Court of Criminal Appeals of Tennessee, Nashville
JEFFREY S. PETTY
STATE OF TENNESSEE
Assigned on Briefs March 14, 2017
from the Circuit Court for Dickson County No.
22CC-2013-CR-647 Larry J. Wallace, Judge
Petitioner, Jeffrey S. Petty, appeals the Dickson County
Circuit Court's denial of his petition for
post-conviction relief. On appeal, he argues that trial
counsel was ineffective by (1) failing to move for a mistrial
based on juror misconduct; (2) failing to file a motion to
suppress evidence found in the Petitioner's car; and (3)
failing to include certain issues in his motion for new
trial. Upon our review, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
S. Hooper, Waverly, Tennessee, for the Petitioner, Jeffrey S.
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Senior Counsel; Wendell Ray Crouch, Jr., District
Attorney General; and Carey J. Thompson, Assistant District
Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which Norma McGee Ogle and Robert W. Wedemeyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
August 8, 2008, a Dickson County jury convicted the
Petitioner of first degree felony murder and arson. This
court summarized the facts underlying the Petitioner's
convictions in its opinion on direct appeal. State v.
Jeffrey Scott Petty, No. M2009-01621-CCA-R3-CD, 2013 WL
510150 (Tenn. Crim. App. Feb. 12, 2013). In short, the
victim, Kenneth Brake, owned a trailer where the Petitioner
had formerly lived. Id. at *1. The victim's body
was found in the trailer, which had been set on fire.
Id. It was determined that the victim died of a
gunshot wound before the fire started. Id. In a
statement to officers, the Petitioner admitted to planning a
robbery of the victim with a co-defendant, Thomas Dotson.
Id. However, the Petitioner said that he waited
outside while Dotson shot the victim and then lit the trailer
on fire. Id. The jury found the Petitioner guilty of
first degree felony murder and arson, and the trial court
sentenced him to life imprisonment and five years,
respectively, to be served consecutively. Id. The
Petitioner appealed his convictions, which were affirmed by
this court. Id. at *5.
September 27, 2013, the Petitioner filed a pro se petition
for post-conviction relief. On October 16, 2013, the
post-conviction court appointed post-conviction counsel, who
later filed two amended petitions for post-conviction relief.
post-conviction hearing, the Petitioner's trial counsel
testified that he had been a public defender for seventeen
years and that he had handled over fifty murder trials. He
recalled an incident that occurred during trial between one
of the sequestered jurors and a waitress during a lunch
break. It was determined that the waitress was the mother of
one of the witnesses and that the juror and the waitress had
a conversation about an ink pen. After learning about the
incident, the trial court questioned the juror and determined
that the facts of the case were not discussed. Trial counsel
recalled that the court dismissed the juror "out of the
abundance of caution but not because he actually thought that
juror had been prejudicing anyone." Trial counsel did
not ask the juror questions because he "didn't see
any need to, " and because the trial court had
sufficiently questioned the juror.
counsel confirmed that officers searched the Petitioner's
car and found a Walmart receipt showing that the Petitioner
purchased shotgun shells the night of the murder. Counsel
also confirmed that the shotgun shells were the same type of
shells that were used in the murder. Although trial counsel
filed a motion to suppress the Petitioner's statement to
officers, he did not move to suppress the search of the
Petitioner's car. Trial counsel believed that the
officers would have found out eventually about the Walmart
purchase from the Petitioner's co-defendant because the
co-defendant had been with the Petitioner at Walmart, had
accepted a plea deal, and had given a proffer to the State.
Trial counsel also recalled that the Petitioner gave officers
consent to search his car and that there was no evidence that
the consent was coerced or involuntary.
counsel said that he did not file the Petitioner's motion
for new trial and that he could not recall if he discussed
the grounds for the motion with his co-counsel, who drafted
and filed the motion. However, counsel testified that the
motion "clearly was not sufficient . . . [b]ecause it
left out all the things that needed to be taken up on appeal,
" such as challenging the denial of the motion to
suppress the Petitioner's statement. Counsel opined that
the Petitioner "did not get effective assistance of
counsel on this motion."
Petitioner testified that he did not ask his trial counsel to
question the dismissed juror because he "wasn't
aware that would be an issue." The Petitioner
acknowledged that the conversation was only about an ink pen.
The Petitioner also testified that he did not give officers
consent to search his car. The Petitioner said that he asked
officers if he could lock his car, but officers said they
would "lock it up for [him]." However, the
Petitioner also testified that he called his father to come
get his car and that when his father ...