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State v. Winters

Court of Criminal Appeals of Tennessee, Nashville

September 30, 2019

STATE OF TENNESSEE
v.
TERRY D. WINTERS

          Assigned on Briefs March 20, 2019

          Appeal from the Criminal Court for Davidson County No. 2016-B-714 J. Randall Wyatt, Jr., Judge [1]

         The defendant, Terry D. Winters, was indicted for and convicted of aggravated kidnapping, aggravated assault, and domestic assault for which he received an effective twenty-year sentence. He now appeals the denial of his motion for new trial wherein he alleged he received ineffective assistance of counsel and challenged a statement made during the State's closing argument. Following our review, we affirm the denial of the motion.

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

          Michael L. Freeman, Nashville, Tennessee, for the appellant, Terry Dewayne Winters.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Glenn Funk, District Attorney General; and Amy Hunter and Jeffrey Jackson, Assistant District Attorneys General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         I. Trial

         This case arises from an incident occurring between the defendant and the victim at a motel room in Davidson County, Tennessee. For his actions, the defendant was charged with aggravated kidnapping, aggravated assault, and domestic assault. Tenn. Code Ann. §§ 39-13-102; -111; -304. After initial counsel withdrew and the trial court appointed subsequent counsel, the defendant proceeded to trial on March 6, 2017. The State presented the following facts for the jury's review.

         Cynthia Johnson, the defendant's fiancée and victim, testified she had been in an "on and off" relationship with the defendant for approximately eight or nine years. In 2016, the victim had recently been diagnosed with COPD and required oxygen.[2] She did not live with the defendant but saw him one to three times per week typically at a friend's or his family's house or a motel. The victim also served as the defendant's means of transportation, as he did not have a car.

         On February 2, 2016, the defendant bought new tires for the victim's car before they rented a motel room. After spending time together in the room, the victim went to sleep around 10:00 or 11:00 p.m. while the defendant watched television. Hours later, at approximately 2:30 or 3:00 a.m., the defendant tried to wake the victim in order to have sex. The victim ignored his advances, but the defendant got "louder and louder." The defendant began to insult the victim so she "jumped up out of the bed and got [her] purse" in an effort to leave the room. The defendant "got in front of the door" and told the victim she "was going to stay there . . . or take him home." The victim, however, did not want to drive the defendant home because she was upset and "just wanted to go home [herself]." As she reached for the doorknob, the defendant began "wrestling" with her. The two pushed each other and "ended up on the ground" for approximately two or three minutes, three separate times. Each time they fell to the ground, the defendant landed on top of the victim and she was unable to move. The defendant would eventually help her up, and the victim would try to exit the room which "just started it all over again."

         During the episode, the victim was scared the defendant "wasn't going to let [her] out" of the room, so she began "yelling for help, " "banging on walls, " and "screaming trying to get out." At one point, the defendant "put his hand over [the victim's] nose and [] mouth, " causing her to lose her breath. The defendant stated, "I'm going to take you out" and that he "didn't care about [the victim's] air." The victim was unable to breathe and told the defendant she "needed to go outside to get some air." At trial, the victim explained she did not believe the defendant intended to obstruct her airway but admitted he did hinder her ability to breathe throughout the struggle, and he knew she suffered from a lung condition that caused her to "lose [her] breath real easy."

         At the conclusion of the struggle, which lasted approximately one and a half hours, the victim was "still screaming." She reached for the telephone in the room, but the defendant blocked her and told her to "[s]it down until I get my clothes on." The victim complied and waited for the defendant to dress as he expected her to drive him home. She still did not want to drive the defendant home, explaining "at that point [I] didn't want to be in that predicament again, so . . . when he finally opened the door I pushed my alarm on my car, that is the only thing I could think to do." The victim's car was parked in front of the motel room, and as the alarm went off, she exited the room and began "banging on people's doors and windows." The defendant followed behind the victim, but he did not restrain her. The victim saw a car belonging to her friend, Lashanda Bloodworth, and began yelling "Randy, " Ms. Bloodworth's fiancé's name. Ms. Bloodworth and her fiancé heard the victim and let her in their room where the victim called 9-1-1 at approximately 4:00 or 4:30 a.m. The victim was "terrified" and "just afraid [the defendant] was going to get in and do more, you know, he was going to get, he was going to come get me." A recording of the 9-1-1 call was played for the jury. During the call, the victim stated she feared the defendant was going to smother her to death and kill her. At trial, the victim again explained that at the time of the incident she was scared and was unsure what the defendant might do to her.

         Officer Blake Giles of the Metropolitan Nashville Police Department arrived and photographed the victim's injuries. The next day, the victim went to the hospital, and her cousin took photographs of additional bruises that "popped up" overnight. The photographs depicting the victim's injuries were entered into evidence and showed bruising to her cheek, neck, face, breasts, arms, forearm, right wrist, and underneath her arms. One photograph also showed a cut on the victim's cheek and another showed the defendant's fingerprint under her left ear.

         The victim explained she still cared for the defendant and spoke to him on a regular basis including the night before trial. In communicating with the defendant prior to trial, the victim acknowledged he "sometimes" encouraged her not to cooperate with the police or the district attorney's office. She admitted she did not want to proceed with the case against the defendant, noting they "both want him to get out."

         During cross-examination, the victim expressed her belief that she did not think the defendant was trying to keep her in the motel room against her will. She stated the defendant might have just left the room "if [she] would have just sat down and hushed, " but again noted at the time she was "terrified." The victim also stated the defendant had previously been diagnosed with bipolar disorder for which he was on medication and was to avoid alcohol. According to the victim, the defendant "was drinking" prior to the incident and had not taken his medication. The victim stated, "[w]hen [the defendant] is drinking he just goes berserk and he just I don't think understands what he is doing hisself (sic)." The victim did not believe the defendant kidnapped her on February 2, 2016. She clarified some of her bruises resulted from the defendant trying to stop her from falling[3] and explained the defendant covered her mouth and nose during the struggle to prevent her from screaming. At the conclusion of her testimony, the victim admitted she still feared the defendant.

         Officer Giles responded to the motel after the victim and an anonymous caller dialed 9-1-1. He spoke with the victim and arrested the defendant at the scene. Officer Giles described the victim as "[v]ery upset, very distraught and emotionally kind of just anxious, nervous, scared." He completed a domestic violence supplemental form which included a statement from the victim and documented her physical and emotional condition. A copy of the form was entered into evidence and detailed injuries to the victim's arms and chest, including bruises, scratches, and cuts. Additional photographs of the victim's injuries were also entered into evidence.

         The victim's friend, Lashanda Bloodworth, testified she and her fiancé were staying at the same motel as the victim and the defendant on February 2, 2016. At approximately 4:00 a.m., Ms. Bloodworth woke up to a car alarm and the victim banging on doors and yelling her name. She assumed the victim saw her car parked in front of the motel and called her name as a result. Ms. Bloodworth and her fiancé allowed the victim to enter their room where the victim called 9-1-1. Ms. Bloodworth's fiancé stood outside their room until the police arrived. Inside the room, the victim was "upset, crying, [and] nervous." She told Ms. Bloodworth the defendant "had hit her" and the victim "had bruising all over her chest area."

         After the State rested its case, the trial court denied the defendant's motion for judgment of acquittal. The defendant waived his right to testify and did not put on any additional proof. The jury convicted the defendant as charged on all counts, and the trial court immediately proceeded with a bifurcated hearing on count 3 in order to determine the number of prior domestic assault offenses the defendant had committed. During the hearing, the defendant pled guilty to domestic assault, third offense. At a subsequent sentencing hearing, the trial court imposed concurrent sentences of 20 years for aggravated kidnapping, 10 years for aggravated assault, and 90 days for domestic assault, third offense.

         II. Motion for New Trial Hearing

         On June 5, 2017, trial counsel filed a premature notice of appeal which was stayed by this Court. By June 16, 2017, new counsel began representing the defendant and a timely motion for new trial was filed and later amended.[4] In the amended motion, the defendant alleged numerous reasons as to why he received ineffective assistance of counsel at trial, including that trial counsel failed to: prepare him for trial; "put forth any defense or attempt to mitigate any evidence brought by the [S]tate;" "properly interview any witnesses;" request a bench trial; pursue a "mental health" defense by not investigating or "presenting evidence of [the defendant's] mental deficiencies at trial;" "request to have the defendant examined in order to determine if he was mentally able to appreciate the nature of the charges against him and whether the defendant was able to assist in his defense either at trial or leading up to trial;" "explore other possible defenses;" request funds for and obtain expert witnesses; cross-examine Ms. Bloodworth; "investigate [the] [d]efendant's drug and alcohol history;" interview the defendant's brother; "put forth expert testimony as to the [d]efendant's state of mind when he consumed alcohol;" "put forth a defense of intoxication as to the charge of aggravated kidnapping;" request a jury instruction "providing that kidnapping is a specific intent crime;" "offer any assistance to the [d]efendant at all, " barring two objections.

         Separately, the defendant also challenged a statement made during the State's closing argument. According to the ...


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