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Mathis v. State

Court of Criminal Appeals of Tennessee, Nashville

November 21, 2017

GREGORY L. MATHIS
v.
STATE OF TENNESSEE

          Assigned on Briefs October 17, 2017

         Appeal from the Criminal Court for Davidson County No. 2009-B-1806 Steve R. Dozier, Judge No. M2016-02516-CCA-R3-PC

         The Petitioner, Gregory L. Mathis, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his 2010 convictions for aggravated robbery, aggravated burglary, and two counts of especially aggravated kidnapping and his effective 126-year sentence. The Petitioner contends that (1) he received the ineffective assistance of counsel, (2) his especially aggravated kidnapping convictions violate principles of due process, and (3) he is entitled to a new trial based upon codefendant Turner's testimony at the post-conviction hearing. We affirm the judgment of the post-conviction court.

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

          Chadwick Wyatt Jackson, Nashville, Tennessee, for the appellant, Gregory L. Mathis.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn Funk, District Attorney General; and J. Wesley King, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Timothy L. Easter, JJ. joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from the burglary of Terry Beckner and Lisa Lewis's home in February 2009. The Petitioner and three codefendants, Elza Evans III, Emily Turner, and Danny Lee Sams, were indicted for aggravated robbery, aggravated burglary, and two counts of especially aggravated kidnapping. The trial court granted codefendant Sams's motion to sever his case, and he later pleaded guilty and testified at the joint trial of the Defendant and the remaining codefendants. The Defendant, codefendant Evans, and codefendant Turner were convicted as charged. The Defendant and codefendant Evans appealed their convictions, and this court affirmed the convictions and summarized the facts of the case as follows:

Terry Becker testified at trial that in 2009 he was renting a small two-bedroom house with his fiancée, Lisa Lewis, in Nashville. On the night of February 25, 2009, co-defendant Emily Turner, a friend of Ms. Lewis, and co-defendant Danny Lee Sams, Turner's boyfriend, came to his house. Mr. Becker testified that Turner and Sams had visited the house in the past and that Turner would occasionally spend the night in his guest bedroom. Mr. Becker also testified that he had previously loaned Turner and Sams money and that he had helped Sams secure various odd jobs. According to Mr. Becker, Turner and Sams got into an "argument" while they were at his house. Mr. Becker testified that Sams told him that Turner was "driving [him] crazy or something to that effect." Sams then "stormed out and took [Turner's] car, " stranding her at Mr. Becker's house.
Mr. Becker testified that co-defendant Turner rejected several offers he made to help her retrieve the car. Instead, Turner stayed in his guest bedroom and was up late "visiting" with Ms. Lewis. Mr. Becker testified that he went to bed "late in the evening" and that Ms. Lewis eventually joined him later that night. The next morning, Mr. Becker awoke at approximately 7:45 a.m. Mr. Becker testified that he saw Turner standing in the doorway of the guest bedroom. Mr. Becker asked Turner if she had let the dogs out, and she replied that she was about to. Mr. Becker then went to his kitchen to make some coffee. As Mr. Becker was making his coffee he saw two African-American men standing in his living room. Both men were dressed in "dark colored" clothes, had bandanas over their faces, wore sunglasses, and had plastic gloves on their hands. Both men were also wearing baseball caps and had the hoods from their sweatshirts up. Both men had guns and pointed them at Mr. Becker.
Mr. Becker testified that one of the men told him to get "all of the way down" on the ground. Mr. Becker complied, and the men duct taped his hands behind his back. The men then moved Mr. Becker to a dining room chair where they "strapped [him] to the chair around [his] chest and [his] upper arms" with duct tape. The men also taped Mr. Becker's arms to the chair. After Mr. Becker was taped to the chair, one of the men brought codefendant Turner into the room and had her lie down on the floor. Mr. Becker testified that one of the men then went into the bedroom, woke Ms. Lewis up, brought her into the dining room, and had her lie down next to Turner. According to
Mr. Becker, one of the men said, "Lisa we've been looking for you for a long time." The man said that Ms. Lewis "owed them $18, 000." The man also nudged Turner with his foot several times and repeatedly said, "We don't know who this b---h is, " to the point that Mr. Becker thought that they were overemphasizing it.
The men made Ms. Lewis kneel down in front of Mr. Becker, and one of them asked Ms. Lewis if she loved Mr. Becker. When Ms. Lewis stated that she did, the man said that Mr. Becker would write two checks for $9, 000, one made out to Ms. Lewis and one made out to co-defendant Turner, and that the women would cash the checks and return with the money in thirty minutes or they would kill Mr. Becker. While the man was explaining the plan he had a gun pointed at Ms. Lewis, and the other man pointed his gun at Mr. Becker. One of the men got Mr. Becker's checkbooks and brought it back to the dining room. The men freed one of Mr. Becker's hands, and Mr. Becker wrote the checks as instructed. Sometime after the women left, the branch manager from a nearby Regions Bank called Mr. Becker. Mr. Becker testified one of the men put a gun to his head and leaned in so he could overhear the conversation. The branch manager told Mr. Becker that he was calling to verify that he had written the checks, and Mr. Becker told the branch manager to cash the checks.
A short time after the phone call from the bank manager, one of the men left the room to answer a cell phone call. When the man came back into the room he said that the police were at the bank, that they needed to leave, and told the other man to "take care" of Mr. Becker. The other man gagged Mr. Becker and bound him with more duct tape. The men broke Mr. Becker's cell phone, took the battery out of his home phone, and then fled the house. After they left, Mr. Becker was able to free himself. Mr. Becker testified that the skin on his arms was torn and bleeding from the duct tape. Mr. Becker also testified that at least one of the men stayed with him at all times during the ordeal and that the men kept their guns out the entire time they were there. Mr. Becker recalled that one of the men did most of the talking and that the other man stayed with him the majority of the time. Mr. Becker later inspected the house and found no evidence of forced entry.
Ms. Lewis testified at trial that on the night of February 25, 2009, co-defendants Turner and Sams came over to the house she shared with Mr. Becker. Ms. Lewis recalled that Turner and Sams got into an argument that night and Sams left in Turner's car. Ms. Lewis testified that she thoughtSams's taking the car "was very unusual" because she had "never known [Sams] to leave [Turner] without her car because it was her car, not theirs." Ms. Lewis also testified that Turner showed no interest in finding Sams or getting her car back that night. Instead, Turner and Ms. Lewis stayed up late taking drugs and "talking all night." Ms. Lewis admitted to taking Percocet while Turner used cocaine. At some point during the night, Turner told Ms. Lewis to go to bed with Mr. Becker because it would "look more suspicious" if she stayed in the guest bedroom. Ms. Lewis testified that she got into bed with Mr. Becker around 4:00 a.m.
Ms. Lewis testified that when she woke up the next morning there was a man with a bandana and a "hoodie on" standing over her and pointing a gun at her. The man motioned for her to get up and took her into the dining room where Ms. Lewis saw Mr. Becker, co-defendant Turner, and another masked man holding a gun. Ms. Lewis testified that one of the men told her to get down on the ground and then repeatedly said that they had "been looking everywhere for [her]." The man said that Ms. Lewis owed them money and that they were "going to get it." Ms. Lewis testified that the man then had her get up and go kneel down in front of Mr. Becker. The man put a gun to her head and asked her if she loved Mr. Becker. When she said yes, the man said that if she loved Mr. Becker she would do what they told her to. The men then had Ms. Lewis lie back down on the ground while Mr. Becker wrote two checks.
Ms. Lewis testified that one of the men said that she and co-defendant Turner would go to the bank and cash the checks for them. Ms. Lewis recalled that the man referred to Turner as "whoever this b---h is" and emphasized that he did not know Turner. Ms. Lewis also recalled that neither one of the men ever said her last name and that they checked her driver's license to make sure Mr. Becker had written the check to the right person. One of the men took her to the bedroom, so she could put on a sweatshirt. Ms. Lewis testified that the man kept a gun pointed at her the entire time. While they were in the bedroom, Ms. Lewis asked if she could get some cigarettes out of the night stand. When she opened the drawer, the man saw $300 in cash and a debit card. The man took the money and the debit card and demanded that Ms. Lewis give him the PIN for the account, which Ms. Lewis did. The men told her to come back in thirty minutes with the money or they would kill Mr. Becker.
Ms. Lewis testified that co-defendant Turner drove to the bank. According to Ms. Lewis, Turner repeatedly said that she wanted to stop somewhere and call co-defendant Sams. At some point while they were driving to the bank, Turner told Ms. Lewis, "[T]hey know you're wanted, they don't think you'll call the police." Ms. Lewis testified that when they arrived at the bank she "came unglued" and explained to a bank employee what was happening. The employee had Ms. Lewis call the police on his cell phone while the bank manager called Mr. Becker to "buy him a little bit of time." Ms. Lewis recalled that Turner continued to talk about how she needed to call Sams. The bank employees who helped Ms. Lewis testified at trial that she was "hysterical" while Turner was "real calm" and "distant." While they were at the bank, Turner pulled out her cell phone and made a phone call. Turner told the person she called that she was not at Mr. Becker's house, that she was at the bank, and whoever was going to pick her up should not go to Mr. Becker's house.
Ms. Lewis admitted that when she called the police and initially spoke with the responding officers she used a fake name. Ms. Lewis explained that, at the time, she had a drug problem and an outstanding warrant for a probation violation. Ms. Lewis testified that she was afraid of being arrested by the police. Ms. Lewis was arrested later that day after the police had completed their investigation into the robbery. Ms. Lewis testified that she gave the check made out to her to the police when they arrived. However, the police could not locate the check made out to co-defendant Turner. The bank employee who assisted Ms. Lewis testified that he had seen two checks both made out for $9, 000 when the women arrived at the bank. Turner told the police that she had given the check to Ms. Lewis, but Ms. Lewis ...

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