Marico Vales v. State of Tennessee ( 2022 )

09/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 19, 2022
MARICO VALES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 16-01967 J. Robert Carter, Jr., Judge
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No. W2021-01076-CCA-R3-PC
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A Shelby County jury convicted the Petitioner, Marico Vales, of first degree felony murder
and especially aggravated robbery. The Petitioner appealed, and this court affirmed the
convictions and sentence. See State v. Marico Vales, No. W2018-00424-CCA-R3-CD,
2019 WL 328436 at *1, (Tenn. Crim. App., at Jackson, Jan. 23, 2019), perm. app. denied
(Tenn. May 20, 2019). The Petitioner then filed a post-conviction petition, claiming he
received the ineffective assistance of counsel and, following a hearing, the post-conviction
court denied relief. On appeal, the Petitioner maintains that Counsel was ineffective
because he failed to object to inadmissible evidence and evidence admitted without the
proper foundation. After review, we affirm the post-conviction court’s judgement.
inser
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, J., joined. JOHN EVERETT WILLIAMS, P.J., not participating.1
Joshua N. Corman, Memphis, Tennessee, for the appellant, Marico Vales.
Herbert H. Slatery III, Attorney General and Reporter; Lindsay Haynes Sisco, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Neil Umsted, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
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The Honorable John Everett Williams died September 2, 2022, and did not participate in this
opinion. We acknowledge his faithful service to this Court.
The Petitioner was indicted, along with two co-defendants, Antonio Jones and
Christian Hall, for felony murder and especially aggravated robbery. At trial, the Petitioner
was convicted as charged and the trial court imposed an effective life sentence. The
Petitioner appealed his convictions, asserting that the evidence was insufficient. This court
summarized the facts presented at trial as follows:
The [Petitioner]’s convictions relate to the June 11, 2015 homicide of
Khaled Khaya, who was fatally shot when working at Zorro Market (the
market) in Shelby County. At the trial, Hasan Wadi testified that he owned
the market at the time of the incident, that he opened the market at 8:00 a.m.
on June 11, that he left at 8:30 p.m., and that the victim worked the remainder
of the evening shift. Mr. Wadi said that he and the victim were friends and
that the day of the shooting was the victim’s second day of work. Mr. Wadi
said that he called the market around 10:45 p.m., that the victim did not
answer, that he returned to the market, and that he saw police cars when he
arrived.
Mr. Wadi testified that he provided the police with a surveillance
recording that showed various angles from inside the market around the time
of the shooting, and a portion of the recording was played for the jury. In the
recording, at approximately 9:53 p.m., a male employee, whom Mr. Wadi
identified as the victim, stood behind the cash register at the front counter
assisting an African-American male customer, who wore a dark-colored shirt
and had arm tattoos. The customer was later identified as the [Petitioner].
The [Petitioner] purchased items and paid with cash. After the victim
provided the [Petitioner] with change, the victim retrieved and provided the
[Petitioner] with a small pad of paper on which the [Petitioner] wrote and
returned to the victim. The two men conversed, the victim made entries on
the cash register, and the [Petitioner] provided a card, which the victim
swiped on a machine beside the cash register. The men conversed again, and
the victim swiped the card again. The two men conversed a third time, and
the victim returned the card and provided the [Petitioner] with a small piece
of paper. At approximately 9:56 p.m., the [Petitioner] left the counter. The
victim and the [Petitioner] were separated by glass that contained a small
opening.
Mr. Wadi identified photographs of the market, described the general
layout, and noted “bullet proof glass” separated employees and customers at
the front counter. He identified photographs of the cash register and of the
machine used for debit, credit, and EBT food stamp transactions. A portion
of the surveillance recording that showed only the victim behind the counter
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was played for the jury. In the recording, the victim, at approximately 9:59
p.m., left the front counter and entered a door, which Mr. Wadi said led to
the “pizza section” at which employees prepared pizzas after a customer
ordered and paid. A glass window beside the door allowed for slight
visibility into the pizza preparation area. At 10:02 p.m., the victim returned
to the front counter and removed what Mr. Wadi described as latex gloves.
Mr. Wadi said that the gloves were worn when preparing pizzas. He said
that the pizza order depicted in the recording was paid for with an EBT card.
Mr. Wadi stated that EBT cards were used regularly at the market, that each
card was associated with an identification number, and that he provided the
police with the number associated with the last EBT transaction for a pizza
purchase.
Mr. Wadi testified that when preparing the pizza, the victim would
have placed toppings on a frozen pizza crust and inserted the pizza into an
oven that moved the pizza on a conveyer belt. He said that after about five
minutes, the pizza came out of the oven baked fully and that it was impossible
to burn a pizza using this procedure and oven.
A portion of the surveillance recording that showed the victim and
customers at the front counter was played for the jury. In the recording, at
approximately 10:24 p.m., the victim assisted two African-American men.
The [Petitioner] and a man wearing a light-colored shirt stood at the front
counter. The victim left the front counter away from the camera’s view but
returned with what appeared to be scratch-off lottery tickets and handed them
to the [Petitioner]. At approximately 10:26 p.m., the man wearing the light-
colored shirt appeared to be talking on a cell phone. The men bought several
additional items and paid with a plastic card, which the victim swiped on the
machine beside the cash register. The victim placed the items into a bag and
provided the man wearing the light-colored shirt with a receipt at 10:27 p.m.
The men left the front counter.
In the recording, the victim assisted various customers and
periodically walked away from the camera’s view in the direction of the pizza
preparation area and lottery ticket dispenser. At approximately 10:31 p.m.,
the [Petitioner] returned to the front counter and provided the victim with
scratch-off lottery tickets. The victim and the [Petitioner] walked out of the
camera’s view and toward the pizza preparation area and the lottery ticket
dispenser. The [Petitioner] and the victim returned to the front counter, and
the victim provided the [Petitioner] with scratch-off lottery tickets. At
approximately 10:32 p.m., the [Petitioner] left the counter. The victim
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assisted other customers, and at approximately 10:34 p.m., the [Petitioner]
returned to the front counter with scratch-off lottery tickets. The [Petitioner]
provided the victim with the tickets, and both the [Petitioner] and the victim
walked away from the camera’s view toward the pizza preparation area and
the lottery ticket dispenser. The [Petitioner] and the victim returned to the
front counter, the victim provided the [Petitioner] with scratch-off lottery
tickets, and the [Petitioner] scratched the tickets at the counter. The
[Petitioner] provided the tickets to the victim, who walked away from the
camera’s view, and the victim provided the [Petitioner] with additional
tickets when the victim returned. The [Petitioner] scratched the tickets at the
counter. At approximately 10:38 p.m., the [Petitioner] walked out of the
camera’s view toward the pizza preparation area, and a shadow moved in the
opposite direction across the camera's view a couple of seconds later.
At approximately 10:40 p.m., an African-American man wearing an
orange hat, who was later identified as Antonio Jones, appeared momentarily
at the front counter and walked away from the camera’s view. Mr. Jones
returned to the counter, jumped on the counter, leaned through the opening
in the bullet-resistant glass, and reached toward the cash register. Mr. Jones
jumped off the counter into the employee area, fidgeted with the cash
register, which did not open, and moved out of the camera’s view. At 10:41
p.m., an African-American man, who was later identified as Christian Hall
and wore a dark shirt and a light-colored cloth around his neck, approached
the front counter. Mr. Jones returned to the cash register, fidgeted with the
cash register, jumped across the counter toward the exit, and both men moved
out of the camera’s view.
A portion of the surveillance recording that showed the victim behind
the front counter was played for the jury. In the recording, at approximately
10:23 p.m., the man wearing the light-colored shirt briefly walked to the
pizza preparation area, while the victim remained at the front counter. The
victim returned to the pizza preparation area, and the [Petitioner] walked to
the pizza preparation area. The [Petitioner] walked toward the front counter,
and at 10:24 p.m., the victim returned to the front counter. Multiple times
the victim retrieved scratch-off lottery tickets and returned to the front
counter. At 10:38 p.m., the victim returned to the pizza preparation area, and
the [Petitioner] stood in the pizza preparation area across from the victim.
The [Petitioner] walked away from the pizza preparation area and out of the
camera’s view seconds later. At 10:40 p.m., Mr. Hall approached the pizza
preparation area, extended his arm toward the victim, and entered the
preparation area. Mr. Jones jumped on the front counter and entered the
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employee area, took money from the cash register located near the lottery
ticket dispenser, and jumped across the counter and away from the camera’s
view.
Mr. Wadi identified a photograph of the pizza station, which was
received as an exhibit. The photograph depicted the pizza oven and showed
that no bullet-resistant glass separated an employee from a customer. Mr.
Wadi said that the market usually stopped serving pizza around 9:00 or 9:30
p.m. but that an employee would prepare a pizza for a customer known to the
employee after this time. He said that the store closed at 11:00 p.m.
A portion of the surveillance recording that showed the employee area
from an area closer to the lottery ticket dispenser was played for the jury. In
the recording, the victim walked away from the camera’s view toward the
pizza preparation area. At approximately 10:38 p.m., the [Petitioner] walked
from the front counter toward the pizza preparation area and away from the
camera’s view. Seconds later, the [Petitioner] walked away from the pizza
preparation area, past the front counter, and out of the camera’s view. At
10:40 p.m., Mr. Hall and Mr. Jones walked toward the pizza preparation area
and away from the camera’s view. Mr. Jones ran toward the front counter,
jumped on the counter, and attempted to open the cash register located to the
right of the opening in the bullet-resistant glass. Mr. Jones walked to the
second cash register, removed the money, walked to and fidgeted with the
first cash register, and jumped across the counter toward the exit.
Mr. Wadi testified that approximately $ 8,000 was taken from the
store.
On cross-examination, Mr. Wadi testified that it took approximately
five to six minutes to bake a pizza and that the conveyor belt speed and the
temperature could not be adjusted. After examining the summary transaction
printout, he clarified that the receipt was a summary of the day’s credit card
transactions, that the receipt did not reflect any EBT transactions, and that a
different machine was used for EBT transactions. He clarified that he did
not call the market on the night of the incident but that he called the victim’s
cell phone between 10:45 and 11:00 p.m. Mr. Wadi said that he did not
usually call the market after he left but that he wanted to check on the victim,
who was a new employee. Mr. Wadi said that he intended to return to the
store to assist the victim at closing and that he called the victim on his way
to the market.
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Mr. Wadi testified that the surveillance recording did not reflect a
busy evening at the market. He said that the victim’s wearing latex gloves
in the recording indicated the victim was preparing a pizza. Mr. Wadi said
that he did not perform an audit to determine the amount of money taken and
that $ 8,000 was an estimate. He said that three cash registers were inside
the market, that one was used for lottery purchases, that another was used for
check cashing and money orders, and that the third was used for all credit
card, EBT, and non-lottery cash purchases. Mr. Wadi said that the money
was taken from the register used for cashing checks and contained the most
money.
Mr. Wadi testified that the victim had previous experience working at
a convenience store and making pizzas, that the victim knew not to send a
pizza through the oven more than once, and that sending a pizza through the
oven twice would burn it. He said surveillance cameras were outside the
market but that the cameras belonged to the owner of the shopping center in
which the market was located.
Tom Pae testified that he managed the shopping center. He said that
he provided sheriff’s deputies with recordings of the parking lots. Mr. Pae
identified the recording of the front parking lot, a portion of which was
played for the jury.
In the recording, at approximately 9:46 p.m., a dark-colored car drove
into the parking lot and parked partially within view of the camera. The car
parked in such a manner that only the passenger-side door and rear of the car
were visible. The driver’s side was not visible. At approximately 9:52 p.m.,
the [Petitioner] walked from the building toward the dark-colored car, around
the rear of the car, and out of the camera’s view. Seconds later, the dark-
colored car moved slightly, as though someone sat inside the car, before
leaving the parking lot.
Mr. Pae identified the recording of the rear parking lot, a portion of
which was played for the jury. However, the record does not reflect which
portion of the recording was played. Mr. Pae testified that the recording
showed two people behind a dumpster walking toward the market. Mr. Pae
stated that the recording dates and times were correct.
Corsenna Newbern testified that the [Petitioner], whom she referred
to as Rico, was the father of her two children and that on June 11, 2015, he
drove her home from work. She said that the [Petitioner] did not stay at
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home, that he drove to the market to a buy pizza, and that he bought pizza at
the market frequently. She recalled that she and the [Petitioner] bought pizza
at the market two or three times per week. She said that she and the
[Petitioner] paid for the pizzas with her EBT food stamp card and that, at
about 9:00 p.m., she gave the [Petitioner] her EBT card to purchase the pizza.
She said that he returned home around midnight or 1:00 a.m. without a pizza
but that he had cheeseburgers and fries from Wendy’s for the children.
Ms. Newbern testified that Mr. Jones, whom she referred to as
Montana, and the [Petitioner] were friends. She said that Mr. Jones lived in
the same neighborhood as she and the [Petitioner] and that the [Petitioner]
and Mr. Jones borrowed each other’s cars and “hung out” daily. She said
that Brandon Thompson, who was Mr. Jones’s brother, and the [Petitioner]
were friends. She recalled that the [Petitioner] drove her green Honda on the
night of the incident. She said that she learned later that the [Petitioner] had
been at the market where someone had been shot. She said that although the
[Petitioner] told her the pizza had been burned, the market had never burned
a pizza previously.
Ms. Newbern was shown a portion of the surveillance camera from
inside the market. The customer who wore the dark-colored shirt and had
arm tattoos was depicted in the recording. Ms. Newbern identified the man
as the [Petitioner] based upon the tattoos.
Ms. Newbern identified a photograph of the [Petitioner] and Mr. Jones
and testified that she did not know when the photograph was taken. She
identified a photograph of Mr. Jones, Mr. Thompson, Mr. Jones’s young son,
and a man unknown to Ms. Newbern. She identified a third photograph of
Mr. Jones, Mr. Thompson, Mr. Jones’s young son, and the unknown man and
stated that although the photograph was taken at Chuck E. Cheese’s, she had
never attended a party there with the people in the photograph. Ms. Newbern
said that Mr. Jones and Mr. Thompson attended her son’s birthday party a
couple of days after the June 11 incident. She identified a photograph of Ms.
Newbern and the [Petitioner]’s green Honda and of the [Petitioner]’s silver
car and said the photograph was taken at the [Petitioner]’s mother’s home.
She stated that the [Petitioner] drove the green Honda on the night of the
incident and changed his cell phone number after the incident.
On cross-examination, Ms. Newbern testified that the Honda was
titled in her name and that she paid for it. She said that, at the time of the
incident, she lived with the [Petitioner]’s mother and that the [Petitioner]
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“stay[ed] ... on and off” at his mother’s home. Ms. Newbern did not know
when the photograph of the [Petitioner] and Mr. Jones at the [Petitioner]’s
mother’s home was taken. She said that the [Petitioner] did not return home
with extra money on the night of the incident. She denied that she saw the
[Petitioner] with any money in the days and weeks after the incident and said
that the [Petitioner] made no expensive purchases.
United States Department of Agriculture Agent Lynn Bracey testified
that around June 18, 2015, Shelby County Sheriff’s Detective Steve
Bierbrodt contacted him regarding the identity of the owner of an EBT debit
card. Agent Bracey stated that the card used for a June 11, 2015 transaction
in the amount of $ 12.66 belonged to Ms. Newbern.
On cross-examination, Agent Bracey testified that EBT transactions
were time stamped and that the “Alert System” contained EBT transaction
data, including information related to each store that accepted EBT cards as
a form of payment, each card number, and the amount of each purchase. He
said that the contract between the State of Tennessee and the third party
processor required the time stamp data to be accurate. Agent Bracey
reviewed the total transaction summary receipt from the market previously
identified by Mr. Wadi and testified that the receipt did not reflect any
specific EBT transaction.
Julius Miller testified that he went to the market on June 11, 2015,
although he could not recall the time. He said that he did not see anyone
inside the market when he approached the front counter to pay for a beverage
and that he returned the beverage, left the store, and called the police because
“something didn’t feel right.” He said that a “young guy” arrived at the
market, that they entered the store, and that they saw the victim was deceased.
Mr. Miller said that he saw blood and ran out of the store and that he called
the police and waited for them to arrive.
Mr. Miller did not recall seeing a green Honda in the parking lot and
testified that nobody drove through the parking lot when he and the man
waited for the police to arrive. He said that he did not see the [Petitioner] at
the market and that he did not smell a burned pizza while inside the market.
Shelby County Sheriff’s Deputy Richard McKinney testified that
dispatch received a call regarding this incident, that he responded to the
scene, and that he saw the victim lying on the floor between a food
8
preparation table and a freezer. He secured the scene and contacted a
detective.
Shelby County Sheriff’s Detective Steve Bierbrodt testified that he
responded to the scene and that he reviewed the surveillance recordings. He
identified photographs depicting three cartridge casings, a bullet hole on a
wall sign, a trajectory rod going through the bullet hole on the sign and wall,
the victim lying on the floor between the “pizza area” and the freezer, an
open cash register containing only coins, and footprints inside and outside
the market. Detective Bierbrodt identified a photograph of a pizza order form
reflecting the name Rico. Detective Bierbrodt stated that the sign and
drywall were removed in order to obtain the bullet projectile.
Detective Bierbrodt testified that he reviewed the surveillance
recording from inside the market, that he observed a person returning to the
front counter multiple times, and that the person ordered a pizza and paid for
the order with what the detective believed was a debit card. He said that he
showed the recording to Mr. Wadi, that Mr. Wadi identified the EBT
machine as the machine used to pay for the pizza, and that the detective
obtained the card information from the Department of Agriculture.
Detective Bierbrodt testified that on June 18, 2015, he spoke with Ms.
Newbern, who stated that she sent the [Petitioner] to the market to purchase
a pizza on the night of the incident. Detective Bierbrodt stated that he
interviewed the [Petitioner], who initially said that he and Mr. Thompson
went to the market to order a pizza but that he did not “get the pizza” because
it had been burned. Detective Bierbrodt said that, upon further questioning,
the [Petitioner] stated that as he left the parking lot, he saw Mr. Hall and Mr.
Jones. The recording of the interview was played for the jury.
In the recording, the detectives stated that the [Petitioner] requested
to speak with them and asked the [Petitioner] what occurred. The [Petitioner]
thought that Mr. Jones and Mr. Jones’s stepbrother, whom the [Petitioner]
later identified as Mr. Hall, “did this.” The [Petitioner] denied seeing Mr.
Hall since the [Petitioner] saw him “run out of the store that night” but
admitted seeing Mr. Jones. The [Petitioner] denied that Mr. Jones spoke
about the robbery or shooting. The [Petitioner] admitted talking on the
telephone since the [Petitioner]’s arrest about “what was going on.” The
detective said the surveillance recording showed that the [Petitioner]
“paused” when he “backed out” of the parking lot and asked the [Petitioner]
who he saw. The [Petitioner] said that he saw Mr. Jones and Mr. Hall, who
9
he referred to as “Champ.” The [Petitioner] denied knowing about the
robbery and shooting and said he was at the market to purchase a pizza. He
denied being a “lookout.” The [Petitioner] said that Mr. Jones lived within
walking distance of the market.
In the recording, the detective drew a map of the market and the
surrounding area. The detective indicated that the [Petitioner]’s car was
parked along the right side of the building when leaving the market and stated
that two men ran out of the building, around the right of the building, and
behind the building. The [Petitioner] identified on the map the nearby
apartment complex at which Mr. Jones lived. The [Petitioner] said that
“they” did not need a car but that Mr. Hall drove a dark blue Lexus. The
[Petitioner] said that he saw Mr. Jones and Mr. Hall when they entered and
left the market. The [Petitioner] denied staying in the parking lot to find out
what they were doing and said he was going to look for marijuana because
the victim told him the pizza would be ready in approximately fifteen
minutes.
In the recording, the [Petitioner] stated that Mr. Jones wore an orange
hat at the time of the incident and that Mr. Jones did not talk to him about the
robbery. The [Petitioner] said that he saw Mr. Jones once after the robbery,
that Mr. Jones said he had $ 1,000 for an apartment, and that the [Petitioner]
never saw any money. The [Petitioner] said that before his arrest, he had a
Cricket Cellular phone and a Trac phone. The [Petitioner] identified a
photograph of Mr. Hall and stated that any guns would have been at Mr.
Hall’s home. When asked if he saw Mr. Jones and Mr. Hall carrying
anything when they ran out of the market, the [Petitioner] said he saw “a little
bag” but could not determine what was inside.
In the recording, the [Petitioner] implicated Mr. Jones in two
additional robbery-related homicides. Although the [Petitioner] thought Mr.
Jones was the shooter in the present case, the detective said the surveillance
recording showed that Mr. Hall shot the victim. The detective prepared a
photograph lineup and presented it to the [Petitioner]. The [Petitioner]
identified one person whom the [Petitioner] saw enter and leave the market
at the time of the incident. As the detective prepared a second photograph
lineup, another detective asked the [Petitioner] what happened on the night
of the shooting. The detective told the [Petitioner] that the deputies would
help the [Petitioner] as long as the [Petitioner] was honest. The detective
stated Mr. Jones told the deputies that Mr. Jones and the [Petitioner] “were
together that night,” and the [Petitioner] denied the allegation and said he did
10
not have a phone to communicate with Mr. Jones. When asked how Mr.
Jones and Mr. Hall came to be at the market at the same time as the
[Petitioner], the [Petitioner] said that “they had to have been waiting.” The
[Petitioner] stated that he and Mr. Thompson were in the [Petitioner]’s car
on the night of the incident.
Detective Bierbrodt testified that he obtained a search warrant for the
[Petitioner]’s cell phone and that the photograph lineups referenced in the
recording included photographs of Mr. Hall and Mr. Jones. Detective
Bierbrodt said that the [Petitioner] identified Mr. Jones in one lineup and Mr.
Hall in another. Detective Bierbrodt stated that he interviewed Mr. Hall, Mr.
Thompson, and Mr. Jones, whom the detective said were all brothers and the
[Petitioner]’s friends. Detective Bierbrodt stated that Mr. Thompson and Mr.
Jones each consented to a search of their respective cell phones. Detective
Bierbrodt stated that Mr. Hall broke his cell phone when he was taken into
police custody, preventing a search of the phone.
Detective Bierbrodt identified Mr. Thompson in the surveillance
recording depicting the front parking lot of the market and stated that Mr.
Thompson appeared to be talking on a cell phone and getting out of a vehicle.
Detective Bierbrodt reviewed the photograph previously identified by Ms.
Newbern as depicting Mr. Jones, Mr. Jones’ young son, Mr. Thompson, and
a man unknown to Ms. Newbern. Detective Bierbrodt stated that the
photograph depicted Mr. Jones, Mr. Thompson, and Mr. Hall and that it had
been taken between March and May 2015. Detective Bierbrodt reviewed the
photograph taken at Chuck E. Cheese’s and stated that it showed Mr.
Thompson, Mr. Jones, and Mr. Hall. Detective Bierbrodt reviewed the
photographs showing Ms. Newbern’s green Honda and the [Petitioner] and
Mr. Jones standing on a driveway. Detective Bierbrodt stated that all of the
photographs were obtained from Mr. Jones’s cell phone. Detective Bierbrodt
identified a photograph of what he described as a “large sum[ ] of money in
small denominations” and stated that the photograph was obtained from Mr.
Jones’s phone and was taken after the robbery.
On cross-examination, Detective Bierbrodt testified that the time
reflected on the surveillance recording from inside the market was a few
minutes fast and that he noted the discrepancy in his supplemental police
report. He stated that he did not know the exact time the EBT card was used.
Detective Bierbrodt testified that the [Petitioner] was cooperative and
calm, that he did not implicate himself in the robbery, and that he did not
11
state he knew where the firearm and money could have been located.
Detective Bierbrodt said that nobody he interviewed stated the [Petitioner]
had a role in the robbery and shooting. Detective Bierbrodt agreed that the
surveillance recording of the front parking lot showed Mr. Thompson getting
out of the passenger side of the green Honda and that Mr. Thompson told the
detective what the [Petitioner] said about the pizza and why the men were at
the market. Detective Bierbrodt agreed that Mr. Thompson reported seeing
Mr. Hall and Mr. Jones running inside the market and that Mr. Thompson,
Mr. Hall, and Mr. Jones were brothers. Detective Bierbrodt did not recall
whether Mr. Thompson was inside the market. Detective Bierbrodt said that
neither the proceeds nor the firearm from the robbery were found inside Ms.
Newbern’s green Honda but that fingerprints were found inside the car,
although he was unsure to whom the fingerprints belonged.
Detective Bierbrodt testified that he saw a pizza being prepared and
that it could have been the pizza the [Petitioner] ordered. Detective Bierbrodt
said that he did not find a burned pizza at the scene, although the [Petitioner]
said the victim had reported to the [Petitioner] that the pizza had been burned.
Detective Bierbrodt said the surveillance recording showed that the victim
only made one pizza from the time the [Petitioner] placed the order until the
shooting. Detective Bierbrodt said that he did not interview the bystanders
who called the police but that they were interviewed by a detective.
Detective Bierbrodt said that he did not ask anyone what role the [Petitioner]
played in the incident.
Shelby County Sheriff’s Detective Richard Whitaker testified that he
analyzed the [Petitioner]’s cell phone. The telephone call log showed that
the phone was not used to place calls and did not receive calls between June
9, 2015, and July 14, 2015, and that the most frequent telephone number
called from the [Petitioner]’s phone was the number Detective Bierbrodt
identified as belonging to Mr. Jones and that the second most frequent
contact was labeled “Baby Momma.”
On cross-examination, Detective Whitaker testified that the
[Petitioner]’s cell phone did not reflect any calls on June 11, 2015, and that
the [Petitioner]’s phone was used to call Mr. Jones’s cell phone nine times
between June 7 and June 9. On redirect examination, Detective Whitaker
stated that he did not attempt to retrieve deleted calls and text messages from
the [Petitioner]’s phone. Detective Whitaker said that the gap in calls could
have been the result of the [Petitioner]’s placing no calls or the result of the
[Petitioner]’s erasing the calls. Detective Whitaker stated that his analysis
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occurred six months before the trial and that he did not have the technology
to determine if calls had been deleted. After reviewing his report, he said
that the phone was a “minute phone,” or what was known as “a government
phone,” and that he did not know whether the phone would record calls and
text messages if the phone were out of minutes.
Jason Lind, a radio frequency engineer at AT & T, testified that he
analyzed June 11, 2015 cell phone tower data of the tower located “just west”
of the market. His report showed each cell phone line that utilized the tower,
including the date and time that a call was placed. Relative to the telephone
number Detective Bierbrodt identified as belonging to Mr. Jones, Mr. Lind
identified a six-second outgoing call at 10:21 p.m. to the telephone number
Detective Bierbrodt identified as belonging to Mr. Thompson. He identified
two additional calls from Mr. Jones’s phone to Mr. Thompson’s phone from
10:23 to 10:24 p.m. and from 10:28 p.m. to 10:37 p.m.
State v. Marico Vales, No. W2018-00424-CCA-R3-CD, 2019 WL 328436, at *1 (Tenn.
Crim. App., at Jackson, Jan. 23, 2019), perm. app. denied (Tenn. May 20, 2019).
Based upon this evidence, the jury convicted the Defendant as charged. The trial
court imposed a life sentence for the felony murder conviction and a concurrent sentence
of twenty-five years for the especially aggravated robbery conviction.
B. Post-Conviction Hearing
The Petitioner filed a post-conviction petition, alleging that Counsel was ineffective.
The post-conviction court held a hearing where the only testimony presented was that of
the Petitioner’s trial attorney (“Counsel”). Counsel testified that he had been practicing
criminal defense for twenty-five years and had participated in over 100 jury trials.
Counsel recalled the Petitioner’s trial and Shelby County Sheriff’s Office Detective
Steve Bierbrodt’s testimony that referenced the Petitioner’s incarceration on unrelated
cases. At trial, Detective Bierbrodt testified that he watched video footage from the
convenience store, pulled the Petitioner’s information and “[f]ound that he was already in
jail. [The Petitioner] had gotten arrested a few days prior to them meeting with the
girlfriend, and so he pulled [the Petitioner’s] booking photo.” Detective Bierbrodt also
testified that, after identifying the person in the video footage from the convenience store,
“We found that he was in jail on unrelated charges and we pulled him up for an interview.”
Counsel agreed that he did not object to either of Detective Bierbrodt’s references to the
Petitioner’s incarceration on unrelated charges. He further agreed that both comments were
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“certainly objectionable” but noted that it was questionable whether the comments were
“unfairly prejudicial.”
Counsel agreed that during closing argument the State referenced Detective
Bierbrodt’s testimony about the incarceration on unrelated charges. The State’s prosecutor
stated, “[The Petitioner] is released from custody that Sunday before, according to his
statement by Detective Bierbrodt. [The Petitioner] is in custody on unrelated charges.”
Counsel responded that, although he did not recall that specific statement from closing
argument, it was not his practice to object during closing argument. In his experience,
making objections during the State’s closing invited objections during the defense closing
so he refrained from so doing. As a matter of practice, he believed the more appropriate
time to object was during the testimony not closing argument. He clarified that he refrained
from objecting during closing unless the issue was “very egregious” or a statement he was
certain the trial court would sustain. He confirmed that if he had felt the prosecutor’s
statement was “more egregious” he would have objected.
Counsel recalled Federal Agent Lynn Bracey’s testimony regarding an EBT card
used to identify the person who ordered a pizza inside the store before the murder. He
confirmed that Agent Bracey testified who the card was registered to and the time of its
use without the prior introduction of records to lay a foundation for this testimony. Counsel
agreed that he did not object to Agent Bracey’s testimony, noting that the Petitioner was
shown on the surveillance video using an EBT card and he signed the receipt so identity
was never an issue. Counsel testified that the issue at trial was what role the Petitioner
played in the “botched robbery.” The State’s theory was that the Petitioner ordered the
pizza “to get the [victim] out of the [glassed in area]” where the money was located.
Counsel said that the defense theory was that the Petitioner was a regular customer ordering
pizza and unaware of the robbery. Counsel said that he chose not to fight the “ID issue”
because the Petitioner could clearly be seen on the surveillance video, and he did not want
to lose credibility with the jury by challenging identity evidence.
Counsel testified about evidence introduced at trial concerning cell phone usage on
the night of the robbery. This evidence showed a connection between the four persons the
State alleged committed the robbery and shooting, which included the Petitioner. The
police did not have the Petitioner’s cell phone, so there was no testimony about the
Petitioner’s phone; however, there was testimony about a co-defendant’s, Antonio Jones,
cell phone. Detective Bierbrodt testified about the information found on Mr. Jones’s cell
phone without the introduction of any business records as foundation. Counsel agreed that
he did not object to Detective Bierbrodt’s testimony, noting that the defense position was
that the Petitioner had nothing to do with the robbery plan and therefore would not have
been on the phone calls. Thus, there was no need to object to the testimony. He further
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noted that cell phone records are routinely admitted at trial and thus the documents would
have been admitted anyway.
Counsel testified that the State made a plea offer that was contingent upon the
Petitioner testifying against his co-defendants. The Petitioner refused to testify against his
co-defendants, so he proceeded to trial. Without the Petitioner’s testimony, the State was
forced to settle the cases against the Petitioner’s co-defendants. Counsel recalled that the
Petitioner’s co-defendants entered guilty pleas for “far, far, far less sentence[s] than [the
Petitioner received].”
On cross-examination, when asked if Detective Bierbrodt’s two statements about
the Petitioner’s incarceration on unrelated charges would have changed the jury’s verdict,
Counsel responded:
No. I don’t think the jury would have necessarily convicted [the Petitioner]
if he was in custody or not in custody when he was being questioned. I think
that what doomed [the Petitioner] in the end was he never got this pizza that
he ordered. . . . He had said, “I ordered this pizza” and then he never got the
pizza. I think if [the Petitioner] had waited and these people came in and
committed the robbery, [the Petitioner] could have plausibly said, “I didn’t
know what was going on”, plausibly, but when he leaves seconds before they
come in, I think that’s, probably, the most damning evidence that there is. I
don’t think the jury would have found him not guilty if he’d have been
brought in from the streets and questioned. I don’t find that to be, you know,
a tipping point.
Counsel agreed that the reasoning behind his practice of not objecting during closing
argument was a professional tactic developed through years of practice and hundreds of
jury trials. He did not object to some statements that might be objectionable to avoid
drawing the jury’s attention to the statement. He clarified, however, that some statements
are too egregious and require an objection. Counsel testified that even had he objected to
Agent Bracey’s testimony about the EBT card, the video clearly showed the Defendant
buying the pizza, and the Defendant told the police that he was in the market to buy a pizza
for his children.
Counsel testified that the defense theory, that the Petitioner was merely a random
customer, had its challenges in that the Petitioner identified the masked shooters.
After hearing this evidence, the post-conviction court issued a written order denying
relief as follows:
15
In this case, Petitioner bases his attacks on his attorney’s performance
by calling the attorney as a witness, and asking why certain evidentiary
objections were not made.
The objections fall into two groups. First, concerning a witnesses’
remark that Petitioner was in jail on another charge when his booking photo
was obtained by the detective. Trial counsel stated that while it was “some
what prejudicial” in his opinion, an objection and possible curative
instruction would only act to highlight the matter.
The second area of concern was the process by which the [S]tate
demonstrated that the EBT card used moments before the killing led to its
owner telling the police that Petitioner was using it. The defense strategy in
this case was not to dispute Petitioner’s presence (he is seen on video) and
so the process by which he was identified was not detrimental to their
strategy.
As with most trials, a leisurely review of the testimony that took place
in regular time and speed reveals instances where an objection might have
been made and sustained.
In this case, [C]ounsel was well-prepared for trial with the only viable
strategy available to him. The fact that the jury rejected the defense theory
and accredited the State’s version of events does not automatically render the
assistance deficient.
In this case, the errors, if they were errors, simply did not prejudice
the Petitioner’s defense.
It is from this judgment that the Petitioner appeals.
II. Analysis
On appeal, the Petitioner maintains that Counsel was ineffective because Counsel:
(1) failed to object to unfairly prejudicial references that he was in jail on unrelated charges
at the time of police questioning in violation of Rule 404(b); and (2) failed to object to cell
phone and photographic evidence that lacked a foundation. The State responds that the
post-conviction court properly denied the Petitioner relief. We agree with the State.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
16
right. T.C.A. § 40-30-103 (2018). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2018). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
conviction court’s factual findings are subject to a de novo review by this Court; however,
we must accord these factual findings a presumption of correctness, which can be
overcome only when a preponderance of the evidence is contrary to the post-conviction
court’s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-
conviction court’s conclusions of law are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the [petitioner] by
the Sixth Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable. Unless a [petitioner] makes both showings, it cannot be
said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To
prevail on a claim of ineffective assistance of counsel, “a petitioner must show that
counsel’s representation fell below an objective standard of reasonableness.” House v.
State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn.
1996)).
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When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the 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.” Burns, 6 S.W.3d at 462. Finally, we note
that a defendant in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally
compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,
466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective
merely because a different procedure or strategy might have produced a different result.
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “‘The fact that a
particular strategy or tactic failed or hurt the defense, does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.’”
House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).
If the petitioner shows that counsel’s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;
Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
A. 404(b) Evidence
The Petitioner asserts that Counsel was ineffective when he failed to object to
Detective Bierbrodt’s testimony referencing the Petitioner’s incarceration on unrelated
charges and for not objecting to the same evidence when the state referenced the
incarceration during closing argument. The State responds that the Petitioner failed to meet
his burden of showing, by clear and convincing evidence, that Counsel was deficient in
this respect and that he was prejudiced by the alleged deficiency. We agree with the State.
At trial, Detective Bierbrodt testified about the progression of his investigation of
the robbery and shooting. Specifically, Detective Bierbrodt testified that he watched video
18
footage from the convenience store, pulled the Petitioner’s information, and “[f]ound that
he was already in jail. [The Petitioner] had gotten arrested a few days prior to them meeting
with the girlfriend, and so he pulled [the Petitioner’s] booking photo.” Still discussing the
progression of the investigation, the State asked, “Once you have identified this person in
the video was [the Petitioner], what did you do next?” Detective Bierbrodt responded, “We
found that he was in jail on unrelated charges and we pulled him up for an interview.” Trial
counsel did not object to this testimony. The State also referenced “unrelated charges” in
closing argument without objection.
The Petitioner argues that because the reference to his prior incarceration was
evidence of prior bad acts under Tennessee Rule of Evidence 404(b), this testimony was
not admissible. Regardless of the admissibility of the testimony, we conclude that the
Petitioner has not shown prejudice.
The statements were unsolicited and part of Detective Bierbrodt’s testimony about
the development of the investigation that led to the Defendant’s statement to the police.
See State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007). Identification was
not at issue as testified to by Counsel and confirmed by the trial court. The State’s proof
against the Defendant was relatively strong. Id. The proof at trial was that the Defendant
ordered a pizza requiring the victim to leave the cash register area to make the pizza. The
Defendant, without waiting for his pizza, left the market and his two co-defendants entered,
took cash from the cash register, and then shot the victim. The Defendant never returned
for the pizza he ordered. Thereafter, the Defendant identified his co-defendants who were
masked at the time of the robbery. The Petitioner has not established a reasonable
probability that, had Counsel objected based on these brief references to his incarceration,
the outcome of the trial would have been different.
Moreover, Counsel testified that Detective Bierbrodt’s two references were possibly
objectionable but expressed some doubt on whether such minor references would be
considered “unfairly prejudicial.” Counsel discussed his theory on objections, saying he
refrained from objections where possible so as not to invite such interruptions during his
closing argument and questioning. He also acknowledged concern that an objection can
draw a jury’s attention to testimony as well as objections can unnecessarily distract jurors.
As earlier stated, “‘The fact that a particular strategy or tactic failed or hurt the defense,
does not, standing alone, establish unreasonable representation. However, deference to
matters of strategy and tactical choices applies only if the choices are informed ones based
upon adequate preparation.’” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at
369).
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Accordingly, we conclude that the Petitioner failed to prove by clear and convincing
evidence that Counsel was deficient in this respect and that the alleged deficiency
prejudiced the Petitioner. The Petitioner is not entitled to relief as to this issue.
B. Phone Records
The Petitioner asserts that Counsel’s failure to object to a lack of foundation for the
introduction of cell phone evidence introduced through Detective Bierbrodt constitutes
ineffective representation. The State responds that the Petitioner has failed to meet his
burden with respect to this allegation. We agree with the State.
The Petitioner’s cell phone was not in use during the period in question and therefore
the records were not introduced at trial. When questioned about the co-defendant’s phone
records that were introduced through Detective Bierbrodt, Counsel stated that the defense
theory was that the Petitioner was not involved; therefore, the records would bear out no
communication between Antonio Jones and the Petitioner. Because of this, Counsel did
not think it necessary to object.
The record reflects that Counsel’s decision to not object to the records was strategic
and a tactical choice based upon his experience. See House, 44 S.W.3d at 515. Even
assuming that this was error, we cannot conclude that it was error “so serious that counsel
was not functioning as the ‘counsel’ guaranteed” by the Sixth Amendment. Neither has
the Petitioner shown that this alleged error was of such a nature that it deprived him of a
fair trial and undermined confidence in the outcome. Therefore, the Petitioner is not
entitled to relief as to this issue.
III. Conclusion
After a thorough review of the record and relevant authorities, we affirm the
post-conviction court’s judgment.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
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