Ryan D. Buford v. State of Tennessee

09/24/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 15, 2020
RYAN D. BUFORD v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2011-B-1815 Steve R. Dozier, Judge
___________________________________
No. M2019-00424-CCA-R3-PC
___________________________________
The Petitioner, Ryan D. Buford, appeals the denial of his petition for post-conviction relief,
asserting that he received ineffective assistance of trial and appellate counsel. After review,
we affirm the denial of 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 JOHN EVERETT WILLIAMS,
P.J., and ROBERT W. WEDEMEYER, J., joined.
Wesley Clark, Nashville, Tennessee, for the appellant, Ryan D. Buford.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The Petitioner and three codefendants were charged with first degree felony murder,
especially aggravated robbery, and tampering with evidence. The proof at trial showed
that the victim was shot to death after a codefendant arranged to meet him for a “date” but
to actually have him robbed by her confederates, including the Petitioner. State v. Ryan
D. Buford, No. M2014-01265-CCA-R3-CD, 2015 WL 9488975, at *1 (Tenn. Crim. App.
Dec. 29, 2015), perm. app. denied (Tenn. May 6, 2016). The Petitioner and the three
codefendants all gave statements to the police and, in his statement, the Petitioner admitted
that he was the shooter. Id. The Petitioner was convicted as charged and sentenced to an
effective term of life imprisonment. Id. at *7. On direct appeal, the Petitioner argued that
the trial court erred in denying his motion to suppress his statement to police and that the
evidence was insufficient to support his convictions because a codefendant’s testimony
was not sufficiently corroborated. Id. at *1. This court affirmed the judgments of the trial
court, and the Tennessee Supreme Court denied the Petitioner’s application for permission
to appeal. Id.
The Petitioner filed a pro se petition for post-conviction relief and, subsequently,
post-conviction counsel filed two amended petitions. In his petitions, the Petitioner raised
various claims of ineffective assistance of counsel. 1 Relevant to this appeal, the Petitioner
alleged that: (1) his counsel at the suppression hearing was ineffective for failing to put on
evidence to corroborate his testimony concerning his intoxication; (2) his counsels at trial
were ineffective for failing communicate with him, review the transcript from the
suppression hearing, and present a cohesive theory of defense; and (3) his appellate counsel
was ineffective for failing to include a transcript from the suppression hearing in the record
on appeal. The post-conviction court conducted an evidentiary hearing over the course of
several dates, during which the Petitioner presented his own testimony, that of the two
witnesses he claimed should have been called at his motion to suppress, and the four
attorneys who had represented him from the pretrial stage through his direct appeal.
The Petitioner testified that he told suppression counsel and first counsel about
Rodney Foster, a supervisor at the juvenile detention center who could have testified
concerning his intoxication the night after his interview with police. However, suppression
counsel did not call Mr. Foster to testify at the suppression hearing, and first counsel “never
had any kind of defense for anything, so that conversation never went past her telling me
to sign the plea.”
The Petitioner then discussed what it was like to be under the influence of Xanax
and said that at the time of the offense, he was using it “[a]lmost every day if not every
day.” On the day of the interview, he took two bars of Xanax at a time until he blacked
out, and he was also smoking marijuana that day. After he blacked out, the next thing the
Petitioner remembered was waking up in the juvenile detention center and not knowing
why he was there. The Petitioner claimed to have no recollection of the day the victim was
shot, his interview with the police, or admitting in the interview to shooting the victim.
The Petitioner said that he had since watched the videotape of his interview and believed
that a significant indicator of his intoxication was “[m]e asking them how we got down
there.”
1
The Petitioner’s claims are against four different attorneys.
-2-
Dr. James Walker, a clinical psychologist, testified that Xanax is a sedative that
helps people combat anxiety and helps them go to sleep when they are having trouble
sleeping. He said that when a person referred to a “bar” of Xanax, that typically meant a
2-milligram dose. He surmised that a person who took 8 milligrams recreationally “would
be knocked on their back by that dosage of Xanax[.]” He speculated that a milligram of
Xanax was roughly equivalent to four shots of alcohol. Dr. Walker explained that Xanax
had a half-life of four to six hours, meaning the amount of time it takes the body to
metabolize half of the substance. In his opinion, someone who took 8 milligrams of Xanax
would still be feeling its effects very strongly after six hours. Dr. Walker said that, even
after twelve hours, the person would still have a substantial amount of the drug in his or
her system. However, Dr. Walker acknowledged that a person could develop a tolerance
to Xanax, similarly to alcohol.
Dr. Walker never met with the Petitioner, but he reviewed the videotape of the
Petitioner’s confession and, in his view, thought the Petitioner was “clearly [se]dated to
some degree during th[e] interview.” He said that the Petitioner appeared to be sleepy,
spoke slowly, and made mistakes about the circumstances leading up to his arrival at the
police station. In sum, he did not “seem to be really in command of his faculties entirely.”
However, he could not say definitively that the Petitioner was under the influence during
the interview. Additionally, asked whether the Petitioner lacked capacity to understand the
questions being asked of him in the interview, Dr. Walker replied, “I have no opinion on
that issue.”
Dr. Walker acknowledged to having substance abuse problems in his past but said
that he had been clean from cocaine for fifteen months. He said that his psychology license
in Tennessee was presently active, but then said that he believed it was still on a
probationary status. Dr. Walker maintained that his struggle with addiction did not
influence his opinion concerning the Petitioner’s intoxication, aside from “hav[ing] an
inside as to how people react on [intoxicating substances].”
Rodney Foster, a supervisor at the juvenile detention center, recalled that he testified
at the Petitioner’s trial. He remembered speaking with two attorneys, whom he believed
worked for the State, prior to his testifying. He did not recall speaking with any defense
attorneys, although he was called to testify by the defense. Mr. Foster stated that the
Petitioner was intoxicated when he was brought to the juvenile detention center after his
interview with the police. Mr. Foster said that the Petitioner told him that he had taken
seven bars of Xanax. Because of the Petitioner’s disclosure, Mr. Foster “put him on close
observation for the . . . remainder of the night,” with an officer checking on him every
thirty minutes. Mr. Foster said that the Petitioner’s demeanor was consistent with
intoxication; he was “bouncing around, going back and forth[, and] . . . slurring his speech,
saying the same thing over and over an[d] over.” On cross-examination, Mr. Foster said
-3-
that his testimony at trial was true and that the Petitioner was responsive to questions and
able to follow directions.
The attorney who represented the Petitioner at the suppression hearing testified that
he met with the Petitioner on a regular basis in preparation of the case. Suppression counsel
filed a motion to suppress the Petitioner’s videotaped confession to the police on grounds
that it was not knowingly and voluntarily given due to intoxication. At the hearing, the
State presented testimony from Detective Haney, who said that the Petitioner did not
appear to be intoxicated, as well as two videotapes – one of the Petitioner’s interview with
police and the other of the codefendants in a room interacting with one another. The
Petitioner testified on his own behalf at the hearing.
Suppression counsel stated that he did not consider presenting expert testimony
because he was not aware of any medical way the Petitioner’s level of intoxication at the
time of the confession could be determined. Asked if it would have been helpful to have a
medical expert to review the footage to give a medical opinion on the appearance of
intoxication, suppression counsel said, “maybe perhaps.” Shortly after the motion to
suppress was denied, the Petitioner became displeased with counsel’s estimation of his
chances at trial and told counsel that he would not listen to him. Suppression counsel,
therefore, withdrew from the case.
The Petitioner’s first trial counsel testified that she represented the Petitioner for
about a year, essentially from after the suppression hearing through trial. She attempted to
withdraw from the case several times due to the Petitioner’s displeasure with her
assessment of the evidence against him. However, her requests were denied, and she
continued to prepare for trial.
First counsel testified that she reviewed the Petitioner’s videotaped confession to
the police. She explored the possibility of filing another motion to suppress but determined
that “the issue had been decided just not in a way that [the Petitioner] wanted.” First
counsel said that she did not consult a medical expert or obtain an opinion from anyone
else as to the Petitioner’s intoxication because that issue was handled at the suppression
hearing, and she told the Petitioner “that if he was convicted, it was something we would
appeal.” Asked if she thought that medical testimony should have been sought at the
suppression hearing, first counsel said, “I don’t know that that’s for me to say or decide,
but is it something that I have ever done, I don’t think so.”
When questioned about obtaining medical experts for trial, first counsel recalled
that she had obtained medical experts for trial before, but that was usually concerning a
mental health issue which was not the case with the Petitioner. First counsel expounded
that “[u]sually experts go to an element of the case or to negate mens rea, and . . . I’m not
-4-
sure I would have done anything differently, but it’s certainly something that could have
been done.” She summarized, “I felt like it’s a situation where it was an adverse opinion
to [the Petitioner] and you can’t just keep litigating issues because we don’t like them.”
With regard to the Petitioner’s videotaped confession, first counsel elaborated:
[G]enerally when I have a confession in cases, I’m trying as a general rule .
. . to call as little of attention to that as possible. If that . . . works within my
trial strategy, I do not like the jury to hear and spend a long amount of time
on people’s confession. Only bad things happen when they do that.
She said that, “I don’t think it’s good for the jury to spend hours and hours and days
listening to my client[] confess to murder.”
The Petitioner retained private counsel approximately two weeks before trial, and
first and second counsel represented the Petitioner together. First counsel recalled that she
made all of her case materials available to second counsel, including the videotape of the
Petitioner’s confession. First counsel remembered that second counsel came to her
residence one evening to review materials and discuss the case. First counsel felt that she
was fully prepared for trial. However, the Petitioner made “it . . . clear [to her] that [she]
was not wanted or welcome” at trial, and second counsel handled the majority of witness
questioning.
First counsel was asked about Dr. Walker, the psychologist the Petitioner had testify
on his behalf at the evidentiary hearing. First counsel said that she was familiar with Dr.
Walker from other cases and “would probably not hire him again.” She elaborated that Dr.
Walker had battled addiction issues, and issues with that and his licensing had been brought
out on cross-examination in those other cases.
The Petitioner’s second trial counsel recalled that he entered his first appearance in
the case a month or two before the scheduled trial date. He said that he accepted the
representation with the hope that he would be granted a continuance. He sought one based
on the significant amount of discovery in the case and lack of time to prepare, but his
request was denied. The trial court asked if he wanted to remain on the case given the
denial of a continuance, and second counsel said that he did.
Second counsel recalled that another attorney had litigated a motion to suppress the
Petitioner’s statement, and second counsel said that “it appeared [suppression counsel] did
a pretty decent job.” Second counsel stated that the Petitioner claimed that he had been
taking Xanax, using marijuana, and drinking when he was interrogated. When asked if he
would have used an expert at the suppression hearing to contradict Detective Haney’s
testimony regarding the Petitioner’s lack of intoxication, second counsel said, “Well, I’ve
-5-
never thought about that. That’s the first time I have asked that question. And but
presumably so.” He agreed that expert medical proof regarding the Petitioner’s
intoxication would have been an important part of litigating the suppression issue.
However, second counsel admitted that he, himself, had never gotten an expert to testify
about intoxication during a police interview.
Second counsel said that he and first counsel agreed in advance as to which
witnesses they would examine at trial. Second counsel questioned Detective Haney, who
admitted that the Petitioner told officers that he had taken Xanax and used marijuana. In
preparation for his cross-examination of Detective Haney, second counsel reviewed the
case file, the trial court’s order on the motion to suppress, and videotapes of the Petitioner’s
interrogation and his discussion with his codefendants. Second counsel did not recall
reviewing a transcript of the suppression hearing, but he believed that he was prepared for
cross-examination. In second counsel’s view, “it was portions of the video that were
problematic for [the Petitioner],” other witnesses identified the Petitioner and there was
circumstantial evidence as well.
Second counsel recalled interviewing an officer at the juvenile detention center who
testified that the Petitioner was still impaired when he returned from the interrogation and
presenting that officer’s testimony at trial.
The attorney who represented the Petitioner on appeal testified that she thought
there were problems with the Petitioner’s “alleged-so-call confession.” After watching the
videotape of the Petitioner’s confession, she believed “that he was very clearly . . .
intoxicated[.]” She said that in her view, medical proof related to Xanax would have been
helpful for the Petitioner’s case at the suppression hearing. Appellate counsel
acknowledged that she failed to include a transcript of the suppression hearing in the record
on appeal and that it would have been helpful to include one. Appellate counsel admitted
that she had no training in psychology or substance abuse and offered her opinion as to the
Petitioner’s intoxication based solely on what she observed on the videotape.
Following the conclusion of the proof, the post-conviction court entered a lengthy
order denying the petition. The court determined that as to each of his allegations, the
Petitioner had failed to prove deficient performance, prejudice, or both. The court
concluded that the Petitioner was not deprived of his constitutional right to effective
assistance of counsel.
ANALYSIS
On appeal, the Petitioner argues that: (1) his counsel at the suppression hearing was
ineffective for failing to put on evidence to corroborate his testimony concerning his
-6-
intoxication; (2) his counsels at trial were ineffective for failing to communicate with him,
review the transcript from the suppression hearing, and present a cohesive theory of
defense; and his appellate counsel was ineffective for failing to include a transcript from
the suppression hearing in the record on appeal.
Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State,
978 S.W.2d 95, 96 (Tenn. 1998). 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 trial 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 the 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.
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
-7-
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)).
Moreover, 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.”).
The Petitioner first alleges that his counsel at the suppression hearing was
ineffective because he was highly intoxicated when he was interviewed by the police but
his counsel did not put on evidence to corroborate his testimony concerning his
intoxication. He specifically avers that counsel should have presented medical expert
testimony on the effects of Xanax, as well as testimony from an officer at the juvenile
detention center who observed the Petitioner after his statement to police.
In addressing this claim, the post-conviction court first acknowledged that the
Petitioner presented the testimony of Dr. Walker and Mr. Foster at the evidentiary hearing
to support his assertion. The court determined that while Dr. Walker and Mr. Foster could
have provided testimony that would have been helpful to the Petitioner’s position that he
was intoxicated at the time of the interview, the failure to call an expert or corroborating
witness at a pretrial evidentiary hearing did not fall outside the range of competence
demanded of attorneys in criminal cases. The court observed that it was reasonable for
counsel to believe that the proof he offered at the suppression hearing, the Petitioner’s
testimony and videotape of the interview, adequately supported his contention that the
Petitioner was intoxicated.
The court continued that, even assuming arguendo that counsel was deficient for
failing to call such witnesses, the Petitioner was not prejudiced by the failure. The court
noted that on direct appeal, this court considered Mr. Foster’s testimony in its analysis
affirming the denial of the motion to suppress. The court also determined that even if the
court had found the Petitioner to be under the influence at the time of the interview, the
Petitioner’s statements still would have been admitted because the totality of the
-8-
circumstances as outlined in State v. Callahan, 979 S.W.2d 577, 583 (Tenn. 1998),
indicated that the Petitioner knowingly and voluntarily waived his Miranda rights.
On direct appeal, this court observed that “Mr. Foster’s testimony confirmed that
the [Petitioner] was capable of narrating events and that he was not so intoxicated that his
confession was not the product of a free mind or rational intellect.” Ryan D. Buford, 2015
WL 9488975, at *9. At the evidentiary hearing, Dr. Walker testified that he could not say
definitively that the Petitioner was under the influence during the interview, and he “ha[d]
no opinion on th[e] issue” of whether the Petitioner lacked capacity to understand the
questions being asked of him in the interview. The record supports the post-conviction
court’s denial of relief as to this allegation.
The Petitioner next alleges that his first trial counsel failed to adequately
communicate with him and, therefore, most of his trial was handled by second counsel who
did not have sufficient time to prepare. He claims that second counsel “rushed through his
trial preparation” and, as a result, failed to review the transcript or listen to the recording
of the suppression hearing before cross-examining Detective Haney, one of the State’s key
witnesses. The Petitioner asserts that he was prejudiced because “Detective Haney’s
testimony at trial was inconsistent with his testimony at the suppression hearing, and thus
his attorneys missed an opportunity to impeach a key witness for the State.”
In addressing this claim, the post-conviction court found that trial counsels were not
deficient for failing to obtain a transcript of the suppression hearing because while such
transcript could “potentially be . . . useful in some cases, the . . . failure to secure such . . .
[wa]s [not] beyond the range of competence, particularly in a case such as this one where
there is a video recording of the event that was the focus of that prior evidentiary hearing.”
The court continued that, even assuming arguendo that counsel was deficient for
failing to secure a copy of the transcript, the Petitioner did not prove that he was prejudiced
by the failure. The court observed that the “majority of what the Petitioner alleges are
inconsistencies between Detective Haney’s testimony at trial and his testimony at the
suppression hearing are not inconsistent at all.” The court reviewed the alleged
discrepancies and noted that only four of Detective Haney’s answers were actually
inconsistent. The court determined that three of the inconsistencies were minor and that
the failure to question Detective Haney concerning them was not prejudicial. The court
classified the final inconsistency, whether the Petitioner mentioned Xanax in his interview,
as “more significant” than the others but still determined that the Petitioner was not
prejudiced by counsels’ failure to question Detective Haney on that point. The court
concluded that even if counsels had a copy of the transcript from the suppression hearing,
“it would likely have been detrimental for them to attempt [to] impeach Detective Haney
with the fact he previously testified the Petitioner never mentioned having taken Xanax.”
-9-
The court poignantly summarized:
[W]hile the [c]ourt recognizes that it can be beneficial to impeach the
credibility of a witness’s memory through the use of prior inconsistent
statements, the [c]ourt does not find that the failure of trial counsel to do so
with Detective Haney undermines the [c]ourt’s confidence in the verdict.
None of the inconsistencies in Detective Haney’s testimony were great
importance to the key issues in the case. Further, while Detective Haney’s
testimony provided context for the jury to better understand the investigation,
his testimony was far from the most damaging evidence against the
Petitioner. The other testimony against the Petitioner was very strong,
particularly in light of the recorded confession of the Petitioner and the
testimony of one of the Petitioner’s co-defendants implicating him in the
case. Thus, even if the [c]ourt were to find that [counsels] were deficient for
failing to secure a transcript, the [c]ourt does not find that failure prejudiced
the Petitioner.
The record supports the post-conviction court’s determinations on this issue.
Second counsel testified that portions of the videotape of the Petitioner’s interview with
the police “were problematic” for the Petitioner, and one of the codefendants testified
against the Petitioner as well. The Petitioner has not shown that any increased cross-
examination of Detective Haney would have likely affected the verdict.
The Petitioner lastly alleges that appellate counsel was ineffective for failing to
include a transcript from the suppression hearing in the record on direct appeal. He asserts
that the failure to include the transcript prevented this court from considering the denial of
his motion to suppress his statement on direct appeal. He also asserts that appellate
counsel’s failure to include the transcript “shows that she had not reviewed [it] herself.”
In addressing this claim, the post-conviction court found “it is clear that [the] failure
[to include the transcript] constitutes deficient performance as it falls below the range of
competence expected of an appellate attorney.” However, the court determined that the
Petitioner did not meet his burden of establishing that he was prejudiced by the failure.
The court observed that despite saying that it presumed that the lower court’s findings on
the suppression issue were correct, this court “still conducted a thorough review of [the
lower court]’s findings in light of the evidence it had in the record.” The post-conviction
court noted that on appeal, this court considered the lower court’s findings, which
“included a ‘thorough summary of the evidence,’” the two videos of the Petitioner’s
interviews and unofficial transcripts of those videos, as well as the testimony of Mr. Foster
– an officer at the juvenile detention center. The post-conviction court concluded that
- 10 -
“there is nothing in [the direct appeal] opinion that suggests the decision of the Court of
Criminal Appeals might have been different had the transcript been included[.]”
The record supports the post-conviction court’s determinations on this issue. This
court on direct appeal afforded the trial court’s findings a presumption of correctness but
went on to consider those findings, the videotape of the Petitioner’s interview with the
police, and evidence from trial in determining whether the Petitioner waived his rights
knowingly and voluntarily. See Ryan D. Buford, 2015 WL 9488975, at *8-9. We discern
no reasonable probability that the inclusion of the transcript in the record on direct appeal
would have led to a different result.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.
____________________________________
ALAN E. GLENN, JUDGE
- 11 -