Court of Criminal Appeals of Tennessee, Knoxville
Session: January 21, 2015.
Appeal from the Criminal Court for Knox County No. 89072 Bob R. McGee, Judge
Wade V. Davies, Knoxville, Tennessee (at post-conviction hearing and on appeal), and George C. Shields, II, Knoxville, Tennessee (on appeal) for the Appellant, Brandon Mobley.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Charme P. Allen, District Attorney General; and Ta'Kisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE.
PROCEDURAL AND FACTUAL BACKGROUND
I. Procedural History
This case comes before us with a complex procedural history. The Petitioner was convicted in 2005 of two counts of premeditated first degree murder and one count each of especially aggravated robbery and setting fire to personal property. The Petitioner received an effective sentence of two consecutive life sentences plus twenty-two years for these convictions. On direct appeal, a panel of this court affirmed the Petitioner's convictions but reduced his total effective sentence to two consecutive life sentences plus nineteen years. State v. Brandon Mobley, No. E2006-00469-CCA-R3-CD, 2007 WL 1670195 (Tenn. Crim. App. June 11, 2007), perm. app. denied (Tenn. Sept. 24, 2007). Our supreme court declined to review this court's decision.
The Petitioner filed a timely pro se petition for post-conviction relief. Afterwards, counsel was appointed and two amended petitions were filed. Following an evidentiary hearing, the post-conviction court issued a written order dismissing the petition. On appeal, a panel of this court reversed the post-conviction court's dismissal of the petition, holding that trial counsel was ineffective "concerning the use of expert testimony, " and remanded the case for a new trial. Brandon Mobley v. State, No. E2010-00379-CCA-R3-PC, 2011 WL 3652535 (Tenn. Crim. App. Aug. 18, 2011), rev'd, Mobley v. State, 397 S.W.3d 70 (Tenn. 2013).
Our supreme court granted permission to appeal, reversed this court's judgment, and affirmed "the judgment of the post-conviction court with regard to the ineffective assistance of counsel claim based on trial counsel's failure to elicit a specific opinion from the defense's mental health expert." Mobley, 397 S.W.3d at 76. However, our supreme court reversed "the judgment of the lower courts denying the ineffective assistance of counsel claim relating to trial counsel's failure to object to the use of a stun belt during the trial." Id.
Given the lack of evidence regarding the stun belt issue in the original post-conviction record, the supreme court remanded the case back to the post-conviction court for a new evidentiary hearing solely on that issue and instructed the post-conviction court to address the following:
(1) the circumstances surrounding the decision to require [the Petitioner] to wear a stun belt at his trial, (2) whether [the Petitioner's] trial counsel's performance was deficient with regard to the decision to require [the Petitioner] to wear a stun belt, (3) whether requiring [the Petitioner] to wear a stun belt at trial had an adverse effect on his demeanor or his ability to testify at trial, and (4) whether the adverse effect, if any, was sufficient to undermine confidence in the outcome of [the Petitioner's] trial.
Mobley, 397 S.W.3d at 103.
The post-conviction court held a second evidentiary hearing on March 7, 2014. At the conclusion of the hearing, the post-conviction court again dismissed the petition. This appeal followed.
II. Factual Background Regarding the Petitioner's Convictions
The evidence at trial established that on May 26, 2003, at the age of sixteen, the Petitioner shot and killed the victims, Joshua Nance and Oshalique Hoffman, while they were sitting in Ms. Hoffman's blue Buick. Mobley, 2007 WL 1670195, at *1. That day, Mr. Nance received a phone call and left his grandmother's house with Ms. Hoffman in her car to meet the Petitioner. Jamesena Thompson testified that she lived across the street from the Petitioner and that, on the day of the murders, she "heard tires squealing" and saw the Petitioner driving away in Ms. Hoffman's car. Ms. Thompson testified that the Petitioner ran two stop signs, "nodded" to her when he saw her, "and then appeared to be leaning over adjusting" the radio. Id.
Ms. Thompson also testified that Ms. Hoffman was very protective of her car and would not have let the Petitioner drive it. Mobley, 2007 WL 1670195, at *1. Suspicious about the Petitioner's driving Ms. Hoffman's car, Ms. Thompson ran to the parking lot where the car had come from. Ms. Thompson found Ms. Hoffman's body lying on the ground with a revolver next to it. The revolver contained "two spent cartridges and four unspent cartridges." Id. at *2. A fingerprint from the Petitioner was found on the gun, as well as Ms. Hoffman's blood. Id. at *2, 4. Later, ballistics testing revealed that the bullets that killed Mr. Nance and Ms. Hoffman had been fired from the revolver. Id. at *4.
The Petitioner was next seen at the home of his ex-girlfriend, Jada Byrge. Mobley, 2007 WL 1670195, at *2. Ms. Byrge's sister, Tabith Robinson, testified that the Petitioner told her "he had just been in a car accident" and asked her "for a bowl of water and some towels" to clean Ms. Hoffman's car. The Petitioner also asked her for a phonebook and a phone so he could call Po-Boys Tires to inquire about selling the rims on Ms. Hoffman's car. However, the store was closed because it was Memorial Day. Ms. Robinson recalled that while the Petitioner was on the phone, he was counting a "wad" of money. Ms. Robinson also testified that she helped the Petitioner clean the car until she saw blood and brain matter on the dashboard. Id.
Ms. Robinson alerted her mother to what she had found, and her mother confronted the Petitioner. Mobley, 2007 WL 1670195, at *2. The Petitioner claimed that "it was spit." At that point, several of the Petitioner's friends "drove up in a green Jeep, and they all left." Id. Robert Dean Wilson, Jr., testified that he and two other men were in the Jeep and that when they arrived at Ms. Byrge's house, the Petitioner told them "he had stolen a car, and he wanted them to follow him." Id. at *3. Mr. Wilson testified that they followed the Petitioner "until he pulled into a gravel road." At that point, Mr. Wilson could not see the Petitioner or Ms. Hoffman's car. The Petitioner got into the Jeep a few minutes later and asked the men to take him to a motel. Id.
Mr. Wilson testified that when the Petitioner got into the Jeep, he noticed blood on the Petitioner's clothes and shoes. Mobley, 2007 WL 1670195, at *3. Mr. Wilson also testified that the Petitioner started counting money while he sat in the back of the Jeep and that he estimated the money to total $1, 500. According to Mr. Wilson, the Petitioner told the men that he had attempted to buy drugs from the victims but that Mr. Nance threatened to kill him if he did not pay back money he owed to Mr. Nance. The Petitioner told the men that Mr. Nance pulled out a gun and that he "reacted" and shot Ms. Hoffman, then Mr. Nance. The Petitioner said that "he pushed [Ms.] Hoffman out of the car and dumped [Mr.] Nance's body behind a church." Mr. Wilson testified that he stayed with the Petitioner at a motel room for a brief time, during which he saw the Petitioner "take off his shoes and tie them up in a motel trash bag" and make a number of phone calls. Id.
Ms. Byrge testified that she received a phone call from the Petitioner that afternoon and that he denied doing anything and "seemed as though nothing bothered him." Mobley, 2007 WL 1670195, at *2. The Petitioner was arrested later that day after attempting to flee the motel room. Id. at *4. Mr. Nance's body was eventually discovered in a secluded area behind a church during the early morning hours of May 27, 2003. Id. at *5. Ms. Hoffman's car was found burning near a farm. Mr. Nance's phone was found by the car, and the last call made from the phone was to the Petitioner's mother "at 1:41 p.m., but the shooting took place around 1:25 or 1:30 p.m." Id. The medical examiner testified at trial that Mr. Nance "appeared not to have died instantly, instead living up to four hours after he was shot." Id. at *4. Both Mr. Wilson and Ms. Byrge testified that the Petitioner regularly carried a gun "out in the open." Id. at *2-3. Ms. Byrge testified that the Petitioner purchased a gun approximately two weeks before the shooting and test fired it at her house. Id. at *2.
The Petitioner testified in his own defense at trial. Mobley, 2007 WL 1670195, at *5-6. The Petitioner claimed that he had purchased $2, 000 worth of cocaine from Mr. Nance on credit two weeks before the shooting. Id. at *5. According to the Petitioner, on the day of the murders, he received a phone call from Mr. Nance. The Petitioner alleged that Mr. Nance threatened him if he did not pay back the money he owed and insisted on meeting him. The Petitioner testified that he took a gun with him to the meeting because he had carried a gun whenever he went out after having been robbed a few weeks before. The Petitioner claimed that he planned to give Mr. Nance $400 and the cocaine that he had been unable to sell. Id.
The Petitioner testified that Mr. Nance and Ms. Hoffman arrived in Ms. Hoffman's Buick and that Mr. Nance insisted that the Petitioner get in the back seat of the car even though he did not want to. Mobley, 2007 WL 1670195, at *5. The Petitioner claimed that Mr. Nance rejected his offer to return the drugs and threatened to kill him "if he did not come up with the $2, 000." Id. at *6. The Petitioner testified that Mr. Nance then pulled out a gun. The Petitioner said that he "reacted" by shooting Mr. Nance in the head. The Petitioner claimed that he saw Ms. Hoffman "duck" and that he thought she was reaching for a weapon, so he shot her as well. Id.
The Petitioner testified that he panicked, removed Ms. Hoffman's body from the car, and drove away. Mobley, 2007 WL 1670195, at *6. The Petitioner claimed that he was so panicked that he did not realize that he had dropped his gun beside Ms. Hoffman's body or that Mr. Nance was still in the car. According to the Petitioner, he threw Mr. Nance's gun "out the window as he was going across a bridge." The Petitioner drove to the church "where he planned on running into the woods, but he instead decided to push [Mr.] Nance's body down a hill." The Petitioner testified that he then drove to Ms. Byrge's house, but he denied calling Po-Boys Tires and attempting to sell the rims from Ms. Hoffman's car. Id.
The Petitioner admitted to calling one of his friends while he was at Ms. Byrge's house. Mobley, 2007 WL 1670195, at *6. The Petitioner testified that when his friends arrived in the Jeep, they followed him. The Petitioner admitted that he set Ms. Hoffman's car on fire. Afterwards, he had his friends take him to a motel room in a different part of town. The Petitioner claimed that while he was in the motel room, he was given a different pair of shoes by one of his friends and changed his shoes. The Petitioner also claimed that he flushed the cocaine down the toilet and gave some of the money away while throwing the rest of it in the trash. The Petitioner denied that he was attempting to flee the police when he left the motel room. Id.
After the Petitioner testified, Doctor Pam Auble testified on his behalf. Mobley, 2007 WL 1670195, at *7. Dr. Auble opined that the Petitioner suffered from "major depression, attention deficit hyperactivity disorder, oppositional defiant disorder, and low intellectual functioning." Dr. Auble further opined that the Petitioner was "quick to perceive people as hostile" and "would respond impulsively, without thinking" when threatened. Dr. Auble testified that all this "would have affected [the Petitioner's] mental state at the time of the killings." On cross-examination, Dr. Auble admitted that the Petitioner had told her that Ms. Hoffman had pulled the gun on him and that he shot her first. Dr. Auble further admitted "that if that was inaccurate, that could potentially alter her analysis." Id.
The jury ultimately rejected the Petitioner's claims of self-defense and that he was not mentally capable of acting with intent or premeditation, and convicted the Petitioner of two counts of premeditated first degree murder and one count each of especially aggravated robbery and setting fire to personal property. Mobley, 2007 WL 1670195, at *8. On direct appeal to this court, the Petitioner challenged the sufficiency of the evidence for his first degree murder and especially aggravated robbery convictions, challenged his sentences, and alleged that the trial court erred by initially prohibiting Dr. Auble from testifying, which forced the Petitioner to testify against his will. Id. at *1. In rejecting the Petitioner's claim regarding Dr. Auble, this court's opinion stated that there was "nothing in the record to indicate that the [Petitioner] ever expressed reservation about testifying, or that he testified only because Dr. Auble's proposed testimony had initially been excluded." Id. at *14.
III. Evidence From the Petitioner's Trial Regarding the Stun Belt
A. Decision to Use Stun Belt
On the day that the Petitioner's trial was scheduled to begin, the court officer approached trial counsel during a preliminary conference and told him that he needed to talk to the Petitioner. The court officer stated that the Petitioner was "not wanting to change clothes" because "[h]e thinks it's not going to trial." The trial court took a brief recess during which trial counsel went back to the holding area to speak to the Petitioner. When he returned, trial counsel informed the trial court that they "probably need[ed] to bring [the Petitioner] out and let him address the Court."
The Petitioner entered the courtroom and made the following statement to the trial court:
. . . Me and my lawyer's been incompatible for about eight or nine months now. We got a conflict of interest. He's failed to prepare my defense properly in a timely fashion within the time to prepare my case, Your Honor, and I would appreciate if I be appointed a new lawyer because he's ineffective.
He has not been effective from day one. The past arguments that we've gotten into the words were so serious that only a man would hold a grudge from them -- anybody would hold a grudge from them. I can't put my trust in somebody that's holding a grudge against me, and he -- I don't know anything about my defense. I don't know nothing about my case, because he's failed to come and see me. He's failed to answer his phone and return phone calls. So I just can't -- there's no way I would be able to attend this trial today or take the stand in this case as long as I'm forced to go to trial with this man.
Trial counsel represented to the trial court that, according to his records, he had met with the Petitioner twenty-one times to discuss the Petitioner's case. Trial counsel said that the State had provided open discovery and that he had "gone over in detail" with the Petitioner "[e]very bit of that" and had provided the Petitioner with copies of "everything relevant to this case." Trial counsel stated that there had "been no meetings of any animosity" between himself and the Petitioner. Trial counsel further stated that he and his investigator, Barry Rice, had a "lengthy meeting" with the Petitioner the previous Friday and that "none of this came" out.
Trial counsel then made the following statement:
Judge, you know it'd be awful easy for me to stand here and tell you that I've got a conflict in a difficult case like this, but, in all candor, I don't. This case is ready for trial. [The Petitioner] has been prepared for over a year as everything developed in this case, and that's the way I stand on it. And I've also tried to keep [the State] advised.
Several weeks ago [the Petitioner] raised some questions. I went and talked to [the prosecutor] about it. We had further meetings, things leveled out, and [there] haven't been any problem[s] since.
The trial court asked trial counsel directly if "communication between the [Petitioner] and the attorney [had been] destroyed." Trial counsel responded that, as of their last meeting, their communication had not broken down. Trial counsel reiterated that it "was a very good meeting" and that they had "discussed every aspect of this case, his testimony and any late developments in it." (Emphasis added). The trial court asked the Petitioner to respond, and he made the following statement:
Sir, he -- all I can say about that is I told him eight or nine months ago to address the Court or come time I get a chance to address the Court I will. I come to court to get took to my momma's funeral, February 23rd. He failed to tell you then so that's why I'm telling you now. I told him I was going to regardless of what he said today or how many times he come to see me and -- or do whatever because that don't change the fact that we've had a conflict from the past. He's trying to cover something up. I don't know what it is, but I can't work with him. It's as simple as that.
The trial court sought to clarify the Petitioner's complaint and asked if it was "because you can't work with him, or you won't . . . work with him?" The Petitioner responded as follows:
It's not because I don't want to, but I do. I want to go on and proceed with this and get this out of my way, but this man's failed to prepare my defense in a timely fashion, and for my knowledge, I know nothing of the defense. All I know is this man come to me talking about you got to get on the stand. He ain't said, well, they brought this and said you're going to be getting this much time or if it get dropped that is because of a technical difficulty or anything. He's not bring any of this to me, and I've got proof of how many times he's come up there to see me and how little contact I've had with him; and, in my opinion, I don't feel that this --if it was enough time that he spent to come see me and go over my case.
There's been time when I called this man, and I won't see him for three or four months later, and that's only in the courtroom. I say why don't you come and see me. You know he fails to come up and see me. I don't see him for another three or four months, and I need more out of a lawyer than what he's proceeding.
After the Petitioner's statement, the trial court had trial counsel's investigator brought into the courtroom, sworn in, and questioned by the prosecutor. Mr. Rice testified that he had met with the Petitioner "[m]any times" in the jail and reiterated what trial counsel had said about their last meeting with the Petitioner. Mr. Rice testified that the meeting "was long" and that they "prepared for trial" by discussing the case, "the witness statements, [and] the evidence against" the Petitioner. Mr. Rice further testified that he and trial counsel had "gone over" the evidence with the Petitioner "as [they] discovered it and in its entirety several times."
Mr. Rice testified that at a meeting a few weeks before trial, the Petitioner "was upset." The Petitioner complained that trial counsel "didn't do everything that he thought he could do to prepare for the case." Mr. Rice testified that when they asked the Petitioner what more they could have done, the Petitioner "just said that he wasn't happy with" trial counsel. Mr. Rice believed that part of the reason the Petitioner was upset was that he "wasn't happy with what [trial counsel] reported that [the] witnesses were going to say." Mr. Rice was then questioned by trial counsel. Mr. Rice testified that in addition to providing the Petitioner with copies of the discovery materials, he had recently delivered copies of the witness statements to the Petitioner. The Petitioner wanted to review the witness statements again but had mailed the original discovery packet to his mother and it had been lost.
At the conclusion of Mr. Rice's testimony, the trial court denied the Petitioner's motion for appointment of new counsel and concluded that there was "no disintegration of communication between the [Petitioner] and the attorney, " but rather that the Petitioner had raised the issue in an attempt to delay the trial. The trial court then warned the Petitioner that it was "foolish not to take advantage of" the "street clothes" trial counsel had provided for him. The trial court further admonished the Petitioner that if there was "any attempt on your part to disturb the proceedings of this Court or any other court, the Court has the power of contempt and along with that contempt can order you placed under chains, gagged, and brought into the courtroom before the jury . . . ." The trial court also threatened the Petitioner that if he continued "disturbing the proceedings of this Court, " he would be tried in absentia. The trial court then recessed to allow the Petitioner and trial counsel time to confer.
At the conclusion of the recess, trial counsel informed the court that the Petitioner would "not come back out" and said that "he wanted to go down to his cell[, that] [h]e wouldn't participate." Trial counsel stated that he asked the Petitioner twice to reconsider his decision, but the Petitioner refused. The trial court, the prosecutor, and trial counsel then had a lengthy discussion about the procedure for trying a defendant in absentia. At one point during the discussion, the trial court asked the attorneys to approach for a bench conference. During the conference, the following exchange occurred:
[Court officer]: Of course, he'll probably come out here. If I tell him he needs to come out here to put this stuff on the record, he'll come out for that because that's how I got him the last time, telling him that if he was going to try to fire his attorney it had to be on the record, and he was agreeable to that. But then once it reaches the other point, he's just going to turn and walk out, I'm afraid. Okay? Now, my ...