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Bates v. State

Court of Criminal Appeals of Tennessee, Jackson

May 17, 2017

HENRY BATES
v.
STATE OF TENNESSEE

          Assigned on Briefs February 7, 2017

         Appeal from the Criminal Court for Shelby County No. 10-02856 James C. Beasley, Jr., Judge

         The petitioner, Henry Bates, was convicted by a Shelby County jury of aggravated robbery, burglary of a building, and vandalism of $1000 or more, for which he received an effective sentence of forty-two years' imprisonment. He now appeals the post-conviction court's denial of relief arguing that trial counsel was ineffective in failing to present an alibi witness at trial. Upon our review, we affirm the judgment of the post-conviction court.

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

          Monica A. Timmerman, Bartlett, Tennessee, for the Defendant-Appellant, Henry Bates.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Amy P. Weirich, District Attorney General; and Stacy McEndree, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         In the early morning hours of July 29, 2009, a white pick-up truck crashed into the front window of a Mapco Express in Memphis, Tennessee. The impact shook the building and dislodged the drink machine and the ATM. Two of three men jumped out of the truck, ran inside the store, and yelled, "Don't move, you won't get shot." One of the men, later identified by the store clerk as the petitioner, grabbed the ATM, put it in the bed of the truck, and they left. The petitioner had a pair of pantyhose over his head, but they were loose and did not disguise his appearance. State v. Henry Bates, No. W2012-02718-CCA-R3-CD, 2014 WL 823402, at *1-2 (Tenn. Crim. App. Feb. 28, 2014). As a result, the petitioner was subsequently charged and convicted of aggravated robbery, burglary of a building, and vandalism of $1000 or more. He received an effective sentence of forty-two years' imprisonment. This court affirmed his convictions and sentence on direct appeal, and the Tennessee Supreme Court denied the petitioner's application to appeal on June 24, 2014. Id. On September 23, 2014, the petitioner filed a pro se petition seeking post-conviction relief and the appointment of counsel. On October 1, 2014, the post-conviction court appointed post-conviction counsel, and on February 20, 2015, an amended petition for post-conviction relief was filed.

         The following proof was adduced at the January 8, 2016 post-conviction hearing. At the time of the hearing, Emma Jones had been romantically involved with the petitioner "on and off" over a twelve-year period. She testified that she was with the petitioner on the night of July 29, 2009. She said she remembered that night, five and a half years prior to the hearing, because it was her birthday. She stated

We got together around 6:00 p.m., that evening, and we had went out. And after we, you know, stayed out for a certain amount of time, he came over my house and he did stay all night until the next morning.

         Jones, her sister, and the petitioner went to "Little Box" café, ate, danced, talked, had fun, and then went back to Jones's place around midnight. She said the petitioner slept in her bed that night and was there the next morning. Jones did not know the petitioner had been arrested for the instant offenses until two-weeks after her birthday. She said his relatives told her about the charges. She also testified that she was never contacted by trial counsel to testify at trial as an alibi witness.

         The petitioner testified that he was innocent of the convictions in the instant case. He claimed he told trial counsel that he was with Jones on the night of the offense, and trial counsel said he would contact her. He recalled being with Jones on July 29, and said they went out to celebrate her birthday. He denied being present at the Mapco, and stated that he "knew of" Deljuan Williams, but "didn't just know him." He denied being present at Williams's auto shop where the ATM was taken after the robbery and cut open. He said he gave Jones's name to trial counsel and that his defense hinged on her trial testimony. As his trial date approached, the petitioner asked trial counsel about Jones, and trial counsel did not explain why she had not appeared.[1] Upon being asked by the post-conviction court if the petitioner told Jones to come and talk to trial counsel, the petitioner replied, "No, I never did." Asked why, the petitioner replied, "I thought he would get in touch with her."

         Trial counsel, an attorney with the Shelby County Public Defender's Office for over twenty years, testified that he was assigned the petitioner's case and investigated all of the information he was given. He did not recall being advised about Jones as an alibi witness. Significantly, trial counsel testified that "the clerk went into work the evening of the 28th around 10:00 I think. And the truck smashed into the store sometime in the early morning hours like 2:00 or something of that nature." Even if trial counsel had been given Jones's information, he did not believe her testimony would have made a difference in the petitioner's case because the police responded to the robbery at 2:45 a.m., or in the early morning hours on July 29. Trial counsel's defense theory was twofold: (1) he challenged the store clerk's identification of the petitioner ...


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