Brian Keith Good v. State of Tennessee ( 2016 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs June 28, 2016
    BRIAN KEITH GOOD v. STATE OF TENNESSEE
    Appeal from the Criminal Court for Sullivan County
    No. C62924     James F. Goodwin, Jr., Judge
    No. E2015-01736-CCA-R3-PC – Filed October 28, 2016
    The Petitioner, Brian Keith Good, appeals from the post-conviction court‟s denial of
    relief from his convictions for criminally negligent homicide, attempted aggravated
    robbery, and unlawful possession of a deadly weapon.1 On appeal, he argues that he
    received ineffective assistance of counsel based on trial counsel‟s (1) failure to
    adequately investigate and discover a witnesses‟ third statement in preparation for trial
    and (2) failure to call Anthony Branche and Mark Tolley as defense witnesses. 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
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
    HOLLOWAY, JR., J., joined. ROBERT H. MONTGOMERY, JR., J., not participating.
    Cliff Corker, Johnson City, Tennessee (at post-conviction hearing), and Ilya I.
    Berenshteyn, Bristol, Tennessee (on appeal), for the Petitioner, Brian Keith Good.
    Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
    Attorney General; Barry P. Staubus, District Attorney General; and William B. Harper,
    Assistant District Attorney General, for the Appellee, State of Tennessee.
    OPINION
    In January 2006, the Petitioner was charged by presentment to the Sullivan County
    Grand Jury with first degree felony-murder, attempted aggravated robbery, and the
    unlawful possession of a weapon. State v. Bryan Keith Good, No. E2009-00926-CCA-
    R3-CD, 
    2010 WL 3706625
    , at *1 (Tenn. Crim. App. Sept. 23, 2010), perm. app. denied
    1
    Although the presentment initiating the charges against the Petitioner in this case spells his name as
    “Bryan Keith Good,” we note that the petition for post-conviction relief and all documents related to this
    matter spell his name as “Brian Keith Good.”
    (Tenn. Nov. 27, 2012). Following a jury trial on July 9, 2008, the Petitioner was
    convicted of criminally negligent homicide, attempted aggravated robbery, and unlawful
    possession of a deadly weapon. The trial court sentenced the Petitioner as a Range III,
    Persistent Offender to fifteen years for the attempted aggravated robbery conviction and
    to six years for each of the remaining convictions, to be served consecutively, for an
    effective sentence of twenty-seven years‟ incarceration. 
    Id. at *9.
    On direct appeal, this
    court affirmed the Petitioner‟s convictions but remanded for resentencing after
    concluding that the convictions for both attempted aggravated robbery and unlawful
    possession of a deadly weapon violated double jeopardy protections. 
    Id. at *11.
    The
    Petitioner‟s convictions for attempted aggravated robbery and unlawful possession of a
    deadly weapon were merged, which resulted in an effective sentence of twenty-one
    years‟ incarceration.
    Upon determining that appellate counsel was deficient in failing to file an
    application for permission to appeal, the trial court granted the Petitioner a delayed Rule
    11 appeal, which was subsequently denied by the Tennessee Supreme Court. On
    November 15, 2013, the Petitioner filed the present pro se petition for post-conviction
    relief, alleging, inter alia, that he received ineffective assistance of trial counsel. After
    determining that the Petitioner stated a colorable claim for relief, the post-conviction
    court appointed counsel, but no amended petition was filed.
    The underlying facts of the Petitioner‟s conviction were summarized by this court
    on direct appeal. See 
    id. at *1-9.
    We will include only those facts pertinent to the issues
    raised in this appeal. On the evening of August 12, 2005, Joshua Branche went to the
    home of Brandon Mottern, the victim, after observing two people, later identified as the
    Petitioner and his co-defendant, Gregg Nutter, trying to break into his apartment at
    Graystone Apartments in Washington County, Tennessee. Around 4:00 a.m. on August
    13, 2005, Joshua Branche‟s brother, Anthony Branche, and his girlfriend, Laura Carrier,
    were at their home at 932 Allison Road when their dog began to behave strangely,
    prompting Anthony Branche to look out the window. Anthony called his brother, Joshua,
    who along with the victim, immediately drove to Anthony‟s house on Allison Road in the
    victim‟s car. As they approached the house, Joshua saw people in dark clothing that he
    did not recognize standing outside the side door. As the victim pulled into the driveway,
    he pulled the emergency brake, jumped out of the car, and started chasing the suspects
    into a field behind the house. Joshua ran to the door, yelling for his brother. Anthony ran
    out of his house and followed after the suspects behind the victim. 
    Id. at *2-4.
    After hearing a truck start, the Branche brothers got into the victim‟s car to follow
    the truck and to get the tag number. They saw the truck drive through the field behind
    the house and followed it for “[p]robably a half a mile, maybe a mile.” Joshua
    recognized the truck as belonging to the Petitioner. As they followed the truck, he “heard
    -2-
    loud noises and [saw] flames coming from the truck[,]” so he turned around and went
    back to his brother‟s house. When they got back to Anthony‟s house, he asked where the
    victim was, but neither Anthony nor Carrier realized that anyone had been with him when
    he arrived. They took flashlights and began to search for the victim and, after around five
    minutes, Joshua found the victim lying on his back in the field. He did not get close
    enough to see whether the victim had any injuries but immediately called 911. It was
    later determined that the victim died as a result of a close-range shotgun wound to his
    chest. He had a closed pocket knife in his hand, and a crowbar was located around ten
    feet from his body. 
    Id. at *3.
    Joshua testified that Anthony left the field while he waited near the road for law
    enforcement to arrive, but he did not know where he went. He further testified that he
    did not know what Anthony was doing while he was driving behind the Petitioner‟s
    truck. He denied that either he or the victim was armed when they left the victim‟s
    house. He did not know the victim to normally carry a weapon and did not see any
    weapons in the victim‟s car. He also noted that the Petitioner came to his apartment one
    to two weeks prior to the victim‟s death, asking him where Anthony was. Joshua
    explained that Anthony used illegal drugs, which was why he did not speak with him
    often. 
    Id. at *
    3.
    On cross-examination, Joshua testified that he did not know whether Anthony sold
    drugs, but Anthony did not work and always had money. Joshua was repeatedly
    questioned concerning whether he, the victim, or his brother had a weapon during the
    offense. The following exchange occurred between defense counsel and Joshua:
    Q: Now, did your brother -- did your brother have any guns at his house?
    A: I never seen none. I‟m not allowed to be around guns.
    Q: You‟ve sold my client a gun in the past, haven‟t you?
    A: I ain‟t never owned a gun.
    ...
    Q: Because you‟re not supposed to be around them because you‟re a
    convicted felon, aren‟t you?
    A: Yes, sir.
    -3-
    Q: All right. So if you had a gun you probably wouldn‟t tell me that you
    had it, would you?
    A: I ain‟t never owned a gun. I have never shot a gun.
    Q: All right. Your brother, was he a convicted felon also?
    A: Yes, sir.
    Q: He‟s not supposed to have guns either, is he?
    A: No, sir.
    ...
    Q: All right, sir. Now you all pull up, take off running. Is your brother
    outside shooting when you pull up?
    A: I didn‟t see him with no gun. No, sir.
    Q: You once made the statement, I believe, that you‟ve never heard a
    gunshot except for on television. Is that what you‟d have this jury to
    believe, sir?
    A: I‟ve never been around a gun, period.
    Q: And that‟s what you want the jury to believe, sir?
    A: That‟s what I said. I mean, yeah.
    Q: All right, so you‟re there and you pull up and [victim Mottern] -- and
    had you seen his knife before?
    A: I never seen him carry a knife.
    Q: You knew he had a knife in his hand when he got out chasing these
    people, didn‟t you?
    A: No, sir.
    ...
    -4-
    Q: When you got out there and [your brother] came outside, do you deny
    that you or he shot at the people in the field?
    A: I never seen nobody with a gun. No, sir.
    Q: All right. Now at that point you got in [victim Mottern‟s] car and went
    and chased these people?
    A: When I heard the truck start and leaving the field.
    Q: And your brother got in the vehicle with you?
    A: Yes, sir.
    ...
    Q: All right. And you all go down -- do you deny shooting at the vehicle
    that you‟re chasing?
    A: I -- no, sir, I didn‟t.
    Q: Did your brother?
    A: I don‟t know if he did or not.
    Q: Well, did you ever make the statement to somebody that -- that you
    would have got those boys but you run out of bullets?
    A: No, sir, I didn‟t.
    Q: Do you deny making that statement, sir?
    A: I didn‟t make no statement like that to anybody. I don‟t even own a gun.
    Laura Carrier had lived with Anthony Branche for two and a half years and
    confirmed that there were no guns in the house. Moreover, she said that Anthony was not
    armed when he left and denied hearing any gunshots or unusual noises before leaving
    their house.2 Peggy Ramey and her boyfriend, Mike Compton, both friends of the
    Petitioner, confirmed that the Petitioner brought his co-defendant, Gregg Nutter, to their
    2
    At the time of trial, Carrier was deceased. Her testimony was read into the record.
    -5-
    house on August 12, 2005. On Sunday, August 14, 2005, Ramey noticed that the shotgun
    she normally kept in her spare bedroom closet was in a corner of her bedroom and a bag
    of shells was on her bed. The 12-gauge shotgun, 12-gauge shells, and one spent 12-
    gauge shell were collected as evidence. The shotgun wadding recovered from near the
    scene was determined to be consistent with the shotgun shells from Ramey‟s residence.
    The Petitioner, along with his co-defendant Gregg Nutter, testified at trial, both
    providing slightly different versions of the events leading up to the victim‟s death. The
    most significant distinction between their testimony was that Nutter testified that the
    Petitioner shot the victim, while the Petitioner testified that Nutter shot the victim.
    Nutter, who had entered an agreement with the State to plead guilty to facilitation of first
    degree murder in exchange for an eighteen-year sentence, testified, as relevant here, that
    the Petitioner wanted to go to the Branche brothers‟ homes to get money or drugs
    because the Branche brothers owed the Petitioner money. The Petitioner and Nutter
    returned to Anthony Branche‟s home a second time that night and parked his truck in the
    adjacent field. Upon exiting the truck, the Petitioner was armed with a shotgun obtained
    from Ramey‟s home and gave Nutter a small loaded pistol. After walking around the
    house, the Petitioner went onto the porch. At that point, they saw headlights and ran
    through the field towards the truck.
    Nutter testified that he heard footsteps behind them, and a young man said either
    “„I‟ll cut you, motherf* * *er‟ or „I‟ll gut you, mother-f* * *er.‟” Nutter looked over his
    shoulder and saw the Petitioner turn and fire the shotgun. As they got into the
    Petitioner‟s truck to drive away, a vehicle began chasing them, and someone in the
    vehicle was shooting at them. The Petitioner told Nutter to shoot back, and Nutter took
    the shotgun and tried to fire it out of the window. He said that the empty shell had not
    been cleared, so he ejected the shell and reloaded. He testified that he did not know
    where the empty shell went. He fired the shotgun at the vehicle behind them. The
    vehicle stopped following them, and they returned to Ramey‟s house. The Petitioner told
    him that he might have “peppered” the man in the field and gave him a story to tell
    anyone who asked where they had been. The next Monday, the police interviewed
    Nutter, who gave the police three statements. He lied in the first statement, told the
    partial truth in the second statement, and told the full truth in the third statement. 
    Id. at *
    4-5.
    The Petitioner testified that on August 12, 2005, he had purchased marijuana from
    Joshua Branche. The Petitioner took marijuana and Xanax pills to Nutter‟s house. While
    the Petitioner was at Nutter‟s house, Joshua Branche called him to ask whether he knew
    anyone he could sell marijuana to and to tell him that someone had broken into his
    apartment and stolen marijuana. The Petitioner and Nutter talked about the Branche
    brothers after Joshua Branche called because Nutter knew Anthony Branche. The
    -6-
    Petitioner testified that Nutter asked him four or five times to take him to Joshua
    Branche‟s apartment and that Nutter discussed with his wife the possibility of getting
    marijuana from Branche and selling it. After the Petitioner showed Nutter where Joshua
    Branche‟s apartment was, the Petitioner went back to Ramey‟s house because he did not
    want to be involved with stealing marijuana from Branche. The Petitioner said that
    Nutter went back to Joshua Branche‟s apartment alone, found it empty, and returned to
    Ramey‟s house.
    The Petitioner said that Nutter then wanted the Petitioner to take him to Anthony
    Branche‟s home. They went to Anthony Branche‟s home, parked in a field, and got out
    of the truck. They walked to the house, heard the dog barking, ran back to the truck, and
    eventually returned to Ramey‟s house to borrow her shotgun for protection from the dog.
    The Petitioner retrieved a .9 millimeter pistol that he had hidden in a tool box at a friend‟s
    house, but Nutter did not want to carry the pistol because it was in poor condition. They
    returned to Anthony Branche‟s home a second time in the Petitioner‟s truck. While they
    went around to the back of the house, the Petitioner was carrying the .9 millimeter pistol
    in his overalls, and Nutter was carrying the shotgun. They heard a car coming, and they
    went back to the truck. The Petitioner said he was in the tree line by the time the car
    pulled into the driveway, but Nutter was hiding in bushes near the house.
    They both began running when the car pulled into the driveway. The Petitioner
    heard gunshots fired at them, and a loud gunshot behind him. The Petitioner testified that
    “[he] figured [Nutter was] shooting back at these guys . . . [that were] shooting at
    [them].” They got into the truck, and Nutter told the Petitioner that he thought he shot
    someone. When they drove away, a car followed them. The Petitioner testified that the
    occupants of the car began shooting at them. Nutter said “something about shooting
    them,” and the Petitioner told him that he should shoot back. Nutter had to eject a shell
    from the gun before he could shoot. He put the ejected shell in his pocket and fired back
    at the car following them. 
    Id. at *
    7-8.
    Gary Daugherty, who was incarcerated with Nutter after Nutter‟s arrest, testified
    that Nutter told him that he shot a man in self-defense because that man was trying to cut
    him. Andrew Atkins testified that Nutter told him that the Petitioner “would take the fall
    for this shooting[.]” He said that the conversation took place in the Washington County
    Detention Center. Atkins testified that he was a friend of the Petitioner‟s younger brother
    and that he knew Nutter because they were previously neighbors. He also said that he
    knew Anthony and Joshua Branche and that they had a reputation as drug dealers who
    always armed themselves.
    Anthony Branche did not testify at trial.
    -7-
    Post-Conviction Hearing. At the March 11, 2015 evidentiary hearing, Anthony
    Branche testified that on August 13, 2005, he was at his house on Allison Road in
    Sullivan County with his then girlfriend, Laura Carrier, and a friend. At around 2:00
    a.m., he woke to the sound of his dog barking. He walked downstairs, turned on his
    porch light, and saw two men standing outside his house. He testified that both of the
    men wore masks and that one of the men had glasses and was carrying a gun. Anthony
    said that he retrieved a gun from inside his house upon seeing the men, but he denied
    being afraid of them. He then called his brother, Joshua Branche, and Joshua arrived
    with the victim at Anthony‟s house approximately ten minutes later. Anthony was on the
    phone with Joshua as Joshua and the victim pulled into the driveway, and Joshua stated
    that there were two men at the back door. Anthony then ran outside and saw the victim
    chasing the two suspects into a nearby field. Anthony, still carrying a gun, fired a couple
    of shots into the field. Several shots were fired back, but Joshua told Anthony to stop
    shooting because the victim was in the field.
    Anthony then took off running into the field. He testified that he was still carrying
    a gun and that the victim had been carrying a knife, though he did not know about the
    knife until later. When he caught up to the other men, he saw “a flash” of gunfire as the
    suspect with glasses shot the victim. He noted that the second suspect was already gone
    by that point and that he never saw the second suspect with a gun. He also testified that
    the shooter was shorter than the second suspect. After the victim was shot, Anthony
    observed both suspects get into a truck. He then “t[ook] off back to [his house]” and got
    into the victim‟s car with Joshua, and they chased the suspects‟ truck down the road for a
    while. He returned gunfire when the man with glasses leaned outside of the truck and
    shot at them. He estimated that they fired back and forth for about a mile and that he
    fired about eight to ten shots.
    Anthony testified that he and Joshua eventually stopped pursuing the truck and
    returned to his house. They got a flashlight and went to the field to look for the victim.
    When they found the victim, he was already dead. Joshua then called 911. When police
    arrived, Anthony told them about the victim‟s shooting but did not disclose that he had
    been firing a gun or that the victim‟s shooter was wearing glasses. He said that the police
    came back to his house a few days later and arrested him on a warrant for false reporting,
    felony reckless endangerment, and unlawful carrying of a firearm. He later pled guilty to
    those offenses. He noted that these charges were based on statements he and his brother
    made to police, which were summarized in his affidavit of complaint.
    The supporting facts cited in the affidavit of complaint, written and signed by
    Detective Simpson, were as follows:
    -8-
    On 08-13-05 units from the Sullivan County Sheriff‟s Office were
    dispatched to 932 Allison Road, Piney Flats, TN on a burglary and a
    possible homicide. Upon their arrival officers found a male subject laying
    in a field adjacent to the residence with a single gunshot wound to the
    chest. The subject was deceased when the officer‟s arrived.
    On 08-13-05 writer interviewed Mr. Anthony Lee Branche and he
    advised that someone had attempted to break into his home and he had
    called his brother, Joshua Branche, to come to his home. Mr. Branche
    advised that upon his brother[‟]s arrival he had brought with him a Mr.
    Brandon Mottern. Upon th[ei]r arrival, Mr. Mottern and Joshua Branche
    saw three subjects outside the home[.] Brandon Mottern exited his vehicle
    and pursued the subjects on foot into the field. Mr. Branche advised that he
    heard two or three gunshots and he saw a vehicle‟s lights come on while
    driving out of the field to the road. He stated that at this time he and his
    brother got into his vehicle and chased the vehicle down Allison Road. He
    stated that they chased the vehicle until the persons in the truck started
    shooting back at them. Mr. Branche advised that at this time they turned
    around and drove back to the house and shortly thereafter found the body of
    Mr. Mottern in the field adjacent to the house.
    On 08-15-05 writer interviewed the brother of Anthony Branche.
    His name is Joshua Branche. He stated that on the morning of 08-13-05
    when he and his brother started pursu[]ing the vehicle down Allison Road
    Anthony was not driving the vehicle but he was driving Mr. Mottern‟s
    vehicle and that his brother Anthony was the passenger. He stated that
    Anthony was hanging out the passenger side window and had a small pistol
    in his hand. He stated that Anthony was firing the gun at the people in the
    vehicle. Joshua stated that when the people started firing back he stopped
    chasing them because he did not want to get shot.
    Writer obtained a copy of Mr. Anthony Branche‟s criminal history
    and found him to be a convicted felon. Based on the above information he
    was charged with False Reporting, Felony Reckless Endangerment, and
    Unlawful Carr[y]ing of a Firearm. All of the above occurred in Sullivan
    County, TN.
    Anthony confirmed that he gave no other statement to police besides the one he
    gave on the night of the offense and that he was never called to testify at the Petitioner‟s
    trial. He further claimed that he was never contacted or interviewed by the Petitioner‟s
    -9-
    attorney or investigator. He testified that he would have given the same description of
    the offense that he had given at the post-conviction hearing if he had been called to testify
    at trial. He further agreed that if Joshua had testified at trial that there was no gun
    involved, it would have been a false statement, and he repeated that there was both a
    knife and gun involved.
    On cross-examination, Anthony conceded that he did not tell law enforcement the
    whole truth on the night of the offense. He did not recall refusing to talk or meet with the
    Petitioner‟s investigator in jail on June 20, 2007. He noted that he knew the Petitioner
    prior to the victim‟s shooting in August 2005 but had never met the Petitioner‟s co-
    defendant. However, he denied that he and the Petitioner had ever discussed the details
    of the case. Moreover, he admitted that he had pled guilty on September 24, 2005, to the
    second degree murder of Laura Carrier. In relation to that case, he also pled guilty to
    tampering with evidence and possession of a Schedule II drug for resale. In response to
    questions raised by the court, he admitted that he had felony convictions prior to August
    2005 for “a couple of auto burglaries and two sales of [a] Schedule VI [drug].”
    Trial counsel testified that he was aware that Anthony Branche was a victim in the
    Petitioner‟s case. Counsel‟s case file indicated that on June 20, 2007, his investigator
    attempted to meet with Anthony, but Anthony refused to talk to him. Counsel made no
    further attempts to speak with him because his investigator indicated that there was no
    point. Counsel conceded that Joshua Branche testified at trial that there was no gun
    involved on the night of the offense. Counsel said that he had two prior statements by
    Joshua from August 13, 2005, neither of which claimed that Anthony was firing shots
    during the offense. He confirmed that these were the only two statements he had from
    Joshua. He further noted that his investigator attempted to meet with Joshua on June 27,
    2007, but Joshua‟s attorney had advised him not to speak with the investigator.
    When asked about a third statement by Joshua from August 15, 2005, counsel
    responded, “To my knowledge I don‟t have it in my file and I‟m not aware of it.”
    Counsel claimed that he was aware of Anthony Branche‟s affidavit of complaint, which
    referenced Joshua‟s August 15 statement that mentioned the involvement of guns, but he
    was unsure of whether he was provided a copy of the affidavit. However, counsel had
    written in his notes that Joshua “gave up to three different stories,” and he had
    “summaries of what [Anthony] Branche said.” Counsel testified that he was aware that
    Anthony had pled guilty the year before the Petitioner‟s trial to possession of a firearm on
    the night of the offense. Furthermore, he said that “[he] remember[ed] all through the
    trial [he] had a lot of notes that, you know, „Where is [Anthony][?]‟”
    Counsel testified that he felt the jury discounted Joshua Branche‟s testimony that
    there were no guns involved. Counsel recalled that he and the Petitioner spoke about the
    -10-
    testimony of Joshua and Anthony Branche being unreliable, and they agreed that “you
    couldn‟t trust what they would testify to.” Counsel felt that the overall result of the
    Petitioner‟s trial was favorable because the jury believed that the Petitioner was not the
    shooter and therefore convicted him of the lesser offense of negligent homicide.
    On cross-examination, counsel testified that he had been practicing law for almost
    thirty years, with a large part of his work in criminal defense. He claimed that he was
    well aware of Anthony Branche‟s criminal history before trial and, given the history of
    both Joshua and Anthony Branche, he “didn‟t know which version of the stories they
    would give” at trial. He testified that Joshua was cross-examined and impeached at both
    the Petitioner‟s preliminary hearing and trial for giving multiple different descriptions of
    the offense. Counsel further stated that the two pivotal issues at the Petitioner‟s trial were
    the testimony of the Petitioner‟s codefendant, Nutter, and the location of the crowbar
    found at the crime scene. He said their defense strategy was that the Petitioner was not
    the shooter and that Nutter was the only witness that testified against this assertion.
    On cross-examination, counsel also testified that he pointed out several times
    during trial that the State did not call Anthony Branche as a witness. Counsel testified
    that his decision not to locate or call Anthony as a defense witness at trial was a strategic
    choice. He explained,
    I thought I could get more mileage out of, you know, why the State
    did not call him as a witness because of what he may or may not testify to
    because it was --- he was a wild card.
    ...
    If the victim is not there from my strategy standpoint[,] I didn‟t want
    them there if the State wasn‟t going to have him.
    On redirect examination, counsel stated that Anthony‟s testimony would not likely
    have changed the result of the Petitioner‟s trial because it was undisputed that the
    Petitioner was present during the victim‟s murder.
    The Petitioner, testifying on his own behalf, stated that “[he] like[d] [trial
    counsel]” and had “no problem with him.” He admitted that trial counsel hired a private
    investigator, allowed the Petitioner to get a polygraph, and “actually tried,” but “just
    [did]n‟t think he --- what happened was right, you know.” He testified that he spoke to
    trial counsel about Joshua Branche‟s third statement to law enforcement but that the
    statement was never obtained. The Petitioner said that he knew there was a third
    -11-
    statement because it was stated during his preliminary hearing that there were three
    statements, and the Petitioner “[had] been trying to get that third statement ever since.”
    The Petitioner further testified that trial counsel did not call Mark Tolley, Nutter‟s
    cellmate for four or five months, to testify at trial. The Petitioner explained that Nutter
    told Tolley that he shot the victim and counsel obtained a statement from Tolley to police
    about what Nutter told him. However, when they attempted to call Tolley at trial, he
    refused to testify because “[h]e was scared to come at the time because he was in prison
    and afraid they‟d get him for snitching.” Although the Petitioner admitted that it was not
    counsel‟s fault that Tolley would not testify, he thought that counsel should have
    subpoenaed Tolley as a witness based on the statement Tolley gave police. The
    Petitioner suggested that Nutter had also “bragg[ed]” about killing the victim to several
    other inmates.
    In addition, the Petitioner testified that there was no evidence brought out at trial
    to contradict the false testimony of Joshua Branche. He emphasized that Anthony
    Branche‟s affidavit of complaint contained a statement by Joshua admitting that Anthony
    was hanging outside of the window of their vehicle shooting at the Petitioner. Moreover,
    he said that he did not know that Anthony Branche pled guilty to unlawful possession of
    a gun on the night of the offense but that trial counsel should have known about the
    conviction and brought this information out at trial. The Petitioner also noted that the
    State, despite knowing about the statements contained in the affidavit of complaint and
    knowing about Anthony‟s firearm conviction, allowed Joshua to testify falsely at trial
    that neither he, nor the victim, nor Anthony had a gun during the offense. Moreover,
    even though the Petitioner testified at trial that he had been shot at, he felt that it would
    have helped to be able to show the jury that Anthony Branche, in fact, pled guilty to
    unlawful possession of a firearm, in contrast to the trial testimony of Joshua Branche.
    The Petitioner agreed that he and trial counsel discussed the testimony of Anthony
    Branche but that he “didn‟t know why the State wasn‟t calling him.” However, the
    Petitioner admitted that he was not sure what Anthony Branche would have said at trial.
    The Petitioner also testified that he had never worn glasses, but that Nutter did wear
    glasses and that he was “about 4, maybe 5 inches taller” than Nutter. He confirmed that
    he did not testify at trial that he did not wear glasses. He noted, however, that he would
    have gotten into that had he known that Anthony Branche saw a man with glasses shoot
    the victim.
    On cross-examination, the Petitioner conceded that trial counsel‟s investigator met
    with Mark Tolley before trial. He testified that he would be surprised to learn that Tolley
    told the investigator that the Petitioner dictated the statement Tolley gave police.
    Moreover, the Petitioner confirmed that he and Anthony Branche were friends prior to
    -12-
    the offense but denied that Anthony was trying to protect him by telling police that the
    victim‟s shooter was wearing glasses.
    Following arguments from counsel, the post-conviction court took the matter
    under advisement and denied relief in a written order on August 25, 2015. The Petitioner
    was appointed appellate counsel and a timely notice of appeal was filed on September 3,
    2015.
    ANALYSIS
    The Petitioner contends that trial counsel provided ineffective assistance by failing
    to (1) discover Joshua Branche‟s third statement to law enforcement, (2) call Anthony
    Branche as a defense witness, and (3) call Mark Tolley as a defense witness.3 He asserts
    that but for these failures on the part of trial counsel, the outcome of his trial would have
    been different. The State argues that the post-conviction court properly denied relief.
    Upon review, we agree with the State.
    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. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:
    A post-conviction court‟s findings of fact are conclusive on appeal
    unless the evidence preponderates otherwise. When reviewing factual
    issues, the appellate court will not re-weigh or re-evaluate the evidence;
    moreover, factual questions involving the credibility of witnesses or the
    weight of their testimony are matters for the trial court to resolve. The
    appellate court‟s review of a legal issue, or of a mixed question of law or
    fact such as a claim of ineffective assistance of counsel, is de novo with no
    presumption of correctness.
    Vaughn v. State, 
    202 S.W.3d 106
    , 115 (Tenn. 2006) (internal citations and quotation
    marks omitted); Frazier v. State, 
    303 S.W.3d 674
    , 679 (Tenn. 2010); See Felts v. State,
    
    354 S.W.3d 266
    , 276 (Tenn. 2011). A post-conviction petitioner has the burden of
    proving the factual allegations by clear and convincing evidence. T.C.A. § 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
    3
    We note that counsel for the Petitioner first submitted his appellate brief on February 10, 2016, but the
    brief was stricken from the record for being “inexcusably substandard.” Counsel submitted an amended
    brief, which was filed on July 14, 2016.
    -13-
    (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).
    In order to prevail on an ineffective assistance of counsel claim, the petitioner
    must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
    performance prejudiced the defense. 
    Vaughn, 202 S.W.3d at 116
    (citing Baxter v. Rose,
    
    523 S.W.2d 930
    , 936 (Tenn. 1975); Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984)).
    A petitioner successfully demonstrates deficient performance when the petitioner
    establishes that his attorney‟s conduct fell “below an objective standard of reasonableness
    under prevailing professional norms.” Goad v. State, 
    938 S.W.2d 363
    , 369 (Tenn. 1996)
    (citing 
    Strickland, 466 U.S. at 688
    ; 
    Baxter, 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
    ). 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.
    
    Id. at 370
    (citing 
    Strickland, 466 U.S. at 697
    ).
    The Petitioner contends that trial counsel did not adequately investigate and
    prepare for trial because he failed to discover the “third statement” Joshua Branche made
    to law enforcement. Though not apparent from the Petitioner‟s brief, we have gleaned
    from the record that he is referring to information contained in the affidavit of complaint
    against Anthony Branche for false report, reckless endangerment, and unlawful
    possession of a firearm on the night of the offense. Specifically, the body of the affidavit
    contained statements from Joshua during an interview with law enforcement on August
    15, 2015, in which he stated,
    Anthony was hanging out the passenger side window and had a small pistol
    in his hand. He stated that Anthony was firing the gun at the people in the
    vehicle. Joshua stated that when the people started firing back he stopped
    chasing them because he did not want to get shot.
    The statements contained in the affidavit were in contrast to two previous statements by
    Joshua from August 13, 2005, as well as Joshua‟s testimony at trial that neither the
    victim, nor he, nor Anthony had a gun on the night of the offense. The Petitioner
    -14-
    contends that trial counsel‟s failure to discover and obtain Joshua‟s “third statement”
    amounted to deficient performance. In support, the Petitioner points to statements by
    trial counsel indicating that he was unaware of the third statement.
    In denying relief, the post-conviction court determined “that [trial counsel] was
    aware of the information in the affidavit of complaint, and that he successfully impeached
    Joshua Branche with his other prior statements, prior testimony at the preliminary
    hearing, and with his criminal history.” We acknowledge that trial counsel did not
    question Joshua about the conflicting statements that appear in the affidavit of complaint
    during cross-examination in response to Joshua‟s denial that guns were involved.
    Furthermore, counsel did not present the fact that Anthony Branche was convicted of
    unlawful possession of a weapon on the night of the offense to the jury, a fact that further
    undermines the testimony that Anthony Branche did not have a gun on the night of the
    offense.
    Nevertheless, we conclude that the Petitioner has failed to demonstrate any
    prejudice in relation to this issue. Here, it is undisputed that the Petitioner and his co-
    defendant were present at victim Anthony Branche‟s home in an attempt to burglarize it
    on the night of victim Mottern‟s death. Once the Petitioner‟s plan was foiled, victim
    Mottern chased him into the field where the victim was fatally shot as a result of “loose
    gunshot wound to the chest --- meaning that the muzzle of the gun was against his skin
    when the gun discharged.” Bryan Keith Good, 
    2010 WL 3706625
    , at *6. In our view,
    even if Joshua‟s third statement acknowledging his brother‟s possession of a gun was
    presented to the jury, it would have been of little import because the gunfire exchange
    between the Petitioner/co-defendant and the Branche brothers would have occurred after
    the victim was killed at close range in the field. In addition, there was other testimony at
    trial regarding the use of guns by the Branche brothers. The Petitioner and Nutter
    testified that the car chasing them from the field was shooting at them and that they
    needed to return fire. Andrew Atkins also testified that the Branche brothers had a
    reputation for being drug dealers who were always armed. Finally, trial counsel cross-
    examined Joshua Branche extensively during trial regarding his and his brother‟s use of
    guns on the night of the offense. Trial counsel testified that, based on the verdict, the jury
    appeared to have discredited Joshua Branche‟s testimony that no weapons were involved.
    The post-conviction court noted, and we agree that “[a]s a result of trial counsel‟s
    performance, the Petitioner was acquitted of first degree murder and convicted of the
    lesser offense of criminally negligent homicide[.]” Given this favorable result, counsel‟s
    failure to question Joshua Branche specifically about the statements in the affidavit of
    complaint was not prejudicial. Accordingly, he is not entitled to relief on this issue.
    Next, the Petitioner argues that trial counsel was ineffective in failing to call
    Anthony Branche as a witness at trial. The Petitioner contends that Anthony‟s account of
    -15-
    the offense “could have been crucial for the defense,” noting that Anthony admitted to
    firing shots at the Petitioner and gave a description of the victim‟s shooter that matched
    the Petitioner‟s co-defendant. In denying relief, the post-conviction court found that
    Anthony “had no credibility at all” and that trial counsel made a strategic decision not to
    call him to testify as a witness at trial. The record does not preponderate against the post-
    conviction court‟s findings. Here, trial counsel, whose testimony the post-conviction
    court credited, testified that he discussed the reliability of Anthony‟s testimony with the
    Petitioner, and the Petitioner conceded at the post-conviction hearing that neither he nor
    counsel knew what Anthony would have said at trial. Counsel further stated that he did
    not think it was strategic to call a victim of the offense as a defense witness and that he
    would “get more” from emphasizing the fact that the State did not call Anthony.
    Moreover, trial counsel did not feel that Anthony‟s testimony would have changed the
    outcome of the Petitioner‟s trial given that the Petitioner was convicted of the lesser
    offense of criminally negligent homicide and because it was undisputed that the
    Petitioner was present at the time of the victim‟s shooting. Based on the proof, we agree
    with the post-conviction court that counsel made an informed, tactical decision not to call
    Anthony on behalf of the defense at trial. Accordingly, the Petitioner is not entitled to
    relief on this issue.
    Lastly, the Petitioner claims that trial counsel was ineffective in failing to call
    Mark Tolley as a defense witness at trial. He concedes that it was not counsel‟s fault that
    Tolley “got cold feet,” but he maintains that counsel should have subpoenaed his
    testimony. Although trial counsel was not questioned regarding this issue, the post-
    conviction court determined that “[b]ased on the Petitioner‟s testimony, trial counsel
    obviously did not call Tolley as a part of his trial strategy since the witness was
    apparently not going to give beneficial testimony to the Petitioner‟s case.” The record
    does not preponderate against the findings of the post-conviction court. To the extent
    that the Petitioner is arguing that trial counsel should have put forth proof that his co-
    defendant admitted to shooting the victim, the Petitioner is not entitled to relief because
    Gary Daugherty testified at trial that Nutter told him that Nutter shot a man in self-
    defense because that man was trying to cut him. In addition, the Petitioner failed to call
    Tolley as a witness at the post-conviction hearing or otherwise demonstrate how Tolley‟s
    testimony would have changed the outcome of his trial. See Black v. State, 
    794 S.W.2d 752
    , 757 (Tenn. Crim. App. 1990) (“As a general rule, this is the only way the petitioner
    can establish that . . . 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.”). Accordingly, he is not entitled to relief.
    -16-
    CONCLUSION
    Upon review, the judgment of the post-conviction court is affirmed.
    _________________________________
    CAMILLE R. McMULLEN, JUDGE
    -17-
    

Document Info

Docket Number: E2015-01736-CCA-R3-PC

Judges: Judge Camille R. McMullen

Filed Date: 10/28/2016

Precedential Status: Precedential

Modified Date: 10/28/2016