IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 20, 2002

JAMES DARRELL HORN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sullivan County

No. C44,651 R. Jerry Beck, Judge

No. E2001-02616-CCA-R3-PC

December 17, 2002

The petitioner, James Darrell Horn, appeals the Sullivan County Criminal Court’s denial of postconviction relief. In his post-conviction petition, the petitioner challenged his jury convictions on

more than 30 aggravated burglary counts and nearly as many theft counts. As a result of his many

convictions, the petitioner is serving an effective 90-year sentence in the Department of Correction.

On direct appeal, his convictions and sentences were affirmed by this court. See State v. James D.

Horn, No. 03C01-9712-CR-00537 (Tenn. Crim. App., Knoxville, Jul. 20, 1999), perm. app. denied

(Tenn. 2000). The petitioner asserted that his previous appellate counsel was ineffective because

she did not raise on direct appeal whether the trial court (1) erred in not suppressing the petitioner’s

pretrial statements and (2) in not suppressing physical evidence seized during a warrantless search

of his residence. He also claimed that his trial and appellate counsel were ineffective because they

did not properly challenge the sufficiency of the evidence on three or four specific counts of the

indictments. After an evidentiary hearing, the trial court entered a very thorough order denying postconviction relief. Upon our review, we affirm.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,

and ROBERT W. WEDEMEYER, J., joined.

Larry S. Weddington, Bristol, Tennessee, for the Appellant, James Darrell Horn.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Teresa Murray Smith and James F. Goodwin,

Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

According to the records of the hearings on the petitioner’s pretrial motions to

suppress, which were admitted as evidence in the post-conviction evidentiary hearing, he moved

prior to his 1997 trial to suppress his custodial pretrial statements and evidence of stolen property
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discovered in his residence during a warrantless search. The motions emanated from the following

activities of law enforcement personnel. 

On May 31, 1995, Carter County Sheriff’s officers, armed with a fugitive warrant for

the arrest of the petitioner, arrived at the petitioner’s residence on Anderson Road in Carter County.

After they received no response to their knocking on the door, a car pulled into the driveway. It was

driven by a woman, Linda McClain, who was accompanied by a child. McClain stated that she and

the petitioner, whom she knew by an alias name, lived in the house. McClain did not know whether

the petitioner was in the house at the time. She signed a form to consent to the officers’ entering and

searching the house, and she provided a key. The officers found no one inside the house but

discovered it to be filled with “merchandise,” including weapons, jewelry, musical instruments, and

electronic equipment and supplies. The officers noticed that some of the items they saw matched

property descriptions from Carter County burglary reports. 

After an extensive chase and manhunt carried out during the night of May 31-June

1, 1995, Carter County officers apprehended the petitioner in the early morning hours of June 1.

They took him to the jail and read his Miranda rights to him from a written form. See Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The petitioner, who was alert and sober, signed a

written waiver of his rights. Later, at about 11:00 a.m. on June 1, a Washington County officer who

was investigating burglaries in that county came to the Carter County jail to interview the petitioner.

He also read to the petitioner the Miranda rights from a written form, and the petitioner signed

another waiver. The petitioner did not ask for an attorney and gave a statement about his

involvement in a series of Washington County burglaries. 

After hearing from the Carter County Sheriff’s office that a man who may have been

responsible for burglaries in Sullivan County was in custody, Sullivan County officers arrived in

Carter County and went first to the residence on Anderson Road, which remained under the control

of the Carter County officers. Inside the house, the Sullivan County officers identified various items

that matched items on burglary reports from Sullivan County. Afterward, the Sullivan County

officers went to the jail to interview the petitioner. At approximately 4:00 p.m., one of these officers

administered an impromptu, but incomplete, Miranda warning to the petitioner, during or after

which the petitioner said that he did not need to have his rights explained again and that he “didn’t

know how many times that day” the rights had been read to him. The petitioner was cooperative and

did not ask to consult with an attorney. With the petitioner’s consent and the Carter County Sheriff’s

approval, the Sullivan County officers took the petitioner to Sullivan County. They drove around,

and the petitioner pointed out 22 residences in Sullivan County that he admitted burglarizing.

Afterward, the officers took the petitioner to the Sullivan County Jail, where they Mirandized him

at approximately 10:30 p.m. and obtained a written statement in which the petitioner discussed in

detail the Sullivan County burglaries and thefts. On June 2, 1995, the petitioner made an initial court

appearance in Carter County, and counsel was appointed to represent him in Carter County. 

In the Sullivan County suppression hearings, the state relied upon the following

evidence to support its claim that Linda McClain effectively consented to the May 31-June 1 search
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of the Anderson Road house. The officers testified that she acknowledged that she and her children

had lived in the house since early April, 1995. Utility records established that the electric service

to the house was initiated by McClain on April 4, and the electric service agreement remained in her

name through the end of May. McClain had a key to the house, which she gave to the Carter County

officers after signing the consent-to-search form. Inside the house, officers discovered women’s and

children’s clothing, as well as children’s toys. On June 1, while Sullivan County officers were

present at the house, McClain came with a pick-up truck to claim her belongings, which included

children’s bicycles in the yard and a cat which Ms. McClain retrieved from under the house. The

petitioner admitted to one of the Sullivan County officers that McClain lived in the house, and in a

statement given to police on June 16, 1995, the petitioner admitted that he and McClain had moved

into the house on April 1.

The petitioner claimed in his suppression hearings that McClain lived elsewhere on

May 31, 1995. The Carter County officer had written on the top of McClain’s consent-to-search

form an apartment address in Kingsport. He said that McClain provided this address, which she said

was her mother’s apartment, as a place where she could be reached. The Sullivan County officer

testified at the suppression hearing that, on June 1, McClain gave him the Kingsport address as the

address she was “moving to.” Kingsport officers took a statement from McClain on June 2, 1995,

in which she listed the Kingsport apartment as her address.

After conducting the first suppression hearing, the trial court suppressed the

statements given to the Sullivan County officers; however, after allowing the state to re-open the

suppression hearingand after hearing additional evidence about Miranda warnings which were given

to the petitioner prior to the Sullivan County officers’ arrival at the Carter County Jail on June 1, the

trial court vacated its ruling and denied the motion to suppress the pretrial statements. The court

held that the petitioner’s Miranda interests were satisfied by the prior warnings. 

The trial court also denied the motion to suppress the evidence of Sullivan County

stolen property being discovered at the Anderson Road house. The court found that McClain gave

a valid, effective consent to search the house on May 31 and that she did not move to the Kingsport

apartment until June 1.

The petitioner’s trial counsel, who was a member of the Public Defender’s staff,

testified at the post-conviction evidentiary hearing that he preserved both suppression issues in the

petitioner’s motion for new trial. He thought that the two suppression issues would be important

appellate issues. The PublicDefender’s office contracted through the Public Defender’s Conference

for an attorney to handle the direct appeal. Trial counsel did not confer with appellate counsel but

did note the suppression issues on his referral form. Trial counsel learned from reading this court’s

opinion in the petitioner’s direct appeal that appellate counsel did not raise the suppression issues.

The petitioner’s counsel on direct appeal testified that she received and reviewed the

referral form that trial counsel had furnished and that she was fully aware of the suppression issues.

She reviewed the appellate record, which included the technical record of filings in the trial court
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clerk’s office and the extensive transcript of evidence from the trial. Upon researching the applicable

law, appellate counsel determined that the “case law was entirely against Mr. Horn’s position [on

the suppression of pretrial statements].” She testified, “I think the judge did rule correctly.”

Likewise, on the consent search issue, she determined after doing legal research that she “did not

have any good faith basis for attacking [the ruling denying suppression] at that point because the case

law was all against us and the reason [] was very sound and cogent in those cases that [she] looked

at.” She testified that, based upon her independent judgment, she did not include the suppression

issues in the appeal, raising instead the issues of sufficiency of the evidence and the impropriety of

the sentences. She admitted that she was compensated for her contract appellate services at a

monthly rate of $1,500 and was not compensated by the hour. She also acknowledged that she did

not discuss the appeal with the petitioner’s trial counsel. 

During the hearing, post-conviction counsel argued that, with respect to aggravated

burglary counts fourteen and fifteen in the charging instrument, the state proved only burglary at

trial; the buildings burglarized were not inhabited at the time. Compare Tenn. Code Ann. § 39-14-

402(a)(1) (1997) (proscribing burglary as the unlawful entry into “a building other than a habitation”

with intent to commit a felony, theft or assault) with id. § 39-14-403(a) (1997) (proscribing

aggravated burglary as burglary of a habitation as defined in §§ 39-14-401 and 39-14-402). Thus,

post-conviction counsel argued that trial and appellate counsel were ineffective in not raising this

issue in the motion for new trial and on direct appeal. Post-conviction counsel also argued that, with

respect to a burglary and theft involving a victim named Willis Faulkner, the serial numbers of the

victim’s stolen pistol did not match the pistol recovered by officers and attributed to the Faulkner

theft. Counsel again posited that trial counsel was ineffective in failing to raise this issue.

Following the evidentiary hearing, the post-conviction court entered an extensive

order that contained findings of fact and conclusions of law. The court held that its pretrial rulings

on the suppression issues were correct and that appellate counsel was not ineffective in deciding not

to raise the issues on appeal. The court ruled that the proof on counts fourteen and fifteen (case

number S38,125) showed that the burglarized buildings met the applicable statutory definition of

habitation, and that, accordingly, the petitioner was properly convicted of aggravated burglary on

those counts. As to the Faulkner pistol issue, the court found that the petitioner did not establish a

discrepancy in the serial numbers. Accordingly, the court denied post-conviction relief.

Petitioners seeking post-conviction relief must prove their allegations by "clear and

convincing evidence." Tenn. Code Ann. § 40-30-210(f) (1997). "Evidence is clear and convincing

when there is no serious or substantial doubt about the correctness of the conclusions drawn from

the evidence." Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998) (citing Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Furthermore, an appellate court is bound by

a trial court's findings of fact unless the facts of record preponderate against those findings. Id. at

245.

When seeking post-conviction relief on the basis of ineffective assistance of counsel,

a petitioner must establish that the services rendered or the advice given fell below "the range of
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competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). He or she must also show that there is a reasonable probability that but for counsel's deficient

performance, the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 694, 104 S. Ct. 2052, 2067 (1984); Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

Both of the above prongs must be established for a petitioner to be entitled to relief. Goad, 938

S.W.2d at 370.

Generally, a petitioner may not criticize a sound, though unsuccessful, tactical

decision made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.

Crim. App. 1994). However, this deference to the tactical decisions of counsel only applies to those

choices made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

These “principles apply as well when determining the effectiveness of appellate

counsel.” Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). In reviewing the services of

appellate counsel, our supreme court has “reiterate[d] that there is no constitutional requirement that

an attorney argue every issue on appeal. Generally, the determination of which issues to present on

appeal is a matter which addresses itself to the professional judgment and sound discretion of

appellate counsel.” Id. at 596-97 (citations omitted). When the selection of issues to be raised on

appeal can be characterized as tactical or strategic choices, appellate counsel should not be “second

guessed,” as long as such choices are based upon competent preparation. Id. at 597.

With these governing principles in mind, we now examine the issue of ineffective

assistance of counsel with respect to the following claims.

I. Miranda Issue.

The post-conviction court determined that, despite the Sullivan County officers’

failure to administer a complete Miranda warning on the afternoon of June 1, 1995, the petitioner’s

subsequent statements relative to the Sullivan County cases were admissible because the Miranda

warnings administered on the morning of June 1 by Carter County officers and again by Washington

County officers sufficed to satisfy the Miranda requirements as to the admissibility of statements

later received by the Sullivan County officers. In essence, the post-conviction court held that the

petitioner’s appellate counsel did not deficiently perform when she exercised her professional

judgment not to raise the issue of Miranda-poor statements on appeal. 

The record supports the lower court’s determination. This court has previously held

that, in situations similar to the present case, a prior Miranda warning and commensurate waiver

may pave the way to admit later statements that were not immediately preceded by a repeated

Miranda warning. See State v. J.B. McCord, No. 03C01-9403-CR-00110, slip op. at 12-13 (Tenn.

Crim. App., Knoxville, Dec. 3, 1997) (defendant’s second statement admissible, despite officers’

failure to repeat earlier Miranda warnings, when record showed no police misconduct and that

defendant effectively waived his Miranda rights in giving the second statement when he “was aware
1

In the evidentiary hearing, the petitioner claimed that the officers promised that, if he cooperated, his multiple

sentences could be served concurrently. The officers denied this allegation. The post-conviction court found no police

trickery or misconduct.

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of the nature of his constitutional rights and had an adequate understanding of their importance”);

State v. Pride, 667 S.W.2d 102, 104 (Tenn. Crim. App. 1983) (“Our law recognizes that an accused

need not be given repeated Miranda warnings once he has been advised of his rights and has waived

them.”); State v. Hicks, 629 S.W.2d 908, 910 (Tenn. Crim. App. 1981) (defendant’s statement given

three hours after Miranda warnings held to be admissible); Reaves v. State, 523 S.W.2d 218, 220

(Tenn. Crim. App. 1975) (“When a defendant has been fully advised of his Miranda rights, it is not

necessary to repeat them on the following day before interrogation.”) (emphasis added). 

In the present case, there was no evidence of police misconduct, and in the

suppression hearings, the trial court found no misconduct.1 Although the Sullivan County officers

did not completely advise the petitioner of his Miranda rights on the afternoon of June 1, their

imperfect rendition served to remind the petitioner of his rights; the reminder evoked a declaration

by the petitioner that he had been fully, if not excessively, advised of his rights. Had this issue been

raised on direct appeal, this court would have been constrained to hold that the petitioner’s

statements given to the Sullivan County officers were admissible as a result of the petitioner

receiving fully effective Miranda warnings and formally waiving his Miranda rights – not once, but

twice – a few hours earlier. 

Accordingly, it is clear to us that the petitioner’s appellate counsel acted well within

the ambit of her professional judgment – and did not deficiently perform – when she omitted the

Miranda issue from the direct appeal. 

 II. Search Issue.

Now,we examine the claim that appellate counsel ineffectively assisted the petitioner

when she omitted the issue of the search of the Anderson Road house from the appeal. The postconviction court found that Linda McClain was a resident of the property where the search was

conducted and held that under the facts surrounding Linda McClain’s consent to the search of the

house, the search was reasonable. 

We agree. A person with common authority over a residence may validly consent to

the search of that residence, effectively supplying reasonableness to the officers’ warrantless entry

and search. See McGee v. State, 451 S.W.2d 709, 712 (Tenn. Crim. App. 1969). The United States

Supreme Court has said,

The authority which justifies the third-party consent does not rest

upon the law of property . . . but rests rather on mutual use of the

property by persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of the co-
2

The proof of McClain’s common authority over the residence in this Washington County case was somewhat

different from that relied upon by the state in the present case. Although the owner of the rented house on Anderson

Road testified about the joint occupancy of the petitioner and McClain, McClain herself testified at the suppression

hearing that she had no key to the house and could only enter through an unlocked window. Id., slip op. at 5-6. She also

testified that she received mail at the Kingsport apartment, which she had rented a few weeks prior to staying with the

petitioner. Id. The Carter County officers who executed the search and who testified at the suppression hearing in the

present case apparently testified in a substantially similar manner in the Washington County suppression hearing. 

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inhabitants has the right to permit the inspection in his own right and

that the others have assumed the risk that one of their number might

permit the common area to be searched.

United States v. Matlock, 415 U.S. 164, 172 n.7, 94 S. Ct. 988, 993 n.7 (1974). The state may fulfill

its burden of proving the reasonableness of a warrantless search by showing either that a person with

common authority consented to the search or that the circumstances warranted a person of

“reasonable caution” to believe that the consenting party in fact had common authority over the

premises. State v. William Donald Ellis, No. M-1999-783-CCA-R3-CD, slip op. at 8 (Tenn. Crim.

App., Nashville, Oct. 13, 2000) (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793,

2801 (1990)), perm. app. denied (Tenn. 2001). 

In fact, the very search at issue in the present case has been the subject of a previous

adjudication by this court. In State v. James Darrell Horn, No. 03C01-9810-CR-00363 (Tenn.

Crim. App., Knoxville, Jan. 26, 2000), perm. app. denied (Tenn. 2001), this court reviewed

McClain’s consent and the reasonableness of the resulting search as part of the petitioner’s direct

appeal from Washington County convictions of aggravated burglaries.2

 Id., slip op. at 2. In that

case we concluded that the Washington County trial court did not err in denying the motion to

suppress the evidence gained through the house search. Id., slip op. at 9. “The evidence,” this court

said, “indicates that McClain did have common authority over the premises . . . for most purposes

such that other co-inhabitants . . . assumed the risk that she might allow the premises to be searched.”

Id. If not conclusive in the present case, this ruling in the petitioner’s Washington County case is

most persuasive.

Once again the result is that the petitioner’s appellate counsel acted within the ambit

of her professional judgment when she declined to raise the search issue in the direct appeal. Had

she done so, the appellate court would have been constrained to affirm the trial court’s decision to

deny suppression. Appellate counsel, therefore, did not render ineffective assistance in this instance.

Before leaving the topic of the house search, we note that, in his brief, the petitioner

argues that trial counsel was remiss in two instances. First, he claims that trial counsel did not

develop evidence at the suppression hearings that Linda McClain, who was apparently in state

custody and did not testify at the suppression hearings, had no authority to consent to the search. The

petitioner is also aggrieved that trial counsel did not advance in the suppression hearings the

argument that the officers exceeded the scope of their search, that being to locate the petitioner for
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the purpose of serving a fugitive warrant. Assuming that these issues were adequately raised in the

post-conviction court, we discern no basis for post-conviction relief.

In the post-conviction hearing, the petitioner failed to demonstrate that any further

development of McClain’s authority to consent to the search would have yielded a different result

on the suppression issue. Indeed, this court’s opinion in the petitioner’s Washington County direct

appeal shows that when McClain testified in the suppression hearing in that case, she revealed her

common authority over the premises, even though she denied ever having a key. Thus, the petitioner

did not – and apparently was not able to – establish that he was prejudiced by trial counsel’s failure

to further develop McClain’s co-inhabitant status in his Sullivan County case.

In like manner, the evidentiary hearing revealed no prejudice to the petitioner in that

his trial counsel did not raise the issue in the suppression hearing that, in discovering stolen property,

the officers exceeded the scope of their search for the petitioner himself. First, we find no suggestion

that McClain consented to only a search of limited scope. Second, the proof in the suppression

hearings showed that the stolen merchandise was stacked and piled everywhere and literally filled

the rooms in the house. Under these circumstances, we can imagine no prejudice to the petitioner

resulting from counsel’s failure to mount a scope-of-the-search attack.

III. Pistol Identification.

Next, we review the claim that trial counsel deficiently performed when he failed to

check the serial number on a .45 caliber pistol that was allegedly stolen from the home of Willis

Faulkner. The petitioner alleged in his post-conviction petition that the serial number of Faulkner’s

pistol did not match the numbers on the .45 discovered in the petitioner’s possession. The postconviction court held that the petitioner failed to establish this claim in the evidentiary hearing. We

agree. The petitioner is entitled to no relief on this issue.

IV. Habitation Issue.

The final issue is whether trial and appellate counsel were ineffective because they

respectively failed to raise the issue whether the defendant was guilty of aggravated burglary in

counts fourteen and fifteen (case number S38,125) or guilty of mere burglary. The petitioner alleged

in his post-conviction petition that the buildings he burglarized in these counts were not used as

habitations at the time of the burglary, defeating the enhancement of the crime to aggravated

burglary. See Tenn. Code Ann. §§ 39-14-402, -403 (1997). The post-conviction court held that the

proscriptive statutes do not require that the burglarized structure be used as a habitation to support

an aggravated burglary conviction. The court further held that the proof at trial established

aggravated burglary in these counts. 

Burglary is aggravated when the offender enters a “habitation as defined in §§ 39-14-

401 and 39-14-402.” See id. § 39-14-403. In pertinent part, Code section 39-14-401(1) provides:
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“Habitation”: 

(A) Means any structure, including buildings, module units,

mobile homes, trailers, and tents, which is designed or adapted for the

overnight accommodation of persons; . . . .

Id. § 39-14-401(1). This court has previously said, “There is no requirement in this definition that

the structure be currently occupied to be a habitation.” Theodore Howard v. State, No. 02C01-9806-

CR-00191, slip op. at 6 (Tenn. Crim. App., Jackson, Dec. 29, 1999). Indeed, “based on common

understanding and judicial interpretation, a vacant house is clearly included within our statutory

definition of ‘habitation . . . .’” Id., slip op. at 8; see also State v. James Ford III, No. 02C01-9304-

CR-00078 (Tenn. Crim. App., Jackson, Aug. 3, 1994).

The petitioner claims that the “mobile home on a commercial lot for display” that

he burglarized is not a habitation. The post-conviction court held that, although the proof in counts

fourteen and fifteen was not “detailed,” it showed that the structure burglarized by the petitioner was

designed for the overnight accommodation of persons. We agree and discern no ineffective

assistance of trial or appellate counsel in not specifically raising this issue. 

Having addressed the issues presented in this appeal, we affirm the judgment of the

post-conviction court. 

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE