                                                                                           07/19/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 14, 2017

                JEFFREY S. PETTY v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Dickson County
                  No. 22CC-2013-CR-647 Larry J. Wallace, Judge
                      ___________________________________

                           No. M2016-01488-CCA-R3-PC
                       ___________________________________

The Petitioner, Jeffrey S. Petty, appeals the Dickson County Circuit Court’s denial of his
petition for post-conviction relief. On appeal, he argues that trial counsel was ineffective
by (1) failing to move for a mistrial based on juror misconduct; (2) failing to file a motion
to suppress evidence found in the Petitioner’s car; and (3) failing to include certain issues
in his motion for new trial. Upon our review, we affirm the judgment of the post-
conviction court.

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

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

Steven S. Hooper, Waverly, Tennessee, for the Petitioner, Jeffrey S. Petty.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Wendell Ray Crouch, Jr., District Attorney General; and Carey J. Thompson, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       On August 8, 2008, a Dickson County jury convicted the Petitioner of first degree
felony murder and arson. This court summarized the facts underlying the Petitioner’s
convictions in its opinion on direct appeal. State v. Jeffrey Scott Petty, No. M2009-
01621-CCA-R3-CD, 2013 WL 510150 (Tenn. Crim. App. Feb. 12, 2013). In short, the
victim, Kenneth Brake, owned a trailer where the Petitioner had formerly lived. Id. at *1.
The victim’s body was found in the trailer, which had been set on fire. Id. It was
determined that the victim died of a gunshot wound before the fire started. Id. In a
statement to officers, the Petitioner admitted to planning a robbery of the victim with a
co-defendant, Thomas Dotson. Id. However, the Petitioner said that he waited outside
while Dotson shot the victim and then lit the trailer on fire. Id. The jury found the
Petitioner guilty of first degree felony murder and arson, and the trial court sentenced him
to life imprisonment and five years, respectively, to be served consecutively. Id. The
Petitioner appealed his convictions, which were affirmed by this court. Id. at *5.

       On September 27, 2013, the Petitioner filed a pro se petition for post-conviction
relief. On October 16, 2013, the post-conviction court appointed post-conviction
counsel, who later filed two amended petitions for post-conviction relief.

        At the post-conviction hearing, the Petitioner’s trial counsel testified that he had
been a public defender for seventeen years and that he had handled over fifty murder
trials. He recalled an incident that occurred during trial between one of the sequestered
jurors and a waitress during a lunch break. It was determined that the waitress was the
mother of one of the witnesses and that the juror and the waitress had a conversation
about an ink pen. After learning about the incident, the trial court questioned the juror
and determined that the facts of the case were not discussed. Trial counsel recalled that
the court dismissed the juror “out of the abundance of caution but not because he actually
thought that juror had been prejudicing anyone.” Trial counsel did not ask the juror
questions because he “didn’t see any need to,” and because the trial court had sufficiently
questioned the juror.

        Trial counsel confirmed that officers searched the Petitioner’s car and found a
Walmart receipt showing that the Petitioner purchased shotgun shells the night of the
murder. Counsel also confirmed that the shotgun shells were the same type of shells that
were used in the murder. Although trial counsel filed a motion to suppress the
Petitioner’s statement to officers, he did not move to suppress the search of the
Petitioner’s car. Trial counsel believed that the officers would have found out eventually
about the Walmart purchase from the Petitioner’s co-defendant because the co-defendant
had been with the Petitioner at Walmart, had accepted a plea deal, and had given a proffer
to the State. Trial counsel also recalled that the Petitioner gave officers consent to search
his car and that there was no evidence that the consent was coerced or involuntary.

        Trial counsel said that he did not file the Petitioner’s motion for new trial and that
he could not recall if he discussed the grounds for the motion with his co-counsel, who
drafted and filed the motion. However, counsel testified that the motion “clearly was not
sufficient . . . [b]ecause it left out all the things that needed to be taken up on appeal,”
such as challenging the denial of the motion to suppress the Petitioner’s statement.
Counsel opined that the Petitioner “did not get effective assistance of counsel on this
motion.”



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        The Petitioner testified that he did not ask his trial counsel to question the
dismissed juror because he “wasn’t aware that would be an issue.” The Petitioner
acknowledged that the conversation was only about an ink pen. The Petitioner also
testified that he did not give officers consent to search his car. The Petitioner said that he
asked officers if he could lock his car, but officers said they would “lock it up for [him].”
However, the Petitioner also testified that he called his father to come get his car and that
when his father arrived, “the vehicle had already been searched and pretty much trashed,
destroyed, everything threw [sic] around in it.”

       The post-conviction court denied relief by order on July 1, 2016, and the Petitioner
timely appealed.

                                        ANALYSIS

        In this appeal, the Petitioner argues that he received ineffective assistance of
counsel when trial counsel (1) failed to move for a mistrial regarding juror misconduct;
(2) failed to file a motion to suppress the evidence found in the Petitioner’s car; and (3)
failed to raise “all grounds” in his motion for new trial. The State argues that there was
no juror misconduct, that the post-conviction court accredited trial counsel’s testimony
that the Petitioner gave consent to the search, and that the post-conviction court properly
held that the Petitioner failed to show prejudice regarding claims not raised in his motion
for new trial. Upon review, we agree with the State.

       We begin our review of these issues by acknowledging that post-conviction relief
is only warranted when a petitioner establishes that his or her conviction is void or
voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103. The
Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve. The appellate
       court’s review of a legal issue, or of a mixed question of law or fact such as
       a claim of ineffective assistance of counsel, is de novo with no presumption
       of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010); see Felts v. State,
354 S.W.3d 266, 276 (Tenn. 2011). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
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Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In Vaughn, the Tennessee Supreme Court repeated well-settled principles
applicable to claims of ineffective assistance of counsel:

       The right of a person accused of a crime to representation by counsel is
       guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United
       States Supreme Court and this Court have recognized that this right to
       representation encompasses the right to reasonably effective assistance, that
       is, within the range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668,
687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard
of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland,
466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated
once the petitioner establishes “‘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.’” Id. at 370 (quoting Strickland, 466 U.S. at 694).

        We note that “[i]n evaluating an attorney’s performance, a reviewing court must
be highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular
set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of
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circumstances faced by defense counsel or the range of legitimate decisions regarding
how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,
we note that this “‘deference to matters of strategy and tactical choices applies only if the
choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

       The Petitioner argues that trial counsel was ineffective for failing to request a
mistrial after learning that a sequestered juror had spoken to a waitress during lunch.
Determining whether to request a mistrial is a strategic decision, and considerable
deference is given to trial counsel when analyzing the effectiveness of counsel’s
assistance regarding trial strategies. See Wiley v. State, 183 S.W.3d 317, 331-32 (Tenn.
2006); see also Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). The post-conviction
court found that the juror’s conversation was “only about an ink pen” and was not
improper. The juror was also voir dired prior to being dismissed and said that he had
simply asked the waitress at lunch to borrow a pen and that he did not discuss the
incident with any other jurors. Although the waitress was determined to be the mother of
one of the witnesses who had testified at trial, no further allegations of misconduct were
made. Further, the juror was immediately released from jury service. The Petitioner
argues that “everything was not done to confirm that the juror was being honest about the
communication that he had with a third party and that the other jurors were not
prejudiced because of the conversation.” However, trial counsel testified that he did not
question the juror further or request a mistrial because the trial court adequately
questioned the juror, the juror was excused, and there was no reason to believe that any
improper conduct had occurred. Under these circumstances, trial counsel was not
ineffective for failing to request a mistrial.

       Next, the Petitioner argues that trial counsel provided ineffective assistance by
failing to make a motion to suppress the evidence found in his car, specifically, the
Walmart receipt. The post-conviction court accredited trial counsel’s testimony that he
believed the Petitioner gave consent to officers to search his car and that, therefore, there
was no legal basis to file a motion to suppress. Trial counsel also testified that the
Petitioner’s co-defendant would have given officers the same information that the search
of the Petitioner’s car revealed, i.e., that the Petitioner had been to Walmart shortly
before the murder and had purchased the same ammunition that was used to shoot the
victim. The Petitioner also testified that the search of his car was conducted after he was
arrested. Without any showing otherwise by the Petitioner, deference is given to
counsel’s decision not to file a motion to suppress. See House, 44 S.W.3d at 515 (citing
Goad, 938 S.W.2d at 369); see also Titus Miller v. State, No. W2012-01105-CCA-R3-
PC, 2013 WL 1908705, at *9 (Tenn. Crim. App. May 7, 2013) (holding that trial counsel
was not ineffective in failing to file a motion to suppress where counsel opined that the

                                            -5-
motion would not be successful). Accordingly, the Petitioner has failed to establish by
clear and convincing evidence that counsel was deficient.

        Finally, the Petitioner asserts that trial counsel failed to include “all grounds as to
why a new trial should be granted.” However, the Petitioner does not specify which
issues should have been included and appears to solely rely on trial counsel’s testimony
at the post-conviction hearing that counsel believed the motion was insufficient. Trial
counsel’s co-counsel, who drafted and filed the motion for new trial, was not called to
testify at the post-conviction hearing, and the post-conviction court found that the
Petitioner failed to establish any actual prejudice suffered as a result of his motion for
new trial. Also, as we have already noted, without proof to the contrary, deference is
given to trial counsel’s tactical decisions.

       The Petitioner also mentions that the denial of the motion to suppress his
confession should have been included in the motion for new trial. The Petitioner again
appears to be solely relying on trial counsel’s testimony that this issue should have been
included and provides no further legal analysis. Trial counsel testified that his motion to
suppress the Petitioner’s confession was based on the theory that “statements were made
to [the Petitioner] that indicated to [the Petitioner] that he would be helped out by law
enforcement and that he would not be looking at a first degree murder conviction if he
helped.” However, as the post-conviction court noted, trial counsel also testified that the
Petitioner’s testimony at the suppression hearing contradicted this theory and left no basis
for challenging his statement to officers. The record does not preponderate against the
findings of the post-conviction court. Accordingly, the Petitioner has failed to establish
deficient performance or prejudice to his case as a result. He is not entitled to relief.

                                      CONCLUSION

       Based on the above reasoning and analysis, the judgment of the post-conviction
court is affirmed.

                                                   _________________________________

                                                       CAMILLE R. McMULLEN, JUDGE




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