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Bond v. State

Court of Criminal Appeals of Tennessee, Nashville

September 19, 2019

RACHEL KAY BOND
v.
STATE OF TENNESSEE

          Assigned on Briefs June 19, 2019

          Appeal from the Circuit Court for Lawrence County No. 34613 Stella L. Hargrove, Judge

         The 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.

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

          Amy L. Schisler, Lawrenceburg, Tennessee, for the Appellant, Rachel Kay Bond.

          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.

          John Everett Williams, P.J., delivered the opinion of the court, in which D. Kelly Thomas, Jr. and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, PRESIDING JUDGE.

         FACTS AND PROCEDURAL BACKGROUND

         The 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.

         I. Trial

         This 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 following morning.
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 the truck."
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 the house.
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 content.
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 about.
[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 be scared."
[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 ...

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