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Newton v. State

Court of Criminal Appeals of Tennessee, Nashville

November 29, 2017


          Session September 12, 2017

         Appeal from the Criminal Court for Davidson County No. 2010-D-2957 Seth W. Norman, Judge

         A jury convicted the Petitioner, Joseph Newton, of rape, and he was sentenced to serve eight years in prison. In his motion for a new trial, the Petitioner alleged that he was denied his constitutional right to the effective assistance of his trial counsel. The trial court denied the motion, and this court affirmed the Petitioner's conviction on appeal. The Petitioner filed a timely post-conviction petition, alleging ineffective assistance of counsel at the motion for a new trial and on appeal, and the post-conviction court denied his petition. On appeal, he asserts that his counsel were deficient in bringing claims against trial counsel prematurely, in failing to call witnesses and investigate, and in omitting issues on direct appeal. He contends he is entitled to relief based on cumulative error. After a thorough review of the record, we conclude that the Petitioner did not receive the ineffective assistance of his counsel, and we affirm the post-conviction court's judgment.

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

          John M. Ballard, Nashville, Tennessee, for the appellant, Joseph Newton.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn Funk, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.





         The Petitioner was tried and convicted of raping the victim after she entered his taxicab seeking a ride home because she was too intoxicated to drive. The Petitioner initially denied having any knowledge of the victim. DNA evidence established that the Petitioner was the rapist.

         At trial, the victim testified that she was very intoxicated on the evening of the rape, that the employees of a bar where she had been drinking put her into a taxi when the bar closed around 3:00 a.m., and that the driver of the taxi, the Petitioner, drove her to an isolated location and raped her. The victim was able to escape the taxi after the rape, and she fled to a nearby area that was well-lit. She summoned the police and was taken to the hospital, where medical personnel collected physical evidence and treated her for any potential infections that may have been transmitted to her during the rape. Trial counsel cross-examined her regarding a statement she made at the hospital that her attacker was a medium-skinned African American man with a foreign accent and a statement she made a few days later describing him as light-skinned. She agreed that the Petitioner, who was an immigrant from Ghana, was not light-skinned.

         An employee of the bar where the victim had been drinking confirmed that she was extremely intoxicated and that he procured a taxi for her. He testified that the taxi which ultimately took the victim was not summoned via telephone. Instead, he exited the building with the victim and hailed the taxi from across the street. Because of a prior experience with a violent taxi driver, the employee noted the taxi's number. He was able to tell police that the taxi was Allied taxicab number 70, 71, or 77.

         Police collected DNA evidence from the drivers of these three taxis. Detective Robert Carrigan testified that he went to a gas station to interview the Petitioner and another taxi driver who was under suspicion. He asked the Petitioner about the case and showed the Petitioner a photograph of the victim. The Petitioner "denied ever having seen her, ever met her, denied ever giving her a ride, ever picking her up in the Hillsboro/21st Avenue area." Detective Carrigan confirmed that the Petitioner denied being acquainted with the victim or having had any sexual contact with her. Detective Carrigan proceeded to collect DNA evidence from both the drivers at the gas station. Trial counsel cross-examined Detective Carrigan and other witnesses about the chain of custody of the evidence, implying that the Petitioner's DNA sample had been switched with the other sample which was collected simultaneously.

          The Petitioner was the driver of Allied taxi number 70, and his DNA matched the sperm recovered from the victim. An expert in serology testified that the probability of an individual other than the defendant having the same DNA profile was greater than the world population.

         The victim was presented with two photographic lineups prior to the time that suspicion had settled on the Petitioner. Neither contained a photograph of the Petitioner, and the victim did not make an identification from either lineup. After the results of the DNA testing came back to police, the victim was shown a photographic lineup including the Petitioner's picture. She was not told that there had been a match to the recovered DNA. She identified the Petitioner as her assailant, stating that she was seventy percent sure he was the rapist. She testified that she meant she was "pretty darn sure."

         During opening statements, trial counsel asked the jury to keep an open mind because they would hear the Petitioner testify to his version of events. At the close of the State's proof, the Petitioner elected not to testify. In closing argument, trial counsel conceded that the victim had been raped and that consent was not an issue. He argued that there was very little incriminating evidence aside from the DNA and that the DNA samples could have been switched.

         The Petitioner was charged with rape by force or coercion in count one and with rape of a person who was mentally incapacitated or physically helpless in count two. The jury convicted the Petitioner of rape in count one and of the lesser-included offense of assault by provocative contact in count two, and the two counts were merged into a single conviction.

         Sentencing and Motion for a New Trial

         At the sentencing hearing, the Petitioner testified that he was "100 percent" innocent and that he had been unable to defend himself against the charges because he was never told when the alleged rape occurred. He testified that he listened to the testimony at trial, including that of the victim, but that he had no idea what day the victim was raped. He agreed that he had told police that he did not know the victim, that he had never seen her, and that she had never been in his taxi. He argued that the victim had at one point described him as light-skinned. The trial court, finding that the Petitioner was dishonest and unremorseful in his testimony, denied alternative sentencing and sentenced the Petitioner to serve eight years in prison.

         The Petitioner retained two new attorneys, one of whom represented him after sentencing and through the hearing on the motion for a new trial ("successor counsel") and one of whom also represented him on appeal ("appellate counsel"). New counsel procured an order allowing further testing of the DNA evidence through an independent agency. At the motion for a new trial, the Petitioner challenged the sufficiency of the evidence and his sentence. He also asserted that trial counsel had been ineffective in announcing to the jury during opening statements that the Petitioner would testify, in pursuing a strategy of mistaken identity rather than consent, and in conceding elements of the crime in closing arguments.

         Trial counsel testified at the hearing on the motion for a new trial that he knew that the State would introduce DNA evidence that the Petitioner was the perpetrator. Trial counsel had frequent contact with the Petitioner prior to trial, and "[t]he defense shifted weekly from not there, to it was consensual, to even she attacked him." Trial counsel had advised the Petitioner that the best defense strategy was to claim that the victim had consented, and trial counsel prepared to cross-examine the victim extensively.

         On the day of trial, the Petitioner, against trial counsel's advice, insisted both that he would testify and that his testimony would be that the State was mistaken about his identity and that he was not the rapist. Trial counsel "had to scrap whatever consent defense [he] had crafted" because it would have been difficult to pursue a strategy at odds with his client's anticipated testimony. Trial counsel agreed that a consent defense would also have been difficult to establish because Detective Carrigan had recorded the interview in which the Petitioner denied having any knowledge of the victim, having had the victim in his taxi, or having had sex with the victim. Trial counsel recalled that in the recording, "upon providing the swab, [the Petitioner] said, well, if it turns out to be me, maybe I gave her a ride." Trial counsel agreed that the victim was a strong witness and that the fact that she called the police immediately after the crime at 3:00 or 4:00 a.m. from an apartment complex she had reached on foot appeared inconsistent with consent. Trial counsel testified that it was the Petitioner's choice not to testify. He did not think that testimony from the Petitioner would have helped the defense.

         The Petitioner did not testify at the motion for a new trial. The trial court found that "everything that [trial counsel] did was effective in this matter." On appeal, the Petitioner raised only the ineffective assistance of counsel claims, and this court denied relief. State v. Joseph Newton, No. M2014-00603-CCA-R3-CD, 2015 WL 1543386, at *8 (Tenn. Crim. App. Apr. 2, 2015), perm. app. denied (Tenn. July 17, 2015).

         Post ...

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