Branch v. State, No. W2003-03042-CCA-R3-PC (TN 12/21/2004)

Decision Date21 December 2004
Docket NumberNo. W2003-03042-CCA-R3-PC.,W2003-03042-CCA-R3-PC.
PartiesDONALD BRANCH v. STATE OF TENNESSEE.
CourtTennessee Supreme Court

Appeal from the Criminal Court for Shelby County; No. P-26612; J. C. McLin, Judge.

Judgment of the Criminal Court Affirmed.

Lance R. Chism, Memphis, Tennessee, for the appellant, Donald Branch.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

Alan E. Glenn, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and Norma McGee Ogle, J., joined.

OPINION

ALAN E. GLENN, Judge.

The petitioner, Donald Branch, appeals the denial of his petition for post-conviction relief from his aggravated vehicular homicide convictions, arguing that trial and appellate counsel were ineffective for failing to cite reported criminal law cases when arguing for a jury instruction on proximate causation and that appellate counsel was ineffective for failing to supplement his appellate brief with State v. Farner, 66 S.W.3d 188 (Tenn. 2001), and for failing to raise as an issue on direct appeal the trial judge's refusal to recuse himself. While the post-conviction appeal was pending, the petitioner sought and received permission to raise as an additional issue the impact of the United States Supreme Court's Blakely v. Washington opinion on the sentencing in his case. Having thoroughly reviewed the record, we conclude that the petitioner has not met his burden of demonstrating either a deficiency in counsel's representation or resulting prejudice to his case. We further conclude that Blakely does not apply retroactively to cases on collateral appeal. Accordingly, we affirm the post-conviction court's denial of the petition.

FACTS

The petitioner was convicted by a Shelby County Criminal Court jury of two counts of aggravated vehicular homicide, a Class A felony, and one count of driving while license revoked, a Class B misdemeanor, and was sentenced, respectively, to consecutive terms of twenty-four years; twenty-four years, six months; and six months, for an effective sentence of forty-nine years in the Department of Correction. State v. Donald W. Branch, No. W1999-00506-CCA-R3-CD, 2002 WL 1558485, at *1 (Tenn. Crim. App. Jan. 4, 2002), perm. to appeal denied (Tenn. May 28, 2002). On direct appeal, this court affirmed the convictions but reduced one of the aggravated vehicular homicide sentences by six months, for a total effective sentence of forty-eight years, six months in confinement. Id.

The petitioner's convictions stemmed from his May 30, 1997, alcohol-related collision with a green Saturn at the intersection of Highway 64 and Houston Levy and Canada Roads in Shelby County, which resulted in the deaths of the occupants of the Saturn, Stephanie Kuehl and her six-month-old daughter, Zadie. Id. at *2. At approximately 5:30 p.m. that afternoon, the defendant was speeding westbound in his vehicle on four-lane Highway 64, hurrying to arrive on time for his weekend service at the penal farm for a prior DUI conviction, when he struck Kuehl's vehicle as she was crossing the highway from Houston Levy to Canada Road. Id. at **2-3, *9. Upon his arrival at the hospital, the petitioner's blood alcohol level was .22.1 Id. at *6. In addition, the testimony of other motorists who saw the petitioner's vehicle just prior to the fatal wreck established that he was driving recklessly, weaving in and out of traffic, coming up close behind vehicles, passing in the left turn lane, and traveling well in excess of the posted 55-mile-per-hour speed limit, at estimated speeds ranging from 80 to 100 miles per hour. Id. at **2-4.

Further evidence in support of the convictions was provided by a University of Tennessee Professor of Civil Engineering, who testified the petitioner was driving approximately 80 miles per hour at the time of impact, and by an accident reconstructionist employed by the Michigan State Police, who offered the following findings and conclusions summarized in the direct appeal opinion:

[The petitioner's] vehicle was traveling a minimum speed of 76 miles per hour (112 feet/second) upon impact with the victims' vehicle; the victims were traveling at approximately 17 miles per hour at impact; no pre-impact skid marks were created by [the petitioner's] vehicle; the intersection is visible from at least 760 feet when traveling westward; if [the petitioner's] vehicle had been traveling at 70 miles per hour, it would have missed impacting the victims' vehicle by 57 feet; if [the petitioner] had begun to apply his brakes at the point when the intersection was visible, it would have taken 4.67 seconds to stop; and the angle of impact with the victims' vehicle was 107 degrees (in other words, [the petitioner's] vehicle was turned slightly to the right on impact).

Id. at *7.

The petitioner's trial strategy included an attempt to show that the accident resulted not from his reckless or impaired driving, but instead from Kuehl's negligence in crossing the highway in front of his oncoming vehicle. In support, he relied on the testimony of two witnesses: a driver who was traveling in the right westbound lane of Highway 64 and preparing to turn right onto Canada Road at the time of the wreck, who testified that Kuehl came to a "rolling stop" at the stop sign on Houston Levy before starting across the highway, and a driver who was adjacent to Kuehl on Houston Levy waiting to turn left, who testified he saw the petitioner's vehicle approaching from the east "very fast" as Kuehl began to cross the highway and uttered the words, "Oh no, don't do that" when he saw her continue across. Id. at **3-4. In accordance with this strategy, trial counsel proposed that a special instruction be given in conjunction with the "proximate result" language of the aggravated vehicular homicide statute, in order that the jury might "consider whether [Kuehl's] behavior constituted a `superceding intervening cause.'" Id. at *15. Specifically, counsel requested that the jury be instructed that it must find that the petitioner's actions were the "proximate cause of the result," or, in the alternative, that the petitioner's actions "constituted the proximate cause of the killing(s)."2 The trial court denied the request, and the petitioner unsuccessfully raised, as an issue on direct appeal, the denial to give the requested instruction. Id. at **15-16. The trial court had instructed the jury on a motorist's duty to stop at a stop sign before proceeding with caution through an intersection, and to yield the right-of-way to a vehicle traveling on a through highway.

The petitioner filed a pro se petition for post-conviction relief on July 19, 2002, followed by several amended petitions after post-conviction counsel was appointed. In both his pro se and amended petitions, the petitioner alleged numerous instances of ineffective assistance of counsel. However, on appeal to this court he confines himself to arguing that trial and appellate counsel were ineffective for not citing reported criminal law cases when arguing for the instruction on proximate causation; appellate counsel was ineffective for not supplementing his appellate brief with State v. Farner, 66 S.W.3d 188 (Tenn. 2001), which was released during the pendency of the appeal; and appellate counsel was ineffective for not raising the issue of the trial judge's failure to recuse himself on direct appeal. Accordingly, we will limit our summary of the fairly lengthy evidentiary hearing to the testimony and arguments relating to those three allegations.

The petitioner was represented both at trial and on appeal by the Shelby County Public Defender's Office. Appellate counsel testified at the September 25, 2003, evidentiary hearing that he had been licensed to practice law since 1978 and had been practicing as an appellate attorney for over twenty years. He testified he read "every ounce" of the trial transcript, researched every issue raised in the motion for a new trial, and relied on his experience as an appellate attorney to determine which issues to raise on appeal. His decision not to raise the recusal issue was one of strategy, based on his belief that it did not have any real merit.

Appellate counsel agreed that the jury instruction on proximate causation was one of the key issues at trial and on appeal. He acknowledged he cited civil cases in his appellate brief in support of his argument on that issue, and he did not cite the reported criminal cases of Letner v. State, 299 S.W. 1049 (Tenn. 1927); Copeland v. State, 285 S. W. 565 (Tenn. 1926); State v. Grose, 982 S.W.2d 349 (Tenn. Crim. App. 1997); or State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995). However, he did not think that those cases, all of which he had read "at one time or another," were on point, as they addressed the concept of superceding and intervening causes in general homicide cases and not the specific issue of whether proximate cause was the appropriate test to be applied in a vehicular homicide case. As for not supplementing his brief with a discussion of the Farner opinion, appellate counsel testified he assumed "the Court of Criminal Appeals actually read the Supreme Court opinions as they come out." Furthermore, although he found the case relevant in its definition of intervening and superceding causes, he did not think it was "on all fours with regard to whether Vehicular Homicide required proximate causation."

Junior trial counsel testified he had been licensed for seven years, had participated in over twenty criminal trials, and had handled "thousands" of criminal cases during his years with the public defender's office and in his current private practice, which consisted of approximately 95% criminal defense work....

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