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McNeal v. State

Court of Criminal Appeals of Tennessee, Knoxville

January 5, 2018


          Assigned on Briefs December 20, 2017

         Appeal from the Circuit Court for Blount County No. C-23753 David R. Duggan, Judge.

         The 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.

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

          Robert 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.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.



         The 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).

         At the 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.

         Trial 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.

         Trial 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.

         Trial 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."

         Trial 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.

         Trial 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 informant.

         Trial 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 ...

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