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Johnson v. State

Court of Criminal Appeals of Tennessee, Jackson

November 30, 2016

LAMONT JOHNSON
v.
STATE OF TENNESSEE

          Assigned on Briefs November 1, 2016

         Appeal from the Circuit Court for Gibson County No. 8954 Clayburn Peeples, Judge

         The petitioner, Lamont Johnson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

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

          Anna Banks Cash, Jackson, Tennessee, for the appellant, Lamont Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler Parham and Jason Scott, Assistant District Attorney Generals, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         In 2010, a Gibson County jury found the petitioner guilty of first degree murder in the perpetration of aggravated child abuse for the death of his five-month-old daughter. The petitioner was sentenced to life with the possibility of parole, and he appealed. On direct appeal, this Court summarized the factual and procedural history of the petitioner's case as follows:

On March 1, 2010, the [petitioner] was indicted on one count of first degree felony murder in violation of Tennessee Code Annotated section 39-13-202. The indictment alleged that the [petitioner] unlawfully killed the five-month-old victim during the perpetration of aggravated child abuse. The charges stemmed from activity that occurred on July 8, 2009.
At 12:33 p.m. on that date, the [petitioner] called 911 and reported that the victim was not breathing. When EMTs arrived at the scene, they observed the [petitioner] and a lifeless infant on the floor. The EMTs immediately began CPR and transported the victim to the hospital. An emergency room physician and the hospital's staff attempted pediatric lifesaving procedures for approximately one hour before the victim was declared dead.
The victim's autopsy revealed that she had died of multiple blunt force injuries to her head, chest, and abdomen. Based on a timeline provided by the [petitioner] and the victim's mother, investigators concluded that only the [petitioner] and his son were at home with the victim when the injuries occurred. When confronted with the autopsy findings, the [petitioner] claimed to investigators that the victim had stopped breathing after she had fallen off of a sofa. However, experts at the [petitioner's] trial later opined that the victim's injuries were not consistent with her having fallen off of a sofa and could not have been caused by the administration of CPR. One expert opined that the victim's injuries-which included retinal detachment, massive internal bleeding, a front-to-back skull fracture, and multiple rib fractures-could only have been caused by "extraordinarily violent" shaking that "would be very frightful to someone who was watching it."
At the [petitioner's] trial on December 12-13, 2011, the defense predicted in its opening statement that the prosecution's witnesses would not tell "the whole story" concerning the incident and stated its confidence that after considering all of the evidence the jury would feel compelled to return with a verdict of not guilty. At no point during that statement was any reference made to the [petitioner's] eight-year-old son. However, during the defense's cross-examination of the State's penultimate witness, the victim's mother, defense counsel asked questions apparently intended to cast suspicion upon the boy.
During her direct testimony, the victim's mother testified that she and her children were living together and that the [petitioner] had been in the process of moving in with them when the incident occurred. She also gave testimony about the events that transpired at the hospital following the incident, and she related her grief when she learned that her daughter had died. She testified concerning the [petitioner's] behavior on the day of the incident and on the following day, which involved fainting, drinking, smiling, and laughing at various points. She described the couple's initial interviews with the police after the victim's death was ruled a homicide. She testified that prior to the police investigation, the [petitioner] had never mentioned anything to her about the victim having fallen off of a sofa. She testified that she first learned that the [petitioner] was making such a claim from the investigating officers.
During the victim's mother's cross-examination, however, the defense focused almost exclusively on the witness's feelings concerning the [petitioner's] son. The victim's mother testified that the [petitioner's] son lived nearby with his mother and that he would frequently come over to her house to spend the night. The victim's mother acknowledged that she had seen the [petitioner's] son hold the victim in the past. The victim's mother admitted that she had asked one of the investigators if the [petitioner's] son had been anywhere around the victim on the day of the incident. The victim's mother also testified that the [petitioner's] son had been in lots of trouble at school, had "all sorts of problems" with fighting and violence, and that she was "[j]ust a little bit" concerned about the [petitioner's] son being around her children.
After this testimony, the State's final witness, an investigating officer, testified concerning the investigation generally and discussed a statement given by the [petitioner] to police, in which he claimed to have left the victim on a living room sofa while he made her a bottle and that she fell on the floor, "crying loudly, " when he came back in. The witness testified that the [petitioner] ...

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