James A. McCurry v. State of Tennessee ( 2022 )

03/16/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 1, 2022
JAMES A. MCCURRY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-20-226 Roy B. Morgan, Jr., Judge
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No. W2021-00130-CCA-R3-PC
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Petitioner, James A. McCurry, appeals the denial of his post-conviction petition, arguing
that the post-conviction court erred in finding that he received the effective assistance of
counsel at trial. 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 Appeal as of Right; Judgment of the Circuit Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JAMES CURWOOD WITT, JR., J., joined.
Joseph T. Howell, Jackson, Tennessee, for the appellant, James A. McCurry.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
Assistant Attorney General; Jody S. Pickens, District Attorney General; and Al Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Petitioner was indicted by the Madison County Grand Jury for especially aggravated
kidnapping, attempted aggravated robbery, and unlawful possession of a weapon. After a
jury trial, Petitioner was convicted of aggravated kidnapping as a lesser-included offense
of especially aggravated kidnapping, and the remaining two offenses as charged. He was
sentenced to twenty-one years in confinement. This court affirmed Petitioner’s convictions
on appeal and the supreme court denied his application for permission to appeal. State v.
James Anthony McCurry, No. W2018-01780-CCA-R3-CD, slip op. (Tenn. Crim. App., at
Jackson, Oct. 30, 2019), perm. app. denied (Tenn. Feb. 26, 2020). The facts of this case
as summarized on direct appeal are as follows:
At trial, the victim testified that on the morning of July 15, 2017, he went
outside his home on East Chester Street to work on his car. [Petitioner] drove
into the victim’s driveway in a white sedan. [Petitioner] had been to the
victim’s house previously because [Petitioner] knew the victim’s niece.
However, the victim did not know [Petitioner].
The victim, who was sixty-three years old at the time of the incident, testified
that [Petitioner] said, “‘Unc, I want to talk to you.’” [Petitioner] cracked
open the passenger-side door of his car and tried to “coax” the victim inside.
The victim felt uncomfortable but got into the car because he thought
[Petitioner] wanted to talk about an issue involving the victim’s niece. The
victim sat in the front passenger seat but kept one leg partially out of the car.
The victim said that [Petitioner] had “[g]old teeth and blackened eyes,” that
[Petitioner] “looked very dangerous,” and that he was “fearful” of
[Petitioner]. [Petitioner] told the victim that he was not going to do anything
to the victim, but the victim “had a feeling . . . something was fixing to
happen.”
The victim testified that [Petitioner] suddenly grabbed his left arm or leg with
[Petitioner]’s right hand and that [Petitioner] said, “Give it up.” [Petitioner]
used his left hand to open and reach into the center console, and the victim
saw a small automatic pistol. The pistol had a hammer, and the hammer was
cocked. The victim had been a member of the “101st Airborne,” was a “sharp
shooter,” and had prior experience with guns. [Petitioner] was holding the
gun in his left hand, and the victim grabbed the gun and put it into “safe
mode.” The victim said that if he had made a mistake, [Petitioner] would
have “emptied” the gun into him. [Petitioner], who was still holding the gun,
tried to point it at the victim, but the victim pushed it away.
The victim testified that [Petitioner] demanded his “billfold,” that they
struggled over the gun, and that he was in fear. At some point, [Petitioner]
moved the gun from his left hand into his right hand, put his left hand through
the steering wheel, and moved the gear shift into reverse. The car went
backward into the street, and [Petitioner] stepped on the gas pedal and “fire-
balled down East Chester.” [Petitioner] told the victim, “If you don’t let it
go, I’m gonna kill both of us.” [Petitioner] bit the victim’s arm, and the
victim later discovered he had a broken finger.
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The victim testified that [Petitioner] drove “well over five hundred feet,” that
they continued to struggle over the gun, and that the car hit a tree. The
passenger-side door opened, and the victim was thrown out of the car with
the pistol. The victim walked to the driver’s side of the car. He was holding
the gun but did not point it at [Petitioner]. [Petitioner] put the car into gear
and drove north, and the victim started running home. Someone driving by
picked up the victim and took him home, and he telephoned the police.
The victim testified that the police photographed his injuries and that he gave
them an oral statement. On July 19, he gave a written statement to
Investigator Ron Pugh at the police department. The victim testified at
[Petitioner]’s preliminary hearing, identified [Petitioner] in court, and was
confident about his identification. He said that his finger was broken for “a
long time” before he realized it and that he had surgery on his finger.
Recovering from the surgery took at least four months, he lost the ability to
straighten his finger, and he still had pain in his finger at the time of trial.
On cross-examination, the victim testified that prior to this incident, he had
seen [Petitioner] “around” but that [Petitioner] “didn’t have anything to do”
with him. The victim said that he did not know [Petitioner]’s mother on July
15, 2017, but knew her at the time of trial. He talked to the police on July 15
but did not give them a formal statement. At that point, defense counsel
showed the victim a statement he gave to the police on July 15. The victim
identified the statement as “their report” and said that “they wrote that.” He
acknowledged signing the statement at 10:51 a.m. at his home but said he did
not read it before he signed it. The victim denied telling the police that he
did not know the identity of his attacker and said that he did not remember
what he told the police that day because he was “traumatized.” The victim
acknowledged that he never referred to [Petitioner] by name on July 15 and
that he described his attacker simply as a “black male.” He also
acknowledged that he did not tell the police [Petitioner] demanded his
billfold or said, “Give it up.” The victim said he did not do so because he
“wasn’t asked anything about it.” However, when the victim gave his
statement to Investigator Pugh four days later, he “told the whole story.” The
victim acknowledged testifying at [Petitioner]’s preliminary hearing that he
knew [Petitioner]’s mother. He said at trial, though, that he did not remember
if he knew her at the time of the preliminary hearing.
The victim acknowledged that [Petitioner] did not pull him into the car, and
he denied telling the police on July 15 that [Petitioner] grabbed him when he
got close to the car. After [Petitioner] put the car into reverse and the car
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went into the street, [Petitioner] drove the car forward with his left hand. The
victim acknowledged that the car traveled much farther than five hundred
feet and that it hit a tree near a gas station. He said that he could have shot
[Petitioner] after the wreck but that he did not want to hurt [Petitioner].
[Petitioner] drove away, and Robert Pirtle drove the victim home. The victim
described Pirtle as a friend who just happened to be driving by at the time.
The victim said he did not tell the police about Pirtle because Pirtle was not
involved in the case and was “an innocent person.”
The victim testified that he did not know if his finger was broken during this
incident and that he never mentioned a broken finger to the police because
he did not know it was broken when he spoke with them. The victim did not
seek treatment for his finger until August 10, 2017.
On redirect examination, the victim testified that he was very upset when he
talked to the police on July 15 and that the police never asked him to name
his attacker. The victim knew [Petitioner]’s name and would have given it
to the police, and he gave the name to Investigator Pugh on July 19. The
victim said he did not think Pirtle saw any part of the incident with
[Petitioner].
Officer Joseph Mitchell of the Jackson Police Department (JPD) testified that
on July 15, 2017, he responded to a robbery call on East Chester Street.
When he arrived, the victim told him what had happened and showed him a
gun that the victim had taken from his attacker. Officer Mitchell
photographed the victim, and he described the photographs for the jury. The
victim had a bite mark on his left arm, blood on the left side of his white t-
shirt, and blood on his left thumb. The victim described his attacker as an
African-American male with “dreads” and with “a lot of tattoos on his arms.”
The victim said his attacker also had a goatee, “looked like the rapper Little
Wayne,” and had been “beaten up” recently. Officer Mitchell knew
[Petitioner] fit that description and issued a “be-on-the-lookout” for him.
Officer Mitchell testified that about twenty minutes later, he went to a home
on Craig Street and photographed a white car in the back yard. The car had
front-end damage, the passenger-side front tire was damaged, and a hospital
visitor’s tag was inside the car. Officer Mitchell did not see any drugs in the
car.
On cross-examination, Officer Mitchell testified that the victim gave him an
oral statement, that he wrote down everything the victim said, and that he
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prepared a report. Officer Mitchell identified his report and acknowledged
that it provided as follows: “Mr. Curry stated he had . . . [seen] the man before
in the neighborhood but was not familiar with him. Mr. Curry informed me
that the unknown black male asked for his niece.” Officer Mitchell said he
did not ask the victim if the victim had met his attacker prior to July 15.
Officer Zachary White of the JPD testified that on July 15, 2017, he assisted
Officer Mitchell on East Chester Street. Officer White “cleared” a gun and
collected it. He also responded to a call at a home on Craig Street and spoke
with the homeowner, who told him that an African-American man had run
through her front door and asked for help. She told the man to leave, and he
did so. She then noticed that a white Toyota Camry was in her back yard and
that a cellular telephone, a shirt, a pair of sunglasses, and a set of keys were
on her couch. Officer White saw an emergency room visitor’s tag inside the
car, and the tag was from Trauma Room 5. Officer White had seen
[Petitioner] in Trauma Room 5 a few days earlier. He explained that he had
responded to a drug overdose call at an apartment complex, that [Petitioner]
looked like he had been beaten, and that he followed [Petitioner] to the
hospital in an ambulance.
On cross-examination, Officer White testified that the victim had blood on
his t-shirt. However, Officer White did not know whose blood was on the
shirt. Officer White acknowledged that the homeowner said the man who
ran through her front door was “bloody.” Investigator Chris Chestnut of the
JPD testified that he interviewed [Petitioner] on July 21, 2017, and that
[Petitioner] admitted driving to the victim’s house on July 15. [Petitioner]
then told Investigator Chestnut as follows: The victim was [Petitioner]’s
“drug dealer,” and [Petitioner] went to the victim’s house to explain why he
did not have the victim’s money. Their conversation occurred “[a]t or
around” [Petitioner]’s car. The victim pulled a gun on [Petitioner], they
struggled over the gun, and [Petitioner] tried to drive away. The victim
somehow ended up inside [Petitioner]’s car. [Petitioner] drove down the
street and intentionally hit a tree to stop the victim. [Petitioner] drove away
and went to “a girl’s house.” [Petitioner] left his car at the girl’s house
because he was not supposed to be driving, and the girl could tell Investigator
Chestnut what happened. [Petitioner] did not report the incident to the police
because he “didn’t want to be classified as a snitch.”
On cross-examination, Investigator Chestnut testified that [Petitioner] had a
cut or mark on one of his knuckles. [Petitioner] said the injury occurred
during the incident with the victim, and Investigator Chestnut photographed
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the injury. Investigator Chestnut acknowledged that [Petitioner] waived his
Miranda rights and that [Petitioner] wanted to talk with him.
On redirect examination, Investigator Chestnut testified that [Petitioner] said
he “got bit” during the assault. Investigator Chestnut stated that he did not
see any bite marks on [Petitioner]’s hands and acknowledged that the injury
on [Petitioner]’s knuckle could have resulted from a struggle over a handgun.
Investigator Ron Pugh of the JPD testified that he was the case manager and
that he obtained a formal written statement from the victim on July 19, 2017.
Investigator Pugh researched [Petitioner]’s criminal history, found that he
had a prior conviction for aggravated assault, and charged him with being a
felon in possession of a handgun. He said he had not heard of “Shaunta
McMurry” prior to [Petitioner]’s trial.
On cross-examination, Investigator Pugh testified that he did not question the
victim about discrepancies between the victim’s July 15 and July 19
statements because he did not know on July 19 that the victim had given a
statement on July 15. Investigator Pugh said the wreck occurred near a gas
station, and he identified a report prepared by Investigator Chestnut.
According to the report, [Petitioner] claimed that “[a] clerk was outside and
should have seen the vehicle drive past and the struggle.” Investigator Pugh
did not request that the evidence be analyzed for fingerprints or DNA. At
the conclusion of Investigator Pugh’s testimony, the State rested its case.
Shaunta McMurray testified that she worked at a gas station on East Chester
Street. On July 15, 2017, McMurray was outside the gas station and saw
“this car coming down, down East Chester.” The car was white and had four
doors. She said the car “caught” her attention because “[i]t wasn’t moving
normally as a car’s supposed to move down the street. It was like they was
struggling in the car.” McMurray said that the driver was holding the steering
wheel and that the passenger “had the door or something.” She described the
passenger as an “old” man and said the driver had “dreads.”
McMurray testified that the car went onto the sidewalk and almost hit a
woman who was waiting for a bus. The passenger “rolled up out [of] the car
and ran toward the gas station.” He had a gun in his hand and “had his arm
out.” A truck pulled up, the passenger jumped into the back of the truck, and
the truck went in the direction from which the white car had come. The driver
of the white car sped away.
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On cross-examination, McMurray testified that she thought the incident
occurred about 1:00 p.m. She said that the driver of the white car had his
arm on the steering wheel and was using his other arm “to keep the passenger
from doing whatever he was trying to do to [the driver].” McMurray never
called the police but spoke with a detective at her home that day. She said
she thought the truck was waiting on the passenger of the white car because
the truck pulled up as soon as the passenger ran to the gas station. The
passenger was wearing a black shirt and blue jeans. The State showed
McMurray a picture of the victim, wearing a white t-shirt, that was taken by
Officer Mitchell on July 15, 2017. McMurray identified the victim as the
passenger of the white car and said he could have changed clothes. She said
that she did not know the driver or the passenger of the white car, and she
acknowledged that she did not know what happened in the car prior to her
seeing it on East Chester Street. On redirect examination, McMurry testified
that [Petitioner] subpoenaed her to trial.
Id. slip op. at 1-6.
At sentencing, the trial court heard the victim’s testimony and the following proof
about Petitioner’s background:
The State introduced [Petitioner]’s presentence report into evidence.
According to the report, the thirty-eight-year-old [Petitioner] left high school
in the eleventh grade because he was committed to a juvenile facility but
obtained his GED in prison. In the report, [Petitioner] admitted that he used
marijuana, cocaine, and heroine in the past and admitted to using drugs prior
to his incarceration in this case. [Petitioner] did not report any mental health
issues, but the officer who prepared his report noted that he was “very
agitated and angry [and] extremely upset at the outcome of his jury trial.”
Regarding [Petitioner]’s physical condition, he reported numbness in his
hand due to a gunshot wound and high blood pressure. The report showed
that [Petitioner] worked as a cook at McDonalds from April to June 1996 and
in litter pick-up at GLT Company from August to December 2006.
[Petitioner] was paroled from prison in October 2015, and he was
unemployed until at least January 2016. [Petitioner] was working at
Kirklands Warehouse in March 2016 and at U.S. Farathane in October 2016.
[Petitioner] said in the report that he was still working at U.S. Farathane when
he was arrested in this case. The report did not show any other employment.
[Petitioner] stated in the report that he had been “locked up most of his life,”
and the report showed that he had prior felony convictions of possession of
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cocaine with intent to sell, aggravated assault, reckless aggravated assault,
reckless endangerment, and evading arrest and prior misdemeanor
convictions of simple possession, reckless driving, driving on a revoked
license, and violating the financial responsibility law. From 1990 to 1996,
[Petitioner] was adjudicated delinquent for evading arrest, criminal trespass,
possession of marijuana, theft of property valued more than $1,000, resisting
arrest, aggravated assault, assault, burglary, and vandalism.
Id. slip op. at 9.
Post-conviction Hearing
Petitioner testified that on July 11, 2017, four days before the underlying offenses,
he was “hanging out at some apartments” when “[s]ome guys robbed [him], maybe put
something in [his] drink,” stripped him naked, and beat him for approximately seventeen
minutes. The assault commenced in the apartment and continued outside where several
people in the apartment complex gathered around and watched as the men followed him
outside, “stomp[ed]” on him and slammed his head onto a brick wall. The beating was
recorded and posted on Facebook. Petitioner remained hospitalized for two days.
Petitioner asserted that a forensic evaluation would have revealed whether he was suffering
from a mental defect or disease at the time of the instant crimes four days later on July 15,
2017.
Petitioner’s counsel in city court raised his competency as an issue at his preliminary
hearing and his medical records from the July 11 assault were subpoenaed. At the post-
conviction hearing, Petitioner’s medical records were introduced as an exhibit and showed
that they were obtained pursuant to a judicial subpoena issued on September 2, 2017, by
the Circuit Court Judge. The records consisted of six random pages of Petitioner’s
discharge transfer which revealed that Petitioner was admitted on July 11, 2017, and
discharged two days later on July 13, 2017. While hospitalized, Petitioner was diagnosed
with: accidental drug overdose, altered mental status, assault, drug abuse, and laceration.
Petitioner was identified with an “active” or ongoing problem of “drug abuse.” Petitioner
was given treatment instructions for confusion which is defined accordingly:
Confusion is the inability to think with your usual speed or clarity.
Confusion may come on quickly or slowly over time. How quickly the
confusion comes on depends on the cause. Confusion can be due to any
number of causes.
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Among the causes of confusion is “concussion, head injury, or head trauma.” Petitioner
was given the following guidance for treatment:
An admission to the hospital may not be needed, but a person with confusion
should not be left alone. Stay with a family member or friend until confusion
clears. Avoid alcohol, pain relievers, or sedative drugs until you have fully
recovered. Do not drive until directed by your health care provider.
The discharge transfer identified the following signs and symptoms of confusion: “cloudy
or unclear” thinking; feeling of disorientation; an unawareness of one’s self or location, the
date, or the time; and “difficulty paying attention, remembering, and making decisions.”
In addition, “[s]ome people also act aggressively when they are confused.”
Petitioner testified that he made trial counsel aware of the July 11 assault by
discussing it “numerous [] times.” Petitioner recalled that the two of them “went over
everything” about his case and talked about the preliminary hearing, the July 11 assault,
and his diagnoses following the assault. His family provided trial counsel the video of the
assault. Petitioner and trial counsel talked about the effect of the assault on his mental
acuity and fitness. Petitioner informed trial counsel that: “My ability, my thinking wasn’t
up to speed. It wasn’t – Everything wasn’t clear to me.” He added that he “wasn’t sharp,”
as he was before the assault.
Petitioner faulted trial counsel for failing to investigate potential defenses based on
the diagnosis of “altered mental status.” Petitioner faulted trial counsel for not presenting
proof of the July 11 assault and his medical records at trial and as mitigation proof at
sentencing. Petitioner wanted trial counsel to call the physician who treated him at the
hospital to testify about Petitioner’s injuries and explain his diagnoses and his medical
records. Petitioner maintained that such proof could have been used to show that he had
diminished capacity at the time of the offenses. Petitioner acknowledged that two officers
testified at trial that they saw him in the trauma center at the hospital. Petitioner also
acknowledged that he had other ongoing cases and underwent a forensic evaluation for
those cases which was performed “more than a year” after the trial in this case. Petitioner
was found to be competent to stand trial, and the insanity defense could not be supported.
On cross-examination, Petitioner denied that he was assaulted because he was
running around naked due to a drug overdose. Petitioner maintained that the perpetrators
“beat [him] naked.” He admitted that he had used marijuana and cocaine “in the past” but
denied that he was using either when he was assaulted. He insisted that he told the
probation officer who prepared the presentence report that he had used marijuana and
cocaine “in the past,” but not when he was assaulted on July 11, 2017. When asked whether
he wanted the jury to know that he was “a drug addict and . . . running around the
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neighborhood naked,” Petitioner responded that he wanted the jury to know “the truth.”
Specifically, he wanted the jury to know that he was stripped naked and beaten at gunpoint.
Petitioner confirmed that he was evaluated and found competent for trial in his other
cases. On cross-examination, he stated that the evaluation occurred “like [fifteen] months
later.” Petitioner first maintained that he only discussed his other cases for the evaluation
but then acknowledged that he informed the evaluator that he suffered from confusion
because of the July 11 assault. Petitioner stated that he has been regularly seeing a mental
health professional and is on medication. He denied that he resides among the general
inmate population. He stated that he was recently “locked up” in a special unit “for the
time being” because he did not want to be among the general population.
Petitioner confirmed that issues regarding his mental health were considered in city
court and that the judge found Petitioner capable of having a preliminary hearing. The
video of the July 11 assault was not played at the preliminary hearing. The case was bound
over.
In terms of the proof for sentencing, Petitioner recalled talking to the probation
officer who prepared the presentence report and remembered telling her that his only
physical ailment was a gunshot wound to his hand. He confirmed telling her that he lacked
a history of mental health issues because he did not have a “history” of such issues. When
asked whether he talked to the police about the instant case, Petitioner agreed that he had
because he wanted to press charges against the victim for pulling a gun on him but the
police did not “help” him in doing so.
Petitioner’s mother, Marilyn Vinson, testified that she went to see Petitioner at
Jackson-Madison County General Hospital on July 11, 2017.1 Marilyn recalled that
Petitioner’s head was “tremendously” swollen. He had sustained “a lot of” head trauma.
He was strapped down and appeared to be bleeding from the mouth. She was
“heartbroken” at seeing Petitioner’s condition. She recalled that Petitioner remained in the
hospital for a couple of days. While there, he was under police protection. Petitioner
stayed with her when he was released from the hospital. Marilyn recalled a distinct
difference in her son’s behavior after the July 11 assault. She could not tell if he understood
when she talked to him.
Marilyn saw the video of the July 11 assault when it was posted “nationwide.” She
described the video as “awful.” She testified that Petitioner was naked, repeatedly thrown
1
Because this witness and the subsequent witness share the same surname, we refer to
them by their first names. We intend no disrespect in doing so.
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against a brick or concrete wall, and beaten. She gave trial counsel a copy of the video.
She recalled that the police had also obtained a copy of the video.
Carolyn Vinson, Petitioner’s aunt testified that she saw the video of the July 11
assault on Facebook after she received a call from a friend. On the video, Petitioner was
stripped of his clothes and assaulted. Carolyn could not see him while he was in the
hospital. She recalled that he was there two to three days. She saw Petitioner when he
stayed with his mother after he was discharged from the hospital. She recalled that
Petitioner’s head had become swollen “really bad.” Petitioner was “upset and hurt” when
he learned that the assault was recorded and posted on Facebook. According to Carolyn,
“everybody in Jackson” had seen the video. When asked if she noticed a difference in
Petitioner after the assault, Carolyn replied that Petitioner was constantly worried and
fearful of what people might do to him. She had no interaction with trial counsel. On
cross-examination, Carolyn admitted that she did not observe Petitioner manifesting any
signs of confusion. For instance, he recognized her and his mother.
Trial counsel represented Petitioner at trial and on appeal. Trial counsel testified
that Petitioner was indicted of especially aggravated kidnapping, attempted aggravated
robbery, and convicted felon in possession of a handgun. Trial counsel took advantage of
the State’s open file policy and met with Petitioner to review the discovery and prepare for
trial. Accordingly, he was familiar with the facts of the case and the State’s theory of those
facts.
Trial counsel was aware of the July 11 assault because he and Petitioner talked about
it “numerous times.” He had also watched brief portions of the video of the July 11 assault.
In terms of the video, trial counsel recalled seeing Petitioner, naked, lying on a concrete
sidewalk, and being assaulted by various members of a crowd that had gathered around
him. He confirmed that the video depicted Petitioner being assaulted.
Trial counsel did not observe any “red flags” regarding Petitioner’s state of mind or
mental fitness during their discussions. Trial counsel testified that Petitioner
communicated well, appeared to be competent, asked relevant questions about pretrial
motions, went over details about the case without issue, and understood the role of trial
counsel, the prosecutor, and the trial judge. According to trial counsel, Petitioner provided
valuable assistance in preparing for trial:
[H]e was always able to communicate with me very well. He was even able
. . . to discuss the details of the case, about what transpired, the events that
unfolded, even telling some good things that happened after the fact. He told
me the details about his knowledge of [the victim]. He was even able to have
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me – He indicated to me he wanted me to have a witness subpoenaed. After
I spoke with her, I did subpoena her.
The witness he subpoenaed was the clerk of the convenience store where Petitioner
wrecked the car. An investigator interviewed the clerk, and she testified for the defense at
trial.
Trial counsel did not doubt that the assault affected Petitioner’s mental well-being.
However, for the purpose of requesting an evaluation for the crimes which occurred on
July 15, 2017, trial counsel found no indication that one was warranted based on their
interactions. For instance, trial counsel testified that Petitioner understood the difference
between right and wrong. Therefore, an insanity defense could not be asserted. Trial
counsel similarly observed no grounds for diminished capacity due to a mental disease or
a mental defect. Trial counsel did not recall Petitioner’s medical records in the discovery
but would not dispute Petitioner’s testimony that the records were part of the discovery.
Trial counsel did not recall Petitioner’s being diagnosed with altered mental status. He
also did not recall talking to Petitioner’s mother about the case.
On cross-examination, trial counsel testified that he did not want the jury to see the
video of the July 11 assault. He explained that the video would reveal to the jury that
Petitioner was attacked for running around naked in the neighborhood, and he was naked
because he had overdosed on drugs. Petitioner was released from the hospital two days
before the crimes. His medical records revealed that Petitioner was “confused” or having
issues being confused. He was discharged without a recommendation for psychiatric
hospitalization. In terms of Petitioner’s state of mind at the time of the crimes, trial counsel
testified that Petitioner gave a statement to the police, and nothing in the statement
suggested the need for a mental evaluation.
On redirect, trial counsel testified that he did not find the state of Petitioner’s mental
health following the July 11 assault to be relevant at sentencing. Trial counsel thought
Petitioner had reported his injuries from the assault to the probation officer for the
presentence report which the trial court would have considered for sentencing. Trial
counsel filed a “general catch-all” factor for mitigation.
Petitioner’s preliminary hearing counsel testified that he represented Petitioner in
city court and at the preliminary hearing. Preliminary hearing counsel watched the video
of the July 11 assault and did not find the video or the July 11 assault relevant to the defense
for kidnapping. He found Petitioner fully capable of assisting in his defense:
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I met with [Petitioner] and discussed the case. I don’t – He seemed coherent
and had the ability to discuss the case with me. So I didn’t see any – I did
not see how one had a bearing on the other.
He withdrew as Petitioner’s counsel after the preliminary hearing when he was hired by
the District Attorney’s Office. He did not recall subpoenaing Petitioner’s medical records
for the preliminary hearing but would not dispute it if Petitioner said he did.
On cross-examination, preliminary hearing counsel testified that the assault was
recorded on someone’s cell phone from “some distance away” from a breezeway in the
apartment complex. He stated that the video showed Petitioner, nude, and being “beaten
fairly severely.” He recalled that the assault occurred several days before the offenses in
this case.
Preliminary hearing counsel stated that Petitioner testified in his own defense at the
preliminary hearing. There were several cases on the docket, and all of them were held on
the same day. Petitioner was “very upset” that the police had not charged anyone for the
July 11 assault. On redirect, preliminary hearing counsel confirmed that Petitioner was
fully capable of answering and understanding all the questions at the preliminary hearing.
The post-conviction court made extensive findings of fact at the conclusion of the
hearing and found the evidence clear and convincing that Petitioner was assaulted and
hospitalized four days before the commission of the underlying offenses:
. . . [Petitioner] was severely beaten on that occasion some days prior to this
incident for which he went on trial and which he’s filed a post-conviction on.
That’s very clear from the sworn testimony. [Petitioner] has testified to it
and the attorneys have testified to it, [Petitioner]’s family members have
testified to what they saw in the video. There’s no dispute over that, and I’m
taking that into consideration making my decision today.
However, the post-conviction court resolved any discrepancies in the testimony in
favor of trial counsel and preliminary hearing counsel with respect to Petitioner’s claims.
By resolving any credibility issues against Petitioner, the post-conviction court determined
that Petitioner had failed to prove that trial counsel’s performance was either deficient or
prejudicial. This timely appeal followed.
Analysis
Petitioner claims that the post-conviction court erred in denying his claim for
ineffective assistance of trial counsel. Specifically, he argues that trial counsel was
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ineffective because counsel failed to seek a forensic evaluation to determine his mental
state at the time of the crimes on July 15, 2017; failed to explore potential defenses based
on the diagnosis of “altered mental status” he received at the hospital when he was treated
for the assault; failed to call his mother and his aunt to testify at trial about the assault to
corroborate a showing of “altered mental status” and diminished capacity; and failed to
present evidence about the July 11 assault at trial and at sentencing as mitigating evidence.
The State responds that Petitioner is not entitled to relief because trial counsel made a
strategic decision not to admit proof of the July 11 assault; Petitioner failed to prove that
he, in fact, had diminished capacity at the time of the underlying offenses; and that but for
trial counsel’s failure to use the July 11 assault as a mitigating factor, the trial court would
have imposed a more lenient sentence. We agree with the State.
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. See also Howard v. State, 604 S.W.3d 53, 57 (Tenn. 2020) (“[t]he deprivation
of effective assistance of counsel is a constitutional claim cognizable under the Post-
Conviction Procedure Act”).
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); Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015). Deficient performance is representation that falls below “an objective standard of
reasonableness” as measured by prevailing professional norms. Kendrick, 454 S.W.3d at
457 (quoting Strickland, 466 U.S. at 688); see also Baxter v. Rose, 523 S.W.2d 930, 932-
33 (Tenn. 1975). To show prejudice, a petitioner must demonstrate a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceeding
would have been different. Strickland, 466 U.S. at 694; Kendrick, 454 S.W.3d at 458. A
reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Reasonable probability is a lesser burden of proof
than preponderance of the evidence. Kendrick, 454 S.W.3d at 458 (citing Williams v.
Taylor, 529 U.S. 405-06 (2000)).
Failure to satisfy either prong results in the denial of relief. Strickland, 466 U.S. at
697; Nesbit v. State, 452 S.W.3d 779, 786-87 (Tenn. 2014). 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); Tenn. Sup. Ct. 28, § 8(D)(1); see Dellinger v. State, 279 S.W.3d
282, 293-94 (Tenn. 2009). “Evidence is clear and convincing when there is no serious or
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substantial doubt about the accuracy of the conclusions drawn from the evidence.” Hicks
v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998) (citing Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901, n.3 (Tenn. 1992)).
The factual findings of the post-conviction court are binding on an appellate court
unless the evidence in the record preponderates against those findings. Howard, 604
S.W.3d at 57 (citing Tenn. R. App. P. 13(d)); see also Arroyo v. State, 434 S.W.3d 555,
559 (Tenn. 2014); Fields v. State, 40 S.W.3d 450, 456, n.4 (Tenn. 2001). The post-
conviction court’s application of law to its factual findings is reviewed de novo with no
presumption of correctness. Howard, 604 S.W.3d at 57; Holland v. State, 610 S.W.3d 450,
455 (Tenn. 2020). 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. See Cooper v. State,
847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Petitioner argues that trial counsel’s performance at trial was ineffective because
trial counsel failed to secure a forensic evaluation to determine Petitioner’s mental state on
July 15, 2017, the date of the underlying offenses; failed to pursue a diminished-capacity
theory of defense; failed to present evidence of the July 11 assault; and failed to call his
mother and his aunt to corroborate a diminished-capacity theory of defense. The State
contends that Petitioner is entitled to no relief because there was no proof that Petitioner
suffered from diminished capacity when he kidnapped the victim and trial counsel made a
strategic decision not to present evidence of the July 11 assault at trial.
Diminished capacity is not “a justification or excuse for a crime, but rather an
attempt to prove that the defendant, incapable of the requisite intent of the crime charged,
is innocent of that crime but most likely guilty of a lesser included offense.” State v. Hall,
958 S.W.2d 679, 688 (Tenn. 1997). Diminished capacity is “a defendant’s presentation of
expert, psychiatric evidence aimed at negating the requisite culpable mental state.” Id. As
such, evidence to negate the requisite must include expert testimony. “[Diminished
capacity] is . . . not a defense at all but merely a rule of evidence.” Id. at 688-89 (quoting
United States v. Pohlot, 827 F.2d 889, 897 (3rd Cir. 1987)). “[E]vidence of a mental
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disease or defect that does not rise to the level of an insanity defense, nevertheless, is
admissible to negate the requisite culpable mental state for the charged offense.” State v.
Terrance Lawrence, a.k.a. Terence Lawrence, No. M2020-00630-CCA-R3-CD, 2021 WL
1116408, at *6 (Tenn. Crim. App., at Nashville, Mar. 24, 2021), no perm. app. filed. (citing
State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994)).
The supreme court emphasized the distinction between “mental disease or defect”
and “emotional state or mental condition”:
[W]e emphasize that the psychiatric testimony must demonstrate that the
defendant’s inability to form the requisite culpable mental state was the
product of a mental disease or defect, not just a particular emotional state or
mental condition. It is the showing of lack of capacity to form the requisite
culpable mental intent that is central to evaluating the admissibility of expert
psychiatric testimony on the issue.
Hall, 958 S.W.2d at 690 (emphasis in original).
Although the post-conviction court found evidence of the July 11 assault to be clear
and convincing, the court was unconvinced that the July 11 assault warranted a forensic
evaluation or provided the grounds for pursuing diminished capacity at trial. In making
this finding, the post-conviction court accredited the testimony of trial counsel and
preliminary hearing counsel:
When it comes to the state of mind for [diminished capacity proof at trial or
mitigation proof at sentencing], the Court notes this. I give credibility to the
testimony of [trial counsel] and to [preliminary hearing counsel] as they
testified today.
[Trial counsel] testified under oath there was no issue as to state of mind. He
communicated, “He” being the Petitioner, very well. [Petitioner] gave details
of what happened before and what happened after, what transpired [trial
counsel] said. [Petitioner] gave details about what transpired, how he knew
the victim in this case. [Petitioner] discussed with [trial counsel] subpoena
of witnesses. One was a [Shaunta McMurray] I believe that testified, that
being maybe the store employee. There was no evidence at all based on [trial
counsel]’s education, training and experience as a defense lawyer as to a need
for an evaluation. I know there was one done later. There was testimony to
that effect that showed no problem. [Trial counsel] said there was no
evidence of need of one here. He indicated from his sworn testimony that
they even discussed – “they,” he and [Petitioner] – even discussed possible
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motions to be filed, and there was just no issue of diminished mental
capacity. There was no issue as to whether this would be used for sentencing
purposes after the fact upon conviction. [Trial counsel] did not think that it
would weigh in in any other way at sentencing that would have been of any
value in this case.
The post-conviction court found preliminary hearing counsel’s testimony equally credible
regarding Petitioner’s state of mind:
. . . I give credibility to of (sic) [preliminary hearing counsel] that [Petitioner]
testified at his own preliminary hearing and had no trouble recalling any
problem at all, and he spoke about this case with [Petitioner], he spoke to
[Petitioner] about the case and what had occurred, and again, [Petitioner]
testified. So there was no indication of any issue to be presented on this case
as relates to that video and that beating at that time.
The record supports the post-conviction court’s findings. Both trial counsel and
preliminary hearing counsel testified that they were each aware of the July 11 assault. Both
attorneys had discussed the July 11 assault with Petitioner and had watched the video of
the assault in preparation for their respective hearings. Both attorneys corroborated
Petitioner’s testimony regarding the assault. However, despite the severity of the assault,
neither counsel found grounds to request a forensic evaluation or to question Petitioner’s
mental fitness to assist in the preparation of his defense at the preliminary hearing or at
trial based on their interactions with Petitioner. “[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would be fruitless or even harmful,
counsel's failure to pursue those investigations may not later be challenged as
unreasonable.” Strickland, 466 U.S. at 691.
According to preliminary hearing counsel, Petitioner was “coherent” and able to
discuss the case. Although preliminary hearing counsel did not see how the July 11 assault
had any bearing on Petitioner’s case or his mental fitness, the issue of Petitioner’s mental
fitness was raised in city court. The city court judge found Petitioner competent for the
preliminary hearing. Preliminary hearing counsel recalled that Petitioner testified in his
own defense at the preliminary hearing. Petitioner had several cases heard on that same
day, and preliminary hearing counsel testified that Petitioner had no difficulty
understanding and answering questions for all of his cases that day.
Similarly, trial counsel testified that his interactions with Petitioner led him to
believe that a forensic evaluation was not necessary and that a defense based on mental
defect or disease was unsupportable. Trial counsel testified that Petitioner communicated
well, asked relevant questions about pretrial motions, understood the role of trial counsel,
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the prosecutor, and the trial judge, and possessed a strong command of the case. Trial
counsel found Petitioner’s recollection of the incident to be particularly helpful in
developing trial strategy. For instance, Petitioner suggested calling the convenience store
clerk as a witness because she had observed the car wreck. Based on this information, trial
counsel subpoenaed Shaunta McMurray. At trial, she testified that she had witnessed the
wreck and identified the victim and Petitioner as the occupants of the car. More
importantly, her testimony was consistent with Petitioner’s narrative of the facts. In
addition, trial counsel found nothing in Petitioner’s statement to the police to suggest the
need for a forensic evaluation. Based on trial counsel’s interactions with Petitioner and
Petitioner’s statement to the police, trial counsel’s decision not to request a forensic
evaluation fell squarely within the range of competence.
In addition, Petitioner has not shown that he was prejudiced by trial counsel’s
decision to forego a forensic evaluation. Approximately twelve to fifteen months after the
trial in this case, Petitioner underwent a forensic evaluation to determine his competency
to stand trial and his sanity for another case. That evaluation resulted in a conclusion that
Petitioner was competent and sane. The conclusion of the evaluation strongly suggests that
a forensic evaluation would not have provided favorable evidence on Petitioner’s behalf in
this case. At the post-conviction hearing, Petitioner admitted that the July 11 assault was
considered in the evaluation in the other case. “[T]he mere possibility of success based on
a defense for which there existed little or no evidentiary support is not enough to establish
constitutionally inadequate counsel.” Long v. Krenke, 138 F.3d 1160, 1162 (7th Cir.1998).
Accordingly, Petitioner has not established prejudice.
In terms of trial counsel’s failure to call witnesses to establish diminished capacity,
the post-conviction court found no prejudice because Petitioner failed to present material
and favorable expert testimony:
As to the potential witnesses. There’s been no witnesses brought forward
today. [Post-conviction counsel] pointed out why he could not get an expert,
but there’s no witnesses for me to consider today, potential witnesses, that
would testify to anything that would certainly have been a benefit at the trial
regarding diminished capacity or sentencing.
As for the witnesses who did testify at the post-conviction hearing, the post-conviction
court determined that their testimonies about Petitioner’s state of mind and physical well-
being after he was discharged from the hospital would not have undermined the outcome
of the trial:
Now I know [Petitioner]’s family members have testified to his condition
and when he came home some day or two or three after this incident and he
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stayed with his mother, Ms. Carolyn Vinson, and he had some swelling
around the head, and [Petitioner] understandably so, was very upset about
Facebook and this video, him in a nude condition and being beaten. He was
very upset, and he was worried. [Petitioner’s mother] testified he was
worried about people. He was upset and worried about people. I understand
and could understand why [Petitioner] would be under the circumstances of
what was shown in that video and the circulation that it received, but again
does not relate to any type of post-conviction relief in this case.
***
I’ve heard, of course, from the mother and aunt today, but I don’t find
anything that I’ve heard today is sufficient to carry a burden of proof that any
particular witness would have made any difference or have been of any value
at the trial of this case. Again, you can always speculate on hindsight and
look at things differently, but for the reasons stated, the Court finds very
specifically that [Petitioner] failed to carry the burden of proof by clear and
convincing evidence, and that is a heavy burden. He failed to carry the
burden in this case of post-conviction, so I’ll deny the post-conviction
petition.
The evidence does not preponderate against the post-conviction court’s findings.
“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner
at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
“There can be no speculation ‘as to what the [expert] evidence would have shown and . . .
how it would have benefitted Petitioner.’” Brimmer v. State, 29 S.W.3d 497, 512 (Tenn.
Crim. App. 1998) (quoting Davis v. State, 912 S.W.2d 689, 698 (Tenn. 1995)). Diminished
capacity requires the testimony of an expert. Hall, 958 S.W.2d at 691-92; Faulkner, 154
S.W.3d at 56-58. Here, none was called. Petitioner has failed to demonstrate prejudice.
Black, 794 S.W.2d at 757.
Furthermore, Petitioner’s discharge transfer from the July 11 assault offers no
evidence of diminished capacity at the time of the offenses. The discharge transfer reveals
that Petitioner was suffering from “confusion” which did not require further hospital
admission but instead included instructions “not [to] be left alone” and to stay with “a
family member or friend until the confusion clears.” There was no recommendation for
Petitioner to seek psychiatric treatment. Petitioner was instead instructed to “[a]void
alcohol, pain relievers, or sedative drugs” until the confusion cleared. Because Petitioner
offered no evidence of diminished capacity or a need for a forensic evaluation, we agree
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with the post-conviction court that trial counsel’s performance was neither deficient nor
prejudicial.
Next, the post-conviction court found trial counsel’s decision not to show the video
of the July 11 assault at trial was a strategic decision entitled to deference:
[Trial counsel] testified under oath on [c]ross-[e]xamination, he didn’t think
it would be a good strategy for the jury to see this video and the issues that
were related to the video, as to what was taking place and why it was taking
place, and that, of course, the Petitioner had been discharged a couple of days
prior to this particular incident.
Trial counsel’s strategy regarding the July 11 assault was entitled to deference because it
was informed by adequate preparation. Trial counsel was aware of the circumstances of
the assault because he had watched portions of the video and had talked to Petitioner about
the assault. Trial counsel testified that offering evidence about the July 11 assault made
for poor strategy because the jury would be exposed to the fact that Petitioner was running
around naked due to a drug overdose. The hospital discharge transfer shows that on the
night of the July 11 assault, Petitioner was diagnosed with “accidental drug overdose” and
“drug abuse.” He was also identified with an “active” drug abuse problem. As the State
argues, “opening the door” to evidence of the July 11 assault, “would have been, at best, a
questionable decision by trial counsel.” Given the humiliating circumstances surrounding
the assault and no proof of Petitioner’s lack of capacity due to a mental disease or defect
to form the requisite mental intent of the convicted offenses, trial counsel’s decision not to
present evidence of the July 11 assault was presumptively reasonable. Davidson v. State,
453 S.W.3d 386, 393 (Tenn. 2014) (post-conviction claims are reviewed with “the strong
presumption that counsel provided adequate assistance and used reasonable professional
judgment to make all strategic and tactical significant decisions”).
The record shows nevertheless that the jury was aware of the assault without being
privy to the details of the assault. At trial, Officer White testified that he was acquainted
with Petitioner because he had responded to the July 11 assault and saw Petitioner at the
scene. McCurry, No. W2018-01780-CCA-R3-CD, slip. op. at 4-5. Officer White testified
that Petitioner “looked like he had been beaten.” Id. at 5. Officer White followed Petitioner
to the hospital where he was placed in a Trauma Room. Id. at 4-5. Thus, Petitioner cannot
show that he was prejudiced, and he was properly denied relief.
Lastly, Petitioner is entitled to no relief on his claim regarding trial counsel’s failure
to offer evidence of the July 11 assault as mitigation proof for sentencing. The State argues
that there was no reasonable probability the trial court would have imposed a more lenient
sentence using the July 11 assault as a mitigating factor, and we agree. Contrary to
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Petitioner’s assertion, testimony about the July 11 assault was revealed at trial and was
therefore before the trial court for sentencing. Id. at 4-5; see also T.C.A. § 40-35-210(b)(1)
(“the court shall consider . . . The evidence, if any, received at the trial and the sentencing
hearing”). And as previously discussed, Petitioner has not established by clear and
convincing evidence that he suffered from a mental defect or disease at the time of the
offenses to pursue diminished capacity as a defense at trial. The same holds true for
Petitioner’s claim against trial counsel at sentencing. Here, Petitioner has not demonstrated
how the July 11 assault or his diagnosis of confusion from the assault would have
constituted a mitigating factor. Petitioner faults trial counsel for failing to present the July
11 assault at sentencing; yet, when interviewed for the presentence report, he declined to
mention the July 11 assault, detail the injuries he sustained, or explain how his diagnosis
should mitigate his sentence. See, e.g., James Anthony McCurry, No. W2018-01780-CCA-
R3-CD, slip. op. at 9. Petitioner has simply failed to show how the outcome of his
sentencing would have been different given the application of three enhancement factors.
In determining the length and alignment of his sentences, the trial court could not ignore
the overwhelming proof of Petitioner’s lengthy criminal history. Two of the three
enhancement factors found by the trial court were based on Petitioner’s criminal history as
an adult and as a juvenile. Petitioner had a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range, and he
was adjudicated to have committed acts as a juvenile that would constitute a felony if
committed by an adult. Id. at 9-10; see also T.C.A. § 40-35-114(1), (16). He was
adjudicated delinquent as a juvenile and “ha[d] been committing crimes since he was
eighteen years old.” See James Anthony McCurry, No. W2018-01780-CCA-R3-CD, slip
op. at 12. He admitted that he has been “locked up” for most of his life. Id. Trial counsel’s
decision not to use the July 11 assault as a mitigating factor was reasonable and did not
prejudice Petitioner. He is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the post-conviction court is affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
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