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Scott v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 30, 2017


          Assigned on Briefs February 23, 2017

         Appeal from the Criminal Court for Knox County No. 103215 G. Scott Green, Judge

         The Petitioner, David E. Scott, appeals from the Knox County Criminal Court's denial of his petition for post-conviction relief. He is serving an effective twenty-two-year sentence for his convictions of attempted voluntary manslaughter, aggravated assault, and aggravated kidnapping. On appeal, he contends that the post-conviction court erred in denying relief on his claim that he received the ineffective assistance of counsel when trial counsel advised him not to testify. We affirm the judgment of the post-conviction court.

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

          Gerald L. Gulley, Jr. (on appeal) and Liddell Kirk (at hearing), Knoxville, Tennessee, for the appellant, David Earl Scott.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Charme Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

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



         The Petitioner's convictions relate to events which transpired between the Petitioner and his estranged wife on July 25, 2009. Notwithstanding the fact that the victim had an order of protection which prohibited the Petitioner from coming near her, the Petitioner came to the house where she lived with their children, entered the home against her will, searched and retained her cell phone and landline telephone, struck her repeatedly, took her into a walk-in pantry and closed the door behind them, and threatened her with a large barbecue skewer and began strangling her. He dragged her upstairs, pushed her into a bathroom and closed the door, inquired whether she thought drowning was a good way to die, wrapped a belt around her neck, wrapped an electrical cord around her neck, took her to the garage, ordered her to her knees, attempted unsuccessfully to bind her hands with a cord, and forced her upstairs to the master bedroom to lie in bed with him. The victim was able to escape with her children to a neighbor's house when the police arrived at the house after her male friend, whom the Petitioner had called twice the previous evening, alerted the authorities that he was concerned for her safety. State v. David Earl Scott, No. E2011-00707-CCA-R3-CD, 2012 WL 5503951, at *l-3 (Term. Crim. App. Nov. 14, 2012), perm. app. denied (Term. Mar. 5, 2013).

         On appeal, this court determined that insufficient evidence of serious bodily injury existed to support an especially aggravated kidnapping conviction but that sufficient evidence of bodily injury existed to support an aggravated kidnapping conviction on that count. In all other respects, a majority of the panel affirmed the Petitioner's convictions. See id. at *5-16. The dissenting judge disagreed with the majority's conclusion that the State offered insufficient evidence of serious bodily injury to support the especially aggravated kidnapping conviction. See id. at *16 (Wedemeyer, J., dissenting).

         The Petitioner filed a pro se post-conviction petition alleging that he received the ineffective assistance of counsel in the conviction proceedings. Post-conviction counsel was appointed and filed an amended petition alleging that the Petitioner received the ineffective assistance of counsel and was deprived of due process in the conviction proceedings. The amended petition focused on trial counsel's failure to advise the Petitioner to testify, which the Petitioner alleged would have resulted in the material likelihood of a more favorable outcome at the trial.

         At the post-conviction hearing, trial counsel testified that before the Petitioner's trial, he and the Petitioner discussed the allegations the Petitioner faced, the Petitioner's right to testify, and the fact that it was the Petitioner's decision whether to testify. In counsel's opinion, the Petitioner's testimony would have not helped the defense and could have been harmful. Counsel said he advised the Petitioner accordingly. He thought the Petitioner understood that the decision whether to testify was the Petitioner's. Counsel said his opinion that the Petitioner should not testify was strengthened by the victim's testimony, which he described as compelling. Counsel said the trial court conducted a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), in which the Petitioner was advised of his rights relative to testifying and in which the Petitioner stated he had elected not to testify. Counsel stated that in addition to his concerns about the Petitioner's testimony not helping the defense, he was concerned because the Petitioner had stated at one point, "You tell me what to say, and I'll say it." Counsel stated, as well, that his advice to the Petitioner about whether to testify was based upon counsel's opinion that the victim's account of waking up from unconsciousness but not knowing how long she had been unconscious fell short of establishing serious bodily injury, an element of especially aggravated kidnapping. He noted that, ultimately, the appellate court agreed with him that the State failed to prove serious bodily injury. Counsel stated that the victim's testimony established many of the facts to which the Petitioner would have testified, such as that the victim met the Petitioner on the porch and let him inside the house. Counsel said he had been concerned that the Petitioner might say something about the victim's unconsciousness or the Petitioner's motives.

         Trial counsel agreed that the Petitioner had been charged with attempted second degree murder but that he was convicted of attempted voluntary manslaughter, which counsel described as "[c]loser to a win [than] an outright loss." Counsel agreed that photograph exhibits showed the victim had black eyes. He said that the victim testified about being in pain and that he vigorously cross-examined her about how she went to work despite having the injuries to which she testified. Counsel said he found it interesting that the legislature amended the aggravated assault statute soon after this court's decision in the previous appeal. He said he cross-examined the victim about her "agreeably coming with" the Petitioner and, at times, following him, through the house during the events. Counsel said he tried to show that the victim was not confined and might have been able to go outside.

         Trial counsel agreed that he had been aware when he discussed with the Petitioner the possibility of testifying that the Petitioner had at least three prior felony convictions. He said, however, that the prior convictions had not been his greatest concern relative to the Petitioner's testifying. Counsel said he also had been aware that the Petitioner had a history of domestic violence. Counsel said he had been greatly concerned about the State's notice relative to Petitioner's having used a false name to make a collect telephone call from the jail. Counsel was concerned, as well, by the fact that the victim and the Petitioner's family members could testify that the Petitioner ...

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