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Robert Derrick Johnson v. State of Tennessee
Citation: Not availableDocket: M2019-01849-CCA-R3-PC
Court: Court of Criminal Appeals of Tennessee; September 3, 2021; Tennessee; State Appellate Court
Original Court Document: View Document
Robert Derrick Johnson appealed the denial of his post-conviction relief petition from the Bedford County Circuit Court, challenging his robbery conviction. He alleged ineffective assistance of trial counsel on five grounds: failure to inform him of his statutory right to fourteen days for trial preparation, failure to file a motion to continue the trial, failure to suppress the victim’s in-court identification, failure to object to the destruction of video evidence, and failure to challenge his second trial on double jeopardy grounds. Additionally, Johnson argued that the post-conviction court incorrectly struck his pro se petition amendment. The appellate court affirmed the lower court's judgment. Johnson was originally convicted by a jury in 2015 for a robbery occurring on March 22, 2013, and sentenced to ten years as a Range II, multiple offender. His first trial resulted in a mistrial due to the unavailability of a key witness, Detective Sam Jacobs. After a conflict of interest arose with his public defender, a new trial counsel was appointed for his retrial, which took place in May 2015, resulting in a conviction. During his direct appeal, Johnson raised issues regarding the trial court's mistrial declaration and a speedy trial claim, but the appellate court found both issues either waived or lacking merit. On March 7, 2019, the Petitioner submitted a pro se petition for post-conviction relief along with a document titled “Support Grounds,” alleging ineffective assistance of counsel, double jeopardy, and due process violations. The post-conviction court appointed initial counsel and set a deadline of May 24, 2019, for an amended petition. On July 15, 2019, the Petitioner filed a pro se amendment, claiming first post-conviction counsel did not assist him in filing as requested and adding further allegations of ineffective assistance. The State moved to strike this amendment on July 16, 2019, and on July 19, first post-conviction counsel sought to withdraw, which the court granted on July 23, appointing second counsel. The court subsequently struck the amendment on August 19, noting representation at the time of filing and the missed deadline. At a hearing on September 12, 2019, the retired trial judge, who presided over the Petitioner’s 2015 trials, recounted the events leading to a mistrial due to a witness's health issue. After the Public Defender’s Office withdrew due to a conflict of interest, trial counsel was appointed approximately two weeks before the second trial. The judge expressed willingness to continue the trial, given the circumstances, and acknowledged trial counsel's inexperience with the case. He indicated that he would have rescheduled if he deemed it necessary, praising trial counsel's diligence and highlighting the Petitioner’s concerns about trial delays, which were raised during the direct appeal of his conviction. The trial judge acknowledged the original counsel, an assistant public defender, as exceptionally prepared and organized, having detailed notes and effectively managing discovery. He noted that trial counsel benefited from original counsel's extensive preparations and immediately met with the Petitioner after being assigned. The judge remarked that trial counsel's request for more time could have been a strong argument for postponing the trial. He also praised trial counsel’s communication skills and professionalism, stating he had never seen him fall below the applicable standard, and often exceed it in preparation and client interaction. The Petitioner testified about the circumstances surrounding a mistrial during the first trial, expressing his desire to continue with the jury despite the State's request for a mistrial following Detective Jacobs' illness. He declined a plea offer and was unaware of original counsel's withdrawal for a time. The Petitioner first met trial counsel on May 4, 2015, discussing his dissatisfaction with original counsel and concerns regarding jury selection and witness identification inconsistencies. The Petitioner felt trial counsel did not adequately address certain legal issues, such as motions to suppress or double jeopardy. By mid-week before the trial, the Petitioner grew anxious about not being transported for the trial and had trial counsel visit him again, primarily to familiarize themselves, but he could only assess trial counsel's preparedness based on limited interactions. The Petitioner alleged ineffective assistance of counsel in his post-conviction petition, citing Tennessee Code Annotated section 40-14-105, which grants fourteen "full days" for preparation after arrest and indictment. He claimed that his trial counsel, inexperienced in jury trials, was inadequately prepared, giving the prosecutor an unfair advantage. The Petitioner pointed out that trial counsel failed to challenge the victim's identification of him, noting inconsistencies in the victim's statements during a photographic lineup and at preliminary hearings, where the victim did not identify him. He asserted that trial counsel should have scrutinized the victim’s identification process, which he believed was suggestive, and indicated that he raised concerns about this during their meetings. The Petitioner also highlighted the issue of missing surveillance footage that could have shown the perpetrator’s height, claiming he only learned of this during the second trial and that trial counsel neglected to address it beforehand. On the double jeopardy issue, the Petitioner opposed the mistrial in the first trial, arguing that the State failed to establish manifest necessity for it, a concept he only understood a year before the post-conviction hearing. He contended that trial counsel did not raise this issue. Additionally, the Petitioner mentioned declining to speak with police after his arrest and criticized trial counsel for not objecting when the prosecution implied he had not provided an alibi during closing arguments, although counsel did object later. He claimed that trial counsel's lack of timely objections, particularly regarding his right to remain silent, indicated inexperience, and the State contended that this issue was not properly before the post-conviction court due to its prior stricken status. The Petitioner attempted to litigate issues despite a prior court ruling. Post-conviction counsel indicated that the Petitioner could testify if issues arose during the hearing. The post-conviction court, exercising caution, allowed the testimony but reserved judgment on whether to address the merits of the issue or uphold its previous ruling. Although the trial transcript was absent from the appeal record, the Petitioner’s pro se amendment included relevant excerpts. During the trial, Detective Jacobs testified that the Petitioner did not provide an alibi or make inculpatory statements. The prosecutor argued in closing that the lack of an alibi was significant, especially given the timing on New Year’s Eve, while trial counsel contended that the Petitioner was not obligated to provide proof. During a recess, trial counsel objected to the prosecutor’s comments on the absence of an alibi, claiming it improperly shifted the burden of proof. Initially, trial counsel did not request relief but later sought a jury instruction regarding the alibi comment. The trial court, however, disagreed with trial counsel's assessment, stating the prosecutor's comments did not infringe on the Petitioner’s right to remain silent and planned to give the standard jury instruction on the burden of proof. The Petitioner testified that he had informed trial counsel of everything he knew during their first meeting, although he had no paperwork with him. He acknowledged trial counsel's challenges in meeting with him but noted that trial counsel was prepared for trial. The Petitioner described issues with a surveillance video presented during the trial, stating it was difficult to view and that he did not request a continuance for the second trial date, believing trial counsel was ready to proceed. The Petitioner acknowledged multiple continuances of his first trial, believing they were requested by the State, not his original counsel. During a second meeting with trial counsel, they discussed prior testimony and a surveillance recording. The Petitioner claimed trial counsel did not inform him about the strengths and weaknesses of the State’s case. He maintained his innocence, asserting mistaken identity, and recognized that challenging the victim's identification or providing an alibi could create reasonable doubt. The victim identified a dark-skinned suspect in a photographic lineup that did not include the Petitioner, and she expressed uncertainty about her identification in a handwritten note. Although the Petitioner viewed the lineup as favorable, he argued that his due process rights were violated when the victim identified him in court, particularly since she had previously stated she did not see the perpetrator’s facial features. He believed that had trial counsel interviewed the victim prior to the second trial, he would have anticipated her courtroom identification. The jury had access to the victim's initial and in-court identifications, as well as the surveillance footage. The Petitioner contended that the missing part of the footage would have shown the perpetrator was shorter than him, which would support his innocence. He was unsure whether trial counsel compared the height discrepancy between the victim's description (5'10") and his (6'3"). The Petitioner criticized trial counsel for not challenging the mistrial's validity and the possibility of double jeopardy, agreeing that he sought a speedy trial and felt the second trial was expedited. On redirect, he indicated trial counsel claimed he would interview all trial witnesses, yet the Petitioner felt counsel was unprepared during the second trial. He alleged trial counsel did not conduct adequate investigations. Trial counsel, employed by the District Attorney’s Office during the hearing, explained he had a significant advantage from reviewing the first trial's recordings and had interviewed a potential witness, uncovering potential issues with the victim's memory. Trial counsel met with the Petitioner twice prior to trial and felt fully prepared, having reviewed extensive materials from the Public Defender’s Office, including discovery and original counsel's work. He dedicated significant time, estimating eight to sixteen hours daily, to the case. Though it was his first trial, trial counsel felt confident due to his recent bar exam preparation and previous representation experience. He chose not to file pretrial motions, opting instead to use potential motions during the trial to create reasonable doubt. Notably, he identified missing camera angles in the surveillance recording during the second trial, leveraging this to challenge the evidence and cross-examine witnesses. Trial counsel did not request a jury instruction regarding the missing evidence and did not find it necessary to interview witnesses from the first trial, believing he had sufficient information from their testimonies. He discussed the mistrial situation with the Petitioner but did not perceive a double jeopardy issue, as the jury had not deliberated. Trial counsel believed the mistrial was a matter for the Petitioner’s previous attorneys and asserted he had ample time for any necessary legal research. He did not review the surveillance recording with the Petitioner prior to their second meeting, during which they discussed trial strategy. Petitioner's trial counsel revealed that although the Petitioner considered calling another witness, the witness declined to testify after being warned about perjury. Counsel noted that he could have subpoenaed her but believed it would reflect poorly if the Petitioner called a reluctant witness due to their relationship. Counsel objected to a statement made by the prosecutor during the trial, prompting the court to issue a jury instruction regarding the burden of proof, which counsel deemed curative. He prepared a list of potential issues for the Petitioner’s direct appeal and post-conviction petition, explaining that he could not argue ineffective assistance against himself. The list included concerns about the brief time between his appointment and the trial, the trial court's selection of an inexperienced attorney, failure to enter credit card records, issues with opening arguments, and not calling the Petitioner’s girlfriend as a witness. Despite these issues, counsel believed the Petitioner had a strong trial, noting the jury deliberated extensively and that he effectively cross-examined an expert witness. During cross-examination, counsel acknowledged that the original counsel provided him with insights about the case. He emphasized his awareness of courtroom discussions during the first trial, highlighting his search for any new evidence that could be presented. Counsel indicated that inconsistent witness testimonies could be impeached with their prior statements. He expressed satisfaction with arguing that the surveillance recording was incomplete, suggesting potential nefarious actions by the State without alienating the jury. Counsel discovered the victim's prior drug charges through pretrial interviews and mentioned a jury-out hearing regarding this matter. He had also interviewed Angela Green, the Petitioner’s partner, and chose not to call her as a witness after ensuring she understood the implications of providing false testimony. Counsel expressed frustration over receiving only part of a credit history from the State during the second trial, which led to a heated court intervention. He clarified that the handwritten list of post-conviction issues was not an admission of ineffectiveness but rather a comprehensive effort to keep the Petitioner informed and comfortable. The post-conviction court issued oral findings and a written opinion denying the Petitioner’s request for post-conviction relief. It determined that the Petitioner’s claim regarding the timing of trial counsel’s appointment did not violate Tennessee Code Annotated section 40-14-105, as the Petitioner was not indicted or tried within fourteen days. Regarding ineffective assistance of counsel, the court noted that trial counsel had access to an audio recording of the State’s case, a significant advantage not typically available to defense attorneys, and received substantial information from a highly experienced original counsel. Trial counsel testified to dedicating eight to sixteen hours daily to preparation, listening to the trial audio multiple times, and expressed willingness to meet with the Petitioner as needed. The court found no surprises in the evidence presented at the trial and concluded that trial counsel’s preparation was adequate. The court also evaluated the victim’s in-court identification of the Petitioner, noting trial counsel's tactical decision to highlight inconsistencies in the victim’s prior identifications, which aligned with the defense’s theory of innocence. The jury instructions allowed consideration of these inconsistencies. Concerning the absence of certain camera angles, the court found no evidence of bad faith by the State and concluded there was no obligation to preserve the recordings since there was no indication they were exculpatory before being lost. Trial counsel’s strategy to discuss the missing recordings aimed to undermine the police witness's credibility and create reasonable doubt. The court addressed the Petitioner’s claim regarding a mistrial, finding that manifest necessity was present, and no good-faith basis existed to contest the second trial on double jeopardy grounds. It noted Detective Jacobs' serious illness and concluded there was no evidence to suggest the State fabricated his absence. Original counsel objected to a mistrial, and the post-conviction court indicated it would consider the issue of closing arguments, despite not being required to do so. The court determined that the prosecutor did not improperly comment on the Petitioner’s right to remain silent and was allowed to discuss pre-invocation statements made by the Petitioner. The court emphasized that the jury was instructed to adhere to the trial court's guidance, which included the State's burden of proof and that closing arguments should not be considered evidence, particularly regarding the Petitioner’s choice not to testify. The court concluded that trial counsel’s performance was not deficient; even if it were, the Petitioner was not prejudiced. Following the denial of relief, the Petitioner appealed, claiming ineffective assistance of counsel based on several alleged failures: not advising him of a statutory right to a 14-day trial preparation period, failing to file a motion to continue the trial, not moving to suppress the victim’s in-court identification, not objecting to the loss of surveillance footage, and failing to challenge the second trial on double jeopardy grounds. The State contended that the post-conviction court correctly found no ineffective assistance of counsel and that the pro se amendment was properly dismissed. Post-conviction relief is available when a conviction is void or voidable due to constitutional violations, and the burden lies with the petitioner to prove allegations by clear and convincing evidence. On appeal, the court adheres to the trial court’s factual findings unless evidence strongly contradicts them, while issues of law and fact regarding counsel’s performance are reviewed de novo without a presumption of correctness. Defendants have a constitutional right to effective assistance of counsel, requiring petitioners to demonstrate both deficient performance and resulting prejudice. Deficient performance by counsel requires demonstrating that the representation fell below an objective standard of reasonableness, with a strong presumption favoring counsel's conduct as reasonable. A fair assessment of attorney performance must eliminate hindsight bias and evaluate conduct from the perspective of counsel at the time of the challenged actions. Merely failing strategies do not inherently indicate ineffective assistance. Deference is given to informed tactical choices based on adequate preparation. To prove prejudice, there must be a reasonable probability that the outcome would have differed without counsel's errors. Both deficient performance and prejudice must be established to succeed in an ineffective assistance claim; failure to prove either is enough to deny relief. The Strickland standard applies to the right to counsel under the Tennessee Constitution. Regarding a specific claim, the Petitioner was not advised of a fourteen-day requirement under Tennessee law, which only applies to the time between arrest/indictment and trial, not between mistrials. The timeline shows no violation occurred as the Petitioner was indicted on November 18, 2013, and the first trial commenced on April 13, 2015. Thus, trial counsel's failure to advise the Petitioner of this non-issue was not deficient. Additionally, the Petitioner argued that trial counsel should have requested a continuance and was unprepared for the second trial. However, the post-conviction court found trial counsel's preparation commendable, supported by consistent testimonies from both the Petitioner and trial counsel about their meetings and trial materials. The trial judge also praised trial counsel’s performance and noted careful case management, including thorough preparation through review of the first trial's recording and witness interviews. Trial counsel was well-prepared for the second trial, having gained valuable insights from the first trial, and was not surprised by the evidence presented. Although he provided the Petitioner with a handwritten list of potential appellate and post-conviction issues, this did not indicate any admission of ineffective assistance. The post-conviction court found trial counsel's performance to be adequate. Regarding the victim's in-court identification, trial counsel chose not to file a motion to suppress this identification, instead focusing on undermining the victim's credibility due to inconsistent identifications. This strategy was deemed reasonable and not deficient by the post-conviction court. The Petitioner argued that trial counsel was ineffective for not filing a Ferguson motion concerning a missing surveillance camera angle that could have clarified the perpetrator's height. The post-conviction court concluded that the Petitioner did not prove the existence of the recording or its exculpatory value. Trial counsel opted to highlight the incompleteness of the recording to discredit police witnesses, which was recognized as a tactical decision. Finally, the Petitioner claimed ineffective assistance for failing to challenge the necessity of a mistrial and for not raising a double jeopardy objection before the second trial. The post-conviction court determined that there was no valid basis for such an objection and found that a manifest necessity for the mistrial existed. Overall, the Petitioner was not entitled to relief on any of these grounds. Original counsel's performance was not analyzed in the appellate brief, so the focus is solely on trial counsel's performance. The post-conviction court agreed that Detective Jacobs' heart attack was an unforeseeable event not attributable to any party, and original counsel's argument against a mistrial aligned with the Petitioner’s wishes. However, the trial court deemed a mistrial necessary for a fair trial, exercising its discretion as supported by legal precedents. The issue of mistrial was previously reviewed on direct appeal, and plain error relief was denied, indicating trial counsel was not deficient for making a meritless objection. Regarding the Petitioner’s pro se amendment to the post-conviction petition addressing trial counsel’s effectiveness, the State argued it was filed after the deadline set by the post-conviction court. The amendment was submitted on July 15, 2019, well past the May 24 deadline provided after a prior extension. The court struck the amendment, noting the Petitioner was represented when it was filed. Despite this, the court permitted the Petitioner to testify about the ineffective assistance issue during the hearing and addressed it in its order. The court correctly followed Tennessee Supreme Court Rule 28, allowing amendments when they serve the cause's merits. Ultimately, the post-conviction court's judgment was affirmed, indicating the Petitioner was not harmed by the amendment's rejection and is not entitled to relief.