Bland v. State, No. W2007-00020-CCA-R3-PD (Tenn. Crim. App. 4/3/2009)
| Decision Date | 03 April 2009 |
| Docket Number | No. W2007-00020-CCA-R3-PD.,W2007-00020-CCA-R3-PD. |
| Parties | ANDRE BLAND v. STATE OF TENNESSEE |
| Court | Tennessee Court of Criminal Appeals |
Michael E. Scholl and Marty McAfee, for the appellant, Andre Bland.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Capital Petitioner, Andre Bland, appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On February 12, 1994, the Petitioner was convicted of first degree murder, attempted aggravated robbery, especially aggravated robbery, and attempted first degree murder. The Petitioner was sentenced to death for the first degree murder. The trial court imposed an effective fifty-year sentence for the convictions of attempted aggravated robbery, especially aggravated robbery, and attempted first degree murder. The Petitioner's conviction for first degree murder and the accompanying sentence of death were affirmed on direct appeal. State v. Bland, 958 S.W.2d 651 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998). On July 16, 1998, the Petitioner filed a petition for post-conviction relief. The trial court appointed private counsel; however, the Office of the Post-Conviction Defender undertook efforts to gain appointment as counsel of record. This court, in an order filed September 14, 1998, directed that the trial court appoint the Office of the Post-Conviction Defender as counsel of record for the Petitioner. The trial court entered a preliminary order, concluding that the petition stated a colorable claim and directed that an amended petition be filed. Before an amended petition was filed, the trial court removed the Office of the Post-Conviction Defender as counsel of record due to counsel's failure to appear on scheduled court dates. The trial court appointed new private counsel, and an amended petition was filed on February 17, 2006. A hearing was conducted on February 20-24, 2006, and April 17-18, 2006. By order entered November 28, 2006, the trial court denied the post-conviction petition. On appeal to this court, the Petitioner presents a number of claims that can be characterized as challenges to the effective representation of trial counsel. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.
The proof, as set forth in our supreme court's decision, established the following:
The evidence presented at the guilt phase of the trial established that on the evening of October 9, 1992, the [Petitioner], then nineteen years old, along with Darryl Bailey, Martell Pollard, Carlos Sanders, and two men known only as Steve and Yogi, attended a crap game at the apartment of Charles Sanders in the Southbrook Apartment Complex in Memphis. When the crap game ended around 10:00 p.m., these young men wandered outside and, at some point between 10:30 and 11:30 p.m., decided to rob two strangers, Earnest Norman and Marcel Nugent, whom they had seen arriving at the complex earlier. Nugent had come along to the complex with Norman to visit a friend. Norman and Nugent both testified that when they arrived, four to six men were standing around in the parking lot, and as they were nearing Norman's car to leave about thirty minutes later, the group of men approached them, asked who they were, where they were from, and whether they had any money. When Norman and Nugent ignored the group of men, one of the [Petitioner's] party struck Norman in the back of the head as he was about to get into his car. Norman fled. As he ran, Norman realized he was being pursued by one of the men, and he heard someone urging another person to shoot, and then heard a gun fire. Norman escaped unhurt to a nearby service station and called 911.
In the meantime, Nugent, who had locked himself inside Norman's car, found himself trapped and surrounded by the group of men as they tried to force him out of the car. About this time, the victim of the murder, twenty-year-old Ontrain (Terry) Sanders, drove into the parking lot, got out of his car, and approached the men surrounding Nugent. According to Nugent, the men said something to Sanders, who turned and headed back to his car without replying. The [Petitioner] then fired a gun, hitting Sanders in his right leg. Bleeding profusely, Sanders fled some 273 feet, almost 100 yards, through the apartment complex. The [Petitioner] and Darryl Bailey jogged after Sanders who was limping from the leg injury. When, during the chase, the [Petitioner] shot Sanders in the leg again, Sanders attempted to hide under a pickup truck. However, Sanders was discovered and the [Petitioner] shot him at least two or three more times while he lay underneath the truck. The [Petitioner] and Darryl Bailey then left Sanders, under the truck, pleading for help, and ran back around the apartment complex to the car where Nugent was trapped.
Upon hearing gunfire, Henry Adams, who lived in an upstairs apartment, looked out his back door and saw a man with a large shiny gun kneeling down as if shooting under the truck. Adams heard three shots fired, then saw the man with the gun turn and run. Hearing a man screaming, "Oh God, please help me," Adams called 911 just after midnight. When Adams returned to his back door to look out into the parking lot, he saw someone trying to crawl out from underneath the pickup truck, and heard the person yelling and pleading for help for a short while longer.
Floyd P. Johnson owned the green pickup truck under which Sanders had taken refuge, and Johnson's upstairs apartment also overlooked the area in which the shooting occurred. Johnson testified that after hearing three gunshots, he looked out his window and saw a man lying partially under his truck with his upper body exposed and covered in blood. Johnson testified that the man was calling out, "Oh God, help me!" Because he feared for his own safety, Johnson stayed on his balcony, but attempted to calm Sanders down by talking to him and encouraging him to remain still. Johnson said he talked with Sanders for ten or fifteen minutes until the ambulance arrived.
While Sanders fought for his life under the truck, the [Petitioner] and Darryl Bailey returned to Norman's car. Bailey helped the group of men break through the passenger window and pull Nugent from the automobile. Nugent scuffled with the men before breaking free. As Nugent fled, his jacket was pulled off his back. According to Martell Pollard when someone shouted, "he has a gun," the [Petitioner] shot Nugent in the leg. The men then took his watch and his money, kicked him, beat him, and finally, the [Petitioner] again shot Nugent in the leg. The group of men then disbanded, leaving Nugent lying in the parking lot. Nugent made it upstairs to the apartment of Norman's friend, where he waited until an ambulance arrived.
The first ambulance on the scene transported Sanders to the hospital. One of the paramedics testified that the unit arrived nine minutes after receiving the call, but Sanders' condition was very grave at the time of their arrival. Sanders died in the ambulance on the way to the hospital.
Two days later, at the urging of his mother and grandmother and after learning that the police were looking for him, the [Petitioner] turned himself into the Memphis Police Department on the afternoon of October 12, 1992, approximately two days after the killing. At that time, the [Petitioner] gave a statement in which he confessed to shooting Nugent and Sanders with a chrome 9-millimeter pistol. The following is the defendant's account of the crime:
Me, Little Darryl, Carlos' daddy, Carlos, and a guy named Pat were shooting dice. We were inside Carlos Sanders' house inside the Southbrook Apartments. Little Steve knocked on the door and he came out and got the 9-millimeter pistol that I had. By that time I got up and came outdoors and got the gun from Little Steve. And Yogi approached me saying he was fixing to rob dude that was up in the house. Carlos, Martell, Yogi, Darryl, Steve and me were standing out there, and Yogi was telling us he was going to rob the dude. I gave him the gun, the 9-millimeter. By that time the dudes had come out the apartment. Yogi approached him saying something to him, and then they got into physical contact. Then he hit the dude and the dude broke loose and ran. The other dude got in the car and locked himself in. Steve and Darryl grabbed objects from the ground and started hitting the car window. Darryl pulled the dude up out of the car. Steve, Yogi, Darryl, Carlos, Martell, they was hitting the dude with objects they picked up. I got the gun back from Yogi, and the dude in the Cadillac [the victim] drove up and jumped out and started towards us. And then I shot him in his leg. Then he went around the building and I went around the building and shot him in his leg again. And then he had tried crawl up under a truck and I shot him again. Then he continued up under the truck. I went back around the corner, and they was continuing to beat the dude that got out of the car. Then I walked up and shot in both his legs. I wasn't shooting to kill, that's why I shot them in their leg. I turned around, threw the gun and ran to the Kings Gate Apartments over to my girlfriend house, Teresa Wiggs . . . and then we went to sleep.
When asked by the police why he shot Sanders the first time, the [Petitioner] replied, ...
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