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McCathern v. State

Court of Criminal Appeals of Tennessee, Nashville

November 14, 2017

ERIC DEMOND MCCATHERN
v.
STATE OF TENNESSEE

          Session September 12, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-C-2600 Cheryl A. Blackburn, Judge

         The Petitioner, Eric Demond McCathern, was convicted after a jury trial of possession of twenty-six or more grams of a substance containing cocaine within one thousand feet of a school with the intent to sell or deliver, possession of drug paraphernalia, and aggravated burglary committed with the intent to commit possession of a substance containing cocaine with the intent to sell or deliver. After this court denied relief on direct appeal, the Petitioner filed a post-conviction petition alleging ineffective assistance of counsel. The Petitioner asserts that his trial counsel performed deficiently in advising him to plead guilty to aggravated burglary during trial because the plea essentially conceded elements of the contested drug charge. The Petitioner also asserts that trial counsel was deficient in failing to request a severance or move to suppress evidence. The post-conviction court denied relief. After a review of the record, we conclude that the Petitioner has not established prejudice, and we affirm the judgment of the post-conviction court.

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

          Jessica Van Dyke, Nashville, Tennessee, for the appellant, Eric Demond McCathern.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Glenn Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         Trial

         The Petitioner was tried twice for the offenses at issue, with the first trial resulting in a hung jury. The evidence presented at both trials was that a "Flex" team of Metropolitan Nashville police officers approached an area known as "the Hilltop, " where they were aware that drug trafficking was taking place. Because of the area's topography, prior attempts to surprise drug activity had been unsuccessful, as police vehicles could be seen approaching from a distance. On the night of May 23, 2007, three officers parked several blocks away and approached on foot. They observed a stopped vehicle and saw two men, the Petitioner and his co-defendant, approach the vehicle. Officers suspected a drug transaction.

         The Petitioner and the co-defendant walked away from the vehicle to a nearby apartment unit. The unit was completely dark and appeared abandoned. The Petitioner entered the waist-high window, and the co-defendant had put his torso through the window when police called for him to stop. The co-defendant appeared to put something down and moved away from the window. On the window sill, police discovered a gun; immediately inside, on the floor next to the window, were two digital scales and a small quantity of cocaine. Officers called for the Petitioner to exit the apartment, which he did through another window. The Petitioner was carrying $163. He did not have a telephone.

         After being informed of his right to remain silent, the Petitioner stated that he did not live at the residence. Officers searched the residence, which appeared uninhabited. Only two pieces of furniture were in the apartment: plastic chairs placed immediately in front of the two windows. One chair had a jacket hung over the back of it. There was no edible food, no other furniture, and no other clothing or personal items. One room had trash and feces[1] on the floor. In the closed oven, officers found a large quantity of cocaine. Plastic sandwich baggies were laid out in the kitchen. Officers had not heard the oven door open while the Petitioner was inside the building, and they did not attempt to lift fingerprints from the oven. The Petitioner was in the apartment "[m]aybe a minute, maybe two."

         The manager of the apartment building testified at both trials. In the first trial, he testified that he had boarded up the door to the unit because he had rented it but the tenants never moved in, instead positioning a chair in front of a window. He testified that the leaseholder's name was Eric Davis. At the second trial, the manager merely testified that the apartment was rented but not occupied and that he had told the tenants that they needed to move in, turn on utilities, and otherwise live there. He testified that they had "taken possession of it" but only by putting a chair at a window and it appeared as though they were not living there.

         At the beginning of the first trial, after the indictment was read, the Petitioner stated that he would plead guilty "to the burglary" and plead not guilty to the other charges. The trial proceeded without further colloquy regarding this plea. At the close of the State's proof, trial counsel moved for judgment of acquittal, arguing that there was no evidence that the Petitioner knew about the drugs in the oven. The trial court expressed its understanding that the Petitioner had pled guilty to burglary but not aggravated burglary, and then the judge proceeded to draw attention to the fact that as part of the burglary charge, the Petitioner had admitted that he was intending to commit a felony inside the residence. The court stated that based on the plea, it would deny the motion for judgment of acquittal on the other counts. The court also noted that because the Petitioner's plea was to a lesser-included offense, it would still charge the jury with the greater offense of aggravated burglary.

         During closing argument, trial counsel argued that the Petitioner had acknowledged entering the abandoned building but that the State had not proven he had any possessory interest in the drugs in the oven. In response to the prosecution's argument emphasizing the underlying felony in the aggravated burglary count, trial counsel implied that the Petitioner was making an unsuccessful attempt to burglarize an existing drug house. The prosecutor noted that there was no real dispute regarding the quantity of drugs or the fact that the crime occurred in a school zone. In arguing that the elements were established, the prosecutor reminded the jury that the Petitioner had "pled guilty to burglary, which includes possession and intent, so he's pled guilty to that. He was acknowledging he was in the house, I guess, but that contains the component of committing a felony, which the felony is possession for resale."

         The jury was unable to reach a verdict on any of the charges during the August 2010 trial, and the trial court declared a mistrial on all three counts. The case was ...


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