                                                                                       03/16/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 4, 2020

               DONDRE JOHNSON V. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 14-01032       Chris Craft, Judge
                     ___________________________________

                          No. W2019-00741-CCA-R3-PC
                      ___________________________________


The Petitioner, Dondre Johnson, was convicted of first degree felony murder and
received a life sentence. He filed a post-conviction petition, asserting that he received
ineffective assistance of counsel because his trial counsel did not file a motion to
suppress the evidence stemming from his seizure. After a thorough review of the record,
we affirm the post-conviction court’s judgment denying relief.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.

Terrell Tooten, Cordova, Tennessee, for the appellant, Dondre Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Petitioner’s conviction is the result of his participation in an attempted
robbery and the fatal shooting of an innocent victim in downtown Memphis on August
12, 2013. Law enforcement apprehended the Petitioner and two co-defendants in a
vehicle shortly after the crime, and the State’s evidence consisted in part of evidence
obtained in the course of the seizure, including physical evidence recovered from the
vehicle and inculpatory statements made by the Petitioner and one of the co-defendants,
Ms. Jerrica Norfleet.

                                           Trial

       Three bystanders witnessed the murder and testified at trial. One testified that he
heard a gunshot and saw a man flee into a car; another testified that she saw the shooting
and witnessed two men jump into a light green or gray Pontiac; the third testified that she
heard a shot and saw a woman and two men flee in a “‘green Grand Am.’” State v.
Dondre Johnson, No. W2015-02401-CCA-R3-CD, 2017 WL 937661, at *1 (Tenn. Crim.
App. Mar. 8, 2017).

        The Petitioner and his two co-defendants were apprehended shortly thereafter by
Officer Ashton Britton of the Memphis Police Department, who testified that he had
received a call on his radio alerting him about the shooting and describing the vehicle.
Id. at *2. Our opinion on direct appeal summarized his testimony regarding the seizure
as follows:

       Officer Britton proceeded to the nearby Foote Homes area to drive around
       and look for the car. In the parking lot of the Foote Homes apartment
       complex, Officer Britton saw a car with its parking lights on. Officer
       Britton testified that, in his experience, this was unusual, and there had
       been a lot of recent car break-ins in the area, so he proceeded to investigate
       further. Officer Britton testified that the car appeared to be unoccupied but,
       upon approaching the car, he saw “the top of an individual’s head, duck
       down into the vehicle.” Officer Britton then drew his gun and told the
       individuals in the car to put their hands up. At that point, Officer Britton
       testified that he realized their car matched the description of the earlier
       broadcast and he called for backup. Officer Britton testified that the
       individual in the front seat kept dropping his hands and the individual in the
       back seat attempted to get out of the car. Officer Britton testified that he
       told them if they got out of the car he would shoot them. Officer Britton
       identified the [Petitioner] at trial as the individual sitting in the back
       passenger seat who tried to open the door.

Id.

       As a result of the seizure and subsequent search of the vehicle, the State obtained a
wealth of information implicating the three in the murder. A weapon found in the vehicle
was determined to have fired the shot which killed the victim. Id. at *4. The vehicle also
contained a ski mask. Id. at *2. Ms. Norfleet, who was the girlfriend of co-defendant
                                           -2-
Mr. Mario Patterson and who was charged as an accessory after the fact, gave a statement
to police and testimony at trial regarding the events that led to the crime, including the
fact that the Petitioner and Mr. Patterson were looking to commit a robbery, that they had
initially targeted and then rejected other randomly chosen victims, that the Petitioner was
wielding the gun, and that the Petitioner summarized the shooting by saying, “‘That
n**** said, get the [f***] out of here, I should have got personal and shot that n****
three more times.’” Id. at *3. Ms. Norfleet also identified a photograph she had taken on
her cell phone which depicted the Petitioner wearing the ski mask and holding the gun
immediately before the murder. Id. at *2. She stated she had seen the Petitioner once or
twice but was not acquainted with him prior to that night. Id.

        After he was apprehended, the Petitioner gave a statement acknowledging that he
and the co-defendants were attempting to rob the victim and that he shot the victim. Id.
at *3-4. According to the Petitioner’s statement, the Petitioner decided to flee in the
middle of the attempted robbery, and the gun discharged as the Petitioner was beginning
to flee. Id. at *4. The Petitioner also stated that Mr. Patterson had given him the gun and
mask because Mr. Patterson needed money. Id.

        The jury convicted the Petitioner of first degree felony murder, and he received a
life sentence. Id. at *5. On appeal, he challenged the sufficiency of the evidence, and
this court affirmed the conviction. Id. at *6.

                              Post-Conviction Proceedings

        The Petitioner filed a post-conviction petition alleging various errors on the part of
trial counsel. He was appointed post-conviction counsel and filed an amended petition
incorporating his pro se petition and asserting that he received ineffective assistance of
counsel because trial counsel did not move to suppress all of the evidence which resulted
from Officer Britton’s seizure of the suspects and the vehicle.

       At the hearing, trial counsel testified that she did not recall whether she had filed a
motion to suppress and that the record would reflect whether she did. She stated that her
general practice was to speak to clients about the circumstances of their arrest or any
statement and to file a motion to suppress if she thought there were grounds to challenge
the evidence, and she testified that she followed that practice in this case. She recalled
that several witnesses had described the vehicle and that a description of the vehicle was
released to law enforcement. Trial counsel testified that Officer Britton’s initial reason
for approaching the vehicle, which was backed into a parking spot, was that the lights
were on in the middle of the night, and she recalled that Officer Britton subsequently saw
movement in the car.

                                            -3-
      Trial counsel stated that Ms. Norfleet made a statement to police “[a]lmost
immediately upon arrest.” Law enforcement obtained a warrant to search the vehicle and
recovered the mask, gun, and other items. A copy of the search warrant for a gray
Pontiac Grand Am was introduced at the post-conviction hearing.

       Trial counsel elaborated that she saw no legal basis to file a motion to suppress. In
particular, she noted that the Petitioner had no standing to contest the search of the
vehicle, which was owned by Ms. Norfleet, who was also the driver.

       Trial counsel noted that the Petitioner was initially represented by the capital
defense team and that she had access to the capital defense team’s investigation into the
case. Trial counsel attempted to depict the Petitioner as less culpable than Mr. Patterson
because Mr. Patterson had supplied the gun and mask, and trial counsel attempted to
attack the credibility of Ms. Norfleet, who claimed she did not know that the others were
planning a robbery. Trial counsel recalled that the photograph was particularly damaging
and that the crime came across as an act of senseless and random violence because the
victim was a college student walking from a restaurant to his car. The State did not make
any plea offers.

        The Petitioner testified that he was arrested in the back seat of the vehicle and that
the vehicle was parked and not running. When the officer saw them in the car, the officer
drew his gun and told them he would shoot if they moved. The Petitioner testified that no
motion to suppress was filed in his case and that all the statements to law enforcement
were made after he and his co-defendants were arrested in the vehicle. He agreed that the
car belonged to Ms. Norfleet and that she was driving. He also agreed that he ducked
down when he saw Officer Britton and that he was informed of his rights before he gave
his statement.

       The post-conviction court conducted a thorough and detailed analysis of the
Petitioner’s post-conviction claims. Regarding the sole issue raised on appeal, the failure
to file a motion to suppress, the post-conviction court concluded that the physical
evidence was obtained pursuant to a warrant and that the Petitioner had no expectation of
privacy in the vehicle. The post-conviction court also concluded that Officer Britton had
reasonable suspicion to support an investigatory detention based on the fact that the
vehicle was stopped with its lights on and based on his observation that there were
individuals concealing themselves inside the vehicle. The court determined that there
was probable cause to detain the suspects once Officer Britton realized the vehicle and
occupants matched the description of those involved in the robbery and shooting.
Accordingly, the post-conviction court concluded that the motion to suppress would have
been denied and that the Petitioner had not established deficiency or prejudice.

                                            -4-
                                       ANALYSIS

        The Post-Conviction Procedure Act provides for relief when a petitioner’s
conviction or sentence is void or voidable due to the abridgment of a right guaranteed by
the United States Constitution or by the Tennessee Constitution. T.C.A. § 40-30-103.
The Petitioner here claims that his sentence is voidable because he received ineffective
assistance from his trial counsel. A claim of ineffective assistance of counsel is a mixed
question of law and fact. Moore v. State, 485 S.W.3d 411, 419 (Tenn. 2016). An
appellate court reviews de novo with no presumption of correctness the post-conviction
court’s conclusions of law, its determinations of mixed questions of law and fact, and its
application of law to factual findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015). The post-conviction court’s factual findings are conclusive on appeal unless the
record preponderates otherwise. Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). An
appellate court does not reweigh or reevaluate the evidence or substitute its own
inferences for those of the fact-finder. Kendrick, 454 S.W.3d at 457. On appeal, we
defer to the post-conviction court’s findings regarding witness credibility, the weight and
value of witness testimony, and the resolution of factual issues presented by the evidence.
Id. The petitioner bears the burden of demonstrating the allegations of fact entitling him
to relief by clear and convincing evidence. T.C.A. § 40-30-110(f).

        A person accused of a crime is entitled to the assistance of counsel in criminal
proceedings under the Sixth Amendment to the United States Constitution and under
article I, section 9 of the Tennessee Constitution. These provisions guarantee the
reasonably effective assistance of counsel. Nesbit, 452 S.W.3d at 786. The deprivation
of this right is a cognizable claim under the Post-Conviction Procedure Act. Moore, 485
S.W.3d at 418. To prevail on a claim, the petitioner must show that trial counsel’s
representation “‘so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.’” Felts v. State, 354 S.W.3d
266, 276 (Tenn. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). In
order to demonstrate that he received ineffective assistance of counsel, a petitioner must
show both that trial counsel performed deficiently and that the deficient performance
prejudiced the defense. Nesbit, 452 S.W.3d at 786 (citing Strickland, 466 U.S. at 687).
Failure to prove either deficiency or prejudice precludes relief, and the court need not
address both components if the petitioner has failed to make a showing on either. Calvert
v. State, 342 S.W.3d 477, 486 (Tenn. 2011).

       To show deficient performance, a petitioner must demonstrate that “‘counsel’s
representation fell below an objective standard of reasonableness’ guided by
‘professional norms’ prevailing at the time of trial.” Felts, 354 S.W.3d at 276 (quoting
Strickland, 466 U.S. at 688). In other words, the petitioner must demonstrate that
counsel’s errors were “‘so serious that counsel was not functioning as the “counsel”
                                           -5-
guaranteed the defendant by the Sixth Amendment.’” Id. (quoting Strickland, 466 U.S. at
687). Counsel’s performance is not measured by “‘20-20 hindsight.’” Id. at 277 (quoting
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). Instead, the court applies a strong
presumption that counsel’s performance was within the bounds of reasonable
professional assistance. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009).
“‘[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.’” Kendrick, 454 S.W.3d at 458
(quoting Strickland, 466 U.S. at 690-91).

       To show prejudice, a petitioner must establish 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.’” Felts, 354 S.W.3d at 277 (quoting Strickland,
466 U.S. at 694). The question at its core is “‘whether counsel’s deficient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair.’”
Kendrick, 454 S.W.3d at 458 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).

       The Petitioner’s sole issue on appeal is the assertion that trial counsel provided
ineffective assistance when she did not file a motion to suppress the evidence obtained as
a result of Officer Britton’s seizure. “In order to succeed in proving ineffective
assistance of counsel with respect to counsel’s failure to file a motion to suppress the
evidence, [a petitioner] must satisfy both prongs of the Strickland test, showing that
counsel’s failure to file the motion was deficient and that the deficient performance
prejudiced the defense.” Vaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006), abrogated
on other grounds by Brown v. Jordan, 563 S.W.3d 196, 202 (Tenn. 2018). Accordingly,
the Petitioner must demonstrate a reasonable probability that, had the motion been filed,
the outcome of the proceeding would have been different. See Kimmelman v. Morrison,
477 U.S. 365, 375 (1986) (“[T]he defendant must also prove that his Fourth Amendment
claim is meritorious and that there is a reasonable probability that the verdict would have
been different absent the excludable evidence in order to demonstrate actual prejudice.”);
Gary Randall Yarnell v. State, No. E2004-01762-CCA-R3-PC, 2005 WL 1981471, at *5
(Tenn. Crim. App. Aug. 15, 2005) (“To prevail on either or both of these ineffective-
assistance complaints, the petitioner must demonstrate that the motions were
meritorious.”).

       Insofar as the Petitioner asserts trial counsel should have challenged the physical
evidence recovered from the vehicle, we conclude that trial counsel’s decision not to file
a motion to suppress was not deficient or prejudicial because the Petitioner lacked
standing to contest the search. When the accused moves to suppress evidence based on a
                                           -6-
search, he or she bears the burden of establishing standing to challenge the search, or a
reasonable expectation of privacy in the place or thing being searched. State v. Oody,
823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (concluding that the driver of the vehicle
had a reasonable expectation of privacy in the vehicle). In evaluating whether the
accused has standing to contest a search, we examine: 1) ownership of the property; 2)
whether the accused has a possessory interest in the item seized; 3) whether the accused
has a possessory interest in the place searched; 4) whether the accused has a right to
exclude others from that place; 5) whether the accused has demonstrated a subjective
expectation that the place would remain free from governmental invasion; 6) whether the
accused took normal precautions to maintain privacy; and 7) whether the accused was
legitimately on the premises. Id. (citing United States v. Haydel, 649 F.2d 1152 (5th Cir.
1981)).

       The Petitioner was a passenger who had no ownership or possessory interest in the
car, was not driving the car, asserted no possessory interest in the property seized, and
presented no evidence of a subjective expectation of privacy in or ability to exclude
individuals from the car, which belonged to Ms. Norfleet, with whom he was not
acquainted prior to the night of the crime. We conclude the Petitioner did not have
standing to contest the search of the vehicle. See State v. Marvin Wendell Kelley, No.
M2011-02260-CCA-R3-CD, 2013 WL 5827646, at *6 (Tenn. Crim. App. Oct. 29, 2013)
(concluding that the defendant lacked standing to contest the search of the trunk of a
vehicle in which he was a mere passenger); State v. Maurice Lashaun Nash, No. W2001-
01703-CCA-R3-CD, 2002 WL 1905328, at *4 (Tenn. Crim. App. Aug. 14, 2002) (a
passenger who had no possessory interest in the car and who presented no evidence of a
subjective expectation of privacy could not challenge the search), rev’d on other grounds
by State v. Nash, 104 S.W.3d 495 (Tenn. 2003); State v. James David Lamor Perry, No.
E1999-00271-CCA-R3-CD, 2000 WL 1246577, at *5 (Tenn. Crim. App. Sept. 5, 2000)
(concluding that a passenger with no ownership or possessory interest who presented no
evidence of a subjective expectation of privacy did not have standing to challenge the
search of the vehicle); State v. McAdams, 640 S.W.2d 49, 51 (Tenn. Crim. App. 1982)
(the occupants of a vehicle had no standing to contest search when they did not assert any
ownership of the vehicle or of the items seized and showed no reasonable expectation of
privacy in the vehicle)). Accordingly, any motion to suppress would not have resulted in
the suppression at the Petitioner’s trial of the gun which was identified as the weapon
used in the murder or of the photograph of the Petitioner wearing a mask and wielding
the gun shortly before the crime.

       Likewise, the Petitioner would not have succeeded in a challenge to the legality of
Ms. Norfleet’s seizure or to her subsequent testimony. See State v. Strickland, 532
S.W.2d 912, 923 (Tenn. 1975) (concluding that the petitioners lacked standing to
challenge a co-defendant’s confession and subsequent testimony because “[i]llegally
                                          -7-
obtained evidence may be used against one whose rights were not violated in the seizure
of that evidence” and the co-defendant’s testimony was “an independent act of his own
free will sufficient to ‘purge the primary taint’ of the unlawful arrest and subsequent
confession”); State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL
2733821, at *5 (Tenn. Crim. App. Aug. 31, 2009) (quoting United States v. Padilla, 508
U.S. 77, 81-82 (1993), for the proposition that “‘suppression of the product of a Fourth
Amendment violation can be successfully urged only by those whose rights were violated
by the search itself, not by those who are aggrieved solely by the introduction of
damaging evidence’”); 3 Crim. Proc. § 9.1(a) n.5 (4th ed.) (“As for seizure of a person,
one person lacks standing to object to the seizure of another person.”); see also State v.
Austin, 87 S.W.3d 447, 479 (Tenn. 2002) (concluding that “[a] criminal defendant lacks
standing to complain of the violation of a third party’s Fifth Amendment privilege against
self-incrimination” because the right is “personal and cannot be vicariously asserted”)
(appendix). We conclude that trial counsel’s decision not to file a motion to suppress this
evidence was neither deficient nor prejudicial because Ms. Norfleet testified at trial and
because the Petitioner lacked standing to contest the search or the seizure at issue.

        The Petitioner also asserts that trial counsel should have challenged the
admissibility of the Petitioner’s own inculpatory statements based on the alleged
illegality of the seizure. However, we conclude that the Petitioner cannot show prejudice
resulting from trial counsel’s actions. The proof at trial established that the victim was
murdered and that one eyewitness saw a man get into a car, another eyewitness saw the
shooting and saw two men get into a light green or gray Pontiac, and a third eyewitness
saw a woman and two men flee in a “‘green Grand Am.’” The Petitioner and the two
co-defendants, a man and a woman, were apprehended shortly after the crime in a nearby
area attempting to conceal themselves in a gray Pontiac Grand Am. The vehicle
contained the gun used to murder the victim and a photograph of the Petitioner, wielding
the gun and wearing a ski mask, taken shortly before the crime. Ms. Norfleet gave a
statement to police and testified that the Petitioner and Mr. Patterson had planned a
robbery, that the Petitioner was in possession of the gun, and that the Petitioner
acknowledged to her that he shot the victim during the attempted robbery. The Petitioner
was convicted of felony murder committed in the perpetration of attempted robbery. We
conclude that there is not a reasonable probability that the results of the proceeding would
have been different had the Petitioner’s inculpatory statement been excluded. See Davis
v. State, 912 S.W.2d 689, 700 (Tenn. 1995) (concluding that the petitioner failed to
establish that the suppression of his statement would have affected the verdict, especially
in light of the strong physical evidence against him); Edgar Ray Bettis v. State, No.
M2017-01845-CCA-R3-PC, 2018 WL 3342830, at *7 (Tenn. Crim. App. July 9, 2018),
perm. app. denied (Tenn. Nov. 14, 2018) (concluding that the petitioner did not show a
reasonable probability that the suppression of his statement would have affected the
outcome of the trial, given the physical evidence implicating him); Broderick Joseph
                                           -8-
Smith v. State, No. M2012-02705-CCA-R3-PC, 2013 WL 5701657, at *8 (Tenn. Crim.
App. Oct. 18, 2013) (there was no prejudice in the failure to file a motion to suppress
when there was substantial evidence against the petitioner). Because the Petitioner has
not shown prejudice, he is not entitled to relief.

                                   CONCLUSION

     Based on the foregoing facts and analysis, we affirm the post-conviction court’s
judgment.




                                  ___________________________________________
                                  JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                         -9-
