Douglas v. State, No. W2003-02224-CCA-R3-PC (TN 7/26/2004)
| Decision Date | 26 July 2004 |
| Docket Number | No. W2003-02224-CCA-R3-PC.,W2003-02224-CCA-R3-PC. |
| Parties | MICHAEL DOUGLAS v. STATE OF TENNESSEE. |
| Court | Tennessee Supreme Court |
Lance R. Chism, Memphis, Tennessee, Attorney for Appellant, Michael Douglas.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.
The Appellant, Michael Douglas,1 appeals as of right from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Douglas was convicted in 2000 of attempted second degree murder and especially aggravated robbery. On appeal, Douglas contends that he was denied the effective assistance of counsel due to trial counsel's (1) failure to seek suppression of a photo array because the photograph used was obtained following an unlawful arrest and (2) failure to adequately cross-examine a witness as to whether an agreement existed between the witness and the State. After review of the issues presented, the judgment is affirmed.
The relevant facts established that, on July 21, 1998, the victim, Louis Hill, joined a dice game "for about thirty minutes" in a residential area of Memphis known as "Orange Mound." The codefendant, John Montgomery, and Jerion Craft were among the players. The victim had approximately $140 with him, and he was wearing a gold herringbone necklace and a gold nugget ring.
The victim left the dice game but returned after about fifteen minutes. The game was still going on, although with some different players.
As he was leaving, he saw two men coming along a path that led from other neighboring backyards into the area of the dice game. Hill testified that, as he continued walking toward Park Avenue, someone grabbed his shirt from behind. Hill spun around and was shot in the lower groin area. He fell back onto the ground, and his assailant demanded his money. Hill said he told the shooter to take the money and handed him the $140 or so that he had in his pocket. The second man he recognized as Montgomery. Montgomery hit him in the face and yanked the necklace from his neck and took his ring. Hill heard someone say "here come the police," and his assailants then ran. Hill testified that he made it to the front yard where someone called an ambulance.
Jerion Craft testified that, on the night of the shooting, he and John Montgomery had been gambling with others in the crap game behind the house on Park Avenue in Orange Mound. He saw the defendant, armed with a pistol, grab the victim and fire the pistol. He had not heard the two arguing prior to the shot. Additionally, he did not see any movement by the victim which made it appear that he was reaching for a pistol, himself. Craft said that the victim was wearing a small medallion that evening, which the defendant removed from him after the shooting. Montgomery got something from the victim, but Craft could not see what it was. He later told Memphis police officers what he had observed.
Sergeant Joseph Scott with the Memphis Police Department interviewed the victim. He had learned the names of the codefendant and the defendant from Jerion Craft. Sergeant Scott prepared photographic lineups for Hill to view. Hill had already identified the codefendant, Montgomery, as the person who was with the defendant and who hit him in the face and took his necklace and ring. On August 2, Hill was able to immediately pick out the defendant from a photographic lineup as the person who shot him. The photograph used by Sergeant Scott was the most recent on file for the defendant, a photograph that had been taken some nine days after the crime date, as a result of a traffic violation. The defendant was wearing a gold, herringbone necklace, which the victim identified as the one stolen from him on the night of the shooting.
. . .
The defendant's version of what then happened differs substantially from that testified to by the victim but is consistent with his affirmative defense of self-defense. According to the defendant, he got into the dice game to cheat the "pluck" out of his money. . . .
The defendant testified that he played in the dice game with the victim for about twenty minutes and had won $150 to $200 from the victim, when he was caught cheating. The victim became angry and started calling the defendant names. According to the defendant, Montgomery slipped the gun into the defendant's back waistband. When the victim seemed to be reaching for a weapon, the defendant pulled the gun from his back waistband and shot the victim once and ran.
After the shooting, the defendant ran back to his home where, some thirty minutes later, Montgomery showed up. According to the defendant, the two were "sitting there chitchatting about some rocks he had got and a necklace he had got." The defendant gave Montgomery $30 in cash for the necklace. It was a gold herringbone chain necklace. . . . The defendant testified that he suspected that Montgomery had taken the necklace from the victim. The defendant was photographed by the police nine days later, apparently as part of a booking for a traffic offense on July 30, 1998, wearing the necklace. As to the gun, the defendant testified that he and Montgomery took it to the home of Jerion Craft, who was told by Montgomery to "take care" of it.
State v. Lawrence Douglas, No W2000-01749-CCA-R3-CD (Tenn. Crim. App. at Jackson, Aug. 10, 2001).
On May 10, 2000, a jury found the Appellant guilty of attempted second degree murder and especially aggravated robbery, and the Appellant was sentenced to an effective twenty-year prison sentence. The Appellant's convictions and sentence were affirmed by a panel of this court on direct appeal. See id.
On July 30, 2002, the Appellant filed a pro se petition for post-conviction relief. Following the appointment of counsel, an amended petition was filed, wherein the Appellant sought relief on the following grounds:2
(1) The photograph that was shown to the victim to identify Petitioner was the fruit of an unlawful arrest because Petitioner was arrested for a misdemeanor and this photo was taken as a result of that arrest; therefore, the photograph should not have been used; moreover, counsel was ineffective for not raising this issue.
(2) Counsel's cross-examination of [Jerion] Craft was ineffective because counsel did not ask [him] whether he received any benefits in exchange for his testimony.
A hearing was held on June 30, 2003, at which the Appellant and trial counsel testified. The post-conviction court denied relief as to all issues. This timely appeal followed.
The Post-Conviction Procedure Act, Tennessee Code Annotated §§ 40-30-101 to -313 (2003), provides a method by which a defendant may challenge a conviction or sentence for violation of a state or federal constitutional right. Tenn. Code Ann. § 40-30-103 (2003). In order to succeed on a post-conviction claim, the Appellant bears the burden of showing by clear and convincing evidence, the allegations set forth in his petition. Tenn. Code Ann. § 40-30-110(f) (2003).
To succeed in a challenge for ineffective assistance of counsel, the Appellant must establish, under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984): (1) deficient representation and (2) prejudice resulting from the deficiency. Thus, the Appellant must prove that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and the Appellant must demonstrate that counsel's errors were so serious as to deprive the Appellant of a fair trial, a trial whose result is reliable. Id.
With respect to deficient performance, the Appellant must demonstrate that counsel's representation fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [Appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citation omitted). We should defer to trial strategy or tactical choices if they are informed ones based upon adequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Additionally, this court should avoid the "distorting effects of hindsight" and "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-90.
The issues of deficient performance by counsel and possible prejudice to the defense are mixed questions of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). "A trial court's findings of fact underlying a claim of ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with a presumption that those findings are correct unless the preponderance of the evidence is otherwise." Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d)); see Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, conclusions of law are reviewed under a purely de novo standard, with no presumption of correctness. Fields, 40 S.W.3d at 458.
The Appellant argues that trial "counsel was ineffective for not moving to suppress victim's identification testimony based on...
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