Donald Jones v. State of Tennessee

08/18/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 6, 2021
DONALD JONES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 09-01473 Lee V. Coffee, Judge
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No. W2020-00421-CCA-R3-PC
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The Petitioner, Donald Jones, was found guilty by a jury of first degree felony murder
and especially aggravated burglary, and he received an effective sentence of life
imprisonment plus thirty years. After this court affirmed the Petitioner’s convictions on
direct appeal, he filed a petition for post-conviction relief contending that he received
ineffective assistance of counsel when his counsel failed to locate and interview an alibi
witness and failed to request an instruction on accomplice testimony. Following a
hearing, the post-conviction court denied the petition. After review, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.
Shae Atkinson, Memphis, Tennessee, for the appellant, Donald Jones.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
The Petitioner was convicted at trial of first degree felony murder and especially
aggravated burglary for killing the victim, Mr. Tony Wood, during a burglary at the
victim’s home. State v. Donald Jones, No. W2011-00973-CCA-R3-CD, 2012 WL
3590363, at *1 (Tenn. Crim. App. Aug. 21, 2012). The victim received multiple gunshot
wounds to his chest and died as a result of his injuries. Id. at *4.
As related to the issues raised on appeal, the evidence presented at trial showed
that on October 23, 2008, Mr. Cortez Jones, the Petitioner’s cousin, stole a truck in
Mississippi with Mr. William Mathis and then called the Petitioner, who had previously
told Mr. Cortez Jones that he needed a stolen vehicle. Id. at *1. Mr. Cortez Jones
testified that he took the stolen truck to his mother’s home in Memphis, Tennessee, and
the Petitioner, Mr. Alvin Walker, and Mr. Derrick Anderson arrived at the home in the
Petitioner’s Dodge Intrepid. The Petitioner offered drugs to Mr. Cortez Jones and Mr.
Mathis in exchange for the stolen truck. Id. Mr. Cortez Jones then called the victim and
told the victim that he had money he owed the victim. Id. After their conversation, the
Petitioner asked Mr. Cortez Jones what the victim was doing, and Mr. Cortez Jones told
him that the victim was at work. Id. Mr. Cortez Jones stated that he knew the Petitioner
and Mr. Walker had wanted to steal from the victim for a long time because the victim
had drugs and money in his home and that he had tried to warn the victim about the
Petitioner on prior occasions. Id. The Petitioner, Mr. Walker, and Mr. Anderson decided
to burglarize the victim’s home once they heard that the victim was at work. Id. Mr.
Cortez Jones testified that he did not help with the burglary, but he did not warn the
victim about the burglary. Id. He knew the Petitioner usually carried a Tech Nine, an
automatic weapon, and he observed Mr. Walker carrying a .38 caliber revolver on the day
of the offenses. Id.
Mr. Walker and Mr. Anderson drove to the victim’s home in the stolen truck, and
the Petitioner followed them in his Dodge Intrepid. Id. Shortly after 3:00 p.m., the
Petitioner called Mr. Cortez Jones from an unfamiliar telephone number, and the
Petitioner informed him that he had been shot and needed help. Id. The Petitioner told
him, “‘Man, that n[****] was home—he was at home, Cuz. He shot Walker, and I had to
reach around Walker and shoot on him.’” Id. Mr. Cortez Jones was unable to help the
Petitioner and learned that night that the victim died as a result of the shooting. Id. Mr.
Cortez Jones later identified the Petitioner, Mr. Walker, and Mr. Mathis in photographic
lineups. Id. Mr. Cortez Jones confessed to stealing the truck at the time that he told the
police about the Petitioner’s involvement in the victim’s death. Id. He testified that the
State had not given him an agreement in exchange for his testimony. Id.
On cross-examination, Mr. Cortez Jones conceded that he knew the Petitioner
would want to know whether the victim was home the day of the offenses. Id. at *2. He
testified that he was originally investigated for the charge of first degree felony murder,
but the charges were dropped after he gave a statement to law enforcement. Id. He
admitted that he owed the victim money at the time of the victim’s death, but he denied
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that he was going to share in the proceeds of the burglary. Id. Mr. Cortez Jones pleaded
guilty to theft of property regarding the truck he stole and conceded at trial that he could
have received a more severe punishment than he did for the theft. Id.
Mr. Anderson, a co-defendant also charged with first degree felony murder and
especially aggravated burglary in the case, testified that on October 23, 2008, the
Petitioner offered him fifty or sixty dollars to drive a truck for him. Id. at *4. The
Petitioner, Mr. Walker, and Mr. Anderson then drove in the Petitioner’s Dodge Intrepid
to a house in South Memphis where two men he did not know were trying to get a white
truck out of the mud in the backyard. Id. Once they freed the truck, Mr. Anderson heard
Mr. Walker ask one of the men if he had a crowbar, and the man retrieved one from the
trunk of his car and gave it to Mr. Walker. Id. The Petitioner then told Mr. Anderson,
“‘You just drive that truck over here, man; we’re fixin’ to run in the victim’s house and
get whatever in there out of it and come on back.’” Id.
Mr. Anderson testified that he and Mr. Walker entered the truck and followed the
Petitioner, who was driving his Dodge Intrepid, to an area near the victim’s home. Id. at
*5. The Petitioner parked his car and entered the truck with Mr. Anderson and Mr.
Walker. Id. They parked the truck in front of the victim’s home and walked to the front
door. Id. Mr. Anderson recalled that the Petitioner had his umbrella and cell phone in his
hands as they approached the victim’s home. Id. Mr. Walker pried open the front door
with the crowbar, and as they were about to enter the residence, the victim walked out
with a gun raised. Id. Mr. Anderson immediately turned and ran in the opposite
direction. Id. Just before Mr. Anderson was shot, he looked behind him and saw the
Petitioner and Mr. Walker “‘tussling’” with the victim over the gun. Id. He tried to call
the Petitioner after fleeing the scene but was not able to reach him. Id. He testified that
he never saw the Petitioner with a gun on the day of the killing, but he saw Mr. Walker
with an automatic pistol that day. Id.
Ms. Erika Jones, Mr. Cortez Jones’s sister and the Petitioner’s cousin, testified that
she saw Mr. Cortez Jones, Mr. Mathis, the Petitioner, Mr. Walker, and Mr. Anderson at
her mother’s home on the day of the shooting. Id. at *2. She also observed the
Petitioner’s burgundy Dodge Intrepid and a truck with identifying letters on the back
parked at her mother’s home that day. Id. She saw Mr. Mathis give a crowbar to the
Petitioner, who handled it with the sleeve of his coat so that he would not touch it with
his hand. Id. The Petitioner then gave the crowbar to Mr. Walker, who placed it behind
the passenger seat of the truck. Id. Sometime after 3:00 p.m., she saw the Petitioner
leave in his car and then saw Mr. Walker and Mr. Anderson follow him in the truck. Id.
Later that day, she saw a photograph of the truck on the 5:00 p.m. news during a story
about the victim’s murder. Id.
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Ms. Starkesha Craft, the victim’s niece, testified that she dropped the victim off at
his home at approximately 3:00 p.m. that day, and she later learned he died that
afternoon. Id. Ms. Celia Ruiz, the victim’s next-door neighbor, testified that she heard
several gunshots from the direction of the victim’s home while she was doing laundry.
Id. She walked outside and observed an African-American man with dark skin shooting
a revolver at the victim. Id. The man entered the passenger side of a truck before it
drove away. Id. She was unable to see the individual driving the truck. Id. She testified
that she never saw the victim fire a gun and that the victim did not have a weapon in his
hand at the time of the shooting. Id.
Ms. Malinda Jordan, who lived a short distance away from the victim’s home,
testified that between 3:15 p.m. and 3:30 p.m., she observed a truck with a bullet hole
park in front of her house. Id. at *3. She saw an African-American man fall out of the
truck and drag himself across the street to the driver’s side of a burgundy Dodge Intrepid
that was parked across the street. Id. She observed the driver of the truck exit the truck,
walk over to the Dodge Intrepid, change clothes, and get into the passenger side of the car
before it drove away. Id. Law enforcement officers located the truck near the victim’s
home and discovered that it had been left running and had a bullet hole on the right side.
Id. at *2.
Officers located the Petitioner’s cell phone on the ground near the victim’s front
door. Id. at *4. The records from the cell phone used by the Petitioner showed that he
and Mr. Anderson made several telephone calls to one another on the day of the victim’s
murder. Id. A crowbar and spent .40 caliber shell casings were found inside the victim’s
home, and what appeared to be pry marks were found on the victim’s door. Id. at *3.
Officer Desmond Gibbs of the Memphis Police Department (“MPD”) responded
to a “man down” call at a fast-food restaurant between 3:00 p.m. and 4:00 p.m. following
the shooting. Id. at *3. Officer Gibbs discovered Mr. Walker, who had been shot. Id.
Officer Gibbs testified that Mr. Walker matched the description of one of the suspects
involved in the victim’s death. Id. Mr. Walker later died as a result of a gunshot wound
to his torso. Id. at *4.
Special Agent Cervinia Braswell of the Tennessee Bureau of Investigation (“TBI”)
testified that all of the shell casings recovered from the crime scene had been fired from
the .40 caliber semi-automatic pistol, which had also been found at the scene. Id.
Although she could not conclusively state that the bullet recovered from Mr. Walker’s
body was fired from the .40 caliber pistol recovered from the scene, she determined that
the bullet bore the same class characteristics. Id. The bullets recovered from the victim’s
body had different class characteristics than the bullets fired from the .40 caliber bullets
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recovered from the scene and were .38/.357 caliber-class bullets. Id. She stated that all
the bullets recovered from the victim were fired from the same unknown revolver. Id.
MPD Sergeant David Parks testified that his investigation revealed that the victim
believed the Petitioner and Mr. Cortez Jones “‘were trying to set him up.’” Id. at *3. He
stated that law enforcement suspected that the Petitioner sustained an injury to one of his
legs based on information they received that a witness observed the Petitioner crawling
from a gray truck to a burgundy Dodge Intrepid. Id. As a result, Sergeant Parks
instructed his officers to check with local hospitals for individuals with leg injuries or
gunshot wounds. Id. He expanded the search to hospitals outside of Tennessee, and the
Petitioner was found at a hospital in Grenada, Mississippi. Id. The Petitioner’s burgundy
Dodge Intrepid was located at a Memphis apartment complex and blood recovered from
the car matched the Petitioner’s DNA. Id. at *4.
Mississippi Bureau of Investigation Special Agent Peter Clinton testified that on
October 23, 2008, he was called to a hospital in Grenada, Mississippi, to investigate a
case involving the Petitioner, who had reported being shot during a robbery on the
interstate after he had car trouble. Id. Special Agent Clinton interviewed the Petitioner,
who was unable to describe the two men who shot and robbed him or the suspects’ car
and was unable to identify the person who drove him to the hospital. Id. Special Agent
Clinton later discovered that the authorities in Southaven, Mississippi, were looking for
an African-American male who might be seeking medical treatment in Mississippi. Id.
He contacted the authorities in Southaven, Mississippi, who contacted the Memphis
Police Department about the Petitioner. Id.
The jury convicted the Petitioner of first degree felony murder and especially
aggravated burglary, and he received an effective sentence of life imprisonment plus
thirty years. Id. at *5. On direct appeal, this court affirmed the Petitioner’s convictions.
Id. at *10.
Post-Conviction Proceedings
The Petitioner filed a pro se petition for post-conviction relief and amended
petitions, contending that he received ineffective assistance of counsel. As related to the
issues on appeal, the Petitioner claimed that his counsel were ineffective by failing to
locate and interview a potential alibi witness and by failing to request an instruction on
accomplice testimony at trial. The post-conviction court held a hearing during which trial
counsel and the Petitioner testified.
Trial counsel, an assistant district public defender, testified that the Petitioner’s
case went to trial in 2010 and that he represented the Petitioner on the case over the
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course of a couple years. He obtained discovery, provided it to the Petitioner, and then
met with the Petitioner to discuss it. Trial counsel met with the Petitioner often in court
and visited him in jail, but he did not recall how many times they met. He and co-
counsel, another assistant district public defender, met with Petitioner together on a few
occasions. Trial counsel testified that the Petitioner informed him that there was an alibi
witness who could verify his presence in Mississippi at the time the offenses occurred,
but the defense was never able to substantiate the alibi. According to trial counsel, the
Petitioner’s information about the alibi was consistent with his statement given to
Mississippi authorities that he broke down on the side of the interstate, was robbed of his
car, and ended up at a Mississippi hospital. He recalled that the Petitioner could not
provide details of the incident to a detective who interviewed him. Trial counsel
instructed an investigator with the public defender’s office to interview witnesses for the
defense, but the investigator was not able to locate the alibi witness. He was not sure at
the time of the hearing if the investigator ever met with the Petitioner. Trial counsel
noted that the investigator prepared written reports pertaining to the investigation, and
trial counsel made copies of the reports available to the Petitioner. Trial counsel could
not recall if the Petitioner asked him to investigate one or more than one witness, but he
testified that he would have attempted to investigate them. Trial counsel stated that he
would have asked the Petitioner for contact information, and if the Petitioner did not have
the contact information, trial counsel would have asked the investigator to try to locate
the witnesses.
Trial counsel did not initially recall what involvement Mr. Anderson or Mr. Cortez
Jones had in the Petitioner’s case. When asked why the defense did not argue that Mr.
Cortez Jones was actually an accomplice so that his testimony would have required
corroboration, trial counsel replied, “I simply erred.” He did not recall if anyone was
charged with the offenses prior to the Petitioner being charged and did not recall
investigating if another perpetrator was involved. On cross-examination, trial counsel
testified that he vaguely recalled that the State charged Mr. Cortez Jones in the case and
that the charges were dropped before trial. He testified that he was confident that the
defense either obtained a statement from Mr. Cortez Jones or tried to do so. He agreed
that he would have used the statement to cross-examine Mr. Cortez Jones and in closing
argument.
The Petitioner testified that trial counsel provided him “partial discovery,” which
he explained meant that he did not receive parts of discovery from the full discovery file
the State possessed and that he was provided additional discovery on two or three
occasions after the trial was concluded. The Petitioner recalled that the additional
discovery contained arrest reports showing that people were charged in his case before he
was charged. According to the Petitioner, he first met trial counsel when he was indicted,
and trial counsel provided the Petitioner with discovery. He testified that he saw trial
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counsel during court dates and that trial counsel visited him once at jail during the week
of trial. The Petitioner stated that he wrote letters to trial counsel while incarcerated, but
he only received one response that read, “‘I will come see you, I’m sorry I didn’t come
see you.” When trial counsel visited the Petitioner, he introduced the Petitioner to co-
counsel. The Petitioner stated that his discussions with trial counsel about his case
involved people who implicated him in the burglary and shooting. He testified that he
asked trial counsel if he could speak to the investigator, but trial counsel told him that he
could not do so. He stated that he wanted an investigator to investigate his alibi, but he
never met an investigator while his case was pending. He explained that his alibi witness
was Ms. Juanita Croff, who was from Mississippi. He informed trial counsel that Ms.
Croff was from Clarksdale, Mississippi, and that they connected with each other in
Grenada and Clarksdale. On cross-examination, he stated that he also informed trial
counsel that Ms. Croff worked at the Gold Strike Hotel. He informed trial counsel he
wanted to pursue at trial the alibi defense that he was dealing drugs in Mississippi at the
time of the offenses and was shot in a drug-related robbery.
The Petitioner testified that he never received a report from an investigator and
that trial counsel led him to believe that the defense was not using an investigator.
According to the Petitioner, trial counsel never discussed the alibi witness with him or
told him that the witness was not found. He asked trial counsel about the alibi witness
close to the time of trial, but trial counsel “had nothing for [him].” The Petitioner
testified that six years after his trial, Ms. Croff met with his prior post-conviction
attorney, who recorded a conversation with Ms. Croff. The attorney no longer practiced
law.
On cross-examination, the Petitioner acknowledged that Ms. Croff was not with
him at the time he was shot on the side of an interstate in Mississippi. The Petitioner
explained that he was with her until between noon and 2:00 p.m. on that day and that they
“split up” before going to make the drug deal because she did not accompany him to
make drug deals. He testified that he and Ms. Croff used to call each other and meet up,
but he did not know what her number was at the time he was arrested for the offenses and
was unable to provide it to counsel. He did not give trial counsel the number he had used
to call her previously. He testified that he had been to her house before, but he did not
know her address and did not provide it to counsel. When asked whether he provided the
information to co-counsel when trial counsel included co-counsel on a meeting, the
Petitioner stated that he did not know who co-counsel was and that it was a week before
trial at that time.
In response to the post-conviction court’s questioning, the Petitioner testified that
he knew Ms. Croff for a couple of years before he was charged with the offenses, that he
did not know where she was at the time of the hearing, and that he last communicated
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with her before he was arrested. He clarified that he last saw Ms. Croff at approximately
1:30 p.m. on the afternoon he was shot, that she was on her way to work at that time, and
that he was shot about thirty minutes after last seeing her. The Petitioner testified that,
although she was not with him when he was shot, she could have testified that he was in
Mississippi rather than Memphis at that time. He denied that the cell phone found at the
victim’s home belonged to him, and he stated that he told trial counsel the phone was not
his.
The Petitioner testified that he did not give counsel the names of the men who
robbed him or their cell phone numbers. He stated that he told the Mississippi Bureau of
Investigation agent who interviewed him about him being robbed. He recalled that one
of the robbers’ names was Jimmy, but he did not know the other man who helped Jimmy
rob him. The Petitioner testified that he and Jimmy would call each other to arrange drug
deals and would meet in different places, including the laundromat, the interstate, and a
house. He stated that he and Jimmy arranged to meet on I-55 Memphis-bound on the day
he was robbed and that he waited for Jimmy to arrive on the side of the interstate with his
hood up and headlights activated. Jimmy and the other man robbed the Petitioner once
they arrived between 1:30 p.m. and 2:00 p.m., and Jimmy shot the Petitioner with a
handgun in the foot and the leg during the robbery. A stranger picked the Petitioner up
on the side of the interstate and dropped him off at a Grenada hospital. The Petitioner
stated that the robbers drove a white Lumina and that he provided this information to the
agent who interviewed him.
The post-conviction court made a general credibility finding in favor of trial
counsel and against the Petitioner. The post-conviction court found that counsel were not
deficient in investigating the Petitioner’s alibi defense, finding that trial counsel met with
the Petitioner and discussed the discovery with him, that he requested information about
the Petitioner’s alibi witness, that he provided the limited information offered by the
Petitioner to an investigator, and that trial counsel was unable to locate the witness with
the investigator’s assistance. The court found that trial counsel, having been unable to
locate the alibi witness, “made a well-founded strategic choice to challenge the . . .
evidence and the credibility of the witnesses in this case.” The court additionally found
that the Petitioner failed to establish prejudice in counsel’s investigation into the alibi
because he did not call the alibi witness to testify at the hearing and because he failed to
show a reasonable probability that any further investigation would have resulted in a
different result at trial.
The post-conviction court found that the issue regarding counsel’s failure to
request an accomplice instruction was waived. The post-conviction court also found that
counsel were not deficient and that the Petitioner failed to show prejudice because there
was no basis for the trial court to charge the jury on such an instruction. Referring to its
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notes from trial, the post-conviction court found that Mr. Cortez Jones testified he did not
know about the burglary until the Petitioner called him after having been shot. The court
found that “[t]he facts at trial clearly indicated that [Mr.] Cortez Jones was not involved
in the planning, perpetration, or execution of the home invasion and killing.” The post-
conviction court, which was also the trial court, stated that if there were any basis to
charge Mr. Cortez Jones as an accomplice in fact or in law, the court would have done so
regardless of whether trial counsel requested the instruction. The court denied the
Petitioner post-conviction relief, and the Petitioner appeals.
ANALYSIS
The Petitioner claims on appeal that he received ineffective assistance of counsel
because counsel failed to locate and interview a potential alibi witness and failed to
request an accomplice instruction during trial. In support of his claim that counsel failed
to locate and interview an alibi witness, the Petitioner argues that counsel’s failure to
timely meet with him prior to trial and the inadequate use of investigative services
contributed to the defense’s inability to locate the alibi witness. The State responds that
the post-conviction court properly denied the Petitioner relief. We agree with the State.
A petitioner may request post-conviction relief by asserting grounds alleging that
his conviction or sentence is void or voidable because it abridged his constitutional rights
provided by the Tennessee or the United States Constitutions. T.C.A. § 40-30-103. To
obtain post-conviction relief, a petitioner must prove the allegations of fact made in the
petition by clear and convincing evidence. T.C.A. § 40-30-110(f). On appeal, the post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010). “[Q]uestions
concerning the credibility of witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be resolved by the trial judge.” Fields
v. State, 40 S.W.3d 450, 456 (Tenn. 2001) (citing Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997)). Additionally, appellate courts may not “substitute their own inferences
for those drawn by the trial court.” Id. (citing Henley, 960 S.W.2d at 579). 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) (citations omitted).
A criminal defendant has a right to the assistance of counsel under the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to assistance of
counsel inherently guarantees that counsel’s assistance is “effective.” Strickland v.
Washington, 466 U.S. 668, 685-86 (1984); Dellinger v. State, 279 S.W.3d 282, 293-94
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(Tenn. 2009). To prove that counsel was ineffective, a petitioner must show that (1)
counsel performed deficiently and (2) such deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687-88.
To establish deficient performance, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. This
standard requires a petitioner to demonstrate that the “services rendered or the advice
given” were “‘below the range of competence demanded of attorneys in criminal cases.’”
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009) (quoting Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)). Counsel must have made errors so serious that counsel
was not functioning as the “‘counsel’” guaranteed by the Sixth Amendment. Strickland,
466 U.S. at 687. Measuring counsel’s performance requires giving deference to
counsel’s decisions, and courts must apply a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 669.
Accordingly, this court has held that a “petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision made during the course of the
proceedings.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). The
reviewing court “must make every effort to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from
the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland 466 U.S. at 689).
“[D]eference to tactical choices only applies if the choices are informed ones
based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992). Adequate preparation includes counsel’s “duty to make reasonable
investigation or to make a reasonable decision that makes particular investigations
unnecessary.” Burns, 6 S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). Counsel’s
decision to not investigate must be assessed by courts “for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Id.To demonstrate that a counsel’s deficient performance prejudiced the defense, a
petitioner must prove “‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Dellinger, 279 S.W.3d
at 294 (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Because a petitioner must establish both deficiency and prejudice to prove ineffective
assistance of counsel, a court need not address both prongs where the petitioner has failed
to establish one of them. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing
Strickland, 466 U.S. at 697).
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The Petitioner claims that counsel were ineffective by failing to locate and
interview a potential alibi witness. The trial court credited trial counsel’s testimony that
he met with the Petitioner, discussed discovery with him, requested information from the
Petitioner about the Petitioner’s alibi, provided the information about the alibi witness to
an investigator, and could not locate the witness with the investigator’s assistance. See
Fields, 40 S.W.3d at 456. Although the Petitioner asserts that he wanted to speak with an
investigator personally, he conceded at the hearing that he provided trial counsel with all
of the available information he had about the alibi witness. The Petitioner has failed to
show that counsel’s representation was deficient. He has also failed to show prejudice
because he did not call the alibi witness to testify at the hearing. Black v. State, 794
S.W.2d 752, 758 (Tenn. 1990) (“When 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.”). Therefore, the Petitioner is
not entitled to relief on this claim.
The Petitioner next claims that his counsel failed to request an accomplice
instruction at trial and that the instruction would have required the State to corroborate
Mr. Cortez Jones’s testimony. The State responds that there was no evidence to support
the accomplice instruction and that the Petitioner did not suffer prejudice. We conclude
that, in light of the evidence presented at trial, the Petitioner cannot establish prejudice.
The post-conviction court noted that a panel of this court on direct appeal
determined that this issue was waived, and the post-conviction court found this issue was
waived. However, this court did not consider on direct appeal whether the Petitioner’s
constitutional right to effective assistance of counsel was violated by the failure to
request the accomplice instruction at trial; instead, we determined that a challenge to the
trial court’s failure to issue the instruction was waived. See Donald Jones, 2012 WL
3590363, at *8-9. Accordingly, the issue of whether the Petitioner received ineffective
assistance of counsel on this ground has not been waived.
A criminal defendant in Tennessee cannot be convicted “solely upon the
uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), superseded by statute
as stated in State v. Odom, 137 S.W.3d 572, 583 (Tenn. 2004); Monts v. State, 379
S.W.34, 43 (Tenn. 1964), overruled on other grounds by State v. Collier, 411 S.W.3d
886, 899 (Tenn. 2013)). “An accomplice is defined as a person who knowingly,
voluntarily[,] and with common intent unites with the principal offender in the
commission of the crime.” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997)
(citing State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). Generally, a
witness qualifies as an accomplice if “the alleged accomplice could be indicted for the
same offense charged against the defendant.” State v. Allen, 976 S.W.2d 661, 666 (Tenn.
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Crim. App. 1997). The Tennessee Supreme Court has stated that in order to properly
corroborate accomplice testimony,
[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be
adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary
that the corroboration extend to every part of the accomplice’s evidence.
Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating
evidence need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App.
1997).
Because there was overwhelming corroborating evidence, the Petitioner cannot
show that a failure to request the instruction was prejudicial. To demonstrate prejudice,
the Petitioner must have shown that had “the questioned accomplice instruction been
given to the jury, there is a ‘reasonable probability’ that [he] would have been acquitted.”
See Chico Lopez Chigano v. State, No. 03C01-9602-CR-00061, 1997 WL 105002, at *2
(Tenn. Crim. App. Mar. 11, 1997) (citing Strickland, 466 U.S. at 693). Ms. Jones, who
was not an accomplice, testified that at her mother’s home, she observed Mr. Mathis give
a crowbar to the Petitioner, who grabbed it with his coat sleeve so as to not touch it with
his bare hand. The Petitioner then handed the crowbar to Mr. Walker, who placed it in
the stolen truck. Sometime after 3:00 p.m., the Petitioner left the home in his burgundy
Dodge Intrepid, while Mr. Walker and Mr. Anderson left in the stolen truck. Ms. Ruiz,
the victim’s neighbor, observed the shoot-out and saw the perpetrators enter a truck.
Between 3:15 p.m. and 3:30 p.m., Ms. Jordan observed a truck with a bullet hole park in
front of her house. A man fell out of the truck and dragged himself to a burgundy Dodge
Intrepid, and the Petitioner’s blood was recovered from the Intrepid. Law enforcement
discovered a truck with a bullet hole in it still running near the victim’s home, a crowbar
inside the victim’s home, pry marks on the victim’s door, the Petitioner’s cell phone
outside of the victim’s home, and the Petitioner’s Dodge Intrepid, with his blood inside,
at a Memphis apartment complex. The Petitioner’s cell phone records reflected that he
and Mr. Anderson made several telephone calls to one another on the day of the victim’s
murder. Law enforcement suspected the Petitioner of sustaining an injury to his legs, and
the Petitioner was discovered in Grenada, Mississippi, seeking medical attention for
gunshots wounds. The Petitioner’s explanation of the origin of the wounds was
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implausible. We note that this court on direct appeal found the evidence sufficiently
corroborated Mr. Anderson’s testimony. Donald Jones, 2012 WL 3590363, at *8
(relying on the evidence above and also on Mr. Cortez Jones’s testimony that the
Petitioner “had wanted to steal from the victim for a long period of time and took the
stolen truck on October 23, 2008, for the purpose of burglarizing the victim”). We
conclude that the Petitioner has failed to establish prejudice because the evidence
corroborated Mr. Cortez Jones’s testimony implicating the Petitioner in the victim’s
murder. See Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). Accordingly,
the Petitioner is not entitled to relief.
CONCLUSION
Based upon the foregoing reasons, we affirm the judgment of the post-conviction
court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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