State v. Johnny Moffitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1997 SESSION
FILED
September 23, 1997
JOHNNY MOFFITT, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
APPELLANT, )
) No. 02-C-01-9609-CC-00304
)
) Henderson County
v. )
) Julian P. Guinn, Judge,
) Sitting by Designation
)
) (Post-Conviction Relief)
STATE OF TENNESSEE, )
)
APPELLEE, )
FOR THE APPELLANT: FOR THE APPELLEE:
Lloyd R. Tatum John Knox Walkup
Attorney at Law Attorney General & Reporter
124 East Main Street 500 Charlotte Avenue
Henderson, TN 38340 Nashville, TN 37243-0497
Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
James G. Woodall
District Attorney General
P.O. Box 2825
Jackson, TN 38302-2825
Alfred L. Earls
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:____________________________
REVERSED AND REMANDED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Johnny Moffitt (petitioner), appeals as of right from a judgment of the
trial court dismissing his suit for post-conviction relief following an evidentiary hearing. The
trial court found the grounds asserted by the petitioner had been waived because he failed
to include the grounds in a prior suit for a writ of habeas corpus in the Federal District Court
for the Western District of Tennessee, which was determined upon the merits. The court
further found that if the suit was considered on the merits of the grounds asserted, the
petitioner would not be entitled to relief from his conviction. In this Court, the petitioner
contends the failure of the trial court to instruct on the defense of alibi constituted a denial
of federal and state due process and was the result of ineffective assistance of counsel.
He further contends he has neither previously litigated nor waived this issue. After a
thorough review of the record, the briefs submitted by the parties, and the law governing
the issues presented for review, it is the opinion of this Court the judgment of the trial court
should be reversed and this cause remanded to the trial court for the reasons hereinafter
set forth in this opinion.
The petitioner was tried and convicted of murder in the first degree by use of a
deadly weapon and shooting into an occupied dwelling. He was sentenced to life plus five
(5) years for first degree murder, and he was sentenced to six (6) years for shooting into
the dwelling. This Court affirmed his convictions and sentences. State v. Johnny Moffitt,
Henderson County No. 7 (Tenn. Crim. App., Jackson, December 5, 1990), per. app. denied
(Tenn., March 4, 1991). On April 11, 1991, the petitioner sought a writ of habeas corpus
in the United States District Court for the Western District of Tennessee. The petitioner
raised the issue of alibi in the petition. He did not raise the question of whether his denial
of an instruction constituted a denial of due process or whether it resulted from the
ineffective assistance of trial counsel. On December 2, 1992, the magistrate filed his
report recommending the petitioner’s suit be dismissed based upon the merits. The district
court judge adopted the magistrate’s report and dismissed the petition on February 17,
1993, after thorough consideration of the grounds raised in the petition. The present post-
conviction suit was filed March 4, 1993.
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The evidence presented by the State of Tennessee during the trial of this case was
entirely circumstantial. The transcript of the trial proceedings reveals the petitioner had
threatened to kill the victim. Moreover, there was a history of discord between the
petitioner, his former wife, and the family. The victim was the brother of the petitioner’s
former wife.
The 9mm shell casing found in the petitioner’s yard and the shell casings found at
the situs of the crime were fired from the same weapon. An officer had previously been
to the petitioner’s residence. He saw a 9mm pistol inside the residence. Another officer
saw the petitioner purchase 9mm cartridges in a Jackson, Tennessee gun store prior to the
murder. The victim died from multiple gunshot wounds caused by 9mm projectiles.
A search of the defendant’s residence pursuant to a search warrant did not reveal
a 9mm pistol or ammunition for a 9mm pistol. Later, the petitioner gave the officers a 9mm
pistol with empty cartridges for examination by the state.
A state’s witness testified she saw a male enter the victim’s residence just before
the shooting resulting in the death of the victim. The man had an orange piece of clothing
over his arm. However, the description of the person she saw compared to the defendant
was hotly disputed. In this Court’s previous decision, this Court said:
There was a dispute as to whether or not her description fit the
defendant, and this witness in fact testified on cross-
examination that the characteristics of the person whom she
observed on the day of the murder did not match or resemble
the defendant’s. This witness further testified that she heard
what she thought were several gunshots and then shortly
thereafter saw the same individual she had described leave in
his car.
State v. Johnny Moffitt, Henderson County No. 7, slip op. at 4-5.
A state’s witness, Richard Baxter, gave evidence which would support a defense of
alibi. Baxter testified he was with the petitioner from 6:45 a.m. until “around lunchtime” on
the date of the murder. He claimed he went to the petitioner’s residence where he and the
petitioner ate breakfast, talked, and drank alcoholic beverages before parting company at
approximately 1:00 p.m. Baxter subsequently had a confrontation with John Threadgill,
who was operating a backhoe. The backhoe was blocking the roadway. Threadgill and
Baxter had a heated argument regarding the location of the backhoe. This argument led
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to a fight. Threadgill estimated the confrontation and subsequent fight occurred between
1:00 p.m. and 2:00 p.m.
The medical examiner testified as a prosecution witness. He opined the victim died
between 11:00 a.m. and 1:00 p.m. He related the death could not have occurred after 1:00
p.m.
The trial court was prepared to instruct the jury on the defense of alibi. The State
of Tennessee objected to this instruction being included in the charge. The assistant
district attorney general argued the defense of alibi had not been fairly raised by the
evidence. Defense counsel agreed the alibi defense had not been fairly raised by the
evidence. The trial court agreed with counsel. The court did not instruct the jury on the
defense of alibi.
In order for the petitioner to be granted relief on grounds of ineffective counsel, he
is required to establish by a preponderance of the evidence the advice given or the
services rendered were not within the range of competence demanded of attorneys in
criminal cases and that, but for counsel’s deficient performance, the result of the trial would
have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In Strickland, the standard of
review on the issue of assistance of counsel was stated as follows:
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. Unless a defendant makes
both showings, it cannot be said that the conviction or . . .
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To establish prejudice, any failure
in the performance of counsel “must be significant, but it does not necessarily follow that
the trial would have otherwise resulted in an acquittal.” State v. Zimmerman, 823 S.W.2d
220, 224 (Tenn. Crim. App. 1991).
This Court is of the opinion the record establishes that the petitioner was denied his
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constitutional right to the effective assistance of counsel by counsel’s statement an alibi
defense had not been fairly raised by the evidence. The evidence fairly raised the issue
of alibi, and defense counsel should have insisted that the trial court instruct the jury on the
defense of alibi. This Court is of the opinion this case should be remanded to determine
whether the petitioner was prejudiced within the meaning of Strickland v. Washington, 466
U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
_____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
GARY R. WADE, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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