        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 July 14, 2015 Session

         GREGORY GENE SPICELAND v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Stewart County
                    No. 4-2011-CR-09     Robert E. Burch, Judge


                No. M2014-01833-CCA-R3-PC – Filed October 9, 2015


The petitioner, Gregory Gene Spiceland, appeals the denial of post-conviction relief from
his 2011 Stewart County Circuit Court jury convictions of initiating the process to
manufacture methamphetamine and promotion of methamphetamine manufacture,
claiming that he was denied the effective assistance of counsel. Discerning no error, we
affirm.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Cleveland C. Turner, Clarksville, Tennessee, for the appellant, Gregory Gene Spiceland.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Sarah
Wojnarowski, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Stewart County Circuit Court jury convicted the petitioner of one count
each of initiating the process to manufacture methamphetamine and promotion of
methamphetamine manufacture. The trial court imposed a total effective sentence of
eight years in split confinement, ordering the petitioner to serve one year in incarceration
and the remainder of the sentence on probation. On appeal, this court determined that the
trial court abused its discretion “by ordering [the petitioner] to serve a full year of his
sentence by incarceration” and modified the petitioner’s sentence to service of 30 days in
confinement followed by probation for the balance of his sentence. See State v. Gregory
G. Spiceland, No. M2011-01196-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App.,
Nashville, Feb. 15, 2013).
           In Gregory G. Spiceland, this court summarized the facts of the case as
follows:

                   Drug task force agent Scott Templon testified that on
           April 10, 2008, he conducted a controlled buy through a
           confidential informant (“CI”). Agent Templon testified that
           the CI was compensated $100 for each controlled buy and
           that he had been working as a CI for approximately five
           years. The CI was provided with a recording device and
           $40.00 to purchase one-half gram of methamphetamine from
           [the petitioner]. Agent Templon searched the CI’s person and
           vehicle for weapons, cash or contraband and found none.
           Agent Templon followed the CI to the area of the 49 Market
           in Stewart County. Agent Templon observed the CI pull into
           [the petitioner’s] driveway off Long Creek Road. Agent
           Templon later met with the CI, who stated that he had
           purchased methamphetamine from Gary Osborne. The
           substance, which later tested to be 0.2 grams of
           methamphetamine, was packaged in foil. Agent Templon
           testified that the audio recording of the transaction, which
           was played for the jury, indicated that Mr. Osborne brought
           [the petitioner] “several baggies containing powder in them or
           residue [which] was at the final stage of methamphetamine
           production.”

                  Agent Templon testified that the CI had been to [the
           petitioner’s] residence on two prior occasions, but those did
           not result in purchases and that the CI had not been provided
           any money with which to purchase drugs on those occasions.
           On cross-examination, Agent Templon acknowledged that the
           substance could have come “straight from Osborne without
           [the petitioner’s] even having any contact” with it. He also
           acknowledged that [the petitioner] had never been previously
           convicted of any drug offenses. He testified that [the
           petitioner] was targeted because law enforcement “had
           received numerous reports from citizens.” He testified that he
           and Agent Crawley “received numerous complaints from
           citizens of large amounts of traffic in and out of [the
           petitioner’s] residence, odors coming from the farm area,
           chemical odors.”
                                        -2-
        The CI testified that after he arrived at [the
petitioner’s] residence, they talked outside [the petitioner’s]
house about cars and car parts while they waited for Gary
Osborne to arrive. After Osborne arrived, they went inside
the house, and [the petitioner] and Osborne were cooking
methamphetamine in the microwave. The CI testified that
[the petitioner] and Osborne poured a liquid onto plates and
placed them in the microwave and then scraped a powdery
residue from the plates onto foil or cellophane. The CI went
outside to get rolling papers. He testified that he wanted to go
outside because he was afraid of a possible explosion. He
rolled a cigarette with the rolling papers “so it looked like a
joint.” [The petitioner] came outside “to get [the CI] to come
downstairs to smoke with them.” The CI refused and started
his car as if he “was getting ready to go ahead and leave.” He
testified that [the petitioner] and Osborne came outside again,
and Osborne sold the CI the methamphetamine while [the
petitioner] stood “just on the other side [of the CI’s vehicle]
watching.” The CI testified that he had been to [the
petitioner’s] residence on two or three prior occasions and
that he had not purchased drugs on those occasions. He
testified “[the petitioner] always made promises that never
came true.”

       Agent Brett Trotter, a forensic scientist with the
Tennessee Bureau of Investigation, testified that he analyzed
the substance obtained from the CI, and concluded that it was
0.2 grams of a substance containing methamphetamine.

        [The petitioner] testified that the CI “just showed up at
the farm one day” while [the petitioner] was “working on
something.” He testified that the CI “acted sort of odd.” He
testified that the CI was “just talking about his buddies [and]
drugs. . . .” He testified that on the date of the incident,
“Osborne came in with a white substance already in some
bagges [sic] – white powdery substance” and that Osborne
told [the petitioner] to “go along with me on this.” [The
petitioner] believed that Osborne was making something that
would give the CI diarrhea. [The petitioner] denied knowing
that the substance was methamphetamine. [The petitioner]
                              -3-
               testified that he suspected that the CI’s vehicle was stolen,
               and he asked the CI to “come in and smoke something” in
               order to “get him away from his truck” so [the petitioner]
               could get the serial numbers of the CI’s truck. [The
               petitioner] denied any involvement in the production or sale
               of methamphetamine.

Id., slip op. at 2-3.

             On February 13, 2014, the petitioner filed a timely petition for post-
conviction relief. Following the amendment of the petition, the post-conviction court
held an evidentiary hearing on June 30, 2014.

               The petitioner testified that, during voir dire, he told trial counsel “several”
times that he had “fathered a baby by” the daughter of one of the potential jurors and that
the potential juror “highly . . . disliked” him. The petitioner stated that he also told trial
counsel that another potential juror “had had a big run in” with the petitioner’s sister-in-
law. The petitioner testified that trial counsel used all of his peremptory challenges and
that counsel told him that he “already had the couple down that he wanted to pull off
right then and that’s what [counsel] went with.” Both potential jurors were seated on the
jury, and the man with whom the petitioner had concerns became the jury foreperson.

               The petitioner also expressed concern to trial counsel that one of the jurors
had spoken with the prosecutor during a recess in the trial. Trial counsel told the
petitioner that “he didn’t think it would have any bearing on the case” and did nothing
about it.

                The petitioner testified that trial counsel had discussed an entrapment
defense with him and that he was “taking care of” filing the appropriate motions. When
the jury was retiring to deliberate, trial counsel “said something to Judge Burch about
something on entrapment and [the judge] said write something out.” According to the
petitioner, trial counsel did “wr[i]te something out,” but the trial court instructed him that
it “was too late to act at that time” and that “[i]t should have been turned in earlier.”

              The petitioner discussed the importance of calling Billy Jackson, a logger,
as a witness at his trial. The petitioner testified that, if Mr. Jackson had testified at trial,
he would have stated that the confidential informant had smoked marijuana while
standing in the petitioner’s driveway on the date of the controlled buy. The petitioner
provided trial counsel with $35 to cover the cost of issuing a subpoena to Mr. Jackson,
but Mr. Jackson did not appear at the trial to testify.

                                              -4-
               With respect to potential expert witness testimony, the petitioner stated that
he offered to contact “somebody that had been prosecuted for manufacturing
[methamphetamine] to come in and show” that the activities in the petitioner’s residence
“had nothing to do with manufacturing.” The petitioner also accused trial counsel of
being an alcoholic and claimed that counsel did not discuss the fact that the presentment
issued in his case was signed by only 11 grand jurors.

             On cross-examination, the petitioner admitted that he had met with trial
counsel several times prior to trial and that trial counsel had discussed trial strategy with
him.

               The State admitted into evidence the deposition testimony, taken on June
20, 2014, of trial counsel, who had moved out of state. Trial counsel testified that the
petitioner had hired him in the underlying case and that he had discussed trial strategy
with the petitioner “[m]any times.” The petitioner chose to testify at trial and denied all
allegations against him. Trial counsel reviewed all of the discovery materials with the
petitioner, which materials included audio recordings. Trial counsel stated that he
communicated all plea offers to the petitioner but that the petitioner rejected all offers.

                With respect to the list of potential jurors, trial counsel received the list
prior to trial and consulted with the petitioner about the names on the list. Trial counsel
testified that he “incorporated [the petitioner’s] input” during voir dire. Trial counsel did
not recall with any specificity a juror who the petitioner identified as the grandparent of
his child. Trial counsel recalled that a male juror had inquired about the prosecutor’s
pregnancy; that the prosecutor had notified the trial court and trial counsel; that the trial
court “made a reasonable inquiry”; and that the trial court found no basis to disqualify the
juror or declare a mistrial. According to trial counsel, the petitioner made no objection to
this decision or expressed any concern until after the verdict was announced.

              Trial counsel testified that he considered the possibility of multiplicity in
the drug charges the petitioner was facing but determined that there was no “effective
legal basis” to assert a defense of multiplicity. Trial counsel also believed that a jury
charge on entrapment was not warranted by the facts and circumstances of the
petitioner’s case. Trial counsel recalled that he subpoenaed one witness who failed to
appear. Trial counsel asked the petitioner if he wished to bring the matter to the court’s
attention and “have the person brought in,” but the petitioner declined. When he filed the
motion for new trial, trial counsel included an affidavit stating the facts to which he
believed the witness would have testified. Trial counsel contacted the petitioner’s co-
defendant in the underlying case in an attempt to interview him, but the co-defendant’s
attorney denied all access.

                                            -5-
              With respect to the petitioner’s interest in speaking with “a multiple-
convicted meth offender,” trial counsel recalled that he informed the petitioner that
calling such a person as a witness “would have likely only damaged the [petitioner’s]
cause, as he could easily be portrayed as consorting personally with a person who was
manufacturing     methamphetamine and            had experience       in manufacturing
methamphetamine.” To the best of his recollection, trial counsel stated that, after
expressing his concerns to the petitioner, the petitioner and trial counsel “agreed that it
would be best not to call that person as a witness.”

                Trial counsel denied telling the petitioner that his case would be dismissed,
stating that it was his practice to simply advise each client of the minimum and maximum
penalties and potential courses of action. Trial counsel also denied ever appearing in
court on the petitioner’s behalf while under the influence of alcohol.

               When trial counsel opened his own law practice in July 2010, he sent letters
to all of his clients, notifying them of his change of address. Trial counsel testified that,
although his street address changed, his telephone number and electronic mail address
remained the same after the move. Trial counsel stated that the petitioner had one
scheduled court appearance at which counsel knew he would be unavailable, so trial
counsel arranged for another attorney to attend the pretrial hearing and informed her
about the case.

               The post-conviction court made extensive findings of fact and conclusions
of law in its 49-page, July 22, 2014 memorandum opinion denying post-conviction relief,
addressing each of the petitioner’s 34 allegations of ineffective assistance of counsel.
The post-conviction court found no merit to any of the petitioner’s claims and found that
the petitioner had failed to prove his allegations by clear and convincing evidence.

              On appeal, the petitioner reiterates his claims of ineffective assistance of
counsel, reducing the number of allegations from 34 to 20. The State counters that the
post-conviction court properly denied relief.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
                                            -6-
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

              A claim of ineffective assistance of counsel, specifically, is a mixed
question of law and fact. See Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015); Lane
v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001. When reviewing the application of law to the post-conviction court’s
factual findings, our review is de novo, and the post-conviction court’s conclusions of
law are given no presumption of correctness. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show 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
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. Should the petitioner fail to establish either deficient performance or prejudice, he is
not entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
Indeed, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick, 454
S.W.3d at 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he petitioner
bears the burden of overcoming this presumption,” id. (citations omitted). We will not
grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

              Of the petitioner’s 20 issues on appeal, 16 are devoid of citation to
authorities or appropriate references to the record, and many of those issues consist of
                                            -7-
single sentences or short paragraphs containing only conclusory statements. “Issues
which are not supported by argument, citation to authorities, or appropriate references to
the record will be treated as waived in this court.” Tenn. R. Ct. Crim. App. 10(b); see
also Tenn. R. App. P. 27(a)(7) (stating that the appellant’s brief must contain an
argument “setting forth . . . the contentions of the appellant with respect to the issues
presented, and the reasons therefor . . . with citations to the authorities . . . relied on”).
Because the petitioner failed to comply with these rules, he has waived our consideration
of the following issues: his counsel’s failure to challenge a juror who spoke to the
prosecutor during trial; failure to give notice of an entrapment defense; failure to
subpoena a material witness; failure to speak with petitioner’s co-defendant or seek the
services of a methamphetamine expert; failure to raise the defense of entrapment prior to
trial; failure to question the elements of the indictment with the State’s expert; failure to
obtain a copy of the trial transcript to prepare for the motion for new trial; failure to
adequately communicate with the petitioner; failure to prepare additional jury charges;
failure to present an adequate closing argument; failure to prepare for trial; failure to
advise the petitioner of trial counsel’s employment history; failure to notify the petitioner
of court appearances; failure to advise the petitioner of trial counsel’s change of address;
and failure to advise the petitioner of trial counsel’s alleged alcoholism as well as
counsel’s ineffectiveness due to alleged alcohol abuse. We will, however, address the
four remaining issues which, though sparsely expressed, are supported by citation to
authorities.

                            I. Failure to Seek Removal of Juror

               The petitioner first contends that trial counsel was ineffective for failing to
seek removal of a juror who was prejudiced against the petitioner. Specifically, the
petitioner claims that he informed trial counsel that a female juror was the mother of a
woman whom the petitioner had impregnated but that trial counsel failed to challenge the
inclusion of this woman on the jury. Although trial counsel testified that he
“incorporated [the petitioner’s] input” during voir dire, he could not recall the petitioner’s
identifying an issue with a juror who was the grandparent of his child.

               The petitioner failed to present the juror at issue at the evidentiary hearing.
As such, we cannot speculate whether the juror was actually prejudiced against the
petitioner at trial. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(“When 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.”); Ellis Junior Burnett v. State, No. M2007-00572-CCA-R3-
PC, slip op. at 9 (Tenn. Crim. App., Nashville, Feb. 29, 2008) (holding that failure to
produce allegedly biased juror to testify at evidentiary hearing prevented “substantiation
of the [p]etitioner’s claim” and thus petitioner failed to prove prejudice). We therefore
                                             -8-
hold the petitioner has failed to prove by clear and convincing evidence that trial
counsel’s representation was deficient or prejudicial.

       II. Failure to Challenge Presentment for Double Jeopardy and Multiplicity

              The petitioner next contends that trial counsel was ineffective by failing to
challenge the presentment on grounds of double jeopardy and multiplicity, claiming that
the charged offenses of initiating the process to manufacture methamphetamine and
promotion of methamphetamine manufacture “occurred out of one act” and therefore
violated double jeopardy principles. We disagree.

               In 2012, our supreme court adopted the Blockburger “same elements” test
to determine “whether separate convictions under different statutes constitute the same
offense and violate the double jeopardy protection against imposing multiple
punishments.” State v. Watkins, 362 S.W.3d 530, 538-39, 556 (Tenn. 2012) (citing
Blockburger v. United States, 284 U.S. 299 (1932)). However, because the petitioner
was charged in 2009, the Denton test was still in effect in Tennessee for the analysis of
double jeopardy issues. See State v. Denton, 938 S.W.2d 373, 381 (Tenn. 1996),
abrogated by Watkins, 362 S.W.3d at 556. The four-step Denton test required a
determination of whether the offenses at issue contained different elements; whether the
same evidence was used to prove both offenses; whether there were multiple victims or
discrete acts; and whether the purposes of the respective statutes differed. Denton, 938
S.W.2d at 381. In fashioning this test, the court cautioned that none of the steps were
determinative and “the results of each must be weighed and considered in relation to each
other.” Id.

               In applying the Denton analysis, the post-conviction court found that “both
crimes contain different elements (one involves direct action by the accused while the
other involves furnishing a facility for another to perform the direct action)”; that “the
same evidence [was] not used to prove both offenses”; one of the crimes was “not a lesser
included offense of the other”; the two crimes “did not involve multiple victims but did
involve discrete acts”; and that the purposes of the two statutes were different. The post-
conviction court thus concluded that there was no double jeopardy violation under
Denton. The court then proceeded to examine the charges to determine whether the
petitioner received multiple punishments for the same offense, as proscribed by State v.
Phillips, 924 S.W.2d 662, 665 (Tenn. 1996), and the court determined that the
petitioner’s charges were not multiplicitous.

               We find the post-conviction court’s reasoning sound, and we conclude that
the petitioner has failed to establish that trial counsel was ineffective in this regard.

                                           -9-
                        III. Failure to Seek Entrapment Instruction

              Next, the petitioner asserts that trial counsel was ineffective by failing to
prepare an appropriate jury instruction for the defense of entrapment. The petitioner
contends that trial counsel’s failure to prepare an instruction in advance and attempt to
“hastily” write an instruction just prior to jury deliberation – which instruction was then
disallowed by the trial court – inured to his prejudice.

               The post-conviction court determined that an entrapment defense was not
warranted under the facts of the case because “[t]he evidence against [the petitioner] was
overwhelming, as the audio recordings of the transactions showed a clear predilection to
commit the crimes, and the testimony supporting the defense was relatively weak and
clearly self-serving.” As such, the court concluded that trial counsel could not “be held
to have been ineffective in failing to request a jury instruction on a defense which is not
supported by the facts.” Again, the record supports the post-conviction court’s reasoning,
and we find no merit to this claim.

                   IV. Failure to Challenge Sufficiency of Presentment

              Finally, the petitioner contends that trial counsel was ineffective for failing
to contest the presentment on the grounds that it was only signed by 11 jurors. The
petitioner bases his claim on the belief that the signature of the grand jury foreman as the
twelfth juror was insufficient to validate the presentment. See T.C.A. § 40-13-105
(specifying that an indictment requires the concurrence of at least 12 grand jurors).

              Among the duties of a grand jury foreperson is the duty “to vote with the
grand jury, which vote counts toward the twelve necessary for the return of an
indictment.” Tenn. R. Crim. P. 6(g)(4)(D). It is well-established that the grand jury
foreperson “has the same voting power as any other grand jury member.” State v.
Mangrum, 403 S.W.3d 152, 163 (Tenn. 2013) (citing State v. Bondurant, 4 S.W.3d 662,
674-75 (Tenn. 1999) (quoting State v. Jefferson, 769 S.W.2d 875, 877-78 (Tenn. Crim.
App. 1988))). In the instant case, the presentment was unquestionably signed by 11
grand jurors plus the grand jury foreman. Because the presentment was clearly valid, no
grounds existed for trial counsel to challenge its validity, and, as such, the petitioner
failed to prove that trial counsel was ineffective.

                                        Conclusion

              The petitioner has failed to prove by clear and convincing evidence that
trial counsel’s performance was deficient or prejudicial. Accordingly, the judgment of
the post-conviction court is affirmed.
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         _________________________________
         JAMES CURWOOD WITT, JR., JUDGE




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