Court of Criminal Appeals of Tennessee, Knoxville
HOWARD G. BRUFF
STATE OF TENNESSEE
Assigned on Briefs July 23, 2014
Appeal from the Criminal Court for Cumberland County No. 8244 Leon Burns, Jr., Judge
Howard G. Bruff, Wartburg, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Robert W. Wedemeyer, J., and Joe H. Walker, III, Sp. J., joined.
JAMES CURWOOD WITT, JR., JUDGE
The evidence at the petitioner's jury trial revealed that on March 31, 2004, the victim, Kevin Hixson, was discovered murdered inside his home. State v. Howard Gailand Bruff, No. E2006-01070-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, Mar. 2, 2007), perm. app. denied (Tenn. Aug. 13, 2007). On the afternoon of March 29 between 1:30 and 2:00, neighbor Pat Williams observed a brown, rusty pick-up truck pull into the victim's driveway, and she saw the man driving the truck enter the victim's house. Id., slip op. at 3. Approximately 20 to 30 minutes later, the neighbor witnessed the man leave the victim's house and drive away rapidly. Id. The victim's cellular telephone records revealed that the petitioner called the victim at 2:04 p.m. on March 29 and that the last call placed from the victim's telephone was at 2:21 p.m. on that same date. Id., slip op. at 5-6. However, neighbor Joan Poisson testified that she saw the victim on March 29 between 4:30 and 5:00 p.m., when he walked to his mailbox to check his mail. Id., slip op. at 7. Ms. Poisson was certain of the time "because that was the time that she started making supper for her husband, who ate at the same time every day." Id. Ms. Poisson admitted that she was blind in one eye but insisted that it "did not prevent her from being able to see the victim." Id. Although Ms. Poisson had seen a "rusty Ford pick-up truck" at the victim's home on other days, she did not see the truck on March 29. Id.
The medical examiner determined that the victim had been shot twice in the head. Id. The first wound was to the back of the victim's head, and the second was to his left temple from close range. Id. Investigators believed that the victim was working on his satellite television connection when he was initially shot, causing him to fall in the living room corner, and that the victim was then moved before sustaining the second gunshot wound. Id., slip op. at 2, 6. Daren Houston, a close friend of the victim, testified that the victim "commonly kept cash in his billfold in his front pants pocket" and that the victim "always had a couple hundred dollars in his possession." Id., slip op. at 4. Investigators suspected that the victim had been robbed because the left front pocket of his shorts had been pulled out, and neither money nor a wallet was found on his person. Id., slip op. at 2, 5. Investigators did, however, find a canister under the kitchen sink which contained $317. Id., slip op. at 5.
Tennessee Bureau of Investigation ("TBI") Special Agent and Forensic Scientist Charles Hardy swabbed the pockets of the victim's shorts and testified that the major contributor of the deoxyribonucleic acid ("DNA") found on the pockets "matched the [petitioner] and that he could not exclude the victim as the minor contributor of the DNA." Id., slip op. at 6-7. Special Agent Hardy explained that "DNA could be transferred from a person's hand to a pocket through loose skin cells that are released while the hand is being placed in and pulled out of the pocket." Id., slip op. at 7. Special Agent Hardy opined that, given the amount of DNA found, the major contributor "was the last person to leave skin cells inside the pockets." Id. Special Agent Dan Royse testified that "the two bullet fragments recovered from the victim's head and the floor of the victim's house" were fired "from the same .32 caliber automatic gun." Id.
The petitioner testified that the victim, with whom he had been a friend, stopped by the petitioner's house in late March 2004 and asked for a change of clothes; according to the petitioner, the victim had spilled beer on his clothes and was worried that officers would smell the beer if he happened to get stopped while driving home. Id., slip op. at 9. The victim changed and "left his soiled clothes, which included a pair of denim shorts, at the [petitioner]'s house." Id. After the petitioner had washed the victim's clothes, the victim contacted him and asked the petitioner "to retrieve a piece of paper on which a lady's telephone number was written from a pocket of his shorts." Id. The petitioner checked the pockets of the victim's shorts but found the paper to be "illegible" after having been laundered. Id.
The petitioner testified that "he did not kill the victim" and that he had visited the victim on Sunday, March 28, to return the victim's shorts and to work on the victim's satellite system. Id. Shortly after the petitioner arrived, the victim "received a telephone call, said he could not work that day, and asked the [petitioner] to leave." Id. On the morning of March 29, 2004, the petitioner visited the home of Deborah Bruff to "discuss their relationship." Id., slip op. at 8. At 1:30, Mrs. Bruff instructed the petitioner to leave, which the petitioner did but then returned a few minutes later to retrieve a book before leaving again. Id., slip op. at 8, 9. According to the petitioner, he contacted the victim at 2:04 p.m. in an attempt to purchase cocaine, but "he was unable to get cocaine from the victim." Id., slip op. at 9. The petitioner then testified that he returned to his home and slept. Id. At around 4:00 p.m., the petitioner returned to Mrs. Bruff's home, apologized for upsetting her, and, according to Mrs. Bruff, told her "he would be leaving and would not bother her anymore." Id., slip op. at 8.
Early on the morning of March 30, the petitioner arrived at the Starwood Market and, using a $100 bill, paid owner Terry Amonette $40 on the petitioner's charge account. Id., slip op. at 4. According to Mr. Amonette, it appeared that the petitioner "had a few hundred dollars in his pocket." Id. The petitioner asked Mr. Amonette if he could borrow one of his vehicles so he could "visit his dying mother in Michigan." Id. Initially, Mr. Amonette agreed, and he and the petitioner drove to a local auto parts store. Id. While en route, the petitioner acted "jittery" and asked Mr. Amonette to tell anyone who asked that he had been at the Starwood Market on March 29. Id. The petitioner also remarked that "that son of a bitch might be dead, " and, in response to Mr. Amonette's inquiry about the meaning of that statement, the petitioner replied, "Well you're just better off not to know." Id. Mr. Amonette then changed his mind and told the petitioner that he could not borrow a vehicle. Id. Mr. Amonette did, however, permit the petitioner to leave his truck at the Market. Id., slip op. at 5.
On April 5, the petitioner contacted his friend, Teresa Stallings, and asked her to photograph him, a request the petitioner had never made on any prior occasion. Id. When Ms. Stallings arrived at the petitioner's house, she noticed that the petitioner had changed his hair color; the petitioner testified that he had dyed his hair to cover his grey hair and not because he was attempting to disguise himself. Id., slip op. at 5, 10. When Ms. Stallings mentioned the victim's death to the petitioner, the petitioner claimed he had not heard the news. Id., slip op. at 5. The petitioner "appeared upset for a few minutes" and told Ms. Stallings that he and the victim "were good friends." Id. The petitioner, however, then quickly recovered and turned his attention to the photograph, which Ms. Stallings found odd. Id.
The petitioner testified that, after Ms. Stallings took the photographs of him, he went to a local drug store to have the film developed. Id., slip op. at 10. While at the store, he encountered a woman whose name he could not recall who informed him that the victim had been shot in the back of the head. Id. Later that day, Mrs. Bruff drove the petitioner to the bus station, and, while discussing the victim's death, the petitioner "mentioned that he found out one of his friends had been shot in the back of the head and killed." Id., slip op. at 8. The petitioner visited his mother in Michigan for a few days before returning home. Id., slip op. at 9. The petitioner's mother, Frances Woodring, testified that she had sent checks and money orders to the petitioner in March 2004 totaling $2600, an amount confirmed by the petitioner in his testimony. Id., slip op. at 8-9, 10.
On April 8, Mrs. Bruff spoke with detectives and stated that the petitioner "was 'in a frenzy and mad rush' when he returned to her house at 4:00 p.m. on March 29." Id., slip op. at 8. Mrs. Bruff also "acknowledged a signed statement in which she said that in her opinion the [petitioner] was 'a pathological liar' and that the [petitioner] once told her he had a gun and 'would brag that he could always get out of trouble.'" Id. On cross-examination, the petitioner "admitted that he had a habit of lying but said he was not lying at trial." Id., slip op. at 10.
On rebuttal, Agent Calahan testified that he learned of the gunshot wound to the back of the victim's head on April 1; that only three or four investigators were aware of the specifics of the victim's wounds; that no "road deputies" were aware of the wounds; and that a local newspaper article released on April 6 stated "that the victim was shot at least once in the head" but that the article "did not state that the victim was shot in the back of the head." Id., slip op. at 11. The petitioner was arrested in September 2004. Id., slip op. at 10.
A Cumberland County Criminal Court jury convicted the petitioner of first degree premeditated murder, felony murder, and especially aggravated robbery. The trial court merged the two murder convictions and imposed concurrent sentences of life and 25 years' incarceration. This court affirmed the judgments on direct appeal. See id., slip op. at 1.
On May 5, 2008, the petitioner filed, pro se, a petition for post-conviction relief. Following the appointment of counsel and the amendment of the petition, the post- conviction court held an evidentiary hearing over the course of four separate dates between July 27, 2012 and March 22, 2013. On September 12, 2012, the second date of the hearing, the trial court granted the petitioner's request to relieve post-conviction counsel and allow the petitioner to proceed pro se, although the trial court re-appointed post-conviction counsel to serve as elbow counsel to the petitioner at the third hearing on October 26, 2012. Numerous witnesses testified over the course of the four days, and we will address the testimony that is pertinent to the issues raised in this appeal.
Sherri Gregory testified that the petitioner had performed framing work for her husband, a general contractor, who had passed away in 2008. Mrs. Gregory stated that she had testified on behalf of the petitioner at his bond reduction hearing and that she would have been available to testify at the petitioner's trial but that neither trial counsel nor anyone else interviewed her or approached her about testifying. Mrs. Gregory testified that, while the petitioner was employed by her husband, the petitioner had access to credit accounts at local supply stores, that he had borrowed money from the Gregorys on occasion, and that he had never abused those privileges. On cross-examination, Mrs. Gregory admitted that she had no knowledge of the petitioner's whereabouts on March 29, 2004, or any events that transpired on that date. Mrs. Gregory acknowledged that both she and her husband would have been able to testify only to the petitioner's employment, and Mrs. Gregory was unaware of the petitioner's drug usage.
Brenda Trent, one of the victim's neighbors, testified that, on March 29, 2004, her shift ended at McDonald's at 2:00 p.m. and that she arrived at her home approximately 10 minutes later. Ms. Trent was sitting on her swing set outside her house when she saw the victim. Ms. Trent also saw the petitioner arrive at the victim's house on March 29, and she initially testified that she saw the victim alive after the petitioner had left the victim's house. On cross-examination, however, Ms. Trent admitted that, in a prior statement she gave to the petitioner's investigator, she did not mention having seen the victim alive after the ...