Brandon McCaslin v. State of Tennessee

Citation: Not availableDocket: W2007-01352-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; June 12, 2009; Tennessee; State Appellate Court

Original Court Document: View Document

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Brandon McCaslin appeals the dismissal of his post-conviction relief petition, claiming ineffective assistance of counsel during his trial and appeal. He argues that his trial attorney failed to: (1) challenge specific jurors during voir dire; (2) object to evidence of his prior conviction for unauthorized vehicle use; (3) request jury instructions regarding impeachment evidence; and (4) raise additional issues on appeal beyond the sufficiency of the evidence. Upon reviewing the record, the court found that McCaslin did not demonstrate ineffective assistance and affirmed the post-conviction court’s judgment. McCaslin was previously convicted of two counts of theft of property over $1,000 after he and a co-defendant stole rings from two jewelry stores and sold them at pawn shops. Evidence included police descriptions and surveillance footage, but a key witness could not definitively identify McCaslin at trial. The court's opinion was delivered by Judge Thomas T. Woodall, with concurrence from Judges Norma McGee Ogle and D. Kelly Thomas, Jr.

Mr. Wilbanks discovered three trays containing thirty-five rings, valued at $17,881, were missing after a day of business. Reviewing surveillance footage revealed Mr. Doss removing the trays and placing them in the Defendant’s Jeep. Following this, Mr. Wilbanks reported the theft to the police and provided the surveillance tape. Bennie Patterson, owner of City Pawn Shop, received a call from the police about the theft soon after a woman, Crystal Custer, offered to sell him new rings, raising his suspicions. As he described the rings to the police, Custer left the shop and drove off in the Defendant's Jeep. Officer Chris Hamm, responding to the theft report, alerted local pawn shops and later collected the rings from Patterson, which were ultimately not linked to the Jones Jewelry theft. 

Officer Jim Joyner, investigating a separate theft at the Diamond Gallery, learned of the earlier incident and called Officer Hamm to bring the unlinked rings for identification. Mr. Wilbanks identified the rings as belonging to his store. The police then located the Defendant's Jeep near his mother's house and observed the residence. After gaining permission from the Defendant's mother, police entered the house and found both the Defendant and Mr. Doss hiding. The Defendant admitted being with Doss during the theft but claimed no involvement in the actual taking of the rings, stating that the remaining rings were hidden at his mother’s house. Custer testified that she assisted Doss in pawning rings in Missouri, handing the money over to him as he did not possess a state-issued ID.

Ms. Custer pawned a ring at a local shop before visiting the City Pawn Shop, where the attendant's suspicions led her to inquire about the rings' origins from the Defendant and Mr. Doss, who admitted they were stolen. After being driven home by the Defendant, she received four or five rings from him for safekeeping. Following their arrest for stealing from local jewelry stores, Ms. Custer contacted the police and surrendered the rings. She later testified, revealing that the Defendant claimed he distracted store clerks while Mr. Doss stole the rings, asserting that Mr. Doss would take the blame due to his parole violations. Initially charged alongside the Defendant and Mr. Doss, Ms. Custer accepted a deal to testify in exchange for dropping her charges and was on probation for a prior theft. Mr. Doss, also testifying, described their thefts, detailing how he stole trays of rings from two stores while the Defendant pretended to shop. He hid the stolen rings at the Defendant's mother's house and later claimed he never shared any proceeds or rings with the Defendant. Both men were arrested after a period of drug and alcohol use following the pawnings.

Mr. Doss testified that the Defendant's only gain from the theft was possibly drugs bought with money from pawning rings. On cross-examination, Doss struggled to reconcile surveillance footage showing the Defendant's vehicle arriving at the Diamond Gallery, despite his claim they walked from a nearby pet store. Doss admitted to a previous criminal history with the Defendant, including a 2000 theft conviction for Doss and a joyriding conviction for the Defendant. The Defendant chose not to testify.

During the post-conviction hearing, the Petitioner asserted that his trial counsel failed to challenge two jurors, Linda Capps and Judy Smith, who had connections to a witness. The Petitioner also mentioned wanting to challenge two other jurors but could not recall the reasons. He claimed trial counsel's performance was deficient for not objecting to Doss's cross-examination regarding his prior theft convictions, which included the Petitioner as a co-defendant. Additionally, the Petitioner argued that trial counsel should have accepted the trial court's offer for a limiting instruction about his prior convictions and misled the jury in opening statements by promising evidence that he and his mother directed Doss to return the stolen jewelry, despite no evidence supporting his mother's knowledge of the theft.

The Petitioner noted that trial counsel did not cross-examine Ms. Townsend when she was called as a rebuttal witness, allowing the prosecution to exploit this absence during closing arguments. He indicated he had met with trial counsel only once before the trial and expressed a desire to call Ms. Townsend and Doss as defense witnesses. While he was unsure if trial counsel interviewed state witnesses or reviewed surveillance footage from the jewelry stores, he believed it likely that they were not reviewed. Despite his concerns, the Petitioner acknowledged that trial counsel presented his defense as requested and confirmed that the jurors he felt should have been removed stated they could be impartial. Ms. Townsend testified she had been subpoenaed by the State to appear at trial.

Ms. Townsend testified that she was not questioned about her knowledge of the stolen jewelry or whether she instructed Mr. Doss to return it. She confirmed that she had not seen Mr. Doss with the Petitioner after the offenses. Townsend noted that she heard the Petitioner request trial counsel to remove Ms. Capps from the jury panel multiple times. District Attorney Phil Bivens stated that trial counsel did not object during his cross-examination of Mr. Doss regarding his past theft convictions. Bivens also indicated that the direct appeal focused solely on the sufficiency of the convicting evidence. Trial counsel acknowledged his extensive legal experience but could not recall the Petitioner asking him to challenge any jurors or Mr. Doss informing him of their shared prior theft conviction. 

Trial counsel asserted that the defense was based on the Petitioner’s lack of knowledge regarding Mr. Doss's theft of the jewelry, which was evidenced by surveillance videos showing Mr. Doss taking the jewelry. He acknowledged Ms. Custer's prior theft conviction and her poor reputation for truthfulness. Although he had no specific memory of discussing Ms. Capp’s and Ms. Smith’s connections to Ms. Custer, he believed he had done so, and he maintained that if he chose not to challenge a juror, he had a rationale for it.

For post-conviction relief, a petitioner must prove allegations by clear and convincing evidence, with the trial court's legal application being reviewed de novo. Claims of ineffective assistance of counsel are treated as mixed questions of fact and law and are also subject to de novo review. A petitioner must demonstrate that counsel's performance was below the standard of competence expected in criminal cases and that this deficiency negatively affected the defense. Judicial review must avoid hindsight bias and should not second-guess trial strategies unless the errors are unreasonable at the time they were made. Both prongs of the Strickland test must be met for a claim of ineffective assistance of counsel to succeed. The Petitioner contends that trial counsel was ineffective for not using peremptory challenges against prospective jurors Capps, Smith, McDonald, and Johnson.

Ms. Capps identified as Ms. Custer’s aunt during voir dire but stated that this relationship would not bias her evaluation of Ms. Custer's testimony. Ms. Smith disclosed that Ms. Custer was a friend of her step-daughter, though she did not have a personal relationship with Ms. Custer. Both jurors indicated familiarity with police personnel; Ms. Smith's ex-husband was a Dyersburg police officer, and Ms. Capps's brother was a Jackson police officer, but both claimed this would not impact their impartiality. At a post-conviction hearing, the Petitioner did not provide sufficient grounds for challenging jurors Kimberly Johnson and Angie McDonald, apart from recalling a request to exclude them, while the State had exercised a peremptory challenge against juror Johnson due to her connections with the Petitioner and his family. Juror McDonald, who also knew Mr. Patterson, asserted that this would not affect her fairness. The Petitioner failed to call these jurors to testify regarding their relationships with the State’s witnesses, which is generally deemed detrimental to claims of ineffective assistance of counsel, as established in Black v. State. The post-conviction court accepted trial counsel's strategic decision to retain Ms. Smith and Ms. Capps in the jury pool and found no evidence of juror bias, determining that the Petitioner was not prejudiced by this decision. Additionally, the Petitioner claimed ineffective assistance of counsel for not objecting to the State's cross-examination of Mr. Doss about a prior theft offense where Petitioner was a co-defendant. During cross-examination, Mr. Doss affirmed their long-standing friendship and acknowledged their co-defendant status in a theft case. The State's line of questioning regarding their shared legal history was allowed without objection from trial counsel, leading to Mr. Doss confirming their prior convictions.

Petitioner argues that testimony about his prior conviction should have been excluded under Rule 404(b) of the Tennessee Rules of Evidence, which limits the admission of evidence regarding other crimes to prevent prejudice against the accused. While such evidence can be admissible for specific purposes, including to demonstrate motive or intent, Petitioner claimed it was prejudicial and irrelevant to his defense. His defense, presented through Mr. Doss’s testimony, was based on his lack of knowledge regarding the theft. However, Mr. Doss’s inconsistent statements about Petitioner’s awareness of his past thefts were deemed relevant by the State to counter Petitioner’s defense, suggesting an absence of mistake or accident.

The post-conviction court ruled that there was no valid basis for trial counsel to object to the testimony, finding that it was not used to imply conformity with Petitioner’s character but rather to challenge his claim of ignorance concerning Doss’s theft. The court concluded that trial counsel's performance was not deficient and that Petitioner did not demonstrate prejudice from the line of questioning, as there was substantial evidence indicating Petitioner later learned about the stolen jewelry and participated in its disposal.

Petitioner also contested trial counsel's choice not to request a limiting instruction regarding the use of his prior conviction for impeachment only. The trial court deferred to defense counsel's tactical judgment, which is not typically second-guessed unless shown to be uninformed. Overall, the court found no evidence that counsel's decisions adversely affected the trial's outcome.

Trial counsel opted not to request a limiting instruction regarding Petitioner’s prior conviction for unauthorized vehicle use, believing it to be a sound trial strategy. This decision is not subject to second-guessing, and Petitioner is not entitled to relief on this matter. Petitioner also claims ineffective assistance due to trial counsel's unfulfilled promises made during opening arguments, specifically regarding testimony that Petitioner was unaware the jewelry was stolen until a conversation with Mr. Doss. However, Mr. Doss did not corroborate that Ms. Townsend was informed about the stolen jewelry, which led trial counsel to forgo exploring this line of questioning. The post-conviction court found that Mr. Doss’s testimony and trial counsel's opening statements did not impact the trial's outcome. Consequently, Petitioner failed to show any prejudice stemming from trial counsel's performance. Regarding appellate issues, Petitioner argued that appellate counsel was ineffective for not raising various issues on appeal, including juror relationships with State’s witnesses and the disclosure of Petitioner’s prior conviction. To establish ineffective assistance of appellate counsel, a petitioner must demonstrate that counsel was objectively unreasonable and that this deficiency likely affected the appeal's success. The conclusion reached is that Petitioner did not prove he was prejudiced by trial counsel’s decisions concerning jurors or the prior conviction line of questioning.

Petitioner did not demonstrate any prejudice resulting from trial counsel’s opening statement or that counsel's performance was deficient. The review indicated that Petitioner could not show that the outcome of his appeal would have differed had these issues been raised. Petitioner also claimed trial counsel was inadequate for meeting with him only once and for allegedly not interviewing witnesses, filing motions, or reviewing surveillance tapes. However, the post-conviction court found trial counsel's testimony credible, confirming that he had viewed the surveillance videos and presented the defense theory requested by Petitioner. Ultimately, Petitioner failed to establish that trial counsel's performance was below acceptable standards or that he suffered any prejudice. The judgment of the post-conviction court is affirmed.