Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs April 24, 2018
from the Circuit Court for Anderson County No. B5C00377
Donald Ray Elledge, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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
Timothy L. Easter, J., delivered the opinion of the court, in
which Alan E. Glenn and Robert H. Montgomery, Jr., JJ.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
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
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.
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.
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
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."
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
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.
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.
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.
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."
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."
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.
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
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.
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.
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.
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
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 ...