DeVaughn Edwards v. State of Tennessee ( 2018 )

04/25/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 6, 2017
DEVAUGHN EDWARDS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-05320 J. Robert Carter, Jr., Judge
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No. W2016-02203-CCA-R3-PC
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The Petitioner, Devaughn Edwards, filed for post-conviction relief from his convictions
of facilitation of kidnapping, facilitation of robbery, and facilitation of aggravated
burglary, alleging that his trial counsel was ineffective. The post-conviction court denied
the petition, and the Petitioner appeals. Upon 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
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.
Marty McAfee, Memphis, Tennessee, for the Appellant, Devaughn Edwards.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Dru Carpenter and
Carrie Shelton, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
OPINION
I. Factual Background
After the Petitioner and three co-defendants participated in a home invasion on
Mud Island in Memphis, the Petitioner was charged with three counts of especially
aggravated kidnapping, especially aggravated robbery, especially aggravated burglary,
aggravated robbery, and employing a firearm during a felony. On direct appeal, this
court summarized the proof adduced at trial as follows:
Tad Robbins testified that he was a lieutenant in the
United States Navy and was living on Mud Island on April
11, 2012. That evening, he and his wife heard a commotion
coming from a neighbor’s house, and he saw a Lincoln
automobile backed into the driveway of a nearby vacant
house. He observed two men entering “quickly” into the
garage and went out his back door because he thought “there
was something weird.” He noticed that the car was “running”
and returned to his house to call 911. As he watched, the
garage door opened, and he saw two men leaving a house
carrying a television set, a guitar, and a bag of other items.
Two more men came out of the house, and they “loaded up”
in the car to leave.
Jaredan Braal testified that he was a mechanical
engineer for Medtronic. On April 11, 2012, he was living on
Mud Island and returned home “around 10:45 or 10:50 at
night” from teaching a dance class. He pulled into his garage,
which was in an alley behind his house. As he was unloading
items from his car, he saw a vehicle in front of the neighbor’s
house behind him. One of the two men at the car said he
wanted to ask Mr. Braal a question, adding that he was
looking for a particular street. They were joined by another
man who soon produced a pistol, which he pointed at Mr.
Braal. Mr. Braal then threw down his cell phone and wallet
and ran into his garage but was hit in the head multiple times
and fell to his hands and knees. Two of the men then entered
Mr. Braal’s house, while a third kept watch on him. Mr.
Braal’s roommate was brought from the house and made to
lie down beside him. After the men loaded their vehicle with
items from the victims’ house, they asked for the PIN number
for Mr. Braal’s debit card, and he made up a number. The
four men then left, and the victims telephoned 911 from a
neighbor’s telephone. Mr. Braal was hospitalized for twelve
days as a result of his injuries. He identified the [Petitioner]
as the person who hit him with the pistol.
Frederick Krafcik, Jr. testified that he was living on
Mud Island on April 11, 2012, and was employed by the
University of Tennessee Health Science Center, working at
St. Jude Children’s Research Hospital. He said that, during
that evening, he was on the bed in his room when the door
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was kicked open and two men entered at pistol-point. They
took different items, including cash, and ordered him to go
downstairs to the garage, where he found his roommate
already lying facedown and blood on the floor. He said that
as “the criminals were still going back and forth in the house,
removing items,” he stayed facedown on the garage floor, as
they ordered. After the men left, the two victims ran to
neighbors for help, “knocking on doors, looking bloody and
beaten up, [but] people weren’t answering.”
Mr. Krafcik said that he at first thought it was his
roommate coming up the stairs, but then his door was kicked
in. The man who came through the door pointed a pistol at
him, and another man then came in, the two of them asking,
“[W]here is the cash?” He said that the two men took his
DVD player and computer, the cash from his wallet and, later,
he discovered they had taken his cell phone. At gunpoint, he
was made to go down the stairs to the garage [where he saw
Mr. Braal lying face down on the garage floor. Mr. Braal’s
face was beaten and bloody.]
Mr. Krafcik said that at least three men came into the
house, but “it sounded like there was a fourth person.” He
said that he had paid between $3000 and $3500 for the items
the men took.
Officer Robert Forbert of the Memphis Police
Department testified that he received a prowler call on April
11, 2012, to the victims’ residence. Upon their arrival,
officers found the door was open, the residence was
ransacked, and there was a pool of blood in the garage.
Officer Forbert learned that Mr. Braal was at a nearby
address, where he went and found him on the floor, with
others trying to stop the bleeding from his nose. Mr. Braal
said his iPhone had been taken, and information was entered
into Officer Forbert’s iPhone to locate Mr. Braal’s phone. An
exact address was provided by the iPhone application, which
was 2423 Manchester Road. Officer Forbert then went to that
address, where he observed traveling south on the street a tan
Lincoln Zephyr automobile, which matched the description
the victim gave of the car the defendants were operating.
Two African-American males were in the automobile, which
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the officer stopped. The vehicle was being driven by the
[Petitioner], whom the officer identified in the courtroom. At
the residence, a male and female came to the door and were
detained while a search warrant was obtained to search for the
iPhone.
Officer Terrell Hunt of the Memphis Police
Department testified that he was assigned to the Felony
Response Unit. On April 12, 2012, he responded to a call to a
residence on Manchester Road. A search warrant was
obtained, and Officer Hunt entered the residence where he
located a large television, matching the description of the one
taken from the victims’ residence. He also found at the
residence an iPhone, a Mac 10 Notebook computer, a
bulletproof vest, and a guitar. All of these were found in the
bedroom of Adrian Henderson, one of the co-defendants.
Officer Justin Edward Sheriff, a crime scene
investigator with the Memphis Police Department, testified
that on April 12, 2014, he was called to photograph a 2006
Lincoln Zephyr and items taken from it at an auto shop
located at Alcy and Manchester. He took photographs of the
vehicle and a wine bottle which was inside it.
Sergeant Velynda Thayer of the Memphis Police
Department testified that on April 12, 2012, she was assigned
to investigate the home invasion and robbery that occurred on
Mud Island, for which two suspects, one of whom was the
[Petitioner], were in custody. She advised the [Petitioner] of
his Miranda rights, which he waived. The [Petitioner] gave a
statement, admitting his participation in the crimes.
Patrece Edwards, the [Petitioner’s] mother, was the
only witness testifying in his behalf. She said she had not
known that he was spending time with the three co-
defendants.
State v. Devaughn Edwards, No. W2013-02009-CCA-R3-CD, 2014 WL 6792747, at *1-
3 (Tenn. Crim. App. at Jackson, Dec. 3, 2014). The jury convicted the Petitioner of three
counts of facilitation of kidnapping, two of which were merged; two counts of facilitation
of robbery, and one count of facilitation of aggravated burglary. Id. at *1. He received a
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total effective sentence of sixteen years. Id. On appeal, this court affirmed the
Petitioner’s convictions and sentences. Id.
Thereafter, the Petitioner, acting through counsel, filed a timely petition for post-
conviction relief and an amended post-conviction petition, alleging numerous ways in
which his trial counsel was ineffective. Notably, the Petitioner contended that trial
counsel was ineffective by
failing to raise issues at trial regarding the lack of physical
evidence tying [the Petitioner] to the crime, the height
differences between the victim’s description of the assailant
and [the Petitioner’s] physical description, that other similar
offenses occurred in the same area by four individuals after
[the Petitioner] was incarcerated, not raising doubt on [the
Petitioner’s] statement by questioning the police regarding
their interrogation tactics, not questioning witnesses and
presenting photographs establishing stolen items were not in
[the Petitioner’s] vehicle following his arrest, not obtaining
cell phone records for [the Petitioner], not obtaining video
surveillance of [the Petitioner’s] whereabouts, not questioning
an officer regarding statements the officer made in the
hallway during trial, and by failing to present evidence
regarding the physical impossibility of tracking a cell phone
when the battery was dead.
At the post-conviction hearing, the Petitioner’s trial counsel testified that he
represented the Petitioner at trial; however, the Petitioner’s mother was unhappy with his
representation and retained another attorney to represent the Petitioner during sentencing,
the motion for new trial, and direct appeal.
Trial counsel acknowledged that at trial, the State’s witnesses testified the police
had found the defendants by tracking a cellular telephone stolen from one of the victims.
Trial counsel thought the telephone’s owner had said that the telephone’s battery
appeared to be “dead.” Trial counsel conceded that he did not inform the jury a cellular
telephone with a dead battery could not be tracked.
Trial counsel recalled that after a lengthy hearing, the trial court denied the
defense’s motion to suppress the Petitioner’s statement and ruled the statement would be
admissible. The trial transcript, which was included as an exhibit at the post-conviction
hearing, reflects that the Petitioner’s statement provided in pertinent part:
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We first met up at the store lot at Alcy and Perry. And
Adrian [Henderson] was like, I need you to take me
somewhere. He gave me ten dollars and we went to the gas
station. We got some gas and then we got on the expressway.
Adrian [Henderson] was directing me on where to go. We
took the Little Rock exit and got off on Danny Thomas and
then we made that first left at the light. Then we went up the
bridge and then we made a right into where some big houses
were. We parked the car and saw a silver Volkswagen pull
up and pull into his garage. He walked out of the garage and
got his trash can and pulled it up towards his house. Adrian
[Henderson] got out and said something to the man. G[l]en
[Wynn] was standing outside of the car and me and Martrell
[Holloway] were still sitting inside of the vehicle. Adrian
[Henderson] hit the man with the pistol and then Glen
[Wynn] put his arm around the man’s neck and pulled him
into the garage. Glen [Wynn] put his hand over the man’s
mouth to keep him from screaming. I stayed in the car. I
couldn’t see after they took the man in the garage so I pulled
the car up and I parked it in the driveway next to his. I left
the car running. Martrell [Holloway] and I got out of the car
and Martrell [Holloway] told me to just stay in the garage
with the man and watch him. They went through the house
and started coming out with stuff. They would come to the
door of the garage and set stuff out. They found an upstairs
and I heard Glen [Wynn] say to Adrian [Henderson] that the
door was locked. Then I heard boom like they kicked the
door in. I heard a man scream and then they brought him
downstairs and told him to lay down by his friend. They told
me to watch them and make sure they didn’t move. They
finally got all the stuff and we packed the car. I popped the
trunk and Adrian [Henderson] was stuffing stuff in the trunk.
We got in the car and they told me to pull off. After we left I
took Martrell [Holloway] home to Tulane Apartments. Then
I dropped Glen [Wynn] off on Alcy at his house. Then I took
Adrian [Henderson] to his house and we took the stuff inside
of his house. Then we got back in the car and went to the
store to get some cigarettes. When we came back to his
house is when we saw the police. They pulled us over and
saw the wine bottle in Adrian[ Henderson]’s hand. They
pulled him out of the car and started asking him questions
then we ended up here.
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After the trial court’s ruling on the motion to suppress, trial counsel advised the
Petitioner “to embrace the statement and try to mitigate the damage in regards to what his
role was that evening.” Trial counsel said:
I’ve always had the theory or the practice of pick your battles.
And I did not want to have a defense of mitigating [the
Petitioner’s] role in this scheme, yet still questioning every
little thing about this case. I did not – it was my opinion that
that would take away the credibility of his argument that he
had a very minor role in the offense and that’s what I wanted
the jury to focus on. And I spoke about that with [the
Petitioner] and he agreed.
Trial counsel said that his approach explained why he did not challenge the lack of
physical evidence of the Petitioner’s involvement, including a wine bottle that did not
have the Petitioner’s fingerprints; why he did not raise a complaint regarding missing
photographs; and also explained “75 to 80 percent of the [issues the Petitioner] listed in
[his] petition.” Trial counsel opined that his strategy was successful, noting that the jury
convicted the Petitioner of the lesser-included offenses of facilitation instead of the
charged offenses.
Trial counsel said that he “vigorously fought” a motion to suppress the Petitioner’s
statement based upon the way the defendants were treated by the police, explaining that
during the three hours the defendants were kept in patrol cars at the scene, they were not
allowed a bathroom break and that the police refused to allow the Petitioner to sleep until
he agreed to give a statement. Trial counsel noted that during trial, the State’s witness
Glenn Wynn testified to a version of events that was identical to the version of events in
the Petitioner’s statement. Trial counsel advised the Petitioner that Wynn’s testimony did
not help the State’s case but did help the Petitioner’s case.
Trial counsel said that at least one of the victims was badly injured during the
offenses. Although the Petitioner did not have a preliminary hearing, he was present
during the preliminary hearing of his co-defendant, Martrell Holloway. At that hearing,
the injured victim was unable to identify the Petitioner as a perpetrator. The victim did,
however, identify the Petitioner at trial.
Trial counsel said that he did not recall if the Petitioner “had a chipped tooth that
was prominent” during his representation. Trial counsel said that he did not question the
victim about whether the Petitioner had a chipped tooth but that he successfully cross-
examined the victim regarding whether the Petitioner had a gun, which was why the jury
dismissed the counts that alleged the Petitioner possessed a gun. Trial counsel noted that
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the injured victim had been hit with a gun and that he claimed the attacker was
approximately five feet, seven inches tall. Trial counsel did not cross-examine the victim
regarding the discrepancy between the Petitioner’s height and the description of the
perpetrator because he did not want to “nit-pick” the State’s proof of identity given the
Petitioner’s statement admitting his involvement in the crimes. Nevertheless, trial
counsel stressed to the jury that the Petitioner’s role in the crimes was minimal and that
the Petitioner had no knowledge that the burglary, assault, and robbery were planned.
Trial counsel acknowledged that the State’s theory was that many of the stolen
items were removed from the victims’ residence and put into the defendants’ car, which
was later impounded by the police. While the car was in the impound lot, the Petitioner’s
mother took photographs of the car. Trial counsel acknowledged that the Petitioner’s
mother contended that the trunk was full before the crimes and that therefore the
defendants could not have put any stolen items in the trunk. However, trial counsel
disagreed and thought the trunk could have been filled with other items after the offenses.
At trial, the defense stressed that the majority of the stolen items were found at co-
defendant Adrian Henderson’s residence and that the Petitioner received only gas money
from the crimes.
Trial counsel said that the Petitioner’s mother may have asked him to obtain
telephone records to pinpoint the location of the Petitioner’s cellular telephone on the
night of the crimes; however, the Petitioner never requested the records. Trial counsel
said that during the course of his representation, he repeatedly asked the Petitioner if he
wanted counsel to do anything counsel had not done, but the Petitioner did not request
that counsel do anything else.
When asked if he was “aware that one of the officers had made comments in the
hallway that the evidence being brought into the courtroom was not the evidence they had
actually seized on Manchester Street,” trial counsel responded, “I’ve never been aware of
that. The first time I saw that was in your petition.” Trial counsel acknowledged that he
and the Petitioner’s mother talked about similar robberies occurring in the area after the
defendants were arrested. Trial counsel did not, however, cross-examine police officers
about the other crimes “based upon the similar strategy that I’ve already told you.”
On cross-examination, trial counsel said that at the time of trial, the Petitioner was
facing indictments for four robberies unrelated to the crimes for which he was on trial.
Trial counsel filed a motion to suppress the Petitioner’s statement, his arrest, and
“everything that came from that arrest.” The suppression hearing was lengthy but
unsuccessful. At that point, trial counsel advised the Petitioner that his statement would
be admissible at trial. In the statement, the Petitioner said that co-defendant Henderson
provided gas for the Petitioner’s vehicle so the Petitioner would drive all of his co-
defendants to Mud Island and that co-defendant Henderson knew the security code for
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the residence. Trial counsel further advised the Petitioner that the State intended to have
at least one of the co-defendants testify against him and noted that the Petitioner had been
apprehended while with Henderson. Based upon the foregoing, trial counsel advised the
Petitioner that the best trial strategy was to mitigate his role in the offenses. Trial counsel
said that his closing argument emphasized that “the State put on a hell of a case against
Adrian Henderson, but not against [the Petitioner].” Trial counsel said that he told the
Petitioner that Wynn’s testimony, which was identical to the Petitioner’s statement, was
“a gift” and that “the door was cracked open for us to put up a good defense and to
mitigate this. And [the Petitioner] agreed.”
Trial counsel recalled that the Petitioner faced a total effective sentence of one
hundred and forty-one years. He and the Petitioner discussed whether the Petitioner
would testify. After Wynn’s testimony matched the Petitioner’s statement, they decided
to rely upon the Petitioner’s statement and not to subject the Petitioner to cross-
examination.
Upon questioning by the post-conviction court, trial counsel stated that he “did not
think that [the Petitioner] was going to get a good result [at trial] and so [trial counsel]
did meet with him quite often to see if he still wanted to go forward with the trial.” Trial
counsel reiterated that he tried to mitigate the Petitioner’s role in the offenses and to
separate the Petitioner’s role from that of his co-defendants. Trial counsel said that the
Petitioner agreed with the trial strategy.
On redirect examination, trial counsel said he recalled that the trial court instructed
the jury not to use the court’s reactions as proof in the case. Trial counsel thought the
court gave the instruction after the judge “raise[d] his eyebrows” when he disagreed with
the way trial counsel phrased a question. Nevertheless, trial counsel asserted that the trial
court’s reactions did not interfere with the jury’s ability to judge the case fairly.
The Petitioner’s mother, Patrice Renee Edwards-Bradford, testified that she
assisted in the preparation of the Petitioner’s defense and that she was present at every
court date. She and trial counsel talked about the police’s ability to track the defendants
with the victim’s stolen cellular telephone. She knew that the victim had said the
telephone’s battery was dead, and she asked trial counsel how the State could track the
telephone if the battery was dead. She told trial counsel that she had called several
cellular telephone companies and was told that a cellular telephone with a dead battery
could not be tracked. She said that during trial, she did not hear trial counsel cross-
examine any witness on whether a cellular telephone with a dead battery could be
tracked.
Edwards-Bradford said that trial counsel informed her that the State accidentally
recorded over some of the crime scene photographs. At trial, “[i]t was brought up that
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there were crime scene pictures and the ones that they introduced were not the ones that
[Edwards-Bradford] asked [trial counsel] about.” Trial counsel did not cross-examine
any of the witnesses about the missing photographs.
Edwards-Bradford recalled that the Petitioner, Henderson, Holloway, and Wynn
were charged with the Mud Island crimes. The Petitioner did not have a preliminary
hearing, but two of the co-defendants had a preliminary hearing. At the co-defendants’
preliminary hearing, the victim was asked if he could identify the person who attacked
him. Although all four suspects were in the courtroom, the victim was unable to identify
any of them.
Edwards-Bradford said that one of the Petitioner’s front teeth was chipped almost
in half during a swimming pool accident in 2010 and that it was a distinctive, noticeable
feature. Edwards-Bradford said that the victim described the attacker as five feet, seven
inches tall. She asserted that the Petitioner was six feet, one inch tall.
Edwards-Bradford knew that the police seized the Petitioner’s car when he was
arrested and that the State theorized the Petitioner “carried away numerous bulky items
from the crime scene in his car.” Thereafter, she went to the impound lot to retrieve the
car. While at the impound lot, she took photographs of the car. She stated that the
photographs showed that “the trunk was full to capacity,” which belied the State’s theory
that the stolen items were put in the Petitioner’s car. She gave the photographs to trial
counsel.
Edwards-Bradford said she and trial counsel talked about similar crimes that
occurred in the Mud Island area after the defendants were arrested. After Edwards-
Bradford gave trial counsel the information about the crimes, he printed an article about
the subsequent crimes. However, he did not use the similar crimes as part of his defense
strategy.
Edwards-Bradford said that she spent part of the trial in the hallway of the
courthouse because she was a potential witness. While she was in the hallway, she
overheard an officer “coaching” one of the victims on how to testify. At the post-
conviction hearing, she did not specify what the officer told the victim to say, stating only
that the officer told the victim, “‘[T]his was a heinous crime and you need to make sure
he pays.’” At trial, she told trial counsel about the conversation, and, during a jury-out
hearing, she told the trial court and the State what she had overheard. The trial court
found that any alleged coaching was irrelevant because the victim did not testify in the
manner suggested by the officer.
Edwards-Bradford said that she also told trial counsel that she heard a different
officer tell a woman in the hallway that he did not feel “comfortable” testifying about
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retrieving property from Manchester because the only thing the police recovered from
that location was a bulletproof vest. Nevertheless, the officer
still came in and testified under oath that they recovered all
this property from Manchester. But when [the prosecutor]
asked him, “Well, where did you get the property that you say
you seized,” he said, “We got it out of the property room.”
So they returned the victim’s property out of the
property room that matched or was similar to what he said
was stolen, but [the Petitioner] was arrested because of what
they say they found on Manchester.
Trial counsel informed Edwards-Bradford that getting the officer to retract his statement
would be difficult.
Edwards-Bradford also raised issues regarding the impartiality of the trial judge.
She said that during trial, the trial court instructed the spectators “not to speak, not to say
anything, no phones, no this, no that.” She said that, despite this caution, “every time any
compliment or anything positive was said about [the Petitioner, the judge] made a motion
or a gesture.” She said that the judge also indicated to the State when he thought an
objection should be made. Edwards-Bradford said that she talked with trial counsel about
the trial court’s behavior.
On cross-examination, Edwards-Bradford acknowledged that she hired trial
counsel to represent the Petitioner. She said that the Petitioner had difficulty
communicating with trial counsel because trial counsel met with the Petitioner only once
prior to trial. Accordingly, the Petitioner told trial counsel to comply with the
Petitioner’s mother’s requests because she was speaking on the Petitioner’s behalf.
Edwards-Bradford told trial counsel to obtain the Petitioner’s cellular telephone records
and to get videos from McDonalds, the gasoline station, and any other places the
Petitioner claimed to be on the night of the crimes to prove he was not on Mud Island.
She said that trial counsel refused to comply with her requests.
Edwards-Bradford said that trial counsel discouraged the Petitioner from
testifying. Trial counsel “pleaded” with the Petitioner to accept a plea agreement, but the
Petitioner refused. Edwards-Bradford said that trial counsel’s “strategy was he wanted
[the Petitioner] to take the deal. That was the only thing that – he didn’t discuss tactics or
anything.” Edwards-Bradford said that the Petitioner “even took the stand and had the
Judge explain to him that he was facing a 125 years and he still refused to take the deal.”
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The Petitioner testified that trial counsel alleged during a motion to suppress that
one of the defendants asked the victim for directions, and the victim responded that he
could not get directions from his cellular telephone because the battery was dead. The
Petitioner asserted that he and trial counsel did not discuss whether to challenge the
State’s ability to track the defendants if the battery was dead.
The Petitioner said that he and trial counsel discussed whether to point out to the
jury that no physical evidence linked the Petitioner to the stolen items. The Petitioner
agreed with trial counsel’s suggestion not to pursue that avenue at trial, explaining that he
was not educated about the law and trusted counsel’s advice.
The Petitioner said that he waived his preliminary hearing but that he was present
for the preliminary hearing of one of his co-defendants. Both of the victims testified at
the preliminary hearing, but neither was able to identify any of the perpetrators.
The Petitioner acknowledged that he gave a statement to the police. Trial counsel
filed a motion to suppress the statement based upon the police’s poor treatment of the
defendants. The Petitioner said that he knew the details of the crimes because he picked
up the co-defendants immediately afterward, and they told him what had happened. He
said that he was scared when speaking with the police because he had never been in
trouble before this incident. He tried to tell the police that he had nothing to do with the
crimes, but the police did not believe him and continued to question him. The Petitioner
said that it was “a while” before he gave a statement that the police accepted. During the
interview, he put his head down on the table and went to sleep, but he was awakened by
several officers. As the interview progressed, different officers questioned him using
different strategies. One of the officers told the Petitioner that he had spoken with the
Petitioner’s mother and that she wanted the Petitioner to tell the police about the crimes.
At that point, the Petitioner “broke down and . . . told them everything that [he] knew.”
The Petitioner said that in 2010, he accidentally chipped a tooth diving into a pool.
His tooth was still chipped in 2012. The Petitioner said that he was six feet, one inch tall;
that the victim said his assailant was five feet, seven inches tall; and that trial counsel
never raised the height discrepancy at trial.
The Petitioner said that he was nineteen years old when he was arrested. At that
time, he was working for a temporary service. When asked what he had been planning to
do with his life, he said that he had liked to “take old cars and build them up and auction
them off” and that he had been trying to get into “UTI, University of Technical Institute”
in Houston, Texas.
The Petitioner acknowledged that in his statement, he admitted involvement in
five robberies. He asserted, however, that he did not participate in five robberies and that
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he made the statement because he was scared and because the police refused to accept
that he was not involved in the crimes. He explained, “So I said whatever I had to say or
I felt that I had to say to get out of there.” When asked how he knew what to say, the
Petitioner stated that the police told him details about the crimes and “were just like
telling me what I did.”
The Petitioner said that trial counsel advised him not to testify because counsel
feared the State’s cross-examination would cause the Petitioner to appear untruthful. The
Petitioner trusted trial counsel and agreed not to testify.
On cross-examination, the Petitioner denied that the police told him what to say in
his statement. The Petitioner got the details in his statement “secondhand” from his
friends, and he heard the details “several times . . . from all three of them.” The
Petitioner said that he picked up the co-defendants because they needed a ride and offered
to give him gas money. The Petitioner said that he knew the details of the other robberies
because his friends told him about them.
At the conclusion of the hearing, the post-conviction court held that the Petitioner
had failed to establish that his trial counsel was ineffective. On appeal, the Petitioner
challenges the post-conviction court’s ruling.
II. Analysis
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.
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When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,
[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides
a sufficient basis to deny relief on the ineffective assistance
claim. 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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
On appeal, the Petitioner raises all of the claims of ineffective assistance raised in
the trial court. Initially, we note that the Petitioner did not submit his cellular telephone
records or any surveillance videos in order to challenge his whereabouts on the night in
question. Petitioner has failed to show what the evidence would have been. We may not
speculate on what benefit, if any, this evidence might have offered to the Petitioner’s
case. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Accordingly, the
Petitioner has failed to demonstrate prejudice.
Further, the post-conviction court found that although the Petitioner and his
mother stated the victim had said his cellular telephone had a dead battery, the trial
transcript reflects the victim testified his telephone had a “low battery.” The court stated
that the Petitioner did not adduce any proof the police could not track a cellular telephone
with a low battery. We agree. Moreover, trial counsel noted, that introducing the records
could have been detrimental to their mitigation strategy. The Petitioner is not entitled to
relief on this claim.
The Petitioner also contends that trial counsel failed to question an officer about
contradictory statements the officer made regarding the location where evidence was
recovered. Trial counsel, whose testimony the post-conviction court implicitly
accredited, testified that he was unaware of the allegations prior to the post-conviction
proceedings. The Petitioner is not entitled to relief on this claim.
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Finally, we turn to the Petitioner’s remaining claims, namely that trial counsel
failed to challenge the identification evidence and the lack of physical evidence tying the
Petitioner to the crimes, trial counsel’s failure to introduce evidence that similar crimes
occurred after the crimes for which the Petitioner was on trial, trial counsel’s failure to
inform the jury that the photographs of the crime scene had been lost, and trial counsel’s
failure to question the reliability of the Petitioner’s statement. Trial counsel testified that
after the trial court overruled the motion to suppress the Petitioner’s statement, he
decided not to challenge identity and devised a strategy to use the statement in order to
minimize the Petitioner’s role in the crimes. Counsel discussed the strategy with
Petitioner and Petitioner agreed. In light of the details in the Petitioner’s statement,
counsel did not want to “nit-pick” the State’s evidence, opining that to do so would cause
the jury to question the defense’s theory that the Petitioner’s role in the crimes was
minor. The post-conviction court found that trial counsel advised the Petitioner of the
trial strategy, that the Petitioner agreed with the trial strategy, and that the strategy was
successful in that the Petitioner was convicted of lesser-included offenses instead of the
charged offenses. The court further observed that the strategy was also successful in that
the “Petitioner had a total possible exposure in all of his cases in excess of one hundred
years. The state’s offer to settle on an agreed upon sentence was twenty-two years. [The
Petitioner ultimately] received sixteen years.” The post-conviction court held that trial
counsel was not ineffective. The evidence does not preponderate against the ruling of
post-conviction court.
III. Conclusion
Finding no error, we affirm the judgment of the post-conviction court.
____________________________________
NORMA MCGEE OGLE, JUDGE
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