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Clark v. State

Court of Criminal Appeals of Tennessee, Jackson

May 5, 2017

MICHAEL CLARK
v.
STATE OF TENNESSEE

          Assigned on Briefs March 7, 2017

         Appeal from the Criminal Court for Shelby County No. 07-04686 Chris Craft, Judge

         Michael 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 appeal.

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

          Ernest J. Beasley, Memphis, Tennessee, for the appellant, Michael Clark.

          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 Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         I. Factual and Procedural Background

         The facts underlying the Petitioner's convictions were summarized by our court in his second direct appeal as the following:

Callie Redmond, the victim Antonio Redmond's mother, testified that her son died on September 10, 2006, at the age of twenty-eight.
[M.F.[1] 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 great-grandmother's before.
[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 [Petitioner] went.
[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 arguing.
[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 weeks."
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 brother.
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. ...

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