IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2008

COREY MOTEN v. STATE OF TENNESSEE 

Direct Appeal from the Criminal Court for Shelby County

No. 01-07148 John T. Fowlkes, Jr. , Judge

No. W2008-00451-CCA-R3-PC - Filed April 2, 2009

The petitioner, Corey Moten, appeals the post-conviction court’s denial of his petition for

post-conviction relief. On appeal, he argues that he received the ineffective assistance of counsel.

Specifically, he argues that his trial counsel was ineffective in failing to challenge the suppression

of his statement on the grounds that it was involuntarily given. After a thorough review of the record

and the parties’ briefs, the judgment of the post-conviction court denying post-conviction relief is

affirmed.

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

J.C.MCLIN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE

R. MCMULLEN, JJ., joined.

Kim D. Meloni, Memphis, Tennessee, for the appellant, Corey Moten.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Rachael Newton, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

BACKGROUND

Following a jury trial, the petitioner was convicted of second degree murder. Thereafter,

he was sentenced as a violent offender to twenty-two years in confinement. On appeal, this court

affirmed the petitioner’s conviction and sentence. State v. Corey Moten, No.

W2004-02896-CCA-R3-CD, 2006 WL 211827 (Tenn. Crim. App., at Jackson, Jan. 26, 2006), perm.

app. denied (Tenn. May 30, 2006). The following is a recitation of the convicting evidence set forth

in this court’s opinion on direct appeal:
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At the defendant’s August 2-4, 2004, trial, Maria Gauntlett, the victim’s sister,

testified that the victim was thirty-one years old at the time of her death and had been

married to the defendant between five and seven years.

Officer Tim Monistere testified that he responded to a “wounded party” call

sometime after midnight on February 2, 2001, at the residence of the defendant and

the victim in Shelby County. Emergency medical personnel advised Monistere that

the victim, Orchid Moten, was dead. The defendant, who appeared “pretty calm and

quiet acting,” told Monistere that he had arrived home from work around 12:44 a.m.,

found the victim with a wound to her neck in the laundry room, and called the police.

Officer Monistere described the victim’s appearance: “[S]he was laying [sic] on her

back on the floor. There was blood around her head. And there was a towel like

over her head and neck area. Her pants were completely off except for one portion

of the pants and her shirt was like torn off of her. It was kind of partially hanging on

her.”

Sergeant Mark Rewalt testified that he made photographs and collected evidence at

the crime scene. He identified a diagram he had made of the scene, as well as

photographs of various items, including a “turned-over” curio cabinet, a bloody

nylon rope, a short telephone cord with connectors on both ends, a set of keys, the

kitchen window mini blinds found lying in the sink, and a green Army jacket.

Sergeant Rewalt found two cords coming out of the telephone: one that was cut or

torn that ran down to the dining room and another one that ran “along to the living

room and it’s connected to another extension and going into a wall.” He said that

“utensils used to smoke crack along with a cigarette lighter” were found in the dryer

and that bloodstains were found only in the laundry room.

Lieutenant Vennes Owens testified that when [s]he arrived at the crime scene

between 2:00 and 3:00 a.m., the defendant told h[er] he “had come home from work

and found his wife in the back of the house dead.” Lieutenant Owens observed “a lot

of disarray” inside the house. The defendant subsequently was taken to the police

station where he signed a waiver of rights and a consent form to search his residence.

The case was assigned to Sergeant Ashton, and Lieutenant Owens and Sergeant

Shemwell returned to the crime scene where they “identified all the knives in the

house and left them there” and collected a sponge.

Captain James L. Fitzpatrick testified that Sergeant William Ashton was the case

coordinator but was unavailable to testify because he was currently on active duty in

the United States Coast Guard Reserves. Captain Fitzpatrick said he participated in

the interview of the defendant which began around 11:45 a.m. on February 2, 2001.

Fitzpatrick knew that the defendant already had been advised of his rights and said

that the defendant signed a waiver of rights. The defendant initially told the officers

that, when he arrived home at about 12:30 a.m., the door was unlocked. He said he

found his wife in the laundry room, locked his dog in a room, and called 9-1-1. The

defendant also said that one of the telephones had been “jerked” from the wall.
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During the interview, Sergeant Ashton received a call from Sergeant Shemwell who

advised that “a little rectangular pot scrubber that had been used” to clean up blood

had been found at the crime scene. Captain Fitzpatrick then confronted the defendant

about the inconsistences in what he had told the officers and the evidence that had

been collected. When the officers questioned the defendant about the sponge, he

admitted that he had used the sponge “to clean up the blood and then had rinsed it out

and had placed it in a dish which is exactly where it had been found.”

Asked if the defendant later “change[d] his story,” Captain Fitzpatrick replied:

And we confronted him with them one after another breaking down

the initial story that he had told. He had been calm up until a certain

point and then it’s almost as you see on Perry Mason. Once this

information began to build up and build up and build up and then he

broke down and admitted that he had been the person who had

inflicted the injuries on Mrs. Moten. 

The defendant’s statement was reduced to writing, and the defendant signed it. In his

statement, the defendant said he had “cut [the victim] with a kitchen knife,” which

he described as a “steak knife size” with “a brown wooden handle.” Asked what had

caused the altercation between him and the victim, the defendant replied:

Well, when I got home, my neighbor next door, Buddy, told me that

some people had been going in and out of the house earlier that day.

When I went in, I let the dog in the house and put the dog in the room

that she sleeps in. I asked her why had people been going in and out

of this house and you know I don’t like people in this house when I’m

not here. She told me that there hadn’t been nobody in this house and

I told her that she was lying because Buddy had told me that he had

seen people going in and out of the house. She told me that he was

lying and I told her, “[Y]ea, right. I don’t believe you” and I went to

the bathroom to use it and she confronted me at the bathroom door

when I tried to walk past and she grabbed me and I pushed her off of

me and she fell into the shelf that was sitting by the bathroom door.

After I pushed her I went to the kitchen. I went to get something to

drink. She kept pulling on my arm and she hit me in the back of my

head so I turned around and hit her in the shoulder. She swung at me

and she missed and then I grabbed her and grabbed the cord on the

kitchen counter and wrapped it around her neck. Then I pulled open

the kitchen drawer and grabbed the kitchen knife. She started pulling

away from me after I wrapped the cord around her neck. She reached

for the back door and opened it and I snatched her back and I cut her.

Then she fell down and started bleeding and I walked away and came
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back and tried to clean up the blood and I cleaned the knife and put

it back and I put the sponge back into the dish and I called 9-1-1. 

The defendant admitted that he had pulled the victim’s pants off “[t]o make it look

like somebody else did it.” He acknowledged that he had “knocked” the blinds off

the wall in the kitchen when he put the sponge back. The defendant said that he had

not wanted to kill the victim because he loved her and that he “just snapped.”

Captain Fitzpatrick said the defendant never indicated that he had killed the victim

in self-defense or that he had been injured during the altercation. Fitzpatrick

acknowledged that the defendant had been awake for at least eighteen hours at the

time he gave his statement.

Lieutenant Robert Shemwell testified that he and Sergeant Vennes Owens were

instructed to search for bloody clothing at the crime scene. Although they did not

find any bloody clothing, they found a wet sponge with the “same width of the

pattern of blood smear pattern that was beside the [victim’s] body on the floor.”

Shemwell placed the sponge beside the blood smear on the floor and took a

photograph for comparison purposes. He then took the sponge to the homicide office

where he showed it to Sergeant Ashton. After he learned that the defendant had

confessed to killing the victim, Lieutenant Shemwell returned to the crime scene to

“locate a knife that was possibly used in the murder.” The officers had received

information that the murder weapon was “a serrated edge knife, like a steak knife

with a wooden handle.” Photographs were made of several knives found in a drawer

and one was collected as evidence. Sergeant Ashton later showed the collected knife

to the defendant who verified that it was the knife he had used to kill the victim.

Dr. Jennifer Love, a forensic anthropologist at the Regional Forensic Center of

Memphis who was accepted by the court as an expert in the field of forensic

anthropology, testified that she had reviewed the victim’s autopsy report and had

examined a forensic cast made of the cartilage from the victim’s neck region. She

made sample cut marks with the suspect knife, compared them to the castings made

of the cartilage of the victim’s neck, and opined that the knife was “consistent with

the knife that was used in terms of the serrations.” However, she could not determine

if the knife was the actual murder weapon.

Dr. O’Brian Cleary Smith testified that he performed the autopsy on the victim’s

body on February 2, 2001, which revealed the presence of alcohol and cocaine in her

system. He said the victim died “as a result of both ligature strangulation and cutting

of the neck. Specifically with the ligature strangulation there’s a mark left on the skin

at the front surface of the neck that is consistent with a narrow cord that measures

about one tenth of an inch.” He described the cuts to the victim’s neck:

In the front portion of the neck there was a series of wounds about

five and three quarter inches in length across the front. And it was not

a single wound but it was a confluence of at least three wounds in
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which there were-you could tell where a wound would start and then

another wound would begin within that wound and it would leave a

jagged edge or margin to the wound indicating that about three or a

minium of three passes of the knife were required to produce a wound

of this type. There were two small superficial abrasions where the

cutting surface of the knife barely touched the skin. It was just

enough to cut through the very top layers. Those were in line with

two of the other two cuts. So I think with a fair degree of medical

competence and certainty at a minium of three passes of the knife

would have been required to produce the injuries to the neck. Those

injuries went down deep enough to cut through the two heavy

muscles on either side of the neck . . . . In so doing the knife went

through both of the jugular veins, the external jugular veins. . . .

[T]he knife proceeded through the windpipe and the voice box cutting

it almost to the rear wall of the windpipe leaving tool marks present

in the cartilage of those tissues. 

Asked which injury caused the victim’s death, Dr. Smith opined that either the knife

wounds or the strangulation could have been lethal and said that each injury occurred

while the victim was still alive. He agreed that a cut to the victim could have begun

while she was standing but said she “did not have the extensive damage to her neck

done while she was standing up.”

Id. at *1-4.

On August 11, 2006, the petitioner timely filed a petition for post-conviction relief.

Thereafter, post-conviction counsel was appointed, an amended petition was filed, and an evidentiary

hearing was held. At the hearing, the petitioner testified that his trial counsel represented him at trial

and on appeal. He recalled that he hired counsel around February 2001 and his case went to trial in

August 2004. According to the petitioner, he communicated with counsel about eight to ten times

during counsel’s representation, including three to five meetings at the jail. The petitioner recalled

that he and counsel had lengthy conversations about his case. However, he claimed that counsel did

not demonstrate enthusiasm for the case and would sometimes “nod off” during meetings.

The petitioner testified that he and counsel discussed defense strategies. The petitioner said

he kept urging counsel to find a way to prove his innocence. The petitioner also told counsel that

he wanted to testify at trial. Counsel told the petitioner that this strategy would not work because

of the petitioner’s statement to police. Counsel advised the petitioner that they should pursue a

strategy that the petitioner acted in the “heat of passion” in order to persuade the jury to find the

petitioner guilty of voluntary manslaughter. The petitioner complained that when he voiced his

opinion, counsel would get upset, use vulgar language, and act unprofessionally.

The petitioner testified that counsel filed a generic motion to suppress the petitioner’s

statement to police, alleging that the petitioner was not properly Mirandized. The petitioner recalled

that the trial court denied the motion to suppress on this basis. The petitioner acknowledged that the
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police officers informed him of his Miranda rights and that he signed at least two waivers of his

Miranda rights before giving his statement to police. However, the petitioner asserted that counsel

should have made an effort to pursue the suppression of his statement to police due to the

circumstances under which it was given. The petitioner explained that he originally professed his

innocence of the murder but later confessed because he was afraid. The petitioner said that while

in custody, he was interviewed by a number of different police officers and some of them ranted and

raved at him. The petitioner said that one of the officers told him that if he confessed he would get

twenty-five years confinement, but if he did not confess he would receive a life sentence. The

petitioner claimed he confessed because he was kept in a small cell with no windows, had little sleep,

and had nothing to eat except a Coke and some crackers.

The petitioner admitted that he reviewed the original motion to suppress with counsel. The

petitioner said he did not ask counsel to file another motion to suppress because counsel told him

that it would not work. The petitioner said that he filed a pro se motion to suppress but did not

receive a response from the state or a hearing by the court. The petitioner said that there was no

physical evidence or witness testimony which tied him to the murder.

The petitioner testified that he discussed with counsel the possibility of presenting an alibi

defense. He asserted that he gave counsel a list of ten to fifteen potential witnesses but he was

unaware if counsel ever contacted any of them. The petitioner noted that counsel filed a notice of

alibi. The petitioner complained that counsel failed to adequately investigate his case and

communicate with him. However, counsel said that he did not attempt to obtain new counsel

because he did not know how and could not afford another attorney.

Trial counsel testified that he had practiced law for over forty years and had handled a

number of murder cases. He said that he began representing the petitioner about two and one-half

years before the petitioner’s trial. Counsel estimated that he met with the petitioner five to seven

times at the jail and had numerous conversations with the petitioner about the case. He discussed

possible defense strategies with the petitioner. He recounted that the petitioner wanted to pursue a

strategy that he did not have enough time to commit the murder. Counsel recalled, however, that

he was unable to find any witnesses who could corroborate the petitioner’s defense strategy. In

addition, the petitioner gave a statement to police wherein he admitted that he murdered his wife and

told police where to find the knife he used to cut his wife’s throat. Counsel also noted that there was

a good amount of forensic evidence which supported the petitioner’s statement.

Counsel acknowledged that he argued with the petitioner over the motion to suppress. He

recalled that the petitioner would occasionally profess that he did not make a statement to police and

counsel would have to remind the petitioner that he had signed the statement. Counsel said that he

discussed the defense strategy that the petitioner killed his wife in a state of passion produced by

adequate provocation. He said that the petitioner eventually agreed with him that arguing adequate

provocation was the only viable option given the evidence.

Counsel acknowledged that he could have argued the petitioner was sleep-deprived when he

confessed to police. Counsel noted, however, that it was better to have the statement introduced at

trial than have the petitioner testify. He explained that the statement indicated that the petitioner’s
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wife had been entertaining men at their house while the petitioner was at work. As such, the strategy

was to establish adequate provocation in effort to persuade the jury to find the petitioner guilty of

voluntary manslaughter rather than second degree murder. Counsel stated that without the

introduction of the statement at trial, he could not have argued voluntary manslaughter.

Counsel testified that he advised the petitioner not to testify because he would be subject to

cross-examination. Counsel recalled that the petitioner initially insisted on testifying, but he

changed his mind prior to trial. Counsel said that even if the statement had been suppressed, it

would likely have come in during cross-examination to impeach the petitioner’s testimony.

The post-conviction court denied the petition for post-conviction relief by written order

entered March 27, 2008. The court found inter alia, that the petitioner failed to establish the factual

allegations contained in his petition by clear and convincing evidence. The petitioner filed a timely

notice of appeal.

ANALYSIS

In order for a petitioner to succeed on a post-conviction claim, the petitioner must prove the

allegations of fact set forth in his petition by clear and convincing evidence. Tenn. Code Ann. §

40-30-110(f). On appeal, this court is required to affirm the post-conviction court’s findings unless

the petitioner proves that the evidence preponderates against those findings. State v. Burns, 6

S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings, such as

findings concerning the credibility of witnesses and the weight and value given their testimony, is

de novo with a presumption that the findings are correct. See id. Our review of the post-conviction

court’s legal conclusions and application of law to facts is de novo without a presumption of

correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001).

In order to establish the ineffective assistance of counsel, the petitioner bears the burden of

proving that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced

the defense rendering the outcome unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 687 (1984); see also Arnold v. State, 143 S.W.3d 784, 787 (Tenn. 2004). Deficient

performance is shown if counsel’s conduct fell below an objective standard of reasonableness under

prevailing professional standards. Strickland, 466 U.S. at 688; see also Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975) (establishing that representation should be within the range of competence

demanded of attorneys in criminal cases). A fair assessment 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 Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). Deference

is made to trial strategy or tactical choices if they are informed ones based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The fact that a particular strategy or

tactical decision failed does not by itself establish ineffective assistance of counsel. Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves that counsel’s representation fell

below a reasonable standard, the petitioner must also prove prejudice. Prejudice is shown if, but for

counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding

would have been different. Strickland, 466 U.S. at 694. Both deficient performance and prejudice
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must be established to prove ineffective assistance of counsel. Id. at 697. If either element of

ineffective assistance of counsel has not been established, a court need not address the other element.

Id.

The petitioner alleges that his trial counsel was ineffective in failing to challenge the

suppression of his statement on the grounds that it was involuntarily given. Specifically, the

petitioner asserts that the “boilerplate motion filed made no mention of the fact that at the time the

[p]etitioner gave [i]nvestigators the inculpatory statement, he had been awake for over twenty-four

hours and had been threatened or coerced by investigators.”

Upon review of the record, we conclude that the petitioner failed to demonstrate he was

denied the effective assistance of counsel. The petitioner’s claim of deficiency is premised solely

on his allegation that counsel failed to file a motion to suppress his statement to police on the

grounds that it was involuntary. However, contrary to the petitioner’s allegation, trial counsel

testified that the best defense strategy in the petitioner’s case was to argue the petitioner killed his

wife in a state of passion produced by adequate provocation. Counsel stated that without the

introduction of the statement at trial, he could not have argued voluntary manslaughter. Counsel

noted that this defense strategy was discussed with the petitioner. As such, counsel made a

reasonable strategic decision based upon adequate preparation and investigation. Moreover, the

petitioner failed to prove the factual allegation that his statement was involuntarily given. Contrary

to his allegation, the petitioner admitted at the evidentiary hearing that he was read his rights and

signed at least two different waivers prior to giving his statement. The petitioner did not present any

evidence at the hearing to corroborate his allegation that he was deprived of sleep, hungry, and

coerced by police. Additionally, the petitioner failed to establish that these alleged circumstances

affected the voluntariness of hisstatement. Accordingly, the petitioner is not entitled to relief on this

issue.

CONCLUSION

The petitioner has failed to meet his burden of proof regarding his claims of ineffective

assistance of counsel and the post-conviction court correctly denied the petition. Therefore, the

judgment of the post-conviction court is affirmed.

___________________________________ 

J.C. McLIN, JUDGE