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Rogers v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 23, 2018


          Assigned on Briefs December 20, 2017

          Appeal from the Criminal Court for Rhea County No. 16878 J. Curtis Smith, Judge

         The petitioner, Roy Len Rogers, appeals the denial of post-conviction relief from his 2010 Rhea County Criminal Court jury convictions of first degree premeditated murder, second degree murder, and reckless endangerment, for which he received a sentence of life imprisonment. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

          M. Keith Davis, Dunlap, Tennessee, for the appellant, Roy Len Rogers.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Michael J. Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

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



         The Rhea County Grand Jury charged the petitioner with one count each of first degree premeditated murder, felony murder, and attempted first degree murder, arising out of the murder of the victim, Gregory Keith Brown, and the attempted murder of the petitioner's ex-wife, Vanessa Collett. Following a jury trial, the petitioner was convicted as charged of first degree premeditated murder and was convicted of the lesser-included offenses of second degree murder and reckless endangerment. The trial court merged the first and second degree murder convictions and imposed a mandatory life sentence, to be served concurrently with a sentence of 11 months and 29 days for the reckless endangerment conviction. This court affirmed the convictions and sentences on direct appeal. See State v. Roy Len Rogers, No. E2011-02529-CCA-R3-CD (Term. Crim. App., Knoxville, Sept. 23, 2013), perm. app. denied (Term. Apr. 11, 2014).

         The evidence adduced at the petitioner's trial established that the petitioner and Mrs. Collett met in October 2006 and married two months later. Id., slip op. at 2. Because the petitioner "was very controlling and threatening from the start, " the brief marriage ended in March 2007, and Mrs. Collett and her daughter, Ciera Bennett, moved in with Mrs. Collett's mother for a short time before moving into an apartment. Id. Following the separation, the petitioner called Mrs. Collett "sometimes . . . hundreds of [times] a day, " both prior to and after Mrs. Collett had changed her telephone number, and the petitioner would often drive by Mrs. Collett's residence, even going so far as to knock on the door of Mrs. Collett's mother's residence. Id. Mrs. Collett eventually contacted the police, who, after numerous calls to her apartment, advised Mrs. Collett to seek an order of protection. Id., slip op. at 2-3. Although Mrs. Collett did obtain an order of protection, the petitioner continued his harassment and even threatened Mrs. Collett during a telephone call, "saying that 'if he couldn't have [her, ] no one else could." Id., slip op. at 3.

         Having met with an attorney and believing that her divorce paperwork was being processed in April, Mrs. Collett met the victim on June 8, 2007, unaware that the divorce papers were not actually filed until June 15. Id. When Mrs. Collett met the victim, he had already learned about her from the petitioner. Id. Mrs. Collett and the victim began dating, which prompted the petitioner to call and text the victim multiple times a day, demanding to know the status of the victim's relationship with Mrs. Collett. Id. According to Mrs. Collett, the victim instructed the petitioner to stop contacting him. Id.

         While Mrs. Collett and the petitioner were married, Mrs. Collett was aware that the petitioner "owned quite a few guns and ammunition and would often shoot at targets in the backyard." Id., slip op. at 2. Following their separation, the petitioner followed Mrs. Collett on several occasions, "including to and from church." Id., slip op. at 3. Mrs. Collett had filed reports with the police to document these incidents of "stalking." Id.

         On the evening of Saturday, July 28, 2007, Mrs. Collett and Ms. Bennett were watching television in their apartment when they heard the sound of their windchime; a domestic violence counselor had advised Mrs. Collett to place a windchime on her door to alert her to an intruder. Id. Mrs. Collett testified that Ms. Bennett looked through the door's peephole and stated, '"Mama, it's Len.'" Id. Mrs. Collett called 9-1-1 and reported a prowler but did not tell the 9-1-1 operator that the prowler was the petitioner. Id. When police officers arrived at her home, the petitioner was gone. Id.

         The following morning, Mrs. Collett and Ms. Bennett attended church and returned in the evening for a second church service. Id. Following the evening service, the victim met Mrs. Collett at her apartment, and the pair went to dinner in Cleveland with Ms. Bennett and Ms. Bennett's boyfriend. Id., slip op. at 3-4. After dinner, the foursome visited Mrs. Collett's son. Id., slip op. at 4. During these events, the petitioner called the victim's cellular telephone "three or four times, " but the victim ignored the calls. Id. After returning Ms. Bennett's boyfriend to his residence, the trio returned to Mrs. Collett's apartment between 11:15 and 11:30 p.m. Id.

The victim, an electrician, was leaving to go out of town the next day, so he had packed a suitcase. He had previously decided to spend the night with Mrs. [Collett] because he was "worried with everything going on[.]" Mrs. [Collett] went into the bedroom to show the victim where to put his suitcase and to help him pick out his clothes for the following day. The victim's .380 handgun, which was holstered, was lying on a bedroom chair at that time. The victim had brought the handgun to give to Mrs. [Collett] for her protection. While Mrs. [Collett] was standing beside the victim in her bedroom, she heard a "pop" and "felt ... a burning on [her] left hand and the side of [her] face." She saw blood drip onto the victim's hand, and the victim fell to the floor. Upon realizing that the victim had been shot, she ran to her daughter's room to get the phone in order to call 911. Mrs. [Collett] initially reported that the victim had shot himself.
Mrs. [Collett] testified that the [petitioner] had threatened to kill her at least twice, that he had said to Mrs. [Collett's] sister that Mrs. [Collett] "was as good as dead, " and that in the past, he had threatened Mrs. [Collett] with a gun. According to Mrs. [Collett], the [petitioner] did not call her anymore after the victim had been shot.
Ms. Bennett, [who was] eighteen at the time of trial, confirmed the many incidents of stalking, harassment, and repetitive phone calls by the [petitioner] against her mother. Ms. Bennett also heard some of the threats the [petitioner] made to her mother. According to Ms. Bennett, the [petitioner] would call and say, "Dead"; her mother would then ask, "What are you saying?"; and the [petitioner] would respond, "D-E-A-D." The [petitioner] also called Ms. Bennett's phone on a number of occasions, prompting her to change her number. Ms. Bennett confirmed that she saw the [petitioner] outside their apartment on the night before the shooting when alerted by the windchimes.

Id., slip op. at 4 (internal footnote omitted).

         Mrs. Collett's mother testified that, during the time in which Mrs. Collett and Ms. Bennett were living with her following the separation, the petitioner, on at least eight occasions, would "wake her up every morning by ringing the doorbell and leaving notes on the door, " that she had to disconnect her home telephone because of the petitioner's incessant calls, and that the petitioner would "follow them while they were out." Id., slip op. at 4-5. Mrs. Collett's sister, Dottie Hawkins, testified that the petitioner had once contacted her to inform her that he "was on his way to kill" Mrs. Collett. Id., slip op. at 5. Ms. Hawkins immediately contacted the police, and police officers responded to Mrs. Collett's residence and escorted her from the apartment. Id. Ms. Hawkins testified that she resembled Mrs. Collett and that she had once borrowed her vehicle. Id. While driving Mrs. Collett's vehicle, the petitioner attempted to run her off the road, apparently mistaking Ms. Hawkins for Mrs. Collett. Id. Ms. Hawkins testified that the petitioner had once threatened to "use" a weapon he was holding on her and that the petitioner once told her "that he wanted her dead because she 'looked like' her sister." Id. Ms. Hawkins estimated that the petitioner had contacted her between 100 to 150 times to make threats against Mrs. Collett and that the petitioner had also threatened the life of Ms. Bennett. Id. Ms. Hawkins testified that she was married to Terry Janow and that she and her husband were in bed asleep at the time of the shooting. Id. Mrs. Collett's friend, Janice Franklin, testified about five or six instances when the petitioner had stalked them while they were together, including an instance when the petitioner had followed them from church. Id. Ms. Franklin was also present with Mrs. Collett on three or four occasions in which the petitioner called Mrs. Collett. Id.

         Rhea County Sheriffs Department ("RCSD") Detective Chris Hall discovered a bullet hole in Mrs. Collett's bedroom window and a nine-millimeter shell casing on the ground outside the window. Id. Due to a gap in the window covering, Detective Hall had an unobstructed view into Mrs. Collett's bedroom from outside. Id. Detective Hall also noticed an area near the window where "moss 'was mashed down'" in a way that indicated '"that someone had been standing right there at the edge of the window.'" Id., slip op. at 5-6. Approximately 100 feet from Ms. Collett's apartment building, Detective Hall located a set of tire tracks with "three visible longitudinal stripes" and '"fresh skid marks' where it appeared that the 'vehicle had dragged the underside, . . . like the vehicle had backed out, or came out and bottomed out.'" Id., slip op. at 6. Detective Hall testified that insufficient detail in the tracks rendered a positive identification of the vehicle impossible. Id.

         RCSD Deputy Gerald Brewer measured the distance between Mrs. Collett's apartment and the petitioner's residence as between 7.9 and 8.1 miles depending on the route taken. Id., slip op. at 5. When Deputy Brewer drove the most direct route at the posted speed limit, it took him approximately 10 minutes, but by increasing his speed to 10 to 15 ...

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