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Stokes v. State

Court of Criminal Appeals of Tennessee, Jackson

October 31, 2019


          Session June 4, 2019

          Appeal from the Criminal Court for Shelby County No. 09-01312 James M. Lammey, Judge.

         The 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 court's judgment.

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

          James 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.

          John Everett Williams, P.J., delivered the opinion of the court, in which Thomas T. Woodall and Timothy L. Easter, JJ., joined.




         Trial Proceedings

         This 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.


         The 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 dates.

         The 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.

         Lead 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.

         Lead 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. Townsel testified.

         Lead 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."

         Lead 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 ...

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