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Woodard v. State

Court of Criminal Appeals of Tennessee, Nashville

November 8, 2016


          Session Date: August 9, 2016

         Appeal from the Circuit Court for Bedford County No. 10392 Forrest Durard, Jr. Judge

          Andrew Love, Nashville, Tennessee, for the appellant, Dennis Cedric Woodard, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Robert J. Carter, District Attorney General; Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.



         This case relates to the shooting death of Scott Shafter. On the night of April 12, 2001, the Petitioner confronted and fatally shot the victim after a physical altercation between them occurred earlier that day. See State v. Dennis Cedric Woodard, Jr., No. M2002-00122-CCA-R3-CD, 2003 WL 169082, at *1 (Tenn. Crim. App. Jan. 24, 2003), perm. app. denied (Tenn. May 12, 2003). The Petitioner appealed, and in its opinion affirming the conviction, this court summarized the facts as follows:

The proof offered by the State demonstrated that on the night of April 13, 2001, the homicide victim, Scott Shafer, was shot near Derry Street in Shelbyville. Earlier that day, at around four o'clock, the victim had been visiting the home of LaShawn Nunnally. Ms. Nunnally testified that sometime later the [Petitioner] arrived at her house carrying a gun. The [Petitioner] pointed the gun at the victim and said, "Nigga, are you real or are you fake?" The victim responded to the [Petitioner], who was commonly referred to as "Junior, " by saying, "Junior, man, quit playing. I'm fucked up." The [Petitioner], still pointing the gun at the victim, then repeated his question. At that point, Ms. Nunnally requested that the two men leave the front of her house. The [Petitioner] and the victim went to the rear of the house, and Ms. Nunnally followed. She asked the [Petitioner] for the gun, and he gave it to her. Immediately thereafter, Jarmaine Hill, Ms. Nunnally's boyfriend, and Mike Jones arrived. Mr. Hill inquired what Ms. Nunnally was doing with the [Petitioner]'s gun. She responded that she was trying to "prevent trouble." Mr. Hill then demanded that she return the [Petitioner]'s gun, which she did, but she kept the clip that contained the bullets and went back around to the front porch of her house. A few minutes later, the four men came to the front of the house, and the [Petitioner]'s mouth was bleeding. When Ms. Nunnally asked what had happened, the victim replied, "I dunked him on his head." The [Petitioner] then said to the victim, "Man, you fucked up my grill." Then the [Petitioner] smiled at the victim and added, "You are going to remember this tonight." However, Ms. Nunnally testified that the [Petitioner] and the victim then hugged, made up, and left together in the victim's car. After all the men left, Ms. Nunnally wrapped the pistol clip in toilet paper and tossed it into a creek.
About two hours later, Ms. Nunnally had gone to another house to visit with friends. Jarmaine Hill and Mike Jones arrived; then a few minutes later, the [Petitioner] and the victim drove up. As the day got later, Ms. Nunnally, her two daughters, and the victim decided to walk back to Ms. Nunnally's house to get their jackets. As they returned from getting their coats, the [Petitioner] walked up, pointed the gun at the victim, and said, "Nigga, are you ready to die?" The [Petitioner] then shot the victim, who fell down. He pulled the trigger several more times, but the gun would not fire because the clip had been removed. The [Petitioner], who then ran away, was wearing a yellow shirt, black denim shorts, black Nike shoes, and black socks. Ms. Nunnally ran to a pay telephone and called 911. She then located the victim, who had run a short distance and fallen down, and she applied a blanket to his wound.
On cross-examination, Ms. Nunnally said that the [Petitioner] appeared intoxicated while he was at her house. She said that his speech was slurred and he was staggering. He also appeared to be intoxicated when she left her friend's house to get the jackets from her house. She said that when the police arrived, she was beside the victim, rendering aid.
Thomas Thompson testified that on the evening of April 13, 2001, he was in his house at 101 Byrd Street. At around 7:40 that night, he heard what sounded like a gunshot. He then looked out his window and saw a white man run between 714 and 716 Derry Street, fall down on the ground, and yell that he had been shot. Then Mr. Thompson looked behind Smith's Food Town on Derry Street and saw a black man in a yellow shirt run behind the store.
James Wheeler testified that at around nine o'clock on the night of April 13, 2001, a young black man, whom he identified as the [Petitioner], knocked on his door. Mr. Wheeler testified that the [Petitioner] was bleeding from his mouth, and he initially thought that the [Petitioner] had been in a car accident. However, the [Petitioner] said that he had been beaten up, and he asked to use the telephone. While Mr. Wheeler was inside his house retrieving a cordless phone for the [Petitioner], he decided to call 911 to have an ambulance come render aid to the [Petitioner]. When Mr. Wheeler went outside to give the [Petitioner] the telephone, he observed a car drive up with a young man and woman inside. Mr. Wheeler recognized the driver of the car as a man named Matt Kelly. The [Petitioner], who Mr. Wheeler said was "fidgety" and "obviously wanting to leave, " got in the car with Mr. Kelly and drove away. On cross-examination, Mr. Wheeler testified that the [Petitioner] was having difficulty breathing and speaking because of the condition of his mouth.
David Williams, an officer with the Bedford County Sheriff's Department, testified that he accompanied the ambulance to Mr. Wheeler's residence in response to Mr. Wheeler's 911 call. As he was driving, he passed a white Honda Accord. Upon speaking with Mr. Wheeler, he learned that the subject had left in that car. Officer Williams then followed the Accord to the emergency room parking lot, where he stopped the vehicle. The [Petitioner] was in the back seat, and Officer Williams noticed that he had injuries to his face, he had blood down the front of his body, and he was not wearing a shirt. When the officer asked for his name, the [Petitioner] replied that his name was Simms. However, the driver of the car, Matt Kelly, told the [Petitioner] to tell the truth, and the [Petitioner] then told the officer that his name was Junior Woodard. Officer Williams asked another officer, D'Angelo Inman of the Tennessee Highway Patrol, to pat down the [Petitioner] for weapons. Officer Inman located a Taurus .40 caliber semi-automatic pistol in the [Petitioner]'s pocket. The weapon had no clip in the grip. Officer Williams then placed the [Petitioner] in his patrol car and called for the city police. Officer Williams testified that he smelled alcohol on the [Petitioner], but that the [Petitioner] was coherent and had no trouble walking. Officer Inman, on the other hand, testified that he did not notice an odor of alcohol about the [Petitioner].
Back at the scene of the shooting, Rod Stacey was the patrolman with the Shelbyville Police Department who first arrived. He testified that he located a white male, whom he recognized as the victim, Scott Shafer, lying on the ground in between 714 and 716 Derry Street. Officer Stacey observed an entrance wound and an exit wound in the victim's left arm and an entrance wound in the victim's abdomen. Officer Stacey testified that the victim did not tell him who shot him or the circumstances surrounding the shooting.
Detective Eric Ely of the Shelbyville Police Department arrived on the scene after other officers had already secured the area and begun searching for evidence. He was directed to an area where David Williams of the Bedford County Sheriff's Department had located a shell casing earlier that evening. Detective Ely photographed the cartridge and took it into evidence. He testified that it was the casing of a .40 caliber bullet. At around 10:25 that evening, Detective Ely went to the hospital where other officers had the [Petitioner] in custody. There he received the Taurus pistol that Trooper Inman had found in the [Petitioner]'s pocket. Detective Ely stated that he read the [Petitioner] his rights. Noticing that the [Petitioner] had blood on his lip and some of his teeth were dislodged, he asked him, "What happened to your mouth?" The [Petitioner] replied, "I didn't shoot anybody." The detective testified that he did not smell alcohol on the [Petitioner] during this conversation. Later in his investigation, Detective Ely went to the office of the state medical examiner, where he received the bullet that had been removed from the body of the victim.
Teri Arney is a forensic scientist with the Tennessee Bureau of Investigation. She examined the shell casing found at the scene of the shooting, the bullet extracted from the victim's body, and the handgun found in the [Petitioner]'s pocket. She testified that the gun was a Taurus model PT140 .40 caliber semi-automatic pistol. She determined that the bullet and shell casing had been fired and ejected from the [Petitioner]'s gun.
Jeff Long is the EMT worker who administered medical aid to the victim. Mr. Long testified that when he encountered the victim, he was pale and sweating. The victim's lack of color indicated blood loss, and the perspiration indicated that he was beginning to go into shock. These signs suggested that the victim was bleeding internally and needed to be flown via helicopter to Nashville for surgery.
Jeffery Guy is a surgeon at Vanderbilt Hospital who treated the victim. He testified that the victim had extremely low blood pressure when he arrived at Vanderbilt. Despite the efforts of the surgical team, Scott Shafer died from blood loss as a result of gunshot wounds to the spleen, pancreas, and intestines.
Feng Li of the state medical examiner's office performed an autopsy on the victim's body on April 14, 2001. He testified that the victim died of gunshot wounds to different internal organs, and that all of the wounds had been caused by a single bullet. He also testified that no alcohol or drugs were detected in the victim's blood.
Rhonda Hill testified that her son Chris received a letter in May of 2001. She recognized the return address on the envelope as being the Bedford County Jail; so she decided to read the letter. The letter was dated May 23, 2001, the day after the [Petitioner]'s preliminary hearing. The letter was from the [Petitioner], who referred to himself as "Juvy." In the letter, the [Petitioner] stated that a girl named Shawn is "running her mouth."[1] The [Petitioner]'s letter asked Chris to prevent Ms. Nunnally from making the June 18 court date, which is the date on which the [Petitioner]'s case was presented to the grand jury. Finally, the [Petitioner] requested Chris to "hook up with Mickey and burn this [b----] house down." After reading the letter, Ms. Hill went to the police station and gave the police the letter. Henry Young, who was in jail with the [Petitioner], testified that he observed the [Petitioner] writing the letter. Mr. Young testified that after his preliminary hearing on May 22, 2001, the [Petitioner] mentioned LaShawn Nunnally's testimony and that it "needed to be taken care of."
After the State rested its case, the [Petitioner] testified on his own behalf. He stated that, on the afternoon of April 13, 2001, he had been out riding with the victim, Scott Shafer. The [Petitioner] had drunk three quarts of Budweiser beer in thirty minutes when he first joined the victim. After the [Petitioner] left the victim's car, the [Petitioner] decided to walk to LaShawn Nunnally's house. When he arrived, the victim was already there. The two men exchanged words regarding whether the victim had tried to "holler" at the [Petitioner]'s girlfriend. At this point, the [Petitioner] testified that his gun was in his pocket. He handed the gun to Ms. Nunnally, and the argument between the [Petitioner] and the victim escalated into a fight. The victim punched the [Petitioner] in the mouth, and the two wrestled on the ground. During the fight, the [Petitioner] suffered a busted lip and lost a tooth. After the fight, the two men apologized to each other, hugged, and left in the victim's car. The [Petitioner] stated that when they left, Ms. Nunnally still had the gun.
The [Petitioner] and the victim then went to a store, where the [Petitioner] bought another quart of beer. After riding around for awhile, the two men returned to Ms. Nunnally's house. When they arrived, Ms. Nunnally and Mike Jones were there. The group was sitting on the front porch talking, when Jarmaine Hill showed up. Mr. Hill and Ms. Nunnally went inside the house for fifteen to thirty minutes. When Mr. Hill came back onto the front porch, he told the [Petitioner] that he wanted to speak with him. The two men walked down the street and talked. The [Petitioner] testified that when they returned, he sat back down on Ms. Nunnally's front porch. Then the [Petitioner] looked up and observed Mr. Hill pointing a gun at the victim. The [Petitioner] stated that Mr. Hill shot the victim. Mr. Hill ran away, but the [Petitioner] remained on the porch. At that time, Ms. Nunnally approached the [Petitioner], said "Here, " and handed him the pistol. The [Petitioner] took the gun and ran. The [Petitioner] said that he ran past Smith's Food Town, and he stopped and knocked on the door of James Wheeler because he did not know how to get to his friend Matt Kelly's house. While he was at Mr. Wheeler's house, Matt Kelly drove up, and the [Petitioner] got in his car. The [Petitioner] testified that they drove to the hospital because he was concerned about the victim. Later on in his testimony, the [Petitioner] admitted writing the letter to Chris Hodge asking him to burn down the house of LaShawn Nunnally "to make her stop lying on [him]."
The defense called Jarmaine Hill as a witness, but he asserted his Fifth Amendment privilege against self-incrimination. Therefore, the trial court declared Mr. Hill unavailable, and the defense called Randall Lottie. Mr. Lottie testified that, while he was incarcerated with Mr. Hill, he heard Mr. Hill say that he killed Scott Shafer. Mr. Hill said that Mr. Shafer owed him money for drugs, and that another person was in jail for his crime.

Dennis Cedric Woodard, Jr., 2003 WL 169082, at *1-5.

         On April 19, 2005, the Petitioner filed a pro se petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The Petitioner argued in his petition that the post-conviction court should toll the one-year statute of limitations because he did not learn the supreme court denied his application for permission to appeal until after the statute of limitations in which to file his petition for post-conviction relief expired. The post-conviction court determined that the petition was untimely and that tolling of the statute of limitations was not warranted. The Petitioner did not appeal the dismissal of the petition, but he filed a second petition on May 10, 2013, requesting post-conviction relief and a writ of error coram nobis. See Dennis Cedric Woodard, Jr. v. State, No. M2013-01857-CCA-R3-PC, 2014 WL 4536641, at *5 (Tenn. Crim. App. Sept. 15, 2014), no perm. app. field. Although the Petitioner conceded his second petition was untimely, he requested tolling of the statute of limitations period in the interests of justice based upon his allegation that trial counsel deliberately deceived him by failing to disclose that counsel previously represented one of the State's witnesses. Id. at *6. The Petitioner, likewise, alleged multiple grounds of the ineffective assistance of counsel. The post-conviction court dismissed the petition as untimely and did not render findings of fact or conclusions of law relative to the request for a writ of error coram nobis. Id. This court reversed the summary dismissal based upon the Petitioner's diligent pursuit of appellate relief and remanded the case for an evidentiary hearing on the post-conviction and coram nobis claims. Id. at *11.

         At the evidentiary hearing, trial counsel testified that he had practiced law for twenty-five years and that he had been an assistant public defender for sixteen years. Counsel said that he had worked in the public defender's office for two years at the time he represented the Petitioner. Counsel said that he investigated the Petitioner's case by interviewing witnesses, talking to the Petitioner, following up on discovery, and reviewing the autopsy and laboratory reports. He said he interviewed the police officers involved, although he did not have any records relative to their conversations. He said the physicians were interviewed before the trial, although he could not recall whether he or the investigator interviewed them.

         Trial counsel testified that he previously represented Brooke Whitaker but not when he represented the Petitioner. Counsel said that relative to the Petitioner's case, he first heard Ms. Whitaker's name when he read the post-conviction petition. Counsel was unsure whether he knew the offense occurred near Ms. Whitaker's home and said that he did not know where she lived at the time of the offense and that nobody mentioned Ms. Whitaker's name in connection with the Petitioner's case.

          Trial counsel testified that the Petitioner claimed he was innocent and that counsel determined a mental health expert was unnecessary relative to the Petitioner's intent at the time of the offense. Counsel knew about the Petitioner's juvenile psychiatric records and said that had an expert testified, the jury would have heard evidence the Petitioner had been previously diagnosed with "intermittent explosive disorder, " which counsel described as "flying off the handle" and committing violent acts. Counsel said that he recalled the Petitioner had been previously evaluated for mental health reasons but did not recall the Petitioner's being hospitalized in a mental health facility. Counsel recalled that the Petitioner's diagnosis was depression caused by legal difficulties. Counsel said that based upon the diagnosis, requesting an expert was pointless. Counsel was unsure whether the trial court would have granted a request for expert funding.

         Trial counsel testified that he did not obtain an expert to testify about the Petitioner's intoxication because the evidence showed the Petitioner had been drinking on the day of the offense. Counsel said that after reviewing the records and the witness statements and speaking with the Petitioner, counsel determined an intoxication expert was unnecessary.

         Trial counsel testified that he was familiar with Henry Young, that he had represented Mr. Young, and that Mr. Young had been a long-time client of the public defender's office. Counsel denied, though, that he represented the Petitioner and Mr. Young simultaneously. Counsel said that the public defender's office represented Mr. Young before the homicide in the Petitioner's case, that Mr. Young pleaded guilty, and that Mr. Young, ultimately, violated the conditions of his community corrections sentence. Counsel said that at some point, Mr. Young incurred additional charges, that the public defender's office represented Mr. Young, that Mr. Young pleaded guilty, and that this charge occurred when the Petitioner's case was pending. Counsel said that after Mr. Young pleaded guilty in the subsequent case, counsel received the State's supplemental witness list in the Petitioner's case, which included Mr. Young. Counsel said that at that point, the public defender's office had ended its representation of Mr. Young.

         Trial counsel testified that the Petitioner reported counsel to the Board of Professional Responsibility, alleging that counsel represented the Petitioner and Mr. Young simultaneously and that counsel advised Mr. Young to testify against the Petitioner. Counsel denied the allegations and said that the Board of Professional Responsibility opened an investigation and, ultimately, dismissed the complaint. Counsel admitted he represented Mr. Young while the Petitioner's case was pending but said he did not represent Mr. Young at the time of the Petitioner's trial. Counsel agreed he represented the Petitioner when counsel represented Mr. Young at an August 2, 2001 guilty plea hearing but said that he and the public defender's office had no information or knowledge that Mr. Young was involved with or connected to the Petitioner's case. Counsel agreed the supplemental witness list relative to the Petitioner's case was received on October 5, 2001. Counsel said he did not file a motion to withdraw as the Petitioner's counsel because neither counsel nor the public defender's office represented Mr. Young when counsel learned Mr. Young was a State's witness at the Petitioner's trial. Counsel said he probably considered whether a motion to withdraw was necessary but said his office no longer represented Mr. Young. Counsel recalled that he received the supplemental witness list sixty days after his office ended its representation of Mr. Young and that no conflict of interests existed at that point. Counsel said that the Petitioner knew counsel represented Mr. Young because the Petitioner mentioned it to counsel.

         Trial counsel testified that Mr. Young's testifying at the Petitioner's trial was not "as big a deal" as the woman who testified that she saw the Petitioner shoot the victim and that the woman was identified as a State's witness in the initial witness list. He said that although Mr. Young was not his client when counsel received the supplemental witness list, counsel spoke to Mr. Young, who said that he saw the Petitioner write a letter while Mr. Young and the Petitioner were confined in the jail. Counsel said co-counsel cross-examined Mr. Young at ...

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