D. KELLY THOMAS, Jr., Judge.
The Petitioner, Alejandro Guana,
The Petitioner was convicted of first degree premeditated murder for killing Tennessee State Trooper Calvin Jenks during a routine traffic stop. He was sentenced to life in prison with the possibility of parole. He was also convicted of possession of marijuana with intent to deliver, for which he was to serve one year.
To assist in the resolution of this proceeding, we repeat here the summary of the facts set forth in the Petitioner's direct appeal:
On November 4, 2011, the Petitioner filed a pro se petition for post-conviction relief. Thereafter, counsel was appointed, and an amended petition was filed, wherein the Petitioner alleged that he received the ineffective assistance of counsel at trial and on appeal and that the trial court committed various errors. As specific allegations regarding the ineffectiveness of trial counsel, the Petitioner cited the following grounds:
Regarding his claim of ineffective assistance of appellate counsel, the Petitioner alleged that appellate counsel was ineffective for "fail[ing] to pursue the [m]emorial [s]ervice issue on direct appeal and for fail[ing] to pursue the [c]ourt's failure to give the instruction on accomplice testimony." Finally, he alleged trial court error—first, the trial court's failure to deliver the jury instruction on accomplice testimony, and second, the trial court's failure to declare a mistrial due to the memorial service that took place at the courthouse.
An evidentiary hearing was held in the post-conviction court on July 20, 2012. Trial counsel was first to testify. According to trial counsel, the public defender's office was originally appointed to represent the Petitioner, and upon trial counsel's retention in the Petitioner's case, he began to review the public defender's file. Trial counsel stated that he also had an investigator appointed to assist with trial preparation, and that investigator interviewed the State's witnesses. Trial counsel recalled that he also interviewed some of the witnesses, although due to the passage of time, he could not provide specifics about such interviews. Trial counsel stated that, if the witnesses were interviewed by the investigators only, then he would have reviewed those reports. According to trial counsel, he had spoken personally with Tennessee Bureau of Investigation (TBI) "Agent Harmon"
When asked about the theory of defense, trial counsel provided the following explanation:
Trial counsel acknowledged that he did not "put any affirmative proof on" in the Petitioner's defense and that he attempted to establish this defense through cross-examination of the State's witnesses. When asked if he conceded to the jury that the shooting was "intentional," trial counsel responded,
Stated another way, "we tried to fashion a defense to avoid a first-degree murder conviction." Trial counsel agreed that this line of defense would have excluded some lesser-included offenses of first-degree murder with lesser mental states than an intentional act. When asked why he would want to do this, trial counsel strategized that "[t]he proof was just overwhelming that [the Petitioner] had pulled the trigger[,] and in order to gain some credibility" with the jury, it was best to "concede some points."
Trial counsel confirmed that he understood the defense of diminished capacity and that, "[i]n the context of this case[,] it would have to do with the inability for [the Petitioner] to form the requisite intent or premeditation to commit the crime he was charged with." In this vein, the public defender's office had already had the Petitioner evaluated by Dr. James Walker. Trial counsel stated that he received and reviewed Dr. Walker's report and that he spoke with Dr. Walker "on a number of occasions." Dr. Walker's report was admitted as an exhibit to the hearing.
Trial counsel referred to a section of the report which discussed the Petitioner's drug use at the time of the shooting, wherein Dr. Walker concluded, "[The Petitioner's] actions at the time of the event in question were affected by mental disorders at the time, including Cannabis/formal[d]ehyde intoxication and a depression/anxiety reaction related to stressors in his life and his chronic drug use." Trial counsel further relayed Dr. Walker's finding that he did "not believe [the Petitioner] was insane at the time" of the shooting but did "believe [that the Petitioner's] ability to make decisions at the time was impaired by his intoxication and mood anxiety reaction." Trial counsel "thought very, very hard about" his decision not to use Dr. Walker at trial.
Questioning then turned to the memorial service which took place outside the courthouse during the Petitioner's trial. The purpose of the service was to honor "fallen officers" and "was memorializing the victim in the case." Trial counsel made the following objection to the trial court based on these events, "We would make a motion for a mistrial based on some of the activities that have been going on today, and I think some of it may have even extended throughout the week." Trial counsel recalled that this memorial service occurred during the sentencing phase of the Petitioner's trial, and when a life sentence with the possibility of parole was imposed, the issue became moot according to trial counsel. He thereafter withdrew his motion for mistrial: "Judge, I know I made a mention earlier of a motion for a mistrial, which, of course, was based on things that took place today. Based on the decision that's been rendered by the [c]ourt I think that makes the motion moot."
Trial counsel opined that, even if he had not withdrawn the motion, it likely would have been denied because the events happened during sentencing and after the Petitioner had been convicted of the offense itself. When asked at the post-conviction hearing what trial counsel meant by his original statement to the trial court—"I think some of it may have even extended throughout the week"—he could not "recall what other events were going on throughout the week" but only that the memorial service took place. Trial counsel learned that this service was part of a nationwide week to honor "its fallen[.]" He remembered being "blind sided by the event." When asked how, if he desired to do so, he could have preserved this issue for the Petitioner, trial counsel replied that he would have raised it in the motion for new trial. It was also pointed out to trial counsel that the transcript reflected that he asked the court to hear testimony from Chief Turner,
Trial counsel was then asked what steps, in addition to requesting individual and sequestered voir dire, he took "to seat an impartial jury[.]" Trial counsel said,
Specifically, trial counsel recalled that the Petitioner's confession had been broadcast on the local news. He did not question jurors about their knowledge of the confession, simply asking the venire generally if anyone had any knowledge of the case. Trial counsel recalled discussing these issues with potential jurors during voir dire. Trial counsel also moved for a change of venue, which request was denied.
A portion of the trial transcript was read into evidence, wherein trial counsel made a special request to the trial court for a jury instruction on accomplice testimony. Trial counsel noted that he would have made this request based upon the co-defendant's testimony against the Petitioner; however, trial counsel could not recall if this special instruction was included in the final jury charge. Then a portion of the trial transcript was read, wherein the trial court permitted the parties to correct or to amend the jury charge that was given, and counsel for both parties answered "no" when the opportunity was provided.
Trial counsel agreed that he did not raise the issues about the memorial service at the courthouse or the failure to give an accomplice instruction on direct appeal to this court.
On cross-examination, trial counsel testified that he had sufficient time to prepare for trial, meeting with the Petitioner regularly and reviewing discovery with him. According to trial counsel, he reviewed discovery with the Petitioner, and they discussed trial strategy, which, due to the overwhelming proof of guilt, "was to argue that this was something other than first-degree murder" and avoid a life sentence. Although he did not necessarily like it, the Petitioner was "on board with" this strategy according to trial counsel.
Trial counsel testified that he was present at the trial of the co-defendant, who was convicted of facilitation in this shooting. He also knew that the co-defendant had not been sentenced at the time of the Petitioner's trial and that there was not an agreement between the co-defendant and the State in exchange for the co-defendant's testimony.
When asked to explain his decision not to use Dr. Walker to establish a defense of diminished capacity, trial counsel said that, based upon his conversation with Dr. Walker, Dr. Walker would have testified that the Petitioner, despite being intoxicated, could still have formed the requisite intent for premeditated murder. Thus, trial counsel opined that Dr. Walker would not have been very helpful to the defense. Moreover, trial counsel noted that there were "also some negative things" in Dr. Walker's report that would have come out at trial if Dr. Walker had been called as a witness. He reiterated that "[i]t was a decision that [he] didn't take lightly."
Trial counsel did not know of any jurors who actually witnessed the memorial service and could not recall any other events taking place at the courthouse that week. Trial counsel confirmed that the memorial service "took place during [the jury's] deliberations on sentencing." When asked why he did not include this issue on appeal, trial counsel responded, "I think we had withdrawn our request. But again, I think it took place during a phase of the trial where they were making a decision, and that decision ultimately was to our benefit."
The Petitioner then called David Stockton, an attorney with the Public Defender's Office for the 25th Judicial District, who was qualified as an expert in criminal defense. Mr. Stockton testified that a criminal defense lawyer has a duty to investigate the circumstances and facts of a case, including investigating and interviewing potential State's witnesses. When asked if a failure to do so fell below an objective standard of reasonableness, Mr. Stockton replied that "to some extent, yes[, b]ut an attorney might focus toward other areas of the case, and there might not be a need to individually speak to a particular witness." Regardless, a defense attorney "should be aware of what any witness is expected to say or testify about" according to Mr. Stockton.
Mr. Stockton testified that, if the defense makes the concession that the shooting was intentional in a first degree murder case, then that rules out the lesser-included offenses of reckless homicide and criminally negligent homicide. When asked if conceding intent in the Petitioner's case would fall below the standard of care, Mr. Stockton responded,
Mr. Stockton further stated that, "[a]bsent other considerations," it would fall below the standard care to fail to introduce a report which said that the Petitioner's actions "were affected by mental disorders at the time including Cannabis, formaldehyde intoxication, and a depressive anxiety reaction related to the stressors in his life and his chronic drug use[.]"
Presumably in reference to the memorial service issue, Mr. Stockton testified that, in an effort to preserve the issue, a defense lawyer would "want to put on some proof in the record" at the motion for new trial hearing. A defense attorney would want to show what activities occurred and possibly impacted the jury, possibly through testimony from "Chief Turner or one of the sheriffs or . . . [t]he bailiffs[.]" Mr. Stockton said that, after the jury had rendered its sentencing decision, there would not be "any reason to avoid or to take steps to avoid tainting the jury[.]" He opined that there was "nothing to be gained" by waiving the motion for a mistrial, disagreeing that the issue was rendered moot by the jury's decision. According to Mr. Stockton, because the issue had been concluded when "the verdict came back life with parole[,] . . . [t]here wouldn't have been any reason not to go forward." Mr. Stockton further testified that the decision of whether to pursue the mistrial should have been discussed with the client in such a situation.
Mr. Stockton confirmed that the trial judge in this case allowed a defense attorney the opportunity to correct or amend the jury charge after the final charge had been given. If an instruction had been omitted, then that would be the time to bring it to the court's attention according to Mr. Stockton. Mr. Stockton said that the failure to so object would fall below the standard of reasonableness expected of defense lawyers because the issue would be considered waived on appeal.
On cross-examination, Mr. Stockton acknowledged that he was not aware of the contents of Dr. Walker's report, including any mention of negative or harmful details about the Petitioner. Mr. Stockton also agreed that he did not know whether it would have been "a good idea" for Dr. Walker to testify because he was "not familiar with the specific negatives" in this case. He explained, "There may be something that Walker may have told defense counsel that defense counsel could rely upon to say, [y]ou know, the risk is there. I think that's a decision that the attorney makes." If Dr. Walker had testified, the entire report "would have been fair game for the State" according to Mr. Stockton. Mr. Stockton opined that it could be a strategic decision not to call Dr. Walker as a witness "depending on what the circumstances were."
When asked if he had "conducted trials where perhaps the goal in the trial [was] not guilt or innocence but perhaps to mitigate sentencing[,]" Mr. Stockton replied, "Absolutely." The facts of this case were then reviewed with Mr. Stockton. Then, in response to the question, "what could a defense attorney have done differently to obtain a better result in this case[,]" Mr. Stockton said, "I think the result in this case [was] about as good as it could possibly be." Mr. Stockton opined that the only outstanding question in this case was "whether or not the jury was tainted to some degree by activities that were beyond the control of the State[,]" which "perhaps" could have led to a retrial. However, "as far as witnesses, forensics, this case was just horrible from a defense standpoint" according to Mr. Stockton. Mr. Stockton agreed that there had been no actual proof or evidence presented at the post-conviction hearing "that the jury was tainted in any way[,]" positing that such proof was "lost[.]"
Mr. Stockton testified that if the jury had been polled or the bailiffs called to testify, then the issue would have been preserved. He further agreed that the trial court clerk would have a record of who those individuals were at the Petitioner's trial.
Trial counsel was recalled and testified that he did not remember consulting with the Petitioner before waiving ruling on the motion for mistrial. He clarified that, if any taint had been found at a hearing on motion for mistrial, he believed that a new jury would have been impaneled only for the sentencing portion of the Petitioner's trial because "any taint . . . had nothing to do with the underlying conviction itself." According to trial counsel, a better result than life with the possibility of parole could not have been obtained and, therefore, rasing the issue on appeal "would have been a waste of time."
The Petitioner was the final witness to testify. He testified that trial counsel did ask for the accomplice instruction, but upon the Petitioner's review of the jury charge, it did not appear that such an instruction was ever given. Regarding the importance of such an instruction, the Petitioner said, "They needed to know that, . . . in order to give the right amount of credibility to the [co-defendant's] statement [b]ecause that was their only support of premeditation."
The Petitioner stated that trial counsel did not consult with him on the decision to withdraw the motion for mistrial, although he did recall being told by trial counsel that the issue was "moot[.]" According to the Petitioner, the memorial service occurred "a little bit before the coming back of the conviction, of the actual conviction." As the Petitioner understood it, "the jury had to pass by the memorial in order to" enter the courtroom. The Petitioner thought trial counsel "was going to put on Donna Turner to basically testify to the fact that the jury was exposed to this memorial that was taking place the weekend of [his] trial, or the week of [his] trial."
The Petitioner confirmed that trial counsel advised him not to testify at trial, and upon that advice, he did not do so. Regarding the decision not to call Dr. Walker as a witness, the Petitioner said trial counsel also did not consult with him on this decision, and he "really didn't understand what [trial counsel] was saying as far as not, why [the Petitioner] shouldn't put [Dr. Walker] on." The Petitioner continued, "[W]hat I remember [trial counsel] telling me was the fact that he wasn't putting [Dr. Walker] on was because he didn't want the jury to be exposed to [the Petitioner's] drugs, that [he] was selling drugs in Austin before coming up here." The Petitioner stated that he "really wasn't in agreement with that" defense strategy. However, he deferred to the advice from his attorney, and the defense did not call any witnesses "to show that at the time of the crime intoxication was a factor[.]" The Petitioner noted that trial counsel's defense strategy was to "fight for second-degree murder," "fight[ing] the fact that it was premeditated." The Petitioner opined that, instead, "the best strategy would have been the diminished capacity" using Dr. Walker's diagnosis, which "would have went well with the fact that [he] was a minor at the time of the event[.]"
On cross-examination, the Petitioner said that to support a defense of diminished capacity trial counsel should have called Dr. Walker or the Petitioner to testify at trial. The Petitioner said he would have told the jury "[t]hat it was not premeditated, . . . that [h]e was depressed at the time and [he] had mental issues at the time and the fact that [he] was intoxicated at the time, . . . with all them circumstances it would have been, . . . a mitigating factor to the jury to see that this was not a first-degree murder charge." The Petitioner opined "that all the evidence that was admitted at trial was not true."
When asked about the availability of other witnesses for his trial, the Petitioner said that "[n]o one was really able, willing to go out of their way to come and testify, even if they did have viable information." The Petitioner stated that trial counsel "kind of talked [him] down from a lot of witnesses" he wanted to testify at trial. The Petitioner further testified that post-conviction counsel said "he was having trouble finding a lot of the witnesses and that it would have been hard." The Petitioner wanted to call jury members to testify at the post-conviction hearing, but "[they] didn't have the names of the jurors and stuff like that[.]"
By order filed on July 23, 2012, the post-conviction court denied the Petitioner relief. In addressing the Petitioner's allegations, the post-conviction court ruled as follows:
This timely appeal followed.
On appeal, the Petitioner raises issues of ineffective assistance of counsel and argues that the trial court made several errors during his trial. Specifically, he submits that trial counsel was ineffective in the following ways: (1) failing to investigate and interview the State's witnesses, leaving him unprepared for cross-examination; (2) conceding that the Petitioner's actions were intentional, abandoning any viable defense; (3) failing to call an expert witness on his intoxication at the time of the shooting and presenting a defense of diminished capacity; (4) failing to preserve his request for a mistrial and offer proof regarding a memorial service for the victim which took place during the sentencing phase of the Petitioner's trial; and (5) failing to ask for individual voir dire of any particular juror. As for appellate counsel, the Petitioner argues that he received ineffective assistance by counsel's failure to pursue the memorial service issue and the omission of a jury instruction on accomplice testimony on appeal. Finally, he alleges trial court error regarding the trial court's failure to give the instruction on accomplice testimony and the failure to declare a mistrial based upon the memorial service.
Petitions for post-conviction relief are governed by the Post-Conviction Procedure Act. Tenn. Code Ann. §§ 40-30-101 to -122. To obtain relief, the petitioner must show that his conviction or sentence is void or voidable because of the abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. The petitioner must prove his factual allegations supporting the grounds for relief contained in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(2)(f);
The post-conviction court's findings of fact are conclusive on appeal unless the evidence in the record preponderates against them.
On appeal to this court, the Petitioner argues that his counsel, both at trial and on appeal, failed to provide the effective assistance guaranteed him by the United States and Tennessee constitutions. Initially, we note that, on appeal, several of the Petitioner's issues are presented slightly differently than they were addressed by the post-conviction court.
Ineffective assistance of counsel claims are regarded as mixed questions of law and fact.
Under the Sixth Amendment to the United States Constitution, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel's performance was deficient and (2) that the deficiency was prejudicial.
A petitioner will only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the right to such representation includes the right to "reasonably effective" assistance, that is, within the range of competence demanded of attorneys in criminal cases.
First, the Petitioner contends that trial counsel failed to "properly investigate the State's witnesses, and thereby being unprepared to properly conduct cross-examination." Specifically, he alleges that "trial counsel did not interview Ms. Tyler Thomas, Mr. Glen Mabry, Issac, Evans, Henry King, or Shamus Pringle, all witnesses called by the [S]tate" and that "[t]rial counsel also could not recall talking to TBI Agent Harmon, another [S]tate's witness[,]" which left trial counsel unprepared for cross-examination. The Petitioner's claim is really one of inadequate investigation and preparation for trial. The State responds that the Petitioner has failed to prove his factual allegations by clear and convincing evidence and that the Petitioner has failed "to provide any examples of what questions should or should not have been asked and/or what `proof' would have been discovered by further investigation."
The record supports the findings of the post-conviction court in this regard. Trial counsel testified that he reviewed the public defender's file upon being retained. He also hired an investigator to assist in preparation of the Petitioner's defense, including interviewing witnesses. Trial counsel stated that he had sufficient time to prepare for trial, meeting with the Petitioner regularly and reviewing discovery with him. Trial counsel testified that, if he did not interview the witnesses personally, then he would have reviewed the report prepared by the investigator. Contrary to the Petitioner's allegation in his brief, trial counsel testified that he did speak with Agent Harmon "many times[,]" although he could not recall the specifics of those conversations or whether they discussed the Petitioner's case, due to the passage of time. Moreover, trial counsel stated that he was present for the co-defendant's trial, took notes, and obtained transcripts from those proceedings. He also was in frequent contact with the co-defendant's lawyer in this case.
Trial counsel believed that he was "very familiar" with what the testimony of the State's witnesses would be. The State correctly points out that the Petitioner has offered no proof to counter trial counsel's testimony. Moreover, Mr. Stockton, the Petitioner's own expert, stated that a defense attorney has a duty to investigate and interview potential witnesses, which does not necessarily require that a defense attorney talk to every witness but simply have knowledge of what each witness will say. As aptly alleged by the State, the Petitioner does not provide this court with any evidence of what further investigation on the part of trial counsel would have revealed or how it would have led to more effective cross-examination of the State's witnesses. The Petitioner has failed to establish that trial counsel's failure to investigate and interview witnesses was deficient performance or resulted in prejudice to him.
Next, the Petitioner contends that the trial counsel denied him "a meaningful adversarial test by conceding that the killing was intentional." The Petitioner points to Mr. Stockton's testimony that, by conceding intent, trial counsel "ruled out any form of accident" and, thus, excluded from the jury's consideration the lesser-included offenses of reckless homicide and criminally negligent homicide. The State responds that, based on the overwhelming evidence of the Petitioner's guilt, trial counsel made "an informed and strategic decision to try and gain some credibility with the jury by admitting the intentional nature of the act while arguing that the [P]etitioner acted out of fear and not premeditation."
The Petitioner also argues that trial counsel failed "to present the testimony of Dr. Walker, whose report would mitigate the specific intent required for the crime of premeditated first degree murder." The Petitioner notes that trial counsel had Dr. Walker's report and that calling Dr. Walker as a witness would have helped him to establish a diminished capacity defense. Without Dr. Walker, no "mitigating evidence" to "negate the specific intent required in a case of premeditated murder" was presented to the jury according to the Petitioner. The State notes that the Petitioner failed to call Dr. Walker at the post-conviction hearing and that the Petitioner therefore has failed to meet his burden.
The Petitioner's argument is really that trial counsel should have presented a defense of diminished capacity, rather than simply challenging the evidence of premeditation, and he called Dr. Walker in support of that diminished capacity defense. Again, the record supports the post-conviction court's findings that the Petitioner received the effective assistance of counsel in this regard.
Trial counsel stated that the "main defense" was to avoid a first degree murder conviction by challenging the evidence of premeditation, i.e.,
Trial counsel acknowledged that he did not "put any affirmative proof on[,]" attempting to establish the defense through cross-examination of the State's witnesses. He agreed, by conceding the intentional nature of the act, some lesser-included offenses would have been excluded from consideration but stated that such was necessary given the "overwhelming evidence" of guilt. Trial counsel also testified that he discussed trial strategy with the Petitioner, which "was to argue that this was something other than first-degree murder" and avoid a life sentence. Although the Petitioner did not necessarily like this strategy according to trial counsel, he was nonetheless "on board with it[.]"
Trial counsel confirmed that he understood the defense of diminished capacity. He also had received and reviewed Dr. Walker's report and spoke with Dr. Walker "on a number of occasions." Trial counsel testified that, based upon his conversations with Dr. Walker, he believed that Dr. Walker would have testified that the Petitioner, despite being intoxicated, could still have formed the requisite intent for premeditated murder, and thus, he did not consider Dr. Walker to be a very helpful witness to the defense. Moreover, trial counsel also thought there were some "negative things" in Dr. Walker's report that would have been admissible at trial had Dr. Walker been called to testify.
As noted by the post-conviction court, the Petitioner testified that he did not know of any other witnesses that trial counsel should have called in support of a diminished capacity defense, other than Dr. Walker or himself, and following the advice of counsel, the Petitioner chose not to testify at trial. The post-conviction court found trial counsel's testimony credible that the defense strategy was made "in conjunction" with the Petitioner. After hearing and observing the Petitioner testify at the post-conviction hearing, the post-conviction court also found it "a wise choice" for the Petitioner not to have testified at trial.
Additionally, as noted by the State, the Petitioner did not present Dr. Walker at the hearing. This court has long held that "[w]hen a petitioner contends that trial counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses should be presented by the petitioner at the evidentiary hearing."
Moreover, the Petitioner's own expert could not testify whether it would have been "a good idea" for Dr. Walker to testify because he was "not familiar with the specific negatives" in this case. Mr. Stockton explained, "There may be something that Walker may have told defense counsel that defense counsel could rely upon to say, [y]ou know, the risk is there. I think that's a decision that the attorney makes." Mr. Stockton further opined that it could be a strategic decision not to call Dr. Walker as a witness "depending on what the circumstances were." Finally, Mr. Stockton noted that it was a viable trial strategy "where perhaps the goal in the trial [was] not guilt or innocence but perhaps to mitigate sentencing" and that he had pursued just such a defense. After reviewing the facts of this case, Mr. Stockton said, "I think the result in this case [was] about as good as it could possibly be." We agree with the post-conviction court that the Petitioner has failed to show trial counsel was deficient in this regard or that any deficient performance was prejudicial.
The Petitioner submits that trial counsel was ineffective for failing "to preserve his request for a mistrial regarding a memorial service being held at the Tipton County Justice Complex by waiving the court's ruling." The Petitioner again notes Mr. Stockton's testimony that the "proper procedures to follow" would have been "to put proof on the record" by calling witnesses and that "there would be no good reason not to take proof from the jury itself." The Petitioner further details that trial counsel did not consult with him before withdrawing the request for a mistrial and that, by waiving the issue, he was prevented from raising the issue on appeal. The Petitioner also argues that appellate counsel provided ineffective assistance by "not raising the issue of the memorial service on direct appeal[,]" denying him appellate review of the issue. The State responds that the Petitioner has failed to meet his burden because "any pursuit of this claim would have been fruitless due to the fact that the jury returned the less restrictive sentence possible."
The State submits that "it is undisputed that such service did take place outside of the courthouse while the jury was deliberating during the penalty phase." This is a bit of an overstatement, given that the Petitioner testified that the memorial service occurred "a little bit before the coming back of the conviction, of the actual conviction[,]" and that trial counsel's objection was somewhat ambiguous ("I think some of it may have even extended throughout the week."). However, trial counsel clarified that, based upon his recollection, the memorial service took place during the sentencing phase of the Petitioner's trial. He also could not "recall what other events were going on throughout the week." Also, when trial counsel moved to withdraw the motion for mistrial, he stated to the trial court that the motion "was based on things that took place today." The Petitioner has offered nothing to counter this conclusion other than his own self-serving testimony that the memorial service took place before his conviction was returned. Here, the post-conviction court concluded that the memorial service occurred during the sentencing phase of the Petitioner's trial, and the record does not preponderate against that finding.
Trial counsel testified that, once a sentence of life with the possibility of parole was imposed,
We agree with Mr. Stockton's testimony that the Petitioner did not put on any actual proof at the post-conviction hearing "that the jury was tainted in any way[,]" although we disagree that such proof was "lost[.]" We have no reason to believe, and have not been presented with any proof, that the trial court clerk would not have a record of who the bailiffs and jurors were in the Petitioner's case. The Petitioner's allegation that finding these witnesses was proving to be "hard" does not negate his burden. Again, other than his own self-serving testimony, the Petitioner has failed to present any proof that a single juror witnessed, or was influenced by, the memorial service taking place outside the courthouse. In fact, trial counsel testified that he had no actual knowledge of such. As such, even if trial counsel's performance was deficient, the Petitioner cannot show that he was prejudiced by trial counsel's failure to pursue a mistrial based upon the memorial service.
Trial counsel testified that he did not pursue the issue on appeal, concluding that it "would have been a waste of time." He testified, that if any taint had been found, he believed that a new jury would have been impaneled for the sentencing portion only of the Petitioner's trial because "any taint . . . had not thing do with the underlying conviction itself." We agree with trial counsel that, when reversible error occurs during the sentencing phase of a criminal proceeding, reversing the judgment as to the sentence only is generally appropriate.
The principles for determining the effectiveness of counsel at trial and on appeal are the same in a post-conviction proceeding.
The Petitioner asserts that trial counsel failed "to request individual voir dire of any particular juror, leaving him unable to assess the actual damage done by pretrial publicity." The Petitioner submits, trial counsel's "[a]sking only general questions did not get to the heart of the matter—the ultimate issue of whether the jury veniremen were aware of the [Petitioner's] confession at the transfer hearing that had been reported by the only local newspaper." The State responds that "it is abundantly clear from the record that [trial counsel] requested individual voir dire before trial and during voir dire" and that each of trial counsel's requests were denied.
We agree with the State that the record is clear that trial counsel requested individual voir dire in the Petitioner's case and that his multiple requests were denied.
The Petitioner argues that appellate counsel provided ineffective assistance by failing "to pursue the [t]rial [c]ourt's failure to give the jury instruction on accomplice testimony[.]" In so arguing, he faults trial counsel for not objecting to the omission of the instruction when given such an opportunity by the trial court to correct or amend the charge, noting that Mr. Stockton testified that this would have been the appropriate time to do so in order to preserve a proper objection. Regardless, he submits that trial counsel should have raised the omission of the instruction at the motion for new trial hearing or appellate counsel should have presented the issue on appeal.
In a related issue, the Petitioner submits that the post-conviction court erred "by failing to delay ruling on the petition until after the jury charge had been prepared[,]" and thereby denying him due process. The Petitioner notes that "[a]bsent a transcription of the jury charge, there is no way to put on proof that the trial court failed to deliver a full and complete charge of the law," especially as it relates to the accomplice instruction. The State notes the late-timing of the Petitioner's request in the post-conviction court and asks us to hold the failure to include the jury instructions in the appellate record against the Petitioner. We decline to do so. The indigent Petitioner requested the instructions be transcribed by the post-conviction court; we will require no more of him. The post-conviction court should have granted that request, as that was the easiest way to address this claim, allowing for a determination of whether the accomplice instruction was actually given following trial counsel's request for such.
Nonetheless, we agree with the State that were we to assume that the accomplice instruction was not given in the final charge to the jury, the Petitioner still cannot demonstrate ineffective assistance of counsel for failing to raise the issue at the motion for new trial or on appeal. This court has held that a trial court's failure to give an accomplice instruction was harmless when there was sufficient corroboration of the accomplice's testimony.
As a separate ground for relief, the Petitioner cites to two errors of the trial court. First, he contends that the trial court's failure to give the jury instruction on accomplice testimony violated his constitutional right to a jury trial. In so alleging, the Petitioner notes that "it was the testimony of the co-defendant that was relied upon by the [S]tate to prove the element of premeditation." As a second error of the trial court, the Petitioner alleges that, "even in the face of trial counsel's waiver," the trial court "failed to declare a mistrial due to the service being conducted at the courthouse in memory of Calvin Jenks, the victim in this case[,]" thereby infringing upon his rights to due process and a fair and impartial jury.
The Petitioner is couching these trial court errors in terms of violation of constitutional error. The procedures available to correct constitutional errors in the conviction process do not stop with direct appeal but can also be included in a timely filed post-conviction petition.
Concerning the Petitioner's claim that he is entitled to post-conviction relief because the trial court failed to issue an instruction on accomplice testimony, "[i]t is well-settled that a defendant has a constitutional right to a complete and correct charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions."
However, this court has held that neither the plain error doctrine, the rule which permits constitutional issues to be raised at any stage of the proceedings, nor the rules of procedure "mandate that a petitioner has an absolute right to litigate a ground in a post-conviction proceeding when the record clearly reflects that the ground has been waived."
Moreover, as noted above, the omission of this instruction is subject to harmless error, and the Petitioner cannot show that he is entitled to relief because there was sufficient corroboration of the accomplice's testimony. Regarding the argument that the Petitioner's rights to due process and a fair and impartial jury were denied when the trial court failed to sua sponte declare a mistrial based upon the memorial service that took place at the courthouse, we reiterate that the Petitioner has not provided this court with any proof that his jury was tainted or, if so, what remedy would be available to him when he received the least possible sentence. He is not entitled to relief on the basis of trial court error.
The Petitioner has failed to prove by his allegations by clear and convincing evidence. We, therefore, affirm the judgment of the post-conviction court denying relief.