Lajuan Harbison v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 28, 2020 Session
LAJUAN HARBISON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 111381 Steven W. Sword, Judge
No. E2019-01683-CCA-R3-PC
The Petitioner, Lajuan Harbison, appeals as of right from the Knox County Criminal
Court’s denial of his petitions for post-conviction relief and writ of error coram nobis,
wherein he challenged his conviction for attempted second degree murder. On appeal, the
Petitioner asserts that he received the ineffective assistance of counsel because trial counsel
failed to investigate and assert a claim of self-defense. Relative to the error coram nobis
petition, the Petitioner contends that the post-conviction court erred by finding that new
evidence from the victim, who recanted his trial testimony and averred that he was the
primary aggressor rather than the Petitioner, was not credible. Following our review, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ. joined.
Gregory P. Isaacs and J. Franklin Ammons, Knoxville, Tennessee, for the appellant, Lajuan
Harbison.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald and Philip
Morton, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
I. Trial and Direct Appeal
The Petitioner, Lajuan Harbison, was convicted by a Knox County jury of attempted
second degree murder and employing a firearm during the commission of a dangerous
felony relative to a March 30, 2013 incident in which J.E.1 (“the victim”) was shot multiple
times at a Knoxville apartment complex. State v. Lajuan Harbison, No. E2015-02170-
CCA-R3-CD, 2016 WL 4925632, at *1 (Tenn. Crim. App. Sept. 14, 2016). The Petitioner
received an effective sixteen-year sentence.
The factual basis for the Petitioner’s convictions was summarized as follows on
direct appeal. After the shooting occurred, four 911 callers were unable to describe the
shooter or tell the operator the shooter’s location. Harbison, 2016 WL 4925632, at *1. A
recording of exchanges between police officers and police dispatch reflected that a suspect
had run into an apartment unit, which had been secured, and that the suspect was described
as a “black man nicknamed ‘Jajuan’” who was wearing black clothing. Later, a police
officer stated that he had taken a suspect into custody and that the suspect had a gun.
An unloaded .25-caliber Raven Arms handgun and eight .40-caliber Smith &
Wesson cartridge casings were recovered at the crime scene. Harbison, 2016 WL 4925632,
at *1. Multiple police witnesses confirmed at the trial that the victim sustained several
gunshot wounds to his leg. The victim, who was eighteen years old at the time of the trial,
testified that he was walking with a friend, J.M.,2 through a breezeway after leaving another
friend’s apartment when the Petitioner appeared with a gun and shot him. Id. at *2. The
victim was acquainted with the Petitioner because they were from the same neighborhood,
and the Petitioner’s mother had been the victim’s teacher. The victim averred that he had
no conflict with the Petitioner, that on the day of the shooting, the Petitioner said nothing
to him, and that the victim and J.M. did nothing to provoke the Petitioner. After being shot
twice in the leg, the victim fell to the ground and was unable to run away; he stated that the
Petitioner walked into the apartment building. The victim said that he saw a light-skinned
man with dreadlocks after he was shot.
The victim testified that in total, the Petitioner shot him five or six times; the victim
underwent orthopedic surgery on his right ankle joint, and he experienced continuing
numbness in his left leg. Harbison, 2016 WL 4925632, at *2. The victim identified the
Petitioner in a photograph lineup. He denied knowing that J.M. was carrying a gun.
At trial, J.M. declined to identify the Petitioner as the shooter, claiming that he had
an unclear view and that he ran away when the shooting began. Harbison, 2016 WL
4925632, at *2. J.M. acknowledged, however, that he had identified the Petitioner in a
photograph lineup conducted after the shooting when he was handcuffed in the back of a
1
The victim was a minor at the time of the shooting; it is the policy of this court to refer to minor victims
of criminal offenses by their initials.
2
J.M. was also a minor at the time of the shooting. We note that although all of the post-conviction
pleadings and hearing transcript spell J.M.’s first name using the letter “G,” the trial transcript reflects that
his name begins with the letter “J.”
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police cruiser. J.M. did not recall seeing a light-skinned man with dreadlocks or speaking
to his godfather about the shooter’s identity. J.M. stated that he was intoxicated with Xanax
and alcohol at the time of the photograph lineup, and he admitted to carrying a .25-caliber
handgun on the day of the shooting.
Police officer Sean Ford testified that the audio and video recording system in his
police cruiser recorded statements J.M. made to his godfather, which Officer Ford also
overheard, and that J.M. identified the shooter as “Jajuan,” “Juan,” and “Lajuan.”
Harbison, 2016 WL 4925632, at *2. Police Investigator Amy Jinks conducted both
photograph lineups and noted that J.M. was uncooperative. Id. at *3. However, she heard
J.M. refer to the shooter as “Lajuan” before viewing the lineup. Investigator Jinks stated
that the victim was cooperative and identified the Petitioner as the shooter. An expert
witness in firearms identification testified that the .40-caliber cartridge casings were fired
by the same gun, possibly a Smith & Wesson, and that no .40-caliber gun was recovered
for comparison.
Relevant to the issues raised here, on direct appeal, the Petitioner challenged the
sufficiency of the evidence, arguing that his identity was not proven beyond a reasonable
doubt and that no gun or unfired bullets were recovered. Harbison, 2016 WL 4925632, at
*3. This court concluded that the evidence was sufficient to support the convictions, noting
that multiple witnesses described the victim’s wounds as gunshot wounds and that the
victim and J.M. both identified the Petitioner as the shooter. Id. at *4.
II. Post-Conviction Proceedings3
On September 12, 2017, the Petitioner filed a timely petition for post-conviction
relief, alleging multiple grounds of ineffective assistance of counsel. An amended post-
conviction petition was filed on November 5, 2018, incorporating the grounds alleged in
the original petition and adding a petition for writ of error coram nobis, alleging that the
victim had decided to recant his trial testimony and would testify to having been the
primary aggressor. A post-conviction hearing was held on August 19, 2019.
At the post-conviction hearing, trial counsel testified that between his licensure in
1994 and 2005, he had worked as an assistant district attorney and that since 2005, he had
worked in criminal defense. Counsel stated that he had tried one or two felony cases as a
prosecutor and between forty and fifty felony cases as a defense attorney. Counsel was
appointed to the Petitioner’s case; he noted that generally, he met with a client to discuss
3
The Petitioner has abandoned the bulk of his allegations against trial counsel on appeal. Accordingly, we
will recount only those facts from the post-conviction hearing which are relevant to the issues presented in
this appeal.
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the case, reviewed the discovery materials alone and with the client, and approached the
prosecutor in hopes of negotiating a plea agreement. If those talks were not productive,
counsel decided on a defense strategy for trial.
Trial counsel testified that he did not utilize an investigator in the Petitioner’s case,
and he denied that the Petitioner requested one. Counsel stated that his investigation
consisted of speaking to the Petitioner between five and eight times and reviewing the
discovery materials, including witness statements, photograph lineups, and “how [the
Petitioner] was identified.” When counsel returned to the jail to speak to the Petitioner
about the evidence, the Petitioner told him “not to worry about it, that the victim would not
appear for court and this case would get dismissed.” Counsel warned the Petitioner that
this “was not an effective strategy for this type of a case” and that they needed to develop
a better defense strategy. The Petitioner responded that “this couldn’t be an attempted first-
degree murder case, because he had only shot the fellow in the leg.” Counsel said that he
assured the Petitioner that this was also not an effective defense but that they could argue
he did not attempt to commit first degree murder.
Trial counsel testified that the witnesses “did not appear on occasion” and that
counsel was unable to locate them. Although counsel stated that he was “sure that [he]
looked to see where they were,” including searching the court computer system to
determine whether the witnesses had scheduled court dates or other “things going on in the
system,” he did not go to witnesses’ homes or try to call them. Counsel acknowledged that
the anticipated witnesses were listed in the indictment; however, he could not recall if their
addresses and telephone numbers were similarly listed. Counsel ultimately spoke to no
witnesses before trial.
Trial counsel denied that the Petitioner ever told him that the victim had pulled out
a gun before the Petitioner shot him. Counsel agreed that he generally made notes in his
client files. An undated page of handwritten notes on white paper was introduced as an
exhibit; the notes were written in black ink in a cursive script. The notes contained several
names; a summary of J.M.’s police interview; a note regarding an interview on June 13,
2013, which read “admits to Glock under bed being his .9 mm”; a reference to “[b]allistics
to gun found in bedroom”; the name “Dejanette,” a telephone number, and the statements
“girl saw shooting. Saw vic with gun. Saw someone p/u vic’s gun. Person in jail w/c picked
up gun”; and a note reading “Ask – who is light skinned dreds . . . [illegible] what is his
real name & his brother.”
When asked to explain the note about Dejanette, trial counsel testified that the notes
did not reflect his handwriting. At this point, there was some disagreement between trial
counsel and post-conviction counsel regarding whether the Petitioner’s file was shared with
appellate counsel before it was sent to post-conviction counsel. Trial counsel’s memory
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on this point was unclear; the State objected; and the post-conviction court stated that trial
counsel could not speculate about who may have written the notes.
Another page was entered as an exhibit and contained notes written in blue ink on
yellow paper. The majority of the notes were printed in handwriting that trial counsel
identified as his own; two lines at the bottom of the page were written in a distinct
handwriting that did not resemble counsel’s handwriting or the cursive handwriting.
Counsel acknowledged that one of his notes contained two telephone numbers for someone
named “Diamond Davis”; although he did not recall to whom this referred, he “assume[d]”
that it was a family member counsel needed to contact about the Petitioner’s court date or
to arrange for the Petitioner to have clothing for the trial. The rest of counsel’s notes read
as follows: “1. 6th [A]mendment –interview [the victim] –affidavit from him[.] Prior
statement —In court testimony –criminal history.”4 Counsel stated that according to his
recollection, the Petitioner wanted him to obtain an affidavit from the victim Counsel did
not know why he did not interview the victim, but he hypothesized that he could not find
the victim, did not look for him, or did not believe the victim’s statement would be useful.
Counsel stated that he did not make any attempt to interview J.M., commenting that J.M.
was not “more important” than any other witness. Counsel did not know to what he
referred when he wrote “prior statement” or “criminal history” in his notes, but he said that
all of the notes may have referred to the victim. Counsel was certain that he obtained “any
sort of criminal history” the victim had.
Trial counsel testified that notations on the outside of the Petitioner’s file folder
referred to two plea offers conveyed by the State. The first offer was contingent on the
Petitioner’s testimony in an unrelated criminal case, in which the Petitioner was named as
a co-defendant, and it involved a fifteen-year sentence at thirty percent service; the second
offer was for an effective twenty-one-year sentence and was not contingent on his
testifying. The Petitioner rejected both offers.
Trial counsel testified that additional notations on the outside of the folder were not
in his handwriting; the post-conviction court commented that it would not consider the
substance of the unidentified notes as evidence because counsel did not know how they
came to be on the folder. As pertinent to this appeal, the notes read, “statutes on mutual
combat,” “statutes on self-defense,” and “case law on mutual combat.” The handwriting
was in cursive and appeared to be similar to the writing on the undated notes.
Trial counsel testified that he did not write in cursive because his cursive script was
illegible, and he denied that he directed anyone to write on the file folder. He noted that
he had no employees at the time of the Petitioner’s trial. Counsel said that the only time
4
Each of the statements were on separate lines underneath what appeared to be the heading of “6th
Amendment.”
-5-
the folder would have been in someone else’s possession was if the Petitioner’s attorney in
the unrelated criminal case, A. Philip Lomonaco,5 took it with him when he visited the
Petitioner to convey the joint plea offer; however, counsel expressed skepticism that Mr.
Lomonaco would have taken counsel’s file at all, and he did not specifically remember
giving his file to Mr. Lomonaco. Counsel stated that generally, he did not do appellate
work and that he would provide his file to appellate counsel. Counsel did not know who
represented the Petitioner on appeal.6
Trial counsel did not recall whether the Petitioner initially denied having been
present during the shooting, but he remembered “an issue about some fellow maybe with
dreadlocks” who was allegedly involved. Counsel stated that he never explored a theory
of self-defense during trial preparation because he “was never presented with any idea
from” the Petitioner that he would be able to testify about having acted in self-defense.
Counsel stated that he reviewed the police cruiser recordings alone and with the Petitioner.
When asked whether the recordings contained J.M.’s statement that “his brother,” the
victim, had a firearm, counsel responded that a firearm was found “in the grass in the area
where the shooting took place,” that J.M.’s statements were difficult to understand in the
recordings, and that counsel did not recall whether the gun mentioned in the recordings
was attributed to the victim or J.M.
A police cruiser recording was entered as an exhibit and reflected conversation
between unidentified officers and J.M. Although portions of the conversation were
difficult to understand, relevant to counsel’s testimony and the issues on appeal, J.M. stated
multiple times that his brother was carrying a gun. J.M. also said that he put on his
brother’s jacket while they were visiting an apartment because he was not sure if other
individuals were “still riding around shooting.” J.M. stated that he and his brother had
done nothing to provoke the shooting. J.M. referred to officers’ having found his brother’s
gun and denied knowing the identity of the shooter.
An audio recording of J.M.’s brief police interview with Investigator Jinks was
entered as an exhibit and reflected that J.M. identified the shooter as “Jajuan.” J.M. stated
that he and the victim were coming around a corner when the Petitioner emerged from a
building, greeted them, and opened fire. J.M.’s remaining responses to questions were
generally not audible; however, Investigator Jinks indicated in the recording that J.M. did
not know the reason the Petitioner shot the victim and that the Petitioner was in a gang,
5
Mr. Lomonaco represented the Petitioner at trial in Knox County case number 101406D. See State v.
Lajuan Harbison, No. E2015-00700-CCA-R3-CD, 2016 WL 4414723 (Tenn. Crim. App. Aug. 18,
2016), reversed by State v. Harbison, 539 S.W.3d 149 (Tenn. 2018).
6
The record reflects that Leslie M. Jeffress represented the Petitioner in his direct appeal.
-6-
although J.M. would not name the gang. This interview also contained conversation
indicating that Investigator Jinks was administering a photograph lineup.
Trial counsel testified that the police cruiser recording was not played for the jury
and that he did not remember whether he cross-examined Investigator Jinks about J.M.’s
statement that his brother had a firearm.7 After reviewing the trial transcript, counsel
acknowledged that he did not cross-examine J.M. about the statement and only asked J.M.
questions about the .25-caliber gun, which belonged to J.M. Counsel noted that “only one
other gun” was “ever mentioned.”
Trial counsel agreed that if the victim had been carrying a gun, it would have raised
a self-defense issue that should have been explored. Counsel maintained, however, that
the police cruiser recording only reflected J.M.’s admitting to having carried the .25-caliber
gun. Counsel agreed that the victim was J.M.’s brother and that the recording reflected
J.M.’s stating, “My brother had a . . . gun on him.” When asked whether this statement
was a sufficient basis to “explore self-defense,” counsel responded, “Except for the fact
that there was only one gun and nobody left the scene, and [J.M.] admitted that he had it.”
Counsel agreed that he did not ask the victim if he had a gun.
When asked whether it was possible he did not review the police cruiser recording,
trial counsel explained that the importance of the recording at trial was to explain the
circumstances under which J.M. completed the photograph lineup and the “confusion”
regarding the Petitioner’s name.8 Counsel stated that if the Petitioner had ever told him
that he saw a gun or that a gun was pointed at him, counsel would have investigated a
theory of self-defense. Although counsel did not recall asking the Petitioner about the gun
found in the grass at the crime scene, he was “sure” he had done so.
Trial counsel testified that relative to opening and closing arguments, he
“assume[d]” he argued “a mix of identity and being overcharged.” After the motion for a
new trial was denied, counsel generally would have given the Petitioner’s file to appellate
counsel; he maintained that he had “no idea” when another person would have had the
opportunity to write on the file folder. Counsel noted that in his experience, the attorney
7
The trial record, which was exhibited to the hearing, reflected that counsel did not ask Investigator Jinks
about the statement; however, we note that no trial testimony indicated that Investigator Jinks was present
for the conversation in which the statement occurred. Investigator Jinks testified at trial that she responded
directly to the hospital, interviewed the victim, and had J.M. transported to the hospital by other officers in
order to administer the photograph lineup.
8
It appears that trial counsel and post-conviction counsel were referring to different recordings here. Post-
conviction counsel asked if trial counsel did not review the police cruiser recording in which J.M. said that
the victim had a gun; however, trial counsel’s response refers to the photograph lineup, which was only
addressed in J.M.’s police interview with Investigator Jinks.
-7-
who represented the Petitioner on appeal did not generally “do that work,” referring to
investigating defense theories; he denied that appellate counsel requested the Petitioner’s
file in writing.
Trial counsel testified that he did not recall any specific conversation with the
Petitioner about his testifying, although he was certain it occurred. The Petitioner did not
ultimately testify at trial. Counsel stated that he customarily told defendants not to make a
decision about testifying until the close of the State’s proof.
On cross-examination, trial counsel testified that the Petitioner was charged with
attempted first degree murder and was convicted of the lesser-included offense of
attempted second degree murder. Counsel agreed that the State’s discovery response
included the Petitioner’s recorded police statement, photographs, the police cruiser
recording, and the recorded interviews with J.M. and the victim. Counsel stated that the
Petitioner denied shooting the victim or being present during the shooting in his police
interview, although the Petitioner could not provide an alibi due to the passage of three
months between the dates of the shooting and the interview.
The State played several portions of J.M.’s recorded interview and asked counsel if
J.M. stated to police, “That’s the gun that y’all found? Y’all found his gun?” Some
confusion ensued about what the recording reflected, but counsel ultimately testified that
the speaker in the recording referred to J.M.’s “being charged with a gun, that he had
apparently pointed a gun at somebody a few days before that.” Counsel agreed that J.M.
never described the shooting as “some type of mutual combat” or said that the victim
pointed a gun at the Petitioner.
Trial counsel maintained that based upon his review of the discovery materials and
his conversations with the Petitioner, he had no indication that the Petitioner acted in self-
defense. Counsel stated that the defense theory attempted to shift blame to a man with
dreadlocks, who was mentioned by both the victim and J.M. in their respective police
interviews, and casting doubt on the version of events advanced by the State. Counsel
agreed that he also attacked the State’s investigation and delay in charging the Petitioner
in order to imply that the conduct was not as serious as the State portrayed it.
Trial counsel denied that the Petitioner ever expressed a desire to testify in order to
claim self-defense. Counsel noted that the Petitioner told him “early on” that he would not
testify. Counsel agreed that he would have discussed with the Petitioner that if the
Petitioner testified, his police statement could be used as impeachment evidence. Counsel
stated that at the time of trial, the victim was in custody in connection with another case
and represented by his own counsel. J.M. was brought to court by his mother.
-8-
On redirect examination, trial counsel agreed that the motion for a new trial was
argued in September of 2014 and that the notice of appeal was filed in November of 2014.
Counsel identified two January 2015 letters from post-conviction counsel’s office
requesting the Petitioner’s physical file. Counsel did not recall, however, whether he
provided the file to post-conviction counsel directly or how the file was transferred.
Counsel agreed that in the police cruiser recording, J.M. excitedly repeated, “My brother
had his gun on him.” Counsel said that during J.M.’s excited statements, a gun fell out of
J.M.’s clothing in front of an officer.
The Petitioner testified that he and trial counsel “[b]riefly” discussed the evidence
during counsel’s “[m]aybe four” visits. The Petitioner stated that he asked counsel to
interview multiple witnesses, including the victim, “Dejahnette Smith,” and “Omari Bill.”
The Petitioner said that relative to interviewing the victim, counsel claimed it “wouldn’t
do no [sic] good.” The Petitioner stated that during his first meeting with counsel, he asked
counsel to hire a private investigator and that counsel responded, “My office . . . doesn’t
offer that.” The Petitioner denied that counsel ever played the police cruiser recording for
him, although he affirmed that counsel played the victim’s recorded police interview during
one meeting.
The Petitioner testified that the first time he met counsel, he discussed pursuing a
self-defense theory and that counsel presented the State’s plea offer. The Petitioner
explained that he was initially afraid to tell counsel the truth, but that after counsel “kept
coming, trying to get [the Petitioner] to take a deal,” he decided to tell counsel that the
victim “pulled a gun out on [the Petitioner]” and this was the reason the Petitioner shot
him. The post-conviction court questioned the Petitioner and asked him to clarify whether
he raised self-defense with counsel at their first meeting or later; the Petitioner responded
as follows:
See, the first time [counsel] met with me, . . . he didn’t bring anything with
him.
....
So I told him the first time, you know, look up some things for me on
mutual combat and self-defense. So that’s where it came into play where he
wrote it down in his notes and wrote it down. So the next time, that’s when
he brought the computer and the discs and stuff, and then he came and told
me about the same offer that he brought to me the first time. So after . . . the
second time . . . I told him the reason I shot [the victim] was because he
pulled a gun out on me.
-9-
The Petitioner testified that on the day of the shooting, he left his cousin’s residence
and was walking down a staircase when he saw someone pass by him. The Petitioner did
not believe the person he passed knew him because no greetings were exchanged. At the
bottom of the stairs, he turned right and was preparing to walk through a “tunnel” when he
saw the victim walking toward him from the other side of the tunnel. The Petitioner
asserted that the victim had a “gun on his side” and that when the two men made eye
contact, the victim pointed the gun at him. The Petitioner stated that he was carrying a gun
in the pocket of his hooded sweatshirt and that he shot his gun at the victim from inside his
pocket until the victim dropped his gun, and then the Petitioner ran away. The Petitioner
affirmed that other people were present and that one of the victim’s friends could have
picked up the gun.
The Petitioner testified that he relayed this version of events to trial counsel but that
they never discussed it further and that counsel “never dug into anything that [the
Petitioner] gave him.” The Petitioner explained that when counsel visited him, he never
brought “anything that he had looked up or anything.” The Petitioner stated that he had no
faith in counsel and that he did not feel he “had a chance.” The Petitioner noted that counsel
presented the same plea offer at every visit. The Petitioner stated that he rejected the offer
because counsel “didn’t look into” anything before reviewing the State’s evidence against
the Petitioner. The Petitioner felt that counsel was not working on his behalf.
The Petitioner testified that he saw counsel write down the words “self-defense and
mutual combat” in his notes. The Petitioner stated that during a recess at trial, he and
counsel discussed a third party’s possibly testifying on the Petitioner’s behalf. The
Petitioner said that during this conversation, the Petitioner addressed whether he would
testify. The Petitioner said that he told counsel, “[Y]ou haven’t even presented anything
about self-defense on my behalf. So . . . I really don’t know. I don’t think it’s in my best
interest to testify.” The Petitioner said that counsel never explained why he did not raise
self-defense. The Petitioner agreed that counsel challenged the witness identifications and
photograph lineups and that “the light-skinned person with dreadlocks was floated out” as
a possible alternative perpetrator. The Petitioner averred that had counsel interviewed the
witnesses, they could have corroborated that the victim had a gun or been able to determine
where the victim’s gun was taken after the shooting. The Petitioner said that counsel never
explained why he did not interview the witnesses, stating that every time the topic came
up, counsel “rolled it off.” The Petitioner opined that counsel “didn’t want to do it.”
The Petitioner stated that during his confinement, he had received an affidavit from
the victim. The Petitioner denied speaking to the victim in prison or having solicited the
affidavit from him. When asked why the victim would decide after years to come forward
with a “truthful version” of events, the Petitioner speculated that the victim wanted to
“make it right.” The Petitioner noted that he was in prison because the victim lied, that the
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victim was also incarcerated, and that in prison “you can’t do nothing [sic] but sit down
and think.”
On cross-examination, the Petitioner stated that at the time of counsel’s first visit,
neither of his cases had gone to trial, that they discussed the plea offer of fifteen years at
thirty percent service, and that the Petitioner requested a printed copy of “the mutual
combat and the self-defense thing.” During the second visit, counsel did not bring the
requested material, but instead brought the discovery materials on computer discs. They
listened to the victim’s interview and again discussed the plea offer; it was at this point,
the Petitioner claimed, that he told counsel that he acted in self-defense. The Petitioner
stated that counsel showed him a copy of the transcribed 911 calls and that he “heard
something” recorded regarding J.M., although it was not the recording admitted at the post-
conviction hearing. The Petitioner denied that they reviewed his recorded police interview
or the firearms examiner’s report; he recalled reviewing the crime scene photographs. The
Petitioner stated that the third meeting was brief and that he asked counsel for the printed
information he had requested; he said that counsel claimed to be “working on it.” The
Petitioner noted that neither he nor his family members were able to reach counsel by
telephone and that the Petitioner “gave up” at this point.
The Petitioner denied asking Mr. Lomonaco for the information he sought from trial
counsel. He noted that he did not believe Mr. Lomonaco could “do anything about it” and
that both trial counsel and Mr. Lomonaco “always said . . . with those two cases, . . . they
[had] nothing to do with each other.” The Petitioner did not recall whether his recorded
police interview was played for the jury at trial.
The Petitioner’s June 15, 2016 audio-recorded police interview was entered as an
exhibit and reflected that when the Petitioner was asked about the March 30, 2016 shooting,
he commented that it had “been a few months” and that he did not remember where he was
that day. After Investigator Jinks relayed a version of events consistent with the victim’s
later trial testimony, the Petitioner denied having shot anyone. After being told the victim’s
identity, the Petitioner again denied having shot “that boy”; the Petitioner characterized the
victim as “a child” and commented that he had watched the victim grow up in their
neighborhood and had no reason to harm him. Investigator Jinks specifically asked if the
victim had done “something” to the Petitioner or whether a “battle” had occurred, both of
which he denied. Investigator Jinks noted that she knew the Petitioner was affiliated with
a “Bloods” gang, and she asked if the shooting was gang-related or arose out of the victim’s
disrespecting the Petitioner. The Petitioner stated that he understood Investigator Jinks’s
position given that he could not provide an alibi; however, he maintained that he did not
shoot the victim and that the situation described by the victim never occurred.
The Petitioner affirmed that in his police interview, he denied having committed the
shooting or having a conflict with the victim. When asked why he lied to Investigator
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Jinks, the Petitioner stated that he was afraid and that he had “never been through this
before[.]” The Petitioner acknowledged, though, that at the time of his police interview,
he had already admitted to police that he participated in a shooting at Austin East High
School; in the police interview regarding Austin East, the Petitioner averred that he acted
in self-defense. When asked why he did not also articulate a self-defense claim relative to
the victim’s shooting, the Petitioner responded that the situation was different because at
Austin East, more than one person was shooting; conversely, the victim had only pointed
a gun at the Petitioner. The Petitioner stated that when Investigator Jinks interviewed him,
he “didn’t want anything to happen before [he] was brought up on charges for this,” that
he did not know how “the system worked,” and that he did not want to get into more trouble
“than what [he] was already in.” The Petitioner acknowledged that after his arrest, he did
not immediately tell anyone he acted in self-defense; he noted that he did not know how to
contact Investigator Jinks and that his mother already knew his version of events. He
commented that he thought it was counsel’s role to convey his self-defense claim.
The Petitioner testified that in May 2018, he received the victim’s affidavit. He
maintained that he had not asked the victim to write the affidavit, in spite of its purporting
to be on the Petitioner’s behalf. The Petitioner affirmed that in the affidavit, the victim did
not admit to possessing a gun or pointing it at the Petitioner. When asked whether he told
trial counsel how he would handle questions on cross-examination regarding his changing
statements, the Petitioner said that counsel never asked him about it and that the Petitioner
did not worry because he “felt like the truth would come out anyways.” The Petitioner
noted that he never considered his credibility in front of the jury because counsel “never
pursued it” and that the Petitioner “didn’t have a fighting chance from the jump.”
The victim testified that on March 30, 2013, he “upped a gun on” the Petitioner and
pointed it at his chest; J.M. said, “Y’all tripping,” causing the victim to look backward
toward J.M.; and the Petitioner shot the victim in the leg. The victim stated that he dropped
his gun when he hit the ground and that he gave his “girl” the gun before the police arrived.
The victim stated that he did not see the Petitioner’s gun when he pointed his gun at the
Petitioner. The victim later said, though, that the shape of a gun was visible in the
Petitioner’s pocket. He agreed that the Petitioner pulled out his gun to defend himself.
Relative to the impetus for the incident, the victim stated that the Petitioner and the victim’s
brother had a conflict; as a result, the victim was trying to scare the Petitioner. The victim
acknowledged that he omitted any mention of his gun from his trial testimony, and he stated
that he was not forthcoming with the trial court, the police, and his attorney in another case
because he did not want to get into trouble. The victim noted that the prosecutor never
explicitly asked if he had a gun, and he characterized his previous testimony under oath as
not technically untrue.
The victim testified that he authored a notarized affidavit on May 18, 2018, and sent
it to the Petitioner on his own initiative. He denied that anyone asked him to write it. The
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victim stated that he wrote it because the Petitioner was only defending himself and that as
the victim had gotten older, he realized what he did was wrong.
The notarized typed affidavit was received as an exhibit and read as follows:
To Whom It May Concern:
This is the affidavit of [the victim].
Hey my name is [the victim] and I’m writing the court on the behalf
of [the Petitioner]. I was on drugs at the time of [the Petitioner’s] case, plus
I was already in trouble so I thought by lying on [the Petitioner] would get
me out of trouble but it didn’t, so as I got older I learn right from wrong. I
don’t think [the Petitioner] should 0pay [sic] for something he didn’t do.
Therefore, I am writing the court on [the Petitioner’s] behalf in order to ask
that the court have mercy on this individual. Also, I would like the court to
let [the Petitioner’s] family know that I am truly sorry for everything I did. I
did not mean to take they child away for something he didn’t do, I was just
young and scared of prison. I am truly sorry for that and I hope one day he
and his family will forgive me. I hope my writing this letter will help begin
to right my wrong.
The victim stated that he obtained the Petitioner’s inmate identification number from a
friend, “Lapolly,” who was the Petitioner’s “charge partner.” The victim stated that he was
formerly a member of a Bloods street gang, as were the Petitioner and Lapolly. Although
the victim agreed with the general statement that gang members were not supposed to
identify their peers as having committed crimes against one another, he noted that different
types of Bloods gangs existed and that a person could not claim to be friendly with another
person merely because both people were members of gangs falling under the general
Bloods category.
The victim testified that he did not feel a need to include his brandishing a gun at
the Petitioner in the affidavit “because they [were] going to pull” the victim to court “to
say it.” After the victim mailed the affidavit, post-conviction counsel contacted him, and
the victim conveyed to post-conviction counsel that he had brandished a gun before the
shooting and that he was willing to testify at the post-conviction hearing.
An audio recording of Investigator Jinks’s interview with the victim was played. In
the recording, the victim stated that the Petitioner shot him because the Petitioner thought
the victim had made a comment regarding the Petitioner’s not being in a Bloods gang. The
victim asked why J.M. had been arrested, and Investigator Jinks responded that J.M. had
been caught with a gun and that “while he was throwing a fit,” a gun “fell out.” The victim
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denied that the Petitioner said anything to him or articulated a reason for shooting him.
The victim stated that before the shooting, he and J.M. encountered a light-skinned man
with dreadlocks who told the two boys that they were not “proper,” meaning gang-
affiliated.9 The victim stated that after the shooting, the Petitioner ran into an apartment.
Investigator Jinks then showed the victim a photograph lineup, and the victim verbally
indicated that he had chosen a photograph.
The victim testified that he told Investigator Jinks that he did not know why the
Petitioner shot him. He maintained that he had no knowledge of J.M.’s carrying a gun on
the day of the shooting. The victim admitted to being a member of the “Vice Lords” street
gang and to having prior convictions for robbery and possession with intent to sell heroin
and cocaine. Upon examination by the post-conviction court, the victim testified that
before he went to prison, he carried a silver, .9 mm P95 Ruger handgun that he had bought
“off the street.”
The post-conviction court denied both the petition for post-conviction relief and the
petition for writ of error coram nobis by written order filed September 3, 2019.10 The court
found that trial counsel prepared for trial by obtaining and reviewing the discovery
materials, interviewing the Petitioner, and reviewing the State’s evidence with the
Petitioner multiple times and discussing defense strategy. The court noted that multiple
recorded witness statements were included in discovery and that counsel looked for the
witnesses in the court computer system. The court credited counsel’s testimony regarding
the uncertain origin of the handwritten notes in his file referring to self-defense; the court
noted that the cursive handwriting “appear[ed] to be done by a different hand.” The court
found that the Petitioner rejected the State’s plea offer and that counsel chose a defense
strategy of casting doubt on the Petitioner’s identity as the shooter or, alternatively,
asserting that the shooting did not constitute attempted first degree murder.
The post-conviction court credited trial counsel’s testimony and discredited the
Petitioner’s testimony regarding whether the Petitioner told counsel about the victim’s
brandishing a gun. The court found that the Petitioner denied being present during the
shooting in his police interview and that no evidence indicated that the Petitioner told
police, trial counsel, or anyone else that he acted in self-defense. The court concluded that
counsel “reasonably developed the defense strategy in accordance with this information.”
The court specifically credited counsel’s statement that if the Petitioner had told him that
the victim had a gun, counsel would have considered a self-defense claim.
9
The audio of this portion of the interview was not clear enough to determine the full meaning of the
conversation.
10
On September 5, 2019, the post-conviction court entered a corrected order containing a case number that
had been handwritten on the original order. The substance of the orders were identical.
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Relative to the gun found at the crime scene, the post-conviction court found that
although J.M. told the police that the victim had been carrying a gun, J.M. later admitted
that the gun was his and that he had lied because he was afraid of getting into trouble. The
court noted that a police officer saw the gun fall out of J.M.’s clothing.
Relative to the victim’s recantation of his trial testimony, the post-conviction court
found that he was not credible, noting that the victim was a convicted felon and gang
member who had a “lengthy criminal history.” The court made the following findings
regarding the affidavit:
[T]he court finds it difficult to believe that a criminal defendant who, without
prompting, wanted to tell the truth and apologize to a wrongfully convicted
defendant, would do that in the form of an affidavit sent to the [Petitioner].
Why say, “To Whom It May Concern”? A letter to the [Petitioner] would
address it to him. Why do this in the form of an affidavit? It makes much
more sense that a person would send a letter first and then prepare an affidavit
if requested. Furthermore, the affidavit is typed. Why would [the victim] do
this if he was just sending a letter on his own? There is no explanation how
[the victim] came to use a typewriter while in prison. Finally, the letter never
says that [the victim] had a gun. Why wouldn’t [the victim] admit to that in
the letter? After hearing [the victim’s] testimony on this matter and
observing his demeanor, the court finds him to be wholly unbelievable.
Relative to trial counsel’s investigation, the post-conviction court found that his
performance was deficient, noting that although “seemingly” little would have been gained
by conducting independent witness interviews in light of the defense theory, no evidence
established that the witnesses were unavailable. The court felt constrained to conclude that
“[w]ithout further explanation for the failure to at least attempt interviews,” counsel was
deficient in this regard. However, the court concluded that the Petitioner had not proven
prejudice, finding that no evidence indicated that counsel would have obtained different
information in a more thorough investigation that would have impacted the verdict. The
court noted that the only testimony offered was that of the victim, whom the court had
discredited, and that by the victim’s own account, his change of heart did not occur until
he had been in prison for some years after the trial.
Relative to trial counsel’s failure to develop a self-defense theory, the post-
conviction court found that counsel and the Petitioner presented conflicting testimony
regarding the Petitioner’s having conveyed to counsel that the victim pointed a gun at him.
The court again credited counsel and discredited the Petitioner. The court found that none
of the witness statements indicated that the victim had a gun other than J.M.’s statement to
police, which the court noted was not credible and had been “quickly” recanted. The court
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noted that in addition to J.M.’s recanting his statement and admitting the gun was his, a
police officer had seen the gun fall out of J.M.’s clothing.
The post-conviction court concluded that based upon the available information,
counsel’s decision to pursue identity or, alternatively, the absence of an intent to kill as the
defense strategy was sound. The court concluded that counsel was not deficient in this
regard. Moreover, the court concluded that the Petitioner suffered no prejudice, finding
that no explanation had been given “as to how the jury could possibly believe” the
Petitioner’s proffered testimony regarding self-defense or how any other piece of evidence
would have affected the outcome of the trial. The court noted that the defense strategy was
not wholly unsuccessful and that the Petitioner was ultimately convicted of a lesser-
included offense. The court further noted that if the Petitioner had testified and admitted
to shooting the victim, which was inconsistent with his police statement, the jury might
have convicted him as charged.
Relative to the petition for writ of error coram nobis, the post-conviction court found
that “for purposes of argument,” it considered the victim’s hearing testimony as newly
discovered evidence that was “therefore, timely.” The court repeated its finding that the
victim’s testimony was not credible, noting that the victim’s trial testimony was supported
by the other witnesses and circumstantial evidence and that before the post-conviction
hearing, the Petitioner had not conveyed to “anyone in authority” that the victim had
pointed a gun at him. The court concluded that because it was not “reasonably satisfied
that the trial testimony was false and the new testimony [was] true,” the Petitioner was not
entitled to a new trial. The Petitioner timely appealed the denial of both petitions.
ANALYSIS
I. Factual Findings
The Petitioner contends that several of the post-conviction court’s factual findings
went against the preponderance of the evidence, particularly its credibility determinations.
For the sake of efficiency, we will review these findings first in order to facilitate our
review of the post-conviction court’s application of the facts to the legal issues raised in
the post-conviction and coram nobis petitions.
Firstly, the Petitioner argues that the post-conviction court erred by finding that the
Petitioner was not credible, specifically in regard to his assertions that he told trial counsel
to research self-defense and that the victim pointed a gun at him. In support of his
argument, the Petitioner notes that his testimony was corroborated by the notes in trial
counsel’s file regarding self-defense and the need to obtain an affidavit from the victim;
the victim’s post-conviction testimony that he pointed a gun at the Petitioner; and J.M.’s
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statement in the police cruiser recording that his brother had a gun. Secondly, the Petitioner
argues that even if the court disregarded the Petitioner’s testimony, the court erred by
crediting counsel’s assertion that the Petitioner never informed him of facts indicating self-
defense, again citing the above-referenced corroborating evidence. Thirdly, the Petitioner
argues that the court erred by discrediting the victim’s hearing testimony, specifically its
consideration of the victim’s gang affiliation and felon status and its questioning how the
victim accessed a typewriter in prison; the Petitioner similarly cites the corroborating
evidence as indicative of the victim’s credibility. Finally, the Petitioner asserts that J.M.’s
statement in the police recording that his brother had a gun should have been given more
weight and that the court erred when it found that J.M. “quickly recanted” the statement,
which was not reflected in the recording.
On appeal, we are bound by the trial court’s findings of fact unless we conclude that
the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised
by the evidence are to be resolved” by the post-conviction court. Id.
Relative to the handwritten notes in trial counsel’s physical file, it is readily apparent
that the notes referring to self-defense and mutual combat, as well as those naming
additional witnesses, were written by a different person than the one who wrote the notes
counsel identified as his own. Counsel did not know who wrote the notes or who would
have had opportunity to do such, and he did not recall whether his file was first given to
appellate counsel or to post-conviction counsel.
We note that in the Petitioner’s appellate brief, post-conviction counsel correctly
states that although trial counsel did not recall the precise day or year that appellate counsel
received his file, the technical record reflects that appellate counsel was appointed on
October 29, 2015, the same day the motion for a new trial was denied. In an attempt to
clarify who had access to trial counsel’s file before post-conviction counsel received it,
post-conviction counsel discusses his January 2015 letter requesting the file. Post-
conviction counsel then proceeds to aver, apparently from his own recollection, that trial
counsel gave him the file before the motion for new trial hearing. We note that post-
conviction counsel unsuccessfully attempted to elicit this information from trial counsel at
the post-conviction hearing.
Post-conviction counsel did not testify at the post-conviction hearing or call another
witness who could establish when post-conviction counsel received the file and whether
appellate counsel had access to the file prior to that time. This court is not permitted to
consider facts outside of “those facts established by the evidence” in the lower court,
especially those which are relevant to the merits of the issues on appeal and are disputed.
Tenn. R. App. P. 13(c); see Tenn. R. App. P. 14, Advisory Comm’n Cmts. (“Although the
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appellate court should generally consider only those facts established at trial, it
occasionally is necessary for the appellate court to be advised of matters arising after
judgment. These facts, unrelated to the merits and not genuinely disputed, are necessary to
keep the record up to date.”)
In short, no evidence established the identity of the person who wrote in cursive in
the Petitioner’s file, only that trial counsel was excluded as the source. The evidence does
not preponderate against the post-conviction court’s finding that counsel did not write the
notes. The only relevant notes that trial counsel acknowledged having written referred to
investigating the victim and possibly obtaining an affidavit from him, which did not make
it more or less likely that counsel had been informed of the Petitioner’s self-defense claim.
Having found that the most salient notes to the self-defense issue were not written by trial
counsel, the evidence does not preponderate against the post-conviction court’s finding
crediting counsel’s testimony that the Petitioner never communicated facts to him
supporting a self-defense theory.
Relative to the victim’s credibility, the post-conviction court was in the best position
to assess the victim’s demeanor, his explanation of his decision to recant, and the veracity
of his testimony. It is not apparent that the post-conviction court considered any improper
facts in rendering its decision, which was based upon the victim’s circumstances in prison
and the court’s impression of the victim during the hearing.11
Similarly, the Petitioner’s argument relative to his own credibility fails because the
evidence he claims corroborates his hearing testimony—the notes in trial counsel’s file and
the victim’s hearing testimony—was properly determined to be incredible. The record
does not reflect that the evidence preponderates against the post-conviction court’s finding
discrediting the Petitioner’s testimony.
Finally, although the Petitioner takes issue with the post-conviction court’s
characterization of J.M.’s recanting his statement that the victim had a gun as “quick,” the
record reflects that a short time after the conversation documented in the police cruiser
recording, J.M. spoke to Investigator Jinks and admitted that the .25-caliber handgun was
his. In addition, the Petitioner urges this court to conclude that the only reasonable
interpretation of J.M.’s first stating that the victim had a gun, then later choosing not to
mention it, resulted from J.M.’s realizing that the victim would get into trouble for having
a gun. However, when taken in the context of the entire recording, another interpretation
was equally plausible. In the first recording, J.M. stated that the victim had a gun, that he
11
We note that near the end of his testimony, the victim did state that he had the affidavit “typed up” in the
prison library. Nevertheless, the court’s comment regarding a typewriter occurred in the context of the
court’s discussion of the generally inconsistent characteristics of the affidavit as a whole as compared to
the victim’s explanation of his motivation in drafting it.
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was being truthful and straightforward with the officers, and that the jacket J.M. had been
wearing was not J.M.’s. The post-conviction court reasonably interpreted J.M.’s first
statement an attempt to shift blame from himself because he had just been caught carrying
a gun, rather than a truthful disclosure that the victim had a gun.
In sum, the post-conviction court’s factual findings were supported by the record
and did not constitute an abuse of discretion. Therefore, we will not disturb the court’s
findings as we review the legal issues raised on appeal.
II. Post-Conviction Petition
Relative to the post-conviction petition, the Petitioner contends that he received the
ineffective assistance of trial counsel because counsel failed to investigate and pursue a
theory of self-defense. The State responds that the post-conviction court properly
determined that counsel did not render ineffective assistance in this regard.
Post-conviction relief is available when a “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. Criminal defendants
are constitutionally guaranteed the right to effective assistance of counsel. Dellinger v.
State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. amend. VI; Cuyler v. Sullivan,
446 U.S. 335, 344 (1980)). When a claim of ineffective assistance of counsel is made
under the Sixth Amendment to the United States Constitution, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993).
Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” despite the fact that reviewing courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. In reviewing
counsel’s conduct, a “fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Id. “Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance.” Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is made to trial strategy or tactical
choices if they are informed ones based upon adequate preparation. Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982).
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Prejudice requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996). The
Strickland standard has been applied to the right to counsel under article I, section 9 of the
Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). As
stated above, on appeal, we are bound by the trial court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields, 40
S.W.3d at 456. Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions
of law and fact, we review the trial court’s conclusions as to whether counsel’s performance
was deficient and whether that deficiency was prejudicial under a de novo standard with
no presumption of correctness. Id. at 457.
a. Investigation
The Petitioner contends that trial counsel rendered ineffective assistance by failing
to investigate facts supporting self-defense. At oral argument, post-conviction counsel
asserted that although it was the Petitioner’s position that he informed trial counsel of the
victim’s having pointed a gun at him, any competent attorney would have pursued a self-
defense argument after hearing J.M.’s statement on the police cruiser recording that the
victim had been carrying a gun. Post-conviction counsel’s implication was that trial
counsel had not reviewed the police cruiser recording. The State responds that the post-
conviction court discredited the Petitioner’s testimony that he informed counsel of having
acted in self-defense and that even if counsel had interviewed the victim, the victim likely
would not have provided different information than what was contained in his police
statement because by the victim’s own admission, he only decided to recant his trial
testimony after having had a change of heart some years after the Petitioner’s trial.
Although trial counsel does not have an absolute duty to investigate particular facts
or a certain line of defense, counsel does have a duty to make a reasonable investigation or
to make a reasonable decision that makes a particular investigation unnecessary.
Strickland, 466 U.S. at 691. Counsel is not required to interview every conceivable
witness. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Furthermore,
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no particular set of detailed rules for counsel’s conduct can satisfactorily take
account of the variety of circumstances faced by defense counsel. Rather,
courts 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, and
judicial scrutiny of counsel’s performance must be highly deferential.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (internal citations and quotations omitted).
A reasonable investigation does not require counsel to “leave no stone unturned.”
Perry Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at *49
(Tenn. Crim. App. July 1, 2009). Rather, “[r]easonableness should be guided by the
circumstances of the case, including information provided by the defendant, conversations
with the defendant, and consideration of readily available resources.” Id. The United
States Supreme Court has said, “[I]nquiry into counsel’s conversations with the defendant
may be critical to a proper assessment of counsel’s investigation decisions, just as it may
be critical to a proper assessment of counsel’s other litigation decisions.” Strickland, 466
U.S. at 691.
The post-conviction court explicitly discredited the Petitioner’s assertion that he
informed trial counsel of the facts supporting self-defense; in particular, the court noted the
uncertain origin of the written notes in counsel’s file referencing self-defense. The court
found counsel’s assertion that the Petitioner never discussed self-defense and maintained
his innocence to be credible. The court noted that counsel’s testimony was consistent with
the Petitioner’s police statement. The court found, though, that counsel was generally
deficient during his investigation because he did not attempt to interview any witnesses.
Relative to the Petitioner’s contention that counsel was deficient because he failed
to discover J.M.’s recorded statement that the victim had a gun, we note that the record
does not support the Petitioner’s allegation that counsel failed to review the police cruiser
recording. Counsel testified that he reviewed the recordings and discussed J.M.’s
statement. Counsel’s remarks indicated that he did not interpret J.M.’s statement as truthful
in light of the absence of a second gun at the crime scene and J.M.’s later admission that
the .25-caliber handgun was his. Counsel acknowledged that he could have cross-
examined J.M. regarding the recording but did not do so, and he did not recall the reasoning
behind that decision. Although the post-conviction court did not explicitly address J.M.’s
recorded statements in its order, it found that counsel was deficient for failing to interview
any of the witnesses. We conclude that counsel was also deficient for failing to cross-
examine J.M. regarding J.M.’s recorded statement that the victim had a gun; we note that
witness credibility in this case was critical and that even though self-defense was not the
defense strategy at trial, the statement could have been used for purposes of impeachment.
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Nevertheless, the post-conviction court concluded that no prejudice resulted to the
Petitioner as a result of deficiencies in counsel’s investigation because even if counsel had
interviewed the victim, there was no indication that the victim would have testified about
pointing a gun at the Petitioner. We agree with the post-conviction court—the victim
testified that he did not experience the change of heart leading him to recant his trial
testimony until he had been in prison for some years. Further, the Petitioner did not present
any other witness or evidence that additional investigation would have revealed. See Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Because the Petitioner failed to
prove that a more thorough investigation would have produced evidence that likely would
have influenced the verdict, he is not entitled to relief on this basis.
b. Defense Theory
The Petitioner contends that trial counsel rendered ineffective assistance by failing
to raise self-defense at trial. The State responds that counsel pursued a reasonable theory
of defense and that no prejudice resulted.
At the post-conviction hearing, trial counsel testified that based upon his
conversations with the Petitioner and the Petitioner’s police interview, he decided to pursue
a theory of mistaken identity or, alternatively, that the Petitioner did not intend to kill the
victim. The Petitioner maintained in the recorded police interview that he was not the
shooter and that he had no conflict with the victim. Counsel testified that the Petitioner
never told him that the victim pointed a gun at him and that the Petitioner initially denied
involvement in the offense. Later, the Petitioner told counsel that the victim would not
testify, which counsel dismissed as an unwise strategy, and that the State could not prove
that the Petitioner intended to kill the victim because the victim was only shot in the leg.
Counsel used the latter statement as a starting point for the alternative defense theory. As
stated above, the post-conviction court credited counsel’s testimony and discredited the
Petitioner’s testimony, finding that the Petitioner had not disclosed he acted in self-defense
to anyone prior to the post-conviction proceedings. Counsel was not deficient for failing
to pursue a defense theory that was not raised by his conversations with the Petitioner or
any of the discovery materials. Cf. Wiley v. State, 183 S.W.3d 317, 332 (Tenn. 2006)
(holding that trial counsel was deficient for failing to investigate and assert self-defense
when the petitioner consistently told police and counsel that he and the victim argued, that
the victim “rushed” him, and that he and the victim fell into a dresser).
Relative to prejudice, the Petitioner has not proven that a self-defense argument
would have been supported by the evidence at trial or led to a different result. Notably, the
Petitioner has not demonstrated that the victim or J.M. would have testified differently if
they had been cross-examined about the victim’s possessing a gun. The only evidence not
presented at trial was J.M.’s recorded police cruiser statement, which could have been
impeached by his later admission that the gun was his, and the Petitioner’s testimony,
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which could have been impeached by his police statement. The victim did not experience
misgivings about his trial testimony or wish to rectify a wrong until years after the trial.
We note that trial counsel’s chosen strategy was not unsuccessful and that the Petitioner
was convicted of a lesser-included offense. The Petitioner has not proven that he was
prejudiced by counsel’s failure to pursue a theory of self-defense at trial, and he is not
entitled to relief on this basis.
III. Error Coram Nobis
The Petitioner contends relative to his coram nobis petition that the post-conviction
court erred by discrediting the victim’s revised testimony. The State responds that the
petition was not timely filed and that the post-conviction court properly dismissed it.
A writ of error coram nobis is an extraordinary remedy available only under very
narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A
writ of error coram nobis lies “for subsequently or newly discovered evidence relating to
matters which were litigated at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at the trial.” Tenn. Code Ann.
§ 40-26-105; see also State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The
purpose of a writ of error coram nobis is to bring to the court’s attention a previously
unknown fact that, had it been known, may have resulted in a different judgment. State v.
Vasques, 221 S.W.3d 514, 526-27 (Tenn. 2007).
The decision to grant or deny the writ rests within the discretion of the coram nobis
court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988). “A court abuses
its discretion when it applies an incorrect legal standard or its decision is illogical or
unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” State v. Wilson, 367
S.W.3d 229, 235 (Tenn. 2012).
A petition for writ of error coram nobis must be filed within one year of the date the
judgment of the trial court became final. See Tenn. Code Ann. §§ 27-7-103, 40-26-105;
Mixon, 983 S.W.2d at 671. For coram nobis purposes, a trial court’s judgment becomes
final “either thirty days after its entry in the trial court if no post-trial motions are filed or
upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State, 301
S.W.3d 141, 144 (Tenn. 2010) (overruled on other grounds by Nunley v. State, 552 S.W.3d
800, 828 (Tenn. 2018)). A coram nobis petition “must show on its face that it is timely
filed,” and the State is no longer required to raise timeliness as an affirmative defense.
Nunley, 552 S.W.3d at 828.
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The one-year limitation period may be tolled only when required by due process
concerns. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). Courts must “balance
the petitioner’s interest in having a hearing with the interest of the State in preventing a
claim that is stale and groundless” in determining whether due process tolls the statute of
limitations. Wilson, 367 S.W.3d at 234. To do so, courts perform the following steps:
(1) determine when the limitations period would normally have begun to
run; (2) determine whether the grounds for relief actually arose after the
limitations period would normally have commenced; and (3) if the grounds
are “later-arising,” determine if, under the facts of the case a strict
applications of the limitations period would effectively deny the petitioner a
reasonable opportunity to present the claim.
Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).
In this case, the trial court’s order denying the Petitioner’s motion for a new trial
was entered on October 29, 2015; as a result, the error coram nobis limitations period
expired on October 29, 2016. The Petitioner filed his petition for writ of error coram nobis
on November 5, 2018, making it untimely. In the petition, the Petitioner requested due
process tolling of the limitations period because the petition had been filed within one year
of the victim’s May 21, 2018 affidavit and an interview with post-conviction counsel on
August 1, 2018, during which counsel averred that the victim informed him of having
pointed a gun at the Petitioner.
At the post-conviction hearing, neither the Petitioner nor the State discussed the
timeliness of the petition, and the post-conviction court noted in its order that it considered
the victim’s testimony as “timely.” The State has raised timeliness in its appellate brief,
but the issue was not discussed by either party at oral argument.
Given that due process tolling was requested in the petition, we interpret the post-
conviction court’s statement that the victim’s hearing testimony was timely as a finding
that the grounds for the petition were later-arising and that the Petitioner exercised due
diligence in pursuing his coram nobis claim by filing the petition less than one year after
discovering the new evidence. Cf. Nunley, 552 S.W.3d at 830-31 (concluding that due
process tolling was not merited when no explanation was given for an eighteen-year filing
delay after the judgment became final, which also reflected an almost two-year delay
between the petitioner’s being notified of the existence of new evidence and the petition’s
filing); Harris, 301 S.W.3d at 146 (concluding that due process tolling was not merited
when the petitioner waited six years to assert a coram nobis claim relative to alibi evidence
and twenty-one months relative to a third-party confession).
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The Petitioner’s sole issue on appeal relates to the victim’s credibility at the hearing
when taken in light of the other corroborating evidence presented. We note once more that
credibility determinations are the province of the finder of fact and will not be disturbed
on appeal. Moreover, as we concluded above, the corroborating evidence offered by the
Petitioner was discredited by the post-conviction court, and our review of the record
reflects that it does not preponderate against the court’s findings. The Petitioner and the
victim were not credible witnesses; the victim’s explanation of the impetus motivating him
to prepare the affidavit, which was clearly addressed to a court and made no specific
reference to the victim’s having threatened the Petitioner with a gun, was less than
compelling; and the notes in trial counsel’s file were of uncertain provenance. The post-
conviction court did not abuse its discretion by finding that it was unsatisfied with the
veracity of the victim’s revised testimony. The Petitioner is not entitled to relief on this
basis.
CONCLUSION
Based on the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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