            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 Assigned on Briefs July 20, 2011

            SENTORYIA LAWAND YOUNG v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                        No. 2002-B-952    Mark J. Fishburn, Judge


                    No. M2010-01762-CCA-R3-PC - Filed August 18, 2011


The petitioner, Sentoryia Lawand Young, appeals from the Davidson County Criminal
Court’s denial of his petition for post-conviction relief from his jury conviction of second
degree murder and two convictions of aggravated assault. Following our review, we affirm
the order 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 J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Sentoryia Lawand Young.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Renee Erb, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

              This court, in its opinion on direct appeal of the petitioner’s case, outlined the
evidence presented at the petitioner’s trial. See State v. Sentorya L. Young, No. M2005-
01873-CCA-R3-CD (Tenn. Crim. App., Nashville, May 12, 2008), perm. app. denied (Tenn.
2008).1 Witnesses recounted in the 2004 trial that after an evening patronizing a “strip club”
in 2002, a group of men took two of the female performers to a hotel room to engage in


        1
         In the trial and direct appeal proceeding, the petitioner’s first name is spelled “Sentorya.” This post-
conviction proceeding now on appeal was commenced by the filing of a petition in which the petitioner
spelled his name “Sentoryia.” We use the spelling set forth in the lead process in this collateral attack
proceeding as filed by the petitioner.
sexual activity. Id., slip op. at 2. Later in the night, a dispute arose among some of the men
concerning money missing from the pants of one of the ladies. Id. The dispute culminated
in the petitioner’s shooting three men who were inside a car. Two of the victims were
wounded, and the third died. Id.

               In 2006, the trial court conducted a hearing on the petitioner’s petition for a
writ of error coram nobis in which the petitioner alleged the discovery of new evidence in
the “form of an extraneous and prejudicial chart that went to the jury room during
deliberations.” Id., slip op. at 3. The chart, apparently prepared by the prosecutor, detailed
inconsistencies in the prior statements of trial witness David Clark. Aaron Gray, an “in-court
clerk,” testified that, in his opinion, the “exhibit was not viewed by the jury during its
deliberations.” Id. Chris Austin, the court officer during the trial, testified that his procedure
was to make “sure that only exhibits identified and accepted into evidence went into the jury
room.” When asked specifically about the chart, Mr. Austin testified, “‘What I can say is me
and Mr. Gray followed the procedure, but I know that when I brought the exhibits back that
was not a piece of it or I would’ve make someone aware of it.’” Id., slip op. at 4. The
attorney assigned the task of pursuing the petitioner’s appeal found the chart “[f]olded up
inside” exhibit number seven. Id. Robert J. Windell testified that he was an intern working
in the public defender’s office and that he participated in interviewing the jurors who sat on
the petitioner’s trial. A juror from the trial testified that he vividly remembered the unmarked
chart and that he was between “80 and 90 percent certain” that he viewed it in the jury room.
Id. A second juror confirmed either seeing the unmarked chart during jury deliberations or
hearing it discussed during deliberations. Id

                In the petitioner’s post-conviction evidentiary hearing, one of his trial attorneys
testified for the petitioner that she moved for and received a mistrial in the petitioner’s first
trial because a State witness referred to the petitioner’s parole status during the witness’
testimony. She testified that she did not move to dismiss the case following the declaration
of the mistrial and that she represented the petitioner in the second trial. She testified that,
in selecting the jury for the second trial, she realized that if she used all of her peremptory
juror challenges the trial court would exhaust the venire pool before a jury could be
empaneled. She said that because she did not know what would happen in that circumstance,
she “made a decision not to continue forward with [her] preemptories [sic] based on being
afraid of the unknown.” She recalled one prospective juror who announced his belief in front
of the entire jury pool that anyone who killed another should be put “on death row” based
upon the prospective juror’s witnessing as a young child the rape and murder of his mother.
Counsel did not recall whether the trial court dismissed this prospective juror for cause. She
also recalled that the prospective juror’s story was emotionally compelling and prompted
other prospective jurors to relate their encounters with crime. One such person had a son
who had been shot 11 times. Counsel did not move to strike the remainder of the venire who

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heard these personal declarations.

                Counsel recalled that one juror slept frequently during the trial. Counsel
testified that she could not recall bringing the issue to the court’s attention. Counsel testified
that she did not know how much the sleeping juror actually slept during the trial.

              On cross-examination, counsel agreed that she desired “to see [the petitioner’s]
case reversed.” She denied that she had “design[ed]” her testimony to that end.

              She testified that at the time of the petitioner’s first trial, she did not know the
difference between a mistrial with prejudice and one without prejudice.

                Counsel agreed that she did not attempt to impeach Mr. Austin when he
testified in the hearing on the petition for writ of error coram nobis. She “thought that calling
the judge’s court officer a liar probably would’ve been a (unintelligible) with the judge.” She
said that she “did not want to cast aspersions on the court officer.” She recalled that, in its
order denying coram nobis relief, the trial court “relied heavily on Mr. Austin” and that that
“did strike hard at [her], since [she] had not impeached Mr. Austin.”

               Co-counsel for the petitioner during his trial testified for the petitioner that she
recalled an issue arising after trial pertaining to a “chart” that had been sent to the jury room
during deliberations despite the chart’s not having been admitted into evidence. She testified
that she asked the court officer, Chris Austin, about the chart and that an office intern was
present during this conversation. Mr. Austin told co-counsel that he did not recall what
happened “with the chart” and that he would have followed “normal procedures.”

               Rob Wendell, an attorney in Richmond, Virginia, testified in the post-
conviction hearing that in 2006 he interned with the Metropolitan Nashville Office of the
Public Defender and assisted in the defense of the petitioner.2 Mr. Wendell recalled
participating in the interview of the court officer, Chris Austin, and that he and co-counsel
showed the “chart” to Mr. Austin and asked him whether he recalled the chart’s being
included in the exhibits that went to the jury room. Mr. Wendell testified that Mr. Austin
“didn’t have a specific memory one way or the other.” Mr. Austin did state that it was his
procedure to exclude items that were not admitted into evidence from the materials that went
to the jury room. Mr. Wendell agreed that counsel and/or co-counsel had been aware of Mr.
Austin’s responses and that, during his testimony in the coram nobis hearing, he was not
asked about Mr. Austin’s prior statements.


        2
          Apparently, Mr. Wendell was the same person who testified in the hearing on the petition for writ
of error coram nobis and who, in the transcript of that hearing, was referred to as “Robert J. Windell.”

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                On appeal, the petitioner advances claims of ineffective assistance of trial
counsel. In his brief, he enumerates his counsels’ failure to seek a double-jeopardy-based
bar of the retrial following a mistrial, to utilize available peremptory jury challenges, to move
to strike a jury pool that had been subjected to prejudicial comments by prospective jurors,
and to impeach the testimony of court officer Chris Austin during his testimony in a hearing
on the petitioner’s petition for coram nobis relief.

               The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). 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).

                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,” 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.
 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

                                               -4-
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).

             We will review the petitioner’s appellate claims of ineffective assistance of
counsel according to the specific act or omission claimed.

                        1. Failure to Seek a Mistrial with Prejudice

               In its memorandum opinion, the post-conviction court concluded that trial
counsel was “motivated to seek the mistrial as a result of Officer Chad Mahoney’s blatant
disregard of the [c]ourt’s admonitions and instructions, which were clear and unequivocal.”
The court found no evidence that the prosecutor was “complicit in the acts of the officer” or
that any tactical advantage could be gained by the State by prompting a mistrial. The court
determined that the petitioner could not have supported a claim that his retrial was barred by
principles of double jeopardy.

              We agree.

                A retrial of a defendant following the declaration of a mistrial may implicate
concerns for a violation of principles of double jeopardy. Both the federal and state
constitutions protect an accused from being “twice put in jeopardy of life or limb” for “the
same offence.” U.S. Const. Amend. V; Tenn. Const. art. 1, sec. 10. When a mistrial is
declared without the consent of the accused and without the manifest necessity of a mistrial,
retrial is barred by double jeopardy principles. State v. Skelton, 77 S.W.3d 791, 798-99
(Tenn. Crim. App. 2001); see State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991) (“Generally a mistrial will be declared in a criminal case only when there is a ‘manifest
necessity’ requiring such action by the trial judge.”). “The purpose for declaring a mistrial
is to correct damage done to the judicial process when some event has occurred which
precludes an impartial verdict.” Id.

                As a component of this constitutional protection, an accused has the right “to
have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689 (1949).
Nevertheless, the protection is not absolute in the sense of guaranteeing the enforcement of
the criminal laws in one proceeding. See Oregon v. Kennedy, 456 U.S. 667, 672 (1982).
That is, double jeopardy principles do “not go so far as to compel society to so mobilize its
decision making resources that it will be prepared to assure the defendant a single proceeding
free from harmful governmental or judicial error.” United States v. Jorn, 400 U.S. 470, 484
(1971). Trial errors, in other words, are addressed through a defendant’s right to appeal, not
the double jeopardy clause. See Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir.), cert.

                                              -5-
denied, 502 U.S. 106 (1991).

                Considering the interests sought to be protected by the double jeopardy clause,
it logically follows that if a defendant requests a mistrial, he gives up the right to a verdict
by the empaneled jury. Double jeopardy principles, it is recognized, do not bar a retrial in
that situation. See United States v. Dinitz, 424 U.S. 600, 606-11 (1976). An exception to this
general rule exists, however, in the very limited context when prosecutorial misconduct
supplies grounds for a defense motion for mistrial, and the misconduct “was intended to
provoke the defendant into moving for a mistrial.” Kennedy, 456 U.S. at 679. “Only where
the governmental conduct in question is intended to ‘goad’ the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a second trial after having
succeeded in aborting the first on his own motion.” Kennedy, 456 U.S. at 675. This standard
“merely calls for the court to make a finding of fact.” Id. To emphasize the point, the
Supreme Court stated,

              We do not by this opinion lay down a flat rule that where a
              defendant in a criminal trial successfully moves for a mistrial, he
              may not thereafter invoke the bar of double jeopardy against a
              second trial. But we do hold that the circumstances under which
              such a defendant may invoke the bar of double jeopardy in a
              second effort to try him are limited to those cases in which the
              conduct giving rise to the successful motion for a mistrial was
              intended to provoke the defendant into moving for a mistrial.

Id. at 678. The standard set forth in Oregon v. Kennedy has been adopted in Tennessee and
would have controlled in the petitioner’s case. See State v. Tucker, 728 S.W.2d 27, 32 (Tenn.
Crim. App. 1986).

               Whether to grant a mistrial is an issue entrusted to the sound discretion of the
trial court. See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). The
burden of establishing the necessity for mistrial lies with the party seeking it. State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

              Although Tennessee courts do not apply any exacting standard for determining
when a mistrial is necessary after a witness has injected improper testimony, we have often
considered (1) whether the improper testimony resulted from questioning by the State, rather
than having been a gratuitous declaration, (2) the relative strength or weakness of the State’s
proof, and (3) whether the trial court promptly gave a curative instruction. See State v.
William Dotson, No. 03C01-9803-CC-00105, slip op. at 9 (Tenn. Crim. App., Knoxville,
June 4, 1999).

                                              -6-
               The post-conviction court found that the petitioner failed to show by clear and
convincing evidence in the post-conviction proceeding that he would have or could have
prevailed on a pretrial double jeopardy argument. The court concluded that, had the double
jeopardy issue been raised prior to retrial, it would have determined that the improper
testimony about the petitioner’s history of parole was a gratuitous declaration and that,
essentially, the State’s case was relatively strong. Based on such findings, we agree that the
petitioner could not have supported a claim that his retrial was barred by principles of double
jeopardy. The upshot of that well-based determination by the post-conviction court is that
the petitioner failed to establish that he was prejudiced by his trial counsels’ failure to raise
the double jeopardy bar prior to retrial.

      2. Failure to Utilize Available Juror Challenges and to Challenge the Venire

              The post-conviction court, in its memorandum opinion, noted that Tennessee
Code Annotated section 22-2-308(a)(2) governs the procedure for obtaining additional
prospective jurors when a regular venire is depleted. Although the court commented that trial
counsel should have known about this provision, it held that the petitioner failed to show
either how he “was prejudiced by counsel’s failure to exercise any additional challenges” or
how the venire was adversely affected when a prospective juror “related the chilling events
of his mother’s rape and murder.” The post-conviction court held that no evidence indicated
that “the remaining jurors were swayed in their ability to be fair and impartial.”

              We agree. Upon the record, we discern no showing of prejudice as a premise
for ineffective assistance of counsel based upon counsel’s failure to exercise additional
peremptory challenges or to object to the empaneling of jurors who heard comments from
prospective jurors.

                    3. Failure to Impeach the Testimony of Chris Austin

              The post-conviction court stated in its memorandum opinion that, in rejecting
the petitioner’s bid to obtain coram nobis relief following trial, the court “evaluated the
merits of the claim assuming the non-existent documents had in fact been erroneously
submitted to the jury and concluded that it would have been harmless because there is no
reasonable basis to believe that the omission of this chart may have led to a different
[verdict].” As noted by this court in Sentorya L. Young, the coram nobis court found that

              the extraneous information was created by the assistant district
              attorney in open court in front of the jury representing a synopsis
              of the witness’ testimony given in open court in front of the jury
              . . . . There is nothing extraneous about what was contained in

                                               -7-
              the document and no inference could be drawn that any of the
              information was endorsed by the district attorney general or the
              Davidson County Grand Jury.

Sentorya L. Young, slip op. at 15. The coram nobis court also opined that the “chart” could
not have brought to the jury’s attention “evidence not otherwise presented to them.” Id., slip
op. at 15-16.

               The post-conviction court also concluded that, based upon the opinion of the
court of criminal appeals, the coram nobis issue was “meritless.” Indeed, the court of
criminal appeals on direct appeal held that the petitioner, as the appellant on direct appeal,
“failed to establish that the subsequently or newly discovered evidence might have resulted
in a different judgment had it been presented at the trial” and that it agreed “with the
rationale provided by the trial court in its extensive and thorough order.” See id., slip op. at
16.

               The issue of trial counsels’ failure to impeach the testimony of Chris Austin
as ineffective assistance of counsel was not previously determined by the trial or appellate
courts, but those courts did determine that the petitioner, in his coram nobis proceeding,
failed to establish that the jury’s exposure to the “chart” may have resulted in a judgment
different from what would have resulted had it been kept from the jury’s view. Because the
withholding of the chart from the jury could not have resulted in a different verdict, coram
nobis relief was not availed to the petitioner, see T.C.A. § 40-26-105, and because coram
nobis relief would not have been granted, the petitioner in his post-conviction proceeding has
failed to establish that he was prejudiced by any deficient performance by counsel in
handling the coram nobis proceeding.

                                          Conclusion

              The result of our analyses is that the record supports the post-conviction court’s
conclusions that the petitioner failed to establish the prejudice requisite to making an
ineffective assistance of counsel claim. Accordingly, the order of the criminal court is
affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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