Davis v. State

• Decision Date: 15 November 1995
• Citation: 912 S.W.2d 689
• Parties: Russell L. DAVIS, Petitioner/Appellant, v. STATE of Tennessee, Respondent/Appellee.
• Court: Tennessee Supreme Court

Page 689

912 S.W.2d 689

Russell L. DAVIS, Petitioner/Appellant, v. STATE of Tennessee, Respondent/Appellee.

Supreme Court of Tennessee Nov. 15, 1995.

Larry H. Nance, Memphis, for Appellant.

Charles W. Burson, Attorney General and Reporter, Christina S. Shevalier, Assistant Atty. Gen., Nashville, for Appellee.

OPINION

SAMUEL L. LEWIS, Special Justice.

This is an appeal by the defendant/appellant Russell L. Davis from the denial of his Petition for Post-Conviction Relief. Appellant is presently serving sentences of confinement for life, twenty years and fifteen years for convictions of aggravated kidnapping, rape and robbery, and ten years for voluntary manslaughter.

The appellant's convictions grew out of two separate episodes. The episodes that form the basis of the conviction of aggravated kidnapping, rape and robbery are referred to as the "rape" case. The second episode, which resulted in a conviction for voluntary manslaughter, is referred to as the "homicide" case.

The appellant has presented the following issues for review:

A. Whether the Trial Court erred in denying to the Appellant expert assistance to enable an analysis of existing evidence to establish the prejudice which he suffered by the failure or refusal of previous counsel to perform their duties.

B. Whether the burden placed on the Appellant to establish prejudice was met by the evidence contained in the record, and, if not, whether the placement of such a burden on the post-conviction Petitioner must be rescinded and replaced with a more reasonable standard.

C. Whether the evidence contained in the record preponderates against the Trial Court's finding of fact that the Appellant was afforded the effective assistance of counsel, Michael Long, and appellate counsel, Walker Gwinn, in the preparation, trial and appeal of the "rape" case when the evidence demonstrates the following acts or omissions of trial and appellate counsel:

1. failure to obtain the assistance of an expert to analyze and present countervailing serological evidence, including the performance of tests on the bodily fluids of the Appellant;

2. failure to consult with an expert to determine the fallacies of the expert proof offered by the State;

3. failure to adequately pursue Motions for Suppression of the Appellant's statement, and the search and seizure of physical evidence;

4. failure to pursue and obtain available evidence to discredit the testimony of the victim in the "rape" case, including her description of the vehicle used in the commission of the offense;

5. failure to turn over his complete file to the Appellant after the termination of his employment;

6. failure to contact, interview and obtain the testimony of witnesses, including the principal of a junior high school, Teresa Ann Gholston, Nyanza Bonner, Michael Harris[,] Jesse Mitchell, and Arthur Scruggs;

7. failure to interview defense witnesses prior to their testimony;

8. failure to adequately challenge the testimony of a serologist as to the probability of the Appellant's guilt, by prior interview of the witnesses and countervailing evidence;

9. failure to learn of an opening of sealed evidence--the rape kit, in contradiction to the testimony at trial 10. failure to investigate information received that the boyfriend of the alleged victim, James Burks, owned a light blue truck, to show the victim's familiarity with Ford trucks;

11. failure to interview witnesses who would contradict the victim's statements of the Appellant's condition after being specifically asked to do so;

12. failure to investigate other discrepancies;

13. failure to renew a Motion for Judgment of Acquittal at the close of all proof;

14. eliciting unfavorable testimony from defense witnesses and confusing the witnesses;

15. failure to prevent the introduction of remote arrests and convictions and failure to ask for a hearing outside the presence of the jury to determine the admissibility of the arrests or convictions;

16. failure to move to strike inadmissible evidence regarding prior arrests which was admitted for lack of a contemporaneous objection;

17. failure to request jury instructions on the consideration of prior convictions and the defense of alibi;

18. failure to discover and ascertain which previous convictions would be admissible which resulted in improper advice to the Appellant concerning his answers to questions about his criminal record and which further resulted in the divulging by the attorney to the jury during voir dire, information about a record which was inadmissible;

19. failure to consult with and assist successor appellate counsel to insure a correct transcript; and

20. failure to attempt to plea bargain; and

21. failure of appellate counsel, Walker Gwinn, to consult with trial counsel, to verify the accuracy of the transcript, and to raise some of the pertinent grounds on appeal which were included in the original and amended post-conviction motions.

D. Whether the evidence in the record preponderates against the Trial Court's Findings of Fact that the Appellant was afforded the effective assistance of counsel[,] Michael Long, and subsequent counsel, Edward Chandler, in the preparation and trial of the "homicide" case when the evidence demonstrates the following acts or omissions of counsel:

1. failure of Attorney Michael Long, to file and properly present a Motion to Suppress Evidence which had been obtained by illegal searches of the Appellant's premises and property and which was suspiciously handled by the police department;

2. failure of both attorneys to attempt to interview witnesses who were police officers and other witnesses to uncover discrepancies;

3. failure of Attorney Edward Chandler to do the following acts:

(a) to familiarize himself with the suppression efforts of his predecessor counsel and to properly pursue a presentation of the suppression issues by seeking a waiver of the time requirements of the local rules of Court;

(b) to obtain serological analysis after repeated requests to do so by the Appellant;

(c) to object upon a proper ground to the introduction of inadmissible evidence, which supplied a vital element of the prosecution's proof, resulting in a waiver of the ground;

(d) to cross-examine the daughter of the victim regarding discrepancies in her testimony;

(e) to obtain the return of seized evidence--a book of receipts and appointments--to support his defense of alibi;

(f) to prevent the introduction of an alleged oral statement of the defendant;

(g) to obtain complete discovery and present evidence of witnesses to an event where a person, with a photograph of the deceased, made inquiries of the victim's whereabouts prior to her death;

(h) to interview and present a witness, Walter Kimbrough, who had seen a skulking person on the night the victim disappeared;

(i) to investigate the "secretor" characteristic of the victim so that false testimony would not be introduced;

(j) to object to hearsay when the declarant had not been interviewed;

(k) to interview the latent fingerprint examiner;

(l ) to request an independent charge as to included offenses;

(m) to obtain appellate review since he waived on the appeal the prosecutor's use of the phrase "let it be explained" in argument since same was a commentary on the failure to testify by the defendant;

(n) to locate the missing page of the autopsy report; and

(o) to attempt to plea bargain.

The appellant filed two petitions for post-conviction relief. The petitions pertain to two separate trials for two separate alleged criminal episodes.

(1) The "rape" case:

Appellant filed his first petition in December 1988. It concerned convictions for kidnapping, rape and robbery. Attorney Michael Long represented appellant from shortly after his arrest through the trial of the cases. On appeal, Attorney Walker Gwinn represented appellant.

The offense occurred in November 1985, and appellant was arrested on 5 January 1986. He has been in custody since that time.

The appellant's wife hired attorney Long to represent appellant on or about 8 January 1986. Mr. Long represented the appellant until his conviction in the rape case. Later, the trial court appointed other counsel, Walker Gwinn, who represented the appellant through the denial of the appeal by the Court of Criminal Appeals.

(2) The "homicide" case:

Appellant filed his second Petition for Post-Conviction Relief in April 1989. It concerned a conviction for voluntary manslaughter.

The homicide case concerned the killing of a person between 24 November 1985 and 28 December 1985. Officials charged appellant with this offense after his arrest in the "rape" case. Mr. Long initially represented appellant, but after appellant's conviction in the rape case, he hired another attorney, Edward Whit Chandler, in July 1986. After the conviction in the homicide case, Mr. Chandler appealed to the Court of Criminal Appeals.

(3) Post-Conviction Proceedings:

Counsel in the instant case was appointed on 29 September 1989.

On 17 November 1989, appellant filed a motion to "secure scientific analysis of evidence and comparison" in the rape case. The trial court overruled this motion. Appellant then filed a motion for recusal of the trial judge which was granted. Next, appellant filed an additional amendment to his second petition on 21 June 1991. He filed repeated motions regarding expert scientific proof. The trial court held the motions in abeyance pending an evidentiary hearing. Thereafter, the trial court conducted evidentiary hearings on the motions regarding the scientific proof. Subsequently, appellant filed another motion to "secure scientific analysis of petitioner's bodily fluids" on 4 October 1992. Appellant alleges that he sought this analysis at his own expense. This we will discuss infra. The trial court held the final evidentiary hearing in this case on 5 March 1992.

On 8 December 1992 the trial court filed its findings of fact and conclusions of...