Session June 4, 2019
from the Criminal Court for Shelby County No. 09-01312 James
M. Lammey, Judge.
Petitioner, Dearick Stokes, was denied post-conviction relief
from his convictions for felony murder and attempted
especially aggravated robbery and his effective life
sentence. On appeal, the Petitioner alleges that trial
counsel was ineffective for failing to: (1) interview and
subpoena four eyewitnesses who identified another individual
as being present at the crime scene; (2) investigate and
adequately cross-examine a police officer regarding the crime
scene; (3) investigate or present rebuttal witnesses
concerning admissions allegedly made by the Petitioner; (4)
obtain and review the victim's cellular phone records;
(5) investigate and discuss the case with the Petitioner; and
(6) properly investigate a witness for the State and request
Jencks material relative to him. The Petitioner
additionally contends that either the State committed a
Brady violation by failing to provide a
witness's supplemental statement to trial counsel or, if
it was provided, counsel's failure to use it during
cross-examination was ineffective assistance of counsel.
Furthermore, the Petitioner argues that he received
ineffective assistance of appellate counsel because appellate
counsel should have asserted on direct appeal that the trial
court (1) improperly denied his motion for a mistrial due to
juror intimidation, and (2) committed plain error by allowing
a witness to testify as to how he discovered the
Petitioner's real name. After a thorough review of the
record, we discern no error and affirm the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
E. Thomas (at hearing) and Vicki M. Carriker (on appeal),
Memphis, Tennessee, for the appellant, Dearick Stokes.
Herbert H. Slatery III, Attorney General and Reporter; Robert
Wade Wilson, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Gavin Smith, Leslie Byrd, and
Stephanie Johnson, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Everett Williams, P.J., delivered the opinion of the court,
in which Thomas T. Woodall and Timothy L. Easter, JJ.,
EVERETT WILLIAMS, PRESIDING JUDGE.
AND PROCEDURAL HISTORY
appeal arises from the Petitioner's convictions of felony
murder during the perpetration of an aggravated robbery and
attempted especially aggravated robbery. According to the
State's proof at trial, on the afternoon of July 13,
2008, the Petitioner and an accomplice shot and killed the
victim, Bryan Hatchett, during an attempted robbery. The
Petitioner filed a direct appeal, in which he challenged the
sufficiency of the evidence "because the proof showed
that the killing of the victim occurred during an attempted
aggravated robbery, rather than an aggravated robbery, as
alleged in the indictment." See State v. Dearick
Stokes, No. W2010-02622-CCA-R3-CD, 2012 WL 1656918, at
*1 (Tenn. Crim. App. May 10, 2012), perm. app.
denied (Tenn. Aug. 15, 2012). This court rejected the
Petitioner's challenge and denied relief. Id. at
*4. This court gave the following synopsis of the underlying
facts of the case on direct appeal as follows:
On July 13, 2008, the [Petitioner] asked Kenneth Richardson,
his partner in a "dope" business, to let him have
the nine-millimeter pistol that the two men shared, telling
him that he was "fixin' to go get some money."
That same evening, the [Petitioner] called Richardson and
told him that he had shot someone and injured his leg by
jumping out of a moving vehicle. A short time later, the
[Petitioner] sold the pistol to Richardson.
At approximately 4:12 p.m. on July 13, 2008, Kelvin Townsel
was barbequing in the front yard of his sister's home,
located at the corner of Warren and Ferguson in Memphis, when
he heard gunshots. A few minutes later, he saw three
individuals, including one he recognized as the [Petitioner],
running up the hill on Warren to the Clementine Apartments.
Townsel saw one of the three men toss an object into a field
during his flight, and he passed that information along to
the police, who subsequently searched the field and found a
.38 caliber revolver containing two spent rounds and one live
bullet. Ballistics testing revealed that a bullet recovered
from the victim's chest and another from his clothing had
been fired through the barrel of that gun.
Memphis police officers responded to the shooting scene to
find the victim's four-door Chevrolet HHR rolling slowly
down the hill with its front passenger door and one of its
rear passenger doors open, the victim lying dead on the
driver's floorboard from multiple gunshot wounds, a Buick
Rendevous nearby with a nine-millimeter bullet lodged in its
steering column, and a spent nine-millimeter shell casing
lying on the street. Over $300 in cash was recovered from the
victim's body and a .8 gram bag of cocaine was found on
the floorboard of the front passenger side of the
victim's vehicle. A DNA swab sample taken from the
interior front passenger door of the victim's vehicle
matched the [Petitioner]'s DNA profile.
Vincent Roberts saw the [Petitioner] on three separate
occasions on the evening of July 14, 2008. The first time, he
was at home when his cousin brought the [Petitioner] by his
house to talk to him. The [Petitioner] first asked Roberts
how much time he could get if he were with someone who killed
a person and then told him that he had been with
"Dwayne" and the victim in the victim's vehicle
when "Dwayne" suddenly pulled a gun. The
[Petitioner] told Roberts that he had gotten scared, jumped
out of the vehicle, and then heard a gunshot.
Approximately thirty to forty minutes later, Roberts was
leaving a neighborhood grocery when he overheard Kenneth
Richardson say to the [Petitioner], "I told you to leave
the gun--made me give it to you anyway--and now you got a
murder case and a charge partner."
Still later, the [Petitioner] returned to Roberts' house,
where he gave a somewhat different version of events, telling
Roberts that "Dwayne" had called the victim under
the pretense of wanting to buy some pills from him, that he
(the [Petitioner]) had gotten into the front passenger seat
of the victim's vehicle while Dwayne got into the back,
that he and Dwayne each pulled weapons on the victim to rob
him, and that Dwayne then shot the victim in the back of the
head. The [Petitioner] also showed Roberts a skinned place on
his leg, telling him that his leg had been
"scarred" when he jumped from the victim's
moving vehicle after the shooting.
Photographs of the [Petitioner] taken by the police on July
17, 2008, show that he had a large scrape or injury to his
lower right leg.
On the afternoon of July 16, 2008[, ] Kenneth Richardson was
arrested on drug charges. At the time of his arrest, he had a
loaded nine-millimeter gun in his waistband and
identification that belonged to "Dwayne Cooper,
Jr." The nine-millimeter shell casing found at the crime
scene and the bullet recovered from the Buick Rendevous
matched the weapon recovered from Richardson.
Id. at *1-2.
Petitioner, through post-conviction counsel, filed a timely
post-conviction petition, as well as several amended
petitions. Relevant to this appeal, the Petitioner raised in
his petitions various allegations of ineffective assistance
of trial and appellate counsel. The post-conviction court
conducted evidentiary hearings over the course of three
Petitioner's lead trial counsel testified that he had
practiced law for at least forty-five years at the time he
represented the Petitioner. He recalled speaking with the
Petitioner about his case several times before the trial and
remembered visiting the crime scene with co-counsel to
"[l]ook all that over." Per his typical practice,
lead counsel did not employ an investigator on the case
because "[i]t's awfully hard to look at this through
somebody else's eyes." He recalled that the incident
occurred on the street close to a store referred to as
"the castle." Lead counsel said that he could not
locate the Petitioner's file and believed he might have
sent it to the Petitioner's father or appellate counsel.
counsel testified that it was his practice to cross-examine a
witness regarding a prior inconsistent statement that
implicated one of his clients. He did not recall seeing a
supplemental narrative statement taken by Memphis police
officers on October 20, 2008 regarding Mr. Kenneth
Richardson. The unsigned supplement stated that Mr.
Richardson told officers that he had possession of the murder
weapon "the entire time" from when he bought it in
April until his arrest in July 2008. Mr. Richardson's
formal statement relayed that the Petitioner owned the
weapon, that Mr. Richardson had possession of it, that the
Petitioner asked for the weapon on the day of the murder, and
that Mr. Richardson gave it to him. After reviewing Mr.
Richardson's supplemental statement, lead counsel agreed
that it was exculpatory to the Petitioner and that the State
was obligated to provide the statement. Lead counsel
reiterated that the narrative supplemental statement was
never in his possession and that the first time he saw it was
the morning of the post-conviction hearing. He believed he
would have "jumped [Mr. Richardson] a little bit"
at trial had he been aware of it.
counsel recalled that the State called Mr. Kelvin Townsel as
a witness. Lead counsel did not remember having a chance to
talk to Mr. Townsel before trial, and he did not recall
seeing Mr. Townsel's name on any discovery. Lead counsel
believed that he asked for Jencks material after Mr.
counsel testified that he did not file an alibi notice in
this case. He did not recall if he ever spoke with Mr.
Charlton Collins, who could have been offered as a witness
for the defense, or Mr. Bobby Partee, the Petitioner's
brother, regarding the Petitioner's alibi. Lead counsel
was unable to recall Mr. Richardson having an ID with the
name Dwayne Phipps when he was arrested. Lead counsel did not
remember whether he saw a document listing four individuals
interviewed by Lieutenant Ronald Collins who identified a
person other than the Petitioner running from the crime
scene. Post-conviction counsel, however, informed the court
that the trial transcript reflected that lead counsel had
attempted to introduce the document at trial. Lead counsel
said he would have tried to interview the people listed if he
had seen the document. If the interviews disclosed that they
"would have not made good witnesses" or if it was
"obvious that they didn't see what they claimed they
saw[, then] we would have not put them on."
counsel recalled that Mr. Richardson originally invoked his
Fifth Amendment rights at trial. Mr. Richardson was then
arrested in the hallway outside the courtroom on the charge
of facilitation of first degree murder and "came to
court the next day . . . [and] that warrant got withdrawn[, ]
and he sang like a little bird." Lead counsel believed
that he referred to Mr. Richardson's transaction with the
State in his questioning of Mr. Richardson and ...