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Hunter v. State

Court of Criminal Appeals of Tennessee, Knoxville

December 1, 2016


          Assigned on Briefs October 25, 2016

         Appeal from the Criminal Court for Hamilton County No. 284870 Don W. Poole, Judge.

         The petitioner, David Alan Hunter, appeals from the post-conviction court's denial of relief from his conviction for first-degree murder and attempted especially aggravated robbery. On appeal, the petitioner argues he received ineffective assistance of counsel due to trial counsel's failure to adequately explain the benefits of accepting a plea agreement despite his assertion of innocence and failure to convey a formal plea offer made by the State. Following our review, we affirm the denial of the petition.

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

          Lorrie Miller, Chattanooga, Tennessee, for the appellant, David A. Hunter.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert L. Holloway, Jr., JJ., joined.


          J. ROSS DYER, JUDGE

         Facts and Procedural History

         The petitioner was convicted by a Hamilton County Criminal Court jury of first degree murder and attempted especially aggravated robbery, for which he received an effective sentence of life imprisonment. This Court affirmed his convictions on direct appeal, and our Supreme Court denied his application for permission to appeal. State v. David A. Hunter, E2010-01351-CCA-R3-CD, 2011 WL 1532086, at *1 (Tenn. Crim. App. April 20, 2011). On direct appeal, this Court recited the following underlying facts and procedural history:

On March 16, 2008, James Fleming, Jr., a cab driver for Mercury Cab Company, was shot in the head during a failed robbery attempt in the St. Elmo area of Chattanooga. He died instantly. Two days later, Chattanooga Police Department (CPD) Detective Justin Kilgore arrested the [then] fifteen-year-old [petitioner] for Mr. Fleming's murder. Although the [petitioner] confessed to shooting the victim, at trial he testified that another individual, Dewayne Johnson, had committed the murder. The jury convicted the [petitioner], as indicted, of the first degree felony murder and attempted especially aggravated robbery of the victim.
Steve Troxler, a longtime resident of St. Elmo, was at home with his family on the evening of March 16, 2008, when, at approximately 9:10, he heard a gunshot followed by a crash. He went outside to investigate the source of the noise and discovered that the victim's cab had crashed into a nearby garage. When he looked inside the cab, Mr. Troxler discovered that the victim had suffered a gunshot wound to the left side of his head. Mr. Troxler was about to check the victim's pulse when his wife, a nurse, told him not to because it was "too late." He and other neighbors then waited on the police, who soon arrived. Mr. Troxler did not see anyone running from the victim's cab, but he did recall that there was a wooded area adjoining a cemetery nearby.
Christine Edwards, the victim's niece, regularly rode with the victim in his cab and was doing so on the night of March 16, 2008. She admitted that they had smoked marijuana together earlier in the evening. She rode with the victim to pick up a "fare" in the Alton Park area of Chattanooga. She recalled that the individual entered the back seat of the cab from the driver's side and that he was a young African American male dressed in black clothing and wearing a "black doo rag" on his head. Ms. Edwards later identified the individual as the [petitioner].
Ms. Edwards testified that the [petitioner] directed the victim to the [petitioner's] destination, a green house in the St. Elmo area. As the cab approached the residence, the victim turned on the interior dome light of the cab. The [petitioner] then placed a gun to Ms. Edwards' head and told her to "give [him] all [her] shit." When Ms. Edwards reached for her purse, the [petitioner] directed her to keep her hands up and then moved the gun to the victim's head. Ms. Edwards described an "ugly confrontation" between the [petitioner] and the victim during which she was ordered out of the cab. As she sat on the curb watching, the victim and the [petitioner] were "tussling" and "wrestling with the steering wheel of the cab." Finally able to put the cab in drive, the victim drove the cab forward, skirting a dumpster before crashing into a shed just as Ms. Edwards heard two gunshots.
After the cab crashed, Ms. Edwards "got up and ran" several houses away from the crash site. She saw the [petitioner] walking toward her, and she entered a home through an unlocked front door. When the homeowner met her in the hallway, Ms. Edwards reported that her uncle had been robbed. The homeowner telephoned the police who arrived "within like a minute."
The police informed Ms. Edwards that her uncle had died. After providing a statement to Detective Kilgore, Ms. Edwards reviewed several photographic lineups but was unable to make any identification of the assailant. She initially described the assailant as approximately 5'8" in height and weighing 145 to 150 pounds. The [petitioner], however, weighed over 200 pounds and was taller than 5'8". Ms. Edwards first identified the [petitioner] six weeks later upon seeing him at the juvenile court transfer hearing. Despite the discrepancies between her description of the assailant and the [petitioner's] actual physical characteristics, Ms. Edwards stated, "I recognized him [at the transfer hearing]. I couldn't believe that it was him, but they found him, that was him. The same guy I described, it was him."
Elizabeth Marlar Capecchi lived in the St. Elmo area of Chattanooga on March 16, 2008. As she was putting her youngest son to bed that evening, she heard knocking at her front door and walked to her foyer to find Ms. Edwards in her home. She recalled that Ms. Edwards was "just kind of yelling and screaming and sort of crying." Ms. Edwards told Ms. Capecchi that "[s]omeone tried to mug us" and "he's behind me." Ms. Capecchi looked out the side transom windows of her door to see someone walking up the hill toward Forest Hills Cemetery. She described the individual as a "kind of hefty, stocky black guy, " wearing dark clothing and weighing about 220 pounds. She could not, however, see the individual's face.
Doctor James Kenneth Metcalf, Hamilton County Medical Examiner, performed an autopsy of the victim and determined that the victim died from a single gunshot wound to his head which entered above and behind his left ear. The bullet pierced the skull on both sides and came to rest just beneath the skin near the victim's right ear. Doctor Metcalf opined that the victim's death was instantaneous.
Doctor Metcalf removed the bullet and provided it to CPD Detective Chad Rowe who forwarded it to the Tennessee Bureau of Investigation (TBI) Crime Lab for analysis. The parties stipulated that TBI Special Agent Steve Scott identified the bullet as a .38 caliber automatic. Special Agent Scott could not, however, match the bullet to any handgun due to insufficient markings.
Former CPD Officer Brian Lockhart worked for the CPD crime scene unit in March 2008. He swabbed the victim's cab for blood and other DNA evidence. He also processed the vehicle for latent fingerprints and gunshot residue evidence.
TBI Special Agent James Russell Davis, II, performed microanalysis on items collected by Officer Lockhart. Testing revealed the presence of gunshot residue on the driver's side headrest of the cab. No gunshot residue was discovered on any clothing submitted for testing. Special Agent Davis could not, however, determine the owner of the clothing that was submitted for testing.
TBI Special Agent Jennifer Shipman performed serology testing on samples collected by Officer Lockhart. Of the non-degraded samples submitted, none matched the [petitioner] or Dewayne Johnson. Of the blood samples submitted for testing, all matched the DNA of the victim.
TBI Special Agent Dabney Kirk performed fingerprint analysis of the latent fingerprints collected by Officer Lockhart. Of the seven prints submitted, only three were identifiable. None matched Dewayne Johnson or the victim. One of the three prints matched the [petitioner]. Special Agent Kirk acknowledged that there was no way to ascertain when the print was left on the cab.
Detective Justin Kilgore used telephone logs from the cab company to determine the telephone number of the last fare picked up by the victim. Through the assistance of the cellular telephone carrier associated with the telephone number, Detective Kilgore ultimately determined that the cellular telephone was owned by Leslie Bailey, the [petitioner's] mother. Further assistance from the cellular telephone company enabled Detective Kilgore to determine the precise location of the cellular telephone, leading to the apprehension of the [petitioner] on March 18, 2008.
Detective Kilgore transported the [petitioner] to the CPD service center where he placed the [petitioner] in an interrogation room. Knowing that the [petitioner] was a juvenile, Detective Kilgore contacted the [petitioner's] mother who arrived at the service center at approximately 9:30 p.m. Detective Kilgore did not question the [petitioner] while awaiting Ms. Bailey's arrival. After a full explanation of his Miranda rights, the [petitioner] initialed each right as an indication of his understanding and signed a waiver of his rights. Detective Kilgore, the [petitioner's] mother, and another officer witnessed the execution of the waiver.
After being confronted with evidence concerning the telephone logs, the [petitioner] admitted that, after spending March 16 with friends, he went to "The Villages" where he telephoned the cab company. He used "*67" to block his cellular telephone number from showing on the cab company telephone's caller identification. When the cab arrived, he entered the back seat through the driver's side and directed the cab driver to take him to 44th Street in the St. Elmo area. The [petitioner] told Detective Kilgore that there was a female passenger in the front seat with the driver. When the cab stopped, the [petitioner] pulled a gun from his pocket and held it to both the cab driver and the female passenger's heads. The [petitioner] ordered the female from the vehicle. When the [petitioner] demanded money from the cab driver, the cab driver "[t]ried to drive off." The [petitioner] admitted to Detective Kilgore that the cab driver "kept trying to drive off and I shot him." The [petitioner] said that the cab driver hit another car before crashing into the garage. When the car stopped, the [petitioner] fled the scene and walked back to the home of his best friend, Ronald White. He said that he walked through a wooded area and a cemetery on his way to Mr. White's home.
In his statement to police, the [petitioner] said that he was wearing bright green shorts and a black t-shirt. He reported that the gun was a black .38 caliber automatic that he had found in the grass a "couple of days" earlier on Jackson Street. He claimed that he was walking with Mr. White when he found the gun and that he concealed it in the back waistband of his pants. He said that after the shooting, he gave the gun to an unknown black male on his way back to Mr. White's house. The [petitioner] told Detective Kilgore that he looked up the telephone number to the cab company before he left Mr. White's house that night. He said that he planned to rob the cab driver before leaving but that he had no intention to kill anyone. The [petitioner] did not obtain any money from his efforts.
Two days after the [petitioner] made his statement, the [petitioner's] mother, Leslie Bailey, telephoned Detective Kilgore to tell him that the [petitioner] had told her that Dewayne Johnson committed the offenses. Detective Kilgore investigated this information and determined, based upon an interview with Mr. Johnson and the absence of any physical evidence linking him to the crimes, that Mr. Johnson had nothing to do with the shooting.
At trial, Detective Kilgore admitted that the telephone records were not "necessarily indicative" of who had placed the call to the cab company. He also acknowledged at trial that the [petitioner's] physical characteristics differed somewhat from the eyewitness descriptions and that the eyewitness descriptions may more accurately describe Mr. Johnson. He reiterated, however, that the [petitioner] possessed the cellular telephone within two days of the offenses and that the [petitioner] confessed to the shooting. Detective Kilgore also noted that the .38 caliber bullet recovered from the victim was compatible for use in a .38 caliber handgun.
At trial, the [petitioner] testified that he was staying with Mr. White during spring break on the weekend of March 16, 2008. He said that he and his friends spent the day visiting friends. He said that they typically walked but sometimes rode the bus or called a cab to get to their destinations. After visiting several friends during the day, the [petitioner] and Mr. White returned to Mr. White's home where they watched a movie. Sometime during the evening while the [petitioner] and his friends were outside, Mr. Johnson approached the [petitioner] with an offer to make some "quick money." The two men then planned the robbery of a cab driver. The petitioner obtained the telephone number to the cab company and telephoned for the cab on his cellular telephone. As the cab approached, the [petitioner] changed his mind and abandoned the plan to assist in the robbery. He gave Mr. Johnson his cellular telephone and asked him to return it to him ...

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