                                                                                            04/16/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 7, 2020

                   JAMES SNIPES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 08-07885       Glenn Ivy Wright, Judge
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                            No. W2018-02225-CCA-R3-PC
                        ___________________________________

The Petitioner, James Snipes, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief, seeking relief from his conviction of first degree felony
murder and resulting life sentence. On appeal, the Petitioner contends that he received
the ineffective assistance of trial counsel and that he is entitled to a second post-
conviction evidentiary hearing due to post-conviction counsel’s deficient performance at
the first hearing. 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 Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ALAN E. GLENN, JJ., joined.

James Jones, Jr., Bartlett, Tennessee, for the appellant, James Snipes.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       In December 2008, the Shelby County Grand Jury indicted the Petitioner for first
degree premeditated murder, first degree felony murder committed during the
perpetration of burglary, aggravated burglary, and employing a firearm during the
commission of a dangerous felony. At trial, the proof showed that on the morning of
August 2, 2008, neighbors of Charles Beegle, Jr., heard gunshots and found him lying in
a pool of blood at the edge of his carport. See State v. James Snipes, No. W2011-02161-
CCA-R3-CD, 2013 WL 1557367, at *3 (Tenn. Crim. App. at Jackson, Apr. 12, 2013),
perm. app. denied, (Tenn. Sept. 13, 2013). He had been shot in the head, left shoulder,
and chest. Id. at *4. The police and the victim’s son were summoned to the home, and
the victim’s son discovered that someone had forced open the sliding glass door in the
living room and had “rummaged through” the residence. Id. at *1, 2. The victim’s son
also discovered that marijuana and money were missing from the victim’s bedroom
dresser. Id. at *2. Darrell Sebring, a neighbor of the victim, testified at trial that on the
evening of July 31, 2008, he and the victim were standing on the victim’s front porch
when the Petitioner rode by and asked if the victim “‘had anything,’” meaning marijuana.
Id. The victim denied having any marijuana, and the Petitioner drove away. Id. The
Petitioner’s mother and the victim had dated previously, and Sebring said the Petitioner’s
mother had lived with the victim for a couple of months. Id.

        Soon after the shooting, the police developed the Petitioner, John Smith, and
Lujuan Jesus as suspects. Id. at *5. On the afternoon of August 2, a police officer saw
the Petitioner driving a truck and chased the truck through a residential neighborhood.
Id. at *4. The Petitioner jumped out of the vehicle, and the police officer captured him on
foot. Id. A semi-automatic handgun, a second handgun loaded with .380-caliber bullets,
and the victim’s cellular telephone were in the truck. Id. at *4, 5. After interviewing
Jesus, the police also recovered a .38-caliber revolver. Id. at *5.

       Shell casings found at the crime scene were consistent with having been fired from
one of the guns in the truck. See id. at *1. The police found a cigarette butt seventy-two
feet from the victim’s body, and DNA on the cigarette butt matched the Petitioner’s
DNA. Id. at *3, 4. Moreover, the Petitioner had a small bloodstain on his shorts at the
time of his arrest. Id. at *5. The police interviewed the Petitioner, and he admitted that
he and one of his codefendants entered the victim’s home while another codefendant
served as a “‘lookout.’” Id. at *5. The Petitioner also admitted that he was armed with a
.25-caliber pistol and that he took marijuana and money before the victim realized the
Petitioner and his codefendant were inside the home. Id. The Petitioner claimed that he
shot the victim three times because the victim grabbed him and that his codefendant shot
the victim in the head with the .38-caliber revolver. Id. The Petitioner said that he
intended to take the victim’s money and marijuana but that he did not intend to harm the
victim. Id. at *6. One of the Petitioner’s codefendants, John Smith, told the police that
he entered the victim’s home with the Petitioner, that the victim chased the Petitioner,
and that the Petitioner shot the victim to get away from the victim. Id. Smith said he
shot the victim in the head with Jesus’s .38-caliber revolver. Id.

       Based on the evidence, the jury convicted the Petitioner of first degree felony
murder as charged in the indictment; second degree murder, a Class A felony, as a lesser-
included offense of first degree premeditated murder; employing a firearm during the
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commission of a dangerous felony, a Class C felony, as charged in the indictment; and
aggravated criminal trespass of a habitation, a Class A misdemeanor, as a lesser-included
offense of aggravated burglary. After a sentencing hearing, the trial court merged the
murder convictions and sentenced the Petitioner to life. The trial court sentenced the
Petitioner to six years for employing a firearm during the commission of a dangerous
felony and eleven months, twenty-nine days for aggravated criminal trespass of a
habitation and ordered that the Petitioner serve the sentences concurrently with the life
sentence.

       On appeal to this court, the Petitioner argued that his convictions of first degree
felony murder and aggravated criminal trespass were mutually exclusive verdicts and,
therefore, that his conviction of first degree felony murder must be dismissed. Id. at *7.
This court disagreed, concluding that the verdicts were not mutually exclusive. Id. at *8.
However, this court concluded that the jury’s finding the Petitioner guilty of first degree
felony murder but not guilty of aggravated burglary were inconsistent verdicts. Id. at *9.
Nevertheless, this court affirmed the Petitioner’s conviction of first degree felony murder,
stating that “we will not speculate about the jury’s reasoning because the evidence
supports findings of guilt with regard to both offenses.” Id.

        The Petitioner filed a timely pro se petition for post-conviction relief, claiming
that he received the ineffective assistance of trial counsel. The post-conviction court
appointed counsel, and counsel filed an amended petition. In the amended petition, the
Petitioner alleged that trial counsel was deficient because trial counsel “failed to properly
and adequately argue against the inconsistent verdict[s] rendered by the jury in this trial.”
Specifically, the Petitioner claimed that after the jury rendered inconsistent verdicts, trial
counsel “should have immediately addressed the [trial] Court and had the erroneous
verdict rectified as the thirteenth juror.” Regarding prejudice, the Petitioner argued that
trial counsel’s “[f]ailure to make this simple argument or otherwise correct this” resulted
in the Petitioner’s receiving an illegal or void sentence.

        At the evidentiary hearing, the Petitioner testified that after the jury convicted him
of first degree felony murder but acquitted him of aggravated burglary, trial counsel did
not consult with the Petitioner about the verdicts and “just proceeded to doing his thing.”
Trial counsel did not talk with the Petitioner about the issues of mutually exclusive
verdicts or inconsistent verdicts. Trial counsel also did not talk with the Petitioner about
the Petitioner’s sentence for first degree felony murder being void or illegal, and the trial
court did not address whether the first degree felony murder conviction could stand
without a conviction for the underlying felony. Trial counsel raised the issues in the
Petitioner’s motion for new trial, but the Petitioner “didn’t have no input in it.” The
Petitioner said that if he had known his sentence for first degree murder may have been
void, he would have wanted trial counsel to raise that issue in the trial court.
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        On cross-examination, the Petitioner testified that trial counsel told him that one of
his murder convictions was going to be dismissed. Trial counsel did not talk with the
Petitioner about merging the murder convictions. The Petitioner said that he was
dissatisfied with trial counsel’s representation because “[there] must be a felony before
[there] can be a felony murder.” The Petitioner was convicted of a misdemeanor.

       At the conclusion of the hearing, the State advised the trial court that “I normally
would call counsel, Your Honor, but at this point, if the only issue we’re discussing is the
issue that’s been addressed by the appellate court, we would make a motion at this point
to dismiss.” The State did not present any proof.

        In a written order, the post-conviction court denied the petition for post-conviction
relief, stating as follows:

              The only issue that Petitioner offered evidence to support was the
       issue concerning his conviction of felony murder despite being acquitted
       [of] the underlying felony. The only evidence offered was the testimony of
       Petitioner. Petitioner, by and through counsel, argued that this is not the
       same issue as the one decided on direct appeal because they are not arguing
       that the verdicts are mutually exclusive or inconsistent, but are instead
       simply void on their face. This is the same issue as was decided on direct
       appeal. The issue of whether Petitioner’s convictions for felony murder
       and for aggravated criminal trespass should stand is the same. Because that
       issue has already been decided on direct appeal, Petitioner is not entitled to
       post-conviction relief.

                                    II. Analysis

        On appeal, the Petitioner contends that the trial court erred by failing to perform
its duty as the thirteenth juror when the jury convicted him of first degree felony murder
but did not convict him of an enumerated offense in the felony murder statute and that he
received the ineffective assistance of counsel because trial counsel failed to request that
the trial court perform its duty as the thirteenth juror. In a related argument, the
Petitioner contends that trial counsel should have argued to the trial court and in this
court on direct appeal of his convictions that his felony murder conviction was void
because the offense “is not a stand-alone offense.” Finally, the Petitioner contends that
he is entitled to a second evidentiary hearing because post-conviction counsel was
ineffective for failing to call trial counsel as a witness at the first hearing. The State
asserts that the Petitioner is not entitled to relief because his claims are “simply a repeat
of what he already litigated before this Court.” However, we think that the Petitioner’s
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post-conviction issues are distinguishable from the claims of mutually exclusive and
inconsistent verdicts that he raised on direct appeal of his convictions. That said, we
agree with the State that the Petitioner is not entitled to relief.

       “Relief under [the Post-Conviction Procedure Act] shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103. 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. Further,

      [b]ecause a petitioner must establish both prongs of the test, a failure to
      prove either deficiency or prejudice provides a sufficient basis to deny
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       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).

        As to the Petitioner’s claim that the trial court erred by failing to perform its duty
as the thirteenth juror and that trial counsel was ineffective for failing to request that the
trial court perform its duty as the thirteenth juror, Tennessee Rule of Criminal Procedure
33(d), provides that “[t]he trial court may grant a new trial following a verdict of guilty if
it disagrees with the jury about the weight of the evidence.” When weighing the
evidence, the trial court views the evidence like a juror, including determining the
credibility of witnesses. State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015). Notably, “a
judge exercising thirteenth juror function, like a juror, is not required to give any reason
for the action.” State v. Dankworth, 919 S.W.2d 52, 58 (Tenn. Crim. App. 1995). Our
supreme court has explained that “when the trial judge simply overrules a motion for new
trial, an appellate court may presume that the trial judge has served as the thirteenth juror
and approved the jury’s verdict.” State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995).

       Our review of the direct appeal record shows that although trial counsel did not
ask the trial court immediately after the jury’s verdicts to perform its duty as the
thirteenth juror, trial counsel alleged in the Petitioner’s motion for new trial that the trial
court should grant a new trial pursuant to Tennessee Rule of Criminal Procedure 33(d).
Furthermore, trial counsel alleged in the motion for new trial and argued at the hearing on
the motion that the Petitioner’s first degree felony murder conviction was “improper”
because the jury acquitted the Petitioner of the underlying felony. Therefore, we
conclude that trial counsel was not deficient.

       The trial court overruled the motion for new trial. Thus, the trial court acted as the
thirteenth juror and approved the jury’s verdicts. This court has observed that when the
trial court has approved a verdict as the thirteenth juror, as it did in this case, our
appellate review is then limited to determining the sufficiency of the evidence. See State
v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Trial counsel did not argue
on direct appeal of the Petitioner’s convictions that the evidence was insufficient to
support the first degree felony murder conviction. In addressing the Petitioner’s claim of
inconsistent verdicts on direct appeal of his convictions, though, this court stated as
follows:

       The proof established that the Defendant entered the victim’s home without
       the victim’s consent, that he took marijuana, money, and a cell phone, and
       that he shot the victim. The money, drugs, and cell phone were found in
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       the truck the Defendant was driving immediately after the shooting. Shell
       casings found at the crime scene were consistent with being fired from the
       firearms found in the truck. Likewise, the Defendant’s DNA was found on
       a used cigarette near the victim’s body. We conclude that the evidence is
       sufficient to support the Defendant’s convictions for felony murder during
       the commission of an aggravated burglary and aggravated criminal trespass.
       Although the verdicts are “seemingly inconsistent,” we will not speculate
       about the jury’s reasoning because the evidence supports findings of guilt
       with regard to both offenses. See [Wiggins v. State, 498 S.W.2d 92, 93-94
       (Tenn. 1973)]. The Defendant is not entitled to relief.

Here, this court found the evidence sufficient to support the Petitioner’s conviction of
first degree felony murder despite the fact that the jury, for whatever reason, chose not to
convict him of aggravated burglary. Accordingly, we conclude that the Petitioner also
has failed to show prejudice.

        The Petitioner contends that he is entitled to a second evidentiary hearing because
post-conviction counsel was ineffective for failing to call trial counsel as a witness at the
first hearing. As this court has repeatedly stated, “We have observed on many occasions
that original counsel, when available, should always testify in a post-conviction
proceeding when there is an allegation that he was ineffective.” State v. Hopson, 589
S.W.2d 952, 954 (Tenn. Crim. App. 1979). Furthermore, “the state should present the
attacked counsel to show what occurred.” State v. Craven, 656 S.W.2d 872, 873 (Tenn.
Crim. App. 1982); Garrett v. State, 530 S.W.2d 98, 99 (Tenn. Crim. App. 1975).

        As stated above, trial counsel raised the thirteenth juror issue in the motion for
new trial. Trial counsel also alleged in the motion for new trial that the first degree
murder conviction could not stand alone and that the evidence was insufficient to sustain
the conviction. Although trial counsel did not raise the stand-alone claim or sufficiency
in this court, this court found the evidence sufficient to support the Petitioner’s conviction
of first degree felony murder. Therefore, even without trial counsel’s testimony at the
post-conviction evidentiary hearing to contradict the Petitioner’s claims, we can conclude
that the Petitioner has failed to establish by clear and convincing evidence that he is
entitled to relief. Accordingly, a second evidentiary hearing is not necessary.

                                      III. Conclusion

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



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      ________________________________
      NORMA MCGEE OGLE, JUDGE




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