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Carlisle v. State

Court of Criminal Appeals of Tennessee, Jackson

June 7, 2017

ZACHARY CARLISLE
v.
STATE OF TENNESSEE

          Assigned on Briefs April 11, 2017

         Appeal from the Criminal Court for Shelby County No. 11-03600 James M. Lammey, Judge

         Petitioner, Zachary Carlisle, was convicted of voluntary manslaughter and employing a firearm during the commission of a dangerous felony and received an effective sentence of thirty years, all of which was affirmed on direct appeal. State v. Zachary Carlisle, No. W2012-00291-CCA-R3-CD, 2013 WL 5561480, at *1 (Tenn. Crim. App. Oct. 7, 2013), perm. app. denied (Tenn. Mar. 17, 2014). Petitioner subsequently filed a petition for post-conviction relief, alleging ineffective assistance of counsel and prosecutorial vindictiveness. The post-conviction court denied relief after a hearing. We affirm the denial of post-conviction relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Monica Timmerman, Memphis, Tennessee, for the appellant, Zachary Carlisle.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual and Procedural Background

         Over eight years ago, Petitioner killed Neal Krauss. He was indicted for voluntary manslaughter and employing a firearm during the commission of a dangerous felony as a result of his role in a drug deal gone wrong. Id. at *2-3. The facts underlying Petitioner's conviction indicate that the victim arranged to purchase drugs from Petitioner but did not have enough money for the transaction. Id. at *2. On the way to meet Petitioner, the victim tore a green paper flyer into strips and wrapped a dollar bill around it to create a fake wad of money. Id. When Petitioner realized that he was being duped, he pulled a gun on the victim. Id. at *3. A brawl ensued between Petitioner and the victim during which the victim was shot. Id. The victim died shortly thereafter. After a jury trial, Petitioner was convicted of both offenses. Id. at *1. The trial court sentenced Petitioner to consecutive fifteen-year sentences for the convictions. Id.

         Trial counsel failed to file a timely motion for new trial. Id. at *19. On appeal, Petitioner challenged the sufficiency of the evidence, the failure of the indictment to charge an offense, the lack of a jury instruction on self-defense, and the trial court's instruction that Petitioner's statements could qualify as a confession. Id. at *1. This Court affirmed the judgment of the trial court, finding the evidence and indictment sufficient and that plain error did not entitle Petitioner to relief for the remaining issues. Id. The supreme court denied permission to appeal.

         Subsequently, Petitioner filed a lengthy pro se petition for post-conviction relief. In the petition, he raised various issues, including: (1) the failure of the State to provide adequate notice of enhanced punishment; (2) the violation of his Sixth Amendment right to a trial by jury due to the trial court's use of enhancement factors; (3) the violation of double jeopardy rights by dual convictions for voluntary manslaughter and employing a firearm during the commission of a dangerous felony; (4) the failure of the State to provide evidence favorable to his defense; (5) the State's use of perjured testimony; (6) ineffective assistance of counsel; and (7) prosecutorial vindictiveness with regard to the indictment of employment of a firearm. With regard to trial counsel, Petitioner claimed that he was ineffective because he failed to communicate plea offers, failed to discuss plea offers and potential sentences with Petitioner, failed to confer with Petitioner with regard to his defense, failed to properly investigate witnesses, failed to object to jury instructions, and failed to file a motion for new trial. Petitioner attached several items to his petition for relief, including an affidavit from trial counsel in which trial counsel admitted that he did not timely file the motion for new trial due to "an unexpected traumatic event" that occurred at his office on the date the motion was set to be filed. Petitioner also attached a copy of a complaint made to the Tennessee Board of Professional Responsibility against trial counsel by his mother.

         The post-conviction court appointed counsel and an amended petition was filed. The amended petition incorporated the allegations from the pro se petition and pointed to additional deficiencies by trial counsel. The amended petition also alleged that the State's decision to seek an indictment for employing a firearm during the commission of a dangerous felony after Petitioner decided to go to trial amounted to a rebuttable presumption of prosecutorial vindictiveness.

         At the hearing on the post-conviction petition, the post-conviction court heard testimony from an Assistant District Attorney General in Shelby County. He was not originally assigned to Petitioner's case but took over the case prior to trial. He recalled that the State had "extended an offer of six years" to Petitioner before he was involved in the case. The "offer was just out there . . . kind of going back and forth between counsel [for Petitioner and the State]." He originally honored the offer but eventually decided that the case had been "under-indicted" based on the facts. Counsel for the State felt that the case should have been indicted as second degree murder. After examining the facts and becoming more familiar with the case, the State decided to explore the option of an additional indictment and, as a result, amended the offer "from six years to 15 years at 60 percent." The State sought an additional indictment on the firearm charge but denied seeking the indictment as a result of Petitioner's rejection of the plea deal. Counsel for the State evaluated the facts, felt the State had a strong case, and determined that the matter would eventually go to trial.

         Counsel for the State recalled that witness Brian Nelson[1] contacted the State with information about the incident. The State did not doubt Mr. Nelson's version of the events, finding him to be "truthful" despite the "considerable risks [he faced] to come forward and testify" due to his perception as a "jailhouse snitch."

         Initially, the Public Defender's Office represented Petitioner. Substitute counsel was appointed to represent Petitioner in May of 2010 after the Public Defender's Office was removed due to a conflict of interest. She recalled communicating the existing six-year offer to Petitioner and he "decided to go to trial." Substitute counsel recalled that the matter had been unsuccessfully resubmitted for an indictment on second degree murder. Substitute counsel recalled Petitioner rejected the offer in August of ...


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