Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs May 21, 2014
Appeal from the Criminal Court for Knox County No. 97941 Jon Kerry Blackwood, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Ivan Charles Graves.
Herbert H. Slatery, III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall Eugene Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. J., joined. Jeffrey S. Bivins, J., not participating.
THOMAS T. WOODALL, JUDGE
This case relates to the shooting death of James Kendall Porter on December 28, 2005. The facts underlying Petitioner's conviction are summarized in this court's opinion on direct appeal. See State v. Ivan Charles Graves, E2009-00009-CCA-R3-CD, 2011 WL 398024, at *1-10 (Tenn. Crim. App., Feb. 8, 2011), perm. app. denied (Tenn., May 27, 2011). In short, the proof at trial established that Petitioner, armed with a gun, confronted the unarmed victim at the victim's motel room because Petitioner believed that the victim had burglarized Petitioner's apartment. Petitioner kidnapped the victim and beat the victim with the gun causing skull fractures. The victim escaped from Petitioner's car and ran onto the porch of a house. Petitioner followed the victim and shot the victim at least six times. Petitioner later returned to the house with his brother and moved the victim's body off the porch where he was shot to an abandoned house across the street. Id.
Petitioner testified that he "briefly" discussed the facts of his case with his trial counsel. He testified that he met with counsel "on numerous occasions" while Petitioner was incarcerated. He testified that counsel reviewed "bits and pieces" of discovery information with him. Petitioner discussed with counsel some recorded telephone calls that Petitioner made while he was incarcerated that the State intended to introduce into evidence. Petitioner testified that he did not see a copy of the transcript of the phone call recordings before or during trial. He testified that the transcript was not accurate and he was not aware of the inaccuracy until after his trial had concluded. Petitioner acknowledged that the audio recordings were played during the trial, but Petitioner testified that the recordings were distorted.
Petitioner's trial counsel testified that he had been a criminal defense attorney for 17 years. Trial counsel had tried more than 35 murder cases in Tennessee. Counsel was appointed to represent Petitioner in 2006. Counsel testified that he believed "this was not a good case" based on the State's evidence against Petitioner. Counsel testified that several witnesses, including Petitioner's brother, girlfriend, and a neighbor, as well as a woman who was with the victim at the time of the shooting, testified against Petitioner. Counsel testified, "[i]t was more than a jail phone call." He testified that "the State had a very, very strong case. The cl[i]ncher, though was the jail phone call." Counsel testified that he strongly recommended to Petitioner that he accept the State's plea offer, but Petitioner decided to reject the offer.
Counsel testified that he filed a motion to suppress the jail phone calls and requested that the trial court order the State to designate which of the 400 phone calls the State intended to introduce at trial. Following two pretrial hearings regarding the admissibility of the phone calls, the trial court excluded several phone calls and redacted parts of other phone calls. Counsel testified that the most damaging phone call was one in which Petitioner admitted to shooting the victim. Petitioner stated that the victim was running and he "dropped him, " and Petitioner commented, "I didn't know I was that good a shot." Counsel advised Petitioner that if he chose to proceed to trial, "he's got to deal with that phone call." Petitioner explained the phone call at trial, testifying that "he was bragging to make himself tough in the jail."
Counsel testified that the audio recordings of the jail phone calls were played for the jury. The trial court admonished the jury that "if there's a difference between what you hear and what is in the transcript, then what you hear is evidence." Counsel testified that on the recording, the jury heard Petitioner "whispering and bragging about being such a good shot[.]" Counsel testified that "it was the moment when the trial turned." Prior to trial, counsel discussed with Petitioner the State's use of the phone calls at trial. Counsel testified, "[w]e were going with the theory we're not the shooter, when the phone call comes in it changed. Because it made it clear that he would have to testify and address that phone call."
On cross-examination, counsel explained the significance, or lack thereof, of Petitioner's claim that there was a discrepancy between the transcript and the recording. Counsel testified that even if the transcript had reflected that Petitioner actually stated that he "didn't want [the victim] to get shot like that, " the medical examiner's testimony that the victim was shot several times weighed in favor of Petitioner's guilt. Counsel also explained that even if Petitioner's statement in the recorded phone calls was interpreted by the jury as a statement that someone else shot the victim, Petitioner's explanation at trial that he was boasting in an effort to "create a persona of being a tough guy" contradicted that ...