IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 15, 2020

KEVIN L. FRENCH v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2010-C-2466 Steve R. Dozier, Judge

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No. M2019-01766-CCA-R3-PC

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The Petitioner, Kevin L. French, appeals the denial of his petition for post-conviction relief 

from his convictions for first-degree premeditated murder, first-degree felony murder, and 

especially aggravated robbery. On appeal, he argues that: (1) he received ineffective 

assistance of counsel at trial and on appeal; (2) the State committed prosecutorial 

misconduct; (3) the State committed a Brady violation; and (4) he is actually innocent. 

After review, we affirm the denial of the petition. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., 

joined. THOMAS T. WOODALL, J., not participating.

Samuel E. Wallace, Jr., Nashville, Tennessee, for the appellant, Kevin L. French.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant 

Attorney General; Glenn Funk, District Attorney General; and J. Wesley King, Assistant 

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

OPINION

FACTS

The Petitioner and Leangelo Ramey, a co-defendant who was tried separately, were 

indicted for the first-degree premeditated murder of Andre Veals, the felony murder of 

Andre Veals, and the especially aggravated robbery of Andre Veals. Another codefendant, the Petitioner’s brother Jonathan French, was indicted for making a false report. 

A Davidson County jury convicted the Petitioner as charged, and he was sentenced to an 

effective term of life imprisonment. This court affirmed the Petitioner’s convictions on 

03/23/2021
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direct appeal but remanded for the trial court to merge the premeditated murder and felony 

murder convictions. State v. Kevin Lamont French, No. M2013-01270-CCA-R3-CD, 

2014 WL 3530947, at *1 (Tenn. Crim. App. July 16, 2014), perm. app. denied (Tenn. Nov. 

20, 2014). The Tennessee Supreme Court denied further appellate review. 

The underlying facts of the case were recited by this court on direct appeal as 

follows:

Metro Nashville Police Officer Adam Weeks testified that on 

November 16, 2008, he was dispatched “just before 3:00 p.m.” to a shooting 

in progress at Carl’s Car Wash on Gallatin Pike in Davidson County. He 

found the victim lying on the ground. Medical personnel arrived shortly 

thereafter. Officer Weeks secured the crime scene and began logging 

potential witnesses and other responding officers. In a photograph of the 

crime scene, Officer Weeks identified [the Petitioner]’s brother, Jonathan 

French, who was standing outside the crime scene tape talking to an 

investigator. He also identified several photographs of a tan Chevrolet 

Trailblazer registered to the French family, which was parked beside the car 

wash.

Kimberly McLemore testified that she was vacuuming her car’s 

interior at the car wash that day, and she observed a young man -- the victim

-- walk by her car, talking on a cellular telephone. She then saw a car “that 

still had soap all over it” drive out of a wash bay. The car was “four door, 

metallic blue [,] . . . set up high on tires and r[i]ms.” The car stopped by the 

victim, and the driver opened his door. Ms. McLemore said that the victim 

and the driver conversed but that she could not hear their words over the 

vacuum cleaner. She continued to vacuum but also looked toward the two 

men occasionally because they were near sports equipment that she had 

placed on the ground. Ms. McLemore testified that she then heard three gun 

shots and that she dived into her car. She heard “tires screeching” and saw 

the victim “staggering . . . like he was trying to walk away.” Ms. McLemore 

said that she “was screaming” and “was frantic.” She saw the victim “drop[ 

] to his knees.” She said that the blue car tried to run over the victim, “but 

they couldn’t, so the tires were spinning out.” She continued, “And as the 

tires continued to spin as they were trying to go forward, they just ran over 

him.” Ms. McLemore testified that she did not know who fired the shots.

She described the driver of the blue car as “a black male” wearing “a black 

stocking cap.” Ms. McLemore said that she was “[v]ery close” to the gunfire 

and that there was a bullet hole in her car from the incident.
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Ms. McLemore further testified that on November 20, 2008, she met 

with Detective Paul Harris to attempt to identify someone involved in the 

shooting. She said that in a photographic lineup, she circled “the gentleman

. . . [who] looked familiar to me, [who] was driving the blue car.” Ms. 

McLemore agreed that she told Detective Harris, “‘100 percent sure, no, but 

I do believe that’s the guy I saw.’” She testified that she had been watching 

both the driver of the blue car and the victim because she “didn’t know if 

these guys were going to steal [her softball equipment] or what, so [she was] 

constantly looking out of [her] car to make sure . . . that they [didn’t] get 

[her] stuff” and that “some people you just don’t forget.”

Terry Eubanks testified that on November 16, 2008, he was visiting 

friends approximately one block from the car wash where the victim died.

He recalled seeing a car driving down the street that “had soap suds all over 

it.” Soon thereafter, he saw the same car driving the opposite direction, back 

to the car wash. Mr. Eubanks described the car as “a Ford, blue with big 

black r[i]ms on it.” He said that he could not see who was inside the car 

because the windows were tinted. Shortly after seeing the car for the second 

time, Mr. Eubanks said that he heard “several shots, then the car came flying 

back down the street.”

Ivory Kelly testified that he was at the car wash when the victim was 

murdered. Mr. Kelly said that he was behind the wash bays drying off his 

car when he saw a blue car pull into a wash bay. A young man, the victim, 

exited the car and began to wash it. Mr. Kelly then saw “a gold SUV” pull 

into the car wash parking lot. Two men exited the gold SUV and approached 

the victim. They spoke, but Mr. Kelly could not hear what was said. He said 

that it appeared like the men knew each other. Mr. Kelly then saw the blue 

car back out of the wash bay. He testified that one of the men from the SUV 

was driving the blue car at that point. The other man from the SUV was left 

at the car wash and was wearing “a Jamaican cap.” Mr. Kelly saw the victim 

walking across the street, talking on his cellular telephone. The man wearing 

the Jamaican cap sat in the SUV for a minute and might have been on his 

telephone. Mr. Kelly said that a few minutes later, the blue car returned and 

pulled into the wash bay where it had been before. Then, the car backed out 

and pulled inside another bay. At that point, Mr. Kelly heard two gunshots.

Mr. Kelly testified that he saw the blue car “coming out of the stall” and saw 

“a body rolling up under the car.” Then, the second man from the SUV 

approached Mr. Kelly, so he “jumped in [his] car,” drove to AutoZone, and 

called 9-1-1. Mr. Kelly testified that he tried to identify the men from the 
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SUV in a photographic lineup but was unsuccessful because he did not see 

their faces well.

On cross-examination, Mr. Kelly admitted that he did not actually see 

the two men exiting the SUV but that he assumed they had done so. He said 

that he knew only one person was in the blue car because he could see 

through the windshield despite the windows being tinted.

Christopher Savage testified that he was acquainted with [the 

Petitioner] and had been “real [sic] good friends” with the victim. Mr. 

Savage testified that both [the Petitioner] and the victim had dated a woman 

named Amanda Crawford. Mr. Savage recalled being at a friend’s party on 

October 25, 2008, which [the Petitioner], the victim, and Amanda Crawford 

also attended. Mr. Savage testified that he witnessed “an altercation in the 

street between” [the Petitioner] and the victim. He explained, “[the 

Petitioner] . . . attempted to walk towards [the victim] with a gun in his hand.”

Mr. Savage said that [the Petitioner] appeared angry and that he believed [the 

Petitioner] would have attempted to shoot the victim if Ms. Crawford and 

[the Petitioner]’s brother had not stopped him. According to Mr. Savage, he 

could not hear anything said by either [the Petitioner] or the victim, but the 

area was well-lit. He said that [the Petitioner]’s gun was “black and gray” 

and was either a .380 caliber or 9mm. Mr. Savage testified that after Ms. 

Crawford and [the Petitioner]’s brother broke up the altercation, Ms. 

Crawford and [the Petitioner] walked back to the house, and the victim stayed 

by his vehicle.

On cross-examination, Mr. Savage said that when Ms. Crawford was 

breaking up the altercation, she asked [the Petitioner] what he was doing and 

that [the Petitioner] replied, “‘[O]h, so you fixing [sic] to save him[;] you 

[sic] taking up for him. . . .’” Mr. Savage said that he tried to make peace 

between [the Petitioner] and the victim afterwards, but no one said anything.

They went their separate ways at that point. Mr. Savage testified that the 

victim typically drove a maroon Caprice but also owned a blue Crown 

Victoria.

Metro Nashville Police Department (“MNPD”) Lieutenant Frank 

Ragains investigated the crime scene in this case. He testified that there were 

blood drops on Ms. McLemore’s car and that a blood trail led from her car 

through a car wash bay to the victim’s body. There were also drag or burn 

marks that showed where the victim “had been hit and was carried by a 

vehicle.” The State admitted photographs of the crime scene and the crime 
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scene diagram through Lieutenant Ragains’ testimony. On crossexamination, Lieutenant Ragains testified that he recovered two spent 9mm 

casings and one live 9mm round from the scene.

Lynn Mace, a crime scene investigator for the MNPD, testified that 

she processed the gold/tan Trailblazer found at the crime scene for evidence. 

She lifted fingerprints, which were compared by another individual, and she 

collected papers that had [the Petitioner]’s name on them, including a pay 

stub and a social security card. She did not recall finding any papers bearing 

the names Eric French, Jonathan French,1 or Leangelo Ramey. Felicia 

Evans, also a crime scene investigator, testified that she attempted to lift 

fingerprints from the shell casings found at the scene but was not successful.

MNPD fingerprint examiner Larry Farnow testified that he compared 

fingerprints collected from the tan Trailblazer with known fingerprints of 

[the Petitioner] and Leangelo Ramey. The fingerprints matched those of [the 

Petitioner].

Tennessee State Trooper Kasey Fitts testified that in November 2008, 

he was employed by the Millersville Police Department. In that capacity, he 

was dispatched to a vehicle fire on I-65 North near mile marker 100 on 

November 16, 2008. He arrived at 8:07 p.m. and observed a Ford Crown 

Victoria “fully engulfed in flames.” He ran the vehicle tag number and 

learned that the vehicle had been listed as stolen. The fire department 

extinguished the fire, and the vehicle was towed away.

Retired MNPD Detective Johnny Lawrence testified that he processed 

the victim’s “burned out vehicle” for evidence. He collected fingerprints, 

“but they were not good quality.” He also swabbed the door handles for 

DNA evidence. Detective Lawrence said that he “[c]ollected some possible 

human tissue . . . from the right rear wheel area.” He also found blood on the 

underside of the vehicle.

MNPD Detective Warren Fleak testified that he executed a search 

warrant at a residence on East Marthona Road that was associated with [the 

Petitioner]. He recovered a nonfunctional Larsen .380 semi-automatic pistol, 

a Colt Cobra .38 special revolver, and a Glynnfield model 778 12-gauge 

shotgun from the residence. The .38 special and the shotgun were both 

loaded. Detective Fleak also recovered additional ammunition: .38 special 

rounds, 12-gauge rounds, and .32 auto rounds.

 

1 The record indicates that Jonathan French is also known as Eric French.
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Tennessee Bureau of Investigation (“TBI”) Special Agent and 

forensic scientist Shelly Betts testified as an expert in firearms and toolmark 

identification. She compared the fired bullets from the crime scene with 

firearm evidence recovered from East Marthona Road and Banberry Drive 

(residence of co-defendant Ramey’s mother). She said that the 9mm 

ammunition collected from Banberry Drive were from a different 

manufacturer than the ammunition recovered at the crime scene and that the 

one fired cartridge case from Banberry Drive did not have the same markings 

as ammunition from the crime scene. Agent Betts also said that the fired 

cartridge cases from the crime scene had not been fired from any of the 

firearms collected at East Marthona Road. Agent Betts testified that the 9mm 

cartridge cases found at the crime scene had been fired from the same weapon 

and that “the markings that were found on those cartridge cases are typical 

of what we see when a cartridge is fired in a Highpoint firearm.” The unfired 

9mm cartridge from the crime scene was from the same manufacturer and 

was the same type as the fired cartridges from the crime scene.

MNPD Officer William Stewart testified that he spoke to [the 

Petitioner] at the crime scene on November 16, 2008. Officer Stewart said 

that [the Petitioner] approached him to ask when he would be able to recover 

his mother’s car, which was inside the crime scene. [The Petitioner] also told 

Officer Stewart that he knew the victim and that the victim’s car was across 

the street. However, the car to which [the Petitioner] pointed was not a blue 

Crown Victoria. Officer Stewart could not recall the make and model of that 

car.

On cross-examination, Officer Stewart said that he spoke with the 

people inside the car to which [the Petitioner] had pointed, whom he learned 

were the victim’s mother and girlfriend. They showed him paperwork 

indicating that the car was owned by the victim. Officer Stewart agreed that 

the car might have been a burgundy Caprice.

MNPD Detective Curtis Hafley testified that he was dispatched to the 

crime scene on November 16, 2008. Subsequently, he went to the residence 

of [the Petitioner]’s parents on Forrest Avenue to ascertain the location of a 

Chevrolet Suburban. He explained that he “was just going simply to find” 

the vehicle and that he had no other information about it. While at the 

residence, Detective Hafley spoke with [the Petitioner]’s parents. They 

called [the Petitioner], and Detective Hafley spoke with [the Petitioner] by 

telephone. Detective Hafley returned to the scene and spoke with [the 

Petitioner] in person at the parking lot across the street from the car wash.
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[The Petitioner] told Detective Hafley that he had driven the Trailblazer 

earlier that day but that he had exchanged vehicles with his brother because 

his brother had planned to wash the Trailblazer. [The Petitioner] said that 

the vehicle exchange took place on Andy Street, at a house where [the 

Petitioner] was going to have his hair styled. [The Petitioner] further stated 

that after he left the house on Andy Street, he received a telephone call about 

the Trailblazer. Detective Hafley said that he found it unusual that [the 

Petitioner] was not wearing a jacket that day because “[i]t was the coldest 

day of the year.” He also recalled commenting to [the Petitioner] that [the 

Petitioner] had not stayed to get his hair styled “because his hair was not 

freshly fixed.” Detective Hafley said that the Trailblazer did not appear to 

have been recently washed.

MNPD Detective Paul Harris testified that he was the lead 

investigator in this case. He said that while he was at the crime scene, he 

was told that a 9-1-1 caller had “notified dispatch that the persons responsible 

for this had arrived in a gold Chevy [T]railblazer.” He also testified that the 

victim had called 9-1-1 himself. The following day, the victim’s car was 

discovered by the Millersville Police Department, and Detective Harris had 

the vehicle brought to Nashville. Detective Harris testified that during the 

course of his investigation, he developed [the Petitioner] as a suspect. He 

said that he showed a photographic lineup to Ms. McLemore, who identified 

[the Petitioner]’s photograph.

Detective Harris interviewed [the Petitioner] on November 25, 2008, 

outside of the East Marthona residence. [The Petitioner] told him that on the 

day of the victim’s murder, he had driven his brother’s Expedition because 

his brother had taken the Trailblazer that [the Petitioner] typically drove. 

[The Petitioner] did not mention a vehicle exchange. [The Petitioner] also 

said that he had gotten his hair braided at a location on Riverside Drive.

While at the Riverside Drive location, [the Petitioner] said that he received a 

call from James Crawford on a friend’s telephone informing him that his 

Trailblazer was inside a crime scene. [The Petitioner] explained that he had 

left his cellular telephone at his Forrest Avenue house and that his telephone 

was in the same place when he returned home as it was when he left. He told 

Detective Harris that he spoke with his brother, Jonathan French, once on 

November 16, while Jonathan French was driving to a restaurant. [The 

Petitioner] said that the last time he had seen the victim was at James 

Crawford’s birthday party and that [the Petitioner] had an altercation with 

Christopher Savage at the party. [The Petitioner] denied having a gun at Mr. 
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Crawford’s party and said that he did not “own a gun . . . [had] never even 

touched a gun in his life.”

Detective Harris testified that he interviewed [the Petitioner] again at 

the East Marthona address on May 19, 2009. Sergeant Postiglion was also 

there and did the majority of the questioning. In that interview, [the 

Petitioner] was asked whether anyone had borrowed his cellular telephone 

on the day of the murder, and [the Petitioner] responded that no one else used 

his telephone. The recording of the May 19 interview was played for the 

jury. In the recording, the police officers told [the Petitioner] that his cellular 

telephone “ping[ed] off a tower” in Millersville, where the victim’s car was 

found. Detective Harris testified that the police had obtained [the 

Petitioner]’s cellular telephone records via a subpoena, and the State 

introduced those records, along with the telephone records of the victim, 

Amanda Crawford, and Jonathan French, into evidence.

On cross-examination, Detective Harris testified that the police 

searched two locations associated with co-defendant Leangelo Ramey, one 

of which was Banberry Drive, where the police found twenty 9mm live 

rounds and one 9mm cartridge casing. Regarding the weapons found at [the 

Petitioner]’s East Marthona residence, Detective Harris testified that he knew 

before the search that weapons would be in the house and that he had been 

told by numerous people that [the Petitioner] was “frequently armed and 

carrie[d] firearms.” However, he agreed that the weapons found at East 

Marthona were not registered to a particular person.

On re-direct examination, Detective Harris recalled that Amanda 

Crawford told him that [the Petitioner] pulled a gun on the victim at James 

Crawford’s party. He could not remember whether James Crawford and 

Christopher Savage had also seen the gun. Regarding the victim’s 9-1-1 call, 

Detective Harris testified that he obtained a recording of the call by recording 

it himself while the communication center played their recording for him 

over the telephone.

On recross-examination, Detective Harris agreed that the victim told 

the 9-1-1 dispatcher, “‘[S]omebody just stole my car and robbed me at gun 

point.’” He further agreed that the victim gave “additional address and car 

information,” then said, “‘[H]old on, now he [sic] pulling back in the parking 

lot[;] they [sic] playing with me, man, just send the police.’” Finally, 

Detective Harris agreed that the victim did not mention the name of the 

person who had taken his car.
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TBI Agent Michael Frizzell testified as an expert in the field of 

communication records in criminal investigations. He explained that 

“pinging” means that a cellular telephone registers with a network by 

transmitting a paging signal to the network so that the network knows the 

location of the telephone. This information allows the network to use the 

cellular site closest to the telephone to communicate with that telephone.

Agent Frizzell said that a cellular telephone will ping if, for example, a call 

is made or received, a text message is sent or received, or if a smartphone 

application updates itself. However, sometimes the networks will “load 

shift[ ]” during high-volume periods by sending the signal to the next-closest 

tower. Agent Frizzell testified that he reviewed telephone records associated 

with [the Petitioner], Amanda Crawford, and Jonathan French and prepared 

a synopsis of the calls between [the Petitioner]’s telephone and the other two.

In particular, the State pointed out calls from [the Petitioner] to Amanda 

Crawford at 12:59 p.m. and 10:17 p.m., calls from [the Petitioner] to 

Jonathan French at 2:22 p.m. and 5:19 p.m., and calls from Jonathan French 

to [the Petitioner] at 10:46 a.m. and 2:16 p.m. On cross-examination, Agent 

Frizzell admitted that he did not know who had possession of [the 

Petitioner]’s telephone on the day of the murder. He acknowledged that [the 

Petitioner]’s telephone records indicated that his telephone called numbers 

that later testimony showed belonged to Montez Jennings and Mr. Jennings’

girlfriend.

David Kline, an employee with the Metropolitan Planning 

Department’s mapping division, testified that he prepared several maps for 

the State showing locations of interest in this case. In particular, he plotted 

on a map the locations of Carl’s Car Wash, the victim’s burning car, and 

cellular towers pinged by [the Petitioner]’s telephone. He said that he plotted 

the cellular towers based on [the Petitioner]’s telephone records and 

information in a database regarding the location of cellular towers.

According to the information he received, [the Petitioner]’s cellular 

telephone pinged a tower near where the victim’s burning car was found at 

the following times: 5:42:01 p.m.; 8:03:22 p.m., 8:10:34 p.m., and 8:11:36 

p.m. Mr. Kline also plotted the towers pinged by Jonathan French’s 

telephone. Jonathan French’s telephone pinged the tower near where the 

victim’s burning car was found at the following times: 5:53:02 p.m., 5:53:28 

p.m.; 5:55:15 p.m.; 5:58:55 p.m.; and 5:59:29 p.m.

Montez Jennings testified that he had known co-defendant Leangelo 

Ramey since he was ten or eleven years old and that he did not know [the 
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Petitioner]. Mr. Jennings said that Ramey told him “that he robbed a guy, he 

shot him[,] and he ran him over[,] and he burned his car.” Mr. Jennings 

testified that Ramey also showed him a weapon, which he described as a 

smaller caliber, all-black gun. He believed it “was like a .9 millimeter or 

something.” He said that around the time of the victim’s murder, Ramey had 

shoulder-length dreadlocks and drove a white Dodge Dynasty.

On cross-examination, Mr. Jennings said that Ramey came to his 

apartment the day after the victim’s murder. Ramey “told [him] about the 

incident at the car wash” and showed him a weapon. After that conversation, 

Mr. Jennings made him leave the apartment. While they were outside of the 

apartment, Ramey repeated his story. Mr. Jennings had no contact with 

Ramey after that day except for seeing him briefly at a shopping mall. Mr. 

Jennings said that he was not afraid of Ramey but “was scared of the whole 

situation.” He said, “[A]ll I know is that he told me that he killed someone.”

He stated that Ramey had been “kind of . . . crazy” when they were growing 

up and that he had “[m]ood swings and . . . real erratic behavior.” He had 

never known Ramey to carry weapons, however. Mr. Jennings did not recall 

whether Ramey called him the night of November 16, 2008, but he 

acknowledged that the records shown to him by defense counsel displayed 

calls to his telephone number and to his girlfriend’s telephone number.

Keyosha Blair testified that she had a son with [the Petitioner]. She 

stated that she did not know [the Petitioner] in November 2008 and that they 

met sometime in 2009. She said that after he was incarcerated, they 

continued to communicate, mostly about their child. Ms. Blair testified that 

[the Petitioner] asked her “to say that he was with [her] at the time” of the 

victim’s murder, despite her not having met him yet. Ms. Blair identified a 

letter that she said [the Petitioner] sent her from jail in which [the Petitioner]

told her to say that she was with him while he was getting his hair braided 

and that he picked her up in an Expedition.

TBI Special Agent Jennifer Shipman analyzed several exhibits in this 

case for DNA. She testified that the four swabs from underneath the victim’s

car were positive for the presence of blood. Further testing of one of the 

swabs revealed DNA that matched the victim’s DNA.

Leangelo Ramey, [the Petitioner]’s co-defendant, testified as a 

witness for the State. He said that he had known [the Petitioner] for more 

than a year prior to the victim’s murder. He described [the Petitioner] as a 

friend and said that [the Petitioner] helped him find work. Ramey testified 
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that he spent the night on November 15-16, 2008, at [the Petitioner]’s house, 

which was located on a street beginning with the letter “M” in the Madison 

area. Ramey said that [the Petitioner] picked him up on November 15 in a 

brown, four-door sedan.

Ramey said that the next day, he asked [the Petitioner] for a ride to a 

friend’s house. Ramey said that they left [the Petitioner]’s house in [the 

Petitioner]’s Trailblazer. Instead of taking Ramey to his friend’s house, 

however, [the Petitioner] stopped at a car wash off Gallatin Pike. Ramey 

testified that [the Petitioner] parked next to the car wash, not inside one of 

the wash bays, and left the vehicle. Ramey said that [the Petitioner] did not 

tell him why they had stopped. He waited for [the Petitioner] to return, but 

after “a little while,” he got out of the vehicle to look for [the Petitioner]. 

Ramey said that he first went to the back of the car wash and then to the front.

He did not see [the Petitioner] at first. Instead, he saw a blue car pass him 

that had “a lot of soap on it.” He testified that he could not tell who was 

driving the blue car. Fifteen to twenty seconds later, he heard two gunshots 

and then “a big vroom . . . like just a loud roar of a car.” Ramey said that he 

started moving toward the back of the car wash when he saw “the vehicle 

and [saw] a body rolling from . . . up under the vehicle coming [his] way full 

speed.” Ramey testified that he saw [the Petitioner] in the driver’s seat. [The 

Petitioner] drove away from the car wash “up towards Dozier.” Ramey said 

that at that point, he was in “a state of panic,” so he walked away from the 

car wash and went to his friend’s house.

Ramey testified that he stayed at his friend’s house for a time, then he 

called [the Petitioner] from his friend’s telephone to ask for a ride home. 

[The Petitioner] told him “that he would get in touch with [Ramey] when . . 

. he [got] a chance.” Ramey explained that he called [the Petitioner] because 

he was the only person who would give him a ride. When [the Petitioner]

picked him up, [the Petitioner] was driving the brown sedan he had driven 

the previous day. On the way to the home of Ramey’s girlfriend, [the 

Petitioner] gave Ramey a cellular telephone that Ramey assumed was his.

Later, [the Petitioner] called Ramey on that telephone from a number 

Ramey believed was that of [the Petitioner]’s brother. In that conversation, 

[the Petitioner] asked Ramey to do something for him but did not elaborate.

Ramey drove his own car to [the Petitioner]’s house in the Madison area.

When he arrived, [the Petitioner] told him “to go pick up the car” at a 

particular apartment complex. Ramey explained that “the car” was “the blue 

car from the car wash.” Ramey found the blue car and began driving it 
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towards where [the Petitioner] wanted him to go, but he got lost. He called 

[the Petitioner], who told him that he would “be there in a minute.” [The 

Petitioner] arrived and gave him directions to the interstate. Ramey said that 

he drove onto the interstate and headed away from Nashville. Ramey 

testified that he called [the Petitioner] “a couple of times” to tell [the 

Petitioner] that he did not know where he was going. [The Petitioner] told 

him, “‘[J]ust drive[.]’” Eventually, Ramey pulled over to the side of the road, 

and [the Petitioner] came to pick him up. At that point, [the Petitioner] was 

driving a white SUV that Ramey believed belonged to [the Petitioner]’s 

brother. [The Petitioner] took Ramey back to Ramey’s car. Ramey testified, 

“[T]hat’s the time when he told me I need to get rid of the car.” Ramey said 

that [the Petitioner] specifically told him to burn the car. After [the 

Petitioner] dropped him off at his car, Ramey obtained a gasoline can and 

gasoline, then drove back to the blue car. He poured the gasoline in the car 

and lit it on fire. Ramey said that he drove away but had to call [the 

Petitioner] several times for directions. He met [the Petitioner] to return [the 

Petitioner]’s telephone.

Ramey testified that he continued to spend time with [the Petitioner]

after November 16 but not as often. Ramey recalled that [the Petitioner]

asked him not to tell anyone anything. Every time he saw [the Petitioner]

thereafter, [the Petitioner] asked him whether he had talked to the police. He 

said that [the Petitioner]’s brother was with [the Petitioner] once when [the 

Petitioner] asked Ramey about talking to the police. When the police 

contacted Ramey, he did not tell them anything at first. The second time he 

spoke with the police, Ramey told them that he had been at the car wash with 

[the Petitioner] but that he had not seen anything. He admitted that he did 

not tell them the truth but stated that he was afraid that he would “end up like 

[the victim].” Ramey said that he never called Montez Jennings on 

November 16, 2008, did not visit Mr. Jennings the next day, and did not show 

Mr. Jennings a gun at any point. Ramey testified that he did not remember 

the clothing that he and [the Petitioner] were wearing the day of the murder 

but recalled that he wore his hair in dreadlocks and that [the Petitioner] wore 

his hair in cornrow braids. He remembered that [the Petitioner] was wearing 

a black hairnet-like cap.

On cross-examination, Ramey testified that his mother lived on 

Banberry Drive and that he might have had possessions stored at her house.

He denied that the 9mm bullets found at that address were his. Ramey said 

that he did not have a cellular telephone when he was at the car wash. When 

asked whether he had made any “deals” with the State, Ramey said that he 
- 13 -

had not. However, he agreed that he signed an immunity agreement with the 

State whereby his testimony at [the Petitioner]’s trial would not be used 

against him. Ramey testified that he burned the car for [the Petitioner]

because he believed that he would be “dealt with if [he] said anything or 

[if][he] didn’t cooperate with [the Petitioner].” He further testified that he 

was not afraid of [the Petitioner] because he did not do anything to make [the 

Petitioner] mad. On redirect examination, Ramey clarified that his charges 

were still pending and that he would be tried for first degree murder and 

especially aggravated robbery.

The State next presented information about the victim’s 9-1-1 call. 

The custodian of records for the Nashville Emergency Communication 

Center testified that the center’s recording of the victim’s call had been 

purged from their system, pursuant to their standard practice, in January 

2012. The victim’s mother testified that she had listened to a 9-1-1 recording 

and identified the victim’s voice on it. The 9-1-1 recording, apparently the 

same recording made by Detective Harris, was played for the jury.

Deputy Chief Medical Examiner Dr. Adele Lewis testified that she 

performed the victim’s autopsy and determined that his “cause of death was 

a gunshot wound to the torso and multiple blunt force injuries.” She specified 

that the bullet entered the left side of the victim’s chest and exited on the 

right side, breaking three ribs and going through his heart, right lung, and 

liver. Dr. Lewis testified that the victim had many scrapes and bruises, “some 

bleeding in the deep soft tissues of the scalp,” and “very severe pelvic 

fractures.” Dr. Lewis explained that the victim’s “bones in the front of the 

pelvis were broken and separated from each other, as were both of the bones 

in the lower part of the back broken and separated from each other.” She 

opined that “a great deal of force” was required to cause the pelvic fractures.

Dr. Lewis described the abrasions to [the Petitioner]’s lower back and 

buttocks as “road rash.” In addition, the victim had an injury to his abdomen 

that “might [have] been a burn.” Using autopsy photographs -- Exhibits 41AH -- and a photograph from the crime scene -- Exhibit 7C, Dr. Lewis 

described the victim’s various injuries to the jury. Following her testimony, 

the State rested its case.

Amanda Crawford testified on behalf of [the Petitioner]. She said that 

he did not pull a gun on the victim during the party in October 2008 and that 

she would have been the only person close enough to see if he had. Ms. 

Crawford admitted that she had seen [the Petitioner] with a gun during a New 

Year’s Eve celebration, when “everybody was shooting” guns at midnight.
- 14 -

On cross-examination, Ms. Crawford testified that she dated the 

victim for “a couple [of] months” but had been in a relationship with [the 

Petitioner] “off and on” since she was sixteen years old. Ms. Crawford 

agreed that when Detective Harris interviewed her on November 18, 2008, 

she initially told him that [the Petitioner] did not pull a gun on the victim at 

the party but later admitted that he had done so. Ms. Crawford further agreed 

that she told Detective Harris that [the Petitioner] “carrie[d] a gun quite 

often.” Regarding [the Petitioner] and his brother, Ms. Crawford agreed that 

she told Detective Harris that she had never known [the Petitioner]’s brother 

to drive [the Petitioner]’s vehicle nor [the Petitioner] to drive his brother’s 

vehicle without his brother also being in the vehicle.

Jonathan Eric French, [the Petitioner]’s brother, testified that on 

November 16, 2008, he went to his parents’ house on Forrest Avenue to pick 

up the family’s Trailblazer, which he said was silver, so he could clean it. 

He took it to Carl’s Car Wash and parked it on the side. He recalled seeing 

a vehicle leave that still had soap on it. Jonathan French also heard gunshots, 

so he left the car wash and went to AutoZone to purchase a car part. 

However, the store did not have the part he wanted. When he tried to go 

back to the car wash, it had been cordoned off. Eventually, he was taken to 

the police precinct for questioning. He said that the police began questioning 

him at 3:00 or 4:00 p.m. and that the questioning lasted four to six hours.

After the police took him home, he went back to the crime scene with his 

parents and stayed until the Trailblazer was towed. He said that he did not 

have his cellular telephone with him that day.

On cross-examination, Jonathan French said that he did not see how 

his interview could only have lasted “one hour and [fifty-seven] minutes and 

[thirty] seconds,” which was the length alleged by the State. When asked 

whether it would surprise him if Detective Harris had watched the 

surveillance video from AutoZone and never saw him in the store, Jonathan 

French said, “I’m pretty sure he’d seen me if he pulled it.”

Mary French, [the Petitioner]’s mother, testified that the police came 

to her house on November 16, 2008, but never told her why. While the 

officers were there, [the Petitioner] called her. The police talked to [the 

Petitioner] over the telephone. Mrs. French went with her husband and 

Jonathan French to Gallatin Pike between 5:30 and 6:00 p.m. On crossexamination, Mrs. French said that she owned houses on Forrest Avenue and 

Marthona Road and that her sons sometimes stayed at Marthona Road and 
- 15 -

sometimes at Forrest Avenue. She could not recall whether [the Petitioner]

or Jonathan French were at her house on Forrest Avenue when she awoke on 

November 16, 2008.

Archie French, II, [the Petitioner]’s brother, testified that on 

November 16, 2008, two police officers came to his mother’s house looking 

for [the Petitioner]. The officers learned that [the Petitioner] was at a tobacco 

store across the street from the car wash, so Archie French met [the 

Petitioner] at the tobacco store “a little bit before 4:30.” Archie French said 

that he and [the Petitioner] waited there until the Trailblazer was towed.

On cross-examination, Archie French said that when Jonathan French 

and their parents arrived, he and [the Petitioner] went to get a digital camera 

from Archie French’s house, to get batteries for the camera, and then back to 

his house to charge the camera when they could not find appropriate 

batteries. They returned to the crime scene, and he took photographs of the 

area. He agreed that he had never told anyone that he knew where [the 

Petitioner] was the entire afternoon. After Archie French’s testimony, the 

defense rested.

The State recalled Detective Harris as a rebuttal witness. He said that 

he had reviewed the videotaped interview with Jonathan French and found 

that the timestamp indicated the interview lasted one hour and fifty-seven 

minutes. Detective Harris stated that the videotape represented the full extent 

of Jonathan French’s questioning. Detective Harris testified that Jonathan 

French told him during that interview that he had gotten in the wrong line at 

the auto parts store, so he left rather than wait in another line.

Detective Hafley also testified as a rebuttal witness. He said that he 

transported Jonathan French from the police precinct to his home and that he 

recorded the entire interaction. He “timestamp[ed]” the end of the recording 

by stating the time he dropped off Jonathan French, which was 6:12 p.m.

Id. at *1-11 (footnote in original). 

In January 2015, the Petitioner filed a timely pro se petition for post-conviction 

relief, followed by two amended petitions through subsequently appointed counsels as well 

as a second pro se petition which was deemed an appendix to the second amended petition. 

Relevant to this appeal, the Petitioner argued that he received ineffective assistance of 

counsel due to counsel’s failure to seek suppression of his cellphone records; seek 

suppression of the fruits of the searches of two residences associated with him; object to 
- 16 -

the State’s mischaracterization of Ms. McLemore’s testimony in its closing argument;

object to redaction of his taped interview; and effectively cross-examine witnesses. He 

also argued that he received ineffective assistance with regard to his direct appeal because 

four of the issues presented to this court were deemed to be waived for having not been 

included in the motion for new trial. The Petitioner additionally claimed that the State 

committed prosecutorial misconduct in closing argument; the State committed a Brady

violation, i.e., withheld exculpatory evidence; and that he is actually innocent.

The post-conviction court conducted an evidentiary hearing, at which Detective 

Paul Harris with the MNPD testified that on November 19, 2008, he applied for a court 

order to obtain cellphone records for phone number 615-730-1410 from November 1, 2008, 

to November 19, 2008, which the trial court granted. In the application, Detective Harris 

referenced the Stored Communications Act, 18 U.S.C. 2703, as the statutory authority for 

the application. Detective Harris recalled that the cellphone records were used at trial “to 

corroborate what the co-defendant testified to.” 

Detective Harris also applied for a search warrant to search a residence at 332 East 

Marthona Drive in Madison, Tennessee, for “any nine-millimeter pistol or device capable 

of firing a nine-millimeter projectile. Any and all nine-millimeter ammunition to include 

live rounds, projectiles and shell casings.” He explained that searching for those items was 

important because nine-millimeter cartridge casings were collected from the crime scene 

and the body of the victim. He acknowledged that the statement of facts in support of the 

warrant application, which was obtained on September 3, 2009, was based in part on 

statements he received up until January 26, 2009. During the execution of the search 

warrant, officers seized several firearms, unfired ammunition of different calibers, 

marijuana, and a digital scale. Detective Harris said he was unaware if any forensic tests 

were performed on the firearms to prove that they had been handled by the Petitioner. 

Detective Harris acknowledged that one of the applications for a court order to 

obtain cellphone records referred to a surveillance video taken from a business across the 

street from the car wash where the murder took place. He agreed that the police took 

custody of the surveillance video footage at some point and he reviewed it, but he had no 

knowledge of whether the Petitioner received the recording in discovery. Detective Harris 

recalled that a portion of the road in front of the car wash could be seen on the video, but 

the car wash itself could not. 

Asked to review the transcript from his testimony at the Petitioner’s trial, Detective 

Harris acknowledged that he testified that Ms. McLemore identified the Petitioner in a 

photographic array as the person who shot the victim. However, the transcript reflected 

that Ms. McLemore actually testified that she did not know who fired the shots. At the 

post-conviction hearing, Detective Harris recalled that Ms. McLemore “was able to view 
- 17 -

some of the incident while she was in the process of vacuuming,” but he could not recall 

“exactly how she described the events she saw.” After reviewing certain documents, 

Detective Harris acknowledged that when Ms. McLemore viewed a photographic array, 

she circled the Petitioner’s photograph and wrote that she was not “100 percent sure . . . 

[b]ut [she] . . . believe[d] that’s the guy [she] saw.” He additionally acknowledged that it 

did not appear that Ms. McLemore ever specifically said that she saw the Petitioner shoot 

the victim. 

On cross-examination, Detective Harris agreed that the law pertaining to obtaining 

cellphone records changed many years after he obtained the cellphone records in the 

present case. Had the current law, which required a search warrant to procure such records, 

existed at the time he was working on this case, he would have applied for one. Detective 

Harris believed that he could have successfully obtained a warrant had case law required it

at the time. 

On redirect examination, Detective Harris recalled that there was a 911 recording in 

which the victim called and reported that “[s]omebody stole my car” but did not 

specifically name the Petitioner. 

Detective Curtis Hafley with the MNPD testified that he applied for a warrant to 

search the residence at 15144 Forrest Avenue on September 3, 2009. In the statement of 

facts in support of probable cause for the search warrant, Detective Hafley relied on 

information provided by Detective Harris. Detective Hafley recalled that he interviewed

Ms. McLemore at the scene of the shooting. He acknowledged that in the report of the 

interview, he quoted Ms. McLemore as stating that “[s]he doesn’t think she can ID the 

driver if she saw.” 

The Petitioner testified to his various grievances with counsel’s representation and 

disputes with the evidence. When discussing his disputes with the evidence, the Petitioner

asserted that he was framed by Detective Harris, who the Petitioner claimed knew the 

identity of the real murderer. Among his complaints regarding counsel, the Petitioner 

asserted that he told counsel he did not want the State to admit a redacted version of his 

statement to police at trial. He elaborated that he wanted to introduce the entire statement 

because it would have offered further explanation for his comment “that I can’t stand the 

police[.]” 

The Petitioner said that counsel should have done a better job questioning witness 

Kimberly McLemore because her testimony was “opposed to physical law.” The Petitioner 

claimed that there were witnesses he wanted counsel to call to testify, namely William Van

Buren and Bradley Jaimon Bryant, but counsel “said we don’t need them.” He alleged that 

those witnesses gave a description of the suspect as being about twenty-five pounds less 
- 18 -

than he weighed at the time. The Petitioner then acknowledged that Mr. Bryant testified 

at trial but that counsel “never questioned him regarding the description[,]” which 

amounted to ineffective assistance. He agreed that neither Mr. Bryant nor Ms. McLemore 

identified him as the shooter at trial. The Petitioner discussed a number of other witnesses 

he wanted counsel to have testify at trial that counsel said were not needed. 

The Petitioner also pointed to co-defendant Leangelo Ramey’s testimony that the 

Petitioner picked him up in a Buick LeSabre the night before the incident, as well as right 

after the incident, but the Petitioner claimed that he did not purchase that vehicle until a 

month after the incident. He asserted that proof of his car ownership would call Mr. 

Ramey’s credibility into question. However, the Petitioner acknowledged that his mother 

testified about his purchase of the Buick but said he was not allowed to introduce a 

supporting document at the trial. 

The Petitioner alleged that in its closing argument, the State claimed that Ms. 

McLemore identified him as the shooter but in actuality, Ms. McLemore “never testified 

to that, she did not see the shooter.” The Petitioner also alleged that he never received the 

surveillance video from the tobacco store across the street from the scene of the murder in 

discovery. He asserted that the State relied on this video as the factual basis in its warrant 

for the phone records of Natasha Lockett and Amanda Crawford. 

On cross-examination, the Petitioner recalled that counsel informed him that the 

State said he was identified by Kimberly McLemore and that Leangelo Ramey was going 

to testify as a witness against him. With regard to appellate counsel, the Petitioner alleged 

that appellate counsel failed to raise issues about Ms. McLemore’s statement, Detective 

Harris’s “testifying falsely,” the 911 call, and Larry Fornow’s testimony.

The Petitioner’s trial counsel testified that the defense theory of the case was that 

the co-defendant, Leangelo Ramey, stole the victim’s vehicle, drove away in it “with soap 

blowing off of it down the street,” then quickly returned to the car wash, “jumped out and 

shot [the victim], ran over him and dragged him under the car as he was getting away yet 

again[.]” Counsel noted that a witness, Montez Jennings, testified that Mr. Ramey 

confessed to him and showed him a firearm that looked like the type of firearm the evidence

indicated was the potential murder weapon. Counsel recalled that he discussed the theory 

of defense with the Petitioner prior to trial. 

Counsel acknowledged that he did not file a motion to suppress the cellphone tower 

evidence. However, he explained that he spoke with a representative from the phone 

company and was able to illustrate at trial that “in call times where there were lots of calls, 

a call may be switched from one call to the other. So questions about the accuracy of [‘]it 

pinged off of this tower[,’] that may not always be as reliable as it sounds.” He did not file 
- 19 -

a motion for funding to obtain an expert in the area of cell tower records because he thought 

that the testimony of the State’s witness was going to work adequately in favor of the 

defense. Counsel acknowledged that he did not research case law regarding the 

suppression of cellphone records due to failure to obtain a search warrant. 

Counsel also acknowledged that he did not file a motion to suppress the searches of 

the Marthona and Forrest Avenue residences due to staleness of the information or the 

overly broad nature of the requests. Counsel could not recall why he ultimately decided 

not to file a motion to suppress, but he conceded that after reading the cases and language 

cited in the petition for post-conviction relief that “[i]t’s a possibility” he should have filed 

one. Counsel agreed that the recovered items were used at trial to undermine the 

Petitioner’s credibility during the State’s closing argument. He also agreed that the 

Petitioner could have been truthful with the police in 2008 when he said that he did not 

own any firearms but could have come to possess them by the time the warrants were 

executed in September 2009. 

Counsel agreed that this court on direct appeal ruled that some of the issues appellate 

counsel raised were waived because they had not been included in the motion for new trial. 

Counsel noted that appellate counsel did not raise any of the issues that trial counsel had 

put in the motion for new trial. 

Counsel testified that he did not receive a copy of a surveillance video from the 

business across the street from the scene of the murder if one existed and, had one existed, 

he would have obtained a copy of it so he could determine whether it was of any value to 

the Petitioner.

Counsel agreed that the State somewhat misstated Ms. McLemore’s identification 

of the Petitioner in its closing argument and that he did not ask for a curative instruction or 

mistrial. However, counsel recalled that he made a special effort in closing argument to 

remind the jury that Ms. McLemore did not actually identify the Petitioner as the shooter.

Counsel recalled that co-defendant Ramey mentioned a burnt orange Buick LeSabre 

in a statement counsel received right before Mr. Ramey testified. The Petitioner’s family 

informed him that they purchased that vehicle about a month after the victim’s murder, and 

counsel asked them to find the title to the vehicle but they were unable to find it. Counsel 

had the Petitioner’s mother testify about the timing of the Buick’s purchase, but there was 

no physical evidence to back up her testimony to show that Mr. Ramey was lying when he 

said that he was “riding around [with the Petitioner] two days prior to [the murder] in a 

burnt orange Buick[.]” Counsel felt that he effectively cross-examined Mr. Ramey and 

“enjoyed the opportunity to try to prove he was lying.” 
- 20 -

Counsel said that he was not familiar with a witness named William Van Buren who 

was supposedly at the scene and gave the police a description of an individual he saw with 

the victim prior to the shooting. The description was of an individual different in size than 

the Petitioner but consistent with the size of Mr. Ramey. Counsel recalled that he turned a 

number of names over to his investigator but that it was “not unusual not to be able to find 

somebody[,] though.” 

With regard to the Petitioner’s interview with the police, counsel noted that “[y]ou 

couldn’t have heard part of what he was saying” because the Petitioner’s voice box was 

injured from a gunshot wound when he was younger. 

After the conclusion of the testimony and argument of the parties, the postconviction court entered a detailed order denying the petition, and the Petitioner appealed.

ANALYSIS

On appeal, the Petitioner argues that the post-conviction court erred in denying his 

petition because he received ineffective assistance at trial and on appeal; the State 

committed prosecutorial misconduct; the State committed a Brady violation; and he is 

actually innocent. 

Post-conviction relief “shall be granted when the conviction or sentence is void or 

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

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The 

petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the 

findings of fact made by the court are conclusive on appeal unless the evidence 

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When 

reviewing factual issues, the appellate court will not reweigh the evidence and will instead 

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight 

of their testimony. Id. However, review of a post-conviction court’s application of the law 

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 

978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which 

presents mixed questions of fact and law, is reviewed de novo, with a presumption of 

correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

I. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel, the petitioner has the 

burden to show both that trial counsel’s performance was deficient and that counsel’s 
- 21 -

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. 

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of 

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard 

is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. 

This requires showing that counsel made errors so serious that counsel was 

not functioning as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s 

acts or omissions were so serious as to fall below an objective standard of reasonableness 

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) 

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of 

counsel falls within the range of reasonable professional assistance, see Strickland, 466 

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial 

counsel unless those choices were uninformed because of inadequate preparation. See 

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied 

by showing a reasonable probability, i.e., a “probability sufficient to undermine confidence 

in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address 

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either 

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.”).

The Petitioner asserts that he received ineffective assistance of counsel because trial 

counsel failed to: seek suppression of his cellphone records; seek suppression of the fruits 

of the searches of two residences associated with him; object to the State’s 

mischaracterization of Ms. McLemore’s testimony in its closing argument; object to 

redaction of his taped interview; and effectively cross-examine witnesses. He also argues 

that he received ineffective assistance with regard to his direct appeal because four of the 
- 22 -

issues presented to this court were deemed to be waived for having not been included in 

the motion for new trial. 

A. Cellphone Records

The Petitioner claims that counsel provided ineffective assistance because he failed 

to file a motion to suppress the Petitioner’s cell-site location information (“CSLI”) that 

Detective Harris obtained by court order based on the Stored Communications Act. As to 

this issue, the post-conviction court found that counsel did not perform deficiently in failing

to file such motion because the United States Supreme Court had not yet ruled at the time 

of trial that individuals have a reasonable expectation of privacy in their cell-site location 

information such to require a warrant. In addition, the court surmised that two cases cited 

by the Petitioner, United States v. Jones, 565 U.S. 400 (2012) and United States v.

Warshak, 631 F.3d 266 (6th Cir. 2010), that he claimed counsel should have used as 

authority to seek suppression, were not so similar to the Petitioner’s case that counsel was 

unreasonable for not filing a motion to suppress based on that precedent. The court also 

determined that it was “not persuaded that the Petitioner has established that a motion to 

suppress the CSLA would have been granted even if [counsel] had filed such a motion” 

based on the case law that was applicable at the time of the Petitioner’s trial.

The record supports the post-conviction court’s determinations. Detective Harris 

applied for and received court orders for the CSLI for phone numbers associated with the 

Petitioner pursuant to the Stored Communications Act, which was the requisite procedure 

at the time. Although the United States Supreme Court has since ruled in Carpenter v.

United States, 138 S. Ct. 2206 (2018), that citizens have a reasonable expectation of 

privacy in their CSLI, meaning a warrant would generally be required for the State to obtain 

it, such was not the law at the time of the Petitioner’s trial. At the time of trial, Jones, 565 

U.S. 400, a case in which the United States Supreme Court held that attaching a Global 

Positioning System (“GPS”) to a defendant’s vehicle was a search under the Fourth 

Amendment, was the prevailing precedent regarding searches of electronic information. 

However, CSLI can only be used to identify the general area in which a person’s cellphone 

is located and does not provide the same level of detail or continual location data as with 

GPS tracking information. See Carpenter, 138 S. Ct. at 2225 (Kennedy, J., dissenting). In

addition, at the time of trial, the Sixth Circuit had held that “a subscriber enjoys a 

reasonable expectation of privacy in the contents of emails that are stored with, or sent or 

received through, a commercial ISP.” Warshack, 631 F.3d at 288. However, the facts in 

Warshack were clearly distinguishable from those in the present case, and Warshack would 

have only been persuasive authority for Tennessee courts at the time of trial. As the postconviction court concluded, while a suppression motion relying on these cases would not 

have been frivolous, the law at the time of trial was not so clear that the failure to file one 

was deficient performance. Of additional note, counsel attacked the reliability of the CSLI 
- 23 -

at trial through his cross-examination of the cellphone company representative, which he 

used to show that CSLI “may not always be as reliable as it sounds.” We cannot conclude 

that counsel rendered deficient performance in failing to file a motion to suppress, or that 

the result of the proceeding would have been different had a suppression motion been filed. 

B. Search of Residences

The Petitioner claims that counsel provided ineffective assistance because he failed 

to seek suppression of the fruits of the searches of two residences associated with him due 

to the search warrants being overly broad or based on stale information and that the 

evidence was inadmissible because it lacked relevance. In considering this issue, the postconviction court did not belabor an analysis of whether counsel was deficient for failing to 

file a motion to suppress because it concluded that the Petitioner was not prejudiced by the 

failure. 

The court observed that the main evidence recovered in the execution of the search 

warrants was several firearms and ammunition of different caliber than what was used in 

the murder. The court noted that the State used the evidence to argue that the Petitioner’s 

having several firearms in his house tended to make it more likely that he would also have 

access to a nine-millimeter firearm, and also to impeach the truthfulness of the Petitioner’s 

statement shortly after the incident that he had never touched a firearm in his life. The 

court cited to the testimonies of witnesses at trial, one of whom was the Petitioner’s own 

witness, who said that the Petitioner was known to carry and use firearms. The court 

determined that even if the fruits of the search warrants had been suppressed, the jury would 

have still heard evidence that the Petitioner had access to firearms and was not totally 

honest with police when he said he had never touched a firearm. Therefore, the postconviction court concluded that there was not a reasonable probability that the result of the 

trial would have been different had counsel successfully suppressed the recovered 

evidence. We have reviewed the record, and it supports the post-conviction court’s 

determination that suppression of the evidence recovered during the searches of the 

residences would have had no effect on the outcome of the Petitioner’s trial.

With regard to the Petitioner’s challenge to relevance, we agree with the postconviction court’s assessment that “the fact that firearms were found at a location where 

the Petitioner stayed does tend to show that the Petitioner had access to firearms . . . [and] 

tend[s] to show that the Petitioner was not honest with the police about his use of firearms 

in his statement in November of 2008.” 

C. State’s Closing Argument
- 24 -

The Petitioner claims that counsel provided ineffective assistance because he failed 

to object to the State’s mischaracterization of Ms. McLemore’s testimony in its closing 

argument. He avers that the State said in its closing argument that Kimberly McLemore 

saw the Petitioner shoot the victim, when she actually testified that she did not know who 

fired the shots but had circled the Petitioner’s photograph on an array indicating that she 

was not “100 percent sure . . . [b]ut [she] . . . believe[d] that’s the guy [she] saw.” 

The record shows that during closing argument, the State argued that Ms. 

McLemore “viewed a photo lineup and was able to identify the [Petitioner].” (Trial Record 

Later, the State commented that Ms. McLemore “identif[ied] the [Petitioner] as the 

shooter.” During closing argument for the defense, counsel pointed out that “Ms. 

McLemore testified from the stand that she looked at a photo lineup[] and said she wasn’t 

a hundred percent sure but she circled the face of [the Petitioner] and said, it kind of looks 

like. It resembles him.” Counsel also reminded the jury that Ms. McLemore said that she 

only saw the suspected perpetrator “very briefly . . . it was just an instant.” At the postconviction evidentiary hearing, counsel recalled that he made a special effort during closing 

argument to remind the jury that Ms. McLemore did not actually identify the Petitioner as 

the shooter.

In ruling on this issue, the post-conviction court recognized that counsel “could have 

made [the] objection,” but it was unclear whether counsel had a tactical reason for failing 

to do so. The court summarized that “[e]ven if Ms. McLemore did not see the Petitioner 

shoot the victim, as the State characterized in its closing argument, the jury heard testimony 

at trial that Ms. McLemore saw the victim and Petitioner together shortly before hearing 

gunshots in the area where they had been.” The court continued that “[w]hile there is a 

factual distinction between the State’s summary and the precise testimony offered at trial, 

it would not have been unreasonable for [counsel] to avoid drawing greater attention to one 

of the stronger components of the State’s case.” Moreover, the court concluded that there 

was “overwhelming evidence” against the Petitioner, see Kevin Lamont French, 2014 WL 

3530947, at *14, such that counsel’s failure to object did not undermine its confidence in 

the verdict. 

We conclude that the State’s comment regarding Ms. McLemore’s identification 

was enough of a reasonable inference from the evidence so as to not necessitate an 

objection, and counsel’s addressing the State’s comment in his own closing argument 

rather than drawing more attention to it by launching an objection was a reasonable trial 

tactic. Moreover, we discern no reasonable probability that the outcome of the trial would 

have been different had counsel objected.

D. Redaction
- 25 -

The Petitioner claims that counsel provided ineffective assistance because he failed 

to object to redaction of his taped interview. He avers that the “redactions included 

statements that the reason he did not trust police officers was a prior occasion, years earlier, 

when he was shot by an officer.” 

At the evidentiary hearing, the Petitioner claimed that he told counsel he did not 

want the State to admit a redacted version of his statement to police at trial. He elaborated 

that he wanted to introduce the entire statement because it would have offered further 

explanation for his comment “that I can’t stand the police[.]” Counsel testified that he did 

not remember whether he and the Petitioner discussed redactions in the Petitioner’s 

statement but that it was not much of an issue to him because one could not hear part of 

what the Petitioner said in his statement due to his damaged voice box. 

The post-conviction court determined that counsel’s failure to object to the 

introduction of the Petitioner’s redacted statement was not deficient because “the Petitioner 

ha[d] not offered sufficient proof for the [c]ourt to determine that [counsel] did not have a 

tactical reason for failing to make the objection[]” (I: 186) and “even if [counsel] should 

have objected to the admission of the redacted portions of the Petitioner’s statement to 

police[,] . . . the [c]ourt does not find that the result of the proceeding would be different.” 

We agree that the Petitioner has failed to prove that counsel performed deficiently 

in failing to object to the introduction of the redacted statement and, moreover, that 

admission of the unredacted statement would have had minimal effect on the Petitioner’s 

case in light of the evidence against him. 

E. Cross-Examination of Witnesses

The Petitioner claims that counsel provided ineffective assistance because he failed 

to effectively cross-examine witnesses, namely co-defendant Leangelo Ramey and Bradley

Jaimon Bryant.

In addressing this claim, the post-conviction court observed that choosing which 

issues to focus on in cross-examination was “the type of strategic decision that a trial court 

is not to second-guess in the tactical realm.” The court also observed that this court on 

direct appeal had noted that “[a]ll witnesses [in this case] were thoroughly crossexamined.” Kevin Lamont French, 2014 WL 3530947, at *13. The court concluded that 

counsel’s “decisions regarding what issues to focus on in cross-examination were 

reasonable tactical decisions such that his representation did not constitute deficient 

performance.” 
- 26 -

At the evidentiary hearing, counsel, an attorney with almost forty years’ experience 

practicing criminal law, testified that he believed that he effectively cross-examined Mr. 

Ramey. While counsel might not have delved into the minute details now requested by the 

Petitioner, the record does not indicate that counsel was deficient in his cross-examination. 

As to Mr. Bryant, the Petitioner admitted at the evidentiary hearing that Mr. Bryant did not 

identify him as the shooter at trial. Therefore, even assuming there was some deficiency 

in counsel’s cross-examination of Mr. Bryant, such deficiency did not cause him prejudice. 

F. Issues on Appeal

The Petitioner claims that he received ineffective assistance with regard to his direct 

appeal because four of the issues presented to this court were deemed to be waived for 

having not been included in the motion for new trial. It is not entirely clear whether the 

Petitioner specifically contends that trial counsel was ineffective for failing to preserve the 

issues in the motion for new trial that were ultimately deemed waived on appeal or that 

appellate counsel was ineffective for failing to raise the issues preserved in the motion for 

new trial rather than the issues he raised. 

As indicated, on direct appeal, this court determined that four of the issues presented 

by the Petitioner were waived due to not being included in his motion for new trial: (1) the 

trial court erred by admitting prior bad act testimony; (2) the trial court erred by admitting 

a letter purportedly written by the Petitioner; (3) the trial court erred by admitting testimony 

regarding weapons found in the Petitioner’s home; (4) the assistant district attorney general 

committed prosecutorial misconduct during closing arguments. Id. at *14. 

At the evidentiary hearing, trial counsel agreed that this court ruled that some of the 

issues appellate counsel raised on appeal were waived because they had not been included 

in the motion for new trial. In addition, trial counsel noted that appellate counsel did not 

raise some of the issues that trial counsel had raised in the motion for new trial. 

In ruling on this issue, the post-conviction court first observed that appellate counsel 

was not required to “raise every conceivable issue on appeal,” and that “[c]ourts are to give 

‘considerable deference’ to appellate counsel’s professional judgment with regard to which 

issues to raise on appeal.” The post-conviction court determined that trial counsel’s 

decision to raise only the issues he felt were the strongest in the motion for new trial was 

not deficient, and that “none of the issues that [counsel] failed to include in the motion for 

new trial were so plainly meritorious that it was unreasonable for him to not include those 

issues.” The court also determined, assuming arguendo that counsel should have included 

those issues in the motion for new trial, that the Petitioner was not prejudiced by counsel’s 

failure to do so. In making this determination, the court relied on its own assessment of 

the evidence, as well as this court’s determination on direct appeal that “plain error review 
- 27 -

is not proper because in light of the overwhelming evidence against the accused, none of 

the alleged errors would have ‘probably changed the outcome of the trial’; thus, 

consideration of the alleged errors is not necessary to do substantial justice.” Id. (citations 

omitted). 

Likewise, the post-conviction court found that “deference to [appellate counsel]’s 

decisions in which issues to pursue on appeal is appropriate because those choices were 

well within the range of competence required of attorneys. None of the issues which the 

Petitioner claims should have been raised were of significant merit.” 

Upon review, we conclude that neither trial nor appellate counsel were deficient for 

raising the issues he each, respectively, discerned as most meritorious. Moreover, because 

this court on direct appeal declined to review the four issues pointed to by the Petitioner

under the plain error doctrine, the Petitioner has not established that this court would have 

granted him relief on direct appeal had those four issues been properly reserved. 

II. Prosecutorial Misconduct

The Petitioner next argues the stand-alone claim that the State committed 

prosecutorial misconduct in closing argument. He “does not contend that any intentional 

misconduct occurred, but that the statements presented as cause were made ‘in the heat of 

the battle[,]’ . . . but that the prejudicial effect on the jury would have been no less injurious 

to his rights[.]” Although the Petitioner does not explicitly state so in the argument of his 

brief, we presume he is referring to the State’s “mischaracterization” of Ms. McLemore’s 

identification of him as the shooter as the misconduct at issue.

The five generally recognized areas of prosecutorial misconduct occur when the 

prosecutor intentionally misstates the evidence or misleads the jury on the inferences it 

may draw from the evidence; expresses his or her personal opinion on the evidence or the 

defendant's guilt; uses arguments calculated to inflame the passions or prejudices of the 

jury; diverts the jury from its duty to decide the case on the evidence by injecting issues 

broader than the guilt or innocence of the accused under the controlling law or by making 

predictions on the consequences of the jury’s verdict; and intentionally refers to or argues 

facts outside the record, other than those which are matters of common public knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). Tennessee courts “have 

traditionally provided counsel with a wide latitude of discretion in the content of their final 

argument” and trial judges with “wide discretion in control of the argument.” State v.

Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). A party’s closing argument “must 

be temperate, predicated on evidence introduced during the trial, relevant to the issues 

being tried, and not otherwise improper under the facts or law.” State v. Middlebrooks, 

995 S.W.2d 550, 557 (Tenn. 1999).
- 28 -

As summarized above, the record shows that during closing argument, the State 

argued that Ms. McLemore “viewed a photo lineup and was able to identify the 

[Petitioner].” Later, the State commented that Ms. McLemore “identif[ied] the [Petitioner] 

as the shooter.” During closing argument for the defense, counsel clarified that “Ms. 

McLemore testified from the stand that she looked at a photo lineup[] and said she wasn’t 

a hundred percent sure but she circled the face of [the Petitioner] and said, it kind of looks 

like. It resembles him.” Counsel also reminded the jury that Ms. McLemore said that she 

only saw the suspected perpetrator “very briefly . . . it was just an instant.” 

In ruling on this issue, the post-conviction court determined that “none of the 

statements the Petitioner claims constituted misconduct were actually improper” as the 

remarks were “reasonable inferences that can be drawn from the facts.” The court also 

noted that it instructed the jury that the statements of the attorneys did not constitute 

evidence, and that it was to decide the case on the evidence introduced at trial. The court 

further determined that even if the prosecutor’s remarks were improper, the cumulative 

effect of the comments was minor, “particularly in comparison [to] the strength of the 

State’s case overall.” 

The record supports the post-conviction court’s determinations. The State’s 

comments during closing argument were not outside the bounds of reasonable inferences 

from the evidence and were not so inflammatory that they prejudiced the jury. In addition, 

counsel clarified and counter-attacked the State’s comments during his closing argument, 

and the trial court instructed the jury that it was to base its decision only on the evidence. 

The Petitioner is not entitled to relief on this issue. 

III. Brady Claim

The Petitioner next claims that the State committed a Brady violation, i.e., withheld 

exculpatory evidence, because it failed to disclose a surveillance video from a business 

near the scene of the crime. He contends that the video was material because “production 

of the video would have . . . led him to additional witnesses that may have had crucial 

information regarding the events that occurred.” 

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court 

held that the prosecution has a duty to furnish to the defendant exculpatory evidence 

pertaining either to the accused’s guilt or innocence or to the potential punishment that may 

be imposed. The Court explained that “suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is material 

either to guilt or to punishment, irrespective of the good faith or bad faith of the 

prosecution.” Id. In order to establish a Brady violation, a defendant must show that he or 
- 29 -

she requested the information, the State suppressed the information, the information was 

favorable to his or her defense, and the information was material. State v. Jackson, 444 

S.W.3d 554, 594 (Tenn. 2014). Evidence that is “favorable to an accused” includes 

evidence that exculpates the defendant or evidence that could be used to impeach the 

State’s witnesses. Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). Evidence is “material” 

if there is a reasonable probability that the result of the proceeding would have been 

different had the evidence been disclosed to the defense. Id. at 58. A Brady claim in a 

post-conviction proceeding is “governed by the same prejudice standard as an ineffective 

assistance of counsel claim.” Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 

2004). “[A] defendant must show that there is a reasonable probability that the result of 

the proceedings would have been different.” Id. at 598-99.

At the evidentiary hearing, counsel testified that he did not receive a copy of a 

surveillance video from the business across the street from the scene of the murder if one 

existed and, had one existed, he would have obtained a copy of it so he could determine 

whether it was of any value to the Petitioner. The Petitioner alleged that he never received 

the surveillance video from the store across the street from the murder in discovery, which 

he asserted that the State relied on as the factual basis in its warrant for the phone records 

of Natasha Lockett and Amanda Crawford. Detective Harris acknowledged that one of the 

applications for a court order to obtain cellphone records referred to a surveillance video 

taken from a business across the street from the car wash where the murder took place. He 

agreed that the police took custody of the surveillance video footage at some point and he 

reviewed it, but he had no knowledge of whether the Petitioner received the recording in 

discovery. Detective Harris recalled that a portion of the road in front of the car wash could 

be seen on the video, but the car wash itself could not. 

In ruling on this issue, the post-conviction court determined that the Petitioner did 

not establish that a Brady violation had occurred because the surveillance footage was not 

material. The court concluded that “[e]ven if [it] accepts the Petitioner’s unsubstantiated 

conclusion that the footage contained information favorable to him by allowing him to 

determine if the woman on the phone was Ms. Tasha Lockett or Ms. Amanda Crawford,” 

the video did not show the parties actually involved in the homicide and production of the 

video would not have “placed the case in a different light.” 

The evidence does not preponderate against the findings of the post-conviction 

court. The Petitioner himself only claims that the surveillance video would have “led him 

to additional witnesses that may have had crucial information regarding the events that 

occurred.” The Petitioner failed to establish that the footage would have exculpated him 

or been used to impeach any of the State’s witnesses at trial. Even if the Petitioner had 

been able to view the video and learn of “additional witnesses,” we agree with the postconviction court’s assessment that “in no way the production of that video [would] have 
- 30 -

placed the case in a different light, particularly in light of the strength of the other evidence 

supporting the convictions.” 

IV. Actual Innocence 

The Petitioner lastly claims that “if given a new trial, he would gladly bear the 

burden of proving his actual innocence.” In addressing this claim, the post-conviction court 

observed that this court “has consistently held that a freestanding ‘claim of actual 

innocence that is not based on scientific evidence . . . may not be raised in a post-conviction 

relief petition.’” 

Initially, we observe that the Petitioner has waived review of this issue for failing to 

support his claim with “argument, citation to authorities, or appropriate references to the 

record[.]” Tenn. R. Ct. Crim. App. 10(b). The Petitioner’s analysis on this issue consists 

of one paragraph in which he does not cite to any facts or case law in support of his claim. 

In any event, even if not waived, the post-conviction court properly denied relief.

A Petitioner may raise a claim of actual innocence based on new scientific evidence in a

petition for post-conviction relief. See Dellinger v. State, 279 S.W.3d 282, 290-91 (Tenn. 

2009); see also Tenn. Code Ann. §§ 40-30-102(b)(2), -117(a)(2). However, this court has 

repeatedly held that claims of actual innocence not based on newly discovered scientific 

evidence are not cognizable in a petition for post-conviction relief. See Shaun Alexander 

Hodge v. State, No. E2009-02508-CCA-R3-PC, 2011 WL 3793503, at *7-8 (Tenn. Crim.

App. Aug. 26, 2011), perm. app. denied (Tenn. Feb. 15, 2012); James W. Vanover v. State, 

No. E2010-00203-CCA-R3-PC, 2011 WL 3655136, at *5 (Tenn. Crim. App. Aug.19, 

2011), perm. app. denied (Tenn. Oct. 18, 2011); see also Dellinger, 279 S.W.3d at 291 n.7. 

The Petitioner failed to introduce any new scientific evidence that would support his claim 

of actual innocence; therefore, the post-conviction court properly denied relief. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the 

Petitioner’s petition for post-conviction relief. 

____________________________________

 ALAN E. GLENN, JUDGE