Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs October 25, 2016
from the Criminal Court for Hamilton County No. 284870 Don W.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Miller, Chattanooga, Tennessee, for the appellant, David A.
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.
Ross Dyer, J., delivered the opinion of the court, in which
James Curwood Witt, Jr. and Robert L. Holloway, Jr., JJ.,
ROSS DYER, JUDGE
and Procedural History
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
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
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
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,
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.
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
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 ...