Bowling v. State

• Decision Date: 10 February 2023
• Docket Number: M2022-00158-CCA-R3-PC
• Parties: BRANDON RICHMOND BOWLING v. STATE OF TENNESSEE
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

BRANDON RICHMOND BOWLING
v.
STATE OF TENNESSEE

No. M2022-00158-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Nashville

February 10, 2023

January 10, 2023 Session

Appeal from the Circuit Court for Rutherford County Nos. F-80858, F-77418 James A. Turner, Judge

Brandon Richmond Bowling, Petitioner, was charged in a twelve-count indictment with six counts of rape, two counts of sexual battery, two counts of aggravated rape, one count of first degree felony murder, and one count of first degree premeditated murder for his role in the death of H.M.^[1], a 22-year-old woman. The State filed an intent to seek a sentence of life without the possibility of parole. Prior to trial, counsel for Petitioner filed a motion to suppress video evidence of an incident found on Petitioner's phone. The motion was never litigated. Petitioner pled guilty to one count of aggravated rape and one count of second degree murder in exchange for dismissal of the remaining charges. As a result, Petitioner received an effective sentence of 40 years at 100%. Petitioner filed a petition for post-conviction relief raising the issue that trial counsel's failure to advise him that the search warrant justifying the search of his cell phone was constitutionally defective rendered his guilty plea involuntary. After a hearing, the post-conviction court denied relief. We affirm the judgment of the post-conviction court because Petitioner has failed to satisfy the burden to establish that he is entitled to post-conviction relief. Furthermore, the record establishes that trial counsel's strategy of filing the motion, initiated negotiations that resulted in a very favorable resolution for Petitioner. Accordingly, the judgment of the post-conviction court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

William D. Massey, Memphis, Tennessee, for the appellant, Brandon Richmond Bowling.

Jonathan Skrmetti, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jennings H. Jones, District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Timothy L. Easter, J., delivered the opinion of the court, in which Robert L. Holloway, Jr. and Jill Bartee Ayers, JJ., joined.

1

OPINION

TIMOTHY L. EASTER, JUDGE.

Petitioner was indicted by the Rutherford County Grand Jury in April of 2017 with six counts of rape, two counts of sexual battery, two counts of aggravated rape, one count of felony murder and one count of premeditated first degree murder. The State filed a notice of an intent to seek a sentence of life without the possibility of parole.

In January of 2018, defense counsel filed a motion to suppress evidence found on Petitioner's phone, including video evidence of a rape. In the motion, counsel argued that the affidavit filed in support of the search warrant did not establish a nexus between the criminal activity and Petitioner's phone. The trial court never ruled on the motion.

In early February of 2018, Petitioner pled guilty to one count of aggravated rape and one count of second degree murder in exchange for dismissal of the remaining charges. As part of the agreement, Petitioner received concurrent sentences of 40 years for second degree murder and 15 years for rape. The sentences were to be served at 100% and Petitioner agreed to waive his sentencing range and plead as a Range II offender.

Plea Hearing

At the guilty plea hearing, counsel for the State relayed the facts that would have been presented had the case gone to trial as follows:

On August the 7[], 2015, [H.M.'s] lifeless body was found inside of her apartment on Brown Avenue in Murfreesboro Tennessee. When the police arrived, they observed that [H.M.'s] body is in the bed. She is face down. They observed that a pillow case has been placed over her head The pillow case was stained with blood

They also observed more blood on the bed itself. One particular stain near [H.M.'s] shoulder draws the attention of the investigators. The blood stain appears to be a bloody fingerprint. The print is preserved and sent to the T.B.I. for examination.

2

There are also strong indications that the victim had been raped. Those observations included blood around [H.M.'s] genital area and multiple hairs on the buttocks of [H.M.]. The hairs do not appear to be hers. Also, there appeared to be semen stains on the body of [H.M.].

The hairs were submitted to the Bode Cellmark Labs for examination. The semen stains were collected and sent to the T.B.I. Crime Lab for examination.

After processing the crime scene, [H.M.'s] body was sent to Nashville where an autopsy was performed. The autopsy determined that [H.M.] died from blunt force trauma and asphyxiation. The report listed multiple contusions and lacerations of the head, as well as multiple distinct linear wounds to the neck.

The medical examiner also performed a rape kit. The rape kit was submitted to the T.B.I. for examination.

The first forensic examination to be concluded was that of the bloody fingerprint. The T.B.I. determined that the bloody fingerprint belonged to [Petitioner].

On August the 14[], 2015, Murfreesboro Detective Sergeant Tommy Massey arrested 22[-]year-old M.T.S.U[.] student [Petitioner] and charged him with the murder and rape of [H.M.]. Later other forensic reports were completed. The lab determined that the swabs from the rape kit contained the D.N.A. of [Petitioner]. The Bode Cellmark Lab completed their examination of the foreign hairs found on [H.M.]. The results were that the lab was able to obtain D.N.A. from the hair. And it was determined that the hair and the D.N.A. from the hair belonged to [Petitioner].

Perhaps the strongest piece of evidence was obtained when the police searched [Petitioner's] cell phone. The cell phone contained a video recording which showed [Petitioner] raping a semi-conscious [H.M.]. It was shortly after the rape that

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