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Baxter v. State

Court of Criminal Appeals of Tennessee, Jackson

August 31, 2017


          Assigned on Briefs February 7, 2017

         Appeal from the Circuit Court for Madison County No. C-14-223, C-15-22 Donald H. Allen, Judge

         Petitioner, Timothy Baxter, appeals the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel at trial where he was convicted of felony failure to appear. More specifically, he contends that trial counsel failed to subpoena witnesses requested by Petitioner, did not present evidence that the circuit court clerk's office failed to issue a criminal summons after his failure to appear, and trial counsel allowed himself to be intimidated by the trial court. After a thorough 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

         Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, J., joined. J. Ross Dyer, J., not participating.

          George Morton Googe, District Public Defender; Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Timothy Baxter.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; James G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.




         In its opinion on direct appeal, a panel of this court summarized the facts underlying Petitioner's convictions as follows:

At trial, evidence showed that the defendant was charged with aggravated assault, that at arraignment he had been appointed counsel, and that he was on bond prior to the scheduled June 13, 2011 court appearance. The administrative assistant to Circuit Court Judge Roy Morgan, Judge Morgan's court reporter, and an assistant district attorney general all testified that they appeared in court for the defendant's arraignment on May 9[, ] and for his scheduled court date of June 13, that the defendant appeared on May 9 but did not appear on June 13, and that after counsel was appointed on May 9[, ] the court instructed the defendant to return to court on June 13, 2011. A capias for the defendant's arrest was issued on June 13, 2011. Generally, the witnesses remembered the defendant and recognized him at trial. The circuit court clerk made court calendars available to the public by placing a supply at the front desk of the clerk's office.
The court reporter introduced into evidence a transcript "of the arraignment of [the defendant] on May the 9th, 2011." She said she certified the transcript and exhibited it to her testimony. The transcript, as read in court by the reporter, showed that the defendant was sworn, that the court appointed the public defender to represent him, that counsel entered a not guilty plea for the defendant, and that counsel suggested June 13, 2011, as the next court date. The judge instructed the defendant to "[b]e back here then and keep in contact with your attorney." The reporter testified that the defendant's arraignment was typical of any arraignment.
The same court reporter also prepared a transcript of the court proceedings in Judge Morgan's court on June 13, 2011. The court admitted the transcript into evidence over the defendant's objection that it contained hearsay statements. In the transcript, Judge Morgan said that the defendant had "dealt with us before. He knows the timing." In the transcript of the June 13, 2011 proceeding, which began per the court's practice at 8:00 a.m., Judge Morgan called the case, and when the defendant did not answer, the judge said, "I'm going to hold that one aside, then." After conducting some other court business, the judge called the defendant's case again, and when he did not respond, the judge said, "[C]apias issued. . . . It's nine-fifteen. No show. Bond forfeiture commence. That concludes the arraignment list." The defendant's counsel then asked the court for the opportunity to call the defendant, stating, "I expected him to be here today." The judge mentioned that the defendant's co-defendant also did not appear and said, "I don't mind you trying to call him. He needs to get here. We'll note a capias. He's dealt with us before. He knows the timing."
The defendant testified and acknowledged his appearance at the arraignment on May 9, 2011. He said that, after the court appointed the public defender to represent him, the judge told him to step aside. He testified that the assistant public defender "pulled [him] aside and [sat him] down" and elicited "a couple minutes worth" of contact information from him. He said he had no further communication from the judge. He denied that he heard the court express a return court date. He said he scheduled an appointment with the assistant public defender and went to her office on June 10, 2011. The assistant public defender tendered a plea agreement, but the defendant told her, "I'm not taking a plea agreement. I want to go to trial. I'm innocent." The defendant testified that he asked for "discovery materials, " prompting counsel to respond, "Well I'm going Monday to try to get that. . . ." The trial court then sustained the prosecutor's objection to this statement as hearsay. The defendant maintained that he had never before missed a court date and that he intended to contest the aggravated assault charge.
On cross-examination, the defendant testified that he did not know he was obliged to appear in court on June 13 because he was "sitting at a table, talking with the lady from the public defender's office." He denied that he was standing at the podium when the judge communicated the next court date, opining that the judge "might have given the court date to the public defender but it wasn't to me." He stated that he believed his counsel would inform him of his next appearance date. He agreed that he was charged with aggravated assault and was not in court on June 13, 2011. Upon further cross-examination, the defendant acknowledged prior convictions of possession of a weapon by a convicted felon, manufacturing methamphetamine, and theft.

State v. Timothy Aaron Baxter, No. W2012-02555-CCA-R3CD, 2014 WL 29102, at *1-2 (Tenn. Crim. App. ...

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