Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 19, 2017
from the Criminal Court for Davidson County No. 2009-B-1806
Steve R. Dozier, Judge
Petitioner, Elza Evans III, appeals the post-conviction
court's denial of his petition for post-conviction relief
in which he challenged his convictions for aggravated
burglary, aggravated robbery, and two counts of especially
aggravated kidnapping and his effective sentence of two
consecutive terms of life imprisonment without the
possibility of parole. On appeal, the Petitioner contends
that trial counsel rendered ineffective assistance at trial
and on appeal. Upon reviewing the record and the applicable
law, we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
M. Hopkins, Murfreesboro, Tennessee, for the appellant, Elza
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and J. Wesley King, Assistant
District Attorney General, for the appellee, State of
Everett Williams, J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Timothy L. Easter, JJ.,
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
Petitioner and his co-defendants, Mr. Gregory Mathis, Mr.
Danny Lee Sams, and Ms. Emily Catherine Turner, were indicted
on charges of aggravated burglary of Mr. Terry Becker's
home, aggravated robbery of Mr. Becker, especially aggravated
kidnapping of Mr. Becker, and especially aggravated
kidnapping of Ms. Lisa Lewis. Mr. Sams and Ms. Turner were
also charged with forgery. Mr. Sams pled guilty to various
offenses prior to trial. The Petitioner and the remaining
co-defendants were tried together and were convicted as
charged. A summary of the evidence presented at trial is
included in this court's opinion on direct appeal.
See State v. Gregory Mathis and Elza Evans, No.
M2011-01096-CCA-R3-CD, 2013 WL 4774130, at *1-5 (Tenn. Crim.
App. Sept. 5, 2013), perm. app. denied (Tenn. Dec.
trial court found that the Petitioner was a repeat violent
offender and sentenced him to life imprisonment without the
possibility of parole for each of his especially aggravated
kidnapping convictions. The trial court also sentenced the
Petitioner as a persistent offender to fourteen years for
aggravated burglary and twenty-six years for aggravated
robbery. The trial court ordered the Petitioner to serve his
sentences for the especially aggravated kidnapping
convictions consecutively to each other and concurrently to
his sentences for the remaining convictions, for an effective
sentence of two lifetimes without the possibility of parole.
This court upheld the Petitioner's convictions and
sentences on direct appeal. See id. at *1.
Petitioner filed a pro se petition for post-conviction relief
in which he alleged that trial counsel was ineffective at
trial and on appeal. Following the appointment of counsel,
the Petitioner filed an amended petition. Mr. Mathis also
filed a petition for post-conviction relief, and the
post-conviction court held a joint hearing on the petitions.
Following the hearing, the post-conviction court entered an
order denying relief to both the Petitioner and Mr. Mathis.
Because this appeal only involves the denial of the
Petitioner's post-conviction petition, we summarize the
evidence presented during the hearing relevant to the claims
raised by the Petitioner in this appeal.
Mathis testified that when the offenses occurred, the
Petitioner did not know what was happening and did not have a
weapon. Mr. Mathis stated that he had a weapon and forced the
Petitioner to commit the home invasion. Mr. Mathis maintained
that he had been willing to testify on the Petitioner's
behalf at trial but that the Petitioner's counsel never
contacted him. Mr. Mathis acknowledged that had he testified
at trial, he would have admitted that he committed a robbery.
Mathis recalled that during the trial, he, his counsel, the
Petitioner, and the Petitioner's counsel met in a room
and discussed Mr. Mathis's testifying on behalf of the
Petitioner. Following the meeting, Mr. Mathis's counsel
informed him that the State would question him about his
prior criminal convictions if he testified. Mr. Mathis
acknowledged that he decided not to testify but maintained
that his counsel talked him out of testifying.
cross-examination by the State, Mr. Mathis testified that he
had known the Petitioner since the age of fifteen. Mr. Mathis
corresponded with the Petitioner through letters both prior
to and after the trial, and they remained friends. Mr. Mathis
acknowledged that he had three prior aggravated robbery
convictions, a felony theft conviction, and a conviction for
unlawfully possessing a firearm.
Mathis testified that he, Ms. Turner, and Mr. Sams planned
the offenses and drove by Mr. Becker's house in
preparation for the offenses. Mr. Mathis said Mr. Sams and
Ms. Turner did not know the Petitioner. The Petitioner
arrived at Nashville to celebrate his birthday the night
before the home invasion and stayed with Mr. Mathis. Mr.
Mathis maintained that he did not inform the Petitioner of
the planned home invasion when the Petitioner arrived. The
Petitioner and Mr. Mathis spent the evening drinking alcohol.
Mathis stated that he purchased duct tape, a mask, and wigs
in preparation for the home invasion. He could not recall
when he purchased the items or whether he purchased the items
before the Petitioner arrived. Mr. Mathis stated that he had
the items at his home the evening before the home invasion.
following day, Mr. Mathis drove his neighbor's vehicle
and parked down the street from Mr. Becker's home, and he
and the Petitioner walked to Mr. Becker's home. Mr.
Mathis had a bag of items with him. Mr. Mathis said that he
jumped over a fence in Mr. Becker's backyard and that the
Petitioner followed him. Mr. Mathis testified that he had two
guns on his person. He stated that once they reached Mr.
Becker's door, he told the Petitioner of the plan and
instructed the Petitioner to "follow his lead"
although the Petitioner said he did not wish to participate.
Mr. Mathis said he produced a gun, "kind of forced it
on" the Petitioner, and made the Petitioner put on a
wig. Mr. Mathis denied giving the Petitioner a gun and
maintained that he forced the Petitioner to participate in
the home invasion. When the State questioned Mr. Mathis about
the details of the events, he responded, "[Y]ou're
trying [to] get me to go into specific … detail. I
can't do all of that." Mr. Mathis maintained that
although he had two guns on his person, he produced only one
gun during the home invasion. He stated that Mr. Becker's
testimony that the perpetrators both had guns was incorrect.
Mathis testified that while he told his counsel that the
Petitioner did not have anything to do with the home
invasion, Mr. Mathis did not believe that he told his counsel
that he forced the Petitioner to participate or that he
pointed a gun at the Petitioner.
Mathis admitted pointing a gun at Mr. Becker and forcing him
to write the checks. Mr. Mathis acknowledged that he and the
Petitioner remained in Mr. Becker's home for a
significant period of time. After Mr. Sams called Mr. Mathis
and instructed him to leave the home, Mr. Mathis told the
Petitioner that they needed to leave, and the Petitioner
exited the home first followed by Mr. Mathis. Once they saw
the police officers, they fled in opposition directions. Mr.
Mathis said he dropped one of the guns and fled but kept the
other gun on his person. The officers apprehended them and
response to questioning by the Petitioner's
post-conviction counsel, Mr. Mathis testified that he did not
tell the Petitioner about the planned home invasions before
the Petitioner arrived in Nashville. To Mr. Mathis's
knowledge, the Petitioner had not met any of the other
co-defendants prior to the offenses. Mr. Mathis said that he
and the Petitioner consumed a large amount of alcohol on the
night prior to the home invasion and that the Petitioner
could have been "hungover" the next day. Mr. Mathis
stated that during the twenty- to twenty-five-minute drive to
Mr. Becker's home, Mr. Mathis did not inform the
Petitioner of the plans. Mr. Mathis initially testified that
the Petitioner voluntarily entered the home but then stated
that "it was forced" and that the Petitioner did
not want to be involved in the offenses. Mr. Mathis did not
recall what he said to the Petitioner to make him enter the
home. Mr. Mathis later testified that he pointed a gun at the
Petitioner and instructed him to "follow [his]
Mathis testified that prior to trial, he told the Petitioner
that he wanted to speak to the Petitioner's counsel. Mr.
Mathis believed that he also told his counsel that he wanted
to speak to the Petitioner's counsel. Mr. Mathis said he
told his counsel that he was willing to testify that the
Petitioner did not know anything about the offenses. Contrary
to Mr. Mathis's prior testimony during the
post-conviction hearing, Mr. Mathis stated he told his
counsel that the Petitioner was forced into committing the
offenses. Mr. Mathis then waited on the Petitioner's
counsel to contact him.
Emily Turner testified that the Petitioner's name was
never mentioned during her discussions with the other
co-defendants prior to the offenses. She also said that the
first time she had even seen the Petitioner was at Mr.
Petitioner testified that he "just happened to get
caught up" in the offenses. He said he told trial
counsel that his fiancée had received a letter from
Mr. Mathis in which Mr. Mathis stated that he informed his
counsel that he forced the Petitioner to commit the home
invasion. The Petitioner stated that Mr. Mathis wrote him
additional letters, maintaining that he told his attorney
that the Petitioner did not know that the home invasion was
to occur. The Petitioner also stated that he requested trial
counsel to interview Mr. Mathis and that Mr. Mathis was
willing to sign an affidavit regarding the Petitioner's
lack of involvement. The Petitioner maintained that trial
counsel failed to interview Mr. Mathis or speak to Mr.
Petitioner stated that he asked trial counsel to file a
motion to sever his trial from the trials of his
co-defendants because Mr. Mathis and Mr. Sams were willing to
testify on his behalf at trial. The Petitioner explained that
the majority of the evidence implicated his co-defendants and
that he was merely present when the offenses occurred. He
said the motion was untimely. During the hearing, trial
counsel attempted to enter the Mr. Mathis's letter as an
exhibit but was unable to do so because he failed to have it
properly authenticated. The Petitioner believed that trial
counsel would have been able to authenticate the letter had
he interviewed Mr. Mathis or retained a handwriting expert.
Petitioner recalled that trial counsel mentioned that the
case would be his first jury trial but assured the Petitioner
that he would adequately represent him. The Petitioner
believed trial counsel did not have the experience necessary
to represent him on the case and was not expending sufficient
time and effort in preparing for the trial. He requested that
trial counsel withdraw. The Petitioner stated that although
trial counsel filed a motion to withdraw, the motion was
untimely, and the trial court denied the motion.
Petitioner believed trial counsel failed to adequately
consult with him prior to trial. He was housed with the
Tennessee Department of Correction (TDOC) pending trial. He
said trial counsel met with him to discuss the case on no
more than three or four occasions and briefly met with him
during court appearances. He stated that trial counsel failed
to attend a scheduled meeting with him the day before trial
to discuss the defense strategy.
Petitioner testified that while trial counsel provided him
with a copy of the discovery materials from the State, trial
counsel did not review the materials with him. The Petitioner
then stated that he recalled "[n]o more than one
meeting" during which they discussed the discovery
materials. According to the Petitioner, trial counsel told
him that the evidence leaned toward the Petitioner merely
being present when the offenses occurred and that the jury
likely would want to know the circumstances that led to the