Court of Criminal Appeals of Tennessee, Knoxville
Session January 24, 2019
from the Criminal Court for Knox County No. 109928 Steven W.
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.
R. App. P. 3; Judgment of the Criminal Court Affirmed in
Part; and Vacated and Dismissed in
Guindi, Knoxville, Tennessee, for the appellant, Bendale
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
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
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.
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.
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 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.
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,  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.
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."
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
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.
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
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. ...