Ricardo Antonio Demling v. State of Tennessee

08/04/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 13, 2021 Session
RICARDO ANTONIO DEMLING v. STATE OF TENNESSEE
Appeal from the Circuit Court for Bedford County
No. 2016-CR-18229-PC M. Wyatt Burk, Judge
___________________________________
No. M2019-01822-CCA-R3-PC
___________________________________
The petitioner, Ricardo Antonio Demling, was convicted by a jury of theft of property
valued between $10,000 and $60,000, for his involvement in stealing two utility trailer
vehicles (UTVs), and sentenced to fifteen years as a Range III persistent offender to be
served consecutively to any unexpired sentences.1 He now appeals from the denial of post-
conviction relief claiming ineffective assistance of counsel based on the following grounds:
(1) upon receipt of the State’s amended discovery response containing a statement by the
petitioner and the name Christopher Brown, the alleged owner of a UTV, trial counsel’s
failure to move to dismiss the charge, failure to suppress the statement by the petitioner,
and failure to file a motion to continue the trial; (2) failure to interview and secure the
testimony of Christopher Brown; (3) failure to file a motion based on Brady v. Maryland,
373 U.S. 83 (1963), and State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), concerning
the alleged destruction of a dash cam recording of the instant traffic stop; (4) failure to file
a speedy trial motion to dismiss based on the sixty-seven month delay between the date of
the alleged crime and the date of the arrest; and (5) failure to file a motion to dismiss based
upon the sixteen month delay between the date of the arrest and the trial.2 Upon our review,
we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.
1
The Petitioner was tried jointly with his co-defendant, Marvin Devon Summers, the driver of the
stolen UTV, who was also convicted and sentenced to ten years’ imprisonment. State v. Marvin Devon
Summers, No. M2017-00033-CCA-R3-CD, 2018 WL 703095, at *1 (Tenn. Crim. App. Feb. 5, 2018), no
perm. to appeal filed.
2
We have rephrased and renumbered the petitioner’s issues for clarity. We also observe there were
several other issues raised in the petition and denied by the post-conviction court. As none of those issues
are included in this appeal, they are waived.
Gregory D. Judkins, Shelbyville, Tennessee, for the Petitioner, Ricardo Antonio Demling.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Following his conviction, the petitioner filed a direct appeal to this court challenging
generally the sufficiency of the evidence supporting his conviction. He also argued that his
sentence was excessive and asked this court to conduct a plain error review of “all
objections” and “all issues regarding venue and jurisdiction[.]” State v. Ricardo Antonio
Demling, No. M2017-00140-CCA-R3-CD, 2018 WL 618708 (Tenn. Crim. App. Jan. 30,
2018), perm. app. denied (Tenn. June 6, 2018). The proof at trial, as relevant here, is set
forth below:
Roger Dale Smith testified that he owned Smith Equipment in Bedford
County. Mr. Smith stated that, in 2009, Smith Equipment’s main business
was selling lawn mowers, lawn equipment, equipment parts, and utility
vehicles. Smith Equipment was an authorized dealer for Cub Cadet Utility
Vehicles. On September 27, 2009, Mr. Smith worked late at Smith
Equipment and left around 10:30 p.m. The next morning, Mr. Smith arrived
at his business around 7:30 a.m. and noticed that a yellow utility vehicle
owned by Smith Equipment that had been parked in front of the business was
missing. Mr. Smith testified that Smith Equipment purchased the utility
vehicle for $7,600 and that the retail value of the utility vehicle was between
$9,000 and $9,500. Mr. Smith and his employees checked the inventory of
the business and discovered that a second utility vehicle had been stolen. Mr.
Smith stated that the second utility vehicle “was parked on the back side of
the building where it was [ ] basically ... waiting to be serviced.” Mr. Smith
explained that a customer, Nathan Walker, owned the second utility vehicle,
a green and black utility vehicle with accessories. Mr. Walker did not give
anyone permission to remove his utility vehicle from the Smith Equipment
property. Mr. Smith testified that Mr. Walker purchased his utility vehicle
from Cub Cadet for $11,950 and that the utility vehicle retailed for between
$14,000 and $15,000. Mr. Smith explained that the utility vehicles required
keys to start and that Mr. Walker kept the key to his vehicle but that the key
to the other vehicle was inside Smith Equipment.
….
Mr. Smith testified that Smith Equipment filed a claim for the stolen utility
vehicles on its insurance policy and paid a $1,000 deductible. The insurance
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company reimbursed Smith Equipment for the cost of replacing Mr.
Walker’s utility vehicle. The insurance company later contacted Mr. Smith
to inform him that law enforcement had found the stolen utility vehicles,
which Mr. Smith turned over to the insurance company.
….
Trooper Willie Allison testified that he had worked for the Tennessee
Highway Patrol (“THP”) for approximately ten years. On September 28,
2009, Trooper Allison conducted a traffic stop in Clay County at 4:45 p.m.
Trooper Allison stopped “a greyish and pink Suburban” with a trailer
carrying a green utility vehicle and a yellow utility vehicle. He explained that
he stopped the Suburban because the trailer lights were not operating
correctly. As Trooper Allison approached the Suburban, he noticed that the
vehicle had expired “dealer tags.” Trooper Allison checked to see if the
dealer tag belonged to the Suburban, and he found that Bridgett Allison
owned the Suburban and that the dealer tag originated from a dealership in
Nashville. Trooper Allison testified that co-defendant Summers was driving
the vehicle and that the [petitioner] was in the passenger seat. Trooper
Allison separated the [petitioner] and co-defendant Summers and asked them
about the utility vehicles. Both individuals informed Trooper Allison that
they had been hired to transport the utility vehicles from Shelbyville to
Kentucky; however, they could not identify the individual who hired them to
transport the items or where in Kentucky they were supposed to transport the
vehicles. Trooper Allison noted that individuals who hauled vehicles for hire
needed special tags on their vehicle and trailer and that the [petitioner] and
co-defendant Summers did not have the required tags on their vehicle or their
trailer. Trooper Allison also stated that the [petitioner] and co-defendant
Summers did not have keys for the utility vehicles, bills of sale, or other proof
of ownership.
On cross-examination, Trooper Allison explained that the [petitioner] and
co-defendant Summers did not tell him that they had been hired to transport
the utility vehicles to Celina after the owner’s vehicle broke down in
Lebanon. Trooper Allison checked the traffic log and did not find any log
entry for a “motorist assist” for that day. Trooper Allison testified that he
arrested co-defendant Summers for driving on a revoked license and
transported him to the Clay County Jail. He was unsure of how the
[petitioner] was transported to the jail.
Demling, 2018 WL 618708, at *2.
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In affirming the conviction, this court highlighted the proof that showed the physical
descriptions and VINs of the UTVs on the petitioner’s trailer matched the description and
VINs of the UTVs stolen from Smith Equipment, and that Trooper Allison had stopped the
petitioner on the same day that Mr. Smith discovered the UTVs had been stolen from Smith
Equipment. Demling, 2018 WL 618708, at *4. We also determined that the petitioner had
waived his general invitation to this court to review “all objections” and “all issues
regarding venue and jurisdiction” because it was not supported by argument or citation to
the record. Id. at *6.
On March 27, 2019, the petitioner filed a pro se petition seeking post-conviction
relief based on thirty-two separate grounds. On April 5, 2019, the post-conviction court
entered a preliminary order on the petition and appointed post-conviction counsel. On June
3, 2019, the State filed a response denying all claims in the pro se petition and stating that
the grounds for relief relied upon by the petitioner “had been previously determined and/or
waived.” An amended petition, incorporating the pro se petition, was filed on August 1,
2019. On August 6, 2019, the State filed its response, again denying all of the petitioner’s
claims. On September 5, 2019, the post-conviction court conducted an evidentiary hearing
during which the petitioner, trial counsel, and trial counsel for co-defendant Summers
testified.
The petitioner denied he was guilty of the theft in this case. He agreed that he was
a passenger in the Suburban carrying the stolen UTVs on the day of the offense but denied
any knowledge the UTVs had been stolen. According to the petitioner, the Suburban they
were driving belonged to the niece of his co-defendant, Marvin Summers. At the time of
the stop, he thought he was towing equipment belonging to an individual named
Christopher (“Chris”) Brown. Earlier in the day, he had received a call from Christopher
Brown asking for assistance because his vehicle had broken down. The petitioner did not
have a truck to assist Brown, so the petitioner walked four houses down to co-defendant
Summers’ home, who agreed to drive the Suburban to assist Brown. When they arrived at
the location to meet Brown, they detached the trailer with the UTVs from Brown’s vehicle
to their Suburban and began to follow Brown to his home in Celina, Tennessee. Brown
was ahead of them, riding in a gold Maxima driven by his wife. About two hours later, the
petitioner and co-defendant Summers were stopped by Trooper Allison. When they were
stopped, Brown continued to drive and did not return until sometime later. Brown
eventually returned, but the trooper refused to allow him to take the UTVs because he did
not have documentation of ownership of the UTVs. Co-defendant Summers was arrested
for driving without a license, and the petitioner was “released to Christopher Brown.”
When Brown returned, Trooper Allison’s vehicle was behind Summers’ Suburban
and Brown’s vehicle was in front of Summers’ Suburban. Asked “if there was a dash
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camera, [Brown] would have been visible in the video[?],” the petitioner replied, “Yes,
sir.” The petitioner said the entire exchange between Trooper Allison and Brown would
have been captured on the dash cam video. The petitioner believed the dash cam video
was significant because it would have shown Brown claiming ownership of the UTVs and
that the petitioner had Brown’s permission to possess them. He never talked to Brown
again after the day of the offense, and he did not return to Celina until twenty-five days
later when he, along with Summers’ niece, got the Suburban out of the impound lot. The
petitioner said he did not hear about the UTVs again until he was arrested on May 12, 2015,
almost five and a half years later.
The petitioner agreed he was not indicted regarding the theft until March 21, 2016.
For the period between his arrest and indictment the petitioner had made bond and was
“going back and forth to court here.” He said that he met with trial counsel “[j]ust one
time.” He had explained the series of events to trial counsel and had given him Brown’s
name “early on” or within three months of trial counsel being appointed to his case. He
said trial counsel did not express any interest in trying to find Brown. Trial counsel
explained the discovery process to the petitioner, and the petitioner was aware he had filed
a discovery request. However, the State’s initial discovery response did not include the
name or address for Christopher Brown. Asked how the petitioner knew Brown, the
petitioner replied, “His wife worked a previous job with my kids’ mother.” The petitioner
did not have Brown’s address at the time of the post-conviction hearing.
The petitioner agreed that on September 7, a week before trial, the State amended
their discovery response to include a statement the petitioner considered to be
“detrimental” to the case. Trial counsel did not discuss how they could have responded to
the amendment or whether they could have filed a motion to dismiss based on the State’s
late-filed discovery. The petitioner stated that he was shown a “piece of paper that said I
left the scene – I mean that Christopher Brown picked me up from the jail. He showed me
that. I asked him where that came from. And he said the prosecution had that statement.
And I asked him where he got the statement from. He never could tell me.” Post-conviction
counsel then read into evidence the State’s amendment to discovery:
(As Read) If there is a trial in this case, the State intends to offer evidence,
an oral statement made by defendant in response to an interrogation to a
person then known to the defendant to be a law enforcement officer, the
substance of which is as follows: Both defendants were asked by Trooper
Allison about the UTVs and where they were headed with them. Each
defendant replied that they had picked the UTVs up in Shelbyville and were
paid to deliver them to a guy in Kentucky. The defendants were asked the
name of the individual in Shelbyville and Kentucky and neither defendant
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could provide names. Neither defendant mentioned having mechanical
problems earlier in the day on Interstate 40.
The petitioner agreed that if the above conversation had taken place, it would have
been captured on the dash cam video of Trooper Allison’s vehicle. The petitioner said that
he did not seek any continuances in the process of his case and that he told trial counsel he
wanted to bring his case to trial as quickly as possible. By the time of his trial, the petitioner
had no way of finding Brown. The petitioner also said trial counsel did not adequately
cross-examine the victim concerning the value of the UTVs. The petitioner did not believe
the property was appropriately valued because the victim “had the opportunity to recover
that property, [but] they chose to stay with what the insurance company gave them.”
According to the petitioner, the victim never stated how much he received from the
insurance company and trial counsel failed to ask him how he determined the value of the
trailer. The petitioner was concerned because trial counsel failed to make any objections
at all during his trial.
On cross-examination, the petitioner reluctantly agreed that on the day of trial, he
declined to testify stating, “I’ve had brain surgery twice since then. I can barely remember
my own name. I couldn’t spell my name right at that time.” The State pressed the petitioner
regarding the existence of the dash cam video, and the petitioner insisted that it existed
based on the testimony of Trooper Allison. The State clarified that based on Trooper
Allison’s trial testimony, the video was “taped over.” The petitioner agreed while Trooper
Allison may not have personally destroyed the video it was in fact destroyed after three
years. The petitioner reviewed the general sessions warrant for his arrest in this case which
reflected a “conditional forfeiture issued on 10/14/2015.” He agreed this meant his bond
had been forfeited and explained it may have been because he “got in trouble in another
state. . . . [n]ot because I got in trouble here[.]” The petitioner also agreed that he provided
a statement of what happened at the time of the offense in his pre-sentence report and
blamed his drug habit for the offense and did not include a claim of innocence. He did not
recall telling trial counsel he wanted to “put off” or “slow walk” his case because he was
on bond.
Trial counsel for the codefendant testified that he and trial counsel for the petitioner
met with the petitioner and codefendant Summers several times to discuss trial strategy.
Asked what the petitioner’s recollection of the events were, trial counsel for the
codefendant said, “[H]e had no recollection, Your Honor.” The petitioner told him on
several occasions that he could not help them because the petitioner could not remember
anything about the events on the day of the offense. Trial counsel for the codefendant said
there was never any mention of a Chris Brown; however, trial counsel did recall “somebody
had broke[n] down on the interstate.” He recalled at some point the State provided them
with the name Chris Brown, and he made unsuccessful inquiries into who this person was.
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Trial counsel for the codefendant was familiar with the video recording systems used by
law enforcement. He filed a motion to get the dash cam video in this case and determined
that “there wasn’t one.” He did not file a motion to dismiss for lack of a video because he
did not know what was on the video or if it would have been relevant.
Trial counsel for the petitioner testified that he represented the petitioner from
general sessions court to trial in this case. He filed a motion to dismiss based on a lack of
venue which was denied. He said the petitioner was unable to assist in the development of
the case because the petitioner “had a self-inflicted gunshot wound.” Trial counsel said the
first time he heard the petitioner’s version of the offense claiming Chris Brown was the
true owner of the stolen trailer was at the post-conviction hearing. Trial counsel agreed the
petitioner never mentioned Chris Brown during their preparation for trial. Trial counsel
said, even assuming a video existed, there was no reason to believe it contained exculpatory
information. Trial counsel could not recall when he first became aware of Chris Brown.
He believed the name may have been provided to him in the State’s discovery. Upon
learning the name Chris Brown, trial counsel made unsuccessful attempts to locate him.
Trial counsel insisted the petitioner never advised him of Chris Brown. A January 27, 2017
letter from trial counsel to the petitioner was admitted into evidence and noted, in relevant
part, as follows:3
It doesn’t matter how many times that you ask me for a document
about Christopher Brown, I still won’t have anything other than where the
name appears in discovery; You reference him directly because you have a
copy of the discovery which was given to you a total of three times now.
Nonetheless, I attach another copy of the page contained in the discovery
which you seem to directly reference. It seems that you are asking repeatedly
for the same document, one that you already possess. I’m really not sure
where the name Christopher Brown originally came from. I thought that you
were the source and based on what you said, we tried to find information
about him through an additional discovery request and I researched him on
the internet. I do remember that it was asked about during cross-examination
during the trial and my recollection, not having access to the transcripts at
this point, is that nobody knew any Christopher Brown. I believe that the
Trooper said that the tow-truck driver gave you a ride, not Mr. Brown.
Gladly I will examine the trial transcript with the Christopher Brown name
in mind.
As far as your recollection goes, you told me that you recall nothing
from the theft because of your failed attempt at suicide which resulted in
3
The record reflects the trial in this case occurred on September 12-13, 2016.
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extensive brain damage. If you are now claiming to remember things, then
that seems a little disingenuous, just saying.
Asked why trial counsel did not move to suppress Trooper Allison’s statement, trial
counsel said (1) it would not have made a difference to his trial strategy; and (2) he used
the lack of video to discredit Trooper Allison and the State’s case. Trial counsel did not
believe the State manufactured the delay in the petitioner’s arrest to gain any tactical
advantage. Asked why he did not file a motion for speedy trial, trial counsel replied, the
petitioner was on bond and that would have been “contrary to his desires.” Moreover,
following the petitioner’s arrest, trial counsel recalled a “direct request from [the
petitioner]” to “slow walk” the case.
On September 11, 2019, the trial court entered an order denying post-conviction
relief. The order included a twenty-seven-page memorandum of law addressing each of
the issues raised in the petition and setting forth the court’s reasoning and analysis. On
October 10, 2019, the petitioner filed a notice of appeal, and this case is now properly
before this court for review.
ANALYSIS
The petitioner claims he is entitled to post-conviction relief because he was deprived
effective assistance of counsel based on the following grounds: (1) upon receipt of the
State’s amended discovery containing a statement by the petitioner and the name
Christopher Brown, the alleged owner of the UTVs, trial counsel’s failure to move to
dismiss the charge, failure to suppress the statement by the petitioner, and failure to file a
motion to continue the trial; (2) failure to interview and secure the testimony of Christopher
Brown; (3) failure to file a motion based on Brady v. Maryland, 373 U.S. 83 (1963), and
State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), concerning the alleged destruction of
a dash cam recording of the instant traffic stop; (4) failure to file a motion to dismiss based
on the sixty-seven month delay between the date of the alleged crime and the date of the
arrest; and (5) failure to file a motion to dismiss based upon the sixteen month delay
between the date of the arrest and the trial. We will address each issue based on the
following well established law.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The right of a person accused of a crime to
representation by counsel is guaranteed by both the Sixth Amendment to the United States
Constitution and article I, section 9, of the Tennessee Constitution. Both the United States
Supreme Court and this Court have recognized that this right to representation
encompasses the right to reasonably effective assistance, that is, within the range of
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competence demanded of attorneys in criminal cases. Felts v. State, 354 S.W.3d 266, 276
(Tenn. 2011); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
In order to prevail on an ineffective assistance of counsel claim, a petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address
both if the [petitioner] makes an insufficient showing of one component.” Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466
U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once
the petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. at 370(quoting Strickland, 466 U.S. at 694).
A post-conviction petitioner has the burden of proving the factual allegations by
clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Tenn. Sup. Ct. R. 28, §
8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). Evidence is considered
clear and convincing when there is no serious or substantial doubt about the accuracy of
the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn.
2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d
240, 245 (Tenn. Crim. App. 1998).
A claim for post-conviction relief based on alleged ineffective assistance of counsel
presents a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn.
2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). This court reviews “a
post-conviction court’s conclusions of law, decisions involving mixed questions of law and
fact, and its application of law to its factual findings de novo without a presumption of
correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Felts v. State,
354 S.W.3d 266, 276 (Tenn. 2011); Calvert, 342 S.W.3d at 485). However, a post-
conviction court’s findings of fact are conclusive on appeal unless the evidence in the
record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297
S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, appellate
courts are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute
their own inferences for those drawn by the post-conviction court.” Whitehead, 402
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S.W.3d at 621 (citing State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001)). “As a general
matter, appellate courts must defer to a post-conviction court’s findings with regard to
witness credibility, the weight and value of witness testimony, and the resolution of factual
issues presented by the evidence.” Id. (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn.
1999)).
The petitioner first argues that upon receipt of the State’s amended discovery
response containing a statement by the petitioner which contained the name and address of
Christopher Brown, the alleged owner of the UTVs, trial counsel was ineffective in failing
to file motions to dismiss the charge, to suppress the statement by the petitioner, and/or to
continue the trial. In response, the State points out that trial counsel testified at the post-
conviction hearing that he did not file these motions because they were without merit and
that he made efforts to locate Christopher Brown but was unsuccessful. The State also
asserts that the petitioner has failed to establish prejudice because he has not shown any of
the motions would have been successful or that they would have changed the outcome of
the petitioner’s case. We agree with the State.
In regard to this issue, the post-conviction court determined as follows:
Specifically, the [petitioner] argues that Trial Counsel failed to object
to a “late produced” incriminating oral statement allegedly made by
Petitioner to Trooper Willie Allison regarding how Petitioner came into
possession of the subject property and what he was supposedly doing with
the subject property. The Court, after hearing the testimony of Trial Counsel
affirms that said statement was not introduced as an exhibit at trial. The
Defendant certainly cannot state that he was “unfairly” surprised at trial, and
he was able to cross-examine Trooper Allison regarding his testimony. Trial
Counsel indicated that the state produced this statement prior to trial, after
the “venue motion.” Trial Counsel indicated that the production of this
statement prior to trial did not change the [petitioner’s] trial strategy or tactics
whatsoever. Furthermore, as a trial tactic, Trial Counsel attempted to use the
lack of the “video” together with the statement in order to attempt to show
that the State was playing “hide the ball” and attempted to confuse the jury
on this issue. Trial Counsel was not deficient in this regard, and his
performance cannot be said to be below a reasonable standard. This issue is
without merit.
Second, the Defendant argues that Trial Counsel failed to object to the
“late produced” “identity and address of Christopher Brown who was at the
scene of the stop and claimed the subject property belonged to him and
verified that Petitioner had Mr. Brown’s consent to be in possession of the
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subject items of property.” The Court, after reviewing the transcript and the
testimony adduced, at the PC hearing, determines that Christopher Brown
never existed. Trial Counsel scoured the internet and searched extensively
for “Christopher Brown” and his efforts did not yield any usable information.
Furthermore, “Christopher Brown” was not called as a witness at trial, nor
was he called as a witness at the PC hearing. Prior to trial, Trial Counsel
confirmed that the Defendant and the co-defendant never discussed
“Christopher Brown”, and Defendant could not “remember” anything about
the incident due to his self-inflicted gunshot wound to his head and resulting
“brain surgery.” Trial Counsel simply cannot be responsible for locating and
securing an alleged witness that simply did not exist. This issue is without
merit.
The petitioner argues contrary to the finding of the post-conviction court that the
statement in question was admitted at trial. Our review of the record shows the following
exchange between the State and Trooper Allison occurred at trial:
Q. Okay. And what did [the petitioner and the co-defendant] tell you about
these UTVs?
A. They both told me the same story. They said that they were hired from
Shelbyville, a man, to haul these two side-by-sides to Kentucky.
Q. All right. And did you ask them if that was something they did on a regular
basis?
A. They said that’s what they usually do. That they, they take odd jobs like
that and hire, you know, take odd jobs and take things for people, I guess.
Q. All right. And, of course, if that’s a business and that’s what you’re doing,
would it require a special plate on the trailer?
A. Yes, and on the truck. You need a H tag on the truck and you need a trailer
tag, if you’re using both of them for business use.
Q. All right. So, if they were doing that, did they have those, either of those?
A. No.
Q. Okay. Now, were they able to identify to you this person who had asked
them to haul the vehicle?
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A. No. They didn’t know their name. They didn’t know his name.
Q. All right. So, they -- so, this individual who had supposedly hired them,
they didn’t even know who, didn’t even give you a name?
A. No.
Q. All right. Were they able to tell you where they were taking them to?
A. They just said somewhere in Kentucky.
Q. Did they know, were they able to tell you where in Kentucky they were
taking them?
A. No.
Q. So, they’d been hired to take these vehicles to Kentucky, but they can’t
tell you where it’s at?
A. That’s correct.
Q. Okay. Did they, were they able to produce the keys to them or did you
find the keys to these vehicles?
A. No, there were no keys to those things.
Q. All right. Eventually, was this car and these, trailer and the UTVs or the
side-by-side, were they eventually all towed away?
A. They were. I had them, because since they were not the owner of the
vehicle, they couldn’t show proof of any kind of bill of sale or anything, since
they were not owners of the side-by-sides or the trailer, I had it towed and
placed a hold on it for, for ownership, for the owner to come and get it.
Q. All right. And as it’s being towed, did they say, Hey, can you give this
guy a call and tell him where his UTVs are?
A. I don’t recall that at all.
On cross-examination, however, Trooper Allison testified as follows:
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Q. Okay. Did [the petitioner or the co-defendant] either one, mention anyone
that had hired them to take these vehicles to Celina?
A. If they did, I don’t recall it.
Q. You don’t remember anything about a conversation with either of these
two gentlemen about a vehicle breaking down at I-40 in Lebanon and being
hired to take these vehicles to Celina?
A. No, sir.
Q. You don’t remember any of that? Okay.
A. No, sir. That was never brought up at the time of the stop –
….
Q. Do you have any idea who this Christopher Brown person is that, is that
a name that you’re familiar with?
A. No, sir.
The post-conviction court’s confusion on this issue appears to lie in the precise
statement the petitioner sought to have excluded, which is not entirely clear. Trooper
Allison stated that the petitioner and the codefendant said they were hired by an unnamed
man to haul the UTVs to Kentucky. He denied that the petitioner and co-defendant stated
they were hired to haul them to Celina and did not recall any mention of a vehicle having
broken down or Christopher Brown. Based on the above testimony, we agree with the
petitioner and conclude that the information provided by the State in their amended
discovery response was admitted at trial. This conclusion offers no basis for relief;
however, because trial counsel stated that he used the information in the amended
discovery to his advantage in attempting to cast doubt on the State’s case. We additionally
observe that the petitioner hinges the bulk of his claims in his petition on Christopher
Brown, alleging that Brown’s testimony would have been exculpatory because he was the
true owner of the UTVs. This is problematic because the undisputed proof at trial
established that the true owners of the UTVs were Roger Dale Smith and Nathaniel Walker.
As such, even if we believed that Brown existed and was present at the time of the traffic
stop, the petitioner cannot account for his joint possession of the UTVs only hours after
they had been reported stolen on the same day. In other words, the petitioner ignores the
concept of criminal responsibility, which was charged to the jury and would have similarly
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supported the conviction in this case. Accordingly, for this and the reasons set forth in the
order of the post-conviction court, the petitioner has failed to establish deficient
performance of trial counsel in failing to file these motions or prejudice arising therefrom.
He is not entitled to relief.
Next, the petitioner claims trial counsel was ineffective in failing to interview and
secure the testimony of Christopher Brown. The post-conviction court denied relief as to
this claim due to the petitioner’s failure to present Christopher Brown as a witness at the
post-conviction hearing. As articulated by the post-conviction court, this court has
concluded 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.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). The presentation of the witness at the post-conviction hearing is typically the
only way for the petitioner to establish:
(a) a material witness existed and the witness could have been discovered but
for counsel’s neglect in his investigation of the case, (b) a known witness
was not interviewed, (c) the failure to discover or interview a witness inured
to his prejudice, or (d) the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured
to the prejudice of the petitioner.
Id. Neither the post-conviction court nor this court may speculate on “what a witness’s
testimony might have been if introduced by defense counsel.” Id. While the petitioner
attempts to distinguish his case from the rule in Black, we are unpersuaded. See Tavarus
U. Williams v. State, No. 02C01-9711-CR-00423, 1998 WL 742348 (Tenn. Crim. App.
Oct. 23, 2009).
In Tavarus Williams, this court determined that trial counsel’s negligence prevented
the petitioner from calling the missing witness at the post-conviction hearing and therefore
reversed the post-conviction court’s denial of relief. The court reasoned:
We recognize that this witness’ proposed testimony should have been
produced at the post-conviction hearing under the general rule announced
in Black v. State. However, we think it is fundamentally unfair to hold this
failure of proof against [Williams] and, therefore, find the Black rule
inapplicable under the facts of this case ...
The best evidence that [Williams] had of the crucial testimony was [the
investigator], and he did produce that proof at the hearing. Accordingly,
because [Williams] produced independent proof of vital testimony that
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would have been available at the hearing but for his trial lawyer’s
ineffectiveness (in never discovering the witness, not calling him and losing
all record of him), we hold that [Williams] has established both prongs of
the Strickland test.
Id. at *6-7 (internal citations, footnotes, and quotations omitted).
In stark contrast to Williams, the proof at the post-conviction hearing established
that the petitioner could not remember anything about the date of the offense due to a self-
inflicted gunshot wound to his head. This was also reflected at trial during the Momon
hearing and corroborated by trial counsel and counsel for the codefendant. We
acknowledge that the State provided trial counsel with the name and address for
Christopher Brown five days prior to trial; however, it is difficult for this court to attribute
much significance to this amendment when trial counsel did not know who Christopher
Brown was or how he would aid in his case. In any event, trial counsel testified that he
searched for Christopher Brown and was unable to locate him. Trooper Allison also
testified at trial that he did not know who Christopher Brown was. Because the petitioner
failed to present Christopher Brown at the post-conviction hearing, he is not entitled to
relief as to this issue.
In his third claim, the petitioner argues trial counsel was ineffective in failing to file
a Brady or Ferguson motion concerning the alleged destruction of a dash cam recording of
the instant traffic stop. The post-conviction court determined as follows:
In the case of State v. Ferguson, 2 S.W.3d 912, 916 (Tenn. 1999), the
Tennessee Supreme Court adopted a test for courts to use in determining
whether the loss or destruction of evidence in the State’s possession deprived
the defendant of a fair trial. The initial inquiry is whether the State had a duty
to preserve the evidence. Whatever duty the Constitution imposes on the
State to preserve evidence, that duty must be limited to evidence that might
be expected to play a significant role in the defense. To meet this standard of
constitutional materiality, evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means. Id. at 917 (quoting California v. Trombetta, 467
U.S. 479, 488-89 (1984)).
If the proof demonstrates that the State failed in its duty to preserve
evidence, the analysis moves to a consideration of several factors which
guide the decision regarding the consequence of the breach. Those factors
include “(1) the degree of negligence involved; (2) the significance of the
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destroyed evidence, considered in light of the probative value and reliability
of secondary or substitute evidence that remains available; and (3) the
sufficiency of the other evidence used at trial to support the conviction.” Id.If a trial without the missing evidence would be fundamentally unfair, the
trial court may dismiss the charges, give a jury instruction, or “craft such
orders as may be appropriate to protect the defendant’s fair trial rights.” Id.See also State v Merriman, 410 S.W. 3d 779 (Tenn. 2013).
The Court will first consider as to whether the State had a duty to
preserve the evidence. As previously mentioned, whatever duty the
Constitution imposes on the State to preserve evidence, that duty must be
limited to evidence that might be expected to play a significant role in the
defense. To meet this standard of constitutional materiality, evidence must
both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means. Id. at 917(quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). At trial,
Trooper Allison testified that the initial stop of the Suburban was for a light
law violation with regard to the trailer hauling the UTVs. See Trial Transcript
pg. 64, line 25 and pg. 77, lines 23-24. After issuing a citation for driving on
revoked license and violation of light law, the Suburban, trailer, and UTVs
were towed away from the scene, given the fact that the [petitioner] and co-
defendant could not produce ownership documents for said items. Trooper
Allison testified that he spoke with no other person at the scene other than
the [petitioner], co-defendant, tow truck driver, and his Sergeant. Further,
Trooper Allison did not run the UTVs’ VIN numbers through NCIC because
he could not locate them on the UTVs. Once they left his presence, the UTVs
remained with the tow truck driver. When asked about the “video of the
stop,” Trooper Allison testified that he was driving a “Ford Crown Vic” that
was equipped with a dash cam. The camera at that time was of the “little
cassette” version, not digital. Trooper Allison indicated that he did not
destroy the video, but presumably, the video rolls off after “about three (3)
years.” As such, it is not clear to the Court as to whether the video even
existed, or whether the camera actually captured the stop. Trooper Allison
never indicated that he “viewed” the video. Furthermore, Trooper Allison
testified that he believed that he had no reason to preserve the dash cam
video. His involvement with the matter was simply for a stop and citation for
violation of light law and driving on revoked license. Trooper Allison
testified that he was only made aware of the arrest of the [petitioner] for theft
“a few months before trial.” However, at trial, Trial Counsel attempted to
impeach Trooper Allison with the “destruction” of the video. After
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questioning him regarding his phone conversation with Detective Ferris “a
couple of weeks after the stop,” Trial Counsel was able to argue that the video
was “destroyed” after Trooper Allison had an indication that the UTVs were
stolen: In considering the evidence presented at trial and at the PC hearing,
the Court does not believe that the video contained any exculpatory value
that was apparent before the evidence was destroyed and be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means; therefore, the State had no duty to preserve the
video. The State has no absolute duty to record the stop, and furthermore,
there is no proof which clear[ly] and convincingly establishes that the stop
was ACTUALLY recorded. The only concrete thing we know is if it was
recorded, it was purged after a period of three (3) years.
However, out of an abundance of caution, the Court will also consider
an alternative holding. If the Court held that the video may have contained
some exculpatory value and should have been preserved by the State, the
analysis moves to a consideration of several factors which guide the decision
regarding the consequence of the breach. Those factors include “(1) the
degree of negligence involved; (2) the significance of the destroyed evidence,
considered in light of the probative value and reliability of secondary or
substitute evidence that remains available; and (3) the sufficiency of the other
evidence used at trial to support the conviction.” Id. In this case, there is no
proof that the “destruction of the dash-cam video” was done in bad faith.
Further, when potentially exculpatory evidence is lost or destroyed
negligence is presumed. Merriman, supra, at 793. However, based upon the
testimony, it appears to be unintentional and amounts to simple negligence.
Regarding the significance of the evidence, the potential exculpatory value
appears to be to refute Trooper Allison’s assertion that there wasn’t a third
party at the scene of the stop. The Defendant contends that “Christopher
Brown” was present. However, in considering the “the sufficiency of the
other evidence used at trial to support the conviction,” the Court concludes
that there was other sufficient evidence to prove the State’s case at trial.
Again, this is not a case wherein the State’s case hinges upon the dash-cam
footage of the patrol car. The Tennessee Court of Criminal Appeals affirmed
that sufficient evidence exists to support the conviction, and therefore this
prong has been adequately tested.
After a review of the forgoing, the Court is of the opinion that
dismissal of charges is really reserved for the most egregious of situations,
particularly involving gross negligence or intentional acts. This situation
involved a simple failure to retrieve footage that “rolled-off” the server in a
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three (3) year period. Such conduct is not gross negligence or an intentional
act.
As Trial Counsel and Atty. Parker indicated at the PC hearing, they
did not believe that the State had a duty to preserve the traffic stop video.
Based upon Atty. Parker and Trial Counsel’s interviews with their clients, as
well as all other evidence that existed prior to trial, Trial Counsel did not
believe that said video, if it existed, would have contained any exculpatory
evidence or value. The initial stop by Trooper Allison was for a trailer tail
light violation and an arrest for revoked license. It cannot be said that Trial
Counsel’s representation fell below an objective standard of reasonableness,
or “outside the wide range of professionally competent assistance.”
Furthermore, the Court cannot hold that Trial Counsel’s failure to file a
motion to dismiss based on the loss of the video was deficient performance.
Given the fact that trial counsel cross-examined Trooper Allison regarding
the “destruction” of the video and the circumstances surrounding the timing
of its “destruction,” it would appear that the failure to file a motion to dismiss
was a tactical decision. The issue of the lost video was hotly litigated and
Trial Counsel attempted to plant seeds of doubt and distrust in the minds of
the jury regarding the truth and veracity of Trooper Allison’s testimony.
Petitioner has failed to show that Trial Counsel’s performance was in any
way deficient. Petitioner is not entitled to relief on this issue.
The record does not preponderate against the determination of the post-conviction
court. The petitioner has failed to establish deficient performance or prejudice arising from
trial counsel’s failure to file a motion pursuant to Brady and Ferguson. Accordingly, we
affirm the findings of the post-conviction court and conclude that the petitioner is not
entitled to relief as to this issue.
As his fourth ground for relief, the petitioner argues trial counsel was ineffective in
failing to file a motion to dismiss based on the sixty-seven-month delay between the date
of the alleged crime and the date of the arrest. The post-conviction court determined “there
was a substantial delay in the ultimate arrest of the [petitioner]” but that the petitioner had
failed to show that the State had caused the delay in order to gain tactical advantage over
or to harass the petitioner. In United States v. Marion, 404 U.S. 307 (1971), the United
States Supreme Court explained that “[t]he Due Process Clause of the Fifth Amendment
would require dismissal of the indictment if it were shown at trial that the pre-
indictment delay . . . caused substantial prejudice to the [defendant’s] rights to a fair trial
and that the delay was an intentional device to gain tactical advantage over the
accused.” 404 U.S. at 324-25. In State v. Dykes, 803 S.W.2d 250 (Tenn. Crim. App. 1990),
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the Tennessee Supreme Court adopted the Marion approach to determining when a
defendant is entitled to relief for pre-indictment delay and held:
Before an accused is entitled to relief based upon the delay between
the offense and the initiation of adversarial proceedings, the accused must
prove that (a) there was a delay, (b) the accused sustained actual prejudice as
a direct and proximate result of the delay, and (c) the State caused
the delay in order to gain tactical advantage over or to harass the accused.
Dykes, 803 S.W.2d at 256 (citing United States v. Marion, 404 U.S. at 324). Our supreme
court reaffirmed the applicability of the Marion–Dykes rule in State v. Utley, 956 S.W.2d
489 (Tenn. 1997), noting that in “cases involving a pre-arrest delay, the due process inquiry
continues to be guided by Marion.” Id. at 495. The Utley court held that prejudice “cannot
be presumed and instead must be substantiated by the defendant with evidence in the
record” and that “the due process inquiry under Marion also requires proof regarding the
State’s use of the delay to gain tactical advantage.” Id.The petitioner points out “[f]rom January 14, 2010, when the warrant was obtained,
until the actual arrest date for this charge of May 9, 2015, [he] was arrested and charged
with other crimes in [the state] on seven occasions.” He further avers he actively
participated in probation and community corrections in Tennessee and yet there were no
significant efforts made to prosecute him for over five years. He insists he was prejudiced
by the State’s failure to prosecute based on the destruction of the dash cam video and the
unavailability of Christopher Brown. He acknowledges, while there was no evidence that
the State intentionally delayed the prosecution to gain a tactical advantage over the
petitioner, but cautions that this burden of proof has been viewed by the Tennessee
Supreme Court as “daunting, almost insurmountable[.]” See State v. Gray, 917 S.W.2d
668, 673 (Tenn. 1996). The petitioner then employs the suggestion by this court in
State v. Ahmad R. Manning, No. E2011-01812-CCA-R3-CD, 2013 WL 794154 (Tenn.
Crim. App. Mar. 4, 2013), perm. app. denied (Tenn. Sept. 11, 2013), that applied a
Ferguson-type negligence analysis, and concludes that the petitioner could have “possibly
prevailed in having the Theft charge dismissed.”
In Ahmad R. Manning, the trial court dismissed the indictment because the two-
year delay between the offenses and the indictment gave the State an “[a]lbeit
unintentional” advantage over the defense. On appeal, this court concluded that the trial
court erred by dismissing the indictment under the Marion-Dykes test because “the trial
court must find that the State intentionally delayed the proceedings in order to gain a
tactical advantage or to harass the accused.” Id. at *5. In reversing the trial court’s
dismissal of the indictment, however, this court expressed concern as to “whether in reality
the Marion-Dykes rule affords a defendant meaningful protection of his due process right
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to a fair trial in the face of unreasonable and unjustified pre-indictment delay” and
suggested a “Ferguson-type analysis” for such cases. Id. at *6. This court did not
incorporate Ferguson into its own analysis of the issue, and our supreme court denied the
defendant’s application for permission to appeal. Id. at *7. Accordingly, we remain bound
by the Marion-Dykes rule and apply it to the instant case.
The post-conviction court determined, and the petitioner concedes, there was no
proof that the State intentionally caused the delay in order to gain tactical advantage over
or to harass the petitioner. In addition, although the petitioner relies on his somewhat
specious claim that Christopher Brown and the dash cam video capturing the traffic stop
would have been exculpatory, there was no proof of such at the post-conviction hearing.
Accordingly, the petitioner failed to establish he sustained actual prejudice as a direct and
proximate result of the delay. The petitioner is not entitled to relief as to this issue.
As his fifth and final ground for relief, the petitioner argues trial counsel was
ineffective in failing to file a motion to dismiss based upon the sixteen-month delay
between the date of the arrest and the trial. The post-conviction court determined “the
sixteen (16) month delay in this case [was] sufficient to raise the Barker analysis.”
However, the post-conviction court found “the [petitioner] did not assert his right to a
speedy trial . . . [and] specifically instructed Trial Counsel to ‘slow walk’ this matter, as
the [petitioner] was out on bond, and was ‘dealing with other legal matters.’” In denying
relief, the post-conviction court considered the petitioner’s action in doing so as “the very
definition of ‘unclean hands.’”
Both the Sixth Amendment to the United States Constitution and Article I, Section
9 of the Tennessee Constitution guarantee an accused the right to a speedy trial. See U.S.
Const. amend VI; Tenn. Const. art. 1, § 9. The right to a speedy trial is also statutorily
protected in Tennessee. See T.C.A. § 40-14-101 (“In all criminal prosecutions, the accused
is entitled to a speedy trial and to be heard in person and by counsel.”). In addition, Rule
48(b) of the Tennessee Rules of Criminal Procedure provides that the court may dismiss
the indictment if there is unnecessary delay in bringing a defendant to trial. Tenn. R. Crim.
P. 48(b). “The purpose of the speedy trial guarantee is to protect the accused against
oppressive pre-trial incarceration, the anxiety and concern due to unresolved criminal
charges, and the risk that evidence will be lost or memories
diminished.” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997) (citing Doggett v.United
States, 505 U.S. 647, 654 (1992)).
The constitutional right to a speedy trial is not implicated until there is an arrest or
a formal accusation from a grand jury. State v. Simmons, 54 S.W.3d 755, 758-59 (Tenn.
2001) (citing Utley, 956 S.W.2d at 491). When evaluating claims of a speedy trial
violation, we apply the four-part balancing test set forth in Barker v. Wingo, 407 U.S. 514- 20 -
(1972). See also State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1977) (adopting
the Barker analysis in Tennessee). The Barker factors are: (1) the length of the delay; (2)
the reason for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4)
the prejudice to the defendant because of the delay. Barker, 407 U.S. at 530; Simmons, 54
S.W.3d at 759. “The factors relevant to a speedy trial inquiry are interrelated and depend
upon the particular circumstances of each case.” Simmons, 54 S.W.3d at 762 (declining to
articulate a bright-line rule for speedy trial claims); see also Barker, 407 U.S. at 530 (“A
balancing test necessarily compels courts to approach speedy trial cases on an ad hoc
basis.”). If a reviewing court concludes that the accused has been denied the right to a
speedy trial, the only remedy is reversal of the conviction and dismissal of the
indictment. See Barker, 407 U.S. at 522; Bishop, 493 S.W.2d at 83.
The petitioner was arrested on May 9, 2015, and his trial occurred on September 12-
13, 2016. The length of the delay in this case is one year and four months, which is
sufficient to trigger the speedy trial analysis. Next, we must consider the reason for the
delay. The reasons for post-accusation delay generally fall within four categories: (1)
intentional delay to gain a tactical advantage over the defense or to harass the defendant;
(2) bureaucratic indifference or negligence, including lack of due diligence; (3) delay
necessary for the fair and effective prosecution of the case; and (4) delay caused, or
acquiesced in, by the defense. State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996); see
also Simmons, 54 S.W.3d at 759. A delay caused or agreed to by the defendant is weighed
against the defendant. Wood, 924 S.W.2d at 346-47; see also Barker, 407 U.S. at 531. It
appears that the petitioner was arrested on May 9, 2015, and posted a $5000 bond. On
October 22, 2015, an order granting conditional forfeiture of the petitioner’s bond was
entered. The petitioner explained this meant his bond had been forfeited and explained it
may have been because he “got in trouble in another state . . . [n]ot because I got in trouble
here[.]” On March 21, 2016, an order of arraignment and continuance was entered
appointing trial counsel and setting the matter for trial or disposition on April 15, 2016.
On April 15, 2016, an order from status review was filed by the trial court setting an April
29, 2016 discovery deadline. Trial counsel did not attribute the delay as an intentional
effort by the State to gain a tactical advantage over the defense. Moreover, although the
petitioner claimed he did not acquiesce to any of the continuances in this case, trial counsel
stated that the petitioner specifically requested his case to be “slow walked” because he
was dealing with other matters and on bond. We find the reason for the delay to be weighed
against the petitioner.
In assessing what, if any, prejudice the petitioner suffered as a consequence of the
delay, the petitioner asserts the loss of the dash cam video, the testimony of Christopher
Brown, and the opportunity to have his sentence served concurrently to his previous
sentences. However, as previously addressed, the dash cam video did not contain
information requiring the State to preserve it, and, despite the protestations of the petitioner
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otherwise, Christopher Brown was not the lawful owner of the UTVs. After applying the
Barker balancing test, we conclude that the petitioner’s right to a speedy trial was not
violated. Accordingly, the petitioner has failed to establish deficient performance or
prejudice arising therefrom. He is not entitled to relief.
CONCLUSION
Based on the foregoing reasoning and analysis, the judgment of the post-conviction
court is affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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