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Tate v. State

Court of Criminal Appeals of Tennessee, Knoxville

September 13, 2017

BILLY TATE
v.
STATE OF TENNESSEE

          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 ...

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