Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 6, 2014
Appeal from the Criminal Court for Shelby County No. 08-01054 James M. Lammey, Jr., Judge
Constance Wooden Alexander, Memphis, Tennessee, for the appellant, Devaron Taylor.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Bryce Phillips, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Joseph M. Tipton, P.J., and Camille R. McMullen, J., joined.
ALAN E. GLENN, JUDGE
In 2009, the petitioner was convicted by a Shelby County Criminal Court jury of first degree felony murder, attempted especially aggravated robbery, and aggravated burglary, for which he received an effective sentence of life with the possibility of parole. This court affirmed the convictions on direct appeal. State v. Devaron Taylor, No. W2009-01252-CCA-R3-CD, 2011 WL 4027147, at *1 (Tenn. Crim. App. Sept. 12, 2011). The petitioner's convictions stemmed from his participation with a friend, Alvin Gordon, in breaking into the home of an elderly neighbor with the intention of stealing his car and then shooting and killing the victim when he returned home. Id. at *1-3. The petitioner admitted his participation in the crimes, while at the same time attempting to minimize his involvement, in both a statement to police and in his trial testimony. Id. at *2-3. Our direct appeal opinion provides the following synopsis of his trial testimony:
[The petitioner] testified that on September 25, 2007, he woke up around 11 or 12:00 and walked to Magnolia, the area in which the victim lived. Alvin Gordon called him and asked, "Do you want to get the old man's car?" [The petitioner] replied that he "didn't care." [The petitioner] walked to Gordon's house, and together they walked to William ("Eddie") Milam's house, but no one answered the door at Milam's house. [The petitioner] and Gordon then walked to the victim's house. [The petitioner] testified that Gordon used a screwdriver to "pop" the window out and used a trash can to step up and go inside through the window. Gordon looked around inside and told [the petitioner] that no one was there, and [the petitioner] went inside. Inside the victim's house, they found a 12-gauge shotgun. [The petitioner] testified that Gordon handed him the shotgun, he handed it back, and Gordon put the shotgun down on the bed beside the window. Gordon also found some 12-gauge shotgun shells, which he also placed on the bed.
[The petitioner] testified that he searched the house, looking for the victim's car keys. [The petitioner] found latex gloves in the bathroom and he put them on so as not to leave fingerprints, and he and Gordon continued to look for the car keys. They did not find any car keys, and [the petitioner] looked through the victim's dresser. He testified that Gordon appeared with duct tape and asked if he wanted to "tie [the victim] up." [The petitioner] told Gordon, "No, we just came to get the keys to the car." [The petitioner] took the duct tape from Gordon and placed it on the dresser. [The petitioner] told him that he thought "things [were] getting out of hand." [The petitioner] took off the gloves and began to leave. Gordon told [the petitioner] to wait, and [the petitioner] went back to the front of the house to wait. Then, they saw the victim returning home. [The petitioner] testified that the victim came to the back of the house where [the petitioner] and Gordon were standing and pulled back the curtain. The victim called Gordon by name, and Gordon pushed [the petitioner] aside, pulled out a gun and shot the victim. [The petitioner] grabbed the shotgun and they both jumped out of the window and ran. As they ran away from the victim's house, [the petitioner] saw Gordon reach down and take something from the victim's pocket. [The petitioner] threw the shotgun into the bushes. They then walked to William Milam's house. [The petitioner] later told Milam to get the shotgun out of the bushes.
[The petitioner] admitted that he went to the victim's house to steal his car and that they waited on the victim to arrive home. [The petitioner] and Gordon stole $9.50 in quarters from the victim. [The petitioner] heard the victim gagging as he ran away from the home. [The petitioner] explained how he believed that the latex gloves he was wearing were found lying under the victim's body. He testified that he had taken the gloves off, and the victim took them from him when he was standing at the window before he was shot. On direct examination, [the petitioner] denied knowing in advance that Gordon had a gun with him that day, but he later admitted on cross examination that he did, in fact, know that Gordon possessed a gun.
On July 18, 2012, the petitioner filed a pro se petition for post-conviction relief in which he raised a number of claims, including ineffective assistance of trial counsel. Post-conviction counsel was appointed and an evidentiary hearing held, at which the petitioner alleged several instances of ineffective assistance of counsel. He confines himself on appeal, however, to alleging that counsel was ineffective for failing to have him undergo a mental health evaluation and for failing to properly advise him on the consequences of waiving his sentencing hearing. We will, therefore, summarize only those portions of the evidentiary hearing testimony that are relevant to those claims.
During his direct examination testimony, the petitioner, who said he was eighteen at the time of his trial and had gone as far as the ninth grade before dropping out of school, primarily complained about the unfairness of the felony murder statute and the fact that Gordon received a plea-bargain sentence of thirteen and a half years, while he was serving a life sentence. He said that he agreed to waive his sentencing hearing on the recommendation of trial counsel, who told him that if he did so, he would receive a deal involving a life sentence with the possibility of parole running concurrently to the sentences for his other offenses. He did not, however, "really . . . know what was going on." On cross-examination, the petitioner testified that he had wanted the opportunity to testify at a sentencing hearing in order to ...