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Sizemore v. State

Court of Criminal Appeals of Tennessee, Nashville

May 20, 2019


          Assigned on Briefs April 16, 2019

          Appeal from the Circuit Court for Lewis County No. 2016-CR-19 Deanna B. Johnson, Judge

         The petitioner, Billy Dean Sizemore, appeals the denial of his petition for post-conviction relief, which petition challenged his 2012 conviction of delivery of a controlled substance, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

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

          Cory L. Ricci, Columbia, Tennessee, for the appellant, Billy Dean Sizemore.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.



         This case arose from an incident in which the petitioner sold two pills of morphine to Dale Potter, a confidential informant, during a controlled drug transaction monitored by law enforcement. State v. Billy Dean Sizemore, No. M2013-01853-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Nashville, July 15, 2014) (Sizemore I), perm. app. denied (Tenn. Mar. 12, 2015). This court summarized the evidence on direct appeal as follows:

[O]n June 2, 2009, Mr. Potter contacted the appellant and asked if he had any pills to sell. The appellant said yes. Mr. Potter informed Agent [Joe] Ashmore about the potential drug buy, and Agent Ashmore equipped him with a recording device . . . and gave him $60 in order to buy three morphine pills from the appellant. Mr. Potter telephoned the appellant, they agreed to meet on Fite Road, and [Mr. Potter and his wife] went to the meeting place. There, the appellant informed Mr. Potter that he had only two pills to sell because he wanted to keep two pills for himself. Mr. Potter gave the appellant $40, and the appellant gave Mr. Potter two pills. Agent Ashmore listened to and recorded the transaction . . . . After the transaction, Mr. Potter gave the pills and remaining $20 to Agent Ashmore, and TBI testing confirmed that the pills were morphine.

Id., slip op. at 6. The jury convicted the petitioner of delivering a Schedule II controlled substance, and the trial court sentenced the petitioner to 14 years' incarceration as a Range III offender. Id., slip op. at 4. On direct appeal, this court affirmed the petitioner's conviction. Id., slip op. at 12.

         The petitioner filed a timely pro se petition for post-conviction relief, and, after the appointment of counsel, he filed an amended petition for post-conviction relief, alleging the ineffective assistance of trial counsel. The State filed an answer to the petitioner's amended petition for post-conviction relief, and the post-conviction court dismissed the petition, denying relief without conducting an evidentiary hearing. On appeal, this court reversed the post-conviction court's decision dismissing the petition and ordered the post-conviction court to conduct an evidentiary hearing. Billy Dean Sizemore v. State of Tennessee, M2016-02531-CCA-R3-PC, slip op. at 6 (Tenn. Crim. App., Nashville, Sept. 26, 2017).

         At the January 9, 2018 evidentiary hearing, trial counsel testified that he represented the petitioner at trial and on appeal in this case. He recalled filing a motion in limine seeking to exclude from evidence an audio recording of certain statements by the petitioner made during the controlled drug transaction as improper character evidence under Tennessee Rule of Evidence 404. Trial counsel recalled that the trial court granted the motion as to one statement but denied the motion as to the statement, "I got $500 worth yesterday and now I got two left," finding that the statement was "relevant as it relate[d] to intent, motive and telling the jury the full story here." The trial court, however, indicated that it would give a limiting instruction to the jury regarding the proper use of that statement. Trial counsel testified that the State played the audio recording of the petitioner's statement for the jury twice during its case in chief, and he requested a jury-out hearing when he believed the State was going to play the recording a third time. He explained that he requested the jury-out hearing rather than object to the playing of the recording because he "didn't want to draw attention to it," arguing that the statement was "particularly prejudicial." Trial counsel acknowledged that the State repeated the petitioner's statement twice during its closing argument.

         Trial counsel acknowledged that he forgot to request the limiting instruction despite having time to review and discuss the jury instructions and that the trial court failed to include a limiting instruction in its charge to the jury. Trial counsel stated that, had he remembered the need for the limiting instruction, he "wouldn't have asked [the court] to put it in there because [he] didn't want to draw attention" to the petitioner's damaging statement. Trial counsel explained that he did not raise the trial court's failure to give a limiting instruction in the motion for new trial because he forgot about the issue and did not receive the trial transcripts until "maybe a day or two before the hearing." During the hearing on the motion for new ...

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