        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 17, 2013

                KENNETH MILLER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                   No. 2007-D-3535    Cheryl Blackburn, Judge




                 No. M2012-01781-CCA-R3-PC - Filed May 20, 2013


The petitioner, Kenneth Miller, appeals the denial of his petition for post-conviction relief
from his Davidson County Criminal Court jury convictions of conspiracy to deliver 300
grams or more of cocaine, delivery of 300 grams or more of cocaine, and possession with
intent to deliver 300 grams or more of cocaine. In this appeal, he contends that he was
denied the effective assistance of counsel at trial. Discerning no error, we affirm the
judgment of the post-conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Kenneth Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                In May 2008, a Davidson County Criminal Court jury convicted the defendant
of conspiracy to deliver 300 grams or more of cocaine, delivery of 300 grams or more of
cocaine, and possession with intent to deliver 300 grams or more of cocaine for his role in
a March 24, 2006 drug deal. This court summarized the evidence presented at the
petitioner’s trial as follows:

              Agent Shelly Smitherman, with the Tennessee Bureau of
Investigation (“TBI”), testified that she was the agent in charge
of the investigation involving [the petitioner and co-defendants],
which began in December 2005. . . .

       Through intercepting . . . phone calls, it was determined
that a drug deal was to take place on March 24, 2006, at the
Rivergate Mall. The [petitioner] was to deliver a kilogram
(“kilo”) of cocaine to an unidentified individual coming from
Kentucky. . . . At 11:34 a.m. on this day, the [petitioner] phoned
[a co-defendant] and asked him to “come and drop it off.” TBI
Special Agent Steve Talley testified that Kavares Davis
(“Davis”) arrived at the [petitioner’s] apartment at 1:34 p.m.

...

        Around 6:30 p.m., officers observed the [petitioner] leave
his apartment in his black Chevrolet Impala, heading toward the
Rivergate area. When he arrived at the mall, the [petitioner]
went inside the food court area and purchased some cookies. He
received a call . . . and then returned to his vehicle. The
[petitioner] drove to the food court entrance, and a man got
inside the vehicle. They drove around to the other side of the
mall and parked near a green Pontiac Grand Am with Kentucky
tags. Detective Herbert Kajihara, with the Twentieth Judicial
Drug Task Force, saw the man who had been in the [the
petitioner’s] car walk back toward the mall. After the
[petitioner] left, Det. Kajihara continued to observe the
Kentucky vehicle. He then saw the same man exit the mall,
along with another male and a female juvenile, and get inside
the car. The individuals were carrying packages.

        Officers followed the green Pontiac to a gas station. At
the gas station, an individual later identified as Ned Wayne
Thompson (“Thompson”), got out of the vehicle and placed
something that looked like a bag in the trunk. When Thompson
left the gas station, the vehicle proceeded onto Interstate 65....
The State did not want to compromise the wiretap investigation,
so the officers proceeded under the auspice that they were
stopping the individuals for a traffic violation, and they obtained
probable cause to search the vehicle due to a K-9 alert. Hidden

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             behind carpeting inside the trunk, officers discovered two
             separately packaged bricks of cocaine, weighing approximately
             two kilograms.

                    . . . During the search of the [petitioner’s] residence,
             police recovered: one kilo of cocaine from the kitchen; 124.5
             grams of cocaine found inside a shoe box in the bathroom;
             $13,000 in cash from the safe; a notebook with drug ledgers,
             including names; some nine millimeter rounds for a handgun;
             and “gunk cans” containing cocaine. Officers also found items
             used to prepare the cocaine for resale--digital scales, a “kilo
             press,” plastic baggies, and a “cutting agent” used to break down
             cocaine. . . .

                     Kavares Davis, initially a co-defendant in this case,
             testified that he had entered a guilty plea to possession of .5
             grams or more of cocaine and received an eight-year sentence
             under the terms of the agreement. The [petitioner] supplied him
             with cocaine at the time of his March 2006 arrest and had done
             so “off and on” for two or three years. . . .

                     Davis went to the [petitioner’s] apartment on the evening
             of March 23, 2006. The [co-defendant] Turner was already
             there; he had brought three bricks or kilos of cocaine for the
             [petitioner], which were sitting on the table. . . .

                   Later [the next] day, the [petitioner] asked Davis to
             follow him to Rivergate Mall to meet Thompson, aka
             “Kentucky.”. . . .

                    Previously, on March 10, 2006, Agent Smitherman saw
             Davis place a trash bag in the dumpster of the [petitioner’s]
             apartment complex. Agent Smitherman pulled the trash and
             found three empty plastic “kilo wrappers,” rubber gloves, a
             “cutting agent,” and a sheet of paper showing a drug ledger.

State v. Kenneth Miller and Ray Junior Turner, No. M2008-02267-CCA-R3-CD, slip op. at
2-4 (Tenn. Crim. App., Nashville, Apr. 22, 2010). This court affirmed the petitioner’s
convictions and accompanying 120-year sentence, see id., slip op. at 1, and our supreme
denied permission to appeal, see State v. Kenneth Miller et al., No. M2008-02267-

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SC-R11-CD (Tenn. Oct. 18, 2010).

               On September 19, 2011, the petitioner filed a timely, pro se petition for post-
conviction relief alleging, among other things, that he was denied the effective assistance of
counsel at trial. Following the appointment of counsel, the petitioner filed an amended
petition for post-conviction relief condensing his claim that he was deprived of the effective
assistance of counsel into specific claims that his trial counsel performed deficiently by
failing to adequately communicate with the petitioner the “nature and consequences of trial
decisions,” failing to consult with the petitioner regarding pretrial motions, and failing to
include the trial court’s denial of his motion to suppress as an issue in his motion for new
trial.

               At the November 16, 2012 evidentiary hearing, the petitioner testified that trial
counsel met with him only once outside court during his pretrial incarceration. That single
meeting, he said, took place two days before trial and lasted for less than one hour. He said
that he was unable to discuss with counsel any of the relevant details of his case. The
petitioner said that he never spoke with counsel via telephone and that counsel failed to reply
to the seven letters that the petitioner wrote to him during the pendency of his case. The
petitioner said that counsel’s only written response came after the petitioner wrote a letter to
the Board of Professional Responsibility to complain that he “was running out of time and
. . . needed documents for the supreme court.”

                The petitioner also testified that trial counsel failed to file a motion to suppress
the fruits of the search of his residence on grounds that the search warrant was defective. He
stated that counsel told him that the motion would not be filed because counsel did not see
any merit to the claim. The petitioner said that counsel did file a motion to suppress evidence
obtained via wiretap but failed to preserve the denial of that motion for appellate review.

               The petitioner claimed that he asked trial counsel to subpoena surveillance
video from Rivergate Mall and that, although he promised to “look into it,” counsel failed
to obtain the footage.

               The petitioner insisted that trial counsel completely failed to prepare for trial.
The petitioner conceded that trial counsel discussed with him his right to testify, but trial
counsel told him that “it wouldn’t look good for [the petitioner] to testify.” The petitioner
said that he wanted to testify and that he communicated to trial counsel his desire to testify,
but trial counsel told him that he “shouldn’t.”

             The petitioner claimed that trial counsel failed to subpoena witnesses that he
wanted to testify on his behalf, including Robin McDaniels, Rochelle Esaw, Lamanz

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McDaniels, Kevin Davis, and Deantha Robinson. He said that most of the witnesses would
be “character witnesses” but that Kevin Davis could have provided evidence relevant to the
issues at trial.

              The petitioner also claimed that his trial counsel performed deficiently at the
sentencing hearing by failing to ask the petitioner questions about his employment and
criminal history. The defendant said that counsel also performed deficiently by failing to
prepare him to testify at the sentencing hearing. The petitioner said that he arranged for
witnesses to appear at the sentencing hearing rather than leaving that task to trial counsel.
He said that despite his securing the attendance of the witnesses, counsel failed to call them
to testify.

               During cross-examination, the petitioner conceded that following his
conviction of the three Class A felonies in this case, he was convicted in another court of
facilitation of second degree murder for his role in murdering a person he believed had
double crossed him in a drug conspiracy.

               The petitioner insisted that the surveillance footage from Rivergate Mall would
have showed that he did not deliver anything to Mr. Thompson. He conceded, however, that
he did not know whether Rivergate Mall had working surveillance cameras on the night of
the drug transaction. When asked what his testimony would have been had he been called
to testify at trial, the petitioner stated simply, “I would have told them exactly what
happened.” He added, however, that he would have admitted to the jury that the cocaine
belonged to him and that the ledgers discovered in his apartment were used to keep track of
“[s]ome drug money, some working money.” The defendant claimed that he was not actually
in the business of selling drugs but was instead “being a broker” and that he would have
explained that role to the jury.

               The petitioner testified that he wanted trial counsel to subpoena witnesses to
establish that Mr. Davis “is a liar.” He said that his fianceé “would [have] explained the
surveillance tapes of The Cove Apartments at that time, how long you keep them, I guess
how long they were staying.” He claimed that surveillance video from the apartments
“would have explained everything that happened, the times and stuff like that.” The
defendant admitted, “Surveillance cameras would have showed [sic] Mr. Turner bring the
kilo of cocaine to my house.”

               The petitioner conceded that “nobody didn’t force” him to testify at the
sentencing hearing and that, instead, counsel “asked [him] to come to the stand and explain
. . . what was in the safe.”



                                             -5-
                Upon questioning by the court, the petitioner acknowledged that counsel did
not prevent him from testifying at trial but instead told the petitioner “that it wouldn’t be .
. . good for the jury to hear [his] side of the story.” The petitioner also conceded that the trial
court asked the petitioner at trial if it was his decision not to testify and that he had responded
in the affirmative. He insisted, however, that he “put [his] head down and hesitated” when
answering the court’s questions during the Momon colloquy. The petitioner also admitted
that he signed a written waiver of his right to testify.

             The petitioner acknowledged that surveillance video from Rivergate Mall
would have confirmed the testimony of the officers. He nevertheless asserted, “It would
prove my theory that how could this have happened? If they would have played the tapes of
Mr. Turner coming to my residence, which I don’t know, again, why he didn’t play it, they
would show still pictures of him coming and leaving.”

               The petitioner contended that the search warrant for his residence was fatally
flawed because the affidavit failed to establish a nexus between his residence and the sale
of drugs. He admitted that trial counsel filed a motion to suppress evidence seized via
wiretap but claimed that counsel failed to “raise the necessity” issue in his motion. When
confronted by the State with the trial court’s order denying the motion to suppress, which
clearly addressed the necessity issue, the petitioner claimed that he had only received a copy
of the order in the days prior to the evidentiary hearing.

              As regards counsel’s conduct of the sentencing hearing, the petitioner said that
“[b]asically” he was dissatisfied with the sentence he received.

              Trial counsel testified that although he could not recall the precise number of
meetings he had with the petitioner, he “felt comfortable going to trial.” Counsel said that
he could not recall if he responded to the petitioner’s written communications, saying, “We
communicated a lot through his fianceé. She would call and kind of be the go between.”
With regard to the petitioner’s claim that counsel failed to subpoena witnesses, counsel said,
“I don’t remember him giving me the name of anybody whose testimony would have been
either admissible or useful at trial.”

                Counsel testified that he “rarely recommend[s] that a defendant take the stand
for various reasons, for no other reason they’re trying to match wits with an experienced
trained prosecutor and they usually don’t fair well in that match up.” He said that “[i]n this
case, there simply wasn’t anything that . . . [the petitioner] could say that was going to help
his case.” He testified that he nevertheless “made clear ultimately it was his call, he could
testify if he wanted to.” Counsel said that he did not recall the petitioner’s expressing a
desire to testify.

                                                -6-
              Counsel testified that he contacted Rivergate Mall concerning the surveillance
video from the night of the drug transaction and learned that “there was things that either
been taped over or not retained.” He said that he did not attempt to obtain surveillance video
from The Cove Apartments because “the police had photographs of Mr. Thompson coming
and going to those apartments.”

               Counsel testified that he did not pursue a motion to suppress evidence seized
pursuant to the search warrant executed at the defendant’s residence because he did not see
any merit in the motion. He explained that evidence police had seized from the defendant’s
trash “would have satisfied [a] magistrate to issue a search warrant” for the defendant’s
residence.

               Regarding the sentencing hearing, trial counsel recalled that the petitioner
“wanted to get on the stand because he had a big problem with the inventory of what was
taken out of the safe did not include some documents.” He said that the petitioner “wanted
the opportunity to explain that . . . he had legitimate employment and he hadn’t been just a
professional criminal.”

              Upon questioning by the court, counsel recalled that the defendant had
surveillance equipment monitoring his residence at the time of the offense but did not
provide counsel with any video footage.

               At the conclusion of the hearing, the post-conviction court took the petition
under advisement. In its written order denying post-conviction relief, the court deemed the
petitioner’s claim that trial counsel failed to adequately meet and communicate with him
“incredulous.” The court added, “[N]ot only does this Court credit Trial Counsel’s testimony
that he investigated and communicated with the Petitioner about the case, but Petitioner was
present at substantive hearings where he heard the State’s evidence against him.” The court
determined that the petitioner did not establish that trial counsel performed deficiently by
failing to subpoena certain witnesses because the petitioner did not present those witnesses
at the evidentiary hearing. The court similarly concluded that “[b]y not articulating what he
would have said as his defense, Petitioner has failed to establish by clear and convincing
evidence that he was prejudiced by not testifying at trial.” The court also specifically
credited trial counsel’s testimony that although he recommended that the petitioner not
testify, he advised the petitioner that the decision was the petitioner’s to make. The court
noted that the written waiver signed by the petitioner, upon which the petitioner had written
“refuse to testify” next to his signature, confirmed that the petitioner knew he had the right
to testify and voluntarily elected not to do so.

              In this appeal, the petitioner asserts that he was denied the effective assistance

                                              -7-
of counsel, claiming that his counsel performed deficiently by failing to adequately prepare
for trial, failing to subpoena witnesses, failing to acquire and review video footage, failing
to adequately communicate to him his right to testify, and failing to file a motion to suppress
based upon alleged infirmities in the search warrant executed at the petitioner’s residence.
The State contends that the petitioner failed to establish by clear and convincing evidence
that his trial counsel performed deficiently.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “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.” T.C.A.§ 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive unless
the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn.1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, 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.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

              Claims of ineffective assistance of counsel are mixed questions of law and fact.

                                              -8-
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67
(Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the
application of law to the post-conviction court’s factual findings, our review is de novo, and
the post-conviction court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v.. England, 19 S.W.3d 762, 766 (Tenn. 2000).

              The evidence does not preponderate against the findings of the post-conviction
court. Although the petitioner contends that counsel failed to adequately prepare for trial,
the post-conviction court specifically accredited counsel’s testimony that he had investigated
the case and was fully prepared to proceed with the trial. The court deemed the petitioner’s
testimony to the contrary “incredulous.”

              As to the petitioner’s claim that trial counsel performed deficiently by failing
to acquire and review video footage, the record establishes that trial counsel attempted to
obtain the footage, but it had been destroyed. More importantly, the petitioner testified that
the surveillance video would have confirmed the testimony of police.

              The petitioner similarly failed to establish that trial counsel failed to adequately
communicate to him his right to testify. The petitioner testified that counsel advised him that
he had the right to testify but counseled him against taking the stand. Such an action does
not equate to deficient performance, particularly considering that the petitioner testified at
the evidentiary hearing that, had he taken the stand at trial, he would have admitted
ownership of the cocaine and his role as a “broker” of illegal drug deals. Moreover, as the
post-conviction court pointed out, the petitioner signed a written waiver of the right to testify
after a thorough Momon colloquy.

               The petitioner failed to establish that trial counsel performed deficiently by
refusing to file a motion to suppress evidence obtained pursuant to the search warrant
executed at the petitioner’s residence because counsel’s accredited testimony established that
such a motion would have been without merit.

               Finally, the petitioner failed to establish that trial counsel performed deficiently
by failing to subpoena witnesses by failing himself to present those witnesses at the
evidentiary hearing. “When a [post-conviction] petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). If he fails to do so, he generally fails to establish ineffective
assistance of counsel. Id. The post-conviction court may not speculate “on the question of
. . . what a witness’s testimony might have been if introduced” at trial. Id.; see also Wade
v. State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995).

                                                -9-
Accordingly, the judgment of the post-conviction court is affirmed.


                                    _________________________________
                                    JAMES CURWOOD WITT, JR., JUDGE




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