Assigned on Briefs September 3, 2014
Appeal from the Criminal Court for Shelby County No. 08-06733 Chris Craft, Judge.
Reginald E. Shelton, Memphis, Tennessee, for the appellant, Ricky Frith.
Robert E. Cooper, Jr. Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Marianne Bell, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Procedural History and Facts
Following a jury trial, Ricky Frith ("the Petitioner") was convicted of attempted aggravated burglary and sentenced as a career offender to 12 years in the Department of Correction. Thereafter, trial counsel filed a motion for new trial, asserting that the evidence was insufficient to support the Petitioner's conviction. However, because the Petitioner's motion for new trial was untimely, it was not heard by the trial court.
The Petitioner retained new counsel to pursue a direct appeal, and appellate counsel filed a motion with this Court to waive the timely filing of a notice of appeal. See State v. Ricky Frith, No. W2011-00944-CCA-MR3-CD (Tenn. Crim. App. May 13, 2011) (order). Although this Court granted the Petitioner's motion, the Petitioner voluntarily dismissed his appeal several months later. See State v. Ricky Frith, No. W2011-00944-CCA-MR3-CD (Tenn. Crim. App. November 30, 2011) (order).
The Petitioner then filed a timely pro se petition for post-conviction relief. Following the appointment of counsel, an amended petition was filed. At the post-conviction hearing, the Petitioner testified that about a week after the offense, he was arrested based upon the victim's identification of him in a photo lineup. The Petitioner explained that the main issue in his case had been the victim's identification of him as the perpetrator. To challenge the identification at trial, counsel thoroughly cross-examined the victim and presented alibi witnesses to establish that the Petitioner was visiting a friend in the hospital at the time of the burglary. The Petitioner complained, however, that trial counsel failed to obtain a copy of the sign-in sheet from the hospital.
The Petitioner also testified that trial counsel should have called Officer McNinch to testify about the victim's initial description of the suspect because the victim would have been "caught lying" at trial. The Petitioner explained that the victim's initial description of the perpetrator did not match the description the victim gave at trial. Specifically, the victim testified at trial that the perpetrator had only one tattoo, but he told Officer McNinch that the suspect had a "half a sleeve [tattoo], from his shoulder to his elbow." According to the Petitioner, trial counsel should have called Officer McNinch to the stand to impeach the victim's trial testimony because other than the victim's testimony, the State had no other evidence linking the Petitioner to the crime.
The Petitioner acknowledged that trial counsel cross-examined the victim regarding his identification of the Petitioner and did a "pretty good job of pointing out that the guy was mistaken . . . ." During cross-examination, trial counsel asked the Petitioner to stand up and take off his shirt so that the jury could see the Petitioner's extensive tattoos. Additionally, trial counsel presented photographs to the jury, showing that the Petitioner had these tattoos at the time of the offense. Trial counsel argued in closing that the victim was mistaken about his identification of the Petitioner, and counsel pointed out that there was no physical evidence connecting the Petitioner to the scene. Additionally, trial counsel called six witnesses on the Petitioner's behalf to establish the Petitioner's alibi, but some of the times provided by his alibi witnesses were inconsistent.
The Petitioner testified that at the hearing on his motion for new trial, the trial court informed counsel that it would not hear the motion because it was not timely filed. The Petitioner testified that trial counsel did not discuss the issues to be raised in the motion for new trial with him. The Petitioner stated that he would have wanted to include an issue about the insufficiency of the victim's testimony to support his conviction. Additionally, he would have wanted to raise an issue of prosecutorial misconduct based upon the prosecutor's argument to the jury that there was nothing to show that the victim was mistaken in his identification. The Petitioner asserted that the prosecutor knew "that her victim, the witness, [was] telling two different stories."
The Petitioner testified that he hired appellate counsel to pursue a direct appeal. The Petitioner had a very lengthy discussion with appellate counsel, and appellate counsel explained that "there was no realistic possibility that [his] conviction would be reversed." Appellate counsel told the Petitioner that he had "no viable basis for an appeal" and later sent him a letter regarding withdrawing his appeal. Based upon his discussions with appellate counsel, the Petitioner signed a waiver and withdrew his appeal.
Trial counsel testified that he had 26 years of experience as a criminal defense attorney and had participated in "hundreds" of trials. Trial counsel explained that after being appointed to represent the Petitioner, he visited the Petitioner at the penal farm between five and 10 times and did not have any problems communicating with the Petitioner.
Trial counsel stated that he had sufficient time to investigate the circumstances of the offense and prepare for trial. Counsel explained that his trial strategy had been to challenge the victim's identification of the Petitioner and establish that the Petitioner had an alibi for the time of the offense. Trial counsel hired an investigator to locate and interview potential witnesses. Counsel spoke to the Petitioner's alibi witnesses "on more than one occasion" and discovered that they could not agree on some details. Based upon these inconsistencies, trial counsel recommended to the Petitioner that they not call all of the alibi witnesses. The Petitioner, however, wanted trial counsel to call all of the witnesses. Counsel recalled that while testifying, some of the witnesses got "a little tied up" regarding times and how they learned of the date of the offense.
Trial counsel testified that he attempted to obtain the hospital sign-in sheet, but it was not available. Counsel also attempted to obtain the medical records of the friend the Petitioner was visiting at the time of the offense; however, the hospital refused to release the records due to HIPPA regulations.
Regarding the victim's testimony, trial counsel testified that his primary goal was to "convince the jury that [the victim] did not see [the Petitioner] but he saw somebody else" because other than the victim's identification, there was no other evidence linking the Petitioner to the scene. To accomplish this goal, trial counsel cross-examined the victim "very, very thoroughly." At trial, the victim described the perpetrator as having only one tattoo. Trial counsel presented evidence, however, that the Petitioner had tattoos on both arms from his wrists to his shoulders, as well as tattoos across his chest. Trial counsel argued that there was no way that someone could look at the Petitioner and "not see all those tattoos."
Trial counsel explained that he did not call Officer McNinch to testify about the victim's initial description of the perpetrator because he did not want to bolster the victim's testimony with a more detailed description of the suspect. He further explained that he typically does not subpoena a witness "if I think the testimony . . . is going to hurt my case."
Trial counsel acknowledged that he filed an untimely motion for new trial, and the trial court refused to hear the motion. Trial counsel explained that it "fell through the cracks" and was filed five days late. Trial counsel testified that in the motion, he alleged that the evidence was insufficient and that the verdict was against the weight of the evidence based upon the inconsistencies in the victim's testimony and the strength of the alibi witnesses' testimony. When asked about any other issues that could have been raised in a motion for new trial, trial counsel stated, "[J]ust from looking back and thinking back about this trial, I don't see any appealable issues." Trial counsel opined that the trial court had been "very, very cautious" and "ran a good, clean trial." When ...