                                                                                         03/29/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 5, 2019

                NICOS BROADNAX v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 12-0261 Jennifer S. Nichols, Judge
                     ___________________________________

                           No. W2018-01503-CCA-R3-PC
                       ___________________________________

The Petitioner, Nicos Broadnax, appeals the denial of his petition for post-conviction
relief, arguing that trial counsel’s admitting that the Petitioner was guilty of robbery in
opening statement was “ineffective and prejudicial.” Following our review, we affirm
the judgment of the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY,
JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Josie S. Holland, Memphis, Tennessee, for the appellant, Nicos Broadnax.

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

                                       OPINION

                                         FACTS

       The Petitioner was convicted of aggravated robbery and sentenced to eleven years
in the Department of Correction. His conviction was affirmed by this court on direct
appeal and no application for permission to appeal to the Tennessee Supreme Court was
filed. State v. Nicos Broadnax and Aaron Cook, No. W2014-00506-CCA-R3-CD, 2015
WL 2374607, at *1 (Tenn. Crim. App. May 15, 2015). This court recited the underlying
facts of the case on direct appeal as follows:

              This case arises from the beating and robbery of Oscar Rivera, the
       victim, in October 2011, for which a Shelby County grand jury indicted the
[Petitioner and the co-defendant] for aggravated robbery. At a trial on the
charges, the parties presented the following evidence: The victim testified
that he was forty-seven years old and a restaurant owner. He recalled that
on October 19, 2011, at a little after 11:00 p.m., he was walking on Macon
Road towards Wells Station in Memphis, Tennessee. He explained that he
had parked his truck at a Texaco station on Wells Station and, from there,
walked to a nearby Mexican bakery that he found to be closed. As he
walked back to his truck he heard “some noise” and turned around to see
“three or four black men” behind him.

       The victim testified that the men were yelling and cursing at him, so
he began to run. The victim said that a gun was also aimed at him. As he
ran away from the men, he stumbled and fell to the ground. The victim
said that, after falling, he attempted to turn around to see the men, and one
of the men hit him in the back of the head with the gun. One of the men
demanded money from the victim, and the victim pointed to his back
pocket where he had “a little bit over” $200 in cash. The victim said there
was blood running down his face at this point. One of the men grabbed
both the cash and the victim’s T-Mobile cell phone. The victim said he
“had no option” but to allow the men to take his belongings because they
had a gun pointed at his face, and the men had beaten him. He stated that
the men beat him on his head and face, leaving him in the fetal position on
the ground. He remembered seeing a white car and “somebody yell[ing]
something” before one of the men kicked him “on [his] testicles.”

       The victim testified that he was “in a bad condition,” but, when he
got up off the ground, the men began running away from him. He stated
that he walked toward the gas station. The victim could not provide a
“general description” of his assailants but confirmed that they were
“young,” “African American” men. He said that he never spoke to any of
the assailants. Once he arrived back at the gas station, a “Latin person” told
him that he would call an ambulance. After five minutes, the victim
observed a “white person” talking with the police about the direction in
which his assailants had fled. The victim confirmed that he did not know
any of the men who attacked him and did not owe any of them money. The
victim was taken to the hospital where he stayed overnight and was
released the following day. The victim identified scars on his face and head
that remained from this incident. After his release from the hospital, the
victim stayed home for two weeks recuperating, unable to go to work
during this time.

       On cross-examination by [the Petitioner]’s attorney, the victim said
that the area where this incident occurred was not well-lit. He said that he

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was able to run approximately eight to ten steps before he fell and that the
men reached him quickly after he fell to the ground. The victim described
his fall, saying that he caught himself with his arms before his face hit the
ground. He stated that only two of the men beat him. The victim said that
he believed he was hit in the head with a gun rather than a fist because the
blow caused a laceration.

        On cross-examination by [the co-defendant]’s attorney, the victim
stated that one of the men who approached him that night wore a red t-shirt.
He confirmed that he was unable to identify any of the people involved in
the beating and robbery that night.

       Jeffrey Bartram testified that on October 19, 2011, he was at his
residence on Macon Road. He recalled that he heard “hollering and
screaming” outside and looked out the window in his front door. Outside,
he saw three black men standing over a hispanic man, beating and robbing
him. Mr. Bartram said that he could hear the black men yelling at the
victim to give them “what [the victim] got in [his] pockets.” He observed
the men striking the victim in the face with a silver handgun, and he
watched as the men took a cell phone from the victim. Mr. Bartram called
the police and then stepped outside his house and “everybody scattered.”
He said that two of the men ran down the opposite side of the street on the
sidewalk to a house directly across the street on the corner of Wells Station
and Macon Road. The third man spoke with someone in a vehicle that had
pulled up before running westbound down the middle of Macon Road. Mr.
Bartram said the victim remained on the ground in the fetal position after
his assailants fled. The victim then got up off the ground and “staggered”
toward a Texaco station down the street.

       Mr. Bartram testified that, while still on the telephone with dispatch,
he walked to the Texaco station to check on the victim. He found the
victim inside the store of the gas station “bleeding everywhere.” The
dispatch operator instructed Mr. Bartram to return to his house to wait for
police. The police later arrived and took Mr. Bartram to the Texaco station
where the police had detained several suspects. Mr. Bartram explained that
the beating and robbery occurred next to a street light, so the participants
were “pretty much in the spotlight of the street light.” While at the Texaco
station, Mr. Bartram identified the two suspects that he had observed
beating the victim. He also identified in court [the Petitioner] and [the co-
defendant] as the men he had observed beating and robbing the victim. Mr.
Bartram recalled that one of the assailants wore a “hoodie,” one wore a
striped Polo shirt, and one wore a white shirt. He identified the “hoodie”
that one of the men wore.

                                     -3-
       Mr. Bartram described the involvement of the three men in this
incident as follows:

       They were standing over him, all three of them. [The victim]
       was laying in a ball in the middle of the street and they were
       standing over him just mercilessly beating him. Kicking him,
       punching him. . . . One of them was holding the gun and
       pointing it at [the victim], then they hit [the victim] with it,
       then they’d hold [the gun] on [the victim] for a little bit
       longer, then they hit [the victim] with it again.

        On cross-examination by [the Petitioner]’s attorney, Mr. Bartram
testified that these events occurred around 11:00 p.m. He estimated that the
beating occurred approximately twenty or thirty feet from his front door,
where he was when he saw the incident. Mr. Bartram agreed that he
testified at the preliminary hearing in this matter that [the Petitioner] did not
have the gun but that he could not now recall if [the Petitioner] had
possessed the gun. He confirmed that there was nothing obstructing his
view of the beating and robbery that night. Mr. Bartram stated that he did
not actually see the [Petitioner and the co-defendant] go into the house on
Macon Road but that he watched them enter the yard of that residence.

       Eduardo Rodriguez testified that he worked at the Texaco station on
the night of these events. He recalled that around 11:00 p.m., he observed
“a few young African American guys” running to a house located across
the street from the Texaco station. Five minutes later, he observed the
victim, who appeared to be “disfigured from a beating,” walking toward the
Texaco station. Mr. Rodriguez went outside and attempted to assist the
victim and then called an ambulance.

        Lindsey Johnson testified that, on the night of October 19, 2011, she
was in a house on Macon Road across the street from the Texaco station.
She stated that in the house with her were [the Petitioner], [the co-
defendant], Latasha Payton, and Joseph Washington. She said that she had
known [the co-defendant] for three years and [the Petitioner] for two years
and identified both men in the courtroom. She recalled that around 11:00
p.m., [the Petitioner] and [the co-defendant] entered the house and told Ms.
Johnson that a “Mexican had jumped on” them, and they had gone “over
there and they both beat [the victim’s] a**.” They instructed Ms. Johnson
that, if police arrived, she was to tell the police that “they ain’t heard from
him.” She said the men mentioned a T-Mobile cell phone, and Mr.
Washington responded that he knew how to “unlock it.” Ms. Johnson


                                      -4-
stated that she observed a weapon with a black handle inside the residence
that night.

        On cross-examination by [the Petitioner]’s attorney, Ms. Johnson
testified that it was [the co-defendant] who had the victim’s cell phone on
the night of October 19, 2011. Ms. Johnson clarified that she did not see a
gun that night but rather saw a gun grip sitting on a chair before the
[Petitioner and co-defendant] arrived.

       James Moore, a Memphis Police Department officer, testified that he
responded to a house on the corner of Macon Road and Wells Station after
11:00 p.m. on October 19, 2011. Once there, he worked with other officers
to create a perimeter around the residence to ensure that no one entered or
exited the residence. Police officers searched the residence, and upon their
exit, one of the officers observed a hand in the garage. Officer Moore,
along with several other officers, re-entered the residence and went through
the kitchen into the garage. Once in the garage, Officer Moore observed a
person hiding under a tarp, and he took this person into custody. Officer
Moore identified [the co-defendant] as the person found in the garage.
Another suspect was also found in the garage and a third individual was
found at the scene but not inside the garage.

       Justin Sheriff, a Memphis Police Department officer, testified that he
conducted the crime scene investigation of the residence at the intersection
of Macon Road and Wells Station. At this location was a single story
residence with white trim. Other police officers had already secured the
residence by the time Officer Sheriff arrived. Officer Sheriff photographed
a stainless steel pistol that the police had found behind a washing machine
and dryer inside the residence. Officer Sheriff opened up the cylinder of
the pistol and found live rounds inside the cylinder. In a bedroom of the
residence, Officer Sheriff collected a purple bag that had twelve rounds of
.38 special ammunition inside it.           Officer Sheriff identified other
photographs that he took at the scene. One of the photographs depicted a
pistol grip that police officers found in the refrigerator, separate from the
weapon.

        Officer Sheriff testified that the pistol was a Ruger SP101. He
identified a photograph of the pistol and the serial number on the pistol.
Officer Sheriff identified the five “live rounds” taken from inside the pistol.

       On cross-examination by [the Petitioner]’s attorney, Officer Sheriff
confirmed that the pistol was found inside a sock behind the washer and
dryer. He did not recall any blood being on the sock or on the pistol.

                                     -5-
       Adrian Friday, a Memphis Police Department officer, testified that
he was dispatched to a robbery near Macon Road and Wells Station. When
he arrived, police officers had already surrounded the house. When the
homeowner exited his residence, Officer Friday provided him with a
consent to search form, which the homeowner signed. After receiving the
consent to search, four police officers went inside to search the residence.
After a short period of time, two of the officers returned outside and asked
Officer Friday if he would assist in the search. As Officer Friday
approached the front door of the house from the south end of the outside of
the house, he shone his flashlight through the garage window and observed
“an arm of a male black” “sticking out.” He alerted the other officers that
someone was hiding inside the garage, and the officers made entry into the
garage through the house.

       Officer Friday testified that one male was found by the garage door
and the other was hiding inside a pile of trash bags and clothes. Both men
were taken into custody and escorted out of the residence. Officer Friday
recalled that [the co-defendant] was one of the men taken into custody and
that he was wearing a blue “hoodie” at the time of his arrest. After the men
were taken out of the residence, police officers continued to search the
residence for a gun. Officer Friday said that he found “the butt of the gun”
inside the bottom right drawer of the refrigerator and the “main J frame” of
the gun “up under a washing machine” inside a white sock. Officer Friday
estimated that the garage door was approximately three feet from the
washing machine and dryer.

       Glenn Barber, a Memphis Police Department officer, testified that
three suspects were developed in this case: [the Petitioner], [the co-
defendant], and Joseph Washington. Sergeant Barber said that he
interviewed [the Petitioner] and [the co-defendant]. During the interview,
[the Petitioner] stated that he was involved in the robbery and “a [cell
phone] was taken.” He told police that he saw the victim walking down
Macon Road and chased him. The victim fell to the ground after being
struck one time by [the Petitioner]. Once on the ground, the victim was hit
three or four more times. [The Petitioner] told the police that, after the
incident, he went to “Joe’s house” where he gave the gun, a silver .38
revolver with a black handle, to “Lindsey.” [The Petitioner] stated that he
had the gun in his waistband at the time of the robbery but used his fist to
punch the victim. When he saw police outside the house, he hid inside the
garage.



                                    -6-
              Sergeant Barber testified that [the co-defendant] said that he was
       having a bad day and “someone” told him he should release his frustration
       by engaging in a fight. [The co-defendant] stated that he saw the victim
       walking down Macon Road and began to run behind the victim. The victim
       also began running and, when [the co-defendant] caught up to the victim,
       the victim was already on the ground. [The co-defendant] explained the
       blood on his clothing by telling Sergeant Barber that the victim attempted
       to pull up off the ground by holding on to [the co-defendant]. [The co-
       defendant] then went to “Joe’s house and was handed a cell phone.”
       Sergeant Barber recalled that [the co-defendant] told him that, once he was
       back at the residence, “people were asking why he was kind of nervous,”
       and [the co-defendant] responded that “he just got in a fight with a
       Mexican.” [The co-defendant] told Sergeant Barber that, when he noticed
       the police were outside the residence, he threw the cell phone on the bed
       and hid in the garage. When asked if [the co-defendant] ever “mention[ed]
       anything about a weapon,” Sergeant Barber responded, “[h]e said it was a
       silver .38 revolver.” [The co-defendant] denied any involvement in a
       robbery when questioned by the police.

             Based on this evidence, the jury convicted [the Petitioner] and [the
       co-defendant] of aggravated robbery.

Id. at *1-5.

        In a pro se petition and an amended petition filed by post-conviction counsel, the
Petitioner alleged that he received ineffective assistance of counsel because, among other
reasons, trial counsel conceded in his opening statement that the Petitioner was guilty of
the lesser-included offense of robbery. The trial court conducted an evidentiary hearing
on the petition at which the Petitioner provided the only testimony.1 We confine our
recitation of the testimony from the hearing to that relevant to the issue on appeal.

        The Petitioner testified that in opening statement, trial counsel “basically called
[him] guilty of simple robbery in front of the [j]ury without [his] permission.” Upon
further questioning, the Petitioner claimed that counsel did not discuss a strategy with
him prior to trial and “never discussed a defense with [him].” He complained that
counsel had “[n]ever” come to see him in custody and “never even returned any of [his]
phone calls while [he] was incarcerated down here.” Instead, he stated that counsel only
visited him “[f]or about 20 minutes” on the day prior to trial and did not visit him in the
jail during the course of trial. The Petitioner said that he “didn’t agree with [counsel] that
[counsel] should have said [he] w[as] guilty [at] the outset,” and counsel did not have his
permission to say that he was guilty of robbery in his opening statement.

       1
           The Petitioner’s trial counsel was deceased at the time of the evidentiary hearing.

                                                     -7-
       On cross-examination, the Petitioner agreed that he admitted his involvement in
his statement to police. He also admitted that he had brief conversations with counsel
during his eight court settings leading up to trial, although he maintained that counsel
never discussed defense strategy.

        At the close of the evidentiary hearing, the post-conviction court entered a written
order denying the Petitioner’s petition. In relevant part, the court found that trial counsel
“met with [the] [P]etitioner on several occasions prior to trial[] and developed a defense
strategy to attempt to minimize [the] [P]etitioner’s role in the events based in part upon
[the] [P]etitioner’s confession that was given to the police.” The court noted in its ruling
that after the hearing, the Petitioner’s counsel delivered a copy of a recent United States
Supreme Court opinion, McCoy v. Louisiana, 138 S. Ct. 1500 (2018), and asked the court
to take it into consideration. The Petitioner’s counsel asserted that trial counsel was “per
se ineffective based on the opinion[.]” The post-conviction court determined that the
holding in McCoy was not applicable to the Petitioner’s case because “nothing in the
record shows that [the] [P]etitioner made a clear assertion of his innocence or made an
objection to this particular defense strategy[.]” Accordingly, the post-conviction court
determined that relief was not warranted.

                                       ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court erred in denying his
petition because he did not consent to trial counsel’s admission of guilt to robbery in
opening statement, violating his “right to decide on the objective of his defense.”

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). However, review of a trial
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

      The Sixth Amendment to the United States Constitution and Article I, Section 9 of
the Tennessee Constitution both guarantee a criminal defendant the right to assistance of
counsel. However, “[t]o gain assistance, a defendant need not surrender control entirely
to counsel. For the Sixth Amendment, in ‘grant[ing] to the accused personally the right

                                            -8-
to make his defense,’ ‘speaks of the assistance of counsel, and an assistant, however
expert, is still an assistant.’” McCoy, 138 S. Ct. at 1508 (quoting Faretta v. California,
422 U.S. 806, 819-20 (1975)). It is within counsel’s purview to make decisions
concerning trial management, such as “what arguments to pursue, what evidentiary
objections to raise, and what agreements to conclude regarding the admission of
evidence.” Gonzalez v. United States, 553 U.S. 242, 248 (2008) (internal citations
omitted). In contrast, a defendant “has the ultimate authority to make certain
fundamental decisions regarding the case, as to whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal[.]” Jones v. Barnes, 463 U.S. 745, 751
(1983).

       “Autonomy to decide that the objective of the defense is to assert innocence
belongs in this latter category.” McCoy, 138 S. Ct. at 1508. As such, “a defendant has
the right to insist that counsel refrain from admitting guilt.” Id. at 1505. In other words,
“[w]hen a client expressly asserts that the objective of ‘his defen[s]e’ is to maintain
innocence of the charged criminal acts, his lawyer must abide by that objective and may
not override it by conceding guilt.” Id. at 1509. However, counsel’s strategic choice to
concede partial guilt “is not impeded by any blanket rule [in a capital case] demanding
the defendant’s explicit consent” when the defendant is unresponsive. Florida v. Nixon,
543 U.S. 175, 192 (2004).

        “Because a [defendant]’s autonomy, not counsel’s competence, is in issue, we do
not apply our ineffective-assistance-of-counsel jurisprudence[.]” McCoy, 138 S. Ct. at
1510-11. Rather, “[v]iolation of a defendant’s Sixth Amendment-secured autonomy
ranks as error of the kind our decisions have called ‘structural,’” and a petitioner is
entitled to relief when he or she can show that counsel “usurp[ed] control of an issue
within [a petitioner]’s sole prerogative.” Id. at 1511.

       Relying on McCoy, 138 S. Ct. 1500, the Petitioner takes issue with trial counsel’s
concession of guilt in his opening statement. However, McCoy does not entitle the
Petitioner to relief. In McCoy, the petitioner “opposed [counsel]’s assertion of his guilt at
every opportunity, before and during trial, both in conference with his lawyer and in open
court.” Id. at 1509. Whereas here, the post-conviction court determined that “nothing in
the record shows that [the] [P]etitioner made a clear assertion of his innocence or made
an objection to this particular defense strategy.” Moreover, trial counsel did not concede
the Petitioner’s guilt to the primary offense at any time. Furthermore, the post-conviction
court implicitly discredited the Petitioner’s claim that he did not agree to conceding
involvement in the robbery by its finding that trial counsel “met with [the] [P]etitioner on
several occasions prior to trial, and developed a defense strategy to attempt to minimize
[the] [P]etitioner’s role in the events based in part upon [the] [P]etitioner’s confession
that was given to the police.”            Based on the post-conviction court’s factual
determinations, it appears that the decision to partially admit involvement was an agreed-
upon trial strategy likely made due to the identification of the Petitioner and his own

                                            -9-
statement to police. We conclude that the Petitioner’s protected right to autonomy was
not violated by counsel’s partial admission of guilt, and the Petitioner is not entitled to
relief.

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the post-conviction
court’s denial of the petition for post-conviction relief.




                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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