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Harris v. State

Court of Criminal Appeals of Tennessee, Jackson

April 6, 2018

SHEDDRICK HARRIS
v.
STATE OF TENNESSEE

          Session July 11, 2017

          Appeal from the Criminal Court for Shelby County No. 09-00594 W. Mark Ward, Judge

         The Petitioner, Sheddrick Harris, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury convictions for first degree felony murder and especially aggravated robbery. See Tenn. Code Ann. §§ 39-13-202(a)(2), -403. In this appeal as of right, the Petitioner raises the following ineffective assistance of counsel claims: (1) that trial counsel was ineffective for failing to inform the Petitioner that he had a constitutional right to a trial before a different judge than the one who signed the search warrant for the Petitioner's automobile; (2) that trial counsel was ineffective for failing to seek recusal of the trial judge because the trial judge had an ex parte communication with a head deputy that led to enhanced courtroom security procedures, evincing the trial judge's bias against the Petitioner, and because the trial judge was the same judge who issued the search warrant; (3) that trial counsel was ineffective for failing to challenge the warrantless search of the Petitioner's vehicle, failing to challenge the search warrant by requesting a Franks v. Delaware, 438 U.S. 154 (1978) hearing, and failing to challenge the Petitioner's illegal detention effectuated without probable cause and without an arrest warrant and solely for the purpose of gathering additional evidence against the Petitioner; and (4) that trial counsel failed to adequately impeach an attorney witness who was facing disciplinary action by the Board of Professional Responsibility at the time of the Petitioner's trial.[1] After a thorough review of the record, we affirm the judgment of the post-conviction court.

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

          Seth M. Segraves (on appeal) and Michael R. Working (at hearing and on appeal), Memphis, Tennessee, for the appellant, Sheddrick Harris.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and D. Gregory Gilbert and Omar Z. Malik, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         In August 2010, a Shelby County jury convicted the Petitioner of first degree felony murder and especially aggravated robbery in connection with "an ill-fated drug deal turned robbery during which the victim . . . suffered the theft of over $10, 000 and a fatal gunshot wound to the chest." State v. Sheddrick Harris, No. W2010-02512-CCA-R3-CD, 2012 WL 29203, at *1 (Tenn. Crim. App. Jan. 5, 2012), perm. app. denied (Tenn. May 16, 2012). For these crimes, the Petitioner was sentenced to life imprisonment without the possibility of parole for the murder conviction and to a consecutive sixty years for the especially aggravated robbery conviction. Id.

         A. Trial. The thirty-eight-year-old victim, Corey Lester, was found shot to death in his Memphis home on May 20, 2008. Harris, 2012 WL 29203, at *1. He had suffered gunshot wounds to the left side of his chest, his left knee, and his right knee. Id. at *5. According to the medical examiner, the chest injury was not survivable. Id.

         Memphis Police Department ("MPD") Detective Charles Teeters arrived at the victim's home after the victim's body had been removed and observed what appeared to be a "sizeable amount of cocaine" on the kitchen counter. Harris, 2012 WL 29203, at *4. According to Detective Teeters, he believed "the substance to be approximately two kilos of cocaine based upon its appearance and packaging[, ]" but when he sampled the substance, it did not have "the normal texture" of cocaine. Id. Detective Teeters performed a field test of the substance that did not produce a "positive test for cocaine, " and later testing at the property room confirmed that the substance was in fact not cocaine. Id. There was, however, a small amount of cocaine recovered from a saucer on the kitchen counter. Id. In addition, another detective recovered the victim's wallet from the master bedroom, which contained approximately $500 inside. Id. at *5.

         MPD Detective Alpha Hanks processed the crime scene, noting spent shell casings found in the front doorway, in a kitchen garbage can, and behind the living room couch. Harris, 2012 WL 29203, at *4. She also documented a blood trail leading from the kitchen to the victim's body near the pool table, bullet holes in the couch, and one bullet hole in a pair of blue jeans. Id. She collected five spent .380 casings and two spent bullets for ballistics testing. Id.

         Two witnesses, Derron Macklin and Rocky[2] Hilliard, placed the Petitioner at the scene of the victim's murder. At the Petitioner's trial, they testified to the following:

Derron Macklin had known the victim "about a year" and considered the victim a friend. On May 20, 2008, Mr. Macklin and another individual, Rock[y] Hilliard, met with the victim at a Memphis Marshall's department store to arrange a drug deal with the [Petitioner], whom Mr. Macklin knew as "Sed." As Mr. Macklin explained, "[Mr. Hilliard] knew where some drugs w[ere] and that [the Petitioner] want[ed] to see the money first." Mr. Macklin, however, became nervous about the drug deal because "who in their right mind is going to show you the money first without seeing the product." After arranging a meeting between the victim and the [Petitioner] for later that day, Mr. Macklin telephoned the victim and told the victim that he was not "comfortable with what was fixing to go down" and attempted to call off the transaction. The victim, however, told Mr. Macklin that he would "go through" with the meeting.
Mr. Macklin and Mr. Hilliard picked up the [Petitioner] at a Fred's store and drove to a Shell station near the victim's home. The victim had told Mr. Macklin that he did not want Mr. Hilliard to come to his home because Mr. Hilliard had been recently paroled from federal prison. Therefore, Mr. Macklin, Mr. Hilliard, and the [Petitioner] met the victim at the Shell station, where the [Petitioner] and Mr. Macklin got into the victim's white pickup truck and went to the victim's home.
When they arrived at the victim's home, Mr. Macklin went into a living room area and began "racking up" a game of pool at the victim's pool table. The [Petitioner] received a phone call and "his whole attitude changed." The [Petitioner] demanded to see the money, so the victim "brought out a little black pouch" containing money and placed it on the kitchen table. The [Petitioner] became angry over the amount of money presented. When the victim said, "[T]hat's all the money I got, " the [Petitioner] shot the victim in the leg. The [Petitioner] then asked for "the rest of the money." When the victim told him that the money was "back there" in the victim's bedroom, the [Petitioner] directed Mr. Macklin to retrieve the money from the victim's bedroom dresser. Mr. Macklin went to the victim's bedroom and returned with another small container of money.
Next, the [Petitioner] ordered the victim and Mr. Macklin to the living room couch. The [Petitioner] forced the victim and Mr. Macklin to "strip down to [their] underwear" and told them that he was "going to have to . . . kill [them]." Both men begged for their lives. When the [Petitioner] telephoned someone but got no answer, the victim offered the [Petitioner] any of his vehicles in return for leaving them without any further harm. The [Petitioner] instructed Mr. Macklin to dress and go start one of the vehicles-either a white pickup truck or a Corvette. The [Petitioner] stood in the doorway of the home, watching both the victim and Mr. Macklin, as Mr. Macklin walked outside to start the victim's white pickup truck. Mr. Macklin "got around the truck [and] stuck the key in the ignition[, but] it didn't fit. So [he] laid down and ran."
Mr. Macklin fled the victim's driveway and ran door to door seeking help. Unable to summon any help from neighbors, Mr. Macklin went to the Shell station where he telephoned Vincent Halliburton to warn him of what had occurred because Mr. Halliburton was on his way to the victim's home. Mr. Macklin then telephoned 9-1-1 to report the shooting and returned to the victim's home to meet the police.
As Mr. Macklin walked back to the victim's home, he saw the [Petitioner] and Mr. Hilliard in Mr. Hilliard's car. When Mr. Hilliard and the [Petitioner] saw Mr. Macklin, "they hit the brakes so [he] just stepped over in the bushes and then they left." When Mr. Macklin returned to the victim's home, Mr. Halliburton was already standing outside. Mr. Macklin told Mr. Halliburton that he and the victim had been robbed. Mr. Macklin looked inside the door and saw the victim lying on his back by the pool table.
The police soon arrived, and Mr. Macklin gave them a statement during which he "tried to shy away" from discussion of the drugs because he did not want to be charged in any conspiracy concerning the drugs. Later at the police station, however, Mr. Macklin admitted to police that he had been untruthful at the scene and "told them everything [he] knew at that point, " including identifying the [Petitioner] as the shooter. He testified, "I told [the police] that . . . we [were] there to buy drugs and we [were] getting them from [the Petitioner] and he pulled up a gun and robbed us." Mr. Macklin only witnessed the [Petitioner's] firing the first shot in the victim's leg, did not see any other shots fired, and did not see the drugs at any time. At trial, Mr. Macklin denied visiting the [Petitioner's] home on the day of the shooting.
Rocky Hilliard had known the [Petitioner] approximately six to [twelve] months at the time of the shooting. He met the victim for the first time on May 20, 2008. Mr. Hilliard assisted Mr. Macklin in setting up the drug deal by getting Mr. Macklin in touch with the [Petitioner]. Mr. Hilliard also expressed some reservations about the deal and told Mr. Macklin and the victim to "leave it alone." Mr. Hilliard testified that when he and Mr. Macklin picked up the [Petitioner] at the [Petitioner's] home, Mr. Macklin went inside the [Petitioner's] home for "maybe five minutes" before both men came outside and got into Mr. Hilliard's car. Mr. Hilliard recalled that the [Petitioner] carried a large "dark black" bag to the car, which he assumed contained drugs. Mr. Hilliard drove the men to the Shell station to meet the victim and waited at a "wing place" restaurant near the Shell station while the men went to the victim's home.
Mr. Hilliard spent [thirty] to [forty] minutes "just sitting" at the restaurant while the men were at the victim's home. At one point, he telephoned the [Petitioner] to ask what was taking so long, and the [Petitioner] told him that they were about to test the drugs. Sometime later, Mr. Macklin telephoned Mr. Hilliard, told him "you set us up, " and hung up the phone. Soon thereafter, the [Petitioner] telephoned Mr. Hilliard for a ride and told Mr. Hilliard that the victim and Mr. Macklin were "trying to rob" him. Mr. Hilliard picked up the [Petitioner] on a nearby street and took him home. On the trip to the [Petitioner's] home, the [Petitioner] repeatedly told Mr. Hilliard that the other men had tried to rob him.
Mr. Hilliard left the [Petitioner] at the [Petitioner's] home and traveled alone to Tunica, Mississippi. A[n MPD] detective telephoned Mr. Hilliard in Tunica to ask him who killed the victim. Mr. Hilliard was "shocked" to learn of the victim's death. The next morning and while accompanied by his attorney, Mr. Hilliard gave a statement to the detectives and identified the [Petitioner] from a photographic lineup.

Harris, 2012 WL 29203, at *1-3 ("defendant" altered to "Petitioner" throughout; all other alterations in the original).

         Javier Bailey, Mr. Hilliard's attorney, testified at the Petitioner's trial that he received a telephone call from Mr. Hilliard in the "wee hours of the morning" of May 21, 2008. Harris, 2012 WL 29203, at *4. He agreed to meet Mr. Hilliard at his office and accompany him to the MPD station later that morning, where Mr. Hilliard gave a statement to MPD detectives. Id.

         Robert Lambe testified at the Petitioner's trial that he sold the Petitioner his 1998 black Cadillac DeVille at approximately 7:30 a.m. on May 21, 2008. Harris, 2012 WL 29203, at *4. According to Mr. Lambe, the Petitioner paid $4, 900 cash, and he gave the Petitioner a bill of sale and title transfer. Id. Mr. Lambe further testified that he had removed all of his personal property from the vehicle prior to selling it and that he did not leave over $13, 000 in cash inside the vehicle or a Lorcin .380 pistol in the glove compartment. Id.

         MPD Detective Michael Garner arrested the Petitioner at a Memphis muffler shop on May 21, 2008. Harris, 2012 WL 29203, at *4. "The [Petitioner] did not immediately submit, but when cornered by Detective Garner and his team, the [Petitioner] 'gave up.'" Id. Although the Petitioner told Detective Garner that he did not have a vehicle at the shop, the Petitioner "held a set of keys in his hand at his arrest. The officers confirmed the keys belonged to a black Cadillac DeVille parked on the lot. A plain view search of the vehicle uncovered paperwork relevant to the [Petitioner's] recent purchase of the car that morning." Id. MPD Detective Samuel McMinn assisted Detective Garner in the Petitioner's arrest, testifying "at trial consistently with Detective Garner's testimony concerning the circumstances of the [Petitioner's] arrest and search of the vehicle." Id.

         MPD Detective Barry Hanks prepared the search warrant for the Petitioner's vehicle and conducted the search. Harris, 2012 WL 29203, at *5. Detective Hanks "discovered paperwork concerning the [Petitioner's] ownership of the vehicle and receipts showing the [Petitioner's] payment of fines on the morning of May 21 in order to have his driving privileges reinstated." Id. Another officer found "two boxes containing a large amount of money in the backseat" of the Cadillac and a handgun in the glove compartment. Id.

         On cross-examination, Detective Hanks acknowledged that he had averred in the search warrant affidavit that no money was recovered at the victim's residence. Harris, 2012 WL 29203, at *5. He explained, however, that "with the quantity of drugs or suspected drugs that was on the scene, " he was thinking about "a large amount of money" that would be needed "to purchase a kilo of cocaine" and that he "did not even think about the five hundred dollars" found in the victim's wallet when preparing the affidavit. See id. He was also asked about his statement in the affidavit that he did not know how Mr. Macklin left the scene. Detective Hanks believed that statement to be true, reasoning,

When [Mr. Macklin] got a chance[, ] he left the scene, [and] he went down to a service station to try to summon help. . . . [H]e saw [the Petitioner] later leaving the area with Rock[y, ] but he did not see [the Petitioner] come out of the house and get into Rock[y]'s car and leave because he also was gone from the scene.

         Special Agent Raymond DePriest, a firearms examiner, determined that the Lorcin .380 semi-automatic pistol found in the glovebox of the Cadillac was "fully functional." Harris, 2012 WL 29203, at *5. "Through his examination of the shell casings and bullets recovered at the scene, he determined that they all were consistent with having been fired from the pistol. Likewise, he determined ...


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