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Bowman v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 24, 2017

JOSH L. BOWMAN
v.
STATE OF TENNESSEE

          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Knox County No. 104880 Steven Wayne Sword, Judge.

         The Petitioner, Josh L. Bowman, was convicted by a jury of three counts of first degree felony murder, one count of especially aggravated kidnapping, one count of especially aggravated robbery, two counts of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. After the verdict, the Petitioner pled guilty to one count of employing a firearm during the commission of a dangerous felony when he had previously been convicted of a felony. The trial court merged the murder convictions, merged the burglary convictions, and merged the firearms convictions. This court on appeal reversed the especially aggravated kidnapping conviction and remanded for a new trial, affirming all other judgments. See State v. Josh L. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *3 (Tenn. Crim. App. Aug. 29, 2013), overruled in part by State v. Teats, 468 S.W.3d 495 (Tenn. 2015). The Petitioner filed a timely post-conviction petition, alleging that his trial counsel was deficient in allowing him to enter a guilty plea to the firearms offense and deficient in failing to object to the racial composition of the jury venire. The post-conviction court granted relief on the firearms conviction, finding that the Petitioner did not have a qualifying prior "dangerous felony" and dismissing the charge. The post-conviction court found that the Petitioner could not show deficiency or prejudice on the jury issue. Both parties filed notices of appeal in this court. The State asserts that the post-conviction court misinterpreted Tennessee Code Annotated section 39-17-1324 (2008) in granting relief and argues that the prior felony need not be a dangerous felony according to statute. The Petitioner asserts that he is entitled to relief from all his convictions based on the jury composition. After a thorough review of the record, we affirm the post-conviction court's judgment. We remand for the post-conviction court to enter judgment on the merged conviction which survives the dismissal of the firearms offense.

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

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charme Allen, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Leslie M. Jeffress, Knoxville, Tennessee, for the appellee, Josh L. Bowman.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         The Petitioner's convictions are the result of a home invasion committed on May 2, 2009, during which the Petitioner and his co-defendants planned to rob the victims, who were the beneficiaries of a life insurance policy. Josh L. Bowman, 2013 WL 4680402, at *3. The Petitioner and one co-defendant entered the victims' home with guns in order to obtain a safe. Id. at *4. Both of the victims apparently attempted to use guns to defend themselves. Id. The surviving victim testified that she struggled with one of the Petitioner's co-defendants while she heard the other attacker shoot her husband. Id. The offenders took the safe, and the injured victim ultimately died from his wound. Id. at *5. The Petitioner gave a statement acknowledging his role in the crimes, and the deceased victim's blood was discovered on a pair of boots found in the trunk of the Petitioner's car. Id. at *3, 5.

         After the jury verdict, the Petitioner pled guilty to the offense which the post-conviction court dismissed: employing a firearm during the commission of a dangerous felony when the Petitioner "had a prior felony conviction." Id. at *1. The trial court merged various offenses, including the two convictions for employing a firearm during the commission of a dangerous felony, and the Petitioner received an effective sentence of life plus sixty years in prison. Id.

         On appeal, in light of the then-recent opinion in State v. White, 362 S.W.3d 559 (Tenn. 2012), this court reversed the especially aggravated kidnapping conviction but affirmed the remaining convictions. Josh L. Bowman, 2013 WL 4680402, at *16. According to the findings of the post-conviction court, the Petitioner on remand agreed to plead guilty to especially aggravated kidnapping in exchange for a fifteen-year sentence to be served concurrently with his murder conviction. We note that the Tennessee Supreme Court has since indicated that this court erred in the Petitioner's direct appeal when it reversed the conviction, because the kidnapping offense was not committed against the victim of the underlying felony and the jury did not need to be instructed pursuant to White. Teats, 468 S.W.3d at 503.

         The Petitioner filed a timely post-conviction petition, amended by counsel, challenging his guilty plea to the conviction for employment of a firearm during the commission of a dangerous felony after having been previously convicted of a felony. The Petitioner's challenge is based in part on the indictment, which charged him as follows:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that JOSH L. BOWMAN, heretofore, to-wit: On or about the ___ day of May, 2009, in the State and County aforesaid, did unlawfully and knowingly employ a firearm during the commission of a dangerous felony, and that said JOSH L. BOWMAN, ALIAS has heretofore been convicted of a dangerous felony as follows:
1. That in Case No. 76454 count 1, on the 6th day of February, 2003, in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN, ALIAS, was convicted of the offense of Aggravated Robbery,
2. That in Case No. 76454 count 2, on the 6th day of February, 2003, in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN, ALIAS, was convicted of the offense of Aggravated Robbery,
3. That in Case No. 76454 count 3, on the 6th day of February, 2003, in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN, ALIAS, was convicted of the offense of Aggravated Robbery,
4. That in Case No. 76454 count 4, on the 6th day of February, 2003, in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN, ALIAS, was convicted of the offense of Aggravated Robbery,
5. That in Case No. 76454 count 5, on the 6th day of February, 2003, in the Criminal Court for Knox County, TN, the said JOSH L. BOWMAN, ALIAS, was convicted of the offense of Aggravated Robbery,
in violation of T.C.A. 39-17-1324, and against the peace and dignity of the State of Tennessee.

         The Petitioner asserts that aggravated robbery is not a "dangerous felony" under the statute as charged in the indictment and that his counsel was accordingly deficient for allowing him to plead guilty. The Petitioner also asserts that his trial counsel was deficient in failing to object to the racial composition of the jury venire. The petition additionally raised a challenge to trial counsel's investigation into the Petitioner's mental health, which is not at issue on appeal.

         The Petitioner testified at the post-conviction hearing that the venire included only one African American person and that this prospective juror was excused, leaving an all-white jury. He testified that Knox County used a list provided by the Department of Safety that included those who had driver's licenses and other identification cards. The Petitioner stated that jurors were picked randomly from this list and that no effort was made to select for gender or race and that the venire accordingly did not represent a cross-section of the community. On cross-examination, he acknowledged that he never saw the larger venire, only the prospective jurors who were brought into the courtroom prior to his trial.

         The Petitioner testified that he had prior convictions for aggravated robbery and that aggravated robbery was not a dangerous felony under statute. His trial counsel did not attempt to dismiss the conviction in the trial court or on appeal. The Petitioner agreed ...


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