Carlos Wilson v. State of Tennessee

12/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 7, 2020 Session
CARLOS WILSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-03231 John Wheeler Campbell, Judge
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No. W2018-01588-CCA-R3-PC
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The Petitioner, Carlos Wilson, appeals the denial of his petition for post-conviction relief.
Following our review, we affirm the judgment of the post-conviction court denying the
petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE, JJ., joined.
Gregory Allen, Memphis, Tn, and Carlos Wilson, pro se, (at hearing) and Lance R. Chism,
Memphis, Tennessee, (on appeal) for the appellant, Carlos D. Wilson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
In June 2012, the Shelby County Grand Jury indicted the Petitioner on one count of
aggravated sexual battery and one count of especially aggravated sexual exploitation of a
minor. Following the trial court’s denial of the Petitioner’s motions to suppress evidence
and to recuse the trial court, the Petitioner was tried before a Shelby County Criminal Court
jury, convicted of both counts as charged in the indictment, and sentenced to an effective
term of twenty-one years in the Department of Correction. His convictions and sentences
were affirmed by this court on direct appeal, and our supreme court denied his application
for permission to appeal. State v. Carlos Wilson, No. W2014-01388-CCA-R3-CD, 2015
WL 5772420, at *1 (Tenn. Crim. App. Sept. 30, 2015), perm. app. denied (Tenn. Jan. 25,
2016).
The Petitioner’s convictions arose from his having sexually molested his girlfriend’s
young daughter and having videotaped some of the encounters. Id. at *1. After the
Petitioner and the victim’s mother had ended their romantic relationship and were living
apart, someone found the Petitioner’s cell phone, which he had lost in Florida, and mailed
it to the victim’s mother to return to the Petitioner. Id. Because the Petitioner was so
adamant that she not look at the phone, the victim’s mother opened it and discovered a
video of the Petitioner “caressing [the victim’s] bottom with her underwear and pants
pulled down.” Id. She turned the phone over to a Memphis police officer and a police
detective later obtained a search warrant to examine its contents. She also accompanied
officers to the Petitioner’s hotel room under the pretense of returning his phone. Once
there, officers showed the Petitioner the video the victim’s mother had found and the
Petitioner admitted to officers that he was the man on the video rubbing the victim’s bare
buttocks. He insisted, however, that he was merely performing a sports massage on the
victim, whom he had trained in basketball. Id. at *4.
The Petitioner filed a number of motions prior to trial, both pro se and through
counsel. Through counsel, the Petitioner filed a motion to suppress the results of the search
of his phone. Following a hearing, the trial court denied the motion, finding that there was
no proof that the victim’s mother was acting as an agent of the State when she obtained
and looked at the phone and thus that there was no Fourth Amendment violation. Id. at *2.
The Petitioner then requested to represent himself, expressing to the trial court his belief
that his counsel was not effectively attacking the validity of the search warrant and was not
representing the Petitioner to the best of counsel’s abilities because the Petitioner owed
him money. Id. at *3. After questioning the Petitioner, the trial court found that the
Petitioner could represent himself and granted his request to proceed pro se. The court
appointed trial counsel to act as “standby counsel.” Id.
Thereafter, the Petitioner filed another motion to suppress the evidence found on his
cell phone. When the trial court informed him at the hearing on that motion that he had
not supplied the necessary documentation in support of the motion, the Petitioner told the
trial court that his motion “was actually about the statements he gave to police.” Id. The
trial court then granted the Petitioner’s request for another hearing to consider a motion to
suppress his statement. The hearing was held just before the start of trial. Mid-way through
that hearing, after the Petitioner accused an officer of lying, the court informed the
Petitioner that he would no longer allow him to represent himself because he was
improperly inserting himself into the testimony and was going to “make a mess of things”
if he did that in front of a jury. Id. at *4. Trial counsel, therefore, completed the hearing
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and conducted the trial. At the conclusion of the suppression hearing, the trial court denied
the Petitioner’s request to suppress the statements he made to the police officers in the hotel
room, finding that the Petitioner was not in custody at the time the statements were made.
Id. at *5. The court suppressed the statements the Petitioner made after he had been placed
in the police vehicle for transport downtown. Id.
The trial court allowed the State to amend the indictment to correct the dates just
before the trial began. At trial, the victim testified “that, when she was about eleven, the
[Petitioner] started massaging her ‘body parts and it made [her] feel uncomfortable.’” Id.
at *7. The victim said the first encounter occurred in the living room of their apartment in
Laurelwood Apartments and involved the Petitioner eventually pulling down her shorts
and underwear and massaging her thighs, shoulders, breasts, and the tip of her vagina. She
identified herself and the Petitioner on the DVD of the videos that had been found on the
Petitioner’s cell phone and testified that the massages “occurred ‘a few times a week’ and
after ever practice” despite the fact that she told the Petitioner that they made her
uncomfortable. Id.
Other witnesses who testified on the State’s behalf at trial were the victim’s mother
and three police officers/investigators who were involved in the case. Id. at *6-9.
Consistent with his statement to the police, the Petitioner testified that he was
merely performing therapeutic sports massages on the victim, who complained about pain
in her legs and buttocks following her training sessions and basketball practices. Id. at *9-
10. He denied that the videos were sexual in nature or that he viewed the victim in a sexual
way and said that he videotaped the sessions “to document that he was not inappropriate”
with the victim. Id.
At the conclusion of the proof, the State elected the facts upon which it was relying
to support the convictions. Id. at *10. For the aggravated sexual battery charge, the State
elected the encounter that occurred in the Laurelwood Apartments in 2009 when the
Petitioner first pulled down the victim’s pants and underwear and touched her buttocks and
vagina. Id. For the especially aggravated sexual exploitation of a minor charge, the State
elected a video dated January 29, 2011 at 8:02 p.m. that “showed the [Petitioner] touching
the buttocks of the victim while she was wearing pink patterned underwear and again when
her panties were pulled below her bottom.” Id.
On March 3, 2016, the Petitioner filed a pro se motion for post-conviction relief in
which he raised a number of claims, including ineffective assistance of counsel. Following
the appointment of post-conviction counsel, he filed an amended petition on January 31,
2017, and a supplement to the amended petition on February 27, 2017, in which he raised
claims of ineffective assistance of trial and appellate counsel. Among other things, he
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alleged that trial counsel was ineffective for: failing to attack the validity of the search
warrant on the grounds that officers made intentional misrepresentations in the affidavit;
failing to adequately investigate the case or prepare a defense; failing to call witnesses at
the suppression hearing who would have contradicted the State’s proof; failing to file a
recusal motion against the trial judge, who had been employed by the Shelby County
District Attorney’s Office when the indictment against the Petitioner was returned; failing
to include the Petitioner’s objection to the amendment of the indictment as an issue in the
motion for new trial; failing to object to jury instructions; failing to object to the State’s
election of offenses; and failing to inform the Petitioner that he had withdrawn from the
case. The Petitioner alleged that appellate counsel was ineffective for failing to raise the
suppression issues on appeal. He additionally alleged that the trial court violated his
constitutional rights by, among other things, not recusing itself and not allowing the
Petitioner to proceed pro se at trial.
On February 1, 2017, the Petitioner filed a motion that the post-conviction judge,
who had also presided over his trial, recuse himself on the grounds that he was employed
with the Shelby County District Attorney’s Office at the time of the Petitioner’s indictment.
On February 10, 2017, the post-conviction judge entered an order denying the motion,
finding that there was no reason for recusal because he had been one of 106 attorneys
employed at the district attorney’s office and had no contact with or knowledge of the
Petitioner’s case during his tenure with that office.
The post-conviction hearing took place over several dates in 2017 and 2018, with
the delays caused by the Petitioner’s desire to call additional witnesses and his unhappiness
with his post-conviction counsel. At the beginning of the hearing, post-conviction counsel,
at the request of the Petitioner, renewed the Petitioner’s motion to recuse the post-
conviction judge. The judge reaffirmed his earlier ruling, noting for the record that he had
taken the bench approximately two months after the Petitioner was indicted and had no
knowledge of the case prior to the time it came before him as a trial court judge.
Appellate counsel testified that he frequently met with the Petitioner during the
process of the appeal, reviewed the trial transcripts, and ultimately chose to raise on appeal
the three issues he believed had the best chance of success: whether the Petitioner was
improperly denied the right to self-representation; whether the imposition of consecutive
sentences was proper; and whether the evidence was sufficient to sustain the convictions.
He explained that he did not raise the suppression issues because he did not think the
Petitioner’s argument that the victim’s mother was acting as an agent of the State had any
chance of success. As for the Petitioner’s statement to police, the Petitioner testified to
“the exact same thing” at trial. Moreover, the Petitioner never invoked his right to remain
silent.
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Appellate counsel acknowledged that there was some discrepancy at the suppression
hearing between the testimony of the victim’s mother and the testimony of the officers with
respect to which one knocked on the Petitioner’s hotel room door and whether the
Petitioner was immediately detained or invited the officers inside his hotel room.
Nonetheless, he chose not to raise that issue on appeal. He acknowledged he also chose
not to raise on appeal the fact that the suppression hearing transcripts were not available to
trial counsel before trial. He explained that he did not believe that issue would have had
any chance of success.
Trial counsel testified that he believed his best chance in the case was to get the
videos suppressed. To that end, he argued that the victim’s mother acted as an agent of the
State rather than as a private citizen. In his opinion, the victim’s mother engaged in
fraudulent behavior in obtaining the cell phone and played an active role in the case by
contacting the police to show them the video, arranging to meet the Petitioner at the hotel
under the pretense of bringing him some food and returning the phone, and knocking on
the Petitioner’s hotel room door while the police were hidden behind her. The trial court,
however, found that she had not been acting as an agent of the police and denied the motion
to suppress.
Trial counsel testified that he raised the denial of the motion to suppress as an issue
in the motion for new trial, but the Petitioner retained appellate counsel to represent him
prior to the hearing on that motion. He said he was “very surprised” when he learned that
appellate counsel had not raised the suppression issue on direct appeal and that he,
personally, “would probably have raised every single issue, whether it ha[d] any chance of
. . . success or not.”
Trial counsel testified that he filed a Franks motion in which he argued that the
search warrant was invalid on its face. He said the Petitioner believed that an evidentiary
hearing on a Franks motion and a hearing on a suppression motion were two different
things and did not understand that he had argued against the validity of the search warrant
during the suppression hearing. He stated that the Petitioner wanted him to subpoena every
single officer to a hearing to impeach them on the facts laid out in the affidavit. Trial
counsel disagreed with that approach because he thought it would just allow the officers
an opportunity to “clean up the testimony” prior to trial.
Trial counsel testified that he reviewed the sexual exploitation of a minor statute
with the Petitioner “line by line.” He and the Petitioner had lengthy discussions in which
he repeatedly explained to the Petitioner, who kept focusing on the victim’s birth date, that
the victim’s date of birth was not an element of the offense. Trial counsel acknowledged
that the statute contains a requirement that the district attorney’s office be involved in
obtaining a search warrant related to the statute. He explained, however, that in the
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Petitioner’s case there was independent justification for the search warrant, which he
believed under case law provided sufficient justification for the fact that the district
attorney’s office was not involved at the outset.
Trial counsel testified that he deliberately chose to use “a very light approach”
during his cross-examination of the victim due to her age and the nature of the charges. He
believed that he was able to elicit testimony from her in support of the Petitioner’s position
that the massages were therapeutic massages conducted as part of the Petitioner’s
relationship with the victim as coach and trainer. None of the victim’s testimony surprised
him and, in his opinion, she helped their case to an extent.
Trial counsel testified that he acted as the Petitioner’s elbow counsel at the second
suppression hearing, which was initiated by the Petitioner. Because he had handled the
first suppression hearing, he was prepared to take over when the trial court reversed its
decision about allowing the Petitioner to represent himself. Trial counsel said there were
some minor inconsistencies between the testimony elicited at the two hearings but the
inconsistences were not enough, in his opinion, to warrant subpoenaing additional
witnesses to the hearing. He believed that he effectively brought out at trial the discrepancy
between the testimony of the victim’s mother, who indicated that officers viewed the
contents of the cell phone before obtaining a warrant, and the testimony of the officer who
said that a search warrant was obtained first.
Trial counsel testified that he initially had a very good relationship with the
Petitioner, but over time the relationship soured as the Petitioner became more and more
determined to represent himself and repeatedly expressed his unwillingness to accept the
rulings of the trial court. He said he met numerous times with the Petitioner to discuss trial
strategy but the meetings mainly consisted of his presenting the strategy to the Petitioner
and the Petitioner disputing that strategy. According to trial counsel, the Petitioner wanted
to represent himself with trial counsel essentially acting as his “puppet,” so that there “was
a lot of jockeying about who was the attorney and who was the defendant.” He
acknowledged having sent a letter to the Petitioner asking him to pay an overdue balance
but denied that it affected his representation of the Petitioner. He said that, in light of the
Petitioner’s repeated expressions of his desire to represent himself, along with his apparent
inability to pay for the suppression hearing transcripts, he suggested in the letter that the
trial court might order the transcripts of the hearing at State cost if the Petitioner was able
to convince the court to be allowed to represent himself.
Trial counsel testified that he cross-examined the victim about why she did not
report the alleged abuse at an earlier date. However, he had to walk a fine line in attempting
to suggest that she consented to the massages without appearing to actually argue consent
because she was a minor and her consent was irrelevant to the offenses. He said there was
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some discrepancy as to the age of the victim at the time of the incidents but not enough to
change the offense from aggravated sexual battery to sexual battery. As he recalled, the
indictment charged a range of dates rather than a particular date. He did not remember
having consented to the State’s amendment of the indictment to correct the year listed on
the indictment, but he indicated that he could have, testifying that he could not recall.
Trial counsel testified that he filed a motion to suppress all the results of the
unlawful search of the cell phone, which included the Petitioner’s statements to the police.
He did not file a motion to recuse the trial court because there was no basis for doing so;
although the Petitioner expressed his belief that the trial judge “ha[d] it in for [him],” he
saw nothing to make him believe the trial court was inappropriate. After he knew that the
video was going to be admitted at trial, he strongly urged the Petitioner to accept the State’s
plea offer of eight years for count one with count two dismissed. He said he viewed the
video at the jail and was able to see that, contrary to the Petitioner’s belief, the Petitioner’s
face was clearly visible. The Petitioner, however, was adamant about going to trial.
Finally, trial counsel estimated that he spent over a hundred hours in preparation for
the trial and testified that he was fully prepared to try the case.
Clorissa Thornton, the Petitioner’s girlfriend, testified that the cell phone was hers,
which she had given to the Petitioner to use. She said she asked trial counsel about the
possibility of her testifying at the suppression hearing but counsel advised against it. She
described the relationship between the Petitioner and trial counsel as very strained and
tense.
Elnora Colette Dean, the Petitioner’s sister, testified that she made it very clear to
trial counsel that the cell phone belonged to Ms. Thornton. She also informed trial counsel
that the Petitioner wanted to raise in the suppression hearing the fact that the victim’s
mother lied to obtain the phone. She later informed trial counsel that the Petitioner wanted
that issue raised on appeal.
The Petitioner testified that the officers who arrested him testified untruthfully that
they knocked on his hotel room door. He said it was the victim’s mother who knocked on
the door and that she then stood aside for the officers to barge into his room. According to
the Petitioner, trial counsel admitted to him after the second suppression hearing that he
should have subpoenaed the officers to that hearing. The Petitioner complained that,
although trial counsel filed a motion to suppress the videos, he never argued that the
Petitioner’s statements should have been suppressed due to the warrantless entry by the
police into his hotel room, which meant that the trial court never ruled on that issue. He
said the trial court also never ruled on whether his statements should have been suppressed
due to the warrantless search of his cell phone.
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The Petitioner further complained that trial counsel never filed a motion to attack
the validity of the search warrant itself and never followed up on the Petitioner’s attempts
at the second suppression hearing to show that the police officers lied in the search warrant
affidavit and in their testimony about when they searched the cell phone.
The Petitioner testified that it was obvious in the videos that the victim was older
than the age listed in the search warrant affidavit. Trial counsel, however, failed to
investigate when the videos were made and failed to move to sever the offenses. Had
counsel done so, he could have shown that the State could not satisfy the age element for
aggravated sexual battery.
The Petitioner testified that the State amended the indictment to change the dates of
the offenses on the day of trial, during the time he was still acting pro se. He said he told
the trial court it “could do it” but objected for the record and asked trial counsel to include
the issue in the motion for new trial, but trial counsel failed to do so. He stated that he
drafted motions contesting the age of the victim, which trial counsel filed for him.
However, trial counsel never “advocated for [him]” and did not raise the issue in the motion
for new trial. Trial counsel also failed to cross-examine the victim about her age.
The Petitioner characterized his relationship with counsel as “terrible” and said that
because of their conflicts, he felt that trial counsel was not really trying. He said he wanted
trial counsel to inform the court that he and the Petitioner were experiencing a total
breakdown in communication and to seek to withdraw from representation so that the trial
court would appoint a different attorney. Counsel, however, did not do so.
When asked to explain his allegation that trial counsel failed to object to jury
instructions, the Petitioner testified that the State failed to establish venue by proving that
the videos were filmed in Shelby County. He also complained that the victim’s testimony
that the abuse first occurred in June 2010 while they were living in the Laurelwood
Apartments was not true because they were living in a different apartment complex in June
2010. He said trial counsel failed to raise the above issues in the motion for new trial and
appellate counsel failed to raise them on appeal.
The Petitioner testified that appellate counsel, despite his requests, also failed to
raise on appeal the suppression issues, including the legality of his arrest, or the fact that
the transcripts of the suppression hearing were not provided to him prior to trial.
The Petitioner testified that he did not learn until after trial that the trial judge was
employed with the district attorney’s office at the time the Petitioner was indicted. He said
he thought trial counsel should have filed a motion to recuse the trial judge not just because
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the judge had been employed at the district attorney’s office but because the judge had been
a deputy district attorney “responsible for the day-to-day running” of the office with
supervisory power over the prosecutor in his case.
The hearing was continued to allow the Petitioner to reissue subpoenas, with the
State’s assistance, for witnesses who were either not served or failed to show for the
evidentiary hearing. At a September 29, 2017 report date, the post-conviction court granted
the Petitioner’s request to proceed pro se with the remainder of the evidentiary hearing.
At the January 5, 2018 continuation of the hearing, Deputy Jeffrey Wright of the Desoto
County, Mississippi Sheriff’s Department, who was formerly employed with the Memphis
Police Department, testified that on the day of the Petitioner’s June 4, 2011 arrest he and
two other officers were dispatched to pick up the Petitioner at his hotel room and to take
him to speak with investigators. He was unable to recall whether the victim’s mother was
with them or any other specifics of the arrest, testifying that it had been so long ago he no
longer remembered the details.
Retired Memphis Police Department Lieutenant Sean Dauberger testified that he
could not recall the details of the Petitioner’s case. He believed, however, that the officers
had been dispatched to arrest the Petitioner on a felony arrest warrant that had been issued.
He said that after the officers arrested the Petitioner, he assumed they would have notified
him because that was the standard operating procedure.
Memphis Police Officer D’Andre Johnson, who said he partially recalled the day of
the Petitioner’s arrest, testified that he was dispatched to the residence of the victim’s
mother in response to a call about the victim. He said he never viewed the cell phone but,
it was possible that his partner did. He identified the affidavit of complaint, which he said
had been written by his partner, Officer Simpson. He was fairly certain that he and his
partner went to pick up the Petitioner based on an outstanding warrant on a narcotics
misdemeanor and that they were the ones who knocked on the Petitioner’s door when they
arrived at his hotel. He said the Petitioner let them into the apartment, and they arrested
him based on the outstanding warrant and on the marijuana that they found in his hotel
room. He did not recall questioning the Petitioner about a cell phone.
At the final portion of the evidentiary hearing held on April 6, 2018, the victim’s
mother testified that she called the police after looking through the Petitioner’s cell phone,
showed the video to one of the officers who responded, set up the meeting with the
Petitioner at his hotel room, brought the officers with her, and knocked on the Petitioner’s
door with the officers beside her. She said the Petitioner opened the hotel room door and
one of the officers put his hand on the door to push it all the way open. She stated the
officers did not arrest the Petitioner until after they found marijuana in his hotel room. She
could not recall if the officers questioned the victim.
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On July 23, 2018, the post-conviction court entered a detailed and lengthy written
order denying the petition. Among other things, the court accredited the testimony of both
trial and appellate counsel regarding their meetings and communication with the Petitioner
and their investigation and preparation for the case and the appeal. The trial court found
that the Petitioner made trial counsel’s job very difficult due to the Petitioner’s attempts to
control how trial counsel conducted the case, the Petitioner’s continual focus on irrelevant
matters, and the Petitioner’s unwillingness to listen to trial counsel. The post-conviction
court characterized the Petitioner’s conduct with counsel as “uncooperative and
demanding” but found that trial counsel nonetheless represented the Petitioner “in a
professional and effective manner.” The court further found that the Petitioner failed to
show that any of the witnesses he alleged that trial counsel should have called to the
suppression hearings would have altered the outcome of the case.
With respect to the Petitioner’s allegations of ineffective assistance of appellate
counsel, the court found that appellate counsel, like trial counsel, fully investigated and
prepared for the case. The court further found that appellate counsel offered a reasonable
explanation for why he chose the issues he raised on direct appeal. The court, therefore,
concluded that the Petitioner failed to meet his burden of demonstrating by clear and
convincing evidence that he was deprived of the effective assistance of either trial or
appellate counsel.
ANALYSIS
The Petitioner raises fifteen issues in his appeal to this court, which he states as
follows: (1) whether the post-conviction court abused its discretion in denying Petitioner’s
motions to recuse; (2) whether the trial court abused its discretion by failing to sua sponte
recuse itself; (3) whether trial counsel was ineffective for failing to file a motion asking the
trial court to recuse itself; (4) whether appellate counsel was ineffective for failing to argue
that the State failed to establish venue as to the offense of especially aggravated sexual
exploitation of a minor; (6) whether trial counsel was ineffective for failing to argue that
the State’s election in count one was faulty; (7) whether trial counsel was ineffective for
failing to file a motion to sever the offenses for trial; (8) whether trial counsel was
ineffective for failing to allege in the motion for new trial that the trial court erred in
allowing the State, on the first day of trial, to amend the time period in the indictment; (9)
whether trial counsel was ineffective for failing to file and litigate a “Franks” motion; (10)
whether trial counsel was ineffective for failing to call additional police officers as
witnesses at the suppression hearing; (11) whether appellate counsel was ineffective for
failing to argue on appeal that the trial court abused its discretion by failing to provide
Petitioner with a copy of the April 30, 2013 suppression hearing transcript; (12) whether
the cumulative effect of the above listed instances of deficient performance warrants post-
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conviction relief; (13) whether the post-conviction court erred by failing to allow Petitioner
to present the victim at the post-conviction hearing; (14) whether the post-conviction court
erred by failing to ensure that Petitioner was knowingly and intelligently waiving his right
to post-conviction counsel; and (15) whether this court should reconsider Petitioner’s
motion to supplement the record.
Tennessee’s Post-Conviction Procedure Act affords post-conviction relief to a
petitioner who is “in custody” and whose “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.” Tenn. Code Ann. §§ 40-30-102, -103. The post-
conviction petitioner bears “the burden of proving the allegations of fact by clear and
convincing evidence.” Tenn. Code Ann. § 40-30-110(f); see Nesbit v. State, 452 S.W.3d
779, 786 (Tenn. 2014). We review 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.” Kendrick v. State, 454 S.W.3d 450, 457
(Tenn. 2015). We are bound by the post-conviction court’s findings of fact unless the
evidence preponderates against the findings, and we may not reweigh or reevaluate the
evidence or substitute our own inferences for those drawn by the post-conviction court. Id.We must generally defer to the court’s findings regarding “witness credibility, the weight
and value of witness testimony, and the resolution of factual issues presented by the
evidence.” Id. The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given
only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that same standard for determining ineffective assistance of counsel that is applied
in federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687.
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The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).
I. Recusal of Trial/Post-Conviction Judge
We first address the Petitioner’s issues relating to his claims that the judge who
presided at his trial and post-conviction hearing should have recused himself because he
was employed at the district attorney’s office when the Petitioner was indicted. The
Petitioner argues that the judge should have sua sponte recused himself at trial, his trial
counsel was ineffective for not filing a motion requesting that the judge recuse himself
from trial, and the judge should have granted the Petitioner’s motions that he recuse himself
from the post-conviction proceedings. These issues are without merit.
“A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned.” Tenn. Sup. Ct. R.10, RJC 2.11 (A). Among
the circumstances in which a judge should recuse himself or herself are when the judge
“served in governmental employment, and in such capacity participated personally and
substantially as a lawyer or public official concerning the public proceeding, or has
publicly expressed in such capacity an opinion concerning the merits of the particular
matter in controversy.” Tenn. Sup. Ct. R. 10, RJC 2.11 (A)(6)(b). “‘[T]he test for recusal
is an objective one because the appearance of bias is just as injurious to the integrity of the
courts as actual bias.”” State v. Clark, --S.W.3d --, No. E2020-00416-SC-T10B-CO, 2020
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WL 6375472, at *5 (Tenn. Oct. 30, 2020) (quoting State v. Cannon, 254 S.W.3d 287, 307
(Tenn. 2008)).
The Petitioner argues that the judge should have recused himself from trial and the
post-conviction proceedings because he was not only employed at the district attorney’s
office but was also a deputy district attorney with supervisory authority over the
prosecutors in his case. Our supreme court addressed the same scenario in the recent cases
of Clark and State v. Griffin, --S.W.3d--, No. E2020-00327-SC-T10B-CO, 2020 WL
6375601 (Tenn. Oct. 30, 2020). In those companion cases, the co-defendants argued that
the fact that the indictment was returned when the trial judge was still serving as Knox
County Deputy District Attorney General, with general supervisory authority over the
prosecutors in that office, raised an appearance of impropriety that should have resulted in
the judge’s recusing himself from the case. Griffin, 2020 WL 6375601 at *1; Clark, 2020
WL 6375472, at *1. Our supreme court rejected that argument, holding that broad
supervisory authority, without some evidence that the judge participated personally and
substantially in the case, was an insufficient reason to reasonably question the judge’s
impartiality. The court noted that the analysis to be conducted “is whether a person of
ordinary prudence in the judge’s position, knowing all the facts known to the judge, would
find a reasonable basis for questioning the judge’s impartiality.” Griffin, 2020 WL
6375601, at *9 (internal quotations omitted).
The trial/post-conviction judge stated that he had no knowledge of the Petitioner’s
case prior to the time it came before him after his appointment to the bench. There was,
therefore, nothing that required his recusal from the trial or the post-conviction
proceedings. As for trial counsel’s failure to file a motion for the judge to recuse himself,
trial counsel explained that he saw nothing improper in the judge’s handling of the case
and no basis for such a motion. We conclude, therefore, that the Petitioner is not entitled
to relief on the basis of these claims.
II. Other Claims of Ineffective Assistance of Trial Counsel
In addition to his allegation that trial counsel was ineffective for not filing a motion
for the judge to recuse himself, the Petitioner alleges that trial counsel was ineffective in
the manner in which he handled the motions to suppress and the hearings on that motion,
for his failure to move to sever the offenses for trial, for his failure to challenge the State’s
election of offenses, for his failure to argue that the State did not establish that the offenses
occurred in Shelby County, and for his failure to raise the amendment of the indictment as
an issue in the motion for new trial.
A. Motions to Suppress/ Suppression Hearings
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The Petitioner contends that trial counsel was deficient, thereby prejudicing his case,
by not fully and properly filing and litigating motions to suppress the cell phone videos and
his statements to police, including by not seeking to attack the validity of the search warrant
itself. In denying relief on the basis of these claims, the post-conviction court, among other
things, noted that the Petitioner failed to present any evidence in support of his claim that
the officers intentionally misled the court to obtain the search warrant or that trial counsel
was unaware of any fact or failed to pursue any course that could have aided the Petitioner’s
defense. The court further found that counsel was fully prepared to defend and try the case
and made sound tactical decisions about which issues to pursue. The court, therefore,
concluded that the Petitioner failed to show either a deficiency in counsel’s performance
or any resulting prejudice to his case based on counsel’s handling of the suppression issues.
The record fully supports the findings and conclusions of the post-conviction court.
Trial counsel’s testimony, which was accredited by the court, established that he fully
investigated the case, met with the Petitioner on numerous occasions to discuss the facts
and the trial strategy, and raised and argued the suppression issues before the trial court.
Trial counsel testified that the Petitioner did not understand that he argued against the
validity of the search warrant itself during the suppression hearing. He said the Petitioner
focused on irrelevant issues and repeatedly expressed his unwillingness to accept the
rulings of the trial court. Trial counsel also explained that any discrepancies in the
testimony of the police officers were minor and, in his opinion, too insufficient to warrant
calling each officer as a witness to the suppression hearings. This belief is borne out by
the testimony of the officers at the post-conviction evidentiary hearing, who offered
nothing to show that their testimony would have been particularly helpful to the Petitioner
in a suppression hearing or that it would have altered the outcome of the hearing. The
Petitioner, who throughout the evidentiary hearing and post-conviction proceedings
accused various witnesses of having lied under oath, appears to be mainly attempting to
relitigate the case. However, credibility determinations in this case have already been made
by the trial court in the suppression hearings, and the jury at the trial. The Petitioner has
not met his burden of showing that trial counsel was in any way deficient in his handling
of the suppression issues or that he was prejudiced by any alleged deficiency on counsel’s
part. We conclude, therefore, that the Petitioner is not entitled to relief on the basis of these
claims.
B. Severance of Offenses
The Petitioner contends that trial counsel was ineffective for failing to seek a
severance of offenses in order to prevent the jury from viewing the prejudicial videotapes
in the especially aggravated sexual battery case. Under Rule 14 of the Tennessee Rules of
Criminal Procedure, a defendant is entitled to seek a severance of offenses unless the
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offenses are part of a “common scheme or plan and the evidence of one would be
admissible in the trial of others.” Tenn. R. Crim. P. 14(b)(1).
“[W]ithin the context of ineffective assistance of counsel, the Petitioner must prove
that the decision to not seek a severance of offenses fell outside of the range of competence
demanded of criminal attorneys.” William Darryn Busby v. State, No. M2012-00709-
CCA-R3PC, 2013 WL 5873276, at *17 (Tenn. Crim. App. Oct. 30, 2013), perm. app.
denied (Tenn. Mar. 5, 2014) (citations omitted).
The Petitioner failed to elicit any testimony from trial counsel at the evidentiary
hearing about why he did not move for a severance. Trial counsel was, therefore, never
afforded an opportunity to explain his reasoning. As such, we presume that counsel’s not
seeking a severance was a sound tactical decision, no doubt due to the fact that a severance
was not warranted under the facts of this case and would not have been granted. It is
difficult to envision how trial counsel could have made any sort of winning argument that
the Petitioner’s molestation of the victim and his filming of that molestation were not part
of a common scheme or plan, or that evidence of one offense should not be admitted at the
trial of the other. We conclude, therefore, that the Petitioner is not entitled to relief on the
basis of this claim.
C. Election of Offenses
The Petitioner contends that trial counsel provided ineffective assistance by failing
to challenge the State’s election in count one, in which the State elected the first episode
the victim described in which the Petitioner massaged her bare buttocks and vagina during
the time they were living in the Laurelwood Apartments.
The Petitioner acknowledges that trial counsel was not questioned during the
evidentiary hearing about why he failed to object to the State’s election of offenses.
Instead, he cites a general comment trial counsel made that “with regard to sex crimes,
election of offenses, is sort of over” to suggest that trial counsel was deficient by failing to
recognize that he should have objected to the election based on the fact that the victim, who
testified that the Petitioner touched her vagina almost every time he massaged her, did not
clearly and specifically testify that the Petitioner touched her vagina during the first time
that he massaged her in the Laurelwood Apartments. The Petitioner asserts that “had
counsel objected to this faulty instruction, the instruction could have been cured” or, in the
alternative, trial counsel could have raised it as an issue in the motion for new trial.
According to the Petitioner, had trial counsel raised the issue in the motion for new trial,
“the trial court would have granted relief,” and had the trial court not granted relief, this
court “would have on appeal.”
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We respectfully disagree with the Petitioner’s conclusions about what the outcome
of the issue would have been in the trial court or in this court had trial counsel and appellate
counsel raised it at trial and/or on appeal. Moreover, as mentioned above, the Petitioner
never questioned trial counsel about why he did not raise any objection to the election of
offenses, thereby preventing trial counsel from explaining his rationale.
Regardless, the Petitioner cannot show that trial counsel was deficient for not
objecting to the election of offenses or that he was prejudiced as a result of trial counsel’s
failure to do so.
The State made the following election of offenses for the aggravated sexual battery
count of the indictment:
[T]he offense described by the act of alleged sexual contact, which consisted
of the [Petitioner] pulling down the victim’s pants and underwear and
touching her buttocks and vagina, skin to skin, for the first time. This was
alleged to have occurred in the Summer of 2009 at the Laurelwood
Apartments when the victim was 12 years of age.
We agree with the State that such an election was not improper. “The election
doctrine refers to the prosecutor’s duty in a case where evidence of multiple separate
incidents is introduced to elect for each count charged the specific incident on which the
jury should deliberate to determine the defendant’s guilt.” State v. Qualls, 482 S.W.3d 1,
9-10 (Tenn. 2016) (citations omitted). The election requirement “serves to ensure that the
jury understands its obligation to agree unanimously that the defendant committed the same
criminal act before it may convict the defendant of a criminal offense.” Id. Trial counsel’s
off-hand comment about the election of offense being somewhat “over” in sex abuse cases
was likely a reflection of his awareness that the State has long been allowed “some latitude”
in the election of offenses “in the prosecution of criminal acts committed against young
children who are frequently unable to identify a specific date on which a particular offense
was committed.” Id. (citations omitted). “‘[T]he election requirement is merely a means
by which to protect the right to a unanimous verdict. There is no right to a perfect election,
and indeed, as this Court has recognized, the election requirement may be satisfied in a
variety of ways.”” Id. (quoting State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015)).
The victim’s testimony, like the testimony of many child victims, was somewhat
hesitant and equivocal. She testified, however, that the Petitioner first began massaging
her in the Laurelwood Place Apartments, that he pulled her pants and underwear down,
and that he progressed to rubbing her thighs and the tip of her vagina. She further testified
that the Petitioner massaged her a few times a week and after every practice and that he
continued the practice despite the fact that she told him that the massages made her
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uncomfortable. Although it was not crystal clear from her testimony that the Petitioner
progressed to rubbing her vagina during the first episode, the implication was that he did
and that he followed a similar course of action during each encounter.
We agree with the State that although the Petitioner labels this as an election issue,
he appears in essence to be challenging the sufficiency of the evidence by arguing that the
victim’s testimony was insufficient to sustain a conviction for the elected offense. This
court has, however, already found on direct appeal that the evidence was sufficient to
sustain the conviction. We conclude, therefore, that the Petitioner is not entitled to relief
on the basis of this claim.
D. Venue
The Petitioner contends that trial counsel was ineffective by failing to argue that the
State failed to establish venue for the offense of especially aggravated sexual exploitation
of a minor. In support, the Petitioner cites the fact that the victim never testified that the
cell phone videos were filmed in Shelby County.
As with the election of offenses issue, the Petitioner failed to question trial counsel
at the evidentiary hearing about this issue, so that counsel was not afforded an opportunity
to respond. We agree with the State, however, that there were good reasons for trial counsel
not to challenge the proof of venue. No one can be convicted of an offense unless proof of
venue is established by a preponderance of the evidence. See Tenn. Code Ann. § 39-11-
201(e) (“No person may be convicted of an offense unless venue is proven by a
preponderance of evidence.”); see also State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006).
Venue, however, can be established by circumstantial evidence, see State v. Smith, 926
S.W.2d 267, 269 (Tenn. Crim. App. 1995), and “the jury is entitled to draw reasonable
inferences from the evidence.” Young, 196 S.W.3d at 101-02.
Although the victim did not specifically testify that the videos were filmed in Shelby
County, she testified that the “massages” the Petitioner performed and videotaped occurred
first in their apartment in the Laurelwood Apartments, then in their apartment in the
Windsor Place Apartments where she moved with the Petitioner and her mother when she
was twelve, and later in the Petitioner’s hotel room after he had moved out of their
apartment but continued to occasionally pick her up after school and take her to his hotel
room to work out with a weight bench. Carlos Wilson, 2015 WL 5772420, at *7. Her
testimony, along with testimony from her mother and the police officers and the Petitioner
himself, which indicated that the parties lived in Shelby County during the events that
transpired, was sufficient for the jury to find that venue for both offenses was in Shelby
County. Moreover, we agree with the State that had trial counsel raised an objection to
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venue, it might have opened the door for the State to recall the victim or her mother to offer
more damaging testimony about the Petitioner’s abuse of the victim. We conclude,
therefore, that the Petitioner is not entitled to relief on the basis of this claim.
E. Amendment of the Indictment
The Petitioner contends that trial counsel was also ineffective for failing to raise the
amendment of the indictment as an issue in the motion for new trial. The State responds
by arguing that trial counsel cannot be faulted for failing to come up with a reason to
challenge the amendment of the indictment in the motion for new trial when the Petitioner
himself not only appeared to acquiesce to the amendment but also failed to identify any
way in which he was prejudiced by the amendment. We agree with the State.
On February 20, 2014, the State filed a motion to amend the indictment, seeking to
“amend the time period alleged in the indictment to between June 1, 2007 and June 7, 2011,
rather than the time period alleged of between June 1, 2010 and June 7, 2011.” At the
February 24, 2014 hearing on that motion, the Petitioner, who at that time was still
representing himself, informed the court that he thought it would put him at a “great
disadvantage” because he and the victim’s mother were not even dating during that earlier
time period. The trial court inquired how that fact could possibly prejudice him. After
further discussion with the court and conference with his elbow counsel, the Petitioner
agreed to the amendment, stating that he was going to agree to it although he did not
understand how the indictment could be suddenly changed and that he thought it was
prejudicial toward him for the State to amend it at such a late date. He did not offer any
further reasons as to why he felt prejudiced by the amendment.
On appeal, the Petitioner argues that trial counsel was ineffective for not raising the
issue in the motion for new trial because “broadening” the time period alleged in the
indictment “forced [the Petitioner] to defend himself on three additional years of
allegations” and “allowed the State to cover much more ground in the victim’s twelfth year
of life.”
We disagree that trial counsel was deficient for failing to raise the issue or that the
Petitioner was prejudiced as a result of trial counsel’s alleged deficiency. First, as
previously mentioned, the Petitioner consented to the amendment. Second, and more
importantly, the Petitioner could not show how he was prejudiced by the amendment. Rule
7 of the Tennessee Rules of Criminal Procedure provides that the trial court may amend an
indictment even without the defendant’s consent before jeopardy attaches “if no different
or additional offense is changed and no substantial right of the defendant is prejudiced.”
Tenn. R. Crim. P. R. 7 (a)-(b). We conclude, therefore, that the Petitioner is not entitled to
relief on the basis of this claim.
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III. Claims of Ineffective Assistance of Appellate Counsel
The Petitioner contends that appellate counsel was ineffective for failing to raise on
direct appeal the suppression issues or the fact that the Petitioner did not have transcripts
of the suppression hearings available before trial. The post-conviction court found that
appellate counsel made sound tactical decisions, backed by his full preparation for the case,
about which issues to raise on direct appeal. The record fully supports the findings and
conclusions of the post-conviction court. Appellate counsel explained that he chose to
raise the three issues he believed had the best chance of success on appeal and that he did
not raise the suppression issues or the lack of the suppression hearing transcripts because
he did not believe they stood any chance of success. We conclude, therefore, that the
Petitioner is not entitled to relief on the basis of these issues.
IV. Cumulative Error
The Petitioner contends that even if the various alleged deficiencies in trial and
appellate counsel’s performance did not individually prejudice the outcome of the
proceedings, the cumulative effect of the various deficiencies was to prejudice his case.
We respectfully disagree.
V. Alleged Errors of Post-Conviction Court
The Petitioner contends that the post-conviction court erred by failing to allow him
to present the victim as a witness at the post-conviction hearing and by failing to ensure
that the Petitioner was knowingly and intelligently waiving his rights to post-conviction
counsel at the evidentiary hearing. We, once again, respectfully disagree.
As the State points out, the record reflects that the post-conviction court did not
prevent the Petitioner from presenting the victim as a witness at the hearing. Instead, the
court made every effort to assist the Petitioner in obtaining the witnesses he wanted,
instructing the State to issue subpoenas on the Petitioner’s behalf and repeatedly continuing
the hearing to allow the Petitioner time to gather witnesses. The victim, however, had
apparently left the jurisdiction to attend school and was not reachable by subpoena. This
claim is, therefore, without merit.
Also without merit is the Petitioner’s claim that the post-conviction court failed to
ensure that he knowingly and intelligently waived his right to post-conviction counsel. We
agree with the State that the Petitioner, in making this claim, ignores the long and involved
history of this case, including the Petitioner’s repeated requests over many months and
many court and hearing dates that he be allowed to represent himself and the post-
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conviction court’s repeated discussions with the Petitioner about the dangers in doing so
and the benefits of remaining with counsel. Moreover, as the State points out, the Petitioner
does not argue on appeal that his decision to represent himself was unknowing or
unintelligent but instead that the post-conviction court failed to follow the proper procedure
in thoroughly questioning the Petitioner about his desire to represent himself on the date
that the court finally acquiesced in the Petitioner’s repeated requests to do so. The
Petitioner is not entitled to relief on the basis of this issue.
VI. Supplementation of the Record
Finally, the Petitioner contends that this court should reconsider our July 5, 2019
order entered in response to the Petitioner’s motion that the record on appeal be
supplemented by various documents. In that order, we granted the Petitioner’s request as
to documents that had been filed in the post-conviction court but denied it as to other items
that were not included in the direct appeal and not introduced as exhibits to the post-
conviction evidentiary hearing.
The Petitioner argues that his post-conviction counsel should have entered those
omitted items into evidence at the post-conviction evidentiary hearing and requests “that
this Court take post-conviction counsel’s deficient performance into consideration in
reconsidering its earlier ruling on Petitioner’s motion to supplement the record.” The
Petitioner additionally argues that he should be granted some latitude because he “made
numerous efforts to obtain various items located in the court files” during the time he was
acting pro se.
The State responds by acknowledging that the Petitioner made it clear he “wanted
to review and re-review every scrap of paper” that could in any way be connected with the
police investigation, his trial, or his post-conviction proceedings. The State questions,
however, whether any of those various documents would have made a difference to the
hearing. Regardless, the State argues that this court should not allow the record to be
supplemented to include items that were never received by the lower court. We agree with
the State, and we respectfully decline to reconsider our earlier ruling in this matter.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.
____________________________________
ALAN E. GLENN, JUDGE
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