Jerry Burkes v. State of Tennessee

10/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022
JERRY BURKES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Greene County
No. 20CR286 Alex E. Pearson, Judge
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No. E2021-00861-CCA-R3-PC
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The Petitioner, Jerry Burkes, appeals from the Greene County Criminal Court’s denial of
his petition for post-conviction relief from his convictions for money laundering, theft of
property valued at $60,000 or more, and twelve counts of sales tax evasion. On appeal, he
argues he received ineffective assistance of appellate counsel. The Petitioner also contends
that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding records
relevant to his tax liability; that he was convicted upon an invalid presentment; that he was
deprived of a fair and impartial grand jury in violation of the Fourteenth Amendment; that
the trial court admitted evidence at trial in violation of Tennessee Rule of Evidence 404(b);
and that the evidence is insufficient to sustain his conviction for money laundering.1 After
reviewing the record, we conclude that the Petitioner failed to establish that he received
ineffective assistance from appellate counsel and that the remainder of the Petitioner’s
claims have been previously determined, waived, or do not entitle him to relief.
Accordingly, we affirm the post-conviction court’s denial of relief.
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 JILL BARTEE
AYERS and JOHN W. CAMPBELL, SR., JJ., joined.
Jerry Burkes, Wartburg, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Senior Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Ritchie Collins and
Cecil C. Mills, Jr., Assistant District Attorneys General, for the Appellee, State of
Tennessee.
1
We have reordered the Petitioner’s issues for clarity.
OPINION
Facts and Procedural History. In March 2014, the Greene County Grand jury
issued a presentment charging the Petitioner with eleven counts of money laundering, one
count of forgery, one count of theft of property valued at $60,000 or more, and twelve
counts of sales tax evasion. State v. Jerry Reginald Burkes, No. E2017-00079-CCA-R3-
CD, 2018 WL 2194013, at *1 (Tenn. Crim. App. May 14, 2018). After the trial court
expressed concern about the validity of the presentment, the State obtained a superseding
presentment in November 2014 charging the Petitioner with one count of money
laundering, one count of forgery, one count of theft of property valued at $60,000 or more,
and twelve counts of sales tax evasion. Id. Prior to trial, the State dismissed the forgery
count. Id. at *3 n.3.
Although the trial court initially appointed the public defender’s office to represent
the Petitioner prior to and at trial, the Petitioner terminated his public defender and asserted
his constitutional right to represent himself. At that time, the trial court appointed elbow
counsel to assist the Petitioner as he proceeded pro se, and the Petitioner later filed a motion
requesting that elbow counsel be removed. The trial court removed elbow counsel, and the
Petitioner represented himself at trial without any legal assistance.
At trial, evidence was presented showing that in April 2012, the Tennessee
Department of Revenue (the “Department”) began investigating the Petitioner after the
Department’s audit uncovered a discrepancy between the amount of tobacco products
purchased by the Petitioner, as reported by those tobacco wholesalers who sold inventory
to the Petitioner, and the amount of sales tax the Petitioner remitted to the Department in
his monthly sales tax returns for 2011. Id. at *1. Agent Brian McGhee, who investigated
this discrepancy, testified that he calculated the total inventory the Petitioner purchased
from the wholesalers each month, and based on the theory that the Petitioner sold as much
inventory as he bought, he calculated the amount of the Petitioner’s gross sales. Id. He
then subtracted from this gross sales amount the amount of any manufacturer’s “buydown”
credits before calculating the amount of sales tax that should have been collected by the
Petitioner’s business for each month of 2011. Id. Agent McGhee explained that a
“buydown” was a manufacturer’s promotion offered to a retailer in the form of a per-carton
or per-item discount and that buydowns, as opposed to manufacturer’s coupons, were
deducted from the sales price of an item before any sales tax was calculated. Id. n.2. Agent
McGhee stated that the Petitioner had failed to remit a total of $132,766.46 in sales tax to
the Department for 2011. Id. at *2. Although the Petitioner terminated counsel and elbow
counsel prior to trial, the trial court adjourned court the first day of trial to give the
Petitioner the opportunity to subpoena records in an attempt to prove that the State’s
calculations regarding his unremitted taxes were incorrect. The Petitioner did not testify
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on his own behalf at trial. Id. at *3. A more detailed summary of the proof presented at
the Petitioner’s trial is provided in this court’s opinion on direct appeal. Id. at *1-3.
At the conclusion of the trial, the jury convicted the Petitioner as charged of one
count of money laundering, one count of theft of property valued at $60,000 or more, and
twelve counts of tax evasion. Id. at *3. Prior to the sentencing hearing, the Petitioner
requested counsel, which the trial court appointed. At the conclusion of the sentencing
hearing, the trial court sentenced the Petitioner as a Range II, multiple offender and
imposed a sentence of eighteen years for both the money laundering conviction and the
theft conviction and imposed sentences of four years for each of the sales tax evasion
convictions. Id. The court ordered all of these sentences served concurrently for an
effective sentence of eighteen years, with the Petitioner to serve five years in confinement
before serving the remainder of his sentence on community corrections. Id. The trial court
also imposed $80,000 in fines recommended by the jury and ordered the Petitioner to pay
restitution to the State in the amount of $132,766.46, payable in installments of $500 per
month following the Petitioner’s release on community corrections. Id.
On direct appeal, the Petitioner argued that (1) the trial court erred by permitting the
State to introduce certain evidence in violation of Tennessee Rule of Evidence 404(b); (2)
the trial court erred by concluding that some of the defendant’s convictions would be
admissible for purposes of Tennessee Rule of Evidence 609; (3) the trial court violated his
constitutional privilege against self-incrimination; (4) the State failed to discover and
disclose exculpatory evidence in violation of Brady v. Maryland; (5) the evidence was
insufficient to sustain his conviction for money laundering; (6) the trial court erred by
imposing a Range II sentence; and (7) the sentence imposed by the trial court was illegal.
Id. at *1. This court vacated the trial court’s sentencing, remanding the case for
resentencing because the five-year term of confinement was not authorized, and vacated
the restitution order, remanding the case for the trial court to impose restitution in a manner
that complied with Tennessee Code Annotated section 40-35-304, but affirmed the
judgments of the trial court in all other respects. Id. at *17.
Following the remand, the trial court conducted a resentencing hearing before
denying the Petitioner’s request to serve his sentence on community corrections and
ordering the Petitioner to serve his eighteen-year sentence in incarceration. State v. Jerry
Reginald Burkes, No. E2018-01713-CCA-R3-CD, 2019 WL 3061557, at *1, *3 (Tenn.
Crim. App. July 12, 2019). On appeal, the Petitioner argued that the trial court erred in not
allowing him to introduce proof at the resentencing hearing concerning the Connecticut
convictions used by the trial court at the initial sentencing hearing to establish that the
Petitioner was a Range II offender. Id. at *3. The Tennessee Court of Criminal Appeals
affirmed the trial court’s judgment, and the Tennessee Supreme Court denied the
Petitioner’s application for permission to appeal. Id. at *8.
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Thereafter, the Petitioner timely filed a pro se petition for post-conviction relief.
The Petitioner later filed several pro se amended post-conviction petitions. At the
Petitioner’s request, the court appointed post-conviction counsel. However, after the
Petitioner filed several motions asserting his right to self-representation, the post-
conviction court granted the Petitioner’s request to proceed pro se and appointed his
previous attorney as elbow counsel. Evidence was presented at two post-conviction
hearings, and we have summarized the proof from these hearings that is relevant to the
Petitioner’s issues on appeal.
At the April 16, 2021 post-conviction hearing, the Petitioner proceeded pro se with
the assistance of elbow counsel, and the hearing was conducted via “Zoom,” a video
conferencing platform. The Petitioner first called Sherry Tidwell, a civil tax auditor with
the Tennessee Department of Revenue (the “Department”). Tidwell testified that in the
original audit, the Department had a buydown credit of $65,272 for the Petitioner, which
was obtained from the Petitioner’s direct deposit information from his bank statements.
However, she said that when the special investigation unit conducted its criminal
investigation, the unit found that the Petitioner had $172,705.80 in buydown credits, so the
audit was adjusted to include this $172,705.80 figure. Tidwell said that the civil division
later “added [$]6,946 that [the Petitioner] provided from Liggett Vector and . . . added
[$]36,655 from JT International, which brought the total buydown credit to $216,306.80.”
When the post-conviction court asked whether the total buydown credit of
$216,306.80 was communicated to Agent Brian McGhee, who led the criminal
investigation, Tidwell replied, “I do not—I know that they had $172,705.80.” She added,
“[The Petitioner] provided the [buydown credits for] Liggett Vector and JT International[,]
and I don’t know if that was ever provided to special investigations.” She clarified that the
Petitioner provided the Liggett Vector and JT International buydown credits to the
Department after the Petitioner was prosecuted in this case.
The State then called Agent Brian McGhee. Agent McGhee testified that when the
special investigations unit calculates an individual’s criminal liability, it comes up with its
“own calculations” that are “different” from the calculations done by the civil division
because the special investigations unit goes “out to the vendors and to the different
buydown companies to get information” that the civil auditors do not collect. Agent
McGhee confirmed that after the Petitioner was indicted, Sherry Tidwell learned of some
additional buydown credits that should have been considered in determining the
Petitioner’s liability. Taking into account that information, Agent McGhee recalculated
the amount of sales tax that the Petitioner owed for 2011 by giving the Petitioner buydown
credits of $36,655 from JT International and $6,946 for Liggett Vector, which “reduced
[the Petitioner’s] corrected taxable sales amount by $43,601 and his corrected sale tax due
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by $4,251 dollars.” Consequently, Agent McGhee explained that “instead of [the
Petitioner’s] unreported sales tax amount for 2011 being $132,766.46[,] it would be
$128,515.36.” Agent McGhee agreed that although the Petitioner’s tax liability was
reduced by $4,251, the amount the Petitioner owed in taxes for 2011, namely $128,515.36,
was well over the $60,000 threshold for the Petitioner’s theft conviction.
On cross-examination, Agent McGhee acknowledged that the Petitioner, during his
first interview on August 7, 2012, claimed he had received buydowns from JT
International. Agent McGhee said that while the Department requested this information,
JT International never provided buydown records prior to the Petitioner’s trial, so this
information was not included in his calculation of the Petitioner’s tax liability at the trial.
He agreed that although he had the Petitioner’s bank statements, the special investigation
unit’s procedure was to request information from the specific companies regarding
buydown credits. Agent McGhee acknowledged that at the Petitioner’s trial, he had
buydowns from Philip Morris, RJ Reynolds, and Lorillard and that the total buydown
credits was $172,706.40. He explained that his total buydown credit was less than the total
buydown credit arrived at by Sherry Tidwell because Tidwell included $36,655 for JT
International and $6946 for Liggett Vector after “she was given documentation” regarding
these additional buydown credits. The post-conviction hearing was continued to July 13,
2021.
At the July 13, 2021 post-conviction hearing, the post-conviction court considered
elbow counsel’s motion to withdraw and the Petitioner’s request to represent himself
during the post-conviction proceeding. After questioning the Petitioner, the post-
conviction court ultimately entered an order granting the elbow counsel’s motion to
withdraw. As a result, the Petitioner proceeded pro se, without the assistance of elbow
counsel, at the post-conviction hearing on July 13, 2021.
At that hearing, the Petitioner called Hope Dirksen, the Department’s hearing officer
who reviews taxpayer’s objections to the underlying civil audit. Dirksen testified that she
reviewed the Petitioner’s objections to his audit and then directed audit staff to either make
adjustments or to uphold the assessment. She explained that she was not responsible for
any calculations regarding the Petitioner’s tax liability. Dirksen noted that in the
Petitioner’s case, a civil audit occurred, and then the Petitioner’s case was referred to the
special investigations unit for a criminal prosecution because there were indicators of fraud.
She stated that in order for the civil investigation not to taint the criminal investigation, the
civil case was put on hold until the criminal case had been concluded.
Dirksen said she reviewed the information the Petitioner submitted regarding
buydown credits and then considered whether or not these buydown credits were included
in the civil tax liability assessment. She asserted that “the only document that was still in
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dispute at the time the conferences ended was the S[&]M buydown [credit].” Dirksen
asserted that she “probably received upwards of 20 emails from [the Petitioner’s] wife with
. . . attachments totaling . . . hundreds of pages[.]” Dirksen said she “would send the
documents first to the audit division [to] see if they would accept them” and then Ms.
Tidwell would respond as to whether the civil audit division would accept them.” Dirksen
acknowledged that although the civil division typically requires documentation directly
from the tobacco manufacturers about buydown credits, she said that if that information
was not available, the Department would sometimes accept additional documents,
including bank statements.
The Petitioner also called Agent McGhee to testify at this hearing. Agent McGhee
acknowledged that the Petitioner asserted during his first interview that he was entitled to
buydown credits from JT International and other companies. Agent McGhee also
acknowledged that the $36,655 buydown credit from JT International that was referenced
in a July 2, 2020 email from the civil division of the Department was not included in his
calculation of the Petitioner’s criminal tax liability at the Petitioner’s 2016 trial. When
asked why he withheld the buydown credit for JT International, Agent McGhee replied,
It was not withheld. I testified during the trial that our process . . . is
that once I find out the buydown information, I submit that to a tech in our
office[,] and he sends off for that information, and the buydown information
that I got back to put in my calculations is what is in Appendix A [that was
admitted at trial].
When he was asked why the Department was able to discover information about this
buydown credit from JT International in 2020 but was unable to discover this information
prior to the Petitioner’s trial, Agent McGhee stated, “From my understanding, I don’t know
that [the buydown credits from] JT International w[ere] discovered by the Department of
Revenue in 2020. I think [the Petitioner’s wife] provided the information to the
Department of Revenue.”
During Agent McGhee’s testimony, the post-conviction court asked if the Petitioner
had a document that calculated his tax obligation to be less than $60,000, and the Petitioner
admitted that he did not have such a document. The court noted that the State, in its motion
to dismiss, asserted that even if the Petitioner had received the buydown credits he alleges,
the Petitioner still owed taxes in an amount “nowhere near below sixty thousand dollars”
required for the theft conviction.
When questioning resumed, Agent McGhee stated that the 1099 miscellaneous form
from R.J. Reynolds concerned contract payments of $36,000 and $2700 that were related
to display, not buydown credits, and therefore were not included in his calculation of the
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Petitioner’s tax liability. After reviewing the July 2, 2020 email from Sherry Tidwell to
Hope Dirksen, which detailed the buydown credits to which the Petitioner was entitled on
the civil case, the Petitioner asked Agent McGhee why these buydown credits were not
utilized during the investigation of the Petitioner’s criminal case, and Agent McGhee
replied that he was “not aware” of the additional buydown credits at the time of his
investigation and noted that the referenced email between Tidwell and Dirksen was dated
July 2, 2020.”
When the post-conviction court asked the Petitioner if he was conceding that the
Department’s civil division calculation of the pertinent figures was correct, the Petitioner
asserted that no one had correctly calculated his tax liability. The Petitioner acknowledged
that “the earliest possible date the state agents knew [of] additional buydown [credits] was
in the spring of 2020” but asserted that Agent McGhee “had [his] bank records” and had
“additional information” that proved the validity of these buydown credits. The Petitioner
asserted that the new buydown credit information from JT International and Liggett Vector
that was recognized in the July 2, 2020 email between Tidwell and Dirksen came “from
the state, not from me,” that he did not have this new buydown information at trial, and
that he did not receive the information about the new buydown credits until sometime in
2020.
When questioning once again resumed, the Petitioner asked Agent McGhee if the
new buydown information from JT International and Liggett Vector was included in his
calculations of the Petitioner’s tax liability at trial, and Agent McGhee responded, “As I’ve
said numerous times, I did not have this information during the trial, so it was not utilized.”
He confirmed that he did not withhold any information during the Petitioner’s trial. He
also asserted that the Petitioner “at trial . . . never brought up S[&]M Brands as a buydown.”
Agent McGhee said that the $216,306.80 in total buydown credits did not include an
undisclosed amount of buydown credit from S&M Brands that he included in his
calculations for the post-conviction proceedings in order to give the Petitioner “as much
credit as feasibly possible[.]” Agent McGhee stated that he did not have buydown
information from JT International, Liggett Vector, or S&M Brands at the time of the
Petitioner’s trial, so he “didn’t have anything to withhold from the jury.” When Agent
McGhee was asked if the civil division had access to buydown information that the
criminal division did not, he explained that the civil division “didn’t have it until after the
[Petitioner’s] criminal trial” and the civil division “didn’t have it during [the Petitioner’s]
audit before it was referred to s[pecial] i[nvestigations].”
As to the Petitioner’s claim that the State violated Brady by failing disclose the
additional buydown credits, the post-conviction court commented,
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JT [International] is not an agency of the [S]tate[,] and these other companies
are not agencies of the [S]tate, so—just because there’s information out there
that the [S]tate did not have custody or control over, it’s not suddenly charged
to [it]. And so [the Department has] acknowledged that S[&]M Brands and
Liggett Vector and JT International, that those [buydown credit] numbers
were not included in the trial calculation and that they didn’t have those
numbers at that time. And so no matter how many times you ask that
question, the simple answer and what is relevant for me to consider as far as
a Brady violation is did the [S]tate have that information, were they aware of
it[,] and when they became aware of it.
The Petitioner then claimed that Agent McGhee committed perjury during the post-
conviction hearing when he testified that he did not have the additional buydown
information at the time of the Petitioner’s trial. The post-conviction court responded that
there had been no proof that Agent McGhee had not testified truthfully.
After the conclusion of Agent McGhee’s testimony, the Petitioner admitted into
evidence the referenced July 2, 2020 email from Sherry Tidwell to Hope Dirksen regarding
the buydown credits that the civil division had provided to the Petitioner for the year 2011.
This email referenced the following buydown credits for 2011:
Phillip Morris $134,269.00
RJ Reynolds $ 36,326.30
Lorrilard $ 2,110.50
Liggett Vector $ 6,946.00
JT International $ 36,655.00
TOTAL BUYDOWN CREDITS FOR 2011: $216,306.80
This June 2, 2020 email also stated the following: “We cannot accept the S&M buydowns
because there are no dates on the spreadsheets showing when buydowns were for or when
they were paid. The spreadsheets are also not on company letterhead . . . .”
The Petitioner additionally called Sherry Tidwell to testify at this hearing. Tidwell
stated that she sent an email to Hope Dirksen, the administrative hearing officer, on July 2,
2020. Tidwell confirmed that she used the Petitioner’s bank statements to get deposit
information about buydown credits from the tobacco manufacturers. When she was asked
whether the criminal investigation used the Petitioner’s bank statements that the civil side
utilized, Tidwell said, “I think that the criminal—the special investigations [unit] contacts
the manufacturers directly. I don’t know that they used the bank [statements]—I don’t
know that they had the bank statements.”
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Tidwell said that the civil division calculated the Petitioner’s total buydown credit
to be $216,306.80 after including buydown credit information from the Petitioner’s bank
statements, from the information the criminal special investigations unit received from the
tobacco manufacturers, and from the additional information provided by the Petitioner that
was verified by the manufacturers. She said she believed that the only two tobacco
manufacturers that made deposits evidenced in the Petitioner’s bank statements were Philip
Morris and R.J. Reynolds.
Tidwell stated that the civil division did not get involved with the criminal
investigation. She noted that if the civil division, after looking at an individual’s books
and records, determined that there could be fraudulent activity, then it passed that
information on to the criminal investigators. She said that the civil audit division does not
make an assessment at the time a case is given to criminal investigators.
In response to questioning from the post-conviction court, Tidwell said that the
additional information she received about buydown credits from JT International, Liggett
Vector Brands, and S&M Brands came from the Petitioner’s wife in 2020 after an informal
conference. She acknowledged that she did not tell Agent McGhee about these additional
buydown credits, but she did use at least some of these buydown credits to reduce the
Petitioner’s tax assessment from the civil division. Tidwell affirmed that the buydown
credits from JT International, Liggett Vector Brands, and S&M Brands were not derived
from the Petitioner’s bank records; instead, the buydown credits from these three
manufacturers were derived from information the Petitioner’s wife provided, which the
civil division then attempted to verify through the tobacco manufacturers.
Finally, the Petitioner called appellate counsel, a Greene County Public Defender,
to testify at this hearing. Appellate counsel stated that he represented the Petitioner on
direct appeal and handled the sentencing issues regarding that appeal while another
attorney, Counsel B, handled the trial issues for the direct appeal. Although the Petitioner
suggested during his questioning that Counsel B had sustained a back injury and did not
continue representing him on direct appeal, appellate counsel said that Counsel B signed
and filed the appellate brief in the Petitioner’s case and handled all the trial issues. When
the Petitioner asked appellate counsel about whether the defective presentment and the
State’s decision to pursue a supersedeas presentment would have been grounds for
constitutional error that needed to be raised on direct appeal, appellate counsel replied,
“I’m unaware of any defects in your presentments. I never—that was not part of my
representation of you, so I can’t answer whether or not presentments in your case did in
fact have any level of defect to them[.] Appellate counsel then explained, “[T]he Rules of
Criminal Procedure state that if you’re going to move to dismiss for a fatal flaw in the
indictment or something along those lines, that it has to be a pretrial motion.”
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When the Petitioner asked if appellate counsel had attempted to raise the issue of an
invalid charging instrument on appeal, appellate counsel replied that he did not recall
whether a motion to dismiss was ever filed in the Petitioner’s case. At that point, the trial
court interjected:
I can’t find ineffective assistance of counsel regardless of whether [appellate
counsel] was instructed to file that appeal or not instructed to file that appeal
based on the presentment because it’s obvious that there’s no defect in the
presentment. There was a presentment. There was a supersedeas
presentment that replaced the presentment[,] and we went to trial. It’s just
that simple.
When questioned about whether he investigated the buydown credits, appellate
counsel stated that to his knowledge, Counsel B investigated that issue. Appellate counsel
asserted that he did not follow-up on that issue in the Petitioner’s appeal because it was
“outside the scope of [his] representation” because he just handled the sentencing issues
on direct appeal.
When the Petitioner asked whether appellate counsel had challenged the State’s
erroneous introduction of evidence from 2009 to 2013, appellate counsel stated that “[t]he
record had to be preserved by trial counsel [, namely the Petitioner who represented himself
at trial,]” and that if Counsel B did not raise that issue on appeal, then “it was probably a
failure of trial counsel” to preserve the record.
When the Petitioner asked appellate counsel about whether he included the audio
recording on appeal that was excluded at trial, appellate counsel replied, “If the audio
[recording] that you’re talking about is not in this designation of record, it would be because
trial counsel failed to either proffer it into evidence or get it into evidence during the course
of the trial.” The post-conviction court then added, “I remember the audio in which you
lied to the investigators and told them you weren’t recording them” when they asked you
questions about an unrelated tax case involving a different individual. The court asserted
that this audio recording was played during a “jury out” hearing at trial and that the court
ultimately excluded this recording because the “only questions that the investigators asked
in that secret recording w[ere] about another tax individual and you were claiming that was
a smoking gun.” The Petitioner said he did not recall telling the investigators that he was
not recording them. The trial court then asserted,
[The audio recording in question] established absolutely nothing favorable
to you and would have established that you were misrepresenting to the
investigating officers whether they’re being recorded or not. . . . [T]he court
properly excluded that [audio recording]. It was of no evidentiary value and
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could only possibly serve to have undermined, to put it nicely, your
credibility to the jury.
When the Petitioner asked appellate counsel whether he was responsible for the
record on appeal, appellate counsel replied, “Well, again, that would be trial counsel’s
responsibility to preserve the record during trial.” He added, “[Counsel B] handled [the]
trial aspect of your appeal, so whatever conversations you had with him and, you know, I
would assume that you approved the brief before it was sent before the criminal appeals as
far as the trial aspect is concerned.”
At the conclusion of appellate counsel’s testimony, the Petitioner announced that he
had subpoenaed the Assistant District Attorney General, who prosecuted him at trial and
was representing the State in his post-conviction case, to testify at the post-conviction
hearing. When the post-conviction court asked what the purpose was in subpoenaing this
prosecutor, the Petitioner acknowledged that the court had already determined that the
prosecutor had the right to seek a superseding presentment but he wanted to question the
prosecutor about why Ronnie Metcalfe had been the grand jury foreman for the last thirty
years without any “African Americans or any other nationality even” given the opportunity
to serve as a grand juror. The Petitioner also questioned whether he could have a fair trial
if African Americans were excluded from the grand jury in Greene County because they
did not have a driver’s license. When the post-conviction court asked if the Petitioner was
talking about the grand jury foreman or the grand jury, the Petitioner said his concern was
about the grand jury foreman. In response to questioning from the court, the prosecutor
acknowledged that Ronnie Metcalfe had served as the grand jury foreman in Greene
County for “a very long time” but that “nothing under the law . . . precludes that.” The
prosecutor added that the “grand jury foreman carries no more weight in the grand jury
proceeding than any other grand juror” because “[h]e is simply one vote.” He admitted
that Metcalfe probably served as grand jury foreman for “probably decades.” The post-
conviction court then stated, “We’ll just take as a stipulation that for over a decade, possibly
more than a decade . . . the grand jury foreman was the same individual. Okay. So we
don’t need proof of that. There’s a stipulation.”
The Petitioner then argued that pursuant to Rule 6(g) of the Tennessee Rules of
Criminal Procedure the grand jury foreman “shall hold office and powers for a term of two
years from appointment,” and the post-conviction court explained that a grand jury
foreperson can be reappointed. The Petitioner claimed that this procedure of reappointment
was “unconstitutional” because “it did not include any other racial groups or ethnic
backgrounds[.]” The Petitioner also referenced Rose v. Mitchell, 443 U.S. 545, 556
(1979), arguing that “[a] criminal defendant’s right to equal protection of the laws has been
denied when he is indicted by a grand jury from [which] members of a racial group
purposefully have been excluded.” The Petitioner also asserted, “For decades [there was]
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no other grand jury [foreman] other than Ronnie Metcalfe[,]” and “[h]is son . . . bec[a]me
his [suc]cessor.” The post-conviction court explained that the grand jury foreperson is
appointed by the judge, which for the last sixteen years had been Judge John Duggar, and
that when the foreperson’s “term expires, if the judge is satisfied with [the foreperson’s]
presentation, then they reappoint them[sic][.]” The court asked if the Petitioner’s position
was that Judge Duggar had excluded other people based on race by reappointing Ronnie
Metcalfe, and the Petitioner responded affirmatively. The post-conviction court then
stated:
Well, the court doesn’t accept that and, quite frankly, finds it highly
offensive because the duty of the grand jury foreman is such that you want
somebody that’s experienced in that position and as [Tennessee Rule of
Criminal Procedure 6(g)(3)] clearly says, “[T]he foreperson shall hold office
and exercise powers for a term of two years from appointment. In the
discretion of the presiding judge, the foreperson may be removed, relieved,
or excused from office for good cause at any time.” And so it’s just simply
that Judge Duggar has been satisfied, of course, unfortunately, he’s deceased
at this point in time, that Mr. Metcalfe was doing a good job, and he kept
reappointing him.
You may disagree with that, but that doesn’t make it racist or biased
or anything else.
The court told the Petitioner, “You haven’t established anything here other than a baseless
allegation.” The Petitioner acknowledged, “I’m not here to discuss race as the premise.
For me the premise is just more of a risk of taint in the grand jury process.”
On August 6, 2021, the post-conviction court entered an order denying post-
conviction relief. The Petitioner timely, though prematurely, filed a notice of appeal in this
case.
ARGUMENT
The Petitioner argues on appeal that he received ineffective assistance of appellate
counsel, that the State violated Brady by withholding information relevant to the
Petitioner’s tax liability, that he was convicted upon an invalid presentment, that he was
deprived of a fair and impartial grand jury in violation of the Fourteenth Amendment, that
the trial court erroneously admitted evidence in violation of Tennessee Rule of Evidence
404(b), and that the evidence is insufficient to sustain his conviction for money laundering.
In response, the State contends that the Petitioner is not entitled to relief for a variety of
reasons. We conclude that the Petitioner failed to establish that he received ineffective
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assistance of appellate counsel and that the remainder of the Petitioner’s claims have been
previously determined, waived, or do not entitle him to 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 his or her 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).
This court reviews “a post-conviction court’s conclusions of law, decisions
involving mixed questions of law and fact, and its application of law to its factual findings
de novo without a presumption of correctness.” Whitehead v. State, 402 S.W.3d 615, 621
(Tenn. 2013) (citing Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Calvert v. State,
342 S.W.3d 477, 485 (Tenn. 2011)). However, 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)). As a result, “appellate courts are not free to re-weigh or re-evaluate
the evidence, nor are they free to substitute their own inferences for those drawn by the
post-conviction court.” Whitehead, 402 S.W.3d at 621 (citing State v. Honeycutt, 54
S.W.3d 762, 766 (Tenn. 2001)). “As a general matter, appellate courts must defer to a
post-conviction court’s findings with regard to witness credibility, the weight and value of
witness testimony, and the resolution of factual issues presented by the evidence.” Id.(citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)).
I. Ineffective Assistance of Counsel Claims. The Petitioner argues that appellate
counsel provided ineffective assistance in failing to include in the appellate record certified
copies of the judgments for his prior Connecticut convictions upon which the trial court
relied at the first sentencing hearing in order to sentence him as a Range II offender. The
Petitioner also contends that appellate counsel provided ineffective assistance in failing to
include an allegedly exculpatory audio recording between Agent McGhee and the
Petitioner that was excluded at trial.
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. A claim for post-conviction relief based on alleged ineffective assistance of counsel
is a mixed question of law and fact. Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016);
Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (citing Calvert, 342 S.W.3d at 485).
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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.
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.’” Id.(quoting Goad, 938 S.W.2d at 369).
A. Judgments. As best we can determine, the Petitioner argues that appellate
counsel provided ineffective assistance in failing to include in the appellate record certified
copies of the judgments for his prior Connecticut convictions upon which the trial court
relied at the first sentencing hearing in order to sentence him as a Range II offender. He
claims these judgments were not properly admitted into evidence and did not satisfy the
requirements of Tennessee Rule of Evidence 902.
At the Petitioner’s initial sentencing hearing, the State informed the trial court that
it had filed a notice to have the Petitioner sentenced as a Range II, multiple offender and
that it had certified copies of the Petitioner’s prior convictions to support this range. The
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State provided the trial court with certified copies of the Petitioner’s Connecticut
judgments as well at the applicable Connecticut Code sections for these convictions and
the equivalent Tennessee Code sections. The State conceded that, after evaluating the
elements of the Petitioner’s Connecticut conviction for possession of any narcotic
substance, this conviction would not have been a felony in Tennessee, and, therefore, could
not be used to calculate his sentencing range. However, the State argued that the
Petitioner’s second Connecticut conviction for the sale of a controlled substance or the
possession with intent to sell a controlled substance would have been at least a Class C
felony under the Tennessee law in effect at that time. The State also argued that the
Petitioner’s two federal cocaine convictions would have been Class B felonies under the
equivalent statute in Tennessee but acknowledged that the two federal convictions should
be counted as one offense because they occurred on the same date.
The Petitioner’s attorney objected to the use of all out-of-state convictions. He
argued, in part, that the trial court should disregard the certified copies of the Connecticut
judgments because there was a possibility that these judgments did not accurately reflect
what occurred in those cases, given that the Petitioner’s attorney went to Connecticut to
help the Petitioner modify these cases in 2006. He then submitted uncertified
documentation from this attorney to the trial court. The Petitioner’s attorney also argued
that because the Connecticut judgments had not been certified by a clerk at the Superior
Court of Connecticut and were instead certified mittimus judgments from the Connecticut
Department of Corrections, the judgments were not self-authenticating under Tennessee
Rule of Evidence 902. The trial court stated that it would consider the Connecticut
judgments, and after comparing the elements of the federal offenses and Connecticut
offenses to the applicable Tennessee offenses, concluded that the Petitioner had the
required number of convictions to be a Range II, multiple offender.
On direct appeal, the Petitioner argued that the trial court erred in imposing a Range
II sentence in this case, claiming that the trial court, when calculating his range, erroneously
considered evidence that was not properly admitted during the sentencing hearing and that
the trial court failed to apply the appropriate test to determine whether his out-of-state
convictions qualified as felonies in Tennessee. Jerry Reginald Burkes, 2018 WL 2194013,
at *10. This court noted that the State’s notice seeking enhanced punishment, the certified
copies of the Petitioner’s prior convictions, and the Connecticut statutes under which the
Petitioner had been convicted were not included in the record on appeal. Id. at *11.
However, it held that because the trial court stated that it would consider the certified
judgments and the Connecticut statutes and then used these documents to perform an
elements analysis of the convictions, these documents had been admitted into evidence,
even though they were not included in the record on appeal. Id. at *12. After noting that
the defendant had the burden to prepare an adequate record on appeal and that in the
absence of an adequate record, the appellate court must presume that the trial court’s ruling
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was correct, this court held that it could not consider the Petitioner’s claim that the
documents did not satisfy the requirements for admissibility under Rule 902. Id. at *13.
Nevertheless, this court concluded that after utilizing the Petitioner’s federal conviction for
distributing cocaine, which would have been a Class C felony, and his Connecticut
conviction for the sale of narcotics, which also would have been at least a Class C felony,
the trial court did not err in imposing a Range II sentence. Id. at *15.
At the Petitioner’s resentencing hearing following the remand, the trial court noted
that it had already conducted a sentencing hearing in the Petitioner’s case and that the Court
of Criminal Appeals had “affirmed all the sentencing hearing components” with the
exception of “split confinement [and restitution],” so the court did “not envision going back
through every single thing that [it] previously ruled on[.]” Appellate counsel stated that he
had filed a motion to exclude consideration of the Connecticut judgments in determining
the Petitioner’s range of punishment, even though the trial court had just stated that it did
not intend to reopen that issue. Appellate counsel then proffered copies of the Petitioner’s
Connecticut judgments, explaining that although the Connecticut judgments and statutes
were “made exhibits” in the first sentencing hearing, “for whatever reason they didn’t get
sent [as a part of the appellate record].” Appellate counsel also proffered a letter from the
Petitioner’s Connecticut attorney and two motions for modification of sentences the
Petitioner received from the Connecticut Superior Court for his convictions for sale of
narcotics and possession of narcotics with intent to sell. These two motions requested that
the Connecticut court modify the Petitioner’s sentence by “suspending execution of the
unexecuted portion of the jail sentence.” The State objected to the admission of the
attorney letter and motion on the basis that the documents were not certified, and the trial
court questioned the relevancy of these documents, stating, “I’m not getting what a motion
to modify the sentence has to do with anything because this is not an order saying that it
was modified.” Ultimately, the court sustained the State’s objection and refused to
consider the letter from the Petitioner’s Connecticut attorney or the accompanying motions
but allowed these documents to be made an exhibit to the hearing. When appellate counsel
asked the trial court to rule on his current motion to exclude the Connecticut judgments
from consideration, the trial court stated, “[T]he ruling is the same as it was in the last
hearing. I’m admitting the Connecticut documents.” The court noted that the Tennessee
Court of Criminal Appeals had affirmed its finding from the first sentencing hearing that
the Petitioner was a Range II offender. It recognized that the “original Connecticut
judgments” were in the file from the first sentencing hearing and were “considered by the
Court previously” and then made these original Connecticut judgments and the
corresponding Connecticut statutes an exhibit to the resentencing hearing. Thereafter, the
trial court sentenced the Petitioner to eighteen years’ incarceration, imposed the same fine
that it had previously imposed, and ordered that the Petitioner would not be required to pay
restitution in light of his sentence of confinement.
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Following resentencing, the Petitioner appealed, arguing in part that the trial court
abused its discretion in not allowing him to introduce evidence concerning the Connecticut
convictions used by the trial court to sentence him as a Range II offender at the initial
sentencing hearing. Jerry Reginald Burkes, 2019 WL 3061557, at *3. In considering this
issue, this court recognized that in its opinion on direct appeal, it affirmed the Petitioner’s
convictions, the trial court’s finding that the Petitioner was a Range II offender, and the
length of the sentence imposed by the trial court. Id. at *4. Consequently, it concluded
that the law of the case doctrine precluded the Petitioner from relitigating his offender
classification. Id. The court held that none of the three exceptions to the “law of the case”
doctrine applied because “[t]he evidence offered at the sentencing hearing after remand
was not substantially different from the evidence in the initial proceeding, the prior ruling
finding the Defendant a Range II offender was not clearly erroneous and does not lead to
manifest injustice, and there ha[d] been no change in the sentencing law governing
sentence range during the pendency of this case.” Id.; see Memphis Pub. Co. v. Tennessee
Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998) (stating that
the law of the case doctrine “generally prohibits reconsideration of issues that have already
been decided in a prior appeal of the same case” unless “(1) the evidence offered at a trial
or hearing after remand was substantially different from the evidence in the initial
proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest
injustice if allowed to stand; or (3) the prior decision is contrary to a change in the
controlling law which has occurred between the first and second appeal”). Accordingly,
this court held that the Petitioner was not entitled to relief because the trial court properly
limited resentencing to the manner of service of the sentence and restitution. Id.At the post-conviction hearing, the Petitioner asked whether appellate counsel was
responsible for the record on appeal, and appellate counsel replied, “Well, again, that would
be trial counsel’s responsibility to preserve the record during trial.” At the conclusion of
this hearing, the post-conviction court held, “There’s been nothing established that there
was ineffective assistance of counsel.”
While the Petitioner is clearly attempting relitigate this issue of his sentencing range
through an ineffective assistance of counsel claim, he is not entitled to relief because he
cannot show prejudice. In the direct appeal, this court held that the trial court did not err
in imposing a Range II sentence. Although the Connecticut certified judgments were not
included in the appellate record for the Petitioner’s direct appeal, this court nevertheless
reviewed the issue of the Petitioner’s range on the merits and concluded that the Petitioner
was properly sentenced as a Range II offender. In the Petitioner’s appeal following
resentencing, this court held that the trial court had properly limited resentencing to the
manner of service of the sentence and restitution after concluding that the law of the case
doctrine precluded the Petitioner from relitigating his offender classification. Accordingly,
because the Petitioner has failed to establish a reasonable probability that, but for counsel’s
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allegedly unprofessional errors, the result of the proceeding would have been different, he
is not entitled to relief on this issue.
B. Audio Recording. The Petitioner also contends that appellate counsel was
ineffective in failing to include in the appellate record an alleged exculpatory audio
recording between Agent McGhee and the Petitioner that was excluded by the trial court
at trial. Although not clear from the Petitioner’s brief, it appears that the Petitioner is also
claiming that appellate counsel should have challenged the trial court’s exclusion of this
audio recording on appeal. The Petitioner claims that this recording “included Justin
W[hite]2 . . . and how his sales and use tax calculations [we]re identical to [the Petitioner’s]
sales and use tax calculations.” He asserts that this audio recording was admissible under
the business records exception to the hearsay rule in Tennessee Rule of Evidence 803(6),
and he insists that this recording would have “enabled appellate counsel to conduct further
and possibly fruitful investigation regarding the fact that someone other than [the
Petitioner] committed the alleged sales and use tax violations.”
The record shows that during a jury-out hearing at trial the Petitioner attempted to
introduce an audio recording that the Petitioner made during an interview with Agent
McGhee regarding the Justin White investigation, an investigation totally unrelated to the
Petitioner’s investigation by the Department of Revenue. This audio recording was played
during the jury-out hearing and was later admitted into evidence for identification only at
trial.
In this audio recording, Agent McGhee and Agent Sherry Garrett approached the
Petitioner at his store and begin asking the Petitioner questions about whether he had
bought cigarettes from Justin White. The Petitioner stated that he opened his store on April
1, 2009, when he obtained his business license. He told both agents that he was not actually
recording their conversation because he was “trustworthy” and then reassured them that
“nothing is on.” The Petitioner claimed he had “receipts” or “invoices” for the purchases
he made from Justin White, and explained that during 2009 he was purchasing only
“miniscule” amounts of cigarettes from White in the “evenings” after the White’s store was
closed. Agent McGhee said that “from the DA’s standpoint,” the agents needed something
from the Petitioner acknowledging that he purchased cigarettes from Justin White but that
the amount of the Petitioner’s purchases was not “1.5 million.” The Petitioner stated that
during a two-month period in 2009, he purchased “$2400 at best” in “tax exempt”
cigarettes from White. The Petitioner also claimed he paid taxes on that $2400 worth of
cigarettes. At the close of this conversation, the recording indicates that Agent McGee had
the Petitioner sign a statement, wherein the Petitioner acknowledged that he opened his
2
Although the Petitioner referred to this individual as Justin Wyatt, the State and the State’s
witnesses identified this individual as Justin White.
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business in “April 2009” and that during the period from “April 2009 to July 2009,” the
Petitioner purchased “approximately $2400” in “tax exempt” cigarettes from “Justin
White” at “Kiker’s Tobacco Outlet.”
After this audio recording was played during the jury-out hearing, the State objected
to it on the ground of relevance because the recording concerned Agent McGhee’s
investigation of Justin White, not the Petitioner. The State also asserted that if the
Petitioner was seeking to admit any of his own statements on this recording, the Petitioner’s
statements would be self-serving and inadmissible because the State could not cross-
examine them. Ultimately, the trial sustained the State’s objection to the audio recording,
concluding that the recording was “irrelevant” and “hearsay.” The court opined that the
only reason the Petitioner was trying to introduce the audio recording was to present
evidence that the Petitioner did not want to introduce through his own testimony at trial.3
The court asserted that this audio recording could not possibly be favorable to the Petitioner
because during the recording, he tells Agent McGhee that he was not recording the
interview, even though he was recording it.
At the post-conviction hearing, the Petitioner asked appellate counsel about whether
he included the audio recording that was excluded at trial on appeal, and appellate counsel
replied, “If the audio [recording] that you’re talking about is not in this designation of
record, it would be because trial counsel[, namely the Petitioner who represented himself
at trial,] failed to either proffer it into evidence or get it into evidence during the course of
the trial.” At this hearing, the trial court told the Petitioner the audio in question
“established absolutely nothing favorable to you” and “would have established that you
were misrepresenting to the investigating officers whether they’re being recorded or not
. . . .” The court then stated that it “properly excluded that [audio recording]” because “[i]t
was of no evidentiary value and could only possibly serve to have undermined, to put it
nicely, [the Petitioner’s] credibility to the jury.” At the conclusion of this hearing, the post-
conviction court held:
There’s been nothing established that there was ineffective assistance of
counsel. And importantly, throughout the entire trial you were trial counsel.
I mean, you were representing yourself. And so the court refuses to accept
the position that a person can represent themselves, muck the case up and
then claim [appellate counsel] were ineffective.
The transcript from the post-conviction hearing shows that the Petitioner failed to
present any testimony from the appellate counsel who was responsible for appealing the
Petitioner’s trial errors. Moreover, despite the Petitioner’s claims to the contrary, the
3
The Petitioner, who represented himself at trial, chose not to testify on his own behalf.
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appellate record from the Petitioner’s direct appeal did include this audio recording, which
was made an exhibit for identification only. For these reasons, the Petitioner cannot
establish that appellate counsel was deficient in failing to include the audio recording in
the appellate record. See Tenn. Code Ann. § 40-30-110(f).
In addition, the Petitioner has failed to establish that appellate counsel was deficient
in failing to challenge the trial court’s exclusion of this audio recording at trial or that this
alleged deficiency prejudiced his case. We conclude that the trial court properly excluded
the recording. The audio recording was irrelevant because it concerned the Department’s
unrelated tax investigation of Justin White and the related purchases the Petitioner made
from White in 2009. In addition, this recording was inadmissible hearsay because the
Petitioner was offering the Petitioner’s and Agent McGhee’s statements to prove the truth
of the matter asserted and no hearsay exception applied. Although the Petitioner claims
that this audio recording was admissible under the business records hearsay exception, the
recording was not made by a person “with a business duty to record or transmit” this
information and was not made “in the course of a regularly conducted business activity.”
Tenn. R. Evid. 803(6). In addition, this recording was not properly authenticated under
Rule 901 or 902 of the Tennessee Rules of Evidence. Because the Petitioner has failed to
show that appellate counsel’s performance was deficient with regard this audio recording,
the Petitioner is not entitled to relief.
II. Remaining Claims. The Petitioner also argues that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by withholding information relevant to the Petitioner’s tax
liability, that he was convicted upon an invalid presentment, that he was deprived of a fair
and impartial grand jury in violation of the Fourteenth Amendment, that the trial court
erroneously admitted evidence in violation of Tennessee Rule of Evidence 404(b), and that
the evidence is insufficient to sustain his conviction for money laundering. All of these
claims are either previously determined, waived, or do not entitle the Petitioner to post-
conviction relief.
“A ground for relief is previously determined if a court of competent jurisdiction
has ruled on the merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-106(h);
Tenn. Sup. Ct. R. 28, § 2(E). “A full and fair hearing has occurred where the petitioner is
afforded the opportunity to call witnesses and otherwise present evidence, regardless of
whether the petitioner actually introduced any evidence.” Tenn. Code Ann. § 40-30-
106(h); see Berry v. State, 366 S.W.3d 160, 170 (Tenn. Crim. App. 2011) (concluding that
the petitioner’s claim of a speedy trial violation was previously determined on direct appeal
because the supreme court and the court of criminal appeals considered the petitioner’s
claim under the relevant authorities and in light of the evidence available to it at the time).
On the other hand, “[a] ground for relief is waived if the petitioner personally or through
an attorney failed to present it for determination in any proceeding before a court of
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competent jurisdiction in which the ground could have been presented” unless the ground
is based on a constitutional right not recognized as existing at the time of trial, if either the
federal or state constitution requires retroactive application of that right, or the failure to
present the ground was the result of unconstitutional state action. Tenn. Code Ann. § 40-
30-106(g). “There is a rebuttable presumption that a ground for relief not raised before a
court of competent jurisdiction in which the ground could have been presented is waived.”
Id. § 40-30-110(f). The statutorily-created doctrines of “previously determined and
“waived” help avoid “an open- and possibly never-ending approach to post-conviction
review.” State v. West, 19 S.W.3d 753, 756 (Tenn. 2000).
A. Brady. The Petitioner raises a freestanding claim that the State committed a
Brady violation by failing to disclose a total of $749,000 of Promotional Tobacco Buydown
Credit Payments, which he claims would have lowered his tax liability below the $60,000
threshold required for his theft conviction. Specifically, the Petitioner claims the State
“maliciously withheld favorable . . . exculpatory evidence” consisting of buydown credits
from JT International Brands in the amount of $36,655, S&M Brands in the amount of
$26,000, Liggett Vector Brands in the amount of $8,000, and Inmar Coupon Redemption
Processing Center and CPC Inc. 1099 in the amount of $147,000. He claims this
suppressed information was “material to the issue of guilt or innocence” because there is
“reasonable likelihood” that it could have affected the jury’s verdict. See Wearry v. Cain,
577 U.S. 385, 392 (2016). The Petitioner also asserts that he never “had the opportunity
to possess the same information [regarding these buydown credits]” as the State of
Tennessee because his business records and property were seized and never returned.
Initially, we note that this is not the first time that the Petitioner has asserted a Brady
violation based on the State’s alleged failure to disclose these buydown credits. On direct
appeal, the Petitioner, with the assistance of appointed counsel, argued that the State
violated the constitutional requirement that it disclose exculpatory evidence by failing to
obtain and provide coupon information from a company identified as “Inmar Coupon
Redemption” and by failing to obtain and provide buydown information from a company
identified as “JT International.” See Jerry Reginald Burkes, 2018 WL 2194013, at *6.
This court held that the Petitioner was not entitled to relief on direct appeal because “the
challenged evidence was not within the exclusive control of the prosecution and was
instead equally available to both the [Petitioner] and the State through the use of
compulsory process.” Id. at *7. Accordingly, we conclude that to the extent that the
Petitioner again challenges the State’s failure to disclose buydown information from JT
International as a stand-alone claim, we conclude that this claim has been previously
determined, see Tenn. Code Ann. § 40-30-106(h); Tenn. Sup. Ct. R. 28, § 2(E); Berry, 366
S.W.3d at 170, and this court’s opinion on direct appeal regarding the JT International
buydown credit is the law of the case, see Memphis Publ’g. Co., 975 S.W.2d at 306.
Although the Petitioner suggests that the exceptions to the law of the case doctrine apply,
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“[n]o Tennessee court has yet invoked the law of the case doctrine’s exceptions . . . to
support reconsideration of a previously determined issue in the post-conviction context.”
William G. Allen v. State, No. M2009-02151-CCA-R3-PC, 2011 WL 1601587, at *8
(Tenn. Crim. App. Apr. 26, 2011), perm. app. denied (Tenn. Aug. 25, 2011).
While an argument could be made that the Petitioner waived his remaining claims
regarding buydown credits from other manufacturers/companies by failing to raise these
claims on direct appeal, the Petitioner asserted at the post-conviction hearing that he did
not receive information about these other buydown credits until sometime in 2020.
Accordingly, we will address these claims on the merits.
In Brady, 373 U.S. at 87, the United States Supreme Court held 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.” In order to prove a Brady violation, the defendant
must establish the following four elements:
1) that the defendant requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2) that the State suppressed the information;
3) that the information was favorable to the accused; and
4) that the information was material.
Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001) (citing State v. Edgin, 902 S.W.2d 387,
390 (Tenn. 1995); State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995)).
“The prosecution is not required to disclose information that the accused already
possesses or is able to obtain[.]” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim.
App. 1992) (citing State v. Caldwell, 656 S.W.2d 894, 897 (Tenn. Crim. App. 1983); Banks
v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). In addition, the prosecution has no
duty to “seek out exculpatory evidence not already in its possession or in the possession of
a governmental agency. Id. “When exculpatory evidence is equally available to the
prosecution and the accused, the accused ‘must bear the responsibility of [his] failure to
seek its discovery.’” Id. (quoting United States v. McKenzie, 768 F.2d 602, 608 (5th Cir.
1985)).
In its order denying relief, the post-conviction court made the following findings of
fact and conclusions of law:
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[T]he Court accredits the testimony of [A]gent McGhee and Sherry Tidwell,
Tax Auditor, and finds that the State did not have the records [of these
additional tobacco buydown credits] nor were they aware of their actual
existence until 2020[,] well after the [Petitioner’s] jury trial; furthermore, the
proof clearly established that [the Petitioner’s] wife is the one who provided
the initial records to the civil tax division of the Department of Revenue.
These records were not provided to the criminal division until after they were
submitted to the civil division in 2020. The Court further finds [that the
Petitioner’s Brady] claim . . . fails because [the Petitioner] was aware of the
existence of [these additional tobacco buydown credits] from the beginning
of the investigation and could have obtained any necessary documents or
witnesses prior to the jury trial. [The Petitioner] was completely aware of all
the State’s evidence against him because the District Attorney for the Third
Judicial District operates with an open file policy and provided [the
Petitioner] with full discovery. [The Petitioner] was a business owner with
direct relationships with the cigarette manufacture[r]s and their buydown
programs and was in a better position than anyone to know of and procure
evidence that would be beneficial to his case.
The record fully supports the trial court’s findings and conclusions. The proof presented
at the post-conviction hearing shows that this buydown information was not in the
possession of the State at the time of the Petitioner’s trial, that the Petitioner’s wife
ultimately disclosed this buydown information to the State in 2020, and that the Petitioner,
who was aware of the existence of these buydown credits from the beginning of the
investigation, could have obtained the necessary proof or witnesses prior to his trial. The
State had no duty to seek out exculpatory evidence of the buydown credits not already in
its possession. Because evidence of these additional buydown credits was “equally
available to the [Petitioner] and the State through the use of compulsory process,” see Jerry
Reginald Burkes, 2018 WL 2194013, at *7, the Petitioner bears the responsibility for his
failure to discover it. Because the State committed no Brady violation regarding these
buydown credits, the Petitioner is not entitled to relief.
B. Presentments. The Petitioner also claims as a stand-alone issue that both the
original presentment and the superseding presentment in his case were defective. He
claims that “the original presentment was not . . . returned in open court by any grand jury”
and that the “plethora of defects” in his original presentment “forbids the filing of a
superseding presentment.” He additionally maintains that “the superseding presentment
[wa]s fatally defective in failing to inform [him] of alleged acts of underpayment after the
period covered by the defective presentments.”
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In addition to the previous claims, the Petitioner also asserts that because the State
tried him on both the original and superseding presentments, he received multiple sentences
for a single offense, which violated the protections against double jeopardy. Moreover, he
asserts that because there was “a single, continuing tax evasion relative to only one
complaint from the Tennessee Department of Revenue” that occurred over “twelve (12)
transactions from January through December 2011, there can be only “one penalty.”
Finally, he claims that because the charged offenses of tax evasion, money laundering and
theft all occurred “within the same time frame” they constitute “one single criminal act”
and that his convictions for all of these offenses violate double jeopardy.
The Greene County Grand Jury initially issued a presentment charging the Petitioner
with eleven counts of money laundering, one count of forgery, one count of theft of
property valued $60,000 or more, and twelve counts of sales tax evasion. The “Yes” or
“No” blank for “True Bill” was not marked for any of the counts of this presentment. In
addition, while the first count charging the Petitioner with money laundering was signed
by the grand jury foreperson and the entire grand jury, the rest of the counts were signed
by the foreperson only.
Prior to trial, the Petitioner filed a pro se motion to dismiss the indictment, despite
the fact that he was actually charged by presentment. In this motion, he alleged, in part,
that the indictment might result in multiple sentences for an alleged single offense in
violation of constitutional double jeopardy provisions. At the hearing on this motion, the
trial court mistakenly determined that the original presentment was invalid because none
of the counts had been marked as a true bill.
The State then obtained a superseding presentment charging the Petitioner with one
count of money laundering, one count of forgery, one count of theft of property valued at
$60,000 or more, and twelve counts of sales tax evasion. Once again, the grand jury
foreperson and the entire grand jury signed the first count, but only the foreperson signed
the remaining counts. On the superseding presentment, each count was marked “Yes” for
“True Bill,” even though this was not required. Id. at *1 n.1 (reiterating that a presentment
does not have to be marked a true bill in order to be valid).
Thereafter, the Petitioner filed a motion to dismiss the superseding indictment,
claiming that the trial court had dismissed the original indictment before the State obtained
the superseding indictment,4 that the superseding indictment violated the Speedy Trial Act,
and that the State’s failure to conduct a thorough investigation should preclude the State’s
ability to obtain a superseding indictment. While an order denying this motion is not
4
We note while the petitioner referred to the charging instrument as an indictment, it was in fact a
presentment. Moreover, the record shows that trial court did not dismiss the original presentment.
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included in the appellate record, the record nevertheless indicates that this motion was, in
fact, denied.
In its order denying relief, the post-conviction court held, “[The Petitioner]
attempted to reraise previously determined issues concerning the validity of the
presentments against him. The Court previously found and again finds no evidence to
support the allegations that the presentments were defective[.]”
Initially, we note that the Petitioner’s claim regarding his receipt of multiple
sentences for an alleged single offense is most likely previously determined, given that the
trial court denied the Petitioner’s motion to dismiss that raised this same issue. See Tenn.
Code Ann. § 40-30-106(h). In addition, it appears that the Petitioner waived all remaining
claims by failing to raise them prior to trial, see Tenn. R. Crim. P. 12(b)(2), (f), and waived
all claims related his presentment and superseding presentment by failing to raise them on
direct appeal, see Tenn. Code Ann. § 40-30-106(g). In any case, the Petitioner is not
entitled to relief on any of these claims.
A superseding presentment is a presentment obtained without the dismissal of a
prior presentment. See State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (citing 41 Am.
Jur. 2d Indictments and Informations § 54 (1995)); see also State v. Tonya Lea Chandley,
No. E2006-02366-CCA-R3CD, 2007 WL 3379787, at *5 (Tenn. Crim. App. Nov. 15,
2007) (stating that indictments and presentments are “virtually identical in purpose”). The
grand jury has “inquisitorial powers over—and shall have authority to return a
presentment—of all indictable or presentable offenses found to have been committed or to
be triable within the county.” Tenn. R. Crim. P. 6(d). The duties of a grand jury include
inquiring into, considering, and acting on all criminal cases submitted to it by the district
attorney general, inquiring into any report of a criminal offense brought to its attention by
a member of the grand jury, and reporting the results of its actions to the trial court. Tenn.
R. Crim. P. 6(e). This power allows the grand jury to “act independently of a court and the
district attorney by instituting a criminal action by virtue of a presentment.” State v.
Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994) (footnote omitted). The State is free
to obtain a superseding presentment any time prior to trial without dismissing the pending
presentment and may then select the presentment under which to proceed at trial. Cf.
Harris, 33 S.W.3d at 771.
Despite the Petitioner’s arguments to the contrary, a presentment is not required to
be endorsed as a true bill in open court. See Martin v. State, 155 S.W. 129, 130 (Tenn.
1913); State v. Muzingo, 19 Tenn. 112, 113 (1838). Here, the record shows that the State
obtained the superseding presentment after the trial court mistakenly determined that the
original presentment was defective. Thereafter, the State elected to proceed under the
superseding presentment at trial. Although the Petitioner asserts that the “plethora of
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defects” in his original presentment “forbids the filing of a superseding presentment,” we
recognize that a superseding presentment is routinely utilized to correct a defect in an
original presentment. See, e.g., State v. Missy Daniella Lane, No. E2017-01907-CCA-R3-
CD, 2019 WL 4568053, at *14 (Tenn. Crim. App. Sept. 20, 2019). Accordingly, the
Petitioner is not entitled to relief on these issues.
Moreover, while the Petitioner claims that “the superseding presentment [wa]s
fatally defective in failing to inform [him] of alleged acts of underpayment after the period
covered by the defective presentments,” the record shows that at the time of trial the
superseding presentment charged him with one count of money laundering that was
committed during the period from February 24, 2011 to January 30, 2012, one count of
theft of property valued at $60,000 or more that was committed during the period from
February 24, 2011 to January 30, 2012, and twelve counts of sales tax evasion that were
each committed on or about February 24, 2011, March 23, 2011, April 25, 2011, May 20,
2011, June 22, 2011, July 22, 2011, August, 22, 2011, September 22, 2011, October 24,
2011, November 22, 2011, December 27, 2011, and January 30, 2012. These were the
only counts with which the Petitioner was charged and convicted. Although the Petitioner
is perhaps referencing the trial court’s admission of his subsequent act evidence under Rule
404(b), as explained below, this issue has been either previously determined on direct
appeal or waived by the Petitioner’s failure to present any evidence in support of this issue
at the post-conviction hearing. In any case, the Petitioner is not entitled to relief on this
issue.
Furthermore, the Petitioner asserts that because there was “a single, continuing tax
evasion relative to only one complaint from the Tennessee Department of Revenue” that
occurred over “twelve (12) transactions from January through December 2011, there can
be only “one penalty.” The record shows the Petitioner was charged with sales tax evasion
under Code section 67-1-114(g), which provides, “It is a Class E felony for any person
willfully to attempt in any manner to evade or defeat any tax due the state of Tennessee . .
. . Each act done in violation of this subsection (g) is a separate offense.” Because the
Petitioner was required to pay sales tax each month to the state of Tennessee, each act of
sales tax evasion that the Petitioner committed each month was properly charged as a
separate offense.
Finally, the Petitioner claims that because the charged offenses of money
laundering, theft, and tax evasion all occurred “within the same time frame,” they constitute
“one single criminal act[,]” and his convictions for all of these offenses violate double
jeopardy. For the offense of money laundering, the State was required to prove that (1) the
defendant knowingly used proceeds with the intent to promote, in whole or in part, the
carrying on of a specified unlawful activity; (2) that the proceeds were derived directly or
indirectly from a specified unlawful activity; and (3) that the defendant knew that the
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property or proceeds were derived from some form of criminal activity. See Tenn. Code
Ann. § 39-14-903; 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 11.36. For the offense
of theft of property valued at $60,000 or more, the State was required to prove that (1) the
defendant knowingly obtained or exercised control over property owned by the State of
Tennessee; (2) the defendant did not have the owner’s effective consent; and (3) the
defendant intended to deprive the owner of the property. See Tenn. Code Ann. § 39-14-
103; 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 11.01. Lastly, for the offense of tax
evasion, the State was required to prove that the defendant willfully attempted in any
manner to evade any tax due the State of Tennessee. See Tenn. Code Ann. § 67-1-1440(g).
Even if the Petitioner’s convictions arose from the same act or transaction, each of these
offenses includes an element different from the other offenses, and no offense is a lesser
included of the other. See State v. Watkins, 362 S.W.3d 530, 558 (Tenn. 2012). Because
the Petitioner has failed to show that the offenses charged in the superseding presentment
or his convictions violate double jeopardy, he is not entitled to relief.
C. Grand Jury. The Petitioner also raises the stand-alone issue that his rights to
due process and equal protection were violated when African Americans were allegedly
excluded from the Greene County grand jury that indicted him as well as the petit jury that
convicted him. See Rose, 443 U.S. at 563-65 (holding that racial discrimination in
selection of members of a state grand jury is cognizable in federal habeas corpus and will
support issuance of a writ setting aside a conviction and ordering the indictment quashed,
even where no constitutional impropriety tainted the selection of the petit jury and guilt
was established beyond a reasonable doubt at a trial free from constitutional error). In
support of this claim, the Petitioner argues that it was unconstitutional and racially
discriminatory for Ronnie Metcalfe, a Caucasian Greene County resident, to serve as the
grand jury foreperson for nearly thirty years, and he contends that Metcalfe’s long-term
appointment tainted the grand jury process as a whole. He also asserts that when Mr.
Metcalfe passed away, his son, Ron Metcalfe, Jr. was automatically appointed as the next
Greene County grand jury foreperson, which he claims is an example of “nepotism, racial
bias, [and] racial discrimination” because there was no adherence to the appointment
guidelines for forepersons.”
Initially, we recognize that the Petitioner failed to raise this issue at trial or on direct
appeal. In its order denying post-conviction relief, the court made the following findings
of fact and conclusions of law regarding this claim:
[The Petitioner] himself did not testify during the hearing and relied on
legal arguments and other witnesses to make his points. [The Petitioner]
argued that the grand jury was illegally constituted; however, he introduced
no evidence to support such [an] accusation. . . . The Court . . . finds no
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evidence to support that the grand jury or [petit] jury were illegally
constituted.
The Court finds that [the Petitioner] introduced no evidence that he
was deprived of an impartial or appropriate jury.
We conclude that the Petitioner has waived this claim by failing to present this issue
to the trial court or on direct appeal. See Tenn. Code Ann. 40-30-106(g); Mobley, 397
S.W.3d at 104. Waiver notwithstanding, the record fully supports the post-conviction
court’s findings and conclusions as to this claim. Although the Petitioner made various
arguments regarding this issue at the post-conviction hearing, the Petitioner offered no
evidence that African Americans were systematically excluded from his grand jury or his
petit jury. Because the Petitioner failed to satisfy his burden of proving the factual
allegations in his petition by clear and convincing evidence, he is not entitled to relief. See
Tenn. Code Ann. § 40-30-110(f).
D. Rule 404(b). The Petitioner argues that the trial court erroneously admitted
evidence of other crimes, wrongs, or bad acts under Tennessee Rule of Evidence 404(b)
that were not proven by clear and convincing evidence. He asserts that the court allowed
the State to introduce “acts that were part and parcel of the very same investigation of
alleged underpayments of taxes[,]” including “a statement taken at the Tennessee Revenue
Office by Agent Brian McGhee” and the State’s “Notice of Intent to Introduce Certified
Records pursuant to Tennessee Rule of Evidence 902(11).”
On direct appeal, the Petitioner argued that the trial court erred in permitting the
State to introduce certain subsequent act evidence pursuant to Tennessee Rule of Evidence
404(b), namely that he underpaid his sales tax in 2012 and 2013 after being warned by
Agent McGhee in 2012 that he had previously failed to remit sufficient payments. See
Jerry Reginald Burkes, 2018 WL 2194013, at *5. In considering this issue, the court held
that this evidence was admissible to show that the Petitioner acted intentionally and that
his failure to remit the proper amount of sales tax was not because of an accounting mistake
or misunderstanding. Id. at *6. The court also held that Agent Mark See’s testimony
established this subsequent act evidence by clear and convincing evidence, that the
probative value of this evidence outweighed the danger of unfair prejudice, and that the
record did not support the Petitioner’s claim that the admission of this evidence created a
danger that the jury would include the amounts of the 2012 and 2013 assessments as part
of the aggregated theft charge. Id.
We conclude that insofar as the Petitioner is attempting to relitigate the same Rule
404(b) issue he raised on direct appeal, this claim has been previously determined, see
Tenn. Code Ann. § 40-30-106(h); Tenn. Sup. Ct. R. 28, § 2(E); see also Berry, 366 S.W.3d
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at 170, and this court’s opinion on direct appeal is the law of the case, see Memphis Publ’g.
Co., 975 S.W.2d at 306.
However, to the extent that the Petitioner is attempting to challenge the admission
of different evidence at trial under Rule 404(b), we conclude that the Petitioner has waived
this issue by failing to present any evidence regarding this claim at the post-conviction
hearing, which resulted in the post-conviction court not ruling on this Rule 404(b) claim.
See Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005) (“Issues not addressed in the
post-conviction court will generally not be addressed on appeal.”). Moreover, although the
Petitioner does not ask for plain error relief, the Tennessee Supreme Court has held that
“‘the plain error rule, which would otherwise permit an appellate court to address the issue
sua sponte, may not be applied in post-conviction proceedings to grounds that would
otherwise be deemed waived or previously determined.’” Holland v. State, 610 S.W.3d
450, 458 (Tenn. 2020) (quoting Grindstaff, 297 S.W.3d at 219). Waiver notwithstanding,
because the Petitioner’s Rule 404(b) claim is an evidentiary, rather than a constitutional
issue, it is not a cognizable claim for post-conviction relief. See Tenn. Code Ann. § 40-
30-103.
E. Sufficiency of the Evidence. Lastly, the Petitioner contends the evidence is
insufficient to sustain his conviction for money laundering. He claims that the State failed
to prove that he used proceeds “with the intent to conceal or disguise the nature, location,
source, ownership, or control of the criminally derived proceeds.” See Tenn. Code Ann. §
39-14-903(a)(1). He insists that there was no evidence presented at trial “suggesting that
he knowingly used proceeds derived directly or indirectly from a specified unlawful
activity,” and that even if the funds used by him “had been derived from a specified illegal
activity, which he does not concede, . . . an accused who simply use[s] the proceeds of
illegal activity to purchase items is not guilty of money laundering.”
We conclude that the Petitioner’s challenge to the sufficiency of the evidence of his
money laundering conviction has been previously determined, see Jerry Reginald Burkes,
2018 WL 2194013, at *9; Tenn. Code Ann. § 40-30-106(h); Tenn. Sup. Ct. R. 28, § 2(E);
see also Berry, 366 S.W.3d at 170, and this court’s opinion on direct appeal is the law of
the case, see Memphis Publ’g. Co, 975 S.W.2d at 306. Moreover, issues regarding
sufficiency of the evidence are not cognizable in post-conviction proceedings. Cole v.
State, 798 S.W.2d 261, 264 (Tenn. Crim. App. 1990) (“It has long been established that
issues concerning the sufficiency of the evidence . . . are not cognizable in post-conviction
proceedings.”). For these reasons, the Petitioner is not entitled to post-conviction relief.
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CONCLUSION
The judgment of the post-conviction court is affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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