Assigned on Briefs January 6, 2015
Appeal from the Circuit Court for Rutherford County No. 68965 M. Keith Siskin, Judge
Stephen W. Pate, Murfreesboro, Tennessee, for the Petitioner, Gary Wayne Bush.
Robert E. Cooper, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn and Roger A. Page, JJ., joined.
CAMILLE R. MCMULLEN, JUDGE
This case stems from the shooting death of the victim, Lynn Orrand, on January 16, 1982. See State v. Candance Orrand Bush and Gary W. Bush, No. M2010-00186-CCA-R3CD, 2011 WL 2848266 (Tenn. Crim. App. July 18, 2011), perm. app. denied (Tenn. Nov. 17, 2011). At the time, the victim was married to the Petitioner's current wife and co-defendant, Candance Orrand Bush. Id at *1. The murder remained unsolved for over twenty-five years until police received information in March 2007 that implicated Kevin Patterson, the victim's brother-in-law. Id at *4. Mr. Patterson, who was seventeen years old at the time of the shooting, pled guilty to second degree murder in March 2008 and received a twenty-five-year sentence. Id Based on Mr. Patterson's confession and a subsequent police investigation, the Petitioner and Candance were indicted for first degree murder. After a joint trial in which Mr. Patterson served as a key witness, the Petitioner and his wife were convicted as charged on September 16, 2008. Id A full recitation of the underlying facts can be found in this court's opinion on direct appeal. See id. at * 1-12.
The evidence at trial established that the Petitioner and Candance worked together and began having an affair. Id at *4. In the fall of 1981, Candance introduced her younger brother, Mr. Patterson, to the Petitioner and began asking Mr. Patterson to kill the victim. According to Mr. Patterson, Candance said she wanted her husband killed because "she couldn't divorce him because he wouldn't leave her alone." Id Mr. Patterson later asked his friend Jason Riley if he wanted to kill someone for $5, 000. Id. at *5. After a meeting between Mr. Riley, Mr. Patterson, and the Petitioner, Mr. Riley hid in the victim's garage on November 18, 1981, and struck him in the head with a "tire tool." Id at *9. Mr. Riley fled the scene when the attack failed to render the victim unconscious. Id After the unsuccessful attempt on the victim's life, Mr. Patterson fatally shot the victim on the morning of January 16, 1982, while the victim was deer hunting. Id at *6.
At trial, the State presented multiple witnesses to corroborate Mr. Patterson's testimony. See id at *8-12. The proof from the Petitioner's trial most relevant to the issues raised in his petition for post-conviction relief pertains to recorded phone calls between Mr. Riley, Mr. Patterson, and the Petitioner. In its opinion on direct appeal, this court summarized the evidence as follows:
When the investigation was reopened in 2007, the police asked Mr. Riley to make a controlled phone call to [Mr. Patterson]. The phone call was recorded and monitored by the police. Mr. Riley told [Mr. Patterson] that the police were asking him questions about the murder. [Mr. Patterson] told Mr. Riley that he "didn't have nothing to do with the f-----g s--t." When Mr. Riley brought up the attack on [the victim] in the garage, [Mr. Patterson] said that he did not "even know what you're talking about now, " that he did not "know nothing about nothing, " and that would "be the last word I'll say when I die." [Mr. Patterson] testified that he denied everything to Mr. Riley because he assumed his phone was taped. A day after making the controlled call to [Mr. Patterson], Mr. Riley received a telephone call at work. The caller did not identify himself, and Mr. Riley did not recognize the voice. The caller said that he knew Mr. Riley had an upcoming interview with the police and told him "the best thing to do is stay calm, stay cool" and "[d]on't tell them nothing." Mr. Riley informed Detective [Jim] Tramel [of the Rutherford County Sheriff's Department] about the phone call and what the caller had said. Detective Tramel set up another controlled call, provided Mr. Riley with two phone numbers, and told Mr. Riley that they were for [the Petitioner]'s home and cell phones. Mr. Riley called the home number first and got no answer. Mr. Riley then called [the Petitioner]'s cell phone and spoke to a man. The phone call was recorded, and Mr. Riley testified that the recording played at trial was the phone call he made to the number Detective Tramel provided him.
At the beginning of the phone conversation, Mr. Riley asked for "Gary." [The Petitioner] responded "Yeah." Mr. Riley told [the Petitioner] that he was in his truck and calling him because the police just left his workplace after interviewing him. [The Petitioner] told Mr. Riley that he did not "need to talk on that phone" because the police "can pick them up on a scanner." After reassuring [the Petitioner] that the police were not close enough to monitor the call, Mr. Riley asked [the Petitioner] "what do you want to do." [The Petitioner] responded that he did not "want to do nothing" and that Mr. Riley needed to "[j]ust stay cool like I told you." [The Petitioner] told Mr. Riley that the police were "gonna aggravate you for a while" and that Mr. Riley "better do" what he told him. Mr. Riley testified that he recognized [the Petitioner]'s voice as the voice of the earlier caller and that he "knowed right off the bat who it was." However, Mr. Riley testified that he "couldn't put a name to" the voice but that he could identify the voice as the same person who called him at work. After listening to a portion of the recording, Detective Tramel, Terry Orrand, and [Christy] Rawls were all able to identify [the Petitioner]'s voice as the person speaking with Mr. Riley. Detective Tramel also testified that he was present during the recording of the phone conversation and that the voices belonged to Mr. Riley and [the Petitioner]. A day after the controlled call, Mr. Riley got another phone call from [the Petitioner] in which [the Petitioner] asked how the police interview went and told Mr. Riley to "lose his phone number" and "don't say nothing to nobody."
Id. at *11-12. Both the Petitioner and his wife were sentenced to life imprisonment for their first degree murder convictions, and they appealed to this court. See id. at *1. On direct appeal, the Petitioner argued that the evidence was insufficient to support his conviction and that the trial court erred by admitting into evidence the recording of the phone call between the Petitioner and Mr. Riley. Id at *1. The Petitioner further asserted that the trial court erred by failing to select alternate jurors in plain view. Id. This court concluded that because both the Petitioner's voice and the recording of the call were properly authenticated, the trial court did not abuse its discretion in admitting the recording into evidence. Id at *16. This court affirmed the Petitioner's conviction, and the Tennessee Supreme Court denied his application for permission to appeal on November 17, 2011.
On November 13, 2012, the Petitioner filed a timely pro se petition for postconviction relief alleging numerous grounds of ineffective assistance of counsel. He later filed an amended pro se petition on November 29, 2012. Following the appointment of counsel, the Petitioner filed a second amended post-conviction petition. The postconviction hearings occurred on January 8, 2014, and March 4, 2014.
Post-Conviction Hearings. Trial counsel testified that he and his father, co-counsel, were retained shortly after the Petitioner was arrested for first degree murder. At the preliminary hearing, trial counsel was the attorney of record. He agreed that Mr. Patterson confessed to the police and implicated the Petitioner. He stated that the audio recording of the Petitioner's phone call with Mr. Riley was "the most damaging piece of evidence" against the Petitioner. Trial counsel agreed that the Petitioner never identified himself in the call and that Mr. Riley received immunity from prosecution. He was also aware that the Petitioner had no criminal history prior to this case. Trial counsel acknowledged that throughout his representation, the ...