State of Tennessee v. Kenneth Kirkwood

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 8, 2014

STATE OF TENNESSEE v. KENNETH KIRKWOOD

Appeal from the Criminal Court for Shelby County
No. 09-07493 Chris Craft, Judge

No. W2013-01007-CCA-R3-CD - Filed August 27, 2014

Appellant, Kenneth Kirkwood, was convicted by a Shelby County jury of especially
aggravated robbery, especially aggravated kidnapping, use of a firearm in the commission
of a dangerous felony, and aggravated burglary. Following a sentencing hearing, the court
imposed a total effective sentence of forty-five years, to be served at 100%. Appellant filed
a motion for new trial, which was denied. He argues on appeal that the jury verdict was
against the weight of the evidence, that counsel was ineffective, and that the trial court erred
by not granting him a continuance on his motion for new trial. After thoroughly reviewing
the evidence, we affirm the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
C AMILLE R M CM ULLEN, JJ., joined.

Paul K. Guibao (on appeal) and Larry E. Copeland (at trial), Memphis, Tennessee, for the
appellant, Kenneth Kirkwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Marriane Bell, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

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 The crime from which this appeal arose occurred on the morning of April 28, 2009.
According to the testimony of the victim, Arnedra Taylor, she left her home in Memphis that
morning to go to the Family Dollar store to pick up some household items. Her husband was
at work, and her three children were at school. Ms. Taylor had a small business selling candy
and snacks from her home to neighborhood children, and was locally known as “the candy
lady.” At about 11:00 a.m., Ms. Taylor returned from Family Dollar and was sitting in her
parked car in her driveway. Her car door was open while she talked on her cell phone with
her sister’s boyfriend.

As she sat there, she noticed a gold Chevy Trailblazer SUV pull up in front of her
house. A man she did not recognize at the time, but later identified as Appellant, stepped out
of the vehicle and walked across her front yard. She described the man to the jury as “a
darker skin male, low haircut, wavy hair, and he had on a black dicky short set.” She also
testified that he was about five feet and five or six inches in height and had a medium build.
As the man approached the driver’s door of Ms. Taylor’s car, he yelled back to the driver in
the Trailblazer, “I’m going to see if they still sell soft drinks.” Ms. Taylor thought that
strange, because the man could have purchased a soda at a nearby store, and she usually only
sold her candy and drinks to children, not adults.

The man walked directly up to the car door and asked Ms. Taylor if she still sold
drinks. She said she did, but didn’t have any at the moment. The man then pulled a black
handgun out of his waistband, pointed it at Ms. Taylor, and said “you already know what this
is.” He asked who was inside the house, and Ms. Taylor replied, “no one.” Appellant then
said, “let’s go in the house.” Ms. Taylor was still on her cell phone, and she was repeating
what Appellant was saying to the person on the other end, hoping he would realize that she
was in danger. But her sister’s boyfriend never stopped talking and never realized that
something was wrong.

Appellant grabbed Ms. Taylor’s key ring, grabbed her arm, and ordered her into the
house. He took the phone out of her hand, turned it off, and put it in his pocket. At that
point, she noticed the driver of the Trailblazer stepping out of the vehicle. Appellant did not
know which of the keys opened the front door, so he gave them back to Ms. Taylor, holding
his gun to her back as she unlocked the door. Ms. Taylor’s bulldog was sleeping on the
couch when the door was opened. Appellant asked what the dog was going to do. Ms.
Taylor told him that the dog wouldn’t bother them if they didn’t bother him, and she sent the
dog to a back room for its own safety.

Once inside, Appellant kept asking for money, and Ms. Taylor told him she didn’t
have any. Then she thought about a jar in her bedroom where she kept her “candy lady”
money and she told him about it. He walked her to the bedroom, his gun still in her back.

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Following his orders, she retrieved the jar from the top shelf of her closet and placed it on
a night stand. It contained about forty dollars in one dollar bills and “a lot of change.”
Appellant became agitated because of the small amount of money in the jar, and he said to
Ms. Taylor, “oh bitch, you think I’m playing.” She replied that if she had anything left to
give they would have had it already so they could leave her home.

The driver of the Trailblazer was also in the house by that time. He was later charged
as Appellant’s co-defendant. Ms. Taylor described him as “kind of tall, lighter skin than the
first male, big round hazel-colored eyes.” He was wearing an oversize ball cap, dark color
t-shirt and dark jeans. He carried a black automatic pistol in his left hand and his right hand
was wrapped in a towel or t-shirt. Appellant nudged Ms. Taylor onto the bed and the two
men walked around the bedroom, looking in drawers, on top of the dresser, and lifting the
corners of the mattress. As they explored the bedroom, the second man kept reminding
Appellant not to touch anything.

Ms. Taylor, who remained on the bed, then told the intruders to check a Planter’s
Peanut can on top of the television set in the bedroom “because sometimes my husband
would keep a little money in there.” The second man picked up the jar and carried it into the
hallway. Ms. Taylor testified that her husband later told her that there had been about $200
in the can. Appellant kept insisting that he knew Ms. Taylor had more money, that she
thought he was playing, and he said that he was going to shoot her in the face. He waved his
gun in her face, and she pushed it aside, telling him that “I had three kids coming home from
school in a couple of hours and they couldn’t come home to find me shot over a few dollars.”

This appeared to enrage Appellant, because he “cocked his gun back to get ready to
shoot me but it jammed.” Appellant tried to get the gun unjammed four or five times, but
without success. He then said to the other intruder, “hey cuz, let me see yours.” The two
men switched guns. Appellant grabbed a decorative pillow from the bed, put it against Ms.
Taylor’s left hip and fired. The bullet entered Ms. Taylor’s left hip, exited her left inner
thigh, re-entered the right inner thigh and came out of the back of the right thigh. Ms. Taylor
reported that the shot felt like fire, a painful and numbing tingling from the waist down. She
subsequently suffered medical complications from the injury that left her disabled.

The men then left, taking the money with them. They also took Ms. Taylor’s oldest
son’s laptop computer from the front room as they exited. After she heard the front door
close, Ms. Taylor, bleeding heavily from her wounds, crawled across the bed to try to get to
the bedroom window so she could get the tag number of the intruders’ vehicle. But it was
already gone by the time she reached the window. She then crawled to the living room to get
her cordless phone, pulling herself by her arms, and she called 911.

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 A Fire Department EMT arrived shortly thereafter. He cut Ms. Taylor’s jeans off,
stopped the bleeding and began an IV line. When police officers arrived, Ms. Taylor told
them what happened and described the two perpetrators. An ambulance followed, and
transported the victim to the MED trauma center for further treatment. A crime scene officer
from the Memphis Police Department arrived after the ambulance carrying the victim left.
She took photos of the crime scene, some of which showed smears of blood on the blankets
and the jeans, and drops of blood on the floor. She collected the evidence, including the
bloody jeans and a bullet casing she found on the floor.

Identifying the Suspects
Sergeant Myron Fair of the Memphis Police Department’s Robbery Division was
assigned to the case. He went to Ms. Taylor’s home on the afternoon of April 28 after she
had been taken to the trauma center, and he observed the collection of evidence. He then
went to the hospital. After checking with the doctor about Ms. Taylor’s condition, he went
into her room, introduced himself, and interviewed her. The interview was very brief
because Ms. Taylor was in pain and very upset. She was nonetheless able to explain the
basic details of the crime to the sergeant, including a description of the vehicle the
perpetrators were driving. She did not, however, describe the perpetrators at that time.

Sergeant Fair gave Ms. Taylor his card and told her to call him when she was feeling
better. When he returned to his office, the Sergeant conducted a record search to find out if
there was any connection between a gold SUV and other robberies in the area, but the search
did not turn up anything useful. He also sent out an e-mail broadcast to the precincts with
a description of the crime and the SUV, so officers system-wide would be notified to look
for the vehicle.

Ms. Taylor did not know the identity of either perpetrator. She was still recuperating
several weeks after the incident, when a neighborhood friend visited. Ms. Taylor told the
neighbor about the incident and said that although she had never seen the shooter before, she
thought that the other individual looked familiar, someone whom she had seen around the
neighborhood, but whose name she did not know.

After Ms. Taylor described that individual’s hazel eyes, the neighbor pulled up her
niece’s “My Space” page. The two women started going through the pictures and found
several pictures of a young man with the neighbor’s niece. Ms. Taylor recognized him as the
second intruder by his hazel eyes. Ms. Taylor left the pictures on the computer and showed
them to her husband when he came home. He identified the man in the picture as “Ms.
Joanne’s son.” Ms. Joanne was a neighbor who used to work for a man who had rented a
house to Ms. Taylor and her family. Ms. Joanne’s son was named William Acey.

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 Ms. Taylor informed Sergeant Fair of this development, and he called her in for a
photographic line-up on May 23, 2009. According to the testimony of both Ms. Taylor and
Sergeant Fair, she was shown a line-up sheet with the faces of six individuals, and was told
that the man she named might or might not be in the line up and to take her time while
looking at the sheet. Within a minute she picked out the photo of William Acey. She circled
the photo and wrote on the sheet, “[t]his is one of the guys who approached me in my
driveway forced me in my home at gunpoint took me to my bedroom demanded money and
gave his gun to his partner to shoot me in my left thigh.” (no punctuation in original). After
she identified Mr. Acey, Ms. Taylor prepared a written statement detailing the circumstances
of the crime in the same terms as her explanation at the hospital, but adding a general
physical description of the two perpetrators that included their height, weight, complexions,
and what they were wearing.1 Shortly thereafter, Mr. Acey was arrested and jailed.

The record shows that Ms. Taylor and Sergeant Fair followed up on several other
leads that did not pan out. On May 7, 2009, even before she identified William Acey, Ms.
Taylor gave the Sergeant the names of two men, Marcus and Tyrone Fields, that someone
told her were responsible for the crime. Sergeant Fair researched the names. He discovered
that Marcus Fields was incarcerated at the time of the crime, therefore eliminating him as a
suspect, and he was unable to discover anything about Tyrone Fields. On June 12, 2009,
Sergeant Fair received a tip from Crime Stoppers that a man named Rico Smith might have
been one of the perpetrators.2 He took a photo of Mr. Smith, put it in a photo lineup and had
Ms. Taylor come in to view it. Ms. Taylor was unable to identify anyone in that lineup.

On August 3, 2009, Sergeant Fair received a Crime Stoppers tip that a man named
Kenneth Kirkwood who was in jail had been bragging about robbing and shooting people.
The sergeant created another photo lineup that included Appellant’s picture. On August 11,
Ms. Taylor was brought in and was given the same instructions as in the two previous lineups.
She identified Appellant in about a minute, and she wrote on the lineup sheet, “[t]his is the
other guy who robbed me. He put the pillow to my left hip and shot me.” Ms. Taylor
subsequently attended two preliminary hearings at which she identified both Appellant and
Mr. Acey. On November 19, 2009, the Shelby County Grand Jury indicted Appellant for
especially aggravated robbery, especially aggravated kidnapping, employment of a firearm
during the commission of a dangerous felony, and aggravated burglary. Mr. Acey was

1
Although there was testimony at trial about Ms. Taylor’s written statement, it was not admitted
into evidence.
2
Ms. Taylor testified that she was informed that Sergeant Fair finished his shift at 4:00 p.m. and
that if she acquired any relevant information after that time, she should phone it in to Crime Stoppers.
Her testimony shows that she was the source of all the Crime Stoppers tips cited in this opinion.

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indicted on similar charges.3

The Criminal Trial
Prior to trial, the State filed a notice of intent to seek enhanced punishment of
Appellant pursuant to Tennessee Code Annotated Section 40-35-202. The State cited
Appellant’s previous convictions for especially aggravated kidnaping, aggravated robbery,
and possession of a controlled substance, and asked that Appellant be tried as a multiple
offender, a persistent offender or a career offender. For his part, Appellant filed a motion to
suppress Ms. Taylor’s out-of-court identification, alleging that the photo lineup process was
unduly suggestive and that it gave rise to “a very substantial likelihood of irreparable
misidentification.” See Simmons v. United States, 390 U.S. 377, 384 (1968). The appellate
record is devoid of any order related to the motion to suppress, and Appellant did not bring
up the motion during trial.

Appellant and Mr. Acey were tried together over a period of one week, from December
10 to December14, 2012. Ms. Taylor testified that about ten minutes passed from the time
she was accosted at her car by Appellant until she was shot, and that she had ample
opportunity to get a good look at the perpetrators during that time. She stated that when
Appellant was threatening her with his gun in her bedroom, he and his co-defendant stood
only a foot and a half away from her, and she could see their faces clearly in the light from
the bedroom window.

She further testified that she gave the police officers who arrived on the scene a
description of both defendants in which she mentioned that the shorter, stockier man had an
underbite and a scar on his face. She was asked on cross-examination to point out the scar
on Appellant’s photo in the line-up sheet, and she used a laser pointer to indicate an almost
imperceptible difference in color between an area under Appellant’s left eye and the
surrounding flesh of his cheek.

The 911 supervisor for the Memphis Police Department, the EMTs who had treated
Ms. Taylor at the crime scene, and the crime scene officer who collected the evidence testified
briefly. The prosecution then called Sergeant Fair. He testified that he did not give Ms.
Taylor any hints about who to pick out from the photo lineups and that he told her that the
individuals she named might or might not be included. He also stated that Ms. Taylor picked
the suspects out from the two lineups in less than a minute, and that he did not tell her what

3
Appellant was charged in the indictment with unlawful employment of a firearm during the
commission of the other felonies, while Mr. Acey was charged with unlawful possession of a firearm
with intent to go armed during the commission of those same felonies. In all other respects, the charges
against the two men were the same.

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to write on the sheet. The lineup sheets that Ms. Taylor viewed were admitted into evidence.

At the conclusion of the prosecution’s case, Appellant and Mr. Acey were each
informed that they had the constitutional right to testify on their own behalf or to decline to
testify, and that if they waived that right, the jury would be instructed that it was not permitted
to draw any inferences from that decision. See Momon v. State, 18 S.W.3d 152, 162 (Tenn.
1999). Appellant declared that he wished to waive his right to testify.4 Mr. Acey chose to
testify on his own behalf, however. When he took the stand, he denied that he robbed and
shot Ms. Taylor. He testified that he lived with his mother, two or three blocks away from
Ms. Taylor’s house. He said he didn’t really know her, but he knew “of” her since he was a
child, because her children sometimes came over to his mother’s house to play basketball.
He denied that he knew Appellant or had any dealings with him prior to April 29, 2009, but
he admitted that he had seen Appellant around the neighborhood a few times.

The court gave the jury its instructions, including explanations of all the lesser included
offenses that might apply to the charges in the indictment, and the parties presented closing
arguments. The jury then deliberated for about two hours before finding Appellant guilty of
especially aggravated robbery, especially aggravated kidnapping, use of a firearm in the
commission of a felony, and aggravated burglary. Mr. Acey was acquitted of all charges.

Appellant’s sentencing hearing was conducted on February 22, 2013. The trial court
cited several enhancement factors and the absence of any mitigating factors in sentencing
Appellant as a Range II offender to thirty-five years for especially aggravated kidnapping,
thirty-five years for especially aggravated robbery, ten years for employing a firearm during
the commission of a felony, and nine years for aggravated burglary. The court ordered that
the kidnapping, robbery, and burglary sentences be served concurrently to each other, and that
the firearms sentence be served consecutively to the other sentences, for a total effective
sentence of forty-five years, to be served at 100%.

On March 22, 2013, Appellant filed a timely motion for new trial, arguing that the
“verdict was contrary to the law and the evidence in this case.” Another ground for new trial
was stated as follows: “[d]efense counsel at certain times fell asleep during the presentation
of this case, this ground is placed at the defendant’s request and only to protect the
defendant’s appellate rights.” The trial court conducted a hearing on the same day, and
explained to Appellant that the allegation amounted to a claim of ineffective assistance of
counsel, and that if it was raised and denied on a motion for new trial, Appellant might be
unable to raise that ground in a post-conviction proceeding. The court accordingly advised

4
Appellant was informed that if he did testify, the State intended to cross-examine him about his
prior felony convictions.

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Appellant against proceeding on that ground.

Appellant said that his attorney had not come to see him since he was sentenced, and
he asked the court to grant him a continuance so he could confer with his attorney before
deciding whether to proceed on the ineffective assistance claim, but the court denied the
request. Appellant then said he wanted to go forward on that claim and the court ruled. The
court stated that it had approved the verdict as thirteenth juror, and that it was not contrary to
the law or the evidence. On the claim of ineffective assistance of counsel, the court explained
that Appellant’s attorney told him at the start of the trial that he was on cold medication that
sometimes made him drowsy. The court continued:

I particularly watched him during the trial along with his codefendant and his
codefendant’s attorney and at no time from what I can see was [Appellant’s
attorney] not ready. At no time was he sound asleep. At no time was he trying
to fall asleep, head hit the counsel table. And every time it was time for cross-
examination of a witness [Appellant’s attorney] got up and performed
adequately. And I find that he was not asleep during the presentation of this
case affecting the defendant’s rights to a fair trial. I find Mr. Kirkwood had
a fair trial.

The court accordingly denied Appellant’s motion for new trial. This appeal followed.

Analysis

1. The Sufficiency of the Evidence

A verdict of guilt, rendered by a jury and approved by the trial judge, “accredits the
testimony of the State's witnesses and resolves all conflicts in the testimony in favor of the
State.” State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54,
75 (Tenn. 1992). Thus, although the accused is originally entitled to a presumption of
innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id.

The relevant question the reviewing court must answer is whether any rational trier of
fact could have found the accused guilty of every element of the offense beyond a reasonable
doubt. Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In making
this determination, we are to accord the State “the strongest legitimate view of the evidence
as well as all reasonable and legitimate inferences that may be drawn therefrom.” See Tuggle,

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639 S.W.2d at 914. Questions concerning the credibility of the witnesses and the weight and
value to be given to evidence, as well as all factual issues raised by such evidence, are
resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 599, 561
(Tenn.1990).

In a criminal case it is incumbent upon the prosecution to prove beyond a reasonable
doubt not only the commission of the crime charged but also its perpetration by the accused.
State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995); see also State v. Demarco Bowdery, No.
02-C01-9705-00173, 1998 WL 30724 (Tenn. Crim. App., at Jackson, Jan. 29, 1998), perm.
app. denied (Tenn., Oct. 12, 1998). “The identification of a defendant as the person who
committed the offense for which he is on trial is a question of fact for the determination of the
jury upon consideration of all competent proof.” State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App.
1982)).

Appellant argues that the verdict in this case was based on insufficient evidence. He
notes the lack of investigatory effort by Sergeant Fair and complains that “the victim through
her own independent ‘investigation’ seems to be in charge of the detective’s case.” Appellant
notes that Ms. Taylor was the only witness linking him to the commission of the crime, and
he suggests that her identifications are suspect because the only information she obtained
about Appellant came from an undisclosed individual in the Shelby County Jail, and she did
not always mention the same details about his appearance in every description of him that she
gave.

It is well established, however, that, “[t]he credible testimony of one identification
witness is sufficient to support a conviction if the witness viewed the accused under such
circumstances as would permit a positive identification to be made.” State v. Radley, 29
S.W.3d 532, 537 (Tenn. Crim. App. 1999) (citing Strickland, 885 S.W.2d at 87-88). If that
were not so, it would be extremely difficult to obtain convictions for crimes involving only
one victim when those crimes are committed out of the public eye.

Ms. Taylor testified that she was able to get a good look at Appellant on the morning
of the crime, and that he stood only a foot and a half away from her as he threatened her with
a gun. She further testified that the light from her bedroom window was bright enough to
enable her to see his face clearly. Because she did not recall ever having seen Appellant prior
to the crime, Ms. Taylor had to rely on information from neighbors and friends about the
names of possible suspects to pass on to the police. Ms. Taylor picked Appellant’s photo
from a lineup of six similar faces within about a minute of seeing the lineup. She also
identified Appellant at a preliminary hearing and at trial.

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 The general descriptions of Appellant that Ms. Taylor gave to police and other
witnesses as to his height, build and complexion were consistent throughout the case, but, as
Appellant points out, some of those descriptions mentioned a scar and an under bite, while
others did not. However, inconsistency, inaccuracy and omissions in the description of a
defendant by a witness who is otherwise able to positively identify the defendant are questions
for the jury to consider in determining the weight to be given the testimony. Radley, 29
S.W.3d at 537; see also State v. Spencer, No. W2013-00657-CCA-R3-CD, 2014 WL 1767109
(Tenn. Crim. App., at Jackson, Apr. 29, 2014). The evidence in this case is more than
sufficient to support the jury’s verdict.

II. The Motion for New Trial

Appellant also appeals the trial court’s dismissal of his motion for new trial. He
acknowledges that his attorney’s performance at trial “fell within the range of competence
demanded of attorneys in criminal cases,” but his arguments are also directed towards the role
of his attorney at the hearing on the motion for new trial.

We note that in order to obtain relief for ineffective assistance of counsel, a defendant
must show not only that his attorney fell below the standards of the profession, but also that
the attorney’s conduct caused him actual prejudice. See Strickland v. Washington, 466 U.S.
668, 692 (1984); Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Prejudice occurs when
the defendant can show “that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694; Goad, 938 S.W.2d at 370. “Because a petitioner must establish both prongs of the
test to prevail on a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

Defendants are entitled to the assistance of counsel at every critical stage of a criminal
prosecution. United States v. Wade, 388 U.S. 218 (1967); State v. Carruthers, 35 S.W.3d 516,
567 (Tenn. 2000) (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)); State v. Kilby,
763 S.W.2d 389, 390 (Tenn. Crim. App. 1988) (citing Coleman v. Alabama, 399 U.S. 1
(1970)); State v. Mosher, 755 S.W.2d 464, 468 (Tenn. Crim. App. 1988). Those stages include
proceedings at a motion for new trial. See Wallace v. State, 121 S.W.3d 652, 659 (Tenn.
2003); Abdi v. State, No. M2012-02688-CCA-R3-PC, 2013 WL 6081461, at *8 (Tenn. Crim.
App., at Nashville, Nov. 18, 2013). Assistance of counsel not only means the presence of an
attorney at such proceedings, but also that counsel be effective. Campbell v. State, 904 S.W.2d
594, 596 (Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387 (1985)).

Appellant complains that the same attorney that had represented him at trial also

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represented him at the motion hearing, thereby creating an irreconcilable conflict of interest
that prevented the attorney from vigorously pursuing a claim that his own performance at trial
had been ineffective. Appellant suggests that the trial court could have cured this problem by
appointing different counsel to argue the motion for new trial. While that clearly would have
been the better practice, such a conflict does not, in and of itself, establish that counsel was
ineffective, so as to entitle the defendant to relief. See Porterfield v. State, 897 S.W.2d 672,
679 (Tenn. 1995) (holding that although both the defendant’s trial and appellate counsel were
members of the Public Defender’s Office, and his appellate counsel knew of his dissatisfaction
with his trial counsel’s presentation, the defendant failed to demonstrate any conflict of interest
or show any prejudice); Bourne v. State, No. E2003-00462-CCA-R3-PC, 2004 WL 533938,
at *8 (Tenn. Crim. App., at Knoxville, Mar. 18, 2004) perm. app. denied (Tenn., Sept. 7, 2004)
(holding that the defendant failed to prove any prejudice arising his representation by the same
attorney at his motion for new trial as had represented him at trial, even though he claimed that
the attorney had been ineffective at trial).

Appellant nonetheless contends that the hearing on his motion for new trial fell so short
of required constitutional standards as to require reversal or remand. To support this theory,
he relies on the case of United States v. Cronic, 466 U.S. 648 (1984), which he refers to as “the
companion case to the bellwether ineffectiveness-assistance case, Strickland v. Washington.”
In Cronic, the Court noted the possible existence of “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect in a particular case is unjustified,”
and thus that prejudice can be presumed under those circumstances. Cronic, 466 U.S. at 658.

The Cronic Court stated that most obvious circumstance likely to prejudice the accused
and thus to justify a presumption of prejudice is, of course, the complete denial of counsel.
Cronic, 466 U.S. at 659. Our Supreme Court applied the same principle in Wallace v. State,
121 S.W.3d 652, 658 (Tenn. 2003) (holding that the attorney’s failure to file a motion for new
trial coupled with his failure to withdraw as counsel, thereby preventing the defendant from
filing a pro se motion, was presumptively prejudicial). Another type of situation that would
justify the presumption of prejudice would be one in which the surrounding circumstances
make “the likelihood that counsel could have performed as an effective adversary . . . so
remote as to have made the trial inherently unfair.” Cronic at 660-61 (citing the Supreme
Court’s opinion in the infamous “Scottsboro boys” trial, Powell v. Alabama, 287 U.S. 45
(1932)).

It is noteworthy that after citing these and other examples, the Court determined that
defendant Cronic was not entitled to the benefit of the exception to the rule of Strickland v.
Washington, even though it was undisputed that his attorney had never tried a criminal case
before, that he was appointed only 25 days before the very complicated criminal trial began,
and that the trial resulted in a lengthy prison term for the defendant. See also Bell v. Cone, 535

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U.S. 685, 697 (2002) (holding that an attorney’s failure to represent his client effectively must
be “complete” before the Cronic presumption of prejudice comes into play). The attorney in
the present case filed a timely motion for new trial and included, at Appellant’s direction, a
claim of ineffective assistance of counsel. Thus, any failure by the attorney to effectively
represent Appellant can not be characterized as “complete,” and Appellant therefore is not
entitled to a presumption of prejudice, but must prove that he was prejudiced by his counsel’s
actions in order to prevail.

However, Appellant does not directly address the question of prejudice. Instead, he
complains about the trial court’s refusal to grant him a continuance so that he could confer with
his attorney about the legal consequences of pursuing an “ineffective assistance of counsel”
argument in the proceeding at hand. The decision of a trial court to grant or deny a
continuance is generally considered to be within the court’s discretion, and will not be reversed
on appeal absent a clear showing of abuse of that discretion. Moorehead v. State, 409 S.W.2d
357, 358 (Tenn. 1966); Mallard v. Tompkins, 44 S.W.3d 73, 78 (Tenn. Ct. App. 2000); State
v. Burrus, 693 S.W.2d 926, 929-30 (Tenn. Crim. App. 1985). In order to establish an abuse
of discretion under the circumstances, a defendant must show that the denial of the requested
continuance “denied the defendant a fair trial or that the result of the trial would have been
different.” State v. Vaughn, 279 S.W.3d 584, 598 (Tenn. Crim. App. 2008) (citing State v.
Mann, 959 S.W.2d 503, 524 (Tenn. 1997)).

Appellant stated that he had not seen his attorney since he was sentenced, and he
contends that he was deprived of his right to counsel as a result. It appears, however, that
Appellant must have communicated with his attorney in some way, for the motion itself,
prepared and submitted by the trial attorney, states in regard to Appellant’s allegation about
his falling asleep during trial “this ground is placed at the defendant’s request and only to
protect the defendant’s appellate rights.” The attorney did present Appellant’s claim to the trial
court, and the court considered the claim and ruled on it based on the court’s own observations.
It is unlikely that the court’s ruling would have been any different if a continuance had been
granted. Therefore, the trial court did not abuse its discretion in declining to grant appellant’s
motion for a continuance. Nor has Appellant shown any prejudice in the trial attorney’s
performance at the new trial hearing.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

___________________________________
JERRY L. SMITH, JUDGE

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