Norris E. Ray v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 7, 2011

NORRIS E. RAY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
Nos. 02-02917-18 John T. Fowlkes, Jr., Judge

No. W2010-01675-CCA-R3-PC - Filed November 30, 2011

The petitioner, Norris E. Ray, appeals the post-conviction court’s denial of his petition for
post-conviction relief, arguing he received the ineffective assistance of counsel at trial and
on appeal. After review, we affirm the denial of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J EFFREY S. B IVINS, JJ., joined.

Paul K. Guibao (on appeal) and Andrew Hutchinson (at hearing), Memphis, Tennessee, for
the appellant, Norris E. Ray.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted of first degree felony murder, especially aggravated
kidnapping, and unlawful possession of a handgun by a Shelby County Criminal Court jury
and was sentenced to an effective term of life plus forty-four years in the Department of
Correction. On direct appeal, this court affirmed his convictions and sentences and the
Tennessee Supreme Court denied his application for permission to appeal. See State v.
Norris Ray, No. W2004-01247-CCA-R3-CD, 2005 WL 1541785 (Tenn. Crim. App. June
27, 2005), perm. to appeal denied (Tenn. Dec. 5, 2005). The underlying facts of the case
were recited by this court on direct appeal as follows:
 Kevin Wiseman and his brother, Jesse Windom, owned a car lot in
Memphis. Mr. Windom called his brother around 6:00 p.m. on August 7,
2001, after the business was closed, and asked Mr. Wiseman to meet him at
the car lot so he could get a set of car keys from Mr. Wiseman. Mr. Wiseman
testified that Mr. Windom was driving a 2001 black Lexus. Mr. Wiseman
arrived at the car lot and parked on the street. Mr. Windom backed the Lexus
into the car lot’s fenced parking area.

A white Dodge Stratus with three African-American males in it pulled
up to the car lot. One of the men got out of the car and began talking to Mr.
Windom. The man waved his hand for the second man to get out of the car.
The second man approached Mr. Wiseman with a handgun. The third man
remained in the Dodge. He stuck a shotgun out of the car’s window and told
Mr. Wiseman he would shoot him if Mr. Wiseman attempted to flee. The first
man pulled up his shirt to show Mr. Windom that he was armed. Mr.
Wiseman later identified [the petitioner] from a photo lineup as the first man
who approached Mr. Windom, and [the petitioner]’s co-defendant, Nakomis
Jones, as the man who approached Mr. Wiseman.

The men demanded the keys to the business office. Mr. Wiseman told
[the petitioner] the keys were in his car, but [the petitioner] got into the Lexus
instead and started the engine. Mr. Jones pushed Mr. Wiseman toward the
Lexus, and told him to get into the trunk. Mr. Wiseman got into the trunk, and
the car started moving. Mr. Wiseman heard one of the men ask his brother
where the money was, and his brother responded that the police had taken all
the money. The man kept repeating his demand, and Mr. Windom kept saying
that he did not have any money. After driving for five to ten minutes, Mr.
Wiseman heard a gunshot, and his brother said “oh.”

Mr. Wiseman then heard one of the men say that he saw the police.
The Lexus sped up and made numerous turns. The car stopped, and Mr.
Wiseman heard the car’s doors open and close. He waited about ten or fifteen
minutes and then began pounding on the roof of the trunk. Mr. Wiseman did
not know that the Lexus had an emergency release button inside the trunk, but
he accidently hit the button with his arm. The trunk popped open, and Mr.
Wiseman got out of the trunk. No one was around, and Mr. Wiseman did not
see the Dodge Stratus.

Mr. Wiseman said that the car had stopped at the Southwood
Apartments which were next door to the Flairwood Apartments. He called

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Mr. Windom on his cell phone but did not get an answer. Mr. Wiseman
caught a ride with a friend back to his business. Before they reached the car
lot, however, Mr. Wiseman saw another friend at the intersection of
Winchester and Tschulahoma. The friend told Mr. Wiseman that Mr.
Windom had been shot and was in an ambulance at the Mapco gas station at
the intersection. Mr. Wiseman said that his ordeal lasted about one hour.

On cross-examination, Mr. Wiseman said that he was in the car’s trunk
between fifteen and thirty minutes. Mr. Wiseman said that [the petitioner]
was at the driver’s side door when Mr. Jones put him in the trunk so he
assumed [the petitioner] was driving the Lexus. Mr. Wiseman said that the
only voice he could identify while he was in the trunk was his brother’s.

Gary Claxton, a Memphis police officer, was off-duty on August 7,
2001. He was driving west on Winchester in a Nissan Maxima when a black
Lexus and a white Dodge Stratus entered the road from an apartment complex
and nearly struck his car. Officer Claxton said that the Dodge was following
the Lexus, and both cars were being driven erratically. All three cars entered
the left turn lane at the intersection of Winchester and Tschulahoma. The
Lexus was first in line, followed by the Maxima and then the Dodge. A man
jumped out of the rear passenger seat of the Lexus and ran toward a Mapco
gas station. Officer Claxton said the man looked “panicked.”

The Lexus made a u-turn and drove into the gas station. The light
turned green, and the Dodge nearly hit Officer Claxton’s car again. Officer
Claxton let the Dodge pass him and recorded the car’s license plate number.
He called the dispatcher to report the incident. Officer Claxton said that he
attempted to follow the Dodge and Lexus, but he did not see the cars again
after they drove away from the Mapco. When he returned to the gas station,
Officer Claxton said that the man who had jumped out of the Lexus was lying
on the ground. It was later determined that the Dodge Stratus was registered
to Chandra Jones.

Chandra Jones confirmed that she owned the Dodge. She said that she
loaned the car to [the petitioner] on August 7, 2001, between 4:30 p.m. and
5:00 p.m. About 6:45 p.m., she called her cell phone which was in the Dodge,
and a man named “Geno” answered. [The petitioner] later testified that
“Geno’s” name was Eugene Pickens. Mr. Pickens told Ms. Jones that [the
petitioner] was in the bathroom.

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 Ms. Jones said that [the petitioner] returned to her apartment after she
was asleep. The police called some time after midnight and asked Ms. Jones
to step out of her apartment. Ms. Jones went outside, and the police took her
to a telephone booth so that she could call [the petitioner] and ask him to
come out of the apartment. Ms. Jones said that she did not see [the petitioner]
arrested because the police would not take her back home.

Kim Hughes stated that she lives at the Flairwood Apartments. On the
evening of August 7, 2001, her daughter and four other little girls were
playing outside her apartment. A man, whom Ms. Hughes later identified as
Nakomis Jones, approached her apartment around 6:30 or 6:45 p.m. and asked
the little girls if he could use the telephone. Ms. Hughes came to the front
door, and Mr. Jones told her that he had car trouble. Ms. Hughes told Mr.
Jones to come to the back door, and she handed him her cordless telephone
through the door. Ms. Hughes said that Mr. Jones kept dialing a couple of
numbers and then hanging up. A second man, whom Ms. Hughes later
identified as [the petitioner], walked up from behind the apartment building.
Mr. Jones asked him for “brother’s” telephone number. Mr. Jones still did not
dial the telephone correctly, and [the petitioner] took the telephone from him
and placed the call. Someone answered, and [the petitioner] said, “Geno,
come and get us.” [The petitioner] asked Ms. Hughes for the name of the
apartment complex. [The petitioner] returned the telephone to Ms. Hughes,
and the two men left.

Mr. Jones, however, returned to her apartment less than a minute later,
and Ms. Hughes called 911. The police did not respond to her 911 call. Ms.
Hughes saw a report of the shooting on the evening news and called Crime
Stoppers.

Officer Prentiss Jolly with the Memphis Police Department responded
to the dispatcher’s call about shots fired at the intersection of Winchester and
Tschulahoma. The victim had been transported to the hospital by the time he
arrived. The investigating officers received notice while they were at the
Mapco station that the victim had died. Officer Jolly interviewed Mr.
Wiseman and Officer Claxton. He went to Chandra Jones’ apartment and
found the white Dodge Stratus in the complex’s parking lot. Officer Jolly
called Ms. Jones on the telephone and asked her to come out of the apartment
in an effort to avoid a confrontation with [the petitioner]. Officer Jolly took
Ms. Jones to a telephone booth down the street. Ms. Jones called [the
petitioner], but he would not answer the phone. Ms. Jones then called [the

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petitioner] on Officer Claxton’s cell phone, and [the petitioner] answered.
[The petitioner] and Ms. Jones talked for a few minutes, and [the petitioner]
agreed to come out of the house. Officer Claxton said they were able to take
[the petitioner] into custody without incident.

On cross-examination, Officer Claxton said that he had interviewed
Dana Porter. He also had heard the name “Geno” mentioned in connection
with the shooting, but he did not find anything linking him to the crime.

Mr. Jones’ palm print was found on the outside rear door panel on the
passenger side of the Dodge Stratus. [The petitioner]’s finger print was found
on the driver’s side window of the Dodge Stratus. Two of Mr. Windom’s
fingerprints were found on the Lexus.

Dr. Tom Deering, the interim medical examiner for Shelby County,
stated that the cause of Mr. Windom’s death was a gunshot wound to the
abdomen. The bullet severed the right iliac artery and right common iliac vein
causing severe internal hemorrhaging.

[The petitioner] testified in his own behalf. He said that he was at Ms.
Jones’ apartment on August 7, 2001 until around noon. [The petitioner] then
went next door to his mother’s house and spent the afternoon caring for her
because she had recently had surgery. Around 4:00 p.m., he returned to Ms.
Jones’ apartment and told her he needed to get some fresh air. [The
petitioner] drove Ms. Jones’ Dodge Stratus to Mr. Pickens’ apartment around
4:15 p.m. [The petitioner] said that Ms. Jones’ kept calling him asking him
to return her car. [The petitioner]’s brother, Marvin, came over to Mr.
Pickens’ apartment about thirty minutes after [the petitioner] arrived. [The
petitioner] left the Dodge Stratus at Mr. Pickens’ apartment complex, and [the
petitioner] and his brother went to another brother’s house where [the
petitioner] met Daphne Love. [The petitioner] and Ms. Love drove to
Dyersburg around 5:00 p.m and returned to Memphis at 10:00 p.m. [The
petitioner] went back to Mr. Pickens’ apartment complex and found that Ms.
Jones had not retrieved her car. Mr. Pickens’ girlfriend gave [the petitioner]
the keys to the Dodge, and he drove to Ms. Jones’ apartment.

[The petitioner] said that he answered the telephone when the police
called Ms. Jones’ apartment in the early morning hours of August 8, 2001. He
said the police asked to speak to Ms. Jones because her car had been involved
in a hit and run accident. [The petitioner] hung up the telephone, and the

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 police called back. Finally, [the petitioner] gave the telephone to Ms. Jones
who went outside.

On cross-examination, [the petitioner] said that he had been sentenced
to fifteen years on each of two prior burglary convictions. He said that he had
seen Mr. Windom in the neighborhood but did not know him. [The
petitioner] said that he spoke with several people in Dyersburg, including his
brother, Anthony, and Ms. Love’s mother. [The petitioner] said that Mr.
Pickens was currently in the Shelby County jail. [The petitioner] said that his
brother had attended his trial during the State’s proof, but the trial court would
not allow his brother to testify. [The petitioner] said that all of his family
members were currently in Chicago attending his grandmother’s funeral.

Id. at *1-4.

The petitioner filed a petition for post-conviction relief, as well as an amended
petition, in which he raised, primarily, a number of allegations of ineffective assistance of
trial and appellate counsel. The post-conviction court conducted an evidentiary hearing, at
which the petitioner testified he was arrested on August 7, 2001 and had remained in
custody since that time. Approximately two weeks after his arrest, he was appointed counsel
to represent him at trial. The petitioner claimed that, from the time of his arrest in 2001 to
his trial in 2003, he only met with trial counsel two times. The remainder of their
communication was through letters. The petitioner was aware that trial counsel had an
assistant who helped with the investigation of his case, but the petitioner never met or
communicated with the investigator.

The petitioner testified that, during his meetings with trial counsel, he discussed what
motions he wanted to file and that he wanted to present an alibi defense. The petitioner
provided trial counsel with information regarding his alibi and the names and addresses of
people who could verify it. However, trial counsel made no efforts to investigate his alibi
defense. According to the petitioner, on the day of the offenses, he was at home with his
mother waiting for an in-house nurse to arrive. When his fiancée returned home at 4:30, he
went to a friend’s house.

The petitioner testified that, “about the first of December,” trial counsel gave him a
copy of the State’s motion for alibi defense that had been served on counsel on September
9, 2002. Prior to that day, the petitioner had given trial counsel information concerning his
alibi, and the petitioner had filed a complaint against counsel on June 10, 2002, for failing
to investigate his alibi defense. After receiving the State’s notice for alibi from trial counsel,
the petitioner wrote counsel, on December 5, 2002, a detailed letter providing information

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about his alibi and the witnesses to investigate. The petitioner presented a certified mail
receipt showing that the document was delivered. To the petitioner’s knowledge, trial
counsel never filed a response to the motion for alibi defense.

The petitioner stated that some members of his family were available to testify
concerning his alibi until midway through trial when they had to leave to attend the
petitioner’s grandmother’s funeral. Trial counsel was notified about the funeral, and the
petitioner was assured that counsel would “get them on the stand before they had to leave
town.” The petitioner said that trial counsel, however, never called his family members to
testify.

The petitioner testified that Dafany Love was one of the alibi witness names he gave
to trial counsel. According to the petitioner, Love informed him that trial counsel’s
investigator had visited her on an unrelated matter, and Love had told the investigator that
“she wanted to see [counsel] personally.” The petitioner assumed that trial counsel had the
ability to subpoena Love to be at his trial since her location was known to him, but Love was
not at the trial.

The petitioner said that he decided to testify because trial counsel did not call any of
his alibi witnesses. However, he acknowledged that he never told trial counsel prior to trial
that he was not going to testify, and his testifying was always a possibility leading into trial.
The petitioner said that he was cross-examined at trial concerning why he did not present
any corroborating testimony regarding his alibi, and he responded that he had provided the
information to trial counsel but counsel failed to bring the witnesses to court. The court
“gave a curative instruction saying that both sides have subpoena power and only one side
is required to do it.” The petitioner believed that trial counsel should have objected to that
curative instruction.

The petitioner testified that trial counsel failed to make several objections to the
State’s closing argument. He specified that trial counsel should have objected to the State’s
claim that the petitioner obtained the car keys from the victim because the testimony did not
support that claim. According to the petitioner, the victim testified that he did not know
where the petitioner obtained the keys. The issue was not raised on appeal.

The petitioner testified that the State also improperly commented on his post-arrest
silence in closing argument, but trial counsel did not object and the issue was not preserved
for appeal. In addition, the petitioner said that the State “repeatedly” misstated his prior
criminal record in closing argument by indicating that the petitioner “had been convicted of
aggravated burglaries and possession of handguns,” when he actually had prior convictions
for sexual battery and burglary.

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 The petitioner claimed that the trial court should have given additional lesser-
included offense instructions, including one for criminally negligent homicide under the
charge of second degree murder. However, trial counsel made no attempt to secure the
additional instructions. Trial counsel never brought the petitioner a copy of the proposed
jury instructions for him to review. The petitioner said that the jury instructions also
improperly shifted the burden to the defense. He explained that the court instructed the jury
that the State did not have to prove every element of the crime “if they find enough to satisfy
them.” The petitioner wanted trial counsel to object to the instruction, but he did not and
the issue was not appealable.

The petitioner testified that the State, in its closing argument, went beyond the point
of trying to enforce its theory that the offense was first degree murder to the point of telling
the jury that anything less than first degree murder would be the equivalent of not guilty.
He said that trial counsel did not object to the prosecutor’s statement. The petitioner also
testified that trial counsel failed to subpoena witnesses for the suppression hearing whose
identifications of him had been documented on a videotape for a Court TV program. He
wanted those witnesses to come to court “and make that identification again.” The petitioner
asked trial counsel to subpoena the witnesses, but counsel did not do so.

The petitioner testified that appellate counsel visited him in jail once, and they
discussed the issues he wanted to appeal. The petitioner wanted to raise an issue regarding
the suppression of a Court TV videotape that documented his arrest and identification.
Appellate counsel asked the court for an extension of time in order to add the issue regarding
suppression. However, the issue was never raised on appeal. The petitioner also
complained that appellate counsel never relied on State v. Ely, which clarified jury
instructions on lesser-included offenses.

On cross-examination, the petitioner recalled that the court conducted a jury-out
hearing regarding the Court TV videotape. The petitioner said that he had never watched
the video, but his family watched it and told him about it. The video showed the petitioner
sitting in one room at the police station, and Kevin Wiseman in the next room making an
identification from a photographic array. He asserted that the video also showed his arrest.

The petitioner testified that trial counsel relied on the defense of mistaken
identification, and the petitioner testified at trial that he was somewhere else during the
crimes. Expounding on his direct examination testimony, the petitioner said that he drove
the car of his fiancée, Shandra Jones, to the home of his friend, Geno Pickens, on the day
of the crimes around 4:30 p.m. The petitioner left Jones’s car at Pickens’ house, and the

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petitioner’s brother, Marvin Jackson,1 picked him up from Pickens’ house and took him to
Marvin’s house in North Haven, where he stayed “a short time.” The petitioner
acknowledged that the testimony at trial established that Jones’s car was used in the
offenses.

The petitioner testified that his friend, Dafany Love, picked him up from Marvin’s
house and drove him to Dyersburg. He estimated that it took them about an hour to get to
Dyersburg. The petitioner said that, while in Dyersburg, they visited his brother, Anthony
Jackson, and other people in the area. The petitioner admitted that the only people he named
at trial as being in Dyersburg with him were Anthony and Love. The petitioner said that,
in addition to his brother’s house, they went to Love’s house and then “to another place.”
He claimed that they arrived back in Memphis around 10:30 or 11:00 p.m. However, he
later said that he could not remember when they got home and acknowledged that a letter
he sent to trial counsel said that they had arrived home around 2:00 a.m.

The petitioner acknowledged that he was present in court on at least ten dates and
would have spoken to trial counsel outside the courtroom on at least some of those dates.
He also acknowledged that he spoke to trial counsel throughout the week-long trial. The
petitioner said that trial counsel never wanted him to testify. He acknowledged that he
testified at trial that the trial court “railroaded” him by not allowing him to present his alibi
witnesses.

Leatha Scott, the petitioner’s mother, testified that the petitioner was present with her
earlier on the day of the offenses. However, neither trial counsel nor anyone from the public
defender’s office came to talk to her about the petitioner’s whereabouts. Scott said that she
was at the petitioner’s trial but had to leave to attend her mother’s funeral. Trial counsel had
been informed that she was going to the funeral. However, Scott later testified that she was
not present at all for the petitioner’s trial. She said that her daughters, Deborah Ann
Patterson and Diane Mitchell, and her sons, Ricky Scott and Marvin Jackson, attended the
funeral with her. Anthony Jackson and Dafany Love did not go to the funeral.

Scott testified that she lived next-door to the petitioner’s girlfriend, Shandra Jones,
but she did not see the police arrest the petitioner because she was asleep. She explained
that she had recently undergone surgery and had taken “some real strong pills and that put
[her] to sleep.”

1
Some of the witnesses have the same last name and will be referred to by first name only at times
for clarity. We mean no disrespect by this practice.

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 Marvin Jackson, the petitioner’s brother, testified that, on the day of the offenses, the
petitioner called and asked him to pick him up at Geno Pickens’ house. He went to Pickens’
where they all talked “for a minute.” According to Marvin, the petitioner said that he was
having some issues with his girlfriend, “Fay,” and that he planned to go to Dyersburg that
day. Marvin recalled that the petitioner told Pickens that “Fay” was going to come by to
pick up her car and asked that Pickens give the car keys to “Fay.” Sometime between 4:00
and 5:00 p.m., Marvin took the petitioner to Marvin’s home in North Haven, which was
twenty minutes away. The petitioner later spoke to Dafany Love on the phone, and she came
to Marvin’s house for “a few minutes.” Love and the petitioner left his house around 5:00
or 6:00 p.m. Marvin talked to the petitioner later that night once the petitioner made it to
the home of their brother, Anthony, in Dyersburg.

Marvin testified that he met with trial counsel prior to trial and counsel “led [him] to
believe that he was doing all he could to represent [the petitioner] . . . in the best way that
he possibly could. But he did just the opposite.” Marvin stated that he told trial counsel that
the petitioner was with him on the day of the offenses. He also told trial counsel that he and
several of the petitioner’s family members would be traveling to Chicago for a funeral
during the week of the trial and wanted to be able to testify before they left. He said that
trial counsel assured him that they would get a chance to testify before they left on
Wednesday night but, when court ended for the day on Wednesday, counsel told Marvin that
he was going to the back to talk to the petitioner and would be back, but he never returned.

On cross and redirect examinations, Marvin admitted that he was convicted in 2004
for being a convicted felon in possession of a handgun. He also had prior convictions for
possession of a controlled substance with intent to sell, as well as driving offenses. Marvin
clarified that, he contacted the petitioner in Dyersburg the night of the offenses by calling
Anthony’s cell phone. Marvin admitted that he did not go to the police when he learned that
the petitioner was in jail to inform them that the petitioner had been in Dyersburg at the time
of the murder. He acknowledged that he also did not attend the petitioner’s preliminary
hearing or arraignment to clear the petitioner’s name. However, he said that he told trial
counsel that the petitioner was with him on the day of the crime up until approximately an
hour before it happened. Marvin claimed that he was present the first three days of trial, but
he could not recall any specific witnesses who testified or remember watching any of it.

Dafany Love testified that she had recently been released from custody on charges
of possession of cocaine and marijuana. She said that, on the day of the offenses, she met
the petitioner at Marvin’s house and took him to her house in Dyersburg. She said that it
was about an hour’s drive from Memphis to Dyersburg. While in Dyersburg, they drove
around and talked to a few people, including Anthony Jackson. Love then drove the
petitioner back to Marvin’s house, dropping him off around 9:00 p.m.

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 Love testified that, at some point before the petitioner’s trial, two investigators got
her out of court and took her to the police department for questioning. Love said that she
told the investigators that she was with the petitioner on the day of the offenses. She
claimed that the investigators then said they were “not going to record [their conversation]
and we[re] just going to act like this . . . never happened.” Love stated that she spoke to trial
counsel on the phone prior to trial, and he asked if she “was going to be able to come to
court for [the petitioner].” However, she did not go to court because she was never
“subpoena[ed] . . . with the court date and everything.”

On cross-examination, Love acknowledged that she was an important alibi witness
because she was with the petitioner at the time of the murder, but she did not come to trial
because she “didn’t get subpoenaed [and] didn’t know the exact date.” Love stated that,
after she dropped the petitioner off at Marvin’s house, he called her on her way home. Love
elaborated that the two investigators who removed her from court were from the district
attorney’s office, and they took her to the police station in Dyersburg. Love denied telling
the investigators that the petitioner was a friend of her incarcerated husband, that she had
never talked to trial counsel, and that she could not remember the events of the day of the
offenses.

Anthony Jackson, the petitioner’s brother, testified that the petitioner and Dafany
Love were at his house in Dyersburg from 6:30 or 7:00 p.m. until 8:30 or 9:00 p.m. on the
day of the offenses. During the time the petitioner was at Anthony’s house, their brother,
Marvin, called looking for the petitioner. Anthony spoke to Marvin, but the petitioner did
not because he “was in the back room.” Anthony said that he told trial counsel that the
petitioner was with him at the time of the offenses, and counsel was “supposed to . . .
subpoena[] [him] to court, but [he] never got subpoenaed[.]” He did not go to court on his
own accord because he was incarcerated in Dyersburg.”

On cross-examination, Anthony admitted that he had several prior felony convictions
for selling drugs and was presently incarcerated. He said that, on August 7, 2001, the day
of the offenses, he was at his house all day selling cocaine. Anthony stated that he did not
have any conversation with the petitioner and Love while they were at his house, and they
stayed in the back room the entire time they were there. He acknowledged that he did not
contact the police to tell them that the petitioner had been with him at the time of the
offenses. He explained that the reason he did not contact the police on his brother’s behalf
was because he “was doing illegal things [him]self.” However, he said that he called trial
counsel in August or September 2002 and told him that he had been with the petitioner on
the day of the offenses. Trial counsel told Anthony that he would subpoena him for trial,
but he never did.

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 Ronnie McWilliams, a criminal investigator in the Gang Unit of the District Attorney
General’s Office, testified that, in 2004, he was assigned to interview Dafany Love with
regard to this case as she was “supposed to be an alibi for [the petitioner].” McWilliams and
another investigator, R.T. Goodwin, located Love in the Dyer County Jail and interviewed
her. Love told them that, although she could not remember where she was on August 7,
2001, she knew that she was not with the petitioner. She told them that she and the
petitioner had never had a relationship, and the petitioner was a friend of her husband, who
was incarcerated. McWilliams and Goodwin informed Love that the petitioner’s counsel
had filed a notice stating that she would testify as an alibi witness for the petitioner, but she
said that “she knew nothing about testifying.” McWilliams said that he and Goodwin asked
Love certain questions to test her memory and found her recall about dates to be correct. He
recalled that Love was friendly during the interview. McWilliams and Goodwin prepared
and signed a memorandum summarizing their interview with Love.

Trial counsel testified that he had practiced law for thirty years and that the majority
of his practice was criminal defense. Trial counsel explained that, in addition to his private
practice, he did part-time work for the public defender’s office. As part of his work with the
public defender’s office, trial counsel served on the capital defense team, which was
assigned the petitioner’s case because it was not clear whether the State would seek the
death penalty. When the State decided not to seek the death penalty, trial counsel opted to
keep the petitioner’s case because he had been working on it for so long, and he represented
the petitioner until the end of the case. Trial counsel recalled that the petitioner and his co-
defendant were tried together.

Trial counsel testified that he met with the petitioner prior to trial and had “a lot of
face-to-face communication” with him. He visited the petitioner “[s]everal times” in jail and
spoke with him at each of the approximately twenty court appearances. Trial counsel felt
that he and the petitioner had a “pretty good” relationship and were able to communicate
with one another. Based on the petitioner’s assertions regarding where he was at the time
of the offense, trial counsel planned to present an alibi defense at trial. The petitioner
provided trial counsel with the name of Dafany Love for his alibi witness. Trial counsel’s
investigator went to Dyersburg to locate Love but was unable to find her.

Trial counsel testified that he was ultimately able to get in contact with Love because
the State was able to locate her after counsel gave notice that he would be presenting an alibi
defense. He explained that the State’s investigators found Love when she appeared for court
on a pending case. Trial counsel obtained a copy of the statement Love gave to the State’s
investigators and spoke to one of the investigators regarding the interview. Trial counsel’s
investigator also talked to Love, and they determined that Love would not be a good alibi
witness because “she said she didn’t have any knowledge of what we were talking about;

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that she was not with him; she was nowhere around him. . . . [S]he totally denied the whole
thing. So that’s not an alibi.” Trial counsel said that Love was the only alibi witness the
petitioner provided.

Trial counsel testified that the petitioner’s brother, Marvin, was not an actual alibi
witness as he only saw the petitioner earlier on the day of the offenses and not at the time
in question. Trial counsel said that, had Marvin been able to provide an alibi for the
petitioner, counsel “would have had him under subpoena.” Trial counsel did not remember
speaking to anyone during trial who indicated they could provide the petitioner with an alibi.
Trial counsel did not recall ever talking to the petitioner’s brother, Anthony, or any members
of the petitioner’s family being present or talking to him during trial.

Trial counsel testified that he conferred with the petitioner throughout the entire trial,
and the petitioner provided input. He discussed with the petitioner his right to testify and
advised the petitioner not to testify, but the petitioner decided to testify. Trial counsel noted
that the petitioner was identified by multiple witnesses during the trial as one of the
perpetrators.

On cross-examination, trial counsel testified that the petitioner communicated that his
brother, Marvin, had been with him at least part of the day of the offenses. Trial counsel’s
investigator talked to anyone the petitioner mentioned, and it was determined that Marvin
was not an alibi witness or he would have been subpoenaed for the trial. Trial counsel was
asked about a supplemental statement prepared by Officer Prentice Jolly on August 8, 2001,
in which it was noted that Dana Porter saw the victim lying on the ground at a Mapco gas
station but did not see the offense. Evidently, Porter opined that the killer may have been
a person called “Junior.” Trial counsel was sure that his office made efforts to find Porter.

Trial counsel testified that he filed a motion to suppress the identification of the
petitioner from a photographic lineup, and the trial court conducted a hearing on the issue.
He could not recall whether the witnesses who identified the petitioner were present at the
hearing. He recalled that Sergeant Fitzpatrick testified at the hearing because “it was
actually a Motion to Suppress the Photo Spread that was actually used to identify him is
what it was.” Trial counsel attempted to admit at trial a video from Court TV, but the trial
court did not allow it.

Trial counsel acknowledged that the petitioner filed a complaint against him on June
10, 2002, with the Board of Professional Responsibility, but he explained that it was with
regard to counsel’s personal marital problems and not the way he was handling the case. He
said that the Board summarily dismissed the complaint.

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 Trial counsel testified that the petitioner did not make any statements to the police
prior to trial. He noted that, when a defendant elects to testify and has made no previous
statements, prosecutors often point out that it is the defendant’s first time telling anyone
what happened. Trial counsel said that such tactics carry very little weight and objecting to
the prosecutor’s question would only draw more attention to it.

After the conclusion of the proof, the post-conviction court entered a written order
denying relief.

ANALYSIS

On appeal, the petitioner argues that the post-conviction court erred in denying his
petition because he received the ineffective assistance of counsel at trial and on appeal.
Post-conviction relief “shall be granted 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.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner
bears the burden of proving factual allegations by clear and convincing evidence. Id. §
40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the trial court’s findings as to the credibility of witnesses or the weight of their
testimony. Id. However, review of a trial court’s application of the law to the facts of the
case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:

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 First, the [petitioner] must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The same principles apply in determining
the effectiveness of trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596
(Tenn. 1995).

I. Allegations Against Trial Counsel

A. Alibi Defense

The petitioner’s first and primary argument is that trial counsel rendered ineffective
assistance for failing to investigate all facts and circumstances supporting an alibi defense
and presenting such defense at trial. Specifically, he asserts that trial counsel should have
called Dafany Love, Leatha Scott, Marvin Jackson, and Anthony Jackson to testify at trial.
He also asserts that trial counsel did not send an investigator to personally interview Love
but instead relied on the State’s investigators’ report.

Trial counsel testified that he planned to present an alibi defense at trial because of
the petitioner’s assertions regarding where he was at the time of the offenses. Trial counsel
said that the petitioner provided the name of Dafany Love as his only alibi witness. Trial
counsel’s investigator attempted to locate Love but was unable to find her. However, after

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trial counsel gave notice that he would be presenting an alibi defense, the State’s
investigators were able to locate Love, and counsel obtained a copy of her statement and
spoke to one of the State’s investigators regarding the interview. Trial counsel’s investigator
was also able to speak to Love, and they determined that she would not be a good alibi
witness because “she said she didn’t have any knowledge of what we were talking about;
that she was not with him; she was nowhere around him. . . . [S]he totally denied the whole
thing. So that’s not an alibi.”

At the evidentiary hearing, Love testified that she and the petitioner were in
Dyersburg at the time of the offenses and that the State’s investigators who interviewed her
lied by saying that she had told them she was not with the petitioner. Love also testified that
she spoke to trial counsel on the phone prior to trial, and he asked her if she would testify
on the petitioner’s behalf. The post-conviction court found Love’s testimony not credible
that she was with the petitioner at the time of the offenses and that the State’s investigators
lied by saying she told them she was not with the petitioner. Therefore, we cannot conclude
that trial counsel performed deficiently or that the failure to have Love testify at trial caused
the petitioner any prejudice.

The petitioner asserts that his mother, Leatha Scott, should have been called as an
alibi witness. However, Scott’s testimony at the evidentiary hearing established that,
although with the petitioner earlier in the day, she was not with the petitioner near the time
of the offenses. She had also taken some “real strong pills” and was asleep at the time the
police arrested the petitioner. She also acknowledged on cross-examination that she was not
present for any of the petitioner’s trial. We cannot conclude that the failure to have Scott
testify caused the petitioner any prejudice as her testimony was not relevant to the
petitioner’s alibi.

The petitioner asserts that his brother, Anthony Jackson, should have been called as
an alibi witness. Anthony testified that the petitioner and Love were at his house in
Dyersburg from 6:30 or 7:00 p.m. until 8:30 or 9:00 p.m. on the day of the offenses.
However, Anthony admitted that he did not go to the police after the petitioner was arrested
to inform them that the petitioner could not have committed the offenses. The post-
conviction court found Anthony’s testimony not credible; therefore, we cannot conclude that
the failure to have Anthony testify at trial caused the petitioner any prejudice.

The petitioner also asserts that his brother, Marvin Jackson, should have been called
as an alibi witness. However, Marvin’s testimony established that he was with the petitioner
earlier on the day of the offenses, but not at the time of the offenses. Marvin testified that
he called Anthony’s cell phone later that evening and spoke to the petitioner while he was
in Dyersburg. However, Anthony testified that only he, and not the petitioner, spoke to

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Marvin when he called. Trial counsel testified that he would have subpoenaed Marvin to
testify at trial had he been able to provide the petitioner with an alibi. The post-conviction
court accredited counsel’s testimony; as such, we cannot conclude that trial counsel rendered
deficient performance for failing to have Marvin testify, or that such caused the petitioner
prejudice.

The petitioner also insinuates that he was forced to testify because trial counsel did
not present his alibi defense. However, the petitioner admitted at the hearing that it was his
decision to testify and that his testifying was always a possibility going into the trial.

B. Jury Instruction

The petitioner argues that trial counsel rendered ineffective assistance by failing to
object to an inappropriate jury instruction on circumstantial evidence and failing to preserve
the issue for direct appeal. He asserts that the given charge, “‘It is not necessary that each
particular fact be proved beyond a reasonable doubt if enough are proved to satisfy the jury
of all the facts necessary to constitute the crime charged[,]’” allowed the jury to “find guilt
based upon a degree of proof below that required by the Constitution.” The State asserts
that the petitioner has waived the issue for failing to include the trial transcript in which the
instruction was given or a copy of the instruction in the appellate record.

We agree with the State that the petitioner has waived this issue for failing to ensure
a complete record was provided for our review. At the conclusion of the post-conviction
hearing, the petitioner’s attorney asked the court to enter as exhibits transcripts of the
suppression hearing and trial. The post-conviction court introduced a transcript of the
suppression hearing as Exhibit 9 and the trial as Exhibit 10. The court noted that the trial
transcript was three volumes. However, only the suppression hearing and first volume of
the trial transcript are included in the appellate record, neither of which contain the trial
court’s charge to the jury. In his brief, the petitioner repeatedly references volumes V and
VI of the trial transcript. It is the duty of the appealing party to prepare an adequate record
for appellate review. Tenn. R. App. P. 24(b). “When a party seeks appellate review there
is a duty to prepare a record which conveys a fair, accurate and complete account of what
transpired with respect to the issues forming the basis of the appeal.” State v. Ballard, 855
S.W.2d 557, 560 (Tenn. 1993). In the absence of an adequate record on appeal, this court
must presume that the trial court’s actions are correct. State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991).

Wavier notwithstanding, the instruction, as recounted by the petitioner, was
substantially similar to a charge on circumstantial evidence approved by our courts. See
State v. Bane, 853 S.W.2d 483, 487-88 (Tenn. 1993); State v. Raymond Douglas Myers, Sr.,

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No. M2003-01099-CCA-R3-CD, 2004 WL 911280, at *6-7 (Tenn. Crim. App. Apr. 29,
2004), perm. to appeal denied (Tenn. Nov. 8, 2004); State v. Phillip M. Mullins, No.
M2002-02977-CCA-R3-CD, 2003 WL 23021402, at *2-3 (Tenn. Crim. App. Dec. 29,
2003), perm. to appeal denied (Tenn. June 1, 2004); State v. Travis J. Woods, No.
E2001-01027-CCA-R3-CD, 2003 WL 21663682, at *6 (Tenn. Crim. App. July 16, 2003),
perm. to appeal denied (Tenn. Dec. 8, 2003). As such, the petitioner has failed to prove that
trial counsel performed deficiently or that any deficiency caused him prejudice.

C. Prior Convictions

The petitioner argues that trial counsel rendered ineffective assistance by failing to
object to the introduction of his prior sexual battery conviction on cross-examination. He
asserts that the fifteen-year-old conviction had very minimal probative value, and
“[c]ounsel’s failure to object to the admission . . . was undoubtedly prejudicial to [the
petitioner]’s credibility in the eyes of the jurors.” The State argues that the petitioner has
waived the issue for failing to present an adequate record for our review and that the
petitioner failed to present any evidence at the evidentiary hearing to establish that the prior
conviction was improperly used during cross-examination or prejudiced his case.

We conclude that the petitioner has failed to prove that counsel performed deficiently
or that any deficiency caused him prejudice. The petitioner, as with the previous issue,
failed to ensure that the record contained the relevant portion of the trial transcript that
referenced the prior conviction. More importantly, he failed to present any evidence at the
evidentiary hearing that the prior conviction was used improperly or prejudiced his case. At
the hearing, the petitioner acknowledged that he had a prior sexual battery conviction and
argued that the State had erroneously referred to convictions for “aggravated burglaries and
possession of handguns.” As to this issue, the post-conviction court found that the record
showed the petitioner was charged with being a convicted felon in possession of a firearm;
therefore, the State had to prove the petitioner’s prior conviction as a necessary element of
the offense. The record reveals no error in the post-conviction court’s determination.

D. Witnesses at the Suppression Hearing

The petitioner argues that trial counsel was ineffective for failing to subpoena his
accusers, Kevin Wiseman and Kim Hughes, to testify at the suppression hearing, which
resulted in the denial of his right to confrontation, and failing to preserve the issue for
appeal. Sergeant James Fitzpatrick testified at the suppression hearing regarding his
compilation of the photographic arrays in the case and the identifications by Wiseman and
Hughes. At the evidentiary hearing, counsel testified that the suppression hearing was for
“a Motion to Suppress the Photo Spread that was actually used to identify [the petitioner],”

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and Sergeant Fitzpatrick testified in that regard.

After review, we conclude that the petitioner has failed to prove that counsel
performed deficiently or that any deficiency caused him prejudice. The right to
confrontation is a trial right and does not apply in suppression hearings. See State v. Bush,
942 S.W.2d 489, 511 (Tenn. 1997); see also Haggard v. State, 475 S.W.2d 186, 187 (Tenn.
Crim. App. 1971) (noting that “[t]he ‘confrontation’ guaranteed by the United States
Constitution is confrontation at trial”); Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987).
Moreover, the petitioner offered no proof as to how the outcome of his case would have
been different had Wiseman and Hughes testified at the suppression hearing. As to this
issue, the post-conviction court found that there was no evidence in the record to support the
petitioner’s claim, and we agree.

E. Prosecutor’s Statements Regarding Post-Arrest Silence

The petitioner argues that trial counsel was ineffective for failing to object to the
prosecutor’s comments concerning his post-arrest silence and failing to preserve the issue
for appeal. However, the petitioner has failed to prove that trial counsel performed
deficiently as he failed to specify the allegedly improper statements or ensure that the
pertinent portions of the trial transcript were included in the appellate record. In any event,
the record indicates that the petitioner may be referring to a statement by the prosecutor
pointing out that the first time the petitioner told his story was when he testified at trial. In
that regard, trial counsel testified at the evidentiary hearing that, when a defendant elects to
testify and has made no previous statement, it is a common tactic by the prosecution to point
out that it is the defendant’s first time telling his story. Counsel said that such tactics carry
very little weight and objecting to the prosecutor’s question would only draw more attention
to it. The post-conviction court concluded that trial counsel made an appropriate tactical
decision to not object to the prosecutor’s statement. The record supports this determination.

F. Prosecutor’s Misstatements Regarding the Facts

The petitioner argues that trial counsel was ineffective for failing to object to the
prosecutor’s statements in closing argument to facts not in the record and failing to preserve
the issue for appeal. The petitioner asserts that the prosecutor’s statement that the petitioner
took the victim’s car keys during the encounter was not supported by the evidence.

The petitioner failed to ensure that the transcripts of the closing arguments were
included in the record on appeal; therefore, we are unable to review the allegedly
inappropriate comments. In any event, the portion of the trial transcript that is available, as
well as our opinion on direct appeal, show that Kevin Wiseman testified that three men,

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including the petitioner, approached him and his brother, Jesse Windom, in the car lot. He
said that he heard the petitioner start the Lexus, even though he did not specifically see him
get the keys. However, he later testified that the men got the keys to the Lexus from
Windom’s person. Wiseman then, on cross-examination, again testified that he did not see
the petitioner obtain the keys but saw him “crank up the Lexus.” “A prosecutor’s closing
argument may be based upon reasonable inferences drawn from the evidence.” State v.
Henretta, 325 S.W.3d 112, 126 (Tenn. 2010). In light of Wiseman’s testimony, it was
reasonable for the prosecutor to tell the jury in closing argument that the petitioner obtained
the keys from the victim. Thus, we discern no deficiency in trial counsel’s performance for
failing to object to the prosecutor’s statement. Moreover, as found by the post-conviction
court, the “[p]etitioner has not demonstrated how [c]ounsel’s failure to object to any
possibly misconstrued facts during the State’s closing arguments prejudiced him.”

G. Prosecutor’s Misstatement of Prior Convictions

The petitioner argues that trial counsel was ineffective for failing to object to the
prosecutor’s misstatement of the petitioner’s prior convictions and criminal history by saying
that the petitioner “had been convicted of aggravated burglaries and possession of
handguns.” He asserts that “[s]uch statements unfairly characterized [him] as violent and/or
dangerous in the eyes of the jury.”

However, the petitioner failed to ensure the transcript of the closing arguments was
included in the record on appeal for this court to review the prosecutor’s exact statement.
In any event, the petitioner failed to prove that trial counsel performed deficiently as he did
not show that he had not been convicted of offenses reasonably characterized as that stated
by the prosecutor. Our opinion on direct appeal recites the petitioner’s criminal record to
include convictions for, among other things, second degree burglary.2 Under our prior
criminal code, second degree burglary was the burglary of a dwelling house. See Tenn.
Code Ann. § 39-3-403(a) (1986). Aggravated burglary under our current code is burglary
of a habitation. Id. § 39-14-403(a) (2006). Moreover, the petitioner received a fifteen-year
sentence on the second degree burglary convictions, the maximum provided for by the
former statute. The record is silent as to whether the petitioner received that sentence
because he possessed a handgun during the commission of the burglary, see id. § 39-3-
403(3), or for other reasons. In addition, the petitioner offered no showing that such
misstatement by the prosecutor, if deemed as such, in the scope of an entire closing
argument, prejudiced his case.

2
The offenses occurred prior to the 1989 Sentencing Reform Act.

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 H. Comments on Lesser-Included Offenses

The petitioner argues that trial counsel was ineffective for failing to object to the
State’s comments to the jury regarding its consideration of lesser-included offenses and
failing to preserve the issue for direct appeal. The petitioner contends that the State “advised
the jury that they must not consider the lesser included offenses, despite the fact that it is the
function of the Court, not the attorneys, to instruct the jurors on application of the law.”

Again, the transcript of the State’s closing argument was not included in the record
on appeal; therefore, we are unable to evaluate the prosecutor’s specific comment. It
appears from the petitioner’s testimony at the evidentiary hearing that the prosecutor argued
that the petitioner was guilty of first degree murder, and any other verdict would essentially
be a not guilty verdict. However, such argument can be reasonably viewed as a contention
by the State that the facts fully supported a first degree murder conviction. Moreover, we
cannot conclude that such comment prejudiced the petitioner’s case because the trial court
presumably instructed the jury as to its consideration of lesser-included offenses and
answered the jury’s questions regarding lesser-included offenses in accordance with the law.

I. Late Disclosure of a Witness

The petitioner argues that trial counsel was ineffective for failing to object to the
State’s “late and untimely disclosure of Brady v[.] Maryland witness statement materials and
failure to request a recess for the purpose of reviewing the prior statements of witness Kim
Hughes, the [S]tate’s identification witness.”

Although the petitioner references it in his brief, he failed to include the portion of
the trial transcript where the State disclosed the witness statement and the trial court granted
a recess for the parties to review the information. In any event, the petitioner has failed to
show how his case was prejudiced due to the late disclosure of Hughes’ statement. This
court has previously addressed the difference between delayed disclosure of evidence and
complete nondisclosure of evidence:

Indeed, when there has been a delayed disclosure of evidence, as opposed to
a complete nondisclosure, Brady is normally inapplicable unless the delay
itself causes prejudice. See State v. Caughron, 855 S.W.2d 526, 548 (Tenn.
1993); State v. Joan Elizabeth Hall, No. 01C01-9710-CC-00503, 1999 WL
34782, at *9 (Tenn. Crim. App. at Nashville, Jan. 28, 1999). When there has
been a delayed disclosure, as opposed to a nondisclosure, the appellant must
establish that the delayed disclosure prevented him from using the disclosed
material effectively in preparing and presenting his case. Caughron, 855

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 S.W.2d at 548.

State v. Larry Boykin, No. E2005-01582-CCA-R3-CD, 2007 WL 836807, at *13 (Tenn.
Crim. App. Mar. 20, 2007), perm. to appeal denied (Tenn. Aug. 13, 2007). The petitioner
acknowledged that trial counsel received the material during trial and that the trial court
granted a recess, which allowed counsel time to review the material. The petitioner has
failed to show how, or even allege, the delay in receiving the materials or trial counsel’s
failure to discuss the materials with him prejudiced his case.

II. Allegations Against Appellate Counsel

A. Failure to Appeal Instruction on Lesser-Included Offenses

The petitioner argues that appellate counsel was ineffective for failing to cite and rely
on the Tennessee Supreme Court opinion, State v. Ely, 48 S.W.3d 710 (Tenn. 2001), which
held that criminally negligent homicide was a lesser-included offense of felony murder and
premeditated first degree murder.

As to this issue, the post-conviction court noted that, in Ely, the trial court had refused
to instruct the jury on any lesser-included offenses to felony murder, including second
degree murder, as opposed to the petitioner’s case where the jury was instructed on several
lesser-included offenses, including second degree murder. Given that the jury was
instructed on several lesser-included offenses but did not reduce the charge below first
degree murder, we fail to see how the petitioner was prejudiced by the failure to charge the
jury on an even lesser charge. Therefore, we cannot conclude that appellate counsel
rendered ineffective assistance in this regard.

B. Failure to Appeal Exclusion of Court TV Videotape

The petitioner lastly argues that appellate counsel was ineffective for failing to appeal
the trial court’s exclusion of videotape evidence of his pre-arrest witness identification
recorded by Court TV. The petitioner explained that Kevin Wiseman’s initial identification
of him was recorded as part of a television program for Court TV. He claimed that the
“footage would have revealed to the jury that Mr. Wiseman was quite tentative and uncertain
during the selection process, when theoretically the details of the events would have been
much more recent and clearer in his memory.”

The record does not suggest a reasonable probability that an appeal of this issue
would have been successful. At trial, counsel for the co-defendant attempted to enter the
Court TV tape to show inconsistencies in Wiseman’s ability to identify the co-defendant.

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The prosecutor argued that the video could not be authenticated because Wiseman’s picture
was blurred out. The video was played for the court in a jury-out hearing. The court
observed that the video was “dramatized and misleading” and had been edited to utilize split
screens and different angles. The court described the video as a “commercialized
sensationalized Hollywood film,” not “an objective constantly running camera for C-SPAN
or for some civics class.” The court also found that the video did not impeach Wiseman, as
it showed him making an identification of the co-defendant. There was no real discussion
concerning Wiseman’s identification of the petitioner, but the discussion suggests that
questions concerning the confidence of Wiseman’s identification primarily involved only
the co-defendant. The court excluded the tape but allowed the parties to ask Wiseman
questions about it on cross-examination, noting that the parties could renew their request if
Wiseman said something directly contrary to what was shown on the video. After
Wiseman’s testimony, the court noted that Wiseman had testified consistently with what was
reflected on the video.

The admission of evidence generally lies within the sound discretion of the trial court
and will not be reversed on appeal absent a showing of an abuse of discretion. See State v.
Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); State v. Gilliland, 22 S.W.3d 266, 270 (Tenn.
2000); State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999). Given the evidence before us, we
simply fail to see, had the issue been appealed, any reasonable probability that the reviewing
court would have determined that the trial court abused its discretion in excluding the Court
TV videotape. Therefore, we cannot conclude that appellate counsel was ineffective in this
regard.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.

_________________________________
ALAN E. GLENN, JUDGE

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