                                                                                          10/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 14, 2018

                   JASON LYLES v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Maury County
                      No. 22121 Stella L. Hargrove, Judge
                     ___________________________________

                           No. M2017-01786-CCA-R3-PC
                       ___________________________________


The petitioner, Jason Lyles, appeals the denial of his post-conviction petition, arguing the
post-conviction court erred in finding he received effective assistance of counsel at trial.
After our review of the record, briefs, and applicable law, we affirm the judgment of the
post-conviction court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER
and D. KELLY THOMAS, JR., JJ., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Jason Dewitt Lyles.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Brent A. Cooper, District Attorney General; and Patrick Powell, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              Facts and Procedural History

       In 2013, a Maury County jury convicted the petitioner of two counts of facilitating
the sale of more than 0.5 grams of cocaine within a drug-free zone, Class C felonies
(counts one and two); one count of selling more than 0.5 grams of cocaine within a drug-
free zone, a Class B felony (count three); and one count of selling more than 0.5 grams of
cocaine, a Class B felony (count four). The trial court sentenced him to concurrent terms
of three years on count one, three years on count two, and eight years on count three,
each at 100% release eligibility, as well as a consecutive sentence of ten years on count
four, which was suspended to probation. The three-year sentences for counts one and
two were later amended to remove the drug-free zone enhancement. On direct appeal,
this Court affirmed the petitioner’s conviction and summarized the facts, as follows:

              The State called Special Agent Forensic Scientist John Scott as its
      first witness, and the trial court accepted him as an expert in the field of
      forensic chemistry with a concentration in the identification of controlled
      substances. Special Agent Scott identified the two samples of “chunky
      powder” that were submitted to him as cocaine, a Schedule II controlled
      substance, and recorded their individual weights as 0.66 grams and 0.74
      grams. Special Agent Forensic Scientist Jennifer Sullivan testified next and
      was also accepted by the trial court as an expert in the field of forensic
      science with a concentration in the identification of controlled substances.
      Special Agent Sullivan identified one sample of an unknown substance that
      was submitted to her as cocaine, a Schedule II controlled substance, and
      recorded the individual weight as 1.03 grams. Special Agent Forensic
      Scientist Glen Jay Glenn, who was also accepted by the trial court as an
      expert in the field of forensic science with a concentration in the
      identification of controlled substances, tested the fourth sample and
      identified it as cocaine, a Schedule II controlled substance, with a weight of
      0.86 grams. The State established the chain of custody for the above
      evidence through the testimony of Columbia Police Department Officer
      Jeremy Humphrey.

             The State called Kevin Odie1 as its next witness. Mr. Odie had three
      felony drug charges pending at the time of trial and had three prior
      convictions for drug-related offenses, one of which resulted in an eleven-
      year prison sentence. For that reason, Mr. Odie sought out Officer Jason
      Dark with the Columbia Police Department and offered to assist him in
      undercover drug operations. Accordingly, Officer Dark asked Mr. Odie to
      “make a few buys,” and Mr. Odie named individuals, including [the
      petitioner], from whom he believed he could purchase either marijuana or
      cocaine.

             Mr. Odie testified that prior to June 15, 2012, he spoke with [the
      petitioner] about purchasing a gram of “powder” cocaine. A price was set,
      and a meet was scheduled. On that date, Mr. Odie met with Officer Dark to
      prepare for the buy. Officer Dark searched Mr. Odie’s vehicle and his
      person and provided Mr. Odie with the money to purchase the drugs. Mr.
      Odie was also equipped with a surveillance device that captured both audio

      1
          Mr. Odie is also referred to as Kevin Otey throughout the record.
                                               -2-
and video of the transaction. He then drove to the home of [the
petitioner’s] sister to complete the transaction. When Mr. Odie drove up,
[the petitioner] told him that the person from whom he had ordered the
cocaine was going to bring it to Mr. Odie. The person delivering the drugs
was allegedly traveling from Franklin to Columbia for the transaction. The
surveillance showed the [petitioner] and Mr. Odie waiting for the person
from Franklin to arrive.

       Mr. Odie stated that while they waited, he and [the petitioner] drove
to an address on Elaine Drive to attempt to purchase cocaine from someone
there. Mr. Odie waited in his car while [the petitioner] walked up to a
residence and returned with what he said was a gram of powder cocaine.
[The petitioner] asked Mr. Odie what he intended to do with the cocaine,
and Mr. Odie told him that he planned to sell it. Mr. Odie explained that he
said that to [the petitioner] so that he would not have to share it with him.
Mr. Odie and [the petitioner] then drove back to [the petitioner’s] sister’s
residence.

       Mr. Odie testified that after he left the residence, he contacted
Officer Dark to let him know that the transaction had been completed. He
met with the officer and relinquished the cocaine. Mr. Odie explained that
the reason that [the petitioner] was not clearly pictured in the surveillance
video during the time they drove to Elaine Drive was that he did not want it
to appear obvious that he was wearing a recording device, which was
placed on his left side. He explained that with the placement of the camera
on his left side and with [the petitioner] in the passenger seat of the car, it
was difficult to record [the petitioner] without “revealing” himself.

       On June 20, 2012, Mr. Odie again met with Officer Dark to prepare
for an undercover buy from [the petitioner]. Officer Dark followed the
same procedures as before and attached the recording device to Mr. Odie in
the same location. Mr. Odie stated that [the petitioner] gave him a price for
the cocaine and instructed him to meet at [the petitioner’s] mother’s house,
which was “[o]ut by Brown School.” Because Mr. Odie was unfamiliar
with the location, he telephoned [the petitioner] for directions while en
route. After picking up [the petitioner] from his mother’s location, Mr.
Odie and [the petitioner] again drove to Elaine Drive, where [the petitioner]
walked up to the residence as Mr. Odie remained in the vehicle. Mr. Odie
can be heard on the audio tape instructing [the petitioner] to “not be in there
all day” because it was hot outside. When the transaction was completed

                                     -3-
and [the petitioner] returned to the vehicle with the cocaine, they drove to
[the petitioner’s] sister’s residence.

       Mr. Odie testified that on June 28, 2012, he and Officer Dark
followed the same procedure and utilized the same recording device as in
the previous transactions. This time, Mr. Odie picked up [the petitioner]
from the dry cleaner where he was employed and drove him to his mother’s
residence. When Mr. Odie arrived at the dry cleaner, [the petitioner] had
possession of the cocaine, and Mr. Odie paid him the agreed-upon price
when they reached his mother’s residence.

        Mr. Odie stated that the last transaction in which he participated with
[the petitioner] occurred on July 10, 2012. Following the same procedures,
Mr. Odie planned to meet [the petitioner] at his sister’s house, where the
first transaction occurred. Officer Dark instructed Mr. Odie to attempt to
obtain a better video image of [the petitioner] because the previous three
videos did not clearly show [the petitioner’s] face. When Mr. Odie arrived
at the designated location, [the petitioner] walked out to Mr. Odie’s car, and
they conducted the transaction surreptitiously through the driver’s side
window of the vehicle. When it was complete, Mr. Odie left and met with
Officer Dark.

       Mr. Odie confirmed that following each transaction, he immediately
met with Officer Dark and turned over the drugs and that he never tampered
with or used any of the drugs himself. He also acknowledged that by
helping Officer Dark, he hoped to avoid incarceration. Mr. Odie professed
that he had changed his life and that he did not want to miss out on his
“destiny” and time with his daughter. He also confessed that he was a
former member of the Vice Lords gang but reiterated that he was no longer
involved with them. He said that he had stopped selling drugs and that he
no longer even socialized with gang members. Mr. Odie said that he
assisted Officer Dark in obtaining over forty indictments for drug activity.

        On cross-examination, defense counsel questioned Mr. Odie with
respect to the lack of a clear video depiction of [the petitioner’s] face during
the first drug transaction. Mr. Odie explained that “if you move a certain
way or anything like that, that person, if he’s smart enough, . . . could tell . .
. that object that you’re using to record them.” He stated that the recording
device was in his watch, which he wore on his left hand, and that he could
not “just flip this camera over like that[ ] to where they’re going to see
what’s going on.” With regard to the second transaction, Mr. Odie
                                      -4-
explained that [the petitioner] suggested the meeting place near Brown
School and that he merely followed [the petitioner’s] instructions.

       The State’s next witness was Detective Jason Dark with the
Columbia Police Department. Prior to becoming a detective in 2013, he
was an investigator in the narcotics division. Detective Dark testified that it
was common for the narcotics division to utilize confidential informants
(“CI”) who were trying to stay out of prison for their own drug charges.
When a CI is involved in a drug operation, an officer would meet the CI
and search him to be sure he did not have any drugs or money in his
possession. The officer would also search the CI’s vehicle. The officer
would provide an electronic listening device to monitor the CI’s safety and
video and audio recording equipment, if possible. Before giving money to
the CI to purchase drugs, the officer would photocopy the money.
Detective Dark stated that he would give the CI a wristwatch containing the
recording equipment and that he would allow the CI to choose where to
place it. He would instruct the CI to act as “normal as possible.”

       Detective Dark said that when conducting a transaction, the officer
in charge knew where the meet was supposed to occur but that it was not
unusual for the meeting place to change during the operation. In fact, he
characterized it as “normal” for the location to change during controlled
buys. In this case, Detective Dark followed Mr. Odie as closely as possible
without being “obvious.” He explained that the listening device transmitted
what was happening at the current time, whereas the recording device did
not emit a signal that could be monitored. The listening device was used
solely for the safety of the CI, and for that reason, Detective Dark needed to
be close enough to hear everything and to be able to react if anything
should go wrong.

       Detective Dark clarified that although he was on Elaine Drive, he
was not able to observe the first drug transaction. When Mr. Odie returned
to the police department, Detective Dark recovered the cocaine and briefly
interviewed Mr. Odie. Thereafter, he logged the cocaine into evidence. He
confirmed that the evidence from the first transaction was the cocaine that
weighed 0.66 grams per the TBI laboratory.

       Detective Dark and Mr. Odie followed the same procedures for the
three other drug transaction. The weight of the cocaine from the second
transaction was 0.74 grams; from the third transaction, 1.03 grams; and
from the fourth transaction, 0.86 grams.
                                     -5-
              Prior to the fourth transaction, Detective Dark emphasized to Mr.
       Odie the importance of capturing [the petitioner’s] image on the recording
       device. He also explained that when analyzing a video for evidentiary
       purposes, he looked “beyond the obvious of the recording[ ] and start[ed]
       relying on mirrors, reflections, anything to help . . . tie in who’s in that
       vehicle with your informant.” While the first three videos contained
       glimpses of [the petitioner’s] body or clothing, Mr. Odie was successful in
       capturing a clear image of [the petitioner’s] face in the fourth video.
       Detective Dark explained that experienced sellers of drugs could exchange
       money for drugs very quickly and practically without notice.

              Detective Dark confirmed that the transactions that occurred on
       Elaine Drive fell within a drug-free zone because it was within 1,000 feet of
       New Harvest Child Care Agency. The residence of [the petitioner’s]
       mother was on Cord Drive, which was within 1,000 feet of a Columbia city
       park. The final transaction at [the petitioner’s] sister’s residence on
       Granada Drive did not fall within a drug-free zone.

              Upon this evidence, the jury convicted [the petitioner] of the lesser-
       included offenses of facilitation of the sale of cocaine in a drug-free zone in
       counts one and two and convicted him as charged in counts three and four.

State v. Jason Lyles, No. M2013-02618-CCA-R3-CD, 2015 WL 3533719, *1-4 (Tenn.
Crim. App. June 5, 2015).

       After the denial of his direct appeal, the petitioner filed a timely pro se petition for
post-conviction relief. In the petition, the petitioner alleged numerous claims of
ineffective assistance of counsel. The petitioner subsequently hired counsel and filed an
amended petition, alleging trial counsel was ineffective for failing to sever the
petitioner’s counts for trial. The post-conviction court held an evidentiary hearing during
which trial counsel testified.

        Trial counsel testified that he reviewed the videos from each of the drug sales.
While he recognized he could have filed a motion to sever the four-count indictment for
trial, he testified he made the strategic decision not to do so for two reasons: (1) he
believed the motion would be unsuccessful based on his review of Tennessee law and (2)
he believed trying all counts together enhanced his argument that the petitioner’s actions
amounted to no more than facilitation.



                                             -6-
        Concerning the legal basis for severance, trial counsel agreed there was no proof
of a signature crime or common scheme or plan regarding the four transactions. In
addition, there was no evidence Mr. Odie and the petitioner planned more than one
transaction at a time. Trial counsel testified there was nothing about the petitioner that
indicated he was a drug dealer. The petitioner worked full-time, lived with his long-time
girlfriend and children, and did not have any drugs or drug paraphernalia in his home
when he was arrested. Although he did not recall discussing the possibility of severance
with the petitioner, trial counsel did emphasize the likelihood of conviction and his
recommendation the petitioner accept a plea deal. However, the petitioner refused to
accept a plea deal and chose to go to trial because he believed Mr. Odie would not testify
against him.

        When questioned about his trial strategy, trial counsel testified his strategy was to
get all four counts down to facilitation. Trial counsel noted the first three videos did not
show a transaction take place between the petitioner and Mr. Odie, but the fourth video
showed both the petitioner and the transaction. As such, trial counsel agreed the evidence
in support of count four was the strongest based on the videos. He acknowledged the
weaknesses of counts one, two, and three would be more glaring without the video
evidence supporting count four which bolstered the credibility of Mr. Odie. Trial counsel
believed the jury could infer facilitation on all four counts “based on the facts and
circumstances of the four counts as a whole.” Trial counsel agreed severance would not
have barred the use of a facilitation defense on any of the counts. However, the argument
for facilitation on counts three and four would have been weakened because there was no
proof anyone else delivered the drugs to the petitioner and he could not use the first two
transactions to strengthen the argument.

       Trial counsel told the petitioner he would likely be convicted of all counts if Mr.
Odie testified and “did a good job articulating the facts.” Trial counsel acknowledged
Mr. Odie was a good witness and, if the jury found him credible, the petitioner could
have been convicted on his testimony alone. According to trial counsel, the petitioner did
not think Mr. Odie would testify against him because they were good friends and distant
cousins. In addition, the petitioner was no longer involved in selling drugs and only
helped Mr. Odie obtain the cocaine because Mr. Odie’s grandmother had recently died
and the petitioner felt sorry for him.

       Finally, trial counsel testified the petitioner did not profit from any of the
transactions with Mr. Odie, the petitioner was no longer actively selling drugs, and the
petitioner wanted to help Mr. Odie because he felt bad for him. However, trial counsel
did not want the petitioner to testify because it would open the door for him to be
questioned concerning a prior drug conviction.

                                            -7-
       After its review of the evidence presented, the post-conviction court denied the
petition. This timely appeal followed.

                                         Analysis

       On appeal, the petitioner argues trial counsel was ineffective for not filing a
motion to sever the four-count indictment for trial. The State contends the post-
conviction court properly denied the post-conviction petition because trial counsel’s
decision was strategic and based on informed preparation. Following our review of the
record and submission of the parties, we agree with the State and affirm the judgment of
the post-conviction court.

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The petitioner bears the burden of proving his
post-conviction factual allegations by clear and convincing evidence. See Tenn. Code
Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary
hearing are conclusive on appeal unless the evidence preponderates against them.
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or
reevaluate evidence of purely factual issues. Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). However, appellate review of a trial court’s application of the law to the
facts is de novo, with no presumption of correctness. Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel presents mixed questions of
fact and law. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews
the petitioner’s post-conviction allegations de novo, affording a presumption of
correctness only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
                                           -8-
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

        Here, the petitioner argues trial counsel provided ineffective assistance of counsel
by failing to file a motion to sever the petitioner’s four-count indictment for trial. At the
post-conviction hearing, trial counsel explained his strategy regarding the decision to
keep the petitioner’s counts joined, as follows:

              I thought that we had a good shot, especially on the two where he
       went to the third-party location of getting those down to facilitation, which
       we did. I remember thinking that if we had that proof in, that that allowed
       us the opportunity to argue to the jury that similar circumstances occurred
       on the two counts where [the petitioner] already had the drugs, just that the
       video didn’t show him going to that third-party location earlier in the day
       and that perhaps we would get a verdict of facilitation on all counts.

       ...

              [I] just tried to put -- I just tried to put the best theory and strategy
       together that I could to try the cases, and that’s what we did.
                                            -9-
        Trial counsel testified he contemplated severing the four counts but decided
against it after reviewing the issue and case law. He did not believe a motion to sever
would be successful based on his studying of the applicable law. Therefore, he decided
to center his defense strategy around obtaining facilitation verdicts on all counts. Trial
counsel’s strategic and tactical choices will not be second guessed when those choices are
based on informed preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Simply
because trial counsel’s strategy was unsuccessful or even hurt the defense does not render
the assistance ineffective. Id. The post-conviction court found trial counsel “fully
attempted to put forward the best defense theory and strategy possible.” We agree. The
petitioner has failed to show by clear and convincing evidence how trial counsel’s failure
to file a motion to sever constituted ineffective assistance of counsel. See Strickland, 466
U.S. at 694. The petitioner is not entitled to relief.

                                       Conclusion

      Based upon the foregoing authorities and reasoning, the judgement of the post-
conviction court is affirmed.


                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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