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Fusco v. State

Court of Criminal Appeals of Tennessee, Nashville

December 11, 2017


          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Montgomery County No. 40900753 William R. Goodman, III, Judge

         The Petitioner, Robert Anthony Fusco, filed a pro se petition for post-conviction relief, alleging various instances of ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. On appeal, the Petitioner contends that the post-conviction court erred by limiting his questioning of two police officers at the hearing. He also contends that his trial counsel was ineffective in a number of ways, including by failing to file motions to suppress, to ensure that the rule of sequestration was stringently enforced, to challenge the Petitioner's convictions on double jeopardy grounds, to contest errors at the sentencing hearing, and to challenge acts of prosecutorial misconduct. Upon 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

          Robert Anthony Fusco, Wartburg, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; John W. Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.



         I. Factual Background

         A. Trial

         On direct appeal, this court noted that the Petitioner and his co-defendant, Kyle Swim, formed a plan to rob the Golden Eagle jewelry store in Clarksville, which was owned by John and Elke Gilreath. State v. Fusco, 404 S.W.3d 504, 512 (Tenn. Crim. App. 2012). They concocted a plan to "break into the Gilreaths' home, abduct Mr. Gilreath while holding Mrs. Gilreath hostage, and force Mr. Gilreath to take them to the jewelry store after hours to retrieve the valuables inside." Id. On the morning of November 1, 2007, Swim left the Petitioner, who was armed with two handguns, near the victims' home. Id. The Petitioner entered the home and hid throughout the day, exchanging text messages with Swim to keep apprised of the victims' whereabouts. Id. Around 5:10 p.m., after the victims had returned home, Mr. Gilreath went to the mailbox, and Mrs. Gilreath went into the laundry room. Id. at 513. The Petitioner entered the laundry room, pointed a gun at Mrs. Gilreath, and threatened to kill her. Id. The Petitioner then put Mrs. Gilreath "in a chokehold" and pointed the gun at her head. Id. She screamed, and as Mr. Gilreath ran into the kitchen, the Petitioner pointed the gun at him and threatened to kill both victims if Mr. Gilreath moved. Id. Mr. Gilreath responded that he would get his gun and kill the Petitioner and ran to his car to get his gun. Id. While Mr. Gilreath was gone, the Petitioner slammed Mrs. Gilreath into a door and pressed the gun to her head. Id. She begged for her life, but the Petitioner continued to threaten to kill her. Id. He grabbed at her Rolex watch. Id. As she moved her arm, the Petitioner "put the gun against it and fired; the bullet went through her arm and into her chest." Id. The Petitioner pushed her face into the floor, then he fled. Id.

         The police ultimately located the Petitioner and found a cellular telephone and a .25 mm handgun on the Petitioner's person. Id. at 513-14. When the police interviewed the Petitioner, he initially denied any involvement in the crimes. Id. at 514. However, after the police showed him incriminating text messages that were found on his cellular telephone, the Petitioner admitted his involvement in the crimes but claimed that he had not intended to shoot Mrs. Gilreath and had instead intended to fire only a warning shot. Id.

         The jury convicted the Petitioner of two counts of especially aggravated kidnapping, conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. The trial court merged the especially aggravated kidnapping convictions. The trial court sentenced the Petitioner as a Range II, multiple offender to ten years for each conspiracy conviction, thirty-five years for the especially aggravated kidnapping conviction, ten years for the attempted aggravated robbery conviction, and ten years for the aggravated burglary conviction. The trial court ordered the sentences for the conspiracy convictions to be served concurrently with each other but consecutively to the remaining sentences, and also ordered that the remaining sentences were to be served consecutively to each other for a total effective sentence of sixty-five years. Id. at 514. On direct appeal, this court remanded for a merger of the conspiracy convictions and affirmed the Petitioner's convictions and sentences in all other respects. Id. at 549.

         B. Post-Conviction

         Thereafter, the Petitioner, acting pro se, filed a timely petition for post-conviction relief, alleging in pertinent part that his trial counsel was ineffective by failing to file motions to suppress the Petitioner's statement to the police, to ensure that the rule of sequestration was stringently enforced, and to contest sentencing errors. The post-conviction court appointed an attorney to represent the Petitioner, and an amended petition was filed, alleging that trial counsel was ineffective by failing to challenge the police's warrantless search of the Petitioner's cellular telephone. The Petitioner then filed a motion asking the court to dismiss his attorney and either appoint a new attorney or allow him to proceed pro se. The Petitioner alleged that his attorney refused to pursue new grounds of ineffective assistance of counsel suggested by the Petitioner, namely that his trial counsel failed to challenge the Petitioner's convictions based on a double jeopardy violation and failed to contest acts of prosecutorial misconduct. The same day, the Petitioner filed a pro se amended petition, raising the ineffective assistance issues relating to double jeopardy and prosecutorial misconduct, as well as reiterating the issue regarding the warrantless search of his cellular telephone.

         At the post-conviction hearing, the Petitioner chose to proceed pro se. The first witness, Officer Bill Van Beber, III, testified that he and Detective Barrett took the Petitioner into custody on November 1, 2007. Upon questioning by the officers, the Petitioner denied having any weapons. However, Officer Van Beber found a .25 caliber pistol and a cellular telephone on the Petitioner's person. Officer Van Beber had no further interaction with the Petitioner after he was transported to "district two."

         Officer Alan Charvis initially testified that because a "long time" had passed, he did not remember interviewing the Petitioner on November 1, 2007. After he was shown his "follow-up report, " he recalled that the Petitioner "was very evasive" at the beginning of the interview. Officer Charvis acknowledged that he searched the Petitioner's cellular telephone and found text messages linking the Petitioner "to the victim and to the crime." Officer Charvis then went into the interview room and showed the text messages to the Petitioner as "part of the interview process." Afterward, the Petitioner "sank down in the chair and put [his] head down." Officer Charvis thought the text messages "played a part in" the Petitioner's eventually making incriminating statements. Officer Charvis stated that "[a]t that time, " searching an arrestee's cellular telephone without a search warrant was standard procedure. Officer Charvis did not recall when the search warrant for the cellular telephone was issued.

         The Petitioner's trial counsel testified that he was hired by the Petitioner in May 2009, that the Petitioner's trial took place in September 2009, and that he represented the Petitioner until the conclusion of the direct appeal. He acknowledged that the Petitioner's case was "very extensive" but said that he had sufficient time to prepare the case.

         Trial counsel recalled that a detective testified the Petitioner was "very evasive during questioning" and initially did not want to connect himself with the crime. However, detectives searched the Petitioner's cellular telephone on the night of his arrest and "turned up evidence or information that eventually led to" the Petitioner's making incriminating statements. Trial counsel said that he thought the issue regarding the search of a cellular telephone incident to arrest had not been raised in Tennessee at the time of the Petitioner's trial and that "we were still operating on the basic search incident to arrest case law that had been around for decades." Based upon his research, trial counsel did not think a motion to suppress would be successful. Trial counsel acknowledged that since the Petitioner's trial and direct appeal, the law regarding a warrantless search of an arrestee's cellular telephone had changed with the issuance of Riley v. California, 134 S.Ct. 2473 (2014).

         Trial counsel acknowledged that the information on the Petitioner's cellular telephone was a "vital key piece of evidence" regarding "some of the charges." Trial counsel filed a "motion in limine to prohibit introduction of the text messages until a proper foundation had been laid . . . ." He did not object to the text messages at trial because the State sufficiently established the chain of custody.

         Trial counsel said that he did not think the State's chances of obtaining a conviction would have been "slim" if the text messages had not been introduced, but he acknowledged that the evidence was critical to the conspiracy charges. He explained that the testimony of Mr. and Mrs. Gilreath was the most damaging evidence against the Petitioner.

         Trial counsel could not recall at what point in the proceedings the police advised the Petitioner of his Miranda rights, but he stated that his "analysis at the time was it was sufficient." Trial counsel acknowledged that the Petitioner's statements to the police implicated the Petitioner in the crime and connected some of the evidence to him. Trial counsel recalled that the State did not delve into the ...

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