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Thomas v. State

Court of Criminal Appeals of Tennessee, Jackson

May 21, 2018

FREDERICK WENDELL THOMAS
v.
STATE OF TENNESSEE

          Assigned on Briefs March 13, 2018

          Appeal from the Criminal Court for Shelby County No. 12-00917 J. Robert Carter, Jr., Judge

         The petitioner, Frederick Wendell Thomas, appeals the denial of post-conviction relief from his 2013 Shelby County Criminal Court jury conviction of first degree murder, for which he received a life sentence. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm.

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

          Matthew Charles Gulotta, Memphis, Tennessee (on appeal), and James E. Thomas, Memphis, Tennessee (on appeal and at hearing), [1] for the appellant, Frederick Wendell Thomas.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         The Shelby County Grand Jury charged the petitioner with one count each of first degree premeditated murder and employing a firearm during the commission of a dangerous felony. Following a jury trial, the petitioner was convicted as charged of first degree murder. The trial court imposed a sentence of life imprisonment and dismissed the firearm charge. This court affirmed the conviction and sentence on direct appeal. See State v. Fredrick Thomas, No. W2013-02762-CCA-R3-CD (Tenn. Crim. App., Jackson, May 6, 2015), perm. app. denied (Tenn. Aug. 13, 2015).

         The evidence adduced at the petitioner's trial established the following:

[The petitioner] and the victim had been unhappy in their relationship in the days and weeks leading up to their final argument. On the evening of the victim's death, [the petitioner] and the victim got into an argument. [The petitioner] told the victim that she should call the police and that they were both going to die. The victim hysterically called 911; the operator heard the victim scream and heard the children begging [the petitioner] not to shoot their mother. [The petitioner] took his gun from its holster and repeatedly shot the unarmed victim and then turned the gun on himself. When police arrived, [the petitioner] was holding a weapon. Testing confirmed that this was indeed the gun that murdered the victim. The jury heard the evidence and chose to disregard [the petitioner's] theory that the crime was borne out of passion.

Id., slip op. at 6.

         On January 12, 2016, the petitioner filed, pro se, a timely petition for post-conviction relief, alleging, inter alia, that he was deprived of the effective assistance of counsel. Following the appointment of counsel and the amendment of the petition, the post-conviction court conducted an evidentiary hearing on February 9, 2017.

         At the evidentiary hearing, trial counsel testified that he had been retained to represent the petitioner at trial but that he had been appointed to handle the petitioner's appeal. Trial counsel stated that he had not sought the services of an investigator because the case was "pretty straightforward" in that the petitioner "was alleged to have shot his wife in the presence of his two daughters, and then turned the gun on his head and shot himself." Although trial counsel was unable to show the necessity of an investigator, he did seek and was granted the funds for a neuropsychologist. Trial counsel noticed that, when he spoke to the petitioner, he possessed an "absent glazed stare" and had "very delayed speech, " so ...


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