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Overton v. State

Court of Criminal Appeals of Tennessee, Nashville

January 4, 2018

BRYIANT C. OVERTON
v.
STATE OF TENNESSEE

          Assigned on Briefs October 18, 2017

         Appeal from the Circuit Court for Rutherford County No. F-67466 David M. Bragg, Judge

         The Petitioner, Bryiant C. Overton, appeals from the Rutherford County Circuit Court's denial of his petition for post-conviction relief from his convictions for aggravated kidnapping, aggravated robbery, attempted first degree murder, and conspiracy to commit kidnapping, for which he is serving an effective forty-eight-year sentence. On appeal, he contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims relative to trial counsel's performance, that he received the ineffective assistance of post-conviction counsel, and that he was subject to inappropriate questions at the post-conviction hearing about the facts of the conviction offenses. We affirm the judgment of the post-conviction court.

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

          Bryiant C. Overton (on appeal), Only, Tennessee, Pro Se; and Ryan Freeze (at hearing), Murfreesboro, Tennessee, for the appellant, Bryiant C. Overton.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Jennings Hutson Jones, District Attorney General; and J. Paul Newman, 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.

         The Petitioner's convictions relate to an incident in which Darice Brown's cell phone and handbag were taken from her and she was shot multiple times and left in a remote area. The incident was related to a drug transaction arranged by the victim, in which the Defendant and his codefendants thought they had received counterfeit cocaine from the drug dealer, who was a person known to the victim. See State v. Bryant C. Overton, No. M2009-01977-CCA-R3-CD, 2011 WL 538857, at *1-2 (Tenn. Crim. App. Feb. 15, 2011).[1]

         Pursuant to this court's decision in the appeal of the Petitioner's convictions, the Petitioner was resentenced on one count. He also filed a pro se petition for post- conviction relief. Post-conviction counsel was appointed, and an amended petition was filed. The petition and amended petition raised numerous allegations of ineffective assistance of trial counsel. As relevant to this appeal, the Petitioner alleged that counsel failed to obtain the preliminary hearing transcript, that counsel failed to use the transcript and a prior statement to impeach the victim, and that counsel failed to request proper jury instructions relative to aggravated kidnapping.[2]

         At the post-conviction hearing, the Petitioner testified that, at his request, trial counsel filed a motion to obtain the preliminary hearing transcript, that the court granted the motion, and that counsel later withdrew the motion without the Petitioner's consent. The Petitioner said he wanted the transcript for counsel's use in cross-examining the victim but that this did not occur. When asked repeatedly if the Petitioner knew that portions of the preliminary hearing audio recording were inaudible, his responses did not address the question asked. He denied that he had wanted a new preliminary hearing and stated that someone other than his attorney had requested a new hearing. He agreed that his attorney had "dismissed or had the Judge take that off the docket that there was no legal basis for a second preliminary hearing." The Petitioner maintained, however, that counsel had withdrawn a request for a transcript of the preliminary hearing.

         The Petitioner testified that the victim's trial testimony had been inconsistent with her preliminary hearing testimony in several respects. He said the victim testified at the preliminary hearing that the drug transaction involved about $400 but that she did not remember the quantity of the drugs, whereas at the trial, she stated that the transaction was for one-half ounce of cocaine for $400. The Petitioner stated that the victim testified at the preliminary hearing that when "we" left Walmart, "we went straight" to the location of the drug transaction, whereas at the trial, she stated that "we" drove around for an extended period of time. The Petitioner explained that this point was relevant to the kidnapping charge because the victim stated she had been held against her will in the car and that the Petitioner had a gun. The Petitioner stated that the victim claimed during the trial not to know "where B.I.[3] lived, " not to know B.I., and not to be familiar with Murfreesboro, but that she testified at the preliminary hearing to knowing and to having been to the exact location of B.I.'s home in Murfreesboro. The Petitioner stated that although the victim testified at the preliminary hearing that she did not remember hearing the words, "[L]et the bitch out or make her walk, " she testified at the trial that Kesha Adams made this statement. The Petitioner stated that at the preliminary hearing, the victim positively identified him as the shooter but that at the trial, she testified that it was so dark she could not see her hand and that although she did not see who shot her, she knew it was the Petitioner.

         The Petitioner testified that the victim's recorded pretrial statement to the police contained inconsistencies with her preliminary hearing testimony, as well. The Petitioner stated that the victim testified at the preliminary hearing that either he or codefendant Robert Adams had said, "[S]omeone is going to die tonight, " and that the victim initially claimed not to know who said it but later identified the Petitioner as the speaker. The Petitioner said, however, that in the victim's pretrial statement, she had identified Mr. Adams as the speaker. The Petitioner stated that the victim said in her pretrial statement that the gun was not passed to him and that the cell phone was not taken from the victim until the car reached the scene of the shooting. He said that the victim testified at the trial, however, that the Petitioner had the gun and gave orders as they drove around before reaching the scene.

         When asked if his attorney advised the Petitioner that the law was "against" him relative to a jury instruction regarding the kidnapping charge, the Petitioner did not answer whether trial counsel advised him in this regard. Instead, the Petitioner made a non-responsive statement about State v. Cecil, 409 S.W.3d 599 (2013), applying to cases in the appellate process at the time of the Cecil ruling.

         Trial counsel testified that he attempted to obtain the preliminary hearing transcript. He said the trial court granted a motion to have the hearing transcribed but that the tapes were "untranscribable." He later agreed that the recording had been inaudible. He said that counsel for a codefendant filed a motion to have the case remanded to general sessions court for a new preliminary hearing and that the motion was denied. Counsel said that although the Petitioner wanted him to file an identical motion, he declined to do so based upon the court's rejection of the codefendant's motion. Counsel said he would have "loved" to have had the transcript. He said, however, that he did not think the transcript would have been beneficial because he made detailed notes at the preliminary hearing. He noted that the victim testified both at the preliminary hearing and at the trial that she saw the Petitioner shoot her seven times. A transcript of a pretrial motions hearing was received as an exhibit. It reflects the history of the efforts to obtain the preliminary hearing transcript. The trial court noted that efforts had been made to transcribe the recording but that the court reporter had been unable to hear it. The prosecutor clarified that although the officers could be heard on the recording, some of the victim's statements were inaudible. Trial counsel agreed with the prosecutor's characterization of the recording.

         Trial counsel testified that his practice was to review proposed jury instructions with a client, and although he thought he reviewed them with the Petitioner, he was unsure. Counsel thought that the State provided jury ...


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