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Moffitt v. State

Court of Criminal Appeals of Tennessee, Jackson

September 18, 2017


          Assigned on Briefs August 1, 2017

         Appeal from the Circuit Court for Henderson County No. 16067-1 Roy B. Morgan, Jr., Judge

         A jury convicted the Petitioner, John Moffitt, of reckless aggravated assault, and the trial court sentenced him to four years of incarceration. The Petitioner appealed, and this court affirmed his conviction and sentence. State v. John Moffitt, No. W2014-02388-CCA-R3-CD, 2016 WL 369379, at *1 (Tenn. Crim. App., at Jackson, Jan. 29, 2016), perm. app. denied (Tenn. June 24, 2016). The Petitioner filed a petition for post-conviction relief, alleging that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. On appeal, we affirm the post-conviction court's judgment.

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

          Michael Thorne, Lexington, Tennessee, for the appellant, John Moffitt.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ. joined.



         I. Facts

         A. Trial

         This case arises from the Petitioner's using a pocketknife to cut and injure the victim. On direct appeal, we summarized the facts presented at the Petitioner's trial as follows:

On May 16, 2013, Stephen Phelps, the victim in this case, was doing repair work for landowner Charles McPeake on a fence and outbuilding that had been damaged in a storm. At approximately 4:00 p.m., Mr. Phelps began loading his tools into his truck. Mr. Phelps "heard two people kind of being loud with each other[.]" He turned around and saw [the Petitioner] and Orbin McPeake arguing about the fence. Mr. Phelps approached the men and told [the Petitioner] to "[c]hill out" because they were going to repair the fence. [The Petitioner] told Mr. Phelps to put the fence back up, and Mr. Phelps told [the Petitioner] to "[j]ust go on home." [The Petitioner] turned around to leave and then turned back towards Mr. Phelps. Mr. Phelps testified, "as he was doing that, I saw him reach into his pocket and he pulled out a pocket knife and he opened it up, and he says, 'well maybe you want some of this before I leave[.]'" [The Petitioner] swung the knife across Mr. Phelps body and back across his body a second time. Mr. Phelps raised his arm to block it, and on the second swing across his body, "it sunk in [his] arm [.]" [The Petitioner] "just turned and walked away[.]" Mr. Phelps "could not believe that it happened." He wrapped up his arm and drove to the hospital. Mr. Phelps testified that he could not use his arm for approximately four months. He testified that he still had numbness in one of his fingers and pain in his shoulder. He was unable to perform certain tasks as well as he could prior to the injury.
On cross-examination, Mr. Phelps testified that he had only seen [the Petitioner] once before the incident. He testified that the fence had been taken down for approximately one month prior to the incident while he worked to repair the barn. Mr. Phelps testified that he took one or two steps towards [the Petitioner] after [the Petitioner] pulled out the knife.
Orbin McPeake testified that he had known [the Petitioner] for "[a] long time." He testified that on the day of the incident, [the Petitioner] "just came out there and jumped on us and told us we needed to get that fence put up by 4:00 or something like that[.]" Mr. McPeake told [the Petitioner] that they were working to "get everything cleaned up." Mr. McPeake testified that he saw [the Petitioner] and Mr. Phelps "in each other's face[s], and Mr. Phelps told [the Petitioner] he needed to go home[.]" Mr. McPeake saw [the Petitioner] reach into his pocket, and he saw [the Petitioner] and Mr. Phelps "arguing right close together and [Mr. McPeake] was trying to get them to go home and be quiet and let everything go, and they just kept arguing." Mr. McPeake testified that he "d[id]n't think [Mr. Phelps] was really threatening [the Petitioner]. He was just talking and telling him that we was gonna fix that back and that wasn't none of his business." Mr. McPeake heard Mr. Phelps tell [the Petitioner] to go home. Mr. McPeake testified [the Petitioner] and Mr. Phelps "met together." He testified, "I don't know where they one of them run any more at the other one than one did it at the other one [sic]."
William Patterson was also present during the incident. He testified that "Mr. Phelps went to walking over there towards [the Petitioner], and that's when he run his hand in his pocket and came out and cut him." Mr. Patterson testified that he did not hear Mr. Phelps make any threats against [the Petitioner].
Donna Heatherington, a criminal investigator with the Lexington Police Department, spoke to Mr. Phelps at the hospital and took photographs of his injury. She also took statements from Mr. Patterson and Mr. McPeake. Officer Heatherington arrested [the Petitioner] at his residence. She testified that she knocked on [the Petitioner]'s door, and [the Petitioner] "hollered, 'Come on in. I know why you're here.'" She asked [the Petitioner] to empty his pockets, and [the Petitioner] had a pocketknife in his right pocket. Officer Heatherington testified that [the Petitioner]'s hand was injured when she put handcuffs on him.
[The Petitioner]'s brother, Sam Moffitt, testified that Mr. McPeake told him after the incident that [the Petitioner] turned around to leave, and Mr. Phelps jumped on him, and that's what caused the altercation. Mr. Moffitt testified that Mr. McPeake told him, "If [Mr. Phelps] had just sat still and let [the Petitioner] go on, none of this would have happened." On cross-examination, Mr. Moffit clarified what he meant by "jumped on." He testified, "Well, I don't mean physically jumped on him, but he said, 'I'm ...

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