Court of Criminal Appeals of Tennessee, Nashville
Session November 12, 2014
Appeal from the Criminal Court for Sumner County No. 272-2013 Dee David Gay, Judge
Donald E. Dawson, Nashville, Tennessee, for the appellant, Derek Williamson.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel; and Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
The Petitioner was convicted of the June 18, 2008 first degree premeditated murder of Grady Carter. The evidence at the trial showed that the victim and Adrian Holmes had been involved romantically from 2001 until August 2007 and shared custody of their son. The Petitioner and Ms. Holmes became involved romantically in the fall of 2007 and began living together in November 2007. That same month, the victim began harassing the Petitioner with demeaning and threatening text messages, which continued until May 2008.
Three days before the crime, the victim forwarded text messages he had received from Ms. Holmes to the Petitioner. In the original messages, Ms. Holmes suggested that she and the victim reconcile and be a family. The next day, the victim and the Petitioner met at Ms. Holmes's urging to discuss the meaning of the messages. The victim told the Petitioner that Ms. Holmes had been coming to his house more often and had been staying longer when she dropped off their child. The Petitioner told the victim that he and Ms. Holmes had been having problems related to "the way she acted about her phone." The victim told the Petitioner he would never "forget it" or forgive him.
The day before the crime, the Petitioner and Ms. Holmes argued. The Petitioner decided to end the relationship and move out of their apartment, although he did not immediately move. The next day, the Petitioner and Ms. Holmes were spending the evening together at their apartment when Ms. Holmes received a text message from the victim containing a video recording of the child. The Petitioner and Ms. Holmes argued about the victim's sending her messages. The Petitioner grabbed her cell phone and threw it across the room, shattering the screen. The Petitioner punched a hole in a wall. They argued further, and Ms. Holmes called the victim and asked him to speak to the Petitioner about the matter. The Petitioner refused to speak to the victim. The victim called the Petitioner's cell phone, but the Petitioner did not answer. The victim left a threatening message. The Petitioner retrieved a loaded gun from the kitchen, told Ms. Holmes, "I hope you're happy; you just got him killed, " and left the apartment. Ms. Holmes called a relative who lived in the victim's neighborhood to warn the relative that the Petitioner was mad, had a gun, and was headed to the neighborhood. She asked the relative to get her son out of the victim's house. She also called the victim and warned him that the Petitioner was upset and had a gun.
The victim was outside his house talking angrily on the phone. He told others present that he had been waiting a long time and was going to "kick [the Petitioner's] a--." Minutes later, the Petitioner pulled in front of the victim's driveway. The victim put up his hands and asked, "What's up?" The Petitioner opened his car door, took out a gun, and fired multiple shots at the victim. The Petitioner drove away. Brandon Clark, a sheriff's deputy and a friend of the Petitioner, spoke with the Petitioner by telephone and urged him to turn himself in to the authorities. Later that evening, the Petitioner went to the sheriff's office with his mother and an attorney, and he was arrested.
A medical examiner testified at the Petitioner's trial that seven gunshot wound paths were in the victim's body. Thirteen shell casings were recovered from the scene. The jury found the Petitioner guilty of first degree premeditated murder.
In the Petitioner's appeal of the conviction, this court determined that (1) the trial court's comment to prospective jurors about first degree murder penalties was harmless error, (2) the court did not abuse its discretion in denying the Petitioner's motion for a mistrial when Mr. Clark testified that the Petitioner had been in trouble previously and that he did not think it was "the best of ideas" for the Petitioner to carry a gun, (3) the court did not err in allowing a police officer to offer lay witness testimony about marks he found on the curb at the scene being consistent with bullet ricochet marks, (4) the court did not abuse its discretion in admitting autopsy photographs, (5) the court did not err in instructing the jury on flight, (6) the evidence was sufficient to support the conviction, (7) the court did not err in denying the request for a self-defense instruction, and (8) no cumulative error existed. See State v. Derek Williamson, No. M2010-01067-CCA-R3-CD, 2011 WL 3557827 (Tenn. Crim. App. Aug. 12, 2011), perm. app. denied (Tenn. Dec. 14, 2011).
The Petitioner retained an attorney to file a post-conviction petition, but the attorney failed to file the petition within the statute of limitations. A second attorney filed an untimely petition and a motion requesting that the post-conviction court toll the statute of limitations due to the first attorney's error, and the court granted the motion.
At the post-conviction hearing, the evidence showed that the Petitioner's mother contacted counsel on the night of the crime. Counsel was present when the Petitioner surrendered to the authorities, and the Petitioner's mother retained counsel to represent the Petitioner. Within a short period of time, she also retained co-counsel. Both counsel and co-counsel testified that they never discussed who would be lead counsel and that they divided the duties, with counsel obtaining technical support to retrieve text messages from a cell phone and co-counsel hiring a private investigator and a mental health expert. Counsel and a third attorney represented the Petitioner in the appeal, with the third attorney taking primary responsibility for preparing the brief.
Regarding the day of the crime, the post-conviction evidence showed that the Petitioner worked until mid-afternoon for his stepfather, John Michael McKinnon. After work, the Petitioner, Mr. McKinnon, and a co-worker drank two twelve-packs of beer on their way to Mr. McKinnon's house, where they continued drinking. At some point, the Petitioner went to the apartment he shared with Ms. Holmes. When asked about the Petitioner's sobriety when he left, Mr. McKinnon testified that the Petitioner seemed "fine."
Roger Williamson, the Petitioner's father, testified about an incident before the crime in which the victim followed the Petitioner home and "cut a tailspin" in the driveway. He encouraged the Petitioner to file a complaint with the sheriff's department. He said that while they waited for the sheriff's department to arrive, the Petitioner let him listen to recordings on the Petitioner's cell phone of "threats and stuff" from the victim. He said he was concerned for the Petitioner's safety.
Mr. Williamson testified that he paid part of the attorney's fees for the trial and that he paid the fees for the appeal. He said co-counsel asked him shortly before the trial to pay the fees for a mental health expert, and he agreed. He said he asked counsel immediately after the crime if the Petitioner should see a doctor. He said that he would have paid for additional investigation or experts if he had been asked and that he was paying for the post-conviction case. He said counsel and co-counsel never talked to him about the Petitioner's childhood or any issues the Petitioner might have had. He said he would have testified if he had been asked.
John Michael McKinnon testified that he was living with the Petitioner's mother, Maria Creasy, at the time of the crime. He said that neither counsel, co-counsel, nor their representatives contacted him about the Petitioner's actions on the day of the crime. He said they never asked if the Petitioner had been drinking that day or inquired about the Petitioner's relationship with Ms. Holmes before that day. He said he would have talked to them if they had asked for information.
Maria Creasy, the Petitioner's mother, testified that before the crime, the Petitioner confided in her about his relationship with Ms. Holmes. She said the couple's problems escalated in May and June 2008. She was aware of the problems the Petitioner had with the victim. She said the Petitioner was fearful and frustrated because he did not understand what to do. She said the Petitioner typically carried a gun.
Ms. Creasy testified that the Petitioner started a new job on June 16, 2008, and that she was unable to reach him on June 17, which she understood was because he was in bed due to Ms. Holmes's "bickering at him all day." She said that on the morning of June 18, the Petitioner came to her house and said he wanted to work with Mr. McKinnon and that Mr. McKinnon agreed.
Ms. Creasy testified that the Petitioner, Mr. McKinnon, and another man came to the house after work. She said everyone was drinking. She said that Ms. Holmes kept calling and that the Petitioner was reluctant to leave but eventually went home. She said that after she learned of the shooting, she contacted the Petitioner. She also contacted counsel, who met her and the Petitioner at the sheriff's department. She said she hired both counsel and co-counsel to represent the Petitioner.
Ms. Creasy testified that co-counsel initially stated that his attorney's fee would be $25, 000, which she paid. She said she requested an invoice and received one dated July 2, 2008 that stated the amount did not include investigative fees or third-party expenses. She said co-counsel kept requesting more money, and she kept paying him. She said she paid him $15, 000 on September 26 and $10, 000 on October 22. She assumed co-counsel was paying the investigators from the $50, 000 she had paid at this point. She said she received a December 3 invoice that stated she had paid a flat fee of $30, 000. She paid an additional $5, 000 on February 13, 2009, after co-counsel told her she still owed him. She said he stated she would be charged a fee if she did not pay the balance. She said she had to ask repeatedly to receive invoices reflecting her payments and was never given a retainer letter. She provided documentation of her payments, which were received as exhibits. She said that she was unable to get a clear answer about the money she paid co-counsel and that he was difficult to reach.
Ms. Creasy testified that co-counsel told her a civil case he filed against the victim's estate was part of his strategy for handling the criminal case and that he did not expect to prevail in the civil case. She said that he never told her there would be additional attorney's fees and expenses for the civil case and that he never asked for attorney's fees for a civil case the victim's estate filed against the Petitioner.
A private investigator testified that he had no difficulty obtaining Brandon Clark's personnel records from the Sumner County Sheriff's Department. The records, which related to off-duty conduct, were received as an exhibit.
Co-counsel testified that he charged the Petitioner's mother a $50, 000 flat fee to represent the Petitioner. He did not remember the fee for the civil case. He did not know how the expenses for the investigator and the expert were billed.
Co-counsel testified that he filed a civil complaint alleging intentional infliction of emotional distress and assault on the Petitioner's behalf against the victim's estate. He said he filed the civil complaint to be "consistent" with the defense in the criminal case, but he denied the sole purpose of the civil litigation was to take depositions. He acknowledged the civil case provided more opportunity for discovery than the criminal case. He thought some of the depositions were taken but said he did not have any transcripts. He said that the deponents were the victim's neighbors and that he was interested in knowing whether the victim had a weapon. He said the deponents provided additional names of witnesses that were given to Chrystal Waltz, the private investigator. He acknowledged the date reflected in the deposition notices, which was about one month before the criminal trial.
Co-counsel testified that the victim's estate filed a lawsuit against the Petitioner and that he did not know if the second civil suit would have been filed if he had not filed the first one. He acknowledged that in the case filed by the estate, sanctions were requested for his and the Petitioner's failure to appear at a deposition.
Co-counsel testified that he worked with the investigator to obtain information and statements. He said he did a substantial amount of legal research on possible defenses and the effect of the victim's continuing threats. He said that he communicated consistently with counsel and that as the trial date approached, they spent more time on the case because an attorney must dedicate his or her entire practice to a case about to be tried. He acknowledged that cell phone records were subpoenaed on the Friday before the trial started the following Monday.
Co-counsel testified that the defense wanted to show that due to ongoing pressure and conflict with the victim, the Petitioner reacted because he perceived a real and present threat. He said they wanted to show that when the Petitioner arrived at the victim's home, he felt compelled to defend himself. He said that he and counsel did not obtain a mental health expert initially because they concluded from their own observation of the Petitioner and analysis of the case that diminished capacity was not an appropriate defense.
Regarding the decision to consult a mental health expert shortly before the trial, co-counsel testified that he hired Dr. Stephen Montgomery to evaluate the Petitioner. He did not recall what documents he provided Dr. Montgomery and said he spoke to him before and after the evaluation for more than five minutes. He did not recall Dr. Montgomery's diagnosis of the Petitioner but said the doctor's testimony would not have supported a diminished capacity defense. He said he and counsel filed a notice of intent to offer expert mental health testimony and thought the trial court ruled that it was untimely. Exhibits were received reflecting defense filings about a week before the trial began relative to mental health evidence. He thought the possibility of expert proof was not mentioned at the June 29 pretrial conference because the evaluation was scheduled for the following day. He said the delay in obtaining the evaluation was due to continually evolving trial strategy. He said that he thought calling a mental health expert would have been a risk and that successful cross-examination of a defense expert could show that the Petitioner was not "feeling as bad" as the defense tried to portray and could "gut" the defense. He did not think it was a "body blow" to the defense that Dr. Montgomery did not testify.
Co-counsel testified that to the best of his recollection, the discovery information indicated the Petitioner was angry and drinking before he left his apartment. He said that Mr. McKinnon was interviewed and that he was sure Mr. McKinnon was asked if Mr. McKinnon and the Petitioner drank after work. He said he and counsel never had any indication the Petitioner had been intoxicated. He said that he cross-examined Ms. Holmes about a text message stating that the Petitioner was intoxicated on the night of the crime and that she professed no recollection of having sent the message. He agreed that Brandon Clark and the Petitioner were friends and that Mr. Clark did not want to testify against the Petitioner. He said that after interviewing the Petitioner, he did not think alcohol use or intoxication were issues and noted that the Petitioner was physically fit and "worked out" a lot.
Co-counsel testified that he met with post-conviction counsel and a private investigator but acknowledged he had not returned several telephone calls from post-conviction counsel. He recalled post-conviction counsel's providing a release signed by the Petitioner for co-counsel's file from the conviction proceedings, but he did not recall whether he ever provided it. He said that he had looked for it and that the file could have been lost in a move.
Counsel testified that he was retained first and that he was surprised when the Petitioner's family hired co-counsel shortly thereafter. He said he had the impression initially that they considered co-counsel to be lead counsel, although he thought their expectation changed over time. He said he hired a technical person to access the information from the Petitioner's cell phone, but he did not recall the person's attempting to record the Petitioner's voice messages. He said he relied on co-counsel to direct the private investigator's work, and he thought he talked to the investigator at some point. He said co-counsel handled the contact with the mental health expert and acknowledged that they should have involved a mental health expert sooner, although he said he did not know if it would have made a difference. Counsel said that in hindsight, he was the more experienced attorney and should have taken the responsibility to obtain an expert earlier. He said no reason existed for the delay in consulting an expert. Regarding a notice of intent to use a mental health expert he filed on July 9, 2009, he stated that he filed it as soon as he knew the defense might offer expert testimony. He acknowledged that the State objected to the notice and that the defense withdrew it on the first day of the trial. He said co-counsel told him Dr. Montgomery was not going to say anything helpful for the defense. He said he met with co-counsel at co-counsel's office a couple of times and at the courthouse. He did not recall co-counsel's coming to counsel's office but said co-counsel might have.
Counsel testified that he visited the Petitioner at the jail several times. He did not know how many times but said it might have been as many as twelve. He tried to obtain information from the Petitioner, and closer to the trial, he reviewed the Petitioner's potential testimony with him. He did not recall if the Petitioner wrote to him expressing concern about being ready for trial.
Counsel testified that Brandon Clark was an important witness because Mr. Clark said in a written statement that the Petitioner had stated the shooting was premeditated. He thought in retrospect that the ...