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Evans v. State

Court of Criminal Appeals of Tennessee, Nashville

August 21, 2017

ELZA EVANS III
v.
STATE OF TENNESSEE

          Assigned on Briefs July 19, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-B-1806 Steve R. Dozier, Judge

         The 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.

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

          David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Elza Evans III.

          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 Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         The 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. 12, 2013).

         The 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.

         The 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.

         Mr. 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.

         Mr. 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.

         On 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.

         Mr. 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.

         Mr. 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.

         The 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.

         Mr. 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.

         Mr. 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 arrested them.

         In 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] lead."

         Mr. 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.

         Ms. 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. Becker's home.

         The 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. Mathis's attorney.

         The 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.

         The 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.

         The 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.

         The 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 ...


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