                                                                                                              01/29/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs September 17, 2019

      DEMARCUS LASHAWN BLACKMAN v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Marshall County
                       No. 2018-CR-75 Franklin L. Russell, Judge
                         ___________________________________

                                No. M2018-02230-CCA-R3-PC
                            ___________________________________

The Petitioner, Demarcus Lashawn Blackmun, was convicted by a Marshall County jury
of the sale and delivery of .5 grams or more of cocaine, which were merged by the trial
court, and received a sentence twelve years’ incarceration. State v. Demarcus Lashawn
Blackman, No. M2016-01098-CCA-R3-CD, 2017 WL 3084852, at *1 (Tenn. Crim. App.
July 20, 2017). He later filed a petition seeking post-conviction relief, alleging that trial
counsel were ineffective in failing to obtain the criminal history of the confidential
informant (CI) and in failing to adequately investigate the crime scene.1 Following an
evidentiary hearing, the post-conviction court denied relief, and the Petitioner now
appeals. Discerning no error, we affirm.

   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 JOHN EVERETT
WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.

Joseph C, Johnson, Fayetteville, Tennessee, for the Petitioner, Demarcus Lashawn
Blackman.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Robert J. Carter, District Attorney General; and Drew
Wright and William Bottoms, Assistant District Attorneys General, for the Appellee,
State of Tennessee.

                                                 OPINION

        1
           At the evidentiary hearing, the Petitioner also argued that lead counsel and co-counsel were
ineffective in failing to “insist that the entirety of the audio recording of the sale be played for the jury”
and in failing to call a certain witness at trial. Neither of these issues are included as grounds for relief in
this appeal.
       The facts giving rise to the Petitioner’s convictions resulted from a single,
controlled drug transaction, which was arranged and monitored by the Drug Task Force
(DTF) in Lewisburg County, Tennessee. A CI working for the DTF testified that he
knew the Petitioner before the drug transaction and that he called the Petitioner to arrange
to buy drugs from him on the day of the offense. Three phone calls of conversations
between the CI and the Petitioner were admitted into evidence at trial. The CI testified
that he purchased a gram of powder cocaine from the Petitioner in exchange for $100 of
pre-marked money given to him by the DTF. Jose Rameriz, a sheriff’s deputy assigned
to the DTF, testified and confirmed that he observed the CI “touch hands with the
individual involved with the transaction.” In addition, the DTF assistant director testified
that he supervised the instant controlled drug transaction and that he observed a “hand-to-
hand exchange between [the CI] and the individual, later identified as the [Petitioner].”
Demarcus Lashawn Blackman, 2017 WL 3084852, at *1-2.

       Following his conviction and sentence, the Petitioner appealed. As relevant here,
the Petitioner argued on direct appeal that the evidence was insufficient to sustain his
drug convictions because the DTF agents did not see him “hand [the CI] the drugs;” and
did not “thoroughly search [the CI]” prior to the drug transaction. In addition, the
Petitioner argued that the evidence was insufficient because it was based on the testimony
of the CI, a thief and convicted felon. This court affirmed, holding that the evidence was
more than sufficient to sustain the Petitioner’s drug convictions. Id.

       On April 1, 2018, the Petitioner, acting pro se, filed a petition seeking post-
conviction relief, alleging ineffective assistance of counsel based on trial counsels’ failure
to “investigate the informant’s criminal history,” which prevented adequate impeachment
of the informant; and trial counsels’ failure to adequately investigate the crime scene
location, asserting that the agent’s line of sight was obscured by a dumpster and a high
wall. The post-conviction court subsequently appointed counsel, an amended petition
was filed on August 7, 2018, and the same issues from the pro se petition were
incorporated therein.

        On October 19, 2018, the post-conviction court conducted an evidentiary hearing.
The Petitioner testified and introduced eight photographs of the Summit Apartments
complex, the location where he met the CI on the day of the offense. The complex was
shaped like an “L,” with two separate doors--a brown door and a clear glass door. The
brown door led into a stairwell, while the glass door led into a hallway. The Petitioner
testified that trial counsel did not visit or take any photographs of the area. He also
alleged that trial counsel did not obtain the CI’s prior criminal history, and that he failed
to properly cross-examine the CI. On cross-examination, the Petitioner conceded that

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trial counsel visited him several times prior to his trial, and that they attempted to
impeach the CI with his prior felony convictions.

        Lead counsel testified that the Petitioner was “a very hands-on client” and that he
and his co-counsel had spent as much time on this case as some murder cases. Lead
counsel obtained the criminal history of the CI; however, the CI did not have any drug-
related prior convictions. Lead counsel attempted to emphasize the CI’s prior conviction
for attempted aggravated robbery, but he was stopped from venturing into the specific
facts by the trial judge. On cross-examination, lead counsel testified that he did not have
personal knowledge of the Summit Apartments, but that his co-counsel did. Lead
counsel agreed that the CI was a poor witness for the State. However, lead counsel
opined that the CI’s credibility was bolstered by the two law enforcement officers who
also witnessed the drug transaction.

       Co-counsel testified consistently with the lead counsel. He explained that they
met numerous times with the Petitioner and talked through defense strategy at length.
Co-counsel recalled that lead counsel extensively questioned the CI as an unreliable
witness, even though he did not have any drug-related convictions. He also testified that
he had had several clients at the Summit Apartments and was familiar with the area. In
preparation for trial, co-counsel did not revisit the apartments, but he did look at the
geography on a satellite map to reacquaint himself with area. On cross-examination, he
admitted that “a brown door and a clear door are very different doors.”

        Agent Ramirez, who previously testified at trial that he observed the CI “touch
hands with the individual involved with the transaction[,]” was called to testify by the
Petitioner. Agent Ramirez said that he had parked in the parking lot behind Summit
Apartments and had a clear line of sight to the drug transaction. He was not able to see
the brown door and was not aware that it existed. He also testified that the dumpster in
the photographs admitted by the Petitioner had been moved or was in a different location
at the time of the offense.

       The Petitioner recalled himself as a witness, and he began to challenge the
sufficiency of the evidence. The post-conviction court reminded him that this issue had
already been litigated and that he should focus on his ineffective assistance claim. He
then expressed a general dissatisfaction with his representation and felt that he would not
be in prison had his attorneys done more, but he was unable to articulate what he believed
they should have done. Post-conviction counsel did not ask him any questions on recall
and allowed him to express his grievances in a narrative response. The Petitioner had
intended to call an additional witness, but they were not transported to the hearing despite
a transport order by the post-conviction court. The post-conviction court nevertheless
found that the witness would not be able to give relevant or admissible testimony and
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refused to allow an extension for his appearance. Similarly, the post-conviction court
refused to grant an extension to call the CI as a witness since the Petitioner had not
requested that he be transported, and it was unlikely he would have any new testimony.

        By memorandum order issued on November 19, 2019, the post-conviction court
denied relief, reasoning in pertinent part, that the State and defense counsel put forth the
informant’s criminal history at trial, that the Petitioner failed to provide any evidence of
additional criminal convictions of the CI, and that there was no evidence that a “personal
visit to the parking lot” of Summit Apartments, “the epicenter of crime” in Lewisburg
County, would have yielded more information for the defense to have engaged in a more
thorough cross-examination of the DTF agents. It is from this order that the Petitioner
timely appeals.

                                           ANALYSIS

       The Petitioner contends that the post-conviction court erred in denying relief. He
specifically argues that trial counsel were ineffective in failing to properly investigate the
criminal background of the CI and in failing to investigate the apartment complex where
the drug sale occurred. In response, the State contends that the Petitioner failed to
establish deficient performance or prejudice; thus, the post-conviction court properly
denied relief.

       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. Tenn. Code Ann. §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); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
                                            -4-
(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 order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish by clear and convincing evidence that (1) his lawyer’s performance was
deficient and (2) the deficient performance prejudiced the defense. Vaughn, 202 S.W.3d
at 116 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); Strickland v.
Washington, 466 U.S. 668, 687 (1984)). A petitioner successfully demonstrates deficient
performance when the petitioner establishes that his attorney’s conduct fell “below an
objective standard of reasonableness under prevailing professional norms.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (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). “Because a petitioner must establish 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.” Id.

        Applying the above law to this case, we conclude that the Petitioner is not entitled
to relief. The Petitioner argues that had trial counsel obtained and investigated the
criminal history of the CI, they would have been able to more effectively engage in cross-
examination and impeach the credibility of the CI. However, at the post-conviction
hearing, lead counsel and co-counsel testified that they did, in fact, obtain the criminal
history of the CI. Both the State and trial counsel questioned the CI extensively about his
prior felony conviction and his theft from the DTF. Lead counsel cross-examined the CI
about his criminal history such that the trial court ordered lead counsel to move on to a
different line of questioning. Both trial counsel and the post-conviction court opined that
the CI was a poor witness who consistently contradicted himself. The post-conviction
court determined that the CI was unable to recall basic facts about the transaction, had a
history of stealing from the police, had a felony conviction, was well versed in drug
culture and language, and had a financial interest in securing more arrests and convictions
for the DTF. Given these flaws in the credibility of the CI, the post-conviction court
determined that any further impeachment would have been duplicative and would not
have addressed the fact that multiple law enforcement officers corroborated the CI’s
testimony. Moreover, the Petitioner failed to present any evidence establishing that the
CI had any additional criminal history. Based on this record, the post-conviction court
determined, and we agree, that the Petitioner failed to establish deficient performance or
prejudice to his case. He is not entitled to relief on this issue.
                                           -5-
        The Petitioner also argues that had trial counsel visited the Summit Apartments,
they would have been able to more adequately cross-examine the agents who witnessed
the drug transaction about their line of sight. At the post-conviction hearing, co-counsel
testified that he was familiar with the Summit Apartments and that he refreshed his
memory of the site by looking at an aerial map prior to trial. Based on his prior
knowledge of this location, lead counsel and co-counsel were able to thoroughly cross-
examine the CI as well as the agents who witnessed the drug transaction regarding their
line of sight. Although the Petitioner attempted to discredit Agent Ramirez with
photographs of the location, Agent Ramirez pointed out that the dumpster in the
Petitioner’s photographs, which would have obstructed his line of sight, was not in the
same position as it was during the drug transaction. The post-conviction court
determined that a personal visit to the parking lot of the Summit Apartments would not
have yielded additional evidence. The record does not preponderate against the
determination of the post-conviction court. Accordingly, the Petitioner has failed to
establish deficient performance or prejudice. He is not entitled to relief.

                                        CONCLUSION

      For the above reasons, we affirm the judgment of the post-conviction court.




                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




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