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Myers v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 23, 2016


          Assigned on Briefs July 26, 2016

         Appeal from the Criminal Court for Greene County No. 15CR008 John F. Dugger, Jr., Judge

         The Petitioner, Jessica Marie Myers, appeals from the Greene County Criminal Court's denial of her petition for post-conviction relief from her convictions for first degree murder and reckless endangerment, for which she is serving an effective life sentence. The Petitioner contends that the post-conviction court erred in denying relief on her ineffective assistance of counsel claims. We affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Jessica C. McAfee, Greeneville, Tennessee, for the appellant, Jessica Marie Myers.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; James B. (Jimmy) Dunn, District Attorney General; Cecil C. Mills, Jr., 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 Camille R. McMullen, J., joined.



         The Petitioner's convictions relate to a burglary at the victims' home following an altercation between the Petitioner's then-boyfriend, who was the Petitioner's codefendant, and the victims regarding pills. During the burglary, Jimmy Cutshall was shot and killed, and Rhonda Cutshall was shot in the head but survived. The State proceeded on a criminal responsibility theory relative to the Petitioner's guilt. The jury found the Petitioner guilty of first degree premeditated murder and two counts of first degree felony murder for Mr. Cutshall's homicide, and reckless endangerment for Ms. Cutshall's shooting. This court affirmed the convictions but remanded the case for merger of the first degree murder convictions. State v. Jessica M. Myers, No. E2012-01814-CCA-R3-CD, 2013 WL 5436955, at *1, 10-12 (Tenn. Crim. App. Sept. 27, 2013), perm. app. denied (Tenn. Feb. 12, 2014).

         Codefendant Shawn Jones was tried before the Petitioner, was convicted of first degree murder, and was sentenced to life. State v. Shawn Anthony Jones, No. E2012-00480-CCA-R3-CD, 2013 WL 4041135, at *1 (Tenn. Crim. App. Aug. 9, 2013), perm. app. denied (Tenn. Jan. 15, 2014). A second codefendant, Chad Rader, who drove the Petitioner and Mr. Jones to the burglary but did not participate otherwise, pleaded guilty to an unspecified lesser offense after the Petitioner's trial.

         The Petitioner filed the present post-conviction action and, as relevant to this appeal, alleged that trial counsel had provided ineffective assistance in failing to (1) address the DNA evidence adequately, (2) file a motion to suppress the Petitioner's pretrial statement, (3) raise issues in the previous appeal, and (4) raise a motion to dismiss in a timely manner.

         At the post-conviction hearing, trial counsel testified that he learned about the existence of evidence consisting of a fingernail inside a glove shortly before he met with the prosecutor to request a plea offer for second degree murder in exchange for the Petitioner's testimony against her codefendant. Counsel said the prosecutor stated that no offers would be made. Counsel said that he did not file a motion to suppress the fingernail and glove evidence but that he took the position during the plea discussion with the prosecutor and during his cross-examination of the State's forensic witnesses about the State's inability to associate the fingernail and glove with a specific time or place. He said the fingernail and glove evidence was the only forensic proof tying the Petitioner to the crimes but did not think it was the "big reason" the Petitioner was convicted. He said he and the Petitioner discussed this evidence. Although counsel did not specifically recall having done so, he said he was "sure" he had questioned the State's expert about the significance of the presence of DNA from three individuals on the glove. He agreed that the fingernail analysis showed the Petitioner's DNA and that the glove analysis showed the codefendant's and Rhonda Cutshall's DNA.

         Trial counsel agreed that a large bag of clothing was recovered from the codefendant's house. He agreed that most of the clothing items were tested for DNA evidence. He said he raised in closing argument the possibility that cross-contamination had occurred. He noted that a Tennessee Bureau of Investigation (TBI) agent admitted that cross-contamination could occur. He agreed that in view of the evidence of possible cross-contamination, he did not think it was necessary to request expert funding for independent DNA testing. He did not recall whether any evidence was presented to show which individuals owned various items of clothing from the bag.

         Trial counsel testified that his defense focused on showing that the Petitioner had not been the shooter and that she had been a victim of a "brute, " referring to the codefendant. He said he had hoped the evidence of the codefendant's aggressiveness could be used to show "battered woman syndrome" such that the Petitioner had been forced to participate in the offenses and did not have the intent to commit murder or the predicate felonies of the felony murder counts. He said that he contacted a psychiatrist with whom he had worked previously and who he thought was "the best in the state, " that the psychiatrist agreed to work for court-appointed rates, and that the psychiatrist met with the Petitioner. Counsel said that after the meeting, the psychiatrist informed him that in the psychiatrist's opinion, the Petitioner did not have battered woman syndrome or post-traumatic stress disorder. Counsel said that he asked the court for funds to hire a second psychiatrist to serve as a defense expert but that the court denied the request. Counsel asked the Petitioner's father to provide the expert funds, but the father did not.

         Trial counsel testified that despite the lack of expert assistance, he presented a battered woman defense through testimony of the Petitioner's family members and a former police officer who had arrested the codefendant and had seen the Petitioner's bruises. Counsel noted that the evidence of the Petitioner's participation was limited to her "kicking down [the] door, " and counsel said the proof showed the Petitioner twice kicked and tried to get away from the codefendant but that the codefendant had run after the Petitioner and forced her to participate.

         Trial counsel testified that he filed a motion requesting that the State be prohibited "from referring to any evidence that [the Petitioner] was the trigger puller" because the State had offered evidence at a previous trial that the codefendant had pulled the trigger, but he said the trial court denied his motion. Counsel said, however, that he argued the Petitioner was less culpable than others who may have been involved in the crime.

         Trial counsel testified that the Petitioner gave three statements to law enforcement before counsel was appointed. He noted that she had given a statement, that she had been incarcerated, and that she had sent two requests to talk with the police again while she was incarcerated. He also noted that a trial court's ruling on a denial of a motion to suppress would not be reversed absent abuse of discretion and said he had not raised the court's denial of the motion to suppress in the appeal because he did not think relief would be granted. He acknowledged that the Petitioner and two other individuals gave incriminating statements.

         Trial counsel acknowledged that he did not meet with the Petitioner, who was incarcerated in the Department of Correction, before filing the appellate brief. Counsel said, however, that he always provided his clients with a copy of the filed appellate brief. He said he did not raise an appellate issue regarding the trial court's denial of funding for a second defense expert because he thought the ruling was within the trial court's discretion.

         Trial counsel acknowledged that Codefendant Jones's family, particularly his grandmother, "raised a stink" because they thought the Petitioner was "some sort of evil woman or something like that." Counsel said, however, that the codefendant's family's feelings were unrelated to the State's decision not to extend a plea offer to the Petitioner. Counsel said that if the State had made an offer, he would have communicated it to the Petitioner, without regard to whether he thought the offer was favorable to the Petitioner.

         Trial counsel testified that early in the case, he noticed a defect in the indictment because the "true bill" box had not been checked. He said he was aware of Tennessee Rule of Criminal Procedure 12(b)(2)(B), which stated that generally, an allegation regarding a defective indictment must be raised before the trial. He noted, however, that the rule also stated that the court could hear a claim at any time if the indictment failed to show jurisdiction or failed to charge an offense. He said that he decided to wait to raise the issue in the motion for judgment of acquittal because jeopardy attached when the jury had been sworn but that the trial judge noticed the defect before the motion for judgment of acquittal. He said he had not raised the issue earlier because he did not want to give the State the opportunity to cure the defect. Counsel said the court called the grand jury foreperson as a witness to remedy the defect. He said that notwithstanding the grand jury foreperson's testimony, he made a motion to dismiss for lack of jurisdiction, which the court denied. Counsel said that the appellate courts had ruled repeatedly that the motion had to be raised before the trial and that this court held accordingly in the Petitioner's case. He noted, however, that this court merged the Petitioner's murder convictions into a single count. He said that the merger foreclosed the opportunity to raise the issue regarding the deficiency of the indictment in the Tennessee Supreme Court.

         Trial counsel testified that he did not raise an appellate issue regarding jury sequestration because the jury pool came from another county. He said that he considered the choice not to request a sequestered jury to be a matter of trial strategy and that he had been concerned about the jurors developing a "mob mentality" if they were sequestered. He said that although he had filed a motion to sequester the jury in the trial court, he did not ...

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