Terrance L. Turner and Jermaine Montez Bradford were convicted in Davidson County for serious crimes, with Turner sentenced to twenty-eight years for two counts of attempted second-degree murder and one count of especially aggravated kidnapping, and Bradford receiving a twenty-three-year sentence for especially aggravated kidnapping. Both petitioners later sought post-conviction relief, alleging ineffective assistance of counsel—Turner claiming his counsel was ineffective, and Bradford asserting that he was denied the right to testify at trial. The post-conviction court rejected their petitions, leading to timely appeals by both. After reviewing the case, the Court of Criminal Appeals of Tennessee affirmed the post-conviction court's judgments. The court's factual background details that Misty Perry was approached by Turner and Bradford under coercive circumstances involving a firearm, ultimately resulting in her fleeing the vehicle and calling the police. The appellate court previously upheld the trial court's decisions regarding these convictions.
Petitioner Turner sought post-conviction relief citing eight instances of ineffective assistance of counsel relating to his conviction for especially aggravated kidnapping and attempted first-degree murder. Turner alleged that his counsel failed to: (A) object to the trial court's omission of jury instructions on lesser-included offenses for especially aggravated kidnapping; (B) object to improper jury instructions regarding the 'deadly weapon' element; (C) move for a new trial based on these omissions; (D) preserve these issues for appellate review; (E) adequately investigate testimony he wanted to present; (F) advise him properly about his right to testify; and (G) convey plea offers in a timely manner.
At the post-conviction hearing, Turner, who was 17 during the offenses and 19 at trial, expressed a desire to testify about the drug-related nature of the incident and clarified that he only displayed a weapon, rather than pointing it at the victim. His trial counsel acknowledged that he informed Turner of his right to testify but advised against it due to conflicting witness testimonies. Counsel had requested jury instructions on attempted second-degree murder but did not seek lesser-included offense instructions for aggravated kidnapping due to a belief that the jury would either convict Turner or acquit him entirely. Counsel admitted to not being aware of the requirement to instruct on lesser-included offenses when evidence supported such a finding and failed to raise this issue in the motion for a new trial or on direct appeal. Additionally, he noted a mistake in the jury instruction regarding the definition of 'deadly weapon,' which erroneously included 'forearm' instead of 'firearm.'
Turner's post-conviction petition was denied by the court, which ruled that claims regarding jury instruction failures were waived since they were not raised on appeal, thus ineligible for review under Tennessee Code Annotated section 40-35-206(g). The court found that Turner did not testify based on sound advice from his counsel, who provided a strategic rationale for this decision. Furthermore, Turner failed to substantiate his claim that counsel did not communicate plea offers, leading the court to deem the allegation unfounded. Although Turner was also indicted for aggravated robbery and carjacking, he was acquitted of those charges. On appeal, Turner contends the court erred in waiving the jury instruction issues and requests a remand for further consideration with mandated findings of fact and conclusions of law. Alternatively, he argues counsel was ineffective.
In the case of Bradford, he sought post-conviction relief, claiming his counsel denied him the right to testify. At the hearing, Bradford, who was 15 at the time of the offense and 17 at trial, stated he wanted to testify but was advised against it by his attorney, who cited concerns about Bradford's potential behavior on the stand due to his previous incarceration. Counsel testified that he did inform Bradford of his right to testify but believed it inadvisable. The post-conviction court found that Bradford knowingly waived his right to testify based on counsel's strategic advice, especially considering his youth and anger issues. The court ultimately denied Bradford's petition, noting that his assertion that testifying would have led to acquittal lacked supportive evidence and was merely conjectural.
Bradford argues that the post-conviction court made an error in its ruling. To succeed in a post-conviction relief claim, a petitioner must prove factual allegations by clear and convincing evidence, which indicates a high level of certainty about the conclusions drawn. Issues of witness credibility and the weight of their testimony are resolved by the post-conviction court, whose findings are treated with the same weight as a jury verdict, being conclusive unless the evidence contradicts those findings. A claim of ineffective assistance of counsel involves both legal and factual questions, with findings of fact reviewed de novo but presumed correct, while legal conclusions are reviewed purely de novo.
To prove ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that this deficiency prejudiced the defense. The assessment of counsel's performance must align with the standard of competence expected in criminal cases. Turner contends that the post-conviction court did not consider all claims regarding ineffective assistance or express its findings adequately. He argues that evidence at trial warranted a jury instruction on lesser-included offenses and that the definition of "deadly weapon" in the jury instructions was flawed.
The court highlights that the trial court has a duty to instruct juries on all offenses included in an indictment, regardless of requests from the defendant. Consequently, the court has previously ruled that failing to pursue lesser-included offense instructions does not constitute ineffective assistance. Thus, Turner did not demonstrate ineffective assistance of counsel on these grounds.
Turner’s claims regarding ineffective assistance of counsel focus on the failure to raise certain issues during his motion for a new trial and on appeal. Citing the case of Jerry Neal Carpenter v. State, the court emphasizes a non-exhaustive list of factors to assess counsel's performance. Turner did not provide evidence at the post-conviction hearing to support his assertions. Consequently, he did not meet the burden of proving ineffective assistance of counsel on appeal. Additionally, Turner argued that his counsel failed to object to the trial court’s definition of "especially aggravated kidnapping." The jury instructions contained a typographical error, substituting "forearm" for "firearm," but this was one incorrect instance among three definitions, with the correct term used in the others. The court concluded that Turner was not prejudiced by this error, rendering the complaint without merit.
In the case of petitioner Bradford, his sole argument on appeal was that his counsel ineffectively prevented him from testifying at trial. The court affirmed the fundamental right of a defendant to testify, which can only be waived by the defendant personally. It highlighted that a waiver must be intentional and cannot be presumed from a silent record. While the court referenced procedural safeguards established in the case of Momon v. State to ensure a proper waiver is on record, it noted that these guidelines were not in place at Bradford's trial in 1998, which occurred before the Momon decision. Therefore, the absence of these safeguards did not automatically indicate a deprivation of his right to testify.
The court highlights that prior to the Supreme Court's ruling in Momon, claims regarding a defendant's inability to testify due to counsel's actions were considered akin to other ineffective assistance of counsel claims. In the case of Allen Dale Cutshaw, the court noted that defense counsel asserted Bradford waived his right to testify as part of trial strategy but would not have obstructed him had he insisted on testifying. The post-conviction court found counsel's testimony credible and noted that Bradford did not provide compelling evidence that testifying would have changed the trial's outcome, describing his assertion as mere conjecture. Consequently, the court affirms the post-conviction court's decision for both petitioners.
