James Dominic Stevenson v. State of Tennessee ( 2021 )

09/23/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 13, 2021
JAMES DOMINIC STEVENSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 16-CR-11 M. Wyatt Burk, Judge
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No. M2020-00134-CCA-R3-PC
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The Petitioner, James Dominic Stevenson, was convicted by a jury of attempted first
degree murder, three counts of aggravated assault, and reckless endangerment with a
deadly weapon after he shot his ex-girlfriend in her car in the presence of her child. His
aggravated assault convictions were merged into the attempted first degree murder
conviction, and he received an effective twenty-seven-year sentence. The Petitioner filed
for post-conviction relief, asserting that he received ineffective assistance from his trial
counsel, and his petition was denied after a hearing. On appeal, we affirm the denial of
post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
John M. Schweri, Columbia, Tennessee, for the appellant, James Dominic Stevenson.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Robert J. Carter, District Attorney General; and William Bottoms and
Drew Wright, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
At trial, the State presented physical evidence, including bullet casings, broken
glass, blood spatter, and medical testimony that the victim, Ms. Dixie Matthews, had
been shot in the jaw. The victim testified the Petitioner shot her after she drove to a
parking lot to meet him, and she positively identified the Petitioner as the shooter, noting
that she had been romantically involved with him, that she was able to both see him
clearly and recognize his voice when he entered her vehicle, and that she was absolutely
certain he was the assailant. State v. James Dominic Stevenson, No. M2017-01514-CCA-
R3-CD, 2019 WL 1375349, at *2 (Tenn. Crim. App. Mar. 26, 2019), perm. app. denied
(Tenn. July 18, 2019). The defense tried to introduce reasonable doubt by arguing that
the evidence established that the victim and the Petitioner had never set a location to meet
by text, that the victim could not have communicated other than by text because her cell
phone was malfunctioning, and that therefore the Petitioner could not have been the
shooter.
The victim had been romantically involved with the Petitioner, but the relationship
soured, and the victim obtained a restraining order against the Petitioner in March 2015.
Id. at *1. However, they continued to see each other until around the end of August
2015. Id. Prior to the shooting, the Petitioner discovered through social media that the
victim had announced a pregnancy, and he contacted her on September 4, 2015. Id. The
appellate opinion on direct review gave the following summary of the communication
between the victim and the Petitioner:
The [Petitioner] contacted [the victim] again on the morning of
September 5 by text message, asking whether he was the father of [the
victim’s] unborn child. [The victim] testified that she communicated with
the [Petitioner] via telephone calls and by text messages on September 5.
A series of text messages from September 4 and 5 between [the
victim] and the [Petitioner] were exhibited to [the victim’s] testimony and
shown to the jury. [The victim] explained that during the time of those text
messages, she was in the process of moving from Lewisburg to
Lawrenceburg. During a text message conversation on September 5, [the
victim] stated that her “iPhone almost had it[;] it keeps blacking out and
[the] spe[a]ker quit working.” Later, in that same text message
conversation, the [Petitioner] asked whether he could “see [the victim’s
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toddler son]” that night, to which [the victim] responded, “Yea when we get
back to [L]ewisburg[.]” At approximately 9:55 p.m., [the victim] and the
[Petitioner] had the following conversation via text messages:
[The victim:] We coming into [L]ewisburg now[.]
[The Petitioner:] I’ll be ready[.]
[The victim:] K give us about 5 minutes[.]
[The Petitioner:] Ok[.]
[The victim] testified that she also had a telephone conversation with
the [Petitioner] during the same period that they were text messaging each
other, and the [Petitioner] told her that “he was over at his friend’s house”
and that she should meet him at the Marshall County Plaza (“the Plaza”)….
…
On cross-examination, [the victim] testified that the telephone she
had used to communicate with the defendant was an AT&T iPhone. She
agreed that everything she had stated in her text messages to the [Petitioner]
was true and accurate and that the text messages exhibited to the jury were
all of the messages sent between the [Petitioner] and her. She estimated
that she and the [Petitioner] had also communicated by telephone “about
three or four times” the night of September 5 and that the [Petitioner] had
initiated each of those calls.
Id. at *1-3.
When the victim arrived in the parking lot of the Plaza on September 5, 2015, the
Petitioner got into her car and hit her in the head with a hard object. Id. at *2. The victim
saw a gun in the Petitioner’s pocket, and she told him to get out of the vehicle. Id. The
Petitioner stepped out of the vehicle, and he proceeded to shoot the victim in the jaw. Id.The victim attempted to drive off but stopped the car to retrieve her cell phone when it
fell on the car floor. Id. While the car was stopped, the Petitioner opened the passenger’s
side door, grabbed the cell phone, and ran into the bushes. Id. The Petitioner then fired a
second shot at the vehicle. Id.The victim acknowledged at trial that she had been arrested for theft of a credit
card and was on probation at the time of trial. Id. at *1. The victim testified that she did
not perceive the text messages from the Petitioner as threatening. She also testified that
she had not been threatened by anyone else the night of the shooting. The State objected
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to any further questioning on the issue of third-party threats, and trial counsel did not
pursue further questioning.
Detective Santiago McKlean testified that he did not obtain the call log from the
victim’s cell phone but that he did subpoena the records from the service providers for
both the victim’s and Petitioner’s cell phones. “[H]e stated that he had no evidence of
telephone calls between the [Petitioner] and [the victim] other than [the victim’s]
statement to that effect.” Id. at *3. Trial counsel attempted to ask Detective McKlean
about the records from the service providers, in particular whether the times reflected on
the records were in Coordinated Universal Time (“UTC”) or Central Time, but the trial
court excluded the testimony, ruling that someone from the cell phone service provider
would have to testify in order to interpret the records. Trial counsel entered the records,
which indicated that the times were recorded in UTC, as an offer of proof.
The jury convicted the Petitioner of attempted first degree murder of the victim,
three counts of aggravated assault charged by alternative means, and reckless
endangerment of the victim’s son with a deadly weapon, and the trial court merged the
aggravated assault convictions into the attempted first-degree murder conviction. Id.The Petitioner was sentenced to serve twenty-seven years in prison. Id. His application
for permission to appeal was denied by the Tennessee Supreme Court. State v. James
Dominic Stevenson, No. M2017-01514-CCA-R11-CD (Tenn. July 18, 2019) (order).
Post-Conviction
The Petitioner filed for post-conviction relief, raising twenty-one claims for relief,
including that trial counsel provided ineffective assistance by: (1) failing to procure DNA
testing of the victim’s cell phone; (2) failing to obtain the location service records for the
Petitioner’s cell phone or procure an expert to analyze them; (3) failing to interview the
victim; (4) failing to investigate threats received by the victim from a third party; and (5)
failing to develop a defense.
At the hearing, trial counsel testified that he visited the Petitioner three to five
times in jail and met with him on court dates. Trial counsel reviewed the discovery,
including the victim’s medical records, and he felt adequately prepared for trial. Trial
counsel testified that the State’s evidence was strong because the victim had clearly
suffered a gunshot wound and because she unequivocally identified the Petitioner, with
whom she had had a relationship, as the shooter. The Petitioner filed a bar complaint
against trial counsel, and trial counsel moved to withdraw prior to trial, but he felt that he
maintained a good relationship with the Petitioner during trial.
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Trial counsel did not request fingerprint or DNA analysis of the cell phone or the
cartridge casings. He testified that the victim’s phone had been left in the elements for a
period of time after the shooting and that he accordingly believed there was a low chance
of finding any DNA on it.
Trial counsel did not recall a search warrant for the Petitioner’s cell phone, but he
recalled that the proof introduced by the State was actually taken from the victim’s cell
phone. Trial counsel subpoenaed the records for the Petitioner’s cell phone from his cell
phone service carrier, but he did not specifically ask for the cell phone locator service
records. Trial counsel testified that he had asked the Petitioner about a possible alibi and
that the Petitioner had “directed [trial counsel] not to go down that path.” The Petitioner
never told trial counsel that he was out of the state at the time of the shooting.
Trial counsel testified that the records from the cell phone carrier were not
accurate for Central Time Zone because the records indicated time in UTC. Trial counsel
attempted to introduce proof regarding the correct times, but the State objected that such
proof required expert testimony. Because the court agreed with the State, trial counsel
made an offer of proof regarding the evidence.
Trial counsel acknowledged that he had not interviewed the victim prior to trial
but noted that he had reviewed the victim’s preliminary hearing testimony. He stated that
he prepared for trial with the victim’s audio recorded testimony and that this source
provided the information he needed for the cross-examination of the victim. He tried to
cross-examine the victim with inconsistencies between her preliminary and trial
testimony, but the State’s objections to his questions were sustained. He did not review
the preliminary hearing with the Petitioner or have it transcribed.
Trial counsel did not object to the introduction of the text messages from the
victim’s cell phone because he felt they supported the theory of the defense. The victim
testified at trial that she and the Petitioner had phone conversations prior to the shooting,
but the text messages reflected that the speaker on her cell phone was not functioning.
The text messages never specified a meeting place. Trial counsel asked the victim both if
everything contained in the texts was true and if her cell phone was the only phone she
used, and she answered in the affirmative to both questions. Trial counsel recalled that
Detective McKlean testified that there were no calls between the two cell phones on the
date of the offense. Trial counsel’s strategy was to cast reasonable doubt on the
Petitioner’s identity by arguing to the jury that the victim and Petitioner never agreed to a
meeting place either by text or by telephone and that the Petitioner, therefore, could not
have been the shooter. Trial counsel testified that he avoided further questioning the
victim about the broken speaker because he did not want to give the victim an
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opportunity to provide an explanation regarding how any meeting spot was
communicated.
The victim had made a claim around the time of trial that she was pregnant when
she was not. Trial counsel stated that it was not clear if this claim was an intentional
misrepresentation and that he did not attempt to introduce it at trial. He elaborated that
he did not want to impair the credibility of the defense with the jury by attacking a victim
who had clearly suffered a serious gunshot wound. Trial counsel did not recall any
contradictions in the victim’s testimony regarding how she got to the hospital in
Nashville.
The victim had stolen a credit card close in time to the shooting. Trial counsel
filed a motion to ensure that the evidence would be admissible. However, the State
introduced the conviction during its case-in-chief in order to minimize its impact. Trial
counsel testified that “a third party” had told the victim that the owner of the stolen credit
card was “going to come and get her.” He agreed that the victim had “brought up another
name of someone sending a threatening message” to her at the preliminary hearing. Trial
counsel did not attempt to interview the person who threatened the victim. He tried to
introduce the information during cross-examination, but he stated that the trial court
sustained an objection to the evidence.
The Petitioner testified that his first attorney quit private practice and that trial
counsel advised him to take a twenty-two-year plea offer when they first met. Trial
counsel met with the Petitioner three times in jail. The Petitioner complained to the
Board of Professional Responsibility about trial counsel and asked trial counsel to
withdraw because trial counsel was not communicating with him adequately. Trial
counsel did not review the preliminary hearing testimony with the Petitioner.
The Petitioner asked trial counsel about DNA proof, but trial counsel told him that
the DNA proof did not matter because the victim had identified the Petitioner. Trial
counsel did not obtain DNA testing or ballistics testing. The Petitioner acknowledged on
cross-examination that he had been in a relationship with the victim. Asked if it was
possible that his DNA had been deposited on the victim’s belongings through their
acquaintance and if finding such DNA would have been inculpatory, he stated he was
unsure.
The Petitioner stated that his first attorney had told him to produce his cell phone
so that they could try to use location services to pinpoint his location at the time of the
shooting. However, trial counsel never obtained location service records. The Petitioner
testified that trial counsel never mentioned the possibility of alibi proof until ten days
before trial. He stated he was out of the state on labor day weekend and first heard of the
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shooting when his mother told him he was accused of shooting “somebody.” The
Petitioner clarified that he was not out of the state but in Marshall County on the night of
the shooting.
According to the Petitioner, the victim’s testimony was inconsistent with her
preliminary hearing testimony in that she had testified that she was in an ambulance at
the preliminary hearing but stated at trial that she was moved via life flight. He stated
that he never spoke with the victim on the phone on September 4th or 5th. Instead, the
victim was released from jail and came to see him on September 3rd. The Petitioner
speculated that the “motive behind” the victim’s accusing him of shooting her was that
she was angry either that he had a date with another woman on the night of September
3rd or that he denied being the father of her unborn child.
The Petitioner testified that the woman whose credit card was stolen by the victim
threatened the victim about thirty to forty-five minutes prior to the shooting. Trial
counsel never investigated this threat.
The post-conviction court denied relief on all claims. Pertinent to the issues raised
on appeal, the post-conviction court found that the Petitioner had not established
prejudice regarding trial counsel’s failure to request DNA testing or location service
records because the Petitioner had not introduced any proof at the post-conviction hearing
regarding what trial counsel would have discovered. Furthermore, the Petitioner did not
provide any alibi and instructed trial counsel not to pursue an alibi defense. The post-
conviction court found that trial counsel was not deficient in failing to interview the
victim, failing to challenge her credibility, or failing to pursue the third-party threats
because trial counsel challenged the victim’s credibility on cross-examination. The court
denied each of the claims raised in the petition for failure to establish either deficiency or
prejudice. The Petitioner appeals.
ANALYSIS
The Petitioner asserts that counsel provided ineffective assistance when he: (1)
failed to procure DNA testing; (2) failed to obtain cell phone records and an expert to
interpret them; (3) failed to interview the victim; (4) failed to investigate threats received
by the victim from a third party; and (5) failed to investigate defenses or to retain “a
single expert.” We conclude that the Petitioner is not entitled to post-conviction relief.
Under the Post-Conviction Procedure Act, a petitioner is entitled to relief when
“the conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and convincing
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evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-
conviction court’s findings of fact are binding on the appellate court unless the evidence
preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).
Accordingly, the reviewing court defers to the post-conviction court’s findings regarding
the credibility of witnesses, the weight and value of witness testimony, and the resolution
of factual issues. Id. Questions of law and mixed questions of law and fact are reviewed
de novo. Id. Each element of a claim of ineffective assistance of counsel is a mixed
question of law and fact. Id.Under the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance
of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on a claim
that he was denied his constitutional right to effective assistance of counsel, a petitioner
must prove both that counsel’s performance was deficient and that the deficient
performance caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Deficiency requires showing that counsel’s errors were so serious “‘that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment.’” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (quoting Strickland,
466 U.S. at 687). To demonstrate deficiency, the petitioner must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). Courts must
make every effort “‘to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011)
(quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must be highly deferential
and should indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Id. (quoting State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999)). In evaluating counsel’s performance, “‘[s]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.’” Kendrick, 454 S.W.3d at 458 (quoting Strickland, 466
U.S. at 690-91). The reviewing court must begin with the presumption “that counsel
provided adequate assistance and used reasonable professional judgment to make all
strategic and tactical significant decisions.” Davidson v. State, 453 S.W.3d 386, 393
(Tenn. 2014).
In determining prejudice, the post-conviction court must decide whether there is a
reasonable probability that, absent the errors, the result of the proceeding would have
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been different. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State v.
Honeycutt, 54 S.W.3d 762, 768 (Tenn. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner must show that the deficiency deprived him of a fair trial and called the
reliability of the outcome of the proceeding into question. Finch v. State, 226 S.W.3d
307, 316 (Tenn. 2007). A claim may be denied for failure to establish either deficiency
or prejudice, and the reviewing court need not address both components if a petitioner
has failed to establish one. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
A. DNA Testing
The Petitioner asserts that trial counsel should have obtained DNA testing of the
victim’s cell phone to show that he was not the shooter. Trial counsel testified that he did
not obtain testing because the cell phone had been exposed to the elements for a period of
time. The Petitioner acknowledged at the post-conviction hearing that he had been in a
relationship with the victim. The victim testified at trial that the two had continued to see
each other until close to the time of the shooting, and she positively identified the
Petitioner, with whom she was intimately acquainted, as the person who shot her. The
Petitioner has not adduced any evidence regarding what DNA testing would have shown
or what testimony an expert in DNA analysis would have given. We conclude that the
Petitioner has not established prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990).
B. Cell Phone Evidence and Experts
The Petitioner also asserts that trial counsel was deficient in failing to obtain
evidence regarding his cell phone location at the time of the shooting. The cell phone
records included in the record from trial contain a “Cell Location” column. The
Petitioner has not presented any testimony at the post-conviction hearing to demonstrate
what the cell phone location records would have shown, and accordingly, he has not
established prejudice. See id. We note that the Petitioner testified that he was in
Marshall County on the night of the shooting and that trial counsel testified at the post-
conviction hearing that he asked the Petitioner if he could provide alibi proof, and the
Petitioner instructed him “not to go down that path.”
The Petitioner also asserts on appeal that trial counsel was deficient in failing to
obtain an expert to clarify the time zone reflected in the cell service carrier records or in
failing to ask for judicial notice of the time zone change. These claims were not included
in the written post-conviction petition or decided by the post-conviction court, and they
are accordingly waived. See Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020)
(“Tennessee appellate courts may only consider issues that were not formally raised in
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the post-conviction petition if the issue was argued at the post-conviction hearing and
decided by the post-conviction court without objection.”). In any event, the Petitioner
presented no witnesses to establish what the expert testimony on time zones would have
been, see Black, 794 S.W.2d at 757, and he has articulated no way in which the time zone
evidence affected the verdict, see Berry v. State, 366 S.W.3d 160, 172 (Tenn. Crim. App.
2011).
C. Failure to Interview the Victim
The Petitioner also asserts that trial counsel provided ineffective assistance by not
interviewing the victim. Trial counsel testified that he did not interview the victim but
that he knew what her testimony would be from reviewing the preliminary hearing
testimony, that he was able to obtain the information he needed from her preliminary
hearing testimony, and that he used her prior testimony to impeach her. The Petitioner
does not articulate how an interview with the victim prior to trial would have affected the
outcome of the proceedings. See Berry, 366 S.W.3d at 172 (denying relief when the
petitioner failed to allege any fact that might constitute prejudice). We conclude that the
Petitioner has not established deficiency or prejudice.
D. Failure to Investigate Threats
The Petitioner also asserts that trial counsel performed deficiently by not
investigating the threats made against the victim shortly before the shooting. Trial
counsel testified that a third party told the victim that the owner of the stolen credit card
was “going to come and get her.” Trial counsel acknowledged that he did not attempt to
interview the person who threatened the victim. He testified that he tried to introduce the
information during cross-examination, but the trial judge sustained an objection to the
evidence. At the hearing, no evidence was introduced regarding the threat or what
counsel’s further investigation would have uncovered. See Black, 794 S.W.2d at 757.
Accordingly, the Petitioner has not shown prejudice.
E. Failure to Investigate Defenses or Retain Experts
The Petitioner generally claims that trial counsel failed to “investigate defenses”
or retain “a single expert.” Because the Petitioner has not articulated what specifically
trial counsel should have done in this regard, and because he has not presented the
testimony of any experts to allow an evaluation of prejudice, he has not established
deficiency or prejudice and is not entitled to relief. See id.- 10 -
CONCLUSION
Based on the foregoing analysis, the denial of post-conviction relief is affirmed.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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