IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 26, 2016
TERRELL LOVERSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 1003485 James C. Beasley, Jr., Judge
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No. W2015-01381-CCA-R3-PC - Filed January 30, 2017
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The petitioner, Terrell Loverson, appeals the denial of his petition for post-conviction
relief, arguing the post-conviction court erred by concluding that appellate counsel
rendered effective assistance. According to the petitioner, appellate counsel should have
raised, as an issue on appeal, the trial court‟s denial of his request for a self-defense jury
instruction. Following our review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and ROBERT H. MONTGOMERY, JR., JJ., joined.
Joshua B. Dougan, Jackson, Tennessee, for the appellant, Terrell Loverson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
This post-conviction appeal arises from a February 2010 altercation between the
petitioner and a security guard at the Southland Mall in Shelby County, Tennessee that
resulted in the security guard‟s death. The petitioner was indicted for one count of first
degree premeditated murder, one count of assault by bodily injury, and one count of
resisting arrest. After a jury trial, the petitioner was convicted of second degree murder,
assault by provocative contact, and resisting arrest. The trial court sentenced the
petitioner as a Range I, standard offender, and imposed an effective sentence of twenty-
five years. The petitioner appealed, and in its opinion affirming the petitioner‟s
convictions, this Court offered the following summary of the facts presented at trial:
Earl Jones, the security director for Southland Mall (“The Mall”),
testified that he had twelve security guards working under him in February
2010, including the victim, Marques Rainey. The victim had been working
at the Mall since May 2007. Jones described him as “a good employee,
quiet, reliable . . . He was a huge man but he was very quiet and he was
educated.” As part of their job, the security guards, including the victim,
wore uniforms consisting of a gray long-sleeve shirt with “security”
designated on each shoulder and black slacks. The guards did not carry
weapons but did each carry a radio.
On Saturday, February 27, 2010, the victim reported for duty, in
uniform, at 2:00 in the afternoon. Jones described the Mall as “very busy”
at that time. Shortly after 2:00, another security guard called in an
emergency at the north entrance of the Mall. Jones stated that all of the
guards were responding to that location and that, shortly thereafter, “they
just called officer down.” By the time Jones arrived a crowd had gathered.
Jones found the victim “lying on the floor with a gunshot wound to his
upper right chest.” Jones stayed with the victim until the ambulance took
him away.
Chantrice Rainey, the victim‟s wife, testified that they married in
2007. She identified a photograph of the victim on their wedding day.
Jerren Rutherford testified, identifying the [petitioner] at trial as his
friend. On February 27, 2010, Rutherford and the [petitioner] went to the
Mall to go shopping. They went in Rutherford‟s car and, after entering the
Mall, “went their separate ways.” Rutherford went to a shoe store and
bought some shoes for his daughter. After he left the store, he saw the
[petitioner] running toward one of the Mall exits. According to Rutherford,
“[a]ll [of] a sudden the security grabbed [the petitioner] and pinned him up
against the wall and was holding him.” Rutherford told the security guard,
“[L]et my N[*****] go.” At that point, Rutherford testified, the guard “let
him go, like he barely let him go. He released because he thought I was
going to hit him or something. I don‟t know. It was like he was scared, I
don‟t know.” After the guard let the [petitioner] go, Rutherford saw “a gun
go off.” Rutherford explained that, four or five seconds after the guard let
the [petitioner] go, the [petitioner] shot the guard. Rutherford stated that
the shooting “was real quick” and that he “didn‟t have time to say [sic] stop
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or nothing. It was just so fast. It was like you couldn‟t like even try to stop
it from happening.” The [petitioner] fired one shot. Rutherford stated that,
afterward, he stood there “in shock” and then he “ran to the car.” The
[petitioner] went with him, and they drove away together.
Rutherford testified that he had not known that the [petitioner] was
armed. The [petitioner] still had the gun with him when the two men got in
Rutherford‟s car. Rutherford stated that the gun was black but that he did
not know what kind of gun it was other than an “automatic.” After they
had driven several minutes, Rutherford dropped the [petitioner] off near
“Ballenshire” in Memphis. The [petitioner] took his gun with him.
Rutherford then went home. He did not call the police.
Rutherford later gave a statement to the police and identified a
photograph of the [petitioner] in a photograph array. On the array,
Rutherford wrote, “This is Terrell[,] this [is] who shot the security guard.”
Rutherford later learned that the incident had been videotaped by the Mall‟s
security camera. He reviewed the video and acknowledged that it depicted
what he saw. The video was admitted into evidence and played for the
jury.
On cross-examination, Rutherford agreed that the security guard had
thrown the [petitioner] “around like a rag doll.” Rutherford wanted to stop
the “man-handling” and told the guard to let the [petitioner] go. Rutherford
testified that, after the guard let the [petitioner] go, and as the [petitioner]
was backing up, the guard was “going after him again.” At that point, the
[petitioner] pulled a gun and shot the guard. According to Rutherford, the
[petitioner] looked “like he had fear in his eyes.”
Emory Hammonds testified that he worked in “the Barbershop” in
the Mall, located across the aisle from Sweetness Sweets. Hammonds was
at work on the 27th and, at about 2:30 that afternoon, he “heard like kind of
a rumbling, a lot of people running, a little commotion and you could tell it
was coming from a little distant.” He saw several “guys” running and “saw
one guy hit a guy while they was running.” Hammonds described the
commotion as looking “like a gang fight.” Then he saw the victim “grab
one guy by the arm and they kind of spun around.” Hammonds heard a
“pow” and saw the victim rolling on the floor.
On cross-examination, Hammonds explained that the man that the
victim grabbed was headed out of the Mall.
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James Allen testified that he worked at the Barbershop in the Mall
and that Hammonds was his boss. At about 2:30 in the afternoon of the
27th, he was at work and saw several “guys” running out of the Mall. He
then saw “another group of guys,” one of whom got into a “scuffle” with
the victim. He saw the two men separate and then he “seen a gun raised up
and pop pop and he got on out the mall.”
Allen subsequently identified two men from photograph arrays,
labeling one as “the guy who shot the man in the mall” and the other man
as “with the shooter in the mall.” Allen also identified the [petitioner] at
trial as the shooter.
Oscar Quinn testified that he was working at the Barbershop when
the victim was shot. He described what happened:
“I just heard a lot of commotion going on at the
entrance of the mall, and I stopped cutting hair and just
walked up to the front entrance up to the door to see what was
going on. And I just witnessed that some guys was fighting
and security guard, you know, jumped between, you know,
two suspects and decide to push one guy back and he retained
one suspect and pinned him against the [wind] machine.
Once he released him and I turned my head for a brief second,
turned back and just witnessed a shot.”
Quinn reiterated that the shooter fired the shot after he had been
released by the victim. The shooter then ran out of the Mall. Quinn
followed and saw him get in a car. A customer also went outside, got the
tag number from a Maxima, and gave the number to Quinn. Quinn later
turned the number over to the Memphis Police Department.
On cross-examination, Quinn again stated that the security guard got
between two men and “pushed one suspect back and he grabbed the other
guy back and held him for a second or two once he released him.” The
shooter was the person that the security guard grabbed and pushed against
the wind machine, pinning him. After the guard released the shooter, the
shot followed very quickly.
Tywaun Bonds identified the [petitioner] as someone he knew by the
name of “T-Bo.” He also stated that he knew the [petitioner] to “hang out”
with another individual he knew as “South Memphis.” On the 27th, Bonds
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was in the Mall shopping. He “saw a group of folks standing in the middle
of the mall and they got to fighting.” He then saw “a lot of folks breaking
out and running.” The [petitioner] was one of the group of people fighting.
When they ran toward the front entrance of the Mall, Bonds saw the
security guard grab the [petitioner]. South Memphis ran up and said, “Let
my N[*****] go, bitch.” The security guard let the [petitioner] go. Bonds
then heard a shot but did not see who fired it.
Bonds subsequently identified photographs of the [petitioner] and
the man he knew as South Memphis from photograph arrays.
Justin Jenkins, eighteen years old at the time of trial, testified that he
had been in the Mall at the time of the shooting. He was there with one of
his “partners,” Tywaun Bonds. While they were there, a “fight broke out.”
He said that two of the fighters were “South Memphis” and “T-Bo.” He
testified that “[e]verybody started running towards the front [of the Mall]
and the security had grabbed T-Bo. And South Memphis told the man get
up off him and after that everybody ran out of the mall after a shot was
fired.” Jenkins did not see who fired the shot. He later identified South
Memphis and T-Bo from photograph arrays.
After a jury-out hearing, the State introduced the preliminary hearing
testimony of Ellen Thomas, determined by the trial court to be unavailable
to testify at trial. On February 27, 2010, Thomas was working at the
Sweetness Sweets shop in the Mall. Her shop was across the aisle from the
Barbershop. The “wind machine” was in the aisle of the Mall between the
two shops. The machine was booth-like, designed for someone to stand in
while it blew wind at 78 miles per hour.
On the day in question, she heard a “commotion” and told one of the
other employees to pull down the “gate” across the front of the shop. As
the other employee went to pull the gate down, Thomas said “that‟s when
[the victim] and the boy was wrestling, you know, and they had made it up
there tumbling, you know, struggling with each other.” By this time, “quite
a few” people had already run past the shop to the door of the Mall.
Thomas stated that she was no more than ten feet away from the
victim and the man with whom he was struggling. She explained what she
saw:
“[The victim] and the guy was tussling and they made it up at
the 78 wind machine. So [the victim] had subdued him up
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against the machine after they got through, you know,
tussling with each other. [The victim] had him subdued up
against this machine and then this other guy came up. And
I‟m going to assume that was his friend and he said he was
talking to [the victim], he said oh punk ass n[*****], let my
partner go. And then [the victim] hesitated for a minute, you
know, before he let him go and then he hesitated. He let him
go and the other guy who he had subdued up to that machine,
you know, stepped back and he, you know, like, jumped back
him and his partner.
So his partner was on the right side of him and he was on the
left side and they stepped back. And when he stepped back,
[the victim] stepped to the side to get, you know—he was
looking out the front door. He stepped right in front of our
store. And when he stepped in front of our store, probably
about five seconds later or something, the guy pulled the gun
out and just shot him right there in the middle of the chest.”
Thomas clarified that the person who pulled the gun was the person
whom the victim had subdued. Thomas stated that one shot was fired and
that the shooter ran out the front entrance of the Mall. Thomas added that,
when the shooter pulled his gun and shot, the victim “was just standing
there.” Thomas was subsequently able to identify the shooter‟s partner, but
not the shooter.
On cross-examination, Thomas described the victim as about six
feet, one or two inches tall and “big.” She stated that she did not know
what happened between the victim and the shooter prior to her seeing them
struggling in front of her store. She did not see any other security guards at
that time. She clarified that it was the victim who stepped back after letting
the shooter go. She added that, after the victim let the shooter go, the
shooter “bounced back with his partner” no more than ten feet.
Officer Christopher L. Gibson of the Memphis Police Department
(“MPD”) responded to the scene. He found the victim and attempted first
aid. After medical personnel arrived, he secured the scene. Witnesses also
were sequestered.
Officer Jeffrey Garey of the MPD Crime Scene Investigation Unit
reported to the scene and took multiple photographs. He also composed a
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sketch of the Mall, indicating where certain items were found. He collected
a spent bullet as well as several other items.
Officer Mark Jordan of the MPD testified that he received
information that the [petitioner] was located at a house on Snyder in Shelby
County. On March 1, 2010, he and several other officers went to the
location to apprehend the [petitioner]. They surrounded the house, and one
of the officers knocked. A woman answered the door and allowed the
officers inside. They found the [petitioner] hiding in the attic. As they
tried to apprehend the [petitioner], the [petitioner] resisted and fought. As
other officers moved the [petitioner] closer to Officer Jordan, the
[petitioner] “balled up his right fist and punched [Officer Jordan] in the
face.” The [petitioner] subsequently kicked Officer Jordan before Officer
Jordan was able to handcuff him.
On cross-examination, Officer Jordan stated that no photographs of
his face were taken after the [petitioner] hit him and that he did not go to
the hospital.
Sergeant Brad Webb of the MPD was provided with the license tag
number that had been recovered at the scene and traced it to Jerren
Rutherford. After the [petitioner] was taken into custody, Sgt. Webb and
Sergeant Peel spoke with him. They advised the [petitioner] of his rights.
The [petitioner] waived them, agreeing to give a statement. The [petitioner]
told the officers that he had been at the Mall on the day in question and that
a fight had broken out between members of his gang, the Goon Squad, and
members of a rival gang, the Fam Mob. He stated that, as he was trying to
get out of the Mall, another fight broke out and he heard a shot fired. He
ran out of the Mall, got in a white Toyota, left.
The officers advised the [petitioner] that they did not believe he was
telling the truth and reminded him that the Mall had numerous video
cameras.
In addition to interviewing the [petitioner], Sgt. Webb took
photographs of the [petitioner‟s] arms, showing his tattoos. These
photographs were admitted into evidence. Sgt. Webb explained that the
tattoos included the words “Goon” and “Goon Squad Mafia,” consistent
with the [petitioner‟s] admission that he belonged to the Goon Squad gang.
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Lieutenant Mark Miller of the MPD testified that he spoke with the
[petitioner] after Sgts. Webb and Peel did. The [petitioner] asked Lt. Miller
what he was being charged with, and Lt. Miller responded that “the charge
on the arrest ticket was first degree murder.” The [petitioner] then started
talking about what had happened and the Mall, and Lt. Miller obtained a
formal statement. The [petitioner‟s] written statement was admitted into
evidence. In his written statement, the [petitioner] admitted responsibility
for the victim‟s death; admitted that he went by “T-Bo”; stated that, while
he and Jerren were at the Mall, “somebody swung, something about Fam
Mob. I‟m Goon Squad”; and explained the events as follows: “We was
already running before the security guard came. A fight was in the front of
the mall. Somebody just came and grabbed me from behind. I didn‟t know
who it was. Then the gun went off and I left.” The [petitioner] stated that
the security guard grabbed him “[f]rm the neck from behind like in a choke
hold. He ain‟t say nothing.” At that point, the [petitioner‟s] gun was “[o]n
[his] waist about to fall.” The [petitioner] stated that he was carrying the
gun, a 9 millimeter, because “this man told [him] somebody was gonna kill
[him].” He added that the gun was currently “[i]n the woods somewhere.”
The [petitioner] described the distance from which he shot the victim as
approximately four feet. He stated that he fired one shot. He also stated
that he arrived at and left the Mall alone. He denied having heard Jerren
say anything to the security guard.
Cervinia Braswell of the Tennessee Bureau of Investigation testified
that she was “a special agent assigned as a forensic scientist to the Firearms
Identification Unit.” She examined the bullet recovered from the crime
scene and determined it was “a 9 millimeter caliber total metal jacket
bullet.”
Dr. Marco Ross, the Deputy Chief Medical Examiner for Shelby
County, testified that he performed an autopsy on the victim. The victim
was six feet, two inches tall and weighed 258 pounds. The victim had a
gunshot wound to the chest. The bullet entered the victim‟s right upper
chest and exited out the victim‟s back. In conjunction with performing the
autopsy, several photographs of the victim were taken and admitted into
evidence. Dr. Ross testified that the cause of death was “a gunshot wound
to the chest.” The manner of death was homicide.
The State rested its case after Dr. Ross‟ testimony. The defense put
on no proof. The jury found the [petitioner] guilty of second degree murder
(charged as a lesser-included offense of first degree premeditated murder),
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assault by provocative contact (charged as a lesser included offense of
assault by bodily injury), and obstructing arrest.
State v. Terrell Loverson, No. W2011-02055-CCA-R3, 2012 WL 5509776, at *1-6
(Tenn. Crim. App. Nov. 14, 2012), perm. app. denied (Tenn., Mar. 5, 2013).
On September 4, 2013, the petitioner filed a pro se petition for post-conviction
relief. The post-conviction court appointed counsel to represent the petitioner in his post-
conviction claim. The petitioner then filed an amended petition for post-conviction relief
arguing solely that appellate counsel was ineffective for failing to challenge the trial
court‟s denial of the requested self-defense instruction. On June 30 and July 14, 2015,
the post-conviction court heard the petitioner‟s claim.
Appellate counsel testified at the post-conviction proceeding that he was appointed
to represent the petitioner on appeal. At the time of the hearing, he had been a criminal
defense lawyer for eighteen years. Based on his review of the record, appellate counsel
agreed that trial counsel requested a jury instruction on self-defense, and the trial court
denied the request. Trial counsel then raised the jury instruction issue in the petitioner‟s
motion for a new trial, which the trial court also denied. After taking the totality of the
circumstances into consideration, appellate counsel subsequently elected not to raise the
issue on appeal.
When explaining why he decided not to raise the jury instruction issue on appeal,
appellate counsel stated that after reviewing the record, it was his belief that the petitioner
was not afraid of the unarmed security guard. Appellate counsel noted that the petitioner:
was part of a violent street gang; that [the petitioner] had previously
assaulted an unarmed security guard. And the security guard in this case
was unarmed. I did not think, I still do not think, that self-defense would be
warranted. I don‟t think you can shoot an unarmed man and claim self-
defense.
Appellate counsel acknowledged there was testimony at trial that the petitioner
had “fear in his eyes” when he was struggling with the security guard. There was also
testimony, however, that the security guard “had fear in his eyes.” Appellate counsel
believed the trial court denied the petitioner‟s request for the self-defense instruction
because the petitioner was in possession of a weapon and committing unlawful activity at
the time of the altercation. In his opinion, the issue of self-defense simply had not been
fairly raised by the proof. Appellate counsel “didn‟t think [the instruction] was
warranted, and that was [his] reason for not raising it on appeal.”
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The post-conviction court denied the petitioner‟s claim for post-conviction relief
in a written order on July 20, 2015. The post-conviction court found that the issue of
self-defense was not raised by the proof at trial, so appellate counsel was not ineffective
for choosing not to raise the issue. The petitioner timely appealed.
II. ANALYSIS
The petitioner bears the burden of proving his post-conviction allegations by clear
and convincing evidence. Strickland v. Washington, 466 U.S. 668, 690-94 (1984). The
issue of whether a defendant received effective assistance of counsel is a mixed question
of law and fact. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). We review this
issue de novo, with a presumption of correctness given only to the post-conviction court‟s
findings of fact. Id. This Court will not reweigh evidence of purely factual issues.
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997).
The test used to determine whether appellate counsel was constitutionally effective
is the same test applied to claims of ineffective assistance of counsel at the trial level.
Carpenter, 126 S.W.3d at 886. To establish a claim of ineffective assistance of counsel,
the petitioner must show that: 1) counsel‟s performance was deficient; and 2) counsel‟s
deficient performance prejudiced the outcome of the proceedings. Strickland, 466 U.S. at
687; see Carpenter, 126 S.W.3d at 886.
Under the two-prong Strickland test, the petitioner must first show that counsel‟s
errors were so egregious that counsel was not functioning as the “counsel” guaranteed the
petitioner by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner
must show that counsel‟s errors were so serious as to deprive the defendant of a fair trial,
one whose result is reliable. Id. In order for the petitioner to succeed in his petition for
post-conviction relief, both prongs of the Strickland standard must be satisfied. Id.
Courts, therefore, are not required to address both prongs of the analysis if the petitioner
makes an insufficient showing on one. Id. at 697.
When a petitioner bases his claim of ineffective assistance of counsel on counsel‟s
failure to raise an issue on appeal, the petitioner proves deficient performance by showing
that “this omission was so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Carpenter, 126 S.W.3d at 887. The petitioner
satisfies the prejudice prong of the Strickland test by showing there is a reasonable
probability, or “a probability sufficient to undermine the confidence in the outcome,” that
but for counsel‟s deficient performance, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694.
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“Appellate counsel is not constitutionally required to raise every conceivable issue
on appeal.” Carpenter, 126 S.W.3d at 887 (citing King v. State, 989 S.W.2d 319, 334
(Tenn. 1999)). Generally, appellate counsel has the discretion to determine which issues
to raise on appeal and which issues to leave out. Carpenter, 126 S.W.3d at 887. Thus,
courts should give considerable deference to appellate counsel‟s professional judgment
with regard to which issues will best serve the petitioner on appeal. Id. Appellate
counsel is only afforded this deference, however, “if such choices are within the range of
competence required of attorneys in criminal cases.” Id.
When a claim of ineffective assistance of counsel is based on the failure of
appellate counsel to raise a specific issue on appeal, the reviewing court must determine
the merits of the issue. Id. “If an issue has no merit or is weak, then appellate counsel‟s
performance will not be deficient if counsel fails to raise it.” Id. Similarly, if the omitted
issue has no merit then the petitioner suffers no prejudice from counsel‟s decision not to
raise it. Id. If the issue omitted is without merit, the petitioner cannot succeed in his
ineffective assistance claim. Id.
Criminal defendants have “a right to a correct and complete charge of the law.”
State v. Ethan Alexander Self, No. E2014-02466-CCA-R3-CD, 2016 WL 4542412 at *59
(Tenn. Crim. App. Aug. 29, 2016) (quoting State v. Hanson, 279 S.W.3d 365, 280 (Tenn.
2009)) perm. app. denied (Tenn. Jan. 19, 2017). The trial court has a duty “to give
proper jury instructions as to the law governing the issues raised by the nature of the
proceeding and the evidence introduced at trial.” Id. A jury instruction on general
defenses, including self-defense, is not required to be given to the jury “unless it is fairly
raised by the proof.” Id. (citing T.C.A. § 39-11-203(c)).
The Tennessee Supreme Court has established that “sufficient evidence to fairly
raise a general defense „is less than that required to establish a proposition by a
preponderance of the evidence.‟” Ethan Alexander Self, 2016 WL 4542412 at *59
(quoting State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013)). The trial court must
consider the evidence in the light most favorable to the defendant and draw all reasonable
inferences in the defendant‟s favor. Id. If the evidence at trial fairly raises a general
defense, the trial court is required to provide the jury with the appropriate instruction. Id.
The trial court‟s determination of whether to give or withhold a jury instruction is a
mixed question of law and fact that this Court reviews de novo without a presumption of
correctness. Id.
Relevant to the issue here, Tennessee Code Annotated section 39-11-611(b)(2)
explains that a person acts in self-defense when the person:
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is not engaged in unlawful activity and is in a place where the person has a
right to be has no duty to retreat before threatening or using force intended
or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury.
(B) The danger creating the belief of imminent death or serious bodily
injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
Tenn. Code. Ann. § 39-11-611(b)(2)(A)-(C).
The petitioner argues the post-conviction court erred when finding appellate
counsel effective despite his failure to challenge the denial of the petitioner‟s request for
a self-defense jury instruction on appeal. The State argues that the proof at trial did not
fairly raise the issue of self-defense, so appellate counsel was not ineffective in deciding
not to raise the issue. Viewing the evidence in the light most favorable to the petitioner
and drawing all reasonable inferences in his favor, we agree with the State.
The testimony at trial was that the victim, an unarmed security guard, reported to
work at the Southland Mall on February 27, 2010, around 2:00 in the afternoon. The
victim was wearing his uniform, with clear markings indicating he was a security guard.
Shortly after arriving at work, the victim responded to an emergency call related to a
gang fight in the Mall. Testimony from Tywaun Bonds and Justin Jenkins established
that the petitioner was involved in the initial gang altercation. The petitioner was a
member of the “Goon Squad” gang and was involved in a fight with member(s) of a rival
gang, the “Fam Mob.” Multiple witnesses testified that the petitioner was running
through the mall when the victim attempted to detain him. The two struggled until the
victim was able to pin the petitioner against a “wind machine” booth. The petitioner‟s
friend, Jeren Rutherford, approached the petitioner and victim and uttered some variation
of “Let my N[*****] go.” Rutherford testified that the victim had fear in his eyes. The
victim released the petitioner. All of the witnesses who testified agreed that the petitioner
then pulled a 9-millimeter handgun from his pocket and fired one shot into the victim‟s
chest. At the time the petitioner fired the fatal shot, he and the victim were separated by
several feet. Ellen Thomas testified the victim was standing still with his hands at his
side when the petitioner fired his weapon. The victim died shortly thereafter, and the
petitioner fled the mall.
The petitioner was apprehended while hiding in the attic of a home in Shelby
County. When officers attempted to place the petitioner in handcuffs, he struck one
officer in the face and kicked the officer in the chest.
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The record reflects the petitioner made multiple statements to police. In his initial
oral statement he alleged that he did not fire the gun, but was simply there at the scene.
The petitioner never said he acted in self-defense or was in fear of his life.
It is clear from the record that the defense‟s strategy was to cast doubt on the
prosecution‟s evidence and establish that the shooting was an accident. The trial court
determined after considering all of the evidence in the light most favorable to the
defendant that the proof did not fairly raise the issue of self-defense, so an instruction was
not warranted.
In denying the petitioner‟s motion for new trial, the trial court again concluded
that the evidence did not warrant a self-defense instruction. Likewise, after reviewing the
record, the post-conviction court agreed, stating, “This Court reviewed the trial transcript
and likewise finds that the issue of „self-defense‟ was not raised by the proof in any form
even in a light most favorable to the petitioner.”
Taking the evidence in the light most favorable to the petitioner, and drawing all
reasonable inferences in the petitioner‟s favor, we affirm the judgment of the post-
conviction court and hold that the evidence did not fairly raise the issue of self-defense.
Because the proof did not necessitate a self-defense jury instruction, the absence of the
instruction did not prejudice the petitioner. Further, because the issue omitted by
appellate counsel on appeal was without merit, the petitioner cannot succeed in his
ineffective assistance claim. Accordingly, the petitioner received effective assistance of
counsel and is not entitled to relief.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the post-conviction
court‟s judgment denying the petitioner post-conviction relief.
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THOMAS T. WOODALL, PRESIDING JUDGE
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