Session November 4, 2014.
Appeal from the Criminal Court for Shelby County No. P27092 Glenn Ivy Wright, Judge.
Marty B. McAfee, Memphis, Tennessee, for the appellant, Matrin Becton.
Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
Thomas T. Woodall, P.J.
Facts Developed at Jury Trial
Pertinent facts which led to Petitioner's convictions are quoted herein from this court's opinion in Petitioner's direct appeal.
On August 29, 1997, Veronica Johnson was celebrating her birthday at the L & B Lounge in Memphis. Ms. Johnson testified that nine or ten members of the "Gangster Disciples" forced Devin Haywood, a mentally challenged man, to his knees at gunpoint and began to beat him. Marshall Shipp, the victim in this case, pushed the gang members away from Mr. Haywood and told them to leave him alone. The gang members and the victim, who was also a member of the Gangster Disciples, began to argue. Ms. Johnson testified that the victim was told that he was "no longer a Gangster Disciple" and that he had "signed his death certificate."
Cheryl Patrick, the victim's girlfriend, testified that on September 15, 1997, the victim came to her house and together they went to a Laundromat on Third Street and then to the L & B Lounge. At the L & B Lounge the victim and Ms. Patrick were confronted by 13 to 20 men. The men told the victim that they needed to talk with him in private and that he should come with them. The victim offered to follow the men in his car, but they insisted that one of their own ride in the victim's car with him and Ms. Patrick. Ms. Patrick testified that one of the men who confronted the victim was [Petitioner]. Ms. Patrick further stated that [Petitioner] was armed with a black, semi-automatic pistol. The victim, Ms. Patrick, and one of the gang members got into the victim's car. The victim then took Ms. Patrick home and followed [Petitioner] and the rest of the men.
Ricky Aldridge, the victim's cousin and also a Gangster Disciple, testified that members of the gang were required to follow certain rules or be punished. Some of the punishments included 3 minute beatings, 6 minute beatings, and death. Ricky Aldridge stated that the victim, while a member of the gang, did not participate in gang activities. Ricky Aldridge further stated that on September 15 several members of the Gangster Disciples inquired as to the whereabouts of the victim. He testified that the gang members were considering putting both he and the victim on "violation" for a previous incident. Eventually, several gang members approached Ricky Aldridge and his brother Timothy Aldridge. The gang members took them to the apartment of a man called "Tombstone, " the "governor" of a Memphis sect of the Gangster Disciples. Ricky Aldridge testified that he went with the gang members because he feared for the safety of his family if he refused. The victim was in the apartment when Ricky Aldridge arrived, along with some twenty members of the Gangster Disciples, several of whom were armed with automatic weapons.
The gang members discussed the punishments to be given to the victim and Ricky Aldridge. Tombstone told [Petitioner] to decide on and inflict a punishment. [Petitioner] then ordered all of the gang members, the victim, and Ricky Aldridge into three waiting vehicles. The vehicles drove through several neighborhoods, eventually stopping at a gas station where Ricky Aldridge was approached by Defendant Sykes and told to empty his pockets. Ricky Aldridge gave Defendant Sykes approximately twenty dollars and noticed that Defendant Sykes was wearing a gold herring-bone necklace and coin ring that the victim had previously been wearing. The vehicles were then driven to DeSoto Park where the victim and Ricky Aldridge were grabbed by the back of the pants and forced to walk up a steep hill.
Once on top of the hill, the gang members, including [Petitioner and Defendant Sykes], encircled the victim and began to beat him with their fists. The gang members beat the victim for fifteen minutes. Eventually, the gang members began using a baseball bat and a tire iron to beat the victim. Specifically, Ricky Aldridge testified that Defendant Sykes beat the victim with a baseball bat until [Petitioner] took the bat from him, told him he was not using it properly, and then [Petitioner] began to beat the victim around the head with the bat. The victim was rendered unconscious early in the assault and lay motionless as the gang members continued to beat him. When the gang members finished with the victim, they turned to Ricky Aldridge and beat him with their fists for approximately six minutes. After beating Ricky Aldridge, Defendant Sykes once again turned his attention to the victim, stripping the victim of his pants and underwear. Ricky Aldridge then noticed that Defendant Sykes had a gun. Shortly thereafter, as Ricky Aldridge was being helped back down the hill, he heard a gunshot on the hill from the direction where the victim lay. Immediately after the gunshot, [Petitioner and Defendant Sykes] came from the direction of the gunshot and began walking down the hill. Ricky Aldridge testified that [Petitioner and Defendant Sykes] were the only people in the area from which the gunshot came, and Defendant Sykes had a gun in his hand moments after the shot was fired. Ricky Aldridge and the gang members then left the scene.
Ricky Aldridge returned later with Patrick Owen to find the victim severely injured, but still alive. They placed the victim in the backseat of Patrick Owen's girlfriend's car. Patrick Owen's girlfriend, Sharon Grafton, then called police and medical personnel. Ms. Grafton testified that the victim had been beaten severely and was bleeding profusely. She also testified that the victim was naked from the waist down. Ms. Grafton also testified that the victim had previously told her that he wanted to disassociate himself from the gang.
Timothy Aldridge, the brother of Ricky Aldridge, cousin of the victim, and also a Gangster Disciple, testified that he accompanied Ricky Aldridge to the gang meeting at the home of "Tombstone." Timothy Aldridge testified that [Petitioner and Defendant Sykes] were present at the meeting, and Defendant Sykes was armed with a .45 caliber pistol. Timothy Aldridge further testified that at the conclusion of the meeting [Petitioner] announced that he would handle the punishments of the victim and Ricky Aldridge. Timothy Aldridge stated that he rode to DeSoto park in the same car as the victim and was present when Defendant Sykes ordered the victim to take off his jewelry. Timothy Aldridge then saw Defendant Sykes put on the jewelry. Timothy Aldridge continued to testify about the severe beating incurred by the victim, and he admitted that, because of his fear of the other gang members, he feigned participation in the attack by "pretending" to hit the victim. Timothy Aldridge was helping his brother back to the vehicles when he heard a gunshot from the location of the victim. Timothy Aldridge further stated that [Petitioner and Defendant Sykes] were the only people in the area from which the gunshot came.
Officer William Poteet of the Memphis Police Department responded to a dispatch call at approximately 1:30 a.m. on September 15, 1997, and found the victim in the back seat of a car, covered in blood and naked from the waist down. The officer stated that the victim's injuries were so severe he thought the victim had been shot in the head. Dr. Thomas Deering, assistant medical examiner, testified that the victim suffered blunt trauma to the head, multiple skin lacerations, multiple puncture wounds, and a gunshot wound to the left buttock. Dr. Deering further stated that the blows to the victim's head caused his skull to fracture and pieces of bone to enter the victim's brain. The doctor testified that the victim died as a result of the head trauma complicated by the bleeding caused by the gunshot wound. Jacqueline Yancey, a former girlfriend of Defendant Sykes, and Arthur Jones, Ms. Yancey's cousin, both testified that approximately a week after the victim's death they saw Defendant Sykes wearing the victim's gold necklace and ring.
Robert Walker, the "head of security" for the Memphis Gangster Disciples, also testified that he was present when "Tombstone" complained to the head of the Memphis gang that the victim had become "rebellious" and should be punished. Mr. Walker testified that "Tombstone" was told to "take care" of the victim. Mr. Walker also outlined the organizational structure and forms of punishment used by the gang. Specifically, Mr. Walker stated that one way gang members would symbolize their displeasure with another gang member while carrying out a death punishment would be to strip the person of his clothes and shoot him in the buttocks. Furthermore, Walker testified that [Petitioner] informed Walker that he shot the victim.
Matrin Becton and Antonio Sykes, 2002 WL 1349530 at *1-*3.
Petitioner's Issues on Appeal
On appeal Petitioner has asserted three general grounds in support of post-conviction relief. These are: (1) Brady violations by the State, see Brady v. Maryland, 373 U.S. 83 (1963); (2) prosecutorial misconduct; and (3) ineffective assistance of counsel at both the trial level and on direct appeal. Petitioner was represented at both the trial level and on direct appeal by the same attorney. Specific relevant allegations by Petitioner as to each general ground for relief are specified as follows.
(I) Brady Violations
Petitioner argues that the following exculpatory evidence was withheld by the State in violation of Brady:
(1) A written statement of prosecution witness Robert Walker in which Walker implicated himself in the murder of a man named Kelbert Hailey;
(2) A written statement of a person named Albert Cleveland Wilson which implicated the same Robert Walker in the murder of a man named Billy Ray Brown;
(3) The transcript of testimony by the same Robert Walker in federal grand jury proceedings, in which Walker implicated himself in the murders of Marshall Shipp (whose murder Petitioner's murder conviction involves) and Kelbert Hailey;
(4) Agreement between the State and the same Robert Walker for favorable treatment in dispositions of criminal acts by Walker in exchange for Walker's testimony against Petitioner.
(II) Prosecutorial Misconduct
Petitioner did not plead in any of the applicable petitions/supplements for post-conviction relief, or argue to the post-conviction court, the legal theory that he was entitled to post-conviction relief because of prosecutorial misconduct. On appeal, this theory for relief is asserted by arguing that the State committed unconstitutional prosecutorial misconduct by "failing to disclose agreements between witnesses and the State, failing to disclose the substance of Robert Walker's testimony, and failing to disclose Brady material." Petitioner included in his argument on this issue that "[i]t is of note that the Shelby County District Attorney's Office has a history of being reprimanded for similar violations." Pursuant to a directive from this court during oral argument, Petitioner submitted a list of court decisions which he asserts support this allegation.
(III) Ineffective Assistance of Counsel
Petitioner argues on appeal that he is entitled to post-conviction relief because trial counsel (who also represented Petitioner in his direct appeal) rendered ineffective assistance of counsel in the following ways:
(1) Failed to raise on appeal the issue of Brady violations by the State;
(2) Failed to "seek out" the testimony of Robert Walker;
(3) Failed to object to trial court errors:
(i) the trial court failed to instruct the jury on the lesser- included offenses of facilitation of the charged offenses;
(ii) the trial court failed to instruct the jury on the "natural and probable consequences rules";
(iii) the trial court failed to instruct the jury on the defense of duress;
(iv) the trial court failed to instruct the jury "as to the burden of proof during the guilt phase jury charge";
(4) Failure to move for mistrial based on "trial by ambush".
Summary of Testimony at Post-Conviction Hearing
Petitioner did not testify at the post-conviction hearing. Petitioner presented the testimony of one of the assistant district attorneys ("the prosecutor") who represented the State in Petitioner's trial, and he also presented the testimony of his trial counsel. The State called as its only witness attorney Louis Chiozza, III, who represented Robert Walker during all relevant times concerning Petitioner's case in criminal court. We will ...