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Clark v. State

Court of Criminal Appeals of Tennessee, Nashville

June 19, 2018


          Assigned on Briefs April 18, 2018

          Appeal from the Criminal Court for Overton County No. 2010-CR-6 David A. Patterson, Judge

         An Overton County jury convicted the Petitioner, Kevin Clark, of two counts of first degree premeditated murder, two counts of aggravated assault, one count of reckless endangerment, one count of aggravated arson, and one count of abuse of a corpse. The trial court sentenced him to an effective sentence of two consecutive life sentences. This court affirmed the trial court's judgments on appeal. State v. Kevin Clark, No. M2912-01744-CCA-R3-CD, 2013 WL 6145812 (Tenn. Crim. App., at Nashville, Nov. 21, 2013), perm. app. denied (Tenn. Apr. 8, 2014). The Petitioner filed a petition for post-conviction relief in which he alleged, as relevant on appeal, that the post-conviction court erred when it denied his petition for post-conviction relief because: (1) he was deprived of his right to an impartial jury because of an improper communication between a juror and a witness; and (2) he received the ineffective assistance of counsel at trial. He further contended that the post-conviction court erred when it: (1) did not limit the scope of cross-examination of the Petitioner's witness to questions relevant to the post-conviction petition; and (2) did not consider all the issues presented in his petition for post-conviction relief. After review, we affirm the post-conviction court's judgment.

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

          Josh Hoeppner, Kingsport, Tennessee, for the appellant, Kevin Clark.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Bryant C. Dunaway, District Attorney General; and, Mark Edward Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Camille R. McMullen, JJ., joined.



         I. Facts

         A. Trial

         This case arises from the killing of the Petitioner's mother and brother on May 13, 2009, deaths for which he was indicted and convicted. In our opinion affirming the Petitioner's convictions, we summarized the facts presented at trial as follows:

The [Petitioner's] convictions relate to events that transpired on May 13, 2009. At trial, the [Petitioner's] ex-wife, Susan Beth Clark, testified that in May 2009, she and the [Petitioner] lived in a house on property that adjoined property owned by the [Petitioner's] mother, Vida Clark, one of the homicide victims in this case. She recalled that when she returned home from work at approximately 5:30 p.m. on May 12, 2009, "[t]here was a fence across the driveway that had yellow bags on it." She said that no secondary driveway provided access to her home and that the driveway blocked by the fence was the only way to her house. In consequence, the sight of the fence made her "physically ill, " and she was forced to "drive up a field" to get to her house, nearly damaging her car. Susan Clark said that she did not immediately wake the [Petitioner], who was sleeping because he worked third shift, but instead set about cleaning the kitchen. At one point, she went "to the back field" to scrape out scrap food and overheard Vida Clark, Roy Clark, the other homicide victim, and Sharon Miller "whispering and snickering and laughing." Susan Clark testified that she believed that the trio wanted her to wake the [Petitioner] and tell him about the fence, so she did not do it. She said that, instead, she woke him up at 9:00 p.m. as she usually did. At that point, she told him about the fence, and the [Petitioner] responded, "'You're kidding.'" He then telephoned Jerry Clark, and after he finished his conversation, he said, "'I can't worry about it. I've got to go to work.'" Susan Clark maintained that the [Petitioner] was not mad or upset but that he "just seemed real puzzled."
According to Susan Clark, when the [Petitioner] returned from work in the morning, he told her that he needed to mow a neighbor's yard before the rain and that he could not "'deal with this today.'" She said that she told him that they could discuss the matter of the fence with her brother, an attorney, when she finished her shift at work. The [Petitioner] agreed, and she left for work. Susan Clark testified that the [Petitioner] telephoned her at 6:35 a.m., and he was "not in his right self." The [Petitioner] said to her, "'It's been took care of. I've called the fire department and the police department.'" He then said, "'They're not going to take me alive.'" Terrified, Susan Clark telephoned Jerry Clark, "and he said he didn't want to go up there." She then telephoned the [Petitioner's] friend and pastor, Kevin Phillips, and asked him to investigate.
During cross-examination, Susan Clark testified that the [Petitioner] made no threats toward Roy and Vida Clark. She said that Roy Clark, the [Petitioner's] younger brother, lived with Vida Clark. She said she had not seen the [Petitioner] fight with Roy Clark, but she had seen Roy Clark "stare [the Petitioner] down" and had seen Roy Clark tell Vida Clark "that [the Petitioner] was staring at him, when in fact [the Petitioner] wasn't staring at him."
The [Petitioner's] older brother, Jerry Clark, testified that the [Petitioner] had lived next door to their mother for "eight or ten years" on property that Jerry Clark had sold to the [Petitioner]. Their younger brother, Roy Clark, lived with their mother. On May 12, 2009, the [Petitioner] telephoned Jerry Clark and told him that Vida and Roy Clark had placed a fence across his driveway. He said that he suggested that the [Petitioner] complete a driveway that he had started to build on another part of the property to avoid trouble. The [Petitioner] said that he should be permitted to use the existing driveway and indicated an intent to hire a lawyer to investigate the issue. After Jerry Clark said, "Well, do whatever you need to do, " the [Petitioner] responded, "'I believe I'm just going to take care of this myself.'" Jerry Clark said that he encouraged the [Petitioner] a second time to use the other driveway, and the [Petitioner] again said he would "take care of it."
Jerry Clark testified that, on the following morning, Susan Clark telephoned him, and, in response to her call, he went to his mother's house. When he arrived, "[i]t was in flames." He said that he also saw his mother lying in the driveway. Jerry Clark said that no one else was around, so he "[k]indly got [him]self out of sight" until emergency personnel arrived.
During cross-examination, Jerry Clark acknowledged that the driveway he had suggested the [Petitioner] use was not finished. In the rain, that driveway would not have been passable. He acknowledged that, as executor of his mother's estate, he had sued the [Petitioner] for $1 million.
The video-recorded deposition of State witness William Brockette and an accompanying transcript were tendered as exhibits over the [Petitioner's] objection. In the deposition, Mr. Brockette testified that he had worked with the [Petitioner] on the third shift sanitation crew at the Perdue Farms chicken processing plant in Monterrey. On May 12, 2009, the [Petitioner] told Mr. Brockette about an altercation with the [Petitioner's] brother "about a fence [that] had been put up across the driveway." The [Petitioner] told Mr. Brockette that "if that fence was still up when he got off work that morning and went home, that he was going to kill him." Mr. Brockette said that he did not take the threat seriously, believing the [Petitioner] was "just blowing off some steam." He said that the [Petitioner] was "very frustrated" about the fence. Mr. Brockette said that he told the [Petitioner] to telephone an attorney to deal with the situation and provided him with the name of an attorney. The [Petitioner] told Mr. Brockette that "it just burns him up . . . how his brother acts." According to Mr. Brockette, the [Petitioner] said that his mother had "always taken up for Roy, and Roy . . . can't do anything wrong, and she's always got excuses for things that he does." Mr. Brockette said that "[i]t seems like there was a . . . lot of frustration from past years, you know, that had boiled up to . . . what happened." Eventually, the men began to work, and the [Petitioner] did not mention the fence again. Mr. Brockette remembered that the [Petitioner] left before 5:00 a.m. on the following morning, explaining that the [Petitioner] had intended to buy a weed-eater from Mr. Brockette but forgot the weed-eater in Mr. Brockette's truck. Mr. Brockette said that when he saw that the weed-eater was still in his truck, he tried to call the [Petitioner], but the [Petitioner] did not answer.
On May 13, 2009, the [Petitioner's] mother, Vida Clark, telephoned 9-1-1 and reported that her son had come to her residence at 141 Hassler Road in Overton County and had shot "both" of them. She told the 9-1-1 operator her arm "is about blowed off" and then made no other sound. The operator dispatched police to the scene.
Near that same time, neighbors Jewel Belle Melton and Paul Walker saw smoke coming from the residence at 141 Hassler Road. Ms. Melton testified that she was on her front porch when she saw 141 Hassler Road "go shebang." She said that she thought the house "probably caught on fire, blowed up or something." Ms. Melton recalled that shortly before the house burned, the [Petitioner] telephoned her and asked if she knew "that fence was up down there." She said that she told him that she did and said that Vida Clark had told her about the fence. She testified that the [Petitioner] said, "God bless you, " and hung up the phone. Mr. Walker testified that he was awakened by gunshots at approximately 6:30 or 7:00 a.m. He said it sounded as though the shots had come from Vida Clark's residence. He said he telephoned a neighbor, who said that he had not heard any shots. Mr. Walker said that he later heard more shots. He then went to make coffee, and when he returned to the window, he saw smoke coming from Vida Clark's residence.
Overton County Sheriff's Department Sergeant Robert Garrett and Deputy Derrick Ledbetter responded to Vida Clark's 9-1-1 call. Parking several hundred yards away from the residence due to the nature of the call, the officers used tree cover as they made their approach to the house because they had been advised that the shooter was still on the scene. Sergeant Garrett testified that as they approached the house, he encountered some individuals who told him there was a body near the house. Sergeant Garrett observed the body lying three or four feet from the house, and after clearing the area, he and Deputy Ledbetter dragged the body away from the flames. He said that the house was fully engulfed in flames.
After setting up a perimeter and waiting for other officers, Sergeant Garrett and those officers made their approach toward the [Petitioner's] house. As they approached, they saw the [Petitioner] standing in the doorway of his back porch with a camouflage colored rifle in his hand. The [Petitioner], who appeared to be wearing a field jacket, ordered the officers to fall back. They initially fell back but then took another path toward the [Petitioner's] house. Sergeant Garrett recalled that as he began to cross a fence, he heard "what sounded like two .22 shots." Deputy Ledbetter "came across and was turning to cover for" Deputy John Mackey when Sergeant Garrett heard a "louder boom, that came from a larger caliber." At that point, Deputy Ledbetter "grabbed his shoulder and hit the ground and said, 'I've been hit.'" Sergeant Garrett removed Deputy Ledbetter's shirt and examined his chest underneath the ballistics vest and observed "a large amount of redness on his shoulder area."
Sergeant Garrett testified that after a period of negotiating with his pastor, the [Petitioner] surrendered and "was apprehended peacefully." When officers entered the [Petitioner's] house, they observed "a small kitchen-like table, and it had two guns on it pointing out the window." Officers observed a camouflage jacket on the floor.
Deputies Mackey and Ledbetter confirmed Sergeant Garrett's recitation of the day's events. Deputy Ledbetter added that Vida Clark's body was quite hot and that when he "grabbed her, it was just warm and like, you know, just real jelly feel."
Agent Greg Whittaker of the State of Tennessee Bomb and Arson Unit testified that he was called to investigate the fire at 141 Hassler Road. He said that after a brief period of consultation with the other officers on the scene and fellow agent Craig Frost, the larger scene was divided into three crime scenes: 141 Hassler Road, 135 Hassler Road, and the female victim's body. Agent Whittaker began his investigation by walking around the fire "trying to develop fire patterns, and looking at the damage to the residence to determine where the fire could have possibly originated." As he circled the residence, he saw "numerous shotgun shells located on the outside of the residence." After this preliminary examination, he began to process the scene "from the area of less damage to the area of the greatest damage." The right side of the residence bore the most damage. As he conducted his investigation, he created a video of the scene that was played for the jury.
Agent Whittaker said that he found the bodies of a human and a dog in the kitchen area of the burned home. The body had suffered severe fire damage. Agent Whittaker determined that the fire originated on the right side of the house. He said that "an unusual burn pattern on the exterior of the residence" was consistent with the use of an accelerant to start the fire.
At the [Petitioner's] residence, officers recovered "gasoline found in some quart jars, along with some foam-type products commonly associated with maybe some type of incendiary device itself." Based upon his investigation, Agent Whittaker concluded that the fire was "an incendiary fire. It is a set fire." He said that "[t]here was no way" that the fire could have started at its point of origin "other than being set." No other possible sources of the fire existed.
Tennessee Bureau of Investigation ("TBI") Agent Steve Huntly responded to a call from the Overton County Sheriff to investigate the crimes on Hassler Road. Agent Huntley said that he headed the investigation and took a primarily administrative role. Agent Huntley recovered the Ruger 10/22 and Winchester pump-action 12-gauge shotgun from the [Petitioner's] residence. He also collected the [Petitioner's] jacket for testing and found "shot shells" and one slug in the pocket. Agent Huntley took possession of those items collected by other agents during the investigation at 141 Hassler Road. After officers finished processing the three scenes, Agent Huntley went to the medical examiners [sic] office, where he collected shotgun pellets recovered from Vida Clark's arm and from Roy Clark's abdomen. He also collected the [Petitioner's] clothing and boots from the jail. Agent Huntley took all of the collected evidence to the TBI laboratory for testing.
TBI Agent Billy Miller testified that he was called to assist Agent Huntley in the investigation. At the Hassler Road scene, Agent Miller manned a table where evidence was processed as it was collected. After arson investigators finished examining the inside of the 141 Hassler Road residence, he completed the exterior processing of that scene. During that processing, Agent Miller discovered "a casing from a 12-gauge spent round" on the right side of the crime scene, another on the left side, and other partially-intact 12-gauge shell casings on the ground. He also found the "skin" to a metal door that bore a "gash to the right of the doorknob." There were also holes in the doorknob itself as well as holes in a dent in the door. Forensic examination established that the shells had been fired from the shotgun recovered from the [Petitioner's] residence.
TBI Agent and Firearms Identification Expert Steve Scott testified that he examined a 12-gauge shotgun and a .22-caliber rifle taken from the [Petitioner's] residence as well as a number of "shotshell" cases and .22-caliber cartridge cases. He said that the birdshot pellets obtained from the victims at autopsy were "consistent, or within the size and weight specifications of" those shotshells he determined had been fired by the 12-gauge shotgun. He also examined a window screen and determined that a hole in the screen was caused by a shotgun blast with the muzzle of the gun aimed less than five feet away from the screen.
TBI Special Agent and Forensic Scientist Randall Curt Nelson testified that he analyzed three vials of liquid obtained from the [Petitioner's] residence and determined them to be "gasoline-range products." Forensic analysis of the [Petitioner's] jacket, boots, and clothing "revealed the presence of an evaporated gasoline range product." Testing also revealed the presence of an evaporated gasoline-range product on a piece of pipe foam taken from the [Petitioner's] residence. During cross-examination, Agent Nelson admitted that he could not quantify the amount of the substance that was on any of the items.
TBI Special Agent and Forensic Scientist Robert T. Miles, III, testified that he examined the [Petitioner's] jacket, boots, and clothing for the presence of gunshot residue. He found the residue on all three items.
Doctor Thomas Deering, the forensic pathologist who performed the autopsies of Vida and Roy Clark, testified that Roy Clark's body had "been burned to a point that portions of the body had started to disintegrate because of the burning." In fact, the feet had been burned off the body completely and part of the skull had burned away, exposing Roy Clark's brain. In addition, "the body had also been injured by a shotgun wound." Based upon the location of the wound and the pellets inside Roy Clark's body, Doctor Deering determined that Roy Clark was shot in the back left flank. Pellets from the shotgun blast lacerated Roy Clark's spleen, left kidney, liver, diaphragm, pancreas, and "the mesentery of the intestines, which is where the vessels run to support all of the intestines." Doctor Deering said that the absence of soot from Roy Clark's airways established that he did not breathe the smoke from the fire. Additionally, the level of carbon monoxide in his blood was akin to that of a heavy smoker but not at a level consistent with his being alive during the fire. Doctor Deering determined that the cause of Roy Clark's death was a shotgun wound to the abdomen.
Doctor Deering testified that Vida Clark suffered "at least two, and maybe stray pellets from more than two" shotgun wounds. In addition, she had "thermal injuries" to her head, torso, legs, and right forearm. A shotgun wound to the back of the left side of her neck injured her vertebrae and spinal cord, and "some of the pellets exited, and they came out her mouth, knocking out the teeth, lacerating the lips and the face around the mouth." The second entrance wound was on the back of the left arm, and it followed a downward trajectory. Doctor Deering said that Vida Clark also had a number of "separated pellet holes, kind of scattered across the back." He said that these wounds could have come from the blast to her arm or from another blast altogether. Doctor Deering characterized the wound to Vida Clark's neck as lethal. He said that it would have been impossible for Vida Clark to call 9-1-1 after suffering that wound because it nearly severed her spinal cord and did sever the left vertebral artery as well as fracture her jaw, break her teeth, and seriously injure her lips and tongue. He said ...

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