Court of Criminal Appeals of Tennessee, Nashville
JAMES L. DOWELL III
STATE OF TENNESSEE
Assigned on Briefs February 23, 2017 at Knoxville
from the Criminal Court for Davidson County No. 2010-B-1177
Cheryl A. Blackburn, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
D. Cate, Nashville, Tennessee, for the Appellant, James L.
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.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE.
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.
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.
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.
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
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
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
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.
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.
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
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
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 ...