IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE 

Assigned on Briefs at Knoxville December 18, 2013

HERSCHEL V. LILLARD, JR. v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Davidson County

No. 2003-D-3151 Seth W. Norman, Judge

No. M2013-01406-CCA-R3-PC - Filed February 20, 2014

The Petitioner, Herschel V. Lillard,Jr., appealsthe Davidson County Criminal Court’s denial

of his petition for post-conviction relief from his 2010 conviction for first degree felony

murder and resulting life sentence. The Petitioner contends that the trial court erred by

denying him relief because he received the ineffective assistance of counsel. We affirm the

judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROGER A. PAGE, JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Herschel V. Lillard, Jr.

Robert E. Cooper,Jr., Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney

General; Victor S. (Torry)Johnson, III, District Attorney General; and Dan Hamm, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

This case arises from the 2003 shooting death of Justin Green during a home invasion

for which the Petitioner was convicted. The Petitioner appealed his conviction, and this court

affirmed the conviction and summarized the facts of the case as follows:

According to the State’s proof at trial, on August 5, 2003, the defendant

and three accomplices traveled to a home located on Mill Station Drive in

Nashville. Two of the men entered the home, pointed weapons at its residents,

and demanded money. During the incident, one of the residents, fifteen-yearold Justin Green, was shot and killed. The defendant was subsequently
indicted for first degree felony murder based on his participation in the killing

of the victim during the perpetration of or attempt to perpetrate a robbery.

At trial, the victim’s mother, Mary Jane Crockett Green, testified that

at about 9:00 p.m. on the night of the shooting, her dog’s “vicious” growling

and barking roused her from bed. When she got up, she saw a man standing

just outside the doorway to her room with a gun “pressed into” the victim’s

chest. Ms. Green then heard gunshots in another part of the house, and

“everybody ran.” After the shots, she saw another man run across the living

room and out of the house. She described the first man, whom she had never

seen before, as “really distinctive looking, . . . easily recognizable, . . . [and]

really, really tall,” with braided hair. The second man, whom she also did not

recognize, stood “a lot” shorter than the first and wore a bandanna around his

face. After the men left, Ms. Green found the victim lying facedown in his

room.

Chris Crockett, the victim’s brother, testified that he had become

friends with the defendant while the two worked together at a restaurant in

downtown Nashville. Around the time of the shooting, he had received a

settlement of approximately $10,000 as part of a personal injury claim, and he

had stored the funds, in cash, in a box in the living room of the house.

Crockett testified that he told everyone that worked at the restaurant with him,

including the defendant, about the money he had received. He also testified

that he periodically sold marijuana to the defendant from the Mill Station home

and that the defendant had visited him there to purchase marijuana earlier on

the day that the victim was shot.

Crockett testified that on the night of the shooting, he was playing video

games with the victim when he looked up to see a man holding a gun in his

face. The man holding the gun asked him where the money was, and he

responded by walking the man toward the box where he had stored the cash.

As he neared the box, his mother emerged from her bedroom and began

screaming, and one of the armed men ran toward the victim’s room.

Immediately afterwards, Crockett heard gunfire. Crockett testified that in the

ensuing commotion, he collided with the second armed man, wrestled the

man’s gun away from him, and attempted to fire it. The weapon would not

fire, however, so he retrieved his own weapon from a bedroom and shot at the

two men as they fled. Crockett testified that he did not recognize either

gunman.

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Detective Joe Williams of the Metropolitan Nashville Police

Department, who was assigned to the homicide unit at the time of the shooting,

testified that he attended the victim’s autopsy and received from the medical

examiner the bullet that had been removed from his body.

Sergeant Daniel Orr of the Metropolitan Nashville Police Department

Crime Scene Unit described the bullets, spent shell casings, bullet holes, and

weapons that he found at the scene of the shooting, including a nine-millimeter

semi-automatic handgun that was introduced as Exhibit 6.

Officer Carlos Anderson of the Metro Nashville Police Department

testified that he was the first officer to respond to the scene of the shooting.

The victim was breathing shallowly when he arrived, and he radioed for an

ambulance and attempted CPR. Another officer arrived shortly thereafter, and

the two of them secured the scene while waiting for the homicide unit and the

ID section of the crime scene unit. On cross-examination, Officer Anderson

testified that the victim’s brother, Chris Crockett, told him at the scene that

three people had invaded the home that night.

Dr. Bruce Levy, the medical examiner for Davidson County, testified

that the victim died from “a single gunshot wound to the right upper-side of his

chest,” with the bullet striking “his right lung, his heart, his left lung, his liver,

and his stomach.”

Special Agent Steve Scott of the Tennessee Bureau of Investigation, an

expert in firearms identification, testified that the bullet removed from the

victim’s body had been fired from the nine-millimeter semi-automatic

handgun, previously identified as Exhibit 6.

The State’s final witness was Homicide Detective Robert Anderson of

the Metropolitan Nashville Police Department who testified that, during the

course of his investigation, he learned that a man named Phillip Lillard had

been admitted to the emergency room at a local hospital for treatment of a

gunshot wound, and he went to interview him there. He said that Lillard

admitted that he had gone to the Mill Station home where he had been shot.

Lillard also told him that the defendant had accompanied him to the house.

Detective Anderson testified that the defendant surrendered himself to

the police after a warrant had been issued for his arrest. He identified a video

recording of his interview with the defendant, which was introduced into

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evidence. During the interview, the defendant initially claimed that he and

three others, including the two men who entered Crockett’s residence, had

driven there to buy marijuana. He later admitted, however, that he knew that

the men intended to rob Crockett and that he had directed them to Crockett’s

home and allowed them to use his car. The defendant further admitted that he

had not wanted to enter the house because he knew that Crockett could identify

him. The defendant said that, after the shooting, he threw one of the other

men’s guns in a dumpster. Throughout the interview, the defendant insisted

that he neither needed money nor expected to profit from the robbery.

The defendant elected not to testify and presented no evidence in his

defense.

State v. Herschel Van Lillard, Jr., M2010-00869-CCA-R3-CD, slip op. at 1-3 (Tenn. Crim.

App. Aug. 19, 2011), perm. app. denied (Tenn. Nov. 15, 2011). The Petitioner now seeks

post-conviction relief.

At the post-conviction hearing, the Petitioner testified that he met with counsel three

or four times before the trial. He said that he was released on bond two years after his arrest

and that after his release, he only met with counsel at the courthouse. He said that counsel

provided the State’s discovery package and that they discussed the charges against him, the

possible outcome of a trial, and the possible punishments. He agreed he understood the

information they discussed.

The Petitioner testified that the State offered twenty-five years for second degree

murder but that counsel did not discuss “percentage or nothing.” He said counsel did not hire

an investigator. He wanted counsel to have his statement to the police suppressed because

he was under the influence of alcohol and marijuana and said he told the police “anything

that . . . could get [him] out of the situation.” He denied that counsel filed a suppression

motion and said that counsel told him the statement could not be suppressed because he made

it voluntarily. He said that he learned a warrant for his arrest existed, that he turned himself

in to the police, and that the interview began twenty minutes later. He said that before he

turned himself in to the police, he was with his mother, stepfather, wife, and children and that

he did what he always did, “get high and drink.” He said that he smoked one-quarter of an

ounce of marijuana, which was seven or eight “blunts,” and that he smoked his last blunt

twenty or thirty minutes before the interview. When asked to describe his mental state, he

said he was “very high,” thought his judgment was clouded, and was unable to think

coherently.

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The Petitioner testified that his mother saw his photograph on the news and told him

to turn himself in to the police. He told his mother that he wanted to finish smoking

marijuana and drinking before going to the police station and that he would report to the

police station the following day. He said that his mother threatened to take him to the police

station and that he agreed to turn himself in to the police that day. He said he signed a form

at the police station but denied knowing if it was a waiver of rights form. He knew he was

in police custody but did not recall telling the detective he was under the influence of drugs.

He said, though, that he remembered telling the detective he did not know what was going

on. He said he viewed the recorded interview for the first time during the trial. He said

counsel told him that he viewed the recording before the trial.

The Petitioner testified that he told counsel he was under the influence of drugs and

alcohol during his police interview but could not recall when he told him. He believed he

told counsel around the time counsel successfully argued to reduce his bond. He said that

counsel did not think the trial court would reduce his bond and that he threatened to obtain

another attorney who would argue to reduce his bond if counsel refused to file the motion.

He said he was released two weeks later and did not mention the police interview again until

the start of the second trial. He said the first trial resulted in a hung jury. He said he

attempted to call counsel after he was released on bond but was unable to speak with him.

The Petitioner testified that counsel did not interview his family. He said he was at

a hotel with his wife and two children before his mother took him to the police station. He

denied that his wife used drugs.

The Petitioner testified that counsel explained the benefits and pitfalls of testifying

at the trial and that he signed a waiver of his right to testify. He said that although he thought

it was a good idea to tell the jury his version of the events, counsel told him that in criminal

cases, it was best not to testify. He said he had two previous convictions for driving without

a license.

On cross-examination, the Petitioner testified that counsel’s representation in this

case lasted about seven years and that he had several court appearances because he had three

codefendants. He said that had he testified at the trial, he would have said he was at the

scene with “a couple older guys, who . . . influenced me to go.” He said that the men were

about three or four years older and that he was nineteen years old at the time of the shooting.

He identified one of his codefendants as his cousin Phillip Lillard, who unduly influenced

him, and said Ben Dickens, another codefendant who unduly influenced him, was a family

friend for about five or six years. He said codefendant Lillard was twenty-two years old at

the time of the shooting. He said Arnold Foster, the third codefendant, was a family friend

and was younger than he.

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The Petitioner testified that he would have told the jury that he had smoked marijuana

daily since he was twelve years old. He said that in the beginning, he did not know the other

men were going to rob the victim who died, who was his friend. He said that he and his

codefendants were going to buy more marijuana but that codefendant Dickens mentioned

robbing the victims instead. He agreed he did not enter the victims’ house because the

victims knew the Petitioner. He denied wanting to rob the victims and denied recalling who

provided directions to the victims’ house. He said that had he testified, he would have told

the jury that he and his codefendants went to the victims’ home to buy drugs but that his

codefendants decided to rob the victims instead. He said that he knew codefendants Dickens

and Lillard had guns that night because they always carried guns. He agreed, though, he told

the police that he and his codefendants initially went to the victims’ home to buy drugs. He

agreed that he told the police that he did not kill or rob anyone and did not want to rob or kill

anyone. He said that he wanted to testify but that he relied on counsel’s knowledge of the

law in deciding not to testify. He agreed he “signed off” on not testifying and was sober

when he made his decision.

The Petitioner testified that although he was under the influence of drugs at the time

he gave his statement, he walked without assistance and spoke coherently. He agreed that

the police obtained a warrant for his arrest before he turned himself in to the police and that

the police placed him and his car at the scene.

On redirect examination, the Petitioner testified that he told the police that he told his

codefendants to go the victims’ house and that he threw one of the guns used in the offenses

in the trash. He said that had he been in his “right mind,” he would not have provided a

statement to the police. He stated that he did not want to talk to the police but that his parents

thought it was best he make a statement because he did not kill anyone.

Shauna Lillard, the Petitioner’s wife, testified thatshe was present when the Petitioner

turned himself in to the police. She said that earlier that day, she and the Petitioner smoked

marijuana and drank in their hotel room. Although she did not recall the exact amount, she

said they smoked a lot. She said their two young sons were also in the hotel room. She said

that the Petitioner’s mother called, wanting him to turn himself in to the police, that the

Petitioner agreed, and that his mother picked him up at the hotel. She said the Petitioner

drank from the early afternoon until his mother arrived. She thought they drank gin.

Ms. Lillard testified that she attempted to talk to counsel, that she left numerous

voicemail messages asking counsel to call her, and that counsel did not return her calls. She

said counsel’s wife answered the telephone once. She said counsel did not interview her or

ask about the facts of the case.

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On cross-examination, Ms. Lillard testified that they lived in the hotel room at the

time of the Petitioner’s arrest. She said that the Petitioner smoked marijuana on the night of

the shooting and that she remembered because it was someone’s birthday. She agreed she

was not present when the Petitioner gave his statement to the police and did not view the

recording of the interview during the trial. She said that although she did not talk much to

counsel about the Petitioner’s case, she did not know much. She learned from the detective

that the Petitioner was involved in a robbery that went wrong, that the Petitioner did not enter

the house, and that two of the Petitioner’s friends went into the house. She said the Petitioner

only told her that codefendant Lillard was shot.

Caroline Newby, the Petitioner’s mother, testified that she was present when the

Petitioner was booked. She saw the Petitioner on the news and convinced him to turn

himself in to the police. She and her husband picked up the Petitioner at a hotel on Trinity

Lane around 7:00 or 8:00 p.m. She said the Petitioner’s eyes were red when she arrived. She

said that when she spoke to the Petitioner on the telephone, he told her to hurry because he

was paranoid the police were going to find him. She said that when they arrived at the police

station, the Petitioner was “a little jittery . . . like when you get high.” She said he smelled

of marijuana.

Ms. Newby testified that she spoke to counsel on the telephone about court dates but

that it was difficult to contact him. She denied that they spoke about what occurred the day

she took the Petitioner to the police station and that counsel asked her for information. She

said she wrote counsel notes during the trial, requesting he ask specific questions. She

agreed counsel knew her contact information.

On cross-examination, Ms. Newby testified that she did not know information about

the shooting. She said, though, the Petitioner stated that he and his codefendants were going

to buy marijuana but that codefendants Lillard and Dickens decided to rob the victims. She

said the Petitioner denied wanting to rob the victims. She agreed no one forced the Petitioner

to associate with the codefendants. She admitted telling the Petitioner that she did not like

codefendant Lillard and that she did not like the Petitioner’s spending time with him.

Counsel testified that he had practiced law for twenty-seven years. He stated that the

State’s discovery package included the “whole file” and that he shared the information with

the Petitioner. He did not know if the Petitioner shared the discovery with his family but said

he did not provide it to them. He agreed the Petitioner gave a statement to the police and said

he first viewed the recorded statement in the prosecutor’s office. He said that he understood

the Petitioner during the statement and that nothing led him to believe the statement was

subject to suppression based on the Petitioner’s being intoxicated. He agreed the proof

showed that the Petitioner and his car were at the scene, although he did not enter the

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victims’ house. He agreed that the Petitioner’s car was used to transport codefendant Lillard

to the hospital and that codefendant Lillard’s blood was found inside the car.

Counsel testified that in the Petitioner’s statement to the police, the Petitioner first

denied knowing his codefendants were going to commit a robbery but that the Petitioner later

said he knew but did not want to participate. He agreed he hoped the jury would conclude

that the Petitioner did not have anything to do with the homicide and that his participation

in the robbery was minimal. He said at least one juror agreed with this theory based on the

first jury’s inability to reach a verdict.

Counsel testified that during the second trial, the State offered twenty-five years

subject to the family’s approval. He agreed the State’s theory of felony murder was not that

the Petitioner was the “triggerman.” He said the Petitioner never mentioned that he had been

drinking or smoking marijuana the night he gave his statement to the police. He said that he

had no difficulty understanding the Petitioner during his recorded statement to the police.

He did not recall the Petitioner’s falling asleep or showing signs of fatigue during the

interview. He said that based on his experience as a criminal defense attorney, it was normal

for someone facing a first degree murder charge to be nervous and paranoid.

Counsel testified that he and the Petitioner met a few times at the courthouse and

discussed the status of his and the codefendants’ cases. He agreed the Petitioner’s trial was

the last of all the defendants because the Petitioner was released on bond and his

codefendants were in custody pending trial. He agreed he observed the codefendants’ court

proceedings. He said that the Petitioner’s trials went as expected, that there were no

surprises, and that the State presented the same evidence in the Petitioner’s and the

codefendants’ trials. He agreed codefendant Foster pleaded guilty before the Petitioner’s

trial and said codefendant Foster would have testified against the Petitioner had the State

asked. He agreed the State did not present codefendant Foster at the Petitioner’s second trial.

Counsel testified that he and the Petitioner discussed whether the Petitioner should

testify at the trial, that he advised the Petitioner against testifying, that he advised the

decision was the Petitioner’s, and that he told the Petitioner the trial court would tell him the

decision was his. He said the Petitioner never stated that he was drunk and high when he

turned himself in to the police. He said the Petitioner told him the same version of events

regarding the robbery and shooting to which the Petitioner testified at the post-conviction

hearing.

On cross-examination, counsel testified that he did not recall if the Petitioner’s car

was seized by the police and agreed that no blood evidence from the car was admitted during

the Petitioner’s trial. He agreed the primary evidence against the Petitioner was his statement

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to the police. He said he did not interview the witnesses who testified at the post-conviction

hearing before the trial to determine what happened the day the Petitioner reported to the

police. He agreed the State did not threaten to revoke any plea offers if the Petitioner sought

to suppress the statement to the police and said the only offer was made during the second

trial. He said that he watched the recorded statement several times looking for a basis to

suppress the statement but that he did not find one. He agreed that intoxication would have

been a basis to suppress the statement if intoxication could have been corroborated by the

Petitioner’s actions, tone, or appearance during the interview.

Counsel testified that none of the Petitioner’s family told him the Petitioner was

intoxicated at the time he provided his statement. He said the family members called him

several times. He denied discussing the Petitioner’s case with his family.

The trial court denied post-conviction relief. Regarding the claim that counsel

deprived the Petitioner of his right to testify, the court found that the Petitioner testified at

the hearing that although he wanted to testify, he agreed it was “probably a better idea to

refrain” from testifying “in light of the potential pitfalls[.]” Regarding the claim that counsel

failed to interview and call witnesses at the trial, the court found that none of the witnesses

who testified at the post-conviction hearing would have changed the outcome of the trial.

Regarding counsel’s failure to meet with the Petitioner adequately, the court credited

counsel’s testimony that they met “quite a few times” at the courthouse and found that the

Petitioner’s case was docketed frequently because the case involved three codefendants.

The trial court found that counsel was unaware that the Petitioner claimed to have

been under the influence of alcohol and marijuana when he made his statement and that

counsel “could not be faulted with the failure to move for . . . suppression.” The court noted

the Petitioner’s alleged daily use of marijuana and stated that it would have been “somewhat

difficult” to obtain a statement from the Petitioner when he was not under the influence.

After reviewing the recorded interview, the court found that it was “evident . . . that the

Petitioner was able to understand his rights and proceed to make a coherent statement.” The

court found that even if counsel had known of the alleged intoxication and filed a motion to

suppress the statement, the motion would not have been successful. This appeal followed.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

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Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

petitioner must also show that but for the substandard performance, there is “a reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. The Strickland standard has been applied to the right to counsel under article

I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

The Petitioner contends that the trial court erred by finding that he received the

effective assistance of counsel. He argues that counsel provided ineffective assistance by

failing to file a motion to suppress his pretrial statement to the police on the ground that he

was intoxicated. The State responds that counsel was not deficient and that the Petitioner

failed to establish prejudice. We conclude that the Petitioner is not entitled to relief.

The record shows that counsel reviewed the recorded interview several times looking

for grounds to suppress the statement but did not find a basis for suppressing the statement.

Counsel had no difficulty understanding the Petitioner during the interview and saw no

external signs of intoxication such as fatigue, drowsiness, or slurred speech. Neither the

Petitioner nor his family told counsel of the Petitioner’s daily drug use or alcohol

consumption on the night he made his pretrial statement.

The trial court reviewed the recorded interview and concluded that it was “evident .

. . that the Petitioner was able to understand his rights and proceed to make a coherent

statement.” The recorded interview shows that the Petitioner walked into the interview room

unassisted and without stumbling. The Petitioner was advised of his rights and provided a

statement. His speech was clear and coherent, and he answered the detective’s questions

regarding the shooting. The Petitioner showed no signs of fatigue or drowsiness during the

interview. At no time during the interview did the Petitioner appear to be under the influence

of alcohol or drugs. We cannot conclude that counsel was deficient by failing to file a

motion to suppress the statement. The Petitioner is not entitled to relief.

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In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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