IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 3, 2015 Session

JAMES TODD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 07-00075 James M. Lammey, Judge

No. W2014-00677-CCA-R3-PC - Filed May 6, 2015

Petitioner, James Todd, filed a petition for post-conviction relief, alleging that his trial 

counsel provided ineffective assistance by inadequately presenting a motion to suppress 

to the trial court. Because trial counsel’s performance was not deficient, the postconviction court’s denial of the petition is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.

WEDEMEYER and ROBERT H. MONTGOMERY,JR., JJ., joined.

Marvin Adams III (on appeal and at hearing), Larry Copeland and Samuel Rodriguez (at 

hearing), Germantown, Tennessee, for the petitioner, James Todd.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Amy Weirich, District Attorney General; and Bryce Phillips, Assistant District 

Attorney General, for the respondent, State of Tennessee.

OPINION

Procedural Background

This is an appeal from the Shelby County Criminal Court’s denial of Petitioner’s 

petition for post-conviction relief. 
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On Father’s Day, June 19, 2006, Petitioner attacked Paula Fowler and her threeyear-old son inside their home. On August 22, 2006, the Petitioner admitted to a police

detective that over a period of five minutes, he struck Ms. Fowler’s head with a brick 

approximately forty times and also hit her son with a brick three times on the head. A 

Shelby County jury convicted Petitioner of attempted first degree murder, a Class A 

felony, and aggravated assault, a Class C felony. The trial court ordered an effective 

sentence of thirty-five years. Petitioner’s convictions and sentences were affirmed on 

direct appeal. State v. James Todd, No. W2009-01475-CCA-R3-CD, 2011 WL 198635 

(Tenn. Crim. App. Jan. 12, 2011), perm. app. denied (Tenn. July 15, 2011).

On June 4, 2012, Petitioner filed a pro se petition for post-conviction relief with an 

accompanying brief. On August 6, 2012, the post-conviction court appointed counsel, 

who filed an amended petition on June 6, 2013, alleging that trial counsel provided 

ineffective assistance in pursuing a motion to suppress Petitioner’s statement to police. 

The post-conviction court held an evidentiary hearing on February 27, 2014, and denied 

the petition the same day. A timely notice of appeal was filed.

Factual Background

The record does not contain a transcript of the suppression hearing, but the 

following facts were set forth in this Court’s decision on Petitioner’s direct appeal.

Robert Wilkie, a detective with the Memphis Police Department, 

testified that in June 2006 he was assigned to the case involving the attack 

of Paula Fowler and her three-year-old son. Detective Wilkie stated that 

Lieutenant Mark Mitchell of the West Memphis Police Department notified 

him that Todd, [Petitioner], was willing to talk to him regarding the case.

On August 22, 2006, Detective Wilkie drove to the West Memphis 

Police Department and observed Todd standing at the front of the station 

smoking a cigarette. He asked if Todd would be willing to come [to] the 

Memphis Police Department so that he could ask him some questions, and 

Todd agreed. Todd said that he was concerned about not having a ride 

home to West Memphis, and Detective Wilkie assured him that he would 

have a ride back home if he needed one. Todd rode in the front seat of 

Detective Wilkie’s unmarked police car back to Memphis and was not 

handcuffed.

Upon arriving at the Memphis Police Department, Detective Wilkie 

took Todd to an interview room on the eleventh floor. Detective Wilkie 

and Todd sat in silence for approximately five or ten minutes until 
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Lieutenant Miller entered the room. At that point, Detective Wilkie did not 

immediately advise Todd of his Miranda rights. Detective Wilkie first 

asked Todd if he had known Charles Fowler. Todd explained that he had 

known Charles because he was a friend of Charles’s brother, Sam. He said 

that he did not know what had happened to Charles’s family other than the 

fact that Charles had committed suicide. Detective Wilkie testified that 

Todd was not under arrest and was free to leave at that point during the 

interview. He further testified that Todd never stopped talking and never 

informed him that he wanted to be taken home to West Memphis.

During the interview, Detective Wilkie informed Todd that Charles 

Fowler’s wife, Paula Fowler, and their three-year-old son had been 

attacked, and his name had “come up in the investigation.” He showed 

Todd some photos from the crime scene, which included broken bricks and 

blood on the walls and the floor. He asked Todd to consent to give him a 

DNA sample so that he could be eliminated as a suspect. Todd initially 

refused to give a DNA sample. However, when Detective Chatman walked 

into the room with a warrant to obtain a sample of Todd’s DNA, Todd 

“almost simultaneously” consented to the DNA sample. Detective 

Chatman served him with the warrant, and Todd signed the consent form to 

provide a DNA sample. Detective Wilkie said that they took a break, and 

he asked Todd if he needed anything to eat or drink or if he needed to use 

the restroom. During this fifteen-minute to twenty-minute break, Detective 

Wilkie said that Todd was not handcuffed or shackled. He also said that he 

recalled that the door to the interview room was open.

Following the break, Detective Wilkie provided Todd with an advice 

of rights form regarding his Miranda rights. Todd read this form aloud and 

signed it. Todd also indicated that he understood his rights and wished to 

talk to the officers. Detective Wilkie and Lieutenant Mark Miller, who was 

present, also signed the form. Detective Wilkie informed Todd that they 

were giving him an opportunity to tell them what happened before the DNA 

results came back because once his DNA linked him to the crime they 

would not ask him any more questions about what happened. Todd 

immediately responded, “Well, how much time do I get?” Detective Wilkie 

told Todd that sentencing was “lawyer stuff” that the officers did not 

determine. Then Todd, who was still holding the crime scene photographs, 

dropped his head and said, “Okay, I did it.” Detective Wilkie asked Todd 

to tell him what happened. During his verbal statement, Todd never stated 

that he wanted to stop talking and never indicated that he wanted to leave. 

After Todd gave the verbal statement, Lieutenant Miller left the interview 
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room. Detective Chatman and Detective Wilkie were present when Todd 

subsequently provided his formal, written statement. The written 

statement, which consisted of Detective Wilkie typing his questions and 

Todd’s answers, started at 12:49 p.m. and was read and signed by Todd at 

1:40 p.m. During this time period, Detective Wilkie stated that he never 

made any threats or promises to Todd in exchange for his statement. In 

addition, he stated that Todd never asked to speak with an attorney during 

the interview process. Detective Wilkie said that Todd was not under arrest 

at the time that he and Todd signed the advice of rights form; however, 

Todd was under arrest after he gave his statement of admission. The first 

time that Todd was handcuffed or restrained in any way was after he had 

signed his written statement and as the officers were preparing the charging 

documents. Detective Wilkie stated that Todd never indicated that he did 

not understand what was happening. In addition, he stated that Todd never 

told him that somebody else had threatened to hurt him if he did not 

commit the offenses. Detective Wilkie said that if Todd had never talked to 

him about what happened, he would have made sure that Todd was taken 

back to West Memphis. Detective Wilkie said that no tape or video 

recording was made of Todd’s statement in accordance with police policy.

Detective Jerry Chatman testified that he assisted Detective Wilkie 

in taking Todd’s typewritten statement on August 22, 2006. He was 

present during Todd’s questioning and observed Detective Wilkie typing 

his questions and Todd’s answers for the written statement. Detective 

Chatman said that he also retrieved a search warrant to obtain a sample of 

Todd’s DNA. He stated that the only people present were Todd, Detective 

Wilkie, and himself at the time that the written statement was being typed. 

Detective Chatman said that Todd’s statement was taken in a small 

interview room and that Todd was not handcuffed or restrained in any way.

He said that Todd never indicated that he did not understand his Miranda 

rights prior to giving his written statement. He also said that Todd never 

said that he wanted to stop talking during the written statement. He further 

stated that he and the other officers never threatened or promised Todd 

anything during the interview process and that Todd never asked for an 

attorney. Detective Chatman stated that he observed the entire written 

statement and saw Todd read, initial, and sign the statement.

Todd testified that on August 22, 2006, a West Memphis police 

officer informed him that a Memphis detective wished to speak with him. 

Todd said that he went to the West Memphis Police Department and 

approximately thirty or forty minutes later Detective Wilkie arrived and 
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asked him if he was willing to ride over to the Memphis Police Department 

to talk to him. Todd agreed, and Detective Wilkie said that he would make 

sure that he had a ride back to West Memphis if he needed one. Todd said 

that he did not feel as though he were under arrest at the time that he left 

West Memphis with Detective Wilkie.

Todd stated that when they arrived in the interview room at the 

Memphis Police Department, the officers “shackled” his right leg to the 

floor prior to any questioning. Detective Wilkie told him that this restraint 

was police procedure. Initially, he and Detective Wilkie were in the 

interview room alone, and Detective Wilkie showed him some 

photographs. Detective Wilkie then left to get Todd a cigarette and 

returned with two more officers, including Detective Chatman. The 

officers asked Todd for a blood sample, which he initially refused. 

However, once the officers returned with a warrant for a DNA sample, 

Todd consented to provide a DNA sample.

Todd said Detective Wilkie asked him if he had known Charles 

Fowler, and Todd responded that he had known Charles through Charles’s 

brother, Sam Fowler. Todd said that Detective Wilkie did not advise him 

of his rights at that point. Todd said that other than knowing Charles 

Fowler through Sam, he “didn’t know nothing.” Todd acknowledged that 

he never told Detective Wilkie that he did not want to talk to him about 

Charles Fowler.

Todd stated that Detective Wilkie took a break and then came back 

in the interview room with Detective Chatman. The detectives began 

asking Todd if he knew Charles Fowler’s wife and son, and Todd 

responded that he did not know them. Todd said that the detectives told 

him that if he would not agree with them that he would “get a hundred 

years from the judge” and that his statement “could help” him regarding 

sentencing. Todd told the detectives that he did not know anything about 

the case.

Detectives Wilkie and Chapman took a break. When they returned, 

they were accompanied by another officer who obtained the DNA sample 

from Todd. Todd said that the detectives never told him that he had the 

right to remain silent or the right to an attorney. However, Todd admitted 

that he agreed to speak with Detectives Wilkie and Chapman.
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Todd claimed that he did not see the advice of rights form until after 

he was arrested. Also, Todd said that he was unsure whether he signed the 

advice of rights form before or after he gave the formal, written statement. 

Todd acknowledged that he provided the words that were in his written 

statement. He further acknowledged that Detective Wilkie typed his 

question and then typed Todd’s answer to that question. Todd said that he 

was able to read the question and his answer as Detective Wilkie typed it.

He said that he did not read the statement before he signed it because he 

had given “them the statement already.” Todd said that he was not told he 

was under arrest until after he gave his statement. He claimed his Miranda 

rights were never read aloud to him prior to him giving his statement. He 

said that he never asked for a lawyer because “he never had that 

opportunity.” He also claimed that he was never told that he had a right to 

an attorney.

Todd stated that his leg was shackled for the entire interview process 

except for when he asked to use the bathroom. Detective[s] Wilkie and 

Chapman and another officer took him to the restroom and shackled his leg 

again when he was returned to the interview room. Todd acknowledged 

that the advice of rights form informed him that he was under arrest, that he 

had a right to a lawyer and that if he did not have money, an attorney would 

be appointed for him, and that everything he said could be used against him 

in a court of law. However, Todd claimed that he was not advised of these 

rights until after he had given his statement. However, Todd acknowledged 

that he had been arrested before and had been advised of his rights in those 

previous, unrelated cases.

At the conclusion of the hearing, the trial court found Todd’s 

testimony to be “unbelievable” and “totally incredible.” It did not believe 

that Todd was shackled to the floor in the interview room. The court also 

found that Todd gave his statement freely and voluntarily and that it saw 

nothing in the proof that Todd had ever indicated that he wanted to speak 

with an attorney. For all of the aforementioned reasons, the trial court 

refused to suppress Todd’s statement.

James Todd, 2011 WL 198635, at *1-4. The suppression issue was specifically raised on 

direct appeal, and this Court affirmed the trial court’s decision. Id. at 13.

Petitioner testified at the post-conviction hearing. His factual account of his 

encounter with the police was consistent with his testimony at the suppression hearing. 

Petitioner acknowledged that his trial counsel filed a motion to suppress his statement. 
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He could not recall whether he testified at the suppression hearing but agreed that it was 

possible that he did. When asked what more trial counsel could have done during the 

suppression hearing, Petitioner responded that he should have been “more aggressive” 

and “professional” during cross-examination of witnesses. Petitioner also complained 

that the photographs of the crime scene had been “tampered with.”

Trial counsel testified that he was one of two public defenders representing 

Petitioner. He signed and prepared the motion to suppress. Trial counsel explained the 

process through which he prepared the motion:

I talked to Mr. Todd about any and all points of the way he was 

interviewed, what happened during this when he met the police . . . I 

interviewed [Petitioner], and I asked of any concerns that he had. I 

established the details of which he was questioned, and then I prepared 

them in the way that I felt should be prepared to present to the court.

The motion to suppress contained thirteen numbered paragraphs, one of which made a 

reference to the fact that officers transported Petitioner to the police station. Trial 

counsel could not remember exactly what details of Petitioner’s transportation to the 

police station he brought out at the suppression hearing. Trial counsel acknowledged that 

he did not include within the motion to suppress a factual reference to the officers’

showing Petitioner photographs of the crime scene or presenting him with a warrant for a 

DNA test.

The record shows that a full hearing was held on the motion to suppress and that 

trial counsel made oral argument. Trial counsel stated that he was aware of State v. 

Anderson when he was preparing the motion and that, at the hearing, he argued for 

suppression of the statement based on the case law as it stood in 2009. See 937 S.W.2d 

851 (Tenn. 1996). Trial counsel opined that the outcome of the trial would not have been 

different even if the statement had been suppressed, given the other evidence that was 

presented.

The post-conviction court made the following observations and findings during its 

oral ruling:

I would have to believe [Petitioner’s] testimony over [trial 

counsel]’s. But I still don’t . . . there’s no way that there was a faulty 

suppression hearing here. That’s the whole issue. The suppression hearing 

was not a faulty hearing. We heard it all.

. . . .
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I don’t see anything wrong with it. I don’t see how it can be claimed 

at all that [trial counsel] was ineffective. I feel like everything he did was 

within the range of competence demanded of an attorney in a criminal case.

. . . .

[A]ccording to Strickland . . . the defendant first must show that 

counsel’s errors were so serious as to deprive the petitioner of effective 

assistance of counsel. Well, I don’t see anything that [trial counsel] did 

wrong at all—zero. Nothing. I would have to believe Mr. Todd in order to 

give any credence to that statement, and I just can’t do it. I don’t believe 

anything . . . Mr. Todd has lied under oath before, I think. It seems like I 

told him at the first suppression hearing that I didn’t believe a single word 

he had to say; that I thought it was preposterous. I think what he had to say 

was preposterous today. So, the first part of Strickland certainly hasn’t 

been met, and so it’s not even necessary to go to the second. . . . I can’t 

second guess the strategic decisions of counsel at trial. I know that he did 

his best to suppress this, and it was pretty evident, I think, [that] the 

statement was pretty damning. I think they may have been able to prove 

their case otherwise, but the statement was there. The jury believed it. 

They believed the victims in the case. And so, for all those reasons, I do 

not find ineffective assistance of counsel, and this [ ] petition for postconviction relief is denied.

In its written order, the post-conviction court concluded that “the Petitioner has failed to 

prove ineffective assistance of counsel. More specifically, he has failed to carry his 

burden of proof as to either deficient performance or prejudice.”

Analysis

Post-conviction relief is available for any conviction or sentence that is “void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to 

prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations 

by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d 

152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.” 

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, this Court 

gives deference to the post-conviction court’s findings as to witness credibility, the 

weight and value to be given to testimony, and the factual issues raised by the evidence. 

Momon, 18 S.W.3d at 156 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). 

This Court will not re-weigh or re-evaluate the evidence presented below and is bound by 

the findings of the post-conviction court unless the evidence preponderates otherwise. 
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State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the post-conviction court’s 

conclusions of law and application of the law to the facts are subject to de novo review 

with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

On appeal, Petitioner argues that his trial counsel provided ineffective assistance 

by inadequately presenting to the trial court the facts and law regarding the motion to 

suppress Petitioner’s statement to police. Specifically, under the multi-factored analysis 

established in Anderson, Petitioner contends that trial counsel should have focused on the 

fact that Petitioner was not free to leave because he was brought to the police station by 

the officers and did not have his own vehicle. Petitioner also contends that trial counsel’s 

motion to suppress failed to allege that Petitioner’s statement was coerced because he 

was shown graphic photographs of the crime scene and presented with a warrant for a 

DNA sample. Petitioner argues that trial counsel’s errors prejudiced him because, had 

the statement been suppressed, there is a reasonable probability that the outcome of the 

trial would have been different in light of the remaining evidence. The State argues that 

the trial court properly concluded that Petitioner failed to establish by clear and 

convincing evidence that trial counsel’s performance was deficient and prejudicial so as 

to entitle him to post-conviction relief.

Both the Sixth Amendment to the Constitution of the United States and article I, 

section 9 of the Tennessee Constitution guarantee the right of an accused to the effective 

assistance of counsel. Burns, 6 S.W.3d at 461. In order to receive post-conviction relief 

based on a claim of ineffective assistance of counsel, a petitioner must show that trial 

counsel’s performance was deficient and that the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Burnett v. State, 92 

S.W.3d 403, 408 (Tenn. 2002). Because a petitioner must establish both elements in 

order to prevail on a claim of ineffective assistance of counsel, “failure to prove either 

deficient performance or resulting prejudice provides a sufficient basis to deny relief on 

the claim.” Henley, 960 S.W.2d at 580. 

To establish deficient performance, a petitioner must show that counsel’s 

representation fell below an objective standard of reasonableness under prevailing 

professional norms. Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. Counsel’s 

performance is considered reasonable “if the advice given or the services rendered [were] 

within the range of competence demanded of attorneys in criminal cases.” Henley, 960 

S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). This Court 

“should indulge a strong presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.” Burns, 6 S.W.3d at 462. A petitioner is not 

entitled to the benefit of hindsight to second-guess a reasonably based trial strategy or a 

sound, but unsuccessful, tactical decision. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 

Crim. App. 1994). To establish prejudice, a petitioner must show that “there is a 
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reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Burns, 6 S.W.3d at 463 (quoting 

Strickland, 466 U.S. at 694).

Considering the post-conviction court’s credibility determination as to Petitioner’s 

testimony, the record establishes that Petitioner’s trial counsel discussed the details of 

Petitioner’s encounter with the police and filed a motion to suppress Petitioner’s 

statement as being an allegedly unconstitutional custodial interrogation without proper 

Miranda warnings. A full suppression hearing, including oral argument, was conducted 

during which two investigating officers and Petitioner testified as to their accounts of 

how the interview happened. The trial court denied the motion to suppress, and this 

Court affirmed with the following analysis:

We conclude that the trial court properly denied the motion to suppress 

Todd’s statement. The court accredited Detective Wilkie and Detective 

Chatman’s testimony regarding the statement and determined that Todd’s 

testimony was “unbelievable” and “totally incredible.” The court further 

determined that Todd gave his statement freely and voluntarily and never 

indicated to the officers that he wanted to speak with an attorney during the 

interview process. Accordingly, we conclude that the evidence in the 

record does not preponderate against the trial court’s findings.

James Todd, 2011 WL 198635, at *13.

Trial counsel testified that he was aware of the applicable legal standard governing 

custodial interrogations and that he orally argued that Petitioner’s statement was 

unconstitutionally obtained under the factual circumstances related to him by Petitioner.

There is no proof in the record to preponderate against the post-conviction court’s finding 

that trial counsel’s performance was not deficient in his presentation of the motion to 

suppress. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). From the facts 

reiterated in Petitioner’s direct appeal, it is plain that testimonial evidence was provided 

during the suppression hearing about the details of Petitioner’s ride with the police, the 

photographs of the crime scene shown to Petitioner, and the DNA warrant. Petitioner, by 

brief or testimony, has not specifically identified any evidence or testimony that trial 

counsel failed to present to the trial court for consideration during the suppression 

hearing that would constitute professional conduct outside of “the wide range of 

reasonable professional assistance” or below prevailing professional norms. Burns, 6 

S.W.3d at 462. The substance of Petitioner’s post-conviction claim is merely an attempt 

to re-litigate the suppression hearing under the meager assertion that his trial counsel 

could have done it differently. See Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 
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(“The fact that a particular strategy or tactic failed or hurt the defense, does not, standing 

alone, establish unreasonable representation.”). We agree with the post-conviction court 

that there is “zero” evidence that “trial counsel did wrong at all.” Because Petitioner 

failed to prove his claim of ineffective assistance by clear and convincing evidence, the 

post-conviction court properly denied the petition.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

_________________________________

TIMOTHY L. EASTER, JUDGE