Henry Alfred Honea v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville April 23, 2013
HENRY ALFRED HONEA v. STATE OF TENNESSEE
Appeal from the Circuit Court for Coffee County
No. 38,830 L. Craig Johnson, Judge
No. M2012-01812-CCA-R3-PC Filed October 24, 2013
The Petitioner, Henry Alfred Honea, appeals the Coffee County Circuit Court’s denial of his
petition for post-conviction relief from his 2006 convictions for first degree murder,
especially aggravated robbery, especially aggravated kidnapping, aggravated burglary,
evading arrest, and being a felon in possession of a handgun, and his effective sentence of
life without parole plus 153 years. The Petitioner contends that he received the ineffective
assistance of counsel. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.
Eric J. Burch, Manchester, Tennessee, for the appellant, Henry Alfred Honea.
Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and
C. Michael Layne, District Attorney General, for the appellee, State of Tennessee.
OPINION
According to this court’s opinion in the Petitioner’s appeal of his convictions, the
evidence at the Petitioner’s trial showed that:
The Defendant’s convictions arose from the kidnapping and murder of
92-year-old Flossie Barr and the burglary of her home. At the trial, Detective
Frank Watkins of the Coffee County Sheriff’s Department testified that on
May 22, 2004, he and other officers were searching for the Defendant due to
the Defendant’s outstanding warrants. He said that the sheriff’s department
received a tip by telephone around 7:10 p.m. that the Defendant was driving
a small black car with gray on the bottom toward Tullahoma. He said that he
heard radio reports of other officers having seen the Defendant and that he and
other officers searched in various locations. He said that he was with Chief
Holt and Investigator Campbell when they passed the church the Defendant’s
father pastored and that he saw a car parked at the side of the church. He said
that as he drove toward the car, another car came from behind the church and
drove by him. He said that as the car passed, he noticed that the driver looked
like the Defendant. He said that he was able to see the car as it passed the
other officers and that it matched the description they had been given. He said
that the Defendant drove slowly through the parking lot and that Investigator
Campbell yelled that the person was the Defendant. He said that he and Chief
Holt followed the Defendant onto South Roosevelt Street and that when they
activated their blue lights and sirens, the Defendant accelerated and tried to
flee. He said the Defendant ran a stop sign, made a hard turn, and ran another
stop sign while he and Chief Holt pursued. He said that the Defendant failed
to negotiate a curve and ran into a driveway and through a yard, barely missing
a house. He stated that the Defendant jumped out of the moving car before it
hit a fence and fled on foot. He said that Chief Holt, Investigator Campbell,
and he chased the Defendant on foot and that Investigator Campbell ordered
the Defendant to stop and stated that they were from the sheriff’s office. He
said that as he came into a wooded area, he saw the light of Investigator
Campbell’s flashlight and heard Investigator Campbell yelling for the
Defendant “to put it down.” He said that as he ran back toward the patrol cars
to keep the Defendant from stealing one of the cars, the Defendant came out
of the woods holding a pistol. He said that the Defendant made a motion
toward Investigator Campbell and that he fired his gun twice because he feared
the Defendant would shoot Investigator Campbell. He said the Defendant ran
but then fell to the ground. He said he saw a pistol on the ground a few feet
from the Defendant’s head when the Defendant was struggling not to be
handcuffed by Chief Holt and Investigator Campbell. He said the Defendant
was shot in the right knee.
Detective Watkins testified that he learned after the Defendant’s arrest
that the Defendant was driving a car registered to the victim. He identified as
an exhibit a weapon that he said was the one the Defendant carried. He
identified photographs of the church where the officers first saw the
Defendant, located at 1100 East Lincoln Street, and the victim’s house, located
at 1107 East Lincoln Street. While identifying photographs of the area
covered during the chase, he said the Defendant put third persons at risk of
death or injury. He said that the Defendant nearly struck two occupied homes
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and that he and Chief Holt nearly hit a house while chasing the Defendant. He
said that a case of Budweiser beer, bottles, and personal belongings were
found inside the car the Defendant drove.
Detective Watkins testified that he had been to the victim’s home
several times before May 22. He said he and other law enforcement officers
had been there to reassure her that they would help her with things occurring
at her home, which were unspecified at the trial. He said that the victim
always invited him inside her home and that her home and car were “pretty
neat and tidy” and that her car was always washed. He saw the victim take her
car keys from her purse.
Detective Watkins testified that the victim was not at her home on the
evening of May 22. He said the police checked with the victim’s relatives,
who said they had not spoken with or seen the victim in a few days. He said
that the search for the victim extended outside Coffee County and that they
focused on the area around “the pumping station,” which the Defendant was
known to frequent. He said that on May 26, a body was found at the pumping
station.
Detective Watkins testified that he went to the pumping station and saw
a female body. He said it was near power lines in an open area that had been
used for four-wheeling. He said the body was covered with cut saplings. He
said that the distance between the area where the body was found and the area
where the victim’s home and the church were located was between 7.2 and 7.4
miles, depending on the route traveled, and that it would take about fifteen
minutes to travel the distance at normal driving speeds.
Detective Watkins identified a nine millimeter Taurus handgun as the
one the Defendant had on May 22. He said the weapon did not have a clip in
it when it was recovered but that a magazine and cartridges were found in the
area of the foot pursuit of the Defendant. He also identified a bag of marijuana
that the Defendant possessed when arrested.
Detective Watkins testified that there were several differences between
the car when it was at the victim’s house and when the Defendant was
arrested. He said it had been a “tannish-brown” color but that it was spray
painted flat black “more or less in a homemade fashion.” He said that the
victim kept the car’s interior “neat” but that it was in disarray on May 22.
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On cross-examination, Detective Watkins admitted that the police
looked for the Defendant for about two weeks for outstanding warrants
unrelated to the victim’s murder. He said that after receiving a “no contact”
report about the victim, the Tullahoma police went to her home earlier in the
day of May 22 and found her door open. He acknowledged that his car did not
have a working siren on May 22. He said that when the Defendant came out
of the woods during the foot pursuit, the Defendant was walking, not running.
He acknowledged that the Defendant never fired his gun during the chase and
arrest. He said that he did not personally recover the Defendant’s gun but that
he was able to identify it because he wrote down the serial number.
Detective Watkins testified that the victim called the police frequently
and that he had been to her home approximately fifty to sixty times over a
three to four-month period. He said she was concerned that people would
break into her home and steal from her. He acknowledged that she was
paranoid. He said that she was concerned about her neighbors but that she
never mentioned the Defendant or any family members.
Bill Pamplin testified that the victim was his maternal aunt. He said
that she was a ninety-two-year-old widow and that she had health problems.
He said that he was her “go-to boy” before her death, that he tried to see or talk
to her weekly, and that he took her to appointments and on errands. He said
the victim was neat and orderly with her home and her car. He said that she
would not loan her car to others and that she kept her car keys in her purse. He
said that she kept her purse in her bedroom when it was not with her and that
she kept the purses she was not using in her bedroom closet. He said he did
not remember the victim ever leaving her keys on the coffee table. He
identified a photograph depicting the victim’s keys and said that the safety pin
on one of the keys was the victim’s “trademark” because she liked safety pins.
Mr. Pamplin testified that the victim was concerned about her safety.
He said she kept her blinds closed after dark, locked her doors, and stuck
screwdrivers in her doors because she thought they provided extra protection.
He said that she made visitors identify themselves before she let them into her
house. He said the victim would not have allowed anyone to spray paint her
car.
On cross-examination, Mr. Pamplin acknowledged that he last saw the
victim on May 9, 2004. He said that the victim appointed him executor in her
will in 2003 and that she had seven grandchildren, all of whom lived in the
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Nashville area. He admitted that the victim made statements to him about her
belief her grandson Joe was stealing money from her and that it was after this
that he was appointed executor. He said he did not know whether Joe had the
opportunity to steal money from the victim. He admitted that the victim was
paranoid about her neighbors stealing her food but said she never mentioned
anyone by name. He acknowledged that the victim never expressed concerns
about the Defendant.
Judy Grealis testified that she was retired from Contact Lifeline, a
service that called elderly or disabled people to provide friendship and
reassurance. She said that Contact Lifeline called the victim every day and
that she was one of the people who called the victim. She said she had been
to the victim’s home to take photographs one or two weeks before the victim’s
disappearance. She said that Contact Lifeline kept photographs of the people
called in order for its volunteers to know the people they were calling. She
said she was very impressed by the victim’s perfect housekeeping and
landscaping. She said the victim’s car looked “fine” but admitted she did not
really notice it. She identified a photograph she took of the victim a week or
two before the victim’s disappearance. She said that the victim’s home was
spotless in the photograph and that there were no keys on the coffee table in
the photograph. She identified a photograph of the victim’s yard, which she
said was in excellent condition every time she saw it. She identified another
photograph depicting the flowers in the victim’s yard and part of the victim’s
car.
Ms. Grealis testified that she last spoke with the victim on May 21,
2004, at about 3:30 p.m. She said that she asked the victim if she could visit
the next day to show her a photograph collage but that the victim said she did
not feel well and did not want her to visit. She said that she tried to reach the
victim on May 22 at noon but that the victim did not answer her telephone.
She said that another call from Contact Lifeline was placed at 1:00 p.m. but
that the victim did not answer. She said she went to the victim’s home around
4:00 p.m. and saw that the padlock the victim kept on her front door was
missing, that a window was open, and that the victim’s car was not there. She
said that she left because she felt uneasy and that she called Contact Lifeline
to have a backup person check on the victim.
On cross-examination, Ms. Grealis acknowledged that although she
drove by the victim’s home about five times in the year before the victim’s
death, she only visited inside the victim’s home once. She also admitted she
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was not always the person from Contact Lifeline who called the victim. She
said that about a month before the victim disappeared, the victim expressed her
concern that someone was stealing her food. She acknowledged that she was
not concerned the first time the victim did not answer her telephone on May
22 because the victim was sometimes away from home.
Sue Meks testified that she was the manager of Favorite Market on May
22, 2004. She said the Defendant came to the store around 2:00 or 2:30 a.m.
and bought a twelve-pack of Budweiser for “$10 and some change.” She
described the Defendant as very calm. She said that as the Defendant drove
away, she saw he was in a brown Ford or Mercury with metal racks on the
back. She identified a photograph of the market and a cash register receipt for
a twelve-pack of Budweiser for $10.34. She noted the time and date on the
receipt as 2:14 a.m. on May 22, 2004. She identified a videotape from the
market’s cameras, which she said showed that the Defendant came to the store,
bought beer, and left. She noted that the tape reflected a time of 2:16 a.m.
when the Defendant took the beer from the cooler. The tape was played for
the jury. Ms. Meks testified that she watched to be sure the Defendant was
gone and then called the Communications Center and reported that the
Defendant just left the store. She said she waited because, “I didn’t want him
to know that I knew anything.”
On cross-examination, Ms. Meks acknowledged that the Defendant did
not cause a disturbance in the store. She said he did not have any difficulty
finding the beer or paying for it. She admitted he did not have noticable stains
on his clothes. She acknowledged on redirect examination that she told the
TBI in a previous statement that the Defendant looked intoxicated, tired, and
unshaven. She said on recross-examination that the Defendant was uneasy,
which made her uneasy, but that she called the police based on information she
knew, not the Defendant’s mannerism.
Tullahoma Police Officer Rana Pawlowski testified that before the
victim’s death, she responded to the victim’s 9-1-1 calls reporting that
someone was breaking into the victim’s home. She said that after the victim
called 9-1-1 several times, she trimmed the bushes near the victim’s windows
to prevent them from scraping the windows and frightening the victim. She
said the victim kept a clean, organized home.
Officer Pawlowski testified that on May 22, 2004, she was dispatched
by the Communications Center to check on the victim. She said that when she
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arrived at the victim’s house about 8:40 p.m., the victim’s car was not there.
She said this was strange because the victim did not like to drive at night. She
said the door was open and missing the padlock. She said that after Officer
Blackburn came to assist her, they went into the victim’s home and noticed the
rug at the front door “wadded up,” which she said was unusual given the
victim’s orderly nature. She said the toilet seat was up and there was urine but
no tissue in the commode, which made her think a man had been there. She
said that the victim’s bedcovers were in disarray, that there were stains on the
bedspread that looked like blood, and that the victim’s purses were scattered
about the room. She said that she notified the Communications Center and left
the victim’s home, locked the door as best she could, and began patrolling for
the victim’s car.
Officer Pawlowski testified that ten or fifteen minutes later, she
responded to a call for assistance from other officers who were chasing the
victim’s car. She said that when she saw the victim’s car, it appeared to have
hit a fence on property behind a curve in the road. She said she heard a couple
of shots and saw the Defendant running around the side of a house a few
minutes later. She said she ran parallel to the Defendant for twenty to twenty-
five yards until he threw the gun and fell, after which he was captured. She
said she stood over the gun until the investigators arrived to collect it.
On cross-examination, Officer Pawlowski testified that the victim was
paranoid about her neighbors, believing they were stealing food and cooking
in her house when she was not there. She said the victim never identified
anyone by name and never complained about the Defendant. Officer
Pawlowski acknowledged that she went to the victim’s home ten to thirty times
in the year before the victim’s disappearance, usually because the victim
thought someone was trying to break in to her home. She admitted she never
found any evidence of an attempted entry.
Officer Pawlowski admitted that when the Defendant threw the gun and
fell, the gun was not within his reach. She said that when she looked at the
gun on the ground, it did not appear to have a magazine in it.
District Attorney’s Investigator Billy Cook testified that he responded
to the scene where the Defendant was shot and taken into custody. He said he
took photographs, investigated the scene, and went to the victim’s home. He
said he knew something was wrong because the victim was missing and her
car was spray painted.
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Investigator Cook testified that he and Tullahoma Police Detective Ron
Cunningham went to the hospital to question the Defendant about the victim’s
disappearance. He said the Defendant claimed that he helped the victim,
whom he called “Granny,” mow her yard on May 21, 2004. He said the
Defendant stated that the victim allowed him to borrow her car and that she did
not care that he spray painted it. He said the Defendant admitted being in the
victim’s home and sitting on the side of her bed while talking to her. He said
the Defendant claimed to have last seen the victim at 3:00 or 4:00 p.m. on May
22. He said the Defendant denied killing the victim or hiding her body.
Investigator Cook testified that after interviewing the Defendant, he
went to the victim’s house and searched inside with other officers. He said
that the rug by the front door was out of place, that the victim’s bed was in
disarray, that her purses were strewn across the bed, and that the purse’s
contents had been emptied onto the bed. He said that there was no evidence
indicating the victim was killed in her home and that they secured the home in
order to focus on searching for the victim’s body elsewhere. He said the
search continued until the early morning hours.
Investigator Cook testified that on May 23, 2004, he directed the crime
scene investigation at the victim’s house while other officers continued
looking for the victim. He identified a diagram and photographs of the
victim’s home and testified about the configuration of the home. He said the
victim’s home and yard appeared to have been well maintained and that the
yard appeared to have been recently mown.
Investigator Cook testified that a rag was left in the bathroom sink and
that the victim’s denture holder contained only her lower dentures. He said the
stain on the victim’s bedspread was later determined to have likely been from
the victim’s unhealed leg wound. He said that a garbage can was underneath
a living room window and that the window’s latch was broken and its screen
cut. He said that inside the home, a sofa was underneath the window and that
it appeared to have been stepped on because it had dirty spots and an
indentation.
Investigator Cook testified that they did not find the victim despite
extensive searches on May 24 and 25, 2004, and that he and TBI Agent
Kendall Barham questioned the Defendant on May 25. He said the Defendant
told them that he cut the screen of the victim’s window and climbed in across
the couch, that he found her keys on the coffee table, and that he left through
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the front door. He said the Defendant claimed not to know whether the victim
was home. He said the Defendant recounted that he bought spray paint in
Murfreesboro, that he painted the car, and that he searched for his father to
gain permission to sleep in the church. He said that he implored the Defendant
to do the right thing in order for the victim to have a proper burial, that the
Defendant asked to have a cigarette first, and that the Defendant said, “Y’all
[will] never be able to find her. I’ll have to draw you a map.” He said that the
Defendant promised to draw the map if they would return the following day
and requested the death penalty rather than spending the rest of his life in
prison. He said he and Agent Barham signed a statement that they would
recommend the death penalty to the district attorney, which they gave to the
Defendant. He said that the Defendant refused to talk further about the
location of the victim’s body and that the Defendant said he wanted to talk to
his lawyer. He said that the Defendant said he still wanted to talk to them the
next day but that when they returned on May 26, the Defendant did not have
a map for them. He said he later returned to the victim’s home and found its
condition consistent with the Defendant’s account of cutting the screen and
climbing in through the window.
Investigator Cook testified that while he and Agent Barham were at the
victim’s home on May 26, 2004, they received information that a female body
had been found. He said they went to the scene, which was in a remote area
near the pumping station and Normandy Lake, and saw a decomposing body
covered with freshly cut branches and saplings.
Investigator Cook testified that he and Agent Barham talked to the
Defendant on August 16, 2004, and that the Defendant denied killing the
victim. He said the Defendant claimed that he and his wife met David
Loffman at the pumping station and that he gave Mr. Loffman his gun because
Mr. Loffman was going to pay him for it. He said the Defendant claimed that
he returned to the pumping station on May 21 at 9:00 p.m. and that he met with
Mr. Loffman, another man, and a woman with long, dark hair. He said that the
Defendant stated that Mr. Loffman told him to return in an hour and a half and
that the Defendant claimed he found a brown paper bag with the gun and $100
inside when he returned. He said the Defendant reported that he knew Mr.
Loffman lived in a trailer across from the Defendant’s father’s church. He
said the Defendant admitting knowing that the trailer had been the victim’s but
that the Defendant claimed to think the victim had died long ago. He said the
Defendant reported that he decided to break into the trailer and steal the car
because Mr. Loffman still owed him money. He said the Defendant claimed
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that he rode a bike from his father’s house to the church, that he left the bike
in a shower stall at the church, and that he entered the victim’s home by cutting
the window screen and climbing through the window. He said that the
Defendant reported finding the victim’s car keys on an end table and also
finding the bag with the gun. He said the Defendant claimed he was scared by
a noise from the back of the house and left. He said the Defendant identified
David Loffman as his wife’s boyfriend. Investigator Cook identified a
photograph exhibit of the keys that were in the victim’s wrecked car.
On cross-examination, Investigator Cook acknowledged that the
Defendant admitted breaking into the victim’s home through the window,
taking her car, and spray painting the car. He admitted the Defendant talked
to him voluntarily on August 16, 2004, even though the Defendant stated he
wanted to speak to his lawyer on May 25. He said that in his opinion, the
Defendant fabricated the story about meeting with someone and selling a gun
for $100. He said that the Defendant told “bits and pieces of the truth” but that
he did not believe the Defendant’s statements overall. He admitted he did not
investigate the parts of the Defendant’s statements that he did not believe. He
said that he thought the Defendant’s claim about David Loffman referred to
one of the victim’s grandsons but that he did not believe the Defendant really
knew the grandson’s name.
Investigator Cook testified that a laboratory analysis was performed on
a shell casing found near the victim’s body and that the casing matched the
handgun the Defendant had when he was arrested. He acknowledged that
slugs of several other calibers were found near the body. He said an upper
denture was also recovered in the area.
Special Agent Kendall Barham of the TBI testified that he went to the
victim’s house at least three times during the course of his investigation. He
said there was a denture holder and a set of lower dentures in the victim’s
bathroom. He said a set of upper dentures was found near the victim’s body.
Agent Barham testified about the Defendant’s statement on May 25,
2004. He said the Defendant admitted cutting a window screen at the victim’s
house and climbing inside the window. Agent Barham said the Defendant
took the car keys from a coffee table and left through the front door. He said
the Defendant admitting going to Murfreesboro in the victim’s car, buying
spray paint, painting the car, and going to an area near Tims Ford Lake. He
said that when Investigator Cook mentioned giving the victim a decent burial,
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the Defendant became complacent and asked to have a cigarette before he told
them what happened. He said the Defendant claimed that they would never
find the victim and that he would have to draw them a map. He said the
Defendant stated that he wanted to be sentenced to the death penalty. He said
the Defendant would not identify the location of the victim’s body and
eventually requested an attorney, which ended the interview. Agent Barham
said that he and Investigator Cook returned the next day to get the map the
Defendant promised to draw but that the Defendant did not provide it.
Investigator Barham testified that Agent Cook’s written summary of the
Defendant’s August 16 interview was accurate. He said that the interview
took place while he was driving on the interstate and that he was not able to
pay close attention or make notes.
On cross-examination, Investigator Barham testified that after the
Defendant admitted cutting the window screen, he went to the victim’s house
and confirmed that the screen was cut. He said that he attempted to collect
fingerprint evidence but that he was not able to get a print of sufficient quality
for analysis. He said that he contacted the manager of the store where the
Defendant claimed to have purchased spray paint, and that the manager told
him he did not have a store video. He said that the manager told him he would
contact him if he found a cash register receipt for the paint but that he never
heard from the manager. He acknowledged that some of the Defendant’s
statements were true.
Christopher Harrell testified that he lived next door to the victim in May
2004 and that he assisted in the rescue squad’s search for the victim near the
pumping station. He said that a few days later, he went to look for the victim
on his own. He said he was riding his four-wheeler in the Normandy Lake
area and smelled an odor of decay. He said he looked for the source of the
smell and found the victim’s body covered by small tree limbs in woods near
“briary grass.” He said that he called his grandmother to report his findings,
that she called the authorities, and that he went to the pumping station entrance
to wait for their arrival. He denied touching the body or the ground near it.
On cross-examination, Mr. Harrell admitted he never saw the Defendant near
where he found the victim’s body.
TBI Special Agent Sandra Poltorak testified that she was a forensic
scientist supervisor and a member of the Violent Crime Response Team that
processed the scene where the victim’s body was found. She identified
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photographs taken by the team and a diagram she drew. She said the victim’s
body was not intact and appeared to have been damaged by animals and
insects. She said they collected two cartridge casings, one of which was
underneath the body. She said they also collected half of a set of dentures and
clothing. She said that based upon her experience and the extent of the
decomposition of the victim’s body, it was her opinion that the victim was not
killed the day she was found. She acknowledged that it was hot on May 26
and that decomposition accelerated at high temperatures.
On cross-examination, Agent Poltorak acknowledged that the beer cans
the team collected did not have any identifiable fingerprints. She said that
when she arrived at the scene, she was informed the body was female and that
the team speculated that it was the victim. She said the leaves on the branches
covering the victim’s body were still green. She acknowledged that no hair,
fibers, fingerprints, or DNA were collected at the scene that would link the
Defendant to it.
Dr. John Patsimas testified that he was the victim’s treating physician.
He said that he saw her as a patient frequently, that they were very close, and
that she “adopted” him as a grandson. He said that given her age, she was in
good health. He could not recall whether she wore dentures. He identified x-
ray films he took of her knee in 2000 that he said the medical examiner
requested to assist in identification of her body.
Dr. Amy McMaster testified as an expert witness in forensic pathology.
She performed the victim’s autopsy on May 27, 2004. She said that the body
was in an advanced state of decomposition and that there was skeletonization,
or exposure of the bone. She said she requested Dr. Hugh Berryman, an
anthropologist, to assist her. She said the body was identified as the victim
based upon comparisons with existing x-rays of her knee.
Dr. McMaster testified that in her report, she listed the victim’s date of
death as May 26, 2004, because in Tennessee the legal date of death was
determined by when a person is pronounced or found dead, rather than by the
date the person actually died. She said that given the state of decomposition,
the victim did not actually die on May 26. She said the manner of death was
homicide and the cause of death was gunshot wounds. She said there were at
least two gunshot wounds, one on the left side that injured the victim’s left
collarbone and left first rib, and one on the right side that injured the victim’s
right fifth rib and right shoulder blade. She said that the gunshot to the left
side traveled from back to front and that the one on the right side traveled from
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front to back. She said that there were fractures of the bones of the spine and
ribs but that she was unable to determine whether they occurred before or after
the victim’s death. She said that it was likely that major organs were damaged
by the gunshots and that if this happened, the victim would have been
conscious for about thirty seconds and would have died in less than five
minutes. She said the only clothing on the victim’s body was a pajama-type
top. She said that there were holes in the top but that she was unable to
determine what caused them. She said, however, that the holes corresponded
with the same areas of the victim’s body as the gunshot wounds. She said that
parts of the body could have become separated either from animal activity or
decomposition of ligaments and tissue.
Dr. McMaster testified that in her opinion, the victim died on the earlier
end of the five-day window between the victim’s disappearance on May 21
and her recovery on May 26, 2004. She said that estimating the time of death
is imprecise. She said that she would not expect to see the amount of
decomposition and skeletonization present within a day or two of death and
that it was more likely the victim died four or five days before her body was
found.
On cross-examination, Dr. McMaster acknowledged that she was
unaware of any DNA identification of the victim. She admitted the autopsy
order listed the victim’s name as the probable identification of the body. She
acknowledged that she would have inquired about the last time the suspected
victim was seen alive.
Special Agent Steve Scott of the TBI testified as an expert in ballistics.
He said that in connection with this case, he examined a Taurus Model PT92
nine-millimeter handgun, cartridge cases, and fired bullets, which he identified
as items in evidence. He said the unfired ammunition he received was
consistent with the type that would be fired from the handgun. He said that
based upon his examination, he determined that the two fired cartridge cases
recovered from the crime scene were fired from the Taurus nine-millimeter
handgun. He said that he also examined three nine-millimeter projectiles
recovered from the scene and that it was possible one of them was fired from
the handgun, although he could not say so conclusively.
The defense did not offer proof. The jury found the Defendant guilty
of first degree premeditated murder, first degree felony murder, especially
aggravated robbery, especially aggravated kidnapping, aggravated burglary,
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evading arrest, and unlawfully possessing a handgun. The trial court then
conducted the sentencing phase of the trial for the murder convictions, in
which the State sought the penalty of life without parole based upon
aggravating factors that (1) the victim was more than seventy years old, and (2)
the Defendant had one or more prior violent felony convictions.
The State introduced certified copies of judgments reflecting the
Defendant’s prior convictions for four counts of kidnapping, aggravated
burglary, burglary, temporary taking of a motor vehicle, grand larceny, two
counts of malicious mischief, concealing stolen property valued at less than
$200, and felony escape.
Investigator Billy Cook testified that he was involved in the
investigation of the Defendant’s four prior kidnapping convictions. He said
the crimes occurred on October 17, 1998, and involved the kidnapping of four
teenage boys. He said his investigation revealed: The boys threw eggs at the
Defendant’s fence and mailbox and “rolled a yard” of someone else. After
visiting in someone’s home, the boys returned to the car in which they had
been riding and found the Defendant standing next to it. The Defendant yelled
at and slapped one of the boys and pushed his way into the back seat while
holding a bag. The Defendant insisted that the boys take him into the country,
despite the driver’s protest. The driver eventually did so, and when they
reached a lake, the Defendant pointed a gun at one of the boys and stated that
he could kill them all. One of the boys said he was going to leave, but the
Defendant told him, “You ain’t going nowhere.” The Defendant took the car
keys. They were at the lake about forty-five minutes to an hour before the
Defendant drove them around on back roads and insisted that they drink
alcohol. The Defendant went to a house he said was his brother’s and then
took the boys to a tobacco field, where they stayed for about two hours. One
of the boys said he wanted to go home and asked to drive, but the Defendant
did not yield the keys. The boys ran to a house when the Defendant fell asleep
or lost consciousness. On cross-examination, Investigator Cook acknowledged
that the Defendant was convicted of the kidnapping charges based upon his
guilty pleas, not a trial.
The defense called Becky Cook, the Defendant’s sister, who testified
that the Defendant did carpentry work when he was not in jail. She said he had
a long-standing drug and alcohol problem. She said her family loved and
supported him.
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The jury found the existence of both aggravating factors and returned
a verdict that the Defendant should be confined for life without parole. The
jury also found that the Defendant had a prior felony conviction of kidnapping.
The trial court conducted a sentencing hearing on the other convictions. State v. Henry
Alfred Honea, No. M2009-01500-CCA-R3-CD, slip op. at 1-13 (Tenn. Crim. App. Jan. 28,
2011), perm. app. denied (Tenn. May 31, 2011).
The Petitioner filed the present post-conviction action alleging the ineffective
assistance of counsel regarding his two trial attorneys. As relevant to this appeal, the
Petitioner alleged that counsel were ineffective for failing to object to a Tennessee Bureau
of Investigation (TBI) agent’s non-expert testimony about the rate of decomposition of the
victim’s body, failing to request a jury instruction on alibi, failing to subpoena potential
defense witnesses, and failing to request a mistrial after the jury was informed of the
Petitioner’s pending charges. After counsel was appointed and the petition was amended,
the trial court conducted a hearing on the Petitioner’s allegations.
At the hearing, the trial transcript was received as an exhibit. Co-counsel testified that
he assisted lead counsel in the Petitioner’s trial. He said that he began working on the case
after counsel had been appointed but did not recall how long the case was pending before he
began assisting with the defense. He agreed that TBI Agent Sandy Poltorak testified that the
victim’s body was in an advanced stage of decomposition indicating that she had been in the
location where she was found for more than two or three days. He did not remember if
Agent Poltorak was qualified as an expert witness or if he objected to her testimony but said
“that was a very critical piece” because the Petitioner had asked counsel to file motions to
dismiss because the Petitioner thought he had been in custody when the offense occurred.
He agreed that Dr. Amy McMaster, the forensic pathologist who performed the autopsy, had
not yet testified when Agent Poltorak testified and that it might seem in hindsight that Agent
Poltorak’s testimony bolstered evidence that the victim’s body had been where it was found
for longer than two days. He said the Petitioner had been in jail for two days before the
victim’s body was found. He said he had trouble getting the Petitioner to understand that the
time of death listed on the victim’s death certificate referred to the time the victim’s body
was found, not the time the victim died.
Co-counsel testified that no defense motion for an alibi instruction was made, even
though Dr. McMaster’s testimony did not foreclose the possibility that the victim’s body had
been in the location where it was found for two days. He said it was possible, though, that
a question of an alibi was fairly raised by his cross-examination of Dr. McMaster.
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Co-counsel testified that he did not interview Iris Crowfoot or Barbara Lewter but that
counsel did and that “Mr. Conn” may have been present, as well. He said that when the
District Attorney General’s Investigator, Billy Cook, testified, information regarding the
Petitioner’s pending rape charge was displayed on a screen. He said that he or counsel
objected. He did not recall how long the information was displayed but thought it was brief.
He acknowledged that the information could have been prejudicial if a juror saw it. He said
that a jury-out hearing was held but that they did not a request a mistrial on this basis. He
did not recall if the Petitioner advised him that he did not have pending rape charges.
On cross-examination, co-counsel agreed that it was a matter of common sense that
a body that was extremely decomposed would have been deteriorating for “a matter of days.”
He agreed that Dr. McMaster testified as an expert that this was correct. He thought his
cross-examination of Dr. McMaster was very effective because it showed that she could not
determine an exact time of death due to the advanced decomposition. He thought he argued
that this created reasonable doubt.
Co-counsel agreed that this court said in the appeal of the Petitioner’s convictions that
no evidentiary basis existed for an alibi instruction. He recalled that the Petitioner had a
handgun when he was taken into custody on May 22, 2004, and that the TBI laboratory later
determined that the handgun was the murder weapon. He agreed it was logical to conclude
that the victim was killed before the Petitioner was arrested because the handgun was in
police possession after the Petitioner’s arrest. He agreed that requesting an alibi instruction
would have been “frivolous.” He said he was told that Ms. Crowfoot and Ms. Lewter did not
have information that benefitted the defense. He agreed that despite information about the
Petitioner’s pending charges having been displayed on the screen, there had already been
evidence that the police were looking for the Petitioner on the day of his arrest due to
outstanding charges. He did not know if any jurors saw the information on the screen. He
said a curative instruction was given. He did not think the information on the screen
warranted a motion for a mistrial.
Co-counsel testified that he and counsel did the best they could with the Petitioner’s
case and that he thought their efforts turned out better than he envisioned. He agreed that the
proof against the Petitioner was overwhelming and that the Petitioner admitted cutting the
victim’s window screen, climbing into her house, taking the victim’s keys and car, and
painting the car. He agreed that within hours or a day, the Petitioner was found in possession
of the murder weapon.
On redirect examination, co-counsel testified that he cross-examined Dr. McMaster
about the time of death in order to “poke holes” in the strong case the State had against the
Petitioner. He said that if he were trying the case again, he might consider requesting an alibi
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instruction. He did not recall if he considered it during the Petitioner’s trial. He said that he
talked to the Petitioner on multiple occasions about the strength of the State’s evidence and
that the Petitioner insisted “he did not do this.”
Iris Crowfoot testified that the victim had lived across the street from her for about
ten years. She said that counsel interviewed her and that she “gave him some leads” and a
written statement. She said counsel stated that he wanted to create confusion, but later she
said she interpreted this to mean that counsel thought she was confused. She said that she
told counsel about Meals on Wheels and that someone had gone to the victim’s door and
claimed to be Clarence Loffman, although the person was David Loffman. She said the
Loffmans were the victim’s grandsons. When asked if the victim was afraid of her
grandsons, Ms. Crowfoot said that most of the time, the victim talked about “Joel.” She said
that she knew the victim was afraid of at least two of her three grandsons and that she
probably told counsel this. She said the victim was mad at Joe Loffman because he had her
power of attorney and took $10,000 to buy a car against her wishes. She thought she told
counsel about this. She said that one or two days before the victim’s disappearance, she saw
a man “cutting through” the victim’s property and that she told the victim what she had seen.
She said the victim told her that people had stolen from her house. She thought she told
counsel about this. She said that no one, including police officers, ever contacted her after
her conversation with counsel. She said she was not subpoenaed and did not attend or testify
at the Petitioner’s trial.
Post-conviction counsel stated that he attempted to subpoena Barbara Lewter. He said
that Lee Nettles attempted to serve the subpoena but that Mr. Nettles learned that Ms. Lewter
had died.
Counsel testified that he was appointed to represent the Petitioner after the indictment
was returned. He said he knew the Petitioner because the Petitioner had done work on his
property years earlier. He said that he interviewed Ms. Crowfoot once and that he took the
Petitioner’s sister with him because she knew Ms. Crowfoot. He said he interviewed her
shortly after he was appointed because she had written supportive letters to the Petitioner that
contained negative allegations about the Coffee County judicial system.
Counsel testified that Ms. Crowfoot was “very, very paranoid” and had other residents
of her house talk to him before she came outside and talked to him in the presence of the
other people. He said that Ms. Crowfoot told him about problems with Joe Loffman and that
although he did not talk to Mr. Loffman, he “checked into it.” He said he questioned the
victim’s nephew, who did not have specifics about any problems between the victim and a
grandson. He said he checked with the police about past calls to the victim’s house. He said
there were calls about the victim’s nephew and the victim’s hearing noises. He noted that
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the victim was ninety-four years old and lived alone. He said the police had no knowledge
of anything related to the victim’s grandson. He did not remember if someone had the
victim’s power of attorney. He thought Ms. Crowfoot told him about the allegation that
someone stole money from the victim but said she did not know any factual information. He
said they “tried to put the blame on the grandson some way, but it didn’t work.” He did not
remember Ms. Crowfoot saying that she saw someone go through the victim’s yard.
Counsel testified that he did not call Ms. Crowfoot as a witness because he did not
think she knew anything about the case. He said that he talked to the Petitioner about it and
that it was not entirely his decision not to call her as a witness. He said they discussed “the
other lady,” as well. He did not remember the Petitioner’s filing a motion to have Ms.
Crowfoot subpoenaed. He said that after he talked to the Petitioner, the Petitioner agreed
with him about not calling Ms. Crowfoot as a witness.
Counsel testified that he agreed with co-counsel that the evidence against the
Petitioner was overwhelming. Regarding Agent Poltorak’s testimony, counsel said a
layperson could view a decomposing body and testify about the amount of decomposition.
He recalled Agent Poltorak testified that animals had fed on the body. He said a layperson
could testify to the deterioration of a body but not scientifically to how long it had been there.
He thought co-counsel did a good job cross-examining Dr. McMaster. He agreed that Dr.
McMaster stated the body could have been at the location it was found for three to five days
but that on cross-examination, she said she thought the body had been there for more than
two days. He agreed that if the body had been there for only two days, the Petitioner would
have been in custody. He said, though, that at the time, he did not think an alibi instruction
was appropriate.
Counsel testified that the screen on which the Petitioner’s pending charge was
displayed was a “portable-type” screen and that the information was only visible briefly. He
said that he objected as soon as he saw it and that it was turned off. He was aware the
Petitioner had a rape charge at some point but did not recall the nature of the charges shown
on the screen. He said he did not request a mistrial because he thought the judge’s curative
instruction adequately addressed the situation. He said he did not want to create greater
emphasis, did not know if any of the jurors saw or recognized the information, and did not
want to ask them.
On cross-examination, counsel agreed that based upon the evidence, it was logical that
the murder occurred before the Petitioner’s arrest. He agreed that this court said in the
appeal of the Petitioner’s convictions that an alibi instruction was not supported by the
evidence. He said that he, co-counsel, his investigator Dale Conn, and the rest of his staff
worked diligently on the Petitioner’s case. He said they did all they could with the evidence
-18-
they had. He said that he and the Petitioner had a good relationship and that although the
Petitioner did not like some things he did, they never fought. He said he “begged” the
Petitioner to accept a plea offer. He said that he had the Petitioner’s sister, his mother, and
a friend talk to the Petitioner about a plea agreement but that the Petitioner was adamant he
was not guilty.
In a written order, the trial court denied post-conviction relief. This appeal followed.
The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).
Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).
A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.
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I
The Petitioner contends that counsel provided ineffective assistance by failing to
object to Agent Poltorak’s testimony about the decomposition of the victim’s body, despite
the fact that she was not qualified as an expert witness. The State contends that counsel were
not deficient in failing to object and that any purported deficiency did not affect the outcome
of the Petitioner’s trial. We conclude that the Petitioner is not entitled to relief.
As we noted, Agent Poltorak, a forensic scientist, testified at the trial that she
processed the scene where the victim’s body was found. She stated that the victim’s body
appeared to have been damaged by animals and insects. Based upon her experience and the
extent of the decomposition of the victim’s body, it was her opinion that the victim was not
killed the day she was found. She acknowledged that it was hot on May 26, 2004, and that
decomposition accelerated at high temperatures. We note that Agent Poltorak was asked if
she was qualified to testify as an expert about the time of death and that she acknowledged
she was not. When asked if warm temperatures would cause the body to decompose faster,
she said, “Once again, I’m not an anthropologist or a medical examiner, but the best of my
knowledge, yes, that would accelerate it.” (Emphasis added.)
On appeal, the Petitioner raised an issue regarding the admission of Agent Poltorak’s
testimony. Because the issue had not been raised in the trial court, this court considered the
issue as a matter of plain error and concluded that none existed. In reaching this conclusion,
this court noted, “The record reflects that Agent Poltorak’s testimony was consistent with Dr.
McMaster’s expert testimony. Dr. McMaster testified in detail about the victim’s time of
death and state of decomposition.” Henry Alfred Honea, slip op. at 17-18.
In denying post-conviction relief, the trial court stated:
The court finds that . . . the qualified expert, Dr. Amy McMaster, gave
authoritative testimony on the subject. Although it could be considered
cumulative, Agent Poltorak’s testimony was not given as an expert, but merely
what a lay person would have said in response to the questions asked. As the
Court recalls, all of the evidence showed that the victim’s body was in no
shape to support the theory that she had died just a couple of days before
discovery. Therefore, the Court finds that this ground is unsupportable.
The Petitioner argues that the date of the victim’s death was a critical issue. He was
arrested on May 22, and the victim’s body was not found until May 26. The evidence
showed, though, that the Petitioner possessed the murder weapon when he was arrested.
When the Petitioner was interviewed, he told a police investigator that on May 21, he met
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with David Loffman and two other individuals at the pumping station where the victim’s
body was found. He said he sold his gun to David Loffman with an agreement to return in
one and one-half hours for payment. The Petitioner claimed that he gave Mr. Loffman the
gun and that when he returned for payment, he found the gun and $100 in a bag and kept
both. The Petitioner claimed he thought the victim’s trailer was Mr. Loffman’s and decided
to break into it and steal the car because Mr. Loffman owed him money.
We conclude that although Agent Poltorak may have ventured into expert opinion
testimony, she acknowledged she was not an expert capable of determining the time of death,
and her opinion was limited to stating that she thought it was more than a day before the body
was found. Given these circumstances, counsel’s performance was not deficient. Regarding
the question of prejudice, we again note that Dr. McMaster testified as an expert about the
condition of the body and her opinions regarding the approximate time of the victim’s death.
Dr. McMaster’s testimony was more specific than Agent Poltorak’s in that it placed the time
of death closer to the time of the victim’s disappearance. The proof of the Petitioner’s guilt
was strong. The Petitioner failed to show that he was prejudiced by counsel’s failure to
object to Agent Poltorak’s testimony. He is not entitled to relief on this basis.
II
The Petitioner contends that counsel provided ineffective assistance because they
failed to request an alibi instruction. The State contends that based upon this court’s
determination in the Petitioner’s appeal of his convictions that an alibi instruction was not
supported by the evidence, counsel were not ineffective in failing to request the instruction.
We agree with the State.
In denying relief on this basis, the trial court stated:
The Court finds, as it did at trial, that the evidence did not support an
instruction as to an alibi defense. The murder weapon was found on the
defendant at the time of his arrest, and the victim was missing before the
defendant was arrested. The expert testimony adduced at trial corroborated the
evidence which showed that the victim died before Mr. Honea’s arrest.
As this court noted in the appeal, a question of an alibi was not fairly raised at the
trial. See Henry Alfred Honea, slip op. at 19-20. Counsel were not ineffective for failing to
request the instruction. The Petitioner is not entitled to relief on this basis.
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III
The Petitioner contends that counsel provided ineffective assistance for failing to
subpoena Iris Crowfoot and Barbara Lawter. The State contends that counsel determined
that the witnesses’ testimony would not be useful and that counsel were not ineffective. We
conclude that the Petitioner is not entitled to relief.
In denying post-conviction relief, the trial court stated:
The Court finds that defense [counsel’s] testimony as to their decision not to
call Ms. Crowfoot and Ms. Lewter was reasonable and credible. Although Ms.
Lewter is now dead, Ms. Crowfoot testified at the post-conviction hearing that
she had no direct evidence as to the allegations of murder. She only knew a
few hearsay matters and both witnesses’ testimony would not have been
beneficial to the defense.
Counsel testified that he interviewed Ms. Crowfoot and that it was his strategic
decision, in consultation with the Petitioner, not to present her testimony at the trial. No
evidence was presented of the substance of Ms. Lewter’s potential testimony, although co-
counsel testified that he had been told that neither Ms. Crowfoot nor Ms. Lewter had helpful
information.
The Petitioner argues that these witnesses would have shown that someone else could
have committed the murder. We will not second-guess counsel’s strategic decision not to
call Ms. Crowfoot after interviewing her, investigating the information she provided, and
consulting with the Petitioner. Regarding Ms. Lewter, we will not speculate that her
testimony, the content of which is unknown, would have benefitted the Petitioner. We note
again the strong evidence of the Petitioner’s guilt. We likewise note that Bill Pamplin, the
victim’s nephew, testified about the victim’s concern that her grandson Joe may have stolen
money from her and that Investigator Billy Cook testified about the Petitioner’s claim he sold
his gun to David Loffman, one of the victim’s grandsons. The trial court did not err in
concluding that the Petitioner failed to prove ineffective assistance in not presenting Ms.
Crowfoot’s and Ms. Lewter’s testimony. The Petitioner is not entitled to relief on this basis.
IV
The Petitioner contends that counsel provided ineffective assistance because they
failed to request a mistrial when information about a pending charge was projected briefly
onto a screen in the courtroom. The State contends that the Petitioner failed to show the
ineffective assistance of counsel. We agree with the State.
-22-
The trial record reflects that during Investigator Cook’s testimony, a document was
projected that contained two lines referring to the Petitioner’s pending rape charge. After an
objection, the court held a jury-out hearing, after which the information was redacted and the
jury was instructed to disregard any specifics of the reason the Petitioner was wanted by the
police at the time he was arrested. No mistrial was requested. In his appeal, the Petitioner
contended that the trial court erred in not declaring a mistrial on this basis. This court
concluded that the Petitioner failed to establish the requisites for plain error relief. The court
also noted that the record did not contain the document that was projected onto the screen,
and we note that the document was not offered as an exhibit at the post-conviction hearing.
In denying post-conviction relief, the trial court stated:
The Court recalls this episode at the trial very well. The wrong slide was
shown very briefly on the overhead, and it was taken down forthwith. The
Court recalls that it believed no one on the jury had time to see it. Out of an
abundance of caution, the Court gave a curative instruction, and this Court
firmly believes it had no effect on the jury. In fact, the Court understands that
the jury already knew the defendant was wanted on other charges when he was
arrested. This was all in the proof, so a mistrial motion would have been
denied if asked for.
We acknowledge, though, as does the State, that despite the trial court’s finding that it
believed no one on the jury saw the reference to the rape charge, the trial record reflects the
court’s statement during the jury-out hearing that the jury “[p]robably did” see it. It does not,
however, change our view of the case. No juror testified at the hearing to show whether the
jury saw the information about the Petitioner’s rape charge.
Co-counsel testified that he did not think a mistrial was warranted. Counsel testified
that he did not request a mistrial because he thought the judge’s curative instruction
adequately addressed the situation. He also said he did not want to create greater emphasis,
did not know if any of the jurors saw or recognized the information, and did not want to ask
them. We have reviewed the curative instruction the trial court gave. Because counsel made
a considered, strategic decision not to request a mistrial and requested a curative instruction
and the trial court gave an adequate instruction, the trial court did not err in determining that
counsel were not ineffective. The Petitioner is not entitled to relief on this basis.
-23-
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
_______ _ _ _ _ _ ____________________ _ _ _
JOSEPH M. TIPTON, PRESIDING JUDGE
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