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Cross v. State

Court of Criminal Appeals of Tennessee, Knoxville

February 2, 2018

DOROTHY DENISE CROSS
v.
STATE OF TENNESSEE

          Assigned on Briefs September 20, 2017

         Appeal from the Criminal Court for Knox County No. 105657 Bob R. McGee, Judge

         The Petitioner, Dorothy Denise Cross, filed a petition for post-conviction relief from her assault conviction, alleging that trial counsel was ineffective by failing to seek a continuance due to the Petitioner's mental health issues. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Dorothy Denise Cross.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Charme P. Allen, District Attorney General; and Ashley McDermott, 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 Timothy L. Easter, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         At trial, the State's proof revealed that in September 2011, the victim, a native of Honduras, and her family moved to an upstairs apartment of a house in Knoxville. State v. Dorothy Denise Cross, No. E2013-02133-CCA-R3-CD, 2014 WL 4748337, at *1 (Tenn. Crim. App. at Knoxville, Sept. 25, 2014). The Petitioner lived in a downstairs apartment of the house. Id. On September 16, 2011, the victim, who was seven months pregnant, accidentally locked herself out of the apartment. Id. A relative contacted the victim's husband and told him to come home and unlock the door. Id. While the victim waited on the front porch for her husband, the Petitioner came home and began arguing with her, but the victim spoke only Spanish, and the Petitioner spoke only English. Id. The Petitioner "'threw herself'" at the victim, hit her, grabbed her hair, grabbed her neck, and threw her against the wall. Id. The Petitioner then pushed the victim, and they both fell down the porch steps. Id. Afterward, the Petitioner ran away, and the victim notified the police of the assault. Id.

         The Petitioner testified that at the time of the incident, she had been living in the apartment for approximately two months. Id. at *2. The landlord would not make any repairs to the apartment, and the lock on her apartment door did not "'lock all the way.'" Id. On different occasions in September, the Petitioner noticed that items in her apartment had been moved and that some of her belongings were missing. Id. She repeatedly called 911 and had the police "'walk around'" her apartment to ensure her safety. Id. She suspected that the people who lived upstairs were responsible for the unauthorized entries into her apartment. Id. When the Petitioner saw the victim on September 16, she confronted the victim about her suspicions and told the victim to stay out of her apartment. Id. at *2-3. The victim responded in Spanish and reached into her purse. Id. at *3. The Petitioner thought the victim was reaching for a knife, feared for her life, and grabbed the strap of the victim's purse. Id. Both women "'fell back.'" Id. Thereafter, the Petitioner went to her apartment to change shoes and then went to a friend's house. Id. She denied hitting the victim. Id. The Petitioner was convicted of four counts of misdemeanor assault, which were merged into a single conviction. Id. at *1. On direct appeal, this court affirmed the Petitioner's conviction. Id.

         Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief. After appointment of counsel, two amended petitions were filed. In the petitions, the Petitioner alleged in pertinent part that "trial counsel was ineffective in not seeking a continuance due to the Petitioner's mental state at the time of trial" and that her "distressed mental and emotional state likely influenced the jury's perception of her credibility in a way detrimental to her defense." See Dorothy Denise Cross v. State, No. E2016-00104-CCA-R3-PC, 2016 WL 6110713, at *1 (Tenn. Crim. App. at Knoxville, Oct. 19, 2016). The post-conviction court summarily denied the petitions, finding the Petitioner had not alleged any behaviors that should have indicated to counsel she had mental distress, and the Petitioner appealed the court's decision. Id. This court concluded that the Petitioner had stated a colorable claim for post-conviction relief and remanded the case for a hearing. Id. at *2.

         At the hearing, the Petitioner testified that the altercation occurred in 2011 and that trial counsel was appointed to represent her shortly after she was arrested. She met with him, and they "[b]riefly" discussed the case. Approximately one month prior to trial, the Petitioner told trial counsel that she was "stressed out, " that she had memory problems, and that she "didn't feel comfortable because of [her] mental status." She explained that the unauthorized entries into her apartment had caused her to fear being there and that she continued to be upset by the thought of strangers in her apartment. The Petitioner acknowledged that in 2012, she moved out of the apartment and began living with her daughter in Nashville. In response to the Petitioner's concerns, trial counsel arranged for her to have mental health treatment at Peninsula.

         On the day of trial, the Petitioner told trial counsel that she did not feel competent to stand trial. She explained that she "wasn't feeling comfortable" and "was still upset about what had happened." She said that she felt "violated" by the unauthorized entries into her apartment, that no one believed her, and that she was under a lot of stress. She thought she needed more counseling and possibly medication, which she was prescribed after her trial. She asked trial counsel to request ...


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