Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 16, 2019
from the Circuit Court for Lewis County No. 2016-CR-19 Deanna
B. Johnson, Judge
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.
R. App. P. 3; Judgment of the Circuit Court Affirmed
L. Ricci, Columbia, Tennessee, for the appellant, Billy Dean
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.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ.,
CURWOOD WITT, JR., JUDGE
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.
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).
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.
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 ...