Brandon Harris v. State of Tennessee

Memphis, Tennessee - Criminal defense lawyer represented defendant Brandon Harris charged with especially aggravated robbery, reckless endangerment, and three counts of assault.

This appeal stems from the shooting and robbery of Antoine Hawkins, and the

related assaults of Michael Reynolds, Johnnie Morgan, and Antonio Hawkins. A jury

convicted the Petitioner of especially aggravated robbery, reckless endangerment, and

three counts of assault, all stemming from the same home invasion criminal episode. He

received an effective sentence of twenty-eight years, eleven months, and twenty-five days’

imprisonment. This Court summarized the underlying facts of the Petitioner’s conviction

on direct appeal. See State v. Brandon Harris, No. W2012-02574-CCA-R3-CD, 2014 WL

2809685, at *1-13 (Tenn. Crim. App. June 19, 2014). Because the Petitioner alleges that

trial counsel was ineffective in examining witnesses and making objections at trial, we will

briefly summarize the relevant facts below.

10/16/2020

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On November 21, 2008, Michael Reynolds, Johnnie Morgan, and Antonio and

Antoine Hawkins were at home when they heard a knock on the door. 1

Id. at *1-2.

Reynolds did not recognize the men outside, but Antonio appeared to recognize them, and

invited the Petitioner and another man inside. Id. Antonio asked the two men to stay in

the living room with Reynolds while he went into the back of the house, where Antoine

and Morgan were, but the Petitioner followed Antonio into the back. Id. Morgan attempted

to stop the Petitioner, but the other man who arrived with the Petitioner held a pistol above

Morgan’s head and said, “[g]et down. You know what this is.” Id. at *2. Antonio fled the

house, and a third man, standing outside of the house, chased after him. Id. at *1-2.

The Petitioner went into the back room and shot Antoine three times in the stomach.

Id. at *1-3. After shooting Antoine, the Petitioner rummaged through Antoine’s pockets

and struck him in the head with the butt of his pistol. Id. at *2-3. The Petitioner took

Antoine’s money, watch, and cell phone, began to walk away, and then stopped and shot

at Antoine a final time before fleeing the house in a white Dodge Charger. Id.

Antoine was taken to the hospital, where doctors removed a portion of his intestines.

Id. at *3. Antoine spent a week and a half at the hospital, and an additional month

recovering at home. Id. While recovering, he was unable to care for himself and was taken

care of by his sister. Id.

Reynolds, Morgan, and Antoine each identified the Petitioner in a photo line-up the

day after the shooting. Id. at *1-3. At trial, Reynolds testified that he felt afraid and did

not want to prosecute the shooting, but he had no doubt that the Petitioner was the man he

saw shoot Antoine. Id. at *1. Morgan testified that his “eyes w[ere] glued on [the

Petitioner],” and Antoine testified that he had no doubt that the Petitioner was the person

who shot him. Id. at *2-3.

Juaquatta Harris testified that she was responsible for monitoring inmate phone calls

for the Shelby County Sheriff’s Office. Id. at *4. She testified that all phone calls made

by inmates were recorded and that each inmate was given a separate record identification

(R & I) number to track their calls. Id. A CD of phone calls placed by the Petitioner was

played for the jury. Id. Harris testified that there was a problem at the jail with inmates

using other inmates’ R & I numbers to disguise their phone calls. Id. Harris stated that

she recognized the Petitioner’s voice in the sense that he may have “talked about his cases,

courts, codefendants, [or] relatives.” Id. Harris conceded that she had not spoken with the

Petitioner before, and that inmates’ voices could sound similar over the phone. Id.



1 To differentiate between Antonio Hawkins and Antoine Hawkins, we will refer to them using

their first names. We intend no disrespect by this practice.

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Lieutenant Kee of the Memphis Police Department was the lead investigator in the

Petitioner’s case. Id. at *5. Lieutenant Kee testified that while Antoine identified the

Petitioner in a photo line-up the day after the shooting, Antoine could not identify him as

the shooter. Id. Kee also developed Eric Walker and Jacob Halliburton as suspects, but

none of the victims could identify Walker and Halliburton, so they were not charged. Id.

A third suspect, who went by the nickname Little Jake, was never identified. Id.

The Petitioner testified that, while he was present at the victims’ house, he was not

the shooter. Id. Instead, he testified that he brought Walker and Halliburton to the house

to purchase drugs, and that Walker shot Antoine while robbing him. Id. The Petitioner

testified that he never intended to rob or shoot anyone and that he attempted to stop Walker

from shooting Antoine. Id. On cross-examination, the Petitioner readily admitted that it

was his voice on the jail-house recordings. Id. at *6.

The Petitioner was found guilty of especially aggravated robbery, the lesserincluded offense of reckless endangerment, and three lesser-included counts of assault. Id.

at *7. The trial court ordered the Petitioner’s sentences to run consecutively, for a total

effective sentence of twenty-eight years, eleven months, and twenty-five days’

imprisonment. Id. This Court affirmed the judgments of the trial court on appeal, and

permission to appeal to the Tennessee Supreme Court was denied on November 21, 2014.

Id. at *13.

With the assistance of counsel, the Petitioner filed a timely petition for postconviction relief on April 27, 2015. Several unidentified attorneys were appointed to

represent the Petitioner before current, post-conviction counsel was privately retained on

March 28, 2017. Post-conviction counsel filed an amended petition on August 16, 2017.

At the March 29, 2019 post-conviction hearing, the Petitioner testified that his

family had privately retained trial counsel and that the two had a good rapport. The

Petitioner told trial counsel the name of a potential exonerating witness, Julie, who trial

counsel interviewed but decided not to call at trial. The Petitioner testified that he did not

know Julie’s last name, but he knew she “stayed in the neighborhood.” Julie was the

mother of Antoine’s child, and she reportedly heard Antoine identify someone other than

the Petitioner as the shooter.

The Petitioner was also unsatisfied with trial counsel’s questioning of two of the

victims, Reynolds and Morgan. The Petitioner conceded that Reynolds and Morgan

testified at trial, but he thought that trial counsel should have cross-examined them more

aggressively. Reynolds had told police, and signed a corresponding waiver, that he did not

want to prosecute the Petitioner, even though he positively identified the Petitioner at trial.

The Petitioner believed that it was error for trial counsel to have allowed Reynolds to testify

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without rigorously cross-examining him about why he initially did not want to testify. The

Petitioner also believed it was error not to cross-examine Morgan about his use of glasses.

The Petitioner argued that Morgan was not wearing glasses at the time of the shooting, and

he should not have been able to identify him as the shooter.

Finally, the Petitioner testified that trial counsel failed to call an expert mental health

witness to present a mental health related defense. The Petitioner testified that he had been

diagnosed with general anxiety disorder and took medication for it. The Petitioner had two

mental health evaluations, but the doctors were not presented as witnesses at trial. The

Petitioner argued that mental health testimony could have shown that he was not the

shooter and could have mitigated the severity of his sentence, had it been presented.

On cross-examination, the Petitioner agreed that Reynolds had testified at trial that

he originally did not want to testify because he was afraid of the Petitioner’s gang

affiliations. The Petitioner did not remember trial counsel’s cross-examination of

Reynolds or that trial counsel had elicited testimony from Reynolds that he had not actually

seen the shooting take place. Likewise, the Petitioner testified that he could not remember

trial counsel’s cross-examination of Morgan or that trial counsel thoroughly questioned

him, even though his testimony was unequivocal and unwavering. The Petitioner agreed

that he had seen two mental health experts prior to trial but denied having seen their final

reports. According to the Petitioner, trial counsel never spoke to him about the fact that

the evaluations did not support a mental health defense and would not be useful at trial.

Trial counsel testified that he had been practicing law for nearly twenty years at the

time of the Petitioner’s trial, with roughly ninety percent of his practice in criminal law.

Trial counsel and his paralegal met with the Petitioner numerous times, and he employed

a private investigator to gather facts before trial. Trial counsel considered calling Julie as

a witness, but he decided against it because her testimony was hearsay and would not have

been admissible at trial. He interviewed Reynolds and Morgan, but both insisted that the

Petitioner was the shooter and denied recognizing the other suspects, Halliburton and

Walker. Trial counsel believed that he was successful in cross-examining Reynolds and

Morgan and credited the inconsistencies in their testimony for the conviction on the lesser

included offense of reckless endangerment rather than the charged offense of attempted

second degree murder.

Trial counsel filed a notice of his intent to argue an insanity defense prior to trial

and had the Petitioner examined by mental health professionals. Although the first expert

provided a favorable recommendation for the defense, a second, more extensive evaluation

by the Memphis Mental Health Institute (MMHI) found that the Petitioner was competent

to stand trial and that a diminished capacity defense could not be supported. Trial counsel

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did not call any mental health experts at trial since the issue had been resolved against

them.

Finally, trial counsel testified that he objected to the testimony of, and vigorously

cross-examined, Juaquatta Harris. The post-conviction court noted that trial counsel filed

a motion in limine objecting to Harris’ testimony, but that the motion was ultimately

denied. Trial counsel did not object to Harris’ qualifications as an expert witness because

the State had not proffered her as an expert. Instead, trial counsel cross-examined her about

her ability to recognize voices on the recordings to raise doubt that the Petitioner was the

person speaking on the recording. Overall, trial counsel believed that the results of the trial

were “fantastic” because the Petitioner was found not guilty of attempted second degree

murder as charged.

The post-conviction court denied the petition in a thirty-two-page, written order,

entered on May 5, 2019. The post-conviction court found that the issues raised in the

petition were either waived or had been previously determined. The post-conviction court

found that the Petitioner did not present any additional fact or expert witnesses at his

hearing, and therefore failed to demonstrate prejudice. The post-conviction court

specifically accredited the testimony of trial counsel and noted that the Petitioner had

“selective amnesia.” The Petitioner filed a timely notice of appeal on June 5, 2019.

ANALYSIS

On appeal, the Petitioner argues that trial counsel was ineffective in failing to (1)

investigate, cross-examine, or call several witnesses; (2) present expert testimony to

support a mental health related defense; and (3) object to the State’s introduction of

Juaquatta Harris as an expert witness. In response, the State contends, and we agree, that

the Petitioner failed to demonstrate deficient performance or prejudice.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction or sentence is void or voidable because of an abridgement of a constitutional

right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court’s findings of fact are conclusive on appeal unless the

evidence preponderates otherwise. When reviewing factual issues, the

appellate court will not re-weigh or re-evaluate the evidence; moreover,

factual questions involving the credibility of witnesses or the weight of their

testimony are matters for the trial court to resolve. The appellate court’s

review of a legal issue, or of a mixed question of law or fact such as a claim

of ineffective assistance of counsel, is de novo with no presumption of

correctness.

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Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation marks

omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 303

S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of proving the

factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f);

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).

Evidence is considered clear and convincing when there is no serious or substantial doubt

about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562

(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983

S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel is

guaranteed by both the Sixth Amendment to the United States Constitution

and article I, section 9, of the Tennessee Constitution. Both the United States

Supreme Court and this Court have recognized that this right to

representation encompasses the right to reasonably effective assistance, that

is, within the range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any particular order or even address

both if the [petitioner] makes an insufficient showing of one component.” Goad v. State,

938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and

convincing evidence proves that his attorney’s conduct fell below “an objective standard

of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466

U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once

the petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting

Strickland, 466 U.S. at 694).

Applying the above well settled law to the instant case, we conclude that the

Petitioner is not entitled to relief. The Petitioner argues trial counsel was ineffective for

failing to investigate the facts of the case and call Halliburton, Walker, and Julie as

witnesses; and ineffective in failing to present expert testimony to support a mental health

related defense. As an initial matter, the Petitioner failed to present any of the above

witnesses or a mental health expert at the post-conviction hearing, and this Court will not

speculate as to what their testimony may have been had they been called at trial. Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In any event, trial counsel agreed

that the Petitioner displayed some mental health issues. Even though trial counsel

repeatedly explained the concept of criminal responsibility for the conduct of another to

the Petitioner, the Petitioner insisted he was innocent because he was not the shooter in this

offense. Trial counsel said despite his best efforts, the Petitioner had problems with the

concept of criminal responsibility, so he wanted the Petitioner to be evaluated with this

legal concept in mind.

Trial counsel also filed a notice of his intent “to assert a defense of insanity at the

time of the alleged crime and/or due to [the Petitioner’s] inability to assist counsel.” Within

the same motion, trial counsel attached and sought to introduce the expert testimony of a

forensic coordinator from West Tennessee Forensic Services (WTFS), who concluded that

the Petitioner’s “ability to confer with counsel and participate in his defense [was]

questionable.” The WTFS clinician referred the Petitioner to an intellectual disability

specialist, who later determined that the Petitioner was competent to stand trial and that a

defense based on diminished capacity could not be supported. After receiving the second

opinion and report and considering the limited funding available for additional experts,

trial counsel abandoned the insanity defense and re-focused his defense strategy on

discrediting the State’s witnesses. Although the Petitioner testified as to his current

diagnosis of “generalized anxiety disorder,” there was no proof at the hearing to establish

if or how this diagnosis impacted the offense. Based on the above proof, the postconviction court determined, and we agree, that the Petitioner failed to establish by clear

and convincing evidence that trial counsel was ineffective in failing to present a mental

health defense.

The Petitioner also claims trial counsel was ineffective in his investigation and

cross-examination of witnesses. The record shows that trial counsel employed a private

investigator and spoke with the Petitioner at length about the facts of the case. His

investigator asked the victims if they recognized Halliburton and Walker, but they denied

recognizing either suspect. Trial counsel investigated Julie as a potential witness, but he

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determined that her testimony was either not relevant or inadmissible hearsay. Finally,

trial counsel credited the inconsistencies gained through cross-examination of Morgan on

identification as a major contributor to the reduced verdict. The post-conviction court

accredited the testimony of trial counsel, and we do not review a post-conviction court’s

determination of a witness’s credibility. See Vaughn, 202 S.W.3d at 115 (Tenn. 2006).

The record does not preponderate against the findings of the post-conviction court, and the

Petitioner is not entitled to relief on these issues.

As his last issue, the Petitioner argues that trial counsel was ineffective in failing to

object to the testimony of Juaquatta Harris on the ground that the State had not qualified

her as an expert in voice recognition. At trial, Harris testified, in pertinent part, as follows:

She explained that inmates were given a unique record identification (“R &

I”) number that was used to track the inmate’s calls. All inmate calls were

recorded. A CD of phone calls placed by the [Petitioner] was admitted as an

exhibit and played for the jury.

Harris admitted there was a problem in the jail with inmates allowing

other inmates to use their R & I number. Asked if she used any “voice

recognition” in identifying the [the Petitioner’s] calls, Harris stated that she

recognized the [the Petitioner’s] voice. However, she acknowledged that she

had never had a conversation with [the Petitioner] but explained that she used

“voice recognition” in the sense that [the Petitioner] or someone else may

have said the [Petitioner’s] name in the call, or he may have “talked about

his cases, courts, codefendants, relatives.” Harris stated that she sometimes

compared the voices on a call with other inmates’ voices because inmates’

voices could sound similar.

Brandon Harris, 2014 WL 2809685, at *4.

On direct appeal, the Petitioner argued that the trial court erred in allowing Harris

to testify regarding the recordings of his phone calls from jail because the State did not

qualify her as an expert and she did not have the necessary expertise to testify as she did.

However, the record showed that trial counsel objected to Harris’ testimony on the grounds

that the State failed to disclose her as a witness during discovery, a claim the trial court

resolved in favor of the State. Upon admitting the jail calls, trial counsel made no further

objections. We therefore concluded that the issue had been waived because the Petitioner

was bound by the evidentiary theory set forth at trial and could not change theories on

appeal. Waiver notwithstanding, we determined that any error in not objecting to Harris’

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testimony on this ground was harmless because the Petitioner readily admitted under crossexamination at trial that it was his voice on the calls.

We do not have the benefit of the full CD containing the jail phone calls in the record

for post-conviction relief, and the Petitioner does not refer to any specific statement in his

brief. As detailed in our opinion on direct appeal, the Petitioner testified and conceded to

the following conversations:

The [Petitioner] admitted that it was his voice on the phone calls

recorded from jail. He agreed that, in one of the calls, he claimed that the

police officers circled a photograph of him in an effort to make him believe

that the person who had been shot had identified him. The [Petitioner]

insisted that the police circled the photograph of him. The [Petitioner]

acknowledged that he was not home all day on the day of the shooting,

despite his mother indicating in a phone call that she told the police that he

was at home all day. He also acknowledged that he told his mother in that

phone call that they needed to find more witnesses to say that he was at home.

However, he explained that he was not talking about getting witnesses to

testify about his whereabouts during the time period of the shooting.

The [Petitioner] conceded that, during a phone call with his brother,

he told his brother that he suspected a woman named Dominique of

“informing” on him to the police. He said that he had not told Dominique

anything about the offense but that she might have “hear[d] stuff through the

neighborhood.” He acknowledged telling his brother that he would “beat

that bitch” if she “lied on” him.

Brandon Harris, 2014 WL 2809685, at *6.

In its oral ruling, the post-conviction court concluded that trial counsel “did object

at trial, did complain that [Harris] was not an expert, and the Court ruled that [Harris], in

fact, was not being presented as an expert but was being presented as a keeper of record.”

The post-conviction court further noted that, while acting as the trial court, it “did not allow

[Harris] to identify the voice as this [Petitioner].” Rather, Harris testified “how phone calls

[are] made by RNI numbers and by folks saying who they are. And [Harris] did tell the

jury that no, she cannot identify the voice, she doesn’t know who . . . [the Petitioner] is . .

. but she did identify the procedure in which these phone calls were made.” The postconviction court additionally concluded that this issue had been “previously determined”

and that the Petitioner was not entitled to “plain error relief.” Tenn. Code Ann. § 40-30-

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106 (h) (“A ground for relief is previously determined if a court of competent jurisdiction

has ruled on the merits after a full and fair hearing. A full and fair hearing has occurred

where the petitioner is afforded the opportunity to call witnesses and otherwise present

evidence, regardless of whether the petitioner actually introduced any evidence.”).

While there is some overlap with our resolution of this issue on direct appeal, the

precise question presented here concerns trial counsel’s failure to object to Harris’

testimony on the ground that the State failed to qualify her as an expert in voice recognition.

The Petitioner does not articulate in this appeal how trial counsel was deficient in failing

to object on this ground or whether he would have prevailed had he done so. In any event,

Rule 901 of the Tennessee Rules of Evidence governs authentication of recordings and

states, “[t]he requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to the court to support a finding by the trier

of fact that the matter in question is what its proponent claims.” Rule 901(b)(5) additionally

provides an illustration of how voice authentication may occur and provides,

“[i]dentification of a voice, whether heard firsthand or through mechanical or electronic

transmission or recording, by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.” This court has additionally held

that identifying a caller’s voice “is not the only means by which an audio recording of

a phone call may be authenticated.” State v. Morris Marsh, No. E2013-01343-CCA-R3-

CD, 2014 WL 4366087, at *14 (Tenn. Crim. App. at Knoxville, Sept. 4, 2014) (citing State

v. Hinton, 42 S.W.3d 113, 127 (Tenn. Crim. App. 2000) (911 phone call properly

authenticated when custodian of recording explained the process by which

the recording was “processed and retrieved,” stated the time and date of the phone call, and

the address associated with the phone number from which the phone call originated); State

v. Jabari Reynolds, No. E2015-00499-CCA-R3-CD, 2017 WL 936521, at *14 (Tenn. Crim.

App. Mar. 9, 2017) (jail phone call properly authenticated by keeper of the records based

on description of the process for making the calls and unique inmate number).

The record shows that several months prior to trial, trial counsel filed a motion in

limine to preclude the State from admitting any recordings of jail phone calls. Although

the substance of trial counsel’s motion challenged Harris’ qualifications to identify the

Petitioner’s voice, the trial court denied the motion and admitted the jail phone calls based

on Harris’ status as the keeper of records. Trial counsel also objected to the testimony of

Harris based on the failure of the State to provide Harris as a witness in discovery, which

was also denied. Trial counsel then refocused his strategy and “vigorously crossexamin[ed]” Harris on her ability to identify the Petitioner’s voice on the phone. Trial

counsel attacked the lack of any voice recognition software at the jail and noted that Harris,

as a human substitute, was fallible. However, as noted by the post-conviction court, Harris

did not testify as an expert in voice recognition. Rather, the record shows she identified

the Petitioner as an individual on the calls based on the procedures in place at the jail and

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other information mentioned during the calls unique to the Petitioner’s case. Accordingly,

the jail phone calls were properly authenticated, and the trial court did not abuse its

discretion in their admission. We therefore conclude that the Petitioner has failed to

establish deficient performance or prejudice, and he is not entitled to relief on this issue.

In his last issue, the Petitioner appears to argue that he is entitled to relief based on

the cumulative error doctrine. However, we have discerned no error in this case, and he is

likewise not entitled to cumulative error relief. State v. Hester, 324 S.W.3d 1, 76 (Tenn.

2010).

Based on the analysis above, the judgment of the post-conviction court is affirmed.