Mark Brian Dobson v. State of Tennessee ( 2022 )

09/21/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 10, 2022
MARK BRIAN DOBSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2013-C-2464 Mark J. Fishburn, Judge
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No. M2021-00949-CCA-R3-PC
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Petitioner, Mark Brian Dobson, appeals the denial of his post-conviction petition.
Specifically, Petitioner alleges that trial counsel was ineffective for: failing to investigate
the facts of the case or interview witnesses; failing to “prepare cross examination of State’s
proof;” failing to file pretrial motion to redact from jail phone calls statements made by
Petitioner’s mother referring to a gun; failing to “preserve a defense pursuant to State v.
White, 382 S.W.3d 559 (Tenn. 2012);” failing to discuss mandatory consecutive sentencing
with Petitioner; advising Petitioner to plead guilty “to a single count during the trial” and
by failing to inform Petitioner of the consequences of his plea; failing to preserve issues
for appeal; and failing to advise Petitioner to testify at trial in support of his claim of self-
defense. Petitioner also claims that he is entitled to post-conviction relief due to the
cumulative effect of the errors of counsel. Following our review of the entire record and
the briefs of the parties, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and JOHN W. CAMPBELL, SR., JJ., joined.
Timothy Carter, Nashville, Tennessee, for the appellant, Mark Brian Dobson.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Trial
In July 2013, the Davidson County Grand Jury indicted Petitioner for the especially
aggravated kidnapping with a deadly weapon of Laquitta Waters; four counts of especially
aggravated kidnapping with a deadly weapon of Ms. Waters’ four children, K.W., A.G.,
M.M., and M.W.; the aggravated burglary of Ms. Waters’ home; employing a firearm
during the commission of a dangerous felony; the domestic assault of K.W.; and the
domestic assault of Ms. Waters. The indictment alleged that the domestic assault of Ms.
Waters occurred on July 23, 2011, but that the remaining counts occurred on July 22, 2011.
Before trial, Petitioner pled guilty to the domestic assault of Ms. Waters, a Class A
misdemeanor.
The jury convicted Petitioner of the especially aggravated kidnapping of Ms. Waters,
K.W., A.G., M.M., and M.W., Class A felonies; aggravated burglary, a Class C felony; and
employing a firearm during the commission of a dangerous felony, a Class C felony. The
jury found Petitioner not guilty of the domestic assault of K.W. Petitioner received an
effective seventy-year sentence. This court affirmed Petitioner’s convictions and
sentencing on appeal. State v. Mark Brian Dobson aka Mark B. Martin, No. M2015-
00818-CCA-R3-CD, 2016 WL 7212574, at *1 (Tenn. Crim. App. Dec. 13, 2016). The
facts of this case as summarized on direct appeal are as follows:
At trial on the remaining eight counts, Waters testified that she was thirty-four
years old and had four children: two sons, K.W. and M.W., and two daughters,
A.G. and M.M. Waters and the [Petitioner] had been dating “off and on” for
four years at the time of the alleged offenses, and M.M. and M.W. were the
[Petitioner]’s children. The [Petitioner] sometimes stayed at Waters’ home
and was sometimes violent with her. Waters said she previously had warrants
issued for his arrest but did not pursue the charges because “I was just in love
and just didn’t come down here to show up at the time.”
Waters testified that in late June or early July 2011, she and her children
moved into an apartment on Lemont Drive. Waters’ name was on the lease,
she paid the rent, and she did not give the [Petitioner] a key. The apartment
had three bedrooms. K.W., who was eleven years old, slept in the first
bedroom, and A.G. and M.M., who were nine and five years old, respectively,
shared the second bedroom. Waters said that her bedroom was “the last room
with the balcony in the back” but that she and M.W., who was just a couple of
weeks old, slept in the second bedroom with A.G. and M.M. Waters and the
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[Petitioner] were not “together” at that time, but Waters would see him when
she took the children to his mother’s house.
Waters testified that in the early morning hours of July 22, she and the four
children were sleeping in the second bedroom. Waters and M.W. were in one
twin bed, A.G. and M.M. were in a second twin bed, and K.W. was on the
floor. Waters said that “the light come on” and that the [Petitioner] came into
the bedroom. The [Petitioner] had a gun, put it to Waters’ head, and accused
her of trying to sell sex on Facebook. Waters said that she asked the
[Petitioner] what he was talking about and that he “kept going on and on about
‘log on Facebook,’ and, you know, waving a gun around walking back and
forth right there ... in between the beds and stuff.” Waters got out of bed and
told the [Petitioner] to leave. K.W. started to leave the bedroom, but the
[Petitioner] pushed K.W., causing the boy to hit his knee on the end of the bed.
Waters testified that the [Petitioner] refused to leave, went into the living
room, and pushed the couch in front of the apartment door. The [Petitioner]
told Waters, “[A]in’t nobody going nowhere.’” He then moved M.M. into the
living room, lay on the couch, and put the gun beneath a pillow under his head.
Waters and the three other children remained in the bedroom. Waters said that
she could not go back to sleep and that the [Petitioner] checked on her several
times during the night to make sure she was not trying to help the children
escape.
Waters testified that she had locked the door to her apartment prior to the
incident and that she did not know how the [Petitioner] got inside the
apartment. The [Petitioner] took Waters’ cellular telephone and car keys, and
she was scared. She said the [Petitioner]’s gun was a black pistol and was
“shaped like” a police officer’s gun. Waters explained that she did not try to
escape from the apartment because she was afraid the [Petitioner] would hear
her and hurt her and the children. At daylight, Waters lied to the [Petitioner]
by telling him that one of the children had an appointment at Centerstone, a
community mental health care center. Waters also told the [Petitioner] that
the police would come to the apartment if Waters did not “show up” for the
appointment. The [Petitioner] allowed the children to get dressed, everyone
got into Waters’ car, and Waters drove to Centerstone.
Waters testified that she and the children went into Centerstone while the
[Petitioner] waited in the car. Waters told a woman at the front desk about the
[Petitioner] and told her to call the police. Five or ten minutes later, the
[Petitioner] came into Centerstone, and the woman at the desk told him to
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leave. Centerstone employees took Waters and the children into a secure area
to wait for the police. The [Petitioner] left before the police arrived, and
Waters did not see him again that day.
Waters testified that the following night, July 23, she was at a friend’s house.
She said she was sitting outside “listening to some music, drinking and
dancing and stuff” and saw the [Petitioner] running on the sidewalk toward
her. Waters ran around her car, and the [Petitioner] “leaped” over the hood
and grabbed her. She said he “slung” her onto the ground, “stomp[ed]” on her
face, and ran away. Waters flagged down a police officer and told him what
had happened. She said she had a “busted” blood vessel in her eye and a
“busted” lip, and she identified photographs of her injuries for the jury. During
the next month, the [Petitioner] continued to contact Waters. On August 29,
the [Petitioner] demanded to see M.W. Waters let the [Petitioner] into her
apartment to see the baby, but he refused to leave. The next day, Waters made
up an excuse to leave the apartment and telephoned the police. The police
came to the apartment and arrested the [Petitioner]. After the arrest, the
[Petitioner] continued to contact Waters. The [Petitioner] telephoned her from
jail, and she accepted his calls. She said that she told him to stop calling but
that he continued to do so. Waters finally stopped accepting the [Petitioner]’s
calls in 2012.
Waters testified that the [Petitioner] sent her letters from jail, and she identified
letters written by him for the jury. In a letter dated October 19, 2011, the
[Petitioner] apologized to Waters for “fighting on” her and asked that she
forgive him for “all the wrong and pain” he had caused. In a letter dated
October 20, 2011, the [Petitioner] threatened to harm “that [N***a] you with.”
In a letter dated December 9, 2011, the [Petitioner] stated that he would not
allow Waters to be with another man and threatened to kill “that [n***er]
before I let him have my soulmate.” Waters said she was afraid the [Petitioner]
would kill her too.
On cross-examination, Waters testified that the door of her apartment was not
broken, and no windows were damaged. The door was dead-bolted on the
night of July 22 and could only be opened from the inside by turning the lock
or from the outside with a key. K.W. did not see a doctor for the injury to his
knee, and Waters did not photograph the injury. Waters acknowledged that
she was drinking alcohol on the night of July 23 and that she did not try to run
into anyone’s house to get away from the [Petitioner].
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Waters acknowledged that she spoke with Detective Jason Osborne on the
telephone on August 1, 2011, that he asked if she knew the [Petitioner]’s
whereabouts, and that she told the officer no. She denied that the [Petitioner]
was “standing right there” during her conversation with the officer. Sometime
after the incident on July 22 but prior to the [Petitioner]’s arrest, Waters took
the children swimming at a Red Roof Inn. The [Petitioner] was also present.
A warrant had been issued for the [Petitioner]’s arrest, but Waters did not
telephone the police. She denied that the [Petitioner] accompanied her to a
pediatric appointment for M.W. when M.W. was two months old.
Waters acknowledged that a warrant had been issued for the [Petitioner]’s
arrest when she let him into the apartment on August 29. She also
acknowledged that the police did not find a gun on his person or in her
apartment when they arrested him on August 30. Waters denied giving the
[Petitioner] money or sending him cards while he was in jail. She identified
an envelope, addressed to the [Petitioner] and with her return address,
containing photographs of her children. Waters acknowledged taking the
photographs but denied mailing them to the [Petitioner], stating that his mother
may have sent them.
Waters testified that the [Petitioner] was present for the births of his children
and that he signed M.M.’s birth certificate; however, he did not sign M.W.’s
certificate. The [Petitioner] questioned M.W.’s paternity, so a DNA test was
performed after the [Petitioner]’s arrest. The test showed that the [Petitioner]
was M.W.’s father.
On redirect examination, Waters acknowledged that she called 911 on July 25
and July 28, 2011, trying to have the [Petitioner] arrested. On recross-
examination, she acknowledged that every time she telephoned the police, she
told them the [Petitioner] had a gun. However, the police did not find a firearm
related to this case.
Thirteen-year-old K.W. testified that in July 2011, he was living with his
mother, brother, and sisters on Lemont Drive and that the [Petitioner] did not
live with them. One night, K.W. was asleep in his bedroom but heard a
commotion in his sisters’ bedroom. K.W. said that he went into the room, that
the [Petitioner] “was like ‘log into Facebook, log into Facebook right now,’”
and that the [Petitioner] was pointing a gun at Waters’ head. The gun was
black and looked like a pistol. K.W. said that he did not know how the
[Petitioner] got into the apartment but that “I think the window [was] broke
in.’”
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K.W. testified that he was scared and that he was “trying to go over there.”
However, the [Petitioner] pushed K.W. K.W. hit his ankle on the bed rail and
started crying. Waters asked the [Petitioner] what he was talking about, but
the [Petitioner] went into the living room and moved the couch in front of the
door. At some point, the [Petitioner] told M.M. “to go lay down back where
he was.” During the night, the [Petitioner] checked the bedroom to make sure
Waters and the other children were not trying to get out of the apartment.
K.W. testified that the next morning, his mother drove everyone to
Centerstone. Waters and the children went inside, and Waters told someone
at the front desk that “he got a gun, help us.” K.W. said the [Petitioner] came
in “like two minutes behind us.” The [Petitioner] claimed that Waters was
crazy and that he did not have a gun. A woman took Waters and the children
to a back room, and the [Petitioner] “went off somewhere.”
On cross-examination, K.W. acknowledged that the [Petitioner] helped the
family move into the apartment on Lemont Drive. On the night of the
altercation in the bedroom, K.W. heard Waters and the [Petitioner] yelling.
K.W. went to the bedroom and saw that the light was on. Waters was lying in
bed, and the [Petitioner] was standing near her. K.W. said that he “tried to
stop it” and that the [Petitioner] pushed him. K.W.’s ankle hit the bed and was
hurting but was not swollen or bruised. During the drive to Centerstone, K.W.
did not see the [Petitioner] with a gun.
Julie Magin testified that on July 22, 2011, she was working at the front desk
at Centerstone. An African-American woman with children came inside and
said that a man was trying to kill her. The woman was “panicked” and told
Magin to call 911. Magin said that she telephoned the police and that
Centerstone staff moved the woman and children “behind locked doors.”
Shortly thereafter, an African-American man came into the facility. He did
not say anything to Magin but lifted his hands and the front of his shirt to show
that he did not have any weapons. Magin did not tell the man to leave, but he
left the building immediately.
Melaton Bass-Shelton testified that she was the Clinic Manager for
Centerstone. On July 22, 2011, a woman came into the facility and “made a
statement that she was in fear for her life.” The woman was “in a panicked
state” and said that a man had held her at gunpoint. Bass-Shelton moved the
woman and the woman’s children to the other end of the building and had staff
call 911. The police arrived and looked for the man but could not find him.
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Officer Terry Richards of the Metropolitan Nashville Police Department
(MNPD) testified that on July 22, 2011, she responded to a call involving a
weapon at Centerstone. When she arrived, she interviewed Waters, and
Waters told her the following: The [Petitioner] broke into Waters’ home; held
a gun to her head; and shoved her son to the floor, injuring his knee. The
[Petitioner] then barricaded the door with a couch so that Waters and her
children could not leave. Waters later lied to the [Petitioner] about having an
appointment at Centerstone, and the [Petitioner] rode with them to the
appointment. During the drive, the [Petitioner] held a gun to Waters’ head and
told her, “‘I ought to kill you right now.’” When they arrived at Centerstone,
Waters and the children went inside, and Waters asked the staff to call the
police. The police arrived and looked for the [Petitioner] but could not find
him.
Johnetta Gordon testified that she was Waters’ cousin. She did not know the
[Petitioner] but “[knew] of” him. On July 23, 2011, Gordon and Waters were
at a cookout and were outside “listening to music, having a good time.”
Suddenly, Gordon saw the [Petitioner] “run out on [her] right side” and jump
over the hood of a car. The [Petitioner] knocked Waters down and asked
Gordon, “What [you] got to do with it[?]” Gordon felt threatened and
answered, “[N]othing.” She ran onto her aunt’s porch. On cross-examination,
Gordon acknowledged that she had a prior conviction for shoplifting.
Detective Clarence Thompson of the MNPD testified that on July 22, 2011,
he interviewed Waters at the police department’s Domestic Violence Division
and that she told him the following: Waters woke to find the [Petitioner]
standing over her with a gun, and he told her, “‘I should kill you now.’”
Waters gathered her children, and they all went into one room. The
[Petitioner] put a couch or loveseat in front of the door and held Waters at
gunpoint all night. That next morning, Waters told the [Petitioner] that one of
the children had an appointment at Centerstone, so the [Petitioner] went with
Waters and the children to the facility. During the drive, the [Petitioner]
pointed the gun at her and told her, “‘I should kill you in front of your kids.’”
When they arrived at Centerstone, Waters and the children went inside, and
Waters asked a woman to telephone the police. Waters turned around and saw
the [Petitioner] enter the building. The staff ushered Waters and the children
into a secured area, and the [Petitioner] left.
Detective Thompson testified that he tried to talk with K.W. but that the boy
was “really quiet and withdrawn” and would not give him any information.
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K.W. did say that the [Petitioner] pushed him and that K.W. hit his leg on a
bed frame. Waters did not know how the [Petitioner] gained entry to her
apartment, and Detective Thompson did not go to the home because there was
no evidence to collect. Officers went to the [Petitioner]’s mother’s house to
arrest him but were told he did not live there. As part of Detective Thompson’s
investigation, he reviewed all of the previous reports Waters had filed against
the [Petitioner]. Detective Thompson said that prior to this case, he had
spoken with Waters three or four times.
On cross-examination, Detective Thompson acknowledged that he had spoken
with Waters about the [Petitioner] previously. Defense counsel asked, “Did
she usually say that Mr. Martin had a gun?” Detective Thompson answered,
“Yes, she said that he was known to carry a gun.” However, the officer never
found a gun on the [Petitioner]’s person.
Thomas Devan Franklin, III, of the Davidson County Sheriff’s Office (DCSO)
testified that he was the custodian of records for telephone calls made by
inmates at the Davidson County Jail. Franklin identified eight recorded calls
made by the [Petitioner], and the State played the calls for the jury. The
[Petitioner] made the first and third calls to his mother, and the remaining calls
were to Waters. During the first call on September 6, 2011, the [Petitioner]’s
mother asked him, “You knew this was going to happen.... What you expect
with a stolen gun and all that, Mark?” The [Petitioner] told his mother that “I
didn’t kidnap them,” and his mother replied, “You didn’t let them go neither,
did you?” During the call, the [Petitioner] asked his mother to place a three-
way call to Waters. At first, the [Petitioner]’s mother refused; however, she
ultimately called Waters for him. When Waters answered the telephone, the
[Petitioner] asked her, “You really want to see me do fifteen years?” Waters
said she could not talk to the [Petitioner] and hung up.
During the second call on September 23, 2011, Waters asked the [Petitioner]
why he kept calling her. The [Petitioner] told Waters that he knew he
“[f***ed] up” and “traumatized” her and that he was “so sorry.” Waters told
the [Petitioner] that she was glad to have her life back. In the third call on
October 2, 2011, the [Petitioner]’s mother told him, “You ain’t whooped
nobody like you whooped [Waters].” In the fourth call on November 2, 2011,
the [Petitioner] told Waters, “I wish I would have never put my hands on you
like that.” During the fifth call on November 5, 2011, Waters told the
[Petitioner] that he moved the couch in front of the door, and the [Petitioner]
told her that he did not remember doing so. He also told her that he loved and
missed her. In the sixth call on November 11, 2011, the [Petitioner] again told
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Waters that he loved her. In the seventh call on December 17, 2011, Waters
told the [Petitioner] that she was happy because she did not have to worry
about him “running up on [her] in the street.” In the final call on December
30, 2011, Waters told the [Petitioner] to stop calling her and hung up.
Franklin testified that in the six months prior to trial, the [Petitioner] had called
Waters’ telephone number twenty-five to thirty times. However, none of the
calls were answered.
After Franklin’s testimony, the State rested its case-in-chief. Tom Davis of
the DCSO testified that he was the records custodian for visitors to the jail.
According to the [Petitioner]’s records, Waters was scheduled to visit him
twenty-six times between September 12, 2011, and September 15, 2012. On
cross-examination, Davis testified that the records showed Waters actually
visited the [Petitioner] only twice: on October 31, 2011, and November 5,
2011. On redirect examination, Davis testified that the records indicated
Waters came to the jail to visit the [Petitioner] ten additional times but that she
was not “let in” to see him.
Jerrick Prime, the [Petitioner]’s cousin, testified that he helped the [Petitioner]
move Waters into the apartment on Lemont Drive. The items Prime moved to
the new apartment included the [Petitioner]’s belongings. The [Petitioner] had
a key to the new apartment, and Waters did not appear to be afraid of him.
The [Petitioner] cleaned the old apartment so that the $700 security deposit
would be returned to him.
On cross-examination, Prime testified that when the [Petitioner] had money,
“all was good.” However, when the [Petitioner] did not have any money,
Waters would “send him to jail.” Prime stated that he did not look into any of
the boxes or bags he moved to the new apartment and that “I know he had his
stuff in there, but I don’t know what was his and what was hers.” He
acknowledged that he was not present during the incidents on July 22 or 23.
The jury convicted the [Petitioner] as charged of especially aggravated
kidnapping with a deadly weapon of Waters, K.W., A.G., M.M., and M.W.,
Class A felonies; aggravated burglary, a Class C felony; and employing a
firearm during the commission of a dangerous felony, a Class C felony. The
jury found the [Petitioner] not guilty of the domestic assault of K.W.
Id. at *1-6.
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On direct appeal, Petitioner contended that
(1) the evidence is insufficient to support the convictions, (2) the trial court
improperly denied his motion for a continuance, (3) the trial court erred by
admitting into evidence a recorded telephone call in which his mother
mentioned a stolen firearm, (4) the indictment for the charge of employing a
firearm during the commission of a dangerous felony was defective for
failing to name the underlying dangerous felony, (5) the trial court
improperly instructed the jury on employing a firearm during the commission
of a dangerous felony, and (6) his effective sentence is excessive.
Id. at *1. This court noted that in addition to the charges “for the nine offenses committed
on July 22 and 23, 2011, the grand jury indicted [Petitioner] for two counts of domestic
assault committed against Ms. Waters and K.W. on June 18, 2011. Id. at *9. However,
those two counts were severed from the remaining counts before trial.” Id. Petitioner
claimed that his mother’s statement on the jail phone call relating to the “stolen gun”
concerned the June incident and that the statement should have been redacted. Id. At *8.
On appeal, this court agreed but concluded that the error was harmless. Id. at *10.
Ultimately, this court affirmed the judgments of the trial court but remanded the case to
correct a clerical error on the domestic assault conviction and to correct the judgment as
modified on the sentence for employing a firearm during the commission of a dangerous
felony.
Post-Conviction
On March 16, 2017, Petitioner, acting pro se, filed a petition for post-conviction
relief, contending that lead counsel and co-counsel were ineffective in numerous ways.
The post-conviction court appointed an attorney, and an amended petition for post-
conviction relief was filed, again alleging numerous instances of ineffective assistance of
counsel. Thereafter, the post-conviction attorney withdrew from representation, and the
post-conviction court appointed a new attorney. Another amended petition for post-
conviction relief was filed, alleging yet additional instances of ineffective assistance of
counsel.
At the post-conviction hearing, Petitioner’s co-counsel testified that she was
licensed to practice in March 2014. She recalled that at some point, lead counsel requested
her assistance with the case. Co-counsel was not responsible for investigating any
witnesses prior to trial, but she was responsible for cross-examining the son, K.W. Co-
counsel noted that Petitioner was found not guilty on the count involving K.W.
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Co-counsel said that prior to trial, she and lead counsel discussed the case in order
to establish that she would handle the portion of the trial concerning K.W. Co-counsel
adamantly told lead counsel that she would not handle any other portion of the case. On
the morning trial was scheduled to begin, co-counsel thought the defense would be granted
a continuance because lead counsel was “the fourth or fifth attorney” appointed to represent
Petitioner, and lead counsel needed time to prepare for trial.
Co-counsel said that she was prepared for her portion of the trial but that from her
conversations with lead counsel, she believed that he was not prepared because he was not
granted the continuance he needed. Co-counsel said that when she and lead counsel
showed up for court that morning lead counsel anticipated a continuance would be granted,
she had her “folders and binders,” but lead counsel did not. Additionally, Petitioner did
not have clothes for trial. However, the request for continuance was denied, and trial began
later that afternoon.
After the trial, lead counsel was relieved as counsel because Petitioner had filed a
complaint about him with the Board of Professional Responsibility. Co-counsel took over
the case and filed the motion for new trial. Co-counsel advised Petitioner that she did not
intend to represent him on appeal because she did “not do appellate work.” Co-counsel
said that she had agreed to represent the Petitioner “for a very limited purpose” and that
she “was not privy to a lot of the ins and outs of this matter.” Co-counsel had not kept
track of the “objections and appealable issues” during trial because she was only supposed
to handle the issues regarding the son.
On cross-examination, co-counsel said that before court on the morning of trial, lead
counsel assured co-counsel that they would not be proceeding to trial that day because the
trial court had provided him assurances that they would get a continuance so lead counsel
could prepare. Despite lead counsel’s assurances, the case proceeded to trial that afternoon.
Co-counsel said that although she had not intended to handle the motion for new
trial, she represented Petitioner on the motion because lead counsel had been relieved from
representation at the conclusion of the sentencing hearing. Co-counsel said that she did
not have much interaction with Petitioner and did not recall having any conversations with
him regarding continuances. Co-counsel estimated that she was on the case for two or
three months prior to trial.
Lead counsel testified that he was licensed to practice law in March 2014 and that
he practiced criminal defense almost exclusively. Prior to being appointed to represent
Petitioner, lead counsel had tried twenty or thirty criminal cases. Lead counsel had been
appointed to the case sixty to ninety days before the trial began. Petitioner’s previous
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attorney had set a trial date, but after the trial court appointed lead counsel, the trial court
granted a continuance of the trial date.
Lead counsel said that he requested another continuance on the day trial was
scheduled to begin. He explained that a week prior to trial, he had been unable to contact
any court officers to get some key defense witnesses subpoenaed. Although the trial court
denied a continuance, the court “fashion[ed] a remedy for [lead counsel],” and the case
proceeded to trial that afternoon.
Lead counsel said that he never received a settlement offer from the State. He
explained, “When I was appointed, the State was ready to go.” Lead counsel said that any
settlement offers would have been made to Petitioner’s previous attorneys.
Lead counsel thought he interviewed Dr. Mary Atubra and requested her records in
connection with the case but could not specifically recall because nine years had elapsed
since the time of trial. Lead counsel also interviewed Jerrick Prime1, who he thought was
Petitioner’s cousin. Lead counsel said that Prime had helped Petitioner and Ms. Waters
move belongings into Ms. Waters’ apartment, and Prime knew that Petitioner had a key to
the apartment. Lead counsel did not recall Steve Dobson or Todd Johnson as potential
witnesses. Lead counsel said that Prime, Tom Davis, the custodian of records for the jail,
and Issac Martinez, the keeper of the records for the police department’s property room,
were the witnesses he had wanted to subpoena if he had been granted a continuance.
Regardless of the continuance being denied, lead counsel was able to subpoena the
witnesses on the day trial began.
Lead counsel said that prior to trial, he looked at the jail phone records. Lead
counsel said that he did not have an investigator working on the case. Lead counsel did
not interview any of the State’s witnesses prior to trial but reviewed “their written
statements and just cross-examination.” Lead counsel thoroughly investigated Ms. Waters’
background.
Lead counsel said that after the trial court denied the continuance, the defense was
able to find court clothes for the Petitioner from another courtroom because some courts
keep clothes for people who are brought in wearing jail clothing.
Lead counsel said that he did not file any pretrial motions but that he relied upon
the motions filed by prior counsel. Lead counsel visited Petitioner in jail two or three times
and had visits with Petitioner two or three times at court on the days of his court
1
Lead counsel mistakenly referred to this witness as Gerald Prim, but the record indicates the name
of the witness was in fact Jerrick Prime. For consistency, we will refer to the witness as Jerrick Prime.
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appearances. During the visits, lead counsel and Petitioner discussed the facts of the case
and the trial.
Lead counsel said that prior to trial, he was aware the State had filed a notice of
enhanced punishment and that during court appearances, he and Petitioner discussed the
potential sentencing exposure. Lead counsel had reviewed Petitioner’s criminal record,
including his prior felony convictions, as part of the discovery. Lead counsel said that his
“main concern was trying to keep any guns out of his trial.” Lead counsel did not recall
having a “detailed discussion” with Petitioner about how the firearms charge would have
to be served consecutively to the aggravated burglary charge if he were convicted of both
offenses, but he stated that “[u]nder normal circumstances,” he would have discussed
possible mandatory sentencing with his client.
Lead counsel and Petitioner discussed a defense strategy concerning whether
Petitioner “could actually kidnap his own children.” Lead counsel discussed the damaging
evidence with Petitioner, noting that Petitioner’s calls to his mother from jail were
“devastating” because he made “admissions” during the calls. Lead counsel and Petitioner
also discussed the facts underlying the domestic assault allegation and how “that could be
also damaging as well to the other allegations.”
Lead counsel brought in co-counsel shortly after he was appointed to the case. Co-
counsel’s role was to perform the cross-examination of Petitioner’s children, and lead
counsel was to handle the remainder of the case. During trial, information from
Centerstone was entered into evidence. Lead counsel explained that after Petitioner
kidnapped Ms. Waters and her children, Ms. Waters convinced Petitioner that her oldest
daughter had an appointment at Centerstone, and Petitioner, Ms. Waters and the children
drove there. When they arrived, Petitioner remained in the car while Ms. Waters and the
children went inside the building. Ms. Waters told the people inside the building “that she
had been kidnapped and that [the] father of her child was trying to kill them.” The State
introduced the Centerstone records to establish that the victim had invented the story about
an appointment to escape Petitioner. Lead counsel said he “[p]robably” objected to the
records being introduced as exhibits but that he could not recall the nature of the objection.
Lead counsel said that he received the discovery from prior counsel and that he did
not file his own discovery request. Petitioner told lead counsel that when he saw Ms.
Waters speaking with someone inside Centerstone, he went inside the building, “raised up
his shirt, showed the people at the front desk that he wasn’t armed, made a 360 turn so she
could look all around him while he had his shirt up and then he left from Center[s]tone.”
Lead counsel agreed that during the recorded jail phone calls, Petitioner’s mother
referred to Petitioner’s having a “stolen gun.” Lead counsel objected to the statement and
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requested it be redacted from the call, but his objection was overruled. Lead counsel did
not have the capability to redact the phone call himself. Lead counsel said he wanted to
keep out any evidence of a weapon because Ms. Waters had alleged Petitioner had held a
gun on her and her children. Lead counsel acknowledged that on direct appeal, this court
ruled that his mother’s statement regarding the gun should have been redacted but that the
error did not warrant a reversal of Petitioner’s convictions.
Lead counsel acknowledged that prior to trial, Petitioner pled guilty to a
misdemeanor. Lead counsel and Petitioner discussed whether to enter the plea but
ultimately the decision whether to plead was Petitioner’s. Petitioner pled guilty to accept
blame and establish rapport with the jury, not to keep evidence of that charge from the jury.
Lead counsel and co-counsel were able to review the instructions prior to them being read
to the jury. Lead counsel did not object to the language in the instructions stating that
Petitioner had pled guilty to domestic assault because it did not harm Petitioner’s case.
Lead counsel did not see a need for a bill of particulars to be filed because the “case
was pretty much straight-forward.” On the morning of trial, lead counsel made a motion
to continue. Lead counsel acknowledged that the case “was complicated from the
standpoint of the kidnapping aspect of it” and that it was the first kidnapping case he tried
“[s]o it took [him] a little time to get caught up to speed about it.” Lead counsel “found it
difficult that a father could kidnap his own kids in a house that they all live in.” Lead
counsel said that he had not seen any technical defects in the indictment. Lead counsel was
removed from the case after trial but before sentencing because Petitioner had filed a
complaint against him.
Lead counsel and Petitioner discussed whether Petitioner would testify, and lead
counsel advised him not to testify due to his extensive criminal history. However,
Petitioner made the ultimate decision whether to testify. Lead counsel said that Ms. Waters
was the State’s main witness. Accordingly, lead counsel gathered evidence to try to
impeach her. Lead counsel stated that the trial was basically “a swearing contest” between
Petitioner and Ms. Waters. Without Petitioner’s testimony, the evidence consisted of Ms.
Waters’ testimony, her son’s testimony, the Centerstone employees’ testimony, and “those
devastating jail calls.”
Lead counsel did not request any additional lesser-included offense instructions
because he thought they were already included in the jury instructions. Lead counsel did
not recall discussing whether attempt should have been charged. Lead counsel did not see
anything objectionable with the jury instructions. Lead counsel said that the only
appealable issues he saw during trial concerned the redaction of the statement regarding
the stolen gun from the jail phone call.
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On cross-examination, lead counsel said that he thought he was the fifth attorney to
represent Petitioner. When lead counsel began representing Petitioner, the trial date had
been set, and the pretrial motions had been filed. Lead counsel said the case was “beyond
the plea negotiating stage.” Lead counsel and Petitioner discussed the witnesses who
would testify. Part of Petitioner’s defense was to let the jury know he had a key to Ms.
Waters’ apartment and that he did not “break into” the apartment. Ms. Waters was adamant
that Petitioner did not live in the apartment and did not have a key.
Lead counsel said that he did not hire an investigator and that he did not see an
investigative report in the file indicating prior counsel had hired an investigator.
Nevertheless, lead counsel thought that the defense could show Ms. Waters was not truthful
about Petitioner’s lack of a key and possession of a gun, which would call into question
the remainder of her testimony. Lead counsel advised Petitioner against testifying because
of his extensive criminal history and the fear Petitioner could open the door to “numerous
domestic issues.” Lead counsel had noticed that “every time [Ms. Waters] would bring up
a domestic issue,” she would allege that Petitioner had a gun regardless of whether he had
one. In a jail call, Petitioner’s mother spoke to Petitioner about having a “stolen gun.” She
never said who stole the gun or whose gun it was.
Petitioner did not raise any concerns with lead counsel prior to trial. Instead,
Petitioner’s “main focus was on having somebody come testify that he lived there and was
allowed to be there.” Additionally, Petitioner wanted the jury to know that he showed the
Centerstone employees that he was not armed after the victim had entered the building and
claimed Petitioner “had threatened to kill her and that he had a gun.”
Lead counsel did not recall discussing lesser-included offenses with the trial court,
but he acknowledged that the trial court usually discussed lesser-included offenses with the
parties.
On redirect examination, lead counsel said that he thought Petitioner “did himself
in by talking on that jail phone.” Lead counsel said that Petitioner had called his mother
and the victim and that Petitioner “shouldn’t have been making no calls to anyone.” Lead
counsel stated that the jury “seized on that fact that he was making these calls, making the
admissions and that’s what got him convicted.”
Lead counsel agreed that when he objected to the statement regarding the stolen
gun, he argued “that this was the stolen gun from the June incident that was being portrayed
on the calls” and that they did not find a gun in Ms. Waters’ car at Centerstone.
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Prior counsel testified that he represented Petitioner before lead counsel was
appointed. When prior counsel was appointed in 2013, approximately 99% of his practice
was criminal defense.
Prior counsel said that he filed motions “pertaining to a weapon and some 404[(b)]
issues that I was concerned about.” Prior counsel agreed that the events underlying counts
1 and 2 “happened on another date.” Prior counsel said that he filed a witness list and that
either he or his investigator, Tim Mason, had interviewed the witnesses named on the list.
On multiple occasions, prior counsel and Petitioner discussed the potential
sentences Petitioner could receive if he were convicted. They also discussed the possibility
of Petitioner testifying at trial, the risk he could be impeached by the State, and possible
defenses.
During prior counsel’s representation, the State made a plea offer involving a
twelve-year sentence at 100%, but prior counsel could not recall on which offense. Prior
counsel tried to negotiate a sentence of eight years with a percentage less than 85%, but no
agreement could be reached. At that point, prior counsel had the case set for trial. After
prior counsel was relieved from representation, he gave the case file and the discovery to
lead counsel. Prior counsel did not recall having any conversations with co-counsel.
Prior counsel recalled that a superseding indictment was filed against Petitioner.
Prior counsel and Petitioner discussed the differences between the original indictment and
the superseding indictment. After the superseding indictment was filed, prior counsel
received some supplemental discovery.
On cross-examination, prior counsel said that he met with Petitioner on multiple
occasions and discussed “the case, defenses, [and] possible witnesses.” Prior counsel
determined that some of the witnesses suggested by Petitioner would not make good
witnesses at trial. Prior counsel warned Petitioner that if he testified, the State would be
able to perform “a very effective cross-examination,” especially considering Petitioner’s
extensive criminal history, the statements made by Petitioner and others during the jail
phone calls, and the statements Petitioner made in the letters to Ms. Waters. Prior counsel
thought the State wanted Petitioner to testify because his testimony would help their case.
Prior counsel agreed that pretrial, he filed multiple motions in limine and a motion
to sever which resulted in counts 1 and 2 being severed. Prior counsel thought the trial
court and the parties discussed the Rule 404(b) issues, but prior counsel did not recall the
nature of the discussion or the trial court’s ruling. On the morning of jury selection, prior
counsel had to withdraw from representation.
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Sergeant Wilfred Klotzback with the evidence storage section of the MNPD testified
that records relating “to a 1911 handgun under Incident No. 2011-048378” reflected that
the gun was brought into the property room on June 20, 2011. The gun was returned to
Hendersonville Police Detective Neal Harris on June 21, 2011. Sergeant Klotzback had
no personal knowledge about the gun.
Brenda Martin testified that Petitioner was her nephew. Ms. Martin knew that in
the summer of 2011, Petitioner was living with Ms. Waters. Ms. Martin knew of
Petitioner’s living arrangements because she had to go to the residence to “remove him
from [Ms. Waters’] house.” Ms. Martin said that at some point, she picked up Petitioner’s
keys from the sheriff’s department. Prior to the post-conviction hearing, Ms. Martin gave
the keys to post-conviction counsel.
On cross-examination, Ms. Martin said that she moved Petitioner from Ms. Waters’
house because the victim “kept calling me to try to get him to leave, and he wouldn’t leave.”
Ms. Martin was never present when Petitioner assaulted the victim. Ms. Martin had seen
Petitioner with a gun but had never seen him with a gun around the victim. Ms. Martin
could not recall when she retrieved Petitioner’s keys from the Davidson County Sheriff’s
Department, but she knew it had been after Petitioner was sent to the penitentiary.
On redirect examination, Ms. Martin said that until she gave the keys to post-
conviction counsel, she kept them in her car. Ms. Martin did not know “where the keys go
to because I haven’t used the keys.”
Petitioner testified that he had been incarcerated for ten years and that his sentence
was seventy years at 100%. Petitioner said that after his direct appeal, this court “took the
hundred percent off the gun charge and reduced it to forty-five percent.” Petitioner recalled
that prior counsel filed a motion to sever and discussed the motion with Petitioner.
Petitioner recalled discussing trial strategy with prior counsel on the original indictment.
However, after Petitioner “was hit with a superseding indictment . . . where [the State]
added some more counts and . . . broadened some counts,” Petitioner and prior counsel did
not discuss strategy regarding the superseding indictment.
Petitioner and prior counsel discussed possible witnesses, and Petitioner gave prior
counsel the names of witnesses. Thereafter, Petitioner and prior counsel “had a breakdown
in communication because [Petitioner] felt like [prior counsel] was conspiring with the
District Attorney.” Petitioner explained that the prosecutor had offered “twelve at eighty-
five” because she “knew the case was some nonsense.” The prosecutor also said that
Petitioner’s previous attorneys “had been getting [him] off,” that Petitioner “had been
getting away with murder,” and that she “wanted to see [Petitioner] do some time.”
Petitioner told prior counsel to inform the trial court that the prosecutor “was being
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vindictive in [his] prosecution” because she had threatened to supersede his indictment if
he did not accept the plea offer. Petitioner told prior counsel that “y’all white folks sending
brothers out at an all-time high right now,” prior counsel “got offended,” and Petitioner
and prior counsel “fell out.” Subsequently, prior counsel was relieved as counsel, and lead
counsel was appointed.
Petitioner said that prior counsel visited him in jail before the superseding
indictment was returned but not after. Petitioner said that if prior counsel discussed
potential sentencing exposure with him, “it was on the old indictment,” which charged
Petitioner with Class B felonies instead of the Class A felonies that were charged in the
superseding indictment.
Once lead counsel was appointed, he and Petitioner discussed possible witnesses,
including his aunt, Ms. Martin; his cousin, Prime; his uncle, Dobson; his federal probation
officer, Troy Lanahan; and “the doctor” with whom his son had an appointment. Petitioner
told lead counsel that since he began his relationship with Ms. Waters, Ms. Martin and Ms.
Waters also had a “beautiful relationship” and that Ms. Martin would not lie for him
“because she loves [Ms. Waters] just like she loves me.” Petitioner told lead counsel that
Ms. Martin would “tell [him] the truth, that I lived there and how I – I acted a fool and she
had to come get me.” Petitioner stated that the keys Ms. Martin got from the police had
“several house keys,” including keys to Ms. Waters’ house. Petitioner said that “the court
officer, went and got the keys for me, but I don’t think that [lead counsel] investigated or
he wanted them.” Petitioner last saw the keys when they came out of his pocket on August
27, 2011.
Petitioner said that before trial, he wrote prior counsel a letter saying that they
needed to review the phone calls because Petitioner “felt the State was using false
evidence” against him. Petitioner explained that “the stolen gun that the call is referring to
had been in the property room prior to this incident. It’s been in the property room since
June 18th, 2011, this stolen gun that me and my momma was talking about on the phone.”
The gun was a .45 caliber Kimber 1911. Neither lead counsel nor co-counsel investigated
the property room. Petitioner said that when he brought it to lead counsel’s attention, “he
was so incompetent that he subpoenaed the wrong witness,” who was someone from
“Metro.”
Petitioner said that he was not informed of any trial strategies or possible defenses
by lead counsel. In fact, the only thing lead counsel told him “was that he was not ready,
that the case was too complicated for him and . . . he was fixing to get a continuance.”
Lead counsel conveyed that information the morning of trial. During trial, Petitioner asked
if he could testify, and lead counsel responded that he had no questions to ask Petitioner.
Petitioner did not recall lead counsel or co-counsel discussing evidence that could possibly
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impeach Petitioner if he testified. Petitioner said that lead counsel and co-counsel did not
review anything with him, did not tell him the strengths or weaknesses of the case, and did
not tell him what the State needed to prove to establish Petitioner’s guilt. Petitioner and
lead counsel did not discuss lead counsel filing any pretrial motions. Petitioner did not
know whether lead counsel talked to any witnesses, but he knew prior counsel or the
investigator spoke to witnesses. Petitioner asserted, however, that the witnesses to whom
the investigator or prior counsel spoke were “on the previous indictment.”
Petitioner said that no one explained to him that if he were convicted at trial, the
firearms charge would be mandatorily consecutive to the aggravated burglary charge.
Petitioner said that he had not known the appointment list from Centerstone was going to
be an exhibit at trial. Petitioner said that lead counsel objected to the list at trial, stating
that he had never seen it, but that the State responded it was part of supplemental discovery.
Petitioner said that he received discovery on “the old indictment” but not on the
superseding indictment.
Petitioner said that Ms. Waters alleged she went to Centerstone without an
appointment to escape Petitioner. However, Petitioner said that they were going to
Centerstone without an appointment to pick up medication for his stepdaughter. Petitioner
explained that he raised his shirt when he came in because Ms. Waters said he had a gun.
Before trial, prior counsel allowed Petitioner to read transcripts of the jail calls,
including the one with Petitioner’s mother. Petitioner said that his mother witnessed the
June 18, 2011 altercation but did not witness the July 2011 altercation. He acknowledged,
however, that his mother did not mention the June altercation during the phone call.
Petitioner agreed that lead counsel objected to the admission of Petitioner’s mother’s
statement during the phone call regarding the gun.
Petitioner said that prior counsel advised him of a plea offer before the superseding
indictment but that lead counsel did not advise him of any offers after the superseding
indictment. After the verdict was rendered, lead counsel advised Petitioner “there was a
fifteen at a hundred on the table.” Petitioner said that he would have accepted the offer
because lead counsel had said he was not prepared for trial. Petitioner said, “I felt like he
was handicapped to force me to go to trial. . . . So If he would have broke down and told
me that I’m facing seventy years if I get found guilty based on me taking fifteen years on
this plea, yeah, I would have took it.”
Petitioner acknowledged that he pled guilty to a misdemeanor prior to trial. He
explained that he wanted to accept responsibility for his actions. He stated that if he had
been advised that he was incriminating himself and that it would be used against him at
trial, he would not have entered the guilty plea. Petitioner said that he thought the trial
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court should have advised him that he was incriminating himself by entering the guilty
plea. Petitioner did not know the jury was supposed to learn of the guilty plea because
“[d]idn’t nobody tell me nothing.”
Petitioner said that he thought a bill of particulars should have been filed because
“the indictment never alleged the three magic words, the threat when concerning the
kidnappings of my kids.” Petitioner also noted that the prosecutor told co-counsel she
should have filed for a bill of particulars when co-counsel “brought up the gun issues and
the dangers” in the motion for new trial. Finally, Petitioner said that counsel should have
filed for a bill of particulars because his trial was based on “three indictments.”
Lead counsel did not make any motions or statements to the trial court about charges
on lesser-included offenses. Petitioner did not know anything about lesser-included
offenses at the time of trial.
Petitioner contended that lead counsel should have objected to the dismissal of the
aggravated assault charge. Petitioner alleged that by “dismissing the aggravated assault,
[the State] was denying [Petitioner] White instructions and due process.” Petitioner stated
that the prosecutor dismissed the aggravated assault charge because she thought it would
raise a White issue. Petitioner thought by having the aggravated assault charge dismissed,
he lost one of his defense options. He explained that the jury should have decided whether
the “aggravated assault was incidental to the kidnapping instead of the burglary charge.”
Petitioner said that after lead counsel was relieved as counsel, co-counsel remained
as his attorney. Co-counsel advised Petitioner that “she didn’t know how to do appeals”
but that she wanted to preserve Petitioner’s rights because she thought lead counsel had
“abandoned [him] at a critical stage.” Petitioner was “okay” with co-counsel handling his
motion for new trial. Petitioner said that he did not know what co-counsel’s role in the
trial was supposed to be and that she had joined the defense in a limited capacity. After
co-counsel was relieved, appellate counsel handled the direct appeal. Appellate counsel
advised Petitioner that lead counsel should not have been relieved “because the Supreme
Court ruled that he took an appointment, he should have did it all the way through.”
Appellate counsel told Petitioner that his representation was “handicapped” on direct
appeal because he had not represented Petitioner at trial or on the motion for new trial.
Appellate counsel advised Petitioner that there were many things lead counsel should have
done that he did not do but that appellate counsel would not raise those issues on direct
appeal or else they would be waived on post-conviction.
On cross-examination, Petitioner acknowledged that his initial attorney filed a
motion for discovery and that the attorney provided Petitioner with a copy of the motion
for discovery and a copy of the indictment. Petitioner asked for that attorney to be relieved
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as counsel because he was “racist.” Thereafter, prior counsel was appointed. Petitioner
agreed that prior counsel was polite, hired an investigator, and discussed “the old
indictment” with Petitioner. Prior counsel explained that on the “old indictment,”
Petitioner was charged with aggravated kidnapping, asked Petitioner for the names of any
pertinent witnesses, and talked with the witnesses. Petitioner asked for prior counsel to be
relieved from representation because he refused to tell the trial court that the prosecutor
threatened to seek a superseding indictment if Petitioner refused to accept a twelve-year
plea agreement because a different attorney had represented Petitioner and had been
“getting [him] off.” Petitioner felt that prior counsel was “conspiring” with the State.
Petitioner said that he thought post-conviction counsel was going to call his uncle,
Steve Dobson, to testify that the victim picked Petitioner up from Dobson’s house on the
night Petitioner “allegedly supposed to kick in the door and do all this.” Petitioner also
wanted post-conviction counsel to call his federal probation officer, Troy Lanahan.
Petitioner maintained that the jury knew about Petitioner’s prior convictions because they
listened to his jail phone calls; therefore, the jury knew he had been on federal probation.
Petitioner said, “Why not tell the truth, let the truth come out.” Petitioner stated that
Lanahan would have testified that “while on federal paper,” Petitioner lived at the victim’s
residence and that Lanahan had visited Petitioner at the victim’s residence.
Petitioner acknowledged that the current district attorney had represented him as
defense counsel in previous cases in which Petitioner had pled guilty to felony offenses
and received a sentence. The last time the district attorney was his defense counsel was in
2003. Petitioner acknowledged that he was in custody the entire time his charges were
pending. During his confinement, prior counsel and the prosecutor approached him with
the twelve-year plea offer. Petitioner rejected the offer and told prior counsel, “Go get me
an eight.”
Petitioner said that on either August 27, 30, or 31, 2011, he was at Ms. Waters’
apartment because he “had never left.” Petitioner said that Ms. Waters had keys made for
him at Walmart. On the August date, Ms. Waters left, saying that she was going to put in
a job application. Instead, Ms. Waters called the police so they could serve Petitioner with
a warrant because he was at her house. The warrant was served a month after the
kidnapping incident.
Petitioner said that he did not talk to lead counsel or ask him to get phone records.
Petitioner stated that lead counsel told Petitioner that he was not prepared for trial.
Petitioner claimed that lead counsel “ain’t had no sit-down with me, investigator or
prepared no case for me.” Petitioner thought lead counsel should have interviewed him so
Petitioner could have “walked him through it” and told lead counsel the facts and
circumstances of the case. Petitioner said:
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I could have told him what my testimony was going to be as far as the house
situation with all the stealing and how [Ms. Waters] say that she went for this
job interview. No, she caught me on Facebook with Kelly, and send me to
jail and kept the money in the house.
....
[Lead counsel] didn’t . . . he didn’t interview my Facebook page. If he
interviewed my Facebook page, it would have shown me in the house with
the kids and everything would have came out.
A lot of these things that I feel like if he sit down – the keys. He could have
sent an investigator to the apartment complex to try the keys. None of this
was ever done.
Petitioner acknowledged that he did not tell any of his facts, such as the keys and
his Facebook page, to prior counsel. Petitioner explained that he “lost confidence in both
of them attorneys.” Petitioner said that he told one of his attorneys that Ms. Waters had a
criminal history, then the State started suppressing evidence and denying Petitioner Brady
material. Petitioner said, “They expunged her criminal record prior to trial after I done told
the lawyer she got records.” Petitioner stated that Ms. Waters told his niece “that they
expunged her record.” Petitioner said that Ms. Waters was never asked about her prior
convictions at trial.
Petitioner acknowledged that in one of the jail phone calls, his mother said “what
you expect with a stolen gun and you wouldn’t let them go either.” Petitioner maintained
those statements were “false evidence” and were “highly prejudic[ial]” for the jury to hear
because they had nothing to do with the charges for which he was on trial. Issues regarding
the statements were raised on direct appeal. Petitioner said he was raising the issue on
post-conviction because his “statutory right was violated” because lead counsel should
have filed a motion to redact the phone call.
Petitioner asserted that he did not file a complaint with the Board of Professional
Responsibility against lead counsel but acknowledged that he told lead counsel that he
would file a complaint against him. Petitioner explained that after the trial court denied
lead counsel’s motion for a continuance, he told lead counsel to recuse himself because the
trial court had told Petitioner he could not fire any more attorneys and that if Petitioner
fired lead counsel, the trial court would make Petitioner represent himself. Lead counsel
refused to recuse himself.
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Petitioner said that if lead counsel had advised him of the offer of twelve years at
one hundred percent after the superseding indictment was returned, he would have accepted
it even though he rejected the offer when prior counsel advised him of the offer.
The post-conviction court denied post-conviction relief, and Petitioner appeals.
Analysis
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the
petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy either prong results in the denial
of relief. Strickland, 466 U.S. at 697. Accordingly, if we determine that either factor is
not satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307,
316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). The
burden in a post-conviction proceeding is on the petitioner to prove his allegations of fact
supporting his grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110(f);
see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). The factual findings of the
post-conviction court are binding on an appellate court unless the evidence in the record
preponderates against those findings. Dellinger, 279 S.W.3d at 294. The post-conviction
court's application of law to its factual findings is reviewed de novo with no presumption
of correctness. Calvert, 342 S.W.3d at 485. A claim of ineffective assistance of counsel
presents a mixed question of law and fact that is subject to de novo review with no
presumption of correctness. Id.; Dellinger, 279 S.W.3d at 294; Pylant v. State, 263 S.W.3d
854, 867 (Tenn. 2008).
Review of counsel’s performance “requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689; see also Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). We will not
second-guess a reasonable trial strategy, and we will not grant relief based on a sound, yet
ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790
(Tenn. Crim. App. 2006). Deference to the tactical decisions of counsel applies only if
counsel makes those decisions after adequate preparation for the case. Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
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under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing 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. A reasonable probability is a “probability sufficient
to undermine confidence in the outcome” of the trial. Id. The stronger the proof of guilt
presented at trial, the more difficult it is to prove the prejudice prong of Strickland. When
proof of guilt is overwhelming, proving prejudice is exceedingly difficult. See Proctor v.
State, 868 S.W.2d 669, 673 (Tenn. Crim. App. 1992); Randy Bray v. State, No. M2011-
00665-CCA-R3-PC, 2012 WL 1895948, at *6 (Tenn. Crim. App. May 23, 2012) (finding
that, in light of overwhelming evidence, petitioner could not demonstrate prejudice);
Raymond E. McNeil v. State, No. M2010-00671-CCA-R3-PC, 2011 WL 704452, at *6
(Tenn. Crim. App. Mar. 1, 2011) (finding that overwhelming evidence of guilt precluded
showing of prejudice from admission of item of evidence at trial).
At the post-conviction hearing, Petitioner raised, and the post-conviction court
addressed thirteen claims of ineffective assistance of counsel raised by Petitioner. On
appeal, Petitioner raises eight claims of ineffective assistance of counsel.
Petitioner contends that lead counsel failed to investigate the facts of the case or
interview witnesses. As support for this contention, Petitioner cites lead counsel’s telling
co-counsel on the morning of trial that he was not prepared and would get a continuance.
Petitioner further notes that lead counsel should have had Ms. Martin testify that she had
gotten Petitioner’s keys, including the keys to Ms. Waters’ apartment, from the sheriff’s
department. The State responds that lead counsel investigated the witnesses by reviewing
the written statements of the State’s witnesses, some of which were compiled by prior
counsel and his investigator. The State further responds that Petitioner did not note any
favorable evidence additional investigation would have uncovered.
The post-conviction court concluded that although Petitioner claimed Ms. Martin
should have been called as a witness, Ms. Martin testified that she knew Petitioner to have
a gun and that she had needed to remove Petitioner from Ms. Waters’ residence “after he
refused to leave on his own accord.” The post-conviction court concluded that Ms.
Martin’s testimony “would likely [have] harm[ed]” Petitioner’s case and that lead counsel
was not deficient for not calling her. The post-conviction court also noted that lead counsel
had made strategic decisions not to call other witnesses suggested by Petitioner because
their testimony would have been detrimental to Petitioner’s case. The post-conviction
court accredited the testimony of lead counsel who said that he reviewed the discovery,
including the statements of the State’s witnesses and the photographic evidence, and
conferred with prior counsel. Finally, the post-conviction court found that Petitioner failed
to establish any evidence that further investigation could have uncovered. Although the
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post-conviction court noted that Ms. Martin obtained Petitioner’s keys, which included a
key to Ms. Waters’ apartment, the court also noted that Petitioner did not live in Ms.
Waters’ apartment nor did he have an open invitation to come to her apartment. The record
does not preponderate against the findings of the post-conviction court. The Petitioner has
failed to establish that lead counsel was deficient or that Petitioner was prejudiced by any
alleged deficiency. He is not entitled to relief in this regard.
Petitioner contends that lead counsel failed to “prepare cross examination of State’s
proof.” Specifically, Petitioner contends that lead counsel failed to investigate
Centerstone’s appointment lists to discover that “there was no scheduled appointment on
July 22, 2011.” Moreover, Petitioner testified that there were reasons for the family to
make an unscheduled visit to Centerstone. The State responds that although lead counsel
had not seen the Centerstone records that were introduced at trial to corroborate the
victim’s testimony that none of her family members had an appointment at the facility that
day, the records did not create a new argument or prosecutorial strategy.
The post-conviction court found that lead counsel did not see the Centerstone
appointment list prior to trial. The post-conviction court noted that even if such
representation was deficient, Petitioner failed to prove that lead counsel’s actions resulted
in prejudice. The post-conviction court said “that even if the Petitioner could have shown
a legitimate reason for being at Centerstone that day, it would not explain why he entered
the building a few minutes after the family, conspicuously lifted his shirt to show that he
was unarmed, and then disappeared before the police arrived.” Moreover, we note that
lead counsel testified that Petitioner never advised him that the family had a legitimate
reason for making an unscheduled visit to Centerstone. Instead, Petitioner “told [lead
counsel] he just wanted the people at Center[s]tone to see that he did not have a gun.” The
evidence does not preponderate against the findings of the post-conviction court. The
Petitioner has failed to establish that he was prejudiced by any alleged deficiency. He is
not entitled to relief in this regard.
Petitioner contends that lead counsel failed to file pretrial motions. Specifically,
Petitioner claims that lead counsel should have filed a motion to redact statements by
Petitioner’s mother made during jail phone calls referring to a gun. Petitioner alleges that
the references to the gun concerned “a previous incident where this firearm was collected
in the June 18, 2011 incident” but that the context was not explained to the jury. The State
responds that lead counsel properly objected to the admission of the unredacted jail phone
calls on the grounds of relevance and undue prejudice. The State further responds that
Petitioner failed to establish prejudice, noting that this court found the failure to redact the
phone call to be harmless error.
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The post-conviction court found that prior counsel filed the proper pretrial motions
relating to the jail phone calls. Lead counsel contemporaneously objected to the phone
calls and requested that the reference to the “stolen firearm” be redacted. Accordingly, the
post-conviction court concluded that lead counsel was not deficient. The record does not
preponderate against the findings of the post-conviction court. Further, we note that on
direct appeal, this court ruled that the trial court erred by refusing to redact the jail phone
call but held that the error was harmless because
[t]he record reflects that Waters and K.W. both testified that [Petitioner] had
a gun on July 22. Moreover, when [Petitioner] entered Centerstone, he
conspicuously lifted his shirt and hands, without being prompted, to show
that he did not bring any weapons into the facility. Finally, the defense
strategically chose to allow the jury to hear and see highly prejudicial
evidence regarding [the Petitioner’s] use of violence against Waters on July
23, despite his pleading guilty to domestic assault before trial. Thus, when
considering the whole record, we conclude that the trial court’s error did not
affect the outcome of the trial.
Mark Brian Dobson, 2016 WL 7212574, at *10 (footnote omitted). Thus, Petitioner
suffered no prejudice as a result of the alleged deficiency. Petitioner is not entitled to relief.
Petitioner contends that lead counsel failed to “preserve a defense pursuant to State
v. White, 382 S.W.3d 559 (Tenn. 2012).” Petitioner contends that the State initially
charged Petitioner with one count of aggravated assault but dismissed that count prior to
trial because the prosecutor was concerned about a potential White issue. Petitioner
contends that the State dismissed the aggravated assault charge to deprive Petitioner “of a
defense under White” to the charges of the especially aggravated kidnapping of Ms. Waters
and her children. The State responds that lead counsel properly preserved defenses. The
State observes that regardless, counsel of record would have been “forced to weigh[] the
preservation of a potential White defense against dismissal of a serious criminal charge.”
We note that White addresses whether a robbery, rape, or assault conviction,
accompanied by a separate kidnapping conviction, gives rise to due process concerns. State
v. Alston, 465 S.W.3d 555, 561 (Tenn. 2015). In White, our supreme court held that the
due process concerns were satisfied when a jury was instructed that they must determine
“whether the removal or confinement is, in essence, incidental to the accompanying felony
or, in the alternative, is significant enough, standing alone, to support a conviction.” White,
362 S.W.3d at 578. As such, White concerns the necessity for a jury instruction and
whether the evidence was sufficient to satisfy the White requirements; it does not concern
a defense.
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Moreover, as the post-conviction court noted, the State has “broad discretion over
the control of criminal prosecutions.” State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000).
Accordingly, it was within the State’s discretion to decide on which counts to prosecute
Petitioner. We agree with the post-conviction court that “it is not unreasonable that [lead]
counsel would make no objection to the State’s decision to dismiss a count against
[Petitioner].” The evidence does not preponderate against the findings of the post-
conviction court. The Petitioner has failed to establish that lead counsel was deficient or
that Petitioner was prejudiced by any alleged deficiency. He is not entitled to relief in this
regard.
Petitioner contends that lead counsel was ineffective by failing to discuss mandatory
consecutive sentencing with him. The State responds that lead counsel was not ineffective
in discussing sentencing with Petitioner. Initially, the State contends that this claim is
waived because Petitioner failed to raise the issue in any of his post-conviction petitions,
Petitioner failed to make a “formal argument” on this claim during the post-conviction
hearing, and the trial court failed to make a legal ruling regarding this claim. Regardless,
the State contends that Petitioner failed to show prejudice.
We have examined Petitioner’s post-conviction petitions and can find no mention
of a complaint regarding lead counsel’s failure to discuss mandatory consecutive
sentencing with him. During the post-conviction hearing, Petitioner and his attorney made
a few brief mentions of consecutive sentencing but failed to make any arguments
concerning this issue. “[I]ssues not addressed in the post-conviction court will generally
not be addressed on appeal.” Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (citations
and internal quotation marks omitted). Generally, this court “may only consider issues that
were not formally raised in the post-conviction petition if the issue was argued at the post-
conviction hearing and decided by the post-conviction court without objection.” Id. The
post-conviction court did not address this issue in its order denying post-conviction relief.
We conclude that this issue has been waived. Id.Petitioner contends that lead counsel was ineffective by advising him to plead guilty
“to a single count during the trial” and by failing to inform Petitioner of the consequences
of his plea. Petitioner explains that he was indicted for and pled guilty to a misdemeanor
domestic assault that occurred on July 23, 2011, the day after the majority of the more
serious crimes occurred on July 22, 2011. Petitioner maintains that the evidence of the
domestic assault “was extremely prejudicial, and served no probative value to the case”
and instead presented negative character evidence. The State responds that lead counsel
advised Petitioner to plead guilty to domestic assault in order to establish credibility with
the jury by showing he was willing to admit when he had done something wrong.
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Generally, a guilty plea must be a “voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S.
25, 31 (1970). To establish ineffective assistance of counsel in the context of a guilty plea,
“the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59
(1985). The post-conviction court found that Petitioner testified that he pled guilty because
he wanted to take responsibility and that he pled guilty whenever he was guilty. The post-
conviction court accredited lead counsel’s testimony that he advised Petitioner to plead
guilty to establish credibility with the jury. The post-conviction court noted that “[d]uring
closing arguments, defense counsel argued that [Petitioner] pled guilty to the July 23
offense because he ‘accepted his responsibility for his wrongdoing. . . . [B]ut he
vehemently and consistently denied kidnapping Ms. Waters or his children or any of the
children consistently.’” Mark Brian Dobson, 2016 WL 7212574, at *10 n.1. “In
addressing attorney performance, courts must be mindful not to second guess tactical and
strategic choices pertaining to defense matters or to measure a defense attorney’s
representation by 20–20 hindsight.’” Cauthern v. State, 145 S.W.3d 571, 600 (Tenn. Crim.
App. 2004) (citations and internal quotation marks omitted). The post-conviction court
also found that lead counsel’s advice to plead guilty was reasonable in light of the
substantial evidence against Petitioner on the domestic assault charge. Based upon the
foregoing, the post-conviction court concluded that Petitioner failed to establish that lead
counsel was deficient. The record does not preponderate against the findings of the post-
conviction court. The Petitioner has failed to establish that lead counsel was deficient or
that Petitioner was prejudiced by any alleged deficiency. He is not entitled to relief in this
regard.
Petitioner contends that co-counsel was ineffective by failing to preserve issues for
appeal. Petitioner maintains that co-counsel represented Petitioner at the motion for new
trial solely to preserve Petitioner’s right to appeal. He argues that while she was well-
meaning, her motion for new trial “was not based on an informed investigation of the facts
relevant to the Motion for New Trial and Direct Appeal . . . . The issues presented on
Direct Appeal would have vastly improved with a proper investigation of the jail call issue,
for example.” In other words, Petitioner asserts that co-counsel ineffectively preserved his
appellate issues at the motion for new trial. The State responds that Petitioner’s appellate
issues were properly preserved. The State notes that co-counsel raised ten issues in the
motion for new trial and amended motion for new trial. The State further notes that
Petitioner does not specify any issues that co-counsel should have preserved but did not
preserve. We agree with the State. Petitioner fails to identify which issues should have
been raised and makes no argument on how co-counsel’s failure was deficient and
prejudicial. See e.g., Carpenter v. State, 1236 S.W.3d 879 (Tenn. 2004). This issue is
therefore waived. See Tenn. R. App. P. 27(a)(7); Tenn. Crim. App. R. 10(b).
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The post-conviction court stated that “Petitioner argues that his Direct Appeal was
ineffective because [lead] counsel failed to make proper and timely objections and
motions.” However, on appeal, Petitioner challenges the efficacy of co-counsel. “A party
is bound by the evidentiary theory argued to the post-conviction court and may not change
or add theories on appeal. We are not required to address issues raised for the first time on
appeal.” Joseph Sanford McNair, Jr. v. State, No. E2021-00219-CCA-R3-PC, 2022 WL
2115087, at *8 (Tenn. Crim. App. June 13, 2022) (citations omitted). This issue is waived.
Finally, Petitioner contends that he is entitled to post-conviction relief due to the
cumulative effect of the errors of counsel. The State responds that Petitioner was not able
to establish cumulative error because he was not able to show more than one error occurred.
We agree with the State. State v. Hester, 324S.W.3d 1, 76 (Tenn. 2010). Petitioner is not
entitled to relief in this regard.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
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