Joshua L. Carter v. State of Tennessee

08/08/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 24, 2018 at Knoxville
JOSHUA L. CARTER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2011-D-3013, 2011-B-1648 Mark J. Fishburn, Judge
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No. M2017-02401-CCA-R3-PC
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Joshua L. Carter, Petitioner, was convicted in separate jury trials of sale of less than .5
grams of cocaine in a drug-free zone; possession with the intent to sell or deliver more
than .5 grams of cocaine in a drug-free zone; simple possession of marijuana; and
evading arrest in case number 2011-B-1648 and of voluntary manslaughter, attempted
especially aggravated robbery, and felony murder in case number 2011-D-3013.
Petitioner received a total effective sentence of forty years as a multiple offender in case
number 2011-B-1648 and received a life sentence in case number 2011-D-3013, to be
served consecutively to his forty-year sentence. These cases were consolidated on
appeal, and this court affirmed Petitioner’s convictions. Petitioner filed petitions for
post-conviction relief. The post-conviction court consolidated the petitions and denied
relief. On appeal, Petitioner asserts that: (1) trial counsel in case number 2011-D-3013
failed to call an alibi witness; (2) trial counsel in case numbers 2011-B-1648 and 2011-D-
3013 failed to properly investigate the cases; and (3) trial counsel in case number 2011-
B-1648 failed to withdraw. After a thorough review of the facts and applicable case law,
we affirm the post-conviction court’s denial of relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and J. ROSS DYER, JJ., joined.
Joseph L. Morrissey, Nashville, Tennessee, for the appellant, Joshua L. Carter.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Jan Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
This court set out the facts underlying case number 2011-B-1648 and in case
number 2011-D-3013 on direct appeal as the following:
I. Facts Related to Case [2011-B-]1648
Metro Nashville Police Detective Jeremy Smith testified that on
March 4, 2011, he was the undercover officer in a “buy-bust” narcotics
operation. He explained that a “buy-bust” operation involves an
undercover officer who purchases drugs, a “close-cover” team that surveils
the situation for the officer’s safety, and a “take-down” team that arrests the
drug dealer after the purchase. The undercover officer would wear a
listening device that transmitted audio to other members of the team but did
not record audio. Detective Smith testified that for the March 4, 2011
operation, he was posing as a drug user. He approached Purvis Edwards in
a tobacco store parking lot to ask for a lighter. Mr. Edwards entered
Detective Smith’s car, and Detective Smith asked Mr. Edwards whether he
had a “twenty” or could get him a “twenty.” Detective Smith explained
that a “twenty” was $20 worth of crack cocaine. Mr. Edwards responded
that he could take the detective to get the drugs but wanted to go to a
Money Gram store first. Prior to going to the Money Gram store, Mr.
Edwards called someone and told that person that he wanted two
“twenties.”
Detective Smith testified that he took Mr. Edwards to the Money
Gram store, and when Mr. Edwards returned to Detective Smith’s car, he
made another telephone call, this time saying that he was on his way. Mr.
Edwards directed Detective Smith to the Cee Bee Food Store on Lafayette
Street and Charles E. Davis Boulevard. Detective Smith parked and gave
Mr. Edwards two $5 bills and one $10 bill, all of which had been
previously photocopied. Mr. Edwards walked towards the store and out of
Detective Smith’s sight. When Mr. Edwards returned to the car, he gave
back to Detective Smith the $20, saying that he could not make the drug
purchase “because the vice was out.” Detective Smith explained that meant
someone in the area had seen police officers. Mr. Edwards made another
telephone call, again asking for two “twenties,” as Detective Smith was
driving away from Cee Bee Food Store. Mr. Edwards directed Detective
Smith to return to the food store. Mr. Edwards took the previously-
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photocopied money from Detective Smith and walked to the front corner of
the store. Detective Smith testified that Mr. Edwards met a black male
wearing a black, long-sleeved shirt and a “gray puffy-like . . . jacket with
no sleeves.” Detective Smith said that an obstruction prevented him from
seeing their hands. The two men were together for approximately thirty
seconds, and then Mr. Edwards returned to Detective Smith’s car. Mr.
Edwards showed Detective Smith several loose white rocks in his hand,
which he then gave to the detective. Detective Smith testified that having a
small amount of drugs loose and held in a hand rather than in a bag was
typical because drug dealers would break off a piece of a larger rock of
crack cocaine to give it to the buyer. When he had the drugs in his hand,
Detective Smith gave a signal to other officers to begin the “take-down.”
He said that [Petitioner] ran towards the J.C. Napier housing project, where
he was taken into custody.
Detective Smith testified that in connection with the buy-bust
operation, the police collected a large rock of cocaine, several small rocks
of cocaine, and marijuana separated into small bags. Detective Smith
further testified that the police collected $215 in currency from [Petitioner],
including the two $5 bills and the one $10 bill that Detective Smith had
previously photographed and had given to Mr. Edwards.
On cross-examination, Detective Smith said that he did not
remember testifying in a January 2012 proceeding that he saw [Petitioner]
place something in Mr. Edwards’ hand. He stated that the January
statement was “true and correct” because it was closer to the date of the
operation. Detective Smith agreed that he did not give a description of
[Petitioner] to other officers and explained that other officers watching the
scene would have given that description. Detective Smith testified that he
did not see [Petitioner] throw anything on the ground before his arrest and
did not see his arrest. He said that one would not find drugs just lying on
the ground in that general area. Detective Smith could not remember
whether Mr. Edwards, after being arrested, asked where the person was
who had sold him the drugs.
On re-direct examination, Detective Smith clarified that he saw hand
movements between [Petitioner] and Mr. Edwards but that he did not see
the actual items being exchanged. Detective Smith testified that he was
familiar with the area where the buy-bust operation had occurred and had
conducted routine walking patrols around the J.C. Napier housing project.
He had never seen drugs lying on the ground.
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David Kline testified that he managed the mapping division at the
Metro Nashville Planning Department and that as part of his duties he
created 1,000 feet drug-free zones around certain properties. For purposes
of [Petitioner]’s trial, he had created a map showing Cameron Middle
School, the drug-free zone around the school, and Cee Bee Food Store. He
testified that he was familiar with Cameron Middle School on a personal
level because he tutored there twice weekly, including the time that the
buy-bust operation occurred; therefore, he knew that the middle school was
“an opening and functioning” public school.
Tennessee Bureau of Investigation (“TBI”) Special Agent forensic
scientist Cassandra Ann Franklin-Beavers testified that she weighed and
tested the substances given to her in relation to this case. Two substances
were cocaine base, also known as crack cocaine, one of which weighed
2.52 grams and the other 0.3 grams. The third substance was marijuana.
While Agent Franklin-Beavers did not testify about the weight of the
marijuana, her laboratory report, entered as an exhibit to the trial, indicated
that the marijuana weighed 4.5 grams.
Purvis Lee Edwards, an indicted co-defendant in this case, testified
that he had numerous prior convictions, including four misdemeanor theft
convictions, two felony forgery convictions, two misdemeanor fraudulent
use of a credit card convictions, and three possession of less than .5 grams
of cocaine convictions. He said that the drug and theft convictions were
related to his drug use. Mr. Edwards testified that in March 2011, he had
been living in a hotel after being released from incarceration. On the day in
question, his brother had sent him a Money Gram to help him pay for rent,
but Mr. Edwards did not have a way to get to the Money Gram store to
retrieve the money. He was walking to a nearby store when a white man in
a vehicle, Detective Smith, stopped him to ask if he knew where to get “D,”
which Mr. Edwards explained meant “dope.” Mr. Edwards responded
affirmatively and asked for a ride to the Money Gram store. Detective
Smith drove him to the Money Gram store and then back to Cee Bee Food
Store. Mr. Edwards testified that he wanted to simply pay Detective Smith
for the ride and leave but that the man reminded him about getting drugs.
Mr. Edwards said that he walked around the block, returned to Detective
Smith, and told him that there were no drugs because “vice was out.” Mr.
Edwards stated that he had not made a real effort to find any drugs at that
point but that he reconsidered when Detective Smith pointed out that he
would have already gotten the drugs he wanted if he had not taken Mr.
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Edwards to the Money Gram store. Mr. Edwards testified that he then
made a concerted effort to find drugs, so he called several people, including
[Petitioner]. When he asked [Petitioner] if he was in the area, [Petitioner]
responded that he was “right here.” Mr. Edwards testified that he met
[Petitioner] in front of the check cashing store directly next to Cee Bee
Food Store and that they walked together to the front of Cee Bee Food
Store. Mr. Edwards said that he asked [Petitioner] for two “dimes,” or two
$10 pieces of crack cocaine. Mr. Edwards testified that he and [Petitioner]
exchanged money for the drugs and that he returned to Detective Smith’s
vehicle. He gave Detective Smith all of the cocaine and was subsequently
arrested.
Mr. Edwards testified that the Thursday before [Petitioner]’s trial
began, the two men were in a holding cell awaiting a court date when
[Petitioner] told Mr. Edwards that he wanted him to give [Petitioner]’s
attorney a version of events with which Mr. Edwards disagreed. Mr.
Edwards said that [Petitioner] wrote down that he wanted Mr. Edwards to
say that he had given [Petitioner] the “marked” money in exchange for a
$20 bill and that Detective Smith had been parked on the side of the
building where he could not have seen their transaction. Mr. Edwards said
that he recalled Detective Smith being parked directly behind the men.
On cross-examination, Mr. Edwards testified that [Petitioner] had
written down the information for him; however, Mr. Edwards tore up the
paper and flushed it down a toilet. He said that he had a change of heart
and did not want to start a new life with a lie. Mr. Edwards agreed that he
gave [Petitioner] money and that [Petitioner] gave him drugs. Mr. Edwards
also confirmed that when both men were arrested, he asked the police
officers where the man was who had sold him the drugs and said that
[Petitioner] was not the man. Mr. Edwards stated that he was lying when
he said that to the police and that he “was actually laying a foundation for
[Petitioner] to build upon later because he was [Mr. Edwards’] drug dealer
at that time.”
Metro Nashville Police Detective Marcel Chalou testified that on
March 4, 2011, he was providing “close cover” for Detective Smith in the
buy-bust operation, meaning that he was in an unmarked car close to
Detective Smith. Detective Chalou said that he was parked in the Cee Bee
Food Store parking lot and watched Mr. Edwards approach [Petitioner]. He
testified that he saw a “hand-to-hand transaction” and described exactly
what he observed: “I s[aw] Mr. Edwards, his hands go as if he’s passing
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something to [Petitioner], then I s[aw] them, they’re looking down, I s[aw]
Mr. Edwards’ hand is out flat and [Petitioner], what I [saw] [wa]s him
placing something in Mr. Edwards’ hands.” Detective Chalou said that he
relayed [Petitioner]’s description to the rest of the team—“short male black,
blue jeans, black shirt, gray puffy vest.” After both [Petitioner] and Mr.
Edwards were taken into custody, Detective Chalou looked at both of their
telephones and saw that Mr. Edwards had called [Petitioner].
On cross-examination, Detective Chalou testified that he followed
[Petitioner] across Lafayette Street into the J.C. Napier housing project but
that he turned right instead of following directly behind [Petitioner] in an
attempt to intercept him. Detective Chalou said that he did not see
[Petitioner] discard anything. Detective Chalou further said that he had
seen drugs on the ground in that neighborhood but that there was
“[g]enerally . . . a reason why.” He stated that he had never “just randomly
come up, been walking down the street and found [a] bag of drugs.”
Detective Chalou could not recall citizens being in the immediate area of
[Petitioner]’s arrest but believed that some people were around the
buildings nearby.
Metro Nashville Police Detective Steven Jenkins testified that he
was on the “take-down” team involved in the March 4, 2011 buy-bust
operation that resulted in [Petitioner]’s arrest. He said that in his
experience, he had learned that oftentimes suspects would try to hide from
police in the housing projects. On March 4, he tried to position himself and
his partner, Detective Robert Young, for the likelihood of a foot pursuit.
He recalled hearing Detective Chalou’s description of [Petitioner] over the
radio. After receiving the description, Detective Young exited their vehicle
in an attempt to cut off [Petitioner]. Detective Jenkins said that he parked
the car and followed Detective Young. He saw [Petitioner] running down a
hill.
Detective Young first encountered [Petitioner], and [Petitioner]
attempted to reverse course. Detective Jenkins chased after him, and he
saw [Petitioner] throw a baggy. The baggy hit a brick wall and fell to the
ground. Detective Jenkins said that he was only three to four feet away
from [Petitioner] at that point and then took him into custody. Detective
Young recovered the bag soon thereafter. Detective Jenkins testified that
after he was arrested, [Petitioner] made a statement that he knew he should
not have been selling because he had seen “the white girl,” which Detective
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Jenkins interpreted to mean Detective Dills, a female detective on the take-
down team that day.
Detective Young corroborated Detective Jenkins’ testimony. He
added that the bag discarded by [Petitioner] contained crack cocaine and
marijuana. Detective Young searched [Petitioner] and found over $200 in
currency. Detective Young said that he was carrying a photocopy of the
buy money used in the operation and was able to confirm on the scene that
[Petitioner]’s currency included the bills used as buy money. On cross-
examination, Detective Young stated that he believed he and Detective
Jenkins exited the car at the same time. He was not sure whether
[Petitioner] had retrieved the bag from a pocket or whether it had been in
his hand.
After Detective Young’s testimony, the State rested its case-in-chief.
Thereafter, [Petitioner] moved for a judgment of acquittal on all counts.
The trial court granted the judgment of acquittal for the drug paraphernalia
count after the State conceded it had not presented proof to support that
charge. The trial court otherwise denied [Petitioner]’s motion. [Petitioner]
did not put on any proof. Subsequently, the jury convicted [Petitioner] of
the sale of less than .5 grams of cocaine in a drug-free zone, a Class B
felony; possession with the intent to sell or deliver more than .5 grams of
cocaine in a drug-free zone, a Class A felony; simple possession of
marijuana, a Class A misdemeanor; and evading arrest, a Class A
misdemeanor. The trial court found that [Petitioner] was a Range II,
multiple offender. It sentenced him to concurrent terms of forty years
(twenty-year mandatory minimum to serve) for the Class A felony; twenty
years (twelve-year mandatory minimum to serve) for the Class B felony;
and eleven months, twenty-nine days for each Class A misdemeanor.
....
III. Facts Related to Case [2011-D-]3013
Metro Nashville Police Officer Zachary Grunow testified that on
May 6, 2011, he responded to a shooting on Murfreesboro Road,
specifically in a parking lot of a law firm that was across the street from the
Out of Bounds Sports Bar. Officer Grunow said that the victim was already
deceased when he arrived and that the victim was lying between two
vehicles, a green Honda and a white Pontiac. Officer Grunow stated that
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the officers on the scene were securing the scene and interviewing
witnesses. For his part, he conducted a preliminary interview of Jay Artis.
On cross-examination, Officer Grunow testified that he arrived at the
scene between 2:00 and 3:00 a.m. He said that the parking lot was lit by
street lights but did not know whether the police had provided additional
lighting by the time a photograph of the scene was taken. Officer Grunow
testified that Mr. Artis gave him a description of the suspects and that his
report reflected that the description of one suspect was “a male black
approximately 5’7[”], wearing a white T-shirt with writing on it.” The
second suspect was described as “a male black approximately 5’9[”][,]
wearing a plain black T-shirt and a light blue hat.”
Jay Artis testified that on May 5, 2011, he and the victim, Jordan
Gardner, whom he had known for approximately one year, went to Out of
Bounds. Before they went to the club, they each obtained a one hundred
dollar bill that they wrapped around several one dollar bills, to make it
seem as if they had more money than they did. At the club, they sat in a
booth with two women. While he could not remember the name of either,
it is clear from other testimony that one of the women was Pamela Jenkins,
an indicted codefendant in this case. Mr. Artis recalled that he and the
victim stayed together all night but that Ms. Jenkins came and went. He
remembered that she made several telephone calls, but he said that he never
heard her telephone conversations. Mr. Artis testified that he and the
victim flashed their rolls of money at times. At closing time, the victim left
the club with Ms. Jenkins, and Mr. Artis followed them. Mr. Artis said that
the victim told him there was a woman outside for Mr. Artis to meet. Ms.
Jenkins told Mr. Artis that the woman was her sister, and other testimony
reveals that the woman was Jessica Rucker. Mr. Artis entered Ms.
Rucker’s car, and she drove across the street to the lot where Mr. Artis and
the victim had parked. Ms. Jenkins and the victim walked to the lot. Mr.
Artis testified that the victim and Ms. Jenkins were talking outside of Ms.
Rucker’s car, and he was talking to Ms. Rucker inside her car. He said that
he then saw the victim struggling with a man. The victim and the man
moved to the back of the car during their struggle, and Mr. Artis opened the
door to get out and help the victim. He testified that the victim managed to
push the man away but that the man drew a gun and shot the victim twice.
Mr. Artis described the shooter as short and as having facial hair. At that
point, Mr. Artis said that he saw a second man behind the shooter wearing a
light blue cap. Mr. Artis said that later, the police showed him several sets
of photographs. He identified both the shooter and the second man in those
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photographs. For the shooter, Mr. Artis said that he was one hundred
percent sure of his identification in the photograph array, and he also
identified [Petitioner] from the witness stand as the shooter. For the second
man, Mr. Artis said that he was eighty percent sure of his identification in
the photograph array, and Mr. Artis identified appellant McLemore in the
courtroom as the second man involved in the shooting. Mr. Artis identified
the photograph array that the police showed to him and on which he had
circled the fifth photograph. He had also written on the array, “Number 5 is
the shooter 100%.” Mr. Artis also identified a second photograph array on
which he had circled the first photograph and written, “I feel 80% sure he
was behind the shooter.”
On cross-examination, Mr. Artis testified that the second person
never said anything. He agreed that it was possible the second person was
not involved. He said that both the shooter and the second person ran
behind a building after the victim was shot. Mr. Artis testified that the
second person was 5’ 10” or 5’11”. He said that the shooter’s facial hair
was a thin beard.
Metro Nashville Police Detective Johnny Ray Crumby, Jr., testified
that he responded to the scene of the shooting on May 6, 2011. While at
the scene, he was notified that the police had stopped a black male in a
white vehicle because a security guard had reported seeing a white vehicle
leaving the area of the shooting at a rapid speed. Detective Crumby talked
to the driver of the white vehicle who reported that he had driven away so
quickly because he heard the shooting and was scared. Detective Crumby
also had Mr. Artis view the driver to determine whether he was involved,
and Mr. Artis said that he was not. Detective Crumby testified that he
assisted Detective Andrew Injaychock in interviewing Mr. Artis at the
police station. Mr. Artis reported to them that the shooter was 5’6” or 5’7”
and that the second man was 5’1” or 5’11”. Detective Crumby testified that
during the investigation, he obtained [Petitioner]’s cellular telephone
records and looked at the numbers he called around the time of the
shooting. He also received a lead that a man named Shawn was involved,
so he began dialing numbers listed in [Petitioner]’s records to determine
whether any of those numbers belonged to Shawn. When he successfully
connected to appellant McLemore, he arranged to meet with him. He
confirmed that the number listed in [Petitioner]’s telephone belonged to
appellant McLemore.
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Jessica Rucker testified that Pamela Jenkins was her cousin. In May
2011, Ms. Jenkins and her children lived with Ms. Rucker. Ms. Rucker
recalled that she had been concerned at the time that Ms. Jenkins was
abusing prescription pain medication. Ms. Rucker testified that on May 5,
2011, she dropped Ms. Jenkins off at a store so that Ms. Jenkins could go to
a club with a friend. She then picked up Ms. Jenkins’ child from her
mother’s house and gave a ride to a friend called “Boo-Master” and his
girlfriend. Ms. Rucker said that Ms. Jenkins called her from the club and
told her about a man there with a lot of money. Ms. Rucker said that the
man was the victim. Ms. Jenkins asked Ms. Rucker to call Boo-Master
about coming to the club. Ms. Rucker testified that she interpreted the
conversation to mean that Ms. Jenkins wanted Boo-Master to come to the
club to rob the man. Ms. Rucker stated that she was unable to contact Boo-
Master. She said that Ms. Jenkins called her again close to the club’s
closing time so that Ms. Rucker could pick her up. Ms. Rucker testified
that she was driving Ms. Jenkins’ white Pontiac Grand Prix. Ms. Rucker
went to the club, and Ms. Jenkins exited the club with two men, one of
whom was the victim. Ms. Jenkins said that she did not know their names.
One man got into the car with her while the other one walked across the
street with Ms. Jenkins. Ms. Rucker said that she drove over to the lot
across the street because that was where she was told to park. She stated
that she had no intention of “hanging out” with the two men, but one of
them kept asking whether she was hungry, as in whether she wanted to eat
somewhere. Ms. Rucker said that the “robbery thing” happened then. She
testified that she saw a man in all black fighting with the victim, who was
fighting back. She said that she exited the car, heard gunshots, and ran to a
nearby restaurant. Ms. Rucker recalled that the man wearing all black said,
“‘Don’t you owe me something,’” when he walked up to the car.
Ms. Rucker testified that while she ran across the street, Ms. Jenkins
remained by the building at which they had parked. She recalled Ms.
Jenkins screaming during the attack but stated that afterwards, Ms. Jenkins
“really didn’t want to talk about it . . . it’s like it wasn’t affecting her like it
was affecting me.” Eventually, a friend took Ms. Jenkins and Ms. Rucker
home. Later, the police came to their home and took Ms. Jenkins to the
police station. A couple of days later, she was stopped by the police on the
interstate highway. Ms. Jenkins and Ms. Rucker’s sister were also in the
vehicle. They all went to the police precinct to speak with the police. She
testified that she told the police the same thing she had told the jury.
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On cross-examination, Ms. Rucker testified that she did not know
Boo-Master’s real name and that she had known him for several years. At
the time of the shooting, Boo-Master was not working. Ms. Rucker said
that Ms. Jenkins asked her to call Boo-Master and asked her to tell Boo-
Master to call Ms. Jenkins. She said that she did not see the person who
shot the victim exit a car and did not see where he went afterwards. Ms.
Rucker denied ever telling Ms. Jenkins not to talk to the police.
Metro Nashville Police Officer Rhonda Evans testified that she was
an officer with the identification section and that she helped process the
crime scene connected to this case. Officer Evans stated that she
photographed the scene using both the flash on her camera and “natural
light.” She explained that the flash allowed her camera to record the
necessary details of the scene but that the natural light captured the lighting
as it actually appeared without assistance of the flash. The natural light
photographs were admitted into evidence as collective exhibit seven, and
the flash photographs were admitted into evidence as collective exhibit
eight. Officer Evans and another crime scene technician processed various
items collected around the crime scene, the two vehicles that were next to
the victim’s body, and an area of Out of Bounds for fingerprints. She
explained that she processed the area at Out of Bounds because the police
had information that parties involved in the shooting had been at the club.
Officer Evans testified that a projectile was found and collected at the
scene. Metro Nashville Police Officer Sharon Tilley, also with the
identification section, corroborated Officer Evans’ testimony. In addition,
Officer Tilley photographed the victim’s body during the autopsy and
photographed the contents of the victim’s pockets. The victim had ten one-
dollar bills but no one-hundred dollar bills.
Pamela Jenkins testified that she had been indicted in the instant
case. She said that she had not received any kind of deal in exchange for
her testimony. Ms. Jenkins testified that she went to Out of Bounds with a
friend named Chris on May 5, 2011. She met Jay Artis and the victim on
the dance floor and then sat with them in a booth until closing time. She
recalled that they were both throwing money around while on the dance
floor and that she warned them about getting robbed. She said that the men
had a verbal argument with someone in the club but that they “squashed”
the argument by apologizing. Ms. Jenkins testified that [Petitioner] was
also in the club that evening, wearing an orange shirt. Ms. Jenkins
authenticated several photographs taken inside Out of Bounds that night by
a promotion company. In the photographs, she identified herself, sitting in
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a booth, and [Petitioner], standing in the background of the photographs. In
the photographs, [Petitioner] was wearing a short-sleeved, orange shirt over
a long-sleeved, light-colored shirt.
Ms. Jenkins further testified that she called her cousin Jessica
Rucker and asked her to contact Boo-Master. She explained that she
wanted Boo-Master to come to the club to rob Mr. Artis and the victim.
However, she never spoke with Boo-Master that night nor did she see him.
She said that the next time she talked to Ms. Rucker, she asked Ms. Rucker
to pick her up at the club. Ms. Jenkins testified that she was not expecting
Boo-Master to accompany Ms. Rucker because she had already talked to
[Petitioner] about robbing the victim and Mr. Artis. She stated that she told
[Petitioner] that the two men had a lot of money. He said that he would rob
them and instructed her to get the men outside of the club. Ms. Jenkins
testified that she left the club with the two men and that Mr. Artis got into
the car with Ms. Rucker. Ms. Rucker drove across the street, and Ms.
Jenkins walked across the street with the victim to where his car was
parked. She said that she and the victim were talking to Ms. Rucker when
[Petitioner] and [appellant] McLemore “came out of nowhere.” She
testified, “[Petitioner] had a gun on [the victim], and [appellant McLemore]
was wrestling with [Mr. Artis], and next thing I know they got to scuffling
over the gun[,] and the gun went off three times[,] and we took off.” Ms.
Jenkins recalled hearing [Petitioner] say, “‘[G]ive me what you owe me.’”
She said that the appellants got into a black car after the shooting.
Ms. Jenkins testified that immediately after the shooting, she called
[Petitioner], but he did not answer his telephone. The next time she talked
to him, he asked her to meet him “out south,” which she clarified as
meaning a specific housing project. He told her that he did not want to talk
over the telephone. Ms. Jenkins said that she spoke with the police that
day, May 6, but did not tell them who had robbed the victim. She stated
that she did not tell the truth because she was scared of the appellants. The
next day, she met [Petitioner]. Upon her request, he had a person drive her
to her car. Ms. Jenkins said that [Petitioner] instructed the person “to bring
[Ms. Jenkins] back to him.” When she got her car, she returned to
[Petitioner]’s location at a housing project. Appellant McLemore was also
present. Ms. Jenkins said that she asked [Petitioner] why he had shot the
victim. He did not answer her. She also asked whether he had gotten any
money from the victim, and he told her he did not. Ms. Jenkins testified
that [Petitioner] told her not to talk to anyone and threatened to shoot up her
mother’s house. However, the police stopped her on the interstate
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sometime later and took her in to the precinct. She said that she told the
police then that [Petitioner] and [appellant] McLemore were responsible for
the robbery. Ms. Jenkins admitted that she had misdemeanor convictions
for shoplifting and attempted false report.
On cross-examination, Ms. Jenkins testified that she told the police
that the person with whom the victim and Mr. Artis argued in the club was
wearing a white shirt and blue hat. She denied that the person with whom
they argued was Boo-Master. She said she had grown up with Boo-Master,
and she agreed that he robbed people. Ms. Jenkins said that she only tried
to call Boo-Master once that evening and that Ms. Rucker placed the call
using the three-way function on her telephone. Ms. Jenkins testified that
[Petitioner] was her height—5’3”. She said that when he shot the victim,
he was wearing the same thing he had been wearing in the club, and she
affirmed that he had been wearing an orange shirt. Ms. Jenkins denied
telling the police that the robbers exited a black Monte Carlo. She said that
when she was standing across the street after the shooting, she saw them
leave the area in a black Monte Carlo. Ms. Jenkins confirmed that she saw
appellant McLemore “scuffling” with Mr. Artis. She also confirmed that
Ms. Rucker told her not to talk to anyone about the event. Ms. Jenkins did
not remember giving an interview to an officer at the crime scene after the
shooting. She agreed that in her initial interview with detectives, she told
them that she did not know either man involved in the shooting and could
not describe them. She recalled telling the police that the victim had said
he had a “Chopper” in the trunk of his car. She did not remember telling
the police that the victim had grabbed her throat and threatened her. Ms.
Jenkins agreed that [Petitioner] had not yet threatened her when she gave
her initial interview. Ms. Jenkins agreed that [Petitioner] did not have any
facial hair. She confirmed that she heard three shots that night.
....
Metro Nashville Police Sergeant Andrew Injaychock testified that he
was a homicide detective at the time of the May 6, 2011 shooting of the
victim and that he was the lead investigator for the case. He responded to
the scene within a short time of the shooting. Sergeant Injaychock
described the area as being neither dimly lit nor well-lit. He testified that
one of the first things the investigators did was to interview the driver of a
white vehicle that had been seen leaving the area of the shooting, Joshua
Martin. Sergeant Injaychock said that Mr. Artis, in a “show-up”
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identification, stated that Mr. Martin did not participate in the
robbery/shooting.
Sergeant Injaychock testified that he had Detective Ball locate and
interview Pamela Jenkins, explaining that Ms. Jenkins had left the crime
scene. Sergeant Injaychock said that he obtained surveillance video from
inside Out of Bounds but that the quality of the video was poor and did not
show the club exits. There was no surveillance video outside the club, and
the law firm next to which the shooting occurred did not have a functioning
surveillance camera. Sergeant Injaychock also obtained still photographs
taken inside the club. After completing their survey of the crime scene,
Sergeant Injaychock and Detective Crumby interviewed Mr. Artis at the
police precinct.
Sergeant Injaychock said that he focused more on Ms. Jenkins after
interviewing Mr. Artis because she had not been honest in her interview
with Detective Ball. Sergeant Injaychock interviewed Ms. Jenkins again on
the Sunday following the shooting. Ms. Jenkins told him that she had been
with the victim and Mr. Artis in the club and that they had been “flashing”
money. She tried to call someone about robbing the victim and Mr. Artis.
When she was unsuccessful, she talked to [Petitioner], whom she said she
had known since elementary school. Ms. Jenkins also told Sergeant
Injaychock that “Boxhead Shawn” and [Petitioner] were responsible for
what happened in the parking lot. Thereafter, Sergeant Injaychock showed
a photograph array to Mr. Artis, and he identified [Petitioner] as the
shooter. Sergeant Injaychock also showed Mr. Artis a photograph array
that included the person Ms. Jenkins had originally tried to contact about
the robbery, Cornell Bradley, also known as Boo-Master. Mr. Artis did not
make an identification from that array.
Sergeant Injaychock testified that to identify “Boxhead Shawn,” the
police “cold-called” numbers listed in [Petitioner]’s telephone records until
someone answered that he was “Shawn.” The person agreed to an
interview, and subsequently, the police learned that his real name was
Adonis McLemore. Sergeant Injaychock testified that he asked appellant
McLemore whether he went by the nickname “Boxhead Shawn,” and
appellant McLemore agreed that he did. He also said that few people knew
that nickname. Sergeant Injaychock later showed Mr. Artis a photograph
array that included appellant McLemore’s photograph. Mr. Artis identified
appellant McLemore as the second person involved but stated that he was
only eighty percent sure. The police also showed Ms. Jenkins a photograph
- 14 -
array including appellant McLemore’s photograph, and she identified his
photograph as “Boxhead Shawn.” Sergeant Injaychock testified that he had
obtained the cellular telephone records of Jessica Rucker, Pamela Jenkins,
[Petitioner], and appellant McLemore. After learning that [Petitioner]
called Joshua Martin, the man who had been driving the white car after the
shooting, Sergeant Injaychock interviewed Mr. Martin again and also
showed Mr. Artis a photograph array including Mr. Martin. Thereafter, he
eliminated Mr. Martin as a suspect.
Sergeant Injaychock next testified about the information he gleaned
from the cellular telephone records collected in this case. As a point of
reference, he testified that the 9-1-1 call reporting the shooting occurred at
2:38:35 a.m. The records of Ms. Jenkins and Ms. Rucker reflect many calls
back and forth in the early morning hours of May 6. [Petitioner] and
[appellant] McLemore had six telephone exchanges between 2:04 a.m. and
2:15 a.m. Sergeant Injaychock did not testify about the cellular tower to
which [Petitioner]’s telephone connected during those calls; however, he
testified that appellant McLemore’s telephone connected to Sprint Tower
1479, 3.79 miles from the crime scene, at 2:04 a.m. From 2:05 a.m. until
2:10 a.m., appellant McLemore’s telephone used Sprint Tower 1387, 3.29
miles from the crime scene. At 2:15 a.m., appellant McLemore’s telephone
used Sprint Tower 1389, 1.5 miles from the crime scene. Maps showing
the locations of the towers were shown to the jury. Appellant McLemore
did not use his telephone again until 2:46 a.m. Ms. Jenkins first called
[Petitioner] at 2:16 a.m. During that call, her cellular telephone used
Cricket Tower 147, 0.17 miles from the crime scene. [Petitioner]’s
telephone used Cricket Tower 51, 1.78 miles from the crime scene.
[Petitioner] and Ms. Jenkins exchanged calls at 2:25 a.m., 2:32 a.m., and
2:33 a.m., and for all three calls, [Petitioner]’s and Ms. Jenkins’ telephones
were using Cricket Tower 147. At 2:38 a.m., [Petitioner] called Ms.
Jenkins. His telephone connected to Cricket Tower 51, 1.78 miles from the
crime scene. At 2:48, he called Ms. Jenkins again, and this time his
telephone connected to Cricket Tower 50, 3.25 miles from the crime scene.
Sergeant Injaychock testified that the records also reflected calls
between Ms. Jenkins and [Petitioner] and between [Petitioner] and
appellant McLemore later in the day on May 6. Also on May 6, [Petitioner]
called a number that he later called again from jail. The call from jail was
recorded, and the recording was played for the jury. In it, [Petitioner]
discussed with an unidentified woman about how the woman had given a
ride to Ms. Jenkins on May 6.
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He also suggested to the woman that she contact a private
investigator already working on [Petitioner]’s case to say that Ms. Jenkins
had told her how tall the shooter was, which both [Petitioner] and the
unidentified woman agreed was taller than [Petitioner]’s height. Sergeant
Injaychock testified that according to his driver’s license, [Petitioner] was
5’5”.
On cross-examination, Sergeant Injaychock agreed that cellular
telephone records could only show the location of the tower that a
telephone used, not the exact location of the telephone. He also agreed that
people had been celebrating Cinco de Mayo on May 5 and that the bars in
Nashville closed between 2:00 a.m. and 3:00 a.m. Sergeant Injaychock
said that the victim did not have a wallet nor did he have the roll of money
with which he had been seen earlier in the day. He agreed that it was
possible that the victim had literally thrown away his money while on the
dance floor in the club.
Following Sergeant Injaychock’s testimony, the State closed its
case-in-chief. [Petitioner] and [appellant] McLemore did not present any
proof. Subsequently, the jury convicted [Petitioner] of the lesser-included
offense of voluntary manslaughter, the lesser-included offense of attempted
especially aggravated robbery, and felony murder. The trial court merged
[Petitioner]’s voluntary manslaughter conviction into his felony murder
conviction. The court sentenced [Petitioner] as a Range II, multiple
offender to twenty years for the attempted especially aggravated robbery
conviction, concurrent with his life sentence for felony murder. The trial
court ordered that his effective life sentence be served consecutively to his
sentences in Case 1648.
State v. Joshua L. Carter and Adonis Lashawn McLemore, No. M2014-00767-CCA-R3-
CD, 2015 WL 3929635, at *3-12, 16-31 (Tenn. Crim. App. June 26, 2015) (internal
footnotes omitted) (some alterations in original), perm. app. denied (Tenn. Oct. 15,
2015). This court affirmed the judgments of the trial court in both of Petitioner’s cases.
Id. at *1. The Tennessee Supreme Court denied further review.
Post-conviction proceedings
Petitioner filed timely petitions for post-conviction relief in both case number
2011-B-1648 and 2011-D-3013. The post-conviction court consolidated the petitions and
ordered a bifurcated evidentiary hearing.
- 16 -
Case number 2011-B-1648
Petitioner testified that trial counsel met with him approximately six times for this
case. He asked trial counsel to file a motion to suppress Detective Smith’s testimony that
Detective Smith looked at co-defendant Edwards’ phone and saw that co-defendant
Edwards had called Petitioner and that Detective Smith observed Petitioner hand drugs to
co-defendant Edwards. Petitioner agreed that, at trial, trial counsel introduced
photographs of the offense location that depicted a wall which would have allegedly
blocked Detective Smith’s view of the offense. Petitioner asserted that he was prejudiced
by trial counsel’s failure to file a motion to suppress Detective Smith’s testimony that
Detective Smith looked at co-defendant Edwards’ phone and saw that co-defendant
Edwards had called Petitioner because Petitioner did not receive a call from co-defendant
Edwards. Petitioner testified that, on the day of trial, he learned that the State sought to
introduce statements in which Petitioner allegedly threatened co-defendant Edwards.1
Petitioner asserted that he was unaware that co-defendant Edwards would testify against
him until the trial began. Petitioner asked trial counsel to request a continuance so that he
and trial counsel could prepare to cross-examine co-defendant Edwards. However, trial
counsel did not file a motion to continue the trial.
Petitioner also alleged that trial counsel “breezed through” the discovery when he
visited Petitioner and did not properly investigate the case. Petitioner acknowledged that
trial counsel photographed the crime scene and stated that trial counsel did not actually
observe the buy money involved in this case. When the State offered a photocopy of the
buy money into evidence at trial, Petitioner asked trial counsel to challenge the admission
of the photocopy, but trial counsel did not. Petitioner also testified that trial counsel
should have hired an expert to rebut the State’s theory that the drugs found on the ground
were Petitioner’s. Petitioner asserted that the area where the offenses were committed
was a high-crime area, so it would not have been unusual for drugs to be on the ground.
On cross-examination, Petitioner asserted the serial numbers on the buy money
were not visible in the photocopy of the buy money. Petitioner believed that, if trial
counsel had observed the actual buy money, he could have asserted at trial that the buy
money was actually unmarked bills. Petitioner asserted that a motion to suppress
Detective Smith’s testimony that co-defendant Edwards’ phone had called Petitioner’s
phone would have been successful because Detective Smith “lied under oath” about his
observation of a hand-to-hand transaction between Petitioner and co-defendant Edwards.
1
As noted in this court’s opinion in Petitioner’s direct appeal, co-defendant Edwards testified at
trial that on “the Thursday before [Petitioner]’s trial began, the two men were in a holding cell awaiting a
court date when [Petitioner] told Mr. Edwards that he wanted him to give [Petitioner]’s attorney a version
of events with which Mr. Edwards disagreed.” Id. at *8.
- 17 -
On redirect examination, Petitioner asserted that he did not threaten co-defendant
Edwards in the holding cell before trial and, thus, was not aware of the possibility that co-
defendant Edwards would testify at trial. Petitioner testified that, if the trial court had
granted a continuance, he would have been able to give trial counsel his version of what
occurred in the holding cell. Petitioner noted that the letter that he allegedly gave to co-
defendant Edwards was never introduced into evidence at his trial. On recross-
examination, Petitioner stated that he asked trial counsel to withdraw from representing
him at his arraignment. He asked trial counsel to withdraw again when trial counsel was
appointed to represent him in case number 2011-D-3013. Petitioner testified that he filed
numerous complaints against trial counsel with the Board of Professional Responsibility
and the Consumer Assistance Program. The basis of Petitioner’s complaints was that
trial counsel informed him that he “would do a certain amount of time” if Petitioner pled
guilty to a prior drug charge, but Petitioner asserted that the case was not resolved the
way that trial counsel advised.
Trial counsel testified that he had practiced law for over twenty years and that the
majority of his practice was criminal defense work. Trial counsel had represented
Petitioner prior to his representation in the current cases. He testified that he had no
issues with Petitioner during his prior representation. During his representation of
Petitioner in the current cases, he met with Petitioner numerous times. Trial counsel
stated that he conducted “a very thorough investigation of the drug case.” Trial counsel
visited the crime scene and photographed the area. He also discussed the discovery with
Petitioner. Trial counsel recalled that Petitioner informed him that the law enforcement
officer who allegedly observed a hand-to-hand transaction between Petitioner and co-
defendant Edwards could not have observed their interaction through a wall. However,
during trial counsel’s cross-examination of the officer, the officer testified that he clearly
observed the transaction. Thus, trial counsel did not believe that hiring an expert to take
photographs of the crime scene would have been beneficial to Petitioner’s case.
Trial counsel stated that, either on the morning of trial or a few days before trial,
the State informed him that Petitioner “had made some threatening remarks” to co-
defendant Edwards in writing. On the morning of trial, co-defendant Edwards was not
sitting at the counsel table with trial counsel and Petitioner, so trial counsel informed
Petitioner that co-defendant Edwards might testify for the State. Trial counsel explained
that he had previously discussed with Petitioner the possibility that co-defendant Edwards
might become a State witness. Trial counsel stated that he did not ask the trial court for a
continuance after learning that co-defendant Edwards was going to testify for the State
because he “[d]idn’t see any reason for one.”
Trial counsel testified that the State offered a global plea to resolve both cases
with Petitioner receiving a sentence of forty years. Petitioner rejected this offer. Trial
- 18 -
counsel stated that he discussed possible defenses and strategies on how to “approach the
witnesses” with Petitioner. Trial counsel’s strategy was to “cross-examine the detective
who [Petitioner] claimed was giving testimony about something that he could not
possibly have envisioned” and to discuss “the fact that it was a high crime rate area.”
Trial counsel testified that he:
cross-examined the police officer about it being a high crime area, th[e] fact
there are drug deals all over happening all the time, and he said, “Well, no,
I’ve never just been walking around over there and found a bag of dope on
the ground,” he said “I do find some paraphernalia from time to time, I’ve
never just found a bag of dope laying around.”
Trial counsel explained that he did not file a motion to suppress Detective Smith’s
statement about co-defendant Edwards’ phone calling Petitioner’s phone because he did
not have any legal basis for suppression. Trial counsel did not recall that Petitioner asked
him to withdraw from either case. He stated that it was his practice to file a motion to
withdraw if a client was unhappy with his representation and that he did not file a motion
to withdraw in either of the current cases.
On cross-examination, trial counsel stated that he “probably” investigated co-
defendant Edwards’ criminal history. Trial counsel admitted that he did not investigate
whether any other inmate observed the letter that Petitioner allegedly gave to co-
defendant Edwards. Trial counsel attempted to impeach co-defendant Edwards, who
admitted that he had a prior criminal history. Trial counsel discussed the State’s
discovery with Petitioner in detail and explained the State’s case against him. Trial
counsel agreed that he did not examine the actual marked bills used as buy money. Trial
counsel identified several letters that he had previously written to the Board of
Professional Responsibility in response to several of Petitioner’s complaints in 2007 and
2008. However, trial counsel again stated that he did not recall that Petitioner asked him
to withdraw from either of the current cases.
Case number 2011-D-3013
Petitioner testified that he informed trial counsel that Ms. Jenkins was not a
credible witness. Petitioner noted that, on cross-examination, Ms. Jenkins testified that
she had not received a plea offer from the State in exchange for her testimony against
Petitioner. However, Petitioner later learned that Ms. Jenkins received a sentence of ten
years. Petitioner also asserted that trial counsel failed to investigate a potential witness
named Tabitha.2 Petitioner informed trial counsel that he “left the club, went to the
2
Tabitha’s last name is not included in the record.
- 19 -
Waffle House, then stopped by [Tabitha’s] house[,]” but trial counsel did not verify this
information.
Petitioner stated that he wanted trial counsel to show the video surveillance from
the Out of Bounds club from the night of the offenses to the jury. Petitioner received the
video in discovery, but trial counsel informed him that the video was not admissible
unless Petitioner testified at trial. The video only depicts the interior of the club.
Petitioner asked trial counsel to investigate if the club had any video surveillance of the
parking lot, but trial counsel said it was not available. Petitioner wanted trial counsel to
cross-examine Ms. Jenkins about the fact that she called Petitioner to purchase drugs.
However, in a jury-out hearing, the trial court ruled that the testimony was inadmissible.
Petitioner claimed that he went to a Waffle House restaurant and ordered food
after he left the club on the night of the offenses. While he was eating, he observed “a
whole bunch of police cars flying up Murfreesboro Road toward the club.” Trial counsel
did not attempt to preserve any surveillance footage from the Waffle House that
Petitioner visited on the night of the offenses and did not investigate the employee
records of the Waffle House to find an employee who could corroborate the fact that
Petitioner ate at that location on the night of the offenses. Petitioner also asserted that
trial counsel failed to obtain transcripts of interviews of witnesses, including Ms. Jenkins.
Petitioner asserted that he was prejudiced by trial counsel’s failure to obtain the transcript
of Ms. Jenkins’ interview because she gave inconsistent statements, and trial counsel was
unable to effectively cross-examine her regarding her role in the robbery and murder and
her plea agreement with the State. Petitioner also stated that he wanted trial counsel to
hire an expert on “phone records and phone towers” because the State offered testimony
regarding Petitioner’s location based on cell phone “pings.” Trial counsel did not retain
such an expert.
On cross-examination, Petitioner asserted that Tabitha’s testimony would have
been beneficial for his case because the witnesses to the offenses described an offender
whose appearance and demeanor differed from Petitioner’s. Petitioner also argued that
the surveillance video from the club would have “cleared [his] name” because
Petitioner’s appearance in the club differed from the description of the offender that
witnesses gave to law enforcement. On redirect examination, Petitioner explained that he
wanted trial counsel to seek the admission of the surveillance video from inside the club
because the video depicted an argument between the victim and some other individuals.
Trial counsel did not investigate who these other individuals might have been.
Trial counsel testified that he met with Petitioner numerous times during his
representation of Petitioner for this case and viewed the surveillance video from the club.
He also hired an investigator to assist with the case. Trial counsel testified that he did not
- 20 -
seek to admit the surveillance video from the interior of the club because the video does
not depict Petitioner during the altercation between the victim and other individuals.
Regardless, the State played the video at trial.
Trial counsel testified that Petitioner never asked him or his investigator to
investigate an alibi witness. Trial counsel stated that, if he had been aware of a Waffle
House employee that could have been an alibi for Petitioner, he would have investigated
the witness. Trial counsel recalled that Petitioner “mentioned a girl whose house he was
at before he went there and he put on the orange shirt, and this girl . . . would have
testified that when he left her house he had on an orange shirt.” Trial counsel noted that
Ms. Jenkins testified at trial that Petitioner was wearing an orange shirt, so he “didn’t see
any point in trying to call” the witness.
Trial counsel stated that calling an expert on cell phone towers would not have
benefitted Petitioner’s case because the expert would have testified similarly to the
State’s expert. Regarding the transcript of Ms. Jenkins’ interview, trial counsel stated
that he obtained the police report so he was aware of the substance of her trial testimony.
Trial counsel noted that he also had the audio recording of Ms. Jenkins’ statement. Trial
counsel testified that he did not cross-examine Ms. Jenkins’ about inconsistent statements
because “[s]he testified essentially at trial to what [was] in her statement[.]”
On cross-examination, trial counsel agreed that, at trial, he did not argue that Ms.
Jenkins contacted Petitioner to purchase drugs. Trial counsel went to the club to examine
the crime scene, and his investigator went to the law office where the robbery and murder
occurred to determine whether the law office had surveillance video of the offenses.
Shannon Burroughs testified that, in May 2011, he worked as a cook at Waffle
House. Mr. Burroughs knew Petitioner as a regular customer at Waffle House. Mr.
Burroughs recalled that, on one occasion, Petitioner came to the restaurant early in the
morning and ordered his usual food order. He recalled speaking to one of the servers and
Petitioner about police driving down Murfreesboro Road. On cross-examination, Mr.
Burroughs clarified that he remembered this interaction with Petitioner as occurring
“[b]ack in 2011” but that he could not remember the date or the exact time that Petitioner
came into the Waffle House.
Roger Clemons testified that he assisted trial counsel with investigating
Petitioner’s case. He agreed that he met with Petitioner three times while Petitioner was
incarcerated prior to trial. Mr. Clemons stated that, if a client alleged that they had an
alibi for the time of the offense, he would “make every effort” to contact the alibi
witness. He did not recall that Petitioner mentioned an alibi witness. Mr. Clemons
acknowledged that his file on his investigation for Petitioner’s case had been destroyed
- 21 -
by arson. Mr. Clemons stated that, if Petitioner had informed him that he was eating at
Waffle House when the offenses occurred, he would have “asked [Petitioner] if he knew
the names of those individuals, what their positions were, whether they were a server, or
a cook, or a manager, and [Mr. Clemons] would have gone to the location and tried to
speak with them[.]” Mr. Clemons did not investigate any Waffle House employees for
Petitioner’s case. On cross-examination, Mr. Clemons recalled that trial counsel asked
him to visit the law office where the robbery and murder occurred to “check for the
lighting at night” and to speak with employees at the law office “to find out if they had
any operational cameras or any witnesses that might have known anything about it.”
In an order filed on December 4, 2017, the post-conviction court denied relief.
The post-conviction court found that “[t]rial counsel was not told about a possible alibi
prior to the murder trial. He was told about a potential witness who could identify what
Petitioner had been wearing that night.” The post-conviction court also found that
Petitioner “was in that Waffle House at some point on the night of May 6, 2011.” The
post-conviction court concluded that “[t]here was no evidence presented that these
missing alibi witnesses’ testimony would have affected the outcome of this case.”
Regarding the surveillance video from the club, the post-conviction court noted that “the
shooting took place in the parking lot of the law office next door” and that trial counsel
“asked the investigator to ask the law office if they had a camera in their parking lot.”
Thus, the post-conviction court concluded that “[t]here was no evidence presented that
videotaped evidence of the area of the shooting ever existed in the first place.” The post-
conviction court found that Petitioner “stated no legal basis” for his argument that trial
counsel should have tried to suppress Petitioner’s cell phone records. The post-
conviction court also found that trial counsel “did not file a motion to suppress the phone
records as he did not see any legal basis for that motion.” The post-conviction court
concluded that this issue had no merit.
Regarding trial counsel’s failure to obtain an expert on cell phone location data,
the post-conviction court found that Petitioner “offered no evidence to support a finding
of deficiency or how the outcome of this case would have been different had an expert
been used.” The post-conviction court found that trial counsel “warned Petitioner that his
codefendant may testify against him, and . . . he did not seek a continuance because he
did not feel it was needed.” The post-conviction court also found that trial counsel
reviewed Ms. Jenkins’ prior statements and “felt . . . prepared to cross[-]examine her at
trial.” The post-conviction court concluded that trial counsel was not deficient in his
cross-examination of co-defendant Edwards or Ms. Jenkins.
Petitioner now timely appeals the post-conviction court’s denial of relief.
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II. Analysis
In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound
by the post-conviction court’s factual findings unless the evidence preponderates against
such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing
the post-conviction court’s factual findings, this court does not reweigh the evidence or
substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). 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].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579);
see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and
application of the law to factual findings are reviewed de novo with no presumption of
correctness. Kendrick, 454 S.W.3d at 457.
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s 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.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).
As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
- 23 -
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.
Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
Failure to call alibi witness
Petitioner asserts that, in case number 2011-D-3013, trial counsel failed to call Mr.
Burroughs to testify at trial as an alibi witness. Petitioner contends that Mr. Burroughs
would have been a “material” witness at trial. The State argues that trial counsel
conducted a reasonable investigation and was unaware of Mr. Burroughs’ potential as an
alibi witness. The State also argues that Mr. Burroughs’ testimony would not have
affected the outcome of Petitioner’s trial because his testimony was “a non-specific and
nebulous recollection[.]”
At the post-conviction hearing, trial counsel testified that Petitioner never asked
him or his investigator to investigate an alibi witness. Trial counsel stated that, if he had
been aware of a Waffle House employee that could have been an alibi for Petitioner, he
would have investigated the witness. Mr. Burroughs testified that he worked as a cook at
Waffle House and knew Petitioner as a regular customer. Mr. Burroughs recalled that, on
one occasion, Petitioner came to the restaurant early in the morning and ordered his usual
food order. He recalled speaking to one of the servers and Petitioner about police driving
down Murfreesboro Road. On cross-examination, Mr. Burroughs clarified that he
remembered this interaction with Petitioner as occurring “[b]ack in 2011” but that he
could not remember the date or the exact time that Petitioner came into the Waffle House.
The post-conviction court found that “[t]rial counsel was not told about a possible alibi
prior to the murder trial. He was told about a potential witness who could identify what
Petitioner had been wearing that night.” The post-conviction court also found that
Petitioner “was in that Waffle House at some point on the night of May 6, 2011.” The
post-conviction court concluded that “[t]here was no evidence presented that these
missing alibi witnesses’ testimony would have affected the outcome of this case.”
- 24 -
We agree with the post-conviction court that Petitioner has not established that he
was prejudiced by trial counsel’s failure to discover and interview Mr. Burroughs. Mr.
Burroughs remembered serving Petitioner at Waffle House while the police drove past,
but he could not remember the exact date of that event. Based on his testimony at the
post-conviction hearing, Mr. Burroughs would not have been able to provide a solid alibi
for Petitioner. Petitioner is not entitled to relief on this ground.
Failure to properly investigate
Trial counsel has a duty to “conduct appropriate investigations, both factual and
legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
933. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999).
However, “when a defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691.
Case number 2011-B-1648
Petitioner contends that trial counsel was deficient for failing to request a
continuance and investigate Mr. Edwards after trial counsel and Petitioner learned that
Mr. Edwards would be testifying at trial. Petitioner also asserts that “trial counsel was
unfamiliar [with] discovery provided by the State, specifically as counsel failed to file a
single pre[-]trial motion specifically a motion to suppress [Petitioner]’s telephone records
which were acquired without a search warrant.”
“If a petitioner alleges that trial counsel rendered ineffective assistance of counsel
by failing to . . . file a motion to suppress . . . the petitioner is generally obliged to
present the witness or the other evidence at the post-conviction hearing in order to satisfy
the Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-
R3-PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013) (citing Pylant v. State,
263 S.W.3d 854, 869 (Tenn. 2008)), perm. app. denied (Tenn. Mar. 17, 2014).
Petitioner testified that, if the trial court had granted a continuance, he would have
been able to give trial counsel his version of what occurred in the holding cell. Trial
counsel had previously discussed the possibility that co-defendant Edwards might
become a State witness with Petitioner. Trial counsel stated that he did not ask the trial
court for a continuance after learning that co-defendant Edwards was going to testify for
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the State because he “[d]idn’t see any reason for one.” The post-conviction court found
that trial counsel “warned Petitioner that his codefendant may testify against him, and . . .
he did not seek a continuance because he did not feel it was needed.”
Regarding the motion to suppress, trial counsel explained that he did not file a
motion to suppress Detective Smith’s statement about co-defendant Edwards’ phone
calling Petitioner’s phone because he did not have any legal basis for suppression. The
post-conviction court found that Petitioner “stated no legal basis” for his argument that
trial counsel should have tried to suppress Petitioner’s cell phone records. The post-
conviction court also found that trial counsel “did not file a motion to suppress the phone
records as he did not see any legal basis for that motion.”
We conclude that trial counsel’s performance was not deficient for failing to
request a continuance after learning that Mr. Edwards was going to testify at Petitioner’s
trial in case number 2011-B-1648. As noted above, we will not second-guess a
reasonable trial strategy, and we will not grant relief based on a sound, yet ultimately
unsuccessful, tactical decision. Granderson, 197 S.W.3d 790. Trial counsel made a
reasonable trial decision to not file a motion for a continuance because he did not believe
that the motion was meritorious. We will not second-guess this decision, and Petitioner
is not entitled to relief on this ground. We also conclude that trial counsel’s performance
was not deficient for failing to file a motion to suppress Petitioner’s phone records. Trial
counsel made a tactical decision to not file a motion to suppress because the motion had
no legal basis. As the post-conviction court noted, Petitioner failed to present a legal
basis under which trial counsel could have filed the motion. Petitioner is also not entitled
to relief under this ground.
Case number 2011-D-3013
Petitioner contends that trial counsel’s investigation in this case was deficient
because trial counsel “failed to present obvious and pertinent theories of defense.” More
specifically, Petitioner asserts that he was prejudiced by trial counsel’s failure to
investigate Tabitha, “who could have testified to [Petitioner]’s demeanor shortly after the
time frame of the crime, his appearance, and his physical features at the time of the
incident.” Additionally, Petitioner contends that he was prejudiced by trial counsel’s
failure to investigate the video surveillance from the club and introduce the footage at
trial. He argues that trial counsel should have identified “individuals” who could have
been used to “cast doubt upon the State’s theory of the case.”
The State notes that Tabitha did not testify at the post-conviction hearing, and
thus, Petitioner cannot establish prejudice. Further, the State asserts that evidence of the
robbery and murder at the club “was already before the jury by virtue of Ms. Jenkins’
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testimony.” Thus, the State contends that “[t]rial counsel examined the video and made
the strategic decision that it was unnecessary to seek its introduction at trial because
Petitioner was not in the video and the altercation was not clearly shown.”
Petitioner asserted that Tabitha’s testimony would have been beneficial for his
case because the witnesses to the offenses described an offender whose appearance and
demeanor differed from Petitioner’s. Petitioner also argued that the surveillance video
from the club would have “cleared [his] name” because Petitioner’s appearance in the
club differed from the description of the offender that witnesses gave to law enforcement.
Trial counsel recalled that Petitioner “mentioned a girl whose house he was at before he
went there and he put on the orange shirt, and this girl . . . would have testified that when
he left her house he had on an orange shirt.” Trial counsel testified that he did not seek to
admit the surveillance video from the interior of the club because he “didn’t see any point
in it” because the video does not depict Petitioner during the altercation between the
victim and other individuals. However, the State played the video at trial. Regarding the
surveillance video from the club, the post-conviction court noted that “the shooting took
place in the parking lot of the law office next door” and that trial counsel “asked the
investigator to ask the law office if they had a camera in their parking lot.” Thus, the
post-conviction court concluded that “[t]here was no evidence presented that videotaped
evidence of the area of the shooting ever existed in the first place.”
We conclude that Petitioner has not established that he was prejudiced by trial
counsel’s failure to investigate Tabitha. In cases where a petitioner contends that trial
counsel failed to present a witness in support of the petitioner’s defense, the petitioner
must present such witness at the post-conviction hearing. Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990). Neither a trial nor an appellate judge can speculate as
to whether that witness’s testimony would have been favorable to the defense. Id.
Therefore, the petitioner must “produce a material witness who . . . would have testified
favorably in support of his defense if called [at trial]. Otherwise, the petitioner fails to
establish the prejudice requirement mandated by Strickland v. Washington.” Id. at 758.
Petitioner did not call Tabitha to testify at the post-conviction hearing, so we cannot
speculate as to whether Tabitha’s testimony would have been favorable to Petitioner. He
is not entitled to relief on this ground.
We also conclude that Petitioner has not established that he was prejudiced by trial
counsel’s failure to investigate the video surveillance from the club and introduce the
footage at trial. As trial counsel noted, the State presented the video surveillance from
the interior of the club to the jury. We agree with the post-conviction court that there was
no evidence that a surveillance video of the law office parking lot ever existed. Thus,
Petitioner cannot establish that any further investigation would have affected the result of
his trial. He is not entitled to relief on this issue.
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Failure to effectively cross-examine Ms. Jenkins and object to trial court’s ruling
Petitioner asserts that trial counsel failed to effectively argue that Ms. Jenkins
phone call with Petitioner referred to a drug transaction, not the robbery and murder. He
argues that “[b]y failing to object to the Court’s instructions to the witness to not
reference drugs, [trial counsel] in essence denied [Petitioner] a full and fair cross-
examination of the witness[.]” The State contends that “[n]othing in the record supports
Petitioner’s assertion that Ms. Jenkins only mentioned coordinating a robbery with
Petitioner after she was not allowed to testify about a drug buy.” The State also notes
that Petitioner has not identified a legal basis under which trial counsel could have
objected to the trial court’s ruling.
Trial counsel stated that he obtained the police report and the audio recording of
Ms. Jenkins’ statement, so he was aware of the substance of Ms. Jenkins’ trial testimony.
Trial counsel testified that he did not cross-examine Ms. Jenkins’ about her inconsistent
statements because “[s]he testified essentially at trial to what [was] in her statement[.]”
Trial counsel agreed that he did not argue that Ms. Jenkins contacted Petitioner to
purchase drugs. The post-conviction court found that trial counsel reviewed Ms. Jenkins’
prior statements and “felt . . . prepared to cross[-]examine her at trial.” The post-
conviction court concluded that trial counsel was not deficient in his cross-examination of
Ms. Jenkins.
We agree with the post-conviction court that trial counsel’s cross-examination of
Ms. Jenkins was not deficient. As the State notes, Petitioner has not identified a legal
basis for objecting to the trial court’s ruling that limited Ms. Jenkins’ testimony. Even if
trial counsel had objected to the trial court’s ruling and the trial court had issued a new
ruling, it is unlikely that Ms. Jenkins’ testimony would have altered the result of
Petitioner’s trial. At trial, Ms. Jenkins testified that she saw Petitioner point a gun at the
victim, and she heard gunshots. Providing an alternative theory for the phone call
exchange between Petitioner and Ms. Jenkins would not have negated the impact of this
testimony. Thus, we conclude that Petitioner is not entitled to relief on this ground.
Failure to withdraw as counsel
Lastly, Petitioner argues that he asked trial counsel to withdraw from his cases
because trial counsel had previously represented Petitioner on a drug case and Petitioner
felt that he could not trust trial counsel. The State notes that Petitioner failed to raise this
ground in his post-conviction petitions and has thus waived this ground of relief.
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It is a well-established rule that this court will not address post-conviction issues
that were not raised in the petition or addressed by the post-conviction court. Brown v.
State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996); State v. Smith, 814 S.W.2d 45, 49
(Tenn. 1991). Because Petitioner did not include this issue in either of his post-
conviction petitions, we conclude the issue is waived.
III. Conclusion
After a thorough review of the facts and applicable case law, we affirm the post-
conviction court’s denial of relief.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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