Nesha Newsome v. State of Tennessee ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 13, 2010
NESHA NEWSOME v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
Nos. 01-00561; 01-00563 John P. Colton, Jr., Judge
No. W2009-01114-CCA-R3-PC - Filed March 2, 2011
The Petitioner, Nesha Newsome,1 filed in the Shelby County Criminal Court a petition for
post-conviction relief from her convictions for especially aggravated kidnapping, aggravated
kidnapping, aggravated robbery, and robbery. The Petitioner contended that her trial counsel
were ineffective by failing to object to the trial court’s definition of “aiding” in response to
the jury’s question regarding the criminal responsibility jury instruction, failing to argue that
her convictions violated due process, and failing to have the Petitioner undergo a pretrial
mental evaluation. The post-conviction court denied the petition, and the Petitioner now
appeals. In addition to the foregoing issues, the Petitioner also asserts that the supreme
court’s denial of funding for a forensic psychologist violated her federal and state due
process rights. Upon review, we affirm the judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.
Lance R. Chism, Memphis, Tennessee, for the appellant, Nesha Newsome.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and David Zak, Assistant District
Attorney General, for the appellee.
OPINION
I. Factual Background
1
In the record, the Petitioner is also referred to as “Nesha Newson.”
On direct appeal, this court summarized the facts at trial as follows:
On New Year’s Eve, 1999, Bryan Morris and Holly
Richardson (the victims in this case) were attending a party at a
friend’s house in East Memphis. Around midnight, the victims
left to get something to eat. Both of them lived in Bartlett and
were not familiar with East Memphis. Miss Richardson drove
Mr. Morris’s car because he was too intoxicated to drive. They
followed some other people from the party to the store. Before
reaching their destination, the pair lost sight of their friends
from the party. The victims became lost in an unfamiliar part of
town. They stopped at a gas station to use a payphone.
However, they were unable to contact anyone from the party.
Nesha Newsome (the [Petitioner]), Jermaine Bishop, and
Mozella Newsome were outside the gas station where the
victims stopped. Miss Richardson asked the group if they could
help her, because she was lost. Initially, the group tried to give
her directions. They then agreed to ride with the victims and
show them how to get back to the party. Miss Richardson
agreed to bring them back after they found out how to get to the
party. The three got into the backseat of the car that Miss
Richardson was driving. Bishop instructed her to drive across
the street to an apartment complex. Bishop and Mozella
Newsome went inside, while the [Petitioner] remained in the car
with the victims. They soon returned, and the group left, with
Bishop giving directions.
On the way back to the party, Mr. Morris became ill
because of his intoxication, and the group had to pull over. He
went into a gas station, and Miss Richardson attempted to clean
off the side of the car where Mr. Morris had vomited. The
[Petitioner], Bishop, and Mozella Newsome remained in the
backseat of the car. Mr. Morris returned to the car, and the
group again set out to find the party. On the way, Bishop and
Mozella Newsome began whispering. They informed the
[Petitioner] that they intended to “stick up” the victims. The
group soon arrived at their destination. The victims went inside
to inform their friends as to their getting lost. The [Petitioner],
Bishop, and Mozella Newsome remained in the car with the
-2-
engine running. At one point, a friend of the victims came out
and talked with them. The victims were in the house for several
minutes. They returned to the car and left to take the trio back
to the area where they had been picked up.
Bishop directed Miss Richardson to an area that she was
not familiar with. He told her that they were going to his
grandmother’s house. At one point, Bishop told Miss
Richardson to stop and turn out the lights. Believing that they
had arrived at his grandmother’s house, she complied. Bishop
got out of the car and pulled a gun. He ordered them out of the
car. Mr. Morris gave his wallet to Bishop. Bishop then punched
Mr. Morris in the face a couple of times and threw him in the
backseat with Miss Richardson and the [Petitioner]. Bishop got
into the driver’s seat, and Mozella Newsome got into the front
passenger seat. Bishop gave the gun to Mozella Newsome. She
turned around and pointed the gun at the victims while Bishop
drove for several miles.
As they drove, Miss Richardson screamed for help.
Bishop instructed the [Petitioner] to “shut her up.” The
[Petitioner] punched Miss Richardson numerous times in the
head and face while restraining her by her hair. The [Petitioner]
would later say that “[she] hit her with all [her] might.” The
[Petitioner] called her “a little Bartlett bitch” and continued
beating her. At some point, the [Petitioner] told Miss
Richardson to open her mouth. The [Petitioner] then burned her
tongue with a cigarette and forced her to swallow the ashes. The
[Petitioner] also struck Mr. Morris a few times. Miss
Richardson asked the [Petitioner] if she was going to kill her.
The [Petitioner] smiled and patted her on the head saying, “[n]o
Sweetie, I’m not going to kill you.” She then continued to beat
Miss Richardson. She stated that the [Petitioner] was laughing
and smiling the entire time. Bishop said that they should make
Miss Richardson perform oral sex on the [Petitioner]. However,
they never followed through. The group just laughed, and the
[Petitioner] continued hitting her.
Mozella Newsome was pointing the gun at Mr. Morris
while they were driving. He noticed that they had turned onto
-3-
a dead end road. Sensing that “something bad was about to
happen,” he jumped from the car as they made a turn. Mr.
Morris sustained a broken finger from the impact. The
assailants and Miss Richardson continued on in the car. They
stopped a few minutes later and ordered Miss Richardson out of
the car. She was forced to give up her rings and all of her
clothes, except for her socks. She ran into the woods naked and
bleeding. Miss Richardson hid and waited for the group to
leave. After they left, she ran from house to house trying to get
help. Ms. Hammelore Stewart answered her door and helped
the victim. Miss Richardson sustained a broken nose and
numerous bruises as a result of the incident. She was in pain for
approximately two weeks.
State v. Nesha Newsome, No. W2002-01306-CCA-R3-CD, 2003 WL 23100597, at **2-3
(Tenn. Crim. App. at Jackson, Dec. 30, 2003) (footnotes omitted).
Based upon the foregoing, the Petitioner was found guilty of the aggravated
kidnapping of Morris, the especially aggravated kidnapping of Richardson, the aggravated
robbery of Richardson, and the robbery of Morris. The trial court sentenced the Petitioner
as a standard Range I offender to ten years, twenty-one years, ten years, and four years,
respectively. The court ordered the sentences to be served consecutively for a total effective
sentence of forty-five years. On appeal, this court affirmed the Petitioner’s convictions and
the four-year robbery sentence. Id. However, this court reduced her ten-year sentences to
nine years, and her twenty-one year sentence was reduced to twenty years. Id.Subsequently, the Petitioner filed for post-conviction relief, alleging that her trial
counsel were ineffective. Post-conviction counsel was appointed, and several amended
petitions were filed. On September 30, 2008, post-conviction counsel petitioned the post-
conviction court for funds for a forensic psychologist. The post-conviction court granted the
petition, but the supreme court later denied the petition pursuant to Tennessee Supreme Court
Rule 13.
Thereafter, on December 5, 2008, a post-conviction hearing was held. The Petitioner
alleged that trial counsel was ineffective by failing to argue that her kidnapping and robbery
convictions violated due process, by failing to object to the definition of “aiding” given by
the trial court in response to the jury’s question regarding the criminal responsibility charge,
and by failing to have a pretrial psychological evaluation of the Petitioner.
The Petitioner’s lead trial counsel testified that she began representing the Petitioner
-4-
in 2001 and that co-counsel joined her approximately one week before trial. She said the
Petitioner’s case was the first jury trial in which she was lead counsel. She thoroughly
investigated the Petitioner’s case and had numerous meetings with the Petitioner. Lead
counsel testified that the Petitioner was originally to be tried with her two co-defendants. A
few days before the trial was to begin, the attorneys met with the trial judge to discuss the
scheduling conflicts of co-defendants’ counsel. Lead counsel said that all three attorneys
expected that the trial would be continued. However, the trial court severed the Petitioner’s
case and ordered counsel to go to trial as scheduled. Counsel requested a continuance, but
the request was denied.
Lead counsel stated that she did not have a forensic psychological evaluation of the
Petitioner before trial. However, she had a report from Leslie Star Associates in Chicago,
Illinois, regarding a mental evaluation which had been conducted on the Petitioner four
months prior to the instant offenses. The report reflects that the Petitioner had a low IQ and
a “disorder.” The report states that the Petitioner’s IQ is 68 but explains that the score could
be partially attributable to the Petitioner’s constant truancy from school and that the score
was likely an underestimation of the Petitioner’s abilities. The report further provides that
the Petitioner has a mild depressive disorder. Lead counsel had planned to use the report
during the Petitioner’s sentencing hearing. However, when the Petitioner’s case was severed,
lead counsel concluded that “it became very important to have that expert testimony during
the guilt/innocence phase.” She requested a continuance so she could have the Petitioner
evaluated, but the trial court denied the request because of the lateness of the request.
Counsel stated that in hindsight she should have had an evaluation ready for use in the guilt
phase but that she had made an initial, strategic decision to use the Petitioner’s mental health
issues in mitigation during the sentencing phase.
Lead counsel acknowledged she did not argue that the Petitioner’s dual convictions
for the aggravated kidnapping and robbery of the victims violated double jeopardy and
should have merged into a single conviction for each victim. She conceded that she could
not recall why the issue was not raised.
Lead counsel said that during deliberations, the jury asked the trial court for a
definition of “aiding” in the instruction on criminal responsibility. Lead counsel stated that
the trial court obtained the definition from a dictionary, as was the court’s “standard
operating procedure.” She said she did not see anything wrong with the definition and did
not object. She also acknowledged that objecting to the definition would “look bad” and that
she made a strategic decision not to object.
Co-counsel testified that he was contacted by lead counsel approximately a week
before trial. The appellant was not evaluated after co-counsel became involved in the case
-5-
because of time constraints. However, in his view the Petitioner should have been evaluated.
He stated that he repeatedly asked the court for a continuance to have the Petitioner
evaluated, emphasizing that their strategy changed because of the severance. The requests
were denied. Nevertheless, co-counsel sought to have records regarding a prior mental
evaluation introduced at trial. The trial court ruled that the defense had not filed the proper
notice; therefore, the records were inadmissible.
Co-counsel stated that he did not raise an issue regarding the Petitioner’s dual
convictions for kidnapping and robbery. He said he did not think the facts of the Petitioner’s
case supported a merger of the convictions. Co-counsel agreed with lead counsel’s
assessment that there was no reason to object to the trial court’s definition of “aiding.”
The Petitioner did not testify at the post-conviction hearing.
After the hearing, the post-conviction court entered an order denying the petition. The
court found that the Petitioner failed to prove that counsel were ineffective for failing to
object to the trial court’s definition of “aiding” in relation to the criminal responsibility jury
instruction, failing to argue that her convictions for kidnapping and robbery violated due
process, and failing to have a pretrial mental evaluation performed on the Petitioner. On
appeal, the Petitioner challenges this ruling.
II. Analysis
A. Ineffective Assistance of Counsel
To be successful in a claim for post-conviction relief, the petitioner must prove all
factual allegations contained in her post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
-6-
findings of fact de novo with a presumption that those findings are correct. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction
court’s conclusions of law purely de novo. Id.When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show 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. Moreover,
[b]ecause a petitioner must establish both prongs of the
test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an
insufficient showing of one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
Regarding the Petitioner’s first issue, the trial court, in response to a jury question,
defined “aiding” as “simply what one would normally expect it to be, and that is to aid means
to give help or support or to further or to facilitate or to assist.” The Petitioner argues that
the definition of “aiding” was misleading because it included the phrase “to facilitate.” The
Petitioner maintains that the definition could have swayed the jury into finding the Petitioner
guilty of a principal offense under a theory of criminal responsibility instead of a lesser-
included offense of facilitation. Accordingly, she contends counsel were ineffective for
failing to object to the definition given by the trial court.
Initially, we note that “[a] trial court has the authority to respond to jury questions
with a supplemental instruction.” State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App.
1995). Further, “[i]t is appropriate for the jury to be provided with dictionary definitions of
words or terms not in common use and not understood by persons of reasonable
intelligence.” State v. Bowers, 77 S.W.3d 776, 790 (Tenn. Crim. App. 2001). In our view,
“aiding” is a common word which is easily understood by a person of reasonable intelligence.
Therefore, a supplemental instruction on the definition was unnecessary. However, a charge
-7-
results in prejudicial error only when it fails to fairly submit the legal issues to the jury or
misleads the jury about the applicable law. State v. Hodges, 944 S.W.2d 346, 352 (Tenn.
1997). Lead and co-counsel stated that they believed the definition of “aiding” given by the
trial court was accurate. We agree. Our supreme court has previously observed that “‘[t]he
justification for th[e] theory of criminal [responsibility] is that, in addition to the primary
criminal actor, aiders and abettors should be held accountable for the criminal harms they
intentionally facilitated or helped set in motion.’” State v. Hatcher, 310 S.W.3d 788, 811
(Tenn. 2010) (emphasis added) (quoting State v. Sherman, 266 S.W.3d 395, 408 (Tenn.
2008)). Because there was no reason to object, counsel were not deficient and therefore were
not ineffective.
Next, the Petitioner argues that her counsel were ineffective by failing to argue that
her convictions for both kidnapping and robbery of each victim violated double jeopardy.
In support of her argument, the Petitioner cites State v. Anthony, 817 S.W.2d 299, 306 (Tenn.
1991), which provided that separate convictions for kidnapping and robbery may be
supported only if the confinement was not “essentially incidental to the accompanying
felony.” The Petitioner also cites State v. Dixon, 957 S.W.2d 532, 534-35 (Tenn. 1997),
wherein our supreme court replaced the Anthony “essentially incidental” analysis with a two-
part test: whether the confinement was beyond that necessary to commit the accompanying
felony and whether the additional confinement prevented the victim from summoning help;
lessened the defendant’s risk of detection; or created a significant danger or increased the
victim’s risk of harm. Thereafter, our supreme court held that “the Anthony analysis should
not be used in conjunction with the Dixon two-part test. The Dixon test should be used
exclusively in all future inquiries.” State v. Richardson, 251 S.W.3d 438, 443 (Tenn. 2008).
In the instant case, lead counsel could not recall why she did not raise a double
jeopardy complaint. However, co-counsel asserted that he believed the facts of the case did
not support a double jeopardy argument. The post-conviction court accredited the testimony
of co-counsel. Upon examining the facts, we conclude that the argument would have been
unavailing. Accordingly, the Petitioner is not entitled to post-conviction relief on this issue.
The Petitioner also contends that counsel were ineffective by failing to have a pretrial
mental evaluation performed on the Petitioner to determine whether a mental health defense
was available. The Petitioner maintains that counsel had a report reflecting that the
Petitioner had an IQ of 68 and suffered from depression, which should have prompted
counsel to have the Petitioner evaluated. However, the Petitioner did not present testimony
from a mental health expert at the post-conviction hearing to indicate that a mental health
defense could have been supported. Generally, “[w]hen a petitioner contends that trial
counsel failed to discover, interview, or present witnesses in support of [her] defense, these
witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State,
-8-
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on the benefit such
a witness might have offered to the petitioner’s case, nor may we guess as to any evidence
further investigation may have uncovered. Id. Further, the Petitioner did not testify at the
post-conviction hearing regarding what effect, if any, her mental health had on her behavior
during the offenses. Therefore, even if counsel were deficient, there was no evidence before
the post-conviction court to establish prejudice. Accordingly, the post-conviction court did
not err in finding that the Petitioner failed to prove ineffective assistance in this regard.
B. Denial of Funding for Expert Witness
As the final issue, the Petitioner contends that the supreme court’s “denial of funding
for a forensic psychologist violated her federal and state rights to due process and constituted
cruel and unusual punishment under the federal and state constitutions.” However, she
acknowledges that Tennessee Supreme Court Rule 13(5)(a)(2) provides that funding for
expert services for non-capital post-conviction proceedings shall not be authorized. Our
appellate courts have held that “the state is not required to provide expert assistance to
indigent non-capital post-conviction petitioners.” Davis v. State, 912 S.W.2d 689, 696-97
(Tenn. 1995); see also Kevin Jones v. State, No. W2009-02051-CCA-R3-PC, 2010 WL
4812773, at *4 (Tenn. Crim. App. at Jackson, Nov. 19, 2010), application for perm. to appeal
filed, (Jan. 19, 2011); Johnny Rutherford v. State, No. E1999-00932-CCA-R3-PC, 2000 WL
246411, at *18 (Tenn. Crim. App. at Knoxville, Mar. 6, 2000). Moreover, the Petitioner’s
argument that the denial of funds violates due process and constitutes cruel and unusual
punishment has been previously considered and rejected by this court. See Trevor Ford v.
State, No. W2009-02434-CCA-R3-PC, 2010 WL 3970369, at *8 (Tenn. Crim. App. at
Jackson, Oct. 8, 2010), perm. to appeal denied, (Tenn. 2011); Wayne Lydell Holt v. State,
No. M2009-00933-CCA-R3-PC, 2010 WL 2867185, at *6 (Tenn. Crim. App. at Nashville,
July 22, 2010), perm. to appeal denied, (Tenn. 2010). Accordingly, the Petitioner is not
entitled to relief on this issue.
III. Conclusion
In sum, we conclude that the Petitioner failed to establish that her counsel were
ineffective or that her constitutional rights were violated by the denial of an expert in her
post-conviction proceeding. Therefore, we affirm the judgment of the post-conviction court.
_________________________________
NORMA McGEE OGLE, JUDGE
-9-