IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 29, 2016

SHANGO ATON RAMSEY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Cocke County

No. 4922 Ben W. Hooper, II, Judge

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No. E2015-01464-CCA-R3-PC – Filed August 8, 2016

___________________________________

Shango Aton Ramsey (“the Petitioner”) appeals the Cocke County Circuit Court‟s denial 

of his petition for post-conviction relief. The Petitioner contends that he received 

ineffective assistance of counsel in connection with his guilty plea and that the State 

withheld evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1962). Upon review, we 

affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which CAMILLE R.

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

Bryce W. McKenzie, Sevierville, Tennessee, for the appellant, Shango Aton Ramsey.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; James Dunn, District Attorney General; and Brownlow Marsh, Assistant 

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

OPINION

I. Factual and Procedural Background

Plea Colloquy

In November 2011, the Petitioner entered an “open plea” in the Cocke County 

Circuit Court to sale of less than .5 grams of cocaine base, a Class C felony. The State 

recited the factual basis for the Petitioner‟s plea, as follows:
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[O]n or about December 20, 2010, . . . a confidential informant, an[d]

Agent Todd Coleman, of the Drug Task Force, arrived at a house on 

Domino Street here in Newport and met with [the Petitioner]. Agent 

Coleman also testified that [the Petitioner] used the telephone provided by 

the CI to make a telephone call and then Agent Coleman gave a hundred 

dollars of Drug Task Force funds to [the Petitioner]. [The Petitioner] 

walked up the street and met with a white BMW, came back and gave a 

clear, plastic baggie containing a white, rock like substance, weighing two 

tenths of a gram to Agent Coleman. And that white rock was sent off to the 

TBI Crime Lab and came back as zero point two grams of cocaine base[] or 

crack cocaine. 

During the plea colloquy, the Petitioner stated that he was thirty-eight years old, 

was a high school graduate, and could read and write without difficulty. The Petitioner 

indicated that he had no physical, mental, or emotional conditions that would interfere 

with his ability to understand the proceedings. The Petitioner indicated that he had 

discussed with trial counsel the possible punishment involved based upon the charged 

offenses. He agreed that he had discussed the case with trial counsel and that they had 

talked about whether or not to proceed to trial. The Petitioner acknowledged that he was 

giving up his right to a jury trial, that he had not been forced to plead guilty, and that he 

was entering his plea freely and voluntarily. The Petitioner also stated that he was 

satisfied with trial counsel‟s performance. 

At a subsequent sentencing hearing, the trial court sentenced the Petitioner, as a 

Range III persistent offender, to ten years‟ incarceration. The trial court noted that the

Petitioner had a lengthy criminal history, including at least nine felony convictions, 

eighteen misdemeanors convictions, and seven prior violations of probation. The 

Petitioner filed a notice of appeal with this court but later filed a motion seeking to

voluntarily dismiss the appeal, which this court granted. See State v. Shango Ramsey, 

No. E2012-01340-CCA-R3-CD (Tenn. Crim. App. Dec. 11, 2012) (order). 

Post-Conviction Proceedings

On August 28, 2013, the Petitioner filed a pro se petition for post-conviction 

relief.

1

 Following the appointment of counsel, an amended petition was filed, alleging 

 

1 The record on appeal does not contain a copy of the judgment of conviction. Without a copy of 

the judgment, it is difficult to tell whether the direct appeal was timely filed and, consequently, whether 

the petition for post-conviction relief was filed within the one-year statute of limitations. However, the 

State did not assert the statute of limitations as a defense, and the post-conviction court ruled on the 

merits of the petition. Accordingly, we presume that the petition was timely filed.
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the denial of effective assistance of counsel, an unknowing guilty plea, and a violation of 

Brady. 

At the post-conviction hearing, the Petitioner testified that trial counsel was 

appointed to represent him after his original attorney, who was appointed shortly after his 

arraignment in September 2011, had to withdraw from the case because of a conflict of 

interest. Consequently, the Petitioner did not speak to trial counsel about his case until he 

came to court on November 8, 2011, the day of his guilty plea. The Petitioner stated that 

trial counsel played an audio CD of the drug transaction but claimed that counsel showed 

him no other discovery relating to his case. The Petitioner explained that the audio 

recording contained both the transaction and a minute and a half phone call allegedly 

between the confidential informant (“CI”) and himself. He recalled that, while listening 

to the recording, he heard the name “Boswell” and recognized the CI as Nick Boswell. 

The Petitioner stated that he did not listen to all of the recording with trial counsel; he 

only listened to “the part where Nick first come [sic] to my house and stuff.” The 

Petitioner maintained that he did not see any other evidence relating to his case before he 

entered his plea.

The Petitioner testified that, after speaking with trial counsel and listening to a 

portion of the audio recording, he returned to the jury box in the courtroom. At that time, 

another inmate, Trevor Stewart, asked the Petitioner, “Who got you?” When the 

Petitioner responded, “I think it was Nick Boswell,” Mr. Stewart informed the Petitioner 

that Mr. Boswell was deceased. The Petitioner then motioned for trial counsel to come 

over, and he told trial counsel that the CI in his case “might be passed away.” According 

to the Petitioner, trial counsel spoke to the prosecutor briefly and then told the Petitioner 

that he was “mistaken.” The Petitioner stated that, based upon that representation from 

trial counsel, he agreed to plead guilty. He testified that he had been in custody for about 

a month before the November 8 court date and that he “had no way of learning anything 

about Mr. Boswell.” The Petitioner said that he relied upon the information from trial 

counsel in deciding whether to enter a plea and, if he had known that Mr. Boswell was in 

fact deceased,2he would not have entered his guilty plea. 

On cross-examination, the Petitioner admitted that, when he was listening to the 

audio recording with trial counsel, he told trial counsel to “cut it off” after he heard Mr. 

Boswell on the recording. He also admitted that Mr. Boswell was the CI that he gave 

drugs to during the recorded transaction. The Petitioner testified that he and Mr. Boswell 

 

2 At the hearing, the parties stipulated that Mr. Boswell was deceased. However, the parties were 

unaware of the date of Mr. Boswell‟s death, and the Petitioner indicated that he would supplement the 

trial record with documentation establishing the date of death. The Petitioner never supplemented the 

record. 
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had been friends and had “hung out a lot.” He further acknowledged that Mr. Boswell 

had been a drug addict and had used crack cocaine. 

Trevor Stewart, an inmate in Cocke County, testified that he was in the jury box 

with the Petitioner on November 8, 2011. Mr. Stewart recalled telling the Petitioner that 

Mr. Boswell was deceased and that he should not plead guilty “without knowing about 

his case first[.]” Mr. Stewart stated that the Petitioner had been unaware of Mr. 

Boswell‟s death and that the Petitioner then informed trial counsel that Mr. Boswell was 

deceased. According to Mr. Stewart, trial counsel did not respond to Petitioner, looked 

away, and started talking to the trial judge. Mr. Stewart said trial counsel “didn‟t never 

say nothing else about it.” 

Trial counsel testified that she was appointed to represent the Petitioner after his 

indictment. She recalled that, originally, the public defender‟s office had been appointed 

to represent the Petitioner but had to withdraw when a conflict of interest was discovered. 

Trial counsel stated that she received discovery from the State, which she reviewed. Trial 

counsel could not recall making the Petitioner a copy of the discovery but testified that 

she went over the papers and audio recording with him in the jury room. Trial counsel 

recalled that the discovery information did not list the name of the CI used in the case. 

Trial counsel testified that she had spoken to the Petitioner at previous court dates prior to 

November 8, 2011. She stated that she had previously asked the court for a continuance 

so that the Petitioner could review discovery. Trial counsel recalled that she had “a hard 

time staying in contact” with the Petitioner prior to court appearances, explaining that the

Petitioner did not maintain contact with her office and that it was “very hard to find him.” 

Trial counsel agreed that, before the November 8 court appearance, she had not known 

the identity of the CI, and she had not listened to the audio recording of the transaction. 

Trial counsel recalled that, during court on November 8, she asked the bailiff to 

take the Petitioner, who was in custody, to the jury room so that she could review 

discovery with him. Trial counsel used her laptop to play part of the audio recording for 

the Petitioner. As the Petitioner listened to the recording, he identified the CI to trial 

counsel as Mr. Boswell. Trial counsel recalled that, after some discussion, the Petitioner 

said that “he had heard enough” and did not want to listen to the rest of the recording, and 

he instructed trial counsel to “cut off the tape.” Trial counsel stated, however, that she 

had reviewed the entire audio recording by herself before having the Petitioner listen to 

it. Counsel explained that, although she did not know Mr. Boswell, the Petitioner 

identified Mr. Boswell by voice. The Petitioner told trial counsel that the “[w]ord on the 

street” was that Mr. Boswell was deceased. The Petitioner then suggested that trial 

counsel tell the prosecutor that the Petitioner knew that the CI was deceased. Trial 

counsel stated that she provided this information to the prosecutor, who then contacted 

the agent on the case. After speaking with the agent, the prosecutor told trial counsel that 
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the agent verified that Mr. Boswell was deceased. However, the prosecutor informed 

trial counsel that the agent had seen and heard the drug transaction and that the agent 

would be able to testify as a witness at trial, notwithstanding the CI‟s death. Following 

her discussions with the prosecutor, trial counsel explained to the Petitioner that the State 

“still had an additional witness that . . . would be able to testify at trial against him should 

he decide to proceed to trial.” 

Trial counsel said that she filed a request for discovery and specifically asked for 

Brady material. She stated that she considered the death of the CI potential exculpatory 

information. Trial counsel stated that, in her experience with drug cases, she typically 

learned the identity of the CI after her client reviewed the audio or video recording of the 

drug transaction. Trial counsel explained that, typically, the prosecutor‟s office did not 

turn over the name of the CI until about a month away from trial. Counsel stated, “This 

case was never set for trial . . . so it was still premature in the procedure here for that 

witness to be turned over, the name of the witness.” She stated that she considered the 

discovery “ongoing” and explained, “It was very early in the case . . . and I didn‟t expect 

the name of the informant to come until later in time.” 

Trial counsel recalled that after she reviewed discovery with the Petitioner, 

including the audio recording of the drug transaction, the Petitioner was under the 

impression that the only witness that the State had was the CI. However, after speaking 

to the prosecutor, trial counsel told the Petitioner that he was mistaken and that the State 

had an additional witness who could testify at trial. Trial counsel stated that she did not 

investigate the CI‟s death any further after the Petitioner told her Mr. Boswell was 

deceased and the prosecutor confirmed that information with the agent in charge of the 

case. 

Trial counsel could not recall if she told the Petitioner that the CI was deceased

after speaking to the prosecutor. However, trial counsel did recall telling the Petitioner 

that there was “still another witness.” Trial counsel explained that she spoke 

“extensively” with the Petitioner about his entering an “open plea” and about the impact 

of the State‟s not having testimony from the CI. She explained to the Petitioner that there 

were three possible outcomes to his criminal case—dismissal, trial, or some form of plea. 

She discussed with the Petitioner that because the State had an agent that observed and 

heard everything in the drug transaction, the case did not “die with the CI.” When trial 

counsel asked the Petitioner if he wanted a trial, the Petitioner stated that he thought the 

State was “being unfair with the offers that he was being given” and that he would have 

“a better shot” with his sentence at a sentencing hearing. Ultimately, the Petitioner told 

trial counsel that he wanted to enter a plea of guilty, knowing that the CI was deceased. 

Trial counsel stated that she did not ask for a continuance to investigate whether the CI 

was deceased because there was “no question that he was dead.” She recalled that the 
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Petitioner had no concerns about the death of the CI at the time of his guilty plea. Trial 

counsel stated that, in her opinion, the CI was “not a linchpin material witness,” and his 

death would not result in a dismissal of the case because the State‟s primary witness was 

still available to testify. 

On cross-examination, trial counsel stated that the prosecutor was unaware of the 

identity of the CI when trial counsel asked about the status of the CI. The prosecutor had 

to speak to the case agent to learn the CI‟s identity and whether he was deceased. 

Agent Todd Coleman of the Jefferson County Sheriff‟s Department testified that 

he was assigned to the Fourth Judicial District Drug Task Force. On December 20, 2010, 

Agent Coleman was working with Mr. Boswell as a CI when Mr. Boswell called the 

Petitioner to arrange a drug transaction for crack cocaine. Agent Coleman explained, 

however, that he did not hear the phone conversation between Mr. Boswell and the 

Petitioner until after the transaction, when he listened to the recording of the call. Agent 

Coleman testified that he and Mr. Boswell went to a residence on Domino Street in 

Newport to meet with the Petitioner as Mr. Boswell arranged. When they got to the 

residence, Agent Coleman and Mr. Boswell exited their vehicle and met the Petitioner in 

the driveway. Mr. Boswell and the Petitioner agreed to a purchase of one-hundreddollars‟ worth of crack cocaine, and Agent Coleman gave the Petitioner a one hundred 

dollar bill. The Petitioner then used Mr. Boswell‟s phone to call his supplier. A short 

time later, a vehicle arrived “up the street,” and the Petitioner walked to the vehicle. The 

Petitioner met with someone in the vehicle and came back holding a piece of crack in his 

hand. The Petitioner then handed the crack to Agent Coleman. Agent Coleman recalled 

that the Petitioner wanted a piece of the crack rock but stated that he gave the Petitioner 

an extra twenty dollars instead. Agent Coleman testified that he later sent the drugs to 

the Tennessee Bureau of Investigation crime lab where it was analyzed and found to be 

cocaine base, crack cocaine. 

On cross-examination, Agent Coleman acknowledged that he did not know the 

Petitioner and had not talked to the Petitioner before the day of the transaction. He 

explained that another agent, Agent David Norton, was in the car with Mr. Boswell when 

Mr. Boswell called the Petitioner and recorded the phone call. Although Agent Coleman 

listened to the recorded call following the transaction, he acknowledged that he had not 

known what the Petitioner‟s voice sounded like. Agent Coleman stated that he bought 

the drugs from the Petitioner for one hundred dollars. 

At the conclusion of the hearing, the post-conviction court found that the 

Petitioner and trial counsel “were well aware” that the CI was deceased before the 

Petitioner entered his guilty plea. The court found that Mr. Boswell‟s death was “fully, 

totally, completely discussed” between the Petitioner and trial counsel but that trial 
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counsel concluded that the State could still proceed to trial without the CI because it had 

an additional witness. The post-conviction court further found that trial counsel 

discussed the plea with the Petitioner before it was entered and that counsel provided 

adequate advice based on the circumstances. The court concluded that trial counsel‟s 

representation was not ineffective and that the Petitioner‟s guilty plea was knowing and 

voluntary. Further, the post-conviction court found that the prosecutor had no knowledge 

of the CI‟s death prior to the Petitioner‟s court appearance on November 8 and concluded 

there was no Brady violation. Based upon these findings, the post-conviction court 

denied relief. This timely appeal followed. 

II. Analysis

On appeal, the Petitioner contends that he received ineffective assistance of 

counsel resulting in an unknowing and involuntary guilty plea. He contends that trial 

counsel was ineffective based upon her failure to investigate the identity of the CI and to 

determine whether the CI would be available for trial. The Petitioner asserts that, had 

trial counsel filed a motion to obtain the CI‟s identity and discovered that the CI was 

deceased, he would not have entered a guilty plea but would have insisted on proceeding 

to trial. He further contends that trial counsel was ineffective for failing to consider 

whether any other avenues of defense existed. Specifically, trial counsel did not 

investigate the admissibility of the recorded phone call between the CI and the Petitioner 

and whether Agent Coleman could have authenticated the Petitioner‟s voice. The State 

responds that trial counsel was effective, and the Petitioner‟s plea was knowing and 

voluntary. 

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove 

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and 

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound 

by the post-conviction court‟s factual findings unless the evidence preponderates against 

such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing 

the post-conviction court‟s factual findings, this court does not reweigh the evidence or 

substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 

S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, 

“questions concerning the credibility of the witnesses, the weight and value to be given 

their testimony, and the factual issues raised by the evidence are to be resolved by the 

[post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); 

see also Kendrick, 454 S.W.3d at 457. The trial court‟s conclusions of law and 
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application of the law to factual findings are reviewed de novo with no presumption of 

correctness. Kendrick, 454 S.W.3d at 457.

Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of 

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. 

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, 

a petitioner must prove: (1) that counsel‟s performance was deficient; and (2) that the 

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

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same 

standard for ineffective assistance of counsel applies in both federal and Tennessee 

cases). Both factors must be proven in order for a court to grant post-conviction relief. 

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is 

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) 

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of 

counsel‟s performance “requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel‟s challenged conduct, 

and to evaluate the conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. 

at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial 

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, 

tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel‟s performance is effective 

if the advice given or the services rendered are within the range of competence demanded 

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that 

counsel was deficient, the petitioner must demonstrate “that counsel‟s acts or omissions 

were so serious as to fall below an objective standard of reasonableness under prevailing 

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see 

also Baxter, 523 S.W.2d at 936.

Even if counsel‟s performance is deficient, the deficiency must have resulted in 

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong 

of the Strickland analysis, the petitioner “must show that there is a reasonable probability 

that, but for counsel‟s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks 

omitted). 
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A substantially similar two-prong standard applies when the petitioner challenges 

counsel‟s performance in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58 

(1985); Don Allen Rodgers v. State, No. W2011-00632-CCA-R3-PC, 2012 WL 1478764, 

at *4 (Tenn. Crim. App. Apr. 26, 2012). First, the petitioner must show that his counsel‟s 

performance fell below the objective standards of reasonableness and professional norms. 

See Hill, 474 U.S. at 58. Second, “in order to satisfy the „prejudice‟ requirement, the 

[petitioner] must show that there is a reasonable probability that, but for counsel‟s errors, 

he would have not have pleaded guilty and would have insisted on going to trial.” Id. at 

59.

Unknowing and Involuntary Guilty Plea

Counsel‟s effectiveness may also implicate the requirement that a plea must be 

entered knowingly and voluntarily, i.e., that the petitioner made the choice to plead guilty 

after being made aware of the significant consequences of such a plea. State v. Pettus, 

986 S.W.2d 540, 542 (Tenn. 1999). When reviewing a guilty plea, this court looks to 

both the federal standard as announced in the landmark case Boykin v. Alabama, 395 

U.S. 238 (1969), and the state standard as announced in State v. Mackey, 553 S.W.2d 337 

(Tenn. 1977), superseded on other grounds by Tenn. R. Crim. P. 37(b) and Tenn. R. App. 

P. 3(b). Don Allen Rodgers, 2012 WL 1478764, at *5. Under the federal standard, there 

must be an affirmative showing that the plea was “intelligent and voluntary.” Boykin, 

395 U.S. at 242. Likewise, the Tennessee Supreme Court has held that “the record of 

acceptance of a defendant‟s plea of guilty must affirmatively demonstrate that his 

decision was both voluntary and knowledgeable, i.e. that he has been made aware of the 

significant consequences of such a plea . . . .” Mackey, 553 S.W.2d at 340. “[A] plea is 

not „voluntary‟ if it is the product of „[i]gnorance, incomprehension, coercion, terror, 

inducements, [or] subtle or blatant threats . . . .” Blankenship v. State, 858 S.W.2d 897,

904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43). 

In order to determine whether a plea is intelligent and voluntary, the trial court 

must “canvass[] the matter with the accused to make sure he has a full understanding of 

what the plea connotes and of its consequence.” Boykin, 395 U.S. at 244. The trial court 

looks to several factors before accepting a plea, including:

[T]he relative intelligence of the defendant; degree of his familiarity with 

criminal proceedings; whether he was represented by competent counsel 

and had the opportunity to confer with counsel about the options available 

to him; the extent of advice from counsel and the court concerning the 

charges against him; and the reasons for his decision to plead guilty, 

including a desire to avoid a greater penalty that might result from a jury 

trial.
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Blankenship, 858 S.W.2d at 904; Howell v. State, 185 S.W.3d 319, 330-31 (Tenn. 2006). 

Once the trial court has conducted a proper plea colloquy, it discharges its duty to assess 

the voluntary and intelligent nature of the plea and creates an adequate record for any 

subsequent review. Boykin, 395 U.S. at 244. 

Statements made by a petitioner, his attorney, and the prosecutor during the plea 

colloquy, as well as any findings made by the trial court in accepting the plea, “constitute 

a formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 

431 U.S. 63, 73-74 (1977). Statements made in open court carry a strong presumption of 

truth, and to overcome such presumption, a petitioner must present more than 

“conclusory allegations unsupported by specifics.” Id. at 74. 

In this case, the Petitioner has failed to demonstrate that trial counsel was 

ineffective or that trial counsel‟s representation led to an involuntary guilty plea. The 

post-conviction court accredited trial counsel‟s testimony that she and the Petitioner 

discussed in detail the discovery provided by the State. When the Petitioner listened to 

the audio recording of the drug transaction, he identified the CI as his friend, Mr. 

Boswell. Upon learning from the Petitioner that Mr. Boswell was deceased, trial counsel 

immediately approached the prosecutor, who confirmed Mr. Boswell‟s death. Trial 

counsel then explained to the Petitioner that the death of the CI did not affect the State‟s 

ability to prosecute him because the State had another witness who could testify about the 

transaction. After discussing this with the Petitioner, the Petitioner made the decision to 

plead guilty and to have the trial court determine his sentence at a sentencing hearing. As 

noted by the State, the transcript of the guilty plea submission hearing further supports 

the post-conviction court‟s finding that the Petitioner had fully discussed the case with 

trial counsel. While the Petitioner insists that trial counsel should have learned of the 

CI‟s identity and death earlier, trial counsel testified that it was still “very early” in the 

process and that discovery was “ongoing.” Based upon her experience in other drug 

cases, trial counsel did not expect the State to provide the name of the CI until after the 

case was set for trial. In any event, the record demonstrates that the Petitioner was aware 

of the identity of the CI and that the CI was deceased before he decided to enter his plea. 

Moreover, trial counsel gave the Petitioner appropriate advice on whether to plead guilty 

or go to trial. The Petitioner has not shown deficient performance or resulting prejudice 

based upon trial counsel‟s failure to investigate the identity of the CI and discover that 

the CI was deceased. 

Regarding the Petitioner‟s claim that trial counsel was ineffective for failing to 

investigate the admissibility of the recorded phone call between the CI and the Petitioner, 

Agent Coleman testified that Agent Norton was in the car with Mr. Boswell when Mr. 

Boswell called the Petitioner and that Agent Norton recorded the phone call. Although 
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Agent Coleman stated that he would not have been able to identify the Petitioner‟s voice, 

it is not clear from the record whether Agent Norton could have identified the Petitioner 

as the individual speaking to Mr. Boswell. In any event, Agent Coleman testified that, 

after the phone call, he personally met with the Petitioner and gave the Petitioner one 

hundred dollars for crack cocaine. Agent Coleman then watched as the Petitioner called 

his supplier and met the supplier‟s vehicle. The Petitioner then returned and gave Agent 

Coleman the crack cocaine, completing the transaction. The Petitioner has failed to 

establish that the recorded phone call was inadmissible or that counsel was deficient. 

Because Agent Coleman was present throughout the transaction and was available to 

testify at trial, the recorded telephone call would not have been dispositive of the trial‟s 

outcome. The Petitioner failed to establish that he would not have pleaded guilty and 

would have insisted on going to trial even if the recording had been excluded. 

Because the record does not preponderate against the post-conviction court‟s 

determination that counsel did not provide ineffective assistance, the Petitioner has failed 

to establish his plea was unknowing or involuntary because of counsel‟s alleged deficient 

performance. The Petitioner is not entitled to relief on this claim. 

Brady Violation

The Petitioner also contends that the post-conviction court erred in finding that no 

Brady violation occurred. He argues that the State‟s withholding of information 

concerning the death of Mr. Boswell clearly constitutes a Brady violation, regardless of 

whether the prosecutor knew of Mr. Boswell‟s death. The State responds that the 

Petitioner is not entitled to relief based on an alleged Brady violation because the 

Petitioner was aware of Mr. Boswell‟s death and discussed the implications of the CI‟s 

death with trial counsel before he entered his guilty plea. 

In Brady, the United States Supreme Court held 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.” 83 U.S. at 87. In order to establish a Brady violation, four 

prerequisites must be met:

1. The defendant must have requested the information (unless the evidence 

is obviously exculpatory, in which case the State is bound to release the 

information whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.
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State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “The prosecution is not required to 

disclose information that the accused already possesses or is able to obtain . . . or 

information which is not possessed by or under the control of the prosecution or another 

governmental agency.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992) 

(citing State v. Caldwell, 656 S.W.2d 864, 897 (Tenn. Crim. App. 1983); Banks v. State, 

556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). The defendant must prove, by a 

preponderance of the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d 

at 389.

In order to establish a Brady violation, the evidence need not be admissible; it only 

needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. 

Crim. App. 1993). Favorable evidence includes evidence that “„provides some 

significant aid to the defendant‟s case, whether it furnishes corroboration of the 

defendant‟s story, calls into question a material, although not indispensible, element of 

the prosecution‟s version of events, or challenges the credibility of a key prosecution 

witness.‟” Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (quoting Commonwealth 

v. Ellison, 379 N.E.2d 560, 571 (Mass. 1978)). Evidence is material under Brady “only if 

there is a reasonably probability that, had the evidence been disclosed to the defense, the 

result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 

667, 682 (1985) (citing Strickland, 466 U.S. at 694). A “reasonable probability” is “a 

probability sufficient to undermine the confidence in the outcome.” Id. (internal 

quotation marks omitted).

In this case, although the post-conviction court found that the prosecutor did not 

know of the death of Mr. Boswell before contacting the task force agent assigned to the 

case, the Petitioner is correct that the prosecution is tasked with constructive knowledge 

of “any favorable evidence known to the others acting on the government‟s behalf in the 

case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). However, the 

evidence of Mr. Boswell‟s death was not suppressed by the State for purposes of Brady

because the Petitioner already possessed that information. The Petitioner informed trial 

counsel of the identity of the CI and told counsel that Mr. Boswell was deceased. When 

trial counsel approached the prosecutor with this information, the prosecutor contacted 

the case agent and confirmed Mr. Boswell‟s death to trial counsel. Moreover, because 

the Petitioner knew of Mr. Boswell‟s death and discussed it with trial counsel prior to his 

decision to plead guilty, the Petitioner cannot show that the result of the proceeding 

would have been different had the evidence of Mr. Boswell‟s death been disclosed by the 

State through discovery or some other means. See Bagley, 473 U.S. at 682. The 

Petitioner is not entitled to post-conviction relief based upon this claim. 
- 13 -

III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE