Court of Criminal Appeals of Tennessee, Nashville
NELSON V. PLANA
STATE OF TENNESSEE
Assigned on Briefs September 9, 2014
Appeal from the Circuit Court for Montgomery County No. 40100094 Paul Summers, Senior Judge
Chase T. Smith, Clarksville, Tennessee, for the appellant, Nelson V. Plana.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney General; John W. Carney, District Attorney General; and Helen Young, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
At the conclusion of a three-day trial in July 2004, a Montgomery County Circuit Court jury convicted the defendant of two counts of premeditated murder and one count of felony murder for the January 1, 2001 shooting deaths of Ivelys Miranda and her six-year-old son, Adan Daniel Rodriguez. See State v. Nelson Vega Plana, No. M2008-00717-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, June 22, 2009). The proof adduced at trial established that on that date, officers discovered Ms. Miranda and her son wounded but alive inside the apartment shared by the petitioner and Radames Melendez. Both later died from their injuries. Ms. Miranda had ended her relationship with the defendant shortly before the murders, and the petitioner was angry about the demise of that relationship. Sometime between 11:00 and 11:30 p.m., Ms. Miranda took her son with her to the petitioner's apartment to speak with him, and she told a witness that she was taking her son "'so that nothing would happen.'" Id., slip op. at 2. When Mr. Melendez returned to his apartment at 11:40 p.m. to get some beer, he saw Ms. Miranda seated on a small sofa and her son playing on the floor. The petitioner was seated on the larger sofa, and no one spoke to Mr. Melendez while he was in the apartment. Mr. Melendez left and returned to the New Year's Eve party being held in a nearby apartment. At approximately 12:04 a.m., Mr. Melendez again returned to his apartment, and inside he discovered both Ms. Miranda and her son on the small sofa. Both had been shot, Ms. Miranda a single time in the head and her son twice in the head. The petitioner was arrested at the bus station, and he later made an inculpatory statement to police. See id. The jury convicted the defendant as charged but deadlocked on the issue of punishment, resulting in the defendant's being sentenced to an automatic term of life imprisonment for each of the murders. See id., slip op. at 5. The trial court ordered the sentences to be served consecutively. This court affirmed the petitioner's convictions and sentences on direct appeal, see id., slip op. at 13, and our supreme court denied permission to appeal, see State v. Nelson Vega Plana, M2008-00717-SC-R11-CD (Tenn. Apr. 16, 2010).
The petitioner filed a petition for post-conviction relief on October 19, 2009, alleging, among other things, that he was deprived of the effective assistance of counsel at trial and on appeal. In an amended petition for post-conviction relief filed by appointed counsel on February 15, 2011, the petitioner again alleged that he had been deprived of the effective assistance of counsel. In February 2012, the post-conviction court granted the petitioner's motion to relieve his appointed counsel and appoint replacement counsel. Replacement counsel later filed a motion seeking recusal of the post-conviction judge on grounds that the judge had "once practiced law with [trial counsel] while a practicing lawyer" and that the judge had indicated that this relationship "would preclude him from potentially finding [trial counsel] 'ineffective.'" The judge granted the petitioner's motion, recused himself from the post-conviction action, and ordered "that a Circuit Court Judge outside of this judicial district be appointed to preside over any future proceedings associated with this matter." The Chief Justice of our supreme court appointed Senior Judge Paul G. Summers to preside over the petitioner's post-conviction case.
At the November 27, 2013 evidentiary hearing, trial counsel testified that he and co-counsel, who had passed away before the hearing, were appointed to represent the petitioner "early on" in the case and that he "remained with the case until [he] was compelled to leave due [to] another job that [he] took." He recalled that the State initially sought the death penalty against the petitioner but withdrew the death notice "a week or ten days before the trial . . . and we went to the trial with the State seeking life without" parole. Counsel said that he and co-counsel utilized the services of an investigator with experience in investigating death penalty cases. He said that the investigation went on for more than a year.
Trial counsel characterized the proof against the petitioner as "largely circumstantial, " consisting mostly of witness statements indicating that the petitioner had been with the victims at the time of their death. Regarding the petitioner's claim that counsel should have produced evidence of an 11:38 p.m. telephone call from the apartment where the victims were discovered to a woman named Mallory Williams, counsel stated that he did not believe that proof of the telephone call would have had much impact on the trial because the proof established that the murders occurred after 11:38 p.m.
Counsel identified a memorandum prepared by his investigator that purported to memorialize an interview with Ms. Williams, and in that interview, Ms. Williams said that she did not know the petitioner. Counsel said that he and co-counsel "looked at those calls pretty carefully and decided which ones were helpful, hurtful[, ] or neutral, " so he felt confident that the decision not to introduce proof of that call was an intentional one, even though he had no specific recollection of making the decision.
Counsel said that he could not recall precisely what testimony Mr. Melendez had offered at trial, but he opined that "the suggestion that because Mr. M[e]lendez says he went to get beer and someone else says he didn't would constitute an attack on his credibility, seems . . . to be naive." He stated that "the story about the beer . . . was corroborated by other witnesses, but whether it was or was not it was not critical to whether [the petitioner] had done anything wrong that night."
With regard to the issue whether the petitioner had a key to the apartment where the victims were murdered, counsel said that he recalled "the issue of a key coming up, but also . . . other people were there and . . . may have let him in. . . . [H]is presence in the apartment was undeniable."
During cross-examination, counsel agreed that the proof at trial established that Ms. Miranda telephoned the petitioner at 11:38 p.m., just before leaving the party to go speak with the petitioner. A witness later telephoned the apartment where the petitioner was staying and where the victims were later found dead and asked to speak with Ms. Miranda. Although the petitioner did not permit the witness to speak with Ms. Miranda, the witness testified that she could hear both victims in the background. Both Ms. Miranda's telephone call to the petitioner and the later call to the petitioner to check on the victims were corroborated by telephone records. Telephone records also showed that a telephone call was placed to Ms. Williams' number, but the duration of that call was less than a minute. Counsel said that he did ...