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State v. Richardson

Court of Criminal Appeals of Tennessee, Knoxville

October 23, 2017


         Assigned on Briefs October 11, 2017

         Appeal from the Criminal Court for Hamilton County No. 298242 Barry A. Steelman, Judge.

         On December 10, 1992, Derrick Richardson, the Petitioner, was convicted of first degree felony murder and sentenced to life. On appeal, this court affirmed the Petitioner's conviction. See State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL 247114, at *1 (Tenn. Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994) (concurring in results only). The Petitioner filed a petition for writ of error coram nobis based on the affidavits of three individuals who claimed that one of the State's "key witnesses, " LaKeysh Davis, lied about seeing the Petitioner shoot the victim because she was inside her home and could not have seen the location where the shooting occurred. The Petitioner claims that the information provided by the affiants is newly discovered evidence. Following a hearing, the coram nobis court denied coram nobis relief. We affirm.

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

          Donna Miller, Chattanooga, Tennessee, for the appellant, Derrick Richardson.

          Herbert H. Slatery, III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; M. Neal Pinkston, District Attorney General; and Lance Pope, Assistant District Attorney, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.



         Factual and Procedural Background

         This court on direct appeal summarized the facts as follows:

. . . In the early morning hours of December 8, 1993, [1] the [Petitioner], Gregory Strong, Stanley Gillespie, and Calvin Johnson were at or near the Heaton Street residence of LaKeysh Davis, the mother of Johnson's son. Apparently upset because Davis' husband had been shot only a short while earlier, all of the men were armed with guns. The victim, Louie Dwight, stopped his vehicle, approached the [Petitioner] and Strong as they stood on the side of the street, and asked to buy drugs. The [Petitioner], armed with a .38 pistol, and Strong, carrying a pump shotgun, fired several shots, took the victim's money, and threw his wallet on the ground.
Johnson testified that he and Gillespie heard the shooting and approached the scene. Johnson carried an AK47 assault rifle and Gillespie had a .380 pistol. Each fired shots. Either the [Petitioner] or Stanley Gillespie, or both, shot the victim in the legs. The victim got into his vehicle to leave, stopped, and returned to retrieve his wallet. He then drove away. After a short distance, however, the victim lost consciousness and wrecked. He died due to multiple gunshot wounds to his legs.
The Hamilton County Medical Examiner testified that the victim was struck by three bullets; there were two wounds in the right leg. A shot to the left leg pierced its main artery. All shots that struck the defendant were fired by low velocity weapons: a .38 or a .380.
Ms. Davis stated that the [Petitioner], Gillespie, and Strong participated in the robbery. She testified that the [Petitioner] held his weapon on the victim, took his wallet, and shot him in the leg. Strong testified that he and the [Petitioner] never had any kind of agreement to rob the victim and blamed the [Petitioner] for that offense. During the pretrial investigation, Strong stated that the [Petitioner] had shot at the victim's legs; at trial, he said he did not know who fired the shots that actually struck the victim.
The [Petitioner], who told officers he fired his weapon twice, admitted having shot at the victim's truck but denied shooting the victim. While conceding that the victim handed him the wallet, the [Petitioner] testified that Strong took the money and was responsible for the robbery. At that point, he said, Johnson and Gillespie arrived. The [Petitioner] claimed Johnson shot at the victim's truck while Gillespie fired the fatal shots.

Id. at *1 (footnote added).

         The Petitioner then filed a petition for post-conviction relief, claiming trial counsel was ineffective for, among other things, failing to interview four witnesses named in a statement given to police by co-defendant Calvin Johnson and for failing to call his brother, Tony Richardson, and his mother, Ernestine Richardson, as witnesses. On appeal from the post-conviction court's denial of relief, this court addressed this issue, as follows:

[The Petitioner] contends that Tony Richardson could have rebutted the testimony of La[K]eysh[][2] Davis, a crucial prosecution witness. At [the Petitioner's] trial, Ms. Davis testified that she observed from her front porch the events surrounding the robbery and subsequent murder of the victim. Tony Richardson was prepared to testify that, at the time of the murder, he was standing in the doorway of La[K]eysh[] Davis' apartment and that she was upstairs in her bedroom rather than on her front porch. However, Richardson also testified that he could not see the events surrounding the murder because his view was obstructed by a van which was parked between him[] and the location of the robbery and murder. [Trial counsel] explained that he opted not to call Tony Richardson because Richardson had not observed the murder. Moreover, [trial counsel] claimed that no one had informed him that Tony Richardson was prepared to refute [Ms.] Davis' statement that she witnessed the murder from her front porch. Finally, [trial counsel] emphatically stated that had Tony Richardson been able to clearly observe the robbery and the shooting of the victim, [trial counsel] definitely would have called Richardson as a witness.
At the post-conviction hearing, Ms. Richardson stated that had she been permitted to testify at her son's trial, she would have recounted a conversation between herself and [Ms.] Davis which occurred approximately three days before the commencement of the trial. According to Ms. Richardson, [Ms.] Davis told her, "M[]s. Richardson, wait a minute, I have something to tell you. I'm sorry, I didn't see nothing, I don't know nothing. Calvin told me to get up there and lie like that, said if I didn't, he would have no more use for me and my baby." At the post-conviction hearing, however, both [trial counsel] and Mrs. Richardson testified that Mrs. Richardson never disclosed this information to [trial counsel] at any time prior to [the Petitioner]'s trial.
With regard to the four witnesses mentioned above, [trial counsel] explained that he had not interviewed them because they could not be located and because he "had no leads about finding any of them." Under these circumstances, we find no deficient representation. Again, [the Petitioner] has also failed to show a reasonable probability that the result of his trial would have been different had these witnesses been called.

Derrick Richardson v. State, No. 03C01-9605-CR-00186, 1998 WL 18199, at *3-4 (Tenn. Crim. App. Jan. 21, 1998) (footnote added), perm. app. denied (Tenn. June 8, 1998).

         The Petitioner also filed a petition for writ of habeas corpus, which included as one of the grounds for relief that "the [S]tate relied upon perjured testimony to support the conviction[.]" Derrick Richardson v. Virginia Lewis, Warden, No. E2005-00817-CCA-R3-HC, 2006 WL 3479530, at *1 (Tenn. Crim. App. Dec. 1, 2006), no perm. app. filed. The habeas corpus court summarily dismissed the petition. Id. On appeal, this court determined that the trial court correctly found that the claims were ...

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