IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 14, 2009

ALTON TAPPAN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 05-01325 John T. Fowlkes, Jr., Judge

No. W2008-02063-CCA-R3-PC - Filed September 3, 2010

After a jury trial, Petitioner Alton Tappan was convicted of aggravated burglary and theft of

property valued at $1,000 or more but less than $10,000. He was given an effective sentence

of 14 years incarceration. His conviction was affirmed on appeal. He then filed a petition

for post-conviction relief, claiming he received ineffective assistance of trial and appellate

counsel. After an evidentiary hearing, the post-conviction court denied relief. We conclude

that appellate counsel’s failure to raise the issue of the trial court’s failure to charge

circumstantial evidence was deficient performance and that the failure was prejudicial. We

therefore remand the case to the trial court for a new trial on the theft conviction. The

judgment of the post-conviction court is affirmed in all other respects.

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

in Part, Reversed in Part; Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

R. Andrew Hutchinson, Memphis, Tennessee, for the Petitioner, Alton Tappan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Chris West, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

Our decision on direct appeal summarized the circumstances leading to Petitioner’s

conviction as follows:
Viewed in the light most favorable to the State, the evidence at trial established

that on the morning of October 3, 2004, Elizabeth Young parked her 2000

Ford Taurus on the street across from her church, located at Park and

Marechalneil in Orange Mound, and attended Communion services. When she

left the church at approximately 1:45 p.m. to return home, she discovered that

her vehicle was missing. She contacted local law enforcement officers and

reported the theft. A few days later, Ms. Young was watching television and

recognized her vehicle on a local evening news broadcast. She later identified

and retrieved her vehicle from the police impoundment lot.

At trial Ms. Young identified a photograph of her car, although she said that

the wheels were different. The car shown in the photograph had a distinctive

license plate, “Z by B,” which Ms. Young explained meant “Zeta by Beta,” her

sorority. Ms. Young testified that her stolen vehicle was “in pretty good

shape” and had been driven approximately 21,000 miles prior to the theft. She

purchased the automobile in 2000 for $23,000. Ms. Young estimated that the

value of the vehicle as of the date it was stolen was “probably between nine

and [$]10,000.”

Larry Gafford, who lived at 3524 Marianne in a duplex family residence,

testified that on October 5, he awoke at approximately 9:50 a.m. because

someone was “aggressive[ly] knocking” on his door. He looked out a window,

and because he did not recognize the vehicle in the driveway, he did not

answer the door. He testified that the vehicle was a dark blue Ford Taurus,

and he identified a photograph of the vehicle taken outside his residence.

Mr. Gafford testified that he laid down on his couch, and at that point he heard

“another noise knocking on the next-door neighbor’s door.” He looked

through his front-door window and saw two men “prying open the iron door

and kick[ing] in the wooden door” to the neighbor’s residence. Mr. Gafford

described one of the men as shorter than six feet tall, weighing 135 to 140

pounds, black, and wearing a white shirt and tennis shoes. The other man was

approximately six feet and three inches tall, weighing over 200 pounds, black,

and wearing dark colored clothing, “[b]luish gray.”

Mr. Gafford testified that he retrieved his pistol and called the police

department. Over the telephone, Mr. Gafford gave “an exact description as

[the intruders] were going in and out” of the neighbor’s residence carrying

electronic equipment and a jewelry box. Mr. Gafford remained on the

telephone until the police officers arrived.

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When the officers arrived, one of the intruders was coming out of the house,

and the other man was setting a stolen item at the vehicle. When the intruders

saw the officers, they “eluded to the side and went through the back door or

through the side of the house” and escaped through “the backyard.” In

addition to the officers’ personal observations, Mr. Gafford also supplied the

responding officers “a full description of what [the intruders] were wearing,

their size, their activities, [and] exactly what they were doing.” Mr. Gafford

saw the men again approximately 45 minutes later after the officers located

and detained them. The officers brought the intruders separately to Mr.

Gafford to see if he could identify them. Mr. Gafford testified that he

identified the men as “the two guys that [he] saw actually break into the house

3 feet away from [his] face.”

Mr. Gafford admitted that when he testified at [Petitioner’s] preliminary

hearing, he did not identify [Petitioner] or the other intruder. He explained at

trial, “Because instead of myself making a mistake at the time I would of

rather used the testimony that I gave earlier to the police officers, to the

detectives, to the 911 operator. If you put all of these together and you put

exactly what I say what they were wearing, it should match up directly to their

booking sheet.” Mr. Gafford did, however, identify [Petitioner] at trial.

On cross-examination, Mr. Gafford stated that he had worked four hours on

the night of October 4 at Young Avenue Sound Studio. He went home shortly

after midnight and fell asleep on his couch. Mr. Gafford denied having

consumed any alcohol or narcotics that evening.

When asked on cross-examination to name the color of the intruders’ eyes, Mr.

Gafford replied that “[f]or the most part” he just saw the backs of their heads

and the sides of their faces. Mr. Gafford said that he remained inside his

residence until the police officers arrived and the intruders fled. He then

walked outside and spoke with one of the officers. According to Mr. Gafford,

the police officers captured one of the intruders “fairly quickly off the bat

within like the first three or four minutes.” The officers captured the second

intruder approximately 45 minutes later. The officers drove the intruders

separately to the break-in site, and Mr. Gafford testified that he identified each

suspect by the clothing they were wearing.

Defense counsel challenged Mr. Gafford’s in-court identification of

[Petitioner], particularly because Mr. Gafford failed to identify [Petitioner] at

the preliminary hearing. Counsel alleged that Mr. Gafford “identified this man

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because he’s a male black,” to which Mr. Gafford replied, “No. I identified

that gentleman there as the guy that did the break into the house.”

Adriana Morales, who lived with her daughter at the burglarized residence,

testified that on the morning of October 5, 2004, she took her daughter to a

doctor’s appointment. She returned to the residence and “saw a lot of police

cars in the street.” She spoke with the officers, learned what had happened,

and went to the police station to give a statement. At trial, she identified

numerous photographs depicting the damage to her residence and items of

personal property, such as a television and stereo equipment that had been

moved to her porch and stereo speakers inside the trunk of an unknown blue

vehicle parked in her driveway.

Memphis Police Officer Shan Hicks testified that he responded to a call

reporting a “prowler” at 3526 Marianne. He saw two individuals on the front

porch carrying electronic equipment and a jewelry box. One of the individuals

was dressed in a blue suede jogging suit, and the officer recalled that the other

man was wearing a white tee shirt. At trial, the officer identified [Petitioner]

as one of the men on the porch.

As Officer Hicks got out of his police vehicle, the men ran “towards the back

of the house.” Officer Hicks pursued, but he lost sight of the intruders when

he reached the backyard, at which point he broadcast on his radio a description

of the intruders. Officer Hicks returned to the front of the residence and

observed the blue vehicle in the driveway and numerous items of personal

property inside the vehicle. From its license plate, the officer identified the

registered owner of the vehicle and determined that the vehicle was stolen. At

trial, the officer could not recall the name of the vehicle’s owner.

Officer Hicks identified photographs of the residence’s interior, the

“kicked-in” front door, and items on the front porch. The officer recalled that

the items on the porch shown in one of the photographs had been removed

from the backseat of the blue Taurus after crime scene officers had processed

the area. Officer Hicks testified that other officers in the area apprehended

two men and transported them to the scene where Officer Hicks identified

them as the intruders he had seen.

On cross-examination, Officer Hicks estimated that he was able to observe the

intruders for 10 to 15 seconds. He also estimated that he saw their faces

“briefly for a second before they ran off.” He testified that the men captured

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and returned to the scene had dark colored eyes. The man in the jogging suit

was wearing a hat, and the other man had a “fade cut.” The officer testified

that he could not tell if the men had any scars or gold teeth. Officer Hicks

affirmed that the second suspect who was in custody and transported to the

scene 30 to 40 minutes later had been stopped behind a Papa John’s pizza

parlor located only one or two blocks from Ms. Morales’s residence.

The defense presented testimony from one witness, Officer Alvin Davis, who

arrested the defendant “in front of the Papa John’s” in the “700 block of South

Highland” at 11:08 a.m. The officer testified that the arrest site is the “next

street over” from 3526 Marianne. When the officer saw [Petitioner],

[Petitioner] was “walking across the street from another residen[ce], like right

across from the pizza place . . . carrying a pizza box walking toward the Papa

John’s.”

On cross-examination, Officer Davis explained that he arrested [Petitioner]

because he matched the description of one of the men who had burglarized a

residence in the area and because [Petitioner] appeared suspicious walking

with a pizza box toward, not away from, the pizza parlor.

State v. Alton Tappan, No. W2006-00168-CCA-R3-CD, 2007 WL 1556657, at *1-3 (Tenn.

Crim. App. at Jackson, May 29, 2007).

Shortly after we affirmed Petitioner’s conviction, he filed a pro se petition for postconviction relief. He was appointed counsel, who then filed an amended petition. The

petitions claim, among other things, that Petitioner was denied his constitutional rights to

effective trial and appellate counsel. On appeal, Petitioner has distilled his ineffective

assistance of counsel claims down to three points: (1) trial counsel failed to adequately

inform him of the potential sentences he faced, thus preventing him from making an

informed decision regarding a plea offer; (2) trial counsel failed to procure a mental

evaluation for him; and (3) appellate counsel neglected to raise an issue on direct appeal

regarding the trial court’s failure to instruct the jury regarding circumstantial evidence.

Two witnessestestified at the post-conviction hearing. Petitioner testified that he was

1

represented by appointed counsel in the case. He met with counsel several times prior to

trial. Immediately after trial he thought she “did a pretty good job.”

As noted above, on appeal Petitioner has discarded some of the claims in his petitions. We limit 1

our recitation of the record to the evidence relevant to the issues before us.

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He later changed his mind. Petitioner testified that he did not believe counsel

adequately explained his options with respect to the State’s plea offer or his potential

sentencing exposure upon conviction after a trial. Although Petitioner has an extensive

criminal history, he did not think he was a candidate for “an enhancement,” and therefore

prior to trial he thought his sentence would be somewhere between five and eight years. He

testified that he did not know the actual range at which he could be sentenced. Petitioner

acknowledged that the trial judge questioned him regarding the alternate plea offers proposed

by the State. Petitioner was on probation at the time of this offense, and he knew he would

have to complete a four-year term for the prior offense. The State offered two alternatives:

one proposing a five-year sentence to be served concurrently with the prior sentence; and one

proposing a three year sentence to be served consecutively to the prior sentence. Petitioner

rejected both offers.

Petitioner also told the post-conviction court that he had been diagnosed with

depression. He testified that he was under a lot of stress at the time of trial, but counsel never

sought a mental evaluation for him.

Counsel, a licensed attorney since 1993, testified at the post-conviction hearing that

she had handled a variety of criminal matters, including capital cases. She met with

Petitioner immediately after her appointment to the case. In addition, she met with him four

other times, each for around thirty to forty-five minutes. She also began negotiating with the

State for a plea deal.

Counsel explained the range of sentences facing Petitioner. As part of that discussion,

she informed him that, because he qualified as a career offender, he was subject to automatic

sentences of fifteen and twelve years if he were convicted. She further explained that those

sentences could be consecutive, meaning Petitioner was potentially exposed to an additional

twenty-seven years after completing his prior sentence. Counsel believed Petitioner fully

understood the possible outcomes and the ramifications of his plea options. But, counsel

testified, Petitioner wanted to serve no more than three years, which was not possible given

the State’s offers. He rejected the offers. Prior to trial, the trial judge explained the offers,

questioned Petitioner about them, and confirmed that he wanted to reject them.

Counsel noted that, as part of her discussions with any client, she constantly evaluates

whether the client comprehends what she is saying. She made that evaluation throughout her

representation of Petitioner, and she did not recall any signs that Petitioner was unable to

understand their discussions. Moreover, she specifically asked Petitioner if he had a history

of mental illness, and he told her he did not. In short, counsel testified that she did not find

any indication that Petitioner had mental problems. Furthermore, she explained that even if

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Petitioner was depressed at the time of trial, she did not believe that was a valid defense.

Therefore, she did not ask that he undergo a mental evaluation.

Finally, counsel, who was also Petitioner’s counsel on direct appeal, testified that she

raised what she believed to be every meritorious issue on appeal. She acknowledged that she

did not seek a jury instruction at trial concerning circumstantial evidence. She explained that

she did not believe it was necessary. Likewise, she explained that, because she believed the

instruction was unnecessary, she did not raise its absence as an issue on appeal.

The post-conviction court took the matter under advisement and then issued an order

denying relief. The court concluded that Petitioner failed to demonstrate that counsel was

ineffective for failing to seek a mental evaluation. It also found that she was not ineffective

for declining to argue on appeal that a circumstantial evidence jury instruction was necessary,

specifically noting that if both direct and circumstantial evidence are present then such an

instruction is not needed. The post-conviction court did not address Petitioner’s claim that

counsel was ineffective for not properly advising him about his plea options.

Petitioner now raises these three issues on appeal.

II. Analysis

To be successful in his claim for post-conviction relief, Petitioner must prove all

factual allegations contained in his post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

On appeal, we conduct a de novo review of the post-conviction court’s findings of fact, but

we presume its findings are correct “unless the evidence preponderates against [them].”

Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see also State v. Burns, 6 S.W.3d 453, 461

(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). We do not “reweigh or

re-evaluate the evidence or substitute [our] inferences for those drawn by the [postconviction] court. Furthermore, 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] judge.” Fields, 40 S.W.3d at 456 (citation

omitted). However, a claim of ineffective assistance of counsel is a mixed question of law

and fact, see Burns, 6 S.W.3d at 461, and we review the post-conviction court’s conclusions

of law, “such as whether counsel’s performance was deficient or whether that deficiency was

prejudicial,” purely de novo, “with no presumption of correctness,” Fields, 40 S.W.3d at 458.

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Because Petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, he “bears the burden of proving both that counsel’s performance was deficient

and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn.

1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient

performance, Petitioner must show that counsel’s performance was below “the range of

competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To establish prejudice, 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.” Strickland, 466 U.S. at 694.

Petitioner first contends that his defense counsel did not adequately inform him of the

possible sentencing ramifications in choosing to proceed to trial or his options with respect

to the State’s plea offers. Although not specifically addressed by the post-conviction court,

our review of the record reveals that this claim does not merit relief. While Petitioner

testified that he was not aware of the ranges of punishment he faced by going to trial and was

not fully aware of the State’s offers, he acknowledged that the trial judge questioned him to

assure herself that he was making an informed decision to reject the State’s offers. In

addition, counsel testified thatshe explained Petitioner’s optionsto him fully and specifically

informed him that he faced possible sentences of 15 and 12 years for the charges. Counsel

also told him that the trial court could impose consecutive sentences. Furthermore, she

informed Petitioner of the State’s proposals, but, she testified, Petitioner rejected them

because he did not want a sentence longer than three years. Thus, there is no clear and

convincing evidence that counsel’s performance was constitutionally deficient. Regardless,

there is no evidence of prejudice. Assuming he was not fully informed of the ranges of

punishment he faced, Petitioner did not testify that he would have taken the plea if had been

given that information. Indeed, the evidence suggests that he would have rejected the offers

because they required a sentence of more than three years. Thus, Petitioner has failed to

establish either prong of the Strickland test.

Second, Petitioner contends his defense counsel was ineffective in failing to procure

a mental evaluation for him. This argument is also unpersuasive. There is little-to-no

evidence in the record suggesting that counsel was deficient in not seeking a mental

evaluation. Petitioner testified that he had been diagnosed with depression, that he “probably

was” depressed at the time of trial, and that he was under stress at the time. This evidence

does not suggest reasonable counsel would have sought an evaluation for Petitioner.

Moreover, counsel explained that she constantly evaluates her clients’ ability to understand

the proceedings. Counsel testified that throughout her representation, she never had any

indication that Petitioner had mental problems. Consequently, we conclude that counsel was

not deficient for not seeking an evaluation. Regardless, there is no evidence in the record

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that had a mental evaluation been conducted, the result of the case would have been different.

Nothing indicates Petitioner’s depression and stress were sufficient to render him

incompetent to stand trial or otherwise avoid responsibility for the crime. As a result,

Petitioner has not provided sufficient evidence to satisfy the Strickland test on this issue.

Finally, Petitioner argues that counsel was ineffective on appeal because she did not

argue that the trial court erred by not giving an instruction regarding circumstantial evidence.

A defendant has a “constitutional right to a correct and complete charge of the law.” State

v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superceded by statute on other grounds as stated

in State v. Reid, 91 S.W.3d 247 (Tenn. 2002). Accordingly, trial courts “should give a

requested instruction if it is supported by the evidence, embodies a party’s theory, and is a

correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.

1994). Indeed, “there is a positive duty upon a trial judge to give the jury a complete charge

on the law applicable to the facts of the case.” Id. at 149. While a guilty verdict can be

based exclusively upon circumstantial evidence, see State v. Pendergrass, 13 S.W.3d 389,

392-93 (Tenn. Crim. App. 1999), in order to sustain the conviction the facts and

circumstances of the offense “must be so strong and cogent as to exclude every other

reasonable hypothesis save the [defendant’s] guilt,” State v. Crawford, 470 S.W.2d 610, 612

(Tenn. 1971). When a prosecution rests entirely on circumstantial evidence, the defendant

is entitled to an instruction regarding this rule of law. See Tenn. Pattern Instr. – Crim. 42.03,

cmt. 1; see also State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975); Monts v. State, 379

S.W.2d 34, 40 (1964).

Here, although there was direct evidence that Petitioner committed the aggravated

burglary of the residence, there was only circumstantial evidence that he stole Ms. Young’s

car. Counsel testified that she did not request the instruction because she thought it was not

necessary. However, based upon the record, we conclude that counselshould have requested

the instruction. The only evidence that Petitioner stole the car was the fact that he and his

co-defendant possessed it during a robbery two days later. The circumstantial evidence

instruction would be appropriate in this case, and reasonable counsel would have raised this

issue at trial or on appeal. Counsel’s failure to do so was thus constitutionally deficient. See

Goad, 938 S.W.2d at 369; Baxter, 523 S.W.2d at 936.

Counsel’s failure was also prejudicial. See Strickland, 466 U.S. at 694. But because

Petitioner has framed this claim as ineffective assistance of appellate—rather than

trial—counsel, the prejudice analysis is somewhat more complicated. The issue was not

raised in the motion for new trial, as is required by Tennessee Rule of Appellate Procedure

3. Nor does the record indicate that Petitioner objected to the instructions at trial. Thus, the

issue would have been waived on direct appeal. See Tenn. R. App. P. 3(e); State v. Haynes,

720 S.W.2d 76, 84-85 (Tenn. Crim. App. 1986); see also State v. Corey Finley, No. W2005-

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02804-CCA-R3-CD, 2007 WL 1651879, at *6 (Tenn. Crim. App. at Jackson, June 7, 2007).

Had counsel raised it on appeal, it would have been reviewed for plain error. See Tenn. R.

App. P. 36(b). Plain error requires that (1) the record clearly establish what occurred in the

2

trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the

accused was adversely affected; (4) the accused did not waive the issue for tactical reasons;

and (5) consideration of the error is “necessary to do substantial justice.” State v. Adkisson,

899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994); see also State v. Smith, 24 S.W.3d 274,

283 (Tenn. 2000) (adopting the Adkisson test for determining plain error).

Omitting the circumstantial evidence instruction was plain error in this case. The

record clearly shows that the evidence upon which the State relied for the theft count was

exclusively circumstantial. It also shows that the circumstantial evidence instruction was not

given, nor was the jury given any other special instruction to guide its evaluation of the

evidence against Petitioner on this count. Our case law has long held that when the

incriminating evidence is exclusively circumstantial, “the failure of the judge to instruct the

jury the law of circumstantial evidence, whether or not the respondent requests such

instructions, is fundamental reversible error.” Thompson, 519 S.W.2d at 792 (citing cases)

(emphasis added); see also State v. Caldwell, 671 S.W.2d 459, 465-66 (Tenn. 1984). Thus,

there is a reasonable probability that, but for counsel’s unprofessional errors, Petitioner’s

conviction on Count II would have been reversed on appeal.

We therefore conclude that Petitioner has demonstrated that he received ineffective

assistance of counsel with respect to his conviction for theft of property valued at $1,000 or

more but less than $10,000 in Count II and that he is entitled to a new trial on that count.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the post-conviction court in part

and reverse it in part. The case is remanded to the trial court further proceedings consistent

with this opinion.

__________________________________

NORMA McGEE OGLE, JUDGE

In addition, at the time of Petitioner’s direct appeal, Tennessee Rule of Criminal Procedure 52(b) 2

authorized plain error review. Since then, however, Rule 52 was reserved in favor of the amended rule of

appellate procedure. Regardless, this issue could have been reviewed for plain error had it been raised on

appeal.

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