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Stanhope v. State

Court of Criminal Appeals of Tennessee, Nashville

April 19, 2018

GEORGE A. STANHOPE
v.
STATE OF TENNESSEE

          Session February 13, 2018

          Appeal from the Circuit Court for Hickman County No. 14-CV-39 Joseph P. Binkley, Jr., Judge

         George A. Stanhope, the Petitioner, was convicted of first degree premeditated murder, two counts of first degree felony murder, theft of property valued at $1, 000 or more but less than $10, 000, and aggravated burglary. The Petitioner received a total effective sentence of life without parole plus ten years. His petition for post-conviction relief was denied by the post-conviction court following a hearing. On appeal, the Petitioner argues that: (1) the State's voir dire and trial counsel's concession to second degree murder during closing argument violated the Petitioner's right to a jury trial and constituted a structural constitutional error; and (2) the Petitioner received ineffective assistance of counsel during voir dire and closing argument. After a thorough review of the facts and applicable case law, we affirm.

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

          Derek K. Smith, Franklin, Tennessee, for the appellant, George A. Stanhope.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Kim Helper, District Attorney General; and Michael J. Fahey, II, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer, J., joined. Thomas T. Woodall, P.J., concurred in the results only and filed a separate concurring opinion.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural History

         In this court's opinion in the Petitioner's direct appeal, this court summarized the facts of the Petitioner's case as the following:

The victim, Lillie Moran, was last seen alive on the afternoon of April 5, 2006. Sammy Ferguson testified at trial that he leased a cow pasture adjacent to the ninety-year-old victim's house in a "secluded area" of Hickman County. On April 5, 2006, Mr. Ferguson spoke to the victim in her driveway around 3:00 p.m. when she returned home from a physical therapy appointment. The victim's neighbor, David Oxman, had driven the victim to the appointment in her car, a tan 1998 Ford Escort station wagon. The victim had a follow-up appointment scheduled with the physical therapist for the next day, but the victim never showed up for the appointment and did not answer her phone when the physical therapist's office called to remind her of the appointment.
At approximately 3:00 p.m. on April 6, 2006, Deputy Levi Mobley of the Hickman County Sheriff's Department (HCSD) responded to "a possible death" call at the victim's home. Deputy Mobley testified that he met Mr. Oxman on a side deck of the house near the carport. According to Deputy Mobley, the victim's car was not in the carport and Mr. Oxman was "somewhat" upset. The victim used a side entrance as the main entrance to her home instead of the front door. Deputy Mobley testified that there were pry marks on the screen door and that it "had been apparently forced open." The inside handle of the screen door was broken off and found lying on a washing machine inside the home. A crow bar from the victim's tool shed was found on a bench in the carport. The victim's phone line had been cut and two small plug-in lights the victim kept on her porch were found in the yard "a fairly good distance from the house."
Deputy Mobley testified that he entered the house with another deputy and found the victim in a first floor bedroom. The victim was lying on the bed and "had trauma to the right side of her head." The victim was clothed and "covered up" to her chest with a sheet. The victim's hands were crossed and resting on her torso. A bloody pillow was propped up on the headboard next to the victim's head. A purse and a nightgown were found lying on the bed next to the victim's body. The victim's bed appeared to have been pushed over "about a foot" and several coins were scattered across the bedroom floor. An empty "coin sorter" was found on the victim's nightstand. Deputy Mobley checked the victim for a pulse and determined that she was dead. Deputy Mobley testified that he did not touch anything else in the bedroom besides the victim's neck and arm.
The evidence at trial established that the [Petitioner]'s grandmother lived on a hill 200 yards from the victim's house. Sometime between 2:00 and 3:00 a.m. on the morning of April 6, 2006, the [Petitioner] pulled into a local gas station driving the victim's car. Tristan Louis Malston testified that he was working at the gas station that morning when the [Petitioner] came in alone. Mr. Malston testified that the [Petitioner] was very quiet that morning. Christopher M. Campbell testified that he was working at the Waffle House in Dickson that morning when the [Petitioner] came into the restaurant by himself around 3:00 a.m. The [Petitioner] left and came back to the restaurant around 7:00 a.m. driving the victim's car. Mr. Campbell testified that he did not have a ride home, so he accepted a ride with the [Petitioner]. Mr. Campbell further testified that he spent the entire day with the [Petitioner] in Nashville and Dickson and that the [Petitioner] had a revolver with him.
The [Petitioner]'s ex-girlfriend, Leandra Smith-Winters, testified that she saw the [Petitioner] at 6:15 a.m. on April 6, 2006, as she was dropping her son off at daycare. According to Ms. Smith-Winters, the [Petitioner] was alone and was driving the victim's station wagon. The [Petitioner] gave Ms. Smith-Winters a ring that morning. According to Ms. Smith-Winters, the [Petitioner] had not had a job since January 2006. The victim's niece, Dorothy L. King, identified the ring the [Petitioner] gave to Ms. Smith-Winters as having belonged to the victim. Ms. King also testified that the victim's station wagon was valued at $3, 500 in April 2006. Ms. Smith-Winters testified that she saw the [Petitioner] two more times that day. The [Petitioner] was still driving the victim's car, but Mr. Campbell was with him when she saw him later on in the day.
At approximately 10:30 p.m. on April 6, 2006, Sergeant Jeff Lovell of the Dickson County Sheriff's Department (DCSD) spotted the victim's car pull up to a pay phone at Tuffy's Market. As the [Petitioner] got out of the car to use the pay phone, Sgt. Lovell drew his weapon and ordered the [Petitioner] to lie down on the ground. Sgt. Lovell ordered Mr. Campbell to exit the car and lie down on the ground as well. Deputy Paul Montgomery of the DCSD handcuffed the [Petitioner] and checked his driver's license to confirm his identity. Deputy Montgomery then placed the [Petitioner] in the backseat of his cruiser and activated the cruiser's audio recording device. At trial, the audio recording was played for the jury. The [Petitioner] told Deputy Montgomery, without any prompting, to "look under the front seat" when he searched the car because there was "a .32 revolver under there." While the [Petitioner] was alone in the cruiser, he stated that he wanted the police to take him to jail so he could call Ms. Smith-Winters and tell her he had been "arrested for murder."
The [Petitioner] was eventually moved from Deputy Montgomery's cruiser to a HCSD cruiser that did not have an audio recording device. Once in the HCSD cruiser, the [Petitioner] started "causing a little bit of a commotion" and motioning for officers to come to the cruiser. Sgt. Carl Hutchinson of the HCSD testified that when he approached the cruiser, the [Petitioner] said that he knew "what this [was] all about . . . [h]omicide." Sgt. Hutchinson went and got Jimmy Barnett, then a detective with the HCSD, to come speak with the [Petitioner]. Mr. Barnett testified that the [Petitioner] repeatedly told him that he knew "what this [was] about." Mr. Barnett eventually asked the [Petitioner], "what" it was all about, and the [Petitioner] responded "homicide." The [Petitioner] then pointed at Mr. Campbell and said that Mr. Campbell "didn't have anything to do with it."
Mr. Barnett testified that the [Petitioner] stated that he had left his grandmother's house the night before and had gone to the victim's house. The [Petitioner] told Mr. Barnett that he cut the victim's phone line with a knife and then knocked on her door to ask if he could use the phone. The victim answered the door and invited the [Petitioner] inside. The
[Petitioner] told Mr. Barnett that the victim was holding a gun when she answered the door. The [Petitioner] asked for a glass of water and sat down in the living room. Eventually, the victim put her gun down on a table. The [Petitioner] told Mr. Barnett that he picked up the gun, and made the victim go into her bedroom and lie down on the bed. The [Petitioner] stated that he put a pillow over the victim's head and shot her twice in the head.
Sgt. Hutchinson testified that he heard most of what the [Petitioner] said to Mr. Barnett and corroborated Mr. Barnett's recollection of the [Petitioner]'s statements. Sgt. Hutchinson also testified that the [Petitioner] said, "I probably f-ked up, didn't I" after he told Mr. Barnett that he shot the victim. All of the officers involved in the [Petitioner]'s arrest who testified at trial stated that they did not tell the [Petitioner] why he was being arrested and did not hear anyone else tell the [Petitioner] he had been arrested for a homicide. Mr. Campbell testified that he repeatedly asked the officers why he was being detained, but none of the officers responded to his questions. However, Mr. Campbell testified that he could not hear what the officers said to the [Petitioner]. Later that night, samples were taken from the [Petitioner]'s hands to test for gun[]shot residue, and the [Petitioner] gave the police his clothes for forensic testing. The next day, the [Petitioner] told Mr. Barnett that he did not know why he killed the victim because she was the only person that was ever nice to him.
A Smith & Wesson .32 long caliber revolver was recovered under the driver's seat of the victim's car after the [Petitioner]'s arrest. Constable Jerry Deal testified that the gun recovered from the victim's car belonged to the victim and that she kept it in her nightstand for protection. Shelly Betts, a forensic scientist with the Tennessee Bureau of Investigation (TBI) and an expert in tool mark and firearms identification, testified that .32 caliber guns were relatively uncommon and "not a very popular revolver." When the revolver was recovered, it had four unfired Winchester .32 caliber cartridges in the cylinder and two empty chambers. Ms. Betts testified that the recovered cartridges contained "copper coated brown nose lead bullets." Police recovered a fired bullet underneath the victim's body when it was moved from the bed. A second fired bullet was found during the victim's autopsy in the sheet her body had been wrapped in.
Ms. Betts testified that the pillow found above the victim's head had two bullet holes in it. Ms. Betts opined that both shots were "contact or near contact gunshots." Ms. Betts also testified that the fired bullets were .32 caliber, "copper coated lead with a round nose." Ms. Betts opined that the fired bullets were "the same type and design" as the bullets found in the unfired cartridges found in the revolver. Ms. Betts also opined that the fired bullets were "consistent with being manufactured by Winchester, " like the unfired cartridges. The fired bullets were too badly damaged for Ms. Betts to make a conclusive determination as to whether they had been fired from the victim's gun. However, there were no dissimilarities between the bullets recovered at the crime scene and bullets test-fired from the gun. Ms. Betts testified that both of the fired bullets had the same "class characteristics" and one bullet had "similar individual characteristics" with the test-fired bullets.
Ms. Betts also testified about the cut to the victim's phone line and the pry marks on the victim's screen door. Ms. Betts opined that the cut to the phone line had been made with a single-blade cutting tool like a knife or a box cutter. Ms. Betts testified that there were pry marks both below and above the handle to the screen door. Ms. Betts opined that the pry marks on the door were made by "a prying type tool" like the crowbar found in the victim's carport. Ms. Betts also opined that the marks were the same size as the crowbar, but she testified that "there were not individual characteristics to link the crowbar to the tool marks on the door." TBI agents searched the victim's house for fingerprints but were unable to find any identifiable prints in this case.
Laura Hodge, a TBI forensic scientist and expert in gunshot residue, testified that the samples taken from the [Petitioner]'s hands were inconclusive for gunshot residue. Ms. Hodge explained that to determine if gunshot residue was present she looked for three specific chemical elements in specific quantities. Ms. Hodge testified that all three of the elements were present in the samples from the [Petitioner]'s hands, especially his left palm, but not in sufficient quantities to say the [Petitioner] tested positive for gunshot residue. Ms. Hodge further testified that gunshot residue was "very fragile" and could easily be destroyed by wiping or washing the affected area. No gunshot residue was found on the [Petitioner]'s clothing. However, three bloodstains were found on the [Petitioner]'s jeans. Two of the stains were a "complete" match with the victim's DNA and the third stain was a partial match.
. . . .
David Brundage testified on behalf of the [Petitioner] as an expert in tool mark and firearms identification. Mr. Brundage opined that the pry marks on the screen door were made by a rounded tool and were inconsistent with the crowbar found in the victim's carport. Mr. Brundage also opined that he "could not positively identify nor eliminate" the fired bullets recovered from the victim's bed as having been fired from the gun found under the driver's seat of the victim's car.
Based upon the foregoing evidence, the jury convicted the [Petitioner] of first degree premeditated murder, two counts of first degree felony murder, theft of property valued at $1, 000 or more but less than $10, 000, and aggravated burglary. The jury acquitted the [Petitioner] of the charge ...

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