Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 28, 2015 at Knoxville.
Appeal from the Circuit Court for Bedford County No. 17706 Robert G. Crigler, Judge.
David E. Niles, Only, Tennessee, pro se (on appeal); James Tucker, Shelbyville, Tennessee (at post-conviction hearing).
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Robert Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE.
Factual and Procedural Background
This is a post-conviction matter filed by Petitioner who murdered the mother of his son nearly five and a half years ago. Petitioner was convicted of first degree murder in Bedford County in November of 2010. State v. David Edward Niles, No. M2011-01412-CCA-R3-CD, 2012 WL 1965438, at *1 (Tenn. Crim. App. Jun. 1, 2012), perm. app. denied (Tenn. Oct. 17, 2012).
After the shooting the victim outside of her apartment, Petitioner fled the scene in his vehicle. Id. He was apprehended a short time thereafter based on the description of the vehicle. When he was arrested, he was in possession of a nine-millimeter Glock handgun, a black ski mask, a black baseball cap, a pair of gloves, a white towel, and a handgun case. Inside the handgun case, Petitioner had a spare Glock firing pin, a spare Glock barrel, and a Glock disassembly tool. Id. at *7-8. The serial number on the barrel of the recovered handgun differed from the serial number on the frame and slide. The spare Glock barrel matched the serial number of the frame and slide. Tennessee Bureau of Investigation ("TBI") testing showed that the shell casings at the crime scene were fired from a weapon with a different barrel and firing pin than the stock barrel and firing pin found in Petitioner's vehicle in the gun case at the time of his arrest. The gloves in the car contained traces of gunshot primer residue. Id. A subsequent search of Petitioner's home revealed ammunition consistent with ammunition fired in the handgun that killed the victim as well as receipts for a replacement barrel, replacement firing pin, and Glock disassembly tool. Id. at *2.
After his arrest, Petitioner told law enforcement officers that "'God told him to kill [the victim]' . . . [because she] was an 'unfit mother.'" Id. at *9. On direct appeal, this Court affirmed the conviction, determining that the trial court properly denied the motion to suppress, that the evidence was sufficient to sustain the conviction for first degree premeditated murder, and that the trial court did not abuse its discretion in denying the ex parte motion for funds for a psychiatrist. Id. at *18. The supreme court denied permission to appeal on October 17, 2012.
Petitioner filed a timely pro se petition for post-conviction relief. In the petition, he argued that his conviction was based on: (1) an illegal traffic stop without probable cause or reasonable suspicion; (2) the use of evidence obtained pursuant to an unlawful arrest; and (3) an unconstitutionally selected and impanelled Grand Jury. He also asserted that he received ineffective assistance of counsel. With regard to ineffective assistance of counsel, Petitioner complained that counsel: (1) failed to prepare him for trial; (2) failed to challenge the traffic stop; (3) failed to pursue mental health issues; and (4) "other issues." Counsel was appointed, but post-conviction counsel did not file an amended petition or a written notice pursuant to Tennessee Code Annotated section 40-30-107 that no amended petition would be filed. A hearing was held on October 18, 2013.
At the hearing, Petitioner testified that he had two attorneys appointed to assist his defense at trial. Petitioner testified that trial counsel were ineffective in failing to file a motion to suppress the evidence based on the argument that the stop of Petitioner's vehicle was illegal. Petitioner testified that he was obeying all traffic laws when the stop was initiated but conceded that there was a "be on the lookout" ("BOLO") issued for a small white car, like his, in the area of the shooting. Petitioner also admitted that trial counsel filed a motion to suppress his confession and the search of his residence. These motions were unsuccessful at the trial level. The trial court's decision to deny the motions was affirmed on appeal. David Edward Niles, 2012 WL 1965438, at *11-12.
Petitioner also complained during his testimony at the post-conviction hearing that trial counsel erred in closing argument by proclaiming that Petitioner was guilty, just not of murder. The State objected to this testimony on the basis that Petitioner did not allege improper closing arguments in his petition for post-conviction relief. Post-conviction counsel insisted that because the petition for relief raised ineffective assistance as an issue, any complaint about the closing argument fell "square[ly] within that." The post-conviction court explained that the petition should be more specific than just generally alleging ineffective assistance of counsel and that the statements made during closing argument would probably be considered "trial tactics."
Petitioner also complained about trial counsel's failure to call two witnesses. He did not present these witnesses at the post-conviction hearing for testimony.
Petitioner's father, William Niles, testified that at the time of the incident, Petitioner drove a white Nissan Sentra. Mr. Niles testified that he counted seventeen small white vehicles outside the courthouse on the day that he gave his testimony. He opined that white cars were common in the area.
Trial counsel testified at the hearing. He explained that he had been practicing law for more than twenty years and had been an Assistant Public Defender for twelve years. He recalled that the ...