                                                                                       01/05/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 20, 2016

                 STEVE DUCLAIR v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                         No. C64525 R. Jerry Beck, Judge


                             No. E2016-00856-CCA-R3-PC


The petitioner, Steve Duclair, appeals the denial of post-conviction relief from his 2011
Sullivan County Criminal Court jury convictions of the sale and delivery of .5 grams or
more of cocaine and the sale and delivery of .5 grams of more of cocaine within a drug-
free school zone, for which he received an effective sentence of 15 years. In this appeal,
the petitioner contends only that he was denied the effective assistance of counsel.
Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

David S. Barnette, Jr., Kingsport, Tennessee, for the appellant, Steve Duclair.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Joseph Eugene
Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Sullivan County Criminal Court jury convicted the petitioner of two
counts of the sale of .5 grams or more of cocaine, two counts of the delivery of .5 grams
or more of cocaine, one count of the sale of .5 grams or more of cocaine in a drug-free
school zone, and one count of the delivery of .5 grams or more of cocaine in a drug-free
school zone. The trial court merged the alternative counts and imposed an effective 15-
year sentence. This court affirmed the convictions on direct appeal. See State v. Steve
Duclair, No. E2012-02580-CCA-R3-CD (Tenn. Crim. App., Knoxville, Apr. 23, 2014),
perm. app. denied (Tenn. Oct. 16, 2014).
In Steve Duclair, this court stated the facts of the case as follows:

       In early 2008, Lisa Thompson was contacted by local
authorities about becoming a confidential informant. Ms.
Thompson, at the time, was selling cocaine out of her home to
support her own addiction to the drug. The home was located
next door to Holston View Elementary School in Bristol,
Tennessee.

       Ms. Thompson agreed to plead guilty to selling
cocaine and possession of drug paraphernalia in exchange for
future cooperation as a confidential informant. As a result,
she received a suspended sentenced of three years, to be
served on probation for six years. Ms. Thompson cooperated
fully with authorities, providing assistance with over 100
cases for both the Sullivan County and Bristol vice squads.
Among these transactions were three controlled purchases
from [the petitioner].

       On March 11, 2008, Ms. Thompson called [the
petitioner] two times, attempting to buy drugs. The calls
were recorded. [The petitioner] called her back and indicated
that he would bring the drugs to her house. Ms. Thompson
was supplied with $200 by the police. The transaction was
videotaped.    [The petitioner] came to the house; Ms.
Thompson gave him the $200 in exchange for cocaine
weighing 1.3 grams.

       On March 19, 2008, Ms. Thompson called [the
petitioner] trying to purchase cocaine. The police again
provided her with $200. The transaction was videotaped. On
this occasion, Detective Dennis Lee Ford, Jr. hid in Ms.
Thompson’s living room. [The petitioner] again came to the
residence and exchanged a package of cocaine with Ms.
Thompson for the $200. The cocaine in this instance also
weighed in at 1.3 grams.

       At some point after the March 19 incident, [the
petitioner] called Ms. Thompson to notify her that he had a
new telephone number. On August 15, 2008, Ms. Thompson
made a phone call to [the petitioner]. The call was recorded.
                               -2-
              Ms. Thompson told [the petitioner] she was looking for a
              “bill,” slang for $100 worth of cocaine. Ms. Thompson was
              wired with video equipment during this transaction. For
              some unexplained reason, the equipment failed. [The
              petitioner] provided Ms. Thompson was .6 grams of cocaine
              on this occasion in exchange for the $100.

                    Ms. Thompson’s home was located within 1,000 feet
              of Holston View Elementary School in Bristol, Tennessee.

                     ....

                     At trial, [the petitioner] stipulated that the sale or
              delivery of cocaine occurred within 1,000 feet of Holston
              View Elementary School.

              On December 19, 2014, the petitioner filed, pro se, a timely petition for
post-conviction relief, alleging, inter alia, that he was deprived of the effective assistance
of counsel. Following the appointment of counsel and the amendment of the petition, the
post-conviction court conducted an evidentiary hearing on March 29, 2016.

              At the evidentiary hearing, trial counsel testified that, during the course of
his representation, he and the petitioner communicated a “tremendous amount.” Trial
counsel explained that the petitioner was out on bond prior to trial and that counsel spoke
with the petitioner and his family members “constantly” about the case. Trial counsel
provided the petitioner with all of his discovery materials, and the two met and discussed
the video recordings.

              With respect to plea negotiations, trial counsel testified that the State
offered the petitioner an eight-year sentence, which the petitioner declined. Trial counsel
stated that he discussed possible defenses with the petitioner and that the petitioner
agreed with counsel’s strategy of arguing to the jury that the petitioner “should receive no
more time than [Ms. Thompson] did for the same act.” Counsel explained that he would
present to the jury the “situation where it looked like she was receiving [a] benefit
because she was a white woman and – and he didn’t receive any because he was a black
man.” Trial counsel conceded that he and the petitioner had discussed the possibility of
an entrapment defense:

                      And I explained to him what entrapment was, what
              you had to prove, how difficult it was. But I also told him
              that if he wanted to do that, we would do that. But there was
                                             -3-
              one major problem with that, and that was that they had a
              recording where he had spoken with this lady about selling to
              her in Virginia. And he knew that. I mean, it wasn’t . . .

                     It was a recording that the State had. If – if I had
              raised entrapment, then they would have brought that
              recording in here, and we wouldn’t have had a shot.

Trial counsel further explained that this recording would have been “relevant to [the
petitioner’s] prior disposition to sell cocaine.” Trial counsel also testified that the audio
and video recordings of the conversations between Ms. Thompson and the petitioner
“were very clear that that was [the petitioner], that there was absolutely no question as to
why he was there or what he was doing.”

               Trial counsel stated that he had difficulty overcoming the petitioner’s
having given Ms. Thompson his new cellular telephone number, noting that the count
related to the August cocaine sale was the “only count we lost,” meaning it was the only
count in which the jury found the petitioner guilty as charged. Trial counsel testified that
his “whole hope” was “to try to get this down to a probatable sentence,” which he was
“able to do that on two counts” but was “not able to do it on the third count.” Trial
counsel stated that, although he was unable to make a true jury nullification argument,
“you can sure kind of skirt around the edges” and he “almost pulled it off.”

             When questioned about his admission to the jury that the petitioner had sold
the cocaine to Ms. Thompson, trial counsel acknowledged having done so, stating as
follows:

              I had seen the videos. And I think it’s very important to – not
              to lie to a jury right off the bat. I mean, there’s no question
              that [the petitioner] was the gentleman in the video, and he
              was also the gentleman seated beside me at trial. And I – one
              thing I’ve learned is you need to try to engender trust from
              the jury as soon as possible, so you better be honest with
              them.

Trial counsel acknowledged that he had discussed this strategy with the petitioner:

              I told him, I said, “Steve, you know, we got to admit it. It’s
              on tape. I mean, we can’t deny it. They got – they got us.” I
              can’t make him look any different than what he is.

                                            -4-
                     ....

                     I – my recollection, there’s one [video] that I recall
              didn’t show a hand-off. I think [it] showed a movement and
              money.

                     As I said, [the petitioner] was not talkative [on the
              videos] at all. And there was no discussion other than the
              audio that was in front of the jury which, quite frankly, any
              reasonable person would assume that was a drug transaction.

                      But I want to make it perfectly clear that there’s no
              question I – I didn’t have an entrapment defense because my
              client had already stated that I sold – you know, that they sold
              in Virginia and he wanted her to come over there and she
              wouldn’t do it. And he came to Tennessee.

                     When I say “Virginia,” it was Bristol, Virginia.

                 Trial counsel also testified that the petitioner had made the decision not to
testify at trial.

               On cross-examination, trial counsel admitted that he was aware that the
petitioner knew Ms. Thompson because “she had purchased cocaine from him on
multiple occasions before she began working for the police.”              Trial counsel
acknowledged that, with respect to the March drug transactions, he had been successful
“getting this school zone [charge] dropped” or “not found by the jury,” but that he had
not been so fortunate with the August transaction because the petitioner had contacted
Ms. Thompson to give her his new telephone number. Trial counsel conceded that he
was also aware that, when the petitioner was arrested in December 2008, officers found
“a substantial amount of cocaine” in his residence and nearly $2,000 in cash, which
would have “open[ed] the door to the State’s being able to show that this man had
cocaine on other occasions” had trial counsel attempted to argue entrapment.

               Trial counsel testified that he had been practicing law for approximately 40
years and that 98 percent of his practice was devoted to criminal law, having tried “many,
many jury trials in which individuals were charged with selling drugs.” Trial counsel
tried to convince the petitioner to accept the offer of eight years, cautioning the petitioner
that a trial was “‘not going to turn out good,’” but the petitioner, after speaking with his
family members, informed trial counsel that he wanted to proceed to trial. Because trial
counsel knew he could not effectively argue that the petitioner did not sell drugs to a
                                             -5-
person whose house was located next door to a school, he “simply tried to get the jury to
cut [the petitioner] the same benefit that the State had cut Ms. Thompson based upon her
cooperation.”

               The petitioner testified that he had met with trial counsel “on numerous
occasions” and that trial counsel had provided him with all discovery materials, including
the video recordings, but that counsel never viewed the video recordings with him. The
petitioner explained that he had met Ms. Thompson through a mutual friend named
“Sheila” and that he had asked trial counsel to find Sheila. According to the petitioner,
trial counsel either stated that “she can’t be found or nobody knew where she” was.
When the petitioner broached the topic of an entrapment defense, trial counsel simply
replied with a “cut-and-dry, ‘no,’” with “[n]o explanation, no anything.” The petitioner
brought up entrapment a second time, and trial counsel again dismissed it immediately.
The petitioner testified that, although trial counsel never used the term “jury
nullification,” counsel intended to “appeal to the sensibility of the jurors” and “was going
to bring up the fairness issue.” The petitioner testified that he had no prior drug
convictions.

               Although the petitioner could not recall Sheila’s last name at the time of the
hearing, he stated that he knew it at one time and that he had provided trial counsel with
her last name. The petitioner insisted that he did not recall ever contacting Ms.
Thompson to give her his new telephone number. He also testified that when Ms.
Thompson called him on March 15, she was “harassing” him to provide her with cocaine,
which caused him to question why the defense of entrapment would not have been
available to him.

              On cross-examination, the petitioner explained that the $1,920 which
officers found at the time of his arrest was cash that he had received from “a car
accident” and that the cocaine found at his residence did not belong to him. The
petitioner admitted that, during the time of the March and August drug transactions, he
was not gainfully employed.

               The petitioner conceded that, on each of the three occasions at issue, he
drove to Ms. Thompson’s residence, walked into her home, and took her money in
exchange for his cocaine. The petitioner insisted that he “was doing [Ms. Thompson] a
favor” because she and Sheila were friends. The petitioner also admitted that he had sold
cocaine to Ms. Thompson on one occasion in Bristol, Virginia and that Sheila was not
around on that occasion either. When asked if he had participated in selling cocaine, the
petitioner responded thusly:



                                            -6-
                     I’ve given Lisa Thompson cocaine and she’s given me
              money which gives the appearance that I’m a drug dealer. So
              I can’t say, “Yes, I’ve sold,” ‘cause that just gives the
              impression that I’ve – I’m a – I’m a drug dealer, that I’m
              selling drugs to her.

               With this evidence, the post-conviction court denied relief, finding that
“there [was] not even a suggestion that [the petitioner] was entrapped” and that it
appeared that trial counsel “selected a proper theory and trial strategy.” The court noted
that trial counsel’s “strategy was to attack [Ms. Thompson] and the deal she had got[ten]
for her cooperation” and that, “[a]lthough jury nullification is not a recognized defense,”
trial counsel’s efforts in that regard “appeared to be successful in part considering the
jury’s split verdicts in regard to” finding the petitioner guilty of only one count of selling
cocaine in a drug-free school zone. The post-conviction court stated that it would have
been difficult to rely on an entrapment defense when, prior to the final drug transaction,
“the petitioner called [Ms. Thompson], gave her his new phone number and told her to
call him if she needed anything.” The post-conviction court ultimately concluded that the
petitioner had “failed to establish a prima facie case of entrapment” and had “failed to
establish by clear and convincing evidence that he [was] entitled to post-convict[ion]
relief.”

              In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing to raise the defense
of entrapment and by admitting to the jury that the petitioner had sold cocaine to Ms.
Thompson. The State contends that the court did not err by denying relief.

              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. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal 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).

             Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
                                             -7-
facts clearly and convincingly established by the petitioner, 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
that 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 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 considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). 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).

              A claim of ineffective assistance of counsel is a mixed question of law and
fact. Kendrick, 454 S.W.3d at 457; 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. Kendrick, 454 S.W.3d at 457; Fields, 40
S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               In our view, the record fully supports the ruling of the post-conviction
court. Trial counsel testified – and the trial court implicitly accredited his testimony –
that he had advised the petitioner against pursuing an entrapment defense because of the
extreme difficulty of proving such a defense, given the video recording evidence.
Moreover, trial counsel was aware that if he tried to prove that the petitioner had been
entrapped, the State would have been free to introduce into evidence the recording of the
petitioner’s prior sale of cocaine to Ms. Thompson in Bristol, Virginia, which would have
severely undercut the petitioner’s position that he was not predisposed to sell narcotics.
                                            -8-
Finally, the fact that the petitioner had provided Ms. Thompson with his new cellular
telephone number after twice engaging in video-recorded drug transactions with her
belied his contention that he had been “harass[ed]” into selling cocaine to Ms. Thompson
and further weakened any possible entrapment defense. Likewise, trial counsel’s
decision to tell the jury during opening statement that the petitioner had “sold, on three
occasions, cocaine to” Ms. Thompson was based on his belief that it was best to “be
honest with” the jury in the hope of appealing to the jurors’ sense of fairness. We will
not second-guess these reasonable trial strategies and tactical decisions. See Adkins, 911
S.W.2d at 347. Furthermore, given the substantial evidence against the petitioner, he
cannot establish that, but for counsel’s alleged errors, the outcome would have differed.
See Strickland, 466 U.S. at 694. As such, we hold the petitioner has failed to prove by
clear and convincing evidence that trial counsel’s representation was deficient or
prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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