IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1999 September 10, 1999
Cecil Crowson, Jr. BRE TT ALL EN P ATTER SON , ) Appellate Court Clerk C.C.A. NO. 01C01-9805-CC-00221 ) Appe llant, ) ) ) MONTGOM ERY COUNTY VS. ) ) HON. ROBERT W. WEDEMEYER STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN J. HOLLINS, JR. PAUL G. SUMMERS Hollins, Wagster & Yarbrough Attorney General & Reporter 424 Church Street 2210 SunTrust Center KIM R. HELPER Nashville, TN 37219 Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
JOHN CARNEY District Attorney General
ARTHUR BIEBER Assistant District Attorney 204 Franklin St., Suite 200 Clarksville, TN 37040
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On February 23, 1988, Petitioner Brett Allen Patterson was convicted of
two counts o f first degree murde r, one count of first degree burglary, and one
count of aggravated rape. On March 18 , 1988, Petitioner rec eived conse cutive
sentences of life, life, and forty years for the two first degree murder convictions
and the agg ravated ra pe con viction. Petition er also rec eived a co ncurren t ten
year sentence for his first degree burglary conviction. Petitioner’s convictions and
sentences were up held by th is Court o n Dece mber 8 , 1989. P etitioner filed a
petition for post-conviction relief on October 29, 1992; a first amended petition for
post-conviction relief on N ovem ber 5, 19 93; a second amended petition for post-
conviction relief on December 4, 1995; and a third amended petition for post-
conviction relief on September 13, 1996. After a two day hearing on December
9, 1996, and April 4, 1997, the post-conviction court dismissed the petition.
Petitioner challenges the dismissal of his petition, raising the following issues:
1) whether Petitioner’s statement to police should have been suppressed as the re sult of an illeg al arrest; 2) whether trial counsel were ineffective in failing to conduct a full an d fair hearing on the law fulness o f Petitioner’s arrest; 3) whether the search warrant in this case was void because the supporting affidavit was invalid; 4) whether trial coun sel were ineffec tive in failin g to co nduc t a full and fa ir hearing on the va lidity of the wa rrant; 5) whether Petitioner was denied due process by being tried jointly with a codefe ndant; 6) whether trial counsel were ineffective in failing to seek a severance; 7) whether Petitioner’s stateme nt to po lice wa s inad miss ible be caus e it was involuntary; 8) whether trial couns el were ine ffective in failing to cond uct a fu ll and fa ir hearing on the vo luntarines s of Petition er’s statem ent; 9) whether the trial court erred when it imposed consecutive sentencing; 10) whether appellate counsel was ineffective in failing to include the transc ript of the sente ncing hearin g in the record on dire ct app eal; 11) whether the State’s opening statement and closing a rgumen t were improper;
-2- 12) whether trial counsel were ineffective in failing to object to c ertain comm ents during the State’s op ening sta temen t and clos ing argu ment; and 13) whether trial counsel were ineffective in the manner in which they investig ated th e cas e and cond ucted the trial.
After a review of the reco rd, we affirm the judgment of the post-conviction court.
I. BACKGROUND
A. Trial
In State v. Brett Patterson, No. 88-245-III, 1989 WL 147404, at *1–2 (Tenn.
Crim. App., Nashville, Dec. 8, 1989), this Court gave the following summary of
the evid ence prese nted a t trial:
On the night of January 9, 1987, Brett Patterson and Ronnie Cauthern drove to the home of Patrick and R osema ry Smith, who w ere both Captains in the United States Army assigned to Fort Campbell as nurses. The defendants wore masks and gloves, and each carried a loaded revolver. After severing the telephone line, the defendants broke a door p ane, u nlocked the door, and entered the Smiths’ house. They were after a large sum of money thought to be kept in the bedroom. Once inside, the defendants discovered that the Smit hs were at home asleep. They awakened them and pulled them out of bed. Patrick Smith tried to fight them off, whil e Patters on ma de repe ated attem pts to subdue him b y apply ing a “s leepe r,” a wre stling hold designed to cause unconsciousness. Failing this, Patterson strangled Mr. Smith with a length of “880” military cord. Investigators later recovered similar cord from the defend ant’s resid ence w hen the y search ed it. Mrs. Smith was strangled with a silk scarf into which a narrow vase was inserted to form a tourniquet. The medical examiner found that the cartilage in her throat had b een fractured, a n injury which wou ld have resulted only from application of great force. Mrs. Smith had also been raped. When neither of the Smiths reported for duty on the following morning, two of their c o-worke rs drove to their home to investigate. Finding the door glass broken, they called the police. Investigators arrived prom ptly and discovered Patrick Smith ’s body in the master bedroom, and Rosemary Smith’s body in a guest bedroom. The house had been ransacked and numerous items stolen, including articles of clothin g, seve nty dolla rs cas h, pers onal c heck s, cred it cards, a video cassette recorder, Mrs. Smith’s engagement and wedding rings, her watch, an d her purse. T he keys to their two cars were also taken.
-3- In the m aster b edroo m, investigators fou nd a piec e of pap er with Cau thern’s name on it. Also written on it was the Smiths’ phone numbe r, address, and directions to their residence. On the mo rning of Ja nuary 12 , 1987, an informant contacted the police and told th em tha t Patterson and Cauthern, both of whom the informant knew well, had admitted taking the Smiths’ property, sexually abusing Mrs. Smith, and killing them both. The informant related to investigators how Patterson an d Cauthe rn had broken into the house, described the method by which the Smiths had been strangled , and told of having seen several of the items stolen from their residence. The informant said that Cauthern was confident that he and Patterson would not be caught because they had worn masks and gloves. Investigators then proceeded to the residence that the defendant shared with Cauthern and a third person—Eric Barbee. When they arrived, all three men were present and officers saw several of the stolen items in the trunk o f Cauthern’s ca r. The residence was searched, and a large amount of incriminating evidence was seized. Both defendants were arrested; both gave detailed an d high ly inculpatory confessions.
B. Post-conviction Hearing
David Baize testified that he was employed by the Clarksville Police
Department in Janua ry of 1987 . At that time, Baize received a tip about the
Smith case from confidential informant James Andrew.1 Baize subsequently met
with Andrew and took a statement from him. Although Baize knew that Andrew
had had “misdemeanor problems” in the p ast, Ba ize felt th at he w as relia ble
because he wa s able to prov ide de tails ab out the Smith case that co uld ha ve only
been o btained from so meon e who h ad bee n in the S mith ho me.
Bobby Gray testified that he was employed by the Clarksville Police
Department in January of 1987. Although Gray provided some of the information
for the affidavit in support of search warrants for the residences of Petitioner and
1 W e note that in many of the proceedings in this case, Andre w is referred to as “Andrews.” However, a review of the record indicates that “Andrew” is the correct name.
-4- Cauthern, he had not talked to Andrew and had not checked to see whether
Andre w had a criminal re cord.
Gray testified that he was present when Petitioner was arrested. When
Gray and other officers went to the residences of Petitioner and Cauthern,
Petitioner and Cauthern were working on a car that contained the Smiths’
checkb ook an d credit ca rds in plain view of the o fficers.
Agent Mike Breedlove testified that he was present when Petitioner gave
a taped statement to police in January of 1987. Although some of Petitioner’s
statement was recorde d, there w as a po rtion that wa s not reco rded. Toward the
end of the interview, Breedlove and Petitioner discussed the difference between
a life and a death se ntence, and Breedlove told Petitioner that his cooperation
with police could be considered by a jury when determining whether to impose
a death senten ce.
John Richard son testified that he was one of the attorneys who
represented Petitioner at trial. Richardson and his co-counsel did not put on any
defense during the guilt phase and did not introduce any mental history evidence
during sentencing. Richardson also waived argument during the guilt phase as
a tactical decision. Richardson did not recall whether the State turned over the
criminal records of Andrew and one of the State’s witnesses, Joe Denning.
Richardson never interviewed Andrew or Denning and never m ade a m otion to
sever P etitioner’s trial from that of Ca uthern.
-5- Richardson testified that from a tactic al stan dpoin t, he an d his co-counsel
wanted Petitioner to be tried with Cauthern. Richardson believed that the best
strategy w ould be to try and se parate the break-in by Petitioner from the actual
murde rs com mitted by Cauth ern.
Lionel Barrett testified that he also represented Petitioner. Barrett did not
recall whether the State provided the defense with the criminal records of Andrew
and Denning. Barrett also did not recall whether the State had provided any
informa tion abou t deals it had made with witnes ses.
Officer Robert Hunt of the Clarksville Police Department testified that he
is the records custodian for the department. Hunt testified that orig inally, ce rtain
arrest records were in the County’s computer system and the County’s records
were copied and transferred into the Clarksville Police Department computer
system in Septe mber o f 1993.
Wade Bobo testified that h e prose cuted this case at tria l. Bobo disclosed
the agreement he had with Denning to the defens e. Bobo had an agreem ent with
Eric Barbee to d ismiss som e charges if Barbee cooperated in the investigation
of the case. Bobo could not remember whether he disclosed the agreement he
had with Barbe e to the de fense.
Joseph Griffey testified that he was working for the Clarksville Police
Department in January of 1987. Griffey testified that he provided the information
for the search warrant affidavits based on his perso nal ob serva tions a nd on his
intervie w with Andrew. Griffey personally checked the city computer database
-6- to determine whether Andrew had a criminal record and the database indicated
that Andrew did not have a record. Grif fey admitted that the statement in the
affidavits that the informant was reliable was based on information he received
from B aize.
Petitioner testified that wh en he was q uestio ned b y detec tives, the y told
him that C authe rn and Barb ee ha d put th e blam e on h im and if h e wou ld confess,
things would go better for him and it could be the difference be tween a life or a
death sentence. Petitioner claimed that the detectives told him that anything he
said would not be publicized. Petitioner testified that he wante d to tes tify at trial,
but he was p reven ted from doing so by h is coun sel. Pe titioner s tated th at his
attorneys never followe d up o n his co urt ord ered m ental e valuatio n. He also
stated that his attorneys failed to include a transcript of the sentencing hearing
in the reco rd on dire ct appeal and thus, the appellate court ruled that any
sentencing issues were waived. Petitioner also testified that his attorneys failed
to interview witne sses an d failed to inve stigate to s ee whe ther the S tate’s
witnesses had crimin al reco rds or w hethe r they h ad m ade d eals with the State.
II. PREVIOUSLY DETERMINED ISSUES
Initially, we no te that P etitioner has raised se veral issues that we re
addressed by this Court on direct appeal. Specifically, Petitioner contends: that
his warrantless arre st was illegal and an y evidence ob tained pursuant to the
arrest should have been suppressed, that the search warrant in this case was
invalid and any evidence seized pursuant to the warrant should have been
suppressed, that he was deprived of a fair trial because his statement to police
-7- was redacted to eliminate any reference to Cau thern, th at his statement to police
was involuntary and was therefore inadmissible, that he should have received
concurrent sentences, and that the prosecutor’s opening statement and closing
argument were improper. The post-conviction court found that these issues were
not cognizable in a post-conviction proceeding because th ey wer e prev iously
determ ined on direct app eal. W e agree with the po st-convictio n court. 2
W hen Petitioner filed his petition in 1992, Tennessee Code Annotate d
section 40-30-111 provided
The scop e of the [post-c onvictio n] hea ring sh all extend to all grounds the petitioner may have, except those grounds which the co urt finds shou ld be exclude d beca use the y have be en waive d or previo usly deter mined . . . .
Tenn. Code Ann. § 40-30-111 (1990). In addition, Tennessee Code Annotated
section 40-30-112(a) provided
A ground for relief is “previou sly determined” if a court of competent jurisdiction h as ruled o n the m erits after a fu ll and fair hea ring.
Tenn. Code A nn. § 40-30-1 11(a) (1990). 3 A full and fa ir hearing s ufficient to
support a finding o f previous determ ination occurs if a petitioner is given the
opportu nity to prese nt proof a nd argu ment o n the claim . House v. State, 911
S.W .2d 705, 711 (Tenn. 199 5).
In the direct appeal of this case, this Court held that Petitioner’s arrest was
lawful, Brett Patterson, 1989 WL 147404, at *3–4; that the search warrant was
2 We note that in addition to the fact that it is not cognizable because it was previously determined, Petitio ner’s claim that th e trial c ourt e rred whe n it im pos ed co nse cutive sent enc ing is n ot co gniza ble because a petitioner cannot seek review of the length or manner of serving sentences in a post-conviction proceed ing. See Andre a Jones v . State, No. 02 0C01 -9603 -CR-00 084, 19 97 W L 683 30, at *1 ( Tenn. C rim. Ap p., Jackson, Feb. 20, 1997).
3 These statutes were repealed on May 10, 1995. The statute that replaced these statutes also provides that previou sly determ ined issu es are n ot cogn izable in a pos t-conviction procee ding. See Tenn. Code Ann. § 40-30 -206(f), (h) (1997).
-8- valid, id., 1989 WL 147404 at *5–6; that admission of Petitioner’s redacted
statement was pro per, id., 1989 WL 1474 04 at *6 –7; tha t the rec ord fully
supported conse cutive sen tences , id., 1989 WL 1474 04 at *9 ; that Pe titioner’s
statement to police w as volun tary, id., 1989 WL 147404 at *4–5; and that
Petitioner was not prejudiced by the prosecutor’s opening statement or closing
argum ent, id., 1989 WL 147404 at *7. Because this Court addressed each of this
issues on direct appeal after Petitioner had been given the opportunity to present
proof and argument for the issu es, the se issu es are not co gniza ble in this post-
conviction proceeding.4
III. ASSISTANCE OF COUNSEL
Petitioner contends that the post-c onvictio n cou rt erred when it determined
that his counsel had provided effective representation. Specifically, Petitioner
claims that his coun sel we re ineffe ctive be caus e: they fa iled to a dequ ately
address the leg ality of P etitione r’s arre st, they fa iled to a dequ ately address the
validity of the search w arrant, the y failed to file a motion to sever the trial of
Petitioner from tha t of Cauth ern, they failed to adequately address the
voluntariness of Petitioner’s statement, they failed to include the transcript of the
sentencing hearing in the record on direct appeal, they failed to object to portions
of the prosecu tor’s opening state ment and closing argum ent, they failed to
adeq uately investigate the case, and they were deficient in the manner in which
they co nduc ted the trial.
4 Petitioner urges us to reconsider the merits of these issues in light of additional facts that were established at the post-conviction hearing. However, this Court has previously stated that “[a] petitioner may not relitigate a previously determined issue by presenting additional factual allegations.” Cone v. State, 927 S.W .2d 579, 582 (Tenn. Crim . App. 1995).
-9- Article I, Section 9 of the Tennessee Constitution p rovide s “that in all
criminal prosecutions, the accused hath the right to b e hea rd by him self an d his
couns el.” Tenn . Const. a rt I, § 9. Similarly, the Sixth Amendment to the United
States Cons titution g uaran tees th at “[i]n all c rimina l prose cutions, the accused
shall enjoy the right . . . to have the as sistan ce of c ouns el for his defense.” U.S.
Cons t. amend. VI. “These constitutional provisions afford to the accused in a
criminal prosecution the right to effective assistance o f counsel.” Henley v. State,
960 S.W .2d 572 , 579 (T enn. 19 97).
W h en a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, the petitioner bears the burden of showing that (a) the
services rendered by trial counsel were deficient and (b) the deficient
performance was pre judicial. Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim.
App. 19 96). In order to demonstrate deficient performance, the petitioner must
show that the services rendered or the advise given was below “the range of
competence demanded of attorneys in criminal cases .” Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner
must show th at there is a reason able pro bability that, but for counsel’s deficient
performance, the result of the proce eding wou ld have been d ifferent. Strickland
v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 67 4 (1984).
“Because a petitioner must establish both prongs of the tes t to prev ail on a claim
of ineffective assistance of counsel, failure to pro ve either deficient performance
or resulting prejudice provides a sufficient basis to deny relief on the claim.”
Henley, 960 S.W.2d at 580. “Indeed, a court need not address the comp onents
in any particular order or even address both if the defendant makes an
insufficient showing of one com ponent.” Id. “More over, o n app eal, the findings
-10- of fact made by the trial court are conclusive and will not be disturbed unless the
evidence containe d in the rec ord prep ondera tes aga inst them .” Adkins v. State,
911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). “The burden is on the petitioner
to show that the evidence pre ponderate d against thos e findings.” Id.
A. Arrest
Petitioner conten ds that his trial couns el were ine ffective because they
failed to ade quate ly challe nge th e lega lity of his arrest by arguing that the arrest
was no t suppo rted by pro bable ca use.
First, Petitioner claims that his trial counsel we re ineffective because they
failed to argue that Petitioner’s arrest was not supported by probable cause since
he alleges the arresting officers had no basis for determining that he was
involved in the crimes at the Smith residence. This claim is not accurate. The
record indicates that Petitioner’s trial counsel filed a motion to suppress
Petition er’s statement to police alleging it was the prod uct of an illeg al arrest.
The record also indicates that during the suppression hea ring, P etitione r’s
counsel questioned Gray extensively about whether there was probable cause
to arrest Pe titioner. Inde ed, Petition er’s coun sel aske d Gray w hether he had
seen any evidence at the time of arrest that tied Petitioner to the crimes, whether
he had previously received information that Petitioner was involved in the crimes,
and wh ether the informa tion receive d from A ndrew w as reliable .
Second, Petitioner contends that because the only information the police
had that tied him to the crimes came from Andrew, trial counsel was ineffective
-11- in failing to call Baize to testify since Baize was th e pers on wh o actu ally
interviewed Andrew. H owever, Petitioner h as failed to identify any testimony that
Baize could or would have given that would have had any effect on the
determination of whether Petitioner’s arrest was supported by probable cause.
Thus, we cannot say that trial counsel was ineffective in failing to call Baize to
testify.
Gray testified at the suppression hearing that on January 9, 1987, he and
other officers discovered the bodies of the Smiths at their home. Subsequent
investigation revealed that both Smiths had been strangled to death and
someone had taken the Smiths’ credit cards. On January 12, 1987, Andrew
informed the police that he had seen the Smiths’ credit cards in the possession
of Petitioner and Cauthern. Andrew also prov ided inform ation abo ut the dea th
of the Smiths that was corroborated by the police. Later that day, po lice went to
question Cauthern and they observed Petitioner, Cauthern, and Barbee standing
in front of a vehicle. The officers saw credit cards and checks with the Smiths’
names on them in plain view in the open trunk of the vehicle. At this point, the
officers arrested Petitioner, C authe rn, and Barb ee. In th e direc t appe al of this
case, this Court held that “it is profoundly manifest to us that [Pe titioner’s] arres t,
supported as it was by the abundance of probable cause enumerated above, was
lawful.” Brett Patterson, 1989 WL 147404, at *4. Indeed, this Court noted that
Petitioner could have been arrested for committing a felony (receiving or
concealing stolen goods) in the presence of the arres ting officers. Id., 1989 WL
147404, at *4 n.4. We agree with this Court’s holding on direct appeal that
Petition er’s arrest wa s supp orted by p robable cause . W e also conclude that
-12- Petitioner has failed to show anything that could have been done by trial counsel
to demonstrate that this holding was wrong.
In short, Petitioner has failed to demonstrate either that his trial counsel
were deficient in the manner they challenged the legality of his arrest or that he
was pre judiced b y any alleg ed deficie ncy. This issue ha s no m erit.
B. Warrant
Petitioner contends that his trial counsel were ineffective because they
failed to adequately challenge the validity of the search warrant in this case.
Specifically, Petitioner c ontend s that cou nsel we re ineffective in failing to
establish that the affidavit submitted in support of the search warrant contained
false and misleading statements.
The affidavit in sup port of the search warra nt in this case provid es, in
relevant p art:
On January 9, 1987, Clarksville Police Dept. found that the residents of 352 Hampshire Drive Clarksville, TN w ere both m urdered (prelim inary autopsy by Dr. Ch arles Ha rlan repo rts strangulation) and their house ransacked; said victims being R osem ary and P atrick Sm ith. Affiant has talked to a confidential informant whose identity has been m ade kn own to issuing judge and w ho has no record and n o reaso n know n to affiant to mista te [sic] the truth an d is relia ble, an d who relates that he talked to Ron nie Cauthern who admitted to said informant that he participated in the robbery and murder of the said victims. Affiant has interviewed the said Cauthern who tells affiant that the purse belonging to the victim, Rosem ary Smith, was at the above described premises on this morning, January 12, 1987. When affiant went to the above-described premise s to talk to Cauthern this morning, 1/12/87, he observed personalized checks and credit cards belonging to the victims in the trunk of said C authe rn veh icle parked at the above-described premises. When said Cauthern was picked up for an interview, Officer R. Prost found credit cards belonging to the
-13- victims in his (Cauthern’s) coat po cked [sic], alo ng with variou s cash in bills.
Petitioner conte nds th at his coun sel sho uld have challenged this affidavit under
State v. Little, 560 S.W.2d 403 (Tenn. 1978). In Little, the Tennessee Supreme
Court h eld that
there are two circumstances that authorize the impeachment of an affidavit sufficient on its face, (1) a false statement made with intent to deceive the Court, whether material or immaterial to the issue of probable cause, and (2) a false statement, essential to the establishment of probable cause, recklessly made.
Id. at 407. In addition, the supreme court stated that “[r]ecklessness may be
established by showing that a statement was false when made and that affiant
did not have rea sonable gro unds for believing it, at that time .” Id.
First, Petition er claim s that h is counsel we re ineffective in failing to assert
that the affidavit was invalid because the phrase “When affiant went to the
above-described premises to talk to Cauthern this morning, 1/12/87” is false.
Petitioner claims that this statement is false because Griffey admitted that the
reason he went to see Cauthern was to “arrest” him , not to “ta lk” to him . This
assertion is not accurate. Griffey testified at the suppress ion hea ring tha t his
purpose for going to the location where Petitioner and Cauthern were located
was “to see if I could find [Cau thern] an d in talking to him ab out [the S mith
murde rs].” In addition, Griffey testified at the post-conviction hearing that the
reason he wen t to find Ca uthern w as bec ause o ther officers had told him th at
they wanted to talk to Ca uthern a bout the Smith m urders. In fact, G riffey
spec ifically denied that he went to find Cauthern in order to arrest him. Petitioner
has failed to identify and we ha ve bee n una ble to fin d anyth ing in the record that
indicates that Griffey went to find Cauthern for any other reason besides talking
-14- to him. Because there is no proof that Griffey’s statement about going to ta lk to
Cauthern was false o r misle ading , Petition er has failed to show that his counsel
were ineffective in failing to challenge the affidavit on this basis.
Second, Petitioner c laims tha t his coun sel were ineffective in failing to
assert that the affidavit was invalid because the phrase “Affiant has talked to a
confidential informant . . . who has no record” is false and misleading. T here is
no dispute in this case that this statement was technically false at the time it was
made. Indeed, the po st-conviction court found that the statem ent wa s tech nically
false because at the time it was made, Andrew had previously been convicted of
reckless driving, spe eding, an d disorde rly condu ct. Howe ver, the post-conviction
court found that there was absolutely no evidence that the statement was made
with intent to deceive the cour t or that the s tateme nt was m ade rec klessly.
The evidence do es no t prepo ndera te aga inst the post-c onvictio n cou rt’s
finding that the sta temen t was no t made with intent to deceive the court and was
not made recklessly. Indeed, there is no proof that Griffey knew that Andrew had
a criminal record when he submitted the affidavit. Griffey testified during the
post-conviction hearing that be fore he filled out the affidavit, h e pers onally
checked the Clarksville Police Department computer system to determine
whether Andrew had a prior criminal record and the computer search indicated
that Andrew did not have a criminal record. Griffey also testified that he relied on
the fact tha t Andr ew wa s in the Army and in his experience, people in the Army
did not have prior felony convictions. Further, Hunt testified that because
Andr ew’s prior convictions occurred in 1985 and 1986, they would not ha ve
appeared in the city computer system when Griffey checked for Andrew’s rec ord
-15- in 1987. Hunt testified that instead, the convictions would only have appeared
in the coun ty comp uter syste m. Hunt also testified that the information from the
county computer system was not copied and transferred to the city computer
system until 1993. In addition, Hunt testified that two of Andr ew’s three
convictions were actually coded as civil adjudications. Thus, we conclude that
Griffey did not m ake the statem ent in the a ffidavit with intent to deceive the cour t.
Further, we conclude that G riffey did not make the statement recklessly. Under
Little, “[r]ecklessness may be established by showing that a statement was false
when made and that affiant did not have reason able gro unds fo r believing it, at
that time.” 560 S.W.2d at 407. Because Griffey’s search of the city computer
files indicated that Andr ew ha d no c rimina l record , Griffey had re ason able
grounds to believe that the statem ent in th e affida vit was true. Characterizing the
officer’s actions, in the best light for the petitioner, Griffey’s conduct amou nts to
negligence, not recklessness. As this Court has p reviously stated, m ere
negligent represe ntation is n ot sufficient to invalidate a n affidavit under the
standards of Little. State v. Cannon, 634 S.W .2d 648, 650 (Tenn. Crim. App.
5 1982).
Third, Petitioner claims tha t his counsel we re ineffective in failing to assert
that the affidavit was invalid because the phrase “Affiant has talked to a
confidential informant . . . who has . . . no reason known to affiant to mistate [sic]
the truth and is reliable” is false and mislea ding. The p ost-conviction cou rt found
5 Petitioner also contends that his allegation that Griffey made the statement that Andrew had no criminal record intentionally or recklessly is shown by Bobo’s testimony that he knew that Andrew had criminal connections in the community. However, Bobo testified that he did not know whether Andrew had any prior convictions. In addition, Bobo stated that he did not think that he had participated in obtaining the warrant and he only remembered reviewing the affidavit for some motions that were subsequently filed in this case. Thus, there is no evidence that Bobo played any role in the completion of the affidavit or that Griffey had any knowledge about Bobo’s suspicions about Andrew’s criminal connections.
-16- that there was no proof that this statement was made with intent to deceive the
court or that the statement was recklessly made.
The evidence does not pre pond erate a gains t the po st-con viction c ourt’s
finding that the statement was not made with intent to deceive the court and was
not made recklessly. Baize testified at the post-conviction hearing that he met
with the informant in this cas e in Ja nuary of 198 7 and took th e inform ant’s
statement about the Smith murders. Baize testified that he believed that the
informant was re liable b ecau se the inform ant kn ew ab out info rmatio n that c ould
only have come from someone who had been inside the Smith home at the time
of the murders. Griffey testified at the post-conviction hearin g that h e bas ed his
statement in the affidavit that the informant was reliable on the information he
received from Baize and on the interview he had with Andrew after Petitioner and
Cauthern were arrested. In addition, Griffey testified at the suppression hearing
that he believed that Andrew was reliable because Andrew had informed the
police that Cauthern had said that he and Petitioner had murdered the Smiths
and Andrew had seen Cauthern with one of the Smiths’ credit cards. Griffey also
testified that whe n he we nt to find Cauthern, he saw Cauthern and Petitioner
working on a car that contained the Smiths’ credit cards in plain view. Thus, we
conclude that G riffey did not make this statement in the affidavit with the intent
to dece ive the c ourt an d did not ma ke the sta temen t reckless ly. Indeed, because
Andrew provided the police with information about the crim e that c ould h ave on ly
come from someone who had been in the Smith home an d because the police
subs eque ntly corroborated Andrew’s claim that he had seen Cauthern with one
-17- of the Sm iths’ cre dit card s, it is clea r that G riffey ha d reas onab le grounds to
believe that Andrew was reliable.6
In short, there is no evidence that the statements made by Griffey in the
affidav it were made with intent to deceive the court or that the statem ents were
reckle ssly made . Thus, we conclude that Petitioner’s counsel were not
ineffective in failing to challenge the validity of the wa rrant o n this g round . This
issue ha s no m erit.
C. Joint Trial
Petitioner contends that his trial counsel were ineffective in failing to file a
motion to sever his trial from the trial of Cauth ern. Petitioner argues that his trial
counsel should have sought a severance becau se the joint trial re sulted in
admission of Petitioner’s statement to police that was redacted pu rsuant to
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 16 20, 20 L .Ed.2d 4 76 (196 8), to
eliminate all references to C authern. Spe cifically, Petitioner claims that he was
prejudiced by introduction of the redacted statement because “his own redacted
statement rendere d his con fession m ore incrim inating tha n before the reda ction.”
Although Petitioner makes the conclusory argument that his redacted
statement was m ore incrim inating tha n his unre dacted statem ent, he has failed
6 Petitioner also contends that his allegation that Griffey made the statement that Andrew was reliable with intent to deceive the court or recklessly is shown by Bobo’s testimony that he knew that Andrew had used aliases in the past, had dressed like a female on occasion, and had “kinky” sexual hab its. Ho weve r, as p revio usly no ted, B obo state d tha t he d id not think that h e had partic ipate d in obtaining the warrant and he only remem bered reviewing the affidavit for some m otions that were subsequently filed in this case. Again, there is no evidence that Bobo played any role in the completion of the a ffida vit or th at Gr iffey h ad an y kno wled ge co nce rning Bob o’s su spic ions abou t And rew’s allege dly deviant behavior.
-18- to identify any p ortion of the statem ent that became more incrim inating after it
was redacted. Indeed, we have reviewed both the redacted and unredacted
statements and conc lude that the reda cted statem ent is not significantly mo re
incriminating. Indeed, this Court concluded on direct appeal that admission of the
redacted statement into evidence was pro per. Brett Patterson, 1989 WL 147404,
at *6.
In addition, we note that the decision of Petitioner’s couns el not to seek a
severance was a tac tical one. Indeed, Richardson expressly testified during the
post-conviction hearing that “I don’t remember if we moved for a severance or
not, but tactica lly spea king, w e defin itely wanted [Petitioner and Cauthern] tried
togethe r.” Richardson also testified that part of the strategy was to attem pt to
contrast Petitioner and Cauthern as much as possible in terms of attitude and
culpability. Similarly, Barrett testified that one o f the trial strateg ies was to “show
that Caut hern w as rea lly the m oving p arty” an d Petitioner “played a very,
relatively spe aking, m inor role co mpare d to Mr. Cauthe rn.” This Court may not
second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadeq uate pre paration . Hellard v.
State, 629 S.W .2d 4, 9 (T enn. 19 82); Alley v. State , 958 S.W.2d 138, 149 (Tenn.
Crim. App. 1997 ). “Trial c ouns el ma y not be deem ed ine ffective m erely because
a different procedure or strategy might have produced a different result.” Alley,
958 S.W.2d at 149. We conclude that counsels’ decision not to seek severance
in order to contrast Petitioner’s participation in the crimes with that of Cauthe rn
appears to have been informed and based upon adequate preparation. W e
cannot second-guess counsel in this regard. See Hellard, 629 S.W.2d at 9. This
-19- D. Voluntariness
Petitioner contend s that his trial co unsel w ere ineffec tive in failing to
adequately address the voluntariness of his statement to police.
The record ind icates that Petitioner’s trial cou nsel filed a m otion to
supp ress P etitione r’s statement to police on the ground that the statement was
involuntary. The record also indicates that during the suppression hearing,
Petitioner’s counsel questioned Gray about the length of the police interview of
Petitioner and w hethe r Petitio ner inv oked his righ t to cou nsel o r his right to
rema in silent. Counsel also questioned Petitioner about his interview with police,
and Petitioner testified that the en tire interv iew wa s not re corde d, that G ray told
him that Cauthern was putting the b lame on h im, and that B reedlove told him that
cooperation could mean the difference between a life or a death sentence.
Counsel then questioned Breedlove about the length of Petitioner’s interview,
whether the entire interview was recorded, whether Petitioner was informed that
Cauthern was blaming him for the crimes, whether Petition er was advise d of his
rights, and whether he made any promises to Petitione r that co opera tion co uld
mean the differen ce betw een a life o r death s entenc e.
Petitioner claims that trial counsel failed to adequately address the
voluntariness of his statemen t because c ounsel failed to qu estion Breed love
about whether he made any promises that Petitioner would n ot receive the dea th
penalty if he con fesse d to the murd ers of th e Sm iths. Th is allega tion is sim ply
not accurate. Th e record indicate s that during the su ppression h earing the
following colloquy occurred between the prosecutor and Breedlove:
-20- [Bobo]: I believe—of course, the Court has [the transcript of Petition er’s statemen t], but toward the end there, after completion of the statem ent, there was some statements about whether it might be life or death? [Breedlove]: Yes. [Bobo]: Had that been b rought up at a ny time before [Petitioner] bringing that up? [Breed love]: No, sir. Not at a ll, I think, you know, the main reason why I said that at that point more than anything was to encourage him that he did the right thin g and , you kn ow, ba sically it was no promise—that there would be a difference between life and death, but we were more or less trying to let him know that wh at he d id was the right thing by telling the truth.
Shor tly thereafter, the follo wing c olloqu y occu rred be tween Petition er’s counsel
and Breedlove:
[Richard son]: And . . . were there any comments—you said that you made the comment toward h im of life or death merely to encou rage him to tell the truth? [Breed love]: Yes, sir. Well, you know, he was feeling pretty bad at that point, and we just—you know, we weren’t going to sit and talk down to him, and you know, it would have done him no good at that poin t, because he had done to ld us the tru th, and it wa s more at that stage to encourage him somewhat. We knew it was a bad situation, he understood—he had full knowledge, you know, that he was, you know, in trouble, and I guess under arrest and he expressed some remorse I guess that he told the truth, because he knew, as his statement—that he just hung h imself. [Richardson]: Prior to the written statement being made, the taped interview, were any comments made about promises or assurances or encouragement made as far as life or death were concerned? [Breed love]: No. No. No . The only time it was made was at the 7 end.
In this case, it is absolutely clear that, de spite P etitione r’s con tention s, his
trial counsel did question Breedlove about whether he had made any promises
about cooperation resulting in a life sentence rather than a death sentence.
Petitioner has failed to identify anything m ore that co unsel co uld have done to
7 We note that the transcript of Petitioner’s statement indicates that Breedlove only made one reference to the death penalty during the interview with Petitioner. Page sixteen of the seventeen page transcript contains the following statement by Breedlove: “You know, you’re sorry for what happened, that will ch ang e it fro m a deat h sen tenc e to life .” Th e rec ord in dica tes th at Bre edlov e did n ot m ake this comment until after Petitioner had already given most of his incriminating statement. The part of Petitioner’s s tatem ent that ca me a fter Bree dlove’s co mm ent is bas ically insignificant.
-21- more fully develop this issue. In addition, P etitioner ha s failed to identify any
additional evidence that counsel could have obtained that would have changed
the trial court’s ruling that his statem ent was volun tary. Thus, Petitioner has
failed to show that his counsel were deficient in the manner in which they
addres sed the voluntarine ss of his sta temen t. This issu e has n o merit.
E. Transcript of the Sentencing Hearing
Petition er con tends that his appellate cou nsel was ineffec tive in failing to
includ e the tra nscrip t of his se ntenc ing he aring in the rec ord on direct a ppea l.
Petitioner argue s that h is coun sel’s failure to include the transcript of the
sentencing hearin g in the app ellate record prejud iced h im be caus e it resu lted in
a waiver of his cla im tha t the trial court erred when it imposed co nsecutive
sentencing. However, this Court did not treat this issue as waived on direct
appeal. Indeed, this Court stated that
As a prerequisite to imposing consecutive term s, we m ust be able to place [Petitioner] into at least one of the Gray categories, and find confinement neces sary to protect the public from further criminal conduct by the defen dant. Gray v. State, 538 S.W.2d 391 (Tenn. 1976). We can and do. W e find that the record a s a who le, and particularly the chilling details of the crimes as related by [Petitioner] at the sentencing hearing, abso lutely justifies the sente nces im posed , and fully su pports [Petitioner’s] categorization as a dangerous offender for whom consecutive sentencing is appropriate.
Brett Patterson, 1989 WL 147404, at *9.
Because this Court was able to address the issue of consecu tive
sentencing on the merits, it is absolutely clear that Petitioner was not prejudiced
by the failure to include the senten cing trans cript on ap peal. Indeed, Petitioner
-22- has failed to identify any portion of the sentencing hearin g trans cript tha t would
have affected th is Court’s h olding tha t consec utive senten ces w ere en tirely
approp riate. This is sue ha s no m erit. 8
F. Opening Statement and Closing Argument
Petitioner contends that his trial counsel were ineffective in failing to object
to portions of the pros ecutor’s o pening statem ent and closing a rgume nt.
First, Petitioner c ontend s that trial counse l were ineffe ctive in failing to
object during the prosecutor’s opening statement when he said that the “880
cord” that was found in Petitioner’s jacket was the murder weapon and when he
referred to Petitioner as “little,” “on the prowl,” “crea ture,” and “comra de.”
Howeve r, on direct appe al, this Court specifically determined that there was
nothing improper about the prosecutor’s statement that the “800 cord” was the
murder weapon because the facts adduced at trial supported that inference.
Brett Patterson, 1989 WL 147404, at *7. In addition, this Court held that the
prose cutor’s reference to Petitioner as “little,” “on the prowl,” “creature,” and
“comrade” were “neither so demeaning nor derogatory as to constitute an appeal
to passion, prejudice, and sentiment” so as to re quire a nalysis under the test of
Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 19 76). Id., 1989 WL 147404,
8 In a re lated issue , Petitio ner c onte nds that tr ial cou nse l were also in effe ctive in failing to ca ll him to testify during the sentencing hearing, failing to introduce testimony about his good military record, and failing to introduce evidence about his psychiatric history. However, the record indicates that at the close of the State’s proof during the sentencing hearing, Richardson informed the trial court that he had discussed the matter with Petitioner and Petitioner had stated that he did not want to testify or introduce any evidence during the hearing. The trial court then asked Petitioner whether he was aware of his right to testify and o ffer proo f and Pe titioner stated that he wa s. Thus , it is clear that co unsel did not decline to offer proof during the sentencing hearing because they were ineffective, but declined to offer proof because they were following Petitioner’s instructions.
-23- at *7. Beca use this C ourt has previous ly determ ined that the prosecu tor’s
remarks during his opening statement did not prejudice Petitioner, it is clear that
his counsel were not ineffective in failing to object to the comments.
Second, Petitioner c ontend s that trial cou nsel we re ineffective in failing to
object when the prosecutor referred to Petitioner during his closing argument
even though Petitioner had waived closing a rgume nt. How ever, th is Cou rt held
on direct appeal that although the p rosecutor’s refere nces to Pe titioner were not
appropriate, Petitioner was not entitled to any relief b ecaus e of them . Id., 1989
W L 147404, at *7. Because this Court has previously determined that the
prose cutor’s rema rks du ring his closing argum ent did not pre judice Petition er, it
is also cle ar that h is coun sel were not ineffective in failing to object to the
comm ents. Th is issue ha s no m erit.
G. Investigation and Conduct of the Trial
Petitioner contends that his trial counsel were ineffective in failing to
adeq uately investig ate this case and in the manner in which they conducted the
trial.
First, Petitioner contends that his counsel were ineffective because they
failed to interview Andrew, Denn ing, and B arbee b efore trial. However, Petitioner
has failed to indicate how he was prejudiced by this failure. Indeed, Petitioner
has failed to give any explanation at all about how th e outc ome of his tria l would
have been any different if counse l had interviewed the se witnesses before trial.
-24- Second, Petitioner c ontend s that trial cou nsel we re ineffective in failing to
investigate to determine whether Denning, Andrew, and Barbee had made any
deals with the State in return for their testimony at trial. Specifically, Petitioner
claims that this failure prevented counsel from impeaching these witnesses.
Howeve r, the reco rd indicate s that Pe titioner’s counsel filed m otions for discovery
of any agreements the Sta te had with its w itness es. In a ddition , Petition er’s
counsel cross-examined Denning about whether he had made a deal with the
State, and Denning admitted that he had made a deal in which he would not be
prosecuted for various matters if he testified in this case. Petitioner’s counsel
also cross-examined Denning about the numerous statements he had given to
police and the relationship between the statements and the deal he had made
with the State. Although the record indicates that Andrew was paid up to $1,000
from the Crimebusters Fund for his cooperation in this case, nothing in the record
indicates that he made a deal with the State in return fo r his testim ony. In
addition, Cauthern’s counsel cross-examined Andrew about whether he had
made any deals with the State and whether he had a reputation for unusual
behavior such as cross dressing. Further, although the record does indicate that
Barbee made a deal with the State in return for his cooperation in the
investigation, the record indicates that Barbee did not testify at trial. Obviously,
Petition er’s counsel could not have impeached the testimony of som eone who d id
not testify. P etitione r has fa iled to show that he was prejudiced by the alleged
failure to inves tigate a nd de termin e whe ther the State h ad m ade d eals w ith its
witnesses.
Third, Petitioner contends that trial counse l were ineffe ctive in failing to
investigate to determine whether Denning, Andrew, and Barbee had criminal
-25- records so that the witnesses could be impea ched at trial. Howe ver, the record
indicates that Petitioner’s counsel filed motions for discovery of the criminal
records of all State witnesses. In addition, Petitioner’s counsel made an
agreement with the State that required the State to disclose the criminal records
of its witnesses. Both Richardson and Barrett testified that they could not
remember whether the State had given them the criminal records of its
witnesses. However, Barrett testified that even if he had seen Andrew’s criminal
record, he would not have used it for impeachment purposes because the prior
convictions were for insignificant matters. Indeed, the record indicates that
Andr ew’s prior crimin al record consiste d of convic tions for reckless driving,
speeding, and disorderly conduct. Similarly, Denning’s prior criminal record
consisted of convictions for possession of marijuana, driving under the influence
of an intoxicant, and driving on a revoked license. Likewise, Barbee’s prior
criminal record c onsisted of convictio ns for driving under the influence of an
intoxicant and failure to drive with rea sonable ca re. Once again, the record
indicates that Barbee did not tes tify at trial, and thu s, there w as no o pportun ity to
impeach his testimony. In addition, the criminal records of Andrew and Denning
had little, if any, impeachment value. Thus, Petitioner has failed to show that he
was prejudiced by his counsel’s failure to obtain these criminal records.
Fourth, Petitioner claims that Richardson provided ineffective assistance
of counsel when his questioning of a witness “opened the door” and allowed the
State to introduce a shotgun into evidence. The shotgun had previously been
suppressed by the trial court. However, Petitioner has failed to provide any
explanation for how he was prejudiced by introduction of this weapon other than
a conclusory statem ent that the prejudice is obvious . This conclusory statement
-26- is insufficient to satisfy Petitioner’s burden of showing that he was prejudiced by
his counse l’s deficiency.
Fifth, Petitioner contends that his trial counsel we re ineffective in failing to
call him to explain the meaning of a “jungle war certificate” he obtained in the
military and to testify that he received an honorable discharge from the army as
well as variou s letters of me rit and commendation. However, Petitioner has failed
to spe cifically identify any prejudice that resulted from the failure of his counsel
to call him to te stify. In addition , it appears from Ba rrett’s testimony during the
post-conviction hearing that the decision of Petitioner’s counsel not to introduce
any evidence was based on their strategy of attempting to show that Petitioner
only played a minor role in the events that occurred at the Sm ith residen ce. W e
are not free to s econd guess couns els’ tactical de cision. See Hellard, 629
S.W.2d at 9.
In short, Petitioner has failed to show that, without the alleged deficiencies
of couns el in their inves tigation of the case or the manner in which they
conducted the trial, there is a reasonable probability that the result of the
proceedings in this case would have been different. Thus, we conclude th at
Petitione r has failed to dem onstrate prejudice . This issu e has n o merit.
IV. CONCLUSION
In conclusion, Petitioner has failed to show that the p ost-conviction cou rt
erred when it dismissed his petition for post-conviction relief. As to his claims
regarding ineffective assistance of counsel, Petitioner has either failed to show
-27- that his counsel were deficient or that there is a reasonable probability that the
result of the proceedings would have been different without the alleged
deficiencies. As to his other claims, they are not cognizable in a post-conviction
proceeding because this Court previously determined on direct appeal that the
issues have no me rit. Acco rdingly , the jud gme nt of the post-c onvictio n cou rt is
AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ THOMAS T. WOODALL, JUDGE
___________________________________ NORMA MCGEE OGLE, JUDGE
-28-