April 11, 2017
from the Criminal Court for Shelby County No. 11-01531
Carolyn W. Blackett, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. Chism, Memphis, Tennessee, for the appellant, Joletta
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
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE.
and Procedural Background
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.
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. 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.Id. at *5-8. This Court affirmed
the convictions, and the Tennessee Supreme Court denied
permission to appeal. Id. at *1.
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.
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.
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.
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.
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.
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.
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.
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." 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.
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
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
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.
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
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.
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.
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 ...