Stanley Williams v. State of Tennessee ( 2019 )

06/07/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 2, 2019 Session
STANLEY WILLIAMS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-00629 James M. Lammey, Judge
___________________________________
No. W2018-01269-CCA-R3-PC
___________________________________
The Petitioner, Stanley Williams, was denied post-conviction relief for his convictions
for first degree premeditated murder, attempted first degree premeditated murder, and
employing a firearm in the commission of a dangerous felony and his aggregate sentence
of life in prison plus thirty years. On appeal, the Petitioner alleges that trial counsel was
ineffective for failing to request a severance of his trial from his co-defendant’s trial,
failing to communicate and investigate, failing to challenge the chain of custody of
certain evidence, and failing to cross-examine witnesses. He also requests relief pursuant
to the writ of error coram nobis based on recanted testimony. After a thorough review of
the record, we discern no error and affirm the post-conviction court’s judgment.
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 ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.
Josie S. Holland, Memphis, Tennessee, for the Appellant, Stanley Williams.
Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, 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
The Petitioner’s convictions stem from a shooting at a Memphis nightclub in
which the victim, Mr. Jimmie Johnson,1 was killed, and the victim’s cousin, Mr. Eldridge
Donelson, was wounded. The Petitioner was convicted based on the identification of
witnesses including Ms. April Campbell. At the post-conviction proceedings, Ms. April
Campbell stated she had been mistaken in her identification, and the Petitioner introduced
evidence that trial counsel had failed to discover the existence of a family feud between
the Petitioner’s family and Ms. April Campbell’s family. He also sought relief based on
trial counsel’s failure to seek the severance of his trial from the trial of the co-defendant,
Mr. Lashun Gray; failure to communicate; failure to inspect or object to the admission of
the victim’s bloody shirts; and inadequate cross-examination. Because the Petitioner has
failed to establish deficiency or prejudice regarding the post-conviction claims and
because the post-conviction court discredited the recantation of Ms. April Campbell’s
testimony, we affirm the denial of relief.
Trial Proceedings
Prior to trial, the co-defendant’s attorney moved for a severance on the basis that
only two eyewitnesses had identified the co-defendant while several had identified the
Petitioner and that the co-defendant would be prejudiced by the “overwhelming” proof
against the Petitioner. The trial court denied the motion to sever.
The testimony at trial established that there were two parties being held
simultaneously at the nightclub on October 18, 2009, and that an argument and a physical
fight had broken out prior to the victim’s arrival. When the victim arrived at the club, he
and Mr. William “Booka” Goliday got into an argument after Mr. Goliday knocked the
victim’s drink out of his hand, and the argument grew into a physical fight involving
numerous people. After the fight, the victim and Mr. Donelson were shot. Ms. April
Campbell and her sister, Ms. Janice Campbell, were standing next to the victim when he
was fatally shot, and they, along with other witnesses, implicated the Petitioner and the
co-defendant in the shootings.
Ms. April Campbell testified that when she arrived at the club, she observed guns
in the trunk of a car parked outside. She saw the Petitioner involved in a physical
altercation with the victim over the spilled drink. After the fight, Ms. April Campbell,
1
The victim’s first name is spelled “Jimmie” in the indictment and “Jimmy” in the trial transcript.
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her sister, the victim, and Ms. April Campbell’s boyfriend, Mr. Frederic Rivers, were
attempting to leave out of the only egress when the Petitioner came in, shooting at them.
Ms. April Campbell testified that she saw the Petitioner shoot the victim in the stomach
and that she then fled to the kitchen area. Hearing more gunfire, she came out of the
kitchen to try to retrieve her sister, and she saw the co-defendant leaving the club with a
gun, although she did not see him fire his weapon. She identified the co-defendant from
a photographic array and noted on the array that she saw him fighting the victim, that she
saw him with a gun, and that her sister and Mr. Rivers saw him shoot the victim. Ms.
April Campbell did not recall telling the co-defendant’s investigator that she did not
remember if the co-defendant had a gun. She also identified the Petitioner from a
photographic array as the individual who shot the victim. She testified that she was
acquainted with the Petitioner but did not recognize him at the club because he had
gained weight since their prior acquaintance.
Ms. Janice Campbell was next to the victim as the shooting occurred, and she saw
both the Petitioner and the co-defendant shoot him. She testified that the victim was
fighting against both the Petitioner and the co-defendant during the physical altercation.
After the fight was over, she tried to leave with her sister, Mr. Rivers, and the victim, but
the Petitioner came in shooting at them. They retreated into the club, and the victim
attempted to kick down a nonfunctional door. The Petitioner, who appeared angry and
appeared to be aiming at the victim, shot the victim in the stomach. After the Petitioner
shot the victim, the victim continued to stand. The co-defendant then raced through the
club, shooting “like crazy.” Ms. Janice Campbell believed that the co-defendant was the
one who killed the victim because the victim did not fall until after the co-defendant
began firing shots. Ms. Janice Campbell testified that she took off the victim’s shirts
because he felt hot and that she was wearing the victim’s clothing after the shooting. She
gave the victim’s shirt, which had two bullet holes, to someone at the hospital.
Ms. Cecilia Williams witnessed the Petitioner holding a gun at the club. She was
in the bathroom when the fight broke out, and she went outside to avoid the altercation.
As she left, she saw a group of men retrieving guns from a car near the front door. While
the Petitioner was not among the men by the car, he was standing by the gate, and Ms.
Williams saw him enter the club with a gun prior to hearing gunshots. Ms. Williams
testified that there were approximately ten armed men. She hid next to a car and spoke to
police when they arrived, naming the Petitioner as one of the armed men. She
subsequently identified him in a photographic array. She acknowledged she did not tell
the police the co-defendant’s name on the night of the shooting and that she could not
identify him in a photographic lineup.
Ms. Jamaica Cartwright ran out of the club after the fight, and she likewise saw a
group of four or five men retrieving guns from the trunk of an older, white car. She
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testified that she returned to the club to warn the occupants and then hid under a table.
Ms. Cartwright had seen the co-defendant fighting but did not see who was shooting and
did not see either the Petitioner or the co-defendant with a gun. She identified the co-
defendant from a photographic lineup as one of the men involved in the fight. She
acknowledged that when she first spoke to police, she had told them that she left the club
instead of going back in to warn others about the men with guns.
Mr. Donelson was not able to identify the person who shot him or the person who
shot the victim. He testified that he joined in the fight when he saw the victim fighting
and that he subsequently left the club. As he was getting into a car, he heard gunshots,
and a man whose face was obscured shot him in the stomach. He fled into the club and
hid under a pool table, and he was taken to the hospital by family. He was unconscious
for the next few days.
The medical examiner testified that the victim was shot once in the abdomen. He
stated that the wound would not necessarily cause the victim to immediately collapse and
that there would not necessarily be a lot of blood at the scene. Five bullet casings fired
from at least two weapons were found inside the club, and two bullets were recovered. A
casing was also found on the sidewalk outside the club.
Officer Will Bryson testified that he responded to the scene and secured it until
medical help arrived. He gathered witnesses but did not personally interview them. In
giving his background, Officer Bryson mentioned that he played football in college. On
cross-examination, trial counsel did not ask any substantive questions of Officer Bryson,
but instead asked him about his football experience.
The State rested its case but moved to reopen the case prior to any proof being
introduced by the defense. The State noted that it did not initially intend to introduce the
victim’s shirt into evidence but that the number of holes in the shirt “became an issue”
after Ms. Janice Campbell’s testimony that there were two bullet holes. The State had
attempted to obtain the evidence from the property room after the issue was raised, but
the property room was not able to locate the evidence until several hours later. Counsel
for the co-defendant objected that the evidence had not been produced in discovery and
that he would have tested the evidence had he known it would be used at trial. The
prosecution noted that the items were referred to in the discovery materials and were
available for inspection in the property room and that no one had requested to inspect
them. The Petitioner’s trial counsel objected on the basis that the chain of custody had
not been established, given that the items had apparently been misplaced in the property
room. The trial court agreed that the State must establish a chain of custody prior to
introducing the evidence, and Mr. Richard Desaussure, the Chief Administrative Officer
for the Criminal Court Clerk’s Office, testified that a box containing the shirts was
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inadvertently placed on the wrong shelf in the room but that the evidence had never left
the property room and had remained sealed. No one had attempted to inspect the
evidence since it was initially checked into the property room.
Sergeant Anthony Mullins then testified that Ms. Janice Campbell had given him
two shirts which the victim was wearing when he was shot and which Ms. Janice
Campbell had subsequently worn for some period of time. One was a black T-shirt and
the other a black long-sleeved shirt. The T-shirt had three holes, one oblong and two
“very small defects.” The long-sleeved shirt had two holes in it. He stated that it was
possible that the smaller holes were made by a very small bullet or a fragment, but he
could not identify the origin of the holes.
The Petitioner and the co-defendant each presented a witness to vouch for their
whereabouts during the shooting. Mr. Derias Pettis testified that he and the co-defendant
fled the club during the shooting and that the co-defendant did not have a weapon.
Mr. Karlos Miller testified that his father was the owner of the club and that when
he attempted to disperse the fight, it was already ending. The shooting began
approximately ten minutes after the fight. Mr. Miller testified that he and the Petitioner
were looking for the Petitioner’s missing keys when the shooting started and that they
were hiding under a table during the shooting. He testified that they did not find the
Petitioner’s keys but stated that the Petitioner left after the shooting. He then stated that
the Petitioner probably found his keys because he was able to leave and finally said that
he did not know if the Petitioner left. He did not know that the Petitioner had been
charged in connection with the shootings.
The jury convicted the Petitioner of first degree premeditated murder, attempted
first degree premeditated murder, and employing a firearm in the commission of a
dangerous felony. The Petitioner was sentenced to consecutive sentences of life in
prison, twenty-four years, and ten years for an aggregate sentence of life plus thirty-four
years. The jury acquitted the co-defendant of first degree premeditated murder but
convicted him of the remaining counts, and he received a thirty-four-year sentence.
The Petitioner’s appeal was consolidated with the co-defendant’s appeal, and the
sentences for employing a firearm in the commission of a dangerous felony were reduced
to six years, making the Petitioner’s effective sentence life plus thirty years. State v.
Lashun Gray and Stanley Williams, No. W2012-00415-CCA-R3-CD, 2013 WL 3291888,
at *13 (Tenn. Crim. App. June 26, 2013), no perm. app. filed.2 The Petitioner’s direct
appeal challenged the sufficiency of the evidence for attempted first degree murder and
2
As the parties note, the co-defendant’s application for permission to appeal was denied.
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employing a firearm in the commission of a dangerous felony and challenged the jury
instruction related to criminal responsibility for the attempted first degree murder
conviction, but this court concluded that there was no error and affirmed the judgments.
Id. at *14-15.
Post-Conviction
The Petitioner filed a timely post-conviction petition. As relevant to the issues on
appeal, the Petitioner asserted that trial counsel was deficient in failing to move to sever
the Petitioner’s trial from the co-defendant’s. The Petitioner also alleged that trial
counsel was deficient in failing to communicate, in failing to properly investigate or
prepare for trial, in failing to object to the introduction of the victim’s shirts, and in cross-
examining Officer Bryson. The Petitioner then amended the petition to include a claim
that he was entitled to a writ of error coram nobis based on newly discovered evidence in
the form of testimony by Ms. April Campbell and Mr. Rivers. The co-defendant also
filed a post-conviction petition, and the post-conviction court held a joint hearing. See
Lashun Gray v. State, No. W2018-01262-CCA-R3-PC, 2019 WL 2068506 (Tenn. Crim.
App. May 8, 2019) (denying post-conviction relief).
Mr. Rivers testified that he and Ms. April Campbell had been in a relationship for
approximately twenty years and that he had gone to school with the Petitioner’s older
brother. Around 2001, Mr. Rivers witnessed a knife fight between the Petitioner’s
mother and Ms. Tamika Malone,3 who was a cousin of the Campbell sisters. The
Petitioner’s mother was killed in the fight, and Ms. Malone was subsequently
incarcerated.
Mr. Rivers was present during the shooting in the club and recounted the fight
over the spilled drink. He testified that he was trying to return to Ms. April Campbell,
who was pregnant at the time, when people entered the club with guns, shooting. He fled
toward the kitchen. Mr. Rivers did not see the shooting, but after the victim was shot, the
victim asked Mr. Rivers to retrieve a gun from his vehicle. As Mr. Rivers was exiting the
club, he bumped into the Petitioner, who was entering the club from outside. Mr. Rivers
did not see the Petitioner with a gun. He stated that he subsequently left town to take
care of his mother. He would have testified at trial “if [he] had been here,” but he was in
Atlanta. Before Mr. Rivers left town, he attempted to convince the Campbell sisters that
they were mistaken in their identification of the perpetrators, but they remained
unpersuaded by his assertions that, as women, they were too frightened to know what
they saw.
3
Ms. Malone’s first name is spelled “Tamika” in a report prepared by the co-defendant’s
investigator in 2010 and “Tomeka” in the transcript, with a note that the spelling is phonetic.
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On cross-examination, Mr. Rivers stated that Ms. April Campbell’s statement to
police that he had seen the co-defendant shoot the victim was false. He denied telling her
that the reason he did not run during the shooting was because the gunmen knew him and
would not shoot him. He did not know that the Petitioner and co-defendant had been
convicted until the post-conviction proceedings despite the fact that he and Ms. April
Campbell had lived together for most of the time since the shooting. He agreed that he
did not see the actual shooting. He alternately explained Ms. April Campbell’s trial
testimony by stating that she was emotional and mistaken, that she probably was lying,
and that she thought it was the Petitioner “or probably some guy that looked like him.”
Trial counsel testified that he had practiced criminal law since 1984 and had
previously represented defendants accused of murder. He represented the Petitioner at
trial and, with the help of an associate, on appeal. The Petitioner was incarcerated, and
post-conviction counsel introduced records showing that trial counsel visited him in jail
three times. However, trial counsel testified that he spoke with the Petitioner’s family
almost daily and also spoke frequently with the Petitioner. Trial counsel did not hire an
investigator because he felt his office was capable of investigating the crime. He
interviewed witnesses and asked the Petitioner to provide information about any
witnesses who might help his case.
Trial counsel agreed that he did not file a motion to sever. He stated that he did
not think the Petitioner’s and co-defendant’s defenses were antagonistic and did not feel
that severance was warranted. He elaborated that he considered not only whether there
was a basis for severance but also “what will and what won’t fly out here.” He and the
co-defendant’s attorney did not coordinate defenses, but the defenses were not in
opposition to each other. The co-defendant’s attorney was deceased at the time of the
post-conviction hearing.
Trial counsel recalled that Mr. Rivers was mentioned in discovery, but he did not
attempt to contact Mr. Rivers. Trial counsel had been present for Mr. Rivers’s post-
conviction testimony and stated that the testimony was contradictory to Mr. Miller’s
testimony at trial that the Petitioner was inside the club searching for his keys during the
shooting. He agreed that Mr. Rivers’s testimony would also have been of limited utility
because he stated he did not see the shooting.
At the time of trial, trial counsel was not aware of a relationship between the
Campbell family and the Petitioner’s mother. He testified that he did not think
knowledge of the relationship would have been helpful because the evidence suggested
that the shooting took place in a moment of anger after a fight.
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Trial counsel did not recall the cross-examination of Officer Bryson, but he
testified that Officer Bryson played a very limited role in the investigation and did not
have important substantive testimony. He stated that he was attempting to establish a
relationship with the jury and to humanize himself and his client by asking Officer
Bryson about football.
Trial counsel did not recall that Ms. Janice Campbell testified she was wearing the
victim’s shirt, but he recalled the discovery of the box of evidence in which the shirts had
been stored. He testified that he believed he did not raise the issue of the lost box on
appeal because it did not seem significant.
Officer Bryson testified at post-conviction that he recalled answering trial
counsel’s questions about football and that he felt the questions were strange because no
one else had ever asked him about his football experience during a criminal trial. He
confirmed that his role was limited to securing the scene until detectives arrived. He did
not recall seeing a woman in a bloody shirt and testified he would have tried to get her
medical attention if he had seen her.
Ms. April Campbell testified that she was mistaken in her identification of the
Petitioner when she testified at trial. Although she had believed at the time that the
Petitioner was the shooter, she realized her mistake when she saw a man who “looked
exactly like him” at a club in 2016 or 2017. She did not call the police or attempt to
identify the man whom she now believes to be the real shooter. She did not inform the
friends who were with her that she had just discovered she had misidentified the shooter.
She confirmed Mr. Rivers’s testimony that he had assured her she was mistaken in her
identification of the Petitioner at the time of the shooting, but she did not believe Mr.
Rivers until she saw the real perpetrator. She testified that she had never seen the co-
defendant with a gun, and that this court’s opinion was mistaken in its summary of her
trial testimony.4 She asserted that she had never told police that the co-defendant was
responsible for the shooting.
The Petitioner testified that trial counsel only met with him two or three times and
that they never strategized or spoke about the case. They never spent more than fifteen
minutes together. The Petitioner stated that trial counsel did not meet with him about the
case when they attended court dates. He testified that money was a point of contention
and that trial counsel was always attempting to collect more money from his family. On
4
This court’s opinion was not mistaken. At trial, the prosecutor asked, “Did you see [the co-
defendant] with anything?” and she responded, “I s[aw] him with a gun, but I didn’t []ever see him
shoot.” This court’s opinion stated that she saw the co-defendant carrying a handgun but did not see him
shoot. State v. Lashun Gray and Stanley Williams, 2013 WL 3291888, at *1-2.
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the last day of trial, trial counsel stated that the prosecution had extended a plea offer
involving a twenty-five-year sentence but then said that the offer was no longer valid.
The Petitioner stated he would not have accepted the plea offer because he was innocent.
Trial counsel advised the Petitioner not to testify and never discussed filing a motion to
sever.
According to the Petitioner, he and his family had found some witnesses willing to
testify to the Petitioner’s innocence, but trial counsel said that he was the lawyer and
would “take care of it.” On the day before trial, trial counsel asked about witnesses, and
the Petitioner’s family told trial counsel that Mr. Miller was willing to testify. Mr.
Goliday would also have offered truthful and helpful testimony, and the Petitioner
believed that the State would ask Mr. Goliday to testify.
The Petitioner denied shooting the victim. He confirmed that Mr. Miller had
testified at trial that the two of them were searching for keys and hiding during the
shooting. He agreed that Mr. Rivers, in contrast, had testified that the Petitioner was
entering the building after the victim was shot, but the Petitioner explained that there
“probably was a time they went outside.” He elaborated that he was outside during the
shooting, could not enter his car without the keys, went back inside, and found the keys.
Asked if the shooting had not begun when Mr. Rivers saw him outside, he answered, “I
guess not.”
The Petitioner testified that he was eleven years old when his mother was killed
and that he did not know that his mother’s killer was related to the Campbells until the
post-conviction proceedings.
Ms. Vita Zelikov,5 a private investigator, testified that she worked with the co-
defendant’s counsel but never met with trial counsel. She interviewed eight to ten
witnesses, including Ms. April Campbell. Ms. April Campbell told Ms. Zelikov that the
Petitioner had “a lot of inner hatred and anger” because his mother was murdered by Ms.
Campbell’s cousin. Both Mr. Rivers and Ms. Janice Campbell refused to speak to Ms.
Zelikov, and Ms. April Campbell told Ms. Zelikov that Mr. Rivers probably did not want
to be involved. If Ms. Zelikov had been informed that Mr. Rivers thought the Campbells
were mistaken in their identification, she would have included it in her memorandum.
The co-defendant testified regarding his counsel’s representation and also stated
that to his knowledge, the Petitioner did not shoot anyone because he was involved in the
5
Ms. Zelikov’s name is spelled “Zelikob” in the transcript, but spelled “Zelikov” in the
memorandum Ms. Zelikov prepared for the co-defendant’s trial counsel.
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physical altercation and it would have been impossible for him to be fighting and
shooting at the same time.
The post-conviction court found that having a joint trial provided the Petitioner
with certain benefits, including additional peremptory challenges and having two lawyers
voir dire the jury and cross-examine witnesses. The post-conviction court further found
that Mr. Rivers’s testimony was not credible and would not have assisted the Petitioner’s
case. Regarding the prior relationship between the families, the post-conviction court
found it would have been “idiotic” to introduce the proof at trial, as it would have
provided the Petitioner a motive for the shooting in the form of a vendetta against the
Campbell family. The post-conviction court found that the cross-examination of Officer
Bryson was for the purpose of ingratiating trial counsel with the jury and that it had no
effect on the case. The post-conviction court discredited Ms. Campbell’s testimony about
observing the real perpetrator at a club years after the Petitioner was convicted, and it
found that there was no reasonable basis to believe the evidence might have affected the
verdict. The post-conviction court entered a written order incorporating its oral findings
and concluding that the Petitioner had not established deficiency or prejudice and that the
allegedly newly discovered evidence would not have resulted in a different judgment had
it been presented at trial.
ANALYSIS
On appeal, the Petitioner contends that he received ineffective assistance of
counsel when trial counsel failed to file a motion to sever, failed to communicate with
him, failed to investigate the family feud between the Petitioner and the Campbells, failed
to inspect the shirts, failed to object to the chain of custody of the shirts, and performed
deficiently on cross-examination. He also asserts that the testimony of Ms. April
Campbell entitles him to the writ of error coram nobis. The State responds that the
Petitioner waived any claim regarding trial counsel’s deficiency in failing to uncover the
family feud and in failing to discover the box containing the shirts because these issues
were not contained in the written petition. The State also asserts that the Petitioner has
failed to show deficiency or prejudice for the remaining claims and that the post-
conviction court’s credibility determinations preclude error coram nobis relief.
I. Ineffective Assistance of Counsel
Under the Post-Conviction Procedure Act, a petitioner is entitled to relief when
“the conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and convincing
evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-
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conviction court’s findings of fact are binding on the appellate court unless the evidence
preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
Accordingly, the reviewing court defers to the post-conviction court’s findings regarding
the credibility of witness, the weight and value of witness testimony, and the resolution of
factual issues. Id. Questions of law and mixed questions of law and fact are reviewed de
novo. Id. Each element of a claim of ineffective assistance of counsel is a mixed
question of law and fact. Id.
The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantee the accused the right to the effective assistance of
counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on a claim that
he was denied his constitutional right to effective assistance of counsel, a petitioner must
prove both that counsel’s performance was deficient and that the deficient performance
caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
Deficiency requires showing that counsel’s errors were so serious “‘that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (quoting Strickland,
466 U.S. at 687). To demonstrate deficiency, the petitioner must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). In evaluating
deficiency, courts must make every effort “‘to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d
266, 277 (Tenn. 2011) (quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must
be highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” Id. (quoting State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999)). “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable;
and strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.’” Kendrick, 454 S.W.3d at 458 (quoting Strickland, 466 U.S. at 690-91).
The reviewing court must begin with the presumption “that counsel provided adequate
assistance and used reasonable professional judgment to make all strategic and tactical
significant decisions.” Davidson v. State, 453 S.W.3d 386, 393 (Tenn. 2014).
In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
been different. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State v.
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Honeycutt, 54 S.W.3d 762, 768 (Tenn. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner must show that the deficiency deprived him of a fair trial and called the
reliability of the outcome of the proceeding into question. Finch v. State, 226 S.W.3d
307, 316 (Tenn. 2007). A claim may be denied for failure to establish either deficiency
or prejudice, and the reviewing court need not address both components if a petitioner
has failed to establish one. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
A. Severance
The Petitioner asserts that trial counsel was deficient in failing to move for a
severance because the co-defendant would have testified for and exonerated the
Petitioner if they had had separate trials. We conclude that the Petitioner has not
established prejudice because he has not demonstrated that the motion would have been
granted.
“In order to succeed in proving ineffective assistance of counsel with respect to
counsel’s failure to file a motion …, [a petitioner] must satisfy both prongs of the
Strickland test, showing that counsel’s failure to file the motion was deficient and that the
deficient performance prejudiced the defense.” Vaughn v. State, 202 S.W.3d 106, 120
(Tenn. 2006), abrogated on other grounds by Brown v. Jordan, 563 S.W.3d 196, 202
(Tenn. 2018). Accordingly, the Petitioner must demonstrate a reasonable probability
that, had the motion been filed, the outcome of the proceeding would have been different.
See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“[T]he defendant must also
prove that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent the excludable evidence in
order to demonstrate actual prejudice.”); Gary Randall Yarnell v. State, No. E2004-
01762-CCA-R3-PC, 2005 WL 1981471, at *5 (Tenn. Crim. App. Aug. 15, 2005) (“To
prevail on either or both of these ineffective-assistance complaints, the petitioner must
demonstrate that the motions were meritorious.”).
The post-conviction court did not make any findings regarding whether it would
have granted the motion to sever, but it did note that the Petitioner received benefits from
being tried together with the co-defendant, including additional peremptory challenges
and having two lawyers voir dire the jury and cross-examine witnesses. The record also
reveals that the trial court denied the co-defendant’s motion to sever which was filed
prior to trial on the basis that the proof against the Petitioner was stronger than the proof
against the co-defendant. Trial counsel testified that he did not see a basis to file a
motion to sever and that his sense of “what will and what won’t fly out here” led him to
believe that the motion would have been unsuccessful.
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The Petitioner has failed to present any argument showing that he was entitled to
severance. See State v. Dellinger, 79 S.W.3d 458, 468 (Tenn. 2002) (“Severance is not
required when the evidence admitted at trial would have been admissible against each
defendant at separate trials.”); State v. Gosnell, 62 S.W.3d 740, 749 (Tenn. Crim. App.
2001) (“Even ‘mutually antagonistic’ defenses do not per se require a severance,
although they may in some circumstances.”). He has presented no evidence that
prejudicial proof was admitted at trial due to the joinder with the co-defendant. State v.
Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (“[T]he state is entitled to have the
guilt determined and punishment assessed in a single trial where two or more persons are
charged jointly with a single crime, unless to do so would unfairly prejudice the rights of
the defendants.”). We note that the assertion that the co-defendant would have testified
for the Petitioner if the trials had been severed is pure speculation, and the co-defendant’s
testimony regarding the Petitioner during the post-conviction hearing was limited to the
anemic statement that to the co-defendant’s knowledge, the Petitioner did not shoot
anyone because it would have been impossible for him to shoot while he was fighting.
However, numerous witnesses at trial testified that the shooting occurred after the fight.
In order to obtain post-conviction relief, the Petitioner would have had to
demonstrate that there was a basis to sever the trials. He has not done so, and he is not
entitled to relief. See Tina Nelson v. State, No. W2017-00343-CCA-R3-PC, 2018 WL
2261274, at *7 (Tenn. Crim. App. May 17, 2018), perm. app. denied (Sept. 17, 2018);
Jesse Wade Glover v. State, No. W2010-01679-CCA-R3-PC, 2012 WL 12932004, at *4
(Tenn. Crim. App. June 6, 2012) (denying relief for alleged deficiency in failing to ask
for severance when the petitioner did “not offer any evidence to support that a severance
in this case would have been proper”); Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim.
App. 1990) (denying post-conviction relief for failure to file severance when there
existed “neither factual nor legal basis for the granting of a severance” and when a co-
defendant’s motion for a severance had been denied).
B. Failure to Communicate
The Petitioner contends that trial counsel’s preparation for trial was inadequate
because he did not meet with the Petitioner or discuss trial strategy. Trial counsel
testified that he spoke with the Petitioner and Petitioner’s family often. The trial court
did not specifically address any failure to communicate but generally found that trial
counsel did not make any mistakes. Furthermore, the Petitioner has presented no
argument that the outcome of the trial would have been different had trial counsel met
with the Petitioner more often. The Petitioner’s defense was based on the testimony of
Mr. Miller, who claimed that the Petitioner was with him during the shooting under a
table, looking for his keys. The jury apparently discredited this witness’s testimony. The
Petitioner has not shown a reasonable probability that more meetings with trial counsel
- 13 -
would have altered the course of the trial, and he is not entitled to relief on this issue.
See, e.g., Joseph M. Stone v. State, No. M2003-00731-CCA-R3-PC, 2004 WL 300123, at
*3 (Tenn. Crim. App. Feb. 17, 2004).
C. Failure to Investigate
The Petitioner also asserts that trial counsel was deficient in failing to properly
investigate the case. In particular, the Petitioner notes that trial counsel failed to discover
that the Campbells’ cousin had killed the Petitioner’s mother and that trial counsel did not
inspect the bloody shirts stored in the evidence vault. The State responds that the
Petitioner is statutorily precluded from raising the issues of trial counsel’s failure to
discover the connection between the Campbells and the Petitioner’s mother or failure to
discover the shirts because these issues were not included in the written petition. We
conclude that the statute does not preclude our consideration of issues which were
litigated and ruled on during the post-conviction proceedings but that the Petitioner is not
entitled to relief.
1. Appellate Review of Issues not Included in the Petition
The State asserts that this court may not address whether counsel’s investigation
regarding the Petitioner’s mother’s homicide or the t-shirts was deficient because the
issues were not included in the written petition. In arguing that this court may not review
issues outside the petition, the State cites to Long v. State, 510 S.W.2d 83, 85 (Tenn.
Crim. App. 1974), and notes that it is controlling authority under Tennessee Supreme
Court Rule 4. See Tenn. Sup. Ct. R. 4(G)(2) (“Opinions reported in the official reporter
… shall be considered controlling authority for all purposes unless and until such opinion
is reversed or modified by a court of competent jurisdiction.”). In Long, the petitioner’s
counsel at the post-conviction hearing attempted to orally add additional grounds outside
the written petition. 510 S.W.2d at 85. This court observed:
It is unquestionable that a post-conviction petitioner limits the inquiry to
the questions he raises therein. As in other civil actions, he cannot allege
one case and prove another; he can rise no higher than the averments set out
in his petition; no relief can be sought or given upon grounds not raised
therein. A habeas corpus or post-conviction petition must necessarily rest
upon and be determined by the factual allegations it contains. Without such
rules of orderly procedure[,] a trial degenerates into chaos. This is the clear
undergirding principle of the established rule that an evidentiary hearing is
not required and no relief can be granted in a post-conviction case when the
petition states no ground for relief.
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Id.
The State is correct that “[a]s a general rule, this court will not address post-
conviction issues that were not raised in the petition or addressed in the trial court.”
Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996) (citing State v. Smith, 814
S.W.2d 45, 49 (Tenn. 1991)); see David Lynn Jordan v. State, No. W2015-00698-CCA-
R3-PD, 2016 WL 6078573, at *65 (Tenn. Crim. App. Oct. 14, 2016); Richard Price v.
State, No. W2012-02192-CCA-R3-PC, 2014 WL 1512861, at *3 (Tenn. Crim. App. Apr.
16, 2014); Patrick Thurmond v. State, No. M2005-00214-CCA-R3-PC, 2006 WL
680924, at *7 (Tenn. Crim. App. Mar. 15, 2006); Torry Caldwell v. State, No. 01C01-
9703-CC-00115, 1999 WL 97915, at *2 (Tenn. Crim. App. Feb. 18, 1999). This court
has likewise refused to review an issue when it was first raised at the post-conviction
hearing, the evidence regarding the issue was “not developed in any meaningful way,”
and the issues was not ruled upon by the post-conviction court. Oscar Polk, Jr., v. State,
No. W2018-01072-CCA-R3-PC, 2019 WL 911156, at *3 (Tenn. Crim. App. Feb. 15,
2019) (concluding that the issue was waived when it was absent from the petition, not
ruled upon by the post-conviction court, and not meaningfully developed). However,
Long and the cases cited above involved circumstances in which the issue raised on
appeal was not litigated in the post-conviction hearing or not resolved by the post-
conviction court. In Long, the post-conviction court refused to consider or to admit
evidence on the issues not raised in the petition. Long, 510 S.W.2d at 85; see Brown, 928
S.W.2d at 457; David Lynn Jordan, 2016 WL 6078573, at *65; Richard Price, 2014 WL
1512861, at *3; Patrick Thurmond, 2006 WL 680924, at *7; Torry Caldwell, 1999 WL
97915, at *2.
In contrast, this court has frequently addressed issues on post-conviction appeal so
long as they were presented to and ruled on by the post-conviction court. See Kenneth
Hayes v. State, No. W2016-01522-CCA-R3-PC, 2017 WL 3106918, at *8 (Tenn. Crim.
App. July 17, 2017), no perm. app. filed (citing cases); Timothy Lamont Thompson v.
State, No. M2015-00846-CCA-R3-PC, 2016 WL 496996, at *4 n.1 (Tenn. Crim. App.
Feb. 9, 2016); James Randall Roskam v. State, No. M2014-00599-CCA-R3-PC, 2015
WL 3398394, at *6-7 (Tenn. Crim. App. May 27, 2015) (addressing an issue not raised
until the post-conviction hearing); Kevin Allen Gentry v. State, No. E2013-00791-CCA-
R3-PC, 2014 WL 1883701, at *11 (Tenn. Crim. App. May 12, 2014); Shawn Simmons v.
State, No. M2012-00987-CCA-R3-PC, 2013 WL 1225857, at *5 n.3 (Tenn. Crim. App.
Mar. 27, 2013); Vincent Sims v. State, No. W2008-02823-CCA-R3-PD, 2011 WL
334285, at *63 (Tenn. Crim. App. Jan. 28, 2011) (concluding that numerous issues raised
for the first time on appeal were waived but addressing an issue which was raised during
the post-conviction hearing); Jorge Ariel Sanjines v. State, No. 03C01-9706-CR-00229,
1999 WL 41834, at *8 (Tenn. Crim. App. Feb. 2, 1999). In fact, we have specifically
addressed whether Long prohibited review of issues not contained in the written petition
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and have concluded that “if an issue is not specially pled, we do not view Long as
prohibiting a trial court from ruling on it if it is litigated by the parties in a post-
conviction hearing without objection.” State v. Lester D. Herron, No. 03C01-9109-CR-
00284, 1992 WL 43273, at *4 (Tenn. Crim. App. Mar. 10, 1992).
The State points to the statutory language to argue that the requirement is
mandatory and not subject to waiver. Under Tennessee Code Annotated section 40-30-
104, “[t]he petitioner shall include all claims known to the petitioner for granting post-
conviction relief” in the petition and “shall include allegations of fact supporting each
claim for relief set forth in the petition.” T.C.A. § 40-30-104(d), (e). Furthermore, “[t]he
petition must contain a clear and specific statement of all grounds upon which relief is
sought, including full disclosure of the factual basis of those grounds.” T.C.A. § 40-30-
106(d). The Post-Conviction Procedure Act provides for the dismissal without a hearing
of petitions which do not conform to this rule. T.C.A. § 40-30-106(d); see also Tenn.
Sup. Ct. R. 28, § 8(D)(4) (providing that the hearing “shall be limited to issues raised in
the petition”).
In Marlon Yarbro v. State, a panel of this court addressed a similar argument. No.
W2017-00125-CCA-R3-PC, 2018 WL 4441364, at *5-7 (Tenn. Crim. App. Sept. 17,
2018). In its analysis, this court examined Tennessee Supreme Court Rule 28, section
8(D)(5), which states:
If evidence is objected to on the basis that it concerns issues not raised in
the petition or answer, the court may allow amendments and shall do so
freely when the presentation of the merits of the cause will otherwise be
subserved. The court shall liberally allow a continuance in the event an
amendment is allowed to enable the objecting party to meet the evidence.
We note that Tennessee Supreme Court Rule 28, section 8(D)(5) specifically
contemplates the circumstance under consideration — when evidence of issues outside
the written petition is presented at the post-conviction hearing. The Rule directs the post-
conviction court to allow amendments to the petition “freely” if a party has raised an
objection to the evidence. Tenn. Sup. Ct. R. 28, § 8(D)(5); see Marlon Yarbro, 2018 WL
4441364, at *6 (citing Tenn. Sup. Ct. R. 28, § 8(D)(5); Montez Antuan Adams v. State,
No. W2001-02488-CCA-R3-PC, 2003 WL 103205, at *3 (Tenn. Crim. App. Jan. 9,
2003)). The court in Marlon Yarbro ultimately concluded that the State’s failure to
object to the evidence waived the procedural default argument because it deprived the
petitioner of notice of the need to amend his written petition pursuant to section 8(D)(5).
Marlon Yarbro, 2018 WL 4441364, at *7. Other panels of this court have come to the
same conclusion. See George Washington Matthews v. State, No. W2018-00966-CCA-
R3-PC, 2019 WL 1110101, at *9 (Tenn. Crim. App. Mar. 11, 2019) perm. app. filed;
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Kenneth Brown v. State, No. W2017-01755-CCA-R3-PC, 2019 WL 931735, at *10
(Tenn. Crim. App. Feb. 22, 2019) perm. app. filed; Steven Tyler Nabi v. State, No.
M2017-00041-CCA-R3-PC, 2018 WL 1721869, at *1-2 (Tenn. Crim. App. Apr. 9,
2018), no perm. app. filed.
The Petitioner’s written petition generally alleged that trial counsel was deficient
because he did not “fully investigate police and witness statements” or “request and
investigate discovery.” The petition never specifically mentioned the failure to discover
the existence of a family feud or allege that the failure to inspect the shirts was deficient.
The State did not object to the testimony on these issues at the post-conviction hearing on
the basis that the issues were inadequately raised in the written petition. We follow
Marlon Yarbro in concluding that the failure to object constitutes waiver of the
procedural default argument because the Petitioner was deprived of the opportunity to
include the issues in an amended written petition under Rule 28, section 8(D)(5). 2018
WL 4441364, at *7; see Kenneth Brown, 2019 WL 931735, at *10 (reaching the merits
when the issue of ineffective assistance was generally raised but the specific grounds
were not included in the petition and the State did not object to evidence at the hearing).
Having concluded that neither the statutory provisions nor Long bar review, we examine
whether the issues were raised at the post-conviction hearing and ruled on by the post-
conviction court, or whether they were “not developed in any meaningful way,”
precluding review. Oscar Polk, Jr., 2019 WL 911156, at *3.
2. Failure to Investigate Ms. April Campbell
The State contends that, even if Long does not preclude review, this court should
refuse to address the issue of the investigation of the feud between the Petitioner’s family
and the Campbells because the post-conviction proceedings do not provide an adequate
basis for appellate review. Ms. April Campbell, Mr. Rivers, Ms. Zelikov, and the
Petitioner all testified regarding the circumstances of the Petitioner’s mother’s death and
the availability of that evidence at the time of trial. The prosecutor addressed trial
counsel’s investigation of the Petitioner’s mother’s homicide extensively in argument,
and the post-conviction court made detailed findings that the failure to discover the
evidence did not affect the proceedings. We conclude that the post-conviction
proceedings provide a more than adequate basis for review.
The Petitioner asserts that trial counsel’s investigation was deficient in that he
failed to discover that the Campbell sisters’ cousin was the woman who had killed the
Petitioner’s mother in a knife fight. The State argues that trial counsel’s failure to
discover the relationship between the Campbell sisters and Ms. Malone was not deficient
because both the Petitioner and Ms. April Campbell were ignorant of the connection at
the time. The State also asserts that there is no prejudice because the evidence would
- 17 -
have proven inculpatory in that it would have provided an additional motive for the
shooting. The post-conviction court found that introducing the proof at trial would have
been “idiotic” and that if trial counsel had discovered it, he would have been smart
enough to take it “to his grave as a secret.”
The Petitioner testified that he was unaware of the connection between the
Campbells and his mother’s killer until the post-conviction proceedings, and trial counsel
likewise testified that he was not aware of the connection. However, contrary to the
State’s assertion, Ms. April Campbell was aware of the connection at the time of trial,
and she told Ms. Zelikov in an interview prior to trial that the Petitioner was angry at her
family due to the homicide.
Nevertheless, the Petitioner cannot establish prejudice in trial counsel’s failure to
discover the information. While the Petitioner asserts that the information would have
undercut the Campbell sisters’ identification of him because it would have given them a
reason to presume he was the shooter, the post-conviction court found that the
information would also have given the jury a reason to presume that he would be inclined
to seek revenge against the family. Furthermore, there was another, disinterested witness
who witnessed the Petitioner enter the club with a gun in his hand, and the jury was
instructed regarding criminal responsibility both for the murder of the victim and for the
shooting of Mr. Donelson, in which no shooter was identified by any witness. The post-
conviction court found that there was no reasonable probability that the outcome of trial
would have been different had trial counsel discovered the familial relationship, noting
that the evidence would have been inculpatory, that it would have provided an additional
motive for the crime, and that trial counsel would not have introduced the evidence at
trial. We agree that the Petitioner has not demonstrated a reasonable probability that the
outcome of the trial would have been different had trial counsel discovered the
relationship, and we affirm the denial of relief.
3. Failure to Inspect Shirts
The Petitioner also argues that trial counsel failed to inspect the victim’s shirts,
which he claims contradicted the theory of the defense that there was no physical proof.
The written petition only alleged generally that trial counsel failed to “investigate
discovery,” without any mention of the shirts. The State argues that the post-conviction
proceedings do not provide an adequate basis for appellate review of the failure to inspect
the box with the shirts. Trial counsel and the Petitioner both testified regarding the
misplaced box of evidence, in particular the objections that were raised to it and whether
it was included in the issues raised on direct appeal. However, post-conviction counsel
did not argue to the post-conviction court that the failure to inspect the box was
constitutionally deficient, and the post-conviction court did not specifically address the
- 18 -
issue but merely found that trial counsel generally did not make mistakes and provided
adequate representation. We conclude that this issue is waived. See Joshua L. Carter v.
State, No. M2017-02401-CCA-R3-PC, 2018 WL 3770036, at *17 (Tenn. Crim. App.
Aug. 8, 2018), perm. app. denied (Tenn. Nov. 14, 2018) (citing Brown, 928 S.W.2d at
457; Smith, 814 S.W.2d at 49). In any event, there was no dispute at trial that the victim
had been shot and had bled onto his shirts. Because the identity of the gunmen was the
only disputed issue at trial, the evidentiary value of the shirts was slight and the failure to
inspect them prior to trial did not result in any prejudice.
D. Objection to the Chain of Custody
The Petitioner asserts that trial counsel failed to make proper objections to the
chain of custody of the shirts and that by doing so, he waived the issue for appeal.6 The
State correctly notes that trial counsel did object to the chain of custody of the shirts.
The record shows that, after the State asked to reopen its case and informed the
court of the circumstances of the discovery of the box, trial counsel specifically raised an
objection based on the chain of custody. The trial court ruled that the State would have to
put on a witness outside the presence of the jury to establish the chain of custody of the
evidence, and the State did so, presenting a witness who testified that the box had
remained sealed7 and undisturbed in the property room but had been placed on an
incorrect shelf. Officer Mullins opened the sealed packets and identified the shirts as the
ones which Ms. Janice Campbell had given to him and which he had subsequently sealed
and placed into the packets. The Petitioner has not demonstrated deficiency.
Furthermore, our conclusion above that the shirts were of minimal evidentiary value also
precludes a finding of prejudice.
E. Inadequate Cross-Examination
The Petitioner asserts that trial counsel was deficient during cross-examination in
asking Officer Bryson only about his football experience rather than his recollection of
Ms. Janice Campbell wearing the victim’s shirts. The State argues that trial counsel’s
cross-examination was a strategic choice aimed to appeal to the jury and that the
6
The Petitioner also appears to contend that the co-defendant’s counsel was deficient in arguing
that the State engaged in a discovery violation under Tennessee Rule of Criminal Procedure 16 by failing
to show the shirts to the defense. The Petitioner was not denied the right to effective assistance of counsel
by the performance of the co-defendant’s counsel. See State v. Brown, 644 S.W.2d 418, 421 (Tenn. Crim.
App. 1982) (“A co-defendant’s counsel has no obligation to protect the interests of the co-defendant.”).
7
Post-conviction counsel’s assertion to the contrary is incorrect, as Mr. Desaussure testified that
the item “remained under seal.”
- 19 -
Petitioner has not shown prejudice. We conclude that the Petitioner cannot establish
deficiency or prejudice.
The Petitioner asserts that the questions about football were deficient because they
were unprofessional. The Petitioner cites to the American Bar Association’s Criminal
Justice Standard 4-7.2, entitled “Civility with Courts, Prosecutors, and Others,” which
states:
(a) As an officer of the court, defense counsel should support the authority
and dignity of the court by adherence to codes of professionalism and by
manifesting a courteous and professional attitude toward the judge,
opposing counsel, witnesses, jurors, courtroom staff and others. In court as
elsewhere, the defense counsel should not display or act out of any
improper or unlawful bias.
There is nothing in the record to show that counsel failed to demonstrate civility or
courtesy or was improperly biased. The post-conviction court found that Officer Bryson
gave little substantive testimony that could have been the subject of cross-examination
and that trial counsel chose to ask about football as a way to ingratiate himself with the
jury and was accordingly not deficient. We discern no error in this conclusion.
The Petitioner also objects to the failure to ask Officer Bryson about the bloody
shirts. At the post-conviction hearing, Officer Bryson testified that he did not recall a
woman wearing a bloody shirt at the crime scene, although Ms. Janice Campbell had
testified that she was wearing the victim’s shirts. The Petitioner asserts Officer Bryson’s
testimony would have impeached Ms. Janice Campbell. The items introduced into
evidence at trial were described by Officer Mullins as two black shirts, and the evidence
also established that the victim did not bleed heavily onto his clothing. There is not a
reasonable probability that any testimony by Officer Bryson that he did not notice blood
on the black shirts Ms. Janice Campbell was wearing would have had an effect on the
outcome of the proceedings. As noted above, the fact that the victim was shot in the
stomach and bled onto a shirt was not in dispute at trial.
II. Error Coram Nobis
The Petitioner asserts that he is entitled to a writ of error coram nobis because Ms.
April Campbell’s post-conviction testimony established that she was mistaken when she
identified him as the shooter. The State responds that the Petitioner is not entitled to
relief because the post-conviction court did not credit Ms. April Campbell’s post-
conviction testimony and because it found that the Petitioner could not establish prejudice
- 20 -
regarding the evidence. We conclude that the post-conviction court did not abuse its
discretion in denying relief.
Coram nobis relief is an “extraordinary remedy known more for its denial than its
approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). “The evil that the coram
nobis statute is aimed at remedying is a conviction based on materially incomplete or
inaccurate information.” Payne v. State, 493 S.W.3d 478, 486 (Tenn. 2016). Relief
under the statute is limited to “errors dehors the record and to matters that were not or
could not have been litigated on the trial of the case, on a motion for a new trial, on
appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding.”
T.C.A. § 40-26-105(b). The writ “will lie for subsequently or newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such
evidence may have resulted in a different judgment, had it been presented at the trial.”
Id. The petitioner must also show he was without fault in failing to present the claim at
the proper time. Id. Generally, the decision to deny a petition for writ of error coram
nobis is entrusted to the trial court’s discretion. Payne, 493 S.W.3d at 484.
As an extraordinary procedural remedy, the writ of coram nobis may be granted
under the following circumstances:
The ... petition must be in writing and (1) must describe with particularity
the nature and substance of the newly discovered evidence and (2) must
demonstrate that this evidence qualifies as “newly discovered evidence.” In
order to be considered “newly discovered evidence,” the proffered evidence
must be (a) evidence of facts existing, but not yet ascertained, at the time of
the original trial, (b) admissible, and (c) credible. In addition to describing
the form and substance of the evidence and demonstrating that it qualifies
as “newly discovered evidence,” the [petitioner] must also demonstrate
with particularity (3) why the newly discovered evidence could not have
been discovered in a more timely manner with the exercise of reasonable
diligence; and (4) how the newly discovered evidence, had it been admitted
at trial, may have resulted in a different judgment.
Id. at 485 (quoting Harris v. State, 301 S.W.3d 141, 152 (Tenn. 2010) (Koch, J.,
concurring in part and concurring in result), overruled by Nunley v. State, 552 S.W.3d
800 (Tenn. 2018)).
Recanted testimony may form the basis of coram nobis relief. State v. Hawkins,
519 S.W.3d 1, 64 (Tenn. 2017) (appendix). Coram nobis relief based on recanted
testimony should be granted when:
- 21 -
(1) the trial court is reasonably well satisfied that the testimony given by
the material witness was false and the new testimony is true; (2) the
defendant was reasonably diligent in discovering the new evidence, or was
surprised by the false testimony, or was unable to know of the falsity of the
testimony until after the trial; and (3) the jury might have reached a
different conclusion had the truth been told.
Mixon, 983 S.W.2d at 673 n.17; see State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007).
The prejudice inquiry should examine whether there is a reasonable basis for concluding
that, had the evidence been presented a trial, the outcome of the proceeding might have
been different. Vasques, 221 S.W.3d at 527.
The post-conviction court heard Ms. April Campbell’s testimony related to the
coram nobis claim,8 and Ms. April Campbell testified that she realized she was mistaken
in her identification of the Petitioner when she saw the real shooter at a club in 2016 or
2017. The real shooter “looked exactly like” the Petitioner. She did not inform anyone
that she had seen a man whom she believed to be the actual killer of the victim. The
post-conviction court rejected her testimony, concluding that her claim that she had seen
the real shooter, who was a “dead ringer” for the Petitioner, years after the crime was not
credible.
Coram nobis relief requires the court to be “‘reasonably well satisfied’” that the
new testimony is true. Vasques, 221 S.W.3d at 527 (quoting Mixon, 983 S.W.2d at 673
n.17). Here, the post-conviction court rejected Ms. April Campbell’s new testimony that
she had been mistaken about the Petitioner’s identity all these years and that she had only
discovered her mistake when she saw the actual killer at a club, a fact about which she
remained silent until the post-conviction hearing. This court is generally bound by a trial
court’s factual findings and credibility determinations. See Kendrick, 454 S.W.3d at 457;
Tyrone Chalmers v. State, No. W2013-02317-CCA-R3-PD, 2014 WL 2993863, at *5
(Tenn. Crim. App. June 30, 2014); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim.
App. 2002) (“The trial court was in a much better position than this court to evaluate the
credibility of the witnesses who appeared before it.”). The post-conviction court also
concluded that the Petitioner failed to establish prejudice because Ms. Williams testified
that the Petitioner had a gun and Ms. Janice Campbell witnessed the Petitioner shoot the
victim. We note that the Petitioner never contested his presence at the club but asserted
he was under a table during the shooting, and there was no evidence that both the
8
We note that the State objected at the hearing to evidence related to the coram nobis claim based
on the Petitioner’s failure to attach affidavits to the petition, but the trial court heard the testimony, and
the State does not renew the objection on appeal. See State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim.
App. 1995); see also Harris, 301 S.W.3d at 152 (Koch, J., concurring in part and concurring in result).
- 22 -
Petitioner and another man who “looked exactly like” him were present in the club.
Because the post-conviction court did not abuse its discretion in determining that Ms.
April Campbell’s recanted testimony was not credible and that there was not a reasonable
basis to conclude that the evidence might have affected the outcome of the trial, we
affirm the post-conviction court’s judgment. See Workman, 111 S.W.3d at 18 (upholding
trial court’s denial of relief when it discredited new testimony).
CONCLUSION
Based on the foregoing, we affirm the post-conviction court’s denial of relief.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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