Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Jackson January 6, 2015
Appeal from the Criminal Court for Davidson County No. 2009-B-1141 Steve R. Dozier, Judge
Elaine Hurd, Nashville, Tennessee, for the appellant, Nazario Araguz.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
This case stems from a controlled cocaine buy. See State v. Alejandro Neave Vasquez and Nazario Araguz, No. M2010-02538-CCA-R3-CD, 2012 WL 5989875, at *1 (Tenn. Crim. App. Nov. 28, 2012), perm. app. denied (Tenn. Mar. 20, 2013). The police planned for an informant to ask for a kilogram of cocaine from a source but then return the cocaine to the source, claiming that it was impure, so that the police could follow the cocaine back to what they called a "stash house." Id. The police observed two Hispanic men arrive at the buy location in a Volkswagen Jetta, bring cocaine to the informant, and then leave the location with the cocaine. Id. at *1-2. The police followed the Jetta to an apartment complex and watched as the driver removed a dark-colored block from the trunk and placed it in a white bag. Id. at *3. The Jetta was driven to a gas station, where the driver removed the white bag from the Jetta and placed it in a Tahoe. Id. at *2-4. The Tahoe was driven by co-defendant Jose Aragus. Id. at *4. Aragus drove the Tahoe to a home on Strand Fleet Drive. Id. Thereafter, petitioner and co-defendant Alejandro Vasquez arrived at the Strand Fleet Drive house in a brown Ford F-150 with a license plate reading, "Araguz." Id. The police observed Vasquez carrying a white bag that he placed in the engine compartment of the F-150. Id. Petitioner and Vasquez then left Strand Fleet Drive with petitioner driving the F-150. Id. The police stopped petitioner and Vasquez on Richards Road after petitioner had driven past an elementary school. Id. at *2, *4-5. At a hearing on petitioner‟s motion to suppress, one of the police officers noted that he did not offer an interpreter to petitioner because he communicated sufficiently in English. Id. at *2. The police recovered a block of cocaine from the engine compartment of the truck, as well as approximately $123, 000 from the interior of the truck. Id. Subsequently, petitioner was indicted, tried, and convicted of conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone and possession with intent to deliver 300 grams or more of cocaine in a drug-free school zone. Id. at *1. Petitioner unsuccessfully appealed his convictions to this court. Id. at *8-14.
Petitioner filed his original petition for post-conviction relief on April 4, 2013. The post-conviction court appointed counsel, who filed an amended petition for relief on August 6, 2013.
At the post-conviction evidentiary hearing, trial counsel testified that his practice was ninety-nine percent criminal work. He said that prior to petitioner's trial, he had participated in approximately twenty felony jury trials. Trial counsel stated that petitioner's family retained him to represent petitioner. He recalled meeting with petitioner both in jail and at the courthouse. Trial counsel said that he reviewed the discovery materials with petitioner and explained his charges to him. He also explained his potential sentence exposure. Trial counsel testified that he did not have difficulty communicating with petitioner and stated that an interpreter was present "for much of the interaction." Regarding petitioner's right to testify at trial, trial counsel stated that he discussed with petitioner whether to testify and that they made the decision that he would not testify. Trial counsel said that he gave his opinion but that it was "ultimately" petitioner's decision. He testified, "I'm not aware of any mitigation or any advantage that his defense could have gained by him testifying."
On cross-examination, trial counsel agreed that the transcript of petitioner's trial indicated that petitioner twice told the court, "'I want to testify but I need an interpreter.'" Trial counsel recalled having an interpreter "[d]uring the trial process, " but he said that he could not remember whether it was before or during the actual trial. He agreed that during the Momon hearing, petitioner indicated that he wanted to testify, that during a recess trial counsel advised him not to testify, and that thereafter petitioner waived his right to testify. In response to questioning from the post-conviction court, trial counsel recalled that petitioner indicated prior to trial that "an interpreter was not needed."
Petitioner testified that he understood "a little bit" of English. He agreed that he could have "uncomplicated simple conversations with people" but did not "understand legal terminology." Petitioner said that he wanted to testify at his trial but did not because trial counsel recommended that he not testify. Petitioner testified that he would have told the jury that the police could have stopped him before he drove through the school zone but they chose not to because "it was a trap." He said, in response to questioning from the court, that he did not have an interpreter for trial because his "lawyer told [him] that it wouldn't look good" to have an interpreter.
On cross-examination, petitioner testified that he told the truth at trial when he "said it was [his] decision not to testify." He clarified that he made the decision "because [his] lawyer told [him] it was best not to testify."
After taking the matter under advisement, the post-conviction court denied relief. It is from this ...