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Thomas v. State

Court of Criminal Appeals of Tennessee, Jackson

August 15, 2019

JAVONTE THOMAS
v.
STATE OF TENNESSEE

          Assigned on Briefs July 9, 2019

          Appeal from the Criminal Court for Shelby County No. 14-03018 J. Robert Carter, Jr., Judge

         The petitioner, Javonte Thomas, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of first degree premeditated murder, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

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

          Jason D. Ballenger, Memphis, Tennessee, for the appellant, Javonte Thomas.

          Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer, and J. Ross Dyer, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         This case arose from an incident in which the petitioner shot and killed Quintin Fifer, the victim. State v. Javonte Thomas, No. W2015-01473-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, Aug. 16, 2016). This court summarized the evidence on direct appeal:

[T]he [petitioner], whose brother had apparently been shot by the victim during an earlier altercation, was riding in a car with his brother and Mr. [Darius] Love when Mr. Love and his brother spotted the victim[, ] and Mr. Love saw the opportunity of exacting revenge by killing the victim. . . . [T]he [petitioner], armed with a borrowed weapon, got out of the vehicle when Mr. Love pulled over at the service station, followed the victim's vehicle, approached the driver's side door, and fired multiple shots at the defenseless victim before fleeing the scene and later returning the weapon to the person from whom it was borrowed.

Id., slip op. at 11-12. The jury convicted the petitioner of first degree premeditated murder, and the trial court imposed a sentence of life imprisonment. See id., slip op. at 7. This court affirmed the petitioner's conviction on direct appeal, see id., slip op. at 12, and our supreme court denied permission to appeal, see State v. Javonte Thomas, No. W2015-01473-SC-R11-CD (Tenn. Dec. 15, 2016).

         The petitioner filed a timely, pro se petition for post-conviction relief that has not been included in the record on appeal. After the appointment of counsel, the petitioner filed an amended petition, alleging the ineffective assistance of the petitioner's trial counsel by counsel's failing to procure an expert witness to testify as to the petitioner's mental capacity in support of his motion to suppress a statement he made to police officers and by failing to adequately negotiate a plea agreement.

         At the September 20, 2018 evidentiary hearing, trial counsel testified that "there really weren't negotiations" with the State regarding a plea deal, explaining that this "was a no-deals case and the State never really came with an offer on that." He stated that he discussed a potential plea agreement with the State "a couple of times," but the State was not willing to enter into a plea agreement in this case. Trial counsel stated that it was his usual practice to ask defendants what kind of plea deal they may be willing to accept, but he could not specifically recall whether he had had such a conversation with the petitioner. Counsel said that he attempted to use the fact that the petitioner's brother, Jeremy Thomas, had previously been shot by the victim as a basis to negotiate a plea offer, but the State considered the brother's shooting as "motive for first degree [murder] rather than anything else."

         Trial counsel stated that his defense strategy was to argue that Mr. Thomas and Mr. Love provoked the petitioner into killing the victim and that the petitioner's actions rose only to the level of voluntary manslaughter. Counsel conceded that he "didn't really have a whole lot of facts to support" that theory but stated that he argued that the petitioner's "lower IQ" made him particularly "susceptible to pressure by his older brother and his older brother's friend" and that the petitioner was "trying to impress them, trying to look good, he was easily kind of whipped into a frenzy by them." Counsel stated that he did not present a theory of diminished capacity; rather, he argued the petitioner's mental capacity as a factor in the theory of provocation. He noted one difficulty with this case arose from his not being able to call Mr. Love, a co-defendant, as a witness and not being able to locate Mr. Thomas. Counsel stated that ...


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