Assigned on Briefs February 3, 2015.
Appeal from the Criminal Court for Shelby County No. 07-08953 Glenn I. Wright, Judge.
James E. Thomas, Memphis, Tennessee, for the Defendant-Appellant, Undray Luellen.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Rachel Russell, 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 Camille R. McMullen, JJ., joined.
ALAN E. GLENN, JUDGE.
The petitioner was convicted of two counts of especially aggravated kidnapping, one count of aggravated kidnapping, and one count of aggravated criminal trespass and was sentenced to an effective term of forty-four years in the Tennessee Department of Correction. This court affirmed the judgments of the trial court on direct appeal, and the Tennessee Supreme Court denied the petitioner's application for permission to appeal.
The facts resulting in the petitioner's convictions were set out by this court on direct appeal as follows:
On June 17, 2007, the adult victim, Terri Erby, and her five-year-old granddaughter . . . were asleep at the victim's home in Memphis, Tennessee. The victim's eighteen-year[-]old son was also asleep in the home. At approximately 12:30 a.m., the victim heard a noise at her back door. When she got out of bed to check on the noise, she saw [the petitioner] and another man attempting to break into her home. The victim ran into her son's room, but he was still asleep. She then ran to her bedroom, locked the door, and got under the covers with her granddaughter. [The petitioner] barged into the bedroom, pointed a gun at the victim, and forced her to get out of bed. The victim began to panic, and [the petitioner] started asking for Tanishia Erby, the victim's daughter and [the petitioner]'s ex-girlfriend. The victim begged [the petitioner] not to hurt them. [The petitioner] told his accomplice not to bother the victim's son since he was asleep.
The victim told [the petitioner] several times that Tanishia was not at her home and that she was at the victim's sister's home, even though the victim knew Tanishia was at the movies with a friend. However, [the petitioner] became very agitated that Tanishia was not there. He then forced the victim and her granddaughter at gunpoint to leave the home with him and the accomplice, who had a knife. The victim described [the petitioner]'s weapon, "It was a big, black gun. That's all I can remember. I think it was a nine millimeter[.]" The victim then testified that the gun that was taken from [the petitioner] at the time of his arrest looked similar to the gun [the petitioner] had the night of her kidnapping. The victim, her granddaughter, [the petitioner], and the accomplice left the home in the victim's car. As they were on their way to the victim's sister's house, [the petitioner] forced the victim to call Tanishia's cell phone and to tell her that . . . Tanishia's daughter and the victim's granddaughter, had been injured and they were taking her to the hospital. During the victim's phone conversation with Tanishia, she tried to secretly inform her daughter that [the petitioner] had kidnapped her and [her granddaughter]. Tanishia finally asked the victim if [the petitioner] was present, and the victim responded affirmatively. The victim also called her sister. As they drove up to the victim's sister's house, [the petitioner] observed several people in the yard and instructed the victim not to drive there. [The petitioner] then called a female friend and asked her to meet them on Chuck Street. When the friend arrived, [the petitioner] told her that he needed to use her car because the victim's car was "hot." The friend refused to switch cars, and [the petitioner] forced the victim and [the victim's granddaughter] out of the victim's car and into the backyard of a house on Chuck Street. At that point, [the petitioner] started making numerous phone calls in an attempt to locate Tanishia. During each call, [the petitioner] informed the individuals on the line that he was going to hold the victim and [the victim's granddaughter] hostage until Tanishia arrived.
[The petitioner] told the victim that he would hurt or kill her and [her granddaughter] if Tanishia did not appear, and the victim pleaded with him not to hurt [her granddaughter]. She told [the petitioner] to take her or kill her instead of harming [her granddaughter]. [The petitioner] finally agreed not to hurt [the victim's granddaughter]. During this time period, [the victim's granddaughter] was distraught, clung to the victim, and repeatedly asked to go home. The victim was aware that [the petitioner] had previously kidnapped Tanishia and had a history of violent behavior. [The petitioner], his accomplice, the victim, and [the victim's granddaughter] stayed in the backyard for about an hour before [the petitioner] forced the victim and [her granddaughter] over a fence, and they all got back in the victim's car. He then told the victim to drive to the expressway and stop at a gas station. [The petitioner] took money from the victim for gas and continued to make phone calls in an attempt to locate Tanishia. During each of these calls, [the petitioner] informed the other party that he would release the victim and [her granddaughter] if Tanishia would appear. He also continued to threaten the victim. The victim was forced to drive around for approximately one hour before she was told to stop at the Waterfront Apartments. At this point, several hours had passed from the time of the initial kidnapping.
After arriving at the apartments, [the petitioner] and the accomplice took the keys to the car, told the victim not to move, and disappeared into an apartment for a short period of time. Once they were gone, the victim rescued [her granddaughter] from the backseat and was attempting to flee when the accomplice returned to the car. The accomplice forced the victim and [her granddaughter] back into the car and informed the victim that he would kill her if she refused to perform oral sex on him. The accomplice then brandished his knife and again told the victim that he would cut [her granddaughter] if the victim did not perform oral sex on him. Before the victim was forced to comply, [the petitioner] returned to the car. [The petitioner] told the victim that he loved Tanishia. [The petitioner] then said that "he wasn't going back to jail, he couldn't do that, [and] he wasn't going to do that." He also said that he wanted Tanishia "to change her story [regarding his previous kidnapping and assault of Tanishia as charged in the first indictment]". He said that "[i]f [Tanishia] changed her story[, ] everything would be all right." Finally, he told the victim that he would let her and [her granddaughter] go, but she was not to tell the police that he was responsible for the break-in or their kidnapping. [The petitioner] said that if she informed the police about this incident he would kill her. He then released the victim and [her granddaughter] and allowed the victim to drive away in her car.
State v. Undray Luellen, No. W2009-02327-CCA-R3-CD, 2011 WL 2557010, at *1-2 (Tenn. Crim. App. June 27, 2011), perm. app. denied (Tenn. Oct. 18, 2011).
The petitioner filed a pro se petition for post-conviction relief and, after the appointment of counsel, an amended petition was filed. In his petitions, among other things, the petitioner raised the three allegations of ineffective assistance of counsel pursued on appeal: (1) trial counsel failed to request a jury-out hearing pursuant to Tennessee Rule of Evidence 404(b) during Tanishia Erby's testimony or preserve the issue for appeal; (2) trial counsel failed to object to hearsay testimony from the victim concerning an out-of-court statement by the victim's minor grandchild; and (3) appellate counsel failed to challenge the sufficiency of the ...