Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2017
from the Circuit Court for Blount County No. C-23753 David R.
Petitioner, Keenan Scott McNeal, appeals from the Blount
County Circuit Court's denial of his petition for
post-conviction relief from his conviction for the sale of
one-half gram or more of a substance containing cocaine
within 1000 feet of a child care facility, for which he is
serving an eight-year sentence. On appeal, he contends that
he received the ineffective assistance of trial and appellate
counsel. We affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Lewis Straight III, Knoxville, Tennessee, for the appellant,
Keenan Scott McNeal.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Michael L. Flynn, District
Attorney General; Matthew L. Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
Petitioner's conviction relates to his sale of narcotics
to a confidential informant inside the Petitioner's
house. The transaction was captured in a video recording. The
informant died from a drug overdose before the
Petitioner's trial. State v. Keenan Scott
McNeal, No. E2013-00602-CCA-R3-CD, 2013 WL 6187962, at
*1 (Tenn. Crim. App. Nov. 25, 2013), perm. app.
denied (Tenn. Apr. 8, 2014).
post-conviction hearing, the trial transcript and still
photographs from the video recording of the drug transaction
were received as exhibits. The parties stipulated that the
photographs had been trial exhibits. The motion for a new
trial, the opinion of this court in the previous appeal, a
transcript of a hearing on a motion for a continuance, and a
transcript of the Petitioner's hearing regarding his
decision not to testify were also received as exhibits.
counsel testified that he met with the Petitioner to prepare
for the trial. Counsel said that he showed the video
recording and a police summary to the Petitioner and that he
asked for the Petitioner's version of the relevant
events. Counsel said he asked the Petitioner if others had
been present who could provide helpful testimony. Counsel
said that after he received the laboratory report relative to
the drugs, he showed the report to the Petitioner. Counsel
could not recall how many times he and the Petitioner met or
if they met close in time to the trial, although he said his
usual practice was to meet with a client close to the trial.
Counsel said they discussed strategy.
counsel testified that an interesting point in the
Petitioner's case was that the confidential informant was
deceased. Counsel said the issue of whether the State could
introduce the recording of the drug transaction without the
informant's testimony was significant because there were
no eyewitnesses other than young children. Counsel said that
the Petitioner insisted that the video recording did not show
that anything had been delivered and that counsel advised the
Petitioner that this would be a question of fact for the
jury. Counsel said that the Petitioner's trial was in
November and that counsel had known in the previous June or
July, and possibly earlier in the spring, that the informant
was deceased. Counsel said he discussed the informant's
death with the Petitioner.
counsel testified that he had been involved previously in
another case involving the deceased informant and another
defendant. Counsel said he filed a motion to suppress a video
recording of a drug transaction in that case based upon the
informant's death, which was denied based upon existing
case law. Counsel said that the previous case and the
Petitioner's case were similar because in both, the
evidence included audio recordings of telephone calls and
video recordings of drug transactions. Counsel said that in
the previous case, the court ruled that the informant's
statements to police consisting of descriptions of vehicles,
people getting out of vehicles, the people's attire, and
license plate numbers were inadmissible pursuant to the
Confrontation Clause because the defendant had not been
present for the statements. Counsel said that in the
Petitioner's case, the State agreed to redact the audio
recording of conversations between the informant and police
officers that had not been within the Petitioner's
hearing because they knew how the court would rule on the
matter based upon the previous case. Counsel said the jury
was provided with a transcript of the recording and that a
limiting instruction was given relative to the transcript not
being evidence. Counsel said that, in his opinion, having a
"long protracted pretrial motion" on the
suppression issue was pointless because the parties knew how
the court would rule and how the Court of Criminal Appeals
had ruled previously. Counsel said that based upon the trial
court's ruling in the other case involving the informant,
he advised the Petitioner that the defense was "not in
very good shape."
counsel testified that he seldom advised clients to testify.
He did not recall the advice he gave the Petitioner but
thought he would have advised against testifying because the
State had an issue with the deceased confidential informant
and if the Petitioner testified, the State would have the
opportunity to "fill in all those gaps" relative to
the admissibility of the video recording.
counsel testified that his strategy had been to challenge the
State's evidence regarding chain of custody of the drugs
between the transaction and the informant's delivery to
the police and to highlight the fact that the video recording
did not show what was passed between the Petitioner and the
counsel testified that before the trial, he interviewed the
police officers who arranged the transaction. Counsel said he
had the laboratory report but did not interview the
laboratory technician because the ...