Jerry Edward Lanier v. State of Tennessee

05/10/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 3, 2018
JERRY EDWARD LANIER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Dyer County
No. 11-CR-443 R. Lee Moore, Jr., Judge
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No. W2017-00920-CCA-R3-PC
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The petitioner, Jerry Edward Lanier, appeals the denial of his post-conviction petition
arguing he received ineffective assistance of counsel at trial. Following our review, we
affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
ROBERT L. HOLLOWAY, JR., JJ., joined.
Noel H. Riley, Jr., Dyersburg, Tennessee, for the appellant, Jerry Edward Lanier.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Danny Goodman, Jr., District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
A Dyer County jury convicted the petitioner of two counts of selling more than 0.5
grams of cocaine in a drug-free zone for which he received an effective thirty-year
sentence. This Court affirmed the petitioner’s convictions on direct appeal, and our
Supreme Court denied his application for permission to appeal. State v. Jerry Edward
Lanier, No. W2014-01840-CCA-R3-CD, 2015 WL 3397627, at *1 (Tenn. Crim. App.
May 27, 2015), perm. app. denied (Tenn. Sept. 21, 2015). On direct appeal, this Court
recited the following underlying facts and procedural history:
This case arises from two drug transactions that occurred within one
thousand feet of Scott Street Park in Dyer County, Tennessee, between the
[petitioner] and a confidential informant working with the police. A Dyer
County grand jury indicted the [petitioner] for two counts of sale of a
Schedule II drug in a drug-free zone. At the [petitioner]’s trial on these
charges, the parties presented the following evidence: Mike Leggett, a
Dyersburg Police Department officer, testified that he was involved in a
controlled buy on July 1, 2011, in Dyersburg. Sergeant Leggett stated that
the drug buy occurred at a residence located on Scott Street, which is
located near Scott Street Park.
Sergeant Leggett testified that, due to the “relatively small”
population of Dyersburg, the narcotics unit often used confidential
informants because police officers are easily recognized. He confirmed that
a confidential informant was used in this controlled buy. Sergeant Leggett
said that the Confidential Informant (“CI”) and the CI’s vehicle were
searched prior to the buy. An electronic transmitter used to monitor the buy
in real time as well as record the transaction was placed on the CI’s body,
and the CI was provided $50 for the drug purchase. The serial numbers
from the bills given to the CI had been recorded by the police. Sergeant
Leggett recalled that when he first met with the CI on July 1, 2011, he
asked the CI, “Who can you buy from?” Using a number in his cell phone,
the CI made contact with the [petitioner] and arranged to meet at the CI’s
residence.
Sergeant Leggett testified that police officers monitored the CI’s
exchange with the [petitioner] from “around the corner by the park,”
because the CI had informed the officers that the [petitioner] was “very
suspicious and aware of his surroundings.” Following the exchange, the CI
and the police officers met at a predetermined location where the cocaine
was collected and the CI and his vehicle were again searched.
On cross-examination, Sergeant Leggett explained that he did not
determine the location of the buy. The location was selected during the
phone conversation between the CI and the [petitioner]. Sergeant Leggett
stated, “That’s where [the CI] was instructed to meet.”
Chris Clements, a Dyersburg Police Department officer, testified
that he worked with Sergeant Leggett on the July 1, 2011, controlled drug
buy. He stated that he searched the CI’s person, clothing, and vehicle to
ensure that the CI did not have any contraband before the drug buy
commenced. Sergeant Clements recalled that the buy occurred on Scott
Street near a public park, Scott Street Park. After the transaction, the
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officers again met with the CI. Sergeant Leggett collected the drugs, and
Sergeant Clements searched the CI and his vehicle, finding no evidence of
contraband.
Sergeant Clements testified that he worked with the same CI on a
drug buy from the [petitioner] on July 5, 2011. Sergeant Clements
followed the same procedure as used for the July 1, 2011 controlled buy.
He recalled that the CI called the [petitioner] and the two arranged to meet
at the Scott Street residence. Immediately after the transaction, Sergeant
Clements met with the CI and collected the purchased cocaine.
On cross-examination, Sergeant Clements testified that the CI was
instructed to remain in his vehicle and not enter the residence during the
transactions. Sergeant Clements agreed that, during the July 1, 2011,
transaction, the CI did get out of his vehicle and sit on the front porch of the
Scott Street residence for approximately seven minutes. He stated that the
CI asked the police officers for permission before doing so.
Mason McDowell, a Dyersburg Police Department officer, testified
that he worked with Sergeant Clements during the July 5, 2011, controlled
drug buy involving the [petitioner]. Officer McDowell recalled that, before
the controlled buy, Sergeant Clements searched the CI while he oversaw
the technical equipment used to monitor and record the transaction. Officer
McDowell also provided the CI with $50 of recorded money for the
purchase. He stated that the CI advised the officers that he could purchase
drugs from someone the CI referred to as “Slim.” Officer McDowell knew
“Slim” to be the [petitioner], and the CI confirmed with Officer McDowell
that the person he referred to as “Slim” was the [petitioner].
The State played the video recording of the July 5, 2011 transaction,
and Officer McDowell identified the CI’s residence on Scott Street where
the transaction occurred and the [petitioner]’s vehicle, a Ford Thunderbird,
arriving in the driveway. Officer McDowell identified the [petitioner] as
the person operating the Thunderbird. He also identified a white baggie
being exchanged between the CI and the [petitioner] as consistent with the
package the CI returned to the officers immediately following the
transaction. Officer McDowell testified that U.S. currency appeared to be
transferred between the men.
Officer McDowell testified that, directly after the drug buy, he met
with the CI again and collected the crack cocaine that the CI had purchased
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from the [petitioner] while Sergeant Clements conducted a search of the CI
and the CI’s vehicle.
On cross-examination Officer McDowell testified that the recorded
money used during the transaction was never recovered. Officer McDowell
said that, although the money was never recovered, he did provide the CI
with $50, the video depicts the CI giving the [petitioner] cash, and the CI
did not return with any money.
Carmen Cupples, Information Technology and Geographic
Information System manager for the City of Dyersburg, identified a map
her office had generated showing the distance in feet between the Scott
Street residence and Scott Street Park. Ms. Cupples noted that the distance
between the Scott Street residence and Scott Street Park was 165 feet. She
said the distance was accurate within two to three feet.
On cross-examination, Ms. Cupples agreed that the measurement
was not to the entrance of the park. Ms. Cupples stated that she did not
have any information showing that the Scott Street Park “was actually
adopted as a park” by the City of Dyersburg. She stated, however, that the
software used to generate the map indicated that the property was owned by
the City of Dyersburg.
The CI testified that he worked as a confidential informant for the
Dyersburg Police Department from June 2011 to October 2011. He
admitted that he had prior criminal convictions, and the most recent
conviction occurred in 1999. The CI agreed that he met with police officers
before each of the controlled buys from the [petitioner] on July 1 and July
5, 2011. The CI stated that the police officers provided him with money for
the purchases and fitted him with audio and video transmitters to monitor
and record the buys. He confirmed that he bought the cocaine from the
same person, the [petitioner], on both occasions.
The CI testified that he had known the [petitioner] “all [his] life” and
knew both his nickname, “Slim,” and his legal name. The CI stated that he
called the [petitioner] on July 1, 2011, and inquired whether the [petitioner]
was selling powder cocaine. He explained to the [petitioner] that he
intended to resell the cocaine to another buyer in an attempt to appear
“more believable.” The [petitioner] agreed to sell the CI one gram of
cocaine for $50. The [petitioner] arrived at the CI’s residence on Scott
Street driving a Thunderbird. The CI said the transaction was quick,
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approximately thirty seconds, in order to avoid detection. The CI stated
that he gave the [petitioner] the $50 buy money that the police officers had
given him in exchange for cocaine.
The State played the video recording of the transaction and the CI
narrated as the events occurred. The CI described the transaction as a
“typical” drug deal. The CI stated that, following the transaction, he drove
directly to where he was to meet with the officers. Once there, he handed
over the cocaine to the officers.
The CI testified that he purchased cocaine from the [petitioner] again
on July 5, 2011, as part of a controlled buy. He stated that the procedures
for preparing him for the buy were consistent with the procedures used on
July 1. The CI said that he once again called the [petitioner] and asked to
buy one gram of cocaine. The [petitioner] confirmed that he had cocaine
and agreed to sell one gram to the CI. When asked how the CI knew where
to meet the [petitioner] for the buy, the CI responded, “it’s the same spot
we usually meet at. I always meet in the same spot.” The CI said that he
waited almost an hour for the [petitioner] to arrive. He recalled that the
[petitioner] was circling the area trying to spot any police officers before
conducting the sale. This time the [petitioner]’s girlfriend was with the
[petitioner] although she did not participate in the buy. The CI recalled that
he handed the [petitioner] the $50 provided to him by the police, and the
[petitioner] gave the CI cocaine. The CI stated that he gave Officer
McDowell the cocaine that the [petitioner] had given him in exchange for
the $50.
On cross-examination, the CI agreed that he had asked the
[petitioner] for powder cocaine for the July 1, 2011 transaction but that the
[petitioner] brought him crack cocaine. The CI said that he did not “check”
to see if he received what he had requested, he merely turned it over to the
officers.
Brock Sain, a Tennessee Bureau of Investigation (“TBI”) forensic
scientist, testified as an expert in the field of drug identification. Special
Agent Sain stated that he analyzed the substance submitted from the July 1,
2011 controlled buy and concluded that the substance was 1.06 grams of
crack cocaine.
Shalandus Garrett, a TBI forensic scientist, testified as an expert in
the field of drug identification. Special Agent Garrett stated that she
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analyzed the substance submitted from the July 5, 2011 controlled buy and
the substance tested positive for cocaine and weighed .66 of a gram. She
stated that both cocaine and crack cocaine are Schedule II controlled
substances.
Based upon this evidence, the jury convicted the [petitioner] of two
counts of sale of over .5 gram of a Schedule II controlled substance within
a thousand feet of a public park.
Jerry Edward Lanier, 2015 WL 3397627, at *1-4.
The petitioner filed a pro se petition for post-conviction relief on September 22,
2016, alleging trial counsel’s representation was constitutionally ineffective. The
petitioner argued trial counsel failed to object to prosecutorial misconduct, failed to file
appropriate pretrial motions, failed to communicate plea offers and advise the petitioner
of the consequences of pleading guilty or going to trial, and failed to interview relevant
witnesses. The post-conviction court appointed counsel on September 27, 2016, and held
an evidentiary hearing on February 14, 2017.
During the post-conviction hearing, the petitioner outlined three instances of
prosecutorial misconduct counsel should have objected to at trial. First, the petitioner
explained, the State referred to the CI by the last name “Schaeffer” instead of his actual
last name, “Roberts.” The petitioner argued using this name constituted prosecutorial
misconduct because “Schaeffer” was the last name of the CI’s grandfather, a well-known
constable in the area. Therefore, the State improperly intonated the CI was as credible as
his well-liked grandfather. Second, the petitioner claimed the State improperly asked the
CI leading questions during direct examination. Finally, the petitioner challenged the
State’s closing arguments wherein the State claimed the petitioner was “caught red-
handed,” despite the video failing to show an exchange of drugs. The petitioner stated
trial counsel was ineffective for not objecting to each alleged infraction.
The petitioner then enumerated the pretrial motions he instructed trial counsel to
file. The petitioner explained trial counsel should have moved to exclude: the video,
because it had been doctored; the audio recordings of phone calls, because neither voice
on the call was the petitioner’s; and the money used in the controlled buy, because “there
was no chain of custody.” Additionally, the petitioner asserted trial counsel should have
challenged the introduction of the drugs because he was arrested for the sale of powdered
cocaine, but the State introduced crack cocaine at trial.
The petitioner also alleged trial counsel was deficient for failing to interview and
call several witnesses who would have supported the petitioner’s theory that the video
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evidence had been doctored. The petitioner based his theory on the fact that his vehicle
was present in the video despite it having been impounded at the time. These witnesses
included Mr. Taylor, a neighbor of the CI, and “Michelle” from Johnson Motors, an auto
dealership, both of whom could have identified the petitioner’s vehicle. Additionally, the
petitioner argued trial counsel should have subpoenaed Tennessee Department of
Transportation records that indicated his car had been seized. The petitioner further
claimed trial counsel should have interviewed members of the Drug Task Force and the
CI who, the petitioner believed, fabricated evidence. The petitioner did not call these
witnesses to testify at the post-conviction hearing.
Additionally, the petitioner noted trial counsel failed to strike a juror he believed
was biased, though the petitioner admitted he did not include this in his petition for post-
conviction relief. Finally, the petitioner conceded trial counsel conveyed all of the plea
deals offered by the State.
Trial counsel then testified regarding his representation of the petitioner. Trial
counsel stated he has practiced criminal law for over twenty-one years participating in
several drug trials. Over the course of trial counsel’s representation of the petitioner, they
met about ten times. During the first meeting, they watched the video depicting the drug
sale. The petitioner claimed he was not the individual shown in the video; however, trial
counsel stated he did not “think any other human being on the planet other than [the
petitioner] would ever believe that when they looked at the video.”
Trial counsel testified he communicated every plea offer made by the State,
informed the petitioner the State was seeking to enhance his sentence, and advised the
petitioner that his best chance to minimize jail time was to accept the State’s plea offer.
However, the petitioner maintained his innocence and refused to consider any plea offers.
During one particularly “contentious” meeting, trial counsel presented the petitioner with
paper copies of the plea agreement and a written explanation of possible trial outcomes.
According to trial counsel, the petitioner crumpled the papers and refused to discuss
anything more with him. The next day, September 30, 2013, trial counsel mailed the
petitioner a letter outlining his frustration with the petitioner’s intransigence and attached
additional copies of both aforementioned documents. The State introduced the letter into
evidence during the post-conviction hearing. Trial counsel filed a motion to withdraw,
but it was denied by the trial court.
Trial counsel testified the petitioner did not disclose the names of the neighbors or
individuals at the auto dealership he wanted to call as witnesses at trial, because the
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petitioner did not want to be a “snitch.”1 When asked about the alleged discrepancy
between whether the petitioner sold powered cocaine or crack cocaine, trial counsel
recalled that one of the police records appeared to mistakenly indicate the substance
recovered from the CI was powdered cocaine. Trial counsel, however, elaborated that
there was no discrepancy in the CI’s testimony at trial concerning what substance was
delivered.
Trial counsel’s trial strategy was limited to impeaching the CI and highlighting the
length of time the CI was alone in front of his apartment, implying the CI could have
retrieved the drugs in question from his own house. Trial counsel noted the petitioner did
provide useful information about the CI’s prior criminal drug history, which he
researched and incorporated into his trial strategy. He conceded the jury “obviously” did
not find his impeachment sufficient to create reasonable doubt as to the petitioner’s
involvement in the crimes.
Finally, trial counsel stated he did not believe the State committed prosecutorial
misconduct noting, if it had, he would have immediately objected. Trial counsel also
noted that he represented the petitioner during the motion for a new trial and on direct
appeal.
In addition to finding “no proof of prosecutorial misconduct,” the post-conviction
court also stated:
It’s clear that [the petitioner] was advised on more than one occasion
in person and in writing of the danger of proceeding with trial and [the]
exposure that he faced. It appears to the [c]ourt . . . [the petitioner] simply
shut things down. [The petitioner] didn’t do anything to help [himself].
That’s been actually the procedure that [he has] [followed] throughout
[these] proceedings. I think under the circumstances under the facts of the
case that we have, [trial counsel] did everything he could to defend [him].
[The petitioner] did nothing to try to help [trial counsel] defend [him]. It
may have been an impossible task with the information that they had on the
video and the audios. The [c]ourt does not feel that there’s any defective
performance by counsel and that there is no evidence of any prejudice even
if there was. So [the petitioner’s] motion is denied. [The petitioner’s]
petition is denied.
1
Trial counsel further elaborated that the petitioner appeared to be operating under the belief that
the district attorney and trial counsel were in collusion. Trial counsel testified he attempted to disabuse
petitioner of this impression both orally and in the September 30th letter.
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This timely appeal followed.
Analysis
On appeal, the petitioner challenges trial counsel’s representation on two grounds.
First, the petitioner argues trial counsel did not adequately prepare for trial because he did
not investigate potential witnesses in support of his defense. Secondly, the petitioner
asserts trial counsel failed to object to prosecutorial misconduct throughout the trial. The
State argues trial counsel prepared as well as possible given the petitioner’s
intransigence, and contends the State did not engage in prosecutorial misconduct. Based
on our review of the record and relevant authorities, we agree with the State.
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden
of proving his factual allegations by clear and convincing evidence. See Tenn. Code
Ann. § 40-30-110(f). “‘Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).
Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. Tidwell v. State, 922 S.W.2d 497, 500
(Tenn. 1996). Where appellate review involves purely factual issues, the appellate court
should not reweigh or reevaluate the evidence. Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997). However, review of a trial court’s application of the law to the facts of the
case is de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v.
State, 6 S.W.3d 453, 461 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).
The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
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to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
With regard to the standard, our Supreme Court has held:
[T]he assistance of counsel required under the Sixth Amendment is
counsel reasonably likely to render and rendering reasonably effective
assistance. It is a violation of this standard for defense counsel to deprive a
criminal defendant of a substantial defense by his own ineffectiveness or
incompetence . . . . Defense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal law and must
conscientiously protect his client’s interest, undeflected by conflicting
considerations.
Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35). When reviewing trial counsel’s performance, this Court “must make every
effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that
time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at
689).
To satisfy the prejudice prong of the test, the petitioner “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
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Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). In
order to prevail, the deficient performance must have been of such magnitude that the
petitioner was deprived of a fair trial and that the reliability of the outcome was called
into question. Finch, 226 S.W.3d at 316.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”). Additionally, the petitioner must provide any witnesses that would
have likely affected the outcome of the trial. Taylor v. State, 443 S.W.3d 80, 84-85
(Tenn. 2014). “[I]t is axiomatic that ‘[w]hen a petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support of his defense, these witnesses
should be presented by the petitioner at the evidentiary hearing.’” Taylor, 443 S.W.3d at
84-85; see also Cauthern, 145 S.W.3d at 616.
Here, the petitioner alleges trial counsel failed to call several witnesses at trial to
aid in his defense. Specifically the petitioner claims trial counsel should have called the
CI’s neighbor, an individual from an auto dealership, officers on the Drug Task force,
and should have subpoenaed certain records from the Tennessee Department of
Transportation. However, the petitioner failed to present any of these witnesses or the
records during the post-conviction hearing. Taylor, 443 S.W.3d at 84-85. Additionally,
trial counsel’s testimony regarding petitioner’s refusal to be a “snitch” and counsel’s
letter to the petitioner both support the post-conviction court’s conclusion that the
petitioner refused to disclose these witnesses and he “simply shut things down.” Despite
not explicitly doing so, the post-conviction court accredited trial counsel’s testimony
indicating the petitioner stood in the way of his own defense. See Donald L. Seiber v.
State, No. E2010-00285-CCA-R3-PC, 2011 WL 1484173, at *5 (Tenn. Crim. App. Apr.
19, 2011) (determining that, despite not explicitly accrediting trial counsel’s testimony, it
was “implicit” in the post-conviction court’s finding they had done so). Therefore,
petitioner has failed to meet his burden of proof as it relates to trial counsel’s alleged
failure to call witnesses at trial, and the record supports the post-conviction court’s
determination that trial counsel provided effective representation. Taylor, 443 S.W.3d at
84-85. The petitioner is not entitled to relief on this issue.
The petitioner next argues trial counsel failed to object to prosecutorial
misconduct throughout the trial. Specifically, the petitioner highlights the State referring
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to the CI by his grandfather’s last name in order to bolster the CI’s credibility.2 We
disagree that this action constituted prosecutorial misconduct. First, the petitioner
produced no evidence the State’s actions were improperly motivated. Second, even if the
State’s use of the CI’s grandfather’s last name somehow bolstered the CI’s credibility,
trial counsel introduced evidence of the CI’s prior criminal convictions, in accordance
with the petitioner’s instructions. See Jerry Edward Lanier, 2015 WL 3397627, at *6
(“The [petitioner] thoroughly cross-examined the CI at trial and the jury heard about the
CI’s criminal history . . . . The jury . . . found the CI’s account of the transactions more
credible than the [petitioner’s] theory of the case.”). Trial counsel additionally stated, in
his professional experience, nothing in the State’s case constituted prosecutorial
misconduct. Absent testimony from trial counsel or evidence indicating his decision was
not tactical, “we cannot determine that trial counsel provided anything other than
effective assistance of counsel.” Gregory Robinson v. State, No. W2011-00967-CCA-
R3-PD, 2013 WL 1149761, at *79 (Tenn. Crim. App. Mar. 20, 2013) quoting (State v.
Leroy Sexton, No. M2004-03076-CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim. App.
Jan.12, 2007), perm. app. denied (Tenn. May 14, 2007)). Moreover, the post-conviction
court found “no proof of prosecutorial misconduct during the trial.” Based on our review
of the record, the petitioner failed to provide evidence that would preponderate against
the post-conviction court’s determination.
Furthermore, in light of the overwhelming evidence presented at trial, there is
nothing to support the inference that, had trial counsel objected, it would have affected
the trial’s outcome. See Curtis Cecil Wayne Bolton v. State, No. E2014-00559-CCA-R3-
PC, 2015 WL 4557754, at *18 (Tenn. Crim. App. July 29, 2015) (determining, as the
petitioner failed to establish any prejudice from trial counsel’s failure to object to closing
statements, he was not entitled to post-conviction relief). The State provided video
evidence and testimony from the CI that the petitioner engaged in the sale of crack
cocaine. As the petitioner has failed to provide evidence establishing prejudice or
deficient representation, he is not entitled to relief.
2
We note the petitioner only raises this single incident in his briefing despite testifying to other
alleged instances of misconduct at the post-conviction hearing. Therefore, we only address trial counsel’s
failure to object to the State using a different last name for the CI and deem the other grounds waived.
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Conclusion
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
____________________________________
J. ROSS DYER, JUDGE
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