Session July 11, 2017
from the Criminal Court for Shelby County No. 09-00594 W.
Mark Ward, Judge
Petitioner, Sheddrick Harris, appeals from the denial of his
petition for post-conviction relief, wherein he challenged
his jury convictions for first degree felony murder and
especially aggravated robbery. See Tenn. Code Ann.
§§ 39-13-202(a)(2), -403. In this appeal as of
right, the Petitioner raises the following ineffective
assistance of counsel claims: (1) that trial counsel was
ineffective for failing to inform the Petitioner that he had
a constitutional right to a trial before a different judge
than the one who signed the search warrant for the
Petitioner's automobile; (2) that trial counsel was
ineffective for failing to seek recusal of the trial judge
because the trial judge had an ex parte communication with a
head deputy that led to enhanced courtroom security
procedures, evincing the trial judge's bias against the
Petitioner, and because the trial judge was the same judge
who issued the search warrant; (3) that trial counsel was
ineffective for failing to challenge the warrantless search
of the Petitioner's vehicle, failing to challenge the
search warrant by requesting a Franks v. Delaware,
438 U.S. 154 (1978) hearing, and failing to challenge the
Petitioner's illegal detention effectuated without
probable cause and without an arrest warrant and solely for
the purpose of gathering additional evidence against the
Petitioner; and (4) that trial counsel failed to adequately
impeach an attorney witness who was facing disciplinary
action by the Board of Professional Responsibility at the
time of the Petitioner's trial. After a thorough review of
the record, we affirm the judgment of the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Segraves (on appeal) and Michael R. Working (at hearing
and on appeal), Memphis, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and D. Gregory Gilbert
and Omar Z. Malik, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
KELLY THOMAS, JR., JUDGE
August 2010, a Shelby County jury convicted the Petitioner of
first degree felony murder and especially aggravated robbery
in connection with "an ill-fated drug deal turned
robbery during which the victim . . . suffered the theft of
over $10, 000 and a fatal gunshot wound to the chest."
State v. Sheddrick Harris, No.
W2010-02512-CCA-R3-CD, 2012 WL 29203, at *1 (Tenn. Crim. App.
Jan. 5, 2012), perm. app. denied (Tenn. May 16,
2012). For these crimes, the Petitioner was sentenced to life
imprisonment without the possibility of parole for the murder
conviction and to a consecutive sixty years for the
especially aggravated robbery conviction. Id.
Trial. The thirty-eight-year-old victim, Corey
Lester, was found shot to death in his Memphis home on May
20, 2008. Harris, 2012 WL 29203, at *1. He had
suffered gunshot wounds to the left side of his chest, his
left knee, and his right knee. Id. at *5. According
to the medical examiner, the chest injury was not survivable.
Police Department ("MPD") Detective Charles Teeters
arrived at the victim's home after the victim's body
had been removed and observed what appeared to be a
"sizeable amount of cocaine" on the kitchen
counter. Harris, 2012 WL 29203, at *4. According to
Detective Teeters, he believed "the substance to be
approximately two kilos of cocaine based upon its appearance
and packaging[, ]" but when he sampled the substance, it
did not have "the normal texture" of cocaine.
Id. Detective Teeters performed a field test of the
substance that did not produce a "positive test for
cocaine, " and later testing at the property room
confirmed that the substance was in fact not cocaine.
Id. There was, however, a small amount of cocaine
recovered from a saucer on the kitchen counter. Id.
In addition, another detective recovered the victim's
wallet from the master bedroom, which contained approximately
$500 inside. Id. at *5.
Detective Alpha Hanks processed the crime scene, noting spent
shell casings found in the front doorway, in a kitchen
garbage can, and behind the living room couch.
Harris, 2012 WL 29203, at *4. She also documented a
blood trail leading from the kitchen to the victim's body
near the pool table, bullet holes in the couch, and one
bullet hole in a pair of blue jeans. Id. She
collected five spent .380 casings and two spent bullets for
ballistics testing. Id.
witnesses, Derron Macklin and Rocky Hilliard, placed the
Petitioner at the scene of the victim's murder. At the
Petitioner's trial, they testified to the following:
Derron Macklin had known the victim "about a year"
and considered the victim a friend. On May 20, 2008, Mr.
Macklin and another individual, Rock[y] Hilliard, met with
the victim at a Memphis Marshall's department store to
arrange a drug deal with the [Petitioner], whom Mr. Macklin
knew as "Sed." As Mr. Macklin explained, "[Mr.
Hilliard] knew where some drugs w[ere] and that [the
Petitioner] want[ed] to see the money first." Mr.
Macklin, however, became nervous about the drug deal because
"who in their right mind is going to show you the money
first without seeing the product." After arranging a
meeting between the victim and the [Petitioner] for later
that day, Mr. Macklin telephoned the victim and told the
victim that he was not "comfortable with what was fixing
to go down" and attempted to call off the transaction.
The victim, however, told Mr. Macklin that he would "go
through" with the meeting.
Mr. Macklin and Mr. Hilliard picked up the [Petitioner] at a
Fred's store and drove to a Shell station near the
victim's home. The victim had told Mr. Macklin that he
did not want Mr. Hilliard to come to his home because Mr.
Hilliard had been recently paroled from federal prison.
Therefore, Mr. Macklin, Mr. Hilliard, and the [Petitioner]
met the victim at the Shell station, where the [Petitioner]
and Mr. Macklin got into the victim's white pickup truck
and went to the victim's home.
When they arrived at the victim's home, Mr. Macklin went
into a living room area and began "racking up" a
game of pool at the victim's pool table. The [Petitioner]
received a phone call and "his whole attitude
changed." The [Petitioner] demanded to see the money, so
the victim "brought out a little black pouch"
containing money and placed it on the kitchen table. The
[Petitioner] became angry over the amount of money presented.
When the victim said, "[T]hat's all the money I got,
" the [Petitioner] shot the victim in the leg. The
[Petitioner] then asked for "the rest of the
money." When the victim told him that the money was
"back there" in the victim's bedroom, the
[Petitioner] directed Mr. Macklin to retrieve the money from
the victim's bedroom dresser. Mr. Macklin went to the
victim's bedroom and returned with another small
container of money.
Next, the [Petitioner] ordered the victim and Mr. Macklin to
the living room couch. The [Petitioner] forced the victim and
Mr. Macklin to "strip down to [their] underwear"
and told them that he was "going to have to . . . kill
[them]." Both men begged for their lives. When the
[Petitioner] telephoned someone but got no answer, the victim
offered the [Petitioner] any of his vehicles in return for
leaving them without any further harm. The [Petitioner]
instructed Mr. Macklin to dress and go start one of the
vehicles-either a white pickup truck or a Corvette. The
[Petitioner] stood in the doorway of the home, watching both
the victim and Mr. Macklin, as Mr. Macklin walked outside to
start the victim's white pickup truck. Mr. Macklin
"got around the truck [and] stuck the key in the
ignition[, but] it didn't fit. So [he] laid down and
Mr. Macklin fled the victim's driveway and ran door to
door seeking help. Unable to summon any help from neighbors,
Mr. Macklin went to the Shell station where he telephoned
Vincent Halliburton to warn him of what had occurred because
Mr. Halliburton was on his way to the victim's home. Mr.
Macklin then telephoned 9-1-1 to report the shooting and
returned to the victim's home to meet the police.
As Mr. Macklin walked back to the victim's home, he saw
the [Petitioner] and Mr. Hilliard in Mr. Hilliard's car.
When Mr. Hilliard and the [Petitioner] saw Mr. Macklin,
"they hit the brakes so [he] just stepped over in the
bushes and then they left." When Mr. Macklin returned to
the victim's home, Mr. Halliburton was already standing
outside. Mr. Macklin told Mr. Halliburton that he and the
victim had been robbed. Mr. Macklin looked inside the door
and saw the victim lying on his back by the pool table.
The police soon arrived, and Mr. Macklin gave them a
statement during which he "tried to shy away" from
discussion of the drugs because he did not want to be charged
in any conspiracy concerning the drugs. Later at the police
station, however, Mr. Macklin admitted to police that he had
been untruthful at the scene and "told them everything
[he] knew at that point, " including identifying the
[Petitioner] as the shooter. He testified, "I told [the
police] that . . . we [were] there to buy drugs and we [were]
getting them from [the Petitioner] and he pulled up a gun and
robbed us." Mr. Macklin only witnessed the
[Petitioner's] firing the first shot in the victim's
leg, did not see any other shots fired, and did not see the
drugs at any time. At trial, Mr. Macklin denied visiting the
[Petitioner's] home on the day of the shooting.
Rocky Hilliard had known the [Petitioner] approximately six
to [twelve] months at the time of the shooting. He met the
victim for the first time on May 20, 2008. Mr. Hilliard
assisted Mr. Macklin in setting up the drug deal by getting
Mr. Macklin in touch with the [Petitioner]. Mr. Hilliard also
expressed some reservations about the deal and told Mr.
Macklin and the victim to "leave it alone." Mr.
Hilliard testified that when he and Mr. Macklin picked up the
[Petitioner] at the [Petitioner's] home, Mr. Macklin went
inside the [Petitioner's] home for "maybe five
minutes" before both men came outside and got into Mr.
Hilliard's car. Mr. Hilliard recalled that the
[Petitioner] carried a large "dark black" bag to
the car, which he assumed contained drugs. Mr. Hilliard drove
the men to the Shell station to meet the victim and waited at
a "wing place" restaurant near the Shell station
while the men went to the victim's home.
Mr. Hilliard spent [thirty] to [forty] minutes "just
sitting" at the restaurant while the men were at the
victim's home. At one point, he telephoned the
[Petitioner] to ask what was taking so long, and the
[Petitioner] told him that they were about to test the drugs.
Sometime later, Mr. Macklin telephoned Mr. Hilliard, told him
"you set us up, " and hung up the phone. Soon
thereafter, the [Petitioner] telephoned Mr. Hilliard for a
ride and told Mr. Hilliard that the victim and Mr. Macklin
were "trying to rob" him. Mr. Hilliard picked up
the [Petitioner] on a nearby street and took him home. On the
trip to the [Petitioner's] home, the [Petitioner]
repeatedly told Mr. Hilliard that the other men had tried to
Mr. Hilliard left the [Petitioner] at the [Petitioner's]
home and traveled alone to Tunica, Mississippi. A[n MPD]
detective telephoned Mr. Hilliard in Tunica to ask him who
killed the victim. Mr. Hilliard was "shocked" to
learn of the victim's death. The next morning and while
accompanied by his attorney, Mr. Hilliard gave a statement to
the detectives and identified the [Petitioner] from a
Harris, 2012 WL 29203, at *1-3
("defendant" altered to "Petitioner"
throughout; all other alterations in the original).
Bailey, Mr. Hilliard's attorney, testified at the
Petitioner's trial that he received a telephone call from
Mr. Hilliard in the "wee hours of the morning" of
May 21, 2008. Harris, 2012 WL 29203, at *4. He
agreed to meet Mr. Hilliard at his office and accompany him
to the MPD station later that morning, where Mr. Hilliard
gave a statement to MPD detectives. Id.
Lambe testified at the Petitioner's trial that he sold
the Petitioner his 1998 black Cadillac DeVille at
approximately 7:30 a.m. on May 21, 2008. Harris,
2012 WL 29203, at *4. According to Mr. Lambe, the Petitioner
paid $4, 900 cash, and he gave the Petitioner a bill of sale
and title transfer. Id. Mr. Lambe further testified
that he had removed all of his personal property from the
vehicle prior to selling it and that he did not leave over
$13, 000 in cash inside the vehicle or a Lorcin .380 pistol
in the glove compartment. Id.
Detective Michael Garner arrested the Petitioner at a Memphis
muffler shop on May 21, 2008. Harris, 2012 WL 29203,
at *4. "The [Petitioner] did not immediately submit, but
when cornered by Detective Garner and his team, the
[Petitioner] 'gave up.'" Id. Although
the Petitioner told Detective Garner that he did not have a
vehicle at the shop, the Petitioner "held a set of keys
in his hand at his arrest. The officers confirmed the keys
belonged to a black Cadillac DeVille parked on the lot. A
plain view search of the vehicle uncovered paperwork relevant
to the [Petitioner's] recent purchase of the car that
morning." Id. MPD Detective Samuel McMinn
assisted Detective Garner in the Petitioner's arrest,
testifying "at trial consistently with Detective
Garner's testimony concerning the circumstances of the
[Petitioner's] arrest and search of the vehicle."
Detective Barry Hanks prepared the search warrant for the
Petitioner's vehicle and conducted the search.
Harris, 2012 WL 29203, at *5. Detective Hanks
"discovered paperwork concerning the [Petitioner's]
ownership of the vehicle and receipts showing the
[Petitioner's] payment of fines on the morning of May 21
in order to have his driving privileges reinstated."
Id. Another officer found "two boxes containing
a large amount of money in the backseat" of the Cadillac
and a handgun in the glove compartment. Id.
cross-examination, Detective Hanks acknowledged that he had
averred in the search warrant affidavit that no money was
recovered at the victim's residence. Harris,
2012 WL 29203, at *5. He explained, however, that "with
the quantity of drugs or suspected drugs that was on the
scene, " he was thinking about "a large amount of
money" that would be needed "to purchase a kilo of
cocaine" and that he "did not even think about the
five hundred dollars" found in the victim's wallet
when preparing the affidavit. See id. He was also
asked about his statement in the affidavit that he did not
know how Mr. Macklin left the scene. Detective Hanks believed
that statement to be true, reasoning,
When [Mr. Macklin] got a chance[, ] he left the scene, [and]
he went down to a service station to try to summon help. . .
. [H]e saw [the Petitioner] later leaving the area with
Rock[y, ] but he did not see [the Petitioner] come out of the
house and get into Rock[y]'s car and leave because he
also was gone from the scene.
Agent Raymond DePriest, a firearms examiner, determined that
the Lorcin .380 semi-automatic pistol found in the glovebox
of the Cadillac was "fully functional."
Harris, 2012 WL 29203, at *5. "Through his
examination of the shell casings and bullets recovered at the
scene, he determined that they all were consistent with
having been fired from the pistol. Likewise, he determined