Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015.
Appeal from the Criminal Court for Davidson County No. 2009-C-2231 Steve R. Dozier, Judge.
Jennifer J. Hall, Nashville, Tennessee, for the Defendant-Appellant, Deshaun Jantuan Lewis.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Glenn R. Funk, District Attorney General; and Rachel M. Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE.
Based on his participation in the rape, robbery, and murder of the eighteen-year-old victim, the petitioner was convicted of two counts of felony murder, one count of second degree murder, four counts of aggravated rape, especially aggravated robbery, and making a false report to law enforcement. The trial court merged the felony murder convictions and the second degree murder conviction into one conviction for felony murder. Additionally, the court merged one of the aggravated rape convictions, leaving three remaining aggravated rape convictions. The petitioner was sentenced to an effective term of life plus forty-two years in the Department of Correction. His convictions and sentence were affirmed by this court on direct appeal, and his application for permission to appeal was denied by our supreme court. State v. Deshaun Jantuan Lewis, No. M2011-01220-CCA-R3-CD, 2012 WL 4338809, at *1 (Tenn. Crim. App. Sept. 21, 2012), perm. app. denied (Tenn. Feb. 13, 2013).
This court's opinion on direct appeal shows that the defendant set up the victim to be robbed at an abandoned duplex, where his armed accomplice was waiting for them. Id. at *12. The accomplice dragged the victim to a back room in the duplex and kicked her in the neck, chest, and face. The petitioner admitted that he had vaginal and anal sex with the victim while the accomplice held a gun to her and that he hit the victim two or three times in the face because she was fighting. Id. at *13. The victim's face had been beaten to the point that her "facial features were distorted to such a degree that visual identification was not reliable." Id. at *6. Additionally, the victim had a large area of hemorrhaging in her eyes, which was indicative of strangulation, and a large larceration to the middle portion of her liver "so large that the liver was practically in two pieces." Id. Other injuries included extensive bleeding around the brain from blunt force trauma, a fracture of the hyoid bone in her neck, abrasions on her arms, elbows, wrists, hands, shoulders, hip, knees, and right leg, and bleeding in the layers of the lining of the vagina and in the deep soft tissue indicating trauma. Id. at *6-7. The DNA profile obtained from the victim's vaginal swab matched the petitioner, and the petitioner's palm print was recovered from a piece of drywall in the abandoned duplex where the victim's body was found. The victim's gold Impala automobile and $250 cash were taken during the robbery. Id. at *12.
On July 12, 2013, the petitioner filed a pro se petition for post-conviction relief, alleging numerous claims of ineffective assistance of counsel. Post-conviction counsel was subsequently appointed, and an amended petition was filed.
An evidentiary hearing was held on March 28, 2014, at which the attorney who represented the petitioner at trial and on direct appeal testified that he had been licensed to practice law since 1999 and that over 90% of his practice was criminal defense work. He had tried over thirty jury trials and had filed "[s]cores" of criminal appeals. He recalled objecting to the admission of thirteen gruesome photographs at trial as prejudicial. He said he did not raise the issue on direct appeal because:
There were actually I would say probably hundreds of photographs that were taken of the scene that were not admitted. And I went over those with [the prosecutor], . .., before trial and those were the ones that were end up that being introduced [sic]. When I did the direct appeal, I did review those again, and based on the totality, I guess, as the entire record as a whole, testimony that was presented, I just didn't feel that it was a plausible claim at that point. So . . . I elected not [to] pursue it on direct appeal.
Counsel ackowledged that he made several objections at trial to the testimony of Lisa Woodard, the mother of the petitioner's child. Woodard testified that she and the petitioner had sex the same night the petitioner raped and killed the victim. Counsel said he did not address the issue on appeal, explaining:
I didn't think that it was [a] cognizable claim again partly because [the petitioner] then testified at trial as well and pretty much said the same thing. So it wasn't coming from her, it was coming from him as well. And I didn't feel like it was a strong enough claim to make on appeal. . . . [A]fter reviewing ...