Davis v. State
| Decision Date | 26 July 2018 |
| Docket Number | No. W2017-01592-CCA-R3-PC,W2017-01592-CCA-R3-PC |
| Parties | MICHAEL DAVIS v. STATE OF TENNESSEE |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Shelby County
Petitioner, Michael Davis, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder. On appeal, Petitioner argues that he was denied due process of law when the post-conviction court refused to grant Petitioner a continuance to present an expert witness and failed to address all of the issues presented in its written order. Additionally, Petitioner claims that he received ineffective assistance of counsel. After thorough review, we determine that Petitioner was afforded due process and received effective assistance of counsel. Thus, we affirm the judgment of the post-conviction court.
Terrell L. Tooten, Cordova, Tennessee, for the appellant, Michael Davis.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONPetitioner fatally shot the victim, Lataska Applewhite, in her home on November 29, 2011. State v. Michael Davis (Davis I), No. W2013-01122-CCA-R3-CD, 2014 WL 1258844, at *1 (Tenn. Crim. App. Mar. 26, 2014), perm. app. denied (Tenn. Aug. 26 2014). As a result, the Shelby County Grand Jury indicted Petitioner for second degree murder, and the trial court conducted a jury trial in February 2013. Id. A jury convicted Petitioner as charged, and this Court upheld the jury verdict on direct appeal. Id. at *9. During and after an unsuccessful attempt to receive error coram nobis relief, see State v. Michael Davis (Davis II), No. W2015-00227-CCA-R3-ECN, 2016 WL 193568, at *1 (Tenn. Crim. App. Jan. 14, 2016), no perm. app. filed, Petitioner sought post-conviction relief. In his pro se post-conviction petition, Petitioner alleged seven grounds for relief, including ineffective assistance of counsel. Under the umbrella of ineffective assistance of counsel, Petitioner alleged twenty-six individual deficiencies of trial counsel. In Petitioner's first amended petition, which incorporated by reference Petitioner's pro se petition, the list of deficiencies expressly mentioned was narrowed to eight. Though they are not numbered or individually listed, Petitioner's second amended petition contains seven alleged deficiencies of trial counsel and incorporates the previous two petitions. At the multiple post-conviction hearings, the following facts were adduced.
In preparation for trial, Petitioner and trial counsel engaged in a process that involved "conversation," "posturing," and "editing." Trial counsel recalled agreeing that the best course of action was to pursue a theory that the victim was the first aggressor. Petitioner claimed that he explained to trial counsel that he did not really understand the situation he had been in with the victim until he underwent a drug and domestic violence program at the county jail. Petitioner recognized that the victim had been his "abuser" when the counselor in the domestic violence program explained the patterns of an abusive person. At that point, Petitioner recalled experiencing abusive patterns from the victim such as isolation and spontaneous bursts of violence. Based on this revelation, Petitioner wanted to pursue a defense strategy that presented Petitioner as a victim of domestic violence. Petitioner said that trial counsel and co-counsel were "more or less dismissive" of his idea. Petitioner said that trial counsel was "subtle with" the domestic violence theory.
At trial, some witnesses testified to the victim's propensity for violence, but Petitioner maintained that they did not speak specifically about domestic violence, which is the subset of violence on which he desired more evidence. Trial counsel listed six individuals who knew that Petitioner had been a victim of domestic violence at the hands of the victim. However, trial counsel only called four of those six witnesses. He did not call two of the witnesses because he believed that one of the witness's testimony would be hearsay and duplicative of the testimony of Petitioner and the other witness would likely not testify because his testimony would be self-incriminating.
Trial counsel recalled Petitioner wanting a domestic violence expert, but trial counsel did not think one would be necessary in light of the other witnesses that would be testifying to the victim's violent tendencies. Trial counsel's theory was that "[the victim] came at [Petitioner] with a gun [and] when he tried to take it away from her, . . . it went off." Trial counsel believed that the victim's violent tendencies in the past aligned withPetitioner's theory that she was the first aggressor. Trial counsel did not believe that an expert would add anything to the case that was not already obvious. According to trial counsel, Petitioner was obviously a domestic violence victim.
When describing the evidence that led trial counsel to think that a domestic violence expert was not needed, trial counsel stated:
I want to say there was at least three different occasions that she shot at him and then another occasion where I looked up her record and found that she was convicted of aggravated assault, found the victim of that aggravated assault and had her come in and testify that [the victim] had broke[n] into her house and stabbed her in the head.
According to trial counsel, all of that evidence went on the record in front of the jury. Trial counsel did not believe that calling a domestic violence expert would have yielded a different outcome from the trial.
In the course of the trial, trial counsel elicited testimony from Dr. Miguel Laboy regarding the amount of cocaine and marijuana in the victim's system. However, Petitioner contended that trial counsel did not adequately relate the drug use to the victim's alleged violence against Petitioner. When it came to the victim's drug use, trial counsel testified that he chose to avoid the mention of drugs as much as possible because he was concerned that Petitioner would lose his credibility if he disputed the testimony of the other witnesses regarding an alleged drug sale by Petitioner. Trial counsel "worried about . . . [Petitioner] saying this did not happen while two other people were saying this did happen and then the jury tak[ing] him to be a liar."
Petitioner testified at trial that the victim was holding the gun in her left hand. Marvis Applewhite, the victim's mother, was called as a rebuttal witness and testified that the victim was right handed. According to Petitioner, while there was testimony at trial that would have indicated that the victim was actually left handed, none of that evidence was "pointed out or presented to the jurors." Trial counsel remembered a discussion about Ms. Applewhite being called as a rebuttal witness, and trial counsel was not certain, but he believed that this discussion took place after he approached the bench and made his objection.1 During that discussion, the State said the purpose of recalling Ms. Applewhite was to establish whether the victim was right or left handed. Ultimately, the trial court allowed it.
Petitioner claimed that Shaquille Sugars, the victim's son, should have been called as a witness. Trial counsel admitted he never attempted to locate Shaquille Sugars because some research on Facebook led trial counsel to a page where one of the victim's children discussed hunting down and killing Petitioner. When speaking of why he did not call any of the victim's children as a witness, trial counsel said:
I didn't think they would be cooperative towards us. I didn't know where they were and I certainly wasn't going to call one of them as a witness at trial with never having talked to them before trial. Now did I make an attempt to talk to them? No, I didn't. Because of what I saw on Facebook, I did not think they would be cooperative.
Despite having the juvenile records for the victim's entire family, trial counsel heard for the first time at Petitioner's error coram nobis hearing that the victim had previously pulled a gun on her children.
The transcript of Mr. Sugars's testimony from the error coram nobis hearing, which was entered as an exhibit at the post-conviction hearing, revealed that Mr. Sugars was aware that the victim had a drug problem and would become abusive and aggressive when things did not go her way. Mr. Sugars recalled the victim possessing guns and pointing guns at her boyfriends during fights. Mr. Sugars also recounted multiples times when the victim pointed a loaded gun at him and his brother. Additionally, Mr. Sugars remembered a time when the victim put her hand in Petitioner's face and said that she would hurt him and shoot him if she caught him with another woman.
In addition to all of the testimony that Petitioner wanted regarding the victim as the first aggressor, Petitioner also faulted trial counsel for not introducing phone records that Petitioner claimed would have shown that he was asleep at the time of the crime. Trial counsel had Petitioner's phone records and recalled a stipulation regarding the admission of various calls in the records. However, he did not recall entering a record of any missed phone calls for the purpose of illustrating that Petitioner was asleep at the time of the crime. Trial counsel reasoned that those phone records would not have been needed because another witness would say that he understood Petitioner to be asleep around that time. Trial counsel admitted that there would have been no harm in entering the phone records to show that Petitioner was asleep,...
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