IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED NOVEMB ER SESSION, 1998 May 26, 1999
Cecil W. Crowson JAMES H. REGISTER, ) Appellate Court Clerk C.C.A. NO. 01C01-9605-CC-00199 ) Appe llant, ) ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney General and Reporter Nashville, TN 37204 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
MIKE MCCOWN District Attorney General
ROBERT CRIGLER Assistant District Attorney Bedford County Courthouse Shelbyville, TN 37160
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The petition er, Jam es H. R egiste r, appe als the Bedfo rd Co unty C ircuit
Cou rt’s order denying his petition for post-conviction relief after an evidentiary
hearing. Register was convicted in 1992 of one (1) count of aggravated robbery
and one (1) count of aggravated burglary and received an effective sentence of
thirty (30) years.1 Petitioner subsequently filed the present petition which alleged
numerous constitutional violations. On appeal, the petitioner contends that (1)
the state withheld exculpatory information at a sup press ion he aring p rior to tria l;
(2) the state knowingly presented false testimony at trial; and (3) trial counsel was
ineffective for failing to discover such exculpatory information. After a thorough
review of th e record before th is Court, w e affirm the judgm ent of the tria l court.
FACTUAL BACKGROUND
A. Trial
We will recite the facts as set out by this Court on direct appeal:
On Octob er 8, 199 1, at 5:10 a .m., a Bedford County resident was accosted in the bathroom of her home by a man wearing a nylon stocking over his head. The intruder, brandishing a pocket knife, demanded the victim’s money and was given $8 from the victim’s pocket. The intruder then demanded the victim remove her panties and the victim refused since her two year old son was watching. The intruder ordered the victim to make her son lay down and again demanded she drop her pan ties. The victim explained that she w as on her m onthly period and was wearing a pad. Even tually she dropped her panties and the intruder started undoing his pants, spied her pad, turned and walked through the back door of her hom e after cuttin g the telep hone c ord. A wee k later th e victim
1 Petitioner was also convicted of aggravated kidnapping, but the aggravated kidnapping conviction was rev ersed b y this Court o n direct ap peal. See State v. James H. Register, C.C.A. No. 01C01-9210-CC-00329, 1993 Tenn. Crim. App. LEXIS 538, Bedford County (Tenn. Crim. App. filed Augus t 12, 1993 , at Nash ville), perm. to app. denied (Tenn. Decem ber 28, 1993).
-2- identified a photograph she selected as being similar to he r attacker. This was not the d efendant. Late r that day she subsequ ently identified the defe ndant in a line-up. The victim identified the defen dant’s flannel jacket as be ing the jacket wo rn by the intruder. This testimony and other evidence convinced the jury the defendant committed these offenses.
State v. James H. Register, 1993 Tenn. Crim. App. LEXIS 538, at *1-2.
B. Suppression Hearing
Prior to trial, the trial court held a hearing on the petition er’s mo tion to
suppress items of evidence seized pursuant to a stop of his vehicle by law
enforcement authorities. Detective Ed Luth er of the R utherford Coun ty Sher iff’s
Department testified tha t two inc idents similar to the p resen t case occu rred in
Rutherford County in the fall of 1991. The law enforcement authorities had a
description of the s uspe ct, and a Cam aro au tomo bile wa s see n in the vicinity of
the crime in both cases . Detective Luther s poke with Be dford County authorities
who advised him about the October 8 incide nt. Th e Bed ford C ounty Sher iff’s
Department further advise d that R egiste r drove a Cam aro wh ich matched the
description and he worked in Rutherford County. Luther also had information that
Registe r was drivin g on a su spend ed driver’s lice nse.
Luther then took a witness to the parking lot of Register’s place of
emplo ymen t, and the witness identified the Camaro as the vehicle seen at the
scene of one of the R utherford Co unty offenses. Luther and oth er officers
watched the vehicle until Register got into the vehicle and drove from the parking
lot. Wh en Luth er noticed that Reg ister match ed the d escription of the sus pect,
the officers stopped the petitioner’s vehicle. Register was frisked, and a pocket
knife was found in his pocket. The officers obtained consent to search the
vehicle and s eized various items of evidence, including gloves, scissors, a box
-3- cutter, boots and a jacket. A pair of wom en’s stockings were also taken from the
petitioner’s car.
The officers su bsequ ently took th e petitione r to the She riff’s Depa rtment,
where the petitioner w aived his rig hts and g ave a s tatem ent to th e office rs. In his
statem ent, the petitioner denied culpability for the offenses, but admitted to being
in the vicinity of on e of the offe nses a round th e appro ximate time that the offense
occurred. The officers thereupon arrested the petitioner in connection with the
Rutherford County offense, but did not arrest the petitioner for driving on a
revoked license. Articles of clothing worn by the petitioner at the time he was
arrested were als o seized by the au thorities.
The trial court found that based upon the identification of the p etitione r’s
vehicle, the officers had reasonable suspicion to stop the petitioner. The trial
court further found that the petitioner gave the o fficers c onse nt to se arch h is
vehicle and, as a result, den ied the pe titioner’s motion to suppress the items
seized from the vehicle at that time. However, the trial court determined that the
officers did not have probable cause to arrest the petitioner and suppressed the
items se ized sub seque nt to his arre st.
C. Post-Conviction Hearing
At the post-conviction hearing, the petitioner testified that he was thirty-five
(35) years old and had an eleventh grade education. He stated that he was
represented at trial by the public defen der’s office. He claimed that his attorney
did not discuss the investigation of his case or any defense strategies with him.
Although he ac know ledge d that h is attorney discussed the suppression hearing
with him, he testified that there was no discussion as to why some items of
evidence were suppressed and others were not. He stated that, subs equen t to
his trial and appeal, he was involved in a federal lawsuit against Detective Luther
-4- and in conne ction with s uch law suit, receive d discove ry materia ls, including an
investigation report prepared by Dete ctive Luthe r. In the inves tigation rep ort,
Detective Luther states that the officers conducted a second search of the
petition er’s vehicle afte r the petition er was a rrested. The pa ir of wom en’s
stocking s were re covered during tha t second search .
Detective Luther also testified at the post-conviction hearing. Luther
admitted conducting a second search of Register’s vehicle which produced the
pair of women’s stockings. However, Luther could not recall whether the
investigative report wa s given to th e Bedfo rd Cou nty District A ttorney’s O ffice.
The petitioner was represented by Forest Du rard of the P ublic D efend er’s
Office at trial. At the tim e of the petition er’s trial, D urard had b een in volved in
appro ximate ly thirty (30) jury trials. Durard testified that he met with the petitioner
appro ximate ly nine (9) times in preparation for trial. D urard receive d the s tate’s
file on the petitioner’s case around the time that the preliminary hearing was to
take place. Because the petitioner agreed to waive his preliminary hearing, the
assistant district attorney agreed to open file discovery . Durard testified that he
investigated case law and reviewed the discovery materials in preparation for the
petition er’s suppression hearing. He was unaware that the officers conducted a
second search of his client’s vehicle until the petitioner’s appeal had concluded.
Durard stated tha t he did no t obtain a copy of the in vestiga tive rep ort in
preparation for trial, and to his knowledge, such report was not in the state’s file.
He testified that, in his experience with the Bedford Cou nty Dis trict Atto rney’s
Office, he “had no reason to believe that the attorney general’s office had [the
report].”
Assistant District Attorney Robert Crigler testified at the hearing that he
assisted in the petitioner’s trial. He was not intimately involved in the pre-trial
-5- matters on this case, but reviewed the state’s file and did not find the investigative
report prepare d by Detective L uther. 2
In a written order, the trial court observed that although the items seized
from the petitioner’s vehicle at the time of the initial stop were admissible at trial,
both defen se co unse l and th e trial court were led to b elieve th at the w ome n’s
stockings were se ized at the time of the initial stop. The court determined that
information was withheld from the defense regarding the seizure of these
stockings. The trial court further determ ined that had trial cou nsel been a ware
of this second search, he would have been successful in suppressing the
stockings as evidence in the petitioner’s trial due to the court’s previous ruling
that all items seized subsequent to the pe titioner’s arre st were ina dmiss ible.
Howeve r, the trial court noted that the stockings were merely a “minor part of the
procee dings,” and the “heart of the state’s case against the petitioner was the
eyewitness identification by the victim.” Although the stockings we re
corroborative of the victim’s identification, the trial court found that other items of
prope rly admissible e vidence also c orroborated th e victim’s testimony. Finding
that the stockings were not material to the state’s case und er Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the trial
court denied pos t-conviction relief in this regard. Fu rthermore, the trial court
found that the petitioner did not receive ineffective a ssistanc e of coun sel with
regard to his atto rney’s fa ilure to d iscove r the se cond searc h of the vehicle
because the petitioner could not demonstrate how he was prejudiced. As a
result, the trial court den ied the post-c onvictio n petitio n. From the trial c ourt’s
order , the pe titioner b rings th is app eal.
2 Gary Jo nes, lead couns el for the sta te in this cas e, was d eceas ed at the tim e of the he aring.
-6- POST-CONVICTION STANDARD OF REVIEW
In post-conviction pro ceedings, the petitioner bears the burden of proving
the allegations raised in the petition by a preponderance of the evidence.3
Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d
97, 101 (Ten n. Crim. App . 1995). Moreover, the trial court’s findings of fact are
conclusive on appeal unless the evidence preponderates against the judgm ent.
Tidw ell v. State, 922 S.W.2d at 500; Cam pbell v. State , 904 S.W.2d 594, 595-96
(Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).
EXCULPATORY EVIDENCE
In his first issue, the petitioner claims that the sta te withheld exculpa tory
information regarding the seizure of the women’s stockings during the second
search of his vehic le. He argues that trial counsel would have been successful
in suppressing the stockings as evidence at trial had counsel been aware that the
officers conducted a second search of the vehicle. Beca use the stock ings were
admitted as evidence in the petitioner’s trial, he contends that he is entitled to a
new tria l.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d
215 (1963), the Supreme Court held that “suppression by the prosecution of
evidence favorable to an ac cused up on reques t violates due proce ss where the
evidence is material either to guilt or to punishment, irrespective of good faith or
3 Und er the 1995 Pos t-Co nvictio n Pro ced ure A ct, the petitio ner h as th e bur den of pro ving h is claims by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). However, since the present petitio n wa s filed prior t o the effe ctive d ate o f the 1 995 act, th e pet itione r’s cla ims mu st be prov en by a preponderance of the evidence.
-7- bad faith of the prosecu tion.” See also Hartman v. State, 896 S.W.2d 94, 101
(Tenn. 1995). In o rder to es tablish a due proc ess violation unde r Brady, four
prerequ isites mu st be m et:
1. The defe ndant mu st have requested the information (unless the evidence is obviously exculpa tory, in whic h cas e the S tate is bound to release the inform ation whethe r requested o r not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The inform ation m ust ha ve bee n ma terial.
State v. Edg in, 902 S.W.2d 387, 389 (Tenn. 1995). The burden of proving a
Brady violation rests with the de fendant, and the violation mus t be proven by a
preponderance of the evide nce. Id.; State v. Spurlock, 874 S.W.2d 602, 610
(Tenn. C rim. App. 199 3).
In determining the materiality of undisclosed information, a review ing court
must establish whether “in [the] absence [of the inform ation] [the d efenda nt]
received a fair trial, unde rstood a s a trial resu lting in a verd ict worthy of
confiden ce.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L.
Ed. 2d 49 0 (199 5). In oth er wor ds, evid ence is cons idered mate rial only if there
is a reasonable probability that had the evidence been disclosed to the defense,
the results of the proceeding would have be en differen t. Kyles v. Whitley, 514
U.S. at 4 33, 115 S. Ct. at 15 65; State v. Edg in, 902 S.W.2d at 390.
In its order denying post-conviction relief, the trial court found that the sta te
withhe ld information concerning the seizure of the stockings, and if such
information had been disclos ed, trial c ouns el wou ld have been succe ssful in
suppressing the sto cking s from eviden ce at tria l. However, the trial court found
that such information was not material. We agree.
-8- The victim testified unequivocally at trial that the petitioner was the man
who attacked her on October 8, 1991. Although she wa s unab le to identify the
petitioner from a photo graph ic line-u p, she identifie d the p etitione r prior to trial in
a physical line -up. Detective D ale Ellio tt of the B edford Coun ty She riff’s
Department testified that the victim showed no hesitation in identifying the
petitioner during the ph ysical lin e-up. F urther more , the victim identified a pocket
knife found o n the pe titioner as resembling the one used by her attacker and a
flannel jack et found in the petition er’s car as one wo rn by the p erpetrato r.
Moreover, Shirley Clanton, the petitioner’s neighbor, testified that she read
a newspaper article on October 8 which de scribed th e inciden t and the s uspec t,
as well as the suspect’s clothing. She notified the authorities when she noticed
that the petitioner matched the description of the suspect and was wearing similar
clothing on October 8.
Betty Jones testified that she and the petitioner lived together at the time
of the incident, and the petitioner was driving h er vehicle on the day he was
stopped by the law enforcement authorities. She stated tha t she frequently wo re
the type of stockings found by the officers in her car beca use sh e was p regnan t.
She further testified that she often remove d her sto ckings in her car d ue to
swelling in h er legs an d feet.
The victim’s identification of the petitioner as the perpetrator of the crime
was uncontroverted. Furthermore, the state presented evidence which
corroborated the victim’s identification testimony. The presence of stockings in
the petitioner’s vehicle was only slight corroborative evidence of the p erpetr ator’s
identity. Additionally, when coupled with Betty Jones’ explanation as to the
presence of the stockings in the car, the significance of the stockings diminishes.
The petitioner has not demonstrated a reasonable probability that, had the
-9- stockings been suppressed at trial, the result of the proceeding would have been
different. As a re sult, we agree with the trial cou rt that the petitioner has not
carried his burden in this regard.
This issu e is withou t merit.
FALSE TESTIMONY
In a related issue, the petitioner argues that the state knowingly presented
the false testimony of Detective Luther at the sup pression hearing . He ass erts
that Detective Luther’s testimony implied that all of the items were seized from
the vehicle at the time of the initial stop. Thus, the petitioner claims that the
state’s failure to correct Detective Luther’s misleading testimony deprived him of
a fair trial.
“[A] conviction obtained through the use of false evidence, known to be
such by representatives of the State” deprives a defendant of due process.
Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 11 77, 3 L.Ed.2d 1217 (195 9);
see also Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31
L.Ed.2d 104 (1972 ); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App.
1993). “The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360
U.S. at 269, 79 S.Ct. at 1177. Therefore, when a witness testifies falsely, either
on direct or cross-e xamina tion, the sta te has an affirmative d uty to correct such
false testim ony. State v. Spurlock, 874 S.W.2d at 617.
To prevail on a claim that the state know ingly presented false testimony,
the appellant must show by a preponderance of the evidence “(a) that false or
perjured testimon y was ad mitted at tria l, (b) that the sta te either k nowin gly used
-10- such testimon y or know ingly allowe d it to go un correcte d, and (c) that the
testimony was ma terial and deprived him of a fair trial.” Roger M orris Bell v.
State, C.C.A. No. 03C01-9210-CR-00364, 1995 Tenn. Crim. App. LEXIS 221, at
*9, Hamilton County (Tenn. Crim. App. filed March 15, 199 5, at Kno xville), perm.
to app. denied (Tenn. Au gust 28, 199 5); see also Phillip Shu pe v. State , C.C.A.
No. 03C01-9804-CC-00126, 1999 Tenn. Crim. App. LEXIS 111, at *4, Bradley
County (T enn. Crim. A pp. filed February 9 , 1999, at Kno xville).
It is unclear whether Detective Luther delib erately falsified his testimony
regarding the se cond searc h or m erely lim ited his answers to the questions
posed to him. Regardless, it is clear that Luther’s testimony can arguably be
construed as mislead ing. However, there is no indication in the record that the
Bedford County District Attorney’s Office knew that such testimony was
misleading. Indeed, the petitioner recognizes in his brief that “[t]he record does
not dis close wheth er any prose cuting attorne y was a ware o f Dete ctive Lu ther’s
duplicity.” Assistant District Attorney Crigler testified at the post-conviction
hearing that the state’s file did not contain the investigative report prepared by
Luther which revealed the second search. Withou t any evidence to the contrary,
we are relucta nt to hold th at the state knowingly presented false or misleading
testimony.
In any event, the petitioner has not demonstrated that the evidence was
mate rial and depriv ed him of a fair tria l. As we previo usly stated, the stockings
constituted very little of the state’s proof of the petitioner’s id entity. If the state
had corrected Detective Luther’s testimony and the stockings were ruled
inadm issible, we are not co nvince d that a reaso nable probab ility exists that the
result of the p rocee dings would have been differen t. Thu s, the p etitione r’s claim
in this re gard m ust fail.
-11- This issu e has n o merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his final issue, the petitioner claims that trial counsel was ineffective for
failing to discover the second illegal search at the time of the suppression
hearing. Essentially, he argues that trial counsel did not effectively cross-
examine Detective Luther a t the supp ression h earing. He contends that had trial
counsel asked the proper questions during the suppression hearing, the trial
court would have suppressed the stockings as evidence. Therefore, he
maintains that trial c ouns el’s performance was deficient, and he was prejudiced
as a resu lt.
The United S tates Su preme Court ar ticulated a two-pron g test for co urts
to emp loy in evalua ting cla ims o f ineffec tive ass istanc e of co unse l in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Co urt
began its analysis by noting that “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. When
challenging the effective assistance of counsel in a post-conviction proceeding,
the pe titioner b ears th e burd en of e stablis hing (1 ) the atto rney’s representation
was deficient; and (2) the deficient performance resulted in prejudice so as to
deprive the defen dant of a fa ir trial. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064; Powe rs v. State, 942 S.W.2d 551, 5 58 (T enn. C rim. A pp. 19 96). T his
Court is not required to consider the two prongs of Strickland in any particular
order. Harris v. S tate, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996).
-12- “Moreover, if the Appe llant fails to esta blish one prong, a reviewing court need
not consider the other.” Id.
The test in Tennessee in determining whether counsel provid ed effective
assistance at trial is whether counsel’s performance was “within the range of
competence deman ded of attorneys in criminal cases .” Baxter v. Rose, 523
S.W.2d 930, 93 6 (Ten n. 1975 ); see also Harris v. S tate, 947 S.W .2d at 163 . In
order to demonstrate that counsel was deficient, the petitioner must show that
coun sel’s representation fell below an obje ctive standard of reasonableness
under prevailing p rofession al norm s. Strickland, 466 U.S . at 688, 10 4 S.Ct. at
2064; Harris v. S tate, 947 S.W.2d at 163.
Under the prejudice prong o f Strickland, the petitioner must establish that
“there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probab ility sufficient to underm ine confidence in the outcom e.” Strickland, 466
U.S. at 694, 104 S.Ct. at 2068.
In reviewing coun sel’s co nduc t, a “fair assessm ent . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of couns el’s challenged conduct, and to evaluate the conduct from
coun sel’s perspe ctive at the tim e.” Strickland, 466 U.S. at 689, 104 S.Ct. at
2065. The mere failure of a particular tactic or strategy does n ot per se establish
unrea sona ble represe ntation. Goad v. State, 938 S.W.2d 363, 369 (Ten n. 1996).
Howeve r, this Court will defer to counsel’s tactical and strategic choic es on ly
where those choice s are informed ones predicated upon adequate preparation.
Id.; Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).
The trial court found that trial counsel’s performance was n ot defic ient in
this case. Furthermore, the trial court found that the petitioner had not
-13- demonstrated how he was pre judiced b y his attorne y’s alleged deficienc y. W e
agree.
Trial counsel testified that he received open file discovery from the state
but did not receive D etective Luther’s inves tigative report which revealed the
second search of the petitioner’s vehicle. He was unaware of the second search
until after the petitioner’s appeal had concluded. Durard testified that he
thorou ghly investigated case law an d revie wed h is disco very m aterials in
preparation for the suppres sion hearing. T rial counsel had no reason to believe
that a second search of the vehicle was conducted; therefore, he had no reason
to question Detective Luther concerning the second search of the vehicle. As a
result, the petitioner has not proven that trial counsel’s perform ance in this rega rd
was de ficient.
Furthermore, the petitioner has not demonstrated how he was prejudiced
by this alleged d eficiency. W e have previously concluded that the admission of
the stockings as evidence did not materially affect the state’s case against the
petitioner. As such, the petitioner has not sho wn “a reason able pro bability that,
but for counsel’s un professional erro rs, the result of the proce eding wou ld have
been different.” Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
This issu e has n o merit.
CONCLUSION
After a tho rough re view of the record b efore this C ourt, we conclude that
the petition er has not pro ven his allegations by a preponderance of the evidence.
According ly, the judgment of the trial court denying post-conv iction re lief is
affirmed.
-14- Howeve r, upon our review of the record, we observe that the judgments of
conviction indicate that the petitioner was se ntenced as a Mitigated Offen der.
Howeve r, a reading of the transcript reveals that the petitioner was sentenced as
a Range II, Mu ltiple Offender. Wh en the re is a c onflict b etwee n the c ourt m inutes
or judgment and the transcript, the transcript c ontrols. State v. Moore , 814
S.W.2d 381, 38 3 (Ten n. Crim. A pp. 199 1). As a re sult, this case must be
remanded to the trial court for entry of proper judgments.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ GARY R. WADE, PRESIDING JUDGE
___________________________________ JOHN H. PEAY, JUDGE
-15-