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Witherow v. State

Court of Criminal Appeals of Tennessee, Knoxville

March 19, 2018


          Assigned on Briefs January 24, 2018

         Appeal from the Criminal Court for Hamilton County No. 289761 Tom Greenholtz, Judge

         The Petitioner, Malcolm Orlando Witherow, appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief from his 2011 conviction for first degree premeditated murder and his life sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

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

          Donna Miller, Chattanooga, Tennessee, for the appellant, Malcolm Orlando Witherow.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Neal Pinkston, District Attorney General; and Kristen Spires, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.



         This case arises from the Petitioner's fatally shooting Melissa Hoover, the Petitioner's former girlfriend. The Petitioner appealed his first degree murder conviction, and this court affirmed the conviction and summarized the facts of the case as follows:

At trial, [Connie] Harrold testified that she had known Witherow for twenty years. She said the victim and Witherow stayed with her from time to time. On the morning of October 10, 2008, the victim, Witherow, and Tyler Baker, a friend of Harrold's son, were drinking coffee at Harrold's house. The victim went outside to roll up the windows of her car because it began to rain. Witherow followed her. As Witherow exited the house, he told Harrold, "I'm sorry I've got to break my promise, I love you, I'm sorry, Connie." When asked what promise he was referring to, Harrold said, "[Witherow] promised me he would never hurt [the victim] in my house." She could not recall exactly when he had made that promise.
When Witherow and the victim were outside, Ms. Harrold heard loud noises, looked outside her window, and saw Witherow and the victim arguing. She said they were "slapping at each other but nothing really fist to fist or anything." She sat back down and heard another loud noise "like a gun." She then heard the victim "holler, 'Connie, Connie, help me. Help me, Mamma Connie, help me.'" She observed Witherow chasing the victim down the driveway, which she estimated was two or three hundred feet long. She told Baker, who was in the shower, to come outside because Witherow was shooting the victim. Harrold went outside and observed Witherow "walking on the other side of the road. . . . He was going past me, going back towards my house, and I'm going towards the other way." She said initially she could not see the victim but found her "on the side of the road. And I'm holding her in my arms and [Baker] comes out and I tell him to call 911." Harrold said the victim was "limp" and barely breathing. The victim had been shot several times and could not talk, because there was "a bullet penetrating out of her throat." Although Harrold attempted CPR on the victim, she died in Harrold's arms.
A recording of the 911 call was admitted into evidence and played for the jury. During the call, Harrold said that "Malcolm" shot the victim with a "small pistol" and "took off." When asked why Witherow would be angry with the victim, Harrold said that the victim "wore a wire on him several years back" as an informant for the police in a drug case.
On cross-examination, Harrold explained that Witherow made his promise "over a conversation about [the victim] wearing a wire, " and that "he was going to retaliate against [the victim] or something. But he promised he wouldn't do it at my house." On the day of the offense, Witherow had been living at Harrold's house for several months, and the victim had been living there for a couple of weeks. Witherow and the victim slept in different areas of her three bedroom house and "were always friendly with each other for the most part." She had never observed Witherow or the victim with a gun. The night before the offense, the victim spent the night at Harrold's house, and Witherow spent the night elsewhere, which was not unusual.
According to Ms. Harrold, on the morning of the offense, Witherow returned to her house at around 7 a.m. She explained that she could not remember every detail concerning that day because it had occurred over three years ago. Although she did not recall whether Witherow had a forty-ounce can of beer in his hand that morning, she agreed that it was not uncommon for Witherow to drink alcohol in the morning. She also did not recall smoking marijuana with the victim that morning but agreed that they had done so prior to the offense. She had observed Witherow and the victim argue prior to the offense, but she had never observed Witherow strike the victim. She testified that Witherow told her that he was going to hurt the victim "probably a few months" before the offense, but she never thought Witherow would hurt the victim. Finally, Harrold agreed that she did not see Witherow with a gun on the day of the offense.
Mr. Tyler Baker, a friend of Ms. Harrold's son, testified that he was living with Harrold on the day of the offense, and had known the victim and Witherow for "just a couple of months." On the morning of the offense, Baker said the victim had agreed to drive him to a job interview. He was sleeping on a chair by the front door when he saw Witherow enter Harrold's house. He fell back asleep, and nothing unusual happened until he was in the shower and heard gunshots. He initially thought it was a car, but then he heard screams. He walked outside and saw Witherow walking up the driveway "just real calm" with a small silver gun in his right hand. Baker testified that Witherow "looked at me and I asked him what happened and he just didn't say nothing. He just got in the car and left." Baker called 911, handed Harrold the phone, and ran to help the victim.
Baker testified that Witherow told him several times a week that the victim had "wor[n] a wire on him." Baker said that Witherow told him the investigation "made him lose everything . . . . he wanted revenge." Witherow also told Baker he was going to kill the victim and that he would "get away with it . . . . [and] do a year and a half . . . . at a crazy house."
On cross-examination, defense counsel asked Baker, "isn't it in fact the case you lived at Ms. Harrold's house for about a month and a half prior to October 10th?" He answered "yes" but later clarified that by October 10, 2008, he had been staying at Harrold's house "on and off" for "five to six months." Baker met Witherow and the victim when they came to stay with Harrold about three months before the offense. He agreed that Witherow came to live at Harrold's house before the victim. He thought that the victim lived at Harrold's house for "maybe a month" prior to the offense. He said Witherow did not get drunk every night. Prior to the offense, Baker observed Witherow and the victim argue, but had never observed them in a physical confrontation. He thought their arguments occurred because the victim did not want to have a relationship with Witherow.
When asked whether the victim showed him a gun, Baker said, "I want to say she had one. This was weeks before it happened. But I can't remember." Baker testified that the victim had a gun in a brief case in the trunk of her car and sold it "probably a week" before the offense. He said the gun was "probably a .22" and described it as small and silver. Baker said Witherow also showed him two guns, a black revolver and a silver gun, a week before the offense. He did not observe Witherow hunt animals or shoot the guns around Harrold's property. Asked whether Witherow threatened the victim in her presence, Baker said[, ] "Maybe sometimes. Sometimes she didn't worry about it; sometimes she thought he was just talking."
Sergeant Dean Beverly of the Cleveland Police Department testified that he investigated Witherow in 2005 for drug trafficking in Bradley County. He utilized the victim as a confidential informant in two controlled drug purchases from Witherow. He confirmed that the victim wore a wire during the investigation. Witherow was subsequently arrested and charged with the sale and delivery of Schedule II narcotics. The charges were eventually dismissed because the State was unable to locate the victim to testify at trial. On cross-examination, Sgt. Beverly said he did not know whether Witherow knew the victim had served as a confidential informant in his case. He explained, under normal circumstances, that information was provided to a defendant by the District Attorney General's Office upon request through discovery.
The director of admissions at Moccasin Bend Mental Health Institute testified that on the day of the offense, she was summoned to the admissions area of the hospital to meet Witherow. She asked how she could help him, and Witherow replied, "that he wanted to be evaluated. Said he had shot his girlfriend." Witherow told her he had thrown the gun in the river. The director called an admitting physician, the hospital attorney, and the police department. The director described Witherow as "tearful" and "unkept." She did not detect an odor of alcohol about his person, and he appeared to understand her questions. Witherow was evaluated by a physician, but he was not admitted to the mental hospital.
Detective Mark Miller of the Hamilton County Sheriff's Office identified photographs he took of Witherow's car parked outside of the mental hospital, which were admitted as exhibits. Witherow's car was towed to the Sheriff's Office and preserved in a secure area. On cross-examination, he stated that he followed the car to the Sheriff's Office and was present when it was unloaded, but he did not search it because he did not have a search warrant.
Detective Robin Langford of the Hamilton County Sheriff's Office identified photographs and a diagram of the crime scene which were admitted as exhibits. He described what he believed to be droplets of blood at the scene and the location of the victim's body. He also identified swabs of suspected blood, a set of keys found in the street, and two Winchester .25 caliber spent shell casings retrieved from the scene, which were also admitted into evidence. Photographs of Witherow's car, which was processed for evidence after a search warrant was obtained, were also identified and admitted into evidence. Finally, Detective Langford identified a gunshot residue kit and the samples he obtained from Witherow's car. These items were forwarded to the Tennessee Bureau of Investigation for analysis and admitted as exhibits at trial.
Detective Rick Whaley of the Hamilton County Sheriff's Department was the case agent assigned to investigate the victim's death. He said a handgun was never recovered in the case despite the search efforts of a dive team. Detective Whaley identified Witherow's clothing, admitted as an exhibit, that was collected at the police annex. He observed other [detectives] take a buccal swab of Witherow's mouth pursuant to a search warrant. Detective Whaley identified these swabs, which were entered into evidence. He also observed Dr. Frank King's autopsy of the victim. He identified fingernail clippings, a blood sample, and a bullet he obtained from the victim's autopsy, all of which was sent to the Tennessee Bureau of Investigations for analysis. Detective Whaley said the victim's body was found "a little over a hundred yards" from the bottom of the driveway.
On cross-examination, Det. Whaley said Witherow's hands were tested for gun[]shot residue at the police annex on the day of the offense. He was unable to determine the position of the shooter or the victim at the time she was shot.
Dr. Frank King, the Hamilton County medical examiner, performed the autopsy of the victim and testified as an expert in forensic pathology. He identified the autopsy report and his report of investigation, which were admitted as exhibits. He said the victim's cause of death was multiple gunshot wounds, and the manner of death was homicide. He said the "gunshot wounds passed through the chest, abdomen, and right arm, . . . causing damage to internal organs, bleeding, and subsequent death." He found fresh and old bruises on the victim's legs. Dr. King explained that a bullet wound consists of "entrances, exits, and graze wounds." He determined that six or seven bullets struck the victim, creating fourteen different gunshot wounds. He said the victim was alive when each bullet entered her, and "[a]ll of these gunshot wounds occurred close together in time." He opined that the victim was "going through different positions . . . [and] could be partly on the ground or all the way on the ground when some of these shots occurred."
Based on the similar appearance of the gunshot wounds, Dr. King opined that "the same gun or type of gun, same ammo[, ] could cause all these similar looking wounds." He testified that the victim's wounds "all looked very similar, all caused by low velocity gunshot wounds." Finally, he stated that one bullet remained in the victim's body.
Special Agent Shelley Betts, a forensic scientist and firearms examiner with the Tennessee Bureau of Investigation, testified as an expert in the field of firearms identification. She found no gunshot residue on the victim's clothes and was unable to determine a muzzle-to-garment distance. She testified that the two fired cartridge cases she examined "had the same unique identifying marks[, ] . . . so [she] was able to conclude that they had both been fired in the same .25 auto caliber pistol." Based on her testing, she further concluded that the bullet which came from the victim's body was a .25 caliber bullet.
On cross-examination, Agent Betts testified "there could have been any number of factors that would preclude [her] from determining a muzzle to garment distance." She said the gun could have been fired beyond "the maximum distance at which that gun and that type of ammunition would deposit gunshot residues on an item of clothing." Or, she said, the residue could have been lost and "environmental factors like a lot of mud or rain or a lot of blood could have destroyed [gunshot residue] evidence." She was unable to determine whether the bullet and shell cases were fired from the same gun because a gun was not recovered. She said "[t]here could have been one or two guns used in this case."
Special Agent James Russell Davis, III, of the Tennessee Bureau of Investigation[] testified as an expert in the field of microanalysis in trace evidence. He identified his report on the gunshot residue kit performed on Witherow's hands. Although the test was inconclusive for gunshot residue, it did not eliminate the possibility that Witherow could have fired, handled, or was near a gun when it fired. Agent Davis also identified his report analyzing the evidence retrieved from Witherow's car. His test revealed the presence of particles unique to gunshot primer residue on a sample from Witherow's driver's seat belt or pull strap. Agent Davis said this indicated that a weapon was fired in close proximity of that particular item or that it was transferred from someone's hands. Both of Agent Davis's reports were admitted as exhibits at trial.
On cross-examination, Agent Davis agreed that the elements lead, barium, and antimony can be naturally occurring. He reiterated, however, that the gunshot residue found on Witherow's driver's seat belt came from a weapon that was fired. He also agreed that this residue could have come from Witherow being near a gun when it was fired or handling a gun after it was fired.
Detective Brian Ashburn, called as a witness by Witherow, testified that he conducted an interview with Baker which was recorded. Detective Ashburn testified that during the course of the interview Baker said that he had lived at Harrold's house "for about one to one and a half months" prior to the offense. The corresponding portion of the recording was played for the jury and largely inaudible. Baker was heard to say "about a month and a half." Detective Ashburn also testified that during the same interview Baker told him that Witherow had been living with Harrold for "a few weeks" prior to the offense. The corresponding portion of the recording was played for the jury and, again, was largely inaudible. Baker was heard to say "could be . . . about a month. Because I know it was about a week or two weeks before that I moved in there. Because I'd just met him. I'd never met him before."
Detective Ashburn agreed that Baker told him during the course of the interview that Witherow would get drunk and talk about killing the victim. The corresponding portion of the recording was largely inaudible; however, Baker is heard to say "I mean, [Witherow is] always like saying I'm going to kill that b----, . . . . But I mean you know (inaudible) . . . . almost a week and a half but I won't go to jail because I (inaudible) about it." Another portion of the recording was played for the jury in which Baker said that Witherow and O'Donald left Harrold's house the night before the offense, and went to Meigs. Baker said Witherow and O'Donald arrived at Harrold's around 7 a.m. on the day of the offense and Harrold's son left around 8 a.m. Detective Ashburn agreed that Baker said Witherow had been out that night with O'Donald, rode in O'Donald's new car, and that Baker told him Witherow had been in Georgia with a girl two nights before the offense. The corresponding portion of the recording was played for the jury in which Baker said "Like two nights before . . . [Witherow] went down to Georgia and had sex with some girl, and that's what was killing him in his mind. . . . I don't know what girl, I don't know anything. He was just using his cell phone so." Detective Ashburn agreed that Baker said Witherow threatened to kill the victim only when he was drinking or intoxicated but not when Witherow was sober. The corresponding portion of the recording was played for the jury in which Baker said "[Witherow] was never mad at [the victim] when he was sober. He just really didn't talk to nobody that much."
Detective Ashburn agreed that Baker did not say that he lived with Harrold longer than one and a half months during the course of the interview. Detective Ashburn testified that Harrold told him that when Witherow arrived at her home on the day of the offense he was intoxicated and had a forty-ounce can of beer in his hand.
Dr. Laura Boos of the Tennessee Bureau of Investigations testified as an expert in serology and DNA. She analyzed various items of evidence in this case and said that blood was found on Witherow's jeans and shoes but not on a belt, shirt, cell phone case, watch, rings, swabs from the roadway, or the two cartridge cases. Upon further testing, she found blood and DNA on three swabs from the roadway, and two of these matched the victim's DNA while the third had insufficient or degraded DNA and could not be matched. Dr. Boos tests also showed that the DNA on Witherow's shoes matched the victim's DNA. She explained that it is not uncommon for DNA to be ...

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