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Mathews v. State

Court of Criminal Appeals of Tennessee, Nashville

December 27, 2019


          Assigned on Briefs April 16, 2019

          Appeal from the Circuit Court for Montgomery County No. 63CC1-2015-CR-343 Don R. Ash, Senior Judge

         The Petitioner, Courtney B. Mathews, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury convictions for four counts of first-degree felony murder and one count of especially aggravated robbery. On appeal, the Petitioner's issues center around (1) an ex parte communication between the trial judge and trial counsel that took place at the trial judge's residence; (2) trial counsels' inadvertent disclosure of the unredacted timeline to the co-defendant's defense team that contained attorney-client privileged information; (3) the lack of any jury instructions on lesser-included offenses for the felony murder counts; (4) the Petitioner's alleged absence during the issuance of the supplemental jury instruction on criminal responsibility and when the trial judge answered jury questions; and (5) cumulative error. After a thorough review of the record, we reverse the judgment of the post-conviction court. We conclude that due to trial counsels' various deficiencies, there has been a complete breakdown in the adversarial process during the Petitioner's motion for new trial proceedings. While the Petitioner's convictions remain intact, the case is remanded for further proceedings consistent with this opinion.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          Courtney B. Mathews (on appeal), Pro Se, Clifton, Tennessee; and Luke A. Evans and Rose Parker (at post-conviction hearing), Murfreesboro, Tennessee, for the appellant, Courtney B. Mathews.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Camille R. McMullen, JJ., joined.




         In June 1996, a Montgomery County jury convicted the Petitioner of four counts first-degree felony murder and one count of especially aggravated robbery. The Petitioner's convictions stem from the 1994 robbery of a Clarksville Taco Bell and the slaying of four of its employees. See State v. Courtney B. Matthews,[1] No. M2005-00843-CCA-R3-CD, 2008 WL 2662450, at *1 (Tenn. Crim. App. July 8, 2008), perm. app. denied (Tenn. Apr. 10, 2015). The evidence at trial established that in the early morning hours of January 30, 1994, four employees were executed during a robbery of the restaurant. Each of the four victims suffered multiple gunshot wounds. Officers also discovered that a safe in the business office of the restaurant had been blown open by a shotgun blast and emptied of nearly $3, 000 in cash and coins. The State sought the death penalty, but the jury imposed a sentence of life in prison without the possibility of parole for each felony murder conviction. The trial court sentenced the Petitioner to twenty-five years for the especially aggravated robbery conviction and ordered that all sentences be served consecutively. Judgments were filed on August 15, 1996.

         In addition, David Housler, the co-defendant, was tried separately for the murders, and his trial was held in November 1997. See State v. Housler, 193 S.W.3d 476 (Tenn. 2006). He was not tried for especially aggravated robbery. The State's strategy at the co-defendant's trial

was (1) to establish [the Petitioner's] guilt in committing the Taco Bell robbery and murders by using many of the same witnesses and much of the same evidence that the prosecution used at [the Petitioner's] trial and (2) to establish [the co-defendant's] guilt in the same crimes by using his written statement, which placed him with [the Petitioner] as a lookout on the night of the killings, and with the testimony of several corroborating witnesses.

Id. at 484. Following the conclusion of the evidence, the jury found the co-defendant guilty of four counts of felony murder and imposed a punishment of life imprisonment. The trial court ordered that those life sentences be served consecutively to one another.[2]

         The Petitioner's case languished in the trial court for over nine years before the motion for new trial was adjudicated in March 2005. Accordingly, we feel a review of the procedural history post-trial is in order. On September 12, 1996, the Petitioner's motion for new trial, in which he alleged seventeen grounds for relief, was filed. The issues were bare allegations contained in one sentence, without argument, and without citation to any legal authority. Filed contemporaneously with the motion for new trial were motions to stay the proceedings until a trial transcript could be prepared and for leave to allow amendments to the motion for new trial after preparation of the transcript. The trial court ordered that "a complete transcript of all pretrial, jury selection and trial proceedings be prepared" and granted the Petitioner's motion for leave to amend. A hearing was originally scheduled on October 17, 1996, but the trial court's docket on that day showed that the motion was "stri[c]ken." A notation in the trial court's docket next to the October 17, 1996 entry, states, "ordered transcript 11-6-03."

         In October 2000, associate counsel[3] filed a motion to withdraw, wherein he noted that the Administrative Office of the Courts ("AOC") would no longer pay for two attorneys to represent the Petitioner because it was "no longer a capital case," before stating that lead counsel had "returned to the United States" and could represent the Petitioner's "interests regarding the pending motion for new trial and any appeal that might follow." Associate counsel was granted permission to withdraw on October 23, 2000. No new counsel was appointed, and lead counsel remained counsel of record. Throughout this time, no attempts were made to revive or otherwise pursue the Petitioner's motion for new trial.

         On April 29, 2003, associate counsel was "reappointed to represent the [Petitioner] to the conclusion of all trial court matters." On October 9, 2003, a joint motion between associate counsel and the Petitioner was prepared and served on the State "to reschedule" the motion for new trial hearing, which was set, according to the motion, for October 16, 2003. The hearing was rescheduled for December 11, 2003; on that day, it was reset for January 13, 2004, in order to allow the State time to file a response and the Petitioner to amend the motion for new trial.

         Thereafter, the Petitioner filed an amended motion for new trial on January 8, 2004, which added five additional grounds for relief. Again, the issues were merely bare allegations of one sentence each without legal argument or citation to authority. Moreover, three of the five were merely restatements of issues raised in the original 1996 motion for new trial. The two new issues raised in the amended motion were sufficiency of the evidence and the trial court's sua sponte issuance of a jury instruction on criminal responsibility after the jury had already begun deliberations. Also, on January 8, 2004, a waiver from the Petitioner was filed. In the document, the Petitioner waived the following:

[T]he [Petitioner] has been advised he has the right to be transported . . . for the purpose of attending the [m]otion for [n]ew [t]rial which has previously been filed on his behalf. Having been advised of this right, [the Petitioner] waives his right to be present, and requests the [m]otion be heard in his absence.

         The State's response to the Petitioner's amended motion for new trial, which included detailed legal argument, was filed on January 12, 2004. In the State's response, it was argued that the trial court had lost jurisdiction to hear the Petitioner's motion for new trial when it was stricken on October 17, 1996, and that the Petitioner had abandoned any timely pursuit of said motion. On January 23, 2004, the Petitioner's "response to the State's petition" that the trial court was "without jurisdiction to hear" the amended motion for new trial was filed. The next document in the record was a March 24, 2004 order designating the case as extended and complex for purposes of Rule 13, Tennessee Rules of the Supreme Court. Thereafter, almost another entire year elapsed before the trial court's order denying the Petitioner's motion for new trial was filed on March 15, 2005.

         In the order, the trial court stated that the "matter was submitted on briefs in December 2003." The trial court included a footnote in the order indicating that the status of preparation of the transcript in the Petitioner's case was still unknown to the trial court. The trial court noted, "It appears the co-defendant . . . pursued his appeal and[, ] in so doing[, ] raised issues of collateral estoppel with reference to the [Petitioner's] case. At that time, [the co-defendant's] counsel obtained a transcript of [the Petitioner's] trial proceedings. Shortly thereafter, the amended motion for new trial was filed." The trial court then went on to restate the seventeen grounds listed in the Petitioner's motion for new trial and the five grounds added in the amended motion for new trial. The order was detailed and contained findings of fact and conclusions of law. The trial court found that the Petitioner's grounds did not entitle him to relief. Specifically, the trial court determined that the Petitioner's convictions were supported by sufficient evidence, reasoning that the

evidence was more than sufficient for the jury to conclude that the [Petitioner] gained access to the Taco Bell upon a false premise; that he retrieved items he previously placed in the ceiling of the men's restroom; that he blew open the safe and took money belonging to Taco Bell; that [the] killings recklessly occurred during the robbery with a deadly weapon; and that the victims suffered great injury (death)[.]

         On July 11, 2005, associate counsel filed a motion to withdraw from further representation of the Petitioner. In the motion, associate counsel noted that the co-defendant's attorneys had obtained a "timeline" from associate counsel's office and that the trial court had "ruled that this constituted a waiver of the attorney-client privilege[.]" Associate counsel averred, "Based upon the [c]ourt's prior ruling, it is apparent that [the Petitioner's] counsel will be called as a material witness at future proceedings regarding the [co-defendant's] case, both state and federal. This will create a direct conflict with maintaining the confidentiality between attorney and client." Associate counsel also indicated that lead counsel was then employed with the United States Government and, thus, prohibited from representing the Petitioner. Thereafter, on August 10, 2005, the trial court entered an order allowing "trial counsel," being "unable to represent the [Petitioner] in his direct appeal[, ]" to withdraw. The trial court appointed new counsel at that time. That lawyer was later removed due to a conflict of interest because the Petitioner had acted as a "jailhouse lawyer for" one of the lawyer's former clients by drafting the inmate's petition for post-conviction relief which alleged ineffective assistance of counsel therein. Another lawyer was appointed, who represented the Petitioner during his direct appeal proceedings ("appellate counsel").

         After the denial of his motion for new trial, the Petitioner filed a timely notice of appeal. On direct appeal, the Petitioner argued the following:

(1) that he was denied due process in the delay of the preparation of his trial transcript and of the hearing on the motion for new trial; (2) that the trial court erred in not reopening the hearing on the motion for new trial; (3) that the trial court erred by permitting cameras in the courtroom during the trial; (4) that the cameras "invaded" the deliberations of the jury; (5) that the trial court should have changed venue due to the influence of pretrial publicity; (6) that the trial court erred by admitting photographs of the victims; (7) that the trial court erred by admitting DNA evidence; (8) that the trial court erred by certifying a [S]tate witness as an expert in DNA analysis; (9) that the trial court erred by admitting the testimony of the medical examiner; (10) that the trial court erred by permitting the medical examiner to utilize demonstrative aids during his testimony; (11) that the evidence was insufficient to support his convictions under a theory of criminal responsibility for the conduct of another; (12) that the evidence was insufficient to support his convictions under a theory of direct liability; (13) that the trial court violated his due process rights by "forcing" the [S]tate to proceed on inconsistent theories at his trial and the trial of his co-defendant; (14) that the trial court erred by interrupting jury deliberations to provide an instruction on criminal responsibility for conduct of another; (15) that the convictions for especially aggravated robbery and felony murder violate double jeopardy principles; (16) that the evidence was insufficient to support the finding that the murders were heinous, atrocious, or cruel; (17) that the trial court erred by failing to instruct the jury on certain non- statutory mitigating factors; and (18) that the trial court erred by imposing consecutive sentencing.

Matthews, 2008 WL 2662450, at *1. Ultimately, this court affirmed the Petitioner's convictions in an opinion issued on July 8, 2008. In discussing the Petitioner's issue concerning the timeliness of the motion for new trial, although not condoning the length of the delay, we determined that Petitioner's due process rights were not violated by the delay, relying on the fact that he had failed to establish prejudice from the delay. Id. at *10. No permission to appeal to the Tennessee Supreme Court was filed at that time. See Tenn. R. App. P. 11.

         On November 27, 2013, the Montgomery County Circuit Court Clerk's Office received a pro so filing from the Petitioner entitled "Motion for Determination of Status of Pending Post-Conviction Petition or[, ] in the alternative[, ] Motion for an Evidentiary Hearing to Determine why the Original Post-Conviction Petition Filed on July 23rd, 2009 had not been Properly Adjudicated." The motion contained, as an attachment, a copy of the Petitioner's purported pro se July 2009 petition, although no such petition was ever received by the Montgomery County Circuit Court Clerk. A hearing was held on September 9, 2014, which dealt with the timeliness of the Petitioner's petition for post-conviction relief. The trial court entered an order on October 8, 2014, finding that due process tolled the one-year post-conviction statute of limitations. The order also granted the Petitioner a partial delayed appeal, permitting him to file a delayed petition to rehear in this court or a delayed Rule 11 application with the Tennessee Supreme Court. No petition to rehear was ever filed in this court; however, the Petitioner did file an untimely Rule 11 application with the Tennessee Supreme Court. After our supreme court ordered the Petitioner to show cause why the filing deadline should be waived, [4] the court ultimately denied the Petitioner's Rule 11 application on April 10, 2015.

         The post-conviction court, upon conclusion of the delayed appeal, allowed the post-conviction proceedings to continue. The post-conviction court permitted a "hybrid representation" during the post-conviction proceedings, allowing the Petitioner to operate as co-counsel with appointed counsel and requiring both the Petitioner and counsel to sign all pleadings. Several petitions and amended petitions appear in the record. Besides the July 2009 petition, additional petitions were filed in December 2013, July 2016, and February 2017. The post-conviction court addressed the issues as presented in the final amended petition that was prepared by counsel and filed on February 1, 2017.[5] In the amended petition, the Petitioner raised the following claims:[6]

(1)"Claims related to the thirteenth juror rule," arguing (a) that "the trial judge was not competent to sit as thirteenth juror due to his exposure to the ex parte information provided by trial counsel" and (b) that appellate counsel provided ineffective assistance by "fail[ing] to argue on appeal that the failure of a competent judge to rule as [thirteenth] juror rendered the judgment void";
(2)"Claims related to trial counsel's conflict of interest," specifically that trial counsel was ineffective (a) because an "actual conflict of interest existed" based upon a "breach of attorney-client confidentiality" and (b) because trial counsel failed "to adequately represent [the P]etitioner in post-trial motions due to the conflict of interest";
(3) "Claims related to [the Petitioner's] absence during portions of trial," specifically (a) that trial counsel rendered ineffective assistance by "fail[ing] to object and demand [the Petitioner's] presence at trial" and by "fail[ing] to raise [the Petitioner's] absence as an issue in the motion for new trial," and (b) that appellate counsel also provided ineffective assistance by "fail[ing] to raise [the Petitioner's] absence as an issue on direct appeal";
(4)"Claims relating to jury instructions," arguing (a) that trial counsel was ineffective for "fail[ing] to request a jury instruction on facilitation" or "request a lesser-included jury instruction for second-degree murder," and (b) that appellate counsel was ineffective for "fail[ing] to adequately cite to authority to support [the Petitioner's] claim that [the] supplemental jury instruction was given in error"; and
(5) "The cumulative effect of all error at trial and on appeal violated [the Petitioner's] constitutional rights."

         At the May 2017 post-conviction hearing, [7] the Petitioner's sister, Veronica Randolph testified that she attended the Petitioner's 1996 trial. According to Ms. Randolph, the Petitioner was not present in the courtroom "[f]or part of the time" during closing arguments. Ms. Randolph explained that she was "wondering" where the Petitioner was because "the judge was giving the jurors instructions and everybody else was in the court[room]." When she asked the Petitioner later why he was absent, the Petitioner "said he didn't know." The Petitioner's cousin, Lolita Chenise Randolph, also testified that the Petitioner was absent from the courtroom during "the part when the judge was giving directions to the jury."

         Lead counsel testified that he was appointed, along with associate counsel and multiple investigators, to represent the Petitioner on these murder charges and that over the course of his representation, he met with the Petitioner "many" times. According to lead counsel, other members of the defense team were sometimes present for the meetings as well. Lead counsel indicated that "the base of operations" was at associate counsel's office and that the Petitioner's discovery and investigation materials were kept there. Lead counsel relayed that his "primary obligation" at trial was to "handle the witnesses" and make the opening and closing statements. He also conveyed his familiarity with the discovery and investigation materials in the Petitioner's case.

         Lead counsel recalled that while the jury was deliberating, he left and "drove back to the city" to take care of something. Upon his return, associate counsel informed him that the trial judge had issued a supplemental instruction on criminal responsibility during his absence. Lead counsel lodged an objection and asked that he be permitted additional closing argument to address the supplemental instruction. However, the trial judge denied his request. Lead counsel believed that the Petitioner was present in the courtroom when he lodged the objection.

         Lead counsel affirmed that a timeline of events had been prepared in preparation for the Petitioner's trial and that the timeline referenced statements that were directly attributable to the Petitioner from interviews with him. Lead counsel maintained that prior to the Petitioner's trial, he did not share any information he learned during his representation of the Petitioner with the co-defendant's attorneys, Michael Terry and Stephanie Gore. When asked if he ever authorized the co-defendant's attorneys to come to the "war room" in associate counsel's office and "review[] the investigative materials that [they] had gleaned during the investigation," lead counsel replied, "Setting aside the timeline, I don't recall extending an invitation to either of the two to come to the war room. . . . I think I recall saying . . . you can review the statements of witnesses that we had. I'm confident that we made that available to them." Lead counsel averred that the Petitioner never consented to allowing the co-defendant's lawyers access to the witnesses' statements or any other portions of "his client file," and lead counsel affirmed that the Petitioner was likely never asked.

         Lead counsel did not recall "personally" making any decision to redact the timeline nor did he remember ever disclosing the redacted timeline to the co-defendant's lawyers. He claimed that he was not even "aware that there was a redacted timeline." He explained that these events may have occurred after his departure to Cambodia in November 1996 to "train defense lawyers." According to lead counsel, he thought that he was out of the country "when this timeline thing developed"; however, he was made "aware that it was an issue." Lead counsel also believed that he discussed the inadvertent disclosure with the Petitioner.

         Lead counsel acknowledged that sometime around 2008, he "answered some interrogatories" in the co-defendant's post-conviction case. In those interrogatories, lead counsel described "the circumstances of how the unredacted timeline was obtained" by the co-defendant's attorneys: "A member of the [co-defendant's] defense team was given access to a redacted copy, which was in our office. While there the defense team member discovered the unredacted copy, photocopied it without permission and then left with it." Lead counsel further stated therein that he "was shocked that [the co-defendant's lawyer] had engaged in this conduct." Lead counsel did not recall "tak[ing] any steps to retrieve" the unredacted timeline, despite being certain that the timeline "was a privileged document." Moreover, lead counsel did not take any steps to report the co-defendant's lawyer's conduct to the Board of Professional Responsibility.

         When asked if he agreed "that regardless of whether [he] w[as] still acting as attorney of record when [he] became aware of . . . the disclosure of the timeline to the [co-defendant's] defense team that [he] had an obligation to still take efforts to protect that privilege," lead counsel replied, "Theoretically yes. If I had been here, yes." Lead counsel confirmed that "some effort should have been made to get it" returned. Lead counsel also noted that associate counsel hired outside counsel to represent them regarding the inadvertent disclosure.

         Lead counsel further testified that in the interrogatories from the co-defendant's case, he acknowledged engaging in two conversations with the co-defendant's "defense team," during which he expressed his belief that the co-defendant was innocent of these charges. Lead counsel indicated that these conversations took place after the Petitioner's trial, and he confirmed that he never told the Petitioner about these discussions.

         Lead counsel was then asked to describe the details surrounding his ex parte communication with the trial judge, which consisted of his telling the trial judge that he believed the co-defendant was innocent. Lead counsel testified that either he or associate counsel called the trial judge's office and relayed their desire to speak with him. According to lead counsel, they then agreed on a date, place, and time to meet. Lead counsel said that they were initially supposed to meet in the "judge's chambers or somewhere at the courthouse." However, the location "got changed because [the judge] had like childcare problems or something," and they "ended up meeting at [the judge's] house as a result of some kind of a conflict[.]" Lead counsel recalled that they followed the trial judge from the courthouse to his home, and lead counsel averred that he did not find this meeting "odd" in any way. According to lead counsel, after his disclosure to the trial judge, the judge "was just saying okay, get it off of you if that's what you want to do," but the trial judge never stopped him or cautioned him about divulging attorney-client privileged information. Lead counsel said that his comments about the co-defendant were "very brief" and that the topic of their conversation then turned to other things. According to lead counsel, although associate counsel was present, he was very quiet during the portion of the conversation concerning the co-defendant. Additionally, lead counsel opined that this conversation likely took place on one of his return trips from Cambodia.

         Lead counsel affirmed that he never told the Petitioner of his intention to speak with the trial judge, nor did he tell the Petitioner afterwards. Lead counsel explained that he felt he "had an obligation to do something because[, ] . . . based upon [his] investigation of the case, . . . [the co-defendant] had nothing to do with" the Taco Bell crimes, and the co-defendant was facing the death penalty. When asked what he thought the trial judge "was going to do," lead counsel responded, "You know, . . . I wasn't sure. I really wasn't sure. But I thought if there was somebody who could do something it would be [the trial judge]. And I felt that somebody had to do something." Lead counsel was then asked "where, as a lawyer, did [lead counsel] come up with that" as a solution, and lead counsel explained, "As a lawyer my obligation is to protect my client. My client had already been found guilty."

         Lead counsel affirmed, however, that his "investigation included statements that [he] knew [the Petitioner] had given . . . privately," that he had just told the trial judge that the co-defendant was innocent based upon his investigation of the Petitioner's case, and that the Petitioner's motion for new trial was still pending in front of the trial judge at that time. Lead counsel said he "now" saw the error of his ways, but he "was afraid that an individual who [he] knew had nothing to do with this could die." Lead counsel further explained his decision as follows:

[A]ll I know is this: If I believed that what I said was going to [a]ffect [the Petitioner] in such a way that it would be detrimental to [the Petitioner, ] I wouldn't have done it; however, if I had to choose to either say nothing or at least say something, to do something for [the co-defendant], even though [the co-defendant] was not my client, I-I couldn't do nothing . . . . That was the problem. I couldn't just sit and do nothing at all.

         Lead counsel agreed that the trial judge, at that time, still had "the obligation to sit as the [thirteenth] juror in ruling on [the Petitioner's] motion for new trial." According to lead counsel, after the ex parte communication, he believed that associate counsel would handle the motion for new trial because lead counsel intended to return to Cambodia. Lead counsel opined that despite the information contained in the unredacted timeline and the ex parte communication, there "was still enough to deny the new trial motion on the weight of the evidence[.]"

         Lead counsel confirmed that after the meeting with the trial judge, he did not file a motion seeking to withdraw from the Petitioner's case, nor did he file anything to have the trial judge recused based upon the information lead counsel had conveyed to him. Lead counsel was unsure of how he was ultimately relieved from representing the Petitioner, and he did "not remember seeing any kind of order granting [him] leave to withdraw."

         When asked about the delay in having the Petitioner's motion for new trial adjudicated, lead counsel said that he felt he needed to have the transcript prepared in order to adequately address all potential issues. Lead counsel averred that while the motion for new trial was pending, he spoke with the Petitioner "on a regular basis." He could not remember whether he specifically advised the Petitioner about "the next steps in the case, the time periods in which those steps had to occur[, ]" although he thought he would have done so. Lead counsel also said his normal practice was to discuss with the client what issues were to be raised in the motion for new trial, but he could not recall, due to the passage of time, whether he did so in the Petitioner's case.

         Associate counsel testified that he was appointed to the represent the Petitioner in 1995 and that he and lead counsel divided responsibilities. Associate counsel maintained that his "primary role" in the Petitioner's case was to obtain a change of venue and have the case moved out of Montgomery County. According to associate counsel, "[o]ur goal was to achieve the best possible outcome under the facts as they were presented[, ]" and included in that calculation was the possibility of four death penalty sentences. Associate counsel was ultimately successful in receiving a change of venue. Moreover, the Petitioner received four sentences of life without the possibility of parole instead of the death penalty.

         Associate counsel testified that he did not perform an "in depth discovery" review in the Petitioner's case, indicating that such was unnecessary for his primary responsibility. Moreover, associate counsel indicated that he "had some client meetings with" the Petitioner but that he "was not present for all client meetings." According to associate counsel, the Petitioner met mostly with lead counsel and Mr. Ron Lax, one of the investigators. Regarding the specific defense set forth on the Petitioner's behalf, associate counsel affirmed that "it involve[d] other people['s] being inside the Taco Bell restaurant." Associate counsel noted that the co-defendant was called as a witness at the Petitioner's trial and that the co-defendant invoked the Fifth Amendment.

         Associate counsel stated that he was present in the courtroom when the court charged the jury in the Petitioner's case. Associate counsel also recalled the trial judge issuing a sua sponte instruction on criminal responsibility. However, associate counsel "had no independent recollection of whether [the Petitioner] was present or not present" for the criminal responsibility instruction. Associate counsel affirmed that his "normal procedure" would have been to object if the Petitioner was absent. Associate counsel was able to recall that lead counsel was not present when the additional instruction was given because lead counsel "had gone to take care of some business." Associate counsel acquiesced that the Petitioner was entitled to the representation of two attorneys at that time.

         Associate counsel relayed the details surrounding the ex parte communication with the trial judge that took place "within months" after the Petitioner's trial had concluded. He testified that towards the ends of a day, he and lead counsel went to Springfield where the trial judge was holding court and indicated to the trial judge that "there was something [they] needed to discuss with him." Associate counsel continued, "There was nothing there, and he invited us to come to his residence, which we did."

         When asked what was the purpose of their trip to visit the trial judge, associate counsel explained that he and lead counsel "had concerns[, ] because based upon [their] investigation of the case[, the co-defendant] had nothing to do with this situation" and "he was facing the death penalty." Associate counsel said that lead counsel "decided that [they] needed to tell the judge that based upon our investigation that [the co-defendant] was innocent." Associate counsel maintained that they made "a moral and ethical decision" to inform the trial judge, and he asserted, "I think we were very clear that we did not reveal any attorney-client information." According to associate counsel, the conversation at the trial judge's residence lasted between thirty minutes to an hour. Associate counsel affirmed that he did not seek the Petitioner's permission to speak with the trial judge, nor did he tell the Petitioner about the meeting until he withdrew many years later. Associate counsel averred that he and lead counsel did what they thought "was appropriate" given the situation, but associate counsel did not consider withdrawing from the Petitioner's representation at that time.

         Finally, associate counsel confirmed that the trial judge disclosed the ex parte communication on the record at the co-defendant's motion for new trial hearing in 2000. The co-defendant's motion for new trial transcript, which was read, reflected that the trial judge stated the following: "And it was that their investigation led them to conclude that [the co-defendant] was not at the Taco Bell, and that that was based upon information that they had received, in part, directly from [the Petitioner]." Associate counsel disagreed with trial judge's assessment.

         Associate counsel confirmed that his office had been used for "trial prep" and that there was a "war room" at his office, which housed items related to the Petitioner's case. Associate counsel maintained that there was no "joint defense agreement with the [co-defendant's] defense team" and that he did not purposefully share any privileged information with the co-defendant's attorneys. Nonetheless, according to associate counsel, the same investigating firm that had represented the Petitioner was going to represent the co-defendant, so, after the Petitioner's trial, the co-defendant's lawyers were given access to the war room in order to review "the interview notes that they had previously taken of witnesses." No objection was lodged to the investigators' working both cases; a decision for which associate counsel could not provide an explanation. Associate counsel averred that "nothing dealing with [the Petitioner] was going to be shared[, ]" and he claimed it was never his "intent directly, indirectly or any other way to reveal or release any privileged information to anyone."

         Specifically, regarding the unredacted timeline, associate counsel stated that it "was months after" the co-defendant's trial before he became aware that the timeline had been removed from the war room. Associate counsel indicated that he and lead counsel, who had returned from Cambodia at that time, were told during a meeting with the co-defendant's attorneys. According to associate counsel, "the timeline [was] redacted for the sole purpose of being able to provide it" to the co-defendant's lawyers. In associate counsel's opinion, it "was very clear that the reason for redaction was that there should be no attorney-client information contained in that document."

         When asked if he had "authorized either Ms. Gore or Mr. Terry access to [the Petitioner's] materials" held in his office, associate counsel replied as follows: "They were authorized to have access to certain materials, which consisted of witness statements that did not pertain [to] anything of [the Petitioner's that] was attorney-client, and they were authorized access to a redacted timeline, which everything had been redacted regarding anything pertaining to attorney-client information." Additionally, associate counsel indicated that Ms. Gore was the one who most often came to his office to review the records and averred that she was told there were "limits to what [she] could look at" in the war room. Associate counsel affirmed that Ms. Gore was left alone in the war room. However, in associate counsel's opinion, "it was clearly understood and explained that there were certain statements that [Ms. Gore] could copy and there was a redacted timeline, and that was the limitation of the information that [they] were providing to [the co-defendant's] defense team." According to associate counsel, Ms. Gore was never given unfettered access to everything in the war room.

         After being informed by the co-defendant's attorneys that they had the unredacted timeline in their possession, associate and lead counsel "initiated a letter to Ms. Gore and Mr. Terry to return the information and make no copies." According to associate counsel, they also had a meeting with the co-defendant's lawyers and requested that the document be returned, to no avail. Associate counsel indicated that he was "surprised" by Ms. Gore's behavior, but he acknowledged that no ethical complaint based upon her behavior was ever filed.

         Associate and lead counsel also obtained independent counsel to represent them regarding the inadvertent disclosure. Nonetheless, associate counsel acknowledged that he did not take any steps to withdraw from the Petitioner's case upon learning of the disclosure or retaining his own counsel. In addition, associate counsel did not recall ever informing the Petitioner about the inadvertent disclosure of the unredacted timeline to the co-defendant's attorneys, which included the Petitioner's incriminating statements.

         Associate counsel affirmed that he testified at the co-defendant's motion for new trial hearing in 2000 and that at that time, he testified "at least, partially, about the disclosure of this [unredacted] timeline." Associate counsel indicated that he did not get authorization from the Petitioner "to share any of his client file with anyone," much less ever seek or obtain a waiver from the Petitioner to testify about privileged information. When asked if he remembered "working with Ms. Gore to draft an affidavit that was . . . intended to be signed by [the Petitioner] in support of" the co-defendant, associate counsel responded that he had "a vague recollection of something to that [e]ffect." Associate counsel was able to recall that the Petitioner never signed any affidavit, though.

         Associate counsel affirmed that he represented the Petitioner through the completion of the motion for new trial proceedings. When asked if he met with the Petitioner following the Petitioner's jury trial until the motion for new trial was adjudicated, associate counsel replied that he had met with the Petitioner "either once or twice at Turney Center"[8] and possibly "met with him at one of these facilities in west Tennessee." Associate counsel acknowledged writing a March 17, 2005 letter to the Petitioner, advising the Petitioner that the Petitioner's motion for new trial had been denied, enclosing a copy of the order, advising the Petitioner that a notice of appeal must be filed within thirty days, and enclosing a pro se notice of appeal, along with a self-addressed, stamped envelope. Associate counsel indicated that at the time he wrote the letter, he had not been granted permission to withdraw from the Petitioner's case. In addition, associate counsel acknowledged that he had an obligation to file a notice of appeal on behalf of an indigent defendant he had been appointed to represent.

         Associate counsel identified a motion to withdraw he ultimately filed on July 11, 2005, in which he noted that the co-defendant's attorneys had obtained the unredacted timeline from his office and that the trial court had ruled that this constituted a waiver of the attorney-client privilege. Associate counsel further stated in the motion to withdraw that it was now a "direct conflict" of interest for him to further represent the Petitioner because he would be called as a material witness in the future regarding the co-defendant's case. Associate counsel then agreed that "the reason of the timeline existed as early as before the [co-defendant's] trial in 1997" and that he testified as "a material witness[] as early as the year 2000[.]" Associate counsel could not provide any explanation for why he had not chosen to withdraw earlier.

         When asked about why the motion for new trial proceedings lingered, associate counsel explained, "I think, if I remember correctly, there was real issues in Montgomery County at the time when they had a tornado, and also with the transcripts and the record." Associate counsel could not recall if the motion for new trial was submitted on briefs or whether a hearing took place.

         Michael Terry testified that he, along with his law partner, Stephanie Gore, represented David Housler, the Petitioner's co-defendant, on charges relating to the Taco Bell robbery and murders. Mr. Terry stated that they spoke with the Petitioner's lawyers about "strategies that were being . . . deployed" on the Petitioner's behalf, but Mr. Terry did not recall having any "formal joint defense agreement" with trial counsel. Mr. Terry explained, "We both-to a certain extent before their trial and to maybe a larger extent afterwards they shared information with us, and we discussed-we discussed the case with them." Specifically, Mr. Terry recalled a conversation with trial counsel where they told Mr. Terry and Ms. Gore that the co-defendant was innocent. According to Mr. Terry, when Ms. Gore asked "how do [they] know that," trial counsel "said nothing." Mr. Terry surmised that trial counsel were legally prohibited from sharing any additional information they had obtained from their client in that regard. According to Mr. Terry, "there were other meetings and other information exchanged" as well. Mr. Terry also conveyed that he and Ms. Gore had access to the Petitioner's "defense team war room," which housed "[b]oxes and boxes of investigation" and "there were files all over." Mr. Terry opined that trial counsel were "excellent lawyers," who had conducted "a thorough investigation."

         At some point, Mr. Terry became aware of both a redacted and an unredacted timeline covering the relevant events surrounding the Taco Bell murders and robbery that had been prepared for the Petitioner's defense. Trial counsel had provided them with a copy of the redacted timeline, but Ms. Gore later acquired a copy of the unredacted timeline. According to Mr. Terry, he was on a trip when he spoke with Ms. Gore, who informed him of the following:

[S]he told me that she had gone to this room where this information was. And [associate counsel] had directed her to certain boxes that she was-she could have access to and that she had gone beyond his direction and gone to other boxes and she had found the unredacted timeline; and it was there. And she said it-it confirms what they told us that [the co-defendant] didn't have anything to do with Taco Bell, what should we do with it? And, again, whether it was in that conversation or in a second conversation, whether she had taken it or we agreed on that conversation to take [it], I cannot recall today, but we-we agreed to take it, or she had taken it, and we acquired the unredacted timeline in that way.

         Mr. Terry confirmed that trial counsel did not give them permission to take the unredacted timeline. Furthermore, Mr. Terry believed that they told trial counsel they possessed the unredacted timeline sometime prior to the co-defendant's November 1997 trial, and he agreed that trial counsel ultimately obtained their own representation regarding the inadvertent disclosure of the document.

         Additionally, prior to the co-defendant's trial, Mr. Terry became aware that trial counsel had engaged in an ex parte communication with the trial judge after the completion of the Petitioner's trial. Mr. Terry recalled, "And the information that was given to me was that [the trial judge] had those two lawyers for dinner after the [Petitioner's] trial and that they told him after dinner that-that [the co-defendant] was innocent, that [the co-defendant] did not commit the Taco Bell murders." Mr. Terry believed that trial counsel called him and informed him of this meeting with the trial judge. According to Mr. Terry, the parties discussed, prior to the co-defendant's trial, the "the issue of recusal" of the trial judge, and all parties agreed to the trial judge's remaining on the case.

         Ms. Gore likewise testified that she and Mr. Terry had meetings with trial counsel, although she did not remember there being "any kind of written joint defense agreement in place between the two defense teams[.]" Ms. Gore also recalled meeting the investigator who had worked on the Petitioner's case.

         Ms. Gore confirmed that she was granted access to the Petitioner's "defense team war room," which was located in associate counsel's law office. Ms. Gore described it as "a small library which contained all of the [Petitioner's] files that [she] was aware of." According to Ms. Gore, on one occasion while she was in the war room, associate counsel provided her a copy of the redacted timeline. Ms. Gore indicated that when associate counsel gave her the timeline, he said; "I don't know why [lead counsel] redacted this; I don't know what good it's going to really do you; I wish I could give you the unredacted timeline."

         Furthermore, Ms. Gore relayed that there were no "ground rules" for her while she looked through the Petitioner's files and that associate counsel told her that she "could copy anything in that room that [she] found would be helpful to" the co-defendant. Ms. Gore described that she was alone in the war room "looking through" "a stack of a lot of different timelines" when she discovered the unredacted timeline:

Most of the timelines that I saw, some of them had redaction, but I just remember opening up a timeline and going to critical portions, specific days, and I just remember reading something that I had not read before and it was actually about [the Petitioner's] being up in the ceiling. And when I read that I knew that I had not read that before. And I reread it, and-and then I looked at my timeline and realized that it was redacted, and I kept reading it and realized it was an interview of [the Petitioner]. I believe that Gloria Shettles[9] may have conducted that interview, but I can't say for certainty today.

         When asked what "did [she] do with the unredacted timeline at that point," Ms. Gore replied,

My law partner, who was lead counsel at that time, was unavailable, I could not reach him; no one was in the law office at that time, I was by myself, and I did what I thought was in the best interest of my client and I copied the timeline. And I did as I always did after I finished going through materials, I put everything back exactly as I'd found it and I left.

         Ms. Gore said that she later informed Mr. Terry that she had taken the timeline, though she could not remember if that conversation was by phone or when Mr. Terry returned from his trip.

         Ms. Gore explained that the difference between the copy she had previously been provided by associate counsel and the one she found that day was that "it now had statements in it that were previously redacted that were attributed to [the Petitioner.]" Specifically, Ms. Gore explained that the redacted timeline did not include the statement by the Petitioner about coming out of the bathroom ceiling around 2:30 a.m. Ms. Gore agreed that the information contained in the unredacted timeline was "privileged communications." Nonetheless, according to Ms. Gore, she did not "feel that she was doing anything wrong" by copying the timeline because she "had authority to look at anything and copy anything in that office." Ms. Gore indicated that they did not inform trial counsel that they possessed the timeline until sometime after the co-defendant's trial was over. Ms. Gore confirmed that trial counsel then hired legal counsel to represent them concerning the inadvertent disclosure of the document.

         Regarding trial counsels' ex parte communication with the trial judge, Ms. Gore believed that she was told of the meeting by Mr. Terry, who had heard the details from lead counsel. Ms. Gore recalled being informed that the meeting occurred at the trial judge's home and that the trial judge was told that the co-defendant was innocent. Ms. Gore recollected that before the co-defendant's trial, she was present during a meeting with the parties where the trial judge's recusal from the co-defendant's case was discussed due to the fact that trial judge had been told the co-defendant was innocent, though she could not recall for certain if this discussion referenced the ex parte meeting specifically. Regardless, she and Mr. Terry wanted the trial judge to remain on the case because they thought it was in the co-defendant's "best interest," specifically because the trial judge had heard the proof at the Petitioner's trial, had been told the co-defendant was innocent, and "had some indication that there was exculpatory evidence in possession of [the Petitioner.]" In ...

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