         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                Assigned on Briefs May 8, 2007

                   STATE OF TENNESSEE v. MAURICE EMERY

                        Appeal from the Circuit Court for Gibson County
                            No. H6980     Clayburn Peeples, Judge



                 No. W2006-02300-CCA-R3-CD - Filed September 13, 2007


The defendant, Maurice Emery, appeals from his Gibson County Circuit Court convictions of
possession with intent to sell one-half gram or more of cocaine, a Class B felony, possession of
marijuana, a Class A misdemeanor, and possession of drug paraphernalia, a Class A misdemeanor.
See T.C.A. §§ 39-17-417, -418, -425. The defendant, a Range II multiple offender, is serving an
effective twelve-year sentence in the Department of Correction for these convictions. He claims (1)
that the trial court erred in denying his motion to sever his case from that of his co-defendant, (2) that
his arrest was not supported by probable cause, and (3) that he was denied the effective assistance
of counsel. We hold that the defendant is not entitled to relief and affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

Michael A. Carter, Milan, Tennessee, for the appellant, Maurice Emery.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

         This is the defendant’s second direct appeal. In the first appeal, this court held that an
untimely motion for new trial prevented us from reviewing any of the issues he raised other than his
challenge to sufficiency of the evidence, which the court held was sufficient. State v. Thelisa Emery
and Maurice Emery, Nos. W2002-02698-CCA-R3-CD, W2003-03355-CCA-R3-CD, Gibson County
(Tenn. Crim. App. Mar. 15, 2004), app. denied (Tenn. Oct. 4, 2004). The defendant filed a petition
for post-conviction relief, seeking a delayed appeal and traditional post-conviction relief based on
ineffective assistance of trial counsel. The trial court granted him a delayed appeal and authorized
the filing of a motion for new trial, conducted a hearing, denied his motion for new trial, and held
his post-conviction claims in abeyance pending the outcome of his appeal of the denial of the motion
for new trial. See Wallace v. State, 121 S.W.3d 652 (Tenn. 2003) (holding that a defendant who
received ineffective assistance of counsel because trial counsel failed to file a timely motion for new
trial, thereby waiving all appellate claims other than sufficiency of the evidence, was entitled to a
motion for new trial and delayed direct appeal pursuant to the Post-Conviction Procedure Act, see
T.C.A. § 40-30-113).

        Brandon Hunt testified at the hearing that had trial counsel called him as a trial witness, he
would have testified that he did not buy cocaine from the defendant on the day of the defendant’s
arrest. Hunt said he was not in town on the date of the defendant’s arrest. He said that if Clifford
Woodruff testified at trial that Woodruff witnessed Hunt buy cocaine from the defendant, he would
have denied this.

        Thelisa Emery testified that she was the defendant’s sister and was tried with the defendant.
She said that if she had already been tried, she would have testified for the defendant that he did not
live with her and had not been staying with her. She said the clothing found in the back room of her
home belonged to her cousin, Antonio Perry, not the defendant. She said the defendant had been at
her house “[n]ot even a couple of hours” before his arrest.

        The defendant testified that he understood that the trial court was holding his post-conviction
claims in abeyance. He said that the issues upon which he sought relief in his motion for new trial
were the same as those upon which he sought post-conviction relief. He proceeded to testify about
his complaints about trial counsel’s performance. He said that he told trial counsel about Brandon
Hunt but that he was unaware whether counsel ever interviewed Hunt. He said he told counsel he
did not live at the house where he was arrested. He said he told counsel to investigate the address
he had given the police when he was arrested a week before the arrest in this case in order to
corroborate his claim that he did not live at the house, but he claimed that counsel never did so. He
said that he told counsel that he did not have clothing or shotgun shells in the house, that he asked
counsel to object to the state’s proof to the contrary, and that counsel did not make the objection.
He said that trial counsel made an oral motion on the day of the trial to sever the defendant’s case
from Thelisa Emery’s case, that counsel did not file a written motion, and that the motion was
denied. He said that he was not identified in the search warrant which precipitated his arrest and that
“Marcus James Emery” who was listed on the warrant was his cousin, who lived at the house where
the defendant was arrested. The defendant denied that Cassandra Pettigrew had said the defendant
lived at the house.

        Danny Lewis testified that he was employed by the City of Humboldt, that he was assigned
to the Drug Task Force, and that he was involved in executing the search warrant at the house where
the defendant was arrested. He said he interviewed Cassandra Pettigrew before obtaining the
warrant, who told him that she had been the defendant’s girlfriend for five or six months and that
she visited the defendant at the house in question. He said that large men’s clothing was found in
the back of the house and that the drugs recovered were in the same room as the clothing. He said
the drugs were stuffed into the back of a wall ornament. He said that there were also some shotgun


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shells recovered and that the defendant made a statement that he had been hunting. He said the
information upon which he determined that the defendant was living at the house included the
clothing and shotgun shells in the house, the statements of Cassandra Pettigrew and Clifford
Woodruff, and his own observations of the defendant at the house. He acknowledged that Marcus
James Emery and the defendant, Maurice Emery, were different people, and he said he knew who
the defendant was.

        Trial counsel testified that counsel for the co-defendant filed a written motion to sever the
day before trial in which he joined on the day of trial. He said he was prepared at the argument on
the motion and that he would not have argued it differently had he filed a written motion. He said
the defendant admitted that he had clothing in the house because he had changed clothes there after
hunting. Counsel said he cross-examined Detective Lewis about whether the defendant actually
lived there. He said he was aware of Cassandra Pettigrew’s statement that the defendant lived at the
house and that he did not recall her telling him otherwise. He said it would not have been a good
idea to use her as a witness if her testimony was opposite her statement. He said there was another
witness, whom he thought might have been Brandon Hunt and whom he was unable to locate. He
said the defendant never gave him an address for the witness. Counsel acknowledged that his motion
for new trial had been untimely.

                                        Denial of Severance

        The defendant contends he was entitled to a severance to promote a fair determination of his
guilt or innocence. The state responds that the defendant has waived appellate review of this issue
by failing to include the trial record in the record on appeal, and in any event, that the defendant has
not shown that the trial court abused its discretion in denying him a severance.

         The Rules of Criminal Procedure provided at the time of the defendant’s trial that a defendant
was entitled to a severance of defendants before trial if severance is required “to protect a
defendant’s right to a speedy trial or it is deemed appropriate to promote a fair determination of the
guilt or innocence of one or more defendants[.]” Tenn. R. Crim. P. 14(c)(2)(I) (2001). During trial,
the court may order a severance if, “with consent of the defendant to be severed, it is deemed
necessary to achieve a fair determination of the guilt of innocence of one or more of the defendants.”
Tenn. R. Crim. P. 14(c)(2)(ii) (2001). The decision whether to grant a severance lies within the
sound discretion of the trial court. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993);
State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981). Thus, we review this issue for abuse of
discretion. See State v. Shirley, 6 S.W.3d 243, 246-47 (Tenn. 1999) (adopting abuse of discretion
review for cases involving severance of offenses).

       “A motion to consolidate or sever offenses is typically a pre-trial motion, see Tenn. R. Crim.
P. 12(b)(5), and consequently, evidence and arguments tending to establish or negate the propriety
of consolidation must be presented to the trial court in the hearing on the motion.” State v. Spicer,
12 S.W.3d 438, 445 (Tenn. 2000) (footnote omitted). Appellate review for abuse of the trial court’s



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discretion is properly of the evidence and arguments presented at the hearing and the trial court’s
findings of fact and conclusions of law. See id.

        Initially, the state contends that the defendant has waived review of this issue by failing to
include the trial record in the record on appeal. The appealing party has the obligation of preparing
a record that includes transcripts of evidence and proceedings “necessary to provide a fair, accurate,
and complete account of what transpired” with respect to the issues on appeal. T.R.A.P. 24(b); State
v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). In the absence of an appropriate record, we must
presume that the trial court’s determinations are correct. See, e.g., State v. Meeks, 779 S.W.2d 394,
397 (Tenn. Crim. App. 1988). That said, this court may take notice of record of the prior
proceedings in the same case. Caldwell v. State, 917 S.W.2d 662, 666 (Tenn. 1996); Delbridge v.
State, 742 S.W.2d 266, 267 (Tenn. 1987).

        We have taken notice of that record and reviewed it relative to the defendant’s severance
issue. However, that record does not contain a transcript of the proceedings on the motion to sever.
Before the parties began presenting proof, the trial judge noted on the record, “Each defendant has
requested that his or her case be severed and tried separately and I have denied that motion.” No
other information about the motion to sever appears. Given the absence of an adequate record with
respect to the defendant’s pretrial effort to obtain a severance, we must presume that the trial court’s
determinations were correct. Meeks, 779 S.W.2d at 397; Thelisa Emery and Maurice Emery, slip
op. (presuming on basis of inadequate record of hearing on pretrial motion to sever that trial court
correctly denied severance motion of co-defendant Thelisa Emery).

       The record of the prior appeal does contain a transcript of the trial proceedings, and we have
reviewed it to determine whether the trial court should have ordered a severance during the trial, as
contemplated by Rule of Criminal Procedure 14. We note that, in pertinent part, subsection (a) of
Rule 14 provided at the time of the defendant’s trial

               A defendant’s motion for severance of offenses or defendants must
               be made before trial, except that a motion for severance may be made
               before or at the close of all evidence if based upon a ground not
               previously known. Severance is waived if the motion is not made at
               the appropriate time. . . .

Tenn. R. Crim. P. 14(a) (2001). The trial record reflects that the defendant did not make a motion
for severance during the trial. The defendant waived any complaint about the trial court not granting
a mid-trial severance by failing to make a severance motion during or at the close of the evidence
at trial. He is therefore not entitled to relief.

                                Legality of the Defendant’s Arrest

       The defendant claims that his arrest was not supported by probable cause because he had no
drugs or drug paraphernalia on his person and was not engaged in criminal activity. The state argues


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that the defendant has waived this issue because the record does not reflect that the defendant raised
it before the trial and because the record before the court is inadequate for review of the issue.
Alternatively, the state argues that the drugs and paraphernalia found in the home that were the
subject of a search warrant, the defendant’s clothes in the bedroom where drugs were recovered, and
evidence that the defendant stayed at the house provided probable cause for the defendant’s arrest.

        As we noted in the previous section, this court has exercised its authority to take notice of
the record of the defendant’s earlier appeal. In so doing, we have found no indication that the
defendant made a pretrial motion to suppress evidence obtained from an allegedly illegal arrest. A
motion to suppress must be made before a trial. Tenn. R. Crim. P. 12(b)(2). Otherwise, any defense
or objection is waived. Tenn. R. Crim. P. 12(f); State v. Clark, 67 S.W.3d 73, 76 (Tenn. Crim. App.
2001). This issue is not properly before the court.

                                 Ineffective Assistance of Counsel

        The defendant contends he did not receive the effective assistance of counsel in the earlier
proceedings because counsel failed to interview Brandon Hunt and call Hunt as a trial witness and
failed to file a written motion to sever and to preserve the record on the severance issue. The state
argues that the defendant’s claims are not properly before the court because they are premature given
the trial court’s ruling that the post-conviction claims were held in abeyance pending appellate
disposition of the trial court’s denial of the motion for new trial. The state argues, as well, that the
defendant has not shown that trial counsel was ineffective.

         First, we note that the defendant raised ineffective assistance of counsel as a claim in the
motion for new trial as well as in his attempt to obtain post-conviction relief. The trial court denied
the motion for new trial and held the post-conviction claims in abeyance pending the outcome of the
appeal of the motion for new trial. In the context of ruling on the motion for new trial, the trial court
said, “I know this is not a Post Conviction hearing, but I do think that [trial counsel’s] explanations
were at least sufficient to survive a challenge as you’re making now that your client was denied a fair
trial due to ineffectiveness of counsel.” Defense counsel requested that the court specify in its
written order that the post-conviction petition was still pending. Counsel also stated, “This direct
appeal will take a year and then we’ll come back and argue the Post Conviction at that point.”

        Historically, this court has been hesitant to address claims of ineffective assistance of counsel
raised on direct appeal, as opposed to in post-conviction proceedings. See, e.g., Thompson v. State,
958 S.W.2d 156 (Tenn. Crim. App. 1997); State v. Anderson, 835 S.W.2d 600, 606-07 (Tenn. Crim.
App. 1992). Nevertheless, there is no prohibition against litigation of ineffective assistance of
counsel claims in conviction, as opposed to collateral, proceedings. See, e.g., State v. Burns, 6
S.W.3d 453, 461-63 (Tenn. 1999) (granting relief in direct appeal on ineffective assistance of
counsel claim).

      In the present case, the record reflects that the trial court did not make any findings of fact
on the ineffective assistance of counsel claim and indicates that the court and the parties


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contemplated that the court would rule on the issue after the direct appeal. Given this procedural
posture, our consideration of the issue is premature. We decline to review it.

        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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