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Patton v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 13, 2018


         Session January 23, 2018

          Appeal from the Criminal Court for Hamblen County No. 15-CR-485 John F. Dugger, Jr., Judge

         The Petitioner, Gevon C. Patton, appeals the Hamblen County Criminal Court's denial of his petition for post-conviction relief from his 2013 convictions for criminally negligent homicide and especially aggravated kidnapping and his effective twenty-five-year sentence. The Petitioner contends that he received the ineffective assistance of counsel and requests that his case be transferred to another trial court judge upon remand for a new trial. We affirm the judgment of the post-conviction court.

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

          Brennan M. Wingerter (on appeal), Knoxville, Tennessee, and Nick Davenport (at hearing), Morristown, Tennessee, for the appellant, Gevon C. Patton.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Dan E. Armstrong, District Attorney General; and Kim Morrison, 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 involvement in the 2008 kidnapping and subsequent death of Willie Morgan. The Petitioner appealed his convictions, and this court affirmed the convictions and summarized the facts of the case as follows:

At trial, the State's theory was that appellant was a part of a group of individuals who kidnapped the victim and held him for ransom. The group targeted the victim due to his relationship with Donnie Johnson, who the group believed was responsible for robbing one of its members. The group bound the victim to a chair, and the bindings caused the victim to asphyxiate, leading to his death.
The State's first witness at trial was Hamblen County Sheriff's Department Detective David Stapleton. Detective Stapleton testified that he received information on January 19, 2008, that the victim might have been kidnapped. His investigation led him first to Sonny Mills's residence and then to Roy Hollifield's residence. The victim was not found at either location, but Detective Stapleton learned that appellant, appellant's brother Anthony Patton, and Darryl Nance had been to Mr. Hollifield's residence earlier. Mr. Hollifield reported that they were looking for his brother, Donnie Johnson. Detective Stapleton testified that during the investigation, Nancy McCann Reed called 9-1-1 and told the operator that she had received a telephone call from one of the kidnappers. Detective Stapleton said that the investigators returned to Mr. Mills's residence, where they learned that the kidnappers might be in Bryce Whaley's red Jeep Cherokee. They were unable to locate Mr. Whaley initially but later discovered him at Mr. Mills's residence. Mr. Whaley was taken into custody. While investigators were questioning Mr. Whaley, Mr. Whaley received at least one telephone call from a Chattanooga number. Subsequently, the sheriff's department contacted the Chattanooga Police Department and asked them to be on the lookout for vehicles with Hamblen County license plates at local motels. Eventually, the Chattanooga Police Department located Darryl Nance, Jessica Lane, Betty Fuson, and Whitney Webb, all of whom were taken into custody. From interviews with these individuals, Detective Stapleton learned of the involvement of appellant and appellant's brother in the victim's kidnapping. Detective Stapleton testified that Mr. Whaley led the investigators to the victim's body. The victim had been hidden in a pile of brush, and his left hand had been severed. The investigators received information that the kidnappers had restrained the victim at Ms. Fuson's trailer.
Nancy McCann Reed testified that the victim was "like a dad" to her. She stated that she received a telephone call from Jessica Nicole Lawson informing her "that the black boys that [her] nephew Donnie Johnson robbed had either shot [the victim] or kidnapped him." Ms. Reed relayed this information to the 9-1-1 operator, and the State played the recording of her 9-1-1 call to the jury.
Roy Hollifield testified that Donnie Johnson was his brother. They considered the victim to be their grandfather, although they were not actually related. Mr. Hollifield recalled receiving a visit from Darryl Nance and one of the Patton brothers (he could not recall whether Anthony or appellant came with Mr. Nance) on the day prior to the victim's kidnapping. Mr. Nance informed him that he was looking for Mr. Johnson. Mr. Hollifield did not know where Mr. Johnson was, but he tried to call him. Mr. Nance told Mr. Hollifield to let Mr. Johnson know that he was looking for him. The following day, the day of the victim's kidnapping, Mr. Nance and both Patton brothers visited Mr. Hollifield. This time, Mr. Nance displayed a pistol and told Mr. Hollifield that he was going to kill Mr. Johnson when he found him. Mr. Hollifield recalled that the men arrived in a red Jeep. On cross-examination, Mr. Hollifield testified that appellant was either fifteen or sixteen years old in January 2008.
Daniel Kuykendall testified that he had been in a relationship with Jessica Lane in January 2008. He recalled seeing Ms. Lane with Mr. Nance, Mr. Whaley, and two black men in a red Jeep Cherokee on January 19, 2008. He testified that they came to his trailer in Ball's Trailer Park and that Ms. Lane borrowed his cellular telephone. Ms. Lane gave the telephone to Mr. Nance, and Mr. Kuykendall retrieved it from him. Mr. Kuykendall testified that before she left, Ms. Lane "said she had to take care of some business."
Erica Lawson testified that she saw Ms. Lane and Mr. Nance with both Patton brothers at Sonny Mills's residence on one evening in January 2008. She could not recall the exact date, but she said it was between 9:30 and 10:00 p.m. She remembered that they were eating a meal from Hardee's.
Whitney Webb testified that she and Betty Fuson spent much of January 19, 2008, shopping. Ms. Webb was driving them in her white Mustang. When they returned to Ms. Fuson's trailer, Ms. Fuson was unable to open the door, so they drove away. When they left, they saw Darryl Nance and Jessica Lane by a red Jeep. Mr. Nance told them that they had run out of gas and asked Ms. Webb to get gas for them. He also told her that he would give her money for the gas if they would all go to Ms. Fuson's trailer. In the trailer, Ms. Webb testified that she observed the victim tied to a chair in the living room. She said that appellant was not in the living room but that she saw him later in Ms. Fuson's bedroom. Ms. Webb testified that when she tried to leave, Mr. Nance refused to let her go. However, Mr. Nance changed his mind when appellant volunteered to go with her and Ms. Fuson to ensure that the women returned. Ms. Webb, Ms. Fuson, and appellant went to the Food City in White Pine. They bought a container and filled it with gas. They drove back to the red Jeep and left the gas inside it. Appellant then accompanied the women to Morristown and Knoxville. Ms. Webb testified that appellant told her Mr. Nance and Anthony Patton kidnapped the victim while he and Ms. Lane waited in the vehicle. On cross-examination, Ms. Webb said that the victim was alive when they left the trailer.
Betty Fuson testified that in January 2008, she did not have a key to her trailer but that Darryl Nance and his brother had keys. She said that her trailer was on the border between Jefferson County and Hamblen County. Ms. Fuson recalled that she and Ms. Webb had been shopping on January 19, 2008, before they went to her trailer to get clothes for a trip to Knoxville. When they arrived at her trailer, both doors were locked. They decided to go to Knoxville anyway, but they stopped when they saw Mr. Nance and Ms. Lane with a red Jeep near her trailer. Mr. Nance told her that he "had Donnie's papaw tied up at [her] house." She did not believe him at first, but when she entered her trailer, she saw the victim tied to a chair in her living room. Ms. Fuson said that she also saw the Patton brothers in the trailer. She testified that appellant followed her to her bedroom and told her that he was going to go with her when she left. Ms. Fuson stated that Mr. Nance would not let them leave until she called his brother. Mr. Nance's brother convinced him to let Ms. Webb and Ms. Fuson leave to get gas and to let appellant go with them. They left, bought gas, returned to the red Jeep, and left the gas in the Jeep. Ms. Fuson called Mr. Nance to let him know that they had bought the gas and that they were not returning to the trailer. Appellant accompanied her and Ms. Webb to Knoxville. Ms. Fuson said that appellant told her that he and Ms. Lane had waited in the car while Mr. Nance and Anthony Patton went inside the victim's residence. He also told her that he had heard a gun[]shot while they were inside.
Ms. Fuson testified that Mr. Nance called her when she was in Knoxville, asking for a ride out of town. She and Ms. Webb went to White Pine to pick up Mr. Nance and Ms. Lane and then returned to Knoxville. When Mr. Nance saw appellant in Knoxville, he was angry that appellant had not brought the women back to the trailer. Appellant stayed in Knoxville while Ms. Webb, Ms. Fuson, Ms. Lane, and Mr. Nance drove to Chattanooga. On cross-examination, Ms. Fuson testified that the victim was alive when they left her trailer.
The State called Anthony Patton as a witness; however, he refused to answer any questions substantively, other than declaring appellant's innocence. The trial court ruled that he was unavailable as a witness and allowed the State to read into evidence a statement given by Anthony Patton to investigators on February 22, 2008. Anthony Patton explained to investigators the events leading to the victim's kidnapping. He said that he was with Darryl Nance and Jessica Lane at Sonny Mills's residence, and Mr. Nance repeatedly stated that "he was going to F up Donnie." Anthony Patton left the Mills residence with Bryce Whaley, Mr. Nance, and Ms. Lane in Mr. Whaley's Jeep. He said that they went to Roy Hollifield's and that everyone went inside. Mr. Nance insisted that Mr. Hollifield call his brother, but Mr. Johnson would not answer his telephone. The group left and went to Ball's Trailer Park and then returned to Mr. Mills's residence. Ms. Lane commented that Mr. Johnson was close to the victim. As the group drove around town looking for Mr. Johnson, Ms. Lane suggested that they go to the victim's house, and she drove them there. They all went inside the victim's house when he opened the door. Mr. Nance repeatedly asked the victim for Mr. Johnson's location. Mr. Nance fired his gun at one point. Anthony Patton stated that he and Mr. Nance picked up the victim by his arms and carried him to the vehicle. They took the victim to Betty Fuson's trailer, where someone tied him to a chair. Anthony Patton said that Mr. Nance and Ms. Lane kept asking the victim for Mr. Johnson's location, and Mr. Nance hit the victim in the head with his pistol. At some point, Ms. Lane used Anthony Patton's telephone to leave someone a message informing that person that the group was holding the victim. Ms. Lane suggested that the group return to the victim's house, so they left Ms. Fuson's trailer in the Jeep but very shortly ran out of gas. Anthony Patton said that he was walking back to the trailer when he saw a white Mustang stop by the Jeep. Anthony Patton stated that Mr. Nance told him Ms. Fuson was going to get gas for them. Ms. Fuson and Ms. Webb entered the trailer and went to the bedroom to pack clothes. Anthony Patton said that he saw Mr. Nance hit the victim with his pistol again but harder than the first time. Ms. Fuson and Ms. Webb left to buy gas, and Anthony Patton later received a text message indicating that they had left the gas in the Jeep. Eventually, Anthony Patton left with Mr. Nance and Ms. Lane. They ordered food from In addition to the eyewitness testimony, the State presented forensic evidence tending to show that the victim had been in Ms. Fuson's trailer and Mr. Whaley's Jeep. The victim's severed hand was found inside Mr. Whaley's Jeep, along with two knives. The victim's blood was located in various areas in the Jeep and on one of the knives. The victim's DNA was also found on suspenders collected from Ms. Fuson's bathroom. A forensic examiner from the Federal Bureau of Investigation ("FBI") compared hair from the chair in Ms. Fuson's living room to a known sample of the victim's hair and concluded that the two had the same microscopic characteristics. Another FBI forensic examiner compared mitochondrial DNA from the two hair samples and concluded that they matched at every position, meaning that the examiner could not exclude the victim as the source of the hair found on the chair.
Medical Examiner Dr. Darinka Mileusnic-Polchan testified as an expert in forensic pathology. She stated that the cause of the victim's death was restraint asphyxiation, caused by the bandana that had been wrapped around his jaw and neck. She explained that the restraint pushed the victim's tongue up and prevented him from breathing efficiently. Dr. Mileusnic-Polchan opined that the extent and distribution of hemorrhaging in the victim's muscles were "consistent with strangulation or pressure more than just a simple knot on the front of the neck [could have] produce[d]." She further opined that based on the rigidity of the body when it was found, the victim was in a seated position for at least six hours after his death. She noted that the victim had not eaten within six hours of his death and had not been receiving adequate fluids for up to a day prior to his death. Dr. Mileusnic-Polchan testified that the victim's advanced age and dehydration contributed to his death. She further testified that the victim's left hand was severed after his death, a conclusion she reached due to the lack of bruising and minimal bleeding. She stated that the victim's autopsy also showed that he received blunt force trauma to his head. When asked whether she could determine if the victim was tortured, she replied, "[S]itting in a chair and being tied to a chair, it's already a torture. As far as being tied and being hit in the head is just, obviously, not a gentle handling."

State v. Gevon Cortez Patton, No. E2013-01355-CCA-R3-CD, 2014 WL 1512830, at *1-4 (Tenn. Crim. App. April 16, 2014) (footnotes omitted), perm. app. denied (Tenn. Oct. 22, 2014).

         The Petitioner filed the instant petition for post-conviction relief, alleging he received the ineffective assistance of counsel from his three attorneys in the trial court proceedings and that his convictions were procured with unlawfully obtained evidence. The Petitioner also alleged he had obtained newly discovered evidence, and he attached to his petition a handwritten affidavit from codefendant Darryl Nance. The affidavit stated that codefendant Nance and the Petitioner's second pretrial counsel spoke about the offenses, that codefendant Nance agreed to testify that the Petitioner did not know what codefendant Nance had planned on the night of the offenses, that codefendant Nance prevented the Petitioner from leaving the scene, and that codefendant Nance did not know second pretrial counsel did not represent the Petitioner at the trial.

         At the post-conviction hearing, the Petitioner testified that he was age sixteen at the time of the offenses and that his case was transferred from juvenile to criminal court. He said that his first pretrial counsel in criminal court "did not do anything" on his case during the one year counsel represented him and that the Petitioner did not know counsel represented him until he received a letter stating that counsel had been permitted to withdraw. The Petitioner said that he learned counsel had been appointed by reading a newspaper article and that counsel never contacted him, although he attempted to contact counsel through letters. The Petitioner said his mother called counsel's office. The Petitioner said that he received a letter stating counsel had withdrawn from the case because counsel had become a judge and that although the Petitioner could not recall who sent the letter, it was not from counsel. The Petitioner thought the letter might have been from the court clerk's office. The Petitioner recalled that he did not have any court appearances during counsel's representation and said that he first saw the trial court judge in 2012. The trial court file reflected that counsel was appointed on October 9, 2008, and withdrew on February 25, 2010.

         The Petitioner testified that second pretrial counsel was appointed on February 25, 2010, and that they met several times to discuss his case. The Petitioner said that he wanted counsel to talk to codefendant Anthony Patton, who was the Petitioner's brother, to codefendant Darryl Nance, and to codefendant Desmond Nance, codefendant Darryl Nance's brother. The Petitioner said that counsel spoke to codefendants Darryl Nance and Anthony Patton, who were already serving their sentences in prison. The Petitioner said that afterward, counsel only reported that codefendants Nance and Patton were going to testify against the Petitioner. T he Petitioner said that after he was convicted and sentenced, he saw codefendant Nance, who said he expected counsel to subpoena him for the Petitioner's trial because codefendant Nance had written a statement for counsel. The Petitioner said that he did not request counsel to subpoena codefendant Nance because counsel said the State planned to call codefendant Nance as a witness. The Petitioner said that he and counsel did not discuss a legal defense, although they generally discussed the Petitioner's being in the wrong place at the wrong time, but that counsel provided the Petitioner with witness statements. T he Petitioner said that counsel never showed him the "exhibit book, " which the post-conviction court said contained "photographs and everything."

         The Petitioner testified that he and second pretrial counsel never discussed how they were "going to fight" the charges and that the Petitioner ultimately began to feel counsel was not doing his job. The Petitioner said that counsel never told him that codefendant Nance "recanted" his initial statement and that counsel did not inform the Petitioner's third attorney, who represented him at the trial, about codefendant Nance's statement to counsel. The Petitioner said second pretrial counsel was untruthful about the conversation with codefendant Nance because counsel only reported that codefendant Nance would testify against the Petitioner at the trial.

         The Petitioner testified that trial counsel met with him, at most, twenty times during counsel's representation, that the meetings lasted fifteen to thirty minutes, and that counsel mostly discussed the witnesses testifying for the State. T he Petitioner said that counsel never discussed possible defenses or his trial strategy and that counsel did not provide him with any evidence not provided by previous counsel. The Petitioner said that trial counsel presented him with a twenty-year plea offer at 100% service and only stated that the Petitioner would receive pretrial jail credit. The Petitioner said counsel stated that twenty years would be less than he would receive after a trial. T he Petitioner said he did not want to accept the offer.

         The Petitioner testified that he and trial counsel reviewed the codefendants' statements but that they did not discuss photographs, DNA or fingerprint evidence, and video recordings. The Petitioner said that he did not request counsel to speak to codefendant Nance because second pretrial counsel had spoken to codefendant Nance previously but that if the Petitioner had known codefendant Nance recanted his initial statement, the Petitioner would have discussed it with trial counsel. The Petitioner agreed that codefendant Patton was an uncooperative witness for the State but that counsel did not question him. The Petitioner said that codefendant Patton's previous statement was redacted after counsel's request for a mistrial was denied. The Petitioner said that when he asked counsel what counsel "was going to do" at the trial, counsel said that he was "going to downplay everything" the State presented. The Petitioner said that he did not know until after his trial that counsel could have presented evidence after the State rested its case-in-chief and noted that he had never been a defendant in any criminal proceeding, other than truancy-related matters in juvenile court.

         The Petitioner testified that he wanted trial counsel to question codefendant Whitney Webb about her two inconsistent statements in which she first did not mention the Petitioner but later identified the Petitioner as a participant in the offenses. The Petitioner agreed that counsel questioned codefendant Webb and said that counsel also questioned codefendant Betty Fuson, who testified that the Petitioner wanted to leave and was scared. T he Petitioner said that at the time of the trial, he had no complaints about counsel's cross-examinations of the State's witnesses.

         The Petitioner testified that after the trial, trial counsel told the Petitioner, "Listen, I know we didn't have enough time to go back and forth over it . . . [and] I will testify to that . . . later on." The Petitioner said that he last spoke to counsel at the sentencing hearing and that counsel did not discuss the appeal. The Petitioner said that he wrote counsel a letter after the sentencing hearing and that counsel responded that counsel was waiting on a "sentencing paper" before doing anything else in the Petitioner's case. The Petitioner said that he continued writing letters to counsel for one to two years without receiving a response, that the Petitioner requested transcripts, the appellate brief, and status updates about the appeal, that the Petitioner's family said counsel's telephone number was "out of service, " and that a Google search showed counsel was no longer licensed to practice law. The Petitioner said that he received a letter, although he did not identify from whom, stating that this court denied appellate relief.

         The Petitioner testified that he was sent to prison in March 2013 and that he spoke to codefendant Nance in April 2013, which was when the Petitioner learned codefendant Nance had provided a statement years earlier to second pretrial counsel. The Petitioner said that codefendant Nance prepared a duplicate statement that was notarized in 2013 and that the Petitioner wrote trial counsel about the statement but received no response.

         The Petitioner testified that codefendant Patton's conduct during the trial was damaging and that the Petitioner wanted a new trial without his brother's testimony and with codefendant Nance's testimony. The Petitioner said that he wanted to tell a jury that he was already at the trailer when his codefendants arrived with the victim, that he did not know what his codefendants planned, and that the DNA and fingerprints from the Jeep did not belong to him. The Petitioner said that he relied upon trial counsel's advice not to testify because counsel said that the State had not proven "anything."

         The Petitioner testified that he never saw the indictment until after the sentencing hearing and that in 2012, he asked the trial judge about the charges, at which time he learned he had been indicted for first degree murder. T he Petitioner could not recall whether second pretrial counsel or trial counsel represented him at this time. The Petitioner said that he and trial counsel never discussed his possible sentence if he were convicted of murder and that a sentence for murder "was common sense." Relative to whether the Petitioner thought he was informed enough to decide whether to go to trial, the Petitioner said,

I wanted to take it to trial from day one. I didn't feel like I did anything. I was already at the house prior to before they had brought [the victim], so I don't feel like I did anything still. You know, yeah, I didn't call the police as far as leaving, hey, dude is hurt. I mean they doing this to him, I'm next right if I tell on him, you know like how things go. I wasn't going - I was sixteen, I just left, got away, left, never went back, never ...

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