Court of Criminal Appeals of Tennessee, Nashville
Assigned on Brief, August 19, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2007-A-692 Monte Watkins, Judge
Jamie Machaner, Nashville, Tennessee, for the appellant, Gary Dwayne Johnson. .
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., joined. Jerry L. Smith, J., not participating.
JOHN EVERETT WILLIAMS, JUDGE
A complete recitation of the facts supporting the petitioner's instant convictions can be found in this court's direct appeal opinion. State v. Gary Dwayne Johnson, No. M2009-00157-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 162 (Tenn. Crim. App. Mar. 7, 2011). Here, we recite only a summation of those facts as is necessary for our review.
On October 4, 2006, the petitioner was in the custody of the Davidson County Sheriff's Office, but he was at Nashville General Hospital receiving medical treatment. Id. at *3. In the early evening hours, Sergeant Stacy Cummings unshackled the petitioner and allowed him to use the restroom. After returning from the restroom, the petitioner instigated an altercation with Sgt. Cummings in which the petitioner tried to gain possession of the officer's weapon. The petitioner eventually did gain control of the weapon, and it was discharged inside the hospital room. Sgt. Cummings stated that after the discharge, she felt the heat from the bullet as it passed her ear. She also suffered various injuries to her person from the petitioner's attack. Before running from the room, the petitioner told Sgt. Cummings, who had fallen to the floor, "Bitch, I'm not going back to jail." Id. at **3-4. These actions were observed by a nurse, who also witnessed the petitioner get on the elevator. Id. at *5.
Anita Cox had arrived at the hospital in order to make her daily pick up of blood and urine samples, which her employer, Quest Diagnostics, processed. The petitioner approached her and said, "Give me your keys." When Ms. Cox initially refused, the petitioner pointed a gun at her and again demanded the keys. She raised her hands in the air, and the petitioner removed the keys from her pocket and left. After her van was recovered, Ms. Cox became aware that her wallet had been rummaged through and that some change, her cigarettes, and her lighter were missing. Id. at **5-6.
Tracie Mosley, along with her two children and her sister, had gone to a Nashville grocery store. When Ms. Mosley exited the store, she saw the petitioner speaking with her sister by the car. According to Ms. Mosley, he told them that he had escaped from a mental ward and offered them twenty dollars for a ride, which they agreed to provide. The group proceeded to Ms. Mosley's house to put up her groceries, and she supplied the petitioner with some spare clothes, as he was wearing only a t-shirt and boxer shorts. Id.**6-7.
While there, the petitioner offered Ms. Mosley's friend, T.T., twenty-five dollars to take him to his mother's house, which she agreed to do. Ms. Mosley accompanied the pair. While en route, Ms. Mosley's daughter called her mother and told her that the petitioner was an escaped prisoner. Ms. Mosley handed the phone to T.T., and her daughter relayed the same information to her. T.T. started to panic. She pulled over the car and asked the petitioner to exit the vehicle. When the petitioner refused, T.T. jumped from the car and ran. Inside the car, Ms. Mosley and the petitioner fought over the car keys, but, when he pulled a gun on her, Ms. Mosley also jumped from the vehicle. Id. at *7.
The petitioner's next actions brought him in contact with Jeffrey Conyers. Mr. Conyers had just finished mowing the grass when he saw the petitioner drive up in what was later identified as T.T.'s car. The petitioner pulled into the driveway and asked for directions to the interstate. The petitioner then got out of the car, placed a pistol to Mr. Conyers' head, and ordered him to get into his truck. Mr. Conyers was driving the vehicle with the petitioner hunkered down in the floorboard with his gun pointed at Mr. Conyers. The petitioner ordered Mr. Conyers to get them away from the area and, after some time driving, he ordered Mr. Conyers to make several stops, including an ATM where Mr. Conyers withdrew nine hundred dollars while held at gunpoint.
The petitioner ordered Mr. Conyers to keep driving, and they eventually ended up in Kentucky. The petitioner ordered Mr. Conyers to return to Tennessee and, after stopping for cigarettes and food, he forced Mr. Conyers to drive around on "little country roads." Mr. Conyers was fearful for his safety at this point. Eventually, the two men ended up at a Kroger parking lot in Milledgeville, and the petitioner informed Mr. Conyers that someone was coming to give him a ride. After taking Mr. Conyers' shirt and removing the battery from his cell phone, the petitioner told Mr. Conyers that he and the person picking him up would be following to make sure that Mr. Conyers only went straight home. The petitioner told Mr. Conyers that if he made any other stops, he would kill him. The petitioner exited the truck and walked towards the store, and Mr. Conyers drove away. While driving on the interstate, Mr. Conyers saw a policeman who had pulled over a car. He ran to the officer for assistance. Id. at *8.
Shortly thereafter, the petitioner approached Jeremy Nix outside the Kroger store and offered to pay him to drive him "up the road a couple of exits." Mr. Nix denied that he was ever threatened by the petitioner, and he saw no gun. While driving, Mr. Nix received a call from the Kentucky Highway Patrol, during which he learned that he had an armed and dangerous subject in the car. However, Mr. Nix lied and told officers that he had already dropped the petitioner off. He continued to drive for about ten minutes, and then he did in fact drop the petitioner off. Id. at **12-13.
The petitioner was taken back into custody on October 6, 2006, in Indianapolis, Indiana. Additionally, Sgt. Cummings' firearm, which the petitioner took with him from the hospital, was discovered on a railroad track in Elizabethtown, Kentucky. Id. at * 11.
For his actions during this afternoon/evening of crime, the petitioner was indicted for attempted first degree murder, robbery, aggravated assault, three counts of carjacking, especially aggravated kidnapping, and escape. Prior to trial, the State nolled one of the carjacking counts. Following the jury trial, the petitioner was convicted of: reckless endangerment, robbery, misdemeanor assault, two counts of carjacking, especially aggravated kidnapping, and felony escape. Following a sentence hearing, the petitioner was sentenced, as a career offender, to an effective term of one hundred and forty-one years in the Department of Correction. Thereafter, the petitioner filed a direct appeal with this court asserting that: (1) the evidence was not sufficient to support the convictions; (2) the trial court erred by sentencing him as a career offender and ordering consecutive sentences; and (3) the trial court erred in denying the motion to dismiss trial counsel before the sentencing hearing. Id. at **13-14. Following review, this court affirmed.
Next, the petitioner filed a pro se petition for post-conviction relief alleging that he had been denied his right to the effective assistance of counsel. Following the appointment of counsel, an amended petition was filed. A hearing was held at which both the petitioner and trial counsel gave testimony.
The petitioner testified that he was presently serving a one hundred and forty-one year sentence in the Department of Correction. He stated that he believed that trial counsel was ineffective in his investigation of the case. He testified that he specifically asked trial counsel to obtain phone records from Sgt. Cummings. According to the petitioner, the records would have shown that Sgt. Cummings had made phone calls on the petitioner's behalf to his parole officer. The petitioner testified that he offered to pay the officer forty dollars to do this. He believed that having the records would have made his story appear more credible before the jury. He further claimed that he paid Sgt. Cummings forty dollars to walk him across the hall and that, during the process, her weapon misfired. The petitioner also testified that he requested that trial counsel employ a ballistics expert to study the gun and its discharge to discredit Sgt. Cummings' testimony and accredit his.
The petitioner also faulted trial counsel for failing to investigate and find surveillance video of his exit from the hospital. According to the petitioner, the video would have shown that he did not leave the hospital in the Quest Diagnostics van driven by Ms. Cox. The petitioner believed that trial counsel should have investigated her as well. The petitioner testified that trial counsel failed to take any of these actions.
The petitioner testified that trial counsel failed to comply with his request to interview Tracy Mosley, one of the carjacking victims. The petitioner said that if trial counsel had interviewed Ms. Mosley, it might have been possible to find her sister, Lorraine, and T.T. The petitioner believed that Lorraine would have testified that the petitioner had flagged her down at the hospital for a ride. He believed that T.T. would have said that "he did not carjack her." According to the petitioner, trial counsel told him that they had attempted to locate Ms. Mosley but had not been successful. The petitioner noted, however, that the State had been able to find her for trial.
The petitioner also thought that trial counsel should have done more investigation on Jeffrey Conyers, the victim of the aggravated kidnapping. The petitioner testified that trial counsel should have obtained Mr. Conyers' phone records, which would have shown that he and the petitioner had previously spoken to each other. The petitioner said he knew Mr. Conyers from around the neighborhood when he was trying to start his own business. The petitioner stated that this ...