Assigned on Briefs March 7, 2017
from the Criminal Court for Shelby County No. 07-04686 Chris
Clark ("the Petitioner") was indicted for second
degree murder and attempted second degree murder in a single
indictment. In his first trial, the Petitioner was convicted
of attempted second degree murder, and a mistrial was
declared as to the charge of second degree murder. In the
second trial, the Petitioner was convicted of the
lesser-included offense of voluntary manslaughter. The
Petitioner was sentenced to twenty years as a multiple
offender for attempted second degree murder and to fifteen
years as a persistent offender for voluntary manslaughter to
be served consecutively. The Petitioner filed a single
petition for post-conviction relief alleging that he received
the ineffective assistance of counsel in both trials, which
the post-conviction court denied following a hearing. On
appeal, the Petitioner argues that his claims of ineffective
assistance of counsel during his first trial are properly
before this court, that first and second trial counsel's
representations were deficient, and that he was prejudiced by
those deficiencies. After a thorough review of the record and
applicable case law, we affirm the post-conviction
court's denial of relief from the judgment entered in the
second trial and dismiss the Petitioner's appeal related
to the judgment entered in the first trial because the
petition was not filed within one year of the date our
supreme court denied the application for permission to
R. App. P. 3 Appeal as of Right; Appeal Dismissed, in part;
Judgment of the Criminal Court Affirmed, in part
J. Beasley, Memphis, Tennessee, for the appellant, Michael
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Marianne Bell, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and James Curwood Witt, Jr.,
L. HOLLOWAY, JR., JUDGE.
Factual and Procedural Background
facts underlying the Petitioner's convictions were
summarized by our court in his second direct appeal as the
Callie Redmond, the victim Antonio Redmond's mother,
testified that her son died on September 10, 2006, at the age
[M.F. testified that he was eight years old at
the time of the shooting and was at his
great-grandmother's house on Winnona Avenue in Memphis
when it happened. As [M.F.] was in the front yard playing
with other children from the neighborhood, he saw the
[Petitioner] fire a gun and heard four gunshots. [M.F.] was
not sure where the [Petitioner] lived but recalled having
seen him at the house next door to his
[M.F.] testified that, prior to the shooting, he saw a man
drive up to the house next door to his grandmother's, get
out of the car, and talk to someone at the house. [M.F.]
could not discern what was said between the man and the
person at the house and could not tell if they were arguing.
Once the man returned to the car, the [Petitioner]
approached, the two spoke for a few minutes, and then [M.F.]
heard gunshots. [M.F.] recalled that the [Petitioner] had a
gray or silver gun, but he did not see anyone in the car with
a gun. After the shooting, the car departed quickly with its
windows broken out, but [M.F.] did not see where the
[M.F.] testified that he talked to the police at both his
grandmother's and great-grandmother's houses and told
them what he had witnessed. When the police showed him a
photographic array, [M.F.] identified the [Petitioner] as the
man he saw shooting.
On cross-examination, [M.F.] acknowledged that he told the
police that, when the man got out of the car and approached
the house, the man initially called to one of the girls and
she talked to him briefly before her grandmother came outside
and started arguing with the man. However, [M.F.] clarified
that the girl's grandmother and the man were not arguing,
they were talking. [M.F.] admitted that he also told the
police that, when the [Petitioner] came walking up the
street, he and the other man, who was already back in the
car, began to argue. However, at the time of trial, [M.F.]
did not recall seeing the men arguing, only talking, even
after being shown his statement to police. When asked about
his testimony at an earlier hearing, [M.F.] acknowledged
having testified that the men were arguing outside on the
sidewalk, and then he testified that the men were in fact
[M.F.] testified that he actually saw the [Petitioner] fire a
gun and that the [Petitioner] was standing on the passenger
side of the car near the front door. [M.F.] recalled that he
heard three or four shots before the car drove away. When the
gunfire began, [M.F.] ran to his grandmother's house,
upon the direction of his grandfather who was also outside.
On redirect examination, [M.F.] testified that he could not
hear what the two men were saying. He also testified that the
gunshots were fired in quick succession and that the car had
begun to drive off by the time [M.F.] started running inside.
Officer Kevin Baker with the Memphis Police Department
testified that he heard about the incident on Winnona Avenue
around 1:45 or 1:50 in the afternoon of September 10, 2006.
As he was traveling south on Hollywood Street en route to the
scene of the shooting, he saw what appeared to be a car
accident in which the rear of the car was resting on a pole
on the sidewalk. When Officer Baker and other officers
converged on the scene, they saw two people in the car-one
who was sitting in the car, moaning, and the other with his
feet in the car but his back on the pavement outside. Officer
Baker could tell that the man on the ground was "in bad
shape, " but he did not know the nature of his injuries.
He worked to preserve the scene and keep anyone from
approaching the car, but he did not speak to either of the
accident victims. He did not see any weapons; however, he
acknowledged that he was not looking for any.
Officer Robert Jones with the Memphis Police Department
testified that he was among the officers who responded to the
scene of the accident on Hollywood Street. The two men in the
vehicle advised that they both had been shot. No weapons were
collected on the scene, and neither man was armed when he was
taken to the hospital. The vehicle was towed and held at the
crime scene processing area for the homicide bureau.
Officer Jones testified that he talked to Hall and [Mr.
Redmond]. [Mr. Redmond] believed that he was dying and told
Officer Jones that he and his friend had been a few blocks
away when "he heard a pop, . . . but he got scared and .
. . he just took off. He just put his foot on the gas and
drove off to try to get away. And the next thing he kn[e]w
they ended up there at Hollywood [Street.]"
On cross-examination, Officer Jones testified that he
visually looked inside the car and did not see any weapons,
shell casings, or bullets. He did not search the area between
the accident site and the shooting for weapons. Officer Jones
did not know how long it took for an officer to arrive at the
accident site following the crash. On redirect, Officer Jones
said that the officers formed a barrier around the scene to
keep the area secure but, on recross[-examination],
acknowledged that there was obviously "a little
time" before officers were present to secure the scene.
Marcus Hall testified that he had known the [Mr. Redmond] for
at least fifteen years and that the two had been best
friends. On September 10, 2006, he and [Mr. Redmond] were
driving around North Memphis, and Hall wanted to stop at the
home of Rosie Combs, the mother of his ex-girlfriend,
Lakeisha Beasley, to retrieve some of his clothes while they
were in the area. Hall and Beasley had dated for four or five
months but had been broken up for "a couple of
Hall testified that [Mr. Redmond] drove him to Combs's
house on Winnona Avenue, and they pulled up in front of the
house with the passenger side, where Hall was sitting,
closest to the home. [Mr. Redmond] waited in the car, while
Hall got out and asked Beasley's daughter, who was
playing outside with other children, if her mother was home.
Beasley's daughter told Hall that her mother was not home
but that her grandmother was home.
Hall testified that he knocked on the door, and Combs
answered, "enraged . . . [and] heated up already."
Combs yelled at him, but he did not yell back. Hall explained
to her why he was there, but Combs "was enraged"
and would not give him his clothes. The two talked for a
couple of minutes in the doorway before [Mr. Redmond] called
for Hall to forget about his clothes, and Hall returned to
the car. As soon as he got in the car, Hall noticed the
[Petitioner] standing next to the front passenger side door.
Hall had never seen the [Petitioner] before and was wondering
who he was when a gunshot sounded. The [Petitioner] fired
four or five shots. The first shot broke out one of the
windows. The second shot hit Hall in the back as he stretched
over to protect [Mr. Redmond], who was in the driver's
seat. Hall fell into the backseat of the car and told [Mr.
Redmond] to drive away. Hall remembered that two more shots
were fired before they could pull away.
Hall testified that they drove toward Hollywood Street and
traveled for a couple of blocks before the car wrecked. Hall
lost consciousness after the wreck, and he did not wake up
until he was at the hospital where he learned that [Mr.
Redmond] had also been shot and had died from his wounds.
Photographs of Hall's scar from his gunshot wound were
admitted into evidence over defense objection. Hall was in
the hospital four or five hours before being released.
Hall testified that the police came and talked to him at the
hospital and had him view a photographic array from which he
identified the [Petitioner] as the shooter. Hall said that
neither he nor [Mr. Redmond] was armed when they went to
Beasley's mother's house that day. Hall admitted that
he had prior convictions for possession of cocaine with
intent to sell in 2002 and possession of marijuana with
intent to sell in 2005 and that at the time of trial he again
had charges pending for possession of cocaine and marijuana
with intent to sell.
On cross-examination, Hall testified that Beasley lived in an
apartment when they first started dating but soon after moved
into a house on Lucy Avenue where he frequently stayed with
her. Beasley's daughter stayed with them sometimes but
usually stayed at Combs's house on Winnona Avenue. Hall
met members of Beasley's family when they were dating,
but he did not know them well or have a relationship with
them. Hall had never met the [Petitioner], Beasley's
Hall testified that, by September 2006, he and Beasley were
no longer dating and were on bad terms due to Beasley's
having contracted a sexually transmitted disease. After
Beasley and Hall came to be on bad terms, Beasley moved in
with her mother on Winnona Avenue, and Hall began to try to
get his clothes back from Beasley. Earlier in the day of the
shooting, Hall and Beasley got into an argument on the phone
over his clothes, so when he and [Mr. Redmond] were in the
area later, he decided to stop by Beasley's mother's
house to try to retrieve them from her even though he did not
know whether his clothes were actually there.
Hall testified that, when Beasley's mother, Combs, came
to the door, he tried to explain to her that he was there to
get his clothes, but "she was cussing as soon as she
seen [sic] [him]." He recalled that Combs was
"cussing, fussing, real loud" and that she did not
invite him inside. He estimated that he was at Combs's
door for "a couple of minutes, " but he reiterated
that "[he] wasn't arguing. She was arguing."
Hall testified that, once he got back into the car, the
[Petitioner] immediately appeared at the side of the car. He
said that he never said a word to the [Petitioner], as there
was no time before the [Petitioner] started shooting. The
[Petitioner] did not say anything to him prior to shooting,
and he denied telling Officer Patterson that he and the
[Petitioner] had gotten into an argument. Hall stated that he
did not have a gun that day. Hall admitted that [Mr. ...