Joshua Simpson v. State of Tennessee

07/27/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
June 7, 2022 Session
JOSHUA SIMPSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
Nos. 17-03802, 17-03803, 17-03804, Paula Skahan, Judge
18-02800, I1900043
No. W2021-00849-CCA-R3-PC
The Petitioner, Joshua Simpson, was convicted upon his guilty pleas to aggravated rape,
aggravated robbery, two counts of aggravated kidnapping, and two counts of aggravated
burglary, for which he received an effective twenty-year sentence. He filed a petition for
post-conviction relief, which the trial court denied after a hearing. On appeal, he contends
that the post-conviction court erred in denying relief on his claims that he received the
ineffective assistance of trial counsel and that he did not knowingly, voluntarily, and
intelligently enter his guilty pleas. We affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.
Lance R. Chism, Memphis, Tennessee, for the Appellant, Joshua Simpson.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Petitioner’s convictions relate to four home burglaries and associated crimes
committed against the homes’ residents. The plea agreement included the dismissal of
additional charges related to the four incidents and a fifth theft incident, and the effective
twenty-year sentence was part of the plea agreement. After the judgments were entered,
the Petitioner filed the present post-conviction action. Counsel was appointed, the petition
was amended, and the matter proceeded to a hearing.
At the post-conviction hearing, Memphis Police Department (MPD) Officer
Timothy Mitchell testified that on August 9, 2017, he and another officer followed the
Petitioner, who was in a car which “was possibly stolen.” Officer Mitchell said that the
other officer tried to conduct a traffic stop but that the driver, later identified as the
Petitioner, fled, lost control, hit a guardrail, and was pinned in the car. Officer Mitchell
stated that as he approached the car, he heard the Petitioner tell the female passenger to run
because the car was stolen. Officer Mitchell said that the female passenger fled on foot
and that he “grabbed . . . and dragged” Petitioner from the car. Officer Mitchell said that
he asked the Petitioner why the Petitioner fled and that the Petitioner said something about
having found the car. Officer Mitchell said the Petitioner later stated to the other officer
that the Petitioner fled because he knew the car had been stolen. Officer Mitchell said he
and the other officer did not advise the Petitioner of his Miranda rights because they
“weren’t asking him about crimes.” Officer Mitchell said he was unaware at the time of
other offenses for which the Petitioner was wanted. Officer Mitchell did not suspect that
the Petitioner was intoxicated and did not smell alcohol or marijuana but said the other
officer found alcohol in a search incident to arrest.
Trial counsel testified that he was appointed to represent the Petitioner in the fall of
2017. Regarding case number 17-03802, which involved a home invasion, rape, and
robbery, counsel stated that the Petitioner gave an inculpatory statement to the police.
Counsel said the victim had stated that she had not seen the perpetrator but that the victim
said the perpetrator was black. Counsel said that no conclusions could be drawn regarding
the identity of the perpetrator when the DNA evidence was submitted to the Tennessee
Bureau of Investigation (TBI) laboratory. Counsel said the Petitioner’s house was searched
in this case and that items related to other crimes were discovered during the search.
Regarding case number 17-03803, which involved a home invasion, restraint of a
victim with duct tape, robbery, and car theft, trial counsel testified that the victim had been
unable to identify the perpetrator. Counsel said that no DNA or fingerprint evidence linked
the Petitioner to this incident but that the Petitioner had given an inculpatory statement and
that the victim’s cell phone had been found during a search of the Petitioner’s home.
Regarding case number 17-03804, which involved a home burglary and car theft,
trial counsel testified that fingerprint evidence was recovered from a cell phone box and
the car, but the prints were never identified as being those of the Petitioner. Counsel said
that a television taken from the victims’ home was found during the search of the
Petitioner’s home and that the Petitioner gave an inculpatory statement about the offense.
Regarding case number 17-03805, which involved a theft from a home doorstep of
a box containing jewelry, trial counsel testified that the items were found during a search
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of the Petitioner’s home. Counsel said the Petitioner gave an inculpatory statement about
the offense.1
Regarding case number I1099943, which involved a home invasion by two men
who dragged the victim from bed, demanded money and the victim’s debit card and PIN,
forced the victim into the trunk of her car, and drove around before stopping in the victim’s
neighborhood, where she was able to escape, trial counsel testified that he did not receive
discovery on the case because the Petitioner was charged by information. Counsel said he
had learned since the Petitioner filed the post-conviction petition that the victim had only
been able to identify the perpetrators as two black males.
Regarding case number 18-02800, which involved a home invasion, trial counsel
testified that the victim was grabbed by a black man, who demanded money and took her
debit card. Counsel said the victim later learned her car was missing. Counsel said that
the Petitioner gave an inculpatory statement about the incident and that the victim’s debit
card was in the Petitioner’s pocket when he was arrested the next day in a stolen car.
Trial counsel testified that he met with the Petitioner at the jail ten to twelve times
during the course of the representation and that he met with the Petitioner on court dates.
Counsel said he reviewed the discovery with the Petitioner for the cases which were
charged by indictment and that he gave the Petitioner copies of the discovery materials.
Counsel said he did not “collect” or review the police body camera footage. He thought
he had requested the footage, however. He said that, at the time, he had been making
discovery requests by email, but that he had encountered difficulties with the method in
this case. Counsel did not review bank surveillance footage of a suspect withdrawing
money from an ATM with a debit card belonging to one of the victims. Counsel thought
he had requested the footage but did not have an archived email to corroborate this.
Counsel said he received the State’s DNA and forensic analysis results. He was unsure
when he received them but estimated it had been about two months before the Petitioner
entered his guilty pleas. Counsel thought he had provided the analysis results to the
Petitioner, but he said that he understood the Petitioner had not received it. Counsel said
that he was certain he and the Petitioner discussed the results and that he told the Petitioner
“essentially that there’s inconclusive DNA on all of the evidence that’s collected.” Counsel
was certain that he did not tell the Petitioner that the Petitioner’s DNA tied him to “the
crime.” Counsel thought the prosecutor misspoke at the guilty plea hearing when he stated
that a bath towel collected in the aggravated rape case tied the Petitioner to the offense.
Counsel said the case had remained pending for as long as it had because the parties awaited
the forensic analysis results.
1
The charge for this offense was dismissed as part of the plea agreement.
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The forensic biology analysis report for case number 17-03802, the case involving
a rape, was received as an exhibit to trial counsel’s testimony. It reflects that semen was
not detected in samples collected from the victim’s saliva, vagina, vulva, and anus;
“possible hairs” from the victim’s bedsheet; and towel from the scene. DNA testing of
the inside and outside of a glove from outside the victim’s home was inconclusive “[d]ue
to the limited profile obtained and the unknown number of potential contributors to the
profile.” Penile swabs from the Petitioner contained the DNA of two individuals. If the
Petitioner were assumed to be one of the contributors to the mixture, the second profile
was consistent with an unknown female, and the victim was excluded as the second
contributor.
Trial counsel testified that the Petitioner’s confessions were the most damaging
evidence to the defense. Counsel said all of the confessions were given on August 9, 2017,
to two detectives, “around the same time [and] in the same circumstances.” Counsel said
he asked the Petitioner if he had been advised of his Miranda rights and at what point the
advice of rights occurred. Counsel said the Petitioner told him that the detectives had
advised him of his rights before the Petitioner gave his statements. Counsel said that he
asked the Petitioner why he felt compelled to talk to the detectives and that the Petitioner
stated the detectives had said “that they had evidence and they . . . would help [the
Petitioner].” Counsel later said he had not obtained a “specific timeline” of whether the
Petitioner thought the detectives “had evidence before or after they read him his rights and
. . . they said they would help him.” Counsel said that to the best of his recollection, the
Petitioner said the detectives read him his rights “before they really had any kind of
conversation with him.” Counsel agreed that the Petitioner never stated he had given an
inculpatory statement before being advised of his rights. Counsel said that when he
received the discovery materials, he noted that the advice of rights form “appeared to have
been administered pretty early on the day [the Petitioner] was arrested.” Counsel thought
the Petitioner might have “talked about interacting with the officers” at the time of the
arrest but did not recall if the Petitioner had said he told the officers he had fled from them
because he was in a stolen car. Counsel said the Petitioner had not identified any threats
by the police which might have prompted him to inculpate himself. Counsel said the
assurance that the detectives would help the Petitioner was the only evidence which might
support a claim of coercion.
Trial counsel testified that the Petitioner claimed to have been “on drugs of some
kind” when he was arrested and questioned on August 9, 2017. Counsel recalled that the
Petitioner had stated on the advice of rights form that he was not “under the influence.”
Counsel thought the Petitioner had stated he did not remember signing the form.
Trial counsel testified that, in his opinion, the Petitioner did not have a strong
argument to support suppression of his inculpatory statements. Counsel said the prosecutor
assigned to the Petitioner’s cases had a reputation as a “fierce” trial attorney and that he
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had not expected to receive a plea offer in which the Petitioner might be interested.
Counsel said the case was later transferred to another prosecutor, who made the plea offer
that the Petitioner ultimately accepted. Counsel said that when the successor prosecutor
had been assigned, counsel changed his posture to be less litigious because the successor
prosecutor indicated his willingness to settle the case with a reasonable offer. Counsel said
he advised the Petitioner that he thought he could negotiate with the successor prosecutor
for a reasonable offer “that would be as low as it could ever possibly be no matter what
kinds of things [counsel] tried to litigate.” Counsel said he advised the Petitioner that if
the Petitioner did not want the offer, counsel would pursue suppression motions “and
litigate every aspect of all these cases,” which included motions to suppress. Counsel said
that in dealing with the successor prosecutor, he did not see a reason to “add friction to”
the plea offer negotiation process by filing suppression motions. Counsel acknowledged
that he had not been told that an offer would be withdrawn if he filed a suppression motion,
but he said he thought filing a motion might stall the settlement negotiations. He also
acknowledged that the State’s cases would not have been as strong if the defense had
prevailed in suppressing evidence. In counsel’s review of the discovery materials, he had
not seen anything that provided a “powerful argument” for suppression of the statements
or the identification from the photograph lineup. He noted, as well, that the State had other
evidence of the Petitioner’s guilt. Counsel agreed that stolen property was recovered in
some of the cases and that the Petitioner possessed a stolen debit card belonging to one of
the victims when the Petitioner was arrested. Counsel agreed that the Petitioner had
mentioned a white cloth or towel he had used during the rape and that a white towel had
been recovered as evidence.
Trial counsel said he had only given “general” consideration to filing a motion to
suppress evidence of one victim’s identification of the Petitioner in a photograph lineup.
Counsel reiterated that his approach had been to try to work with the successor prosecutor
to obtain a favorable settlement for the Petitioner. When asked to view the photograph
lineup for anything that might be unduly suggestive, counsel noted that the Petitioner’s hair
was fuller than that of the other subjects, that the Petitioner’s forehead was not as high as
that of the others, and that the Petitioner’s facial hair was more pronounced than that of the
others. Counsel noted, as well, that the Petitioner’s striped shirt stood out. The photograph
lineup was received as an exhibit.
Trial counsel testified that his investigator interviewed all but one of the victims,
whose case was charged by information. With regard to the victim who was not
interviewed, counsel said that the preliminary hearing had not yet taken place and that he
had not yet received discovery materials for this case. Counsel noted, as well, that he had
received information that this victim was still angry about the incident and wanted the
Petitioner to be punished. Counsel said that, in view of the efforts to settle the case, he did
not “see the benefit . . . of kicking the hornet’s nest” by sending an investigator to talk to
this victim.
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Trial counsel testified that he believed the Petitioner’s goal was to reach a plea
agreement involving as short a sentence as possible. Counsel said that the plea offer the
Petitioner accepted was the best one the defense had received and that counsel had been
“pleasantly surprised” to have received the offer. Counsel said he counseled the Petitioner
about the serious nature of the charges, the likely emotional response the facts would
provoke from a jury, and the likelihood that damaging evidence would not be excluded
from the jury’s consideration. Counsel said he told the Petitioner that the Petitioner was
“in a really, really bad position” relative to the likelihood of conviction. Counsel said that
he reviewed the possible sentencing consequences for each of the offenses and that he
advised the Petitioner of his belief that the twenty-year offer was the best that they would
receive. Counsel said that the Petitioner wanted a ten-year offer but that counsel advised
the Petitioner he did not think this was a possibility in view of the allegations. Counsel
said he and the Petitioner had a “series of conversations” about the plea offer and the risks
of going to trial. Counsel said that, at the time, accepting the plea offer “seemed to be the
decision that [the Petitioner] wanted to make.”
Trial counsel testified that his process in a case involving charges related to multiple
incidents was to get as much information as possible about the offenses, explain to the
defendant what the evidence was and what the State would have to prove, and advise the
defendant on the range of punishment for the offenses. Counsel agreed that he advised the
Petitioner that he might face seventy-eight to 120 years if he were convicted at a trial and
said he thought the Petitioner’s maximum possible exposure was 149 years, eleven months,
and twenty-nine days. Counsel said he advised the Petitioner that he did not think the trial
court would impose a minimum sentence if the Petitioner were convicted of all of the
offenses and that he anticipated the court would impose some consecutive sentences.
Counsel said that the State’s initial offer was for twenty years at 100% and that he was able
to negotiate the offer to fifteen years at 100% followed by five years at 30%.
The transcript of the April 23, 2019 guilty plea hearing, which was received as an
exhibit at the post-conviction hearing, reflects that the Petitioner, a high school graduate,
voiced his understanding of the plea agreement, including the charges to which he was
pleading guilty; his right to a jury trial, at which his attorney would be able to cross-
examine the State’s witnesses; his right to decide whether to testify at a trial; the State’s
burden to prove the charges at a trial; and the possible punishments for the charges. The
Petitioner acknowledged a prior unlawful weapon possession conviction and a probation
violation, which he agreed were misdemeanors. The Petitioner stated that he understood
he would be required to register as a violent sex offender and that he would be subject to
community supervision for life. He said that he did not have any questions about the
sentences, that he had not been forced or pressured to plead guilty, and that he was satisfied
with his trial counsel. The trial court found that the Petitioner was “freely, knowingly,
voluntarily, and intelligently” pleading guilty.
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MPD Sergeant Demarius Jones testified that on August 9, 2017, he was working as
a detective and that around 6:00 a.m., he and Detective Brown interviewed the Petitioner,
who had been stopped in a stolen car. Sergeant Jones said he and Detective Brown advised
the Petitioner of his Miranda rights and then interviewed him. The Advice of Rights form
was received as an exhibit. Sergeant Jones said the form reflected that he advised the
Petitioner of his rights at 6:03 a.m., which Sergeant Jones said the Petitioner signed.
Sergeant Jones said he did not notice any unusual behavior, such as slurred speech or
sleepiness, from the Petitioner. Sergeant Jones did not smell the odor of an intoxicant on
the Petitioner and did not think the Petitioner was under the influence of drugs or alcohol.
Sergeant Jones identified a detention log, which was received as an exhibit, and which
reflected that the Petitioner was checked on every thirty minutes from 5:30 a.m. until 6:50
p.m. Sergeant Jones agreed that the Petitioner had been asleep at 9:00 a.m. when Sergeant
Jones entered the interview room. Sergeant Jones said he and Detective Brown did not
question the Petitioner about any crimes or background information before advising the
Petitioner of his rights.
Sergeant Jones testified that the Petitioner initially denied having stolen the car in
which he had been apprehended and that the Petitioner claimed to have found the car.
Sergeant Jones said the Petitioner eventually admitted he had broken into a house and had
stolen the car keys in order to take the car. Sergeant Jones said that the Petitioner confessed
to a second criminal incident and that the Petitioner was given a meal around 8:30 a.m.
Sergeant Jones said that the interview resumed around 9:00 a.m. and that he and Detective
Brown obtained additional statements from the Petitioner until the Petitioner was given
lunch at 1:45 p.m. Sergeant Jones said that in addition to the meal break, the Petitioner
was given a break to smoke and restroom breaks. Sergeant Jones said the Petitioner gave
seven statements in total. Sergeant Jones said he never raised his voice with the Petitioner.
When asked why the Petitioner’s first statement about the incident involving a rape
mentioned the home invasion and theft but not the rape, Sergeant Jones testified he did not
question the Petitioner at this point about the rape aspect of the incident because the Sex
Crimes Division was going to handle that part of the investigation. Sergeant Jones said
that later in the interview, he questioned the Petitioner about the rape after a lieutenant in
the Sex Crimes Division asked him to do so. Sergeant Jones said the Petitioner initially
denied the rape but later said he had not completely penetrated the victim and that he had
inserted “just the head of his penis” and that he “had been feeling funny” since the incident.
Sergeant Jones did not recall if he had told the Petitioner that they had DNA evidence
which would identify the perpetrator but said he would not have told the Petitioner that the
police had DNA evidence which implicated the Petitioner. Sergeant Jones denied having
told the Petitioner, “[T]he truth will set you free.” Sergeant Jones agreed that the Petitioner
signed a typewritten confession to the rape at 4:40 p.m., after which the Petitioner was
booked.
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Sergeant Jones testified that on August 11, 2017, he showed a photograph lineup to
one of the victims. He said she identified a suspect.
MPD Detective Robert Brown testified that he and Sergeant Jones interviewed the
Petitioner on August 9, 2017. Detective Brown said they entered the interview room where
the Petitioner was waiting around 6:00 a.m. and introduced themselves. Detective Brown
said they advised the Petitioner of his Miranda rights before questioning him about the
crimes they were investigating. Detective Brown said they had the Petitioner read the
advice of rights form aloud and sign and initial it. Detective Brown said that the Petitioner
appeared to understand his rights and that he did not observe any signs of intoxication.
Detective Brown said the Petitioner stated he was not under the influence of alcohol or
drugs.
Detective Brown testified that he assembled the photograph lineup that was shown
to one of the victims. Detective Brown said he obtained the photographs from a database
containing driver’s license photographs. He agreed that the individuals in the photographs
he selected had similar haircuts and little to no facial hair and that he did not think the
lineup was unduly suggestive. He said the victim who made an identification from a lineup
described the perpetrator as a black male in a hoodie.
Detective Brown testified that the Petitioner initially denied any involvement in
burglaries in a neighborhood but that the Petitioner eventually admitted he had broken into
homes and had taken property. Detective Brown recalled that the Petitioner claimed to
have driven a car he found. Detective Brown said he and Sergeant Jones told the Petitioner
that they did not believe his account of having found a car. Detective Brown agreed that
he might have told the Petitioner that security footage from an ATM would show the
Petitioner’s face.
Detective Brown denied that he ever told the Petitioner he would help the Petitioner
if the Petitioner confessed. Detective Brown denied telling the Petitioner that he should
confess in order to avoid having someone else raise the Petitioner’s children. Detective
Brown said that the Petitioner’s denials were brief before admitting his involvement in the
offenses. Detective Brown’s testimony about the timing of the questioning, breaks, and
number of statements was consistent with Sergeant Jones’ testimony. Detective Brown
also testified consistently with Sergeant Jones regarding their initially not asking the
Petitioner about the rape but questioning him about it later in the day at the request of the
Sex Crimes Division. Detective Brown did not recall having said that DNA evidence
would implicate the Petitioner in the rape, but he acknowledged, “[I]t may have been said.”
Detective Brown agreed that the police did not have any DNA analysis results at the time.
He did not recall having told the Petitioner that the truth would set the Petitioner free.
Detective Brown acknowledged that he had no recollection if the Petitioner was allowed
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to make a telephone call and that he had no documentation showing that the Petitioner
made a call.
The Petitioner testified that he and trial counsel met about ten to eleven times during
the course of counsel’s representation. The Petitioner said that counsel provided him with
the discovery materials and that they reviewed “certain things.” The Petitioner said counsel
did not show him any ATM security footage. The Petitioner said that counsel initially
stated the DNA analysis report had not been completed but that counsel told him in late
2018 or early 2019 that the Petitioner’s DNA had been identified on “one of the towels,
one of the wash cloths.” When shown the forensic biology analysis report, the Petitioner
stated that he had not seen it until post-conviction counsel showed it to him. The Petitioner
said he would not have pleaded guilty if he had known the DNA evidence did not implicate
him.
The Petitioner testified that he and trial counsel discussed the Petitioner’s statements
but that they “didn’t go into that much detail about it.” The Petitioner said that counsel
advised him that his statements were damaging to the defense and that they discussed a
motion to suppress but not in detail. The Petitioner claimed counsel said he was going to
file a suppression motion.
Regarding the day of his arrest, August 9, 2017, the Petitioner testified that he fled
at a high speed from the police when he saw blue lights and that the police “made [him]
wreck.” He said he told a woman who was in the car to run because the car was stolen.
The Petitioner said Officer Mitchell ran to the car with his gun drawn, told the Petitioner
to get out of the car, and dragged the Petitioner from the car. The Petitioner said he told
the officers that he fled because he had found the car and knew it was stolen. The Petitioner
said the officers did not advise him of his Miranda rights before asking why he fled. When
asked if he was under the influence of drugs when he was arrested around 3:00 a.m., the
Petitioner said, “Yeah,” and explained he had smoked marijuana and used heroin at 10:30
p.m. when he finished work and again before he left his girlfriend’s home after having
taken a nap. The Petitioner said that he asked to be taken to a hospital for neck and knee
pain but that the officers told him he was fine and did not take him for medical care. The
Petitioner said he arrived at the police station around 5:00 a.m. He agreed that body camera
footage previously received as an exhibit accurately depicted his being pulled from the
wrecked car.
The Petitioner testified that he was placed in an interview room at the police station
and that Sergeant Jones and Detective Brown introduced themselves and asked if he knew
why he was there. The Petitioner said he replied that he was there “for high speeding the
police in the stolen car and stuff like that.” He said that the officers stated that the car had
been involved in a robbery and that he denied any knowledge of a robbery. The Petitioner
said that Sergeant Jones asked why the Petitioner had the robbery victim’s debit card in his
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pocket and that the Petitioner stated he found the debit card in the car. The Petitioner said
he explained in detail where he found the car when he walked from his girlfriend’s house
to buy food. The Petitioner claimed the officers did not advise him of his Miranda rights
before asking about the car. The Petitioner said the officers repeatedly accused him of
lying, which he repeatedly denied. The Petitioner said one of the officers stated that the
Petitioner’s face would be shown on security footage from a camera at an ATM. The
Petitioner said that after he remained quiet for a time, Detective Brown asked if he had
children and stated that the Petitioner would not want someone else raising his children.
The Petitioner said he continued to deny any involvement in a robbery. The Petitioner said
that Sergeant Jones stated that the Petitioner was lying and that the officers were going to
leave the room and give the Petitioner a chance to tell them what happened when they
returned. The Petitioner said that he confessed to stealing the car and to committing one
of the burglaries when the officers returned about ten minutes later. He said he confessed
because he had been apprehended with the stolen car and debit card and because of the
assertion that his face would be shown on the ATM surveillance footage. He said he
confessed to an earlier burglary of the same victim’s house. The Petitioner said he was not
read his Miranda rights until after he gave these confessions. He identified the advice of
rights form and his signature on it, and he agreed that it reflected he signed it at 6:03 a.m.
He agreed that he had stated on the form that he was not under the influence of alcohol or
drugs and said he did not want to “put [himself] in deep and more trouble . . . for being on
some drugs.” He said, however, that he was under the influence of drugs during the
interview and that he felt like his “back was against the wall.” He agreed that he had
understood his rights when he signed the form. He said that when he was booked into the
jail around 5:00 p.m. after he was charged, he had told a jailer he was not under the
influence because he did not want to be placed “in detox.”
The Petitioner testified that after he signed the advice of rights form, the officers
prepared a typewritten statement about his confession to the two incidents and that they
questioned him about another robbery. He said he gave a typewritten statement about this
other robbery. The Petitioner agreed that he was given breakfast around 8:30 to 9:00 a.m.
and that the officers continued questioning him and preparing typed statements “until
around lunch time.”
The Petitioner testified that he was given a “smoke break” around noon, that the
officers did not offer to let him make a telephone call, and that he did not ask to make a
call. He agreed that he was given lunch around 1:45 p.m. and that he had given
approximately six confessions at this point. He said that after he ate lunch, he was asked
about the incident involving the rape and that the officers only asked about the home
invasion aspect of the case when they began questioning him about it. He agreed that he
gave a typewritten confession. He said the officers then mentioned the rape, which he
denied initially. The Petitioner said he admitted the rape after ten to fifteen minutes when
Sergeant Jones told him that the truth would set him free, that a glove and towel containing
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his semen and DNA had been recovered from the scene, and that the officers would help
him when his case went to court for sentencing. He said he received the assurance that the
officers would help him at sentencing after he asked if he would “get a lot of time.” He
later acknowledged that he had already confessed to the rape when he received the
assurance that the officers would help him with sentencing. The Petitioner said that
Detective Brown had been “nice” but that Sergeant Jones had been “aggressive” in
questioning him.
The Petitioner acknowledged that he did not tell trial counsel “all these things” about
the circumstances of his confessions when counsel represented him. The Petitioner said
counsel “never asked” and that they “never got into full detail about it.” The Petitioner
said that counsel never asked him about whether he was questioned about the offenses
before he was read his Miranda rights and that counsel only commented that the Petitioner
had signed the advice of rights form and had made incriminating statements. The Petitioner
acknowledged that he told counsel the officers had said they had evidence and would help
the Petitioner and that he told counsel he had been under the influence of marijuana and
heroin when he was interviewed. He said three to three and one-half hours elapsed from
when he had last used marijuana and heroin until he talked to the police.
The Petitioner testified that trial counsel said he would try to suppress the
identification one of the victims made from a photograph lineup. The Petitioner said
counsel never mentioned trying to interview this victim.
The Petitioner testified that the first plea offer he received was for twenty years at
100% and that the second offer was for fifteen years at 100% followed by five years at
30%. The Petitioner said he accepted the second offer because he had “no fight” in view
of his incriminatory statements. He said counsel was not pursuing suppression of the
statements. The Petitioner said counsel advised him to plead guilty because of his
incriminatory statements and because he faced a lengthy sentence if he were convicted at
a trial. The Petitioner said this was the first case in which he had pleaded guilty. He
acknowledged that he would have pleaded guilty if the trial court had denied a motion to
suppress the statements. When the post-conviction judge, who had been the judge in the
conviction proceedings, commented, “I would not have suppressed those statements,” the
Petitioner responded, “I figured that anyway.”
The Petitioner testified that he was dissatisfied with trial counsel’s efforts and that
he did not think counsel had “put that much effort in.” When asked why he had said at the
guilty plea hearing that he was satisfied with counsel’s performance, the Petitioner
explained that he was asked this at the end of the hearing and that he “just w[e]nt along
with it.” He said, however, that he had not been satisfied with counsel’s performance.
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The Petitioner testified that if trial counsel had successfully suppressed his
confessions, he would have gone to trial on the charges. The Petitioner said that counsel
“did with what he could” but that counsel “didn’t actually do what [the Petitioner] . . .
asked him to do.”
The Petitioner acknowledged his understanding that he would face “something like
144 years” if he were successful in his post-conviction case and were convicted at a trial.
He agreed that he had understood trial counsel did not believe a legal basis existed for
suppressing the confessions, but the Petitioner denied that counsel said this. The Petitioner
claimed that counsel had stated he “was go[ing to] try to suppress them.” The Petitioner
then agreed that he had known counsel believed the statements would be admitted at the
trial.
MPD officer body camera footage and security footage from an ATM were received
as exhibits.
In a written order, the post-conviction court denied relief. This appeal followed.
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are binding
on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997);
see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
application of law to its factual findings is subject to a de novo standard of review without
a presumption of correctness. Fields, 40 S.W.3d at 457-58.
I
Ineffective Assistance of Counsel
The Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claims. To establish a post-conviction claim of the
ineffective assistance of counsel in violation of the Sixth Amendment, a petitioner has the
burden of proving that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has
applied the Strickland standard to an accused’s right to counsel under article I, section 9 of
the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
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A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may
not second-guess a reasonably based trial strategy by his counsel, and cannot criticize a
sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed . . . based upon adequate preparation.”
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice
prong, a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.A. Failure to File a Motion to Suppress the Petitioner’s Statements
The Petitioner argues that the post-conviction erred in denying the claim that trial
counsel was ineffective in failing to file a motion to suppress the Petitioner’s inculpatory
statements given on the day of the Petitioner’s arrest, both at the scene and at the police
station. The State responds that the court properly denied relief.
In its order denying relief on this basis, the post-conviction court found that the State
made a reasonable offer that a person in the Petitioner’s position might want to accept and
that trial counsel had not wanted to create friction in the settlement process by filing a
motion to suppress, given that the offer the defense had received was more favorable than
that which counsel thought could be obtained “through litigation.” The court found, as
well, that the Petitioner stated he understood counsel’s belief to be that no viable legal basis
existed for suppression of the statements. The court found that counsel had not provided
deficient performance in not filing a motion to suppress. The court noted, as well, that the
Petitioner had the burden to show that had counsel filed the motion, it would have been
granted. Although the court did not address this aspect further in its written order, it stated
at the hearing that, based upon the evidence presented at the post-conviction hearing, it
would not have granted the motion to suppress, had it been filed in the trial court.
The Petitioner asserts that trial counsel performed deficiently in not filing a motion
to suppress because a “good argument” existed that the statements were not voluntarily
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given, based upon the Petitioner’s having told trial counsel that the Petitioner had been
intoxicated at the time of the statements, the Petitioner’s report to counsel about statements
the police made indicating their willingness to help the Petitioner, an officer’s statement to
the Petitioner that “the truth will set you free,” and the interaction between the Petitioner
and the police at the scene of the arrest. The Petitioner notes trial counsel’s testimony that
suppression of the statements would have weakened the State’s case.
The Petitioner also argues that he was prejudiced by counsel’s deficient
performance because the evidence does not show that he gave the statements voluntarily.
He argues that pursuant to State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992), an initial
confession given without Miranda warnings gives rise to a rebuttable presumption that a
second confession, given after Miranda warnings, is tainted.
In support of his argument relative to the initial statement at the scene that he had
fled the police because he was in a stolen car, the Petitioner notes his own testimony about
having been arrested at gunpoint and asked why he fled from the police without first being
advised of his Miranda rights. He notes his testimony that he was injured and under the
influence of marijuana and drugs. In support of his argument relative to the statements
given at the police station, the Petitioner notes his testimony that he was intoxicated from
marijuana and heroin use, that the police made coercive and false statements to him and
accused him of lying, and that he was questioned and made inculpatory statements about
the crimes on two dates before he was advised of his Miranda rights. He also argues that
he was age twenty at the time, was not given the opportunity to make a telephone call, and
was not immediately taken to a magistrate.
The Petitioner’s testimony about the facts and circumstances relative to his
statements was at odds, in many material respects, with the testimony of Sergeant Jones
and Detective Brown, the officers who interviewed the Petitioner at the police station. The
Petitioner’s argument that he would have prevailed in a motion to suppress, had trial
counsel filed one, relies heavily on the Petitioner’s account of the events attending the
statements. At a suppression hearing, the trial court would have been called upon to make
credibility determinations relative to the conflicting testimony. The post-conviction
court’s statement at the hearing that it would not have granted a motion to suppress carries
an implicit finding that, upon hearing the evidence at the post-conviction hearing which
would have been relevant at a suppression hearing, the court credited the officers’
testimony over that of the Petitioner relative to the circumstances of the interview and the
statements. The Petitioner’s argument also overlooks the evidence of his guilt, independent
of the confessions, which included his possession of a recently stolen car, his possession
of a recently stolen debit card, and the discovery of stolen items at his home. See Phillips
v. State, --- S.W.3d. ---, 2022 WL 2092796, at *13-14 (Tenn. June 10, 2022) (holding that
a post-conviction petitioner alleging ineffective assistance of counsel based upon a failure
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to file a motion to suppress evidence must establish that the result of the case would have
been different if the trial court had suppressed the evidence).
The Petitioner was charged with numerous felonies and faced a potential sentence
in excess of 100 years. Trial counsel testified that he was optimistic about the prospect of
obtaining a favorable settlement from the prosecutor and that the Petitioner was interested
in a plea agreement. Based upon his knowledge of the facts and the law, counsel did not
believe a motion to suppress would be granted. He explained this to the Petitioner. In
counsel’s view, filing a suppression motion might antagonize the prosecutor, who had
already made a favorable settlement offer which counsel viewed as more advantageous to
the Petitioner than what could be obtained by filing a motion to suppress, which counsel
knew might affect the terms of a plea offer going forward. In addition, the State had
significant other inculpatory evidence in addition to the Petitioner’s statements. In
consultation with the Petitioner, counsel made a tactical decision to pursue a settlement
offer, rather than litigating the suppression issues. The post-conviction court agreed with
counsel’s assessment of the unlikelihood of success on a suppression motion.
The evidence does not preponderate against the post-conviction court’s findings.
Those findings support the court’s conclusions that the Petitioner failed to establish by
clear and convincing evidence that trial counsel performed deficiently in declining to file
a suppression motion in preference to pursuing a favorable settlement of the case. The
court’s finding that the motion was without merit likewise supports its conclusion that the
Petitioner was not prejudiced by counsel’s alleged deficient performance. The Petitioner
is not entitled to relief on this basis.
B. Failure to Review Police Body Camera Footage
The Petitioner argues that the post-conviction court erred in denying his claim that
trial counsel was ineffective because counsel did not review the police body camera
footage. The Petitioner posits that if counsel had reviewed the body camera footage, a
reasonable probability exists that counsel would have filed a motion to suppress after
having seen “the patrol officers [yank] the Petitioner out of the car at gunpoint and then
[question] him without advising him of the Miranda rights.” The Petitioner again argues
that such a motion would have been successful. The State responds that the court did not
err in denying relief because suppression of the Petitioner’s statement at the scene of the
arrest would not have had any effect on the outcome of the conviction proceedings.
In denying relief on this basis, the post-conviction court stated:
Petitioner has not shown by clear and convincing evidence that trial counsel's
performance was the below the objective standard of reasonableness by
failing to look at the body cam footage in this case.
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Trial Counsel stated that it was in the Petitioner’s best interest to take
the plea, and not to file and litigate a motion to suppress. Trial counsel stated
that they were getting a better offer in this case than they could through
litigation. Therefore, Petitioner has not proven that had trial counsel
reviewed the body cam footage his decision regarding whether to file the
motion to suppress would have been different. Therefore, Petitioner has
failed to prove that by a reasonable probability that but for trial counsel’s
performance, the case would have resulted in a different outcome.
(Citations to the record omitted.)
Trial counsel testified about his difficulties with using email requests for obtaining
discovery in this case. His not having reviewed the body camera footage is insignificant,
however, for two reasons. First, no dispute existed about the facts of the arrest and the
Petitioner’s statement at the scene regarding his having found the car and the lack of
Miranda warnings given at the scene. Counsel testified at the hearing that he had asked
the Petitioner whether and at what point the police advised the Petitioner of his rights. The
Petitioner has not identified anything counsel would have learned from watching the
footage of which counsel was otherwise unaware. More significantly, however, counsel
believed that the better strategy was not to pursue suppression in favor of settling the case
in view of the favorable offer the prosecutor had made. As we discussed in section I.A.
above, the record supports the post-conviction court’s determination that counsel’s election
to pursue this strategy was not ineffective assistance. The Petitioner is not entitled to relief
on this basis.
C. Advising the Petitioner that his DNA was Identified
The Petitioner argues that trial counsel provided ineffective assistance by
erroneously advising the Petitioner that his DNA was recovered from the scene of the rape
incident. The Petitioner acknowledges that counsel testified he advised the Petitioner that
the DNA analysis yielded inconclusive results, but he argues that his testimony that counsel
told him the DNA was identified as his was more credible. The State responds that the
post-conviction court credited counsel’s testimony over that of the Petitioner and that this
court should not disturb the post-conviction court’s findings.
As the State correctly notes, the post-conviction court credited trial counsel’s
testimony that he advised the Petitioner of the inconclusive DNA results. Because we are
bound by a post-conviction court’s factual findings unless the evidence preponderates
against them, it is not the function of this court to reweigh and reevaluate the evidence. See
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Henley, 960 S.W.2d at 578; see also Fields, 40 S.W.3d at 456-57 (Tenn. 2001). The
evidence in this case does not preponderate against the court’s findings. The Petitioner is
not entitled to relief on this basis.
II
Knowing, Voluntary, and Intelligent Guilty Pleas
The Petitioner contends that the post-conviction court erred in denying relief on his
claim that he did not knowingly, voluntarily, and intelligently enter his guilty pleas. The
State responds that the record supports the court’s determination.
The Supreme Court has concluded that a guilty plea must represent a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). A trial court must examine in detail “the matter
with the accused to make sure he has a full understanding of what the plea connotes and of
its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969); see Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993). Appellate courts examine the totality of
circumstances when determining whether a guilty plea was voluntarily and knowingly
entered. State v. Turner, 919 S.W.2d 346, 353 (Tenn. Crim. App. 1995). A guilty plea is
not voluntary if it is the result of “[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats.” Boykin, 395 U.S. at 242-43; see Blankenship,
858 S.W.2d at 904. A petitioner’s representations and statements under oath that his guilty
plea is knowing and voluntary create “a formidable barrier in any subsequent collateral
proceedings [because] [s]olemn declarations . . . carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
The Petitioner argues that his guilty pleas were not knowingly, voluntarily and
intelligently entered because he pleaded guilty “without knowing whether he had a winning
suppression issue,” because counsel erroneously advised him that his DNA was found at
the scene of the rape incident, and because he felt like he had no other option due to trial
counsel’s “placing minimal effort into the case.”
In denying relief on this claim, the post-conviction court found
Trial counsel testified that he never told the Petitioner to take the deal
that was given, rather he explained to the Petitioner how serious the charges
were and this was as low as the offer could possibly go, and that it was his
decision whether he wanted to take the offer or not. Trial counsel has stated
he did not believe it was a good idea to file the motion to suppress, and that
he advised the Petitioner that the DNA evidence had come back inconclusive.
Petitioner further stated in his testimony that nobody had forced or pressured
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him into taking the guilty plea. There also was no evidence of coercion in
this case as to coercing the Petitioner to take the guilty plea. Therefore, this
Court finds that Petitioner’s guilty plea was entered voluntarily, knowingly,
and intelligently.
(Citations to the record omitted.)
The record reflects that at the guilty plea hearing, the Petitioner stated under oath
that he was satisfied with his trial counsel, that he understood his rights, that he wanted to
waive his right to a trial and plead guilty, that he had not been coerced or promised
anything, and that he understood the terms of the plea agreement. Trial counsel testified
at the post-conviction hearing that he recommended for the Petitioner to accept the plea
offer but that he would have pursued a suppression motion and a trial if the Petitioner
preferred the latter. Counsel said he advised the Petitioner about his sentencing exposure
if he were convicted at a trial. Counsel said he also advised the Petitioner about the strategy
of pursuing the plea offer rather than litigation due to the likelihood that the trial court
would deny a suppression motion. Counsel said he further advised the Petitioner about the
damaging effect the Petitioner’s inculpatory statements were likely to have at a trial.
Counsel said he believed that, at the time, the Petitioner’s desire was to accept the plea
offer.
The post-conviction court credited the evidence that the Petitioner understood his
alternatives and the likelihood of conviction and a lengthy sentence. The court noted the
absence of evidence that the Petitioner was coerced to accept the plea offer. As we have
stated previously, the court discredited the Petitioner’s testimony that trial counsel gave
him erroneous advice about the DNA analysis results. The evidence does not preponderate
against the court’s factual determinations, which, in turn, support its conclusion that the
Petitioner knowingly, voluntarily, and intelligently pleaded guilty. The Petitioner is not
entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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