Carpenter v. State

• Decision Date: 13 January 2004
• Docket Number: No. E2001-01732-SC-R11-PC.,E2001-01732-SC-R11-PC.
• Citation: 126 S.W.3d 879
• Parties: Jerry Neal CARPENTER v. STATE of Tennessee.
• Court: Tennessee Supreme Court

126 S.W.3d 879

Jerry Neal CARPENTER v. STATE of Tennessee.

No. E2001-01732-SC-R11-PC.

Supreme Court of Tennessee, at Knoxville.

September 4, 2003 Session.

January 13, 2004.

Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Jerry Neal Carpenter.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR., J., HERSCHEL PICKENS FRANKS, Sp.J., and WILLIAM H. INMAN, Sp.J., joined. FRANK F. DROWOTA, III, C.J., filed a concurring opinion. E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., not participating.

The sole issue before the Court in this post-conviction proceeding is whether the petitioner, Jerry Neal Carpenter, was denied his constitutional right to the effective assistance of appellate counsel. At trial, the jury was given instructions on first degree premeditated murder, first degree felony murder, and robbery. The trial court declined trial counsel's request to provide the jury with lesser-included offense instructions, and Carpenter was convicted of first degree felony murder. Carpenter argues that he was denied the effective assistance of counsel on direct appeal because appellate counsel failed to challenge the trial court's refusal to instruct the jury on second degree murder as a lesser-included offense. After reviewing the record and applicable authority, we hold that Carpenter has failed to establish his claim of ineffective assistance of appellate counsel. We therefore affirm the Court of Criminal Appeals' judgment denying post-conviction relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

On Monday, March 25, 1985, shortly after 7:00 p.m., Myrtle Chapman ("Mrs. Chapman") was found dead at her business, Myrt's Package Store ("Myrt's"), in Knox County, Tennessee. The following items were found near the store's cash register: a bank deposit bag, which was open and empty; a bank deposit slip showing that a deposit had been made on March 25; Mrs. Chapman's purse containing several hundred dollars; and Mrs. Chapman's glasses, which had blood on them. Blood spatters were also found throughout the store. The pathologist who performed the autopsy on the body of Mrs. Chapman testified that there were approximately ten deep lacerations to her head and face. The pathologist opined that a hatchet could have been used to inflict the wounds.

Mrs. Chapman's husband, J.D. Chapman ("Mr. Chapman"), testified that as his wife prepared to make a bank deposit on the morning of March 25, she discovered that money was missing from the store. Mr. Chapman stated that only he, his wife, his two nephews, and the appellant, Jerry Neal Carpenter, were behind the counter on March 24, a Sunday. Mr. Chapman spoke with his nephews and Carpenter at the store sometime between 4:30 and 5:00 p.m. on the day of Mrs. Chapman's death. Although Mr. Chapman told the men that one of them must have taken the money, he denied accusing Carpenter. Carpenter volunteered to leave the store and not return, if that was what Mr. Chapman wanted. Mr. Chapman agreed that it would be best if Carpenter left the store. Carpenter left, and Mr. Chapman and his nephews left the store sometime thereafter.

Carpenter's cousin, Darrell Waddell, testified that on the afternoon of March 25 he and Carpenter were helping to unload furniture at a furniture store near Myrt's when Waddell saw Carpenter receive a cut beneath his left eye. Carpenter announced that he was going to Myrt's to get a Band-Aid, and he left on foot at approximately 5:30 or 6:00 p.m. A customer testified that he saw Carpenter enter Myrt's at around 5:45 p.m. on March 25. Although the customer noticed that Carpenter had a cut under his left eye, there was no blood on Carpenter's clothing. After Carpenter expressed concern about needing stitches, both the customer and Mrs. Chapman examined the cut. No other persons were in the store at that time. When the customer asked what had happened, Carpenter replied that he had been upset, throwing things around, when something flew in his face. Carpenter used the telephone and then left the store on foot.

According to Waddell, Carpenter returned to the furniture store shortly after he left to get a Band-Aid at Myrt's. Carpenter went to Myrt's a second time for a soft drink and returned a short time later. The men continued to unload furniture. Carpenter then stated that he was going back to Myrt's to get something else to drink.

Imogene Smith, a close friend of Mrs. Chapman, testified that she spoke with Mrs. Chapman by telephone on March 25. At that time, Mrs. Chapman told her that Mrs. Chapman suspected Carpenter had stolen the money. In a later conversation with Ms. Smith at approximately 6:40 p.m., Mrs. Chapman stated that she needed to hang up because "that little son-of-a-bitch is coming back in the store." When Ms. Smith asked Mrs. Chapman if she meant "the guy that you thought got your money," Mrs. Chapman replied affirmatively. After stating that Carpenter was coming back into the store, Mrs. Chapman promised Ms. Smith that she would call her back "when he leaves." Mrs. Chapman never called back. There was a busy signal when Ms. Smith tried to telephone Mrs. Chapman ten minutes later. Ms. Smith tried to telephone Mrs. Chapman several more times but continued to receive a busy signal.

Gregory Dean Herrell arrived at the furniture store just prior to Carpenter's return. He saw Carpenter walking toward the furniture store with a coat wadded up under his arm. Herrell noticed a knot on Carpenter's head. Carpenter, Waddell, and Herrell each took LSD. Herrell said that Carpenter seemed nervous and that he asked for a ride and offered to pay for the gas. Waddell arranged to meet Carpenter at the apartment of Carpenter's girlfriend sometime later, and Herrell and Carpenter left the furniture store together.

Carpenter placed the bundle he had been carrying on the floorboard of Herrell's car. When Herrell and Carpenter stopped for gas, Carpenter pulled out money to pay for the gas, and Herrell noticed that "he had more money with it." Herrell drove Carpenter to his girlfriend's apartment and saw Carpenter throw the coat he had under his arm into a nearby dumpster. Herrell also observed brown splotches on Carpenter's pants. Carpenter told Herrell that he thought he had killed someone and asked that Herrell "[b]e my brother on this." After leaving Carpenter at the apartment, Herrell found a hatchet on the floorboard of his car. Herrell first mentioned finding the hatchet during his trial testimony. Herrell testified that the hatchet was stained the same brown color as the splotches on Carpenter's pants. Herrell said that he felt scared when he saw the hatchet, and he tossed the hatchet into a lake.

Waddell testified that there was a woodpile at the furniture store and that a hatchet was kept there to split wood. Although he looked for the hatchet after March 25, he did not find it. Waddell also testified that when he arrived at the apartment to meet Carpenter, he noticed that Carpenter's blue jeans had dark spots on them that appeared to be blood. In addition, Waddell noticed a "big knot" on Carpenter's head. Waddell and Carpenter drove to Carpenter's residence, where Carpenter changed clothes before going to the basement. While Carpenter was in the basement, Waddell heard a furnace door open and close.

Waddell and Carpenter drove past Myrt's after they left Carpenter's residence. When Waddell saw police cars and an ambulance at Myrt's, he asked Carpenter, "What's this law and stuff doing there?" Carpenter replied, "I think I've hurt [Mr. Chapman]. Me and [Mr. Chapman] got in a fight." The two men later stopped for gas. Carpenter said that he would pay for the gas and pulled out several five-, ten-, and twenty-dollar bills. When Waddell asked where Carpenter got the money, he replied, "I think I've killed [Mrs. Chapman]." Carpenter then said, "She seen me getting into her money bag." He then told Waddell that Mrs. Chapman had hit him on the head with a stick.

A detective testified that some items of clothing were retrieved from a dumpster. A serologist testified that stains found on this clothing and on Mrs. Chapman's glasses were consistent with the blood of both Carpenter and Mrs. Chapman. A search of the furnace at Carpenter's residence yielded several metal fragments that a metallurgist determined to be rivets and fasteners similar to those used in the garment industry to make blue jeans.

Carpenter was charged with first degree murder¹ and robbery. The trial court denied trial counsel's request that the court instruct the jury as to all lesser-included offenses. The trial court instructed the jury that it could find Carpenter guilty of either of the separate counts of premeditated murder or felony murder. Carpenter was convicted of felony murder and was acquitted of the charge of robbery. He received a life sentence. In an amendment to his motion for new trial, Carpenter alleged that the trial court erred in failing to instruct the jury on second degree murder.² However, appellate counsel did not raise this issue on direct appeal. The Court of Criminal Appeals affirmed Carpenter's conviction and sentence. State v. Carpenter, 773 S.W.2d 1 (Tenn.Crim.App.), perm. app. denied (Tenn.1989).

In May 1992, Carpenter filed a pro se petition for post-conviction relief that was later supplemented by appointed counsel. The petition alleged, among other things, that Carpenter was denied the effective assistance of appellate counsel because appellate counsel failed to challenge the trial court's refusal to instruct the jury on second degree murder as a lesser-included offense. The post-conviction court held a hearing on the petition in February 1999.³ At this hearing, the...