Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 19, 2019
from the Circuit Court for Lawrence County No. 34613 Stella
L. Hargrove, Judge
Petitioner, Rachel Kay Bond, appeals the Lawrence County
Circuit Court's denial of post-conviction relief from her
conviction of first degree murder. On appeal, the Petitioner
contends that she was denied the effective assistance of
counsel based on trial counsel's failure to: 1) request a
change of venue; 2) strike three potential jurors; 3)
investigate the existence of text messages stored in the
Petitioner's cell phone; 4) adequately cross-examine a
witness; and 5) challenge the Petitioner's competency.
The Petitioner also alleges that trial counsel was
ineffective because he allowed her to testify. Following a
review of the record and applicable law, we affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Schisler, Lawrenceburg, Tennessee, for the Appellant, Rachel
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Assistant Attorney General; Brent A. Cooper,
District Attorney General; and Gary Howell and Christi
Thompson, Assistant District Attorneys General, for the
Appellee, State of Tennessee.
Everett Williams, P.J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr. and Robert L. Holloway, Jr.,
EVERETT WILLIAMS, PRESIDING JUDGE.
AND PROCEDURAL BACKGROUND
Petitioner was convicted of first degree murder of Mr. Robert
Oscar Davis under a theory of criminal responsibility and was
sentenced to life imprisonment. The evidence presented at
trial established that the Petitioner was in a romantic
relationship with the victim. The Petitioner maintained that
the victim physically abused her, and the State presented
evidence that she asked her friend, Mr. Ricky Houser, to
"get rid of" the victim. Mr. Houser killed the
victim. This court affirmed the Petitioner's conviction
on direct appeal. See State v. Rachel Kay Bond, No.
M2015-01433-CCA-R3-CD, 2016 WL 4548107, at *18 (Tenn. Crim.
App. Aug. 31, 2016). In 2017, the Petitioner filed a petition
requesting post-conviction relief. Following a hearing, the
post-conviction court denied her relief. She now appeals.
court summarized the evidence present at trial as follows:
Benjamin Fisher, general manager at Schaffer's Muffler in
Pulaski, Tennessee, testified that the victim was an employee
at the muffler shop for approximately five and a half years.
Mr. Fisher described the victim as a good and reliable
employee. Mr. Fisher recalled the last time he saw the victim
in May 2013. He said that it was a Thursday evening and the
victim said, "I'll see you in the morning" as
he left but that the victim never arrived at work the
Tim Nolen testified that the victim had been married to his
sister and that he and the victim were "best
friends." Mr. Nolen said that he and the victim were in
daily contact and that the victim "texted
everybody" with his cell phone. Mr. Nolen recalled that
the victim visited his home on Thursday, May 2, 2013, in
Anderson, Alabama after the victim finished work. The victim
remained at Mr. Nolen's home until 2:00 or 2:30 a.m. The
victim left because he was driving a 1968 Super Sport
Chevelle that night and wanted to get the Chevelle "put
up" before it began raining. Mr. Nolen said that the
victim also drove a Chevrolet truck.
Mr. Nolen testified that the victim had planned to return to
Mr. Nolen's residence at 5:30 a.m. to drive Mr.
Nolen's truck to work. The victim lived five or six
miles, a ten-minute drive, from Mr. Nolen's residence.
Mr. Nolen never heard from the victim again after the victim
left in the early morning hours of May 3. Mr. Nolen called
and texted the victim throughout the day but received no
response. At some point, Lawrence County law enforcement
officers contacted Mr. Nolan to ask him questions about his
last interaction with the victim.
Keith Wooten testified that he lived in West Point,
Tennessee. He said that on school mornings he would drive his
nephew to the school bus stop. On the drive to the bus stop
he drove over Chisholm Creek Bridge. On Friday morning May 3,
2013, at 6:30 a.m., as he drove his nephew to the school bus
stop, he noticed a red truck parked in a parking lot area
next to the bridge. Keith Wooten thought it was odd that a
vehicle would be parked there so early in the morning. He
explained that normally trucks parked there to unload
four-wheelers "for the day."
Bobby Wooten, Keith Wooten's father, testified that in
May 2013 he noticed a red truck parked next to the creek near
his home. He said the truck was "completely half
hidden" and not the type of truck that would normally be
in the parking lot. He explained that near the creek were
motorcycle and four-wheeler trails, so trucks that pulled
four wheelers often parked in that area. The red truck he
observed on the morning of May 3, 2013, had "big chrome
wheels" and "road tires" unlike the trucks
that Bobby Wooten normally saw in that parking area. He
recalled that the truck remained in that location for the
entire weekend. When the truck was still there on Monday
morning, Bobby Wooten stopped to inspect the truck. He said
that, other than a flat front right tire, he noticed nothing
unusual about the truck. Bobby Wooten wrote down the license
tag number and asked his son, Keith Wooten, to "report
Adam Brewer, a Lawrence County Sheriff's Department
deputy, testified that his department received a report that
the victim was missing on May 6, 2013. The caller indicated
that no one had been in contact with the victim since May 3,
2013. After confirming this with other relatives and
acquaintances, Captain Brewer issued a "be on the
lookout" ("BOLO") through dispatch. The
victim's vehicle information was also entered into NCIC,
a national database, in the event the victim was stopped in
his vehicle. At some point, dispatch was advised of an
abandoned vehicle in West Point, Tennessee, that was traced
back to the victim.
Captain Brewer testified that the truck was towed to the
impound lot and stored as evidence. He then requested a
locator be placed on the victim's cell phone. Captain
Brewer said an attempt was made but there was no service to
the phone, so either the phone had been turned off or the
phone was in an area with no service. The Sheriff's
Department also made a request to the cell phone provider for
the victim's cell phone records. Captain Brewer reviewed
the records and found that the last contact with the victim
by phone was on Friday, May 3, 2013, at 4:58 a.m. with phone
number [ending in 4741].
Captain Brewer testified that he then began investigating the
person associated with the 4741 number. After learning that
the number was an "Air Voice" number sold through a
second party so that AT&T would be unable to provide
subscriber information, Captain Brewer requested a locator
for the cell phone number. After several attempts, Captain
Brewer obtained a physical address associated with the
number. The address, which was the [Petitioner's], was
located on Second Creek Road in Lawrence County.
Captain Brewer testified that, on the evening of May 8, 2013,
he and Lieutenant Neese went to the Second Creek Road address
to speak with the [Petitioner]. Lieutenant Neese knocked on
the front door while Captain Brewer walked around to the rear
of the house "for safety reasons." Captain Brewer
heard the bolt on the back door rattle and observed Rick
Houser, wearing a motorcycle helmet, exit the residence.
Captain Brewer stopped Mr. Houser and asked what he was
doing. Mr. Houser acted suspiciously and finally answered,
"I'm going to get bread." Due to his behavior,
Captain Brewer asked for consent to search Mr. Houser's
person for weapons. During the search, he found a small
amount of marijuana and detained Mr. Houser at the front of
Captain Brewer testified that the [Petitioner] and her two
children were inside the residence. While he and Lieutenant
Neese spoke to her about the victim's disappearance, she
appeared very nonchalant until she mentioned that the victim
had called her children "bastards." When she spoke
of this, she became angry and "tensed up." While at
the residence, Captain Brewer looked around the backyard and
saw a large shed that had been recently used and noticed
piles of toilet paper as if someone were using the shed as a
bathroom. He explained that he thought this odd because the
residence had indoor plumbing.
Captain Brewer testified that he and Lieutenant Neese
collected both the [Petitioner's] and Mr. Houser's
cell phones. The [Petitioner] confirmed that her cell phone
number was  the number that the phone records indicated had
last made contact with the victim. Captain Brewer testified
that, because the phones were "basic flip phones,"
little information could be gathered from the phones. He sent
the victim's phone and "these" text messages to
the Regional Organized Crime Information Center
("R.O.C.I.C."), an intelligence organization
serving the southeast, for further analysis.
On cross-examination, Captain Brewer testified that he was
familiar with the victim relevant to prior investigations of
drug-related activity. Captain Brewer confirmed that he was
aware of a police report on April 2, 2013, involving the
victim as a trespasser on the [Petitioner's] property.
Captain Brewer confirmed that he was also familiar with Mr.
Houser, a "known drug associate." Captain Brewer
stated that both Mr. Houser and the [Petitioner] were
arrested at the [Petitioner's] residence on drug charges
on May 8, 2013.
Jennifer Dalmida, a Verizon Wireless Executive Relations
Analyst, testified that she also served as record custodian
for Verizon. Ms. Dalmida confirmed that she received a
subpoena from the Lawrence County Sheriff's Department
regarding the records associated with the victim's cell
phone number. Ms. Dalmida said that, in response, she
provided the cell phone records for the victim's cell
phone number, which included sent and received text messages,
the text messages' content, call details, and subscriber
information. The parameter for this information was from May
2, 2013 to May 3, 2013. Ms. Dalmida explained that the
records for each subscriber were kept electronically in the
normal course of business operations.
Carol Gilligan, an AT&T legal compliance analyst,
testified that she received a request from the Lawrence
County Sheriff's Department concerning specific cell
phone records. Ms. Gilligan confirmed that the requested
records were kept in the normal course of business. The two
numbers,  ("4741") and  ("4802"),
requested by the sheriff's department were both accounts
sold through an entity other than AT&T, and AT&T
provided only the service. As such, AT&T had access to
the account activity but not the subscriber names. The two
accounts were not AT&T customers but were using the
AT&T network. Ms. Gilligan said that the time parameter
for the 4802 account was May 6, 2013, to May 8, 2013. The
time parameter for the 4741 account was May 2, 2013, to May
8, 2013, and the information compiled included both voice
calls and text message transmissions. The text message
transmission information did not include the actual text
Kristie Wixson, a Regional Organized Crime Information Center
criminal intelligence analyst, testified that she worked in
the Nashville, Tennessee office. The Lawrence County
Sheriff's Department requested assistance in a missing
person case and, on July 1, 2014, she was assigned to assist
the sheriff's department in the investigation. Lieutenant
Neese provided her with telephone records for the victim, the
[Petitioner], and Mr. Houser. Specifically, he requested cell
tower mapping for the phone records.
Ms. Wixson testified that using the cell phone records and a
mapping system she created a map for the cell phone usage of
the [Petitioner's] phone and Mr. Houser's phone for
May 3, 2013, from 12:00 a.m. to 9:00 a.m. She created a
second map based upon the [Petitioner's] cell phone use
from May 6, 2013, at 12:00 a.m., through May 8, at 12:07 a.m.
She created another map for the [Petitioner's] cell phone
use beginning May 2, 2013, at 8:00 a.m. through May 5 at
11:59 p.m. She created a fourth map showing the victim's
cell phone activity on May 3, 2013, from 12:00 a.m. to 5:10
a.m. The last map Ms. Wixson created showed the combined
activity for the [Petitioner], Mr. Houser, and the
victim's cell phones on May 3, 2013, from 12:00 a.m.
until 5:56 a.m.
Ms. Wixson testified that Lieutenant Neese also provided her
with text messages from the victim's cell phone. Ms.
Wixson said that from this information she compiled the text
message information into a timeline that included the actual
content of the messages.
Nathan Neese, a Lawrence County Sheriff's Department
deputy, testified that on May 7, 2013, Captain Brewer
notified him of a missing person report filed with the
sheriff's department. First, Lieutenant Neese issued a
BOLO to surrounding agencies with a description of the victim
and his vehicle. As a result, another deputy notified
Lieutenant Neese that a truck matching the description
provided in the BOLO had been located near Pinkly Bridge.
Lieutenant Neese and Captain Brewer went to West Point and
confirmed that it was the victim's truck. Lieutenant
Neese recalled that the truck had a flat tire, the right
rearview mirror had been pushed in, and there were leaves
around the window and mirror. He said that the vent window on
the right passenger side door of the truck was open, but the
truck doors were locked. Lieutenant Neese testified that he
had the truck towed to the impound lot for storage pending
further investigation of the missing person report.
Lieutenant Neese testified that he spoke with the
victim's family about the victim's connection to the
West Point area, and he learned that the victim had
"seen a female from that area." Based upon this
information, Lieutenant Neese made contact with Felicia
Fourakre, who had last seen the victim on May 1, 2013, at the
[Petitioner's] residence in Five Points. Deputies then
pursued possible leads related to cell phone records. The
cell phone records indicated that the victim's last
contact by phone was with the [Petitioner].
Lieutenant Neese testified that he also reviewed bank records
in the course of his investigation. In so doing, he found
that the victim's last purchase with his debit card was
made on May 2, 2013, at 5:46 p.m. at a Wal-Mart in Pulaski,
Tennessee. Lieutenant Neese obtained surveillance video from
the Wal-Mart and confirmed that it was the victim who made
the purchase at Wal-Mart on May 2. During this part of the
investigation, Lieutenant Neese also learned of another cash
purchase the victim made at a Walgreen's in Athens,
Alabama, between 7:00 and 8:00 p.m. on May 2. Lieutenant
Neese again spoke with family members to try to ascertain why
the victim would have been in Athens, Alabama, and learned
that some family members, specifically Timothy Nolen, lived
in Anderson, Alabama. Lieutenant Neese met with Mr. Nolen who
provided a statement consistent with his trial testimony.
Lieutenant Neese testified that he went to the victim's
residence and confirmed that an orange Chevelle was parked in
a shed, consistent with Mr. Nolen's statement about the
[Petitioner's] taking the Chevelle home before the rain
began. Lieutenant Neese described the shed where the Chevelle
was parked as "a pretty tight spot" and recalled
that family members told him that the victim was the only one
who knew how to park the Chevelle in the shed due to the
small space. The keys to the Chevelle were found inside the
[Petitioner's] residence on an end table.
Lieutenant Neese testified that, on May 8, 2013, based upon
information gathered from the victim's cell phone
records, he and Captain Brewer went to the [Petitioner's]
residence. He described the [Petitioner's] residence as a
white, vinyl siding house with a wood front porch that sat
"slightly up on a hill." He recalled that there was
a wooden shed located to the back right of the residence and
a second wooden "open-air" shed that sat further
back behind the shed nearest to the residence. A well pump
was located to the left of the back door. Lieutenant Neese
introduced himself to the [Petitioner] and explained that he
was conducting follow-up on a missing person. He recalled
that one of the [Petitioner's] first questions to him
was, "Have you found [the victim] yet?" The
[Petitioner] did not provide any information at the time but
invited the deputies inside her home. While inside, the
deputies found drugs and drug paraphernalia, and, as a
result, the [Petitioner] and Mr. Houser were arrested.
Lieutenant Neese testified that he interviewed both the
[Petitioner] and Mr. Houser at the sheriff's department
following their arrests. After signing a Miranda
waiver, the [Petitioner] gave a statement. Lieutenant Neese
read the statement aloud as follows:
[Q]uestion: What can you tell me about [the victim] missing?
[Answer:] I told Ricky Houser about [the victim] putting his
hands on me again. I told [Mr. Houser] that I wished [the
victim] would just break up with me and stay away from me. I
was unable to make [the victim] stay away from me because I
loved him too much.
[Mr. Houser] said that I did not deserve that and it needed
to be took care of. I did not think [Mr. Houser] meant
harming him or killing him. It's just not what you think
[Mr. Houser] kept calling and checking on me. [Mr. Houser]
was texting me, saying he needed to get ready for [the
victim] to come over. [Mr. Houser] made that statement after
I told [Mr. Houser] [the victim] was coming over.
[The victim] texted me and I was texting him back. We was
talking about watching a porn movie and having sex.
I was peeing in the bathroom and I heard [the victim] pull up
... I heard [the victim] pull up to the house.
While I was still in the house, I heard a loud smack, then
another. And after that, I heard a loud painful moan and I
knew it was [the victim's] voice. Then I heard more loud
smacks over and over again.
I got in the shower, after locking the bathroom door.
[Mr. Houser] was in the house and was calling my name.
[Mr. Houser] came to the bathroom door and said,
"It's done, girl. You don't have to be scared no
more. That mother f**ker won't hit you again."
I asked him, "What did you do?"
And he said, "I took care of it."
I started to lose it and started to cry.
[Mr. Houser] walked away for a little while. Then [Mr.
Houser] came back and started to bang on the bathroom door
and told me I had to get out of the f** king bathroom. He
said, "I got to talk to you."
I opened the door and [Mr. Houser] puts both hands on my
shoulders. I asked him, "What did you do?"
[Mr. Houser] said, "It's okay. You don't have to
[Mr. Houser] kissed me on the forehead and said,
"Don't worry about it."
[Mr. Houser] wanted me to [go] outside with him. [Mr. Houser]
said "Come on, I want you to see this mother ...