Unjolee Moore v. State of Tennessee ( 2021 )

10/08/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 29, 2020 Session
UNJOLEE MOORE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 301490 Don W. Poole, Judge
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No. E2019-01076-CCA-R3-PC
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The Petitioner, Unjolee Moore, filed a petition for post-conviction relief in the Hamilton
County Criminal Court, claiming that he received the ineffective assistance of counsel.
After an evidentiary hearing, the post-conviction court filed an order denying relief, and
the Petitioner filed a “motion to reconsider.” The post-conviction court granted the motion,
vacated its order denying relief, and reopened the proof. Subsequently, the post-conviction
court filed a second order denying relief. On appeal, the Petitioner maintains that he
received the ineffective assistance of counsel. The State argues that this appeal should be
dismissed because the Petitioner’s notice of appeal was untimely. The State also argues
that the timely filing requirement should not be waived and that even if this court waives
timely filing, this court should disregard the evidence presented at the second evidentiary
hearing because it is not part of the record. Based upon the oral arguments, the record, and
the parties’ briefs, we conclude that the Petitioner’s notice of appeal was not untimely and
that the evidence from the second evidentiary hearing is properly before us. However, we
also conclude that the post-conviction court correctly denied the petition for post-
conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Daniel J. Murphy, Lewisburg, Tennessee, for the appellant, Unjolee Moore.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Cameron B. Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In April 2011, the Hamilton County Grand Jury indicted Steven James Ballou,
Harold Francis Butler, John Thomas Simpson, and the Appellant for the first degree felony
murder of Bernard Hughes (hereinafter “the victim”), the attempted especially aggravated
robbery of the victim, the attempted first degree premeditated murder of Tim Westfield,
and employing a firearm during the commission of or the attempt to commit a dangerous
felony. The Petitioner was tried separately from his codefendants, and the jury convicted
him as charged in the indictment of first degree felony murder; attempted especially
aggravated robbery, a Class B felony; and employing a firearm during the commission of
or the attempt to commit a dangerous felony, a Class C felony. The jury convicted him of
attempted second degree murder, a Class B felony, as a lesser-included offense of
attempted first degree premeditated murder.1 The trial court sentenced the Petitioner to
life for first degree felony murder. After a sentencing hearing, the trial court sentenced
him to fifteen years for attempted especially aggravated robbery and attempted second
degree murder and six years for the weapons offense. The trial court ordered that the
Petitioner serve the six-year sentence for employing a firearm consecutive to the fifteen-
year sentence for attempted second degree murder but ordered that the Appellant serve the
other sentences concurrently for a total effective sentence of life in confinement.
On direct appeal of the Petitioner’s convictions, this court recounted as follows:
The defense moved, prior to trial, to suppress the [Petitioner’s]
statement to police, arguing that he had been denied his right to counsel and
that he had not signed a rights waiver. The [Petitioner] also asserted that he
was entitled to relief based on law enforcement’s failure to record the entire
interview in which he gave his statement. The transcript of the hearing on
this motion is not part of the record before us. In its written order, the trial
court summarized the testimony at the suppression hearing by noting that
Investigator Michael Wenger had testified that the [Petitioner] was advised
of his rights and never requested a lawyer. Investigator Wenger noted that
the interview was recorded in two separate audio files because the batteries
on his recording device failed during the interview. When Investigator
Wenger left the room to change the battery, two agents in the Alcohol,
Tobacco, and Firearms division continued to speak to the [Petitioner], and
this portion of the interview was summarized in their report. At some point
after the batteries were replaced, the memory on the device became full, and
it could no longer record. Investigator Wenger had experienced problems
1
The grand jury also had indicted the defendants for the first degree premeditated murder of the
victim. However, at the outset of the Petitioner’s trial, the State advised the trial court that it was not going
to proceed on that charge.
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with the device on three or four prior occasions. According to the trial court’s
order, the [Petitioner] testified that he did not sign the rights waiver and that
he had asked for a lawyer several times. The trial court denied the motion to
suppress the statement or to dismiss the indictment for failure to preserve the
entire statement, but the court stated it would give an instruction to the jury
regarding the break in the recording.
....
At trial, Myra Collier testified that she had known the victim for
sixteen years and that he was her best friend. Ms. Collier had been in a
relationship with one of the co-defendants, Mr. Ballou, and he and the
[Petitioner] were acquainted with the victim because they had come to the
victim’s house a few months prior to the homicide to see Ms. Collier. The
victim sold marijuana from his house.
On June 28, 2010, Ms. Collier and Cindy Cross spent the afternoon at
the victim’s apartment. After dinner, Timothy Westfield came to see the
victim. Ms. Collier testified that they had obtained liquor prior to Mr.
Westfield’s arrival but that she did not think they had consumed much
alcohol. She acknowledged that, according to a crime scene photograph, the
bottle of gin they had been consuming contained only about one-half of one
inch of liquid.
Ms. Collier testified at trial, although Ms. Cross did not. Ms. Collier
testified that she did not hear the knock when the assailants came to the door
because she was in the bathroom. When she emerged, Ms. Cross told Ms.
Collier that she thought the victim was being robbed, and Ms. Cross said she
heard gunshots. The two women ran upstairs. Ms. Collier did not recall Mr.
Westfield telling her to go upstairs. She looked out of a window and did not
see anything, and she did not hear gunshots herself. The two were upstairs
only briefly. When they came down, they unlocked the door and saw the
victim lying on the porch, bleeding. Ms. Collier stated she checked the
victim’s pulse and that he was not breathing. She acknowledged that she did
not try to perform CPR despite her prior nursing experience. Ms. Collier
testified that she ran to get a police officer who lived at the apartment
complex. She did not recall calling 911. She acknowledged having called
her uncle, Captain Edwin McPherson, but stated the telephone call occurred
prior to the robbery.
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On cross-examination, Ms. Collier did not recall telling the police that
she did not know the [Petitioner] at all, and she stated that she knew his face
but did not know his name. She acknowledged having gone on a trip with
her cousin Ariel on Memorial Day weekend, but she could not recall if she
spoke with the [Petitioner] by telephone on that trip. She did not know the
location of the telephone to which the [Petitioner] may have placed the
Memorial Day weekend call. Ms. Collier did not recall telling police that
she did not introduce the [Petitioner] and the victim, although she testified,
“but I guess I probably didn’t.” She denied having anything to do with the
robbery or murder of the victim.
Mr. Westfield, who had known the victim since they were children,
testified that he came to the victim’s house on June 28, 2010, between 10:30
and 11:00 p.m. to socialize and to help the victim with a computer. When he
arrived, two of the victim’s friends, Ms. Cross and Ms. Collier, were sitting
outside, and the victim was on his way home. The four went inside when the
victim arrived, and Ms. Collier’s cousin stopped by to borrow some DVDs
and then left. The four had been inside at least twenty minutes, and the victim
seemed “on edge,” when they heard a knock. Mr. Westfield testified that
Ms. Collier was not in the bathroom at the time of the knock. Ms. Collier,
however, had testified that she was in the bathroom. According to Mr.
Westfield, the victim looked out of the peephole, then turned to Mr.
Westfield and gave him “a peculiar look.” The victim opened the door, went
out immediately, and closed the door behind him.
While the door was open, Mr. Westfield saw a shorter man and a taller
man standing outside. Mr. Westfield identified the taller man as John
Simpson. The shorter man was wearing a “do-rag” or half-mask over his
face with two colors, black and teal, and he had a gun. The shorter man was
about five feet, four inches tall, had a tall bridge on his nose, and light eyes.
Mr. Westfield acknowledged that he did not recognize the man at the time,
but he stated that “as soon as I found out who it was, I knew it went two and
two together.” At trial he identified the shorter man as Harold Butler, whom
he described as unique in appearance. Mr. Westfield testified that Mr.
Butler’s stature was consistent with wearing a size eight shoe. While the
victim was passing out of the door, Mr. Westfield could see that the shorter
man had a gun, and he heard the shorter man say, “Lay it down,” which was
a demand for the victim’s possessions.
Mr. Westfield testified that he told the two women to go upstairs and
that he went outside to assist the victim. Mr. Westfield testified at first that
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he opened the door, saw the men scuffling, then shut the door, at which point
it jammed. He later stated that the door was jammed when he first tried to
open it. One of the women told him that it was only locked, and he opened
it and went outside.
Outside, both of the men were hitting the victim on top of the head,
and the victim was fighting back. Mr. Westfield leaped at the taller man. He
heard three shots and saw two flashes in his eyes, and then everything went
black. Mr. Westfield regained consciousness in a bush and saw the victim
lying on the porch. He did not see blood at first and attempted to administer
cardiopulmonary resuscitation (“CPR”), but “when I blew in his mouth and
squeezed his nose, my finger went through his nostril where the bullet went
in at and that’s how I found the bullet wound, and when I bl[ew] in it, the
matter came out of the back of his head.” Mr. Westfield observed the shorter
man hiding behind the fender of a nearby car, and the man got in a late-model
silver car with dark windows. Mr. Westfield saw a shoe and baseball cap at
the scene. He discovered that he had a gunshot laceration on his forearm and
that the tip of one finger had been essentially severed by a bullet. Mr.
Westfield acknowledged that he had told police the shorter man said
something like “break yourself” instead of “lay it down,” but he testified that
the two phrases had the same meaning. He told police that the car was either
a Maxima or an Altima. He did not recall saying that the car was gold and
not silver, but he did not deny it, explaining that he was “going crazy” at the
emergency room. He acknowledged that he only saw two men and that
neither of the assailants was the [Petitioner].
Mr. Westfield stated he did not know if the victim had received
complaints that too many people were coming to his house, and he stated that
the victim had told him that the victim no longer sold marijuana. He did not
recall telling law enforcement at the hospital that the victim had been getting
complaints because he had too many visitors. Mr. Westfield acknowledged
that the victim and his guests had been drinking alcohol on the evening of
the homicide.
Investigator Michael Wenger testified that he was assigned to
investigate the case. He interviewed witnesses and visited the scene.
Investigator Wenger was looking for the [Petitioner] and found him in a
parked 1999 gold or silver Nissan Maxima on July 9, 2010. The owner of
the vehicle and the [Petitioner’s] girlfriend, Michelle Angel, was in the
passenger seat. Investigator Wenger testified that he gave the [Petitioner]
Miranda warnings and that the [Petitioner] signed a rights waiver prior the
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interview. He acknowledged having failed to sign as a witness on the waiver
and stated that he was not aware that the [Petitioner] had been in special
education or could not read until the eleventh grade. Officer Phillip
Narramore and a federal agent were also assisting with the interview.
Investigator Wenger testified regarding the failed battery and the memory
problem with the recording device. He stated that he left the interview room
to download the contents of the recording device, and when he returned “we
had gotten most of what we needed, so I didn’t continue with the interview.”
The interview began on July 9th and ended on July 10th. The [Petitioner]
was permitted to take breaks and given dinner. The interview lasted four to
six hours, but the [Petitioner] was at the station for ten to twelve hours.
In the recorded interview, the [Petitioner] acknowledged his
involvement in the crimes. The [Petitioner] stated that “Ariel” had told him
that the victim sold marijuana. The [Petitioner] knew the victim by sight
through Ariel but did not know the victim’s name. According to the
[Petitioner], he and Mr. Butler had spoken about robbing a “dope boy,” and
they targeted a drug dealer because “[t]o be honest with you those was the
easiest ones to get in the street . . . uh . . . cause like a dope boy won’t call
police.” The [Petitioner] said that he and Mr. Butler spoke of the robbery at
Mr. Butler’s house approximately a week before the crimes, and at that time,
he told Mr. Butler, “I could use some money too. I told ‘em about maybe
Bernard.” The [Petitioner] told Mr. Butler that the victim did not keep a gun.
At first, the [Petitioner] stated that he and Mr. Butler were alone during the
conversation, but he later told police that Mr. Simpson was there as well.
The [Petitioner] told police that Mr. Butler had a .38 revolver, a Hi-Point .45
caliber firearm, and a pump shotgun at his house.
The [Petitioner] also acknowledged that he anticipated sharing in the
profits of the robbery. He stated that he “let [Mr. Butler] do it all” and just
wanted to “collect a cut on the side.” The [Petitioner] stated that “[t]hey
promised to break me off . . . a little of what I get,” and he stated he would
gain “[a] cut out of it.” More specifically, the [Petitioner] expected to get
approximately $3,000 if $10,000 were taken, which he stated was forty
percent. The [Petitioner] would get this money because he “turned him onto
it.” At first, the [Petitioner] acknowledged only taking the assailants to the
apartment earlier in the day, and he denied being on the scene during the
homicide. According to the [Petitioner], on the day of the homicide, he took
Mr. Butler and another man to the victim’s house, where several people
standing outside saw them. The [Petitioner] told the people that he was not
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hard to find and drove off. The [Petitioner] told police that during the
homicide, Mr. Butler was driving a gold Maxima, “[s]ame kind as my girl’s.”
After police told the [Petitioner] that they had evidence putting him at
the scene, the [Petitioner] admitted that he was “over there,” although he
insisted that he “never got out of the car.” He stated, “I picked ‘em up. I
dropped ‘em off.” The [Petitioner] told law enforcement that he was in the
car behind the apartment the entire time, heard gunshots, and saw Mr. Butler
and Mr. Simpson come around a corner. Mr. Butler was delayed because he
had been looking for a lost shoe. According to the [Petitioner], Mr. Simpson
was armed with a .38 revolver, and Mr. Butler was armed with a .45 Hi-Point.
The [Petitioner] stated at first that he could not see from where he was
sitting. However, he eventually described the conflict, noting that after Mr.
Butler knocked, Mr. Butler “told [the victim] lay it down.” The [Petitioner]
described a man coming to the victim’s aid. According to the [Petitioner],
Mr. Butler fired a shot in the air, and Mr. Simpson then emerged from the
bushes and fired twice. The [Petitioner] stated that Mr. Butler then fired
again. The house door opened and closed, and someone inside the house
fired out. The [Petitioner] dropped Mr. Butler and Mr. Simpson at Mr.
Butler’s home and then went to his girlfriend’s house. The [Petitioner] stated
that he “didn’t expect it to happen like that.” He elaborated later that he did
not know or expect that anyone would get killed. The [Petitioner] told police
that they did not acquire anything in the robbery. In his statement, the
[Petitioner] implied that Ms. Collier “had something to do with it.”
Investigator Wenger stated that during his investigation, he spoke
with Ms. Collier and discovered that she had called her uncle after the
homicide. She had also made two 911 calls that did not go through. He
acknowledged that one witness at the scene had seen a tan van and that the
[Petitioner] also described a tan SUV. Investigator Wenger also
acknowledged that both a co-defendant and a witness said that the getaway
vehicle hit another car as it was leaving but that he was unable to locate
damage on Ms. Angel’s Maxima or any car at the scene. Investigator Wenger
stated that the other officers spoke to the [Petitioner] while Investigator
Wenger was out of the room and acknowledged that he did not know if the
[Petitioner] was threatened. He stated that he was not lying when he told the
[Petitioner] that they could place him at the scene because law enforcement
had telephone records indicating that the [Petitioner] was there. Investigator
Wenger acknowledged that a woman named Ariel had been in an argument
that night with the victim and that her telephone records were not
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investigated. Police did not locate the two weapons which fired the shots,
but they found a pump shotgun at Mr. Butler’s residence. Officer Narramore
of the Chattanooga Police Department testified that he did not remember
questioning the [Petitioner] while Investigator Wenger was out of the room.
Neither he nor the federal agent threatened or coerced the [Petitioner] during
the interview.
Police officers found a live round and two bullet casings at the scene.
A bullet was recovered from the frame of the doorway. They also discovered
a baseball cap and a size 8 shoe. They swabbed a pool of vomit or bodily
fluid found beside a vehicle.
From the gold Maxima, law enforcement recovered two cellular
telephones, a ski-mask type facial wrap, a turquoise blue bandana, and a pair
of size 8 1/2 shoes from the trunk. Investigator Kenneth Burnette, Jr.,
acknowledged that he did not collect another pair of shoes in the trunk and
that he did not know if the size 8 1/2 shoes were men’s or women’s. He
stated that he also recovered guns from the home of the [Petitioner’s] mother
and girlfriend.
....
The shoe recovered from the scene had DNA that was a mixture from
at least three individuals. Dr. Laura Boos, a special agent forensic scientist
with the Tennessee Bureau of Investigation (“TBI”), testified that she was
able to exclude the victim, the [Petitioner], and two of the co-defendants as
contributors. The test was inconclusive regarding whether Mr. Westfield or
Mr. Butler were contributors to the DNA in the shoe. The [Petitioner’s] DNA
was recovered from the black facial wrap found in the trunk of his girlfriend’s
car. The blue bandana from the car had DNA that was a mixture from three
individuals. The test excluded all the profiles submitted except the
[Petitioner], and it was inconclusive regarding whether the [Petitioner] was
a contributor.
Steve Scott, who is employed with the firearms identification unit of
the TBI, testified that the victim’s clothing did not have gunshot residue,
which could mean that the gunshots were fired from more than four feet away
or it could mean that they were fired from closer but something interfered
with the residue. The bullet recovered from the victim’s head was a .45
caliber bullet which exhibited [rifling] produced by guns made by Hi-Point
firearms company. The bullet recovered from the doorway was also a .45
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caliber bullet, and it was fired from the same weapon that fired the bullet that
lodged in the victim’s head. The bullet from the victim’s arm was a .38 or
.357 bullet. Agent Scott determined that the two .45 caliber casings found at
the scene “had been fired in one firearm and one firearm only,” which was
manufactured by Hi-Point. Agent Scott testified that none of the firearms
sent to him in the investigation had fired the bullets. He acknowledged that
the gun which fired the bullet in the victim’s arm could have been a .357
caliber weapon. He also acknowledged that a custom-made weapon which
was not a Hi-Point firearm might have fired the .45 caliber bullets.
....
After the close of the State’s proof, the State objected to the trial
court’s intention to give an instruction on lost evidence with regard to the
partial recording of the [Petitioner’s] statement. Relying on State v. Joshua
Eugene Anderson, No. E2005-02660CCA-R3-CD, 2007 WL 1958641, at *8
(Tenn. Crim. App. July 6, 2007), the trial court elected not to give the jury
charge.
State v. Unjolee Tremone Moore, No. E2015-00942-CCA-R3-CD, 2016 WL 5210866, at
*1-6 (Tenn. Crim. App. at Knoxville, Sept. 20, 2016), perm. app. denied, (Tenn. Jan. 18,
2017).
On direct appeal of his convictions, the Petitioner claimed, in pertinent part, that the
evidence was insufficient to support his convictions as to Mr. Westfield and that he was
entitled to relief under State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), because the State
failed to preserve his entire statement. Id. at *7, 9. This court concluded that the evidence
was sufficient. Id. at *9. Regarding his statement, this court noted that the transcript for
the Appellant’s motion to suppress was not in the appellate record; therefore, the trial
court’s denial of the motion was presumed correct. Id. at *11. Nevertheless, this court
proceeded to consider the issue and determined that the trial court did not err by concluding
that the Petitioner was not entitled to relief under Ferguson.
After our supreme court denied the Petitioner’s application for permission to appeal,
he filed a timely petition for post-conviction relief, claiming that he received the ineffective
assistance of counsel. The post-conviction court appointed counsel, and counsel filed an
amended petition, claiming that the Petitioner received the ineffective assistance of counsel
because trial counsel (1) failed to file a motion for a continuance when the State provided
trial counsel with the Petitioner’s audio-recorded confession just one week before trial; (2)
failed to call alibi witnesses at trial; (3) failed to call witnesses who could explain why the
Petitioner’s DNA was on the black facial wrap found in the trunk of Ms. Angel’s car; and
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(4) failed to file a motion in limine or raise a timely objection to testimony about the
firearms, ammunition, and bulletproof vest that were found in Ms. Angel’s home. The
amended petition also alleged that the Petitioner received the ineffective assistance of
counsel because appellate counsel failed to include the transcript of the suppression hearing
with the direct appeal record and failed to raise on appeal that the trial court should have
granted a mistrial because a juror discussed facts outside of the case with other jurors.
Finally, the amended petition alleged that newly discovered scientific evidence in the form
of a letter showed that the Petitioner was actually innocent of the crimes. Specifically, a
letter written by codefendant Simpson alleged that the victim was killed during a fight with
Simpson “over a woman, not during a robbery.”
The post-conviction court held an evidentiary hearing on August 13, 2018. At the
hearing, the then thirty-two-year-old Petitioner testified that on the morning of June 28,
2010, the day of the crimes, he went to work. He left work about 6:00 p.m. and “hung”
with his younger brother “for a little bit.” The Petitioner left his brother’s house and “hung”
with Octavia Rucker, whom he described as a “lady friend.” The Petitioner returned to his
brother’s house with Ms. Rucker. About 11:50 p.m. or midnight, the Petitioner, Ms.
Rucker, and the Petitioner’s brother left in Ms. Rucker’s vehicle to get something to eat on
Brainerd Road. After getting something to eat, the Petitioner and Ms. Rucker drove the
Petitioner’s brother back to the Petitioner’s brother’s house, and the Petitioner and Ms.
Rucker went to Ms. Rucker’s house on McCallie Avenue. The victim was killed about
11:30 p.m. at the British Woods Apartments on Oakwood Drive. The Petitioner said that
at that time, he and Ms. Rucker were with the Petitioner’s brother.
The Petitioner testified that the next morning, he left Ms. Rucker’s house and went
to his second job mowing grass for New England Baptist Church. The Petitioner said he
used a “facial wrap” to protect his face when he mowed grass. Officers from the
Chattanooga Police Department (CPD) arrested the Petitioner on July 9, 2010. They
transported him to the Police Service Center on Amnicola Highway and handcuffed him to
a bench in a hallway. The Petitioner said that he arrived at the Police Service Center about
2:30 p.m. and that he sat on the bench for three and one-half to four hours. During that
time, a patrolman stayed with the Petitioner and told the Petitioner that the Petitioner was
“a piece of [sh*t]” and “a murderer.”
The Petitioner testified when Investigator Wenger arrived at the Police Service
Center, Investigator Wenger began punching him and demanding that he tell the truth.
Investigator Wenger “punched” the Petitioner’s left eye, and the patrolman “joined in.”
The Petitioner said that Investigator Wenger and the patrolman were “tag teaming” and
that they beat him “[o]ff and on” in the hallway for three hours. The Petitioner said that
Investigator Wenger would ask him questions and then would leave him alone with the
patrolman. While Investigator Wenger was gone, the Petitioner and the patrolman
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“continued to get into it.” When Investigator Wenger returned, he would ask the Petitioner
more questions and continue beating him. The Petitioner said that the officers never took
him to an interview room and that he never realized he was being “interrogated.”
The Petitioner testified that at some point, Officer Narramore and another officer
“came in.” Investigator Wenger and Officer Narramore began questioning the Petitioner
about the victim’s death. The officers never advised the Petitioner of his rights or had him
sign a waiver of rights form. Post-conviction counsel showed the Petitioner a signed
waiver of rights form, and the Petitioner denied signing the form.
The Petitioner testified that during his interrogation, Investigator Wenger claimed
the Petitioner’s cellular telephone records showed the Petitioner was in the area of the
British Woods Apartments at the time of the crimes. The Petitioner acknowledged that
Investigator Wenger had obtained the Petitioner’s cellular telephone records from
Verizon.2 Post-conviction counsel introduced the records into evidence at the evidentiary
hearing and showed them to the Petitioner. The Petitioner stated that according to the
records, he was at 2338 McCallie Avenue at 11:40 p.m. on June 28, 2010. The Petitioner
said that the distance from McCallie Avenue to the British Woods Apartments was about
ten and one-half miles and that it would have taken him twenty to twenty-five minutes to
drive from McCallie Avenue to the apartment complex. Therefore, the Petitioner knew
Investigator Wenger was lying when the investigator claimed the records put the Petitioner
at the crime scene.
The Petitioner acknowledged that he confessed to the crimes but said that he did so
because he was “tired of getting punched on,” tired of being handcuffed to the bench, and
wanted to go home. The Petitioner said that his confession was audio recorded but that
parts of his confession did not make sense, which indicated that the recording had been
“slic[ed].” After he gave his confession, the Petitioner was “booked” into the Hamilton
County Jail. The Petitioner’s intake officer noticed his injuries and called for medical
personnel. The Petitioner identified his medical form from the jail and read from the form
as follows: “‘Evaluated inmate, a laceration believed to be from CPD, right wrist to hand.
Discomfort, swelling to left eye.’”
The Petitioner testified that about one and one-half years after he was indicted for
the crimes, trial counsel was appointed to represent him. Trial counsel had never handled
a murder case prior to the Petitioner’s case. The Petitioner told trial counsel about the
injuries he received at the Police Service Center, but trial counsel never contacted the
Hamilton County Jail and never reviewed the Petitioner’s medical records. The Petitioner
also told trial counsel where he was at the time of the crimes, but trial counsel did not try
2
The record reflects that Investigator Wenger submitted an Emergency Information Request to
Verizon Wireless on July 8, 2010, and that he received the records from Verizon that same day.
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to obtain any evidence to prove the Petitioner’s alibi. Trial counsel received funds to hire
a private investigator, but the Petitioner met the investigator only one time in three years.
The Petitioner told the investigator the “basic facts” of his case and gave Ms. Rucker’s
name to the investigator. Trial counsel never said anything to the Petitioner about the
Petitioner’s cellular telephone records.
The Petitioner testified that trial counsel filed a motion to suppress the Petitioner’s
confession and that the prosecutor gave trial counsel a “disk” containing the confession.
The State made an offer for the Petitioner to plead guilty in exchange for a sentence of
twenty-five years to be served at thirty percent for his testimony against his codefendants.
However, the Petitioner could not testify against his codefendants because he was not at
the scene of the crimes; therefore, he could not accept the State’s offer. On the morning of
trial, trial counsel was not prepared, so the Petitioner asked trial counsel to recuse himself
from the case. Trial counsel left the Petitioner’s holding cell for five or ten minutes but
returned and told the Petitioner that the trial court would not allow trial counsel to “step
off” the case. During the Petitioner’s trial, he learned for the first time that his confession
had been audio recorded and that the recording had been transcribed.
The Petitioner testified that at some point during his trial, the bailiff informed the
trial court that “one of the jurors was talking with other jurors about knowing the . . .
victim’s sister and growing up with Mr. Westfield.” The trial court dismissed the juror and
instructed the remaining jurors not to discuss the case. The Petitioner asked that trial
counsel request a mistrial because the Petitioner thought the jury had been “poisoned” by
the dismissed juror. The State showed the jury guns owned by the Petitioner’s mother; a
gun and a bulletproof vest that were discovered in Ms. Angel’s house in Fort Oglethorpe,
Georgia; and a gun that was found in a codefendant’s home. However, none of the items
belonged to the Petitioner.
The Petitioner testified that after the State closed its proof, trial counsel told him
that the State did not present enough evidence to convict him; therefore, trial counsel was
not going to call any of the Petitioner’s witnesses, including his alibi witnesses. The
Petitioner wanted to testify at trial, but trial counsel advised him not to testify due to his
“past.” After the jury convicted the Petitioner, trial counsel told the Petitioner that trial
counsel “messed up” and “wasn’t prepared” for trial. Trial counsel said he would “take
the fall for it” and “let the judge know.” The Petitioner stated that another attorney
represented him on direct appeal of his convictions and that he met with appellate counsel
only one time for twenty-five to thirty minutes. The Petitioner told appellate counsel about
the “juror issue,” but appellate counsel did not raise the issue on appeal.
On cross-examination, the Petitioner acknowledged that his confession consisted of
one “lengthy” audio recording and one “very brief” audio recording and that he gave the
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police details about the victim’s death. He said, though, that Investigator Wenger and
Officer Narramore gave him the details and that he was “just piecing things together.” The
Petitioner knew codefendant Butler prior to the crimes because Butler cut the Petitioner’s
hair. The Petitioner knew codefendant Ballou “[t]hrough mutual friends.” The Petitioner
did not know codefendant Simpson. Before this case, the Petitioner served five years, ten
months in federal custody for carjacking.
The Petitioner testified that on July 9, 2010, CPD officers arrested him in front of
his parents’ house for a kidnapping and an especially aggravated robbery that were
unrelated to the crimes involving the victim and Mr. Westfield. The officers transported
the Petitioner to the Police Service Center, and Investigator Wenger and Officer Narramore
ended up questioning him about the crimes against the victim and Mr. Westfield. The
charges against the Petitioner for the unrelated kidnapping and especially aggravated
robbery were later dismissed. Mr. Ballou also was arrested in the unrelated case, and the
Petitioner did not know if Mr. Ballou pled guilty in that case.
The Petitioner testified that on the night of the crimes, he was with Ms. Rucker, who
drove a 2000 Ford Explorer. When the Petitioner was arrested on July 9, he was with Ms.
Angel, who owned a purple Nissan Maxima. Ms. Angel gave a statement to the police in
which she claimed that on the night of the crimes, the Petitioner dropped her off at night
school, left in her Maxima, and returned at 4:30 p.m. the next day. The Petitioner said Ms.
Angel’s statement was not true. He denied being in a relationship with Ms. Angel and said
he was “just sleeping” with her. He said he used her car “maybe three times, and that was
during the day.” The police later searched Ms. Angel’s house in Fort Oglethorpe and found
a firearm and a bulletproof vest. The items belonged to Ms. Angel’s brother, not the
Petitioner. The Petitioner said he was not with Ms. Angel or driving her Maxima on the
night of the crimes.
The Petitioner testified that trial counsel talked with Ms. Rucker, the Petitioner’s
mother, and a local pastor before trial. The Petitioner told trial counsel about the
Petitioner’s brother being an alibi, but the Petitioner did not know whether trial counsel
spoke with his brother. The Petitioner said that during his interrogation, he was handcuffed
to the bench in the Police Service Center hallway from 2:30 p.m. to 3:00 a.m. The police
only allowed him to leave the bench to go to the bathroom, and they did not give him any
food or water. Investigator Wenger and the patrolman were the only officers who beat the
Petitioner, and they beat him “off and on” for three hours. The Petitioner said he was
photographed during his booking at the jail. At that point, the State showed nine
photographs to the Petitioner, and he identified them as photographs taken of him at the
Police Service Center. He said he thought the photographs were taken before his
interrogation. The State asked, “Detective Burnett says he took the pictures at 4:45 a.m.
July 10th, is that not true?” The Petitioner answered, “I don’t remember that.” The State
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asked the Petitioner to identify his injuries in the photographs, but the Petitioner was unable
to do so. The Petitioner denied writing anything on his jail medical form.
The Petitioner testified that trial counsel filed a motion to suppress his confession
and that he told trial counsel he did not sign a waiver of rights form. At the suppression
hearing, Investigator Wenger testified that the Petitioner waived his rights and signed the
form. The Petitioner also testified at the hearing but did not mention being beaten because
he only answered the questions that were presented to him. The Petitioner said that
although he admitted to planning the robbery of the victim, he did so because “the
detectives told [him what] to say.”
The Petitioner testified that he had prior convictions of carjacking and theft of a
vehicle. The Petitioner wanted to testify at trial, but trial counsel did not want the jury to
learn about his criminal history. The Petitioner disagreed with trial counsel and thought he
needed to testify. The trial court held a Momon hearing, and the Petitioner told the trial
court that he did not want to testify.
On redirect-examination, post-conviction counsel showed a photograph to the
Petitioner. The Petitioner identified the photograph as his “booking picture” and said it
showed a “dark bruise” under his left eye. The Petitioner acknowledged that bruises did
not always show up clearly on African-Americans. He said that he told trial counsel the
officers had beaten him and that he had “no idea” why trial counsel did not raise the issue
at the suppression hearing. Upon being questioned by the post-conviction court, the
Petitioner acknowledged that he was handcuffed to the bench in a “narrow hallway” of the
Police Service Center from 2:30 p.m. until 3:00 a.m. The police officers beat the Petitioner
in the hallway. The post-conviction court asked, “[W]hile people were coming and going
[in the hallway], you were being beaten?” The Petitioner responded, “No, no. When they
disappeared, that’s when they will come and fight with me.”
Twenty-seven-year-old Jean Hudson testified that the Petitioner was his older
brother.3 On the night of June 28, 2010, Mr. Hudson was with the Petitioner. Mr. Hudson
explained that the Petitioner telephoned Mr. Hudson and “ended up coming . . . to visit.”
They “chilled” and talked, picked up Mr. Hudson’s stepdaughter, and went to get food at
Sonic. Mr. Hudson said that he did not remember the exact time he was with the Petitioner
but that it was “around like 11 something.” The Petitioner and Mr. Hudson “parted ways
after a couple of hours or so.” Mr. Hudson estimated that it would have taken twenty to
twenty-five minutes to drive from McCallie Avenue to the British Woods Apartments.
3
We note that Mr. Hudson is referred to as “John Hudson” throughout the record. However, at the
outset of his testimony, he spelled his first name “J-E-A-N.”
- 14 -
On cross-examination, Mr. Hudson testified that on June 28, 2010, he was living on
12th Avenue. The Petitioner telephoned him about 10:00 p.m. and again after 11:00 p.m.
The Petitioner came to Mr. Hudson’s house and had a “female friend” with him. The
Petitioner and the woman were driving an SUV. Mr. Hudson never talked with trial
counsel about the Petitioner’s case. The State asked Mr. Hudson when he realized that the
Petitioner had been with him at the time of the crimes. Mr. Hudson answered, “Just now,
because I didn’t know the time of the murder.” On redirect-examination, Mr. Hudson
testified that he did not come forward with his information earlier because he did not know
what time the crimes occurred.
Annette Thompson, the Petitioner’s mother, testified that on the night of June 28,
2010, the Petitioner came to her house and took a shower because he “was going to spend
some time with a young lady.” The next morning, the Petitioner returned to Ms.
Thompson’s house to take a shower and get his tools so that he could mow the grass at
New England Baptist Church. Ms. Thompson said that the Petitioner always wore a black
mask when he mowed grass because he had asthma and because he did not want to get
grass on his face. Ms. Thompson spoke with trial counsel one time and had an eight-minute
telephone conversation with trial counsel’s investigator. Trial counsel subpoenaed Ms.
Thompson to trial but did not call her to testify. Post-conviction counsel asked if the
Petitioner had any “problems,” such as learning disabilities, and Ms. Thompson said that
he had “several diagnoses.” Ms. Thompson said it would have taken a person more than
fifteen minutes to get from McCallie Avenue to the British Woods Apartments. On cross-
examination, Ms. Thompson said that the Petitioner left her house sometime before
midnight on June 28, 2010, and that she did not see him again until 7:30 a.m. the next day.
Investigator Kenneth Burnett testified for the State that on July 10, 2010, he
“process[ed]” the Petitioner at the Police Service Center and photographed the Petitioner’s
face and hands. Investigator Burnett took the photographs at 4:40 a.m. On cross-
examination, Investigator Burnett testified that he did not know when the Petitioner was
arrested or interrogated but that it could take a bruise “a day or two, could take an hour or
two” to be visible on a person.
Trial counsel testified that he was licensed to practice law in 2008 and practiced
criminal defense. On December 3, 2010, the trial court appointed trial counsel to represent
the Petitioner. Trial counsel said that he did not represent the Petitioner at the Petitioner’s
preliminary hearing but that he would have reviewed the hearing transcript before trial.
Trial counsel filed several motions, including a motion to suppress the Petitioner’s
confession. At that time, trial counsel did not have a copy of the Petitioner’s audio-
recorded confession. Trial counsel said he did not think he ever received a transcript of
the confession. Nevertheless, trial counsel “could tell from the written discovery that there
were problems with Detective Wenger’s recorder.” Therefore, trial counsel filed the
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motion to suppress the confession pursuant to the “Ferguson theory.” The Petitioner told
trial counsel that he had been handcuffed to a bench for “a long time” before being
questioned and that he did not sign a waiver of rights form. The Petitioner did not tell trial
counsel before or during the suppression hearing that he had been beaten. The trial court
denied the motion to suppress.
Trial counsel testified that he received discovery but that he did not receive a copy
of the Petitioner’s audio-recorded confession until one to three weeks before trial. Trial
counsel reviewed the recording and tried to review it with the Petitioner in jail. However,
the Petitioner did not want to review the recording “because he said he remembered what
he said.” On June 17, 2013, the day before trial, trial counsel filed a motion to reopen the
suppression hearing proof and continue the trial, but the trial court denied the motion.
The State showed trial counsel a copy of the motion to reopen and continue the trial.
Trial counsel acknowledged that according to the motion he prepared, he received the
Petitioner’s audio-recorded confession on April 8, 2013, which was a couple of months
before trial.
Trial counsel testified that prior to trial, he notified the State about the following
defense witnesses: a handwriting expert; a local church pastor; and Ms. Rucker. The
handwriting expert had analyzed a note written by codefendant Simpson and had analyzed
the signature on the Petitioner’s waiver of rights form. Trial counsel filed a notice of alibi
with regard to the church pastor and Ms. Rucker, but the Petitioner did not tell trial counsel
about Mr. Hudson. Trial counsel met with the church pastor before trial. The pastor could
have testified that the Petitioner mowed the grass at New England Baptist Church and used
a facial wrap, but the pastor did not “feel comfortable” testifying that the Petitioner mowed
the grass at the church on the morning after the crimes. Trial counsel also spoke with Ms.
Rucker before trial, and she was “on standby” to testify that the Petitioner was at her home
on the night of the crimes. However, Ms. Rucker had some prior theft convictions, and
trial counsel “did not have a good feeling about calling her as a witness.” Trial counsel
ended up not calling any of the witnesses to testify. Trial counsel and the Petitioner
discussed whether the Petitioner should testify, but trial counsel thought it was going to be
“very tough” for the Petitioner to explain his confession. The Petitioner decided not to
testify.
Trial counsel testified that three to six months before trial, he arranged for another
attorney to assist him with the Petitioner’s case because she had more trial experience than
trial counsel. Co-counsel reviewed discovery and met with the Petitioner. During the
Petitioner’s trial, trial counsel overheard the Petitioner tell co-counsel that police officers
had beaten him. Trial counsel explained, “When [the State] played the statements that he
- 16 -
gave to Wenger. I believe when there were gaps in the recording, he said that that was
when they were beating him.”
On cross-examination, trial counsel testified that after he was appointed to the
Petitioner’s case, he met with the Petitioner in jail. Although the Petitioner’s case was trial
counsel’s first murder case, he did not think he mentioned that fact to the Petitioner. Trial
counsel acknowledged that he did not ask the Petitioner if the police had beaten the
Petitioner but said that “I would think . . . that would have probably been something he
would have wanted to tell me.” During the Petitioner’s interrogation, Investigator Wenger
claimed he could put the Petitioner at the scene of the crimes. Trial counsel cross-examined
Investigator Wenger about that claim at trial and suggested that Investigator Wenger was
“bluffing.” Investigator Wenger then testified that he had cellular telephone records to
show the Petitioner was at the crime scene and that the records were in the “master case
file.”
Trial counsel testified that he had received the master case file in discovery but that
he did not think he ever saw cellular telephone records. At that point, post-conviction
counsel showed the cellular telephone records to trial counsel, and trial counsel reviewed
them briefly. Trial counsel said that according to handwritten notes with the records, the
Petitioner was at 2338 McCallie Avenue at 11:40 p.m. on June 28, 2010. Trial counsel
acknowledged that at trial, Mr. Westfield testified that the knock on the victim’s door may
have occurred at “11:30 or so.” Trial counsel said it would have been “very difficult” for
the Petitioner to have traveled from the crime scene to McCallie Avenue in ten minutes.
Trial counsel stated that in hindsight, the telephone records “would have been very helpful”
to contradict Investigator Wenger’s testimony that the Petitioner was at the crime scene.
Trial counsel testified that during the trial, the jury heard statements about guns and
a bulletproof vest. Trial counsel made a motion to redact the statements, and the trial court
granted the motion. Trial counsel said that he should have filed the motion before trial so
that the jury would not have heard about the prejudicial evidence. Trial counsel said that
he also should have filed the motion to continue the trial earlier and that the motion was
his “last-ditch” effort for more time to prepare for trial.
Trial counsel testified that he decided not to call the handwriting expert as a witness
at trial because the expert either did not have enough information to analyze the signature
on the waiver of rights form or the expert was not going to provide a “good” report. Trial
counsel acknowledged that even though Reverend Ballard did not want to testify as an alibi
witness, Reverend Ballard could have verified the Petitioner’s use of the facial wrap. Trial
counsel said he did not remember the Petitioner’s mother being able to provide any
information helpful to the defense. He acknowledged, though, that she could have testified
that the Petitioner used the facial wrap when the Petitioner mowed grass. Trial counsel
- 17 -
said that he and the Petitioner were “both unhappy” with the jury’s verdicts and that he
probably said something to the Petitioner after the verdicts about being an inexperienced
attorney. On redirect-examination, trial counsel clarified that he thought the addresses on
the Petitioner’s cellular telephone records were the locations for cellular telephone towers,
not the locations for the Petitioner’s telephone.
On September 24, 2018, the post-conviction court entered an order finding that the
Petitioner was not entitled to relief on any of the issues raised in the petition or at the
evidentiary hearing. Regarding the Petitioner’s claim that trial counsel was ineffective
because trial counsel failed to use the Petitioner’s cellular telephone records at trial, the
post-conviction court noted that the Petitioner did not have an expert witness testify about
the records at the evidentiary hearing and found that the records did not establish the
Petitioner was not at the crime scene. Thus, the post-conviction court found that the
Petitioner failed to demonstrate that he was prejudiced by trial counsel’s failure to use the
records.
On October 11, 2018, the Petitioner filed a “motion to reconsider,” requesting that
he be allowed to present expert testimony about his cellular telephone records. In support
of his motion, the Petitioner attached an affidavit from Glen Buckley, which was dated
October 10, 2018. In the affidavit, Mr. Buckley stated that he was a licensed private
investigator and a forensic examiner certified by Cellebrite, an electronic mobile device
forensics company. He stated that at post-conviction counsel’s request, he had reviewed
“Call Detail Records and maps” prepared by the State in the Petitioner’s case. Mr. Buckley
concluded that the Petitioner’s cellular telephone records created reasonable doubt that the
Petitioner was at the crime scene.
On October 15, 2018, the post-conviction court entered an order granting the
Petitioner’s motion. In the order, the post-conviction court found that the court still had
jurisdiction to amend its September 21, 2018 order denying post-conviction relief. The
post-conviction court vacated its September 21 order and directed that the post-conviction
evidentiary hearing be “reopened” for additional proof.
The post-conviction court held a second post-conviction evidentiary hearing on May
18, 2019. During the hearing, Mr. Buckley gave expert testimony that he had reviewed the
cellular telephone records that were introduced into evidence at the first hearing. He also
reviewed a map that showed the crime scene and various cellular telephone towers that
communicated with the Petitioner’s telephone on the night of the crimes. The map had
been prepared by the State’s expert using CellHawk software. The Petitioner’s records did
not include the latitude and longitude for his cellular telephone, so Mr. Buckley could not
determine the location of the telephone at the time of a particular call. Instead, he could
only use the records to determine the location of the cellular telephone towers that
- 18 -
communicated with the telephone. The records were consistent with the map prepared by
the State’s expert.
Mr. Buckley testified that at 11:30 p.m. on June 28, 2010, the Petitioner’s telephone
was about five and one-half miles from the crime scene. At 12:08 a.m. on June 29, 2010,
the Petitioner’s telephone was “just underneath and to the right” of the crime scene on the
State’s map.
On cross-examination, Mr. Buckley testified that he did not know the name of the
service provider for the telephone records because the name was not on the records.
However, evidence he received for review indicated that Cricket was the service provider;
therefore, he prepared his own map showing the locations of various Cricket towers in
relation to the crime scene. He said he thought a Verizon device could communicate with
Cricket towers.
The State showed Mr. Buckley a police incident report.4 According to the report,
police officers were dispatched to the British Woods Apartments at 12:03 a.m. on June 29,
2010. Mr. Buckley said that at 12:08 a.m., the Petitioner’s cellular telephone
communicated with tower 987 on the State’s map. The tower was just one and one-half
miles from the apartment complex.
Mark Hamilton testified as an expert for the State that he worked in technical
forensics for the CPD. Mr. Hamilton reviewed the Petitioner’s cellular telephone records
and used CellHawk software to prepare the map that was provided to Mr. Buckley.
Although “Verizon” was not printed on the records, the records were “easily discernable”
as Verizon records. He said a Verizon device could not communicate with a Cricket tower.
Mr. Hamilton testified that the Petitioner’s cellular telephone records were
consistent with the Petitioner’s traveling toward the crime scene at 11:40 p.m. on June 28,
2010. The police were dispatched to the crime scene at 12:03 a.m. on June 29. At 12:08
a.m., the Petitioner’s telephone connected with Verizon tower 987, which was consistent
with someone leaving the crime scene. Mr. Hamilton stated that although the Petitioner
claimed the Petitioner was with Mr. Hudson on 12th Avenue between 11:10 a.m. and 1:10
a.m., that claim was not consistent with the records. The Petitioner’s claim that he went to
get food on Brainerd Road during that time also was not consistent with the records.
On cross-examination, Mr. Hamilton testified that the Petitioner asserted as his alibi
that he was “stationary” at someone’s house during the crimes. However, the Petitioner’s
cellular telephone records showed that his telephone was “moving all over the place.” Mr.
4
The State did not introduce the report into evidence.
- 19 -
Hamilton acknowledged that the Petitioner’s telephone was not in the area of the crime
scene at 11:30 p.m.
On May 21, 2019, the post-conviction court entered a second order denying post-
conviction relief. Relevant to this appeal, the post-conviction court first addressed the
Petitioner’s claim that trial counsel was ineffective for failing to file a motion in limine
regarding evidence that firearms, ammunition, and a bulletproof vest were found in Ms.
Angel’s home in Fort Oglethorpe. The post-conviction court noted that the State could not
connect the items to the Petitioner at trial. However, the post-conviction court concluded
that even if trial counsel was deficient for not objecting to the evidence before trial, the
Petitioner failed to demonstrate prejudice because his confession and his details about the
crimes rendered the improper evidence “inconsequential.” As to the Petitioner’s claim that
trial counsel should have filed a motion to continue the trial earlier so that trial counsel
could have reviewed the Petitioner’s audio-recorded confession, the post-conviction court
found that trial counsel received the recording in April 2013, “several weeks” before the
Petitioner’s June 2013 trial. The post-conviction court also found that before trial, trial
counsel was able to challenge the State’s failure to record the entire interview pursuant to
Ferguson. Thus, the post-conviction court found that the Petitioner failed to demonstrate
prejudice. The post-conviction court found that the Petitioner’s testimony about being
beaten was “too late to be credible” and that his medical form and photographs did not
“confirm” any injuries. Therefore, the post-conviction court found that trial counsel was
not deficient for failing to raise the issue in the motion to suppress.
As to the Petitioner’s claim that trial counsel was ineffective for not calling alibi
witnesses at trial, the post-conviction court noted that according to the Petitioner’s notice
of alibi, which was filed on May 10, 2013, the Petitioner was with Ms. Rucker at her
residence on the night of the crimes. The post-conviction court accredited trial counsel’s
testimony that the Petitioner did not notify trial counsel about Mr. Hudson’s being an alibi
witness and stated, “[The Petitioner’s] present alibi seems to be an attempt to be consistent
with the phone records.” Thus, the post-conviction court found that the Petitioner was not
entitled to relief on this issue. Regarding the Petitioner’s claim that trial counsel was
ineffective for failing to use the Petitioner’s cellular telephone records at trial to show he
was not at the crime scene, the post-conviction court noted that Mr. Westfield
“estimate[ed]” the time of the crimes as 11:30 p.m. but that the police were not dispatched
to the scene until 12:03 a.m., which was “a more accurate indication of the time of the
offense[s].” The post-conviction court concluded that although the State did not present
the time of dispatch as evidence at trial, the State would have done so if trial counsel had
tried to use the Petitioner’s cellular telephone records. Therefore, the post-conviction court
found that the Petitioner was not prejudiced by trial counsel’s failure to use the cellular
telephone records.
- 20 -
Next, the post-conviction court addressed the Petitioner’s claim that trial counsel
was ineffective for failing to call witnesses to testify that the Petitioner regularly wore the
black facial wrap when he mowed grass. The post-conviction court found that even if the
Petitioner wore the facial wrap to mow grass at the church, it was possible that a
codefendant was wearing the facial wrap with a blue bandana at the time of the crimes.
Therefore, the post-conviction court again found that the Petitioner failed to demonstrate
prejudice.
Finally, the post-conviction court addressed the Petitioner’s claims that appellate
counsel was ineffective for failing to raise the juror issue on direct appeal of the Petitioner’s
convictions, for failing to include the suppression hearing transcript in the direct appeal
record, and for failing to argue on direct appeal of his convictions that he did not receive
Miranda warnings prior to his confession and that he did not sign a waiver of rights form.
The post-conviction court noted that the trial court questioned and dismissed the juror at
issue and that there was no proof in the post-conviction record that the dismissed juror
talked with other jurors. As to the omitted transcript, the post-conviction court noted that
appellate counsel argued on appeal that the State’s failure to preserve the Petitioner’s entire
confession violated Ferguson but that the suppression hearing transcript was not necessary
for this court to address the issue. Regarding the Petitioner’s confession, the post-
conviction court found the Petitioner not credible when he testified that he did not receive
Miranda warnings and did not sign the waiver of rights form. Accordingly, the post-
conviction court denied the petition for post-conviction relief.
II. Analysis
A. Notice of Appeal
The State argues that we should dismiss this appeal because the Petitioner’s notice
of appeal was untimely. The State also argues that we should not waive the timely filing
requirement and that even if timely filing is waived, we should disregard the evidence
presented at the second evidentiary hearing because any evidence presented after the post-
conviction court entered its first order denying post-conviction relief is not part of the
record. We disagree with the State.
The post-conviction court entered it first order denying post-conviction relief on
September 24, 2018. On October 11, 2018, the Petitioner filed a “motion to reconsider.”
On October 15, 2018, the post-conviction court entered an order granting the Petitioner’s
motion. In the order, the post-conviction court vacated its September 24 order and
“reopened” the Petitioner’s post-conviction evidentiary hearing. The post-conviction court
held a second evidentiary hearing on May 8, 2019, and entered a second order denying
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post-conviction relief on May 21, 2019. The Petitioner filed his notice of appeal on June
17, 2019.
The State argues that the Petitioner’s notice of appeal was untimely because the
post-conviction court lost jurisdiction over the Petitioner’s case when the court entered its
first order denying post-conviction relief on September 24, 2018. In support of its
argument, the State relies on Michael Joe Boyd v. State, No. W1999-01981-CCA-R3-PC,
1999 WL 33261797 (Tenn. Crim. App. at Jackson, Dec. 21, 1999). The Petitioner responds
that his motion to reconsider was actually a motion to reopen pursuant to Tennessee Code
Annotated section 40-30-117(a)(2), which provides that a petitioner may file a petition to
reopen a post-conviction proceeding if “[t]he claim in the motion is based upon new
scientific evidence establishing that the petitioner is actually innocent of the offense or
offenses for which the petitioner was convicted.”
In Michael Joe Boyd, the post-conviction court entered an order denying post-
conviction relief on February 12, 1990, and the petitioner filed a motion to reconsider thirty
days later on March 14, 1990. No. W1999-01981-CCA-R3-PC, 1999 WL 33261797, at
*1. A panel of this court held that the post-conviction court lost jurisdiction over the
petitioner’s case on February 12, 1990, the date the post-conviction court entered its order
denying post-conviction relief. Id. at *5-6. The panel based its holding on Tennessee Code
Annotated section 40-30-116, which provides that “[t]he order granting or denying relief
[in a post-conviction proceeding] shall be deemed a final judgment and an appeal may be
taken to the court of criminal appeals in the manner prescribed by the Tennessee Rules of
Appellate Procedure.”5 (Emphasis added.)
Based on Tennessee Code Annotated section 40-30-116 and this court’s holding in
Michael Joe Boyd, the State urges this court to hold that the post-conviction court lost
jurisdiction in the instant case on September 24, 2018, the day the post-conviction court
entered its first order denying relief, and, therefore, that “[e]verything after [that date] was
a nullity.” However, in our view, the State and the panel in Michael Joe Boyd misconstrued
the meaning of “final judgment” in the statute.
Rule 3(b) of the Tennessee Rules of Appellate Procedure provides that a criminal
defendant may appeal to this court following “a final judgment in a . . . post-conviction
proceeding.” Rule 4(a) of the Tennessee Rules of Appellate Procedure instructs that “the
notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial
court within 30 days after the entry of the judgment appealed from; however, in all criminal
cases the ‘notice of appeal’ document is not jurisdictional and the filing of such document
5
The post-conviction petition in Michael Joe Boyd was filed in 1988 and, therefore, was governed
by the pre-1995 Post-Conviction Procedure Act. At that time, Tennessee Code Annotated section 40-30-
116 was codified at Tennessee Code Annotated section 40-30-122 (repealed 1995).
- 22 -
may be waived in the interest of justice.” Tennessee Rule of Appellate Procedure 4(c)
provides that in most instances, the only way a defendant can extend the trial court’s
jurisdiction is to file a timely motion for judgment of acquittal, suspended sentence,
withdrawal of guilty plea, new trial, or arrest of judgment.
“Most cases interpreting what is meant by the term ‘final judgment’ arise in the
context of a Rule 3 appeal. In Tennessee, a judgment is final ‘when it decides and disposes
of the whole merits of the case leaving nothing for the further judgment of the court.’”
Richardson v. Tennessee Brd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995) (quoting
Saunders v. Metropolitan Gov’t of Nashville & Davidson County, 383 S.W.2d 28, 31
(1964)) (internal citation omitted). As this court has explained, though,
As a general rule, a trial court’s judgment becomes final thirty days after its
entry unless a timely notice of appeal or a specified post-trial motion is filed.
Tenn. R. App. P. 4(a) and (c); State v. Moore, 814 S.W.2d 381, 382 (Tenn.
Crim. App.). The jurisdiction of the Court of Criminal Appeals attaches upon
the filing of the notice of appeal and, therefore, the trial court loses
jurisdiction. State v. Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991);
compare Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn. 1994).
Once the trial court loses jurisdiction, it generally has no power to amend its
judgment. Moore, 814 S.W.2d at 382. Indeed, it is well-settled that a
judgment beyond the jurisdiction of a court is void. Brown v. Brown, 198
Tenn. 600, 281 S.W.2d 492, 497 (1955).
State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996).
This court has repeatedly stated that a post-conviction court’s order granting or
denying relief does not become final until thirty days after it is entered. John Ivory v. State,
No. W2015-00636-CCA-R3-PC, 2015 WL 6873474, at *3 (Tenn. Crim. App. at Jackson,
Nov. 9, 2015) (order denying post-conviction relief entered on February 19, 2015, became
final on March 23, 2015); State v. Douglas Marshall Mathis, No. M2019-00279-CCA-R3-
CO, 2019 WL 6175111, at *4 (Tenn. Crim. App. at Nashville, Nov. 20, 2019) (citing Tenn.
Code Ann. § 40-30-116 and Tenn. R. App. P. 4(a), (c) and holding that post-conviction
court’s order became final thirty days after it was entered), perm. app. denied, (Tenn. Mar.
26, 2020); Tony Sheffa v. State, No. W2007-01443-CCA-R3-PC, 2008 WL 2687704, at
*3 (Tenn. Crim. App. at Jackson, July 2, 2008) (post-conviction court’s judgment became
final thirty days after order dismissing petition was filed); Joseph Matthew Maka v. State,
No. W2003-01209-CCA-R3-PC, 2004 WL 2290493, at *2 (Tenn. Crim. App. at Jackson,
Oct. 11, 2004) (citing Tenn. Code Ann. § 40-30-116 and stating, “The conclusion,
therefore, is inescapable that the post-conviction court in this case lost jurisdiction over the
proceeding 30 days after it entered the order granting post-conviction relief.”). Moreover,
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Tennessee Code Annotated section 40-30-117 specifically provides that a petitioner may
file a motion to reopen a post-conviction petition under certain circumstances.
Here, the post-conviction court entered its first order denying post-conviction relief
on September 24, 2018. The Petitioner did not file a notice of appeal or a specified post-
trial motion within thirty days. Instead, he filed a “motion to reconsider” on October 11,
2018, which the post-conviction court treated as a motion to reopen. Neither a motion to
reconsider nor a motion to reopen is one of the specified motions in Tennessee Rule of
Appellate Procedure 4(c). Accordingly, the post-conviction court maintained jurisdiction
over the case for thirty days after entry of its first order denying post-conviction relief, and
the court had not lost jurisdiction when the Petitioner filed his motion on October 11.
Likewise, the post-conviction court had not lost jurisdiction when the court granted the
Petitioner’s motion four days later and vacated its first order denying relief. The post-
conviction court filed its second order denying relief on May 21, 2019, and the Petitioner
filed his notice of appeal less than thirty days later on June 17, 2019. Thus, the Petitioner’s
notice of appeal was not untimely.
B. Ineffective Assistance of Counsel
The Petitioner claims that the post-conviction court erred by denying his petition for
post-conviction relief. To be successful in a claim for post-conviction relief, a petitioner
must prove the factual allegations contained in the post-conviction petition by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing
evidence means evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905,
911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and value to be
accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against those
findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions
of law purely de novo. Id.When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
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deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish deficient performance, the petitioner must show that counsel’s performance was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,
[b]ecause a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
1. Motion to Continue
The Petitioner claims that he received the ineffective assistance of counsel because
trial counsel failed to file a motion for a continuance “the moment it [became] clear” that
trial counsel was not prepared for trial. The Petitioner contends that if trial counsel had
filed the motion earlier, rather than the day before trial, trial counsel could have
investigated why the audio recording of the Petitioner’s confession was incomplete and
would have learned that the police had assaulted him during his interrogation. In support
of his claim, the Petitioner asserts that his medical records and booking photograph
“clearly” show that his left eye was swollen.
During the initial evidentiary hearing, trial counsel testified that the Petitioner never
told him before or during the suppression hearing that the police had beaten the Petitioner
at the Police Service Center. Moreover, the evidence established that trial counsel received
the Petitioner’s audio-recorded confession more than two months before trial. In any event,
the post-conviction court found that the Petitioner’s testimony about being beaten was not
credible and that his medical form and photographs did not “confirm” any injuries. We
have reviewed the medical form and the photographs. Although most of the handwriting
on the medical form was indecipherable and the Petitioner denied writing on the form, the
following was written neatly on the right side of the document: “Eval inmate & altercation
believe[d] to be from CPD! Right wrist to hand discomfort. Swelling to left eye!” The
photographs taken by Officer Burnett after the Petitioner’s interrogation, though, did not
show any injuries. While the Petitioner’s booking photograph showed a dark area below
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his left eye, his eye was not bruised or swollen. Therefore, we conclude that the post-
conviction court did not err by denying relief on this issue.
The Petitioner also contends that trial counsel’s filing a “timely” motion for a
continuance would have allowed trial counsel to investigate Investigator Wenger’s claim
that the Petitioner’s cellular telephone records put the Petitioner at the scene of the crimes.
The Petitioner asserts that had trial counsel reviewed the records, trial counsel would have
discovered that the records were “simply incompatible” with the State’s theory of the case.
We have reviewed the trial transcript. Mr. Westfield testified that he had “no idea”
what time he and the victim heard the knock on the victim’s door but estimated that they
heard the knock “[m]aybe 11:30 or so.” Investigator Wenger testified that the crimes
occurred “just before” or “just after” midnight and acknowledged that the police
department received three 911 calls at 12:03 a.m. from witnesses who heard gunshots.
Therefore, the evidence does not preponderate against the post-conviction court’s finding
that the crimes more likely occurred closer to 12:03 a.m. than 11:30 p.m. The evidence at
the second evidentiary hearing established that the Petitioner’s cellular telephone was just
one and one-half miles from the crime scene at 12:08 a.m., and Mr. Hamilton testified that
the location of the Petitioner’s telephone at 12:08 a.m. was consistent with someone leaving
the British Woods Apartments. Accordingly, we agree with the post-conviction court’s
conclusion that trial counsel’s failure to review the records did not change the outcome of
trial.
The Petitioner claims that additional time afforded by a timely motion to continue
also would have allowed trial counsel to inquire into the Petitioner’s mental health at the
time of his interrogation so that trial counsel could have challenged whether the confession
was knowing and voluntary. In support of his argument, the Petitioner notes that in the
motion to reopen the suppression hearing proof and continue the trial, trial counsel stated
that he was unable to present mental health information at the suppression hearing and
requested a mental evaluation for the Petitioner to determine whether the Petitioner’s
confession was the result of police coercion. However, although the Petitioner’s mother
testified at the post-conviction hearing that the Petitioner suffered from “several
diagnoses,” the Petitioner did not present any evidence regarding his mental health at the
evidentiary hearing. Furthermore, although the Petitioner claimed at the evidentiary
hearing that he confessed to the crimes because he was tired of being handcuffed to the
bench, tired of being beaten, and wanted to go home, he did not make that claim at the
suppression hearing. Instead, he testified at the suppression hearing that the trial court
should suppress his statement because he did not receive Miranda warnings prior to his
interrogation, because he did not sign the waiver of rights form, and because he asked for
an attorney “right off the bat.” Therefore, the Petitioner is not entitled to relief on this
issue.
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2. Black Facial Wrap
The Petitioner claims that he received the ineffective assistance of counsel because
trial counsel failed to call witnesses to testify that the Petitioner regularly wore a black
facial wrap to mow grass at the church. He contends that he was prejudiced by trial
counsel’s failure to present the testimony because the State’s theory was that he used the
black facial wrap and a blue mask to cover his face during the crimes; therefore, the
testimony would have explained why his DNA was on the wrap and why the wrap was in
Ms. Angel’s car. We note that the church pastor did not testify at the evidentiary hearing.
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (providing that this court
may not speculate as to the content of a witness’s testimony). Ms. Thompson testified at
the hearing that the Petitioner regularly wore the wrap to mow grass, and trial counsel
stated that Ms. Thompson could have testified to that fact at trial. The post-conviction
court found, though, that the Petitioner was not prejudiced by trial counsel’s failure to
present her testimony because a codefendant could have been wearing the black facial wrap
with the blue bandana at the time of the crimes. We agree with the post-conviction court.
Mr. Westfield testified at trial that one of his assailants was wearing a half-mask; that he
saw two colors, black and teal blue; and that the blue color was either on the assailant’s
“doo rag” or on the assailant’s mask. A teal blue bandana was found with the black facial
wrap in Ms. Angel’s car. The Appellant told law enforcement that he waited in the car
during the attempted robbery. Therefore, the Petitioner has failed to demonstrate that he
was prejudiced by trial counsel’s not presenting Ms. Thompson’s testimony at trial.
3. Alibi Witnesses
The Petitioner claims that he received the ineffective assistance of counsel because
trial counsel failed to present testimony from Mr. Hudson and Mr. Buckley to establish an
alibi for the Petitioner. Trial counsel testified that the Petitioner never told him about Mr.
Hudson, and the post-conviction court found the Petitioner’s alibi evidence not credible,
stating that “[the Petitioner’s] present alibi seems to be an attempt to be consistent with the
phone records.” Additionally, as we have already discussed, the Petitioner’s cellular
telephone records did not establish that the Petitioner was not at the crime scene.
Therefore, the Petitioner also has failed to demonstrate that trial counsel was ineffective
for not presenting testimony from Mr. Hudson and Mr. Buckley at trial.
4. Firearm, Ammunition, and Bulletproof Vest
The Petitioner claims that he received the ineffective assistance of counsel because
trial counsel failed to file a motion in limine to prevent the jury from hearing about a
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firearm, ammunition, and a bulletproof vest that were found in Ms. Angel’s home. We
disagree with the Petitioner.
According to the trial transcript, Officer Burnett testified that he searched Ms.
Angel’s Fort Oglethorpe home and photographed and collected a bulletproof vest, a pistol,
and two pistol magazines. The State introduced the photographs of the items into evidence
without objection. The State then moved to introduce the vest into evidence, but trial
counsel objected, arguing that the items were irrelevant because the State could not “link”
them to the Petitioner. Trial counsel also requested that the trial court exclude the
photographs. The State asserted that the items were relevant to show the police conducted
a complete investigation, which trial counsel had attacked in his opening statement. The
trial court allowed the photographs to remain in evidence because trial counsel had failed
to object to them. Regarding the bulletproof vest, the trial court allowed the State to
introduce the vest for identification purposes only and instructed the jurors that they could
not consider the vest as evidence.
The State asserts that trial counsel was not deficient because he objected and was
“successful.” However, trial counsel’s objection to the evidence was too late to prevent
the jury from hearing about the items and was too late to prevent the photographs of the
items from being introduced into evidence. Therefore, we agree with the Petitioner that
trial counsel was deficient. In any event, the State did not allege that the vest was related
to the crimes, and the State did not attempt to introduce the pistol and magazines into
evidence. Moreover, co-counsel reminded the jury during closing arguments that none of
the items taken from Ms. Angel’s apartment were connected to the Petitioner. Finally,
given the Petitioner’s confession and details about the crimes, we agree with the post-
conviction court that he has failed to demonstrate prejudice. Accordingly, the Petitioner is
not entitled to relief on this issue.
5. Suppression Hearing Transcript
Next, the Petitioner claims that he received the ineffective assistance of counsel
because appellate counsel failed to provide this court with the suppression hearing
transcript on direct appeal of his convictions, which resulted in this court’s presuming that
the trial court’s findings on the evidence presented at the hearing were correct. We agree
with the Petitioner that appellate counsel’s failure to prepare an adequate record on appeal
constituted deficient performance. See Rickey Lee Beamon v. State, No. E2008-01138-
CCA-R3-PC, 2009 WL 2922841, at *12 (Tenn. Crim. App. at Knoxville, Sept. 14, 2009);
see also Tenn. R. App. P. 24(b) (providing that it is the appellant’s duty to prepare a record
which conveys “a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal”). As to prejudice, the Petitioner claims that
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because this court presumed the trial court’s findings were correct, this court was unable
to consider whether Investigator Wenger deliberately destroyed the evidence.
The Petitioner contended on direct appeal that he was entitled to relief under State
v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), due to the State’s failure to preserve his entire
recorded confession. Unjolee Tremone Moore, No. E2015-00942-CCA-R3-CD, 2016 WL
5210866, at *11. Although this court found that the trial court’s findings on the evidence
were entitled to a presumption of correctness, this court proceeded to consider whether the
Petitioner demonstrated any error. Id. at *12. As this court noted in its opinion, the trial
court summarized the proof presented at the suppression hearing in the trial court’s order
denying the motion to suppress. Id. at *1. According to that summary, Investigator
Wenger testified that the batteries failed in his tape recorder and that he replaced the
batteries but that the device could no longer record when the memory became full. Id.Based on that proof, this court concluded that the Petitioner was not entitled to relief,
explaining, “Although there was some evidence that the malfunction was the result of
negligence, Ferguson concerns evidence which existed at one point and was subsequently
lost or destroyed. In this case, the evidence was simply never in existence.” Id. We have
reviewed the suppression hearing transcript, and it comports with the summary of
Investigator Wenger’s testimony in the trial court’s order denying the motion to suppress.
Nothing in the transcript indicates that Investigator Wenger deliberately destroyed parts of
the Petitioner’s audio-recorded confession. Therefore, this court correctly determined that
the Petitioner was not entitled to relief under Ferguson, and we agree with the post-
conviction court that the Petitioner has failed to demonstrate that he was prejudiced by
appellate counsel’s deficient performance.
6. Juror Issue
Finally, the Petitioner contends that he received the ineffective assistance of counsel
because appellate counsel failed to raise on direct appeal that the trial court should have
declared a mistrial due to a juror discussing facts outside the case with other jurors. We
disagree with the Petitioner.
The trial transcript reflects that before the State’s opening statement, an officer of
the court advised the trial court in a bench conference that one of the jurors had told the
officer that the juror knew the victim’s sister. The post-conviction court sent the jury out
of the courtroom and had the officer state the issue on the record. The officer said, “Juror
No. 70. . . . [She] advised me that she knew the victim’s sister. . . . [T]he lady sitting in the
audience.” Both the State and trial counsel expressed concern about juror number 70
serving on the jury, so the trial court questioned the juror out of the presence of the other
jurors. Juror number 70 stated that she thought she used to work with the victim’s sister
and that she did not see the victim’s sister in the courtroom earlier. The trial court
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dismissed juror number 70 as an alternate, and the State proceeded with its opening
statement.
The Petitioner contends that the trial court should have inquired as to whether juror
number 70 talked with other jurors about her relationship with the victim’s family and that
appellate counsel should have raised the issue on appeal. We agree that the better practice
would have been for the trial court to question juror number 70 about whether she had
discussed the victim’s family with other jurors. Regardless, appellate counsel did not
testify at the evidentiary hearing, and the Petitioner did not present any proof as to why
appellate counsel did not raise the issue. Moreover, the post-conviction court found that
there was no proof in the post-conviction record that juror number 70 talked with any other
jurors. We agree with the post-conviction court and conclude that the Petitioner is not
entitled to relief.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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