Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 10, 2017
from the Criminal Court for White County No. CR-4761 John D.
Wootten, Jr., Special Judge
Petitioner, Michael Lynn Poston, appeals from the White
County Criminal Court's denial of his petition for
post-conviction relief from his conviction for aggravated
sexual battery, for which he is serving an eleven-year
sentence. On appeal, he contends that the post-conviction
court erred in denying his ineffective assistance of counsel
claim, that the court applied an erroneous legal standard to
the ineffective assistance of counsel claim, and that the
trial judge engaged in improper ex parte
communication with the jury during its deliberations. We
affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Brandon S. Griffin (at hearing) and Michael J. Rocco (on
appeal), Sparta, Tennessee, for the appellant, Michael Lynn
Herbert H. Slatery III, Attorney General and Reporter;
Alexander C. Vey, Assistant Attorney General; Bryant C.
Dunaway, District Attorney General; Phillip A. Hatch,
Assistant District Attorney General, for the appellee, State
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
H. MONTGOMERY, JR., JUDGE.
Petitioner's conviction relates to the unlawful touching
of his step-granddaughter. The victim's father was an
employee of the trial court clerk's office. Trial counsel
moved for a change of venue based upon the father's
employment, and the trial court denied the motion. The
Petitioner was represented by a different attorney at the
trial than in the motion for a new trial. On appeal, this
court affirmed the trial court's denial of the motion for
change of venue. Also on appeal, the Petitioner raised an
issue regarding the trial judge's failure to recuse
himself based upon his professional acquaintance with the
victim's father, but this court noted the absence from
the record of a motion and a hearing transcript relative to a
motion for recusal of the trial judge and presumed that the
trial court's ruling had been correct. State v.
Michael Lynn Poston, No. M2012-02321-CCA-R3-CD, 2014 WL
309648 (Tenn. Crim. App. Jan. 28, 2014), perm. app.
denied (Tenn. June 20, 2014). As relevant to this
appeal, the post-conviction petition and the amended petition
allege that trial counsel provided ineffective assistance by
failing to file a motion for recusal and that the trial judge
engaged in improper ex parte communication with the
jury during its deliberations.
post-conviction hearing, the trial judge was called as a
witness and testified that he recalled speaking with the jury
once during their deliberations. He said that he asked if
they would like the court clerk to order food for them. He
did not recall speaking with them any other time during the
"proceedings." He said that before entering the
jury room, he asked the attorneys for the State and the
defense whether they objected to his asking the jury whether
they wanted food and that the attorneys had not objected.
When asked if he took food to the jurors, he said he did not
think they requested food. When asked if an occasion arose in
which the jury asked him a question during the jury's
deliberations, he answered, "Never."
trial judge testified that trial counsel filed a motion for a
change of venue before the Petitioner's trial and that
the court had conducted a hearing on the motion. The trial
judge stated that he had reserved his ruling on the motion
until completion of voir dire. The trial judge
agreed that, ultimately, he had allowed nine peremptory
challenges, rather than the "normal" eight,
"because of the alternates in this case." The
defense's peremptory challenge sheet was received as an
exhibit, and it reflected that the defense exercised eight
challenges. The trial judge did not recall trial
counsel's requesting removal of an empaneled juror during
trial judge testified that he knew the victim's father
worked in the clerk's office. When asked if the
victim's father handled "only child support and
civil matters, " the judge stated, "He is not a
clerk that's assigned to this court that I've ever
seen." The trial judge stated that his interaction with
the victim's father was "[n]othing more" than
his interactions with a court officer or a person who
appeared in his courtroom. The trial judge identified trial
counsel's fee claim form, which reflected that the court
approved fees of over $3000, which the judge said was
appropriate for a case of this nature. The judge noted that,
ultimately, counsel received $1552.64.
Phillips, the Petitioner's sister, testified that she
attempted to speak with trial counsel before the
Petitioner's trial but that counsel never spoke with her.
She said "we" attempted to speak to counsel
"several times" during court breaks. She said that
counsel asked "us" to call him later but that
counsel did not take the calls. She said that when the
Petitioner was going to a meeting with counsel regarding
trial preparation, "we said tell him that we want to
talk to him" but that counsel refused and did not want
to talk to "us." She did not identify who, other
than she, wanted to speak with counsel. Ms. Phillips said
that she was not an eyewitness to the events underlying the
Petitioner's conviction but that the Petitioner's
wife had called her on the night of the relevant events.
Powell, the Petitioner's sister, testified that she
attempted to schedule meetings with trial counsel. She said
he did not meet with her.
Poston, the Petitioner's wife, testified that she
attempted to speak with trial counsel on several occasions.
She said counsel had been present at his office about two
times but that on five or six occasions, his office had been
locked or an employee had advised her that he was not
present. She said counsel did not follow up with her after
missing the meetings. She said that during the trial, counsel
appeared unconcerned about the missed meetings.
Poston testified that before the trial, Ms. Powell tried to
persuade Ms. Poston not to testify against the Petitioner.
Ms. Poston agreed that Ms. Powell called the victim a
"lying b----." When asked if she had been pressured
by the Petitioner "or people in his camp" to
testify in a way other than how she ultimately testified, Ms.
Poston responded, "Well it was [an] upsetting time for
Petitioner testified that he tried to meet with trial counsel
several times before the trial on January 4 of an unspecified
year. The Petitioner said counsel would state that he was
busy but would contact the Petitioner. The Petitioner stated
that when he called counsel, counsel would state that he was
going to be in Sparta on a specified date and would call the
Petitioner but that counsel never called. The Petitioner
stated that when he called counsel after not hearing from him
on the specified dates, counsel would say that something had
"come up" and that counsel was on his way back to
Cookeville. The Petitioner stated that counsel eventually
called him and told him to be ready to spend all day at
counsel's office on January 1 through January 3 to
prepare for the January 4 trial. The Petitioner stated that
he arrived as instructed at counsel's office at 8:00 a.m.
on January 1, that counsel arrived around 9:00 a.m., that
counsel left at 9:20 a.m. after stating he had something to
do, and that counsel told the Petitioner to return the next
morning. The Petitioner stated that he arrived at
counsel's office at 8:00 a.m. on January 2, that counsel
arrived around 8:30 a.m., that they met for about thirty
minutes, and that counsel made a telephone call and stated he
had to leave. The Petitioner stated that counsel was about
one and one-half hours late for their meeting on January 3,
that they talked for fifteen to twenty minutes, that counsel
stated, "I think we've got it downpat [sic], "
and that their meeting concluded. The Petitioner estimated
that he met with counsel for a total of forty-five minutes to
one hour on January 1 through January 3. The Petitioner
stated that if counsel's fee claim reflected ...