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Garrett v. State

Court of Criminal Appeals of Tennessee, Nashville

April 26, 2018


          Session Date: February 14, 2018

          Appeal from the Criminal Court for Davidson County No. 92-B-961 Seth Norman, Judge

         In 2003, a Davidson County jury convicted the Petitioner, Claude Francis Garrett, of first degree felony murder. On direct appeal, this court affirmed the Petitioner's convictions. See State v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL 3262933, at *1 (Tenn. Crim. App., at Nashville, Dec. 1, 2005), perm. app. denied (Tenn. May 1, 2006). This court denied the Petitioner's subsequent petition for post-conviction relief, Claude F. Garrett v. State, No. M2011-00333-CCA-R3-PC, 2012 WL 3834898, at *1 (Tenn. Crim. App., at Nashville, Sept. 5, 2012), perm. app. denied (Tenn. Feb. 25, 2013), following which he filed a petition for a writ of error coram nobis that is the subject of this appeal. The trial court issued an order summarily dismissing the petition. We affirm the trial court's judgment.

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

          James A. Simmons, Hendersonville, Tennessee, for the appellant, Claude Francis Garrett.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.



         I. Facts

         This case arises from the Petitioner lighting his residence on fire after locking the victim, his girlfriend, in a utility closet. The Petitioner was indicted for first degree felony murder and a Davidson County jury convicted him as indicted. His conviction was vacated on appeal when this court determined that the State had withheld exculpatory evidence. Claude F. Garrett, 2012 WL 3834898, at *1. The Petitioner was tried a second time and again convicted and sentenced to life in prison. Claude Francis Garrett, 2005 WL 3262933, at *1. The Petitioner filed direct appeals following both his first and second trial, as well as filed two petitions for post-conviction relief and appealed those judgments. As a result, this court has filed four separate opinions in this matter and summarized the facts in each one. See State v. Claude Francis Garrett, No. 01C01-9403-CR-00081, 1996 WL 38105 (Tenn. Crim. App. Feb.1, 1996); Claude Francis Garrett v. State, No. M1999-00786-CCA-R3-PC, 2001 WL 280145 (Tenn. Crim. App. March 22, 2001); State v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL 3262933 (Tenn. Crim. App. Dec.1, 2005), perm. app. denied (Tenn. May 1, 2006); Claude F. Garrett v. State, No. M2011-00333-CCA-R3-PC, 2012 WL 3834898, at *1 (Tenn. Crim. App., at Nashville, Sept. 5, 2012), perm. app. denied (Tenn. Feb. 25, 2013). In the interest of judicial efficiency, we will include excerpts from the procedural history of the case and recitation of the facts, relevant to the issues the Petitioner raises in this appeal, contained in this court's most recent opinion affirming the denial of the Petitioner's second post-conviction petition as it pertains to the Petitioner's second trial:

The Petitioner's conviction for first degree murder arose from a charge that on February 24, 1992, he set fire to the Davidson County home that he shared with the victim, Lori Lance. The victim, who was the Petitioner's girlfriend, was found by firefighters behind a closed door inside a utility room in the rear of the house. She died from smoke and gas inhalation. The State's evidence showed that the utility room door was latched from the outside and that an accelerant was used to start the fire.
The Petitioner originally was convicted by a jury in 1993 of first degree felony murder and sentenced to life imprisonment. The Petitioner's conviction was affirmed on direct appeal. He subsequently filed for post-conviction relief, alleging that the State had withheld exculpatory evidence. On appeal from the trial court's denial of post-conviction relief, this Court determined that the State, in fact, had withheld exculpatory evidence, and we vacated the Petitioner's conviction and sentence and ordered a new trial. At his second trial, in 2003, a jury again convicted the Petitioner of first degree felony murder, and he was sentenced to life imprisonment. This Court affirmed the conviction on direct appeal.
On April 17, 2007, the Petitioner filed a pro se petition for post-conviction relief, which was amended by appointed counsel on April 6, 2010. The amended petition, which incorporated the pro se petition by reference, set forth three principal grounds for post-conviction relief: (1) that new scientific evidence established that the Petitioner was innocent of the offense for which he was convicted; (2) that the Petitioner received ineffective assistance of counsel at his second trial; and (3) that the trial court abused its discretion in allowing the State's expert witness, James Cooper, to testify.
After an evidentiary hearing held August 30, and October 13, 2010, the post-conviction court denied the petition, and the Petitioner now appeals. On appeal, the Petitioner's sole argument is that he received ineffective assistance of counsel at his second trial. From our review of the Petitioner's appellate brief, we discern three facets to his ineffective assistance of counsel claim: (1) that trial counsel failed to present evidence that in the ten years between the first and second trials, the methods by which the State's expert witness Cooper reached his conclusion of arson had been discredited by the scientific community; (2) that trial counsel failed to advance the defense theory of an accidental fire by not calling the treating physician, Dr. Robert Roth, as a witness regarding the burn patterns on the bodies of the Petitioner and the victim; and (3) that trial counsel failed to move for a mistrial when the State and the State's witnesses referenced the Petitioner's prior trial.
A more thorough summary of the facts adduced at trial can be found in this Court's opinion on direct appeal. In the interest of clarity and conciseness, we will limit our recitation of the facts below to those relevant to the issues the Petitioner raises on appeal.
. . ..
James Cooper testified that he had retired as an agent of the United States Department of Treasury Bureau of Alcohol, Tobacco and Firearms (ATF). As an ATF agent, he had been a certified fire investigator and a fire-cause and origin specialist. Because local authorities had requested that he assist in investigating the fire that killed the victim, he inspected the house on the evening of February 24, after the fire department had washed the flooring with a booster hose. He opined that the washing did not obstruct or hamper his observation of the burn pattern. He concluded that the fire began in the front room. He found no evidence of an electrical or other accidental cause of the fire. A kerosene heater found in the bedroom was not the cause of the fire. He discovered a saturation of kerosene in the kitchen. The utility room door was closed during the fire. Mr. Cooper testified that [Metro Fire Department Captain] Otis Jenkins told him that he had "had to use two hands to slide the bolt on the latch to the other side to open the door."
Mr. Cooper testified that he collected material from beneath the baseboard in the front room because liquid spilled in the floor would typically run under a baseboard and because the flooring beneath the baseboard was free of foot traffic occurring during and after the firefight. Also, he found a "V" pattern on the baseboard, which to him was "like a red flag waving at you, " indicating an accelerated fire. Mr. Cooper presented a number of pictures and slides of the fire scene. He opined, "[T]his was a deliberately set fire, arson. Somebody went into the house, and their design, their intent, was to spread the fire from the front room to the back where the victim was."
Defense counsel engaged Mr. Cooper in a rigorous cross-examination, during which the witness testified that the kitchen floor contained "[q]uite a bit of water, " that a portion of the liquid on the bedspread was water, and that he relied upon Detective Miller's report of his interviews of the firefighters and did not interview them personally other than to talk with Otis Jenkins. Mr. Cooper did not see the house before the booster-hose cleansing and did not see the front-room furniture in its pre-fire position. He insisted, however, that the flooring in the front room evinced a "pour pattern, " indicating that a liquid accelerant had been poured in the floor. He admitted that polyester from furniture could melt onto the floor and simulate a pour pattern but maintained that he could distinguish a pour pattern from a polyester meltdown. He admitted that one photograph showed that the latch bar was dark, as if it was coated in carbon, which might indicate that the bar was not inserted into the latch housing during the fire.
For purposes of this opinion, we supplement our prior summary of Cooper's testimony with the following relevant facts. During cross examination, trial counsel asked Cooper to describe "flashover."[1] Cooper explained that flashover occurs when "everything in [a] room reaches its combustible ignition." As a fire in a room grows, superheated gases rise until they become trapped by the ceiling and begin to bank down towards the floor. Eventually, the "whole room will be in fire, from the ceiling down to the floor. That is a flashover." Cooper acknowledged that the living room in this case appeared to have been fully involved in fire. Cooper also acknowledged that flashover can occur with or without the use of an accelerant and that the radiant heat caused by flashover can create burn patterns on the floor because the heat ignites the floor.
Trial counsel asked Cooper whether he could distinguish burn patterns on a floor caused by radiant heat from those created after pouring and igniting an accelerant on the floor. Cooper answered:
[R]adiant heat normally, normally, will burn, coming from the ceiling down, uniformly, even. A pour pattern will be irregular and into the floor[, ] into the wooden material. But the radiant heat can, also, indicate a pour pattern if the air movement changes. As an investigator you have to realize that. And that's why you have to be careful not to jump the gun. I am satisfied in front of that door, inside the front door, is radiant heat. I am satisfied in the center of the living room, near that window, there is a pour pattern.
Trial counsel asked Cooper on what scientific basis he formed his opinion that a pour pattern existed on the living room floor. Cooper replied that he used his experience and training in determining the presence of a pour pattern. Cooper elaborated:
I have set fires . . . pouring things. I have spilt [sic] things, to see the difference in an accidental spill and a deliberate pour. I have talked to other investigators, where they call radiant heat arson. They call it a pour pattern. Through my training, I can make that distinction from pour pattern versus radiant heat. Now radiant heat can be irregular. It all depends on what is going on inside the interior of that building at the time.

          When asked about the possibility of error in his analysis, Cooper responded:

I don't know. I mean, all I can testify to is, I've done pours. I've done accidental spills. I have been on another fire fatality where another investigator called radiant heat a pour pattern, and I actually said, it is radiant heat. Just through my training and experience.
. . . [I]f I'm proven wrong I will admit I am wrong. But on this one, no sir. I was there. I saw it with my eyes. And, I know the difference in radiant heat and a pour pattern, sir.

         Trial counsel then asked Cooper whether he performed his fire investigations using the scientific method, which trial counsel defined as "defining a problem, collecting relevant data, and then analyzing that data and applying it to the problem." Cooper replied that he did so in this case. ...

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