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Dowell v. State

Court of Criminal Appeals of Tennessee, Nashville

July 5, 2017

JAMES L. DOWELL III
v.
STATE OF TENNESSEE

          Assigned on Briefs February 23, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2010-B-1177 Cheryl A. Blackburn, Judge.

         The Petitioner, James L. Dowell III, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury conviction for first-degree felony murder. In this direct appeal as of right, the Petitioner raises the following ineffective assistance of counsel claims: (1) whether trial counsel failed to adequately meet with the Petitioner and effectively communicate regarding the details of his case and defense strategy; (2) whether trial counsel failed to call a witness to establish a duress defense, thus, leading to no defense being presented at all; and (3) whether trial counsel failed to convey a plea offer made by the State. After a thorough review of the record, we affirm the judgment of the post-conviction court.

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

          Nathan D. Cate, Nashville, Tennessee, for the Appellant, James L. Dowell III.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Megan M. King, 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

         This case arises from a December 10, 2008 robbery at Ace Market in Davidson County, Tennessee, during which one of the employees, Lindergh Thompson ("the victim"), was shot three times, resulting in his death. For his participation in the robbery, the Petitioner, along with Rivera L. Peoples and Brian I. Moreland, was indicted on charges of first degree felony murder, attempted second degree murder (involving another victim, Antionette Bell, who was also shot during the robbery), and employing a firearm during a dangerous felony. The Petitioner was tried separately from his co-defendants.[1]

         The State dismissed the attempted second degree murder and firearm charges, and the Petitioner proceeded to a jury trial on the first degree felony murder charge. See Tenn. Code Ann. § 39-13-202 (felony murder). His first trial resulted in a hung jury, but at his second trial in July 2012, he was found guilty as charged of first degree felony murder. Thereafter, the trial court sentenced him to a life sentence in the Tennessee Department of Correction.

         A. Trial.

         Gift Bondwe, a cashier at Ace Market, recalled that, on December 10, 2008, the victim was killed while taking out the trash. During a later autopsy, it was determined that the victim was shot three times.

         The parties presented the following evidence at the Petitioner's second trial:

Bondwe described the events leading up to the shooting, saying that Bondwe was at the cash register organizing the money received from sales that evening. [The victim] went to take the trash to the dumpster, and Bondwe heard a "boom boom." . . . Bondwe recalled that a customer who had previously left the market came running back into the market, saying "[T]hese people are crazy . . . they're shooting outside." Bondwe said he walked to one of the store coolers while calling 911 to report the shooting.
. . . .
Bondwe said that, when police arrived, he recounted the events for them, including that a customer had returned to the store after hearing the gunfire outside. When he returned to the inside of the store, he saw the customer, Antionette Bell, crawling from a second cooler in the store away from a pool of blood. At that point, he realized that she had also been shot.
Bondwe testified that the store had some video surveillance of the shooting and that he gave the video footage to police officers. The video of the shooting was then played for the jury. The video showed the [Petitioner's] entering the store. Bondwe recalled that, when the [Petitioner] entered the store, he spoke to Bondwe, saying, "[W]hat's up, Chicken George, " which was a statement both men recognized as a greeting. The [Petitioner], who was on the phone, walked to the back and asked Bondwe several times the price on different items, which Bondwe found unusual. [The victim] opened the door "a little bit, " and, in doing so, [the victim] was ensuring that everyone was out of the store before [the victim] took the trash to the dumpster. Bondwe said that [the victim] was "very cautious" about security. The video depicted the [Petitioner's] leaving the store and [the victim's] leaving to take out the trash. The footage showed Bell coming into the store, showed her leaving, and briefly showed the shooter.
During cross-examination, Bondwe testified that the [Petitioner] called him "Chicken George" because Bondwe used to cook "good chicken." Bondwe testified that he was alone in the store after [the victim] left to take the trash to the dumpster and that the [Petitioner] exited the store.
Antionette Bell testified that she was shot in her left arm on December 10, 2008, while she was at Ace Market. She described the events leading up to the shooting, saying that she walked from her home to the market, where she often shopped, to purchase beer and cigarettes. Before entering the store, she noticed a gray or silver car and saw two men, one of whom was the [Petitioner], getting out of the car. Bell asked the [Petitioner] if he "had a light." The [Petitioner] said, "[N]o, baby girl, I ain't got no light." He then felt in his pockets and said, "[Y]eah, I do got a light, " and he lit her cigarette. The [Petitioner], as seen on the video footage, entered the store. Bell said she stood at the front corner of the building when the [Petitioner] exited the store and [the victim] came outside with the trash. Bell said she did not interact with the [Petitioner] at this time, and she stayed in front of the market smoking her cigarette.
Bell testified that she then heard a voice say, "[G]o get the money out of the register, " to [the victim], and she heard [the victim] respond to the speaker to "go get the money" themselves. After that, Bell heard a "couple" of shots, and she ran inside the store and hid inside one of the store coolers. She said that, at some point, she felt a burn. She opened a beer and began to drink it and then lost consciousness. When she regained consciousness, she began to crawl out of the cooler.
During cross-examination, Bell testified that she could not identify the shooter. She agreed that she had been drinking that evening but denied that she was intoxicated. She said that she had smoked marijuana earlier that day but denied using crack cocaine that day. Bell said she saw [co-defendant] Brian Moreland at the market the evening of the shooting and that he gave her a dollar. Bell admitted that she had previously been convicted of two counts of attempted second degree murder.
Lieutenant Matt Pylkas, with the Metropolitan Nashville Police Department, testified that, when he received the call about this shooting, he traveled a few miles north of the market and then back to the market, hoping to find a suspicious vehicle or person of interest fleeing the market. He said that when he arrived at the 1000 block of Edgehill, he noted a vehicle that fit the description of the vehicle involved in this shooting, a silver Chevy Impala with a spoiler on the rear, some damage to one of the quarter panels, and a temporary tag. The lieutenant said he approached the unoccupied vehicle. He noted that it was a cold and rainy December night, and he noted that there was heat emanating from the engine. Lieutenant Pylkas looked inside the vehicle, and he saw what appeared to be black stocking caps. . . .
. . . .
Jerome Oseibonsu testified that he owned Kobby's Auto Sales in Nashville. In 2009, police contacted him about a car that he had sold to a man named Rivera Peoples[, also a co-defendant]. He said the bill of sale showed that he sold the car, a 2000 gray Chevrolet Impala, on November 24, 2008. [Co-defendant] Peoples provided Oseibonsu several references in the event that Peoples defaulted on the loan. The first reference was Peoples's brother, Antonio Harris. The other references were [co-defendant] Brian Moreland, the [Petitioner], and Shameka Harris.
. . . .
[Co-defendant] Moreland testified that, on December 10, 2008, he was involved in attempting to rob the Ace Market with Peoples, Harris, and the [Petitioner]. He said that Harris and Peoples were brothers and that the [Petitioner] was dating their sister. Moreland said he also dated one of Harris's and Peoples's sisters. Also, Peoples was the father of the [Petitioner's] sister's children. Moreland testified that, on the night of the attempted robbery, Peoples was driving an Impala that he had recently purchased. A few hours before going to the market, the men began discussing how they needed money. Moreland said all of the men participated in this discussion, and they settled on robbing the Ace Market. Moreland said the plan for the robbery was that the [Petitioner] would enter the store and see who was present. Then, Moreland and Harris would enter the market with their faces covered with bandanas and rob the clerk.
Moreland said that, when they arrived at the market, they sat in the car for a period of time discussing the robbery plan. The [Petitioner] then got out of the car and went into the market to see who was there. While the [Petitioner] was in the store, Peoples moved his car to another location, an alley beside the store. The [Petitioner] was on the phone with Peoples while the [Petitioner] was inside the store. Moreland said Peoples said that they were good to start the robbery, so Moreland and Harris began putting on their bandanas to start the robbery. Moreland recalled that, as the [Petitioner] exited the store, another man came out also, carrying a trash bag and walked toward the dumpster. Harris, who had his bandana on, "hopped" out of the car and shot the man. Harris then ran to the front of the store and shot in the store, and then he came back around the car and shot the man carrying the trash bag again. Harris then got inside the car. The four men left the market and went to Harris's house.
Moreland testified that the [Petitioner] did not say anything when he returned to the car from the market. He said that there was no communication between the [Petitioner] and Harris before Harris got out of the car and shot the man taking trash to the dumpster.
During cross-examination, Moreland testified that he used his own free will when he participated in this robbery. Moreland said he did not go into the store to rob it because Harris jumped out of the car and shot the man. He conceded that he did not hear what the [Petitioner] said to Peoples during their phone conversation. He denied that he shot anyone and denied that he had said that "some lady grabbed something out of [his] hand and that's why [he] shot her." He also denied saying that "the old man got in the crossfire and [he] didn't mean to kill him." Moreland agreed that he denied his involvement in this crime when he was first questioned by police. Moreland agreed that he had previously been convicted of criminal impersonation.

State v. James L. Dowell, III, No. M2011-02096-CCA-R3-CD, 2012 WL 3939978, at *1-5 (Tenn. Crim. App. Sept. 11, 2012), perm. app. denied (Tenn. Feb. 12, 2013).

         Forensic testing was performed on the evidence submitted by police involved in investigating this case. According to Belinda Shea, a civilian latent fingerprint examiner with the Metropolitan Nashville Police Department, the Petitioner's fingerprints were found on a dryer sheet box located inside Peoples's car. Dowell, 2012 WL 3939978, at *3. Shea also matched fingerprints from CDs in Peoples's car to those of co-defendants Peoples and Moreland. Id. Tennessee Bureau of Investigation ("TBI") Agent Alex Brodhad testified that the bullet recovered from the victim's body and all of the cartridge cases recovered from the crime scene were fired by the same nine-millimeter gun. Id. at *4. TBI Agent James Russell Davis, II, testified that he found gunshot residue on four gloves from the car. Id. TBI Agent Michael Turbeville testified that the Petitioner "was consistent as a contributor of DNA on several items found in Peoples's car, " including two pairs of gloves and a toboggan hat. Id. Agent Turbeville also confirmed the presence of the Petitioner's DNA on two bandanas and a cigarette butt. Id.

         Because it is relevant to the issues presented in this appeal, we also note that, at trial, the Petitioner sought to offer the testimony of Antonio Harris, one of the men involved in the robbery.

The [Petitioner] posited that Harris would testify that the [Petitioner] said he did not want to participate in the robbery before Harris shot and killed [the victim]. The State told the trial court that, if Harris so testified, the State wanted to cross-examine Harris about robberies that Harris and the [Petitioner] both admitted they committed together. The trial court held a jury-out hearing to determine to what extent Harris would be subject to cross-examination by the State.
During the jury-out hearing, Antonio Harris testified that the [Petitioner] had no involvement in this shooting. Harris took responsibility for the shooting and said that he had pled guilty to charges stemming from it. Harris explained that he asked the [Petitioner] to be a lookout during the robbery. Harris said that, "once [the Petitioner] did that[, ]" the [Petitioner] "changed his mind about the acts." Harris said that Harris "jumped out of the car" continued doing "what [he] intended to do from the beginning." Harris said the [the Petitioner] had no other involvement in this crime.
During the jury-out cross-examination, Harris testified that he and the [Petitioner] were together for a couple of hours before the shooting. He said that the two men met up with a third man, Harris's brother [co-defendant] Peoples, and then, shortly before the murder, they met up with a fourth man, [co-defendant] Moreland. Harris said he proposed ...

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