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Schaffer v. State

Court of Criminal Appeals of Tennessee, Jackson

March 31, 2017

HAROLD BERNARD SCHAFFER
v.
STATE OF TENNESSEE

          Assigned on Briefs December 6, 2016

         Appeal from the Circuit Court for Dyer County No. C06-299 R. Lee Moore, Jr., Judge

         The Petitioner, Harold Bernard Schaffer, appeals from the Dyer County Circuit Court's denial of his petition for post-conviction relief from his conviction for first degree felony murder, for which he is serving a life sentence. The Petitioner contends that the post-conviction court erred in denying relief on his 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 Circuit Court Affirmed.

          James E. Lanier, District Public Defender, and Sean P. Day, Assistant Public Defender, for the appellant, Harold Bernard Schaffer.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The Petitioner's conviction relates to the 1985 murder of William Pierce, Jr. The victim was found inside his business with his throat cut. His wallet and a large quantity of cash were missing. The police collected a number of blood samples, and a sample not belonging to the victim was entered into the Combined DNA Index System (CODIS). In 2005, the unidentified sample was matched with the Defendant's DNA profile. The Defendant was convicted of first degree felony murder and sentenced to life imprisonment. In the appeal of the conviction, this court summarized the evidence as follows:

[T]he proof in this case is not overwhelming. However, under our standard of review, we hold that it is sufficient to establish the Defendant as the perpetrator of the felony murder of the victim. Dr. Smith testified that the victim had been killed by the infliction of stab and incised wounds. He opined that a carpet knife could have been the weapon. The victim had suffered cuts and abrasions to his hands, leading to the reasonable inference that the victim had put up a struggle. It is also reasonable to infer that an attacker who is wielding a knife may himself suffer bleeding wounds when his victim responds with physical resistance. Blood recovered from the crime scene on the day of the crime was determined by DNA analysis to belong to someone other than the victim. Eventually, a DNA match was found in CODIS, indicating that the Defendant was the source of the blood. DNA analysis of a known standard subsequently obtained from the Defendant placed the Defendant at the scene of the crime. The blood sample generating the match was found behind the counter of the store, between the victim and the cash register. Blood on keys found on the cash register also was subjected to DNA analysis. The analysis indicated that the Defendant could not be excluded as one of the contributors of the blood found on the keys. The reasonable inference is that, after killing the victim and thereby sustaining bleeding wounds, the perpetrator sought access to the contents of the cash register. By doing so, the perpetrator had the opportunity to leave his own blood in the area near the cash register, including on the floor behind the counter on which the cash register sat and the cash register keys were found. In 1985, Van Sant was able to obtain enzymes and proteins from the blood sample collected from behind the counter. His testimony that the enzymes and proteins contained in blood break down when exposed to the environment supports the inference that the blood behind the counter was fresh when it was collected at the crime scene.

State v. Harold Bernard Schaffer, No. W2010-01854-CCA-R3-CD, 2012 WL 3792034, at *13 (Tenn. Crim. App. Aug. 30, 2012), perm. app. denied (Tenn. Feb. 12, 2013).

         The Petitioner filed the present post-conviction petition and, as relevant to this appeal, alleged that trial counsel had provided ineffective assistance by (1) failing to attack the validity of the indictment on the proper basis, (2) failing to challenge the search warrant used to obtain the Petitioner's DNA, (3) failing to re-test a DNA sample, (4) failing to investigate alibi witnesses, (5) failing to develop an effective theory of the case, (6) delivering an inflammatory opening statement, (7) failing to object to a fingerprint evidence jury instruction, and (8) stipulating to evidence without the Petitioner's permission.

         We confine our review of the post-conviction hearing to the testimony relevant to the issues raised on appeal. At the hearing, trial counsel testified that the proof in the Petitioner's trial revolved around DNA evidence. Counsel identified a Sorenson Laboratories form relative to the submission of a DNA sample for testing and said that Dr. William Watson, the defense's DNA expert, completed the form. Counsel said that the laboratory identified human DNA and that the sample was "so degraded that it was useless as far as any kind of identification."

         The Sorenson Laboratories DNA sample submission form and the laboratory report were received as exhibits and reflected that the "Pro/Co" test was requested and performed on the sample. The laboratory report reflected that although the sample was degraded, it contained male DNA.

         Trial counsel testified that he subpoenaed Sorenson Laboratories' forensic chemist, Scott Walton, and that Mr. Walton testified about the degraded DNA sample at the suppression hearing. Counsel said that his argument centered on identifying the person responsible for the degradation of the sample between the Tennessee Bureau of Investigation's (TBI) analysis and Sorenson Laboratories' analysis. Counsel did not remember how he investigated the chain of custody or the sample's storage conditions but said that he "would have talked perhaps to the TBI people." Counsel stated that the TBI told him the sample had been stored according to protocol and that it should not have degraded. Counsel did not remember whether he asked Dr. Watson to investigate or question the TBI.

         Trial counsel testified that until the prosecutor mentioned a more sensitive DNA test at a pretrial hearing, he was not aware it existed. Counsel said that it never occurred to him to ask Sorenson Laboratories which test they would use and that "they wouldn't at least use the same test, if not a more sensitive one." Counsel stated that he did not know what Dr. Watson was thinking, that the testing was a waste of time, and that he could not "conceive of an expert . . . using a less sensitive test[.]" Counsel said that he and Dr. Watson did not discuss the test Dr. Watson requested because it made no sense for Dr. Watson to request a less-sensitive test. Counsel stated that the witness from Sorenson Laboratories testified that Dr. Watson requested the less-sensitive test, that counsel was "flabbergasted" by the decision, and that Dr. Watson had no explanation. Counsel did not remember why he requested funding to retest the sample. Counsel stated that at the time of the post-conviction hearing, a portion of a sample had not been tested. Counsel said that Dr. Watson may have suggested retesting in order to obtain usable results and to check the accuracy of the State's test results. Counsel stated that he filed an ex parte motion to obtain funding for retesting and identified a July 24, 2009 order granting the motion.

         The ex parte motion for funds to retest the DNA sample, the order granting the motion, and a letter from trial counsel to the trial court requesting an order to permit the TBI to send the sample to the outside laboratory were received as exhibits.

         Trial counsel testified that he did not send the DNA sample to be retested because Dr. Watson suggested there was "a substantial possibility" more sensitive testing would identify the Petitioner's DNA. Counsel said that the degraded sample "was far more valuable to me as evidence than trying to see . . . if the State's test was correct" and that the State's test result was "probably correct." Counsel acknowledged that because the order was ex parte, he was under no duty to disclose the results of a repeated test to the State. Counsel noted that the State would have known about the retesting because the TBI had to authorize sending the sample. He said that he thought presenting an argument at the trial relative to the degraded DNA sample would have been unethical if he had another test result identifying the Petitioner's blood. Counsel noted that if the prosecutor had discovered the test results, the prosecutor could have subpoenaed the expert who tested the sample. Counsel said that he decided not to pursue further testing based upon Dr. Watson's advice.

         A March 12, 2010 letter from trial counsel to the Petitioner was received as an exhibit. Counsel stated in the letter that he and the Petitioner had discussed the decision not to retest the DNA sample, that the Petitioner did not object to the decision, that the results of retesting could have been damaging to the Petitioner's case, and that the State's current DNA results were "of little value."

         Trial counsel identified a November 30, 2009 motion to suppress the DNA evidence. Counsel said that the prosecutor failed to provide discovery related to the DNA test and that the motion discussed the inconclusive Sorenson Laboratories test results, the Tennessee Supreme Court's delay in approving funds for retesting, and the Petitioner's decision not to retest the sample in order to proceed to trial. Counsel did not remember whether the Petitioner's insisting on a speedy trial, rather than Dr. Watson's concerns, was the reason counsel did not have the sample retested. Trial counsel did not remember to what Dr. Watson referred when he testified at a pretrial hearing that the defense team decided "another outside independent laboratory would be a better approach."

         Trial counsel recalled that a set of keys was collected at the crime scene, but he did not remember whether the State indicated that it intended to use the keys at the trial. Counsel said that blood was present on the keys and that the Petitioner could not be excluded as the contributor, that the test result was "meaningless, " and that although he did not remember whether he considered independent testing of the DNA sample from the keys, he was unsure why he would have because the sample had no evidentiary value. Counsel said that he recalled the prosecutor's stating that he intended to use the keys at the trial and that he decided not to challenge the evidence because "it was more valuable to argue to the jury that the State is so desperate . . . that they're presenting evidence which has virtually no evidentiary value[.]"

         Trial counsel identified a September 6, 2007 motion to suppress the evidence resulting from the DNA test performed on the Petitioner. Counsel said that a nurse took a blood sample from the Defendant in prison and that the basis for the motion to suppress was a defect in the search warrant's affidavit. Counsel could not remember investigating whether the search warrant was ever filed or returned to the trial court. Counsel said that the Petitioner "made a big issue about everything" but that he could not remember whether the Petitioner was concerned about the search warrant's affidavit.

         The motion to suppress was received as an exhibit. It alleged that false statements recklessly made and essential to establishing probable cause were present in the search warrant affidavit used to procure the Petitioner's DNA sample. The motion argued that the stated location at the crime scene of the drop of blood was essential to probable cause because the sample described in the affidavit was closer to the victim's body than the actual sample at issue.

         Trial counsel did not remember from which court the search warrant was issued. Counsel agreed that he did not challenge the jurisdiction of the issuing court. Counsel said that he did not check to see if the search warrant "made it up here to the trial court." Counsel did not remember the Petitioner's asking counsel to determine whether the search warrant had been filed with the court clerk and said that if counsel considered the issue, he decided it would be insufficient to suppress the evidence. Counsel noted that if the issue were sufficient to suppress the evidence and he did not raise it, "that would seem to be ineffective assistance." Counsel agreed that Tennessee Rule of Criminal Procedure 41 required the return and filing of search warrants, but he did not know whether a violation of Rule 41 resulted in the suppression of evidence. Counsel commented that the reason he did not raise the issue was probably because the State "would just go get another sample . . . and analyze that and match it. I mean, . . . of what benefit would it be, really, seriously?" Counsel agreed that in the motion to suppress, he raised the discrepancy between the sample described in the search warrant affidavit and the one that matched the Petitioner's DNA. He also agreed that the blood sample described in the search warrant affidavit had less probative value and did not establish probable cause because it did not match the Petitioner.

         The State addressed the post-conviction court and stipulated to the fact that the filing of the search warrant affidavit was not raised in the motion to suppress and that "[t]here was a lack of sufficiency of the affidavit." The State also stipulated that the suppression issue was not raised in the original or amended motion for a new trial and noted that the Court of Criminal Appeals addressed the issue in the appeal of the Petitioner's conviction.

         A copy of the search warrant used to obtain the Petitioner's DNA and the supporting affidavit were received as an exhibit. The affidavit stated the following:

1. On or about May 17, 1985, a criminal investigation into the homicide death of William Pierce was begun.
2. When the crime scene was processed, a bodily fluid sample was recovered from the victim's left foot.
3. Forensic testing revealed that the bodily fluid sample did not belong to the victim.
4. [DNA] was isolated from the sample and subsequently entered into [CODIS].
5. [The Petitioner's DNA had also been entered into CODIS].
. . ..
8. The DNA, isolated from the bodily fluid sample found on the victim's left foot, was matched to a known standard from [the Petitioner].
9. To confirm the match, a known blood standard must be obtained and submitted for DNA testing.

         The January 2008 suppression hearing transcript was received as an exhibit. At the hearing, TBI Agent Nathan Bishop testified that he wrote the affidavit while reading the case file and that he inadvertently mixed up the samples. TBI Agent Chad Johnson testified that testing the other half of a sample in order to confirm the TBI's result would have been useful. Trial counsel requested funding for an investigator and stated that the Petitioner's family had belatedly approached him with possible alibi information.

         The trial court's order denying the motion to suppress was received as an exhibit. The court found no evidence of recklessness by Agent Bishop and that the samples had equal value in establishing probable cause because both indicated the Petitioner was present at the crime scene. The court noted that the location of the drop of blood in the room was not material to a probable cause determination.

         Trial counsel testified that any error in the search warrant was not "something that would need to be in the motion for new trial anyway, because it wasn't a trial error." Counsel said that he did a lot of appellate work and that he knew if an error "happened at trial" but was not raised in the motion for a new trial, it was waived.

         Trial counsel testified that if he did not renew a viable objection at the trial and that as a result, the issue was waived on appeal, "that could be a good issue" for post-conviction purposes. Counsel read from the Court of Criminal Appeals opinion that the suppression issue had been waived because it was not raised in the motion for a new trial. When asked whether counsel was familiar with the relevant procedural rule, counsel responded, "Apparently not." Counsel said that the trial court clerk did not possess the search warrant or supporting affidavit and that it was possible the documents were lost, rather than never filed. Counsel did not remember whether he attached the search warrant and affidavit to the motion to suppress but acknowledged that if they did not appear in the record, he did not. Counsel stated that trial court clerks in small counties reportedly "dumped all the papers" from a trial record into a box to send to the appellate court clerk and that counsel had a previous issue with this trial court clerk regarding documents not being contained in the appellate record, including motions, responses, and orders. When asked whether he took steps to ensure the search warrant and supporting documentation were included in the record, counsel said, "I would think that I had asked that the record be supplemented with it, and they said they didn't have it. But, I mean, maybe not."

         Letters from the Petitioner to trial counsel were received as exhibits and reflected the Petitioner's request for counsel to preserve the search warrant affidavit issue for the appeal. The Petitioner also expressed in the letters that he believed the location of the DNA sample at the crime scene was important to the probable cause determination. The Petitioner noted that the affidavit listed a non-existent piece of evidence because the affidavit described blood on the victim's foot, whereas the actual sample was taken from the floor near the victim's foot. The Petitioner stated that counsel had told him the suppression issue could not be raised again until the appeal.

         Written stipulations entered at the trial were received as an exhibit. The parties had stipulated to the admissibility of several pieces of evidence, including the DNA samples taken from the victim and the Petitioner, DNA sample 9A from the crime scene, the keys, the autopsy report, and crime scene photographs. The stipulations had signature lines for the trial court, trial counsel, and the prosecutor.

         Trial counsel did not remember agreeing with the State to stipulate the admissibility of certain evidence at the trial but said that if the State wrote a letter to counsel's investigator with the stipulation enclosed, he believed the letter was accurate. Counsel stated that often, if a fact or piece of evidence did not affect the chosen defense, it was beneficial to "move things along" by stipulating to it.

         Trial counsel identified a January 9, 2007 motion to dismiss the indictment, which alleged that the State had not included all elements of felony murder in the indictment. Counsel said that the challenge was relative to the version of the statute in the indictment, although he did not remember the defect in the indictment. Counsel stated that he did not pursue the issue on appeal because he did not believe it benefitted the Petitioner. Counsel noted that in an appeal, he generally focused on issues that "actually help my client" rather than raising every possible issue.

         The indictment, the January 9, 2007 motion to dismiss, and a January 4, 2008 hearing transcript were received as exhibits. The motion to dismiss alleged that the indictment was defective because it did not allege a mental state. At the hearing, counsel submitted the written motion without argument.

         Letters from the Petitioner to trial counsel were received as exhibits and reflected the Petitioner's desire to attack the indictment because of its citation to a non-existent statute in 1985. In the letters, the Petitioner also discussed the difference between how mental states were codified in 1985 as compared to later statutes. In a letter written after the denial of the motion to dismiss, the Petitioner expressed frustration that counsel challenged the lack of a mental state and not the misstated Code section. The Petitioner requested that counsel file an interlocutory appeal.

         When asked whether he researched the State's citation to a post-1989 statute for a pre-1989 offense, trial counsel testified that he employed a highly qualified legal research and writing assistant for this case and that counsel did not research the issue personally. Upon review of a hearing transcript, counsel remembered that he submitted a motion to dismiss the indictment based on a written motion and without argument. He noted that no reason existed to argue a motion if the entire argument was contained in the written motion.

         Trial counsel testified that the Petitioner sent him letters during the proceedings and that he had received "far more letters from other clients." Counsel said that he read all of the letters. Counsel did not recall a September 20, 2006 letter from the Petitioner in which the Petitioner "was adamant that you argue vigorously the indictment question[.]" Counsel read a passage from the letter in which the Petitioner asked counsel to review the language in the Tennessee Code Annotated 1982 replacement volume to assess whether an issue existed with the indictment and if so, to attack the indictment. The Petitioner ...


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