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Kirkpatrick v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 11, 2017

JERRY KIRKPATRICK
v.
STATE OF TENNESSEE

          Assigned on Briefs January 18, 2017

         Appeal from the Criminal Court for Knox County No. 105789 Steve Sword, Judge No. E2016-00955-CCA-R3-PC

         The petitioner, Jerry Kirkpatrick, appeals the denial of his petition for post-conviction relief, which petition challenged the petitioner's Knox County Criminal Court jury conviction of theft of property valued at $1, 000 or more but less than $10, 000. Discerning no error, we affirm.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Jerry Kirkpatrick.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charme P. Allen, District Attorney General; and Randall Kilby, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         A Knox County Criminal Court jury convicted the petitioner of theft of property for his role in the November 25, 2008 theft of several items and an amount of cash from the U.S. Golf store in Knoxville. At trial, accomplice Daniel Bryan Phelps testified that the petitioner "participated in the burglary of U.S. Golf and that the stolen items were taken back to the [petitioner's] home on Corker Avenue and divided between Mr. Phelps, the [petitioner], and the [petitioner's] brother." State v. Jerry Kirkpatrick, No. E2013-01917-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Aug. 22, 2014). The petitioner enlisted the help of Leonard Freeman in selling some of the golf clubs he stole from U.S. Golf. Mr. Freeman sold some of the clubs to Ronald Kent Mabry, who, in turn, asked his girlfriend to sell some clubs on eBay. See id., slip op. at 7. "The serial number of the club [sold on eBay] matched the serial number of one of the clubs stolen from U.S. Golf." Id. Mr. Mabry purchased the clubs from Mr. Freeman at a residence on Corker Avenue where the petitioner and his brother lived, and the petitioner was at the residence during the sale. Based upon this proof, this court "conclude[d] that Mr. Phelps's testimony was sufficiently corroborated and that the evidence at trial established that the [petitioner] exercised control over the stolen golf clubs without the owner's effective consent with the intent to deprive the owner of the property." Id., slip op. at 7-8. We affirmed the petitioner's conviction and the accompanying seven-year, Range II sentence.

         Following the denial of his application for permission to appeal to our supreme court, the petitioner filed a timely petition for post-conviction relief, alleging that he was deprived of the effective assistance of counsel at trial and that the State failed to disclose favorable evidence. In an amended petition, the petitioner claimed that his trial counsel performed deficiently by failing to present witnesses to establish that the petitioner was home during the time of the burglary and by failing to call Mr. Freeman as a witness at trial. In a second amended petition, the petitioner alleged that trial counsel performed deficiently by failing to call witnesses to testify that they had not seen stolen golf clubs in his residence.

         At the April 8, 2016 hearing on the petitioner's petition, Dixie Hawks testified that the petitioner was "the brother of [her] uncle by marriage" and that she "was placed into his custody" when she was 12 years old. She said that she was still living with the petitioner shortly before he was charged with the offenses in this case. She said that she was removed from the petitioner's custody on November 17, 2008, and did not live there during the week of Thanksgiving that year. Ms. Hawks said that Mr. Freeman "was never inside the residence and never resided there." She agreed that Mr. Freeman "was not welcome at the house." Only the petitioner's brother, Chris Kirkpatrick, lived with them. She testified that she had access to every room in the petitioner's house, that none of the rooms had a bolt-lock, and that she had never seen golf clubs at the residence. Ms. Hawks said that no one ever contacted her about testifying on the petitioner's behalf. Ms. Hawks admitted during cross-examination that she had no personal knowledge of who might have visited or resided at the petitioner's residence after she was removed from his custody.

         The petitioner's brother, John Earl Kirkpatrick, testified that he visited the petitioner regularly before the offenses and that he had access to all the rooms in the petitioner's residence. Mr. Kirkpatrick said that he knew Mr. Freeman but that he had never seen Mr. Freeman at the petitioner's residence. He added that it was "kind of uncommon" for the petitioner to have visitors. He testified that no one other than the petitioner, Chris Kirkpatrick, and Ms. Hawks had lived at the residence and that no one had ever stayed there overnight. Mr. Kirkpatrick said that he did not see golf clubs at the petitioner's residence during November or December 2008. He recalled that he visited the petitioner on Thanksgiving Day 2008 to take food to the petitioner, who had been sick with "a respiratory infection" most of the week. Mr. Kirkpatrick said that no one contacted him regarding the possibility of his testifying at the petitioner's trial.

         The petitioner acknowledged that trial counsel shared the discovery materials with him, but he maintained that he was unaware until trial that the State alleged that the stolen golf clubs were in his residence and that Mr. Freeman was going to testify against him. He said that he asked counsel to call several witnesses, including his neighbors and friends, who had been in his house during that time period and who knew that he had been ill at that time. He said that he was hospitalized on December 16, 2008, for treatment of a lung infection that he had had for several weeks. He recalled that he was seriously ill at the time and that he could not work or drive.

         The petitioner testified that he specifically asked trial counsel to call Ms. Hawks as a witness because he had been granted temporary custody of her by the State. He added that representatives from "Youth Villages" and the Department of Children's Services ("DCS") visited his house weekly when Ms. Hawks lived there. In addition, he said, Ms. Hawks had "knowledge of everything that was in the residence. . . . She had knowledge of the people who come over." He also asked trial counsel to call Mr. ...


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