        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 14, 2010

                GREGORY L. SAIN v. STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Rutherford County
                         No. F-63338        Don Ash, Judge




                 No. M2010-00654-CCA-R3-PC - Filed April 26, 2011


On January 24, 2006, a jury convicted the petitioner, Gregory L. Sain, of one count of
delivery of a Schedule II drug to a minor, one count of possession of a Schedule II drug with
the intent to deliver, one count of introduction of contraband into a penal facility, one count
of contributing to the delinquency of a minor, and simple possession of marijuana. A panel
of this court affirmed the jury’s verdict and modified the petitioner’s sentence on March 6,
2008. The petitioner sought post-conviction relief and the same was denied pursuant to an
order dated February 19, 2010. On appeal, the petitioner alleges ineffective assistance of
counsel at both the trial and appellate levels. The petitioner claims that counsels’
performance was deficient because: (1) trial counsel failed to request a Batson hearing after
the peremptory challenge of an African American female juror; (2) trial counsel failed to
conduct a proper investigation into the petitioner’s case; (3) trial counsel and appellate
counsel both failed to challenge an improper jury instruction. Upon a thorough review of the
record and the parties’ briefs, 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.C. M CL IN, J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT
W. W EDEMEYER, JJ., joined.

Daryl M. South, Murfreesboro, Tennessee, for the appellant, Gregory L. Sain.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; and William C. Whitesell, Jr., District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION
                                         Background
       The jury convicted the petitioner of one count of delivery of a Schedule II drug to a
minor, a Class B felony, one count of possession of a Schedule II drug with the intent to
deliver, a Class B felony, one count of introduction of contraband into a penal facility, a
Class C felony, one count of contributing to the delinquency of a minor, a Class A
misdemeanor, and simple possession of marijuana, a Class A misdemeanor. Following a
sentencing hearing, the trial court sentenced the petitioner as a Range III, persistent offender,
to twenty years for each Class B felony conviction, ten years for the Class C felony
conviction, and eleven months, twenty-nine days for each misdemeanor conviction. The trial
court ordered that the petitioner serve his sentences concurrently, for an effective sentence
of twenty years. On appeal, this court affirmed the jury’s verdict and modified the
petitioner’s sentence, determining that the petitioner was a career offender. See State v.
Gregory L. Sain, M2006-00865-CCAR3CD, 2008 WL 624924 at *1 (Tenn. Crim. App., at
Nashville, March 6, 2008). The following is a summary of the facts taken from this court’s
opinion on direct appeal:

       Merissa Allen testified that she was born on September 19, 1986, and was
       seventeen years old on September 4, 2004, the date of her encounter with [the
       petitioner]. Ms. Allen said that she went to the Murfreesboro Billiards Club
       to meet friends. Approximately one hour after she arrived at the club, Ms.
       Allen went to the parking lot to get something out of her car. A grey vehicle
       pulled up behind her car. Ms. Allen said that the driver, whom she later
       identified as [the petitioner], was the only occupant of the vehicle. [The
       petitioner] asked Ms. Allen if she knew of any other clubs in the area because
       he had just been evicted from the Country Club. Ms. Allen told [the
       petitioner] that Conrad’s was located in the Holiday Inn next to the interstate.
       Ms. Allen said that [the petitioner] handed her something wrapped in a paper
       towel. [The petitioner] told Ms. Allen to take the package and he would be
       back later. Ms. Allen said that she felt uncomfortable and scared. Ms. Allen
       memorized the license tag number of [the petitioner’s] vehicle before going
       back inside the club.

       Ms. Allen told Dorothy Foster and Rita Dunn, the co-owners of the club, about
       the incident, and Ms. Foster called the police. Officer Sean Patrick Garrison
       with the Murfreesboro Police Department responded to the call approximately
       five to ten minutes later. Ms. Allen gave the package to Officer Garrison and
       told him [the petitioner’s] license tag number. Ms. Allen believed that Officer
       Garrison performed a field test on the substance in the package. Ms. Allen
       said that Officer Garrison then drove to Conrad’s to try to locate [the
       petitioner’s] vehicle.

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Ms. Allen went back inside the club and joined her friends at a table. A few
minutes later, [the petitioner] walked into the Billiards Club and sat down at
the bar. Ms. Allen pointed out [the petitioner] to Ms. Foster. [The petitioner]
then left the club. Officer Garrison returned to the club, and Ms. Allen
identified [the petitioner’s] vehicle as it was leaving the club’s parking lot.
Officer Garrison followed [the petitioner] in his patrol car. A short time later,
Officer Garrison returned to the club with [the petitioner] in the back seat of
his patrol car. Ms. Allen identified [the petitioner] as the person who had
handed her the package earlier that evening.

On cross-examination, Ms. Allen said that her car was parked approximately
thirty to forty feet from the entrance of the club and the parking lot was lit.
Ms. Allen acknowledged that [the petitioner] did not ask for her name, and she
did remember [the petitioner] asking to see her later that night. Ms. Allen said
that [the petitioner] did not ask for any money in exchange for the package.
Ms. Allen said that [the petitioner] did not approach her when he returned to
the Billiards Club.

Officer Garrison testified that he spoke with Ms. Allen who told him that a
man had approached her in the club’s parking lot and had handed her a
wrapped package. Officer Garrison said that Ms. Allen told him that the man
had said that Ms. Allen should come to Conrad’s later if she “wanted to have
a good time because he had $300 worth more with him.” Ms. Allen told
Officer Garrison that the man was an African-American and was driving a
silver car with a Tennessee license tag number of LQD 477. Officer Garrison
said that the package contained a white powdered substance which he believed
was cocaine.

Officer Garrison drove to Conrad’s but did not locate the vehicle described by
Ms. Allen. He returned to the Billiards Club to fill out an offense report, and
Ms. Allen told him that [the petitioner] had returned to the club but had left
again. Officer Garrison and Ms. Allen went outside to fill out the forms. Ms.
Allen told Officer Garrison, “That’s him right there. He’s leaving in his car.”
Officer Garrison observed a silver Mercury Cougar with license tag number
LQD 477 leave the parking lot.

Officer Garrison stated that he was approximately twenty feet from the vehicle.
The drivers’ side window was down, and Officer Garrison identified [the
petitioner] as the driver of the vehicle. [The petitioner] did not stop his vehicle

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when Officer Garrison told him to do so. Officer Garrison got into his patrol
car and activated his emergency equipment and the video tape recorder inside
the vehicle. Officer Garrison followed [the petitioner’s] vehicle through a
restaurant parking lot and on to West College Street. [The petitioner] stopped
his vehicle about nine-tenths of a mile from the Billiards Club.

Officer Garrison asked [the petitioner] what had transpired at the Billiards
Club earlier that night. [The petitioner] acknowledged that he had been at the
club but denied any knowledge of the incident described by Officer Garrison.
Officer Garrison said that [the petitioner’s] pockets contained small torn pieces
of a paper towel that were similar to the paper towel package that Ms. Allen
had showed him. Officer Garrison placed [the petitioner] under arrest and
drove [the petitioner] back to the Billiards Club where Ms. Allen identified
him as the individual who had given her the package earlier that evening.

[The petitioner] was taken to the Rutherford County Sheriff’s Department for
booking. [The petitioner] consented to a search of his person. During the
search, [the petitioner] was asked to bend over and squat. Officer Garrison
said that he observed a clear plastic baggie protruding from [the petitioner’s]
buttocks. [The petitioner] resisted the jail personnel's attempt to remove the
baggie and was pepper sprayed. Two baggies were removed from [the
petitioner] after he was pinned to the ground. The smaller baggie contained
what appeared to be a white powder, and the larger baggie contained
marijuana.

On cross-examination, Officer Garrison said that he did not run a field test to
identify the substance of the package given to Ms. Allen. Officer Garrison
said that he went out to his car to retrieve a property envelope in which to store
the package. Officer Garrison acknowledged that Ms. Allen provided him
more details concerning the motor vehicle driven by [the petitioner] than [the
petitioner’s] personal appearance.

Deputy Charles Owens with the Rutherford County Sheriff’s Department was
on duty when [the petitioner] was brought in for booking on September 4,
2004. Deputy Owens testified that Officer Garrison asked the jail staff to
search [the petitioner]. [The petitioner] was taken into a room and asked to
remove his clothes. Deputy Owens said that [the petitioner] was calm at the
beginning of the search. Deputy Owens observed a clear plastic bag
protruding approximately two inches from [the petitioner]’s buttocks. Deputy
Owens asked [the petitioner] to give them the baggie several times. When [the

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        petitioner] did not comply, Deputy Owens and another jail employee grabbed
        him and tried to retrieve the baggie. [The petitioner] began wrestling with
        them, and all three fell to the floor. After approximately five minutes, Deputy
        Owens sprayed [the petitioner] with Freeze Plus P. Nurse Eric Walker
        removed the baggies after [the petitioner] was subdued.

        Rita Dunn testified that she was working at the Billiards Club on September
        4, 2004. Ms. Dunn said that Ms. Allen came into the club and said that
        someone in the parking lot had given her something. Ms. Dunn took the
        package to the back of the club and called the police.

        Glen Glenn testified that he was a special agent forensic scientist with the
        T.B.I. Agent Glenn said that he received three sealed packets from the
        Rutherford County Sheriff’s Department on August 10, 2005. Two of the
        packets contained a white powder, and the third packet contained plant
        material. Agent Glenn testified that testing of the submitted material on
        August 16, 2005, revealed that packet 01-A contained 0.05 grams of cocaine,
        packet 02-A contained 0.4 grams of cocaine, and packet 02-B contained 1.3
        grams of marijuana. Agent Glenn said that packet 01-A had a piece of paper
        inside the evidence bag, and the cocaine was inside the paper package.

Id. at *1-3.

                                     Post-Conviction Proceedings

       The petitioner filed a timely petition for post-conviction relief on July 1, 2009. After
the appointment of counsel, an amended petition for post-conviction relief was filed on
January 12, 2010. A post-conviction hearing was held on February 16, 2010. At the hearing,
the petitioner explained that in ground one of his original petition for post-conviction relief,
he asserted that his attorney in General Sessions Court1 , failed to provide adequate
representation which was prejudicial to the petitioner. Specifically, the petitioner stated that
his case was “supposed to be settled” in general sessions; however, because his attorney was
in another courtroom handling a different case, the judge refused to hear the plea and the
cases were bound over to the grand jury.

       The petitioner also testified that he informed trial counsel, that he wanted to be
consulted and have input regarding the use of peremptory challenges during jury selection.


        1
           Because the post-conviction in this case pertains to a judgment appealed from in the Circuit Court for
Rutherford County, we are not addressing issues pertaining to General Sessions Court.

                                                      -5-
The petitioner asked trial counsel to request a Batson hearing after the district attorney issued
a peremptory challenge against an African American female juror. However, a Batson
hearing was not conducted. During trial counsel’s cross-examination, he admitted that he
did not have any recollection of the petitioner’s request for a Batson hearing. Trial counsel
also testified that he had no independent memory of the facts associated with the district
attorney’s challenge in order to determine whether a Batson hearing would have been
appropriate.

       The petitioner also testified that trial counsel did not conduct a proper investigation
into the petitioner’s case. Specifically, trial counsel did not conduct an independent
investigation of the scene or interview the victim. In addition, trial counsel failed to
subpoena employees of the Murfreesboro Billiard Club or subpoena surveillance records.
The petitioner noted that this evidence was crucial, given that there was discrepancy in the
testimony at trial as to whether the petitioner approached Ms. Allen. According to the
petitioner, the surveillance would have revealed that he did not approach Ms. Allen. In
addition, the surveillance would have also established that both the petitioner and Ms. Allen
were inside the club. Because the club was an adult facility, which required that patrons be
twenty-one years old to enter, the surveillance would also establish that the petitioner did not
have knowledge that Ms. Allen was a minor.

       The petitioner also challenged trial counsel’s failure to object to improper jury
instructions regarding the charge of delivery of a schedule II drug to a minor. The petitioner
alleged that the instructions misidentified the elements of the offense because they failed to
require the jury to find, beyond a reasonable doubt, that the petitioner had knowledge that the
recipient was a minor. According to the petitioner, Ms. Allen’s age was a crucial issue
throughout the trial. After the trial, the petitioner was represented on appeal by appellate
counsel. The petitioner testified that he asked appellate counsel to challenge the jury
instructions. However, appellate counsel did not address the issue in his appellate brief. The
petitioner argued that the failure of counsel to address the improper jury instructions
constituted ineffective assistance of counsel.

       The petitioner also testified that he was entitled to post-conviction relief based on a
violation of his protection against double jeopardy. The petitioner testified that the same
evidence was used to support the charges of possession with the intent to deliver, simple
possession, and introduction of contraband into a penal facility.

        During trial counsel’s direct examination, he stated that he had been an attorney since
1991. According to trial counsel, in preparation for the petitioner’s case, he requested
discovery from the state and met with the petitioner to discuss the case. During the meeting,
trial counsel showed the petitioner the pleadings and witness list provided by the state. Trial

                                               -6-
counsel stated that he spoke with the petitioner about witnesses that the petitioner wanted to
call. However, trial counsel did not call any witnesses. Instead, he chose to cross-examine
the state’s witnesses.

       After the hearing, the post-conviction court denied post-conviction relief pursuant to
an order dated February 19, 2010. On March 15, 2010, the petitioner filed a timely notice
of appeal.

                                     Standard of Review

       In order for a petitioner to succeed on a post-conviction claim, the petitioner must
prove the allegations set forth in his petition by clear and convincing evidence. Tenn. Code
Ann. § 40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s
findings unless the petitioner proves that the evidence preponderates against those findings.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s
factual findings is de novo with a presumption that the findings are correct. Fields v. State,
40 S.W.3d 450, 457-58 (Tenn. 2001). Our review of the post-conviction court’s legal
conclusions and application of law to facts is de novo without a presumption of correctness.
Id.

                                            Analysis

       To establish the ineffective assistance of counsel, the petitioner bears the burden of
proving that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defense rendering the outcome unreliable or fundamentally unfair. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787
(Tenn. 2004). Deficient performance is shown if counsel’s conduct fell below an objective
standard of reasonableness under prevailing professional standards. Strickland, 466 U.S. at
688; see also Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing that
representation should be within the range of competence demanded of attorneys in criminal
cases). A fair assessment of counsel’s performance, “requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689; see also Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002).
Deference is made to trial strategy or tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a
particular strategy or tactical decision failed does not by itself establish ineffective assistance
of counsel. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves
that counsel’s representation fell below a reasonable standard, the petitioner must also prove
prejudice. Prejudice is shown if, but for counsel’s unprofessional errors, there is a reasonable

                                                -7-
probability that the outcome of the proceeding would have been different. Strickland, 466
U.S. at 694. Both deficient performance and prejudice must be established to prove
ineffective assistance of counsel. Id. at 697. If either element of ineffective assistance of
counsel has not been established, a court need not address the other element. Id.

                             Requirement of a Batson challenge

       The petitioner submits that trial counsel provided deficient representation by failing
to request a Batson hearing after the district attorney issued a peremptory challenge against
an African American female juror.

        The petitioner has failed to prove by clear and convincing evidence that trial counsel’s
failure to request a Batson hearing constituted deficient performance. However, assuming
arguendo that trial counsel’s representation fell below professional standards, the petitioner
has not provided any argument that the allegedly unprofessional error was prejudicial.

               Requirement of proper investigation and trial preparation

        The petitioner also avers that his trial counsel was deficient in his failure to adequately
investigate the petitioner’s case. Specifically, trial counsel failed to speak to the club owner
or other individuals who were present at the establishment on the night of the incident. Trial
counsel also failed to subpoena surveillance of the establishment, which the petitioner argues
would show that he did not approach Ms. Allen and that he was not aware that Ms. Allen was
a minor. At the post-conviction hearing, trial counsel testified that he thought he requested
surveillance from the state in a Rule 16 motion. According to trial counsel’s recollection,
the state, in response, stated that they did not have any surveillance. Trial counsel also
testified that because the petitioner believed that the state’s witnesses’ testimony would be
beneficial to him, he decided to cross-examine the state’s witnesses rather than calling any
defense witnesses.

        Trial counsel does not have an absolute duty to investigate particular facts or a certain
line of defense; however, trial counsel does have a duty to make a reasonable investigation
or to make a reasonable decision that makes a particular investigation unnecessary.
Strickland, 466 U.S. at 691. In determining whether counsel breached this duty, this court
reviews counsel’s performance for reasonableness under prevailing professional norms,
which includes a context-dependent consideration of the challenged conduct as seen from
counsel’s prospective at the time. Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations
omitted). There is no requirement that counsel investigate every conceivable line of
mitigating evidence regardless of how unlikely the effort would be to assist the defendant at
sentencing. Id. at 533. Likewise, counsel is not required to interview every conceivable

                                                -8-
witness. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995). Counsel’s duty to
investigate and prepare is not limitless. See Washington v. Watkins, 655 F.2d 1346 (5th Cir.
1981). We will not find counsel’s performance deficient for failing to unveil all mitigating
evidence, if, after a reasonable investigation, nothing has put counsel on notice of the
existence of that evidence. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998)
(citation omitted).

       During trial counsel’s testimony, he stated that he did not recall whether the owner or
manager of the Murfreesboro Billiards Club was called as a witness by the state. However,
he did note that if the witness was called, he would have conducted a cross-examination if
he thought it would have been beneficial to the petitioner. Trial counsel also testified that
after he requested any video surveillance in his Rule 16 motion, he was informed that there
was no surveillance available at that time. Trial counsel admitted that the video surveillance
may have corroborated the petitioner’s contention that he never approached Ms. Allen.
However, he also stated that the surveillance would have been very damaging if it showed
the petitioner with Ms. Allen.

       The petitioner has not established that counsel was deficient for failing to interview
the club owner or other individuals at the establishment on the night of the incident.
Specifically, the petitioner failed to establish what information would have been discovered
with this investigation. The petitioner has also failed to show that trial counsel provided
deficient performance in failing to subpoena video surveillance when there has been no
showing that any video surveillance actually exists.

                                      Jury Instructions

        The petitioner also challenges counsel’s failure to challenge the jury instructions for
the charge of possession with intent to deliver a Schedule II drug to a minor. Tenn. Code
Ann. § 39-17-417(a) states that “[i]t is an offense for a defendant to knowingly: (2) [d]eliver
a controlled substance.” In addition, subsection (k) of the statute provides that “[a] violation
of this section or a conspiracy to violate this section where the recipient or the intended
recipient of the controlled substance is under eighteen (18) years of age shall be punished one
(1) classification higher than provided in subsections (b)-(i).” According to the petitioner,
the instructions were improper because they failed to require the jury to find that the
petitioner intended to deliver a controlled substance to an individual who he “knowingly”
understood to be a minor. In support of his argument, the petitioner relies upon this court’s
opinion on direct appeal, which provides that “. . . the requirement of a culpable mental state,
with respect to each element of the offense, has application only to crimes codified in Title
39.” Gregory L. Sain, 2008 WL 624924 at *8. However, the state submits that the jury
instructions were proper. According to the state, Tenn. Code Ann. § 39-17-417(k), like the

                                              -9-
Drug-Free School Zone Act, is not a separate offense or an element of an offense. Rather,
it enhances penalties for violations of Tenn. Code Ann. § 39-17-417(b)-(i). Therefore,
according to the state, the petitioner’s case is analogous to State v. Smith 2 , where this court
determined that the Drug-Free School Zone Act does not require a mens rea because it exists
to enhance the penalty for violating Tenn. Code Ann. § 39-17-417. In addition, the state
notes that the earlier subsections of Tenn. Code Ann. § 39-17-417 provide specific penalties
for various weights of narcotics, but they do not ascribe a mental element of knowledge of
the weight sold or delivered.

       The jury instructions given by the trial court were as follows:
       Any person who knowingly possesses, with intent to deliver a controlled
       substance is guilty of a crime. For you to find the defendant guilty of this
       offense, the state must prove beyond a reasonable doubt the existence of the
       following elements:

       (1) the defendant knowingly possessed [c]ocaine, a Schedule II controlled
       substance;
       and
       (2) the defendant intended to deliver such controlled substance. Cocaine is a
       Schedule II controlled substance;

       and

       (3) the recipient or intended recipient was under eighteen years of age.
       “Deliver” or “delivery” means the actual, constructive, or attempted transfer
       from one person to another of a controlled substance, whether or not there is
       an agency relationship.

       It may be inferred from the amount of controlled substances possessed by an
       offender, along with other relevant facts surrounding the arrest, that the
       controlled substance or substances were possessed with the purpose of selling
       or otherwise dispensing them.

       “Knowingly” means that a person acts knowingly with respect to the conduct
       or to the circumstances surrounding the conduct when the person is aware of
       the nature of the conduct or that the circumstances exist. A person acts
       knowingly with respect to a result of the person’s conduct when the person is
       aware that the conduct is reasonably certain to cause the result.

       2
           State v. Smith, 48 S.W .3d 159, 168 (Tenn. Crim. App 2000)

                                                      -10-
        In criminal cases, a defendant has the right to a correct and complete charge of the
law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). Thus, it follows that the trial court
has a duty to give a complete charge of the law applicable to the facts of a case. State v.
Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). The failure to do so deprives the defendant
of the constitutional right to a jury trial. Garrison, 40 S.W.3d at 432. In evaluating claims
of error in the jury charge, this court must review the charge in its entirety and read it as a
whole. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). A jury instruction is considered
“prejudicially erroneous if it fails to fairly submit the legal issues or if it misleads the jury as
to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Notably, when
jury instructions fully and fairly state the applicable law, a trial court is not required to
provide special instructions. State v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997); State v.
Kelley, 683 S.W.2d 1, 6 (Tenn. Crim. App. 1984).

        The post-conviction court reviewed the challenged jury instructions, and concluded
that the jury was properly instructed.

       We conclude that the jury instructions provided a correct and complete charge of the
applicable law. Because Tenn. Code Ann. §39-17-417(k) enhances the punishment provided
in subsections (b)-(i), no specific mens rea is required. Therefore, trial counsel was not
deficient for failing to object to proper jury instructions at trial, nor appellate counsel for not
addressing the issue on appeal.

                                           Conclusion

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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