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Madewell v. State

Court of Criminal Appeals of Tennessee, Nashville

June 8, 2017


          Session Date: January 10, 2017

         Appeal from the Criminal Court for Davidson County No. 2010-C-2445 J. Randall Wyatt, Jr., Judge

         A Davidson County jury convicted the Petitioner, Sanders Lee Madewell, of especially aggravated robbery and criminal impersonation, and the trial court sentenced him to an effective sentence of seventeen years in prison. On appeal, this Court affirmed the convictions and sentence. See State v. Sanders Lee Madewell, No. M2012-02150-CCA-R3-CD, 2012 WL 3129186, at *1 (Tenn. Crim. App., at Nashville, July 31, 2012), perm. app. denied (Tenn. Nov. 26, 2012). The Petitioner filed a post-conviction petition alleging that he had received the ineffective assistance of counsel, that the State had withheld evidence favorable to him, that he was "actually innocent", and that the trial court failed in its role as the thirteenth juror. Following a bifurcated hearing, the post-conviction court denied relief. On appeal, the Petitioner maintains the aforementioned issues. After review, we affirm the post-conviction court's judgment.

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

          Susan L. Kay, Vanderbilt Legal Clinic, Tracee Clements and Neil V. Greenwell (specially admitted to practice pursuant to Tennessee Supreme Court Rule 7 § 10.03), Nashville, Tennessee, for the appellant, Sanders Lee Madewell.

          Herbert H. Slatery III, Attorney General and Reporter; Clark Bryan Thornton, Senior Counsel; Glenn R. Funk, District Attorney General; and Amy Hunter, Deputy District Attorney General, for the appellee, State of Tennessee.

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



         This case arises from a robbery that occurred on April 5, 2010, in Nashville, Tennessee, during which the victim had taken from him $40 and suffered a partially severed ear. Several days later, the Petitioner provided investigating officers with a false name. For these offenses, a Davidson County grand jury indicted the Petitioner and his co-defendant for especially aggravated robbery and criminal impersonation. This Court upheld the Petitioner's convictions and sentence on direct appeal. See Madewell, 2012 WL 3129186, at *1.

         A. Direct Appeal Facts

         On direct appeal, this Court summarized the State's evidence against the Petitioner as follows:

This case arises out of a robbery, for which the [Petitioner] and a co-defendant, Jacob Harrison Thompson, were indicted and tried together. The victim, Michael Booth, testified that he was assaulted and robbed by three or four men at approximately 12:45 a.m. on April 5, 2010. At the time of the robbery, the victim was homeless and living in a tent about one mile from North First Street in Nashville. The victim testified that he awoke as he was dragged out of his tent by his feet and told that he was trespassing and had to leave. He refused to leave, and the men walked away briefly before returning five to seven minutes later.
After identifying both the [Petitioner] and Thompson in court as two of the men who attacked him, the victim testified that they forced him at knifepoint to walk toward the nearby railroad tracks. The [Petitioner] walked behind the victim with his hand on the victim's collar, telling him not to turn around. After the victim turned around to face the men, Thompson hit him with a tree branch the size of a baseball bat. The men beat him while he was on the ground and took forty dollars from his front pocket and his cell phone. The [Petitioner] pulled out his knife and held it to the victim's temple. The [Petitioner] "cut[ ] half, probably half of [the victim's] ear off" after the victim sliced his fingers while grabbing for the knife. The attackers ran away when they heard an approaching train blow its horn.
The victim walked to the TA Truck Stop ("TA"), where he solicited the help of the security guard on duty, who called the police. After the police arrived, the victim was transported by ambulance to the Veterans Administration Hospital, where a plastic surgeon sewed his ear back together. He also received thirty to thirty-five staples in his head and stitches in his fingers. The victim testified that the injury to his ear caused a permanent eighty percent loss of hearing.
The victim returned to the TA on April 11, 2010, and saw the [Petitioner] and Thompson standing outside. The victim immediately told one of the TA employees that he recognized the men as two of his attackers and asked her to call the police. The victim said that the [Petitioner] had done most of the talking during the robbery and that the [Petitioner] had a voice he would never forget. The victim further stated, "I will never forget that face. I will never forget them tattoos, and I will never forget his friend over there either. That was them." He said that he was "100 percent certain" in his identification of the [Petitioner].
The TA security guard, Danny Pennington, testified that the [Petitioner], Thompson, another man, and two women were at the TA on April 4, 2010, and left together around 9:30 p.m., headed toward North First Street. Pennington said that the victim, who had several lacerations and was in "bad shape, " came to the truck stop at about 1:00 a.m. After the victim left in the ambulance, Pennington returned to the front of the TA to find the [Petitioner], who told him that two men and two women had bragged about pulling a man out of his tent and beating him up.
Officer Andre Johnson of the Metropolitan Nashville Police Department testified that he arrested the [Petitioner] and Thompson at the TA on April 11, 2010. Two knives were recovered from the [Petitioner's] pockets, and the [Petitioner] initially gave the officer a false name.
Officer Matthew Evans of the Metropolitan Nashville Police Department testified that he responded to the TA on April 5, 2010. When he arrived, the victim was bleeding and disoriented and his "ear was actually hanging off." The victim told him that four white males pulled him out of his tent, beat him with a stick when he refused to leave, forced him to walk toward North First Street, and cut his ear. The second responding officer, Sergeant Daniel Henkel, testified that both the campsite and railroad tracks had sufficient lighting for one person to identify the face of another.
Andrian Wayne Thomas, an acquaintance of the victim, testified that he saw the victim walking toward the TA the morning of the robbery. The victim's shirt "was all bloody [and] his ear was half off, " so Thomas helped the victim walk to the TA. Thomas said that he returned to the TA the next day and saw the [Petitioner] who bragged about getting into an altercation with a man the previous night, during which the man "got hurt real bad [and] his ear got cut."
Thomas Lee, who admitted that he participated in the robbery, testified against the [Petitioner] and Thompson in exchange for immunity. Lee said that he was with the [Petitioner], Thompson, and others when Thompson saw a bicycle next to a tent, approached the tent, and hit it to get the victim's attention. Thompson unzipped the tent and grabbed the victim by his legs. The victim broke free and ran out of the tent with a knife, and Thompson picked up a tree limb and hit the victim over the head "maybe" three times. The [Petitioner], who had a knife, was "doing the same thing that [Thompson] was doing." Lee walked behind the [Petitioner] and Thompson as they forced the victim toward the railroad tracks, and "Alex" walked up, pulled a knife, and "started doing the same thing [Thompson] was doing." The next day, Thompson had a second phone that he did not have the previous day.
Stephen Raines testified that he was currently incarcerated and previously had been housed near Thompson. Raines said that Thompson told him that he had "knocked somebody's ear off and they had to put a bunch of staples in it." Raines also testified that "[i]t was a homeless guy that [Thompson] hit with a stick . . . and [Thompson] said his charge partner actually wasn't there, the guy that was there didn't even get charged with it." Asked if Thompson was referring to the [Petitioner] as his "charge partner, " Raines said, "Yeah, whoever got arrested."
Defense Proof
The [Petitioner] testified that he was at the TA on April 4, 2010, but that he left "to go get dope" between 9:00 and 9:30 p.m. with two women and a man named Alex. The [Petitioner] went back to the TA sometime later and stayed there by himself until the two women and Alex returned. The four of them walked to the War Memorial around 1:00 a.m., and Alex told the [Petitioner] there had been a fight at the railroad tracks.
The [Petitioner] said that he knew the victim prior to April 5, 2010, and that he had used drugs with him on "several occasions." He said that he discussed the robbery of the victim with Andrian Thomas but denied participating in it. He acknowledged that he had tattoos on both sides of his neck. The [Petitioner] explained that the knives found on his person the day of his arrest were used for work. He said that he gave the arresting officer a false name because he "had warrants in Murfreesboro for a misdemeanor violation" but that he later gave his real name.
On cross-examination, the [Petitioner] admitted he had prior convictions for felony evading arrest, theft over $1000, forgery, and burglary of a motor vehicle.
The co-defendant, Jacob Thompson, testified that he, a man named Obbie, and Thomas Lee went to the victim's tent because they thought it was abandoned and wanted to take it to their campsite. To their surprise, the victim was there, and they banged on his tent to get him to leave. The victim refused, and Lee hit him. The victim went back into his tent and came out with a knife in his hand and shined a flashlight in their faces. The victim lunged at Lee and "instinctively [Thompson] picked up a stake that wasn't far from [him] and . . . hit [the victim] across his head which knocked him out" and "displaced" his ear.
Thompson testified that Lee went through the victim's pockets, taking his cell phone and some money. The victim woke up, and Lee escorted him by the back of his shirt to the railroad tracks, as Thompson and Obbie followed. Obbie grabbed a stick, knocked the victim across the knee caps, and hit the victim repeatedly in the head. While Obbie was beating the victim, Thompson saw their friends coming toward them along the tracks. While Thompson, Lee, and Obbie yelled across the tracks to explain to their friends what had happened, the victim ran away unnoticed. Thompson denied that the [Petitioner] was present during the robbery.

Id. at *1-3

         B. Post-Conviction Petition

         The Petitioner filed a petition seeking post-conviction relief asserting that: (1) his trial counsel ("Counsel") was ineffective; (2) the State withheld exculpatory evidence; (3) he had new evidence that he was actually innocent of the charges; and (4) the trial court failed in its role as the thirteenth juror. At a hearing on the petition, the parties presented the following evidence: the Petitioner testified that he was thirty-five years old and serving seventeen years in prison for especially aggravated robbery. He testified that Counsel was appointed as his lawyer during his arraignment and represented him during his trial and on appeal. The Petitioner testified that he spoke with Counsel briefly after his arraignment, for maybe ten or fifteen minutes, and at that time he gave Counsel his version of the events surrounding his charges. He said that he told Counsel that he was not present during the robbery. Counsel told him that he would attempt to find the people that the Petitioner was with and interview them, as well as seek surveillance video from the gas station where the Petitioner alleged he was located at the time of the incident, to confirm that he was not present during the robbery. Counsel, however, never followed-up with the Petitioner regarding his investigation. Counsel told him the weekend before trial that it was too late to obtain any videos.

         The Petitioner recalled that he was incarcerated pending his trial. While there, he received a medical examination, but Counsel never asked about the results of that examination. He said that Counsel only visited him once, on the weekend before his trial, when the two met for one and a half to two hours. At the time, the two listened to Mr. Lee's interview, and Counsel provided him with a list of questions that he may ask in court. He did not feel that Counsel prepared him for trial. He opined that his lack of preparation hurt him at trial.

         The Petitioner said that he attempted to call Counsel but that Counsel never answered or returned his calls. He also sent letters to Counsel, but Counsel never responded. He said that the two only spoke in court.

         The Petitioner testified that Counsel spoke with him regarding a plea agreement. He asked Counsel for the discovery response, but Counsel did not provide him with discovery until after the trial.

         The Petitioner said that Counsel appealed his convictions. When this Court affirmed the convictions, he told the Petitioner that he intended to seek permission to appeal to the Tennessee Supreme Court. The Petitioner said that Counsel never informed him that the Tennessee Supreme Court had denied his request for appeal. He did not learn of this fact until he wrote to the appellate court clerk on December 10, 2013. On that date, he informed the trial court that Counsel was not communicating with him and asked the status of his case. Two days later, he received a letter from the Tennessee Supreme Court informing him that his appeal had been denied.

         During cross-examination, the Petitioner conceded that he had several other previous felony and misdemeanor convictions. The Petitioner agreed that he did not need any follow-up mental health services after his medical examination. The Petitioner agreed that another attorney represented him during the preliminary hearing. He did not present any alibi witnesses at his preliminary hearing.

         The Petitioner agreed that he met with Counsel at each of his hearing dates, but he did not recall there being six court dates. He said that Counsel came prepared when he met with him the weekend before the Petitioner's trial. Counsel told him that it was important for him to tell the truth if he testified at trial and then he gave him a list of potential questions and told him to answer them truthfully.

         During redirect examination, the Petitioner testified that he remembered only two court dates. He said that, while he had previous convictions, this was the first case that was tried. The Petitioner said that, while Counsel gave him a list of questions, he never discussed cross-examination with him.

         John Oliva testified as an expert in criminal defense law. He testified about client pretrial preparation and about developing a relationship with a client. He testified that the Petitioner's presentence report indicated that the Petitioner had been identified anecdotally as having Attention Deficit Disorder by his adoptive mother, which indicated the need for further mental health evaluation.

         Mr. Oliva testified that the jail records indicated that Counsel visited the Petitioner in jail on two occasions, both shortly before trial and both lasting forty-five minutes. He opined it would be "very difficult to" adequately prepare a client in this period of time. He said that a client should be familiar with the charges, the State's discovery, the anticipated evidence, and the anticipated questions on direct and cross. Further, without adequate preparation for testifying at trial, a client might give a bad impression by seeming needlessly nervous or evasive.

         Mr. Oliva said that some of the evidence at trial, such as the State asking the Petitioner about the process of smoking crack cocaine, was not relevant. He further found the State's questions about the Petitioner's tear drop tattoos as excludable evidence. Mr. Oliva said that Counsel could have had the knives found on the Petitioner forensically tested to determine if there was a specific blade used that would or would not match the victim's injuries.

         Mr. Oliva testified that, while the presentence report briefly discussed the Petitioner being in foster care since he was eighteen months old and being adopted at fifteen, these issues were not explored for purposes of sentencing. He said that, when a client's social or mental health history is not "fleshed out, " the trial court can miss applicable mitigating factors.

         Examining the records Counsel submitted to the trial court, Mr. Oliva noted that Counsel did not submit any hours for preparing for the Petitioner's sentencing hearing. Mr. Oliva stated that the Petitioner's sentencing range was fifteen to seventeen years and that adequate preparation may have resulted in the Petitioner receiving a sentence of less than the seventeen-year sentence imposed. Mr. Oliva stated that it would have been helpful for family or friends to be present at the hearings and that Counsel should have developed a rapport with these people and encouraged them to attend the trial.

         Mr. Oliva testified that Counsel's appellate brief seemed sparse, the argument section being only a little more than a page in length. He noted that a trial attorney has an ongoing duty to communicate with a client. He then noted that there was a twenty-two month gap between letters sent by Counsel to the Petitioner. He said that ...

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