        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2015

           CURTIS DWAYNE STAGGS v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Lawrence County
                      No. 31393     Stella L. Hargrove, Judge



                 No. M2014-01416-CCA-R3-PC – Filed June 29, 2016



The Petitioner, Curtis Dwayne Staggs, appeals the Lawrence County Circuit Court‟s
denial of his petition for post-conviction relief from his convictions of first degree
premeditated murder, first degree felony murder, and aggravated robbery and resulting
effective sentence of life plus twelve years. On appeal, the Petitioner contends that he
received the ineffective assistance of counsel because trial counsel failed to raise the
statute of limitations as a defense against his aggravated robbery charge and because
counsel failed to request a jury instruction cautioning the jury to evaluate the weight and
credibility of a witness‟s testimony in light of the witness‟s agreement with the State.
Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. CAMILLE R. MCMULLEN, J., filed a dissenting opinion.

Ronald G. Freemon, Columbia, Tennessee, for the appellant, Curtis Dwayne Staggs.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; and Brent A. Cooper, District Attorney General, for the appellee, State of
Tennessee.

                                       OPINION

                                I. Factual Background
        We glean the following relevant facts from this court‟s opinion of the Petitioner‟s
direct appeal of his convictions:

                      This case arises from the Defendant‟s participation in a
              robbery and shooting of the victim, Joann Rigling, who died
              from the injuries she sustained. The victim was found on
              June 19, 1992, with one gunshot above her eye behind the
              counter of Phillip‟s One-Stop market in Saint Joseph,
              Tennessee, and the market cash register was missing. Jimmy
              Dale Hogan and Tammy Smith were arrested for the murder
              and robbery. Hogan was convicted [of first degree felony
              murder and especially aggravated robbery] after a jury trial
              but obtained post-conviction relief on appeal, and this Court
              ordered a new trial [on felony murder]. During the
              reinvestigation of these crimes in preparation for Hogan‟s
              retrial, authorities learned additional information that led a
              Lawrence County grand jury to indict the Defendant for first
              degree premeditated murder, first degree felony murder, and
              aggravated robbery for his role in the 1992 murder and
              robbery.

State v. Curtis Dewayne Staggs, No. M2011-02361-CCA-R3-CD, 2012 WL 5542690, at
*1 (Tenn. Crim. App. at Nashville, Nov. 13, 2012).

        At the Petitioner‟s trial, the most damaging evidence against him came from
Hogan, who testified for the State that about one week before the crimes, he was present
at a meeting in which the Petitioner and the victim‟s husband, Phillip Rigling, discussed
the robbery. Id. at *5. Hogan testified that on the day of the crimes, he and the Petitioner
drove to Phillip‟s One-Stop market and entered the store. Id. at * 6. Hogan said that the
Petitioner ordered the victim to open the cash register, that the victim refused, and that
the Petitioner shot her. Id. On cross-examination, Hogan acknowledged that he had
almost completed his twenty-year sentence for especially aggravated robbery and that he
was testifying against the Petitioner in exchange for a concurrent, twenty-year sentence
for felony murder. Id. at *7. He also acknowledged that he was arrested for the crimes in
1996 but did not implicate the Petitioner until 2010. Id.

        The jury convicted the Petitioner as charged of first degree premeditated murder,
first degree felony murder, and aggravated robbery. Id. at *10. The trial court merged
the felony murder conviction into the premeditated murder conviction and sentenced him
to life. Id. The trial court sentenced the Petitioner to twelve years for the aggravated
robbery conviction and ordered that the sentences be served consecutively for a total
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effective sentence of life plus twelve years. Id. The Petitioner appealed to this court, and
this court affirmed his convictions. Id. at *18. Subsequently, the Petitioner filed a pro se
petition to rehear, arguing for the first time that the State indicted him for aggravated
robbery outside the statute of limitations. This court determined that he was not entitled
to relief because he was still represented by counsel and because counsel did not raise the
issue in the original appellate brief. State v. Curtis Dewayne Staggs, No. M2011-02361-
CCA-R3-CD (Tenn. Crim. App. at Nashville, Jan. 18, 2012) (order).

       After our supreme court denied the Petitioner‟s application for permission to
appeal, he filed a timely petition for post-conviction relief, alleging, in pertinent part, that
he received the ineffective assistance of counsel because trial counsel failed to argue that
the statute of limitations had expired for the aggravated robbery charge and failed to
request a jury instruction cautioning the jury to evaluate Hogan‟s testimony carefully in
light of his “deal” with the State. The post-conviction court appointed counsel, and
counsel filed an amended petition. In the amended petition, counsel alleged that trial
counsel was ineffective by failing to enforce the statute of limitations for the aggravated
robbery charge because the crime occurred eighteen years before the State indicted the
Petitioner and because the indictment failed to “[put] the Petitioner on notice of those
circumstances which would allow the State to proceed with prosecution of the aggravated
robbery charge[.]” Counsel also alleged in the amended petition that trial counsel was
ineffective for failing to request a jury instruction regarding Hogan‟s testimony pursuant
to State v. Bolden, 979 S.W.2d 587 (Tenn. 1998).

       Relevant to this appeal, trial counsel testified at the evidentiary hearing that he was
appointed to represent the Petitioner on December 12, 2010, and that he first met with the
Petitioner on December 29, 2010. They reviewed discovery materials and discussed the
case. The Petitioner‟s trial occurred about eight months later. The Petitioner was
incarcerated in Lawrenceburg, the city in which counsel‟s office was located, so counsel
was able to meet with the Petitioner “numerous times” before trial.

       Counsel testified that he and the Petitioner discussed the State‟s “star” witness,
Hogan. They also discussed whether the Petitioner wanted to testify and any witnesses
he wanted to testify on his behalf. The Petitioner maintained that he was not involved in
the crimes and did not want counsel to explore a guilty plea. The State had charged the
Petitioner in count three with aggravated robbery, and the Petitioner asked counsel
“whether some or all of [the] charges were barred by the statute of limitations.” Counsel
researched the law, which provided that if the Petitioner had lived out of state or
concealed the crime, the statute of limitations was tolled. Counsel said he did not pursue
the statute of limitations issue because the Petitioner had been living in Missouri “for a
number of years.”

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       Trial counsel testified that the State gave him a letter in which it “outlined”
Hogan‟s expected testimony and “what his plea deal would be if he testified in
accordance with that.” Counsel questioned Hogan about the agreement in front of the
jury, and Hogan testified that he was to plead guilty in exchange for a twenty-year
sentence. Counsel said he did not remember if he requested that the trial court instruct
the jury to evaluate Hogan‟s testimony carefully in light of the plea agreement. Counsel
also did not raise the instruction issue on direct appeal.

       On cross-examination, trial counsel testified that he became licensed to practice
law in 1997 and that he had been practicing about fourteen years at the time of the
Petitioner‟s trial in 2011. He said that he practiced civil and criminal litigation and
estimated that he had participated in fifteen to eighteen jury trials during his career. On
redirect examination, counsel acknowledged that the indictment alleged that the
Petitioner committed aggravated robbery on June 19, 1992.

        The Petitioner testified that he was not guilty of the crimes and that he was hoping
his post-conviction petition would result in a new trial or dismissal of the charges. The
Petitioner first met trial counsel at the Lawrence County Jail, and they met four or five
times, not including the Petitioner‟s appearances in court. The Petitioner said he was
scared and that he relied on counsel. However, counsel had no trial strategy, saying only
that “we‟re going to argue that you‟re innocent.” The Petitioner and counsel discussed
the statute of limitations for aggravated robbery, and the Petitioner asked counsel about
the statute of limitations several times. Counsel told the Petitioner that the statute of
limitations did not apply because the Petitioner had lived in Missouri. The Petitioner said
he did not move to Missouri until 2002, ten years after the robbery. The Petitioner stated
that after the jury convicted him, he asked counsel to appeal the statute of limitations
issue. He identified two letters he wrote to trial counsel, dated December 2012 and
January 2013, in which he continued to question counsel about the statute of limitations
issue. The Petitioner said he thought the statute of limitations was “out” on the
aggravated robbery charge.

        On cross-examination, the Petitioner testified that during one of his meetings with
trial counsel, counsel brought “a box full of stuff down there to look at.” He denied that
the meeting lasted six hours and said that their meetings “never lasted two hours. One of
them might have lasted a couple of hours, but the rest of them never did.” The Petitioner
acknowledged that according to counsel‟s records, they met at the jail at least ten times.
The Petitioner denied telling Tennessee Bureau of Investigation Agent Josh Melton, who
worked with the district attorney‟s office on Hogan‟s retrial, that he had been living in
Missouri ten or twelve years. He said that he moved to Missouri in 2002 and that he
never concealed the crime.

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        In a written order, the post-conviction court found the Petitioner not credible “on
any issue raised in the Petitions” and denied his petition for post-conviction relief. As to
the statute of limitations for aggravated robbery, the post-conviction court noted that trial
counsel told the Petitioner that the statute of limitations was tolled because the Petitioner
lived in Missouri after the crimes. The court concluded that counsel “raised every
possible defense available to Petitioner.” As to the jury instruction issue, the court found
that “the charge to the jury satisfied State v. Bolden relative to the plea agreement of co-
defendant, Jimmy Dale Hogan.”

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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. Generally, [b]ecause a petitioner must establish
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both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not
address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component. Goad, 938 S.W.2d at 370 (citing
Strickland, 466 U.S. at 697).

                                 A. Statute of Limitations

      First, the Petitioner contends that he received the ineffective assistance of counsel
because trial counsel failed to raise the statute of limitations as a defense to the
aggravated robbery charge. The State argues that the post-conviction court properly
denied relief because the court found the Petitioner not credible when he claimed that he
did not move to Missouri until 2002. We conclude that the Petitioner has failed to
demonstrate that he received the ineffective assistance of counsel.

        Aggravated robbery is a Class B felony. Tenn. Code Ann. § 39-13-402(b). The
statute of limitations for a Class B felony is eight years. Tenn. Code Ann. § 40-12-
101(b)(2). However, “[n]o period during which the party charged conceals the fact of the
crime, or during which the party charged was not usually and publicly resident within the
state, is included in the period of limitation.” Tenn. Code Ann. § 40-12-103. “If the
tolling . . . is triggered by the absence of the accused from the state, obviously upon his or
her return to the state the statute would begin to run. If the tolling is triggered by
concealment, the statute would begin to run when the concealment ceased.” State v.
Davidson, 816 S.W.2d 316, 321 (Tenn. 1991).

        As our supreme court has stated, “[W]here an indictment or presentment shows
upon its face, or by stipulation, that the applicable statute of limitations has expired, the
instrument must allege facts which demonstrate that the statute was tolled for a sufficient
period of time to avoid the bar of the statute of limitations.” Id. at 321. The State may
amend the indictment by alleging the facts which served to toll the statute. Morgan v.
State, 847 S.W.2d 538, 542 (Tenn. Crim. App. 1992). The State is required “to plead and
prove the tolling. Where the allegations are insufficient, the indictment or presentment
will be dismissed upon motion, and there can be no trial in which to prove what was not
alleged.” Id.

       Here, post-conviction counsel alleged in the amended petition that trial counsel
was ineffective by failing to enforce the statute of limitations as to the aggravated robbery
charge because the crime occurred eighteen years before the indictment and because the
indictment failed to “[put] the Petitioner on notice of those circumstances which would
allow the State to proceed with prosecution of the aggravated robbery charge[.]” At the
evidentiary hearing, post-conviction counsel introduced a copy of the indictment into
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evidence. In count three of the July 29, 2010 indictment, the State alleged that the
Petitioner committed aggravated robbery on June 19, 1992. However, the State did not
allege any facts regarding the Petitioner‟s moving out of State that would have tolled the
statute of limitations. Thus, the indictment was untimely on its face because the statute
of limitations expired on June 19, 2000. Moreover, our review of the direct appeal record
shows that the State did not file an amended indictment or that trial counsel filed a pre-
trial motion asserting a defect in the indictment.

        Nevertheless, because this is a case for post-conviction relief, the burden was on
the Petitioner to demonstrate that he was actually prejudiced by trial counsel‟s failure to
seek relief from a prosecution barred by the statute of limitations. Overton v. State, 874
S.W.2d 6, 11 (Tenn. 1994); see Morgan, 847 S.W.2d at 540. The Petitioner argued at the
evidentiary hearing and contends on appeal that the statute of limitations was not tolled
because he did not move to Missouri until 2002, ten years after the crimes and two years
after the statute of limitations expired. He notes that at his 2011 trial, Agent Melton
testified that he thought the Petitioner had been living in Missouri only eight or nine
years. However, our review of the trial transcript reveals that Agent Melton actually
stated, “I want to say eight to nine [years], but I would be testifying without a 100 percent
accuracy to that.” Furthermore, although the Petitioner testified at the evidentiary
hearing that he moved to Missouri in 2002, the post-conviction court found him not
credible. We note that in the Petitioner‟s pro se petition to rehear, which he filed in this
court in November 2012, the Petitioner stated, “Petitioner did not leave Tennessee until
the Spring of 1998. Petitioner did not buy a home in Missouri until the Spring of 2000.”
Thus, by the Petitioner‟s own admission, he left the State of Tennessee approximately six
years after the crimes, two years before the statute of limitations for the aggravated
robbery charge expired. Thus, we agree with the post-conviction court that the Petitioner
has failed to show that he was actually prejudiced by counsel‟s deficient performance.

                                    B. Jury Instruction

       Next, the Petitioner contends that he received the ineffective assistance of counsel
because trial counsel failed to request a jury instruction in which the court cautioned the
jurors to evaluate the weight and credibility of Hogan‟s testimony in light of his
agreement with the State. The State argues that the Petitioner is not entitled to relief
because the jurors were aware of Hogan‟s plea agreement and because the trial court
instructed them to consider whether any promises or other influences existed that could
have affected the witness‟s testimony. We agree with the State.

      In Bolden, the defendant and his co-defendant were charged with first
premeditated degree murder. 979 S.W.2d at 589. The codefendant entered into an
agreement with the State in which he agreed to testify truthfully against the defendant in
                                            -7-
exchange for a plea to second degree murder and a twenty-five-year sentence. Id. At
trial, though, the codefendant claimed that he did not remember what happened on the
night of the murder. Id. During a recess, the State entered into a second agreement with
the codefendant in which he agreed to testify against the defendant in exchange for a plea
to second degree murder and a fifteen- to twenty-five-year sentence. Id. The defendant,
whom the jury convicted of second degree murder, argued on direct appeal of his
conviction that he was denied his right to due process and a fair trial because the
agreement required that the codefendant testify to specific acts. Id. at 590. Our supreme
court disagreed, holding that nothing indicated the codefendant was required to give false
testimony or testify according to a particular script. Id. at 592. The supreme court also
noted that “essential safeguards” were followed in that the jury and the defendant were
informed of the agreement, the defendant conducted a full and vigorous cross-
examination of the codefendant, and “the jury was instructed that its function was to
weigh the testimony and determine the credibility of the witness.” Id. at 592-93.

        Similarly, nothing in this case indicates that Hogan‟s plea agreement required that
he give false testimony or testify according to a script. The jury and the Petitioner were
informed of the agreement, and trial counsel cross-examined Hogan about it. Hogan
testified that he was still serving his twenty-year sentence for robbing Phillip‟s One-Stop
and that he was testifying truthfully against the Petitioner in exchange for a concurrent,
twenty-year sentence. He acknowledged that he had served most of his sentence and that
he was going to be released from confinement soon. Counsel continued to cross-examine
Hogan vigorously about his participation in the crimes and his waiting fourteen years to
implicate the Petitioner.

       Moreover, our review of the preliminary jury instructions shows that the trial court
instructed the jurors that they were to assess the credibility of the witnesses and the
importance of their testimony. The court then listed eight factors the jury should consider
in making its assessment, including the following:

              5. Does the witness have bias, prejudice or personal interest
              in how this case is decided?

              6. Are there any promises, threats, suggestions, or other
              influences that affected how the witness testifies?

              7. In general, does the witness have any special reason to tell
              the truth or any special reason to lie?

Although the trial court did not specifically instruct the jury to evaluate the weight and
credibility of Hogan‟s testimony carefully in light of the plea agreement, Bolden does not
                                           -8-
require such an instruction. In any event, the three factors stated above inherently
instructed the jury to do so. Thus, we conclude that trial counsel did not render deficient
performance or that the Petitioner was prejudiced by any deficiency.

                                     III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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