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Phillips v. State

Court of Criminal Appeals of Tennessee, Knoxville

August 14, 2017


          Session February 23, 2017

         Appeal from the Criminal Court for Campbell County No. 16292 Paul G. Summers, Judge

         The Petitioner, Jerry Phillips, appeals the denial of his request for post-conviction relief from his four convictions for aggravated sexual battery. The Petitioner contends that trial counsel's failure to object to the trial court's jury selection procedures in this case, which deviated from Tennessee Rule of Criminal Procedure 24, as recognized in State v. Frausto, 463 S.W.3d 469 (Tenn. 2015), amounted to ineffective assistance and that appellate counsel was likewise ineffective for failing to argue for plain error review of this issue on appeal. He further submits that the jury selection process violated his rights to due process of law, to a fair and impartial jury, and to intelligently exercise his peremptory challenges. After a thorough review of the record and the applicable authorities, we affirm the judgment of the post-conviction court.

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

          Wesley D. Stone, Knoxville, Tennessee, for the Appellant, Jerry Phillips.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy E. Wilber, Senior Counsel; M. Todd Ridley, Assistant Attorney General; Jared R. Effler, District Attorney General; and Thomas E. Barclay and Lindsey C. Cadle, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.


          D. KELLY THOMAS, JR., JUDGE.


         A Campbell County jury convicted the Petitioner of four counts of aggravated sexual battery following the ten-year-old victim's testimony about specific incidents of the Petitioner's inappropriately touching her. See Tenn. Code Ann. § 39-13-504. For a detailed recitation of the facts underlying those offenses, refer to State v. Jerry Phillips, No. E2011-00674-CCA-R3-CD, 2012 WL 1143831, at *1-3 (Tenn. Crim. App. Apr. 5, 2012), perm. app. denied (Tenn. Aug. 15, 2012). The parties agreed to merge two of the convictions for sentencing purposes, and the trial court then sentenced the Petitioner as a Range II offender to consecutive terms of eighteen years for each conviction, for a total effective sentence of fifty-four years. Thereafter, the Petitioner's motion for new trial was denied, and this court, on appeal, affirmed the sufficiency of the evidence supporting the Petitioner's convictions. See id. *3-4.

         Following his unsuccessful direct appeal, the Petitioner filed a timely pro se petition for post-conviction relief. Counsel was appointed, and an amended petition was filed. Thereafter, substitute counsel was ordered, and a second amended petition was filed on the Petitioner's behalf on July 27, 2015. In the second amended petition, the Petitioner claimed that he received ineffective assistance of counsel in the following ways: (1) trial counsel failed to introduce the "victim's completely different testimony provided during the preliminary hearing"; (2) trial counsel failed to present "the finding by the Tennessee Department of Children['s] Services . . . conclud[ing] that the allegations of abuse were unfounded"; (3) trial counsel failed to object to the jury selection process that deviated from Rule 24 of the Tennessee Rules of Criminal Procedure, as discussed in State v. Frausto, 463 S.W.3d 469 (Tenn. 2015), thereby denying him his "right to intelligently exercise his preemptory challenges, " and more probably than not affected the jury's verdict or "prejudiced the judicial process"; (4) trial counsel failed to object to the State's untimely notice to seek enhanced punishment; (5) trial counsel incorrectly stipulated to the Petitioner's sentencing range classification; and (6) appellate counsel failed to raise the aforementioned errors in the Petitioner's motion for new trial and on appeal. The Petitioner also made a broad allegation that he was denied due process and a fundamentally fair trial. Thereafter, a hearing was held on the petition.

         On appeal, the Petitioner has only presented a claim of ineffective assistance of counsel, both trial and appellate, as it relates to the jury selection process. We will limit our recount of the facts from the post-conviction hearing accordingly.

         The trial judge who presided over the Petitioner's trial in November 2009 testified. The trial judge described the jury selection procedure in his courtroom at that time as follows: (1) initially, a panel of eighteen prospective jurors would be seated for voir dire; (2) after questioning, each side could challenge for cause or use any of their ten preemptory challenges to excuse jurors from this panel; (3) the venire members that remained where instructed to wait in the jury room while another panel of eighteen prospective venire members were seated and questioned; (4) the parties could then challenge for cause a juror from this new panel of eighteen or use any of their remaining preemptory challenges to excuse jurors from this panel or to backstrike[1] any of the jurors in the waiting room; (5) this process continued until at least the desired number of jurors had been reached; and (6) if more than that desired number remained, the trial judge would then randomly excuse jurors by pulling names out of a box until left with only the desired number of prospective jurors.

         According to the trial judge, this process was "the ordinary and custom procedure" for jury selection, being used in all of the five counties in his district at the time the Petitioner's case was tried. He thought the process was efficient because it allowed for "get[ting] any type of jury in two rounds[.]" The trial judge testified that he utilized this procedure for "a number of years" until the Tennessee Supreme Court's decision in Frausto, and then he immediately ceased using this method. The trial judge testified that he did not recall any objection by the defense bar to this process until the Frausto case.

         Trial counsel testified that he was employed with the Public Defender's Office for the Eighth Judicial District when he worked on the Petitioner's case in November 2009. Trial counsel was licensed to practice law in 1974, and his "extensive experience" since that time included working in private practice for "a few months, " before serving as a Campbell County General Sessions Court Judge for fourteen years, and then being employed with the public defender's office for twenty-two years. For all intents and purposes, he was retired at the time of the post-conviction hearing.

         Trial counsel agreed that Rule 24 was not complied with in this case. Furthermore, he confirmed that he did not object to the jury selection process in the Petitioner's case, reasoning, "I've tried many cases before [the trial judge in the Petitioner's case], it's been that same procedure. I've never objected to it. I didn't object in this case. If I had a trial where he's [d]oing it the same way, I wouldn't object today." Trial counsel opined, "If that's bad, that's bad. If it's not, it's not."

         Appellate counsel testified that he had practiced law for twenty years, mostly in the area of criminal defense. Although he had significant trial experience, appellate counsel had handled only two appeals, which included the Petitioner's.

         Appellate counsel confirmed that he filed the Petitioner's motion for new trial, raising therein only a challenge to the sufficiency of the evidence. Appellate counsel stated his understanding that failing to raise a contemporaneous objection at trial waived an issue and that failing to raise an issue in the motion for new trial waived that issue on appeal. However, he also knew that these issues could be reviewed under the plain error doctrine. According to trial counsel, he and the Petitioner discussed "some issues that possibly could have been . . . used in a direct appeal, " but ultimately, they both "felt that they were . . . all post-conviction issues" instead.

         Appellate counsel was asked why he did not raise the trial court's deviation from Rule 24 as an issue in the Petitioner's ...

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