Alberts v. State, 091619 TNCRIM, M2018-00994-CCA-R3-PC

Docket Nº:M2018-00994-CCA-R3-PC
Opinion Judge:ROBERT H. MONTGOMERY, JR., JUDGE.
Party Name:JOHN BURLEY ALBERTS v. STATE OF TENNESSEE
Attorney:Elizabeth A. Russell, Franklin, Tennessee, for the Appellant, John Burley Alberts. Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Kim R. Helper, District Attorney General; Mary Katherine White, Assistant District Attorney General, for th...
Judge Panel:Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
Case Date:September 16, 2019
Court:Court of Appeals of Tennessee, Court of Criminal Appeals of Tennessee
 
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JOHN BURLEY ALBERTS

v.

STATE OF TENNESSEE

No. M2018-00994-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Nashville

September 16, 2019

Assigned on Briefs May 15, 2019

Appeal from the Circuit Court for Williamson County No. CR170296 Joseph A. Woodruff, Judge.

The Petitioner, John Burley Alberts, appeals the Williamson County Circuit Court's denial of his petition for post-conviction relief from his convictions for four counts of rape of a child, for which he is serving an effective 100-year sentence. He contends that the post-conviction court erred in denying his ineffective assistance of counsel claim. We affirm the judgment of the post-conviction court.

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

Elizabeth A. Russell, Franklin, Tennessee, for the Appellant, John Burley Alberts.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Kim R. Helper, District Attorney General; Mary Katherine White, Assistant District Attorney General, for the appellee, State of Tennessee.

Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

OPINION

ROBERT H. MONTGOMERY, JR., JUDGE.

The Petitioner's convictions relate to his sexual abuse of an eight-year-old child. He was charged with additional offenses related to other victims, but those counts were severed from the present case. After allegations of sexual misconduct surfaced, law enforcement officers determined that the Defendant, who had a prior conviction for a sexual offense, was in violation of the sex offender registry. The Defendant was arrested. After his arrest, investigators reviewed images on computers to which the Defendant had access. One such computer, a laptop, had been recovered from the trunk of the Defendant's car. The images on this computer provided a significant portion of the evidence which led to the convictions in the present case. See State v. John Burley Alberts, No. M2015-00248-CCA-R3-CD, 2016 WL 349913 (Tenn. Crim. App. Jan. 28, 2016), perm. app. denied (Tenn. June 23, 2016).

The authorities obtained a warrant to search the car. The defense filed a motion to suppress the search of the car based upon insufficiency of the search warrant affidavit and sought suppression of the evidence obtained from the search of the computer as "fruit of the poisonous tree."

This court has previously summarized the evidence related to the discovery of the Defendant's offenses: Detective Tameka Sanders testified that she was employed by the Williamson County Sheriff's Office ("WCSO") and that she was the lead detective on the Defendant's case. Det. Sanders began investigating the Defendant after several parents reported that the Defendant had sexually abused their children. According to Det. Sanders, the abuse was reported on January 19, 2007. Det. Sanders "pulled [the Defendant's] records" and learned that he had been previously convicted of sexual abuse of a minor female.

Det. Grant Benedict, also with the WCSO, testified that he "handle[d]" registered sex offenders in the county. After learning about the Defendant's prior record from Det. Sanders, Det. Benedict searched the county's sex offender registry for the Defendant's name and discovered that the Defendant had been living in Williamson County without registering as required. Accordingly, on January 31, 2007, Det. Benedict arrested the Defendant for violating the sex offender registry. While attempting to locate the Defendant prior to his arrest, Det. Benedict called one of the Defendant's former employers, who informed Det. Benedict that the Defendant had spent a lot of time on one of the computers at work.

Timothy Pratt testified that he and the Defendant "grew up together" and that in 2007, he was living on Sweet Gum Lane in Lawrence County. He testified that the Defendant sometimes "stayed" at the house next door to his, which Mr. Pratt also owned. He recalled that the Defendant's car was "setting [sic] in [his] driveway when [he] came home one night." More specifically, the Defendant's car was located "in between" the driveway of the house where the Defendant had been staying and the driveway of Mr. Pratt's home. According to Mr. Pratt, the Defendant had already been arrested at that point, and he was not sure how the car came to be parked there. Mr. Pratt was aware of the Defendant's arrest because the Defendant was working for Mr. Pratt's brother at the time, and the Defendant was arrested at a "job site." Mr. Pratt opined that someone from the construction company moved the Defendant's car following his arrest. The car was unlocked, but the keys were with the car. Mr. Pratt locked the car and put the keys in his work truck.

Det. Sanders learned that the Defendant had recently lived in the home of A.B. and D.B., two of the parents who initially reported the abuse. Det. Sanders also learned from Det. Benedict that the Defendant "had spent a large amount of time on the computer at his workplace." Therefore, she called A.B. and asked whether there was a computer in their home that the Defendant had used. A.B. confirmed that there was a computer and that the Defendant had used it. A.B. agreed to turn the computer over to Det. Sanders. When Det. Sanders collected the computer, A.B. told her that the Defendant had a laptop that he kept in the trunk of his car and that he also owned a digital camera. Det. Sanders testified that she believed the Defendant "was very protective of [the computer]" because "he kept it...

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