James Phillip Hunter v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY SESSION, 1999
September 9, 1999
Cecil Crowson, Jr.
JAMES PHILLIP HUNTER, ) C.C.A. NO. 01C01-9805-CR-00216
Appellate Court Clerk
)
Appellant, )
)
) DAVIDSON COUNTY
VS. )
) HON. SETH NORMAN
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS F. BLOOM PAUL G. SUMMERS
500 Church Street Attorney General & Reporter
5th Floor
Nashville, TN 37219 CLINTON J. MORGAN
Counsel for the State
425 Fifth Avenue North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
KYMBERLY HAAS
Assistant District Attorney
Washington Square, Ste. 500
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
The petitioner, James Phillip Hunter, appeals the order of the Davidson County
Criminal Court denying his petition for post-conviction relief. The petitioner is presently
serving a life sentence as a result of his conviction for premeditated first degree murder in
1993. In 1997, the petitioner filed a post-conviction petition alleging, inter alia, ineffective
assistance of trial counsel. The trial court found no merit to any of the petitioner’s claims
and accordingly denied the petition. On appeal, the petitioner claims that he received
ineffective assistance of counsel at trial and on appeal. After a thorough review of the
record before this Court, we affirm the trial court’s judgment.
I.
A. Trial
In 1993, the petitioner was convicted after a jury trial for the premeditated murder
of Dewey Slanton. His conviction was affirmed by this Court on appeal. State v. James
Phillip Hunter, C.C.A. No. 01C01-9404-CR-00154, Davidson County (Tenn. Crim. App.
filed January 11, 1996, at Nashville), perm. to app. denied (Tenn. June 3, 1996). We recite
the relevant facts as set out by this Court on direct appeal:
On January 8, 1993, Teresa Smoot was celebrating the birthday of
her husband, Michael Smoot, at their residence. Ms. Smoot’s brother,
Ronald Fann, and the victim, Dewey Slanton, were present. Michael Smoot
and the victim were drinking beer. The four watched television for a time
before deciding to go to the Odyssey Club, where Ms. Smoot worked as a
dancer. On their way, they stopped at a liquor store, where Ms. Smoot’s
husband and brother bought a “little bottle of something.” The victim had
also gone inside the store but did not purchase anything. The group
continued their celebration at the club for a time, then took the victim home
because he had to work the next day.
The other three decided to visit another club, the Brass Stables, but
changed their minds on the way and drove towards the Smoot home. As
they entered the alley leading to their driveway, Ms. Smoot saw the victim,
who lived in the neighboring apartments, looking over his shoulder and
-2-
motioning for her to stop. Ms. Smoot yelled, “Wait a minute,” and was pulling
into her driveway to park the car when she heard a gunshot. She then saw
the defendant, who appeared to have something like the butt of a gun on his
“back side,” standing toward the front of her house. As she backed the car
into the alley, she saw the victim clutch his stomach and chest and fall to the
ground. Ms. Smoot ran to the victim, placed a pillow under his head and
covered him with her coat and a blanket. Michael Smoot called 911; Ms.
Smoot joined in the conversation, telling the dispatcher that the defendant
had shot the victim. The defendant, who lived in the same apartment
complex as the victim, went to his sister’s house right after the shooting; he
returned to his apartment a few minutes later.
Ms. Smoot, who conceded that the victim was a close friend, testified
that he was not drunk. She stated that the victim had previously told her that
he “had words” with the defendant over Debra Ryman, the victim’s
ex-girlfriend and a niece to the defendant.
....
Susan Franks, of the Metropolitan Nashville-Davidson County Police
Department, was the first officer to arrive at the scene of the shooting. The
victim, wrapped in a blanket, appeared to be unconscious. Officer Franks
learned that Smoot and Fann suspected the defendant as the assailant.
When the ambulance arrived, she looked for evidence in the nearby
apartment complex. A door to one of the apartments, that belonging to the
victim, was open. The apartment was in disarray and there were two
gunshot holes in the living room wall. As Officer Franks knocked on the door
to the adjacent apartment, she saw that the door to a third apartment was
open, investigated, and found the defendant sitting calmly inside. The
defendant told Officer Franks that he had been asleep when the victim
kicked in the door to his apartment and hit him in the jaw. He stated that he
then took a shotgun from underneath his bed and shot the victim. Officer
Franks found no cuts, bruises, or abrasions on the defendant and
determined that the door had been kicked from the inside out, rather than the
outside in.
....
Homicide Detective Mike Roland took a statement from the defendant.
The defendant, who described himself as nervous and upset, contended that
after he had been attacked by the victim, he got his gun and went to the
doorway of his apartment. While there, he fired two or three times at the
victim who, by then, had fled some distance away but was coming back
toward him. The defendant claimed that when he saw the victim fall, he put
his gun away and went to his sister’s house to call authorities. The
defendant maintained that he had no idea why the victim initiated the attack.
He asserted that he generally tried to stay away from the victim because, in
part, the victim drank heavily and became violent when he did so.
....
Dr. Mona Harlan, a forensic pathologist with the Davidson County
Medical Examiner’s Office, conducted the autopsy. She stated that the
victim suffered multiple pellet wounds which extended from slightly above his
-3-
knees to the top of his head. There was no stippling of the skin near the
wound. That led Dr. Harlan to conclude that the victim had not sustained the
gunshot wound from close range. She estimated that at least fifteen feet
would have separated the victim and the defendant when the victim was
shot. The victim had abrasions on his hand, knee, and forehead, which Dr.
Harlan believed could have been the product of a physical altercation, the
victim’s fall to the ground, or from pellets which had not penetrated the skin.
Dr. Harlan also found that the victim's blood alcohol level was .14.
....
The defendant, a sheet metal worker, testified that he had lived in his
apartment at 128 Rains Road for approximately six months when the
shooting occurred. He stated the victim lived in a nearby apartment with his
niece and that they would occasionally invite him to eat dinner there. The
defendant claimed that he and the victim had never had problems until the
day of the shooting.
He testified that the victim had several guests at his apartment
drinking that day. One of the guests had made a “smart” remark to the
defendant, but the defendant claimed that he had ignored the comment.
When he returned to his apartment, he turned on the television and fell
asleep on the couch. The defendant claimed that the next thing he
remembered was a loud banging at his door. When he answered, the victim,
who smelled strongly of alcohol, struck him in the side of the face. The
defendant contended that the victim, who had previously bragged about his
fighting prowess, hit him about fifteen times. He testified that he retrieved his
shotgun from underneath his bed only after he was hit in the back of the
head; when he did so, the victim stood in the bedroom doorway and cursed
at him. He maintained that the victim was only about fifteen or twenty feet
outside the apartment by the time the shotgun had been loaded. The
defendant claimed that the shotgun started “going off” only after the victim
reached for something in his back pocket. He stated that he had not aimed
his weapon before firing.
State v. James Phillip Hunter, supra, slip op. at 3-11.
B. Post-Conviction Hearing
At the post-conviction hearing, the petitioner complained of trial counsel’s failure to
thoroughly investigate his case prior to trial. He testified that although he had only a ninth
grade education, his attorney required him to make all of the decisions regarding trial
strategy. The petitioner stated that his attorney never reviewed the state’s case with him
nor did he discuss trial strategy with him. He further claimed that his attorney only visited
the crime scene once, which was on the second day of trial. The petitioner testified that
counsel did not independently contact defense witnesses, and the only time counsel spoke
with the petitioner’s proposed witnesses was when the petitioner brought them to counsel’s
-4-
office. He stated that trial counsel did not attempt to have scientific tests performed on any
of the state’s physical evidence.
The petitioner testified that he informed his attorney about his prior criminal record,
including his prior arrests. He further stated that trial counsel was aware of the victim’s
prior criminal record as well as his propensity for violence.
George Duzane represented the petitioner at trial. Duzane testified at the post-
conviction hearing that he had been practicing law since 1979, and at the time of trial
approximately 30%-35% of his practice consisted of criminal cases. He stated that he
spoke with the petitioner on many occasions concerning the state’s case against him.
Although he did not hire a private investigator, he spoke with the police officers
investigating the case several times. He reviewed all of the discovery provided to him, filed
various pretrial motions and visited the crime scene at least twice. Duzane testified that
the petitioner made the decision as to which witnesses to call on his behalf, and he
interviewed every witness that the petitioner suggested. However, he acknowledged that
many of the defense witnesses offered testimony which was contrary to their respective
statements to law enforcement authorities.
Because the petitioner claimed that he killed the victim in self-defense, Duzane
attempted to present evidence of the victim’s violent tendencies, especially after he had
been drinking. However, the trial court would not allow him to present such testimony.
Duzane admitted that he was able to elicit some testimony concerning the victim’s prior
convictions as well as his past violent behavior.
In a written order, the trial court found that the petitioner had not presented sufficient
evidence supporting his claim that trial counsel was ineffective. The trial court concluded
that trial counsel did not provide deficient representation, and the petitioner had not
established how he was prejudiced by any of the alleged deficiencies. As a result, the trial
court denied the petition for post-conviction relief.
-5-
From the trial court’s order denying post-conviction relief, the petitioner now brings
this appeal.
II.
The petitioner argues that he received ineffective assistance of counsel in many
respects. First, he claims that trial counsel erroneously failed to question him during
his direct testimony regarding his knowledge of specific acts of violence committed by
the victim. He asserts that counsel was ineffective for failing to appeal the trial court’s
ruling that prior bad acts committed by the victim were inadmissible. The petitioner also
maintains that trial counsel was ineffective for failing to object to “expert” testimony
presented by the state. He further insists that trial counsel ineffectively questioned him
on direct examination regarding his prior convictions. Finally, the petitioner contends
that trial counsel was ineffective for failing to conduct an adequate investigation of the
case and for failing to procure favorable witnesses for the defense.
A. Standard of Review
In post-conviction proceedings, the petitioner bears the burden of proving the
allegations raised in the petition by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-210(f). Moreover, the trial court’s findings of fact are conclusive on appeal
unless the evidence preponderates against the judgment. Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996); Campbell v. State, 904 S.W.2d 594, 595-96 (Tenn. 1995);
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993).
B. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides, in part, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance
of counsel for his defense.” Similarly, Article I, § 9 of the Tennessee Constitution
guarantees an accused “the right to be heard by himself and his counsel . . .”
-6-
Additionally, Tenn. Code Ann. § 40-14-102 provides, “[e]very person accused of any
crime or misdemeanor whatsoever is entitled to counsel in all matters necessary for
such person's defense, as well to facts as to law.”
The United States Supreme Court articulated a two-prong test for courts to
employ in evaluating claims of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Court began
its analysis by noting that “[t]he benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. W hen challenging the effective
assistance of counsel in a post-conviction proceeding, the petitioner bears the burden
of establishing (1) the attorney’s representation was deficient; and (2) the deficient
performance resulted in prejudice so as to deprive the defendant of a fair trial.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Powers v. State, 942 S.W.2d 551, 558
(Tenn. Crim. App. 1996). This Court is not required to consider the two prongs of
Strickland in any particular order. Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim.
App. 1996). “Moreover, if the Appellant fails to establish one prong, a reviewing court
need not consider the other.” Id.
The test in Tennessee in determining whether counsel provided effective
assistance at trial is whether counsel’s performance was “within the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975); see also Harris v. State, 947 S.W.2d at 163. In order to
demonstrate that counsel was deficient, the petitioner must show that counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Harris v. State, 947
S.W.2d at 163.
-7-
Under the prejudice prong of Strickland, the petitioner must establish that “there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.
In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort
be made 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.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The
mere failure of a particular tactic or strategy does not per se establish unreasonable
representation. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996). However, this
Court will defer to counsel’s tactical and strategic choices only where those choices are
informed ones predicated upon adequate preparation. Id.; Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982).
C. Victim’s Prior Bad Acts
The petitioner claims that trial counsel was ineffective in failing to properly
question the petitioner at trial with regard to the victim’s prior acts of violence. He
argues that counsel questioned the petitioner generally about the victim’s violent
tendencies, but did not follow up with questioning regarding the petitioner’s knowledge
of specific violent acts committed by the victim. Furthermore, he claims that trial
counsel was ineffective in failing to appeal the trial court’s ruling that other defense
witnesses could not testify regarding specific violent acts by the victim.
Tenn. R. Evid. 404(a)(2) provides:
Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity with the
character or trait on a particular occasion, except . . . [e]vidence of a
pertinent character trait of the victim of crime offered by an accused or by
the prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide case
to rebut evidence that the victim was the first aggressor.
-8-
A defendant may testify as to his or her knowledge of recent acts of violence committed
by the victim against others to establish the defendant’s fear or apprehension of the
victim prior to or during an assault. State v. Furlough, 797 S.W.2d 631, 648 (Tenn.
Crim. App. 1990); see also State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994).
Further, specific acts of violence by the victim are admissible to corroborate a
defendant’s assertion that the victim was the first aggressor.1 State v. Furlough, 797
S.W.2d at 649.
The petitioner should have been allowed to testify as to specific acts of violent
conduct committed by the victim. However, even if this Court were to find that trial
counsel’s performance was somehow deficient in not eliciting testimony regarding
specific acts of violence committed by the victim,2 the petitioner has not demonstrated
how he was prejudiced by this deficiency. Indeed, the state introduced the petitioner’s
videotaped statement to law enforcement authorities wherein the petitioner told the
investigating officer of his knowledge of two instances where the victim assaulted third
persons. These are the instances of which the petitioner now complains he was not
allowed to testify. The jury, thus, was able to hear that the petitioner feared the victim
as a result of these prior violent acts. Thus, there does not appear to be any reason
to believe the jury’s verdict might have been different had the petitioner been allowed
to testify at trial regarding these incidents.
The petitioner also complains that counsel was ineffective on appeal for failing
to appeal the trial court’s ruling that other defense witnesses could not testify as to prior
violent acts committed by the victim. Once again, the petitioner has not established
1
In State v. Hill, this Cour t held that wh en spe cific instanc es of co nduct a re adm issible to co rrobora te
the defendant’s assertion that the victim was the fir st ag gres sor, th e evid enc e is on ly admissible as part of the
defe nda nt’s cross-examination of the victim . 885 S.W .2d at 363 ; but see State v. Ruane, 912 S.W.2d 766,
780-781 (Tenn. Crim. App. 1995) (holding that corroborative proof that the vic tim was the init ial agg ress or is
outside the scope of Tenn. R. Evid. 40 4(a)(2) a nd 405 ; thus, third pe rsons m ay testify as to specific instances
of violent conduct comm itted by the victim on direct exam ination).
2
Trial counsel attempted on numerous occasions to elicit testimony from various witnesses regarding
the victim’s propensity for violence and specific acts of violence committed by the victim. On most occasions,
how ever , the tr ial cou rt sus taine d the state ’s obj ectio n to th is tes timo ny.
-9-
prejudice. Numerous times during the trial, witnesses testified as to the victim’s prior
convictions, prior violent acts and general reputation for violence in the community.3
Therefore, even had counsel appealed this issue, it is clear that any error would have
been deemed harmless. 4 Because the petitioner has not demonstrated a reasonable
probability that the result of the proceeding would have been different, the petitioner
has not established how he was prejudiced. See Strickland, 466 U.S. at 694, 104 S.Ct.
at 2068.
The petitioner has failed to carry his burden of showing that more extensive
questioning regarding the victim’s prior acts of violence would probably have changed
the result of the trial. Therefore, this issue is without merit.
D. “Expert” Testimony
In his next allegation of ineffective assistance of counsel, the petitioner contends
that his attorney failed to object to Officer Read Majors’ testimony. He argues that
Officer Majors testified as an expert, but the state never qualified him as an expert. As
a result, he alleges that trial counsel should have objected to Officer Majors’ testimony
and/or taken appropriate measures to correct the detrimental effects of such testimony.
Officer Majors of the Metropolitan Police Department was called to testify as a
witness for the state. Majors was the firearms instructor for the Metro Police
Department and was asked to perform tests on the shotgun which the petitioner used
to shoot Dewey Slanton. Majors shot the weapon at a paper silhouette with both an
open and a closed choke at various distances to demonstrate the shot spread patterns
from different distances. The state was allowed to introduce the silhouettes as exhibits,
3
Although the state objected to such testimony on several occasions, the trial court instructed the jury
to disregard the testimony only once.
4
Moreover, Duzane was not questioned at the post-conviction hearing as to his reasoning for failing
to pre sen t this issue on appeal. The petitioner bears the burden of establishing that counsel’s decision not
to appeal this issue was deficient performance. “Generally, the determination of which issues to present on
appeal is a matter which addresses itse lf to the profe ssional ju dgm ent and s ound d iscretion o f appellate
couns el.” Cam pbe ll v. State , 904 S.W.2d 594, 597 (Tenn. 1995). Since it is possible that counsel believed
such an issue would not have been fruitful on appeal, the petitioner has not established th at co uns el’s
performance was deficient in this regard.
-10-
while Majors testified as to whether the choke was open or closed and the approximate
distance from which the shot was fired.
If a witness possesses scientific, technical, or specialized knowledge, he or she
may qualify as an expert and opinion testimony may be proper. Tenn. R. Evid. 702.
A necessary prerequisite to such testimony is the qualification of the witness as an
expert. Bryant v. State, 539 S.W.2d 816, 819 (Tenn. Crim. App. 1976). In this case,
however, Officer Majors did not give expert testimony. He merely explained the tests
he conducted to the jury, and when the exhibits were passed to the jury, he informed
them regarding the approximate distance from which the shot was fired. The trial court
did not allow Officer Majors to state any opinion or draw any conclusions with regard
to such testing. Thus, trial counsel was not ineffective for failing to object to Officer
Majors’ lack of qualifications. Furthermore, contrary to the petitioner’s assertion,
Duzane objected to Officer Majors’ testimony on numerous occasions on several
different grounds. The petitioner has not demonstrated that trial counsel was deficient
in this respect, nor that he suffered prejudice as a result.
This issue has no merit.
E. Petitioner’s Prior Convictions
The petitioner next argues that trial counsel was ineffective when he questioned
the petitioner regarding his prior convictions. Prior to the petitioner testifying, the trial
court held a jury out hearing to determine whether the state could impeach the
petitioner with a prior conviction for aggravated assault with the intent to commit a
robbery. The trial court ruled that the state could question the petitioner with regard to
such conviction. On direct examination, the following exchange occurred:
Q. Were you convicted of a felony of aggravated
assault with intent to commit robbery, back in 1980?
A. Yes, sir. I was.
Q. And is this the second time you’ve been in trouble?
-11-
A. Yes, sir. I have. This is the only time, other than
that one time.
On cross-examination, the prosecutor then questioned the petitioner regarding
his prior arrests for assault, malicious destruction of property, assault and battery, and
assault with an automobile. The trial court found that the petitioner had “opened the
door” to such questioning.
The petitioner complains that trial counsel’s questioning opened the door to the
prosecutor’s questioning regarding the petitioner’s prior arrests. He claims that the
“intense questioning obviously flustered [him] and destroyed his credibility in the eyes
of the jury.” However, it was the petitioner’s false answer to the question which
“opened the door” to his prior arrests. In taking the stand in his own defense, the
petitioner was sworn to tell the truth, regardless of the questions posed to him. We
refuse to find trial counsel deficient as a result of his client’s decision to testify
untruthfully. The petitioner has not established that trial counsel’s performance was
deficient in this regard, nor has he established that he suffered prejudice as a result.5
This issue is without merit.
F. Failure to Investigate
In his final claim of ineffective assistance of counsel, the petitioner alleges that
trial counsel did not conduct an adequate investigation of his case. He argues that trial
counsel did not adequately investigate the crime scene and counsel should have hired
a private investigator. He further claims that trial counsel failed to secure favorable
witnesses for the defense.
With regard to the claim that trial counsel did not properly investigate the
petitioner’s case, the petitioner has failed to demonstrate what evidence further
5
The petitioner cla ims tha t the prose cutor’s cr oss-ex amin ation rega rding his p rior arrests destroyed
the petitio ner’s cred ibility in the eyes o f the ju ry. Du ring cross-exam inatio n, the petitio ner c ould n ot rec all
whether he had b een pre viously arres ted. Any los s of c redib ility wou ld clear ly be the resu lt of the petitio ner’s
lack of recollection in this regard.
-12-
investigation would have produced. As a result, the petitioner has not shown how he
was prejudiced by his attorney’s alleged deficiency.
The petitioner further complains that trial counsel did not contact witnesses who
would have testified as to the victim’s drunken state on the afternoon of the shooting.
However, these witnesses were not called to testify at the post-conviction hearing.
“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.
App. 1990). Without the testimony of these proposed witnesses, this Court is left to
speculate as to what their testimony would have been. Because the petitioner did not
present these witnesses at the post-conviction hearing, he cannot demonstrate how he
was prejudiced by his attorney’s failure to discover these witnesses and/or call them to
testify.
This issue has no merit.
III.
The petitioner has not established that his attorney provided deficient
performance at trial or on appeal. Moreover, he has not demonstrated a reasonable
probability that, due to his attorney’s alleged deficiencies, the result of the proceeding
would have been different. Accordingly, the trial court properly denied the petition for
post-conviction relief. The trial court’s judgment is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
-13-
___________________________________
DAVID G. HAYES, JUDGE
___________________________________
NORMA MCGEE OGLE, JUDGE
-14-