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Rittenberry v. State

Court of Criminal Appeals of Tennessee, Nashville

April 5, 2017

L.B. RITTENBERRY, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs February 15, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-A-646 Mark J. Fishburn, Judge

         Petitioner, L.B. Rittenberry, Jr., was convicted of second degree murder despite his claim of self-defense. He appeals the denial of his petition for post-conviction relief, which alleged ineffective assistance of trial counsel. Petitioner argues that the post-conviction court erred by finding that he was not prejudiced by trial counsel's failure to adequately investigate the victim's prior history of violence. We affirm the decision of the post-conviction court.

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

          Jennifer Hall, Nashville, Tennessee, for the appellant, L.B. Rittenberry, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Procedural History and Factual Summary

         Over eight years ago, Petitioner killed Charles Steele. Petitioner was arrested after he called 911 and reported that he had beaten an intruder with a baseball bat for breaking into his apartment while he was cooking dinner. The alleged intruder was Charles Steele, a known drug user and occasional drug dealer, with whom Petitioner was acquainted before the incident. The police investigation yielded evidence which suggested that, on the night of the incident, both men were consuming alcohol. An autopsy revealed that the victim's system also contained Xanax, Valium, marijuana, and antidepressants. Although Petitioner argued that he acted in self-defense, the State presented evidence at trial which contradicted Petitioner's claim. An expert in forensic pathology testified that the victim "had five lacerations on the back of his head caused by blows powerful enough to split the skin." The victim also had a contusion on his forehead with a carpet imprint, which "was consistent with the victim[] having been hit on the head while he was lying face-down on the carpet." A kitchen knife found in the victim's hand was of the same brand as some of Petitioner's own kitchen knives. A cellmate of Petitioner testified that Petitioner admitted to intentionally beating the victim with a bat after the two men got into an argument. Petitioner also told his cellmate that he "put a knife in the wrong place." Petitioner did not indicate that the victim had broken into the apartment. Petitioner was convicted of second degree murder and received a twenty-year sentence. This Court affirmed his conviction on direct appeal. State v. L.B. Rittenberry, Jr., No. M2011-00857-CCA-R3-CD, 2012 WL 3041344, at *1-9 (Tenn. Crim. App. July 26, 2012), perm. app. denied (Tenn. Dec. 13, 2012).

         Petitioner filed a pro se petition for post-conviction relief. After appointment of counsel, Petitioner filed an amended petition alleging that Petitioner received ineffective assistance from trial counsel. The post-conviction court held an evidentiary hearing during which the following evidence was adduced.

         Petitioner introduced a copy of Mr. Steele's criminal history which showed several charges of aggravated assault and a charge of harassment in 2008. However, the only conviction arguably related to violent conduct was a conviction for simple assault in 1999.

         Petitioner was represented by two attorneys at trial. Lead counsel had been with the public defender's office for fourteen years at the time of trial and had previously handled between fifteen and twenty murder cases. Lead counsel testified that she "spent hours and hours" investigating Mr. Steele for this case. During her investigation, she discovered an arrest warrant for the 2008 harassment charge. The affidavit of complaint was sworn out by Mr. Steele's brother-in-law. The brother-in-law alleged that he kicked Mr. Steele out of his apartment for using drugs in front of children. Mr. Steele became irate and threatened his brother-in-law. On a later date, Mr. Steele called his brother-in-law and left a message threatening to "bash his brains on the concrete and whip him." Lead counsel testified that although she discovered the warrant, the reason that she did not introduce the warrant at trial was because she "may have just forgotten." Moreover, Mr. Steele's brother-in-law had shown himself to be hostile to Petitioner's case during the pre-trial proceedings, and lead counsel figured that Mr. Steele's brother-in-law would not be cooperative with the defense in this case.

         Lead counsel considered her failure to use the harassment warrant "a huge mistake" and immediately directed post-conviction counsel to the existence of the warrant when contacted about the post-conviction petition. Lead counsel insisted that this evidence "absolutely" could have changed the outcome of this case and that her performance in this regard constituted ineffective assistance. Similarly, lead counsel admitted that she had ignored several of Mr. Steele's other previous criminal charges, thinking that they "were just too old to be relevant." Lead counsel ...


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