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Barnes v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 13, 2017

MICHAEL BARNES
v.
STATE OF TENNESSEE

          October 10, 2017 Session

         Appeal from the Criminal Court for Johnson County No. 5911 Lisa Rice, Judge

         The Petitioner, Michael Barnes, appeals the denial of post-conviction relief from his 2013 Johnson County Criminal Court conviction of possession of contraband in a penal institution, for which he received a sentence of fifteen years. In this appeal, the Petitioner contends that he was denied the effective assistance of counsel because trial counsel failed to: (1) "object with regard to the chain of custody"; (2) "object with regard to the entry of exhibits into evidence"; (3) explain to the Petitioner the maximum sentence that he faced; and (4) address the issue of "selective prosecution." Discerning no error, we affirm the denial of post-conviction relief.

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

          Cameron L. Hyder, Elizabethton, Tennessee, for the appellant, Michael Barnes.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Matthew Roark, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         The Petitioner, while incarcerated in the Northeast Correctional Complex (NCC), was indicted for Class C felony "knowingly possess[ing] ten (10) Buprenorphine tablets, a Schedule III controlled substance[.]"[1] A jury convicted the Petitioner of possession of contraband in a penal institution, and the trial court sentenced the Petitioner to fifteen years as a career offender. This court affirmed the conviction on appeal. State v. Michael Barnes, No. E2013-01375-CCA-R3-CD, 2014 WL 869548, at *1 (Tenn. Crim. App. Mar. 4, 2014), perm. app. denied (Tenn. Aug. 26, 2014).

         Petition and Amended Petition for Post-Conviction Relief

         The Petitioner filed a pro se petition for post-conviction relief claiming that he received the ineffective assistance of counsel, that he was denied a fair and impartial jury, and that his due process rights were violated because he was treated differently from other inmates. Specifically, the Petitioner averred that trial counsel was ineffective for failing to: file a motion for discovery; strike a juror who worked for the Tennessee Department of Correction (TDOC); correct the trial court when it stated to the jury that the Petitioner was charged with a Class E felony; object to a juror who was the second cousin of the prosecutor; and obtain a medical expert to explain to the jury that Suboxone "is an opiate blocker and not a drug itself." After appointment of counsel, an amended petition was filed incorporating the previous pleadings and specifically claiming that trial counsel failed to properly advise "the Petitioner of certain rights and failed to assert such rights for the Petitioner, " failed to request a medical expert to evaluate the drugs, failed to fully investigate, and failed to object to the chain of custody of certain evidence.

         Post-Conviction Relief Hearing

         Trial counsel testified that she was employed by the District Public Defender's Office at the time the Petitioner was arraigned and through his jury trial.[2] After the Petitioner's trial, trial counsel accepted employment out of state, and another attorney with the Public Defender's Office ("second trial counsel") filed the motion for new trial and handled the appeal. Trial counsel testified that she had extensive experience in criminal matters and estimated that she had been involved in approximately one hundred and twenty jury trials.

         Trial counsel met with the Petitioner on four occasions at the prison and stated that she was adequately prepared for trial. Trial counsel was questioned about two jurors, one whom the Petitioner claimed worked for TDOC and the other whom the Petitioner claimed was a second cousin of the prosecutor. Trial counsel did not recall a juror who was employed by TDOC or whether the juror who was a second cousin of the prosecutor was on the jury. She stated there was no question about the identity of the Suboxone and that she did not remember the Petitioner's making a request to have the pills examined by an expert. Trial counsel acknowledged that the assistant district attorney failed to move into evidence certain exhibits that were marked for identification. She stated that, during cross-examination, she "explored" issues concerning the chain of custody of the Suboxone but that she "didn't really get anywhere with it" and did not believe she had "enough of an issue to question . . . the chain of custody." She thought that the State was treating the Petitioner too harshly and stated that often these types of issues were handled administratively by TDOC. She explained the minimum and maximum sentence to the Petitioner and said that the Petitioner knew that he was facing a potential fifteen-year sentence. She said that the initial plea offer from the State was ten years consecutive to his prior convictions and that she later obtained a six-year, consecutive offer, and that the Petitioner rejected both offers.

         Second trial counsel testified that she took over representation of the Petitioner when trial counsel left the employment of the Public Defender's Office. She filed a motion for new trial and handled the direct appeal. She raised the issue concerning the chain of custody in the motion for new trial and on appeal. She reviewed the trial transcript and noticed that the State only had the exhibits marked for identification.

         The Petitioner testified that he was serving a twenty-five year sentence when he was charged with possession of contraband. He said that trial counsel met with him at the prison but that he could not remember the number of meetings. He said that the duration of each meeting was about thirty minutes to an hour. He remembered trial counsel's telling him that the State offered a six-year sentence to be served consecutively to his current sentence, which he said angered him because other inmates charged in the incident received three-year concurrent sentence offers. He claimed that trial counsel did not explain the maximum sentence and that "he would have looked more" at the six-year consecutive offer if he had known the maximum sentence he was facing.

         The Petitioner said there were two or three current or former TDOC employees in the jury venire and that trial counsel struck one employee who had worked in his pod. The Petitioner stated that he "didn't push the issue" of striking jurors with ties to the prison because he was told it was "so hard to get" a change of venue.

         The Petitioner stated that he had concerns with the chain of custody "because nobody had been charged [at the prison] in so long[.]" He said there were "two or three people that are on the chain of custody form that didn't testify[.]" He said that he asked trial counsel to object, but she failed to do so. He also stated that he asked trial counsel to file a motion for discovery, but she stated there was no need because "this is an open case and they'd given us everything that we want."

         The Petitioner claimed that another attorney from the Public Defender's Office told him at his sentencing hearing "that they were going to sentence [him] to fifteen years" because "[he] had all of these felonies." He said this was the first time he knew that he was facing a fifteen-year sentence and that he previously thought that "the most that [he] was facing ten years."

         The Petitioner claimed that trial counsel failed to raise certain issues that he wanted argued, such as "selective and vindictive prosecution[]" because the other two inmates charged for the offense were offered concurrent ...


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