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Houston v. State

Court of Criminal Appeals of Tennessee, Nashville

June 13, 2017

EMMANUEL BIBB HOUSTON
v.
STATE OF TENNESSEE

          Assigned on Briefs April 19, 2017

         Appeal from the Circuit Court for Bedford County No. 2012CR17467 Forest Durard, Judge

         The petitioner, Emmanuel Bibb Houston, appeals the denial of his petition for post-conviction relief from his 2013 Bedford County Circuit Court jury convictions of especially aggravated kidnapping, aggravated burglary, and facilitation of especially aggravated robbery, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

          M. Wesley Hall, IV, Unionville, Tennessee, for the appellant, Emmanuel Bibb Houston.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Robert James Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         A Bedford County Circuit Court jury convicted the petitioner of especially aggravated kidnapping, aggravated burglary, and facilitation of especially aggravated robbery for kidnapping, beating, and robbing the victim, Gregory Marlin in May 2012. The evidence adduced at the petitioner's trial, as summarized by this court on direct appeal, established that the petitioner

entered the victim's house with the intent to beat him, as shown by his statements prior to arriving at the victim's house and his carrying a baseball bat concealed in his pants into the victim's house. [The petitioner] struck the victim with the baseball bat three times, breaking five ribs and causing a large laceration on the victim's head. While no issue regarding serious bodily injury has been presented on appeal, we note that based on [medical] testimony and the victim's testimony, this element was clearly met. The victim testified that while he was on the ground after being struck, he saw [Samantha] Houston, [the petitioner's] sister, carrying the television from his bedroom. Then, [the victim] was hogtied by [the petitioner], possibly with Ms. Houston's assistance. The victim and [Ericka] Myrick both testified about how [the petitioner] tied the victim. After [the victim] was tied, [the petitioner] and [Deonta] Twilley carried the victim to the bathroom, literally throwing him inside. The victim freed himself after approximately thirty minutes and sought help at that point. In the meantime, a bone fragment from his rib punctured his lung, causing the lung to collapse and air to begin filling his chest cavity-a life-threatening condition known as pneumothorax.

State v. Emmanuel Bibb Houston, No. M2013-01177-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, June 4, 2014), perm. app. denied (Tenn. June 15, 2015). In addition to this evidence, the proof showed that the victim's television was later located in a vehicle occupied by the defendant and his co-defendants and that the defendant admitted his involvement in the crimes to the police. See id., slip op. at 6. This court affirmed the petitioner's convictions and the accompanying 23-year total effective sentence.

         On January 21, 2015, the petitioner filed a timely petition for post-conviction relief and delayed appeal. The post-conviction court found that appellate counsel failed to file a timely application for permission to appeal to our supreme court or a motion to withdraw as required by the rules and granted the petitioner a delayed appeal for the purpose of filing an application for permission to appeal to the supreme court. The supreme court denied the petitioner's application, and the petitioner subsequently filed an amended petition for post-conviction relief. The court held an evidentiary hearing on the amended petition on October 26, 2015.

         At the evidentiary hearing, trial counsel testified that he was appointed to represent the petitioner in the general sessions court and that he visited the incarcerated petitioner approximately five times during the nine months prior to the petitioner's trial. Counsel did not have a thorough recollection of the petitioner's trial, but he did recall visiting the petitioner, obtaining discovery materials, and speaking with the attorneys who represented the co-defendants. Counsel also recalled that he endeavored to highlight for the jury the inconsistencies in the testimony offered by the State's witnesses. Counsel said that he received a list of the names of potential jurors and that he performed research into their backgrounds. Counsel could not recall when he had provided the discovery materials to the petitioner but was confident that he had done so.

         Counsel testified that the petitioner "wrote a lot of" complaints to the Board of Professional Responsibility ("the Board") about counsel while the case was pending. Counsel acknowledged that he was censured by the Board for failing to timely file an appellate brief in the direct appeal of this case and for failing to respond to the petitioner's requests for information in a timely manner.[1]

         Counsel said that he did not have the closing arguments transcribed in this case. He said that he raised the issue of a Brady violation both in his motion for new trial and on direct appeal.[2] Counsel admitted telling the petitioner that he believed the case to be one of aggravated assault and that the "especially aggravated kidnapping charge was foundless." Counsel also admitted having a conversation with the petitioner about the fact that he had been appointed to represent the petitioner rather than retained, explaining:

We had a conversation. . . . I think it was at the conclusion of maybe the first day of trial. It wasn't over at the time.
I wished he had had money, because it was a multi-day trial. I wished we would have been able to hire an investigator because I would have liked to have more further investigate[d] Mr. Marlin, ...

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