Jerry Jerome Primm v. State of Tennessee

Citation: Not availableDocket: M2008-01335-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; April 16, 2009; Tennessee; State Appellate Court

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Jerry Jerome Primm was convicted by a Davidson County jury of first-degree felony murder, second-degree murder, and especially aggravated kidnapping. The trial court merged the second-degree murder conviction into the felony murder conviction, sentencing Primm to life imprisonment as a violent offender, and imposed a consecutive twenty-year sentence for the kidnapping. Following an affirmation of his convictions and sentences on direct appeal, Primm filed a post-conviction petition alleging ineffective assistance of counsel, which was denied by the post-conviction court. Primm appealed the dismissal of his petition, but after reviewing the record and relevant law, the appellate court affirmed the post-conviction court's judgment.

The factual background reveals that on June 3, 2002, Primm arranged to pick up Rodney Campbell and Cornelius Primm to locate Gary Moment, whom Primm believed had information about a robbery. After finding Moment, Primm coerced him into his vehicle at gunpoint. Following a confrontation, during which Primm instructed Campbell to shoot Moment if he attempted to escape, both Primm and Campbell fired at Moment as he fled. The incident resulted in Moment's death, and the subsequent investigation led to Primm’s prosecution.

The victim's decomposing body was found in a backyard on June 6, 2002, after a police officer had responded to gunfire near the victim's residence three days earlier but did not locate the victim. Following the discovery, police resumed their investigation, during which a witness identified Brandon Lake as an occupant of the vehicle the victim entered, implicating the Petitioner. The Petitioner provided a sworn statement regarding his involvement, and while blood found in his vehicle could not be matched to the victim, testing indicated it belonged to a male offspring of the victim's mother. Handguns were recovered from the residences of Mr. Campbell and the Petitioner’s girlfriend. An autopsy revealed the victim died from gunshot wounds inflicted by a .380 caliber handgun owned by Mr. Campbell. A Davidson County jury subsequently convicted the Petitioner of first-degree felony murder, second-degree murder, and especially aggravated kidnapping, leading to a life sentence for felony murder and a twenty-year sentence for kidnapping, to be served consecutively.

On appeal, the Petitioner claimed ineffective assistance of counsel in his post-conviction relief petition. During the hearing, he testified that his counsel inadequately communicated with him, failed to retain a ballistics expert, and did not thoroughly investigate the case. He noted that counsel visited him only once during his two years in jail, and their conversations were brief and lacking in trial strategy discussion. The Petitioner rejected a plea deal of thirty-five years due to his misunderstanding of the trial process, which he attributed to inadequate counsel communication. He also felt uncomfortable testifying because of his lack of understanding of the trial proceedings.

The Petitioner asserted that Counsel did not visit him in the evenings after trial adjournments and only met with him once at the CJC to provide and review discovery materials, including a ballistics report. The Petitioner expressed doubts about the report's relevance, as the bullets found were .380 caliber, while his gun fired larger bullets. He criticized Counsel for not hiring an independent ballistics expert or investigator but admitted that he never specifically requested an investigation. Although the Petitioner claimed Counsel failed to subpoena important witnesses, he only mentioned Latoya Martin, who did not see the shooting, leaving unclear how her testimony would aid his defense.

During cross-examination, the Petitioner reiterated that Counsel's only visit was for the discovery materials and could not recall if they discussed witness statements identifying him as the shooter. He noted that although they met during court hearings, Counsel did not discuss the evidence against him, except for informing him about a plea offer of thirty-five years. Counsel, who had seven years of criminal defense experience and had handled multiple murder trials, countered that they met several times and discussed the State's evidence. He explained his defense strategy focused on highlighting inconsistencies in the State's case, although the Petitioner seemed to misunderstand this approach.

Counsel claimed he met with the Petitioner prior to trial to explain jury procedures and provided daily updates during the trial. He discussed the decision not to testify, agreeing that the Petitioner felt too anxious to take the stand. After the trial, Counsel briefed the Petitioner on the sentencing process and appellate rights. To prepare, Counsel attended a related trial months earlier, taking notes and analyzing police reports and witness statements, which led him to anticipate that several witnesses would testify against the Petitioner.

Counsel learned that the Petitioner’s cousin would testify that Campbell shot the victim after he escaped from the vehicle, and the Petitioner subsequently shot the victim multiple times. Prior to the Petitioner’s trial, Counsel interviewed witnesses from Campbell’s trial, noting that the State presented the same evidence and strategy as in Campbell’s case. Despite hopes for discrepancies in witness testimonies, Counsel found their accounts consistent, preventing any impeachment of their testimonies. Counsel indicated that his investigation did not yield a strong witness to either support the Petitioner’s alibi or contradict the direct testimonies. He opted against hiring a private investigator, believing he could adequately assess the witnesses' backgrounds and already understood their probable testimonies from observing Campbell’s trial.

Counsel did not subpoena Martin, who the Petitioner claimed would testify that the victim called him after the shooting but prior to being found dead. Martin was unable to provide this information when contacted. Acknowledging the strength of the State’s case, Counsel revised his trial strategy to argue that the circumstances surrounding the shooting made the Petitioner’s involvement unlikely. He emphasized the implausibility of the Petitioner shooting the victim while running downhill at a significant distance, especially after the victim had already been shot by Campbell.

While the firearm used in the shooting was never recovered, a holster was found in the vehicle used for the abduction. Counsel believed he communicated this to the Petitioner and reviewed the photographic line-up identifications with him. On cross-examination, Counsel asserted that he visited the Petitioner multiple times in jail and received an unusually high number of phone calls from him, with a third party occasionally joining the conversations at the Petitioner’s request.

Counsel admitted to not obtaining the victim's phone records to substantiate the Petitioner's claim of a call made post-shooting, noting that such records are deleted after six months and he learned of the call much later. He also did not hire an investigator to seek additional witnesses or an expert for ballistics testimony, arguing that the variables surrounding the shooting were too vast for any expert to provide useful insight. Counsel recognized the absence of visual aids to illustrate the shooting's difficulty to the jury. Following a hearing, the post-conviction court denied the Petitioner's request for relief, leading to the current appeal. The Petitioner claims ineffective assistance of counsel, citing inadequate communication, insufficient investigation, and the failure to engage a ballistics expert. The State contends the Petitioner did not prove his claims with clear and convincing evidence or demonstrate any prejudice from Counsel's actions, asserting that the post-conviction court's dismissal was proper. To succeed in post-conviction relief, the Petitioner must show a constitutional right was violated, proving allegations with clear and convincing evidence. Appellate courts do not reassess evidence credibility or weight, and factual findings from the post-conviction court have a presumption of correctness unless contradicted by substantial evidence. Legal representation rights are protected under the Sixth Amendment and Tennessee Constitution, evaluated through a two-prong test for effectiveness that requires demonstrating deficient performance by counsel.

To establish a claim of ineffective assistance of counsel under the Sixth Amendment, a petitioner must demonstrate two key elements: first, that the attorney's performance was deficient to the extent that it did not meet the constitutional standard of effective counsel, and second, that this deficiency resulted in prejudice to the defense, depriving the petitioner of a fair trial with a reliable outcome. This framework is derived from the Strickland v. Washington standard, which emphasizes the need to evaluate counsel's performance within the context of the entire case and to maintain a presumption of reasonable professional assistance.

The reviewing court must assess whether the attorney's actions fell below an objective standard of reasonableness, considering the circumstances at the time of the alleged misconduct while being highly deferential to the attorney's strategic decisions. Importantly, a defendant is not entitled to perfect representation, only to counsel that meets constitutional adequacy. A claim of ineffective assistance cannot simply rely on the assertion that a different strategy might have yielded a better result, nor can it be established solely based on a failed tactic.

If the petitioner successfully shows that counsel's performance was below reasonable standards, they must also prove a reasonable probability that, but for these errors, the trial's outcome would have been different, thereby undermining confidence in the result. The petitioner specifically asserts that counsel failed to communicate adequately regarding critical case aspects, a claim that the post-conviction court addressed, ultimately denying the ineffective assistance claims based on findings related to counsel's communication with the petitioner.

Counsel engaged in multiple consultations with the Petitioner to prepare for trial, including reviewing discovery materials, explaining the State's evidence, outlining trial processes, discussing trial strategy, and considering the Petitioner’s testimony. The record supports the post-conviction court's findings that Counsel's communication was adequate, as the Petitioner did not provide clear evidence of any failures by Counsel. The Petitioner also failed to demonstrate ineffective assistance of counsel under the Strickland standard, lacking both a showing of deficient performance and resulting prejudice.

Regarding investigative efforts, the Petitioner claimed Counsel was ineffective for not hiring an independent investigator. However, the post-conviction court determined that Counsel had taken appropriate steps by consulting potential witnesses, reviewing police reports, attending another related trial, and researching witness backgrounds. The court found that Counsel's actions fell within the realm of reasonable professional conduct, and the Petitioner again failed to show how he was prejudiced by Counsel's decisions.

Finally, the Petitioner alleged ineffective assistance for Counsel's failure to secure independent ballistics analysis, asserting that this omission disrupted the adversarial process. However, the document does not indicate any substantiated claim of prejudice stemming from this alleged failure. Consequently, the Petitioner is not entitled to relief on any grounds presented.

The post-conviction court dismissed the Petitioner’s claim of ineffective assistance of counsel due to Counsel’s failure to obtain an independent ballistics report. The court found that trial witnesses could not accurately identify the Petitioner’s location, and unresolved variables impeded a thorough ballistics analysis. The Petitioner did not present adequate evidence at the post-conviction hearing to support his claim, particularly lacking the testimony of an independent ballistics expert. The court concluded that an independent analysis would have offered minimal insight given the uncertainties surrounding the shooting's circumstances and the Petitioner’s gun experience. Counsel’s choice not to pursue a ballistics expert was deemed reasonable and within the expected competence of criminal defense attorneys.

The court also addressed the Petitioner’s assertion that Counsel’s actions caused a complete breakdown in the adversarial process, which would exempt him from demonstrating prejudice. However, since Counsel's responses were found reasonable, there was no breakdown of the adversarial process, placing the case outside the parameters of extreme attorney ineffectiveness outlined in prior cases. Ultimately, the court determined that Counsel was not deficient and did not contribute to a breakdown in representation, leading to the affirmation of the post-conviction court's judgment denying relief to the Petitioner.