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Fritts v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 24, 2018


          Assigned on Briefs April 24, 2018

          Appeal from the Circuit Court for Anderson County No. B5C00377 Donald Ray Elledge, Judge

         Petitioner, Robert Edward Fritts, was convicted of first degree murder and received a sentence of life without the possibility of parole. See State v. Robert Edward Fritts, No. E2012-02233-CCA-R3-CD, 2014 WL 545474, at *1 (Tenn. Crim. App. Feb. 10, 2014), perm. app. denied (Tenn. Sept. 19, 2014). Petitioner's conviction was affirmed on direct appeal. Id. Petitioner subsequently sought post-conviction relief on the basis of a multitude of allegations of ineffective assistance of counsel. The post-conviction court denied relief after a hearing. After a complete review, we affirm the judgment of the post-conviction court.

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

          William F. Evans, Jacksboro, Tennessee, for the appellant, Robert Edward Fritts.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dave S. Clark, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.



         Factual and Procedural Background

         Petitioner was convicted after a jury trial of the March 6, 2007 first degree premeditated murder of his mother-in-law, Teresa Busler. Id. In order to adequately address the issues presented in this appeal from the denial of post-conviction relief, a brief discussion of the facts as introduced at trial is necessary. Petitioner and his wife, Dawn Fritts, lived with the victim and the victim's husband, Steve Busler. Id. Mrs. Fritts was the daughter of the victim. Mrs. Fritts had a child from a previous relationship, and the victim had custody of the child, who was six years old at the time of the murder. Petitioner and Mrs. Fritts had a volatile relationship. Mrs. Fritts was staying with a friend at the time of the murder. On the day of the murder, Mr. Busler was at work from early that morning until around 5:00 p.m. When he left for work, Petitioner, the victim, and the victim's granddaughter were at home. When Mr. Busler returned home, the house was unlocked and the victim's body was in the bedroom where there was blood "all over the bed and walls." Id. at *2. Mr. Busler ran next door and called 9-1-1. Id.

         According to Mr. Busler, the only weapons in the home were a hatchet and a small knife which he ordinarily kept under the bed in the master bedroom. The victim died as the result of a brutal beating, including a large "chop-type injury" to the back of the head caused by a "hatchet, an axe, or a machete." Id. The victim suffered at least eleven different blows to the head, bite marks, and "hickey[s]" and the cause of death was "multiple sharp and blunt force injuries to the head" that could have been caused by a hatchet. Id. at *2, 12.

         Crime scene officers processed the bloody scene, taking note that it appeared that someone had tried to clean up the crime scene because towels, a "red substance" and some "hard objects" that appeared to be portions of bones were found in the washing machine. Id. Petitioner voluntarily came to the sheriff's office for an interview prior to his arrest. Id. at *5. Investigators noticed stains on Petitioner's clothing. Petitioner's clothing was collected and tested. The bloodstains on Petitioner's clothing matched the victim's blood. Petitioner gave a statement in which he claimed that he was called in to work at Arby's that morning and started to walk to work before he decided that he did not want to go to work and hitched a ride to the mall. Id. at *6-7. When Petitioner left the house, he left his wife's child in the home with the victim. He claimed that they were both asleep when he left the house. In a second statement, Petitioner admitted that he lied about being called in to work but denied any involvement with the death of the victim. Id. at *8.

         Evidence was introduced at trial that Petitioner was a fan of the Insane Clown Posse band and member of a gang associated with the band. Petitioner had a tattoo of a "hatchet man, " a symbol associated with the band and gang, on his arm. Id. at *10. Detective Thomas Walker, an expert on gangs, testified that Petitioner was a member of the Insane Clown Posse gang because he displayed behavior consistent with gang members. Id. Gang members often painted their faces white. White spray paint was found on a shirt belonging to Petitioner and on the face of the deceased victim.

         Petitioner's journal contained song lyrics from Insane Clown Posse songs as well as song lyrics written by Petitioner. Dustin Dalton, a former cellmate, testified that Petitioner wrote song lyrics about "hacking" out someone's brains and told him that he "snapped" when he killed the victim and when he "came to, she was dead." Id.

         During the investigation, Mr. Busler identified a hatchet found in the attic of the home as the hatchet that was ordinarily kept under the mattress of his bed. Id. at *3. Petitioner's shoe print matched a partial bloody print found in the home and the bloodstains on Petitioner's pants matched the blood of the victim. Id. at *13. Blood from the hatchet was consistent with the victim's blood. Petitioner did not testify at trial. Id. at *14.

         On direct appeal, Petitioner argued that the trial court improperly allowed the State to introduce expert testimony regarding his gang affiliation and that the evidence was insufficient to support the conviction. Id. at *1. This Court disagreed, determining that Petitioner's "affiliation with the I[nsane] C[lown] P[osse] gang was relevant and admissible because it assisted the jury in identifying him as the perpetrator and established his motive for the offense. Id. at *16 (citing State v. Orlando Crayton, No. W2000-00213-CCA-R3-CD, 2001 WL 720612, at *3-4 (Tenn. Crim. App. June 27, 2001), no perm. app. filed). This Court also examined the evidence and determined that it was sufficient to support the conviction. Id. at *19-20.

         Petitioner filed a pro se petition for post-conviction relief on September 4, 2015, alleging that he received ineffective assistance of counsel and that "other grounds" entitled him to post-conviction relief. The post-conviction court appointed counsel and an amended petition was filed. In the amended petition, the following were raised as grounds for relief: (1) trial counsel was ineffective for failing to object to the introduction of numerous photographs; (2) trial counsel was ineffective for failing to object to the introduction of several exhibits; (3) trial counsel was ineffective for failing to object to the testimony of inmate Dustin Dalton; (4) trial counsel was ineffective for failing to object to the testimony of Robin Ward; (5) trial counsel was ineffective for failing to obtain a handwriting expert to examine the journal; (6) trial counsel was ineffective for failing to object to the introduction of the journal; (7) trial counsel was ineffective for failing to object to the introduction of a photograph of the victim and her husband; (8) trial counsel was ineffective for failing to object to prosecutorial misconduct during the State's closing argument; (9) trial counsel was ineffective for failing to call a forensic scientist to testify for the defense; (10) trial counsel was ineffective for failing to elicit testimony from Dawn Fritts that she attempted to gain access to the house from the back door after the victim was killed; (12) trial counsel was ineffective for failing to pursue a theory of second degree murder; (13) trial counsel was ineffective for failing to present evidence of mental state at the sentencing hearing; (14) petitioner's due process rights were violated; and (15) the cumulative effect of the errors resulted in an unfair trial.

         The post-conviction court held a lengthy hearing on the petition for relief. At the hearing, trial counsel testified that he was appointed to represent Petitioner at trial. Trial counsel was licensed to practice law in 1994 and devoted 95 percent of his practice to criminal defense. At the time of the post-conviction hearing, trial counsel was death penalty certified and had handled over twenty-five murder trials.

         Trial counsel filed several motions prior to trial, including a motion to exclude photographs. Trial counsel recalled the introduction of several pictures of the victim's body in which "brain matter" was clearly visible. Trial counsel explained that in a typical case, there would be a "conference prior to trial to address the issues of the photographs." In fact, trial counsel thought that there was a hearing prior to trial in Petitioner's case as well as a conference at the bench during trial with regard to several sets of photographs, though he "d[id] not have an independent recollection" about the specifics at the time of the hearing. Trial counsel maintained that the defense strategy was that Petitioner "did not commit this offense." Trial counsel went on to explain that this trial strategy led to "no white-washing the fact that this victim was brutally murdered."

         Trial counsel "vaguely" recalled the introduction of the 9-1-1 tape into evidence. On cross-examination, trial counsel recalled that the 9-1-1 tape was actually beneficial to the defense because Mr. Busler was "frantic" during the beginning of the tape and "calm" toward the end of the tape. According to trial counsel, the 9-1-1 tape helped to make Mr. Busler look suspicious. Trial counsel admitted that the crime scene videos were introduced into evidence. Trial counsel reiterated that Petitioner "was insistent on his defense that he was not the culprit or did not murder this particular woman in this particular case." Trial counsel also explained that in his opinion the videos showed that "the TBI did such a sloppy job . . . that there was maybe some hope of casting doubt on some aspects of the validity of their investigation." Trial counsel went on to explain that the video showed that there were a "number of cats . . . crawling all over the body during the course of their investigation" and "spatters of blood either from the actual crime . . . or from the cats walking on top of the victim."

         Trial counsel remembered that a number of jail house "snitches" were subpoenaed to testify against Petitioner at trial. However, he did not "have an independent recollection" of the specifics of the testimony of those witnesses, specifically Dustin Dalton's testimony. Trial counsel explained that the record would show that he attempted to attack Mr. Dalton's credibility by impeachment.

         Trial counsel did not recall the testimony of Robin Ward, a coworker of the victim who testified that the victim was afraid of Petitioner. Trial counsel recalled the introduction of a journal into evidence at trial and how it indicated Petitioner's interest in the Insane Clown Posse as well as notes that appeared to be written back and forth between Petitioner and his wife. Trial counsel explained that he "did a lot of research" on the band. Trial counsel explained that the lyrics to their songs were "graphic" and that the journal contained song lyrics from actual songs as well as lyrics that Petitioner appeared to have "drafted himself along the line of the themes portrayed in [I]nsane [C]lown [P]osse songs in this notebook." Trial counsel maintained that the journal and Petitioner's "involvement as it relate[d] to the [I]nsane [C]lown [P]osse . . . had nothing to do with the killing of [the victim]." With regard to the journal, trial counsel could not recall which witnesses attributed which pages of the journal to Petitioner. Trial counsel admitted that he did not object to Special Agent Andy Corbitt reading portions of the journal into evidence and was unable to articulate a reason for which he could have objected at trial.

         Trial counsel admitted that he did not object to the introduction of the photograph of the victim while she was alive, noting that it was typical for courts to allow this type of photograph in order to "give some historical perspective to the jury." Trial counsel did not have a valid reason to object to the testimony.

         Trial counsel admitted that he did not object during the prosecutor's closing argument but explained that he was familiar with the prosecutor involved in the case and her penchant for drama. Trial counsel explained that it was customary for him to "advise juries [during closing argument] that [he] should have taken more drama classes when [he] was in college" and that the arguments of the lawyers were not evidence.

         Trial counsel maintained that the trial strategy employed during the entirety of the trial was that Petitioner did not commit the crime. In fact, Petitioner insisted that he was not responsible for the victim's death and was not there when the victim died. Therefore, trial counsel explained that testimony from Terry Labor, a crime scene expert, explaining that he could not determine the length of time the victim was on the bed prior to getting to her final resting position was irrelevant because Petitioner maintained that he did not commit the crime.

         Trial counsel recalled testimony at the trial about the back door to the residence being propped or forced open about one week after the murder. Trial counsel testified that he did not "think that issue was relevant" to the defense and therefore did not pursue who was suspected of breaking into the house.

         Trial counsel explained that he contemplated other defense strategies at trial, including pursuing a second degree murder conviction. However, trial counsel explained that in order to pursue a second degree murder conviction Petitioner would have to acknowledge that he was the perpetrator and "he was never willing to do that." Trial counsel mentioned second degree murder in his closing argument in order to give the ...

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