Court of Criminal Appeals of Tennessee, Knoxville
Session Date October 21, 2014
Appeal from the Circuit Court for Cumberland County No. 8358-B Leon C. Burns, Jr., Judge
Harvey Douglas Thomas, Algood, Tennessee, for the appellant, David Dewayne Smith.
Robert E. Cooper, Attorney General and Reporter; Renee W. Turner, Senior Counsel; and Joseph D. Baugh, Special Prosecutor, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
Following a jury trial, the Petitioner, David Dewayne Smith, was convicted of first degree premeditated murder and conspiracy to commit first degree murder. He received concurrent sentences of life for the first degree murder conviction and 20 years for the conspiracy conviction. This Court affirmed his convictions on appeal, and the Tennessee Supreme Court declined review. State v. David Dwayne Smith, No. E2007-00084-CCA-R3-CD, 2009 WL 230696 (Tenn. Crim. App. Feb. 2, 2009) perm. app. denied (Tenn. Aug. 17, 2009).
The Petitioner filed a timely petition for post-conviction relief claiming ineffective assistance of counsel. After a hearing, the post-conviction court denied the Petitioner's request for relief. On appeal, the Petitioner challenges the denial of post-conviction relief, alleging that he received ineffective assistance of counsel based upon trial counsel's failure to: (1) object on due process grounds when the State announced that it had entered a plea agreement with the Petitioner's co-defendant and the co-defendant would testify against the Petitioner; (2) object to the violation of the sequestration rule when the Petitioner's co-defendant testified after having watched the majority of the State's proof as a co-defendant; (3) call Lisa Regan as a witness to establish her as a potential suspect for the murder; (4) ensure the trial record included arguments concerning the admissibility of a video made by the Petitioner's investigator; (5) object to various incidents of prosecutorial misconduct; (6) interview Ellison Watson or call him as a witness in order to establish an alibi defense; (7) perform a handwriting analysis of the signature on a scale ticket entered into evidence; (8) object to the State's presentation of trial testimony during its closing arguments; (9) object to portions of Tonya Mansel's testimony as uncorroborated hearsay; (10) follow through with an objection he made about the State's leading Ms. Mansel in her testimony or raise the issue on appeal; (11) impeach the State's witnesses or have their testimonies declared inadmissible because the State admitted that their witnesses were withholding evidence and not telling "the whole story;" and (12) object to the variance between the bill of particulars and the proof the State presented at trial. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.
Factual and Procedural Background
A detailed summary of the evidence presented at trial can be found in this Court's opinion from the Petitioner's direct appeal. David Dwayne Smith, 2009 WL 230696, at *1-*11. We will restate the facts as necessary to this appeal. The Petitioner was indicted, along with three other individuals, for first degree premeditated murder and conspiracy to commit first degree murder. Id. at *1. Prior to trial, the State entered a nolle prosqeui as to the charges against co-defendant Ellison Watson. Id. Also prior to trial, the State entered into a negotiated plea agreement with co-defendant Anthony Underwood. Id. Pursuant to this plea agreement, Mr. Underwood entered a plea to a lesser-included offense and agreed to testify against the remaining two co-defendants, the Petitioner and Mitchell Hunter Oakes. Id.
At trial, Mr. Underwood testified that on the night of the murder he, Mr. Oakes, and the Petitioner drove a Cadillac to the victim's home with the goal of scaring the victim. Id. at *4. Before leaving for the victim's house, the Petitioner "pulled a 'do-rag' over his head and put on a pair of surgical gloves, a long-sleeved shirt, and work gloves over the surgical gloves. [The Petitioner] then duct taped the working gloves into the sleeves of his shirt." Id. Mr. Oakes was carrying a pistol. Id. The group drove past the victim's house twice. Id. At the foot of a hill near the victim's house, the Petitioner asked to be let out of the car. Id. The Petitioner exited the car with a .44 pistol and walked into the woods. Id. Mr. Underwood said he and Mr. Oakes drove around for about 20 minutes before the Petitioner returned to the area where he had exited the car. Id. When the Petitioner got back into the car, he said, "It's done, it's taken care of." Id. The group then returned to Mr. Oakes's residence, where the Petitioner showed them that there was one spent round in the gun's chamber. Id. The next morning, they disposed of the weapon. Id.
Two days into the trial, the State entered into a negotiated plea agreement with Mr. Oakes wherein he would plead guilty to the lesser-included offense of solicitation of second degree murder in exchange for his testimony against the Petitioner. Id. at *1. The trial court granted the State's motion to sever Mr. Oakes from the Petitioner, and Mr. Oakes was sequestered. Mr. Oakes then testified as the State's final witness in its case-in-chief. Following Mr. Oakes's direct examination, in which Mr. Oakes identified the Petitioner as the triggerman, the trial court recessed until the next morning to allow trial counsel time to prepare his cross-examination. Trial counsel had about 18 hours to prepare for his cross-examination.
At the conclusion of trial, the jury convicted the Petitioner of first degree premeditated murder and conspiracy to commit first degree murder. The Petitioner received concurrent sentences of life imprisonment for first degree premeditated murder and 20 years for conspiracy to commit first degree murder. This Court affirmed the convictions on direct appeal. Id. at *1.
Post Conviction Proceedings
The Petitioner filed a pro se petition for post-conviction relief. Post-conviction counsel was appointed, and an amended petition was filed. In the amended petition, the Petitioner argued that he was denied effective assistance of counsel and listed the 12 grounds enumerated above to support his claim.
At the post-conviction relief hearing, trial counsel testified that he represented the Petitioner during the trial and on direct appeal. Trial counsel stated that before trial, he had reviewed a prior statement Mr. Oakes had made to investigators and gone over it with the Petitioner. He further testified that on the third day of the trial the State announced that it had entered into a plea agreement with Mr. Oakes and that Mr. Oakes would testify against the Petitioner and identify the Petitioner as the person who killed the victim. The State also provided trial counsel with a written statement of Mr. Oakes's proposed testimony. At that point, trial counsel asked the court to grant a mistrial, but the court denied his request. Trial counsel then asked for a continuance. The court denied his motion but agreed to recess after Mr. Oakes's direct examination until 9:00 a.m. the following day so that trial counsel could review Mr. Oakes's written statement and prepare his cross-examination.
Trial counsel did not object to Mr. Oakes's testifying on behalf of the State, and he did not ask the trial court for another continuance when he returned to court the next morning. Trial counsel testified that he did not file a written motion for mistrial after the court denied his oral request because he felt that his time was better spent preparing for the cross-examination of Mr. Oakes.
Trial counsel testified that he was able to identify a number of inconsistencies between the prior statement Mr. Oakes gave to police and the statement he had given the State, as well as some inconsistencies between Mr. Oakes's statements and Mr. Underwood's testimony. Trial counsel stated that he could have benefitted from extra time to conduct further investigations into these inconsistencies. However, trial counsel was able to conduct a rigorous cross-examination of Mr. Oakes based on the inconsistencies he identified.
Trial counsel further stated that he did not argue that allowing Mr. Oakes to testify would violate the sequestration rule because the rule did not apply to Mr. Oakes while he was a co-defendant.
Additionally, trial counsel testified that he had been aware Lisa Reagan was the victim's girlfriend, and there were allegations that she had been abused by the victim. He stated that he considered calling Ms. Reagan as a witness to establish her as a possible suspect for the murder. However, when trial counsel discussed this defense strategy with the Petitioner, the Petitioner instructed trial counsel to "go along with" Mr. Oakes's defense strategy. Ultimately, trial counsel elected not to call Ms. Reagan as a witness. Ms. Reagan had provided a number of statements to law enforcement, the Petitioner's investigator, and trial counsel, and those statements were largely inconsistent. Trial counsel testified that he was uncertain what Ms. Reagan would say on the stand, and once Mr. Oakes testified against the Petitioner, trial counsel did not want to risk placing her on the stand and having a third person accuse the Petitioner of committing the murder. Additionally, trial counsel stated that he would not have asked the court for a continuance to interview Ms. Reagan because, no matter how many statements she gave, he "never would have been comfortable with what she would say if you put her on the witness stand." He further stated that he did not enter Ms. Reagan's written statements into evidence because they were hearsay.
Trial counsel testified that he hired Rick Berry, a private investigator, to help him investigate the case. As part of that investigation, Mr. Berry reviewed Mr. Underwood's statement. Mr. Underwood claimed that, on the night of the murder, the Petitioner was dropped off on a road some distance from the victim's home after dark and that the Petitioner walked up a hill through the woods to reach the victim's house. Mr. Berry and trial counsel discovered that based on the weather report and moon phases on the night of the murder, there was little to no moonlight. Further, there were no lights near the route that the Petitioner was alleged to have walked to get to the victim's house. Mr. Berry and trial counsel went to the location where Mr. Underwood stated the Petitioner was dropped off around the same time of night the murder occurred in order to see if they could get to the top of the hill and back in the time frame established by Mr. Underwood's statement. They also documented this excursion on video. The video was offered at trial for identification purposes but was not admitted into evidence. Trial counsel testified that the trial court ruled that it was not admissible because there was no way to determine that the conditions in the video were the same as the conditions on the night of the murder.
Trial counsel testified that he never interviewed Ellison Watson, one of the three individuals originally indicted with the Petitioner, because the Petitioner had indicated that Mr. Watson's testimony would be adverse to the Petitioner's defense. Trial counsel again testified that the Petitioner instructed him to "go along" with Mr. Oakes's defense strategy. Additionally, trial counsel did not interview Mr. Watson after Mr. Oakes testified because the Petitioner had convinced him that Mr. Watson's testimony would not be helpful. Further, trial counsel was concerned that Mr. Watson's testimony would undermine favorable testimony from other witnesses.
Trial counsel noted that the car the defendants drove on the night of the murder was sold as scrap, and the scale ticket was allegedly signed by the Petitioner. However, the Petitioner told trial counsel that he never signed the scale ticket. Trial counsel admitted that he did not have the signature on the scale ticket analyzed by a handwriting expert. Instead, he obtained a copy of the Petitioner's driver's license, as well as several other documents containing the Petitioner's signature. Trial counsel testified that he compared the signature on the scale ticket with the Petitioner's known signatures, and the signatures "didn't look anything alike." Trial counsel believed that the jury could compare the signature on the scale ticket to other examples of the Petitioner's signature and see that they were different without the aid of expert testimony.
Although trial counsel had wanted to show the jury the differences between the signatures, the Petitioner instructed him not to introduce the evidence at trial. Instead, the Petitioner told trial counsel to go along with Mr. Oakes's defense strategy.
Trial counsel recalled that Lisa Mansel testified at trial that she had seen the Petitioner at a social gathering sometime after the murder. Ms. Mansel testified that the attendants of the social gathering had been discussing the murder, and when the attendants turned to look at the Petitioner, he grinned. According to trial counsel, when Ms. Mansel asked the Petitioner if he had killed the victim, the Petitioner responded, "I didn't feel a damn thing." Trial counsel stated that he discussed this statement with the Petitioner, and the Petitioner explained that he was referring to himself when he made that statement.
The Petitioner did not include a complete copy of Ms. Mansel's trial testimony in the post-conviction record. However, on direct appeal this Court outlined the relevant portion of her testimony as follows:
During this [social gathering], Ms. Mansel asked the group in general if they had "heard about the murder across the mountain, " and Ms. Mansel commented that she "heard it was execution style." According to Ms. Mansell, [the Petitioner] responded, "He didn't feel a damn thing." Ms. Mansel asked [the Petitioner], "Damn, did you do it." Ms. Mansel stated that Lynn Watson said at that point, "Drop it." Defense counsel objected to the statement as hearsay, and his objection was sustained by the court. Ms. Mansel then testified as follows:
MS. MANSEL: He–he didn't respond, [the Petitioner] didn't respond. He kind ...