Assigned on Briefs May 5, 2015
Appeal from the Circuit Court for Haywood County No. 2401 J. Weber McCraw, Judge
Justin P. Jones (on appeal) and Michael J. Banks (at post-conviction hearing), Brownsville, Tennessee, for the appellant, Dwight Miller.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald M. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
ROGER A. PAGE, JUDGE
I. Facts and Procedural History
Following a 1996 trial, petitioner was convicted of the first degree murder of Donald Rice and was sentenced to life in prison. On direct appeal, this court reversed the judgment of the trial court and remanded the case for a new trial. See State v. Dwight Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 (Tenn. Crim. App. Dec. 29, 1998). On retrial, he was again convicted and sentenced to life in prison. In the appellate opinion affirming his conviction and sentence on retrial, this court recited the following facts:
In the early morning hours of April 20, 1995, the appellant and Donald Rice were sitting in their cars, which were parked driver's window to driver's window, outside a housing project in Brownsville, Tennessee. Both vehicles were burgundy or maroon with four doors. Clement Harris, who was sitting outside the housing project at the time, heard the appellant and Mr. Rice talking. Mr. Harris knew the appellant from school and was able to recognize his voice when he heard him speak with Mr. Rice. After the conversation ended, Mr. Harris saw Mr. Rice begin to back his car away from the area. As Mr. Rice backed up, a gun was fired from the appellant's car, fatally shooting Mr. Rice in the face. After the shooting, the appellant got out of his car, got into Mr. Rice's car, pushed Mr. Rice over, and drove Mr. Rice's car away. A passenger in the appellant's car slid over to the driver's seat and followed the appellant. Mr. Rice's body was subsequently discovered in a ditch, and his abandoned car was later found by the police.
On the day prior to the murder, Nina Champion, an acquaintance of the appellant, saw shotgun shells in the backseat of the appellant's car and a shotgun in the trunk of his car. Officer Johnny Blackburn of the Brownsville Police Department testified that he searched the appellant's bedroom after the murder and found a shotgun that smelled of gunpowder as well as a live, red 12-gauge shotgun shell on a night table, and a spent, red 12-gauge shotgun shell in a shoe under the table. The shells were of the same type and size shot found in the body of Mr. Rice.
State v. Dwight Miller, No. W2001-03095-CCA-R3-CD, 2004 WL 115374, at *1 (Tenn. Crim. App. Jan. 14, 2004), perm. app. denied (Tenn. May 10, 2004).
B. Procedural History
Petitioner filed his first petition for post-conviction relief on February 22, 2005. For reasons that are unclear from the record, the post-conviction court did not appoint counsel and order the State to respond to the allegations until January 7, 2009. Counsel withdrew, and new post-conviction counsel was appointed, who filed an amended petition on May 20, 2009. In August 2010, the post-conviction court granted a delayed appeal and stayed petitioner's post-conviction proceedings pending disposition of the appeal. Although represented by counsel, petitioner filed a subsequent amended petition on April 10, 2014, which added the claim of ineffective assistance of counsel for failure to call three alibi witnesses that is the subject of this appeal. The post-conviction court conducted an evidentiary hearing on September 19, 2014.
C. Post-Conviction Evidentiary Hearing
At the evidentiary hearing, petitioner called Rosa Carney as his first witness. Ms. Carney testified that in April 1995, she spoke with Deputy Billy Blackwell regarding petitioner's involvement in a murder. She recalled telling Deputy Blackwell that petitioner had been at her house around "dusk dark" on the day in question. She said that she was sick and resting in her bed when petitioner came in, "hit [her] across [her] leg[, ] and told [her] to get up out of bed." She informed appellant that she was sick and that she had to leave work early because of her illness. Ms. Carney stated that petitioner asked her if she needed anything and then asked her children if they wanted anything. She said that petitioner ...