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Petty v. State

Court of Criminal Appeals of Tennessee, Nashville

July 19, 2017

JEFFREY S. PETTY
v.
STATE OF TENNESSEE

          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Dickson County No. 22CC-2013-CR-647 Larry J. Wallace, Judge

         The Petitioner, Jeffrey S. Petty, appeals the Dickson County Circuit Court's denial of his petition for post-conviction relief. On appeal, he argues that trial counsel was ineffective by (1) failing to move for a mistrial based on juror misconduct; (2) failing to file a motion to suppress evidence found in the Petitioner's car; and (3) failing to include certain issues in his motion for new trial. Upon our review, we affirm the judgment of the post-conviction court.

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

          Steven S. Hooper, Waverly, Tennessee, for the Petitioner, Jeffrey S. Petty.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Wendell Ray Crouch, Jr., District Attorney General; and Carey J. Thompson, Assistant District Attorney General, for the Appellee, State of Tennessee.

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

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On August 8, 2008, a Dickson County jury convicted the Petitioner of first degree felony murder and arson. This court summarized the facts underlying the Petitioner's convictions in its opinion on direct appeal. State v. Jeffrey Scott Petty, No. M2009-01621-CCA-R3-CD, 2013 WL 510150 (Tenn. Crim. App. Feb. 12, 2013). In short, the victim, Kenneth Brake, owned a trailer where the Petitioner had formerly lived. Id. at *1. The victim's body was found in the trailer, which had been set on fire. Id. It was determined that the victim died of a gunshot wound before the fire started. Id. In a statement to officers, the Petitioner admitted to planning a robbery of the victim with a co-defendant, Thomas Dotson. Id. However, the Petitioner said that he waited outside while Dotson shot the victim and then lit the trailer on fire. Id. The jury found the Petitioner guilty of first degree felony murder and arson, and the trial court sentenced him to life imprisonment and five years, respectively, to be served consecutively. Id. The Petitioner appealed his convictions, which were affirmed by this court. Id. at *5.

         On September 27, 2013, the Petitioner filed a pro se petition for post-conviction relief. On October 16, 2013, the post-conviction court appointed post-conviction counsel, who later filed two amended petitions for post-conviction relief.

         At the post-conviction hearing, the Petitioner's trial counsel testified that he had been a public defender for seventeen years and that he had handled over fifty murder trials. He recalled an incident that occurred during trial between one of the sequestered jurors and a waitress during a lunch break. It was determined that the waitress was the mother of one of the witnesses and that the juror and the waitress had a conversation about an ink pen. After learning about the incident, the trial court questioned the juror and determined that the facts of the case were not discussed. Trial counsel recalled that the court dismissed the juror "out of the abundance of caution but not because he actually thought that juror had been prejudicing anyone." Trial counsel did not ask the juror questions because he "didn't see any need to, " and because the trial court had sufficiently questioned the juror.

         Trial counsel confirmed that officers searched the Petitioner's car and found a Walmart receipt showing that the Petitioner purchased shotgun shells the night of the murder. Counsel also confirmed that the shotgun shells were the same type of shells that were used in the murder. Although trial counsel filed a motion to suppress the Petitioner's statement to officers, he did not move to suppress the search of the Petitioner's car. Trial counsel believed that the officers would have found out eventually about the Walmart purchase from the Petitioner's co-defendant because the co-defendant had been with the Petitioner at Walmart, had accepted a plea deal, and had given a proffer to the State. Trial counsel also recalled that the Petitioner gave officers consent to search his car and that there was no evidence that the consent was coerced or involuntary.

         Trial counsel said that he did not file the Petitioner's motion for new trial and that he could not recall if he discussed the grounds for the motion with his co-counsel, who drafted and filed the motion. However, counsel testified that the motion "clearly was not sufficient . . . [b]ecause it left out all the things that needed to be taken up on appeal, " such as challenging the denial of the motion to suppress the Petitioner's statement. Counsel opined that the Petitioner "did not get effective assistance of counsel on this motion."

         The Petitioner testified that he did not ask his trial counsel to question the dismissed juror because he "wasn't aware that would be an issue." The Petitioner acknowledged that the conversation was only about an ink pen. The Petitioner also testified that he did not give officers consent to search his car. The Petitioner said that he asked officers if he could lock his car, but officers said they would "lock it up for [him]." However, the Petitioner also testified that he called his father to come get his car and that when his father ...


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