Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs September 16, 2014.
Appeal from the Circuit Court for Sullivan County No. C62330 R. Jerry Beck, Judge.
L. Dudley Senter III, Bristol, Tennessee, for the appellant, Michael Bo Heath.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry P. Staubus, District Attorney General; and Kaylin K. Render, 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 Roger A. Page, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE.
The Petitioner's convictions relate to the fatal shooting of his mother's husband. The Petitioner was charged with first degree murder and three counts of tampering with or fabricating evidence. He pleaded guilty to second degree murder and to three counts of evidence tampering or fabricating. For second degree murder, he agreed to accept an above-range, Range II, twenty-seven-year sentence, which was to be served at 100%. He accepted six-year sentences for the evidence tampering convictions. All of the sentences were to be served concurrently.
At the post-conviction hearing, the district public defender testified that he represented the Petitioner in the early stages of the case. He met with the Petitioner on the arraignment date and had a lengthy meeting with the Petitioner at the jail before the preliminary hearing date. They reviewed the Petitioner's statement, his family history, and unspecified relevant matters. He said the Petitioner appeared to understand what was happening and participated appropriately in the discussion. Because he knew about the Petitioner's history of mental health treatment, his office had the Petitioner evaluated by an appointed psychologist.
The district public defender testified that he did not see a benefit to a preliminary hearing and that he and the Petitioner agreed without debate to waive it. He said the evidence at the hearing would have consisted of a police officer's reading the Petitioner's statement. He noted the contents of the statement would have been problematic and thought the Petitioner's assertions of a sexual relationship with his mother might generate unfavorable publicity. He thought that his investigator attempted to contact the Petitioner's mother and that she was hostile toward the Petitioner.
The district public defender testified that although he typically handled the homicide cases in the office, his workload at the time was too great due to six pending homicide cases. The Petitioner's case was reassigned to a veteran assistant district public defender, who was to serve as trial counsel. The district public defender said that when the case was reassigned, no determination had been made whether it was likely to be resolved by a plea agreement. He said that discovery had not yet been received and that the case was at a good stage for reassignment because "all the big decisions [could] still be made." He said that after reassignment, he consulted with trial counsel about the case. They discussed obtaining the services of Dr. Eric Engum for the psychological evaluation.
The district public defender testified that although he had concerns about the Petitioner's mental health based upon the Petitioner's history, he did not think he needed to adjust the manner in which he spoke to the Petitioner. He said one reason he reset the case was to have time to talk to the Petitioner when the Petitioner would not feel pressure. He considered his decisions in general sessions court and at the preliminary hearing stage to be matters of trial strategy.
The district public defender testified that in Dr. Engum's opinion, the Petitioner was not incompetent or insane. He said Dr. Engum's report did not contain any findings that implicated the Petitioner's culpable mental state. Although he did not recall specific details of Dr. Engum's report, he would not be surprised if it stated the Petitioner had diminished capacity in understanding some situations.
Trial counsel testified that after reassignment, he assumed the responsibilities of lead counsel in the Petitioner's case. He had practiced law since 1977 and had represented about five first degree murder defendants previously. After he was assigned to the case, he met with the Petitioner at the jail for two to two and one-half hours. They reviewed the Petitioner's family situation, and he explained the criminal trial process. Although counsel may not have done so in the first meeting, he explained the possible sentences the Petitioner faced for the charged offenses and the lesser included offenses. He said the Petitioner appeared to understand the information. They reviewed the mental state requirements. The Petitioner asked questions and requested case law regarding the difference between first and second degree murder. They had several discussions about "intentional" and "knowing" killings. Counsel provided books at the Petitioner's request, and the Petitioner read relevant case law. He thought the Petitioner might have used the jail's law library for research. He said they also discussed the evidence tampering charges. Although he did not recall whether the Petitioner wrote him letters, he never had the impression the Petitioner was illiterate.
Trial counsel testified that he and the Petitioner had intelligent conversations. He never thought the Petitioner did not understand anything they discussed. He said that based upon the Petitioner's history, they obtained the mental health evaluation and that the district public defender began the process for obtaining the evaluation before trial counsel had assumed responsibility for the case. He said that although Dr. Engum's findings did not provide evidence to support a defense, the findings provided information that might have been helpful as mitigation proof at sentencing. Dr. Engum was more candid when counsel spoke to him than in the written expert report. Dr. Engum suspected that the Petitioner tried to skew one portion of a test to make his mental state appear worse than it was and that the Petitioner had malingered in prior mental health commitments. According to Dr. Engum, the Petitioner was significantly impaired when making choices in social and stressful situations.
Trial counsel testified that he met with the Petitioner about five times in the approximate eighteen-month period between the preliminary and the guilty plea hearings. He thought he spent adequate time with the Petitioner in view of the charges. He said that in addition to the jail meetings, they spoke by telephone frequently. He never found the Petitioner's intelligence lacking and thought the Petitioner understood the situation and the possible outcomes.
Trial counsel testified that the first plea offer involved a thirty-year sentence, which he thought was too lengthy. Although the Petitioner was a Range I, standard offender, the first plea offer was for Range II classification. He thought the best trial strategy involved proving that the Petitioner was influenced by his emotional bond with his mother into committing the crime, which made the offense second degree murder or voluntary manslaughter rather than first degree murder. He said the Petitioner did not want to testify and objected to a defense strategy that was unfavorable to his mother. He said they made a counteroffer for a fifteen-year sentence, and the State responded with a twenty-seven-year offer. He ...