Alisha Glisson v. Debra Johnson , 705 F. App'x 361 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0454n.06
No. 16-5737
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ALISHA J. GLISSON, ) Aug 03, 2017
) DEBORAH S. HUNT, Clerk
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
DEBRA K. JOHNSON, Warden, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Respondent-Appellee. )
)
)
Before: GUY, ROGERS, KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. In 2006, a Tennessee jury convicted Alisha Glisson of
felony murder and other crimes for her role in a robbery gone wrong. After the Tennessee courts
affirmed her conviction and denied her motion for post-conviction relief, she filed a petition for
habeas corpus in federal court. The district court denied her petition. We affirm.
I.
A.
Glisson was living in Nashville, Tennessee when she started dating David Sullivan, a
private in the Army who was stationed about an hour away. Sullivan asked Glisson about any
drug dealers that she knew, and she told him about a local marijuana dealer named Randy St.
Laurent. After Glisson and Sullivan had dated for a couple of weeks, Sullivan and his friend
from the Army, Andrew Warner, decided to come to Nashville to rob St. Laurent and beat him
up. The two men drove into town and went to Glisson’s apartment, where they joined Glisson
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and a man named Michael Henry. Glisson told the men that she was planning to spend the
evening out partying with St. Laurent. A rough plan soon formed: the men would try to steal
money and drugs from St. Laurent’s home while he was out with Glisson. Glisson told the men
where St. Laurent lived, and the men drove to a nearby motel to complete their plans.
The men drove from the motel to St. Laurent’s apartment building, where they entered
the wrong apartment at first. They quickly realized their mistake—the apartment was home to a
family with two kids, not a drug dealer—and left. Henry called Glisson to confirm St. Laurent’s
address, and she gave him the correct apartment number. They then knocked on the door to the
right place. As St. Laurent’s pregnant girlfriend opened the door, the men drew guns on her and
barged in, searching the place for drugs and money. They stole about a pound of marijuana,
some jewelry, and around $1,500 in cash—much less than they had hoped for. Then the men
returned to the motel to plan their next steps and make a few phone calls. They decided to steal
whatever St. Laurent had with him, and they drove to Glisson’s apartment to wait for him.
Meanwhile, Glisson left St. Laurent and drove around in a different car with another
young woman, Meredith Runion. Glisson drove Runion to a hotel parking lot and then back to
Glisson’s apartment. St. Laurent soon came by to pick up Runion and go back out partying. He
pulled up to Glisson’s building in his limousine and stepped out of the car. All of a sudden,
Henry, Warner, and Sullivan rushed at him. Warner used a stun gun on St. Laurent, who fell
back into the limo. As Warner and Henry tried to pull him out of the car, St. Laurent fought
back. In the struggle, Henry hit St. Laurent with a gun. The gun accidentally discharged,
shooting St. Laurent. The robbers fled, and St. Laurent later died from the gunshot wound.
Detective Danny Satterfield of the Nashville Police Department soon arrived at the scene,
where he interviewed several witnesses, including Glisson, who had been in her apartment
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during the attempted robbery. Glisson told Satterfield that she had been out partying with St.
Laurent that night, but she did not provide any other useful leads. A few months later, Satterfield
spoke with Glisson again at the police station. In that videotaped interview, Glisson told her
version of what had happened that night. She told the officers, for the first time, about Henry,
Sullivan, and Warner. She explained that the men, while at her apartment, had formed a plan to
steal drugs from St. Laurent’s home. She admitted that she knew about the plan. And she
remembered trying to meet up with Henry at a motel at some point after the men had invaded St.
Laurent’s apartment and walked away unsatisfied. She also claimed she did not know that
Henry, Sullivan, and Warner had killed St. Laurent. Instead, she said, “I just know that they
were going to rob him, and that, since they did not get all his weed at his house, that they thought
that he had it on him or had money on him or whatever.”
During the interview, the police officers showed her some phone records, which
seemingly proved that she had called the men that night and talked to them repeatedly before St.
Laurent’s death. Faced with these records, she admitted to being in phone contact with the men
throughout the night. But she could not remember what she had said on those phone calls,
because she had been “really messed up”—presumably from the drugs and alcohol that she had
consumed. The officers asked her if she had called the men to tell them where St. Laurent would
be later that night. She said “I do not remember saying ‘hey Randy’s on his way, come and get
him.’ I promise you that.” But she backtracked later in the interview, admitting that she “may
have” talked to Henry about finding St. Laurent after the men “did the home invasion” of St.
Laurent’s apartment, and that she “may have called” the men after she got home to let them
know that she was there. Upon further questioning, she eventually said, “I don’t remember, but I
know that I did . . . call him [St. Laurent] and say, ‘hey are you coming’ and then call them [the
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men] and said ‘hey, he’s coming.’” She knew she had done so, she explained, because of the
phone records that the police had shown her.
Based on these statements, the police investigated Sullivan, Warner, and Henry.
Eventually, the three men and Glisson were all indicted for the murder of St. Laurent. Sullivan
promptly pled guilty to second-degree murder and was sentenced to 20 years’ imprisonment.
During Sullivan’s plea hearing, the State read its version of the facts into the record, establishing
that Sullivan, Warner, Henry, and Glisson had conspired together to rob St. Laurent’s apartment
and, later, to ambush St. Laurent outside of Glisson’s apartment. Sullivan stated under oath that
the State’s recitation of those facts was true.
Although the State offered Glisson a plea deal for 15 years’ imprisonment, she refused
and prepared to go to trial. Her counsel hired a private investigator to help prepare her case.
The defense soon learned that the prosecution planned to call Warner and Henry to testify
against Glisson, but not Sullivan. Glisson talked to her counsel about calling Sullivan to testify
in her defense, but counsel ultimately decided that she would neither interview him nor call him
as a witness. Glisson trusted her lawyer’s judgment.
B.
At trial, the prosecution started by calling Henry and Warner as witnesses. According to
Henry, Glisson was involved in the plan to rob St. Laurent from the beginning; he testified that
she had talked to him about the plan before the other men had arrived and that, after Sullivan and
Warner had joined them, they all discussed the plan and decided to split any profits four ways.
Henry said that Glisson was the one who had told them how to get to St. Laurent’s building.
Henry also testified about several phone calls that he had exchanged with Glisson. First,
he called her to ask about which apartment was St. Laurent’s after the men had gone into the
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wrong one, and she told him the right apartment number. Second, he said that he called her from
the motel after the failed home invasion, “[t]rying to find out if [St. Laurent] really had . . . that
stuff and if he had it on him, [and,] you know, where we could find him at.” She apparently
responded that she did not know, but she had “seen the stuff, you know, earlier[,]” and that
“[e]veryone was just out riding around.” Third, Henry said that he talked to Glisson after she
had come home, and that she told them that St. Laurent “was going to end up back over at her
place.” Finally, Henry said that he had been on the phone with Glisson right around the time
when St. Laurent pulled up in his limo. Henry recounted the following conversation for the jury:
“She started telling us, you know, don’t do it, and [I responded that] we already came this far,
it’s right here, just get the money and leave[.] . . . And she said, well, she didn’t want no part of
it[.]” Later Henry added that she also said “well, if you’re going to go ahead and do it . . . don’t
do it here[.]”
Warner testified next and confirmed several points of Henry’s story, including that
Glisson was going to get some of the money from the robbery; that Henry had called someone
after the men had gone into the wrong apartment; that Henry (and Sullivan) had made phone
calls from the motel; and that “somebody ma[d]e a phone call that caused” the men to leave the
motel. According to Warner, the men thereafter went straight to Glisson’s apartment to wait for
St. Laurent.
The State called several other witnesses, including Meredith Runion, Courtney Perry (St.
Laurent’s girlfriend), and Detective Satterfield. And the State played the entire recording of
Glisson’s videotaped interview for the jury. (The trial court excluded all evidence of the content
of the phone records because they had not been authenticated, but it permitted the jury to hear the
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videotape in full despite the officers’ and Glisson’s references to those records.) The defense did
not present any witnesses.
C.
The jury ultimately convicted Glisson on all counts and the trial court sentenced her to a
mandatory term of life imprisonment for felony murder. Glisson appealed, arguing only that
there was insufficient evidence to convict her. The Tennessee Court of Criminal Appeals
affirmed her conviction on the merits, and the Tennessee Supreme Court denied review. State v.
Glisson, No. M2006-02115-CCA-R3-CD, 2008 WL 624929, at *1 (Tenn. Crim. App. Mar. 5,
2008), perm. app. denied (Tenn. Aug. 25, 2008) (Glisson I).
Glisson thereafter filed a state motion for post-conviction relief, again arguing that the
evidence against her was insufficient and adding a claim that her trial counsel had been
ineffective when she had failed to interview Sullivan or call him as a witness. At a hearing on
the post-conviction motion, Sullivan testified that the entire robbery had been his idea and that he
had manipulated the others into going along with it. Specifically, he said that he had tricked
Glisson into thinking he just wanted to buy drugs from St. Laurent—“At the time,” he said, “it
wasn’t about a robbery, it was about a drug deal. I turned it into a robbery.” Glisson also
testified, explaining that she had talked to her counsel before trial about getting Sullivan to
testify and that she thought Sullivan would “take responsibility” for what had happened.
In response, the State called Glisson’s counsel, Cynthia Fort, to testify. Fort explained
that she had worked with a private investigator to look into Sullivan’s background, which, as
Fort told Glisson, made Sullivan seem like a “thug.” Fort also asked the investigator to look into
Sullivan’s plea deal, because she was suspicious of Sullivan’s motives for pleading guilty so
quickly. The investigator discovered that Sullivan had negotiated the plea under pressure, in
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connection with another case against him for an offense he had committed while he was AWOL
from the Army. Fort testified that she knew Sullivan’s plea was not necessarily in his best
interests, and that any facts read into the record by the State during Sullivan’s plea proceedings
would have “implicated not only himself but Ms. Glisson[.]” Fort also spoke with Sullivan’s
attorney. Ultimately, Fort concluded that her defense strategy had to be to “separate [Glisson] as
much as we could from the three bad guys”—including Sullivan.
The Tennessee trial court denied Glisson’s motion for post-conviction relief, the Court of
Criminal Appeals affirmed, and the Tennessee Supreme Court denied review. Glisson v. State,
No. M2010-01483-CCA-R3-PC, 2011 WL 3841971, at *1 (Tenn. Crim. App. Aug. 30, 2011),
perm. app. denied (Tenn. Jan. 13, 2012) (Glisson II). Glisson thereafter filed this federal habeas
petition, which the district court denied. This appeal followed.
II.
We review de novo the district court’s denial of a habeas petition. Barton v. Warden, S.
Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015).
A.
Glisson argues that her conviction violated her due-process rights because the
prosecution did not prove that she was guilty of felony murder beyond a reasonable doubt. To
succeed on this claim, Glisson must overcome “two layers of judicial deference”: one to the state
court that ultimately rejected her argument on the merits, and one to the jury that convicted her.
Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). We must uphold the Tennessee
court’s decision on the merits unless the court’s adjudication of her claim was objectively
unreasonable. Id. And we must uphold the jury’s conviction if, “after viewing the evidence in
the light most favorable to the prosecution,” we find that “any rational trier of fact could have
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found the essential elements of the crime beyond a reasonable doubt.” Id. at 2064 (emphasis in
original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
To convict Glisson of felony murder under Tennessee law, the jurors had to find that
Glisson was criminally responsible for the “killing of another committed in the perpetration of” a
felony—here, attempted aggravated robbery—and that she had the intent necessary to commit
the underlying felony. See Tenn. Code. Ann. § 39-13-202(a)-(b); Glisson I, 2008 WL 624929, at
*6. Glisson was criminally responsible for the attempted robbery here only if she “solicit[ed],
direct[ed], aid[ed], or attempt[ed] to aid” the three perpetrators in the attempted robbery and did
so “with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense.” Tenn. Code Ann. § 39-11-402(2).
Glisson contends that no reasonable juror or jurist could have concluded, based on the
evidence at trial, that she possessed the criminal intent necessary to be criminally responsible for
the men’s botched robbery of St. Laurent outside her apartment (as opposed to the earlier
robbery of St. Laurent’s apartment). But Glisson overlooks that jurors may “draw reasonable
inferences from basic facts to ultimate facts.” Coleman, 132 S. Ct. at 2064 (citation omitted).
Here, the jury could have reasonably done exactly that. The most basic facts in this case came
from Glisson’s own statements in her videotaped interview. She expressly admitted to knowing
that the men were going to go to St. Laurent’s apartment to try to steal drugs from him. She also
acknowledged that she may have spoken with the men on the phone throughout the evening,
including after the unsuccessful home invasion. And she remembered driving to a motel looking
for Henry late in the evening. A jury could reasonably infer from these admissions that Glisson
was involved in the venture from beginning to end and that she deliberately helped the men by
calling them on the phone to keep them apprised of St. Laurent’s whereabouts.
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Those inferences were even more reasonable after the jury heard from various other
witnesses. Meredith Runion—another woman who had been driving around with St. Laurent
that night—testified that she and Glisson had together left St. Laurent and that Glisson had
driven her to a hotel for no apparent reason. Meanwhile, Henry and Warner testified that Glisson
had helped plan the robbery of St. Laurent’s apartment and that she was going to get a cut of any
proceeds from it. The men also testified about Henry’s various phone calls throughout the
evening. Some of those calls—particularly the ones that Henry described as taking place after
the unsuccessful home invasion—could allow a jury to infer that Glisson knew about the change
in the men’s plans and had helped them by telling them that St. Laurent was going to be at her
apartment. A jury could also infer that Glisson had helped the men from the very fact that they
knew to wait for St. Laurent outside her apartment. All of these facts, taken together, justified
both the jury’s conviction and the Tennessee courts’ denial of Glisson’s insufficiency claim.
Glisson makes two arguments in response. First, she says that no reasonable juror could
have convicted her because she told Henry that she wanted no part of the robbery of St.
Laurent’s person and had told him “[d]on’t do it.” But the call in which Glisson told Henry not
to “do it” came well after the men were already positioned outside of her apartment; Henry
testified that he was talking to Glisson right as St. Laurent arrived. Hence a jury could have
concluded that Glisson had already called the men to tell them that St. Laurent was coming to the
apartment and that Glisson’s attempt to talk them out of it was too little too late: at the moment
she aided the men with the intent that they commit the aggravated robbery, she became
criminally responsible for their attempt. See Tenn. Code Ann. §§ 39-11-402(2), 39-12-101(a)(2),
(3). And once criminally responsible, she could withdraw only by “prevent[ing] the successful
commission of the offense” and making a “complete and voluntary renunciation of the” group’s
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criminal purpose. Id. at § 39-12-104. The Tennessee courts reasonably rejected her argument
that she had renounced the attempt by making a single, belated plea not to rob St. Laurent—or at
least not to do it outside of her apartment. See Glisson I, 2008 WL 624929, at *8. Moreover, a
jury could have disbelieved Henry’s testimony or concluded that Glisson’s attempted withdrawal
was itself evidence that she had known what was about to happen. And a jury could infer from
that knowledge, along with the help she provided to the men, that she intended to and actually
did aid them in their attempted robbery. That she thereafter had a change of heart does not
negate her criminal responsibility for aiding the attempted aggravated robbery here.
Second, Glisson asserts that the State lacked sufficient evidence because it relied solely
on the testimony of Warner and Henry. In Tennessee, as a matter of common law, “a conviction
may not be based solely on the uncorroborated testimony of an accomplice.” State v. Shaw,
37 S.W.3d 900, 903 (Tenn. 2001). But when the Tennessee courts say “solely,” they mean it:
even the existence of “slight circumstances” that “tend to connect the defendant with the
commission of the crime charged” is enough to corroborate an accomplice’s testimony. See
State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997). And that slight evidence is
enough even if it would “not be adequate, in and of itself, to support a conviction” and does not
“extend to every part” of the accomplice’s testimony. Shaw, 37 S.W.3d at 903 (citation omitted).
The State disputes whether this rule applies at all to a federal constitutional claim in a
habeas petition because, it asserts, “the Constitution says nothing about accomplice testimony
and even uncorroborated accomplice testimony is constitutionally sufficient to support a
conviction.” State Br. at 43. We need not resolve this dispute, however, because Glisson’s
argument fails on its own terms. As shown above, Glisson’s videotaped interview confirmed
portions of Warner’s and Henry’s testimony about her involvement. Moreover, both Runion and
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Glisson testified to a fact linking Glisson to the men’s crime: Glisson’s attempt to find Henry at
the motel. Runion’s and Glisson’s statements were “entirely independent” of Henry’s and
Warner’s testimony and could “lead[] to the inference, not only that a crime [was] committed,
but also that the defendant [was] implicated in it.” Shaw, 37 S.W.3d at 903 (citation omitted).
The Tennessee Criminal Court of Appeals was therefore reasonable in concluding that the
accomplices’ testimony was corroborated and that their statements, combined with Glisson’s
videotaped interview, provided the jury with enough evidence to convict Glisson as an “active
participant in the attempted robbery” who was “accountable for all consequences flowing from”
the crime. Glisson I, 2008 WL 624929, at *8 (quoting State v. Hinton, S.W.3d 113, 119 (Tenn.
Crim. App. 2000)).
B.
Glisson also argues that she is entitled to habeas relief because, she says, her trial lawyer,
Cynthia Fort, was ineffective when she failed to interview David Sullivan while preparing
Glisson’s defense. Although Glisson presented this argument to the Tennessee Court of
Criminal Appeals in her motion for post-conviction relief, the parties dispute whether the state
court actually addressed the argument in its decision. See Glisson II, 2011 WL 3841971, at *5.
According to Glisson, the state court did not “separately address this specific issue” and we
should therefore “afford no deference to the state court opinion” on that point. See English v.
Romanowski, 602 F.3d 714, 728 (6th Cir. 2010). But we need not resolve this dispute because,
whether we review the issue deferentially or de novo, the outcome here is the same.
To make out a claim for ineffective assistance of counsel, Glisson must show that her
counsel’s assistance was defective, i.e., that it “fell below an objective standard of
reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland v. Washington,
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466 U.S. 668, 688 (1984)). Generally, “counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations unnecessary.” Id. (citation
omitted). But a lawyer’s “strategic choices”—even those “made after less than complete
investigation”—are reasonable “precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Strickland, 466 U.S. at 690-91. When we examine “a
particular decision not to investigate” for reasonableness, we must apply “a heavy measure of
deference to counsel’s judgments.” Id. at 691.
Before Glisson’s trial, Fort investigated Sullivan and then made strategic decisions not to
interview him or to call him as a witness. Fort hired a private investigator to look into Sullivan’s
background and the reasons behind his quick guilty plea. This investigation uncovered “a lot” of
information about Sullivan, and made Fort worry about his potential testimony and his
impression on the jury as a “thug.” Fort later spoke to Sullivan’s lawyer, albeit briefly. She also
spoke to Glisson herself about what Sullivan might say if interviewed. See id. And perhaps
most important, Fort learned that, during Sullivan’s plea hearing, he had agreed under oath that
Glisson was a full-fledged conspirator in the crime. Fort therefore knew that, even if she called
Sullivan as a witness and he testified more favorably to Glisson, the State could readily impeach
him. Hence Fort’s investigation was constitutionally adequate.
Glisson counters with three cases that she says require attorneys always to interview—
rather than investigate—potential witnesses like Sullivan. But those cases stand for more limited
propositions. In one case, counsel was deficient when he “simply decided not to call” or
interview a witness despite acknowledging a “need to do so.” Towns v. Smith, 395 F.3d 251, 259
(6th Cir. 2005). In another case, counsel told the jury he would call a particular witness and then
did not, all without having adequately investigated or interviewed the witness. English, 602 F.3d
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at 728-29. In the third case, counsel “plainly did not” make a “tactical decision” of any sort in
choosing not to call or interview a putative alibi witness. Griffin v. Warden, Md. Corr.
Adjustment Ctr., 970 F.2d 1355, 1358-59 (4th Cir. 1992). None of these cases, therefore,
involved the sort of investigation and strategic judgment that Fort engaged in here. Indeed,
Glisson concedes that she is unaware of any federal appellate case in which the court deemed
counsel ineffective for choosing not to interview a witness who had already testified under oath
about the relevant facts. Thus her claim is without merit.
* * *
The district court’s judgment is affirmed.
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