Delshun Jones v. State of Tennessee ( 2021 )

07/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 27, 2021
DELSHUN JONES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 12-04777 Glenn Ivy Wright, Judge
___________________________________
No. W2020-00994-CCA-R3-PC
___________________________________
Petitioner, Delshun Jones, appeals from the denial of his petition for post-conviction relief,
in which he alleged that he received ineffective assistance of counsel at trial. Following
an evidentiary hearing, the post-conviction court denied the petition. Having reviewed the
entire record and the briefs of the parties, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Post-Conviction Court
Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and J. ROSS DYER, JJ., joined.
Terrell L. Tooten, Cordova, Tennessee, for the appellant, Delshun Jones.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Trial
The facts underlying Petitioner’s conviction were summarized by a panel of this
Court on direct appeal. State v. Delshun Jones, No. W2015-00156-CCA-R3-CD, 2016 WL
1563087, at *1-5 (Tenn. Crim. App. Apr. 15, 2016), perm. app. denied, not for citation
(Tenn. Sept. 23, 2016). Petitioner was charged with the shooting death of the victim,
Samuel Wilkes, Jr., “outside a birthday party on Easter Sunday, April 8, 2012.” Id. at *1.
Four people who attended the party testified that they heard Petitioner admit to having shot
the victim.
The birthday party was for the son of Tina Jones. Ms. Jones testified that she was
standing on the porch when Petitioner drove up and asked for Marco Crawford. She saw
Petitioner and Mr. Crawford walk down the driveway together, and she went back inside.
She testified that “[s]ometime later, the children ran into the house and told her that
someone was shooting outside.” Id. at *2. Mr. Crawford testified that he spoke to
Petitioner, and Petitioner told him that he wanted to “get up” or “catch up” with the victim.
Id. Ashlye Bowden testified that she saw Petitioner outside the party in his car at around
3:30 that afternoon.
Later that evening, at around 11:00 p.m., Ms. Bowden, Eric Velez, and Tina Jones
went with Ms. Bowden’s brother, Marco Crawford, to Mr. Crawford’s grandmother’s
house in Mr. Velez’s truck. Id. at *1. When they arrived, Mr. Crawford went inside while
the others remained in the vehicle. While Mr. Crawford was inside, Petitioner approached
the truck and told them that he had shot the victim five times. Id. Petitioner said, “I had
to get him, bro. The n**** called my phone wolfing up at me something about you know
what I say – I stay. I caught him loafering. I told my n**** lean back and popped his ass
five times.” Id. Petitioner said that the victim told him, “[N]**** you know where I stay
at.” Id. Petitioner did not say why he shot the victim, only that the victim had called him
and they had argued over the phone. Id. Ms. Bowden testified that Petitioner was bragging.
Id.Mr. Velez testified that Petitioner told him that “he rode up on [the victim], got his
attention. I guess he looked down. He let five shots go. Said he wanted to get out and
continue I guess to shoot him.” Id. at *2. Ms. Jones testified that she heard Petitioner say,
“When I seen [the victim] walk down the driveway and I hollered hey, and he bent down
and looked and I shot him.” Ms. Jones testified that Petitioner did not say why he shot the
victim, but that he elaborated that “[h]e shot [the victim] four times and he wanted to stand
over and keep shooting him.” Id. When interviewed by police, Petitioner denied any
involvement in the shooting. He denied having known the victim and having ever been in
the area of the shooting. Id. at *4. Cell phone records indicated that several calls were
made between Petitioner and the victim shortly before the shooting. Id.Carl Allen, a former cellmate of Petitioner and a “jailhouse lawyer,” testified that
Petitioner admitted to him that he saw the victim leaving the birthday party and that he shot
the victim with a .40 caliber pistol while the victim was sitting in a parked vehicle. Id. at
*3. Mr. Allen testified that Petitioner told him what happened “in a bragging tone and
‘wasn’t worried about the case to the degree that he felt like he would be convicted of it.’”
Id. Mr. Allen acknowledged that he sent a letter to the prosecutor in Petitioner’s case
-2-
offering to testify against Petitioner, as well as another inmate. He testified that although
he “hope[d] to get some type of leniency . . . as a result of coming forward,” the prosecutor
“ha[d] made it clear that there [were] no agreements in exchange for [his] testifying.” Id.Based on the proof presented at trial, a jury convicted Petitioner of first degree
premeditated murder. The trial court sentenced Petitioner to life imprisonment. A panel
of this Court affirmed Petitioner’s conviction and sentence on direct appeal. Id. at *1.
Post-conviction Proceeding
Petitioner timely filed a pro se petition seeking post-conviction relief, alleging that
he received ineffective assistance of counsel at trial. Petitioner was appointed post-
conviction counsel, and he filed an amended petition. Petitioner alleged that: 1) trial
counsel “failed to file a timely [m]otion to [s]uppress the evidence surrounding the cell
phone records prior to trial”; 2) trial counsel was ineffective for failing to request a special
jury instruction that the State must prove corroboration of Petitioner’s statements; 3) the
trial court’s instruction to the jury on premeditation was improper; 4) Petitioner “was
excluded from proceedings involving witness Marco Crawford[,]” a witness for the
prosecution at Petitioner’s trial, and the jury should have been instructed as such “so that
the jurors could have had a meaningful way to evaluate and weigh the evidence in
[Petitioner’s] case; 5) “the trial court . . . allowed information regarding a crime stopper
tip[,]” and the jury should have been instructed “that it was hearsay”; and 6) Petitioner was
denied due process of the law because the prosecutor failed to disclose its agreement with
Carl Allen, a key witness against Petitioner.
At the evidentiary hearing, trial counsel testified that he was retained to represent
Petitioner at trial. At the time of Petitioner’s trial, counsel had been practicing law for 37
years and had handled “[d]ozens” of first degree murder cases. Trial counsel testified that
his strategy was “[t]o try to have him acquitted” and “our defense was that he was not
responsible[.]” Trial counsel had not reviewed his file and did not recall much about
Petitioner’s trial and “defer[red] to the record” many times throughout his testimony at the
post-conviction hearing. Trial counsel did not recall requesting any specific jury
instructions in Petitioner’s case, but counsel acknowledged, “[I]f the instruction was faulty,
I should’ve made an objection.”
Trial counsel recalled that Mr. Allen had “a lengthy criminal record and a good
number of cases either pending or a number of cases that he was doing time on, one or the
other.” During his cross-examination of Mr. Allen, trial counsel tried to show “his bias in
regard to a motive to tell a falsehood to try to gain favor for himself.” Trial counsel recalled
that Mr. Allen had gained access to Petitioner’s discovery material, but trial counsel could
not recall whether he questioned Mr. Allen about his access to Petitioner’s discovery
-3-
material or whether Mr. Allen received a deal from the State in exchange for his testimony.
Trial counsel testified, “[I]t is commonplace in Shelby County practice that when an
individual cooperates with the State that there is no firm deal in place. Even though there’s
no firm deal in place, the argument is that there is a hope for a deal.” Trial counsel testified,
“I believe that I asked if there were any deals and was told no.” Trial counsel recalled that
Mr. Allen was released from incarceration “some time later” after he testified against
Petitioner.
Petitioner testified that he believed that Mr. Allen entered into a plea deal with the
State in exchange for his testimony at Petitioner’s trial. Petitioner testified Mr. Allen was
a “jailhouse attorney” and that while they were incarcerated together, Mr. Allen requested
to see Petitioner’s discovery materials. Petitioner acknowledged that Mr. Allen filed a
motion to dismiss on Petitioner’s behalf. Petitioner believed that Mr. Allen based his
testimony on what he learned from Petitioner’s discovery file and not what Petitioner told
him about the case. Petitioner could not “specifically say what happened with [Mr.
Allen’s] charges,” but Petitioner recalled that Mr. Allen “was released right after
[Petitioner] lost at trial.”
Post-conviction Court’s Findings and Conclusions
In a written order denying relief, the post-conviction court addressed each of
Petitioner’s multiple claims of ineffective assistance of counsel and instances of alleged
trial court errors. Regarding Petitioner’s claim that trial counsel failed to request a jury
instruction that the State was required to corroborate Petitioner’s confession, the post-
conviction court noted, “While there must be corroboration of a defendant’s confession,
this threshold is low.” The post-conviction court found that the State introduced sufficient
evidence to corroborate Petitioner’s confession and that “it was up to the jury to determine
whether to believe Petitioner’s statements.” The post-conviction court also noted that the
trial court instructed the jury that it was up to the jury to determine what weight it should
give Petitioner’s statement. The court found, “[w]hile this is not the exact jury instruction
that [P]etitioner asserts should have been requested, this instruction properly informs the
jury that it is the jury’s decision to determine the truth of Petitioner’s statements.”
The post-conviction court addressed Petitioner’s allegation that the following
instruction to the jury on premeditation was improper: “If the design to kill was formed
with premeditation, it is immaterial that the accused may have been in a state of passion or
excitement when the design was carried into effect.” The post-conviction court found that
Petitioner mischaracterized the instruction and that, “[t]aken as a whole,” the instruction
on premeditation “inform[ed] the jury that it [wa]s to consider whether the accused had the
intent to kill the victim prior to the act itself” and “that excitement or passion does not erase
a presently held intent to kill that was formed before the act occurred.” The post-conviction
-4-
court found that the instruction was a settled principle of law, followed the Tennessee
Pattern Jury Instructions, and did not mislead the jury.
Regarding Petitioner’s allegation that trial counsel was ineffective for failing to file
a pretrial motion to suppress his cell phone records, the post-conviction court found that
trial counsel made an oral motion, although untimely, to suppress the records, and the trial
court heard arguments on the issue. The issue was also raised on direct appeal, and a panel
of this Court concluded that the introduction of the cell phone records did not prejudice
Petitioner because they were introduced only to show “when calls were made to and from
various phone numbers, as well as the probable directions the calls were coming from and
received.” Delshun Jones, 2016 WL 1563087, at *9. Regarding Petitioner’s claim that the
jury should have been instructed that “the cell phone records in this case were obtained
contrary to the law,” the post-conviction court found “no basis under the law for issuing
such an instruction.” The court additionally found no basis in the law for a jury instruction
that Petitioner was excluded from proceedings involving Marco Crawford. The court again
noted that the jury was properly instructed that it was to determine the weight of all the
evidence. Regarding Petitioner’s claim that the jury should have been instructed that one
of the witness’s statement was hearsay and should not have been used to determine
Petitioner’s guilt, the post-conviction court found that there was again no basis in the law
for giving such an instruction because “[w]hether a statement is hearsay is a legal question
determined by the trial court.”
Regarding Petitioner’s allegation that he was denied a fair trial because the State
failed to disclose its agreement with the State’s witness Carl Allen, the post-conviction
court found that Petitioner presented no proof at the post-conviction hearing that an
agreement between the State and the witness existed. The court found, “Petitioner only
presented his belief that there was an agreement because the witness, who was in custody
at the time of Petitioner’s trial, was released shortly after the witness testified.”
The post-conviction court concluded that Petitioner failed to establish that trial
counsel’s performance was deficient or that Petitioner was prejudiced by trial counsel’s
alleged deficiencies. This appeal followed.
Analysis
On appeal, Petitioner contends that the post-conviction court erred by denying his
petition. He asserts that his trial counsel was ineffective and complains about several of
the trial court’s jury instructions. The State responds that the evidence supports the post-
conviction court’s denial of relief.
-5-
Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petitioner has
the burden of proving his factual allegations by clear and convincing evidence. Id. § 40-
30-110(f). 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 v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to
an 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.Jury Instructions
-6-
Petitioner contends that his trial counsel should have requested several special jury
instructions, including an instruction on corroboration of Petitioner’s statements; an
instruction on the admissibility of cell phone evidence; an instruction regarding Petitioner’s
exclusion from Marco Crawford’s criminal proceedings; and an instruction that a witness’s
testimony about a crime stopper tip was hearsay. Petitioner also challenges the trial court’s
instruction on premeditation.
A trial court in a jury case is obliged to provide a “complete charge of the law
applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986);
see also Tenn. R. Crim. P. 30(d)(2). “‘Jury instructions must be reviewed in their entirety.
Phrases may not be examined in isolation.’” State v. James, 315 S.W.3d 440, 446 (Tenn.
2010) (quoting State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge “is erroneous
if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”
James, 315 S.W.3d at 446 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn.1997)).
Whether a conviction should be reversed on the basis of an erroneous jury instruction is
determined by “‘whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Rimmer, 250 S.W.3d at 31.
Petitioner has not shown that the jury instructions failed to fairly submit the legal
issues or were misleading to the jury. The post-conviction court noted that Petitioner
“mischaracterized” the instruction on premeditation and that, when “[t]aken as a whole,”
the premeditation instruction “inform[ed] the jury that it [wa]s to consider whether the
accused had the intent to kill the victim prior to the act itself.”1 Petitioner asks this Court
to examine a phrase in isolation. The post-conviction court properly reviewed the
instruction in its entirety and concluded that the instruction conveyed a “settle[d] principle
of law[,]” citing Baxter v. State, 503 S.W.2d 226, 229 (Tenn. Crim. App. 1973 (holding if
premeditation exists, it is immaterial that the defendant was in a passion when that design
was executed.). The post-conviction court explained, “[t]his instruction informs the jury
that excitement or passion does not erase the presently held intent to kill that was formed
before the act occurred.”
Next, Petitioner asserts that trial counsel was ineffective for failing to request a jury
instruction that the State is required to prove corroboration of Petitioner’s statements. The
post-conviction court found that the State introduced sufficient evidence to corroborate
Petitioner’s statements, noting that the State “only needs slight evidence to corroborate a
defendant’s statement.” The court found that in addition to Petitioner’s statements, the
State introduced testimony from “witnesses [who] identified Petitioner and stated that he
1
We note that the jury instructions are not included in the record before us; however, the post-
conviction court’s order states the full instruction on premeditation.
-7-
was in the vicinity at the time of the incident.” The court also found that the jury was
specifically instructed,
[I]f an oral or written statement given by the defendant has been proven in
this case, you may take it into consideration with all the other facts and
circumstances proven in the case. In considering the statement, it is for you,
the Jury, to say what weight you will give the statement. You may believe
any part of the statement or disbelieve any part of it, and you may believe the
whole statement, or disbelieve it in its entirety.
We recognize, as did the post-conviction court, that the instruction above does not
instruct the jury that a defendant’s extrajudicial statement must be corroborated by
independent proof. Tennessee follows “the long-established common-law rule that a
person cannot be convicted of a crime solely on the basis of an uncorroborated extrajudicial
confession.” State v. Frausto, 463 S.W.3d 469, 479-80 (Tenn. 2015). Adequate
corroboration must satisfy the modified trustworthiness standard. State v. Bishop, 431
S.W.3d 22, 59-60 (Tenn. 2014). Under this standard, an offense involving a tangible injury
requires the State to provide “substantial independent evidence tending to show that the
defendant’s statement is trustworthy, plus independent prima facie evidence that the injury
actually occurred.” Id. at 60. Admissions, like confessions, must also be corroborated. See
id. at 58-59.
We disagree with the post-conviction court’s conclusion that an instruction on
corroboration was not necessary when corroborating evidence existed. See United States
v. Adams, 583 F.3d 457, 469 (6th Cir. 2009) (holding that it was error for the district court
to refuse an instruction on corroboration despite the existence of corroborating evidence)
(citing United States v. Marshall, 863 F.2d 1285, 1288 (6th Cir. 1988)). However, even if
trial counsel provided deficient performance in failing to request a special jury instruction,
we must determine whether the deficiency resulted in prejudice. Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006) (citing Strickland, 466 U.S. at 687; Baxter, 523 S.W.2d at
936). The post-conviction court concluded that Petitioner was not prejudiced by trial
counsel’s failure to request the instruction. The Tennessee Supreme Court has held that
“the analytical framework for the prejudice inquiry at post-conviction mirrors the harmless
error inquiry on direct appeal” in an ineffective assistance of counsel case based on an
erroneous jury instruction. Moore v. State, 485 S.W.3d 411, 421 (Tenn. 2016) (citing State
v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002)). In Moore, our supreme court held that
the prejudice inquiry turns on “whether a reasonable probability exists” that a properly
instructed jury would have reached a different conclusion, given the correct instruction.
Id. In analyzing the sufficiency of the convicting evidence on direct appeal, a panel of this
Court noted that “several witnesses placed [Petitioner] in the vicinity of the shooting[.]”
Delshun Jones, 2016 WL 1563087, at *6. Petitioner’s conviction was based on more than
-8-
just his statements. Thus, we conclude that Petitioner was not prejudiced by trial counsel’s
failure to request a special instruction.
Petitioner also contends that the trial court should have instructed the jury on various
matters for which the post-conviction court concluded there was no legal basis to support
such an instruction. Petitioner argues that “the jurors should have been told that the cell
phone records were obtained contrary to the law,” that Petitioner was not “allowed to attend
the court proceedings regarding Marco Crawford,” and that testimony about a crime
stopper tip was hearsay.
Petitioner summarily claims that “[b]oth trial counsel and appellate counsel failed
to highlight these concerns, which have appeared to significantly prejudice Petitioner, and
caused him to be convicted of the charges against him.” However, Petitioner provides no
further factual support or legal authority for his claim of prejudice. Petitioner has failed to
establish that any of these instructions were reasonable or that a request by trial counsel
would have been granted. Petitioner acknowledges in his brief that the issue of the
admissibility of his cell phone records was challenged at trial and on direct appeal.
Petitioner offers no authority for his suggestion that trial counsel should have requested or
the trial court should have given an instruction commenting on the admissibility of
evidence. As the post-conviction court noted, the admissibility of Petitioner’s cell phone
records and the determination of whether a statement is inadmissible hearsay are “legal
question[s] for the trial court and not for the jury.” Petitioner states in his brief that he “has
a right to confront and cross-examine witnesses” and that “court proceedings are open to
the public” in support of his argument that the jury should have been instructed that
Petitioner was not allowed to attend some unspecified court proceeding involving Marco
Crawford; however, Petitioner has not demonstrated that he was denied his right to
confront Mr. Crawford or any of the State’s witnesses.
Due Process Claim
Finally, Petitioner alleges that he was denied a fair trial because the State was
allowed “to play word games” about its deal with witness Carl Allen in exchange with his
testimony at Petitioner’s trial. Petitioner asks this Court “to enter a ruling requiring the
State to inform the jury, or to require the trial court to inform the jury, when a testifying
witness who is incarcerated either has a formal deal in place for his/her testimony or has
an informal deal in place.”
We begin by clarifying the role of an appellate court. It is not the role of an appellate
court to direct a trial court proceeding or “enter a ruling” such as the one requested by
Petitioner in this appeal. Rather, appellate courts review the trial court’s application of the
law to the facts of a case after a judgment is entered.
-9-
The State argues that because Petitioner failed to raise this issue at trial or on direct
appeal, the issue is waived for purposes of post-conviction relief. See T.C.A. § 40-30-
106(g). Code section 40-30-106(g) states in pertinent part, “[a] ground for relief is waived
if the petitioner personally or through an attorney failed to present it for determination in
any proceeding before a court of competent jurisdiction in which the ground could have
been presented.” T.C.A. § 40-30-106(g). Although the issue of whether Petitioner’s due
process rights were violated as a result of the State’s failure to disclose an agreement with
a witness in exchange for that witness’s testimony was not addressed on direct appeal, we
note that Mr. Allen acknowledged at trial that he sent a letter to the prosecutor offering to
testify in Petitioner’s case in exchange for dismissal of several pending charges. He
testified that although he “hope[d] to get some type of leniency . . . as a result of coming
forward,” the prosecutor “ha[d] made it clear that there [were] no agreements in exchange
for [his] testifying.” Delshun Jones, 2016 WL 1563087, at *3. Moreover, at the post-
conviction hearing, trial counsel testified that he attempted to expose Mr. Allen’s bias
during cross-examination. Petitioner did not present any evidence at the post-conviction
hearing that a deal existed between the State and Mr. Allen in exchange for his testimony
against Petitioner.
Because the issue could have been raised on direct appeal, the issue is waived.
Additionally, Petitioner cites no authority in support of his argument. See Tenn. R. App.
P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).
As to all of Petitioner’s claims, the post-conviction court gave detailed and thorough
findings of fact and conclusions of law, and the record supports the post-conviction court’s
findings and conclusions. Petitioner is not entitled to relief.
CONCLUSION
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
- 10 -