Colin D. Savage v. State of Tennessee

03/24/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2020
COLIN D. SAVAGE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Montgomery County
No. 63CC1-2009-CR-16 William R. Goodman III, Judge
___________________________________
No. M2019-01740-CCA-R3-PC
___________________________________
The Petitioner, Colin D. Savage, appeals the Montgomery County Circuit Court’s denial
of his petition for post-conviction relief, arguing that he received ineffective assistance of
counsel. After review, we affirm the post-conviction court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.
Douglas A. Trant and Julia Anna Trant, Knoxville, Tennessee, for the Appellant, Colin D.
Savage.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Robert Nash,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The Petitioner was indicted in Count 1 for conspiracy to commit aggravated
burglary, in Count 2 for aggravated burglary, in Count 3 for conspiracy to commit theft of
property valued at $10,000 or more but less than $60,000, in Count 4 for especially
aggravated robbery, in Count 5 for especially aggravated kidnapping, and in Count 6 for
theft of property valued at $500 or less. State v. Colin D. Savage, No. M2011-00666-CCA-
R3-CD, 2012 WL 4054814, at *1 (Tenn. Crim. App. Sept. 17, 2012), perm. app. denied
(Tenn. Jan. 22, 2013).
A detailed summary of the evidence is unnecessary for the purposes of this post-
conviction appeal. On October 14, 2008, the Petitioner and his codefendant, Rodney
Glover, pursuant to an established plan, unlawfully entered the home of ninety-two-year-
old victim Oma England. Id. at *1-2. Upon entering the home, the Petitioner and Glover
severely beat the victim, bound her hands and feet, and robbed her. Id. at *1-3. Glover,
who was awaiting sentencing after having been convicted of aggravated kidnapping,
aggravated burglary, conspiracy to commit aggravated burglary, and conspiracy to commit
theft of property valued at $10,000 or more for his actions in this case, specifically testified
that the Petitioner hit the victim twice with a nightstick taken from the victim’s home. Id.
at *1, *3. The partial deoxyribonucleic acid (DNA) profile obtained from a latex glove
found in the victim’s laundry room and the partial DNA profile obtained from a piece of a
latex glove found on the victim’s steps were consistent with the Petitioner’s DNA. Id. at
*6, *8. In addition, the DNA profile obtained from a cigarette butt found inside the victim’s
home matched the Petitioner’s DNA. Id. at *4, *7. Several items of the victim’s property,
including gold flatware, jewelry, and a coin collection, were found on the Petitioner’s
property. Id. at *7. The victim’s nightstick was found at the home of Teresa Harley, with
whom Glover resided in Georgia. Id. Although tests indicated the presence of DNA on
the nightstick, the test results were inconclusive due to insufficient or degraded DNA. Id.
at *8. Joseph DeMaio, a fellow inmate of both the Petitioner and Glover, testified that
Glover told him he tied up the victim with a telephone cord during the incident. Id.
At the beginning of the Petitioner’s August 16, 2010 trial, the State read the
indictment, and when the trial court asked for the Petitioner’s plea to each of the counts,
trial counsel made the following statement in the presence of the jury:
Count One is an allegation of conspiracy to [commit] aggravated
burglary and [the Petitioner] pleads guilty.
Count Two is an allegation of aggravated burglary and he pleads
guilty.
Count Three i[s] an allegation of conspiracy to [commit] theft [of
property valued] over ten thousand dollars and he pleads guilty.
Count Four is an allegation of especially aggravated robbery and he
pleads not guilty.
Count Five is an allegation of especially aggravated kidnapping and
he pleads not guilty.
Count Six is an allegation of theft [of property valued] under five
hundred dollars and he pleads guilty.
-2-
Thereafter, four of the State’s witnesses testified at the Petitioner’s trial, and at the
conclusion of this testimony, the trial court dismissed the jury for the night. Then, in a
hearing outside the presence of the jury, the trial court and trial counsel had the following
exchange:
Trial court: [Trial counsel], you have entered pleas of guilty on
behalf of your client to several of these charges. I don’t
think I have ever had that occur before[.] So does that
mean that he is guilty of those [charges] and I do not
submit those to the jury?
Trial counsel: I haven’t done it either. I did it—it was a tactical
decision, but have I ever done it on some and not all of
them, no. Here is [the Petitioner] if you want to go
through the coll[o]quy with respect to the four counts
that I have already told the jury he was guilty of? We
could do that now, we could do it in the morning? And
you could, if you chose, to withdraw those counts from
the jury? I don’t know what the State’s position is on
that? It may be confusing? Maybe we can put a jury
instruction that the Court has already accepted his guilty
pleas on those four [counts], just something like that?
....
Trial court: I guess to me . . . the best thing to do is to [go] through
that with [the Petitioner] and make sure that he
understands what he is doing—
Trial counsel: Yes sir.
Trial court: [T]hen it will not be a jury question and I will take those
[counts] out of the charge and substitute—
Trial counsel: Substitute just a paragraph—
Trial court: That he pled guilty to these [counts] and you are not to
make a decision on those?
Trial counsel: Yes sir.
-3-
Trial court: Words to that effect. Leaving then, the especially
aggravated kidnapping and the especially aggravated
robbery?
Trial counsel: Yes sir.
At that point, the Petitioner was sworn in, and the trial court, the Petitioner, and trial
counsel had the following discussion, which was also outside the presence of the jury:
Trial court: [Petitioner] then, you understand that you have a right to
proceed in this jury trial on all counts?
Petitioner: Yes, sir.
Trial court: Do you understand by entering this plea of guilty that the
Court then will find you guilty of those offenses and the jury
will not be doing that?
Petitioner: Yes sir.
Trial court: All right, now you would have a right, of course, to plead not
guilty—which you didn’t do, but you had the right to do that
and require the State to prove that you were guilty of those
four offenses of conspiracy to commit aggravated burglary,
aggravated burglary, conspiracy to commit theft over ten
thousand [dollars] and in count six, theft of that license plate;
do you understand that?
Petitioner: Yes sir.
Trial court: So do you give up your right as to those offenses to require
the State of Tennessee to prove guilt beyond a reasonable
doubt?
Petitioner: Yes, sir.
....
Trial court: As to these offenses that I just went over, the State would not
have to prove anything. In other words, you are giving up
-4-
your right to require the State of Tennessee to prove guilt
beyond a reasonable doubt, do you understand that?
Petitioner: Yes, sir, absolutely.
Trial court: Now, you have a right to confront witnesses, which that is
what [trial counsel] is doing on your behalf by cross[-]
examining the witnesses that he believes need to be cross[-]
examined. They have to testify in your presence, under oath.
As to these offenses that you are pleading guilty, you are
giving up that right to confront those witnesses, do you
understand that?
Petitioner: Yes sir.
Trial court: I guess—it is somewhat confusing as to splitting these, but
you would have also had a right to require persons to come to
Court and testify on your behalf as to these offenses. You are
certainly not giving up your right to subpoena witnesses [on]
these other two [counts], but you would be as to these four
[offenses to which you are pleading guilty]. Do you
understand that?
Petitioner: Yes sir.
Trial court: That means then as to those four [offenses], there will be no
further trial, no further witnesses, do you understand that?
Petitioner: Yes, sir.
Trial court: Is that what you believe to be in your best interests?
Petitioner: Yes, sir.
Trial court: All right now—as far as those four offenses, you are also
giving up your right to appeal to a higher Court. If you had
had a trial and were found guilty and sentenced by the Court,
you would have a right to an appeal, do you understand as to
guilt or innocence, you are giving up that right to appeal as to
those four counts?
-5-
Petitioner: Yes, sir.
Trial court: [Trial counsel] is here and as he said, [this is] a matter of
strategy, and with your agreement, you are entering these
pleas. This case, of course, will continue and [trial counsel]
has been ready and will continue to be ready to try these cases,
this one case but these other counts. You are not giving up
your right to have an attorney, or assist in the trial of this
matter but you certainly have a right to have an attorney to
represent you at all critical stages of these proceedings, do you
understand that?
Petitioner: Yes sir.
....
Trial court: [Petitioner] then, as I was saying, you have a right to remain
silent. No one can force you to enter this plea. No one can
force you to answer my questions or say anything that would
be incriminating. We have a jury trial going on. You are not
giving up your right to remain silent at that jury trial. You are
not giving up your right to testify on these two other charges.
Do you understand that it is—as to these four, that you are
giving up your right to remain silent?
Petitioner: Yes sir.
Trial court: That also means you are forever going to be barred from
testifying about these charges to a jury as far as guilt or
innocence is concerned as to these charges, do you understand
that?
Petitioner: Very much so, sir.
Trial court: If you are convicted of anything in the future, then these
convictions would be used to increase punishment, do you
understand that?
Petitioner: Yes sir[.]
....
-6-
Trial court: All right, then you want me to accept your pleas then and this
agreement?
Petitioner: Yes, sir.
The Petitioner acknowledged that he was guilty of the offenses in Counts 1, 2, 3, and 6,
and the trial court accepted the Petitioner’s guilty pleas to each of those counts. The
Petitioner then proceeded to trial on, and was convicted of, the remaining charges of
especially aggravated robbery in Count 4 and especially aggravated kidnapping in Count
5.
Following a sentencing hearing, the trial court merged the Petitioner’s conviction
for conspiracy to commit theft of property valued at $10,000 or more with his conviction
for conspiracy to commit aggravated burglary and imposed a sentence of four years. Id. at
*10. The court then sentenced the Petitioner to six years for the aggravated burglary
conviction, twenty-four years each for the especially aggravated robbery conviction and
the especially aggravated kidnapping conviction, and eleven months and twenty-nine days
for the conviction for theft of property valued at $500 or less. Id. The trial court ordered
that the sentences for the especially aggravated robbery and especially aggravated
kidnapping convictions be served consecutively to one another and that the remaining
sentences be served concurrently to those sentences, for an effective sentence of forty-eight
years at one hundred percent release eligibility. Id.
On direct appeal, this court affirmed the Petitioner’s convictions and sentences, and
the Tennessee Supreme Court denied permission to appeal. Id. at *18.
On January 15, 2014, the Petitioner, represented by counsel, timely filed a petition
for post-conviction relief, alleging that trial counsel provided ineffective assistance in a
number of ways. After the Petitioner’s attorney and five other attorneys appointed to the
Petitioner’s case were allowed to withdraw, the Petitioner’s family hired post-conviction
counsel, who filed an amended petition for post-conviction relief, alleging in part that trial
counsel was ineffective in advising the Petitioner to enter his guilty pleas in the presence
of the jury, in failing to object to the admission of the nightstick, in failing to call Teresa
Harley to testify at trial, and in failing to impeach Rodney Glover. The post-conviction
court later determined that the Petitioner was indigent and appointed post-conviction
counsel to continue representing him.
-7-
At the July 12, 2019 post-conviction hearing,1 the Petitioner testified that trial
counsel never objected to the introduction of the nightstick, even though there was no
useful DNA on it. He claimed there was no evidence establishing the nightstick’s
relevance, other than codefendant Rodney Glover’s testimony that the Petitioner had used
the nightstick to hit the victim. Although the Petitioner acknowledged going with Glover
to the victim’s home, he claimed that Glover had beaten the victim.
The Petitioner also asserted that trial counsel never called Teresa Harley to testify
at trial. He claimed Harley could have rebutted Glover’s testimony about the nightstick by
stating that Glover left the nightstick at her home and that she overheard Glover tell John
Privette about what he had done to the victim.
In addition, the Petitioner claimed that trial counsel failed to impeach Glover with
his criminal history. He asserted that Glover had “a very extensive criminal record” and
that “the latest thing,” he thought, was Glover’s conviction for “vehicular homicide.” The
Petitioner also stated that trial counsel never cross-examined Glover about the number of
times he put his hands on the victim or about the incriminating statements that Glover had
made to Joseph DeMaio. He said that Glover told DeMaio that he did not want “to go
down alone” in this case but that the jury was never informed of this statement. The
Petitioner also said trial counsel neglected to emphasize the lack of evidence corroborating
Glover’s testimony.
The Petitioner admitted that trial counsel informed him of the State’s offer of
twenty years; however, he claimed that trial counsel advised him that he would probably
receive a sentence of only fifteen to twenty years if convicted at trial because he was a
Range I offender and would likely receive concurrent sentencing. He said trial counsel
told him that it would not make a difference whether he proceeded to trial or accepted the
State’s offer because “either way” he would “end up with the same amount of time.” The
Petitioner claimed he ultimately rejected the State’s offer of twenty years because he had
a chance “at beating the . . . two charges” if he proceeded to trial. However, he asserted
that upon being convicted of these two offenses, he actually received a forty-eight-year
sentence. The Petitioner said that trial counsel never informed him that he was facing a
sentence significantly longer than twenty years if convicted at trial. When the Petitioner
was asked whether he would have taken the twenty-year sentence if he had known his
sentence exposure, he replied, “I wanted to take the 20 years from the start.”
The Petitioner said trial counsel announced that he was entering guilty pleas to four
of the charged offenses at the beginning of trial. However, he claimed he had “no clue”
1
The delay of more than five years between the filing of the petition and the post-conviction
hearing seems to have occurred because the Petitioner’s numerous attorneys filed motions to withdraw.
-8-
why trial counsel made this announcement in the presence of the jury. He said he did not
remember trial counsel ever informing him of the prejudicial implications of entering these
guilty pleas in the presence of the jury at the beginning of his trial.
The Petitioner admitted that he had wanted Teresa Harley to testify to everything
codefendant Glover had done during the incident with the victim but not to testify about
the Petitioner’s involvement in the victim’s burglary.
The Petitioner acknowledged that after the State had presented some proof at trial,
the trial court had a hearing outside the presence of the jury wherein he entered his guilty
pleas to Counts 1, 2, 3, and 6. He said that during this hearing, the court asked him if he
understood that he had a right to proceed in this jury trial on all counts, and he replied,
“Yes, sir.” He also admitted that the court asked him if he understood that, by entering his
guilty pleas, the court would find him guilty of the offenses in those counts and the jury
would not be determining his guilt for those offenses, and he replied, “Yes, sir.” The
Petitioner claimed that he merely followed the advice of trial counsel when he entered his
guilty pleas and denied that he and trial counsel discussed his guilty pleas before he entered
them. The Petitioner said that although the trial transcript showed that he said he
understood the consequences of pleading guilty and wanted to enter his guilty pleas, he
claimed he pled guilty based on a “spur of the moment thing” that trial counsel “came up
with” and that he did not understand what was happening.
Teresa Harley testified that she lived near the Petitioner in Georgia. She said that
after these crimes occurred, she saw Rodney Glover, who admitted that he had “tied the
[victim] up[,]” and had done “the beating[,]” and that the Petitioner had run away. She
said that Glover brought the victim’s belongings, including a sterling silver set, a fur coat,
and the nightstick, to her home and then the Petitioner and Glover split the proceeds of
their crimes while at her house.
Harley said that although she was available to testify at trial, she was never called
as a witness because they said she “wasn’t needed[,]” even though she “took time off from
work” and “came all the way up here.” Harley admitted that she used methamphetamine
at the time of these offenses. She knew that the Petitioner also used methamphetamine but
denied that the Petitioner had ever provided her with methamphetamine.
Trial counsel testified that he had practiced law for thirty years, that ninety percent
of his practice was dedicated to criminal defense, and that prior to entering private practice,
he had been an assistant district attorney. He said that he represented the Petitioner at trial
and that he and the Petitioner had approximately fifteen conversations about the nature of
the Petitioner’s charges and his sentence exposure.
-9-
Trial counsel stated that he and the Petitioner had numerous discussions regarding
settlement of the case. He attempted to negotiate a settlement and verified that the State
had made the Petitioner a twenty-year offer. Trial counsel explained that the Petitioner
rejected this offer because he wanted a shorter sentence and that the State provided no other
offers.
Trial counsel said that by the time of trial, he knew that the Petitioner’s DNA had
been found at the crime scene and that some of the victim’s property had been found in the
Petitioner’s backyard. In light of this damaging evidence, trial counsel talked to the
Petitioner the morning of trial about employing a defense strategy wherein the Petitioner
entered guilty pleas to the four less serious charges in the jury’s presence in order to gain
credibility. He said that after he and the Petitioner discussed this defense strategy, the
Petitioner approved the strategy. Trial counsel acknowledged that this strategy ran the risk
of making the Petitioner appear guilty of all the charges to the jury; however, he said there
was also a risk that the jury would convict the Petitioner of everything “if we didn’t own
up to something[.]” He explained that given the amount of evidence connecting the
Petitioner to the crimes, he was “trying to seek some credibility with the jury.”
Trial counsel asserted that there was a jailhouse recording of a conversation between
the Petitioner and Teresa Harley or the Petitioner’s girlfriend, Ashley Reynolds, wherein
the Petitioner wanted to remind Harley that she overheard Glover talking about tying up
and beating the victim. Two jailhouse recordings of conversations between the Petitioner
and Reynolds were entered as exhibits during the post-conviction hearing. In one of these
recordings, the Petitioner told Reynolds to remind Harley to tell his attorney that she heard
Glover talking about tying up and beating the victim so Harley could be a witness at trial
and keep him from spending substantial time in prison. In the other recording, the
Petitioner told Reynolds that he wanted Harley to talk about what she heard Glover say
about the incident but wanted Harley to “exclude[e]” any mention of the Petitioner’s
involvement in these crimes when she talked to his attorney.
Trial counsel said that based upon his investigation, there was no one from Georgia,
including Teresa Harley, who would have been helpful to the Petitioner at trial, and he
informed the Petitioner of this fact. Trial counsel added that he advised the Petitioner that
there would not be testimony at trial from Ashley Reynolds, Teresa Harley, or anyone else.
Trial counsel acknowledged that if Harley had testified that she heard Glover say
that he beat up the victim, it would have been helpful. He also admitted he did not object
to the introduction of the nightstick at trial, which was inconclusive as to DNA. However,
he stated that the nightstick was “arguably relevant” and admissible because the victim had
been beaten with an object that matched the description of the nightstick.
- 10 -
At the conclusion of the hearing, the State made the following arguments regarding
the Petitioner’s claims:
All evidence shows that [the Petitioner was on board with pleading
[guilty] in front of the jury to the crimes he would . . . admit to in order to
gain credibility. We’ve heard [from trial counsel].
This was a case where a ninety-year-old woman was beat[en] severely
and [the Petitioner]’s D.N.A. is in the house on—on several occasions.
Property from the victim was found under his shed. He is certainly connected
with going into the house.
In order to gain credibility, [t]he [Petitioner] pled to what they would
and hoped they could have jury nullification. It happens all the time.
[The Petitioner] then, in a break, did answer all the questions from the
Court in the plea colloquy, “Yes, sir. Yes, sir. Yes, sir. Yes, sir.”
There’s no doubt he knew what he was doing and he did it voluntarily.
. . . Mr. Glover testified that [the Petitioner] used the nightstick [to
beat the victim]. It was—the State put on proof that the nightstick was found
in Ms. Harley’s residence, where Mr. Glover was living. The nightstick
didn’t point to anyone specifically.
There is some corroboration by Mr. Glover and the medical proof that
[the victim]’s eye socket was completely broken with . . . a blunt force object.
It’s probably relevant. That’s the . . . standard.
I understand the—Teresa Harley, the decision not to call her. Phone
calls of [the Petitioner] . . . telling M[s]. Reynolds to go to Ms. Harley to get
her to tell the story that Rodney [Glover] did it. And then the next day,
making a specific comment to exclude any of [the Petitioner’s] part in this
crime.
Whether he wants to open that door, that’s the decision of trial
counsel. Ms. Harley gets on the stand. These jail calls come in. Got no
prayer. That’s a strateg[ic] decision.
There’s some talk about Joseph DeMaio, and [he] was a jailhouse
snitch [who] spent time with Glover. The State put him on. Based on the
- 11 -
transcript, Mr. DeMaio said the same exact thing supposedly that Ms. Harley
said, that Glover did the tying and beating up [of the victim]. The jury
discredited that testimony.
....
I don’t think [the jury] would have credited Ms. Harley, given what’s
on those jail calls. . . . Those phone calls at least imply . . . that [the Petitioner
was] sending people to influence testimony and wanting his part to be
excluded. That’s the plain reading of those calls.
....
An entry of guilty pleas in front of the jury, while novel, [trial counsel]
had a strategy, to try to go before a jury when he’s going to say, “Two people
were in the house and one of them beat her,” he’s trying to gain credibility
[with the jury by arguing that the Petitioner, although present, did not beat
the victim]. That’s certainly a justified trial strategy.
[Trial counsel]’s testimony is that [the Petitioner] rejected . . . the
State[’s offer] and decided to go to trial. . . .
In response, post-conviction counsel argued that Teresa Harley was “not a jailhouse
snitch” and “would have testified very compellingly that it was Mr. Glover who admitted
that he’s the one that did the beating.” He also argued,
The phone call does not direct Ms. Harley to testify or to tell anyone
that she should lie about his involvement, just that—what happened. And
that excludes [the Petitioner] from the beating, because he didn’t beat her,
and that’s what he wanted Ms. Harley to testify to, and that’s how she
consistently testified today.
We don’t know what, if anything, Ms. Reynolds told Ms. Harley about
the jail call. That’s not been established in the evidence.
So I—I think . . . that we’ve established by clear and convincing
evidence that a different result could have been reached in this case, had Ms.
Harley been called to testify and would have testified that Mr. Glover
admitted to her that he was the person who committed the aggravated portion
of these offenses; the aggravated assault, aggravated burglary, aggravated
kidnapping, because he’s the one that used a weapon.
- 12 -
Upon hearing this argument, the State countered, “[w]hether Mr. Glover did it or whether
[the Petitioner] did it, you can’t get past criminal responsibility and the natural [and]
probable consequences.”
On August 27, 2019, the post-conviction court entered a written order denying
relief. In it, the court made the following findings of fact and conclusions of law regarding
the claim that trial counsel provided ineffective assistance in announcing the Petitioner’s
guilty pleas in the presence of the jury:
[I]t is asserted that trial counsel was ineffective, and Petitioner was denied
due process of law because Petitioner entered his plea to certain charges in
the indictment with the jury present. Trial counsel testified that the entry of
the plea of guilty to the charges of conspiracy to commit aggravated burglary,
aggravated burglary, conspiracy to commit theft [of property] over
$10,000.00, and theft of property valued at less than $500.00 [] was done
only after reviewing the action with Petitioner, and done in an effort to
enhance the Petitioner’s credibility, so as to support Petitioner’s position that
he was not guilty of the more serious charges. . . . The plea of guilty in the
presence of the jury was reviewed with Petitioner, and counsel testified as to
a reasonable basis for such action[;] therefore[,] this court finds Petitioner
has failed to establish by clear and convincing evidence that counsel’s
decision in this regard constitutes ineffective assistance.
The post-conviction court also made the following findings and conclusions regarding the
Petitioner’s multiple claims that trial counsel provided ineffective assistance at trial:
Petitioner asserts that trial counsel was ineffective, and that Petitioner was
denied due process as a result of trial counsel’s failure to object to the
introduction of a night stick, which was introduced as Trial Exhibit No. 5.
Petitioner contends that since tests for DNA on the night stick were
inconclusive due to insufficient or degraded DNA relating to the Petitioner,
that the night stick should not have been admitted into evidence. At trial the
co-defendant, Rodney Glover, testified that he observed Petitioner pick up
the night stick in the house of the victim and hold on[to] it after tying up the
victim . . . . The night stick was later recovered from [Glover]’s home in
Georgia. The witness, Rodney Glover, identified the night stick, thereby
establishing the foundation for the introduction of the item into evidence.
The first prong of Strickland requires the “lawyer’s performance to be
- 13 -
deficient[,”] as it relates to the admission of the night stick[. T]his court finds
that the admission into evidence was proper, and that the presence of
identifiable DNA was not required for its admission. Therefore[,] this
contention is found to be without merit.
....
. . . Petitioner contends trial counsel provided ineffective assistance as
a result of not calling Teresa Harley to testify on behalf of Petitioner. At the
Post[-]Conviction Hearing, Teresa Harley testified that the co-defendant,
Rodney Glover, told her that he had tied up the victim and that Glover
brought the cell phone, night stick, silver[,] and fur coat to the house occupied
by Ms. Harley. Ms. Harley also testified that she was a user of
methamphetamine[] and used the drug with Petitioner, who lived across the
road from her in Georgia. Trial counsel testified that [Ashley Reynolds] was
recorded in a jail conversation with Petitioner in which the Petitioner
instructed her to get some folks to offer beneficial testimony. Based on this
information, trial counsel made the determination that there would not be
anyone from the community in Georgia [who] would be helpful to the
Petitioner. . . . There is a reasonable basis for the decision made by counsel
to not call Ms. Harley, and therefore this court finds that Petitioner has failed
to establish by clear and convincing evidence that counsel’s decision in this
regard constitutes ineffective assistance, therefor[e,] this contention is found
to be without merit.
....
. . . Petitioner asserts trial counsel was deficient in failing to cross[-]
examine the co-defendant, Rodney Glover, as to his own criminal record, and
as to how many times Glover put his hands on the victim. While there may
be a basis to theorize that a jury would discount the testimony of Rodney
Glover, had his criminal record been made known, or that the number of
times that Rodney Glover placed his hands on the victim[] may have either
diminished the credibility of Glover or lessened the culpability of the
Petitioner, such would be speculation. Nevertheless, the second prong of
Strickland requires that any deficient performance prejudice the defense, and
such prejudice must be established by clear and convincing evidence. To
establish prejudice, a petitioner must demonstrate “a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. at 694. It must be established
that counsel’s deficient performance was of such a degree that it deprived the
- 14 -
Petitioner of a fair trial[] and called into question the reliability of the
outcome.” Pylant v. State, 263 S.W.3d 854, at 869 (Tenn. 2008). Based on
the trial transcript[,] this court does not find the failure of trial counsel to
cross[-]examine the co-defendant as to his criminal record, or to ask how
many times he placed his hands on the victim, to have prejudiced the
Petitioner. Therefore[,] this issue is found to be without merit.
Finally, as to the Petitioner’s claim that he was entitled to relief under the cumulative error
doctrine, the post-conviction court made the following findings and conclusions:
Petitioner argues that the cumulative effect of the errors set forth in
the Petition for Post[-]Conviction Relief and Amendments thereto, together
with the proof at the Post[-]Conviction Hearing support the grant of the relief
sought. Proof of prejudice sufficient to establish constitutionally ineffective
counsel is met by showing “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.” Nesbit v. State, 452 S.W.3d 779, at 787 (Tenn. 2014) (citing
Strickland, 466 U.S. at 694, 104 S. Ct. 2052; State v. Goad, 938 S.W.2d 363,
at 370 (Tenn. 1996)).
For the reasons set forth above, the Petition for Post-Conviction Relief
is denied.
On September 26, 2019, the Petitioner filed a timely notice of appeal.
ANALYSIS
The Petitioner argues that trial counsel provided ineffective assistance. He claims
that trial counsel’s decision to announce his guilty pleas to four counts in the presence of
the jury at the beginning of his trial was ineffective. He also asserts that trial counsel
provided ineffective assistance at trial by failing to object to the introduction of the
nightstick, by failing to call Teresa Hartley as a witness, and by failing to impeach his
codefendant Rodney Glover. Finally, the Petitioner contends that the cumulative effect of
all of trial counsel’s errors deprived him of effective assistance of counsel. The Petitioner
claims that he has established a reasonable probability that but for trial counsel’s errors, he
would have been found guilty of lesser charges or would have received shorter sentences.
In response, the State contends that the post-conviction court properly denied the Petitioner
relief. We conclude that the Petitioner has failed to establish that trial counsel was
ineffective.
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Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see
Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).
A claim for post-conviction relief based on alleged ineffective assistance of counsel
presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn.
2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). 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, 342 S.W.3d at 485). 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)). “Accordingly, 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)).
The right to effective assistance of counsel is protected by both the United States
Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, §
9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the 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).
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However, to establish prejudice in the context of a guilty plea, a petitioner must show that
there is a reasonable probability that, but for counsel’s errors, the petitioner would not have
entered his guilty plea and would have proceeded to trial. Serrano v. State, 133 S.W.3d
599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “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.”
Goad, 938 S.W.2d at 370.
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. 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. However, “‘deference to matters of
strategy and tactical choices applies only if the choices are informed ones based upon
adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad,
938 S.W.2d at 369).
First, the Petitioner contends that trial counsel’s decision to announce his guilty
pleas to four counts in the presence of the jury at the beginning of his trial was ineffective.2
He asserts that the effect of these guilty pleas “constituted evidence of crimes committed
by [the Petitioner] against the very same victim, at the very same time, and at the very same
property as the alleged crimes of especially aggravated robbery and especially aggravated
kidnapping,” even though such evidence is overwhelmingly disallowed under Rule 404(b)
as propensity evidence. The Petitioner claims “despite the highly prejudicial effect of the
guilty pleas[,]” trial counsel “made absolutely no efforts to secure the entry of those pleas[]
outside the presence of the jury, as required by Tenn. R. Evid. 404(b).” Moreover, the
Petitioner maintains that his admission of guilt to four of the six crimes “facilitated the
jury’s inferences of guilt as to the two remaining offenses” that were tried. He claims that
because he had “no knowledge as to the proper procedure for the entry of a partial guilty
plea,” he “took the advice” of trial counsel, which proved to be “not good.” He also asserts
that trial counsel’s failure to enter his guilty pleas outside the presence of the jury
prejudiced him by denying his right to a fair trial.
The transcript from the Petitioner’s trial shows that after the State read the
indictment, the trial court asked for the Petitioner’s pleas, and trial counsel, in the presence
2
We have reordered the Petitioner’s issues for clarity.
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of the jury, replied that the Petitioner was pleading guilty to conspiracy to commit
aggravated burglary in Count 1, aggravated burglary in Count 2, conspiracy to commit
theft of property valued at $10,000 or more in Count 3, and theft of property valued at $500
or less in Count 6; however, trial counsel stated that the Petitioner was pleading not guilty
to especially aggravated robbery in Count 4 and especially aggravated kidnapping in Count
5.
At the post-conviction hearing, trial counsel testified that he and the Petitioner
discussed the defense strategy of announcing his guilty pleas to four of the less serious
charges in the jury’s presence in order for the Petitioner to gain credibility with the jury for
his trial on the remaining charges and to explain why the victim’s property was found in
the Petitioner’s backyard. Trial counsel said that at the conclusion of this discussion, the
Petitioner approved this strategy. The record shows that this strategy supported the defense
theory that while the Petitioner burglarized the victim’s home, the Petitioner did not bind
the victim’s hands and feet and did not beat the victim. The Petitioner, by entering guilty
pleas to the less serious charges, attempted to minimize his culpability for the charges of
especially aggravated robbery and especially aggravated kidnapping. Our review of the
record shows that the Petitioner’s guilty pleas in this case were made for the tactical
purpose of cementing this defense theory in the jurors’ minds. We conclude that, while
ultimately unsuccessful, trial counsel’s strategy was reasonable in light of the strong
evidence placing the Petitioner at the victim’s home at the time of the offenses. See Nesbit,
452 S.W.3d at 796 (“The fact that a particular strategy or tactical decision failed does not
by itself establish deficiency.”). In reaching this conclusion, we note that the record shows
the Petitioner was fully advised of this strategy and approved it before it was implemented
at trial. Because the Petitioner has failed to show that trial counsel’s performance regarding
the guilty pleas was deficient, he is not entitled to relief on this issue.
Second, the Petitioner contends that trial counsel was ineffective in failing to object
to the admission of the nightstick at trial. We note that the nightstick was clearly relevant—
the nightstick was taken from the victim’s home, was found at Glover’s home, was
consistent with the type of object used to inflict the victim’s injuries, and was included in
Glover’s testimony as the weapon the Petitioner used against the victim. See Tenn. R.
Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”). Moreover, we agree
with the State that trial counsel’s decision not to object to nightstick was a strategic decision
entitled to deference. At the Petitioner’s trial, Special Agent Shipman with the Tennessee
Bureau of Investigation testified that she was unable to find the Petitioner’s DNA on the
nightstick due to “insufficient or degraded DNA,” and Detective Finley testified that the
nightstick was found at the home where Glover resided with Teresa Harley. See Colin D.
Savage, 2012 WL 4054814, at *7-8. This testimony tangentially supported the defense
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theory that the Petitioner was not the individual who beat the victim with the nightstick and
reinforced the likelihood of jury nullification,3 where the jury would find the Petitioner not
guilty of the charges of especially aggravated robbery and especially aggravated
kidnapping, despite the evidence supporting the Petitioner’s guilt based on his own acts
and the fact that he was criminally responsible for Glover’s actions. See Tenn. Code Ann.
§ 39-11-402 (“A person is criminally responsible for an offense committed by the conduct
of another, if . . . [a]cting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or
attempts to aid another person to commit the offense[.]”). Because trial counsel’s failure
to object to the nightstick was very reasonable under these circumstances, we conclude the
Petitioner has failed to establish that trial counsel’s performance was deficient.
Third, the Petitioner argues that trial counsel was ineffective in failing to call Teresa
Harley as a defense witness at trial. He claims Harley could have testified that Glover, not
the Petitioner, had the nightstick and that Glover admitted that he bound the victim’s hands
and feet and beat the victim. As support for this claim of ineffectiveness, the Petitioner
claims that trial counsel admitted at the post-conviction hearing that Harley’s testimony
would have proven helpful.
Initially, the Petitioner has failed to show that Hartley’s testimony about Glover’s
statements would been admissible, given that such testimony is hearsay for which no
exception applies. See Tenn. R. Evid. 802, 803. Moreover, at the post-conviction hearing,
two jailhouse recordings of conversations between the Petitioner and his girlfriend Ashley
Reynolds were admitted, wherein the Petitioner told Reynolds to remind Teresa Harley
that she overheard Glover talking about tying up and beating the victim. Trial counsel
referenced these recordings and testified that after conducting his own investigation, it was
clear that there was no one in Georgia, including Teresa Harley, who could provide helpful
evidence in the Petitioner’s case, and he informed the Petitioner of this fact. Our review
of two jailhouse recordings casts serious doubt on whether Harley actually overheard
Glover making these admissions or whether the Petitioner merely pressured Harley to make
this claims. These recordings also show that while the Petitioner wanted Harley to tell his
3
Jury nullification arises when a jury disregards the applicable law or ignores the evidence and
acquits the defendant. See State v. Taylor, 771 S.W.2d 387, 397 (Tenn. 1989); State v. Paul Allen St. Clair,
No. M2012-00578-CCA-R3-CD, 2013 WL 1611206, at *6 n.1 (Tenn. Crim. App. Apr. 16, 2013) (Smith,
J., concurring in part, dissenting in part). However, defense counsel should not encourage jury nullification.
See State v. Shropshire, 874 S.W.2d 634, 640 (Tenn. Crim. App. 1993) (“[A] trial court cannot be held in
error for prohibiting a defendant from advising a jury not to follow the law as the trial court instructs it.”);
Jerry Lee Craigmire v. State, No. 03C01-9710-CR-00440, 1999 WL 508445, at *13 (Tenn. Crim. App., at
Knoxville, July 20, 1999) (“[W]e conclude that the trial court correctly prohibited defense counsel from
arguing jury nullification.”); see also United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993)
(“[W]hile jurors may choose to flex their muscles, ignoring both law and evidence in a gadarene rush to
acquit a criminal defendant, neither the court nor counsel should encourage jurors to exercise this power.”).
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attorney about Glover’s acts, he also wanted Harley to “exclude” any discussion of the
Petitioner’s involvement in these crimes. Most importantly, even if Harley had somehow
been allowed to testify to Glover’s admissions, a rational jury would have held the
Petitioner accountable for Glover’s actions under the theory of criminal responsibility. See
Tenn. Code Ann. § 39-11-402; Colin D. Savage, 2012 WL 4054814, at *12, *15
(concluding that the evidence was sufficient to support the Petitioner’s convictions for
especially aggravated kidnapping and especially aggravated robbery because either the
Petitioner, or Glover, for whom the Petitioner was criminally responsible, hit the victim
several times with the nightstick, which kept her immobile and caused her serious bodily
injury). Because the Petitioner has failed to establish that trial counsel’s performance as to
this issue was deficient, he is not entitled to relief.
Fourth, the Petitioner argues that trial counsel was ineffective in failing to impeach
Rodney Glover’s “self-serving” testimony. The Petitioner asserts that trial counsel should
have impeached Glover with his extensive criminal history. He also claims trial counsel
should have impeached Glover by highlighting the absence of evidence corroborating
Glover’s claim that the Petitioner struck the victim twice with the nightstick.
At the post-conviction hearing, the Petitioner never questioned trial counsel about
his failure to ask Glover about his criminal record. The only proof presented about
Glover’s record was Petitioner’s vague and uncorroborated testimony that Glover had
recently been convicted of vehicular homicide. Therefore, we agree with the State that the
Petitioner failed to prove by clear and convincing evidence that co-defendant Glover had a
criminal record. Tenn. Code Ann. § 40-30-110(f); see Tenn. Sup. Ct. R. 28, § 8(D)(1);
Nesbit, 452 S.W.3d at 786. Even if we assume that the claim about Glover’s criminal
history is true, the Petitioner has failed to show that Glover’s impeachment regarding his
criminal record would have changed the outcome of the Petitioner’s trial, particularly in
light of the overwhelming evidence of the Petitioner’s guilt.
As to the lack of evidence corroborating Glover’s testimony, we note that there was
abundant proof establishing that the Petitioner was present at the scene of the crime,
including the Petitioner’s DNA at the victim’s home and the victim’s property found in the
Petitioner’s backyard. We note that evidence was admitted at the Petitioner’s trial showing
that the DNA on the nightstick, which was degraded, did not connect the Petitioner to it
and that the nightstick had been actually recovered from Glover’s home, not the
Petitioner’s home. Even if the jury determined that Glover struck the victim with the
nightstick, the Petitioner was accountable for Glover’s acts against the victim under the
theory of criminal responsibility. Because the Petitioner has failed to establish that trial
counsel’s performance regarding these issues was deficient, he is not entitled to relief.
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Finally, the Petitioner argues that the cumulative effect of all of trial counsel’s errors
deprived him of the effective assistance of counsel. The cumulative error doctrine “is a
judicial recognition that there may be multiple errors committed in trial proceedings, each
of which in isolation constitutes mere harmless error, but when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order to preserve a
defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The
Petitioner argues that while “each and every one” of trial counsel’s errors “is sufficient to
justify post-conviction relief on its own,” the gravity of the errors is “amplified even more,
when those errors are considered in their totality.”
The cumulative error doctrine only applies when there has been more than one error
committed during the trial proceedings. Id. at 77. “In the post-conviction context, ‘a
petitioner cannot successfully claim he was prejudiced by [trial] counsel’s cumulative error
when the petitioner failed to show [trial] counsel’s performance was deficient.’” Tarrants
Yvelt Chandler v. State, No. M2017-01639-CCA-R3-PC, 2018 WL 2129740, at *10
(Tenn. Crim. App. May 9, 2018) (quoting James Allen Gooch v. State, No. M2014-00454-
CCA-R3-PC, 2015 WL 498724, at *10 (Tenn. Crim. App. Feb. 4, 2015)). Because the
Petitioner has failed to establish that trial counsel’s performance was deficient with regard
to any of his claims, he is not entitled to post-conviction relief under the cumulative error
doctrine.
CONCLUSION
Based on the aforementioned authorities and reasoning, we affirm the judgment of
the post-conviction court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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