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Owens v. Perry

United States District Court, M.D. Tennessee, Columbia Division

November 22, 2019

DANNY OWENS, Petitioner,
v.
GRADY PERRY, Warden,[1] Respondent.

          MEMORANDUM

          WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE

         Danny Owens is currently serving a sentence of twenty years in prison based on his April 12, 2012 conviction by a Lawrence County, Tennessee jury of second-degree murder. On November 30, 2017, he filed his pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Respondent thereafter filed an answer to the petition (Doc. No. 12) and the state court record (Doc. Nos. 10, 14), and Petitioner filed a reply to Respondent's answer (Doc. No. 18).

         This matter is ripe for the Court's review, and the Court has jurisdiction. Respondent does not dispute that Petitioner's petition is timely, that this is his first Section 2254 petition related to this conviction, and that the claims of the petition have been exhausted. (Doc. No. 12 at 1-2.)

         Having reviewed Petitioner's arguments and the underlying record, the Court finds that an evidentiary hearing is not required. As explained below, Petitioner is not entitled to relief under Section 2254, and his petition will therefore be denied.

         I. PROCEDURAL HISTORY

         Petitioner was indicted on August 27, 2010, for the first-degree murder of his wife, Vicki Owens. (Doc. No. 10-1 at 9-10.) Following a jury trial, Petitioner was convicted of the lesser included offense of second-degree murder on April 12, 2012. (Id. at 165-66.) The trial court sentenced Petitioner to twenty years in prison. (Id. at 173-79.)

         On direct appeal, Petitioner argued that: (1) the evidence at trial was insufficient to support his conviction; (2) the trial court erroneously ruled on multiple evidentiary issues; and (3) the trial court committed error in sentencing Petitioner. (Doc. No. 10-24 at 9.) The Tennessee Court of Criminal Appeals concluded that “the evidence, though circumstantial, is sufficient to sustain Owens's conviction for second degree murder” (Doc. No. 10-26 at 29); that no evidentiary errors had been committed (id. at 16-28); and, that the sentence imposed was not excessive. (Id. at 31- 34.) See State v. Owens, No. M2012-02717-CCA-R3CD, 2014 WL 1173371 (Tenn. Crim. App. Mar. 24, 2014). The Tennessee Supreme Court denied discretionary review on September 25, 2014. (Doc. No. 10-28.)

         Petitioner filed a pro se petition for post-conviction relief on November 5, 2014. (Doc. No. 10-29 at 6-20.) Following the appointment of counsel and an evidentiary hearing, the post-conviction trial court denied relief. (Doc. No. 10-29 at 38-43.) Petitioner filed an appeal from the denial of post-conviction relief, raising the single issue of whether his trial counsel was constitutionally ineffective for failing to object to witness testimony on two occasions. (Doc. No. 10-34 at 13.) The Tennessee Court of Criminal Appeals affirmed the denial of post-conviction relief. (Doc. No. 10-36); Owens v. State, No. M2016-02068-CCA-R3-CD, 2017 WL 3836022 (Tenn. Crim. App. Aug. 31, 2017). Petitioner did not seek permission to appeal to the Tennessee Supreme Court. He filed his pro se petition under Section 2254 in this Court on November 30, 2017.

         II. STATEMENT OF FACTS

         As the Tennessee Court of Criminal Appeals noted, “[t]he defense theory at trial was that the victim had committed suicide, ” and the jury rejected this theory “[d]espite the fact that there was conflicting evidence” regarding whether she died by suicide or by homicide. State v. Owens, 2014 WL 1173371, at *25. That court's 2017 decision on Petitioner's post-conviction appeal contains a concise summary of its more expansive recitation on direct appeal of the state's proof at trial. That summary is set out below, followed by the summary of the defense's proof at trial contained in the Court of Criminal Appeals' 2014 decision on direct appeal, and the summary of the post-conviction evidence contained in the 2017 decision.

         As to the state's proof at trial,

[L]aw enforcement officers responded to a deceased-person call at the Petitioner's residence on February 8, 2009, where they discovered the victim's body sitting in a rocking chair in the living room. A revolver was found near the victim's body, and a single bullet had entered the victim's right cheek, causing multiple wounds to her face, shoulder, and arm. The Petitioner told the officers that the victim had committed suicide, explaining that the victim suffered with painful medical conditions and had confronted him about having an affair. The victim suffered from diabetes, arthritis, knee problems, and stress fractures in her feet, for which she was undergoing treatment and taking medications, but her health had never kept her from working. A few days before her death, the victim told her adult daughter that she believed the Petitioner was having an affair. The victim had complained about the Petitioner's infidelity on other occasions but had never appeared suicidal.
Two days before the victim's death, while the victim's mother and the victim were talking on the telephone, the victim's mother overheard the Petitioner tell the victim, “I bought myself a [.]357.... I'm going to kill your God d*** ass.” The day before her death, the victim was in a “very good” mood and was buying Valentine's gifts. Also, the victim was “really looking forward” to her son's wedding in May and had requested vacation time from her employer to attend the wedding in Florida.
The Friday before her death, the victim told one of her co-workers, Melba McKey, that she was going to confront the Petitioner about his affair. Ms. McKey had known the victim for twelve years and had seen physical signs of her turbulent marriage, including bruises on her neck and arm. When she asked the victim about the bruises that resembled fingerprints on her neck, the victim said that the Petitioner had choked her. The victim's supervisor also had worked with the victim for twelve years and had observed bruises on the victim's wrists and arms on several occasions.
[Several years earlier, ] Deputy Donald Ward with the Giles County Sheriff's Department was dispatched to the Petitioner's residence on June 22, 2003, after a neighbor reported a domestic disturbance between the victim and the Petitioner. He observed that the victim had an injury inside her mouth on her lower lip, a scratch under her left jaw, and a swollen right wrist. Deputy Ward read a victim's rights form to the victim and left a copy with her.
A Smith & Wesson .357 magnum revolver containing four unspent rounds and one spent round was found near the victim's body. The investigating detective, who photographed the gun as he opened the cylinder, noticed that the top chamber, located underneath the hammer, had an unfired round and that a spent round was in the chamber to the left of the unfired bullet. He explained that in order for a live round to be underneath the hammer of the gun, the trigger would have to be pulled again, which would cause a second spent cartridge to be in the gun; or the hammer would have to be manually pulled again; or the cylinder would have to be taken out, rotated, and put back into the gun. A Tennessee Bureau of Investigation (TBI) agent, an expert in firearms examination and identification, examined the revolver and noted that it had a large frame, making it heavy, and that the spent cartridge would have ended up underneath the hammer unless the gun was manipulated. According to the agent, it would take human manipulation for the spent cartridge to end up one cylinder to the left of the hammer.
During an interview with another TBI agent, the Petitioner admitted that he had had several affairs and that, after the victim's death, he “might have” left a message on the answering machine of a woman he had previously dated, asking if she would go out with him now that the victim was dead. According to the Petitioner, the victim had extensive pain in her arms and legs and had been prescribed several medications. However, he never told the TBI agent that the victim was suffering from depression or any mental illness.
Although the medical examiner was unable to determine if the victim's manner of death was homicide or suicide, he noted that the gunshot wound was a close range wound that was angled, rather than perpendicular to the surface, and opined that the wound was unusual because of its location and the direction of the bullet path. He said that the gun found at the scene was heavy and would have been difficult for the victim to hold to produce the type of injury she suffered.

Owens v. State, 2017 WL 3836022, at *1-2 (internal citations omitted).

         The defense's proof at trial was summarized by the Court of Criminal Appeals as follows:

Charles Hardy, a special agent with the TBI who worked at the Nashville Crime Laboratory, was declared an expert in the field of serology and DNA analysis. Agent Hardy testified he tested soap from the bathroom sink, a rag from the washing machine lid, Owens's clothing, a hand towel from the storage building, a washcloth from the northwest bathroom, a swab from the bathroom sink, a washcloth and red rag from Owens, and a revolver from the living room for DNA. He found that the washcloth from the bathroom and the swab from the kitchen sink contained Owens's blood. He stated that the revolver contained such limited DNA that he was unable to obtain a DNA profile that belonged to a particular individual.
Linda Littlejohn, a special agent forensic scientist with the TBI, was declared an expert in the field of microanalysis of fibers. She stated that she looked at the fibers that were collected from the victim's body and was asked to compare these fibers to the fibers from the towels collected from the garage and the victim's clothing. She stated that because all the fibers collected contained white cotton fibers, she was unable to determine the source of the fibers collected from the victim's body.
Tony Beard, a corporal with the Lawrence County Sheriff's Department, testified that he secured the crime scene until Detective Parker arrived. Corporal Beard stated that he kept a log of everyone who entered and exited the crime scene.
Robert Denton, a criminal investigator with the Lawrence County Sheriff's Department, testified that he assisted in collecting evidence and investigating the victim's death. He remembered that Owens sat at the kitchen table and appeared distraught at the scene. He did not observe Owens washing his hands or wiping his face.
Jeffrey Smith, one of the paramedics who arrived at the scene, testified that he noted the medications that had been prescribed to the victim, which included Trazodone, Gabapentin, Estradiol, Benicar, and Prevacid. He stated that Owens gave him information about the victim's medical history and showed him the victim's medicine bottles. Smith stated that Owens talked to him about the victim's leg and foot pain but did not tell him that the victim was suffering from mental illness or depression.
William and Deborah Wilkerson, nearby neighbors, testified that Owens was standing on his deck between 10:45 and 11:00 a.m. on February 8, 2009, and waved at them as they left for church. Deborah Wilkerson stated that she attended the victim's funeral and that Owens was “real[ly] sad” and was crying.
Brian Robinson, the funeral director at Neal's Funeral Home, testified that Owens paid for the victim's funeral. He said that although there was a dispute over where the victim would be buried, Owens relented and allowed the victim to be buried at the location that her children had chosen. Robinson stated that during the meeting, Owens was “distraught[, ]” “visibly upset[, ]” and his eyes were red because he had been crying.
David Brundage, a retired employee with the Illinois State Police and the Marion County Forensic Services Agency, was declared an expert in the field of firearm identification. Brundage opined that if the gun had been fired by the victim, it would have been with her right hand because the entry wound was on the right side of her face. After looking at one of the crime scene photographs, he noted that there was a red substance, perhaps blood, on the fingers of the victim's right hand. He said he was unable to review the test results of the red substance on the victim's right hand because no test had been requested. Brundage stated that he was trained to mark the flutes of the cylinder of a revolver with a permanent marker before examining it in order to clearly identify the cartridge that was underneath the hammer. He stated that releasing the cylinder catch would cause the cylinder to move. After examining the autopsy report and photographs, Brundage opined that the Smith & Wesson revolver was fired one to three inches from the victim's head and had been fired at an angle.
On cross-examination, Brundage acknowledged that once the gun in this case was fired, the spent round would remain underneath the hammer unless human manipulation caused the cylinder to move. He also acknowledged that because the cylinder on this gun was stiff, it was unlikely that operating the release on the cylinder would cause the cylinder to fly open and rotate, especially if an officer was holding the revolver down when the cylinder was released. Brundage agreed that another way to identify the cartridge that was under the hammer was to carefully release the cylinder and visually see where the spent round was located.
Daniel Smith, whose mother lived near Owens, testified that he had a beer with Owens a couple of months after the victim's death. Shortly thereafter, law enforcement came to his house on a Saturday night and asked him to drive to the police station. When he told them that he could not drive because he was intoxicated, the officers drove him to the station, where they “tried to put words in his mouth” about Owens's involvement in the victim's death. He stated that officers Beard and Bartrum questioned him for approximately four or five hours before releasing him. . . .

State v. Owens, 2014 WL 1173371, at *10-12.

         Petitioner's post-conviction petition alleged that his trial counsel was ineffective in failing to object to the introduction of testimony concerning prior allegations of domestic violence, when the trial court had ruled prior to trial that such statements would not be admissible. The testimony at issue came from two witnesses, Deputy Donald Ward and Melba McKey. At the post-conviction hearing, trial counsel testified that he filed twenty-one pretrial motions and eight motions in limine after being retained in September 2010, in an ...


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