Lamont Johnson v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2016
LAMONT JOHNSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Gibson County
No. 8954 Clayburn Peeples, Judge
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No. W2016-00090-CCA-R3-PC- Filed November 30, 2016
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The petitioner, Lamont Johnson, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel at trial. After our review of the record, briefs, and applicable law, we affirm the
denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. MCMULLEN, JJ., joined.
Anna Banks Cash, Jackson, Tennessee, for the appellant, Lamont Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler
Parham and Jason Scott, Assistant District Attorney Generals, for the appellee, State of
Tennessee.
OPINION
FACTS
In 2010, a Gibson County jury found the petitioner guilty of first degree murder in
the perpetration of aggravated child abuse for the death of his five-month-old daughter.
The petitioner was sentenced to life with the possibility of parole, and he appealed. On
direct appeal, this Court summarized the factual and procedural history of the petitioner‟s
case as follows:
On March 1, 2010, the [petitioner] was indicted on one count of first
degree felony murder in violation of Tennessee Code Annotated section 39-
13-202. The indictment alleged that the [petitioner] unlawfully killed the
five-month-old victim during the perpetration of aggravated child abuse.
The charges stemmed from activity that occurred on July 8, 2009.
At 12:33 p.m. on that date, the [petitioner] called 911 and reported
that the victim was not breathing. When EMTs arrived at the scene, they
observed the [petitioner] and a lifeless infant on the floor. The EMTs
immediately began CPR and transported the victim to the hospital. An
emergency room physician and the hospital‟s staff attempted pediatric
lifesaving procedures for approximately one hour before the victim was
declared dead.
The victim‟s autopsy revealed that she had died of multiple blunt
force injuries to her head, chest, and abdomen. Based on a timeline
provided by the [petitioner] and the victim‟s mother, investigators
concluded that only the [petitioner] and his son were at home with the
victim when the injuries occurred. When confronted with the autopsy
findings, the [petitioner] claimed to investigators that the victim had
stopped breathing after she had fallen off of a sofa. However, experts at the
[petitioner‟s] trial later opined that the victim‟s injuries were not consistent
with her having fallen off of a sofa and could not have been caused by the
administration of CPR. One expert opined that the victim‟s injuries-which
included retinal detachment, massive internal bleeding, a front-to-back
skull fracture, and multiple rib fractures-could only have been caused by
“extraordinarily violent” shaking that “would be very frightful to someone
who was watching it.”
At the [petitioner‟s] trial on December 12-13, 2011, the defense
predicted in its opening statement that the prosecution‟s witnesses would
not tell “the whole story” concerning the incident and stated its confidence
that after considering all of the evidence the jury would feel compelled to
return with a verdict of not guilty. At no point during that statement was
any reference made to the [petitioner‟s] eight-year-old son. However,
during the defense‟s cross-examination of the State‟s penultimate witness,
the victim‟s mother, defense counsel asked questions apparently intended to
cast suspicion upon the boy.
During her direct testimony, the victim‟s mother testified that she
and her children were living together and that the [petitioner] had been in
the process of moving in with them when the incident occurred. She also
gave testimony about the events that transpired at the hospital following the
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incident, and she related her grief when she learned that her daughter had
died. She testified concerning the [petitioner‟s] behavior on the day of the
incident and on the following day, which involved fainting, drinking,
smiling, and laughing at various points. She described the couple‟s initial
interviews with the police after the victim‟s death was ruled a homicide.
She testified that prior to the police investigation, the [petitioner] had never
mentioned anything to her about the victim having fallen off of a sofa. She
testified that she first learned that the [petitioner] was making such a claim
from the investigating officers.
During the victim‟s mother‟s cross-examination, however, the
defense focused almost exclusively on the witness‟s feelings concerning the
[petitioner‟s] son. The victim‟s mother testified that the [petitioner‟s] son
lived nearby with his mother and that he would frequently come over to her
house to spend the night. The victim‟s mother acknowledged that she had
seen the [petitioner‟s] son hold the victim in the past. The victim‟s mother
admitted that she had asked one of the investigators if the [petitioner‟s] son
had been anywhere around the victim on the day of the incident. The
victim‟s mother also testified that the [petitioner‟s] son had been in lots of
trouble at school, had “all sorts of problems” with fighting and violence,
and that she was “[j]ust a little bit” concerned about the [petitioner‟s] son
being around her children.
After this testimony, the State‟s final witness, an investigating
officer, testified concerning the investigation generally and discussed a
statement given by the [petitioner] to police, in which he claimed to have
left the victim on a living room sofa while he made her a bottle and that she
fell on the floor, “crying loudly,” when he came back in. The witness
testified that the [petitioner] claimed to have noticed that the victim was
having difficulty breathing shortly afterward.
During cross-examination, defense counsel questioned the witness
concerning the degree to which the [petitioner‟s] son had been investigated
as a possible suspect. The witness replied that the [petitioner‟s] son had
undergone a “forensic interview.” The witness testified that the
[petitioner‟s] son had told them that he had been in the back bedroom
playing video games throughout the relevant time period and that he had
not seen anything that had transpired. Defense counsel asked the witness if
he had spoken to anyone at the [petitioner‟s] son‟s school concerning the
[petitioner‟s] son‟s reputation as a bully, and the witness replied, “No sir.”
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At this point, the record reflects that a bench conference was held, but the
conference was not recorded.
Following this testimony, the State rested. Before the defense began
its case the following morning, the State made an oral “objection” in
response to the defense‟s apparent intent to offer character evidence
concerning the [petitioner‟s] son. The State argued that presenting such
evidence was “prohibited by the law and prohibited by the rules” if it was
offered for purposes of showing that the child acted in conformity with
some particular character trait on the day in question. The defense
responded that it intended to introduce the testimony of four of the
[petitioner‟s] son‟s teachers concerning the [petitioner‟s] son‟s “general
conduct,” as well as some of the [petitioner‟s] son‟s “specific acts,” such as
“threatening to kill students” and “saying he was going to harm students”
with various objects that he had brought to school. The defense claimed
that it was entitled to show to the jury that “this is perhaps an extraordinary
child” and that the proffered evidence fell under one of the exceptions to
the general prohibition against character evidence imposed by Tennessee
Rule of Evidence 404(b). The State argued that Rule 404(b) only applied to
defendants in a criminal case, not other witnesses, and consequently the
evidence was not admissible.
The trial court asked the defense if any proof had been presented that
the [petitioner‟s] son had committed the crime. The defense responded that
it only wanted to prove that the [petitioner‟s] son had the “opportunity and
capacity” to commit the crime. The trial court agreed that the [petitioner]
had “an absolute right to present any evidence that someone else committed
the crime,” but disagreed that the [petitioner] had the right to present
evidence that proved only that someone else was merely “capable of
committing the crime.” The trial court concluded by stating “I‟m going to
grant the State‟s motion.”
After the State‟s “motion” was granted, the [petitioner] was advised
of and waived his right to testify in his own defense pursuant to the
procedures established in Momon v. State, 18 S.W.3d 152, 162-63 (Tenn.
1999), and the defense rested without putting on any proof. During closing
arguments, the defense discussed the prosecution‟s failure to prove the
identity of the perpetrator and briefly mentioned the [petitioner‟s] son as a
possible alternative suspect. However, the defense primarily argued that
the prosecution had failed to “connect all the dots” and prove its case
beyond a reasonable doubt.
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After being duly instructed, the jury retired to deliberate at 10:42
a.m. on December 13, 2011, and returned with a verdict finding the
[petitioner] guilty as charged at 11:37 a.m. that same day. The [petitioner]
was sentenced to life in prison. The [petitioner] filed a timely motion for
new trial and an amended motion. The trial court denied the motion. The
[petitioner] filed a timely notice of appeal.
With his amended motion for new trial, the [petitioner] filed four
affidavits from the [petitioner‟s] son‟s former school teachers discussing
the [petitioner‟s] son‟s behavior at school. These affidavits generally
describe the [petitioner‟s] son‟s adoption of the “gangster” lifestyle and
propensity toward sudden outbursts of violence, as well as his habit of
fighting, using profanity, and issuing death threats. One mentions an
incident in which the police had to be called to the [petitioner‟s] son‟s
school “to get [the [petitioner‟s] son] under control.” Another opines that
“[w]ithout a doubt, it is my opinion that [the [petitioner‟s] son] had the
capacity to hurt another child (or baby) seriously.” The teachers generally
claim that they would have testified in a manner consistent with their
affidavits had they been permitted to do so at the [petitioner‟s] trial.
State v. Lamont Johnson, No. W2012-01271-CCA-R3-CD, 2013 WL 2404057, at *1-3
(Tenn. Crim. App. May 30, 2013) (footnotes omitted). After its review, this Court upheld
the rulings of the trial court, noting the petitioner‟s “right to mount a defense” was not
violated by the trial court‟s exclusion of character evidence of the petitioner‟s son‟s
violent propensities. Id. at 6.
Subsequently, the petitioner filed a pro se petition for post-conviction relief. The
trial court appointed present counsel who filed a supplemental brief alleging nine
deficiencies in trial counsels‟ performance.1 Specifically, the petitioner contends trial
counsel: (1) failed to properly cross examine the State‟s expert witnesses, Dr. Miguel
Laboy and Dr. Lisa Piercey; (2) failed to object to references of “shaken baby
syndrome;” (3) failed to file a motion in limine regarding the petitioner‟s prior
convictions, thus affecting his decision not to testify; (4) failed to obtain a medical expert
for the defense; (5) failed to request a hearing on the defense motion for a speedy trial;
(6) failed to thoroughly investigate and question the victim‟s mother regarding prior
injuries to the victim, including allegedly dropping the victim prior to her death; (7)
failed to file a motion to suppress the petitioner‟s recorded statement; (8) failed to
1
The petitioner was represented by two attorneys at trial, the District Public Defender and an
assistant public defender.
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produce a potential key defense witness, Latoya Love, the victim‟s mother‟s cousin; and
(9) failed to call the petitioner‟s son as a witness.
The petitioner testified at the post-conviction evidentiary hearing. He also
presented evidence from Dr. Laboy and trial counsel from the District Public Defender‟s
office. The post-conviction court summarized the evidence produced at the hearing, as
follows:
Dr. Miguel Laboy testified as to his finding of the autopsy in this
matter. He stated that the child died as a result of blunt force trauma. He
testified that there were no bruises on the child other than a healing
abrasion on the left forearm. He testified that the injuries could have
occurred up to two (2) hours prior to the death of the child. He testified
that he did not classify this as a “shaken baby syndrome” case, but that the
child died of blunt force trauma. Dr. Laboy testified that the child had
healing fractures of her ribs, as well as, “re-breaks.”
[The Public Defender] testified that they did not get an outside
opinion from a medical expert, but that he did do internet research and
possibly did speak to Dr. Lisa Piercey. He also testified that he spoke with
the [petitioner] in general about his right to testify and that [the public
defender‟s investigator] went to the jail to do a mock cross examination
with the [petitioner] to see whether the [petitioner] would get “tripped up”
during cross examination. [The Public Defender] then testified that it was
after this mock cross examination that they discussed that the [petitioner]
didn‟t want to testify after a fear that he would open the door to allow the
State to cross examine him on prior convictions of Domestic Assault.
During cross examination, [the Public Defender] testified that he was
allowed to put the [petitioner] on the stand prior to the close of their proof
and voir dire him about his desires to testify. The [petitioner] during this
examination stated on the record that he understood it was his right to
testify and that if he chose not to testify, the jury would be instructed not to
draw any inferences; that no one could prevent him from testifying and that
he had consulted his attorneys and had been advised of the advantages and
disadvantages of taking the stand. [The Public Defender] testified that he
was surprised by the answer of [the investigating officer] when asked on
cross examination if [the petitioner‟s son] was eliminated as a suspect
because he didn‟t consider conducting a forensic interview “eliminating”
the child as a suspect. However, on cross examination, [the Public
Defender] did testify that the [investigating officer] quoted the forensic
interview and he quoted the statement of [the petitioner‟s son] correctly.
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[The assistant public defender] testified that [the public defender‟s
investigator] talked with most of the witnesses prior to trial at her direction.
She also testified that [the Public Defender] conducted the cross
examination of [the investigating officer].
Lamont Johnson, the [p]etitioner, then testified that [the assistant
public defender] had filed a Motion for a Speedy Trial on September 27,
2010, but that his trial wasn‟t until December 12, 2011. He also testified
that he felt that Brittany Short, the children‟s mother, was responsible for
the old injuries and that his lawyer failed to cross examine her. He testified
that he had not been around the children much, until three to four weeks
prior to the death of [the victim]. He also testified that Latoya Love said in
her statement that [the victim] was a happy baby. He contended that [the
victim] could not have been a happy baby because she could have had
broken ribs up to four weeks prior to her death. None of these witnesses:
Brittany Short, Latoya Love or [the petitioner‟s son] were presented to the
[c]ourt. The [p]etitioner then contended that the action of the prosecutor
during closing arguments by tearing the picture of the children apart was
inflammatory and that counsel should have objected.
After its thorough review of the evidence presented, the post-conviction court
denied relief to the petitioner finding he failed to prove ineffective assistance of trial
counsel by clear and convincing evidence. This appeal followed.
ANALYSIS
On appeal, the petitioner generally alleges he was unable to present a “complete
defense” based on three proffered deficiencies of trial counsel.2 First, the petitioner
asserts trial counsels‟ failure to present a medical expert in its defense was unreasonable.
He next argues trial counsel failed to properly cross-examine Dr. Laboy and Dr. Piercey.
Finally, the petitioner claims trial counsel failed to appropriately address an alleged
misstatement in the investigating officer‟s testimony. The State asserts the petitioner‟s
claims are meritless. After our review, we agree with the State.
The petitioner bears the burden of proving his post-conviction allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of fact
2
This Court will only address the issues briefed by the petitioner on appeal, all others are deemed
waived. See Tenn. R. App. P. 27(a)(4), (7); Harvey v. State, 749 S.W.2d 478, 479 (Tenn. Crim. App.
1987).
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established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court‟s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). Thus, this Court reviews the petitioner‟s post-conviction allegations
de novo, affording a presumption of correctness only to the post-conviction court‟s
findings of fact. See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn.
1999).
To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsels‟ performance was deficient and that counsels‟ deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel‟s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. 466 U.S. at 687. Thus, courts are not required to even
“address both components of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697; see also Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (stating that “a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim”).
A petitioner proves a deficiency by showing “counsel‟s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel‟s
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unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel‟s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action „might be
considered sound trial strategy.‟” Strickland, 466 U.S. at 689 (quoting Michel v. State of
La., 350 U.S. 91, 101 (1955)).
Here, the thrust of the petitioner‟s appellate arguments are based on his theory that
absent the deficiencies of trial counsel, evidence could have been presented showing
someone else could have committed the crimes against the victim. His claims rest on his
suggestion that Dr. Laboy and Dr. Piercey presented conflicting testimony as to the time
it would take for the victim‟s injuries to manifest after the abuse.3 However, no evidence
exists in the record to support the petitioner‟s theory. Rather, the record makes clear the
victim suffered acute, blunt force trauma prior to her death, and the petitioner was the
only adult with the victim at the time she was injured. At trial, the petitioner attempted to
put forth the theory that his eight-year-old son, who was also in the house at the time of
the victim‟s injuries, could have injured the victim. However, as found by the post-
conviction court, “not even a smidgen” of evidence exists supporting the petitioner‟s
theory that his eight-year-old son was involved in injuring the victim. It is under this
framework that we now address the specific allegations presented on appeal.
The petitioner makes two allegations concerning the State‟s expert medical
witnesses and trial counsels‟ handling of the same. First, the petitioner argues trial
counsels‟ failure to obtain an independent medical expert was unreasonable. The
petitioner claims “[h]ad trial counsel sought an independent medical expert, that expert
easily could have described the important differences between the two physicians‟
testimony, particularly with regard to the possible timing of when the victim‟s symptoms
could have arisen following the injury.” The petitioner argues “[t]his, in turn, would
have allowed [p]etitioner to defend himself by raising the possibility that another person
caused the victim‟s injuries.” These claims are unsubstantiated in the record.
In order “[t]o succeed on a claim of ineffective assistance of counsel for failure to
call a witness at trial, a post-conviction petitioner should present that witness at the post-
conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). “As a general rule, this is the only way
the petitioner can establish that . . . the failure to have a known witness present or call the
The alleged discrepancy lies with Dr. Laboy‟s testimony that “it could be minutes to hours that
3
someone would begin to show changes of the healing process” after suffering abuse like the victim‟s,
while Dr. Piercey testified “in severe head trauma like [the victim‟s], the symptoms come on
immediately, within seconds.”
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witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.” Id. The petitioner has not met his burden. At the post-
conviction hearing, the petitioner failed to present any evidence to dispute the testimony
of either Dr. Laboy or Dr. Piercey. See id. In fact, no evidence emerged suggesting that
an expert witness even exists to dispute the evidence produced by the State at trial.
Rather, the evidence offered at the post-conviction hearing mirrors the medical
proof produced at trial. After Dr. Laboy testified at the hearing, the post-conviction court
stated:
In regards to the medical testimony, Dr. Laboy was today as clear
and unequivocal as he was on the day of trial. It may have been due to the
[c]ourt‟s lack of medical background, however, Dr. Laboy and Dr.
Piercey‟s testimony never appeared to be contradictory, but that they
complimented each other. . . . Also, the [c]ourt could not imagine an expert
anywhere that would or could have testified in this case that could have
overcome the medical proof presented by the State‟s witnesses.
Therefore, no evidence exists regarding the alleged time discrepancy in the testimony of
Dr. Laboy and Dr. Piercey as the petitioner failed to produce an expert to dispute the
State‟s medical proof. Accordingly, the petitioner‟s claim is not supported by clear and
convincing evidence and he cannot establish any resulting prejudice. See Strickland, 466
U.S. at 694; Pylant, 263 S.W.3d at 869. This argument is without merit.
The petitioner also claims trial counsel failed to properly cross-examine Dr. Laboy
and Dr. Piercy by not questioning the experts on the alleged discrepancy in their
testimony. However, as explained above, the evidence produced at the post-conviction
hearing established no discrepancies exist in the testimony of Dr. Laboy and Dr. Piercey.
After hearing testimony from trial counsel regarding their cross-examination strategy, the
post-conviction court explained, “[the Public Defender] did not ask many questions
during cross-examination, but he stopped when he should have stopped.” We agree. The
petitioner has failed to present clear and convincing evidence that trial counsels‟ cross
examination of the State‟s expert witnesses reached the level of ineffective assistance of
counsel as he failed to elicit evidence that a discrepancy in the experts‟ testimony even
exists. As a result, the petitioner cannot prove that he was prejudiced by trial counsels‟
alleged failure to properly cross examine Dr. Laboy or Dr. Piercey. See Tenn. Code Ann.
§ 40-30-110(f); Goad, 938 S.W.2d at 369. The petitioner is not entitled to any relief as to
this issue.
Regarding the petitioner‟s final allegation concerning trial counsel‟s failure to
“correct false testimony” of the investigating officer at trial, we also find this claim to be
meritless. The questioned testimony involves the investigating officer‟s statement
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regarding the role the forensic interview of the petitioner‟s eight-year-old son played in
eliminating him as a suspect in the victim‟s death. The post-conviction court held:
The [c]ourt finds that [the investigating officer‟s] testimony was not
misleading or false. The [c]ourt is not even sure that he misstated the
forensic interview. The [c]ourt finds that there was not even a smidgen of
evidence that the 8 year old brother, [the petitioner‟s son], had anything to
do with the injuries that [the victim] sustained.
Again, the petitioner has failed to present evidence showing the investigating
officer‟s testimony was false or misleading. At trial, the State presented expert medical
testimony, testimony from the investigating officers, and testimony from the victim‟s
mother establishing its timeline and theory of the case. The State‟s proffered testimony
outlined that the victim suffered blunt force trauma prior to her death and that the
petitioner was the only adult with the victim prior to her death. No evidence exists
supporting the petitioner‟s theory that his eight-year-old son, or anyone else, could have
injured the victim. Accordingly, we conclude that the petitioner has not established that
trial counsel‟s failure to object to the alleged false testimony of the investigating officer
prejudiced him in any way. He is not entitled to relief as to this issue.
After our review, we conclude the record is absent any evidence supporting the
petitioner‟s claim that he was unable to present “a complete defense” at trial due to the
alleged deficiencies of trial counsel. Accordingly, the petitioner has failed to show by
clear and convincing evidence that counsels‟ performance prejudiced the outcome of the
proceedings. See Strickland, 466 U.S. at 687. The petitioner is not entitled to post-
conviction relief for his claim of ineffective assistance of counsel.
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.
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J. ROSS DYER, JUDGE
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