Session May 29, 2014. 
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed as Modified. Appeal by Permission from the Court of Criminal Appeals Criminal Court for Davidson County. No. 2008B1478. Steve R. Dozier, Judge.
Judgment of the Court of Criminal Appeals Affirmed as Modified.
James O. Martin, III., Nashville, Tennessee, for the appellant, Calvin Eugene Bryant, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Benjamin Ball, Leslie E. Price, Jeffrey D. Zentner, Assistant Attorneys General; Victor S. " Torry" Johnson, III, District Attorney General; and Rachel M. Sobrero, Assistant District Attorney General, for the appellee, State of Tennessee.
SHARON G. LEE, C.J., delivered the opinion of the Court, in which WILLIAM C. KOCH, JR., J., joined. CORNELIA A. CLARK, J., filed a separate opinion, concurring as to sections I., II., and III. and dissenting as to section IV. GARY R. WADE, J., filed a separate opinion, concurring in part and dissenting in part as to sections I., II., and IV. and dissenting as to section III., in which JANICE M. HOLDER, J., joined.
SHARON G. LEE, CHIEF JUSTICE.
In this post-conviction appeal, we address two issues: 1) whether trial counsel provided ineffective representation by failing to request a jury instruction on facilitation as a lesser-included offense; and 2) whether a trial counsel's failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant convicted of a greater offense. The defendant was charged with selling illegal drugs to a police informant. The defendant's trial counsel argued that he was entrapped by the informant. A jury instruction on facilitation as a lesser-included offense was neither requested by the defendant's trial counsel nor given by the trial court. The defendant was convicted of selling illegal drugs. The Court of Criminal Appeals affirmed his convictions. The defendant filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective representation by not requesting a jury instruction on facilitation of the sale of a controlled substance. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that 1) trial counsel was not deficient in failing to request a jury instruction on facilitation; and 2) when convicted of a greater charge, a defendant can never show that the absence of a jury instruction on a lesser-included offense was prejudicial to the defendant. We hold that the evidence in this case failed to warrant a jury instruction on facilitation. Accordingly, trial counsel's failure to request a facilitation instruction was not deficient performance. Further, we hold that under certain facts and circumstances, a trial counsel's failure to request a jury instruction on a lesser-included offense can be prejudicial to a defendant and entitle him or her to post-conviction relief based on ineffective assistance of counsel. Our decision in State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008), approving sequential jury instructions, does not obviate an attorney's responsibility to request lesser-included offense instructions when warranted by the proof. We affirm the judgment of the Court of Criminal Appeals, as modified.
In March and April of 2008, Calvin Eugene Bryant, Jr. (" Defendant" ) sold a Schedule I controlled substance, methylenedioxy methamphetamine (commonly known as " Ecstasy" ), to his friend, Terrance Knowles. At the time of the transactions, Defendant was unaware that his friend was working as an informant for the Metropolitan Nashville Police Department.
Police monitored and recorded the transactions. Defendant was arrested and charged with five counts for the sale and delivery of a Schedule I controlled substance within 1,000 feet of a school.
The evidence at trial consisted primarily of testimony from Mr. Knowles and Detective William Loucks of the Specialized Investigations Division of the Metropolitan Nashville Police Department. Detective Loucks testified that he knew Mr. Knowles because he had previously arrested him for a driving violation. After that arrest, Mr. Knowles agreed to act as an informant in a drug investigation that, at least in part, targeted Defendant in a plan to " take out several well-known drug sellers within the area."
Mr. Knowles testified that on March 3, 2008, he telephoned Defendant and asked to buy twenty Ecstasy pills. Defendant quoted Mr. Knowles a price of $140 and said to call back the next morning. On the morning of March 4, 2008, Detective Loucks met with Mr. Knowles, wired him with an audio-recording device, and gave him $140. Detective Loucks and other detectives followed Mr. Knowles to Defendant's house in the Edgehill community of Nashville. They videotaped him entering the house and monitored the sale via the wire Mr. Knowles was wearing. During the sale, Defendant asked how many pills Mr. Knowles wanted, retrieved a bag of pills from a bedroom closet, and gave Mr. Knowles twenty pills. Mr. Knowles paid Defendant $140 and asked him the price for one hundred pills. Defendant told Mr. Knowles it would be $650. Mr. Knowles then left and met with Detective Loucks, who took the pills and sent them for testing. Tests confirmed that the pills were a mixture of Schedule I and Schedule II controlled substances.
On March 21, 2008, Mr. Knowles called Defendant and told him he needed one hundred pills. The men agreed on a time that same day for Mr. Knowles to come by Defendant's house. Before the transaction, Mr. Knowles once again met with Detective Loucks, who wired him for audio surveillance and gave him cash for the pills. Detectives maintained both audio and video surveillance of the transaction. After Mr. Knowles and Defendant reached the agreed-upon location near Defendant's house, they waited twenty-five to thirty minutes until a white Ford Expedition arrived. Mr. Knowles then paid Defendant. Defendant walked to the passenger side of the vehicle and returned with one hundred pills, which he handed to Mr. Knowles. Mr. Knowles left and gave the pills to Detective Loucks. Testing confirmed that some of the pills again contained a mixture of Schedule I and Schedule II controlled substances.
On April 23, 2008, Mr. Knowles called Defendant and told him he wanted two hundred pills. Defendant said he would " work on it" and that the price would be $1,200. Mr. Knowles called Defendant later in the day, and Defendant told him that " the dude [with the drugs] was on his way." Detective Loucks wired Mr. Knowles with audio surveillance equipment and gave him $1,200 to pay for the drugs. Mr. Knowles met Defendant by a basketball court near Defendant's house. Detective Loucks could hear and see the transaction as it occurred. After about an hour, a Jeep Cherokee arrived. Mr. Knowles counted the money and gave it to Defendant, who took the money to the vehicle and returned with two bags of pills. Defendant gave the bags of pills to Mr. Knowles, who then left and delivered the pills to Detective Loucks. Testing revealed that some pills contained a mixture of Schedule I and Schedule II controlled substances. All of these transactions occurred within 1,000 feet of a school. Detective Loucks testified that when he arrested Defendant, Defendant admitted to selling between thirty and forty pills in the preceding six days, but was not willing to reveal his source for the pills.
Joy Kimbrough, Don Himmelberg, and John Higgins (collectively " trial counsel" ) represented Defendant at trial. Trial counsel argued that Mr. Knowles entrapped Defendant, a well-regarded member of the community. Trial counsel made an alternative argument that, should the jury not find entrapment, it should nonetheless find that the facts supported only simple possession and casual exchange, both Class A misdemeanor offenses. Defendant presented character testimony from high school teachers who described him as loving, generous, intelligent, and athletic. The witnesses characterized him as a model citizen, a leader, and the type of person who would do anything for a friend. Their testimony indicated that it was out of character for Defendant to sell drugs.
Defendant testified that he grew up with Mr. Knowles, who was seven or eight years older. Defendant stated that, although he had not previously sold drugs to anyone, Mr. Knowles approached him about two weeks before their first transaction, on March 4, and asked whether Defendant knew anyone who had Ecstasy pills because he had an interested buyer. Defendant told Mr. Knowles he did not know of a drug source and did not want to get involved with any transaction. Mr. Knowles was persistent, however, and called Defendant on a day-to-day basis, telling him he needed to make a drug deal to feed his family. At trial, Defendant admitted that he gave in and helped Mr. Knowles. Defendant did not testify that he was merely a middle-man for someone else, but instead testified to performing all of the activities of a drug dealer.
On cross-examination, Defendant admitted that he never told police he was just doing a favor for a friend. Defendant explained that during the first transaction, when Mr. Knowles asked the price for one hundred pills, he quickly responded with a price of $650 because the price for Ecstasy was common knowledge in his neighborhood. Defendant conceded that, during the second transaction, he had commented on the different names for the variously colored Ecstasy pills and warned Mr. Knowles to be careful of the " brown bulls"
because " people could pass out on them[.]" However, Defendant explained that he was simply passing on the information his supplier had given him.
At the conclusion of the proof, the trial court and counsel discussed the jury charge. During this discussion, the State inquired whether the trial court intended to instruct the jury on facilitation as a lesser-included offense, indicating that it was opposed to a facilitation instruction. The trial court responded, " No, I didn't have it in there." Trial counsel neither responded to this exchange nor requested a facilitation instruction. During closing arguments, trial counsel argued that Defendant lacked any prior disposition to sell drugs and that Mr. Knowles improperly entrapped Defendant into making the sales. Trial counsel argued in the alternative that, even if the jury did not believe Defendant was entrapped, he was guilty, at most, of only simple possession or casual exchange.
At the conclusion of closing arguments, the trial court instructed the jury on the charged offenses and on the lesser-included offenses of sale of a Schedule I drug and simple possession (not within 1,000 feet of a school) or casual exchange of a Schedule I drug. The trial court further instructed the jury that if it found Defendant guilty of a charged offense, it should stop its deliberations and not consider any of the corresponding lesser-included offenses. The jury was instructed only to consider the lesser-included offenses if it found Defendant not guilty of the charged offense or had a reasonable doubt as to Defendant's guilt.
The jury acquitted Defendant of the March 4, 2008 offense, but found him guilty of the March 21, 2008 and April 23, 2008 offenses for sale and delivery of a Schedule I controlled substance within 1,000 feet of a school. The trial court later merged the delivery and sale convictions into two convictions for sale of a Schedule I controlled substance within 1,000 feet of a school.
In the motion for a new trial, trial counsel did not designate as error the trial court's failure to give a facilitation instruction. On appeal, Defendant raised as plain error the trial court's failure to instruct the jury on the lesser-included offense of facilitation. Declining to find plain error, the Court of Criminal Appeals held that it was not clear that trial counsel did not waive the facilitation instruction for tactical reasons. State v. Bryant, No. M2009-01718-CCA-R3-CD, 2010 WL 4324287, at *20 (Tenn. Crim. App. Nov. 1, 2010), perm. app. denied (Tenn. Apr. 13, 2011).
Defendant subsequently sought post-conviction relief, asserting that trial counsel was ineffective by failing to request an instruction on facilitation as a lesser-included offense. This failure, Defendant alleged, was due to oversight, not any formulated trial strategy. At the post-conviction hearing, Ms. Kimbrough testified that she did not recall the discussion at trial about the facilitation instruction and did
not know why she failed to request it. At the time of the trial, she had been primarily practicing criminal law for approximately three years. She speculated that she was too inexperienced and unfamiliar with the law governing facilitation to request the instruction. She denied that she had decided not to request facilitation as part of any deliberate trial strategy and did not recall if she had researched facilitation to prepare for trial.
The post-conviction court denied Defendant relief, finding that he failed to prove by clear and convincing evidence that trial counsel's performance was deficient or that Defendant was prejudiced by any deficiency. The Court of Criminal Appeals affirmed, holding that trial counsel's failure to request an instruction on facilitation was a strategic decision; the theory of facilitation was inconsistent with the defense theory of entrapment; and the evidence at trial did not support a facilitation instruction. Bryant v. State, No. M2012-01560-CCA-R3-PC, 2013 WL 4401166, at *20-21 (Tenn. Crim. App. Aug. 16, 2013). The intermediate appellate court further noted that a defendant's conviction of the greater charge is " irrefutable proof that a trial court's failure to instruct on a lesser-included offense was harmless error." Id. at *22. The Court of Criminal Appeals determined that a trial court's failure to charge a lesser-included offense could never constitute reversible error if the defendant has been found guilty of a greater offense. Id. The intermediate appellate court also stated that, by the same logic, a post-conviction petitioner could never establish prejudice from trial counsel's failure to request a lesser-included offense when the petitioner had been convicted of a greater offense. Id. We granted Defendant's application for permission to appeal to consider 1) whether trial counsel provided ineffective representation by failing to request a jury instruction on facilitation as a lesser-included offense; and 2) whether a trial counsel's failure to request a jury instruction on a lesser-included offense is never prejudicial to a defendant convicted of a greater offense.
The Post-Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 to -122, provides that relief " shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § 40-30-103 (2012). A defendant seeking post-conviction relief must prove by clear and convincing evidence the deprivation of a constitutional right. Id.; see also Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011) (citing Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)). A claim of ineffective assistance of counsel is a mixed question of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (citing Calvert, 342 S.W.3d at 485). The factual findings of a post-conviction court are conclusive on appeal unless the record preponderates against them. Tenn. R. App. P. 13(d); Mobley, 397 S.W.3d at 80 (citing Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009); Vaughn v. State, 202 ...