Assigned on Briefs July 08, 2014
Appeal from the Criminal Court for Shelby County No. 0505703 James M. Lammey, Judge
R. Todd Mosley, Memphis, Tennessee, for the appellant, Frank Taylor.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel; Amy P. Weirich, District Attorney General; and Jessica Banti, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Jerry L. Smith and Camille R. McMullen, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
On May 22, 2008, a jury convicted the petitioner of one count of first degree felony murder and one count of criminal attempt: especially aggravated robbery. The petitioner appealed his convictions, and this court affirmed the convictions. The relevant facts of the case are as follows:
On January 17, 2005, three male juveniles, Clarence Anthony Abernathy ("Abernathy"), Markese Alexander Brooks ("Brooks"), and Frank DeAngelo Taylor (Defendant-Appellant "Taylor"), entered the Little Star Grocery located in Memphis, Tennessee. One of the three juveniles approached the clerk and said "This is a stick up[.]" During the robbery, Albert Covington, the victim in this case, struggled with one of the juvenile perpetrators and was fatally shot. Law enforcement personnel later made contact with Brooks, who was recovering from a gunshot wound at the hospital, and developed Taylor as a suspect. Two days later, on January 19, 2005, law enforcement interviewed Taylor, who provided a statement admitting to his involvement in the murder. Taylor and the other two juveniles were subsequently charged with first degree felony murder and criminal attempt to commit especially aggravated robbery.
State of Tennessee v. Frank Deangelo Taylor, No. W2008-01863-CCA-R3-CD, 2010 WL 3307072, at *1 (Tenn. Crim. App. Aug. 23, 2010). The petitioner filed a pro se petition for post-conviction relief and was appointed counsel. Through counsel, the petitioner filed two amended petitions for post-conviction relief, and the trial court conducted an evidentiary hearing.
At the post-conviction hearing, the petitioner testified that he elected not to testify at his trial. He was arrested at his school two days after the incident and was seventeen years old at the time of his arrest. After his arrest, he was taken to juvenile court and appointed counsel. The petitioner testified that he only attended a transfer hearing in juvenile court and did not take part in a detention hearing. He met his appointed counsel for the first time prior to the transfer hearing and was unaware that a detention order was signed that ordered him to be detained in juvenile court custody. The petitioner stated that no witnesses testified at the transfer hearing and that "the Judge said what he had to say and the State said what they had to say and we were bound over."
The petitioner testified that neither juvenile counsel nor trial counsel informed him of the right to appeal the transfer or detention orders. Trial counsel was appointed to represent the petitioner after he was indicted. The petitioner shared his concern with trial counsel that he was arrested without a warrant and asked trial counsel whether his arrest was legal. He testified that trial counsel told him that "evidently [the police] had probable cause" to arrest him. The petitioner later learned that the probable cause for his arrest stemmed from a statement his co-defendant, Markese Brooks, made to police officers.
In his statement, Mr. Brooks indicated that a man named "Frank" was with him on the night of the incident. Mr. Brooks stated that Frank lived in "[t]he house next to the yellow store on Mississippi" and was a black male who was "probably about 17, " stood 5'8" or 5'9" tall, and weighed about 180 pounds. He described Frank as having a "dark complexion, no facial hair, [and a] pop out grill." Mr. Brooks believed that Frank had tattoos, specifically the word "Forty" tattooed on his forearm.
The petitioner testified that at the time of his arrest, he was 5'10" tall, weighed 185 pounds, and did not have any tattoos. He stated that he never lived in a house next to the yellow store on Mississippi and that he never lived on Mississippi Boulevard. The petitioner believed that Mr. Brooks' description led detectives to him, and he spoke with trial counsel about the differences between his own appearance and the description Mr. Brooks gave because he was concerned that the inaccuracies led detectives to the wrong person. The petitioner testified that trial counsel explained to him that she did not raise the discrepancies between the petitioner's appearance and Mr. Brooks' description because "the detective is a professional and basically he knows what he's doing . . . [so] the decision he made at the time had to be just." The petitioner testified that these discrepancies were not addressed at trial and agreed that Mr. Brooks did not testify at his trial. The petitioner stated that trial counsel's failure to raise the issue of lack of probable cause supporting his arrest in her motion to suppress his statement to police rendered counsel's service ineffective.
Trial counsel testified that she had been a licensed attorney since 1990 and that she worked for the Shelby County Public Defender's office when she was appointed to represent the petitioner. She represented the petitioner after he was transferred from juvenile court and arraigned in criminal court. Trial counsel attempted to make a plea deal in exchange for the petitioner's testimony, but the State refused a deal because the petitioner was one of the shooters during the incident. She investigated the petitioner's background and discovered that he had a low IQ and suffered from mental health issues. Trial counsel had a ...