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Romero v. State

Court of Criminal Appeals of Tennessee, Knoxville

May 20, 2019


          Session January 24, 2019

          Appeal from the Criminal Court for Knox County No. 109928 Steven W. Sword, Judge

         The petitioner, Bendale Romero, appeals the denial of his petition for post-conviction relief, which petition challenged his 2014 convictions of attempted first degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault on grounds that he was deprived of the effective assistance of counsel. Because the indictment was constitutionally deficient as to the charge of employing a firearm during the commission of a dangerous felony, we vacate that conviction but otherwise affirm the denial of post-conviction relief.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; and Vacated and Dismissed in Part.

          Sherif Guindi, Knoxville, Tennessee, for the appellant, Bendale Romero.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         This case arose from an incident in 2013 in which the petitioner, along with a co-defendant, shot the victim, Nathan Kelso. State v. Bendale Romero, No. E2015-00860-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, June 15, 2016). This court summarized the evidence at trial as follows:

On August 10, 2013, Nathan Kelso drove to Lonsdale Homes in Knoxville for the purpose of exchanging marijuana for crack cocaine. When he arrived at Lonsdale Homes, he saw "the boy Josh," later identified as Joshua Johnson, pointing a gun at two unidentified individuals. Mr. Kelso waited for their confrontation to conclude, and after it had, he approached Mr. Johnson and said, "I don't know what's going on with you and those guys or whatever, but I need something to, you know, to trade off." Mr. Johnson then turned to Mr. Kelso, said, "[F]- that," and shot him in the leg "for no reason." Mr. Kelso asked, "[W]hat the f- is wrong with you[?]" and held up his arm in a defensive posture. Mr. Johnson then shot Mr. Kelso in the arm, and Mr. Kelso fell to the ground. At that point, Mr. Kelso realized there was a second person with Mr. Johnson, later identified as the Defendant. After Mr. Kelso fell to the ground, he heard Mr. Johnson encourage the Defendant to shoot Mr. Kelso in the head. The Defendant pointed the gun at Mr. Kelso's forehead and pulled the trigger, but the gun did not fire. The Defendant then pushed Mr. Kelso back to the ground, fixed the gun, and shot Mr. Kelso in the head. That bullet also passed through Mr. Kelso's hand. Mr. Kelso reported that Mr. Johnson left in a Camaro driven by the Defendant.

Id. The jury convicted the petitioner of attempted first degree murder, attempted first degree murder with serious bodily injury, employing a firearm during the commission of attempted first degree murder, aggravated assault with serious bodily injury, and aggravated assault with a deadly weapon. Id. The attempted first degree murder convictions merged into a single charge as did the aggravated assault convictions. Id. The trial court sentenced the petitioner to an effective sentence of 26 years' incarceration. The sentence for the attempted murder conviction is 20 years with an 85 percent release eligibility. Id. On direct appeal, this court affirmed the petitioner's convictions. Id., slip op. at 11.

         The petitioner filed a timely pro se petition for post-conviction relief. After the appointment of counsel, the petitioner filed an amended petition for post-conviction relief followed by a second amended petition, alleging the ineffective assistance of the petitioner's trial counsel. Specifically, the petitioner alleged that trial counsel failed to apprise the petitioner of all of the charges against him, failed to call certain witnesses at trial, failed to fully investigate in preparation for trial, failed to impeach the victim with certain prior statements, and failed to object to instances of prosecutorial misconduct.

         At the November 16, 2017 evidentiary hearing, the petitioner testified that the State had extended to him a plea offer that provided for a 16-year effective sentence to be served at 85 percent release eligibility percentage, but he rejected that offer and went to trial instead. He stated that he was not fully aware of the charges against him when he rejected the plea offer; specifically, he contended that he did not know that he was charged with employing a firearm during the commission of a dangerous felony because trial counsel never discussed that charge with him. The petitioner read the following from the indictment[1] charging him and his co-defendant, Joshua Johnson: "Attempted first-degree murder, comma, employing a firearm during a dangerous felony, in parenthesis, Johnson only; unlawful possession of a weapon, in parenthesis, Johnson only; and aggravated assault." The petitioner testified that trial counsel did not object to the trial court's reciting the charges of employing a firearm during the commission of a dangerous felony and unlawful possession of a weapon as being against Mr. Johnson only. The petitioner stated that trial counsel informed him at trial that the plea offer was still available but advised him that it was not in his best interests to accept the offer. He asserted that he again rejected the offer because he was still unaware of the firearm charge against him. The petitioner testified that he first became aware that he was facing the firearm charge when, after the close of evidence and during discussion of the jury instructions, the State informed the court that the firearm charge applied to the petitioner as well as to his co-defendant. The petitioner contended that, had he known that he was facing the charge of employing a firearm during the commission of a dangerous felony in addition to the attempted first degree murder and aggravated assault charges, he would have accepted the plea offer.

         The petitioner testified that Tomekian Pennington and Teresa Bowman were prepared to testify in his defense at trial, but trial counsel never called them as witnesses. The petitioner acknowledged that Mr. Pennington's testimony was proffered on the record but never presented to the jury. The petitioner told trial counsel that the victim's cousin, Anthony Kelso, [2] said that the victim admitted that he was trying to rob the petitioner when he was shot, but trial counsel did not call Anthony Kelso as a witness. The petitioner recalled that, during closing argument, the prosecutor "was on her knees in front of the jury" and said "[y]ou know [the victim was] thinking about his four kids" during the shooting.

         During cross-examination, the petitioner testified that trial counsel reviewed discovery materials with him and discussed a plea offer that he would extend to the State. The petitioner recalled telling trial counsel "that if he could give me something at 30 I will plea out." Trial counsel told him that the State had counter-offered 16 years at 85 percent, which offer the petitioner rejected. The petitioner stated that trial counsel showed him the indictment but "never explained it in depth."

         Teresa Bowman, the petitioner's grandmother, testified that she lived in and grew up in the Lonsdale area of Knoxville and that she had known the victim since he was about nine or 10 years old. When describing the victim's reputation in the community, Ms. Bowman stated, "At first he was a good person. . . . Then he got hooked on those drugs, and his life did a 360 turn into stealing and robbing and bullying people just to get a fix, just to get high. He didn't care who he hurt. . . ." She also said that the victim had been known to be violent; he carried a gun and "would beat [people] up and . . . bully them." She continued, "[P]eople feared him out there, because he was big and he would take what he want[ed]. . . . He was a bully." Ms. Bowman had known the victim to be that way for 12 or 13 years.

         On cross-examination, Ms. Bowman testified that she was aware of the petitioner's prior assault charge arising from a fight at school. She was not aware of other instances of the petitioner's criminal conduct. She believed that the petitioner's juvenile probation resulted from his "fighting." She also stated that she believed that the petitioner had smoked marijuana. Ms. Bowman was present at the courthouse during the petitioner's trial, and trial counsel told her that she would be called as a witness.

         On direct-examination by the petitioner, trial counsel testified that, as part of the discovery materials in this case, he received recordings of the victim's interviews with a police officer and recalled "the aggressiveness" with which the victim talked about the petitioner and his co-defendant on the recordings. Trial counsel stated that he could not remember why he did not cross-examine the victim about those statements. Trial counsel recalled that, during trial, he argued that a prejudicial statement from a recording of a 9-1-1 call should be redacted if the call would be played for the jury. Trial counsel inferred that the 9-1-1 caller was the State's witness Michael Tillery and objected to the statement because the 9-1-1 caller identified the shooter as the same person who had previously "kicked him in the head." The State responded that the statement was that the shooter had previously "shot him in the eye." The trial court ruled that the statement was not admissible and must be redacted from the recording.

         Trial counsel stated that he proffered the testimony of Mr. Pennington, expecting Mr. Pennington to testify about an incident in which the victim "tried to bully" the defendant on a prior occasion. Trial counsel believed, however, that if Mr. Pennington were to testify about the victim's being the first aggressor, the State would call Mr. Tillery to testify that the petitioner had previously shot him in the eye. Mr. Tillery had already appeared as a witness for the State, and, during Mr. Pennington's proffered testimony, trial counsel overheard the prosecutor instruct someone to bring Mr. Tillery back to the courtroom. Trial counsel testified that "it would be a better idea for us to leave . . . Mr. Pennington out rather than risk . . . open[ing] the door to a prior aggressive act by [the petitioner]." Trial counsel denied believing that the trial court would permit the redacted statement from the 9-1-1 recording to be admitted as rebuttal evidence; rather, he believed that the State would offer the testimony of Mr. Tillery to rebut Mr. ...

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