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Shoemaker v. State

Court of Criminal Appeals of Tennessee, Nashville

June 14, 2017

MICHELLE DAWN SHOEMAKER
v.
STATE OF TENNESSEE

          Assigned on Briefs March 14, 2017

         Appeal from the Criminal Court for Jackson County No. 02-160 John D. Wootten, Jr., Judge

         A Jackson County Criminal Court Jury convicted the Petitioner, Michelle Dawn Shoemaker, of first degree premeditated murder, conspiracy to commit first degree premeditated murder, solicitation of first degree premeditated murder, and tampering with evidence, and she received an effective life sentence. Subsequently, the Petitioner filed a petition for a writ of error coram nobis, alleging newly discovered evidence in the form of an affidavit from a co-conspirator, who was also the Petitioner's mother, stating that the Petitioner was not involved in the victim's death. The coram nobis court summarily denied the petition, and the Petitioner appeals. Based upon the record and the parties' briefs, we affirm the judgment of the coram nobis court.

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

          Michelle Dawn Shoemaker, Pro Se, Memphis, Tennessee.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Tom P. Thomspon, Jr., District Attorney General; and Howard L. Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         This case relates to a conspiracy by the Petitioner; her husband, Dean Shoemaker; her mother, Carol Kerr; and Robert Foutch, who lived with the Petitioner and her husband for a period of time, to kill the Petitioner's stepfather, Jim Kerr, and share $64, 000 in life insurance proceeds received by Mrs. Kerr. At trial, the State presented four written statements given by the Petitioner to the police after the victim's death. See State v. Michelle Shoemaker, No. M2005-02652-CCA-R3-CD, 2006 WL 3095446, at *2 (Tenn. Crim. App. at Nashville, Nov. 2, 2006), perm. to appeal denied, (Tenn. Mar. 12, 2007). In her first statement, the Petitioner claimed that on June 29, 2002, she and Mrs. Kerr went shopping, returned to Mrs. Kerr's home, and found the victim deceased. Id. In her second statement, the Petitioner claimed that after she and Mrs. Kerr returned to the Petitioner's home from shopping, Dean Shoemaker told them that Mr. Foutch had killed the victim. Id. She stated that she went with her husband and Mr. Foutch to dispose of evidence on July 4, 2002, and that Mrs. Kerr claimed to have hired Mr. Foutch to kill the victim. See id. In her third statement, the Petitioner said that prior to the victim's death, Mrs. Kerr had complained about him and had made statements about hoping he would get hurt at work or run over by a tractor. See id. at *3. In her final statement, the Petitioner said that the night before the victim's death, she, her husband, Mrs. Kerr, and Mr. Foutch decided that Mr. Shoemaker and Mr. Foutch would go to the victim's home the next day and kill the victim while the Petitioner and Mrs. Kerr were shopping. Id. The Petitioner stated that she "'never thought they would really go through with it'" and that she did not tell the truth in her previous statements because she was afraid of what would happen to her if she did so. Id.

         Dean Shoemaker pled guilty to second degree murder in exchange for a thirty-five-year sentence to be served as a Range II offender. Id. at *4. He testified at the Petitioner's trial and implicated her in conspiring to kill the victim. See id. at *5. Mr. Foutch also pled guilty to murder in exchange for a thirty-five-year sentence and testified at the Petitioner's trial. See id. at *6. During his testimony, he stated that he heard Mrs. Kerr say she would pay someone to get rid of the victim, that the Petitioner and Dean Shoemaker approached him about killing the victim, and that the "plan" was for the Petitioner and Mrs. Kerr to go shopping while Mr. Shoemaker and Mr. Foutch went to the Kerr home and killed the victim. Id. Mr. Foutch said that on the day of the victim's death, the victim was outside near his truck when Mr. Foutch hit him on the back of the head and shot him three or four times. Id. Mr. Shoemaker then shot the victim one time. Id.

         The Petitioner testified at trial that prior to the victim's death, her mother had been saying that she no longer wanted to be with him and that she wished he would have an accident or that someone would kill him. Id. at *7. The Petitioner, her husband, and Mr. Foutch discussed killing the victim, but the Petitioner never took the discussions seriously. Id. The night before the victim's death, the Petitioner heard her husband, her mother, and Mr. Foutch talking about how to kill the victim, and the Petitioner told them that she did not want to hear anymore about it. Id. The next day, the Petitioner and her mother went on a pre-planned trip to Wal-Mart. Id. While they were gone, the Petitioner's husband telephoned her and told her to hurry home. Id. When the Petitioner and her mother returned to the Petitioner's residence, the Petitioner's husband told her something that made her think something might have happened to the victim. Id. She and her mother went to her mother's home and found the victim. Id.

         On May 6, 2005, a Jackson County Criminal Court Jury convicted the Petitioner of first degree premeditated murder based upon a theory of criminal responsibility; conspiracy to commit first degree premeditated murder; solicitation of first degree premeditated murder; and tampering with evidence. On June 21, 2005, approximately six weeks after the verdicts, Carol Kerr entered a best interest plea, also known as an Alford plea, to second degree murder in exchange for a fifteen-year sentence to be served at 100%. According to the facts given by the State during the plea hearing, Mrs. Kerr was to keep one-half of the insurance proceeds received from the victim's death, and the Petitioner, Mr. Shoemaker, and Mr. Foutch were to divide the remaining half. The State advised the trial court that it spoke with the Petitioner prior to Mrs. Kerr's plea hearing and made no promises to the Petitioner about the Petitioner's sentences. The State also advised the court that the Petitioner wanted to testify against her mother and planned to testify at Mrs. Kerr's trial that Mrs. Kerr helped plan the victim's death, that Mrs. Kerr intended to share in the insurance money, and that "all of this between the four of them resulted in Mr. Kerr's death."

         On July 25, 2005, the trial court ordered that the Petitioner serve concurrent sentences of life for first degree premeditated murder; twenty years for conspiracy to commit first degree premeditated murder, a Class A felony; eight years for solicitation of first degree premeditated murder, a Class B felony; and three years for tampering with evidence, a Class C felony. Id. at *1. The court merged the solicitation conviction into the murder conviction. ...


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