### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y

8, 200 7

STATE OF TENNESS EE v . MAURICE EMERY

Appeal f rom the Circ uit Court for Gibson Coun ty No. H6980 Clayburn Pee ples, Jud ge

No. W2006-02300-C CA-R 3-CD - F iled Septem ber 13, 2007

The de fenda

nt, Maurice Emery , appe al s fr o m his Gibson Count y Circuit Court convictions of possessio n with intent to sell one-half g ram or mor e of c ocaine , a Class B f elony , possession of marijuana , a Class A misdemeanor , and possession of drug para pherna lia, a Class A misdemeanor. See T.C.A. §§ 39-17- 417, -418, -425. The defe ndant, a R an ge I Imultipl e off ender , is serving an eff ective twe lve-y ear

sentenc e in the Depa

rtment of Correc tion for these c onvictions. He cla ims (1) that the trial court err ed in de ny ing his motion to se ver his c ase f rom that of his co-de fenda nt, (2) that his arre st was not supported by probable cause , and (3) that he wa s denied the e ffe ctive assistanc e of c ouns e l. We ho ld t

hat th e de fe nd ant i s n ot e nti tle d to re lie f a nd a ff ir m.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and N OR MA M C G EE O G LE , J J ., joined.

M i c h a e l A

. C art e r , M i l an , T e n n e s s e e , f o r t h e a p p e l l an t , M a

u r i c e E m e r

y.

Rob e rt E. Coope r, Jr., Attor ne y Ge ne ra l and

Re po rt e r; J. Ros s D y e r, As sis tant A tto rn e y Ge ne ra l; Gar ry G. Br own, District Attorney Gene ral; and J era ld M. Campbell, Assistant D istri ct At torney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This is the d ef

endant’s second dire ct appe al. I n the first appe al, this court held that an

un tim e ly mot ion fo r n e w tri a l pr e ve nte d u s f ro m r e vie wi ngany of the iss ue s he ra ise d o the r t ha n h is challeng e to suffic iency of the evidenc e, which the court he ld was suffic ient. State v. Thelisa Emer y

a nd Ma ur ic e Em e ry , N os . W 20 02 -02 69 8- CCA -R 3- CD , W2 00 3- 03 35 5- CCA -R 3- CD , G ibs on Cou nty (Tenn. Crim. App. Ma

r. 15, 2004), a

pp. denied (Tenn. Oct. 4, 2004). The defe ndant filed a petition for post-c onviction relief, se eking a delay ed appea l and traditional post-convic tion relief ba sed on ineffe ctive assistanc e of trial counsel. The trial court g rante d him a delay ed appea l and authorized the fi lin g of a mot ion fo r n e w tri a l, c on du c te d a he ari ng , d e nie d h is m oti on fo r n e w tri a l, a

nd he ld-2-

his post-conviction claims in abeyance pending the out come of his appea l of t he denial of the motion for ne w trial. See Wallac e v. State, 121 S.W.3d 652 (Tenn. 2003) (holdingthat a de fe n d an t who

rec eived ineffe ctive assistance of counse l beca use trial counse l failed to file a timely motion for new trial, there by

waiving all appella t e cl aim s other than suff iciency of the e vidence , was e ntitled to a motion for new trial and delay ed direc t a ppeal pursuant to the Post-Convi ction Procedur e Ac t, see T.C.A. § 40-30-113)

.

Br andon Hunt testified at the hear ing that had trial counsel called him as a trial witness, he would hav e t estified that he did not buy coca ine from the de fenda nt on the day

of the de fenda

nt’s

arr est. Hunt said he was not in town on the date of the de fenda nt’s arr est. He sa id that if Clifford Woo dr uf f t e sti fi e d at tr ia l th a t Woo dr uf f w itn e sse d Hun t buy c oc a ine fr om t he de fe nd ant, he wo uld have de nie d th is.

Th e lis a Em e ry te sti fi e d that sh e wa s the de fe nd ant’ s sis te r and wa s tr ie d w iththe de fe nd a nt. She said that if she had alre ady been tried, she would have testified for the defe ndant that he did not live with her a

nd had not bee n staying w ith her. She said the c lothing found in the back room of her home belong ed to her cousin, Antonio Perry , not the defe ndant. She said the de fenda nt had bee n at he r h ou se “ [n]ot

e ve n a c ou ple of ho ur s” be fo re his arr e st.

The defe ndant testified that he under stood that the trial court wa s holding his post-conviction claims in abey ance . He sa id that the issues upon which he soug ht r elief in his motion for new tria l

wer e the same as those upon whic h he soug ht post-conviction relief

. He pr ocee ded to testify

about his complaints about trial counsel’s perfor mance . He sa id that he told trial counsel about B randon Hunt but that he was unawar e whether counsel ever interviewe d Hunt. He said he told counsel he did no t li ve a t the ho us e wh e re he wa s arr e ste d. He sa id h e tol d c ouns e l to inv e sti g a te the a dd re ss he ha d g ive n th e po lic e wh e n h e wa s arr e ste d a we e k b e fo re the arr e st i n th is c a se in o rd e r t o

corr oborate his claim that he did not live at the house, but he claimed that counsel ne ver did so. He said that he told counsel that he did not have clothing or shotgun shells in the house, that he asked counsel to objec t t o th e s tate ’ s p r o o f to th e c o n tr ar

y , an d th a t c o u n s e l d id

n o t m a k e th e o b

je c ti o n. He sa id t hat tr ia l c ouns e l mad e an ora l motio n on the da y of the tr ia l to se ve r t

he de fe nd ant’ s c a se from The lisa Emery ’s ca se, that counse l d i d not file a wr itten motion, and that the motion was denied. He said that he was not ide ntified in the sear ch wa rra nt which pre cipitated his arr est and that “Mar cus James Emery ” who wa s listed on the war rant was his cousin, who lived at the house whe re the def endant wa s arr ested. The defenda nt denied that Cassandra Pettig rewhad said the de fenda nt lived at the house.

Danny L ewis testified that he was e mploy ed by the City of Humboldt, that he was a ssigne d to the DrugTask F orce , and that he w as involved in executing the sea rch w arr ant at the house wher e the def endant wa s arr ested. He said he intervie wed Cassa ndra Pettig rewbefo re o b t aini ng the

war rant, who told h i m that she had be en the de fenda nt’s g irlfriend f

or five or six months and that sh e vis ite d th e de fe nd ant at the ho us e in q ue sti on . H e sa id t

hat la rg e me n’ s c lot

hin g wa s f

ound in the ba c k o f t

he ho us e and

that th e dr

ug s r e c ov e re d w e re in t

he same ro om a s th e c lot

hin g . H e sa id the drug s were stuffed into t he back of a wall orname nt. He said that there wer e also some shotgun-3-

shells rec overe d and that the de fenda nt made a statement that h e h ad b ee n hunting. He said the information upon which he deter mi n ed that the def

endant wa s living at the house included the clothing a

nd shotgun she lls in t he house, the statements of C as s an d ra Pettig rewand Clifford Woodruff, and his own obse rvations of the defe ndant at the hous e. He acknowledg ed that Mar cus J ames Emer

y and the defe ndant, Maurice Emery
, wer e differ ent people, and he said he knew who the de fe nd ant w a s.

Trial counse l testified that counsel for the co- defe ndant filed a written motion to sever the day befor e trial in which he joined on the day of trial. He said he wa s prepa red at the argument on the mot ion and that he wo uld no t have argue d it dif fe re ntl y ha d he fi le d a

wr itt e n mo tio n. He sa id the def endant a dmitted that he had clothing in the hous e because he had c hang ed clothes the re a fter hunti ng

. Couns e l sa id he c ro ss- e xami ne d De te c tiv e L e wi s a bo ut wh e the r the de fe nd ant act ua lly lived there . He sa id he was awar e of Cassa ndra Pettig rew ’s statement that the de fenda nt lived at the house and that he did not rec all her te lling him otherwise. H e said it would not have been a g ood idea to use her as a witness if her te stimony was opposite her

statement. He said there was a nother witness, whom he thoug ht might have been B randon H unt and whom he wa s unable to locate. He said the def

endant ne ver g ave him an address for the wit ness. Counsel acknow ledg ed that his motion f o r n e w t r i a l h a d

b e e nu n t i m e l y.

Denial of Severance

Th e de fe nd ant c on te nd s h e wa s e nti tle d to a se ve ra nc e to p ro mot e a

fa ir de te rm inatio n o f h is
g uilt or innocence

. The state r esponds that the def endant ha s waived a

ppellate r eview of

this iss ue by failing to include the trial recor d in the record on appea l, and in any event, that the defendant ha s not shown that the trial cour t abused its discretion in deny ing him a se vera

nce.

The Rules of Criminal Proce dure pr ovided at the time of the defendant’s trial that a def endant

wa s e nti tle d to a se ve ra nc e of de fe nd ants be fo re tr ia l if se ve ra nc e is r e qu ir e d “ to p ro te c t a defe ndant’s rig ht to a speedy trial or it is de emed appropr iate to pr omote a fair deter mination of the
g uil t or inn oc e nc e of on e or mor e de fe nd ants [.]” Te nn . R. Cr im. P. 1 4( c )( 2) (I ) ( 20 01 ). Duri ngtr ia l, the cour t may order a seve ranc e if, “ with consent of the defe ndant to be seve red, it is deeme d

nece ssary to achieve a fa ir deter

mination of the g uilt of innocenc e of one or more of the def endants.” Tenn. R. Crim. P. 14(c)(2) (i i ) (2001) . The de cision whether to gr ant a se vera

nce lies w ithin the sound discretion of the trial cour t. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993); State v. Coleman, 619 S.W .2d 112, 116 (Tenn. 1981) . Thus, we rev i ew t h i s i s s ue for abuse of discretion. See State v. Shirley , 6 S.W .3d 243, 246-47 (Te nn. 1999) (a dopting a buse of discr etion revie w for c ases involving sever ance of off enses)

.

“ A m oti on

to c on so lid a te or se ve r of fe ns e s is ty

pic a lly a pr e -t

ri a l mot ion , s e e Te nn . R. Cr im. P. 1 2( b) (5 ), and

c on se qu e ntl y , e vid e nc e and argume nts te nd ingto e sta bli shor ne g a te the pr op ri e ty of consolidation must be prese nted to the trial cour t in the hear ing on the motion.” State v. Spicer, 12 S.W .3d 438, 445 (Tenn. 2000) (f ootnote omitted). Appellate r eview f or abuse of the trial c ourt’s-4-

discretio n is properly

of the e vidence and ar g uments prese nted at the he aringand the tria l court’s finding s of fa ct and c onclusions of law. See id.

I nit ia lly , th e state c on te nd s th a t th e de fe nd ant ha s wa ive d re vie w of thi s iss ue by fa ili ngto include the tria l rec ord in the re cord on a ppeal. The appea ling party has t he obli g ation of pre paring

a re cord that includes transc ripts of evidenc e and proce eding s “nec essar y to provide a f

air, a ccur ate,

and c omp le te a c c ount of wh a t tr ans pir e d” wi th re sp e c t to the iss ue s on a pp e a l. T. R.A .P. 24 (b ); Sta te

v. Ta y lor , 9 92 S.W. 2d

94 1, 94 4 ( Te nn . 1 99 9) . In th e abs ence of a n a pp ro pr ia te re c or d, we mus t presume that the trial court’ s determinations ar e cor rec t. See, e.g ., State v. Meeks, 779 S.W .2d 394, 397 (Tenn. Crim. A pp. 1988). That sa id, this court may take notice of re cord of the prior
proce eding s in the same ca se. Caldwell v. State, 917 S.W.2d 662, 666 (Tenn. 1996); De lbridg e v. State, 742 S.W .2d 266, 267 (Tenn. 1987)

.

We ha ve taken notice of that rec ord and revie wed it r elative to the def en d an t ’s s everanc e issue. Howeve r, that re cord doe s not c ontain a transcr ipt of the proce eding s on the motion to sever. Be fore the par

ties beg an pre senting proof, the trial judge noted on the re cord, “ Eac h defe ndant has
reque sted that his or her c ase be sever ed and tr i ed separate ly and I have de nied that motion.” No oth e r i nf or ma tio n a bo ut t he mot ion to se ve r a

pp e ars . G ive n th e a

bs e nc e of an a de qu a te re c or d w ith
respe ct to the defendant’s pretrial effort to obtain a severanc e, we must presume that the trial c ourt’s de te rm inatio ns we re c or

re c t. M e e ks , 7 79 S.W. 2d a t 39 7; Th e lis a Em e ry and Ma ur ic e Em e ry , s lip op. (pre suming on ba sis of inadequate re cord of hear ing on pretria l motion to sever that trial court

corr ectly denied se vera

nce motion of c o-def

endant The lisa Emery

).

The re cord of

the prior a

ppeal doe s contain a transcr ipt of the trial proce eding s, and we have revie wed it to deter

mine whether the t rial court should have ordere d a severanc e during the trial, as contemplated by

Rule of Criminal Proc edure 14. We note that, in pertinent par t, subsection (a) of Rule 14 provided at the time of the def endant’ s trial

A d e fe nd ant’ s mo tio n f

or se ve ra nc e of of fe ns e s o r def

e nd ants mus t be made befor e trial, except that a motion for seve ranc e may be made befor e or at the close of a ll evidence i f b ased upon a g round not previously

known. S ever ance is waived if the m otion is not made at the appr opriate time. . . .

Tenn. R. Crim. P. 14(a) (2001) . The trial r ecor d ref lects t hat t he defenda

nt did not make a motion for sever ance during the trial. The defe ndant waived any complaint about the trial c ourt not g ranting a mid-trial seve ranc e by

failing to make a se vera

nce motion during or at the c lose of the e vidence at trial. He is theref

ore not e ntitled to relief.

Le ga lit y o f the De fend ant ’s Ar r e st

The de fenda

nt claims that his arre st was not supported by probable cause beca use he ha d no drug s or drugpara

pherna lia on his person and w as not eng ag ed in criminal activity

. The state a rg ues-5-

that the def

endant ha s waived this issue bec ause the rec ord does not ref lect that the def

endant r aised it before the trial and be cause the re cord b ef o re t h e court is inadequate for r eview of the issue. Alte r n a ti v e ly
, th e s tate ar g u e s th a t th e dr u g s an d p ar a

p h e r n a li a f o u n d in th e h o me th a t w e re the subject of a

sear ch wa

rra nt, the defendant’s clothes in the bedroom wher e drugs were rec overe d, and

e vid e nc e that th e de fe nd ant sta y e d a t the ho us e pr ov ide d pr ob a ble c a us e fo r t he de fe nd ant’ s arr e st.

As we noted in the pre vious section, this court has exercise d its authority to take notice of the re cord o f the def

endant’ s ear lier appe al. I n so doing, w e have found no indication that the defe ndant made a

pretria l motion to suppr ess evidenc e obtained from an alleg edly illega l arre st. A
mot ion to s up pr e ss m

us t be ma de be fo re a tr ia l. Te nn . R. Crim. P. 12( b) (2 ). Othe rw ise , a ny de fe ns e or obj ection is waived. Tenn. R. Crim. P. 12(f); State v. Clark, 67 S.W .3d 73, 76 (Tenn. Crim. App. 20 01 ). Th is i ssu e is n ot p ro pe rl y be fo re the c ourt

.

Ineff ect ive Assistance of Counsel

The de fenda

nt contends he did not re ceive the ef fec tive assistance of counse l in the e arlier
proce eding s beca

use counse l f

ailed to inter

view Br andon Hunt and ca ll Hunt as a trial witness and fa ile d to fi le a

wr itt e n mo tio n to se ve r a nd to p re se rv e the re c or d o n the se ve ra nc e iss ue

. Th e state argues that the de fenda

nt’s claims are not proper ly befor e the court because they are premature g iven the tr ia l c ourt ’s ru lin g that th e po st- c on vic tio n c la ims we re he ld i n a be y anc e pen din g a

pp e llate dispositi on of t he trial court’s denial of the motion for ne w trial. The state ar g ues, as we ll, that the defe ndant has not shown that trial c ounsel was inef fec tive.

First, we note that the def endant r aised inef

fec tive as s istance of

counsel a s a cla im in the motion for new tria l as well as in his attempt to obta in post-c onviction r elief. The trial c ourt denied the motion for new tr ial and held the post-conviction claims in a bey ance pending the outcome of the
appea l of the motion for newtrial. I n the context of ruling on the m otion for new tr ial, the trial cour t said, “I know t his is not a P ost Conviction hear ing, but I do think that [ trial counsel’ s] ex planations

we re a t le a st suf

fi c ie nt to sur

viv e a c ha lle ng e a s y ou ’r e makin g no w that y our c lie nt w a s d e nie d a fa ir
tr ia l du e to i neff

e c tiv e ne ss o f c ouns e l.” De fe ns e c ouns e l r e qu e ste d th a t th e c ourt sp e c if y in i ts written orde r that the post-c onviction petition was sti ll pending

. Counsel also stated, “This direct
appea l will take a y ear

and then we ’ll come ba ck and a rg ue the Post Conviction at that point.”

Historically , this court has bee n hesitant to ad d r e s s claims of ineff

ective a ssistance of c ounsel raised on dir ect a

ppeal, a s opposed to in post-conviction proce eding s. See, e.g ., Thompson v. State, 95 8 S. W.2 d 1 56 (T e nn . Cr im. Ap p. 19 97 ); State v. An de rs on , 8 35 S.W. 2d 60 0, 60 6- 07 (T e nn . Cr im. App. 1992). Ne verthe less, there is no prohibition aga i n s t litigation of inef fec tive assistance of counsel c laims in conviction, as opposed to collater al, proc eeding s. See, e

. g. , S tate v. B urns, 6 S.W .3d 453, 461-63 (Te nn. 1999) (g ranting reli ef in direct a

ppeal on inef

fec tive assistance of counsel c laim).

I n the pre sent ca se, the rec ord ref lects that the trial court did not make any finding s of fa ct on the ineff

ective a ssistance of c ounsel claim and indicates th at t h e court and the pa rties-6-

contempla t ed t h at the cour t would rule on the issue a fter the direc t appea l. Given this procedur al
po sture , o ur

c on sid e ratio n o f t

he iss ue is p re ma tur e . We de c lin e to r e vie w i t.

I n considera

tion of the fore g oing a

nd the re cord a s a whole, the judgme nts of the trial cour t

are aff irmed.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE