Assigned on Briefs August 15, 2017
Appeal
from the Criminal Court for Hamilton County Nos. 282341,
272364 Don W. Poole, Judge
The
Petitioner filed for post-conviction relief, arguing that he
received ineffective assistance of counsel. The
post-conviction court denied relief. On appeal, the
Petitioner argues that trial counsel's failure to
discover evidence of the investigating detective's DUI
arrest, subsequent reckless driving conviction, and internal
affairs investigation to use to impeach the detective's
reputation for honesty was deficient and prejudicial. After a
thorough review of the facts and applicable case law, we
affirm the denial of post-conviction relief.
Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed
Gerald
L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
Billy Tate.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; Neal Pinkston, District Attorney
General; and Charlie Minor, Assistant District Attorney
General, for the appellee, State of Tennessee.
Robert
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Camille R. McMullen, J.,
joined.
OPINION
ROBERT
L. HOLLOWAY, JR., JUDGE
I.
Factual and Procedural Background
Billy
Tate, the Petitioner, was convicted of burglary of a business
and theft of property valued between $1, 000 and $10, 000.
State v. Billy Tate, No. E2010-01336-CCA-R3-CD, 2011
WL 3841962, at *1 (Tenn. Crim. App. Aug. 30, 2011), perm.
app. denied (Tenn. Nov. 15, 2011). He received an
effective sentence of twelve years. Id. On direct
appeal, this court concluded that "[b]ecause [the
Petitioner] . . . failed to provide an adequate record for
review on appeal, these issues [were] waived, and the
judgments of the trial court [were] affirmed."
Id. After filing a petition for post-conviction
relief, the Petitioner was granted a delayed direct appeal.
Jury
Trial
In our
opinion affirming the Petitioner's convictions on delayed
direct appeal, this court summarized the evidence presented
at the Petitioner's trial as the following:
At trial, Barbara Sue Vaughn testified that she and her
husband, Kenny Vaughn, owned Vaughn Equipment Repair in
Chattanooga, Tennessee. On March 30, 2009, she arrived at the
business at approximately 10:00 a.m. and noticed that someone
had been inside the business. Items that she had left
"sitting just inside the door" the previous Friday
were missing, and in the office, "[her] desk drawers
were pulled out, some stuff was just turned upside down,
[and] some was in the floor . . . ." Mrs. Vaughn
testified that the thief had entered by pulling away the
siding from the back of the building. She and her husband
made a list of all of the items taken, some of which were new
and others used, and they estimated that the total value of
the items taken was $3, 350.
On cross-examination, Mrs. Vaughn testified that she was the
last person to leave the business on Friday, and she locked
the doors. The business was closed over the weekend, and no
one should have been inside. She said that the property is
surrounded by a seven to eight-foot tall chain-link fence.
Mrs. Vaughn further said that a person could get in through a
place where "the fence doesn't go all the way
together."
Detective Early testified that he was assigned to the
property crimes division. On March 30, 2009, he responded to
a burglary at Vaughn Equipment Repair. He noticed several
footprints inside and outside of the building, so he
requested that a crime scene investigator photograph the
prints. Detective Early went to a residence in the same
neighborhood of Vaughn Equipment Repair. [The Petitioner] was
at the residence, and Detective Early had the opportunity to
see the bottom of [the Petitioner]'s shoes. Detective
Early testified that based on his observations, [the
Petitioner]'s shoes matched the shoe prints at the scene.
Detective Early said that he transported [the Petitioner] to
the scene so that the crime scene investigator could
photograph his shoes. While there, Napoleon Dunson approached
him and Mr. Vaughn to ask whether Mr. Vaughn was missing a
chainsaw. Mr. Vaughn confirmed that his chainsaw was missing,
and Mr. Dunson advised Detective Early that he had seen a
person walking away from the business with a chainsaw during
the weekend. Mr. Dunson told Detective Early that he would be
able to identify the person, so Detective Early asked him if
the person with the chainsaw was the person ([the
Petitioner]) sitting in the front seat of Detective
Early's vehicle. Mr. Dunson said that he was
"absolutely positive" that he was the same person.
At this point in the trial, the State asked Detective Early
what happened next, and Detective Early testified that [the
Petitioner] refused to make a statement. [Trial] counsel
moved for a mistrial, but the trial court issued a curative
instruction instead, ruling that there was not a manifest
necessity to declare a mistrial. The trial court instructed
the jury that Detective Early's ...