Darin Woods v. State of Tennessee ( 2022 )

11/22/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2022
DARIN WOODS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 14-03680 Paula L. Skahan, Judge
No. W2021-01332-CCA-R3-PC
The Petitioner, Darin Woods, appeals from the Shelby County Criminal Court’s denial of
his petition for post-conviction relief from his convictions for attempted second degree
murder, attempted aggravated robbery, aggravated robbery, and employing a firearm
during the commission of a dangerous felony, for which he is serving an effective
twenty-seven year sentence. On appeal, the Petitioner contends that the post-conviction
court erred in denying relief on his ineffective assistance of counsel claim. We affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which J. ROSS
DYER and TOM GREENHOLTZ, JJ., joined.
Shae Atkinson, Memphis, Tennessee, for the appellant, Darin Woods.
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On April 18, 2014, the Petitioner participated in the robbery of Devin and Dedrick
Bradley.1 The Petitioner and his cousins, Rodney Fleming and Sanders Malone, lured
Devin and Dedrick to the back of an apartment complex where Mr. Fleming and the
1
Because the two victims share a common surname, we will refer to them by their first names. No
disrespect is intended.
Petitioner, brandishing a gun, told them to hand over their money and the keys to their
car. In response, Dedrick and Devin ran, and the Petitioner shot Devin in the back. Mr.
Malone was not present for the shooting but heard shots and picked up Mr. Fleming in
his Jeep. Later, Mr. Malone met with Mr. Fleming and the Petitioner at the Petitioner’s
brother’s house, where Mr. Malone learned about what had happened. Law enforcement
officers developed suspects, including Mr. Malone, after Mr. Malone’s mother called the
police. Mr. Malone implicated Mr. Fleming and the Petitioner in the incident. Devin
identified the Petitioner from a photograph lineup as the shooter and later testified to that
fact at trial. The Petitioner testified at trial, denying his involvement in the robbery of the
Bradley brothers and the shooting. State v. Darin Woods, No. W2016-01486-CCA-R3-
CD, 2017 WL 2820126, at *1-3 (Tenn. Crim. App. June 29, 2017), perm. app. denied
(Tenn. Nov. 20, 2017).
On April 30, 2018, the Petitioner filed a timely pro se petition for post-conviction
relief. The post-conviction court dismissed the petition, and the Petitioner appealed.
This court reversed the judgment of the post-conviction court and remanded the case for
the post-conviction court to determine whether counsel should be appointed or whether
the Petitioner should be permitted time to retain private counsel. See Darin Woods v.
State, No. W2019-00514-CCA-R3-PC, 2020 WL 864160, at *2 (Tenn. Crim. App. Feb.
19, 2020). Upon remand, the post-conviction court appointed post-conviction counsel.
As relevant to this appeal, the Petitioner, in his petition, alleged that he received the
ineffective assistance of trial counsel as counsel failed to challenge a photograph lineup
and failed to investigate a prosecutorial misconduct claim.
At the post-conviction hearing, trial counsel testified that he had practiced law for
more than fifteen years at the time he represented the Petitioner and that the majority of
his cases were criminal defense. Counsel said the Petitioner’s case was difficult because
several eyewitnesses, including the Petitioner’s own family members, placed the
Petitioner at the scene of the crime. When asked about his trial strategy, counsel said that
he attempted to discredit the witnesses’ testimony and to suggest that the codefendants
were conspiring against the Petitioner. Counsel said he hired an investigator to assist
with the investigation and the Petitioner’s defense.
Trial counsel testified that he reviewed all the discovery with the Petitioner and
met with the Petitioner a minimum of ten times before trial. He said he and the Petitioner
discussed trial strategy “numerous times,” including discussing the complaint, the
photograph lineup, and the other discovery provided by the State. He said he conveyed
the State’s plea offer, which he thought was twenty-four years, to the Petitioner and
discussed its pros and cons. Counsel said that he recommended the Petitioner accept the
offer. Counsel said he also talked to the Petitioner about any lesser included offenses for
which the Petitioner could be convicted at trial.
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Trial counsel testified that he communicated with the Petitioner’s family. He said
the Petitioner’s mother shared her ideas about the case with counsel. He said he
contacted the Petitioner’s sister, who lived in Boston, regarding the case and about her
serving as a possible alibi witness, but she was unable to confirm that the Petitioner was
with her at the time of the crimes. Counsel said that, as a result, he elected not to call the
sister as an alibi witness. Counsel stated that he told the Petitioner an alibi defense based
on his sister’s testimony would not work at trial.
Trial counsel testified that he had no problems communicating with the Petitioner.
Counsel related his experiences working with criminal defendants, including those who
suffered from mental illness, and stated he did not believe a mental health examination
was warranted. Counsel said that he and the Petitioner discussed at length whether he
should testify at trial and that when the Petitioner indicated he intended to testify, counsel
worked with the Petitioner in preparing his trial testimony. Counsel stated that he
thought he did everything he could have done to defend the Petitioner.
The Petitioner testified that trial counsel gave him copies of discovery and met
with him several times at the jail where they discussed the case. The Petitioner said he
was aware of the State’s plea offer of twenty-four years and was aware counsel
recommended he accept the offer. The Petitioner said he also understood from counsel
that four people planned to testify against him and place him at the scene of the crimes.
He said counsel believed he would be found guilty based upon the witnesses’ testimony.
The Petitioner testified that he was with his sister at the time of the crimes.
Although he believed his sister would be called at trial as an alibi witness, he
acknowledged she could not confirm he had been with her. The Petitioner stated he still
would have gone to trial even if he had known ahead of time that his sister would not be
called as an alibi witness.
The Petitioner testified that his cousin, Mr. Malone, identified him during a police
interview and later at trial. The Petitioner said he was aware that the victim, Devin
Bradley, identified him in a photograph lineup the day before Mr. Malone’s statement.
The Petitioner said law enforcement did not have probable cause to include his
photograph in the lineup prior to Mr. Malone’s statement and that counsel should have
challenged the lineup.
On cross-examination, the Petitioner acknowledged that he was aware of the
charges against him, his codefendants’ statements implicating him in the crimes, the
problems with his alibi defense, the timing of Mr. Malone’s statement and the photograph
lineup, and the contents of the discovery. The Petitioner stated his prosecutorial
misconduct allegation related to his being placed in a photograph lineup the day before
Mr. Malone made his formal police statement.
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At the post-conviction hearing, the prosecutor told the court that before the
Petitioner was included in the photograph lineup, law enforcement officers had been
investigating the shooting and had interviewed victims who provided descriptions of
potential suspects.
The post-conviction court denied relief. The court found that trial counsel did not
perform deficiently by failing to challenge the photograph lineup identifying the
Petitioner as a suspect because the Petitioner “failed to show how there was no probable
cause” and that counsel did not perform deficiently by failing to discuss prosecutorial
misconduct with the Petitioner, as there was no evidence of any misconduct.
On appeal, the Petitioner contends that trial counsel was ineffective for failing to
challenge the inclusion of his photograph in a lineup because law enforcement lacked
probable cause to believe the Petitioner was involved in the shooting at that time. He
argues that “he should not have been placed in a photo lineup until . . . someone made
him a suspect – not before.” The Petitioner also contends that counsel was ineffective for
“not investigating prosecutorial misconduct and pursuing that as part of his defense.”
The Petitioner argues that the fact he was included in the photograph lineup “before [he]
was a suspect” is evidence of prosecutorial misconduct. The State contends that the
Petitioner waived his ineffective assistance claims for failing to provide any legal
authority in support of his arguments or, alternatively, that trial counsel’s performance
was not deficient and did not prejudice the Petitioner. See Tenn. Ct. Crim. App. R. 10(b);
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2018). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2018). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). The Tennessee Supreme Court has applied the Strickland standard to an
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accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.The Petitioner argues that law enforcement needed probable cause to include his
photograph in a lineup before Mr. Malone’s statement implicating the Petitioner in the
crimes was made and that trial counsel was ineffective for not challenging the lineup.
The constitutional limitation regarding the use of photograph lineups is that they cannot
be “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Neil v. Biggers, 409 U.S. 188, 197 (1972) (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)); see Bennett v. State, 530 S.W.2d 511 (Tenn.
1975). However, the Petitioner has not alleged that the photograph lineup was
impermissibly suggestive, nor has he cited to any legal authority supporting his argument
that probable cause was required before the Petitioner’s photograph could be placed in a
photograph lineup. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported
by argument, citation to authorities, or appropriate references to the record will be treated
as waived in this court.”). This issue is waived.
The Petitioner also contends that trial counsel was ineffective for “not
investigating prosecutorial misconduct and pursuing that as part of his defense.” The
Petitioner argues that the fact his picture was included in the photograph lineup before he
was a suspect is evidence of prosecutorial misconduct. To prevail on this claim, the
Petitioner must prove by clear and convincing evidence that counsel’s failure to
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investigate the events resulting in the photograph lineup was deficient and prejudiced the
defense. See Strickland, 466 U.S. at 687; T.C.A. § 40-30-110(f) (2018). The Petitioner
has not presented any evidence to show that an investigation into the photograph lineup
would have resulted in discovery of evidence of prosecutorial misconduct. The post-
conviction court found that counsel did not perform deficiently, and the evidence does
not preponderate against its finding. The Petitioner is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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