James Allen Pollard v. State of Tennessee ( 2018 )

11/08/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 16, 2018 Session
JAMES ALLEN POLLARD v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2006-D-2820 Monte Watkins, Judge
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No. M2017-01595-CCA-R3-PC
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The Petitioner, James Allen Pollard, appeals the post-conviction court’s dismissal of his
petition for post-conviction relief, arguing that he received ineffective assistance of
counsel. After thorough review, we affirm the dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT H. MONTGOMERY, JR., JJ., joined.
Richard Lewis Tennent and Jodie A. Bell, Nashville, Tennessee, for the appellant, James
Allen Pollard.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn R. Funk, District Attorney General; and Deborah M. Housel, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On February 12, 2009, the Petitioner was convicted of first-degree felony murder,
first-degree premeditated murder, and especially aggravated robbery. The first-degree
felony murder and first-degree premeditated convictions were later merged, and the
Petitioner was sentenced to life imprisonment plus eighteen years. State v. James Allen
Pollard, No. M2011-00332-CCA-R3-CD, 2012 WL 4142253, at *1 (Tenn. Crim. App.
Sept. 17, 2012), aff’d, 432 S.W.3d 851 (Tenn. 2013). This court affirmed his convictions
and sentence lengths, but remanded the case for a new sentencing hearing to determine
whether his sentences should be served consecutively. Id. at *21. Our supreme court
affirmed this court’s ruling, and on remand, the trial court determined that the Petitioner’s
sentences should be served concurrently. This court cited the facts underlying the
Petitioner’s case as follows on direct appeal:
Suppression hearing
Detective Jeff Wiser, of the Metropolitan Nashville Police
Department, testified that he responded to the victim’s apartment, where the
victim had been found dead from gunshot wounds. In working with
Detective Michael Windsor, also of the Metro Nashville Police
Department, to develop a suspect for the shooting, Detective Wiser
subpoenaed the victim’s phone records, which showed calls to Lakesha
Hooten around the time of the victim’s death. The detectives interviewed
Ms. Hooten. Ms. Hooten initially denied any knowledge of the murder and
robbery but later gave detectives the names of two men she claimed were
the shooters. The detectives learned that information was false, and Ms.
Hooten “finally broke down and told [them] that it was her boyfriend [the
Petitioner] who had committed the murder.” [The Petitioner] voluntarily
agreed to speak to detectives. Detective Wiser read [the Petitioner] his
Miranda rights, and [the Petitioner] signed a waiver of his rights. [The
Petitioner] then admitted to shooting the victim and taking a PlayStation
video game system from the victim’s apartment. Detectives subsequently
arrested [the Petitioner].
Trial
The victim’s mother, Marilyn Branhan, testified that she last saw her
son on March 22, 2006, when he visited her home on his lunch break from
work. He had plans to come back to her house that night to sign documents
for his upcoming house purchase, but he did not show up. Ms. Branham
was unable to contact the victim the following day. On March 24, 2006,
she drove to the victim’s apartment and waited beside his car until it was
time for the victim to leave for work, but the victim never came out of his
apartment. Ms. Branham then asked the apartment manager to go inside to
check on him, while Ms. Branham drove to her home and called the police.
Shortly thereafter, the apartment manager called Ms. Branham and asked
her to return to the apartment and told her that she had found the victim.
Officer Michael Clark was the first officer to respond to the shooting
at the victim’s residence on March 24, 2006. Officer Clark discovered the
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victim’s body lying in the floor of the living room inside the victim’s
apartment. The victim had been shot. Officer Clark testified that it did not
appear that the victim’s apartment had been forcibly entered. He noticed
electronic equipment that appeared to have been pulled out away from the
TV stand, but there were no other signs of a struggle.
Detective Wiser also responded to the victim’s residence on North
8th Street. He testified that the victim was lying on his back in the living
room, and he had two gunshot wounds to his head. The victim’s apartment
did not appear to be ransacked, but Detective Wiser noticed that it appeared
as if something had been removed from the TV stand.
Several months into the investigation, the detectives developed [the
Petitioner] as a suspect in the shooting. Detective Wiser interviewed [the
Petitioner] about the incident. Initially, [the Petitioner] “vehemently denied
taking anything” from the victim’s apartment. [The Petitioner] later
admitted that he took a gun and a PlayStation.
Officer William Kirby testified that he was called to the crime scene
in order to assist with searching for and processing evidence. Officer Kirby
testified that he had worked for the Metropolitan Police Department for
approximately 13 years and that he had processed “at least” one thousand
crime scenes. Officer Kirby took several photographs of the crime scene.
He testified that there was blood “directly behind the victim’s head against
the wall and pooled beneath [the victim’s] right cheek.” He testified that
there was no blood on the front of the victim’s shirt. There were two pools
of blood on the carpet beside the victim’s head, and there was no other
blood found anywhere else in the apartment. Officer Kirby observed “a bit
of blood spatter” on the wall that was eight to ten inches away from the
victim’s head. Officer Kirby testified that small blood droplets, indicative
of high velocity impact, were up the wall as high as six to eight inches
above the carpet. Without objection by [the Petitioner], Officer Kirby
testified that, based on the direction and location of the blood spatter, his
opinion was that the victim was lying on the ground at the time he was shot.
Officer Kirby testified that there was a note found on the victim’s
car, which was parked on the street in front of the victim’s apartment. The
note read, “Urgent, call me as soon as you get this message, Momma.” He
testified that, other than an overturned beer bottle and electronics pulled off
of the TV stand, nothing in the victim’s apartment appeared to be askew.
Officer Kirby testified that the murder did not appear to be drug-related
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because he did not find anything in the victim’s apartment that was
indicative of the victim having sold drugs.
Reshena Barnes was dating the victim at the time of his death. She
met the victim while they were students at Tennessee State University. She
lived with the victim from February 17, 2006, to March 17, 2006. She
moved out in order to avoid any confrontation between her ex-boyfriend,
Joseph Stewart, and the victim. She had an order of protection granted
against Mr. Stewart because he had previously threatened her. Ms. Barnes
testified that the victim worked at Autozone and that he was excited about
buying his first house. Ms. Barnes testified that she never knew the victim
to sell marijuana. The victim owned a gun that he kept in his bedroom
closet.
Detective Windsor testified that the door to the victim’s apartment
was locked, and there was no sign of forced entry. Detective Windsor
obtained the victim’s phone records and determined that Lakesha Hooten
had been one of the last people to call the victim prior to his death.
Detective Windsor interviewed Ms. Hooten. Detective Windsor
investigated the information provided by Ms. Hooten and concluded that
“she was possibly being deceptive” because he was unable to verify that
information. Detective Windsor testified that the gun owned by the victim
was a 9 millimeter semi-automatic, which would have ejected a cartridge
casing if it were fired, and investigators did not find any fired cartridge
casings at the crime scene. Investigators also did not find any projectile
strikes, or holes caused by the firing of a gun, inside the apartment.
Investigators found an empty gun holster in the victim’s bedroom.
Detective Windsor interviewed [the Petitioner] about the shooting.
Detective Windsor testified that [the Petitioner] voluntarily met with him
and that during the interview, [the Petitioner] signed a Miranda waiver
form. Detective Windsor testified, over [the Petitioner]’s objection, that he
did not believe [the Petitioner] killed the victim in self-defense because he
“did not feel that the injuries sustained by the victim lined up with the
Petitioner’s] account of the shooting.” Detective Windsor further explained
that [the Petitioner] had stated that the victim, while lying on the floor,
raised his arm and pointed a gun at [the Petitioner], and Detective Windsor
did not believe that [the Petitioner] would have moved “closer to the
victim, closer to being in danger” to shoot the victim a second time. [The
Petitioner] also demonstrated to Detective Windsor the distance from which
[the Petitioner] shot the victim the second time, but Detective Windsor
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believed that the evidence showed that [the Petitioner] “was a lot closer [to
the victim].”
Anthony Bowers, [the Petitioner]’s cell mate, testified that [the
Petitioner] told him that [the Petitioner]’s girlfriend “Keisha” set the victim
up to be robbed by [the Petitioner]. Mr. Bowers testified that [the
Petitioner] told him that Keisha drove [the Petitioner] to the victim’s house
in order to “rob him for some marijuana,” and that once inside the victim’s
apartment, the victim “looked like he was getting kind of suspicious”
because he asked [the Petitioner] for money, but [the Petitioner] did not
have money to purchase the marijuana. [The Petitioner] then pulled out a
gun and he and the victim “started tussling, and in the middle of the tussle
[the Petitioner] shot [the victim] in the head.” [The Petitioner] told Mr.
Bowers that he thought the victim was trying to get a gun. After he shot the
victim, [the Petitioner] searched the victim’s apartment for valuables and
took a cell phone, a pistol, and some marijuana, and “before he left [the
Petitioner] shot [the victim] again because [the Petitioner] said [the victim]
was still—he was still alive and he didn’t want him to be able to identify
him.” Mr. Bowers testified that [the Petitioner] told him that he shot the
victim in the head twice. He testified that [the Petitioner] had stated that he
shot the victim with a .38 caliber revolver and that [the Petitioner] “several
times [ ] would always comment that that was the gun you use if you were
going to murder someone ... [b]ecause it didn’t leave any shells.”
[The Petitioner] told Mr. Bowers that he had been arrested after
detectives questioned [the Petitioner]’s girlfriend about phone calls she
made. Mr. Bowers testified that [the Petitioner] told his girlfriend to tell
detectives that someone else had taken her phone and that she had taken
“some guys” over to the victim’s house and they robbed him. Detectives
tried to verify that information and discovered it to be false. Then
detectives “broke [[the Petitioner]’s girlfriend] down and she wound up
telling the truth, that [the Petitioner] was the one that had done it.” [The
Petitioner] did not tell Mr. Bowers that he took the victim’s PlayStation.
Mr. Bowers testified that he was not offered anything by the
prosecution in exchange for his testimony. About coming forward with this
information, Mr. Bowers testified:
[A]t first I had a hard time coming forward because me and
[the Petitioner] we become [sic] friends, but I constantly
reflect back on the time when I was out dealing drugs and
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realized that the same thing could have easily happened to
me. And if my family had to go through that, I would wish
that someone would have the courage to step up and give any
information that they have.
Mr. Bowers was incarcerated in federal prison having been
convicted of “drug conspiracy.” Mr. Bowers had previously been
convicted for “drugs and reckless endangerment.” On cross-examination,
Mr. Bowers testified that he did not recall [the Petitioner] making any
statements to him about the victim having a gun, but he “believe[d] they
were wrestling.” Mr. Bowers testified “[the Petitioner] was tussling with
[the victim] and [the Petitioner] shot [the victim].”
Medical examiner Thomas Deering performed the victim’s autopsy.
Dr. Deering testified that the victim sustained two gunshot wounds to the
head. The victim was shot in his chin, and Dr. Deering testified that the
stippling pattern around that wound indicated that the shot was fired from
between six inches to two feet away. Dr. Deering testified that the shot to
the victim’s chin caused significant bleeding and that the victim swallowed
and aspirated “a moderate amount of blood” from that wound, indicating
that the victim was still living after the shot. The victim was also shot in
his left temple, which was the fatal shot, and the soot and stippling around
that wound indicated that the shot was fired from within six inches of the
victim’s head. The bullet that entered the victim’s temple traveled a
straight path “for the most part” from the victim’s left to right and fractured
the victim’s skull and brain. Dr. Deering recovered both bullet jackets and
some bullet fragments. Dr. Deering testified that the toxicology report
revealed that the victim’s blood alcohol level was .04 percent and that he
had a “very small amount” of Carboxy–THC, a byproduct of marijuana, in
his system.
On behalf of [the Petitioner], Earl Campbell testified that he was a
former Metro Nashville Council Member and worked at the Davidson
County Clerk’s Office. He knew [the Petitioner] “when he was a young
boy” and [the Petitioner] had helped his father clean at the Madison Church
of Christ. Mr. Campbell testified that [the Petitioner] was “a good kid” and
that he worked hard. Mr. Campbell testified that “back then [the Petitioner]
seemed to be very honest.”
[The Petitioner]’s father, James Pollard, Sr., testified that [the
Petitioner] had been working for him at his cleaning service company full-
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time for four years. [The Petitioner] had lived with Mr. Pollard, and Mr.
Pollard testified that [the Petitioner] had “a couple of PlayStations.” On
cross-examination, Mr. Pollard testified that he knew about [the
Petitioner]’s charges, and [the Petitioner] “didn’t show [him] no remorse
about nothing.” [The Petitioner]’s mother, Cherrion Pointer, testified that
[the Petitioner] had lived with her until he was 18, 19, or 20 years old,
when he began living with his father. She testified that [the Petitioner] was
a reliable person and [the Petitioner] had just received a graduation
certificate from Cornerstone Christian Academy.
Sentencing hearing
At the sentencing hearing, a presentence report was entered into
evidence. The victim’s mother, Marilyn Branham, and brother, James
Branham, testified that the victim’s murder had greatly affected their family
and had caused a substantial amount of grief. [The Petitioner] did not
testify or present any other proof at the sentencing hearing.
Motion for new trial
At the hearing on [the Petitioner]’s motion for new trial, the
Assistant District Attorney General Deborah Housel, who prosecuted [the
Petitioner]’s case, testified that on January 5, 2007, in response to a
discovery request from [the Petitioner], she reported that there was no
exculpatory evidence known to the prosecution at that time. In a letter
dated January 29, 2009, General Housel notified defense counsel of four
additional witnesses, including “Anthony Bowers (federal inmate),” which
the State intended to call at trial. She also prepared and filed a writ of
habeas corpus ad testificandum in order to have Mr. Bowers transported to
[the Petitioner]’s trial scheduled for February 9, 2009, and she faxed a copy
to defense counsel.
General Housel testified that she called defense counsel on February
2, 2009, and “had a long and lengthy discussion.” She told defense counsel
that Mr. Bowers’ attorney had contacted her and told her that Mr. Bowers
had “information regarding admissions that were made by [the Petitioner]
to him.” General Housel also told defense counsel that she had interviewed
Mr. Bowers along with Detective Windsor, and that the State had initially
elected not to use Mr. Bowers’ testimony at [the Petitioner]’s trial because
Mr. Bowers had been accused of raping another inmate. However, General
Housel also told defense counsel on February 2, 2009, that Mr. Bowers had
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since “been cleared of all wrongdoing concerning [the rape allegation],”
and that the State intended to have Mr. Bowers brought to court, although
she “had no clue whether or not he was going to testify for [the State] or
not.” General Housel testified, however, that in light of the strength of the
State’s case against [the Petitioner], she did not believe she needed to call
Mr. Bowers as a witness. General Housel invited defense counsel to “feel
free to come by, look at all the file, and the letter [written to General Housel
by Mr. Bowers], and all the information regarding the rape.” General
Housel recalled that defense counsel “came over to [her] office one day and
[she] gave him the box with all the information in it.” She testified that she
showed defense counsel the letter from Mr. Bowers.
General Housel testified that she met with defense counsel again on
February 6, 2009, and she “brought the entire file for [defense counsel] to
look through. [She] opened it, showed him everything” and gave defense
counsel the opportunity to make copies of the file, which included the letter
from Mr. Bowers and information regarding the rape allegation and
investigation. General Housel testified she was “one hundred percent
positive that [she] went into great detail with [defense counsel], all of the
allegations that were made and the letter [Mr. Bowers] sent [her].”
General House[l] testified that she believed that Mr. Bowers “was
going to get consideration for his testimony,” but that she did not know
what relief, if any, he received in federal court. She testified that she did
not tell defense counsel that Mr. Bowers was eligible for a sentence
reduction in exchange for his testimony “because [she didn’t] know that
that’s true.” She told defense counsel that all she could do for Mr. Bowers
was “put in a good word” for him to Assistant United States Attorney
Blanche Cook, who was assigned to Mr. Bowers’ case. General Housel
acknowledged that she sent an email to Ms. Cook following [the
Petitioner]’s trial, advising Ms. Cook that Mr. Bowers “did a fabulous job”
and General Housel wrote, “I know I can’t help Mr. Bowers but if I could, I
would certainly give him any consideration and break I could. He provided
crucial testimony.”
General Housel testified that she met with Mr. Bowers on November
30, 2007. Another Assistant District Attorney, Katie Miller, accompanied
her to that meeting to discuss a case in which Mr. Bowers offered some
information. Ms. Housel did not know of any other cases in which Mr.
Bowers had provided assistance to the prosecution. Ms. Housel testified
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that Mr. Bowers “was not a possible witness until [she] found out that he
had been cleared of the rape allegation.”
Attorney Jack Seaman testified that he represented Mr. Bowers in
federal court at a hearing on a “Rule 35” motion to reduce Mr. Bowers’
sentence in 2008, prior to Mr. Bowers having testified at [the Petitioner]’s
trial. Mr. Seaman explained that a Rule 35 motion is filed by the
government in order to seek a reduction in a defendant’s sentence based on
assistance he provided to the government. In Mr. Bowers’ case, the motion
was denied. Mr. Seaman testified that he represented to the federal court
that Mr. Bowers “provided information and assistance regarding at least
five people that got convicted” and in one case in which the [the Petitioner]
pled guilty, and that Mr. Bowers “provided assistance in the prosecution of
a couple of people but he [was] not called as a trial witness.” At the time of
Mr. Bowers’ resentencing hearing, Mr. Seaman did not believe that Mr.
Bowers would be called as a witness in [the Petitioner]’s case “because of
accusations he was involved in a gang rape.”
On cross-examination, Mr. Seaman testified that he contacted
General Housel “[m]ultiple times” to offer Mr. Bowers’ assistance in [the
Petitioner]’s case, and Ms. Housel advised that the State was not interested
in Mr. Bowers’ testimony “because the case was so strong .” Mr. Seaman
recalled a conversation with General Housel after Mr. Bowers was accused
of rape in which General Housel advised Mr. Seaman that she was
“absolutely” not going to call Mr. Bowers to testify. Mr. Seaman
acknowledged that General Housel contacted him in January, 2009, to
inquire about the rape allegation, and Mr. Seaman informed her that the
rape allegation was false. General Housel then asked Mr. Seaman to find
out whether Mr. Bowers would still testify, and Mr. Seaman was doubtful
that Mr. Bowers would testify because he had already had his resentencing
hearing. Mr. Seaman testified that Mr. Bowers did not benefit from his
testimony in [the Petitioner]’s case. Mr. Seaman also testified that he did
not inform General Housel about other cases in which Mr. Bowers provided
assistance.
[The Petitioner’s trial counsel] testified that he became aware of
Anthony Bowers on January 30, 2009, when he received a fax from
General Housel that listed four additional potential State’s witnesses. [The
Petitioner’s trial counsel] testified that in a “subsequent conversation,”
General Housel disclosed that Mr. Bowers’ testimony was regarding a
“jailhouse confession” and that there had been “a rape case against Bowers
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but he was exonerated on that.” General Housel stated that she was unsure
whether Mr. Bowers would be called to testify. [The Petitioner’s trial
counsel] testified that if he had more time, he “would have done everything
[he] could to have tried to follow up on this.” [The Petitioner’s trial
counsel] acknowledged that General Housel had “been very open and very
forthcoming, as she always is in every case” and that she had offered for
[the Petitioner’s trial counsel] to copy her file which was “probably eight to
nine inches thick.” He testified that General Housel told him that her file
was “basically the same as [his],” and [the Petitioner’s trial counsel] did not
look through the file, although he did not think that General Housel “would
have objected had [he] gone through it line by line, sheet by sheet.”
[The Petitioner’s trial counsel] testified that he was not made aware
of the letter from Mr. Bowers to General Housel; however, on cross-
examination, he acknowledged that General Housel told him that she had
received a letter from Mr. Bowers and that he remembered General Housel
“paraphrasing the contents of the letter.” [The Petitioner’s trial counsel]
testified, “General Housel and I had spoken pretty regularly about Bowers,
and—even to the fact that she didn’t know whether he would testify[.]”
[The Petitioner’s trial counsel] testified that he listened to the audiotape of
General Housel’s interview with Mr. Bowers on the morning before Mr.
Bowers testified. [The Petitioner’s trial counsel] was aware of the
allegations against Mr. Bowers and that “he had been cleared.” However,
[the Petitioner’s trial counsel] was “not aware, or made aware, of the
factual basis” for the allegation, and had he known, he would have cross-
examined Mr. Bowers about it. [The Petitioner’s trial counsel] testified, “I
would have used anything I could have to have shown any possible motive
on his behalf other than the goodness of his heart.”
[The Petitioner’s trial counsel] was not aware that Mr. Bowers had
provided assistance in any prosecutions other than the one in which
Assistant District Attorney Katie Miller also met with Mr. Bowers with
General Housel present. [The Petitioner’s trial counsel] testified that he
“distinctly remembered” General Housel telling him that “there was
nothing that [she] could do to help [Mr. Bowers].” [The Petitioner’s trial
counsel] testified, “General, in my opinion you told me—you disclosed
everything that you knew.” [The Petitioner’s trial counsel] testified that he
believed that “the most damning testimony” was that of the medical
examiner and the firearms expert. He testified, “I would say these two
coupled together were the things that we just weren’t able to overcome.”
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Id. at *1-7.
The Petitioner filed a timely petition for post-conviction relief on December 2,
2014, in which he argued, as in this appeal, that he received ineffective assistance of
counsel because trial counsel failed to effectively challenge the testimony of Anthony
Bowers, failed to sufficiently litigate his motion to suppress, and failed to object to the
testimony of Officer Wayne Kirby as a “blood splatter” expert. The post-conviction
court conducted evidentiary hearings on the Petitioner’s issues on August 3, November 9,
and December 15, 2015.
August 3, 2015 Post-Conviction Hearing
At the August 3, 2015 evidentiary hearing, the Petitioner’s trial counsel testified
that he had been an attorney for forty-five years and had handled over a hundred criminal
trials, both in state and federal court. Trial counsel testified that he was familiar with the
federal electronic case filing system and further conceded that he did not look through the
State’s discovery “page by page” because he and the State had “basically, the same
file[.]” He affirmed that he did not see an email from an Assistant United States Attorney
referencing Mr. Bowers’ testifying and seeking a reduction in his prison sentence, and he
further stated that he was not made aware that Mr. Bowers would be testifying until the
night before trial. He also affirmed that he was unaware that Mr. Bowers had previously
provided information to the government against other defendants and that he had
assaulted a fellow inmate. Trial counsel testified that if he had known about the
circumstances surrounding Mr. Bowers’ testimony, he would have used it to cross-
examine him. However, trial counsel also explained that although he did not know about
the specific circumstances surrounding Mr. Bowers, during cross-examination he asked
Mr. Bowers about his drug use and criminal history and during closing argument he
portrayed Mr. Bowers as “a snitch and a liar” and told the jury not to be surprised if Mr.
Bowers and his attorney later “ask[ed] for a modification of his sentence” based on his
testifying. When asked whether he believed the evidence against the Petitioner was
overwhelming, even without Mr. Bowers’ testimony, trial counsel responded that he
“would certainly agree that there was a factual basis for the jury to find what they found.”
Trial counsel also testified regarding his actions during the suppression hearing.
When asked why he did not call the Petitioner to testify regarding whether officers had
illegally seized him, trial counsel stated that the Petitioner had declined to testify, even
after trial counsel explained that the issue was “something [the Petitioner] was going to
have to substantiate.” Further, trial counsel stated that even if the Petitioner had testified
at the suppression hearing, he did not believe the Petitioner would have testified that
there was “any show of force by the police that compelled him to come to the police
station” because he had never mentioned a show of force to trial counsel. Trial counsel
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explained that he chose to rely on the videotape of the Petitioner’s interview with police
as substantive proof at the suppression hearing based on the Petitioner’s unwillingness to
testify. Trial counsel conceded that the Petitioner “changed his story” multiple times
during his interview with police and even asserted that he had shot the victim twice in
self-defense after the victim shot at him, though no other “bullet strikes or casings” were
found at the victim’s apartment. Trial counsel also conceded that “one of the big
thing[s]” at the suppression hearing was that the Petitioner was both “allowed to leave
during the interview to go down the hall” and to “leave after the interview.”
Trial counsel was finally questioned about the “blood splatter” trial testimony of
Officer Kirby. When asked why he did not object to Officer Kirby’s testimony, trial
counsel explained that:
I felt the best choice was to draw as little attention as possible to that; and,
just simply to not go into that. There is – in my opinion, most jurors feel
that a person in the police department that has worked with these types of
programs, and has processed many crime scenes, that these people know
what they’re talking about. . . . It was a matter of trying to lessen the
impact.
Though trial counsel conceded that he had not read the specific cases mentioned by
appellate counsel, he testified that he read “digests . . . on the issue of blood splatter” and
“felt strategically it would be better not to [object].”
November 9, 2015 Post-Conviction Hearing
At the November 9, 2015 post-conviction hearing, attorney Kathleen Morris gave
expert testimony, over the State’s objection, regarding how “non-deficient” defense
counsel should operate. Ms. Morris testified that a non-deficient attorney would look
through discovery given by the State. She also stated that a non-deficient attorney would
call his client to testify at a suppression hearing regarding whether his client was illegally
seized by police. Ms. Morris testified that a non-deficient attorney would look through
an inmate’s file after being told he was going to testify against his client and stated that
she was personally able to find Mr. Bowers’ file and his previous efforts to obtain
sentencing reductions. She finally testified that a non-deficient attorney would object to a
police officer giving “blood splatter” testimony without first being qualified as a “blood
splatter” expert and would move for a mistrial.
Mr. Bowers also testified at the November 9, 2015 hearing. He affirmed that he
had previously received a reduction in his sentence length for his assistance in the State’s
prosecuting a drug dealer. He further affirmed that he had provided information against
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multiple other cellmates and had sought a sentence reduction in those cases. He also
offered to provide information for federal cases in Kentucky and Florida and for three
cases in Nashville, including the Petitioner’s. Mr. Bowers conceded that prior to the
Petitioner’s trial, a federal judge denied a motion to reduce his sentence because of his
assault of a fellow inmate and found Mr. Bowers to be “not credible on th[o]se issues.”
He testified that although he had been questioned about his motives by trial counsel, if he
had been specifically asked about his desire for a sentencing reduction, he would have
conceded that it was his motive in testifying against the Petitioner. Mr. Bowers also
stated that the only time he had testified regarding the information he tried to provide was
at the Petitioner’s trial, and he verified that he had not been promised any sentence
reduction by the State or federal government and that his testimony “didn’t help [him,]”
but affirmed that it was truthful.
December 15, 2015 Post-Conviction Hearing
At the December 15, 2015 post-conviction hearing, Detective Wiser testified that
Ms. Hooten implicated the Petitioner in the murder of the victim after falsely accusing
two other men. Based on Ms. Hooten’s previous incorrect statements, Detective Wiser
testified that he did not get an arrest warrant for the Petitioner, but rather decided first to
interview him. Detective Wiser testified that he and Detective Windsor located the
Petitioner in the parking lot of Ms. Hooten’s apartment. Although he did not remember
whether he put his hand on his gun, he stated that he had a gun on his hip “[a]s [officers]
always do[,]” but that he “typically d[idn’t]” keep his hand on his gun. He testified that
the Petitioner agreed to “voluntarily com[e] down to the police station for an interview”
and that they transported the Petitioner to the police station after frisking him for
weapons, as was “standard procedure.” He further explained that although he could not
remember exactly why they transported the Petitioner to the police station, it was “not
uncommon” for them to give rides to people who needed to go to the police station, “like
a courtesy.” Detective Wiser further affirmed that his interaction with the Petitioner was
not hostile, but was a “civil conversation . . . [t]here w[eren’t] any direct commands, or
nothing [] like that.”
The Petitioner also testified at the December 15, 2015 hearing. He testified that
Detective Wiser “reached for his gun” when he and Detective Windsor approached the
Petitioner in the parking lot of Ms. Hooten’s apartment. He stated that the detectives
would not allow him to go back to his apartment to tell “the kids” he was leaving, called
for a police car, and “never gave [him] [the] choice” to walk away from them. The
Petitioner further testified that he “never left custody” of the detectives after getting in the
police car, though he affirmed he was not handcuffed. He stated that he relayed this
information to trial counsel, and he responded, “Not that I recall” when asked whether
trial counsel talked to him about testifying at the suppression hearing. On cross-
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examination, the Petitioner affirmed that trial counsel had “done his homework” and
presented a recently-decided case at the suppression hearing that was similar to the
Petitioner’s. He further affirmed that trial counsel met with him “many, many times[,]”
“showed [him] all the discovery in this case[,]” and “successfully was able to keep [the]
pictures of [the] dead [victim] out[.]” He also testified that trial counsel “went over
possible defenses” with him, and he chose not to testify at trial. The Petitioner also
agreed that trial counsel had put on character witnesses on his behalf, made many
objections, and “involved [him] in many discussions” regarding the trial.
At the close of the final evidentiary hearing, the post-conviction court entered a
written order denying and dismissing the Petitioner’s post-conviction petition, finding
that he was not entitled to relief. The Petitioner now appeals.
ANALYSIS
The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). However, review of a trial
court’s application of the law to the facts of the case 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, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).
The Petitioner argues that trial counsel was deficient for failing to investigate Mr.
Bowers before he testified, insufficiently arguing during the motion to suppress hearing,
and failing to object to Officer Kirby’s “blood splatter” testimony. We initially note that
the post-conviction court failed to specifically address the Petitioner’s arguments
regarding the motion to suppress and the failure to object to Officer Kirby’s testimony.
The post-conviction court only found that “trial counsel’s failure to investigate Mr.
Bowers prior to trial did not prejudice the defense of [the Petitioner].” The court did not
specifically address any other arguments, and instead concluded that,
[The] Petitioner ha[s] failed to demonstrate by clear and convincing
evidence ineffective assistance of counsel in violation of a constitutional
right to render his conviction and sentence void or voidable under the Post
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Conviction Relief Act. Moreover, the Court finds the [P]etitioner’s
testimony not to be credible. Accordingly, the Court finds that [the]
Petitioner has failed to show that he was prejudiced by counsel’s allegedly
deficient conduct.
I. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. 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 same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies 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.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.”).
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A. Testimony of Anthony Bowers
The Petitioner argues that trial counsel was deficient in not investigating Mr.
Bowers before he testified at trial. He further argues that trial counsel’s cross-
examination of Mr. Bowers “caused the defense more harm than would have no cross-
examination at all.” The Petitioner relies on Peoples v. Lafler, 734 F.3d 503 (6th Cir.
2013), for his apparent assertion that trial counsel’s failure to impeach Mr. Bowers was
per se ineffective assistance of counsel. However, the facts in Lafler greatly differ from
those of the instant case. In Lafler, trial counsel was given a police report and other
supporting documentation showing that two of that defendant’s accomplices were lying
about a particular fact of the crime, and trial counsel did not ask them about that fact or
apparently even mention it in opening statement or closing argument. Further, the Lafler
court specifically noted that trial counsel’s whole strategy was to cast doubt on the
credibility of the two accomplices, and his failure to impeach the two accomplices was
therefore particularly harmful to the defense, even more so because the two accomplices’
testimony was the only evidence linking that defendant directly to the actual crime.
Lafler, 734 F.3d at 507, 513.
The Petitioner fails to recognize the important differences between Lafler and the
instant case. As we have laid out, the post-conviction court found that trial counsel’s
failure to investigate Mr. Bowers did not prejudice him. The record supports such a
conclusion. Although trial counsel did not impeach Mr. Bowers’ claim that he was
testifying because it was the right thing to do, he did reference his previous drug
convictions and criminal history and during closing argument he portrayed Mr. Bowers
as a “snitch and a liar” and told the jury not to be surprised if he sought a reduction in
sentencing in exchange for his testimony. Further, although the Petitioner argues that
trial counsel “actively worked to bolster the credibility of the prosecution’s key
witness[,]” the Petitioner ignores trial counsel’s portrayal of Mr. Bowers as a “snitch and
a liar” and his mentioning to the jury that it was possible Mr. Bowers would seek a
reduction in his sentencing. Unlike the Lafler case, Mr. Bowers’ testimony was not the
only evidence the State possessed against the Petitioner, and Mr. Bowers received no
actual benefit from his testimony, unlike the accomplices in Lafler. Although trial
counsel might not have investigated Mr. Bowers as thoroughly as Ms. Morris suggested
he should have, there is nothing in the record to suggest that the jury accredited Mr.
Bowers’ testimony or that the jury would have decided differently had trial counsel
impeached Mr. Bowers in a different manner.
Finally, the Petitioner argues that the State’s other evidence against him would not
have been sufficient to sustain his conviction without Mr. Bowers’ testimony, namely
because the Petitioner’s assertion that he acted in self-defense would not have been
contradicted. However, as we have laid out, despite the Petitioner’s claim to detectives
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that he shot the victim in self-defense after the victim first fired a shot at him, there is no
evidence that anyone but the Petitioner fired a gun. Further, the medical examiner, Dr.
Deering, testified that the first shot to the victim was made from between six inches and
two feet away, while the second, fatal shot was made from only six inches away,
demonstrating that the Petitioner moved closer to the victim after the first shot, just as he
stated to detectives. Dr. Deering testified that it was possible the first shot knocked the
victim unconscious. Thus, the only evidence supporting the Petitioner’s claim of self-
defense is his own assertion. We agree with the post-conviction court’s conclusion that
the Petitioner did not suffer prejudice as a result of trial counsel’s failure to impeach Mr.
Bowers.
B. Motion to Suppress
The Petitioner also argues that trial counsel was ineffective in failing to present
proof at the motion to suppress hearing that the Petitioner was seized by detectives.
Although the Petitioner asserts that trial counsel never talked to him about testifying at
the suppression hearing, trial counsel testified that he told the Petitioner that this was an
issue that would have required the Petitioner’s testimony in light of the other evidence,
namely the video of the Petitioner’s interview and subsequent confession and the
testimony of detectives. Trial counsel testified that the Petitioner elected not to testify at
the suppression hearing, and trial cousnel was thus forced to rely on the other available
evidence to support the argument that the Petitioner’s confession should have been
suppressed. He further testified that the Petitioner never discussed with him that
detectives had used force. Instead, trial counsel affirmed that the video of the Petitioner’s
interview showed that he was not handcuffed and was allowed to leave the room and
walk down the hall during the interview.
Contrary to the Petitioner’s testimony at the post-conviction evidentiary hearing
that Detective Wiser approached him with his hand on his gun, Detective Wiser testified
that he did not remember having his hand on his gun and would have only done so in a
dangerous situation, and Detective Wiser affirmed that his interaction with the Petitioner
had been civil, not threatening. Detective Wiser also testified that Detective Windsor had
spoken to the Petitioner about voluntarily coming to the police station to be interviewed.
He also affirmed that it was not unusual for them to provide transportation to the police
station to witnesses or victims. Further, Detective Wiser stated, and the Petitioner
conceded, that the Petitioner had not been handcuffed in the patrol car or during the
interview. Instead, he had been allowed to leave the interview and walk down the hall by
himself.
Except for the Petitioner’s own assertions, there is nothing in the record to
support a finding that he was seized by detectives. In fact, even without any strong
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evidence, trial counsel argued for suppression and presented a recently-decided case in
support of the Petitioner. Although he was not able to keep the Petitioner’s confession
out, he was able to keep graphic photographs of the victim’s bullet wounds out. Trial
counsel testified that the Petitioner was unwilling to testify at the suppression hearing,
despite his explanation of the necessity of doing so. Without the Petitioner’s testimony,
trial counsel lacked the evidence necessary to present proof that the Petitioner was seized.
It is true that had the Petitioner’s confession been suppressed, the State would have had a
weaker case and, as Ms. Morris suggested, trial counsel would have been deficient if he
unilaterally decided that the Petitioner would not testify at the suppression hearing.
However, the post-conviction court accredited the testimony of trial counsel and the
detectives over that of the Petitioner. The record suggests that trial counsel would have
called the Petitioner to testify at the suppression hearing had he been willing, but even so,
the testimony of the detectives and of trial counsel suggest that the Petitioner was not
seized, regardless of whether or not he testified at the suppression hearing. Further, this
court noted on direct appeal that the Petitioner had conceded that he voluntarily met with
the detectives at the police station. See State v. James Allen Pollard, 2012 WL 4142253,
at *13. The Petitioner fails to establish that trial counsel’s performance was deficient or
that he suffered prejudice as a result of the alleged deficiency.
C. Testimony of Officer Wayne Kirby
The Petitioner also contends that trial counsel was ineffective in failing to object
to Officer Kirby’s testimony regarding blood spatter, despite his not being qualified as an
expert witness. As we have laid out, Officer Kirby testified that, based on his thirteen
years of experience with the police department and his observations of blood spatter at
the crime scene, he believed the victim was lying down on the ground when he was shot.
On appeal, the Petitioner raised the issue of the trial court’s admission of Officer Kirby’s
testimony. Because the Petitioner had not raised the issue in the trial court, this court
utilized plain error analysis and found that no plain error existed. See id. at *19. This
court specifically found that “Officer Kirby might not have been an expert in blood
spatter; however, because [the Petitioner] did not object, there is not a sufficient basis to
make that conclusion.” Id. Because the post-conviction court did not address Officer
Kirby’s testimony, we review this issue de novo.
The Petitioner argues that “trial counsel was unable to provide any strategic
explanation for why he failed to object” to Officer Kirby’s testimony and “admitted that
he had not read” the specific cases the Petitioner referenced. Additionally, Ms. Morris
testified that a non-deficient attorney would have objected to the testimony. However,
trial counsel testified that he chose not to object to Officer Kirby’s testimony in order to
“draw as little attention as possible” to his testimony that the victim was on the ground
when he was shot and stated that his strategy was to “lessen the impact” of Officer
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Kirby’s testimony. He further testified that he had read “the digests” on blood spatter.
Although the Petitioner seems to assume that trial counsel’s objection would have kept
Officer Kirby’s testimony out completely, as this court noted on direct appeal, there is
nothing in the record to support the conclusion that Officer Kirby undoubtedly would not
have been qualified as an expert had trial counsel objected; in that scenario, the same
testimony would have been introduced to the jury, except with the added impact of it
coming from an expert witness. Moreover, the Petitioner offered no evidence of Officer
Kirby’s qualifications as an expert, or lack thereof, during the post-conviction evidentiary
hearings.
The Petitioner further asserts that Officer Kirby’s testimony was “the only direct
evidence (other than the testimony of Mr. Bowers), which directly cast doubt on [the
Petitioner]’s claim” that he shot the victim while they were struggling. However, the
Petitioner’s own version of events in his reply brief state that, during his interview with
detectives, “[The Petitioner] demonstrated how [the victim] immediately fell to the
ground following the first shot . . . and . . . [the Petitioner] fired a second shot into the left
side of his head.” Though the Petitioner questioned trial counsel as to why he would
“let[] proof come out that [the victim] was effectively executed lying on the ground[,]” he
fails to realize that his own version of events demonstrated such a scenario. The
Petitioner again fails to establish that trial counsel’s performance was deficient or that he
suffered prejudice as a result of the alleged deficiency.
II. Cumulative Error
The Petitioner requests this court to consider the cumulative effect of the errors he
has alleged above in deciding whether to grant him relief in this post-conviction appeal.
Because we have found no single instance wherein trial counsel was deemed ineffective,
there is no basis to conclude that any cumulative error resulted in an unfair trial.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the dismissal of the
petition.
____________________________________
ALAN E. GLENN, JUDGE
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