Mistrial in Response to William Peete’s
Testimony. The Petitioner argues that trial counsel was ineffective in failing “to object to
[co-defendant] William Peete’s eye-witness testimony and [in failing to] request the trial
court to declare a mistrial.” He asserts that he filed a motion for discovery, a motion for
notice of the State’s intention to use evidence at trial, and a notice of alibi and that trial
counsel should have objected pursuant to Tennessee Rule of Criminal Procedure 12.1(b)
and Rule 16 when the State failed to disclose co-defendant Peete’s eye-witness testimony
before or during trial. The Petitioner claims that the State’s intent was to “unfairly
su[r]prise the defense.” He also asserts that the State’s violation of these rules “became
especially egregious” after trial counsel argued in his opening statement, “The proof in this
case is going to show that there was no one [who] could identify the person there that night
at 10:20 [who] robbed or tried to rob [the victim].”
The Advisory Commission Comment to Rule 16 notes that while Rules 12.1 and
12.2 are not “technically discovery rules,” they are closely related to Rule 16. “The
statements of a codefendant discoverable by the codefendant are likewise made
discoverable by the defendant, if the codefendant and the defendant are scheduled to be
tried jointly. Such statements of a codefendant may be reviewed to determine whether or
not a severance under Rule 14(c) need be sought.” A Rule 16 discovery violation does not
necessarily require the exclusion of evidence and focuses primarily on actual prejudice to
the aggrieved party. State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981)
(noting that “evidence should not be excluded except when it is shown that a party is
actually prejudiced by the failure to comply with the discovery order and the prejudice
cannot be otherwise eradicated. . . . Rules 12 and 16, as well as other Rules of Criminal
Procedure, were adopted to promote justice; they should not be employed to frustrate
justice by lightly depriving the State or the defendant of competent evidence”). The
Petitioner and the co-defendant were not jointly tried. Nevertheless, as the Petitioner’s
arguments under both rules appear to be the same, our analysis under Rule 12 applies
equally to the Petitioner’s Rule 16 claims.
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At trial, William Peete, the co-defendant, identified the Petitioner as the shooter and
testified, in relevant part, as described in our direct appeal opinion, as follows:
Peete stated that [on the night of the offense] the [Petitioner] told him
“to get the fuck out of his way.” The [Petitioner] raised his gun, which he
was holding in his right hand, and pulled the slide back to put a bullet in the
chamber. The [Petitioner] pointed the gun at Peete and pushed him out of the
way. Fearing that he would be shot, Peete stepped away.
Peete started toward the main house and saw a “flash.” Thompson ran
up to him. Peete looked toward the truck and saw the victim come out of the
passenger side. Peete saw the [Petitioner] come out of the driver’s side door,
saw the [Petitioner] chase the victim, saw the victim fall, and saw the
[Petitioner] “going in [the victim’s] pockets.” Peete did not see where Parker
went. Peete clarified that he could see the [Petitioner’s] face as the
[Petitioner] was going through the victim’s pockets. Peete then saw the
Petitioner “leave the scene.” Peete testified that the [Petitioner] “left and ran
toward the railroad track.” Peete did not see the [Petitioner] again that night.
Subsequently, Peete gave a statement to the police. He testified that
his statement to the police was not consistent with his testimony. He testified,
“I told them it was a masked man came to the truck and robbed him, pulled
a gun on us.” Peete explained that he gave this abbreviated version out of
fear because he did not know if the [Petitioner] was going to come back. He
admitted that he did not tell anyone that he knew that the Defendant was the
assailant.
Later, Peete gave a second statement to the police in which he claimed
that someone else told him that the [Petitioner] was the perpetrator. He
testified that he did this because, at the time, the [Petitioner] was “still out ...
on the run,” and he remained frightened of the [Petitioner]. After Peete gave
his second statement to the police, the police arrested him [,] and he was
charged with the felony murder of the victim. Peete testified that, as of the
time he was testifying, his case had not been disposed of. He also stated that
he had not received anything for his testimony.
Casey Colbert, 2013 WL 3128698, at *7-8.
At the post-conviction hearing, trial counsel stated that although the defense filed a
notice of alibi, the State failed to file any response to this notice informing him that it had
witnesses who would place the Petitioner at the scene. Trial counsel admitted he was not
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aware that the State was required to provide such a response under Rule 12.1(b). Based on
the two prior statements by co-defendant Peete that trial counsel had received, trial counsel
was “shock[ed]” when co-defendant Peete testified at trial that the Petitioner was the
shooter, which was “detrimental to the defense.” He also insisted that had he been given
proper notice of co-defendant Peete’s testimony identifying the Petitioner as the shooter,
he would not have argued during his opening statement that no one would identify the
Petitioner as the perpetrator. Trial counsel was unable to explain why he failed to object
or request a mistrial when the State presented co-defendant Peete as a witness.
In denying relief, the post-conviction court acknowledged that trial counsel “should
have objected and sought to strike [co-defendant] Peete’s testimony.” However, the court
stated that it was “unclear what effect, if any, such an objection would have had on the jury
or the proof as a whole at trial.” It noted that there was no basis for trial counsel to object
to co-defendant Peete being called as a witness generally because Peete was charged as co-
defendant, had given multiple statements, and was present during the shooting. It also
found that the State “had legitimate reasons for calling [co-defendant] Peete based solely
on his prior statements, irrespective of the new information offered during [co-defendant]
Peete’s trial testimony” and that it was “not at all clear” that the State knew co-defendant
Peete would identify the Petitioner as the shooter during trial. The post-conviction court
determined that “[a]n objection lodged to the general testimony of [co-defendant] Peete
would surely have been overruled.” It then found that even if trial counsel had objected
and made a motion to strike co-defendant Peete’s testimony, it was unlikely that co-
defendant Peete’s testimony would have been excluded pursuant to Rule 12.1(b) because
trial counsel had no ethical basis to move forward with an alibi defense at the time of trial.
It also determined that if trial counsel had requested a mistrial, it was unlikely that the trial
court would have granted such a drastic remedy, given that Peete was a charged co-
defendant who the defense knew could be a witness and whose prior statements had been
given in discovery. The post-conviction court also held that even if trial counsel should
have objected or requested a mistrial based on co-defendant Peete’s surprise testimony
identifying the Petitioner as the shooter, the Petitioner failed to show that he was prejudiced
in light of the overwhelming evidence of his guilt, aside from co-defendant Peete’s
testimony.
It is fundamental that the “primary purpose of the criminal trial is to discover the
truth.” State v. Gilford E. Williams, No. W1999-01556-CCA-R3-CD, 2001 WL 43176, at
*3 (Tenn. Crim. App. Jan. 17, 2001). “This goal can only be achieved by the avoidance of
unnecessary surprise, through complete and reciprocal discovery.” Id. (citing State v.
Brown, 552 S.W.2d 383, 386 (Tenn. 1977); State v. Gaddis, 530 S.W.2d 64, 69 (Tenn.
1975) (endorsing “broad and reciprocal discovery” and noting decline of “trial by ambush”
and “sporting theory of justice”). It is perplexing for either side in any litigation to be faced
with unanticipated testimony, expert or otherwise, on material issues. Id. With this
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principle in mind, Rule 12.1 of the Tennessee Rules of Criminal Procedure provides, in
pertinent part:
Upon written demand of the district attorney general stating the time, date,
and place at which the alleged offense was committed, the defendant shall
serve within ten days, or at such different time as the court may direct, upon
the district attorney general a written notice of an intention to offer a defense
of alibi. Such notice by the defendant shall state the specific place or places
at which the defendant claims to have been at the time of the alleged offense
and the names and addresses of the witnesses upon whom the defendant
intends to rely to establish such alibi.
Consistent with the United States Supreme Court mandate in Wardius v. Oregon,
the rule further provides for the State to disclose, within ten days of receiving the defense
notice, the names and addresses of the witnesses upon whom the State intends to rely to
establish a defendant’s presence at the scene and any witnesses upon whom the State will
rely to rebut a defendant’s alibi. 412 U.S. 470 (1973) (noting that Due Process Clause of
the 14th Amendment forbids the enforcement of alibi rules unless reciprocal discovery
rights are given to criminal defendants; in absence of fair notice that defendant would have
an opportunity to discover the state’s rebuttal witnesses, defendant cannot be compelled to
reveal his alibi defense); Tenn. R. Crim. P. 12.1(b). The rule imposes a continuing duty
for the parties to disclose before and during trial the existence of an additional witness who
should have been included before and during trial. Tenn. R. Crim. P. 12.1(c). Tennessee
Rule of Criminal Procedure 12.1(e) allows the trial court, for good cause shown, to grant
an exception to any of the requirements of Rule 12.1. Factors to be considered in
determining whether excluding undisclosed alibi proof constitutes error include:
(1) the amount of prejudice that resulted from the failure to disclose, (2) the
reason for nondisclosure, (3) the extent to which the harm caused by
nondisclosure was mitigated by subsequent events, (4) the weight of the
properly admitted evidence supporting the defendant’s guilt, and (5) other
relevant factors arising out of the case.
State v. Looper, 118 S.W.3d 386, 423 (Tenn. Crim. App. 2003); State v. Bell, No. W2011-
01424-CCA-R3-CD, 2012 WL 3156579, at *6-7 (Tenn. Crim. App. Aug. 2, 2012)
(concluding that trial court found good cause to allow exception to notice requirement).
Attempts to intentionally circumvent the Rule will defeat the purpose and only solicit
leniency by the court when the adverse party engages in similar chicanery. See McClendon
v. United States, 587 F.2d 384 (8th Cir. 1978) (purpose behind the reciprocal alibi notice
discovery rule is to prevent, among other things, prejudicial surprise to the parties;
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however, where there is not material prejudice resulting to the defendant by the state’s
nondisclosure there is no reversible error).
The factual situation presented here however does not lend itself to neat disposition
under the Rule because the alibi testimony the Petitioner asserts the State failed to provide
notice of was from the Petitioner’s co-defendant. The record shows that the Petitioner filed
his Rule 12.1 notice of alibi on August 26, 2010, and that the State later filed its demand
for such notice. Rule 12.1(b)(1) clearly states that if a defendant serves a notice pursuant
to Rule 12.1(a)(2), “the district attorney general shall disclose in writing to the defendant”
the name and address of each witness on whom the State intends to rely to establish the
defendant’s presence at the scene of the alleged offense and to rebut testimony of any of
the defendant’s alibi witnesses. The record shows that prior to trial the State provided the
Petitioner with open file discovery, which included both of co-defendant Peete’s prior
statements to law-enforcement claiming, in relevant part, that (1) a masked individual was
the perpetrator of the offense; and (2) another individual named “Benny” told him that the
Petitioner was the perpetrator of the offense. Peete’s subsequent indictment, inherent status
as a codefendant turned State’s witness, and the trial transcript establish that the State knew
prior to trial that co-defendant Peete had first-hand information that would place the
Petitioner at the time and place of the offense. In addition to the State’s continuing duty to
disclose under Rule 12, this scenario implicated the State’s obligations under Brady v.
Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution”); State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (stating that in order to
establish a Brady violation, the defendant must show that (1) he requested the information
(unless the evidence is obviously exculpatory, in which case the State is required to release
the information whether requested or not); (2) the State suppressed this information; (3)
this information was favorable to the accused; and (4) this information was material)).
There can be no question that co-defendant Peete’s trial testimony identifying the Petitioner
as the shooter was inconsistent with the statements previously provided to the defense and
thus qualified as “favorable to the accused” to impeach co-defendant Peete. Johnson v.
State, 38 S.W.3d 52, 55-56 (Tenn. 2001) (“Evidence ‘favorable to an accused’ includes
evidence deemed to be exculpatory in nature and evidence that could be used to impeach
the [S]tate’s witnesses.”); United States v. Barraza Cazares, 465 F.3d 327, 333-35 (8th Cir.
2006) (co-defendant’s statement exculpatory because relevant to defendant’s role in
conspiracy and related to expert testimony presented by government). The State failed to
fulfill its reciprocal discovery obligations, and trial counsel was deficient in failing to so
object.
We must now determine what, if any, prejudice the Petitioner suffered as a result of
trial counsel’s failure to object to the State’s violation of Rule 12.1(b) and the impact of
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the State’s failure to disclose impeachment material under Brady. In doing so, we revisit
the relevant portions of the facts as outlined in our direct appeal:
Charles Smith testified that, on the evening of the offense, the Petitioner, whom
Smith knew from the neighborhood, told Smith that he was going to rob or “pop “Ben”
because “Ben” had three or four thousand dollars on him. After this conversation, the
Petitioner got in the car with co-defendant Peete, the two men drove away, and returned
fifteen minutes later. At this point, Smith started to leave and saw the victim pull up
alongside the street with two or three people in the victim’s truck. Smith saw co-defendant
Peete walk up to the victim’s truck, and about fifteen minutes later, Smith heard a gunshot.
He testified, “I ran back down there and I seen [the victim] running around the curve and
laid down on the curve beside the trash cans with a bullet hole in his chest.” Smith testified
that co-defendant Peete was still there, but he did not see the Petitioner at the scene. He
did not see the Petitioner shoot the victim.
Dana Pruett was the sister of Stacy Pruett and girlfriend of co-defendant William
Peete. Dana Pruett was also the girlfriend of Joshua Russell. She was acquainted with the
Petitioner because of his friendship with her boyfriend and because he spent a lot of time
at the back house. Pruett knew that the Petitioner had a silver and black handgun because
she kept the gun in a drawer in her room to keep it away from the children. She testified
that she had seen the Defendant with this gun prior to the offense, and she never saw the
Petitioner with it again after the offense.
Joshua Russell, Dana Pruett’s boyfriend, testified that on the night of the offense,
between 10:00 and 10:30 p.m., Russell and Pruett were putting her baby to bed. He stated
that Pruett fell asleep, and he went to get something to eat. He heard a gunshot and went
outside to investigate. He testified, “I seen [sic] a black male about two steps from the
woods and then I seen [sic] [the victim] on the ground with the garbage can had flipped
over on top of him.” After realizing the victim had been shot, he returned to the house and
told Pruett to call 911. Russell testified that he had last seen the Petitioner about an hour
to an hour and a half prior to laying the baby down. He did not see the Petitioner after he
heard the gunshot. Prior to the shooting, the Petitioner had told Russell that he “need[ed] a
lick” or “[a]n easy way to come across money.” Russell also testified that, prior to the
shooting, he had seen the Defendant with a 40-caliber semiautomatic pistol with silver on
it. After the victim was shot, the Petitioner called Russell on Russell’s cell phone and said,
“I’ve been in the club for the last two hours. I can’t hear you, I’m going to call you back
when I go outside the club.” Russell stated that the victim had been “flashing large sums
of money” by “driving around talking about how much money he had and holding it out
like this out the window.” He added, “And where we live you don’t do that.”
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Shelby Thompson, the victim’s girlfriend at the time he was killed, was with the
victim a little before 10:30 p.m. on the night of the offense, and she testified that when they
pulled up in front of the Pruetts’ house, co-defendant Peete got out of his car and walked
up to the driver’s side of their truck. The only thing she remembered was the sound of feet,
someone coming up to the window and “putt[ing] a gun in the window and tell[ing] [the
victim] to give him all his money and shot.” The only thing she could remember about the
shooter was he was “wild-eyed. Like, almost like he was scared too.” She added that the
shooter was wearing a red bandana over his face. She testified that the victim got out of
the truck and ran off. The shooter ran after him. She got out of the truck and asked co-
defendant Peete what to do. Peete did not respond but jumped a fence. She followed him.
She and Peete then approached the victim, who was lying on the ground. She did not walk
up to the victim but began calling the police.
Nicholas Parker testified that, at the time in question, he lived “at the opposite end
of the street where the incident happened.” He testified and confirmed in large part the
testimony of Thompson concerning the events leading up to the offense. He agreed that
while at a gas station, a “heavy set, bald black guy” came up to the driver’s door and told
the victim to come by the house, “that he’d smoke a blunt with him.” Parker did not know
who this man was. The victim agreed to come by. When they pulled up to the house, “the
guy that was at the store walked out and walked around to the driver’s door and pulled the
blunt out and lit it.” The man “hit it a couple of times” and then passed the “blunt” to the
victim. The next thing Parker remembered was the sound of footsteps, a guy running up
to the driver’s door, pointing a gun in the victim’s face and demanding his money. Parker
could not identify the perpetrator and observed only “a red bandana up to his nose and
something black over the top of his head where just like the eyes where you can see[.]”
Parker stated that the gun was a semiautomatic and “a larger caliber.”
Benjamin Sykes testified that he spent a lot of time with the Pruetts’ and that he also
knew the victim. He also knew the Petitioner and stated that they had become friends when
Sykes was twelve years old. They spent a lot of time together, including smoking
marijuana and snorting powder cocaine. Sykes had received disability payments for ADHD
and took medication for it. Three or four weeks before the shooting, Sykes saw the
Petitioner with a weapon. On the night of the offense, Sykes was visiting another friend,
smoking marijuana, and drinking beer. He saw police cars nearby and called the Petitioner,
who answered and sounded “[l]ike he was trying to catch his breath while he was running.”
The Petitioner told Sykes that he, the Petitioner, thought that he had shot someone. Sykes
ended the phone call, but the Petitioner called him later that night. The Petitioner asked
Sykes, “did he die or anything?” Sykes responded affirmatively. Sykes later spoke with
the police and identified the Petitioner from a photographic array.
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Sykes acknowledged that he had been convicted of aggravated assault on July 25,
2011. While he was in jail for that offense, he saw the Petitioner, who told him “to call
this investigator and make another statement saying that [he, Sykes] was slow and [he’s]
on medication and that [he] get [sic] a check.” The Petitioner also told Sykes that he should
change his story to the effect that the caller was not the Petitioner and that it was hearsay.
The Petitioner also wrote him a letter telling him how to change his story. On cross-
examination, Sykes denied that co-defendant Peete had discussed robbing the victim with
him. He admitted that co-defendant Peete had talked to him on May 7 about “hitting a lick”
but denied that Peete referred to the victim’s name.
Because this court has previously held that the trial court erred in consolidating the
Petitioner’s indictments, we will abbreviate our consideration of the testimony of Tiffany
Benson in our analysis. Tiffany Benson testified that, in May 2009, she had been dating
the Petitioner for about four months. As of May 7, 2009, she did not know the victim, the
Pruetts, Smith, Peete, or Sykes. “[L]ater on” during the night of May 7, 2009, the Petitioner
came by Benson’s home after calling her and telling her that he wanted to talk to her. When
he arrived thirty minutes to an hour later, he “looked normal, just like his shirt looked like
it had been ripped or something.” Later that evening, Benson noticed that the Petitioner
was watching the news on television. She testified that the Petitioner told her “that it was
a plan, it supposed to have been a plan,” “[t]hat he ran up to a truck and laid everybody
down.” He told her “that he tried to lay everyone down and the guy wouldn’t lay down so
he pulled the gun on him.” He told her that, after he pulled the gun, it “went off.” At that
point, the Petitioner told her, he “just start running.” The Petitioner did not tell her who
the victim was or where the shooting occurred. Benson described the Petitioner’s demeanor
during this conversation as “scared, frightened, like he really didn't want to tell [her].”
A. Notice of Alibi Violation. We must note at the top of our analysis that a close
reading of the trial transcript shows that trial counsel abandoned any effort to proceed with
his alibi theory of defense before trial. When the State asked the court for time to speak
with Walter Patterson, the purported defense alibi witness, because they had been unable
to subpoena him, trial counsel responded they did not intend to call him at trial based on
their prior interviews with him. Trial counsel additionally testified at the post-conviction
hearing that he could not proceed forward with his initial alibi defense, not because of the
State’s failure to timely provide him with information rebutting his purported alibi witness,
but because he was ethically prohibited from doing so. The record does not reveal the
precise nature of trial counsel’s ethical conflict, and it presumably involved presenting
potentially false testimony from the defense alibi witness. See, e.g., United States v. Curtis,
742 F.2d 1070, 1074 (7th Cir. 1984) (where defendant admitted his involvement in offense
to defense counsel after co-defendant’s turned government witnesses admitted to defense
counsel that defendant was involved in the offense and concluding that in accordance with
ethical obligation to refrain from knowingly using perjured testimony or false evidence,
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defense counsel properly refused to present the alibi witnesses). When a defendant
manufactures false alibi witnesses, this court is hard pressed to subsequently conclude that
he suffered prejudice based on his own wrongdoing.
In any event, in regard to trial counsel’s failure to object to the State’s violation of
Rule 12.1(b), the Petitioner’s main complaint is that trial counsel would not have made the
comment in opening statement that no one would place the Petitioner at the scene of the
offense. We agree that this could have easily been avoided had trial counsel properly
objected to the State’s violation of Rule 12.1(b), to the extent that Rule 12 was genuinely
in play. However, for the reasons that follow, we do not believe the Petitioner has
established actual prejudice. First, the only person to place the Petitioner at the time and
place of the offense was his co-defendant, the person with whom the Petitioner was
criminally responsible in the death of the victim. The credibility of co-defendant was in
question prior to trial, and trial counsel exhaustively cross-examined the co-defendant over
a period of two-days. Although trial counsel viewed the case as entirely circumstantial
without the testimony of co-defendant Peete, the Petitioner told two witnesses that he
needed money or intended to rob the victim on the day of the offense, and he confessed his
involvement to shooting the victim to two other witnesses. The remedy for a violation of
the rule is limited to a continuance, exclusion of the testimony, or a mistrial. We conclude
that even if trial counsel was given more time to prepare or the testimony of co-defendant
Peete was excluded, it would not have made a difference in the outcome of the trial.
B. Brady. In regard to trial counsel’s corresponding failure to object the State’s
failure to disclose impeachment evidence under Brady, we forego full analysis because co-
defendant Peete’s inconsistent statement identifying the Petitioner as the shooter fails to
meet the materiality prong, the basis under the Brady test which triggers a new trial. The
Tennessee Supreme Court defined “material” within the context of Brady:
Evidence is deemed to be material when “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” [A] reviewing court must determine
whether the defendant has shown that “the favorable evidence could
reasonably be taken to put the whole case in such a different light as to
undermine the confidence of the verdict.” In other words, evidence is
material when, because of its absence, the defendant failed to receive a fair
trial, “understood as a trial resulting in a verdict worthy of confidence.”
Johnson v. State, 38 S.W.3d 52, 58 (citations omitted) (emphasis added). As we alluded
to in the previous section, the State’s case against the Petitioner was strong. Trial counsel
was already in possession of material with which to impeach co-defendant Peete, and the
fact that trial counsel did not have additional impeachment material did not deprive the
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Petitioner of a fair trial. Because the Petitioner failed to show that the evidence was
material, he is not entitled to relief.
Related to this issue, the Petitioner makes several stand-alone constitutional claims
that he is entitled to plain error and cumulative error relief because the State committed
prosecutorial misconduct by unfairly surprising the defense with co-defendant Peete’s
testimony at trial and by willfully withholding concessions made to co-defendant Peete in
exchange for his testimony against the Petitioner at trial. In response, the State asserts that
the Petitioner has waived these claims by failing to raise them on direct appeal. We agree
with the State and conclude that these claims are waived.
Failure to Present Alibi and Third-Party Perpetrator Defenses. The Petitioner
next argues that trial counsel was ineffective in failing to present an alibi defense by
showing that the Petitioner was with Walter Patterson, the purported alibi witness, at the
time of the crimes. He asserts that if trial counsel had called Patterson to so testify, this
evidence would have corroborated the defense theory that the Petitioner was not the shooter
and would have impeached several witnesses who testified against the Petitioner at trial.
As outlined in the above section, at the post-conviction hearing, trial counsel testified that
he could not “ethically” put Walter Patterson on the stand in light of the Petitioner’s
numerous post-offense admissions and attempts to coerce the State’s witnesses. In denying
relief, the post-conviction court accredited trial counsel’s testimony on this issue and found
that trial counsel “was prepare[d] for trial[,]” and “put together a coherent theory of
defense” but that trial counsel’s “theory of defense was undermined by petitioner to the
point that his conviction became . . . an inevitability.” In addition to our previously
expressed concerns about the speciousness of the Petitioner’s purported alibi, we conclude
that the evidence of the Petitioner’s guilt, including his inculpatory admissions to Sykes
and Benson immediately after the shooting, was overwhelming. Accordingly, we conclude
that the Petitioner has not shown that trial counsel’s failure to present the alibi defense was
deficient.
The Petitioner also argues that trial counsel failed to present a third-party perpetrator
defense by showing that co-defendant William Peete and Benjamin Sykes had a plan to rob
the victim. He claims that Sykes had a motive to commit the offenses because Sykes
admitted he was in dire need of money to pay his light bill the day of the shooting. He also
claims that Sykes fit the description of the perpetrator given by Shelby Thompson, that
Sykes admitted he was in the area of the crime scene, and that Sykes told investigator Vita
Zelikov he met up with co-defendant William Peete and Stacy Pruett to talk about the
shooting after the police left the crime scene. The Petitioner asserts that trial counsel should
have used this evidence of a robbery plan to show that Benjamin Sykes and William Peete
were responsible for the victim’s death, not the Petitioner. He also asserts that despite the
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admission of the letters and phone calls related to the coercion and bribery charges, trial
counsel still had a duty to present a legitimate defense for him at trial.
At the post-conviction hearing, trial counsel stated that he attempted to point the
finger at Benjamin Sykes as a possible third-party perpetrator. He said that although he
was able to get Sykes to admit on cross-examination that Sykes had talked with co-
defendant William Peete about “hitting a lick,” Sykes denied that co-defendant William
Peete identified the victim by name. Trial counsel said that Sykes admitted during his
interview with Zelikov that he and co-defendant William Peete discussed robbing the
victim specifically, as well as robbing a Mexican restaurant. However, he said he did not
want to impeach Sykes with Zelikov’s report because Sykes had also told Zelikov that he
was not interested in co-defendant William Peete’s plan to rob the victim. Trial counsel
explained that it was common for defense attorneys to make a “strategic choice” between
impeaching someone directly or leaving a question open-ended in order to argue the point
to the jury, and he asserted that any third-party perpetrator would have denied involvement
in forming a robbery plan if he had asked that question directly.
With regard to the claim that trial counsel failed to present evidence of Benjamin
Sykes’s guilt, the post-conviction court concluded, in relevant part, as follows:
This court does not find counsel was ineffective in his cross[-
]examination of Sykes. Counsel used the information gathered during the
defense investigation to attempt to impeach Sykes and argued that point to
the jury. This court agrees that the investigators synopsis of his
conversations with Sykes could not be introduced as impeachment evidence
once Sykes had denied conspiring with William Peete. The conversations
were not recorded or written and were not signed by Sykes. Thus, the court
finds [P]etitioner is not entitled to relief on the basis of his claim. Moreover,
regardless of whether [P]etitioner called Sykes[,] as Sykes testified at trial[,]
or Sykes contacted [P]etitioner, this fact would not contradict or change
Sykes[’s] claim that he spoke with [P]etitioner shortly after the murder and
[P]etitioner told him he had “shot someone.” Additionally, any
inconsistencies in Sykes[’s] accounts regarding whose phone was used [or]
who was present when the call was made w[ere] minimal and not material.
Thus, counsel was not ineffective in further investigating this call.
Moreover, [P]etitioner has failed to present any proof in support of his
claims; and, thus, is not entitled to relief.
In denying relief, the post-conviction court held that “it was petitioner’s actions that
were directly responsible for his conviction[s] in this case and offered the greatest evidence
against him.” We conclude that trial counsel effectively presented a third-party perpetrator
- 15 -
defense by eliciting an admission from Sykes on cross-examination that co-defendant
William Peete had talked to him about “hitting a lick” and by impeaching co-defendant
William Peete with his different statements about the shooting. Because trial counsel
pursued a reasonable trial strategy with regard to Sykes and Peete, the Petitioner has not
shown that trial counsel’s handling of the third-party perpetrator defense was deficient.
Failure to Conduct a Reasonable Investigation. The Petitioner argues that trial
counsel was ineffective in failing to conduct a reasonable investigation and in failing to
argue facts to the jury that were consistent with the defense’s theory of the case. The post-
conviction court made the following findings and conclusions:
This court finds [P]etitioner had the benefit of at least two trial
attorneys working on his case and a defense investigator. Lead trial counsel
testified that he reviewed the entire case; directed his investigators to speak
to witnesses and conduct other tasks; and reviewed the entirety of their
investigation. He stated he was prepared for trial. However, counsel
repeatedly emphasized that the presentation of the defense theory of the case
was greatly impacted by the negative actions of the [P]etitioner which further
implicated him in the crime. He stated that in the beginning, he felt the
defense had a legitimate strategy of challenging the identity of [P]etitioner
as the shooter. He stated, however, that as time went on [P]etitioner’s
repeated attempts to influence or coerce witnesses and his prolific
correspondence with key witness Tiffany Benson became more than the
defense could overcome and indicated that it was [P]etitioner’s actions that
were directly responsible for his conviction in this case and offered the
greatest evidence against him. The court accredits counsel’s testimony on
this point and finds not only was counsel familiar with the facts; conducted
an adequate investigation and was prepare for trial—counsel also put
together a coherent theory of defense. However, that theory of defense was
undermined by [P]etitioner to the point that his conviction became in the
words of counsel an inevitability.
Initially, the Petitioner asserts that trial counsel failed to investigate and interview
Joshua Walton, who gave a statement asserting that co-defendant William Peete attempted
to bribe Walton to tell the police that co-defendant Peete was not involved in the crimes
against the victim. The Petitioner claims this evidence could have impeached co-defendant
Peete’s credibility and could have undermined the credibility and truthfulness of Joshua
Russell, Heather Emery, Charles Smith, and Dana Pruett, who were all relatives of Stacy
Pruett, co-defendant Peete’s girlfriend, and who may have been bribed to give false
testimony against the Petitioner. In his May 25, 2009 statement to police, Joshua Walton
explained that he was incarcerated at the time the victim’s homicide occurred and that he
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did not know who was responsible for the victim’s death. Walton then identified co-
defendant Peete from a photographic lineup. He explained that, while he and co-defendant
Peete were housed together at the jail, co-defendant Peete said that if Walton “told
homicide investigators [co-defendant Peete] didn’t have anything to do with the [victim’s]
case[,] that [co-defendant Peete] would have his girl or wife pay [Walton’s] bail.” Walton
also said co-defendant Peete told him “he would make sure that no other inmates bothered
[him]” and that co-defendant Peete “would look after [him].” As to whether trial counsel
provided ineffective assistance on this issue, we conclude that any use of Walton’s
statement could have more firmly linked co-defendant Peete and the Petitioner in a plan to
rob the victim and could have helped establish the Petitioner as the shooter. Accordingly,
we conclude that the Petitioner has not demonstrated that trial counsel was deficient in
failing to investigate and interview Joshua Walton.
Next, the Petitioner argues that trial counsel failed to conduct a reasonable
investigation into his cell phone records. He claims that because the only two numbers that
called his cell phone after the shooting belonged to Darrius Bell and Bernard Martin, this
information impeached Benjamin Sykes’s testimony at trial that Sykes called the Petitioner
on the night of May 7, 2009, and that during this conversation, the Petitioner admitted he
thought he had shot someone. Initially, we recognize that the phone records were never
authenticated at the post-conviction hearing and were admitted into evidence without any
detailed testimony concerning their contents. Moreover, despite the Petitioner’s claim that
the only two numbers who called his cell phone belonged to Bell and Martin, our evaluation
of these records shows that there were a substantial number of incoming calls from
unidentified numbers made to the Petitioner’s cell phone and a substantial number of
outgoing calls to unidentified numbers made from the Petitioner’s cell phone shortly after
the shooting. Therefore, we conclude that the Petitioner has not established that trial
counsel’s investigation into his phone records was deficient.
Similar to the previous issue, the Petitioner argues that trial counsel failed to conduct
a reasonable investigation into Darrius Bell and Bernard Martin, claiming that their
testimony could have impeached Sykes’s testimony that the Petitioner admitted to Sykes
that he thought he had shot someone. In light of the sheer number of phone calls made to
and from the Petitioner’s cell phone shortly after the shooting, we conclude that the
Petitioner has failed to establish that trial counsel’s performance as to this issue was
deficient.
In addition, the Petitioner claims that trial counsel failed to conduct a reasonable
investigation into Heather Emery, whose testimony at trial varied from her statement to
police. He claims that at trial, Emery testified that she saw the Petitioner come into the
home shortly before the shooting and pick up a wadded up shirt before leaving, which
implied that the Petitioner concealed a gun in the wadded up shirt and placed the Petitioner
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at the crime scene shortly before shooting. However, the Petitioner asserts that in her
statement to the police, Emery disclosed that her husband was the one who saw the
Petitioner come into the house and get a shirt prior to the shooting. The Petitioner argues
that because Emery gave conflicting accounts and testified to an incident she did not
personally observe in order to connect him to the crimes, trial counsel should have
investigated Emery. Initially, we recognize that because the Petitioner failed to present the
testimony of Heather Emery at the post-conviction hearing, we cannot speculate on what
her testimony might have been if introduced. See Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be
presented by the petitioner at the evidentiary hearing.”). We agree with the post-conviction
court’s finding that any inconsistencies in Emery’s statements were not “particularly great
or relevant to the defense theory of the case or the credibility of the witness.” Therefore,
the Petitioner has failed to show that trial counsel was deficient in his investigation of
Heather Emery.
Lastly, the Petitioner contends that trial counsel failed to investigate Detective Mark
Miller’s supplement, which he claims could have been used to impeach co-defendant Peete.
In his supplement, Detective Miller noted that co-defendant Peete disclosed at the crime
scene that the perpetrator ran up to the victim’s truck while co-defendant Peete was
standing outside it talking to the victim; that the perpetrator pointed a pistol at co-defendant
Peete and told him to get his hands up and to “back off the truck;” that co-defendant Peete
complied and ran off; that as co-defendant Peete was running away, he heard one shot; and
that co-defendant Peete saw the perpetrator, whom he never identified, run eastbound
through the woods up to the railroad tracks. Our evaluation of the record shows that
Detective Miller’s supplement did not have any great exculpatory value and that trial
counsel exhaustively impeached co-defendant Peete on the basis that Peete’s statements to
police greatly differed from his testimony at the Petitioner’s trial. Thus, we conclude the
Petitioner has not demonstrated that trial counsel’s investigation into Detective Miller’s
supplement was deficient.
Failure to Call Certain Witnesses at Trial. The Petitioner also contends that trial
counsel was ineffective in failing to call Kevin Peete, Darrius Bell, Bernard Martin,
Detective Miller, defense investigator Vita Zelikov, and Joshua Walton to testify at trial.
The post-conviction court determined, in relevant part, as follows:
This court finds petitioner failed to present the testimony of . . . Joshua
Walton; Lt. Ragland; Detective Miller . . . or Vita Zelikov to testify at the
post-conviction hearing. . . . Thus, the court finds as to these witnesses
petitioner has failed to demonstrate counsel was ineffective in failing to call
them to testify. Specifically, as it relates to investigator, [Vita] Zelikov, this
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court notes counsel indicated that he reviewed all of the investigation in the
case but stated it was difficult to call investigators for purposes of
impeachment because the statements they took were not recorded or signed
by the witnesses but rather were general impressions of the investigator and
synopsis of their conversations with the witnesses. Therefore, it is unclear
the investigator could be called to impeach those witnesses. Thus, the court
further finds, even if the rule in Black did not apply [because the Petitioner
did not present Zelikov to testify at the post-conviction hearing], [P]etitioner
failed to demonstrate counsel was ineffective in failing to call the defense
investigator at trial.
This court further finds that neither Dar[r]ius Bell or Bernard Martin
provided any relevant testimony which, even if presented, may have affected
the outcome of [P]etitioner’s trial. Bell testified that on the night of the
victim’s murder, [Petitioner] called him between 10:00 p.m. and 11:00 p.m.
and made plans to “hang out” later in the evening. He stated he had not seen
the [Petitioner] in person for several weeks prior to the offense and indicated
it could have been months since he had last spoken to [Petitioner] by phone.
This court finds the evidence failed to establish an alibi and could have been
considered by jurors as evidence of [Petitioner]’s attempts to cover up the
murder by trying to manufacture an alibi. As such, this court does not find
counsel’s decision not to call Bell was ineffective. As to Martin, this court
finds his testimony had no relevance at all. He could not recall his number
from 2009 and could provide no details regarding [Petitioner]’s whereabouts
on the evening in questions.
Finally, the court finds, although counsel did not call Kevin Peete at
trial he did in fact question William Peete about Kevin Peete’s assertion that
William Peete stated, on the evening of May 7, 2009, “we getting ready to
get” a pistol, a .40 or .45 caliber, and “get Ben, [the victim,]” because Ben
had some money. William Peete denied this allegation. Kevin Peete stated
he did not know to whom William Peete was referring when William Peete
said “we” and he did not witness the shooting. It’s unclear that Kevin Peete
could be called to testify regarding this statement. Even so, his testimony
would have added little to the proof.
William Peete was charged along with [P]etitioner under a theory of
criminal responsibility. While Kevin Peete’s testimony may have further
impeached William Peete it did nothing to bolster the defense team’s attempt
to present a third[-]party defense. Moreover, nothing about this information
changed the fact that, although William Peete may have set up the robbery,
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Peete was clearly not the shooter. As counsel explained at the post-
conviction hearing, the issue in pointing the finger at Peete was that such a
strategy likely also pointed the finger at [P]etitioner as well and by tying the
two together clearly implicated [P]etitioner as the shooter in their scheme.
Numerous trial witnesses, who were within the victim’s vehicle at the time
of the shooting, clearly recalled seeing William Peete approach the vehicle
and interact with the victim and indicated he was not the same individual
who shot the victim. Thus, even though the jury may have considered this
as impeachment evidence or inculpatory evidence against William Peete, this
proof did not implicate William Peete as the shooter and if the goal was to
tie William Peete to a scheme to rob the victim, nothing about this proof
would exonerate [P]etitioner or diminish his involvement. Rather it could
have the opposite effect of tying William Peete to the scheme to rob the
victim and since William Peete and the [P]etitioner were seen together in the
minutes before the shooting, thereby, further implicat[ing] [P]etitioner as the
shooter. Thus, this court does not find counsel’s strategic choice not to call
Kevin Peete to impeach the testimony of William Peete . . . unreasonable or
based upon a lack of preparation or in any way fell below an objective
standard of reasonable practice under the circumstances. Moreover, even if
the court were to find counsel were ineffective in failing to call Kevin Peete
as a witness, the [P]etitioner has failed, given the thorough cross examination
of William Peete, to demonstrate he was prejudiced by counsel’s inaction.
First, the Petitioner claims trial counsel was ineffective in failing to call Kevin Peete,
whose testimony he claims could have firmly established co-defendant Peete as an
accomplice, could have impeached co-defendant Peete’s testimony identifying the
Petitioner as the perpetrator, and could have provided an alternate theory that co-defendant
Peete and Benjamin Sykes were responsible for shooting the victim. The Petitioner argues
that Kevin Peete’s testimony was critical to proving that immediately after the shooting,
co-defendant Peete and Stacy Pruett began bribing witnesses to give false information in
an attempt to frame the Petitioner for the victim’s death and to cover for the real
perpetrators, Benjamin Sykes and co-defendant Peete. We conclude that the record fully
supports the post-conviction court’s holding that nothing about Kevin Peete’s testimony
would have exonerated the Petitioner or diminished his involvement in this crime and that
Kevin Peete’s testimony could have had the opposite effect of further implicating the
Petitioner as the shooter. Consequently, the Petitioner has not established that trial
counsel’s failure to call Kevin Peete at trial was deficient.
As his next two issues, the Petitioner contends that trial counsel was ineffective in
failing to call Darrius Bell and Bernard Martin, presumably for the purpose of impeaching
Benjamin Sykes’s testimony that the Petitioner admitted that he thought he had shot
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someone. We reiterate that the Petitioner’s phone records show that a substantial number
of calls were made from the Petitioner’s cell phone and to the Petitioner’s cell phone shortly
after the shooting, thereby making Bell’s and Martin’s testimony on this issue irrelevant.
Accordingly, the Petitioner has not established that trial counsel’s failure to call Bell and
Martin was deficient. Fourth, the Petitioner contends that trial counsel was ineffective in
failing to call Detective Mark Miller, who could have impeached co-defendant Peete’s
credibility by testifying that co-defendant Peete provided an oral statement to him shortly
after the crimes that was inconsistent with co-defendant Peete’s trial testimony. Initially,
we recognize that because the Petitioner failed to present the testimony of Detective Miller
at the post-conviction hearing, we cannot speculate on what his testimony might have been
if introduced. See id. In any case, for the same reasons as outlined above, we believe that
Detective Miller’s testimony would not have had substantial exculpatory value, given that
trial counsel thoroughly impeached co-defendant Peete on the basis that co-defendant
Peete’s written statements to police were inconsistent with his trial testimony. Thus, we
conclude that the Petitioner has failed to show that trial counsel’s failure to call Detective
Miller was deficient.
Fifth, the Petitioner argues that trial counsel was ineffective in failing to call Vita
Zelikov, the defense investigator in this case, who interviewed Benjamin Sykes and Joshua
Russell and made certain findings after reviewing the 9-1-1 tape. The Petitioner claims
that Zelikov’s testimony would have impeached the testimony of Benjamin Sykes and
Joshua Russell, but he fails to specifically explain how Zelikov’s testimony would have
impeached Sykes and Russell. In any case, the record shows the Petitioner did not present
Zelikov to testify at the post-conviction hearing, and we may not speculate as to what
Zelikov’s testimony might have been. See id. Accordingly, we conclude that the Petitioner
has not established that trial counsel’s failure to call Zelikov at trial was deficient.
Sixth, the Petitioner asserts that trial counsel was ineffective in failing to call Joshua
Walton, who could have testified that co-defendant Peete attempted to bribe Walton to tell
the police that Peete did not have anything to do with the victim’s case. The Petitioner
asserts that he was unable to have Walton testify at the post-conviction hearing because
Walton recently died, though Walton was alive at the time of the trial, and the Petitioner
claims to have attached Walton’s certified death certificate to the appendix to his brief.
Even if the Petitioner did attach Walton’s death certificate, this court cannot consider
documents attached to briefs because they are not properly a part of the certified record.
See State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (“What is in the record sets the
boundaries for what the appellate courts may review, and thus only evidence contained
therein can be considered.”); LaBryant King v. State, No. M2004-01371-CCA-R3-PC,
2005 WL 1307802, at *3 n.3 (Tenn. Crim. App. June 1, 2005) (“While our Rules of
Appellate Procedure permit an appellant to file an appendix containing relevant portions
of a record, see Tennessee Rule of Appellate Procedure 28, the documents must also be
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included in the record itself.”). Because Walton’s death certificate was not included in the
appellate record, we cannot consider it. Moreover, as we recognized in the first section,
Walton’s testimony could have more firmly linked co-defendant Peete and the Petitioner
in a plan to rob the victim and could have helped establish the Petitioner as the shooter.
Therefore, we conclude that the Petitioner has not demonstrated that trial counsel’s failure
to call Joshua Walton was deficient.
Failure to Cross-Examine and Impeach Certain Witnesses. The Petitioner
maintains that trial counsel was ineffective in failing to impeach Heather Emery with her
police statement and her relationship with Stacy Pruett; in failing to impeach Joshua
Russell with the 9-1-1 call, his relationship with Stacy Pruett and William Peete, his
statement to the defense investigator, and his cell phone records; in failing to impeach
Benjamin Sykes and Tiffany Benson with his cell phone records; and in failing to impeach
William Peete with Detective Miller’s report. The post-conviction court made the
following findings and conclusions:
This court first noted that none of these witnesses[, namely Heather
Emery, Joshua Russell, Benjamin Sykes, and Tiffany Benson,] were called
to testify at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn.
Crim. App. 1996). Thus, the court cannot adequately judge what impact any
alleged impeachment evidence may have had on their trial testimony.
Moreover, specifically as to witness Emery, trial counsel testified at the post-
conviction hearing that he did not feel the alleged impeachment was
particularly helpful or that the inconsistencies pointed out by [P]etitioner
were particularly great or relevant to the defense theory of the case or the
credibility of the witness. This court agrees.
Counsel further stated that he feared further impeachment of Sykes or
Benson would potentially open the door for the state to put on additional
evidence of coercion; therefore, he made a strategic decision to limit his
cross-examination of those witnesses and argue certain inferences of their
testimony to the jury. He also stated that he did not directly challenge Sykes
on his involvement because he wanted to be able to argue certain information
to the jury. The court does not find counsel’s actions were unreasonable or
fell below the standards of prevailing professional norms. Thus, [P]etitioner
has failed to demonstrate by clear and convincing evidence either that
counsel was ineffective or that he was prejudiced by counsel’s action or
inaction.
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Finally, counsel indicated that the defense team had Joshua Russell’s
phone records but could not recall the nature of the investigation into those
records. This court finds counsel has failed to present sufficient evidence to
establish additional impeaching information was available that should have
been used by counsel to counter the testimony of Russell. Thus, he, likewise,
is not entitled to relief based upon this claim.
First, the Petitioner asserts that trial counsel failed to cross-examine and impeach
Heather Emery, Stacy Pruett’s aunt, regarding her relationship with Stacy and regarding
Emery’s inconsistent statement to police. Again, we recognize that because the Petitioner
did not present Emery to testify at the post-conviction hearing, we may not speculate as to
what her testimony might have been. See id. In any case, we agree with the post-conviction
court’s holding that any inconsistencies in Emery’s statements were not “particularly great
or relevant to the defense theory of the case or the credibility of the witness.” We also
conclude that the fact that Emery was Stacy Pruett’s aunt did not have great impeachment
value. Consequently, we conclude that the Petitioner has not shown that trial counsel was
deficient in failing to impeach Emery.
Second, the Petitioner also asserts that trial counsel failed to play the 9-1-1 call
placed on May 7, 2009, at this trial for the purpose of impeaching Joshua Russell. Although
the Petitioner never played the 9-1-1 call at the post-conviction hearing and never made it
an exhibit to the hearing, he nevertheless asserts that during this 9-1-1 call, someone, who
identified himself as “Josh,” stated that he had not witnessed the crime and did not see the
person who had shot the victim but had heard a gunshot and had seen that the victim had
been shot in the chest. The Petitioner claims, without any supporting proof, that Joshua
Russell was the person who identified himself as “Josh” on the 9-1-1 call and that Russell’s
alleged statements on the 9-1-1 call were at odds with Russell’s testimony at trial, when he
said that the appearance of the person he had seen running from the scene was consistent
with the Petitioner. The Petitioner insists that the 9-1-1 call “was highly relevant” to
impeach Russell’s tentative identification of him at trial because this 9-1-1 call occurred
before Stacy Pruett and William Peete began bribing witnesses to make false accounts
regarding the incident. Initially, because the Petitioner failed to play the 9-1-1 call at the
post-conviction hearing, failed to make it an exhibit, and failed to present testimony from
Joshua Russell, we are precluded from speculating about what this evidence would have
shown if introduced. See id. In any case, the Petitioner has failed to show that the person
who identified himself as “Josh” on the 9-1-1 tape was actually Joshua Russell. For these
reasons, we conclude that the Petitioner has not shown that trial counsel was deficient in
failing to play the 9-1-1 call at trial for the purpose of impeaching Joshua Russell.
Third, the Petitioner argues that trial counsel failed to impeach Joshua Russell with
testimony from Vita Zelikov, who interviewed Russell prior to trial. He asserts that Russell
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testified at trial that the Petitioner had told him he needed an easy way to obtain money and
that he had seen the Petitioner with a .40 caliber pistol, but Russell never mentioned these
things during his interview with Zelikov. The Petitioner argues that trial counsel should
have impeached Russell with testimony from Zelikov, who could have established a motive
for Russell to lie about his identification of the Petitioner. Again, because the Petitioner
failed to present the testimony of Zelikov at the post-conviction hearing, we cannot
speculate on what Zelikov’s testimony might have been if introduced. See id.Accordingly, we conclude that the Petitioner has not established that trial counsel was
deficient in failing to impeach Russell with Zelikov’s testimony at trial.
Fourth, the Petitioner asserts that trial counsel failed to impeach Joshua Russell with
the Petitioner’s cell phone records. He asserts that his phone records establish that Joshua
Russell called the Petitioner four times but Russell was unable to reach him and that Russell
only called the Petitioner in an attempt to develop him as a suspect. However, Russell
testified at trial that the Petitioner was the one who called him while Russell was in the
backseat of a police car. The Petitioner claims that his phone records prove that Russell
fabricated his trial testimony in order to cover up for William Peete and Stacy Pruett. Here,
the Petitioner has failed to show how trial counsel could have used the Petitioner’s cell
phone records to impeach Russell or how this impeachment would have impacted the
outcome of his trial. Therefore, the Petitioner has not shown that trial counsel’s failure to
impeach Joshua Russell with these phone record was deficient.
Fifth, the Petitioner argues that trial counsel failed to impeach Benjamin Sykes with
the Petitioner’s cell phone records. He again claims that these records show that the only
two people who called and spoke to the Petitioner following the crime were Bernard Martin
and Darrius Bell, which was at odds with Sykes’s testimony that the Petitioner admitted he
thought he had shot someone. Once again, we note that in light of the numerous phone
calls made to and from the Petitioner’s cell phone shortly after the shooting, the Petitioner
has not shown that trial counsel’s failure to impeach Benjamin Sykes with these phone
records was deficient.
Sixth, the Petitioner contends that trial counsel failed to impeach Tiffany Benson
with his cell phone records. He asserts that Benson testified at trial that she awoke at 3:00
a.m. on May 8, 2009, and witnessed the Petitioner talking on his phone to a woman, who
was crying, and that immediately after this phone conversation, the Petitioner made
admissions to Benson about his involvement in the crime. He further asserts that Benson
testified that the Petitioner was in her bed at 7:00 a.m. on May 8, 2009. However, the
Petitioner claims his phone records show that he made no outgoing calls on his cell phone
from 11:25 p.m. on May 7, 2009, to 7:18 a.m. on May 8, 2009, and that every incoming
phone call to his cell phone during this period went unanswered. The Petitioner also
maintains that these phone records also show that Benson called his cell phone at 6:49 a.m.
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on May 8, 2009. We conclude that the most significant part of Benson’s testimony was
her statement that the Petitioner admitted that he was involved in the shooting, something
that the timing of phone calls would do nothing to diminish. Accordingly, we conclude
that the Petitioner has not shown that trial counsel’s failure to impeach Benson with his
phone records was deficient.
Seventh, the Petitioner argues that trial counsel failed to impeach William Peete
with Detective Mark Miller’s police supplement, which memorialized William Peete’s oral
statement at the crime scene that was inconsistent with Peete’s testimony at trial that the
Petitioner was the shooter. Once again, we conclude that Detective Miller’s supplement
did not have any significant exculpatory value and that trial counsel exhaustively
impeached William Peete on the basis that his written statements to police were
inconsistent with his trial testimony. As a result, the Petitioner has not shown that trial
counsel’s failure to impeach William Peete with Detective Miller’s supplement was
deficient.
Failure to Object and Request Mistrial for State’s Improper Closing
Arguments. The Petitioner maintains that trial counsel was ineffective in failing to object
and request a mistrial when the State committed several instances of prosecutorial
misconduct during its rebuttal closing argument. As for this claim, the post-conviction
court held, in relevant part, as follows:
The court finds [P]etitioner failed to present any proof in support of
[ineffective counsel based on failure to object] or demonstrate any prejudice;
thus, he is not entitled to relief on this issue. Moreover, this court does not
find the State’s closing argument was improper. Even if the court were to
find something improper in the State’s closing arguments, the court finds any
failure on the part of counsel to object did not prejudice [P]etitioner and he
has failed to demonstrate that but for counsel’s inaction the jury in his case
may have returned a different verdict. The specific allegation of improper
argument [is] more fully discussed in the section of this court’s order
discussing prosecutorial misconduct.
....
The [P]etitioner asserts the prosecutor inappropriately appealed to the
jury’s emotions when she stated that the “defendant is desperate in wanting
the truth and he’ll get the truth, ladies and gentlem[e]n, in this court from
you. [The victim] wanted to live and wanted to see his parents [and wanted
to] have a chance to raise a child. He didn’t get his wish.” These statements
were made in the context of the prosecution arguing that the [Petitioner]’s
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jail calls showed his desperation in trying to get Benson to change her
testimony and to give him confirmation that she would consent to his
demands. The court finds that portion of the argument is neither
objectionable; or, improper. The second portion which speaks to the desire
of the victim, the court finds is more problematic. However, even if
improper, employing the analysis outlined above, the court does [not] find
that [the] prosecutor[’]s statements rose to the level that they impacted the
verdict of the jury to the detriment of [P]etitioner. The statements were made
as part of the broader point being addressed in the first portion of this section
of the prosecutor’s arguments; were not overly lengthy; and, when viewed in
the context of the entire argument and all the proof in the case, were not
particularly inflammatory. Thus, this court finds [P]etitioner is not entitled
to relief based upon this claim.
....
The court finds the prosecutors remarks [about the Petitioner’s
statements in his pleading being a “confession”] related to the testimony
linking [P]etitioner’s pro se pleadings to the letters he wrote to Tiffany
Benson. The argument of the prosecution was essentially that the
[P]etitioner’s actions after the offense were strong evidence of his guilt and
assertions that the [P]etitioner himself provided the most damning evidence
of guilt[] through his post-offense actions. This court does not find in this
unique context that the prosecutor’s argument amounted to misconduct.
Moreover, even if the court were to find the argument improper, because as
the court explains above the statements were made against the unique
background of [P]etitioner’s repeated communications attempting to
influence witness[es]; because the court gave an appropriate instruction
relating to how the jury should evaluate [P]etitioner’s inculpatory
admissions; and, because the court finds the proof of guilt in this case was
strong, the court does not[,] even if error[, conclude that] the statements of
the prosecutor were so inflammatory or prejudicial as to render [P]etitioner’s
trial unfair. Thus, he is not entitled to relief on the basis of this claim.
The Petitioner argues herein that trial counsel was ineffective in failing to object to
three distinct acts of misconduct engaged in by the State when it made the following
statements during its rebuttal closing argument:
(1) “You’ve got a gun pointed at you when you know someone has been
doing some drugs, told you he was already going to rob somebody, he points
it at you and tells you to get the F out of [the] way. That going to scare you?
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Let’s say for a minute it didn’t. But [William] Peete told you it did. He
backed up, a decision I submit he will second-guess and think twice about
for the rest of his life. But he backed up and got out of the way.”
(2) “[William] Peete heard the desperation in [the victim]’s voice as [the
victim] fought for his life on May 7th [sic], 2009. And I submit it compares
nothing, nothing to the desperation, if any, that you hear in the defendant’s
voice on those jail phone calls. But the defendant is desperate and wanting
the truth and he’ll get the truth, ladies and gentleman, in this court from you.
[The victim] wanted to live, wanted to see his parents, [wanted to] have a
chance to raise a child. He didn’t get his wish.”
(3) “And ladies and gentlemen, you can look at all these letters [to Tiffany
Benson]. You have Exhibit No. 61[, the pro se Motion to Suppress False
Affidavit]. It’s a handwritten pleading, letter they received through the
Clerk’s Office for this defendant’s case. It says comes now the defendant
Casey Colbert and has his booking number. And when you get to the back,
it says he certifies under penalty of law and it’s got his name. And you know
it’s his [pleading] and you know it’s his writing because you can tell when
you compare it to the letters.
But if you look at the second page [of this pleading], ladies and gentlemen,
and you can look at the whole thing, you notice a couple of things. The meat,
cheese and bread. He dots his I’s with bubbles. When he writes no one, he
doesn’t write no one spelled out, O-N-E. He spells no number one. And
where it says no one identified him as [the perpetrator], ladies and gentlemen,
it really started by saying no one identified [“]me.[”] And you can look and
he crossed out and wrote [“]him.[”] And it’s not the only place he did it. It’s
all throughout.”
The Petitioner argues comment one was improper because the State “appealed to
the fears of the jury by dramatically rephrasing the evidence and making the jur[ors] put
themselves in harm’s way;” comment two was improper because it “went outside the proof
of the homicide to improperly discuss the wants of the victim for the sole purpose of
obtaining an emotional response” and constituted a “thinly veiled appeal to vengeance
emotion;” and comment three was improper because it mischaracterized the “hand writing
exemplar” from his pro se Motion to Suppress False Affidavit as a “confession” or
“admission” to the crimes.
Our review of the record shows that the Petitioner never asked trial counsel about
his failure to object or request a mistrial in response to each of the State’s aforementioned
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arguments during closing. Other than making a general claim that trial counsel should have
objected to the State’s suggestion during closing argument that the pro se motion was “a
quasi-admission” by the Petitioner, the Petitioner presented no evidence, through his own
testimony or through the testimony of any other witness, to show that trial counsel’s failure
to object and request a mistrial in response to the State’s referenced arguments was
ineffective. In its order denying relief, the post-conviction court found that the Petitioner
had “failed to present any proof in support of this allegation or demonstrate any prejudice;
thus, he is not entitled to relief on this issue.” Because the Petitioner has not shown that
trial counsel’s failure to object and request a mistrial in response to the State’s arguments
was deficient, he is not entitled to relief.
As part of his stand-alone corresponding deprivation of due process claims alleging
prosecutorial misconduct and a violation of his right to a fair trial, the Petitioner asserts
that he is entitled to plain error and cumulative error relief because the State committed
prosecutorial misconduct by making the previously referenced comments during its closing
argument. In light of the overwhelming evidence of the Petitioner’s guilt, we agree with
the post-conviction court’s conclusion that even if one or more of these comments were
improper, they “were not so prejudicial that they would warrant the granting of a new trial
in this case.” See State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (stating that this
court must consider the following factors in determining whether the prosecutor’s
argument affected the verdict to the prejudice of the defendant: “(1) the conduct
complained of viewed in the light of the facts and circumstances of the case; (2) the curative
measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in
making the improper arguments; (4) the cumulative effect of the improper conduct and any
other errors in the record; and (5) the relative strength and weakness of the case”). Because
the Petitioner has failed to show that the State’s comments during closing argument
deprived him of his right to a fair trial, he is not entitled to relief on this claim.
Failure to Object to Improper Leading Questioning. The Petitioner argues that
trial counsel was ineffective in failing to object and request a mistrial when the State asked
Tiffany Benson leading questions on direct examination. See Tenn. R. Evid. 611(c)(1).
He claims that because trial counsel allowed the State to ask Benson leading questions
fifty-four times during testimony without objecting, trial counsel essentially allowed the
State to testify for Benson. He also asserts that Benson was not declared a hostile witness
and did not demonstrate a lack of memory, which would have justified the State’s use of
leading questions to develop her testimony. The Petitioner acknowledges that his post-
conviction counsel failed to argue this issue at the post-conviction hearing; however, he
states that he included this issue in his original post-conviction petition [section 10] and
asks this court to consider this issue under plain error review. At the post-conviction
hearing, the Petitioner never identified any leading questions to Benson in the trial
transcript, never asked trial counsel any questions about his failure to object to such leading
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questions, and never provided any testimony showing that trial counsel’s inaction was
ineffective. In its order denying relief, the post-conviction court found that the Petitioner
“failed to present any proof in support of this allegation or demonstrate any prejudice; thus,
he is not entitled to relief on this issue.” In addition, the court did “not find the State
improperly led the witness[].” Here, the Petitioner has failed to provide any proof that the
State asked Benson any leading questions, much less that trial counsel’s failure to object
to these allegedly leading questions was ineffective. Accordingly, the Petitioner has not
demonstrated that trial counsel’s failure to object and request a mistrial in response to the
State’s questioning of Benson was deficient.
Once again, as part of his stand-alone corresponding deprivation of due process
claim alleging prosecutorial misconduct and a violation of his right to a fair trial, the
Petitioner asserts that he is entitled to plain error and cumulative error relief because the
State asked leading questions of Tiffany Benson. Because the Petitioner failed to present
any evidence of any improper questioning of Benson, he also failed to establish that any
such questioning affected his trial, especially in light of the overwhelming evidence of his
guilt presented by the State. Accordingly, the Petitioner has failed to show that the State’s
questioning of Benson deprived him of his right to a fair trial.
II. Cumulative Error. The Petitioner additionally claims that he is entitled to post-
conviction relief based on the cumulative effect of trial counsel’s errors. In particular, he
asks this court “to look at the cumulative impact of all the errors committed when assessing
the prejudice prong of Strickland.” The State responds that because the Petitioner failed to
establish that trial counsel was deficient in multiple respects or that he was prejudiced by
any of the issues raised in this brief, the cumulative error does not apply. We agree with
the State. The cumulative error doctrine “is a judicial recognition that there may be multiple
errors committed in trial proceedings, each of which in isolation constitutes mere harmless
error, but when aggregated, have a cumulative effect on the proceedings so great as to
require reversal in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324
S.W.3d 1, 76 (Tenn. 2010). The cumulative error doctrine only applies when there has
been more than one error committed during the trial proceedings. Id. at 77. Given that the
Petitioner established just a single instance of trial counsel’s deficient performance, there
is no need for this court to consider the aggregate prejudicial effect of trial counsel’s
conduct. The Petitioner also argues that the cumulative effect of his allegations of
prosecutorial misconduct deprived him of a fair trial. Because the single instance of the
State’s failure to comply with Rule 12.1 did not deprive the Petitioner of his right to a fair
trial, there is no cumulative effect to consider.
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CONCLUSION
Because the Petitioner has failed to establish that he received ineffective assistance
of counsel or that the State committed prosecutorial misconduct depriving him of his right
to a fair trial, the judgment of the post-conviction court is affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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