Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville December 9, 2014
Appeal from the Criminal Court for Davidson County No. 2010-D-3048 Cheryl A. Blackburn, Judge
Elaine Heard, Nashville, Tennessee, for the petitioner, David Lee Leggs.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Glenn R. Funk, District Attorney General; Bret T. Gunn, Assistant District Attorney General, for the respondent, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
On July 27, 2010, Petitioner was indicted by the Davidson County Grand Jury of four counts of aggravated robbery, one count of attempted first degree murder, one count of possession of a firearm during the commission of a dangerous felony, and one count of being a convicted felon in possession of a firearm. Those charges arose from Petitioner's participation in an armed robbery of three individuals outside of a Korean restaurant in West Nashville.
After a jury trial, Petitioner was convicted of three counts of aggravated robbery. The jury acquitted Petitioner of the other aggravated robbery charge and could not reach a verdict on the remaining counts, which were later dismissed. Petitioner received an effective sentence of fifty years' imprisonment to be served at 100% because he was determined to be a persistent offender. Petitioner's sentence, the propriety of which was the only issue raised on direct appeal, was affirmed by this Court. State v. David Lee Leggs, No. M2012-00136-CCA-R3-CD, 2012 WL 6097274, at *1 (Tenn. Crim. App. Dec. 7, 2012), perm. app. denied (Tenn. Mar. 20, 2013).
On August 19, 2013, Petitioner filed a pro se petition for post-conviction relief, and counsel was appointed to assist Petitioner. An amended petition was filed on October 30, 2013, in which Petitioner argued that he received ineffective assistance of counsel at trial. Specifically, Petitioner complained that trial counsel: (1) failed to consult with him during critical stages of the trial process; (2) failed to adequately advise him about his decision to testify; (3) improperly questioned him during the direct examination of his testimony; (4) failed to diligently pursue a motion to suppress his statement to police; and (5) failed to properly investigate witnesses.
The post-conviction court held an evidentiary hearing on December 11, 2013, during which Petitioner and trial counsel offered the only testimony. Petitioner testified that he was unhappy with trial counsel's representation, although it was "all right" in the beginning. Trial counsel would not file pre-trial motions as requested by Petitioner, would not communicate with Petitioner at court appearances, and engaged in "several altercations" with Petitioner on the occasions when they actually met. These altercations entailed raised voices, "harsh language, jackets pulled off, [and] a lot of that stuff." Petitioner clarified that by "altercation" he meant "an argument that almost led into a fight" with trial counsel. On one occasion, trial counsel laughed at Petitioner and refused to file "motions for misidentification, photo lineup, and certain motions like that." Petitioner felt that his identification was a significant issue in his case. Trial counsel also refused to file a motion for a bond reduction because it would be denied by the trial court. The only motion that Petitioner recalled trial counsel filing was a motion to dismiss, which was denied by the trial court.
Petitioner asked trial counsel to withdraw his representation, but trial counsel never filed a formal motion to do so with the court. Eventually, Petitioner personally asked the court to remove trial counsel because the attorney-client relationship "went downhill" and was "bad." However, that request was denied.
At trial, Petitioner testified in his defense. Petitioner admitted that trial counsel discussed this decision with him. Petitioner initially intended not to testify because trial counsel warned him that the prosecution would cross examine him on his criminal history. Ultimately, however, Petitioner decided to testify because trial counsel explained to him that it might "look bad" to the jury if he did not and that it also might help if he explained to the jury "what happened with the situation." During the direct examination of Petitioner, trial counsel inquired about his criminal history, which Petitioner felt was "real weird."
During cross-examination, Petitioner said that he could not recall trial counsel filing a motion to suppress Petitioner's statement to police. However, the post-conviction judge affirmed that a suppression hearing was held on October 3, 2011, a transcript of which was included in the court file. Petitioner acknowledged that the statement at issue contained his admission that he "had gotten into it with the owner of the restaurant and had . . . a fight with him and took his wallet and money." When the State questioned Petitioner about the kind of motion that he wanted trial counsel to file, Petitioner stated that he wanted a motion "to suppress [their] misidentification, " referring to "when [a victim] got on the stand and said [he or she] couldn't see the person who robbed [him or her]." Petitioner admitted that identification by photographic lineup had not occurred in his case. Petitioner could not articulate a legal basis "to stop [the victims] from coming in and saying what they saw and whether or not they thought it was [Petitioner] that robbed them" other than "because they identified the wrong person."
Regarding his decision to testify, Petitioner admitted that trial counsel had discussed the decision with him. Petitioner explained, "He told me I had a choice not to do it or to do it." Trial counsel advised Petitioner that, by testifying, he could give the jury an alternative to the victims' version of the ...