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Smith v. State

Court of Criminal Appeals of Tennessee, Jackson

May 31, 2017

DAVARIUS SMITH
v.
STATE OF TENNESSEE

          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Lauderdale County No. 9190 Joseph H. Walker III, Judge

         The Petitioner, Davarius Smith, appeals as of right from the Lauderdale County Circuit Court's denial of his petition for post-conviction relief. The Petitioner contends that he was entitled to post-conviction relief based on the following alleged violations of his constitutional rights: (1) that the State withheld exculpatory evidence; (2) that, alternatively, he received ineffective assistance of trial and appellate counsel regarding this undisclosed evidence; (3) that he received ineffective assistance of trial counsel due to trial counsel's failure to file a motion to suppress a witness' prior identification of the Petitioner; and (4) that he received ineffective assistance of appellate counsel due to appellate counsel's failure to challenge an allegedly impermissible comment by the prosecutor during closing arguments and to properly challenge a special jury instruction provided by the trial court.[1] Following our review, we affirm the judgment of the post-conviction court.

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

          Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Davarius Smith.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         I. Trial

         Following a jury trial, the Petitioner was convicted of two counts of attempted second degree murder and one count each of reckless endangerment and employment of a firearm during the commission of a dangerous felony. State v. Davarius Datron Smith, No. W2013-01735-CCA-R3-CD, 2014 WL 3744637, at *1 (Tenn. Crim. App. July 28, 2014). The Petitioner received a total effective sentence of eighteen years' incarceration. Id. The factual background regarding the Petitioner's convictions is particularly relevant to our review. It was described by this court on direct appeal as follows:

This case results from the [Petitioner's] convictions for shooting the two victims in a public park in Ripley. The victims, as well as other witnesses at the scene, professed at the time of trial to have little memory of the shootings, which had occurred a year earlier.
Steven Whitelow, a victim of the shooting, testified that, on July 10, 2011, he was driving in his Suburban with his cousin, Javone Tatum. Around 6:00 p.m., they arrived at Rice Park in Ripley, where there was a crowd of over 100 people at the basketball court. After Whitelow claimed to have an almost total lack of recall as to the evening of the shooting, the State tendered to him a statement which he had written on July 10, 2011, regarding that evening, and which he said was "the truth." He said that the statement did not refresh his recollection, even though it was in his own handwriting, because he had a "bad memory." At the request of the State, Whitelow read the following: "I pulled up on the park. We got out to walk towards the Center and some guys in a white car said something to [Tatum]. A guy in the back seat on the passenger side hopped out and started shooting." Whitelow did not remember being shot at or where the shots came from, but did remember hearing gunshots and seeing that Tatum had been shot. He took Tatum to the emergency room at Lauderdale Hospital across the street because he had been shot in the side. After his Suburban was returned to him from the police department, Whitelow noticed that his back window had been "shot out" and that there were several bullet holes in the vehicle. Whitelow denied knowing the [Petitioner] or why the [Petitioner] would shoot at him or Tatum.
Keving McNeal, a co-defendant, testified that he pled guilty to facilitation of attempted second degree murder of Whitelow and Tatum and to reckless endangerment. He said that he did so to go home to his child and that he and the [Petitioner] "did not commit the crimes." McNeal testified that, on July 10, 2011, he and the [Petitioner] were in Rice Park watching the basketball game. When they heard gunshots, he and the [Petitioner] jumped in their white Pontiac G6 and left because he believed they were in danger. However, McNeal did not know of any reason why they were being shot at. They then drove to Covington. McNeal denied having "dumped" the car; rather, he explained that he dropped the car off for his pregnant girlfriend, Ashley Foxworth, to come pick it up because it was her car and he wanted her to have a car if she went into labor.
Ashley Foxworth, the mother of McNeal's child, said she owned a white Pontiac G6, which she loaned to McNeal on July 10, 2011. He told her that he was going to visit a friend from Ripley. When she received a call from him later that day, she became concerned and went to get her car in Covington. She admitted that she noticed bullet holes in her car, which she reported to the Ripley Police Department. The police department later impounded her car.
Willie Rouser Qualls testified that on July 10, 2011, he was in Rice Park near the basketball court where he organized the referees for the basketball game. He estimated that there were about fifty to seventy-five spectators, including children, around the basketball court. In the early evening he recalled hearing ten to twelve gunshots near the pavilion at the park. When he turned around to look in the direction of the gunshots, he saw a white car and a Suburban parked near the pavilion. After the shooting had stopped, he began walking in the direction of the gunshots while calling the Ripley Police Department. He saw the shooter, describing him as an African-American, slender male who was firing a weapon. He then observed the shooter get into the white car and leave the scene. The Suburban left shortly after and crossed the railroad tracks at a high rate of speed.
Demetrice Jones also remembered little of the shooting. She testified that, on July 10, 2011, she was watching the basketball game at Rice Park when she heard "probably" more than five gunshots. She agreed that she testified at a preliminary hearing, identifying the [Petitioner], also known as "Nudy B, " as the shooter. She said the police showed her a photograph, telling her that it was "Nudy B, " and she identified him as the shooter. She described the shooter as being African-American and having "dreads" but explained that there were several people with "dreads" near the pavilion, close to Whitelow's Suburban. However, she could not recall testifying at the preliminary hearing that she saw Foxworth's white Pontiac at the park.
Javone Tatum had scant memory of the shootings and testified that he did not remember being with Whitelow on July 10, 2011. He said he remembered being shot but did not remember what had happened. He recalled meeting with the police and the prosecutor at the Ripley Police Department on June 11, 2012, where he was shown several photographs of the [Petitioner], but denied having identified the [Petitioner] as the shooter. He also denied having asked the prosecutor what would happen if he "[took] the Fifth after [he] identified [the [Petitioner]] as the shooter."
Investigator Louis Ruff with the Ripley Police Department testified that he responded to a call at Rice Park at about 6:30 p.m. on July 10, 2011, to investigate a shooting at the pavilion. He found nine shell casings from a nine-millimeter semiautomatic handgun at the scene. On the night of the shooting, the Ripley Police Department came into possession of Foxworth's white Pontiac after receiving a call from her. Searching the car, he found two nine-millimeter shell casings and noticed a bullet hole in the passenger side of the trunk. Examining Whitelow's Suburban, he found nine bullet holes in it, two holes on the driver's side, five in the tailgate area, and two on the passenger side. Investigator Ruff recovered numerous bullet fragments from the tailgate area, but they were so badly fragmented that they could not be tested. He did not recover a handgun from the scene, vehicle, or suspects. He confirmed that, at the preliminary hearing on November 4, 2011, Jones and Tatum identified the [Petitioner] as the shooter. Investigator Ruff also confirmed that, at the meeting at the Ripley Police Department on June 11, 2012, Tatum was shown a photograph of the [Petitioner] whom he identified as the shooter.
The [Petitioner] did not present any proof.

Id. at *1-3 (alterations referring to the "Petitioner" added, all other alterations in original).

         II. ...


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