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Summers v. State

Court of Criminal Appeals of Tennessee, Jackson

July 14, 2017


         Session: April 11, 2017

         Appeal from the Criminal Court for Shelby County No. 11-01531 Carolyn W. Blackett, Judge

         Petitioner, Joletta Summers, appeals the denial of her petition for post-conviction relief from her convictions for voluntary manslaughter, attempted voluntary manslaughter, and employment of a firearm during the commission of a dangerous felony. On appeal, Petitioner asserts that she received ineffective assistance of counsel because trial counsel mentioned during opening statement an inculpatory statement that was never introduced into evidence; failed to adequately argue for severance of her case from her codefendant's; failed to object to the State's improper closing argument; failed to file a timely motion for new trial; and failed to argue on appeal that the trial court erred in failing to specify the predicate felony in the jury instructions for the employment of a firearm charge. Upon our review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

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

          Lance R. Chism, Memphis, Tennessee, for the appellant, Joletta Summers.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and J. Ross Dyer, JJ., joined.



         Factual and Procedural Background

         Petitioner and her husband, Antonio Jackson, were indicted for second degree murder, attempted second degree murder, and employing a firearm during the commission of a dangerous felony. See State v. Antonio Jackson and Joletta Summers, No. W2013-00185-CCA-R3-CD, 2014 WL 6200805, at *1 (Tenn. Crim. App. Nov. 10, 2014), perm. app. denied (Tenn. Feb. 13, 2015). The facts at trial established that Petitioner's and Jackson's teenaged son, "Little Tony, " got into a fight with another boy while playing basketball. Petitioner and Jackson drove to where the group of teenagers had been playing basketball in order to confront them, though the boy who had started the fight had already left. A fist fight erupted between Jackson and the victims, Nico White and Marion Withers. At some point, Petitioner went to the passenger side of her vehicle and then returned to Jackson's side. Gunshots were fired from the vicinity of Petitioner and Jackson, killing Mr. Withers and severely wounding Mr. White. One witness testified that Jackson fired the shots, while others could not identify who had the gun. Low levels of gunshot residue were detected on Jackson's hands but not on Petitioner's. Jackson testified, claiming that the victims attacked him first and denying that he had a gun or that he shot anyone. Jackson initially told police that Petitioner was responsible for the shooting "because it appeared that she had a gun" when they returned home; however, at trial, he denied that he saw Petitioner with a gun at the scene and stated that he did not know who fired the shots. Petitioner did not testify. Id. at *1-4.

         The jury convicted Petitioner as charged of employing a firearm during the commission of a dangerous felony and of the lesser-included offenses of voluntary manslaughter and attempted voluntary manslaughter.[1] Petitioner was sentenced as a Range I, standard offender to concurrent terms of three years for each of the manslaughter convictions and a consecutive term of six years for the firearm conviction, for a total effective sentence of nine years. Id. On appeal, Petitioner challenged the sufficiency of the evidence as to the manslaughter convictions and argued that the trial court erred in denying the motion to sever the defendants and in not admitting into evidence photographs showing the victims' gang affiliation and propensity for violence.[2]Id. at *5-8. This Court affirmed the convictions, and the Tennessee Supreme Court denied permission to appeal. Id. at *1.

         On August 7, 2015, Petitioner timely filed a pro se petition for post-conviction relief. Counsel was appointed, and an amended petition was filed on April 12, 2016. Supplements to the amended petition were filed on June 20 and July 20, 2016. The amended petition alleged, in addition to other grounds of ineffective assistance of counsel, that Petitioner was entitled to a delayed appeal because trial counsel had filed an untimely motion for new trial. The amended petition also alleged that the indictment for employing a firearm during the commission of a dangerous felony was void for failing to name the underlying felony. An evidentiary hearing was held on July 21, 2016. We summarize below the testimony pertinent to the issues raised on appeal.[3]

         Trial counsel testified that he had been licensed to practice law since 1984, that he mostly practiced criminal law, and that he had conducted over a hundred jury trials. Trial counsel was retained to represent Petitioner sometime in 2010. Trial counsel reviewed all of the discovery materials with Petitioner. Trial counsel testified that he and Petitioner met "quite a bit" because "this case was set for trial several, several times and it kept getting continued, because [Petitioner] had a sick daughter." Trial counsel testified that he "discussed everything" with Petitioner and that she "seemed fairly satisfied" and "confident" with the chosen trial strategy.

         The judgment forms and a minute entry were entered into evidence, indicating that the judgments were filed on November 16, 2012. A copy of trial counsel's motion for new trial, which was filed on December 18, 2012, was also entered into evidence. Trial counsel agreed that the motion for new trial should have been filed by Monday, December 17, 2012, and that it was one day late. The trial court held a hearing on the motion for new trial where trial counsel submitted the matter on his motion and did not present any argument.

         Post-conviction counsel asked trial counsel about the second issue in the motion for new trial, which reads as follows:

Defendant states that the Court should have dismissed the charge of Possessing a Firearm During the Commission of or Attempt to Commit a Dangerous Offense in that the jury charge lacked specificity and did not conform to the Defendant's acts and/or actions as set out in the indictment or described by the State's witnesses.

         Admitting that the reference to possessing a firearm was a typographical error, trial counsel explained that he was trying to argue that the indictment for employing a firearm

didn't connect . . . to any particular crime. That if you're going to charge the jury, then you should charge them. The particular crime in in this case it came back voluntary manslaughter and criminal attempt voluntary manslaughter, so which one was it attaching to, I think is what I was saying.

         Trial counsel explained that he usually does not cite case law in his motions for new trial. The second issue in the appellate brief, which was entered into evidence, was "[w]hether the Court committed reversible error in its charge to the jury on the first Count of the indictment by reference to the terms 'deadly weapon' and 'firearm.'" Trial counsel believed that he was attempting to argue the same issue as in the motion for new trial in that the indictment "didn't say with any specificity which one [of the other offenses the State is] attaching this crime to." Trial counsel cited one case in his appellate brief, State v. Jeremiah Dawson, No. W2010-02621-CCA-R3-CD, 2012 WL 1572214, at *8 (Tenn. Crim. App. May 2, 2012) (reversing convictions for carjacking and employing a firearm during the commission of a dangerous felony when the jury was instructed on both carjacking by force or intimidation and carjacking with a deadly weapon), perm. app. denied (Tenn. Sept. 20, 2012). Trial counsel could not recall if he kept up with appellate decisions addressing the underlying felony issue between the time he filed his appellate brief and the time this case was decided by the Court of Criminal Appeals.

         Trial counsel acknowledged that he had received a copy of codefendant Jackson's statement in discovery. In the statement, Jackson initially identified Petitioner as the person responsible for the death of Mr. Withers and stated that he saw her with a gun after they left the scene of the shooting. Trial counsel testified that he joined in the motion to sever filed by Jackson's attorney. Trial counsel admitted that he did not file his own written motion for severance. Trial counsel remembered that the motion was argued and denied, but he did not remember if it was argued before the trial or at some point during the trial. Trial counsel did not remember specifically what argument he made to the trial court, but he believed that he would have argued that Jackson's "statement made it almost impossible for my client to get a fair trial." Trial counsel agreed that Jackson's attorney would have been arguing different grounds for severance, but he explained that they were both arguing for a fair trial. Trial counsel did not remember the trial court's specific ruling, but he knew that the motion was denied.

         Post-conviction counsel then referred to the portion of the trial transcript where Jackson was being cross-examined by the State. After Jackson stated that he told the police that Petitioner was responsible for the death of Mr. Withers, trial counsel objected and requested a bench conference. According to the transcript, trial counsel's argument at the bench was "indiscernible." Trial counsel did not recall specifically what he said at that point but stated, "I must have said something about Bruton, I don't know, because right after that, [the State] says something about that."[4] Trial counsel agreed that he was not making a motion for severance at that point in the trial. Trial counsel explained that he would not have been asking for a severance at that point because the trial court had already ruled on the issue. Trial counsel agreed that a transcript of the argument on the severance issue should have been included in the record on direct appeal.

         As part of the discovery in this case, trial counsel received a copy of Petitioner's statement to police in which she admitted to pulling a gun at the scene and that it accidentally fired when someone bumped her hand. Trial counsel did not know if the State would use the statement at trial, but he "suspected they may." Trial counsel explained that he mentioned the statement during his opening statement in an attempt to "take the sting out" of it. Trial counsel presented a self-defense theory in his opening statement based, in part, on this statement. However, the State did not introduce the Petitioner's statement during the trial, and none of the witnesses testified that Petitioner had a gun in her hand at the scene. In his closing argument, trial counsel argued lack of evidence that Petitioner possessed the weapon rather than self-defense. Trial counsel explained that based on the evidence presented at trial, "self[-]defense seemed a little bit off to me . . . it just didn't feel right in my closing." Trial counsel explained that he had discussed the different approaches with Petitioner. Trial counsel did not know if the jury would remember what he had said during opening statement but considered that they may look upon the change in theory "unfavorably."

         Post-conviction counsel showed trial counsel excerpts from the prosecution's closing argument, including one where he referred to Petitioner's son wearing a Polo shirt at trial as a "smoke screen." Trial counsel explained that he did not object to that language because "everyone uses it, basically." Trial counsel further explained:

I don't object to everything that comes in. Some things I think [are] a waste and think jur[ors] tend to, it turns jurors off when you make an objection on every little point. I mean, they really take that as you're hiding something. And some things, if it doesn't hurt me, I don't care.

         With regard to the prosecutor's reference to a police officer as a "good officer, " trial counsel reiterated that "if it doesn't hurt me, I think you bring more attention sometime[s] with your objection than you would if you just let it go. Because, the jury, I mean, if you bring attention to it they are going to pay attention to it." Trial counsel also did not object during jury selection to the judge's comment that the jury "can't believe everything [codefendant Jackson's counsel] says." Trial counsel did not believe the statement was objectionable and did not believe that he could object to the judge's statements.

         On cross-examination, trial counsel testified that he believed it was in Petitioner's best interests to have her case severed from her codefendant but that the decision was ultimately up to the judge. He remembered seeking severance, the State objecting, and the judge denying the motion for severance. As to his opening statement, trial counsel did not believe that he would have presented his argument any differently. Trial counsel agreed that if self-defense was fairly raised by the proof, then the burden would be on the State to overcome it, so it would be advantageous to raise a self-defense theory. Trial counsel agreed that he could not introduce Petitioner's statement because it would have been hearsay, but the State could have introduced it as a statement against interest.

         Greg Gilbert, the prosecutor who tried Petitioner's original trial, testified that he remembered Jackson's counsel "being the prime mover in an argument for severance" and trial counsel "joining in to that argument." Mr. Gilbert believed that the severance issue was argued pretrial but could not remember exactly when it was argued. Mr. Gilbert testified that he did not remember trial counsel making an argument. Mr. Gilbert did not believe that there was a lot of argument because "under the mandatory joinder rules it is pretty clear that this arises out of the same facts and circumstances." Mr. Gilbert believed the severance motion was "a formality, more than anything." Mr. Gilbert agreed that trial counsel's "indiscernible" objection during the cross-examination of Jackson was in relation to a potential Bruton issue. Mr. Gilbert believed that trial counsel "may have mentioned, [']this is why we wanted a severance.[']" On cross-examination, Mr. Gilbert agreed that the Bruton objection was misplaced because he was not introducing an out-of-court statement of a non-testifying codefendant.

         Petitioner testified that after an initial meeting with trial counsel to discuss the basic facts of the case, Petitioner only briefly met with trial counsel approximately three times. Trial counsel reviewed the discovery with Petitioner. Petitioner testified that approximately two or three months before trial, she and trial counsel discussed a trial strategy based on the lack of evidence. Petitioner testified that trial counsel never mentioned a self-defense strategy until it was mentioned by Jackson's attorney at trial. Petitioner admitted that she did have a gun in her possession that night but claimed that she did not fire it because her husband was in the middle of the altercation. Petitioner wanted trial counsel to present an expert witness ...

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