Colbert v. State, W2021-00778-CCA-R3-PC

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtCAMILLE R. MCMULLEN, JUDGE
PartiesCASEY COLBERT v. STATE OF TENNESSEE
Decision Date13 June 2022
Docket NumberW2021-00778-CCA-R3-PC

CASEY COLBERT
v.

STATE OF TENNESSEE

No. W2021-00778-CCA-R3-PC

Court of Criminal Appeals of Tennessee, Jackson

June 13, 2022


Assigned on Briefs May 3, 2022

Appeal from the Criminal Court for Shelby County No. 09-07785 James M. Lammey, Judge

The Petitioner, Casey Colbert, appeals the denial of post-conviction relief from his convictions for first degree felony murder and attempted aggravated robbery, alleging that he received ineffective assistance of counsel and that the State committed prosecutorial misconduct depriving him of his right to a fair trial. After review, we affirm the judgment of the post-conviction court.

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

Casey Colbert, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the Appellee, State of Tennessee.

Camille R. McMullen, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.

OPINION

CAMILLE R. MCMULLEN, JUDGE

The charges in this case arose from a May 7, 2009 robbery that resulted in the fatal shooting of victim, Ben Walker. In December 2009, a Shelby County Grand Jury jointly indicted the Petitioner and his co-defendant, William Peete, under a theory of criminal responsibility, for first degree felony murder, attempted aggravated robbery, and employing of a firearm during the commission of a dangerous felony. State v. Casey Colbert, No. W2012-00099-CCA-R3-CD, 2013 WL 3128698, at *1 (Tenn. Crim. App. June 18, 2013), perm. app. denied (Tenn. Nov. 13, 2013). In August 2011, the Petitioner was indicted for two counts of bribing a witness and two counts of coercing a witness in connection with the charges in the 2009 indictment. Id. Over the defense's objection, the trial court consolidated the charges from the 2009 and 2011 indictments into a single trial

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for the Petitioner. Id. At the conclusion of trial, the jury found the Petitioner guilty as charged of first degree felony murder, attempted aggravated robbery, employing a firearm during the commission of a dangerous felony, two counts of bribing a witness, and two counts of coercing a witness. Id. The trial court imposed an effective sentence of life imprisonment plus twenty-two years. Id. A detailed summary of the evidence presented at the Petitioner's trial can be found in this court's opinion on direct appeal. Casey Colbert, 2013 WL 3128698, at *1-13.

On direct appeal, the Petitioner argued that the evidence was insufficient to support his murder conviction, that the trial court erred in consolidating the bribery and coercion offenses with the other offenses, that the prosecutor engaged in improper argument, that the cumulative errors entitled him to a new trial, and that his sentence was excessive. Id. at *1. This court held that while the trial court erred in consolidating the Petitioner's indictments into a single trial, this error was harmless as to the Petitioner's convictions for first degree felony murder and attempted aggravated robbery and affirmed those convictions. Id. However, because the error regarding consolidation was not harmless as to the Petitioner's two convictions for bribing a witness and his two convictions for coercing a witness, it reversed those convictions and remanded those charges for further proceedings. Id. In addition, the court held that because the Petitioner had not employed a firearm during the commission of a "dangerous felony," as that term was defined by statute, it reversed the Petitioner's conviction for the firearm offense. Id. Finally, the court remanded the case for a new sentencing hearing for the Petitioner's convictions for first degree felony murder and attempted aggravated robbery. Id. The Petitioner subsequently entered guilty pleas to the two counts of bribing a witness and the two counts of coercing a witness. See State v. Casey Colbert, No. W2017-01998-CCA-R3-CD, 2018 WL 4960225, at *1 (Tenn. Crim. App. Oct. 15, 2018), perm. app. denied (Tenn. Feb. 25, 2019). Following a sentencing hearing, the trial court merged the two bribery convictions into a single conviction for bribery and merged the two coercion convictions into a single conviction for coercion before imposing a six-year sentence for bribery and a four-year sentence for coercion served consecutively for an effective sentence of ten years. Id. These sentences were affirmed on appeal. Id.

In 2014, the Petitioner timely filed a pro se petition for post-conviction relief and then filed several amended petitions, alleging in pertinent part that trial counsel provided ineffective assistance in failing to conduct a reasonable investigation, in failing to call various witnesses, in failing to impeach and thoroughly cross-examine the State's witnesses, in failing to present viable alibi and third-party perpetrator theories of defense, in failing to object to co-defendant William Peete's surprise testimony placing the Petitioner at the scene when a notice of alibi had been given, in failing to object to the State's leading questioning of its witnesses, and in failing to object to improper closing arguments by the State at trial. Casey Colbert v. State, 2020 WL 2394141, at *1. The

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Petitioner also raised allegations of newly discovered evidence and prosecutorial misconduct. Id.

The post-conviction court conducted an evidentiary hearing, and entered an order denying relief, stating that it had "elected to make [its] findings of fact and conclusions of law orally" and that "[a] transcript of the hearing and oral ruling [was] incorporated by reference . . . ." The Petitioner timely appealed, and this court reversed the judgment of the post-conviction court and remanded the case after concluding that the post-conviction court failed to make sufficient findings of fact and conclusions of law in its order denying relief. Id. at *16. In our opinion on remand, this court engaged in an extensive factual recitation of the testimony adduced at the post-conviction evidentiary hearing, which we rely upon and incorporate by reference herein, Casey Colbert v. State, 2020 WL 2394141 at *5-11. On remand, the post-conviction court entered a supplemental order, provided extensive factual findings and conclusions of law, and denied relief. Thereafter, the Petitioner filed a timely notice of appeal. The case is now properly before this court for review.

ANALYSIS

The Petitioner argues that trial counsel provided ineffective assistance on multiple grounds and that the State committed prosecutorial misconduct depriving him of his right to a fair trial. In response, the State contends that the Petitioner failed to show that trial counsel was ineffective, and it asserts that the Petitioner waived his claims regarding prosecutorial misconduct. We conclude that the Petitioner is not entitled to post-conviction relief.

Post-conviction relief is only warranted when a petitioner establishes that his or her conviction or sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. A post-conviction petitioner has the burden of proving the factual allegations by clear and convincing evidence. Id. § 40-30-110(f); see Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 452 S.W.3d 779, 786 (Tenn. 2014). Evidence is considered clear and convincing when there is no serious or substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

I. Ineffective Assistance of Counsel.

The Petitioner contends that trial counsel provided ineffective assistance. Specifically, he asserts that trial counsel failed to object and request a mistrial based on the State's violations of Rule 12.1(b) and Rule 16, failed to conduct a reasonable investigation, failed to call various witnesses, failed to thoroughly cross-examine and impeach the State's witnesses, failed to present an alibi defense or third-

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party perpetrator defense, failed to object and request a mistrial after the State made improper comments during closing, and failed to object and request a mistrial after the State asked leading questions of its witness.[1] The Petitioner also asserts that he is entitled to relief based on the cumulative effect of trial counsel's errors.

A claim for post-conviction relief based on alleged ineffective assistance of counsel presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). A post-conviction court's findings of fact are conclusive on appeal unless the evidence in the record preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at 216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). "Accordingly, we generally defer to a post-conviction court's findings with respect to witness credibility, the weight and value of witness testimony, and the resolution of factual issues presented by the evidence." Mobley, 397 S.W.3d at 80 (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)). However, we review a post-conviction court's application of the law to its factual findings de novo without a presumption of correctness. Id. (citing Grindstaff, 297 S.W.3d at 216; Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006)).

The right to effective assistance of counsel is protected by both the United States Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must establish that (1) his lawyer's...

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