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Cartmell v. State

Court of Criminal Appeals of Tennessee, Nashville

May 9, 2018

DEON LAMONT CARTMELL
v.
STATE OF TENNESSEE

          Assigned on Briefs Date: November 14, 2017

          Appeal from the Criminal Court for Davidson County No. 2010-B-1351 J. Randall Wyatt, Jr., Judge

         The Petitioner, Deon Lamont Cartmell, was convicted of second degree murder for the killing of his wife and sentenced to eighteen years. On direct appeal, his conviction and sentence were affirmed. State v. Deon Lamont Cartmell, No. M2012-01925-CCA-R3-CD, 2014 WL 3056164, at *1 (Tenn. Crim. App. July 7, 2014), perm. app. denied (Tenn. Nov. 20, 2014). He then filed a timely petition for post-conviction relief, followed by three amended petitions, alleging ineffective assistance of counsel, prosecutorial misconduct, and cumulative error. Following a bifurcated hearing, the post-conviction court found that the Petitioner's claims were without merit, and we agree. Accordingly, we affirm the order of the post-conviction court denying relief.

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

          Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Deon Lamont Cartmell.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Amy M. Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

          The facts in this matter were summarized in the opinion of this court on direct appeal:

This case relates to the March 16, 2010 shooting death of Shari Monique Cartmell, the [Petitioner's] wife, at the marital home. Nashville Fire Department firemen responded and found the victim lying on the couch unresponsive, not breathing, and without a pulse. She was transported to Vanderbilt Hospital.
Metro Police Crime Scene Investigator Felicia Evans performed a gunshot residue test on the [Petitioner]. At the scene, Investigator Evans found blood transfer on the doorways throughout the house, a nine-millimeter pistol and a paper towel lying on an ottoman, and a cartridge casing beside the ottoman. She said the [Petitioner] wore a dark-colored "hoodie" and jeans and had blood on his clothes, hands, and face.
Metro Police Officer Kenneth Wolfe photographed the crime scene. He identified photographs of blood on the outside door of the house, a large amount of blood on the sofa, blood on the wall to the right of the front door, blood on the inside of the front door and on the door handle, and bloody rags on the floor and on the ottoman. He also found a handgun with blood on it lying on the ottoman and a cartridge casing lying on the floor beside it. He found a trauma plate inside the house, which he said was part of a police-issued bulletproof vest. He said chicken was in the oven and in the sink defrosting. He said that a gun safe was in the master bedroom closet and that handguns, a rifle, and a police-issued shotgun were in the master bedroom.
When Metro Fire Department Captain Michael Sisk arrived at the scene, the [Petitioner] told him that he was in the kitchen when he heard the gun discharge. When the [Petitioner] went with Metro Police Chaplain James Duke to notify the victim's mother of the victim's death, the [Petitioner] told Chaplain Duke that he and the victim were at the house, that they were handling guns, and that she wanted to "dry fire" the gun. The [Petitioner] said that the victim was cooking dinner, that she put the gun down to check the oven, and that he reloaded the gun and went to the bedroom to put up another gun. He said he heard a shot when he was in the bedroom and found the victim lying on the floor when he returned. He told Chaplain Duke that he attempted CPR but was unable to save the victim.
Metro Police Detective Charles Robinson testified that although the call was for an accidental shooting, he questioned whether the shooting was accidental after observing the blood spatter and after hearing the [Petitioner's] statement to the police. The [Petitioner] first said the victim was in the kitchen when he reloaded the weapon but then said she was standing by the couch. The [Petitioner] had blood on his jeans, hands, and face. He was wearing a gray hoodie jacket over a white shirt when the police arrived but was not wearing the jacket at the time of the shooting. Detective Robinson saw blood on the right side of the white shirt, which concerned him because the [Petitioner] stated that the victim was on his left when he bent to get the AR-15 and heard the gun go off. Detective Robinson requested a gunshot residue test be performed on the [Petitioner] and asked him to go to the police station. The [Petitioner] was cooperative, consented to a search of the house, allowed the police to take his clothes and test his hands for gunshot residue, and went to the police station voluntarily. The [Petitioner] allowed Detective Robinson to look at the text messages stored in his cell phone, and Detective Robinson determined that some messages were from Paige Merriweather. The text messages were read to the jury with the date and time they were sent but were not transcribed for the record.
On the day after the shooting, Detective Robinson interviewed the [Petitioner] and recorded his statement, which was played for the jury. When asked about the March 16, 2010 events, the [Petitioner] first told the detective about the victim's discharging a gun accidentally a couple months before the shooting. He said that the victim was "messing around" with the gun, that a bullet was in the chamber, and that she fired it. He said the bullet went through the mattress, the footboard of the bed, and the wall and hit his "subwoofer system" before stopping. The [Petitioner] described the day of the shooting and said that he was reaching for his AR-15 and that the victim was on his left when he heard a "bang" and felt the force of the shot. He said he called 9-1-1, pressed a rag on the wound, and began CPR.
In response to Detective Robinson's question about whether the [Petitioner] and the victim were having marital problems, the [Petitioner] stated, "No, man. It was great." When asked if they argued about bills or had any recent arguments, the [Petitioner] stated, "Well, no, the only, the only problems we ever, would ever be financial. . . ." He described his relationship with the victim's family and said he had issues with her mother. He discussed his texting another woman named Paige the morning before the victim's death and said he met her when he responded to her call to the police after she witnessed a traffic accident. When asked again if there were problems in his marriage, the [Petitioner] said, "No, the last, the last time we got into an argument . . . would have been the last time we turned the mortgage in. Once we turned the mortgage in . . . it went back to normal." He said, "But we, you know, were doing good. I mean . . . it was all happy, man. It was . . . kissing in the morning, hugs at night."
After reviewing bills and letters found in the [Petitioner's] house, Detective Robinson discovered that the couple was in poor financial condition. The [Petitioner] told the police that the argument between him and the victim that was recorded by the cameras at Skyline Medical Center on March 11, 2010, concerned money and mortgage payments. Detective Robinson reviewed the [Petitioner's] cell phone records and interviewed Megan Prisco, Cherelle Bradford, and Sabrina Silverman based on the high volume of telephone calls and text messages exchanged between them and the [Petitioner].
Skyline Medical Center surveillance camera recordings from March 16, 2010, last showed the victim at the nurses' station at 3:48 p.m. Cynthia D. Edge, the director of patient registration, saw the victim on March 16 around 4:00 p.m. in the main admission and registration area. The victim talked until 4:15 or 4:20 p.m. and went to Christine Rogers's office afterward. Ms. Rogers, the emergency room patient access supervisor, said the victim left her office at 4:32 p.m. and was going home to get ready to go out with her friend Stephanie. Steve Rogers, Ms. Rogers's husband, saw the victim outside his wife's office on March 16 at 4:30 p.m. Detective Robinson made eleven trips from Skyline Medical Center to the [Petitioner's] house using three different routes, and the shortest trip was seven minutes.
Detective Robinson testified that the time taken to drive between Skyline Medical Center and the [Petitioner's] house was important to show how long the victim was home. He said that the 9-1-1 call was received at 4:46 or 4:47 p.m. and that witness statements showed that the victim left the hospital around 4:30. He said that according to the [Petitioner's] statement, he went "from being in the bedroom shooting a gun to showing [the victim] how to actually take it apart and reassemble a gun, cooking, watching a movie, which was Training Day." Detective Robinson said that he did not see how the [Petitioner] and the victim could have accomplished everything the [Petitioner] stated when the timeline showed that the victim was only home about ten minutes before the [Petitioner] called 9-1-1.
Ms. Rogers testified that the victim called her one night in 2009 about 9:00 p.m. and asked for a ride from a night club because she was afraid to go home. She did not know why the victim was afraid. She said the victim told her that she and the [Petitioner] were in their apartment playing with a gun and that the [Petitioner] shot through a doorframe into another unit. She said the victim also told her that when she and the [Petitioner] were arguing about her not feeding a pet snake, the [Petitioner] discharged a gun through the bed and out the bathroom window. Ms. Rogers heard the victim tell her friends in the emergency room, though, that she discharged the gun, not the [Petitioner]. Ms. Rogers told the police that she thought the [Petitioner] and the victim were a loving couple, that she did not believe the victim was in danger, and that if the victim was in danger, the victim would have told her.
Metro Police Field Training Officer Mackovis Peebles worked with the [Petitioner] at the end of February 2010. When Officer Peebles asked the [Petitioner] if he was married, the [Petitioner] said that he was but that if he wanted to "go out and see his ho's, " he would tell his wife and play mind games with her. Officer Peebles told the [Petitioner] that he should not do that to his wife because it might be construed as verbal abuse, but the [Petitioner] laughed and joked about it. Officer Peebles overheard a heated cell phone conversation between the [Petitioner] and the victim about bills.
Megan Prisco met the [Petitioner] at a gas station where she worked. They traded telephone numbers in January or February 2010 and exchanged sexual text messages, although both were married. The [Petitioner] visited Ms. Prisco when she worked on the weekends. The [Petitioner] told her that he was married to his high school sweetheart and that they had a house together. He told her the victim wanted everything "top of the line." Ms. Prisco, the [Petitioner], and the victim went to the same high school, and the [Petitioner] told Ms. Prisco that he wished he would have met her first. Ms. Prisco ended the relationship on March 7, 2010, because the [Petitioner] drove by her house in a police car after she asked him not to come to her house. She saw the [Petitioner] once after ending the relationship when he came to the gas station with another officer on March 12, 13, or 14, 2010. She said he looked stressed and told her that he was having problems at home but that "things were going to be taken care of not to worry about it."
Stephanie Lindblom was friends with the victim, worked with her at Skyline Medical Center, and had known her about two years. She said that on the Thursday before the shooting, the [Petitioner] and the victim argued at the discharge desk in the emergency room about a house payment and that the [Petitioner] wanted money from the victim. She said the
[Petitioner] walked into the emergency room and stated that he wanted the "God d--- money" and was tired of playing the victim's "f games." She said the victim was embarrassed and fearful. Ms. Lindlom left to register patients during the argument and received an e-mail from the victim that said, "Don't leave me up here with this nut." After the incident, the victim told Ms. Lindblom that if the [Petitioner] wanted a divorce, "[I]t was his."
Ms. Lin[d]blom noticed the victim's wedding ring was missing in the months before her death and said that the victim was horrified that she lost the ring because she loved it. Ms. Linblom heard the victim talk about accidentally discharging a weapon at her house but said she did not believe the victim because she would not "play around" with guns and would tell the [Petitioner] to put them away.
Antoya Brandon, the victim's sister, testified that the victim and the [Petitioner] were married for three years. She said the victim was familiar with weapons and had been to a shooting range before marrying the [Petitioner]. She knew about the victim's money problems and said the victim was "always broke" and had to borrow money. She noticed the victim's wedding ring was missing in the months before her death. Ms. Brandon said that she visited the [Petitioner] and the victim's house with her two-year-old daughter, that she told the victim to ask the [Petitioner] to remove a gun that was on the ottoman, and that the [Petitioner] responded, "This is my f house and everybody can get the f--- out."
Charlotte Barbour, the victim's mother, testified that the victim's wedding ring was missing in the months before her death. She said that around Christmas 2009, she spoke with the victim about having children and that the victim told her she could not have children with the [Petitioner] because he told her that if she left him, he would kill her, the baby, and himself before he paid child support. Ms. Barbour asked the [Petitioner] if he made the statement, and the [Petitioner] walked away without responding. On the Thursday before the shooting, Ms. Barbour went to the victim's house, saw a hole in the bathroom wall, and asked what happened. The victim showed her a gunshot hole in her mattress. The victim said she did not shoot the gun but did not answer when Ms. Barbour asked if the [Petitioner] shot it.
Ricky Iverson, a patient access manager at Skyline Medical Center, testified that the [Petitioner] called him between 7:00 and 8:00 a.m. on March 17, 2010, and asked whom to contact about life insurance. He said the [Petitioner] wanted to come to the hospital and speak to the victim's co-workers to tell them his side of the story because he claimed the victim's mother had made inaccurate statements. Corey Northern, a Metro Human Resources analyst, testified that the [Petitioner] called him on March 17, 2010, at about 9:30 a.m. to ask about life insurance for the victim and that although the [Petitioner] could have applied for insurance on his wife, he had not.
Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Robert Miles, an expert in gunshot residue, testified that the paper towel found at the crime scene tested positive for a large amount of gunshot residue, which meant it was near a gun when the gun was fired or had come in contact with a recently fired gun. The front of the [Petitioner's] white shirt tested positive for gunshot residue on the right and left sides. The [Petitioner's] jeans tested positive for gunshot residue on the right front pocket. Agent Miles said that gunshot residue could be from shooting a gun or from transfer, that a paper towel used to clean a gun could contain gunshot residue, and that a person cleaning a weapon could have gunshot residue on his shirt and pants.
TBI Special Agent Forensic Scientist Laura Hodge, an expert in gunshot residue analysis, testified that the gunshot residue test performed on the [Petitioner] was inconclusive. She said the victim's gunshot residue test results did not show elements indicative of gunshot residue.
TBI Special Agent Forensic Scientist Terri Arney, an expert in firearms identification, testified that testing could not conclusively determine whether the bullet received from the medical examiner was fired from the Glock handgun found at the crime scene but that the bullet was the same caliber and had the same features he expected to find on a bullet fired from a Glock handgun. He said the cartridge found in the living room was fired from the Glock handgun. He said the bullet and shell casing were both from a nine-millimeter. He said that all the safety features were operating on the Glock handgun found at the scene, that the gun was designed not to fire if dropped or struck, and that the trigger had to be pulled fully to fire, which took six and seven-eighths pounds of pressure.
TBI Special Agent Charles Hardy, an expert in DNA analysis, testified that the swabs taken from the wall, door, hall, and floor indicated blood. The swabs taken from the inside of the gun barrel did not show blood, and although a limited amount of human DNA was found inside the barrel, he was unable to obtain a DNA profile from it. The blood on the wall, floor, front door, hall, paper towel, and the [Petitioner's] shirt matched the victim's DNA.
Dr. John Davis, a forensic pathologist and medical examiner, listed the victim's cause of death as undetermined at the time of the autopsy because he wanted more information. He said the manner of death, whether accidental or homicide, was ultimately a jury question. The victim was twenty-four years old and had a gunshot wound to the right side of her face. The bullet went through the victim's right cheek into her skull and out the back, left side of her head. He said that if the shooter was taller than the victim, the shooter had to shoot from below the victim to create the angle of the wound. He said stippling was found on the victim's face, which helped determine how far the gun was from the skin when it was fired. He requested test patterns of stippling from the gun to determine the distance. He determined the gun was between six and nine inches from the victim's face when it was fired and said it was closer to nine inches.
Dr. Davis testified that it was unlikely the victim fired the gun based on the angle of the wound, the distance between the gun and her face, and the amount of pressure needed to fire the gun but that it was possible the gun was held differently. He said that if the victim held the gun by the slide as the [Petitioner] suggested, her hands would have had lacerations, which were not found. Dr. Davis said that the victim could have moved from the doorway to the sofa after she was shot because she did not have a brain stem injury but that the movement may not have been intentional.
Greg Smith, an insurance agent, testified that the victim had a $23, 000 life insurance policy through her employer, which would double to $46, 000 if her death was accidental. The victim applied for the insurance, not the [Petitioner]. The beneficiary was the [Petitioner], and he submitted an application to receive the payout in May 2010.
Metro Police Sergeant Pat Postiglione took the blood spatter evidence from the crime scene to Jerry Findley, an expert in Statesboro, Georgia. He took most of the victim's clothes, the [Petitioner's] clothes and shoes, a pair of gloves, photographs, the 9-1-1 call recording, the [Petitioner's] interview recording, and the witnesses' statements. He did not tell Mr. Findley his theory.
Sergeant Postiglione walked with Christine Rogers from her office where the victim was seen at 4:30 p.m. on March 16, 2010, to the employee parking lot where the victim was parked. The walk took two minutes and forty seconds. He drove from Skyline Medical Center to the [Petitioner's] house three times, and the drive took approximately 8 minutes. He said the total time it took the victim to walk to her car and drive home was ten minutes and forty seconds.
Sergeant Postiglione obtained the computer aided dispatch (CAD) system history from the [Petitioner's] patrol car. The CAD history showed that the [Petitioner] went to Megan Prisco's address fourteen times between February 14 and March 7, 2010. He said that the [Petitioner] "self-initiated" eight of the fourteen calls and that four of the eight calls were out of his patrol zone.
Jerry Findley, an expert in bloodstain pattern analysis and crime scene reconstruction, testified that the gun had blood transfer stains and that the paper towel had impact stains and gunshot residue consistent with its being used to hold the gun when it was fired. He said the blood stains on the victim's arm indicated she was holding her arm up when she was shot. The victim's left hand had impact stains on the palm meaning her left hand had to be open and exposed to the source of the blood. He said that if the victim was holding out the gun, she would have had impact stains on the underside of her right arm, which she did not have. The [Petitioner] had impact stains on his nose and around his mouth, which showed that he was facing the victim "direct on" at the time of the gunshot. The [Petitioner] had backspatter on the right side of his shirt, which was blood moving toward the source of the force that caused the injury, the gun. He had "swipe stains" on the left side of his shirt that looked like finger marks. Impact stains appeared on the [Petitioner's] left shoe, which showed the shoe was facing the wound as backspatter returned. The impact stains on the [Petitioner's] face and shoes indicated he was facing the "source of entry" at about a forty-five-degree angle. No blood was found in the other rooms of the house, although the [Petitioner] said he took the AR-15 to the bedroom after the shooting.
Mr. Findley saw no evidence that the [Petitioner] performed CPR and no blood evidence to support the [Petitioner's] reaching for the AR-15 when the victim was shot. Mr. Findley's findings did not support any of the [Petitioner's] three stories that he was in the kitchen, in the bedroom, or sitting on the couch when the victim was shot. His findings showed that the victim did not fire the gun. He believed the victim was shot somewhere near the front door, grabbed her face, and moved or was moved to the sofa where she remained until emergency personnel arrived.
The [Petitioner] testified that he and the victim met in high school and started flirting when they worked together at Chuck-E-Cheese. He said that in 2004, he graduated from high school and enlisted in the Marines. He deployed overseas in November 2005 for four months and returned to Nashville to visit family in the spring of 2006. When he was in Nashville, he saw the victim at a mall, and they exchanged numbers. They began talking and started a long-distance relationship when he returned to Camp Lejeune, North Carolina. They became engaged on February 14, 2007, and were married in August 2007. The victim did not move to North Carolina with the [Petitioner] but lived with her mother in Nashville. The [Petitioner] and the victim eventually rented an apartment in Nashville where the victim lived alone while the [Petitioner] remained in North Carolina. The [Petitioner] was honorably discharged from the military in May 2008 for a medical disability and was hired by the Metro Police Department in October or November 2008. He entered the police academy, which lasted around six months and ended in July 2009. The [Petitioner] and the victim bought a house in the fall of 2009.
The [Petitioner] testified that he kept "a lot of firearms" in the house, including personal weapons and three police-issued service weapons. He had a gun safe in the master bedroom closet and kept all his weapons secured if he was not home. He said he kept one gun out and around him and the victim if they were home. He said that he carried a gun everywhere, even when he was off duty, and that the victim knew he always carried a gun. He said ...

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