Norris E. Ray appeals the denial of his post-conviction relief petition, claiming ineffective assistance of counsel during his trial and appeal. The Tennessee Court of Criminal Appeals affirmed the denial, with Justices A. Lane G. Glenn, Thomas T. Woodall, and Jeffrey S. Bivins concurring. Ray was previously convicted by a Shelby County jury of first-degree felony murder, especially aggravated kidnapping, and unlawful possession of a handgun, resulting in a life sentence plus forty-four years. His convictions were upheld on direct appeal, and the Tennessee Supreme Court denied further review.
The case involved an incident on August 7, 2001, at a Memphis car lot owned by Kevin Wiseman and his brother, Jesse Windom. Windom requested keys from Wiseman after hours, leading to an encounter with three armed men in a Dodge Stratus. One man approached Windom, while another threatened Wiseman with a handgun. They demanded keys, leading Wiseman to direct them to his vehicle. Instead, Ray entered Windom's Lexus and started the engine, while his accomplice forced Wiseman into the trunk. As they drove, a gunshot was heard, and after a series of evasive maneuvers, the men abandoned the Lexus, allowing Wiseman to escape from the trunk.
Mr. Wiseman did not notice the Dodge Stratus while at the Southwood Apartments. He attempted to call Mr. Windom but received no answer and then secured a ride back to his business. On the way, he learned from a friend that Mr. Windom had been shot and was at a nearby Mapco gas station. Mr. Wiseman's ordeal lasted about an hour, during which he was in the trunk of a vehicle for 15 to 30 minutes. He assumed [the petitioner] was driving a Lexus because he saw him at the driver’s side door when he was placed in the trunk, and he could only identify his brother's voice while inside.
On August 7, 2001, off-duty police officer Gary Claxton observed a black Lexus and a white Dodge Stratus driven erratically as they exited an apartment complex. The Lexus was leading, followed closely by the Dodge. A man jumped from the rear of the Lexus and ran toward the Mapco gas station, appearing panicked. After the Lexus made a U-turn and entered the gas station, Claxton nearly collided with the Dodge again. He recorded the Dodge's license plate and reported the incident, but lost sight of both vehicles afterward. Upon returning to the gas station, he found the man who had fled from the Lexus lying on the ground.
The Dodge Stratus was registered to Chandra Jones, who confirmed that she loaned it to [the petitioner] between 4:30 p.m. and 5:00 p.m. on the same day. Around 6:45 p.m., she received a call from someone named "Geno," later identified as Eugene Pickens, who claimed [the petitioner] was in the bathroom. Chandra stated that [the petitioner] returned to her apartment after she had fallen asleep. Later that night, police instructed her to call [the petitioner] to come outside, but she did not witness his arrest.
Kim Hughes, a resident of the Flairwood Apartments, recalled an incident around 6:30 or 6:45 p.m. when Nakomis Jones approached her apartment asking to use the phone due to car trouble. She handed him a cordless phone through her back door. During this time, [the petitioner] approached from behind the apartment building.
Mr. Jones requested "brother's" telephone number but failed to dial correctly, prompting the petitioner to make the call himself, asking Geno to come. The petitioner later inquired about the apartment complex's name and then left with Mr. Jones. Mr. Jones returned shortly, leading Ms. Hughes to call 911, but the police did not respond. After seeing a news report about a shooting, Ms. Hughes contacted Crime Stoppers.
Officer Prentiss Jolly of the Memphis Police arrived after the victim had been taken to the hospital, where it was later confirmed he had died. Officer Jolly interviewed witnesses, found the petitioner’s vehicle at Chandra Jones’ apartment, and contacted Ms. Jones to avoid confrontation. After some communication, the petitioner voluntarily surrendered without incident.
During the investigation, Mr. Jones' palm print was found on the passenger side of the vehicle, and the petitioner's fingerprint was on the driver’s side window. The victim, Mr. Windom, died from a gunshot wound that caused severe internal hemorrhaging. The petitioner testified that he was at Ms. Jones’ apartment until noon on August 7, 2001, then cared for his mother, before returning to Ms. Jones’ apartment and later driving her car to Mr. Pickens’ apartment.
The petitioner left the car there and went to another brother's house, returning to Memphis that evening. He found Ms. Jones had not retrieved her car and subsequently drove back to her apartment. He answered a police call about the car being involved in a hit and run but hung up when asked for Ms. Jones. The police called back afterward.
The petitioner provided a telephone to Ms. Jones before testifying about his criminal history, noting two prior burglary convictions with fifteen-year sentences each. He mentioned seeing Mr. Windom in the neighborhood but did not know him. The petitioner had conversations with various individuals in Dyersburg, including his brother, Anthony, and Ms. Love’s mother, and noted that Mr. Pickens was in Shelby County jail. Although his brother attended the trial, he was not permitted to testify, and the petitioner’s family was in Chicago for his grandmother's funeral at that time.
The petitioner filed for post-conviction relief, alleging ineffective assistance of trial and appellate counsel. During the evidentiary hearing, he testified that he was arrested on August 7, 2001, and had been in custody since. He met with his trial counsel only twice before trial, with most communication occurring via letters. Although he knew trial counsel had an assistant for case investigation, he had no direct contact with the investigator.
The petitioner expressed that he wanted to present an alibi defense and provided trial counsel with names and addresses of potential witnesses. However, trial counsel did not investigate this defense. The petitioner claimed he was at home with his mother on the day of the offenses and later went to a friend’s house. He also mentioned his complaint against counsel for failing to investigate the alibi, submitted on June 10, 2002.
After receiving a State motion for alibi defense, the petitioner sent a detailed letter to trial counsel on December 5, 2002, outlining his alibi and witness information, confirming delivery with a certified mail receipt. He indicated that trial counsel did not respond to the alibi motion and failed to call his family members to testify, despite notifying counsel about their availability until they left for the funeral. The petitioner highlighted Dafany Love as a key alibi witness, noting that she had expressed a desire to meet counsel but was not present at trial.
The petitioner testified that he chose to testify at trial because his alibi witnesses were not called by trial counsel, although he never communicated a decision to refrain from testifying before the trial. He stated that he informed trial counsel about his alibi witnesses, but counsel failed to present them in court. During cross-examination, the petitioner faced questions regarding the lack of corroborating alibi testimony, to which he attributed the oversight to trial counsel's inaction. The court issued a curative instruction emphasizing that both parties had subpoena power, which the petitioner believed trial counsel should have objected to.
The petitioner also noted that trial counsel failed to object to several aspects of the State’s closing argument, including an unsupported claim about the source of car keys and improper commentary on his post-arrest silence, which were not preserved for appeal. He asserted that the State inaccurately presented his criminal history during closing arguments, indicating convictions for aggravated burglaries and possession of handguns instead of his actual prior convictions for sexual battery and burglary.
Additionally, the petitioner contended that trial counsel neglected to request lesser-included offense instructions, such as criminally negligent homicide, and did not provide him with proposed jury instructions for review. He objected to the jury instructions that allegedly shifted the burden of proof to the defense, believing trial counsel should have raised an objection, which also went unappealed. The petitioner claimed that the State’s closing arguments improperly equated any verdict less than first-degree murder with a not guilty stance. He criticized trial counsel for not subpoenaing witnesses for a suppression hearing who had identified him on videotape.
Regarding appellate counsel, the petitioner mentioned a brief visit in which they discussed potential appeal issues, including the suppression of the Court TV videotape, but this issue was ultimately not raised on appeal. He also noted that appellate counsel did not reference State v. Ely, which pertains to jury instructions on lesser-included offenses. During cross-examination, the petitioner acknowledged a jury-out hearing about the videotape but admitted he had not seen it himself, although family members had viewed it and informed him about its content.
The video evidence indicated that the petitioner was at the police station while Kevin Wiseman identified him from a photographic array, and it also captured the petitioner’s arrest. The petitioner claimed his defense relied on mistaken identification and asserted he was elsewhere during the crimes. He provided details of his whereabouts, stating he drove his fiancée Shandra Jones's car to his friend Geno Pickens's house around 4:30 p.m. on the day of the offenses, where he left the car. His brother, Marvin Jackson, then picked him up and took him to his home in North Haven for a short time.
The petitioner acknowledged that Jones's car was used in the crimes. Later, Dafany Love picked him up, and they traveled to Dyersburg, visiting his brother Anthony Jackson and others. While the petitioner identified only Anthony and Love as companions during the trip, he initially claimed they returned to Memphis around 10:30 or 11:00 p.m., later admitting uncertainty and acknowledging a letter to his attorney suggesting a 2:00 a.m. arrival.
The petitioner attended court on multiple occasions and had discussions with his trial counsel, who he claimed did not want him to testify. He criticized the trial court for not allowing him to present his alibi witnesses. His mother, Leatha Scott, testified she was with him earlier that day but was not approached by trial counsel regarding his alibi. Although she attended the trial, she left for her mother’s funeral and was not present for the entire proceedings. Marvin Jackson corroborated the petitioner’s account, stating he picked him up after the call from him at Pickens's house and brought him to his home, where he briefly spoke with Love before they departed for Dyersburg.
Marvin communicated with the petitioner later that night after the petitioner arrived at his brother Anthony's home in Dyersburg. He testified that he met with trial counsel before the trial, who gave him the impression that he was diligently representing the petitioner. Marvin informed trial counsel that he and several family members would be traveling to Chicago for a funeral during the trial week and wanted to testify before leaving. Counsel assured Marvin he would have the opportunity to testify, but after court concluded on Wednesday, he did not return as promised. Marvin, who has a history of convictions including possession of a firearm and controlled substances, admitted he did not inform police of the petitioner’s alibi when he learned of the petitioner’s arrest or attend preliminary hearings to support him. He claimed to have been present for the first three days of the trial but could not recall specific witnesses.
Dafany Love, who had recently been released from custody, testified that she met the petitioner at Marvin’s house on the day of the offenses and drove him around Dyersburg. She stated that she informed investigators of her alibi for the petitioner, but they refused to record her statement. Love did not attend the trial because she was not subpoenaed and was unaware of the court date, despite acknowledging her role as an important alibi witness. After dropping the petitioner off, she received a call from him. Anthony Jackson testified that the petitioner and Love were at his home from approximately 6:30 p.m. to 9:00 p.m. on the day of the crime.
While the petitioner was at Anthony's house, Anthony received a call from their brother Marvin, but the petitioner did not answer as he was in the back room. Anthony claimed he informed trial counsel that the petitioner was with him during the offenses and that he was supposed to be subpoenaed to court, but this did not happen. Anthony, who had multiple felony convictions and was incarcerated, stated that he spent the day of the offenses selling cocaine and did not interact with the petitioner and Love, who remained in the back room. He did not contact the police to provide an alibi for the petitioner due to his own illegal activities but later reached out to trial counsel in 2002 to confirm he was with the petitioner on the offense date. Trial counsel failed to subpoena him.
Ronnie McWilliams, a criminal investigator, interviewed Dafany Love in 2004 regarding her potential alibi for the petitioner. Love could not recall her whereabouts on the day of the offenses and stated she never had a relationship with the petitioner, who was simply a friend of her incarcerated husband. McWilliams noted that although Love had been listed as an alibi witness, she was unaware of this and remembered dates accurately during the interview.
Trial counsel, with thirty years of experience primarily in criminal defense, took on the petitioner’s case due to its complexity and the initial uncertainty of a death penalty pursuit. He had significant interactions with the petitioner, maintaining a good communication rapport. Based on the petitioner's claims about his whereabouts, trial counsel intended to use Love as an alibi witness. However, trial counsel’s investigator was unable to locate her in Dyersburg.
Trial counsel established contact with the alibi witness, Love, after the State located her during a court appearance for another case. Upon reviewing her statement, trial counsel determined that Love could not serve as a credible alibi witness, as she denied any knowledge of the events, claiming she was not present with the petitioner. Love was the only alibi witness presented by the petitioner. Counsel clarified that the petitioner's brother, Marvin, was not an alibi witness since he only saw the petitioner earlier on the day of the offenses; had Marvin been a viable alibi witness, he would have been subpoenaed. Trial counsel did not recall any family members providing alibi information during the trial. He conferred with the petitioner throughout the trial and discussed the decision to testify, which the petitioner ultimately chose to pursue despite counsel's advice against it. Multiple witnesses identified the petitioner as a perpetrator during the trial. On cross-examination, trial counsel acknowledged the petitioner mentioned Marvin was with him earlier that day, yet Marvin was not corroborated as an alibi witness. Trial counsel referenced an August 2001 statement by Officer Prentice Jolly, noting that a witness, Dana Porter, saw the victim but not the offense and speculated about the identity of the killer. Efforts were made to locate Porter. Counsel filed a motion to suppress the petitioner's identification from a photographic lineup, although he could not recall if the identifying witnesses were present at the hearing. An attempt to introduce a Court TV video at trial was denied by the court. Additionally, trial counsel noted that a complaint filed by the petitioner against him was unrelated to case handling and was dismissed by the Board of Professional Responsibility. The petitioner did not make statements to the police before trial, and when he testified, it was his first account of the events, a situation trial counsel felt was unlikely to significantly impact the jury’s perception.
The post-conviction court denied the petitioner's request for relief after an evidentiary hearing. On appeal, the petitioner claims ineffective assistance of counsel during both the trial and the appeal, arguing that the conviction or sentence is void or voidable due to constitutional rights violations. According to Tennessee law, the petitioner must prove factual allegations by clear and convincing evidence. Findings of fact from the post-conviction court are upheld on appeal unless contradicted by the evidence. Appellate courts defer to the trial court’s credibility assessments but review legal applications de novo.
To establish ineffective assistance of counsel, the petitioner must demonstrate both deficient performance by counsel and resulting prejudice. This follows the two-prong Strickland v. Washington test, which requires showing that counsel's performance fell below an objective standard of reasonableness and that this deficiency undermined the fairness of the trial. A strong presumption exists that counsel's conduct is reasonable, and the strategic decisions made by counsel cannot be easily second-guessed unless based on inadequate preparation. The prejudice aspect requires showing that, but for the errors, the trial's outcome would likely have been different. The same standards apply for evaluating both trial and appellate counsel's effectiveness. The excerpt specifically begins with allegations against trial counsel, focusing on an alibi defense.
The petitioner claims ineffective assistance of trial counsel for not fully investigating and presenting an alibi defense. He argues that trial counsel failed to call witnesses Dafany Love, Leatha Scott, Marvin Jackson, and Anthony Jackson. Trial counsel acknowledged the intention to present an alibi defense based on the petitioner’s claims but relied on an investigator who was unable to locate Love. After trial counsel announced the alibi defense, State investigators found Love, who later denied knowledge of the petitioner’s whereabouts, leading trial counsel to conclude she would not be a credible witness. The post-conviction court found Love’s testimony untrustworthy, ruling that trial counsel's decisions did not constitute deficient performance or cause prejudice to the petitioner.
Leatha Scott, the petitioner’s mother, was also deemed not to have relevant testimony, as she was asleep at the time of the offenses and was not present during the trial. Consequently, her potential testimony was not seen as prejudicial.
Anthony Jackson, the petitioner’s brother, claimed he was with the petitioner and Love on the evening of the offenses but failed to inform the police of this alibi after the arrest. The post-conviction court found Anthony's testimony lacking credibility, concluding that his absence as a witness did not result in prejudice to the petitioner.
Marvin Jackson, another brother, was mentioned as a potential alibi witness, but no further details on his testimony were provided. Overall, the post-conviction court determined that the failure to present these witnesses did not impact the outcome of the trial.
Marvin testified he was with the petitioner earlier on the day of the offenses but not during the offenses themselves. He later called Anthony’s cell phone and spoke with the petitioner, although Anthony claimed he spoke only with Marvin. Trial counsel stated he would have subpoenaed Marvin to testify if he could provide an alibi, and the post-conviction court accepted this testimony, concluding that trial counsel's performance was not deficient and did not prejudice the petitioner. The petitioner claimed he felt compelled to testify due to the absence of his alibi defense, but he admitted that deciding to testify was ultimately his choice.
Regarding jury instructions, the petitioner argued that trial counsel was ineffective for not objecting to a jury instruction on circumstantial evidence, asserting it allowed the jury to find guilt based on insufficient proof. The State countered that the petitioner waived this issue by not including the trial transcript in the appeal. The court noted that only part of the trial transcript was provided, lacking the jury charge, and emphasized the appellant's responsibility to ensure a complete record. Consequently, the court must presume the trial court's actions were correct in the absence of a complete record. Moreover, the instruction cited by the petitioner was similar to a previously approved charge on circumstantial evidence, indicating no deficiency in trial counsel's performance.
Finally, the petitioner contended that trial counsel was ineffective for failing to object to the introduction of a fifteen-year-old sexual battery conviction during cross-examination, arguing it had minimal probative value and harmed his credibility.
The State contends that the petitioner waived the issue by not providing an adequate record for review and failing to present evidence at the evidentiary hearing that the prior conviction was improperly utilized during cross-examination or prejudiced his case. The conclusion reached is that the petitioner did not demonstrate that counsel was deficient or that any deficiency resulted in prejudice. Specifically, the petitioner did not include the relevant trial transcript portions regarding the prior conviction and failed to show evidence of improper use or prejudice stemming from it. He acknowledged a previous sexual battery conviction and claimed the State wrongfully referenced other convictions; however, the post-conviction court found that the State needed to prove the prior conviction as part of the charged offense, with no errors identified in its determination.
In relation to the suppression hearing, the petitioner asserts ineffective assistance of trial counsel for not subpoenaing his accusers, which he argues denied him his right to confrontation. Nonetheless, it was established that the right to confrontation applies to trials, not suppression hearings. The petitioner did not provide evidence that the outcome would have differed had his accusers testified, and the post-conviction court found no supporting evidence for this claim.
Concerning the prosecutor’s comments on the petitioner’s post-arrest silence, the petitioner argues ineffective assistance for failing to object and preserve the issue for appeal. However, he did not specify the allegedly improper statements nor ensure relevant trial transcript portions were included. The record suggests that the prosecutor’s comments were typical when a defendant first testifies. Trial counsel indicated that highlighting the absence of prior statements is a common prosecutorial strategy when a defendant chooses to testify.
Counsel determined that objecting to the prosecutor’s question would be counterproductive, and the post-conviction court upheld this tactical decision as appropriate. The petitioner claimed ineffective assistance of trial counsel for not objecting to alleged misstatements by the prosecutor during closing arguments, particularly regarding the assertion that the petitioner took the victim's car keys, which the petitioner argued was unsupported by evidence. However, the petitioner did not include the closing argument transcripts in the appeal record, limiting the court's ability to review the alleged misstatements. Testimony from Kevin Wiseman indicated that although he did not see the petitioner take the keys, he did witness him starting the Lexus, and he confirmed that the keys were obtained from Windom. The prosecutor's statements were deemed reasonable inferences from the evidence presented, and the court found no deficiency in trial counsel's performance.
Additionally, the petitioner contended that trial counsel was ineffective for failing to object to the prosecutor's mischaracterization of his prior convictions, which included references to aggravated burglaries and possession of handguns. The court noted that the petitioner did not provide the closing argument transcripts for review and failed to demonstrate that trial counsel's performance was deficient, as the petitioner had a criminal record that supported the prosecutor's statements. The court acknowledged the petitioner’s conviction for second-degree burglary, which was characterized under Tennessee law in a way that aligned with the prosecutor's description. The record did not clarify the nature of the sentence received by the petitioner regarding the possession of a handgun during the burglary.
The petitioner did not demonstrate that any misstatement by the prosecutor during closing arguments affected the outcome of his case. The offenses in question occurred before the 1989 Sentencing Reform Act. The petitioner claims ineffective assistance of counsel for failing to object to the State's comments regarding lesser-included offenses, arguing that the State wrongly instructed the jury not to consider these options. However, the trial transcript containing the State's closing argument was not part of the appeal record, limiting the ability to assess the prosecutor's remarks. The prosecutor's statements appeared to assert that the evidence supported a first-degree murder conviction, but it could be inferred that the trial court properly instructed the jury on lesser-included offenses. Thus, any alleged prejudice to the petitioner’s case was not substantiated.
Additionally, the petitioner alleged ineffective assistance for not challenging the late disclosure of witness statements under Brady v. Maryland. However, he did not include the relevant trial transcript where the State disclosed the witness statement and a recess was granted. The distinction between delayed and complete nondisclosure of evidence was noted, with the court indicating that Brady applies primarily to cases of complete nondisclosure unless the delay itself causes prejudice. The petitioner failed to show how the late disclosure of the witness's statement negatively impacted his case, especially since trial counsel received the materials during trial and had time to review them before proceeding.
Allegations of ineffective assistance against appellate counsel include two main issues:
1. **Failure to Appeal Instruction on Lesser-Included Offenses**: The petitioner claims appellate counsel erred by not referencing *State v. Ely*, which established criminally negligent homicide as a lesser-included offense. However, the post-conviction court highlighted that unlike in Ely, where the jury was not instructed on any lesser-included offenses, the petitioner’s jury received instructions on several lesser options, including second-degree murder. Since the jury did not reduce the charge, the court found no prejudice to the petitioner due to the alleged failure.
2. **Failure to Appeal Exclusion of Court TV Videotape**: The petitioner contends that appellate counsel was ineffective for not appealing the exclusion of a videotape showing a pre-arrest witness identification. The tape allegedly depicted the witness, Kevin Wiseman, as uncertain during his identification. However, the trial court deemed the video inauthentic due to its dramatized nature and noted it did not impeach Wiseman’s identification of the co-defendant. The court allowed for questioning related to the video during cross-examination and ruled that Wiseman's testimony remained consistent with the video. Given these factors, the court found no reasonable probability of a successful appeal regarding the tape's exclusion.
The conclusion affirmed the denial of the petition based on these points.
