Felts v. State

• Decision Date: 10 November 2011
• Docket Number: No. M2009–00639–SC–R11–PC.,M2009–00639–SC–R11–PC.
• Citation: 354 S.W.3d 266
• Parties: Henry Zillon FELTS v. STATE of Tennessee.
• Court: Tennessee Supreme Court

354 S.W.3d 266

Henry Zillon FELTS

v.STATE of Tennessee.

No. M2009–00639–SC–R11–PC.

Supreme Court of Tennessee, at Nashville.

June 2, 2011 Session.Nov. 10, 2011.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; Mark A. Fulks, Senior Counsel; David H. Findley, Senior Counsel; Lawrence Ray Whitley, District Attorney General; Charles Ronald Blanton, Assistant District Attorney General; and Bryna Landers Grant, Assistant District Attorney General, for the Appellant, State of Tennessee.

Gregory D. Smith, Clarksville, Tennessee, for the Appellee, Henry Zillon Felts.

OPINION

CORNELIA A. CLARK, C.J., delivered the opinion of the court, in which JANICE M. HOLDER, GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, C.J.

In this post-conviction appeal, we must determine whether Petitioner Henry Zillon Felts was denied the effective assistance of counsel at his trial for aggravated burglary and attempted first degree murder. The post-conviction court vacated Petitioner's convictions after concluding that trial counsel's representation was ineffective because he: (1) pursued self-defense exclusively, rather than pursuing self-defense along with the alternative strategy of convincing the jury to convict Petitioner of the lesser-included offense of attempted voluntary manslaughter, and (2) failed to keep a promise to the jury made during opening statements that Petitioner would testify at trial. The Court of Criminal Appeals affirmed. We granted the State's application for permission to appeal. We hold that the courts below erred by concluding that trial counsel performed deficiently. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this case for reinstatement of Petitioner's convictions.

This case arises out of a May 5, 2003 altercation between Petitioner, his ex-wife, Pam Felts, and her male friend, Kent Miller, the victim. The altercation occurred at Ms. Felts' home. When Petitioner entered the home with a pistol, Mr. Miller hit Petitioner with a baseball bat, and Petitioner fired the gun several times, severely injuring Mr. Miller. The following in-depth summary of the proof offered at trial and at the post-conviction hearing is necessary to evaluate the issues presented in this appeal.

Proof at Trial

The prosecution's proof at Petitioner's two-day trial showed that Ms. Felts and Petitioner divorced in late 1999 or early 2000, but their romantic and sexual relationship—“a roller coaster ride”—continued after the divorce. They agreed to see other people in September 2002, and Ms. Felts met Mr. Miller in November 2002. Both had children from previous marriages, and their relationship developed into casual dating, which usually included their children. Ms. Felts occasionally invited the Millers to her home, but each time Petitioner learned of the visit, and he either called Ms. Felts or drove around her neighborhood, resulting in Ms. Felts becoming upset and the Millers leaving.

In January 2003, Petitioner and Ms. Felts resumed their volatile relationship. Although he maintained a separate residence in Mt. Juliet, Petitioner began staying at Ms. Felts' home, usually from Thursday through Monday. Petitioner paid Ms. Felts $500 per month rent, which was due on the fifth day of each month. This arrangement continued into late January or early February 2003, when Ms. Felts was arrested for domestic assault for threatening Petitioner with a gun, at which point she required Petitioner to move out and she changed the locks on the residence.

This separation was short-lived, however. Petitioner resumed staying with Ms. Felts, again paying $500 per month rent. Ms. Felts also continued her friendship with Mr. Miller, who was pursuing a romantic relationship with her. Not surprisingly, Petitioner did not approve of their relationship. In April 2003, Petitioner left several phone messages warning Mr. Miller to stay away from Ms. Felts and advising Mr. Miller not to meddle in his relationship with Ms. Felts. On April 28, 2003, Petitioner called Mr. Miller and left a message: “Mother f- -ker, you have f- -ked up.” While Ms. Felts testified that Mr. Miller had also threatened Petitioner during “heated arguments” over the telephone, she could recall few specifics. But, Ms. Felts recalled Mr. Miller boasting that “[Petitioner's] old and short and I could take him” in a fist fight.

On Friday, May 2, 2003, Ms. Felts again decided to end her relationship with Petitioner, but she did not tell Petitioner of her decision. Rather, she removed Petitioner's belongings from her house, placing them on the porch. Ms. Felts spent most of the weekend with Mr. Miller. When Petitioner called on Sunday, May 4th, Ms. Felts told him she was ending their relationship. In order to convince Petitioner she had begun a “dating, romantic type situation,” Ms. Felts and Mr. Miller devised a plan to leave Mr. Miller's vehicle in her driveway overnight. Although Mr. Miller did not spend the night, Ms. Felts knew Petitioner would see the vehicle and believe Mr. Miller had spent the night.

Petitioner arrived at Ms. Felts' home early on Monday, May 5th. He repeatedly called her from outside, but she ignored him. Eventually, Ms. Felts agreed to talk with Petitioner if he would leave and come back at 1:00 p.m. When Petitioner left, Ms. Felts called Mr. Miller, asking him “to get his car out of here now.” Not long after Mr. Miller arrived to retrieve his vehicle, Petitioner called, and Ms. Felts handed Mr. Miller the phone to prove to Petitioner that Mr. Miller was actually present at her home. Ms. Felts did not hear the ensuing conversation, but she heard Mr. Miller laugh. When he handed the telephone back to her, Petitioner said, “I guess he is there.” Ms. Felts then saw Petitioner pull into her driveway in his truck. Mr. Miller heard someone banging on the kitchen door, and he saw Petitioner through the blinds and realized he had a gun.

Petitioner entered the house, using a key to unlock the kitchen door. Ms. Felts heard Mr. Miller ask her to “call the police” or “do it,” as he retreated to the living room. With the gun in hand, Petitioner walked quickly past Ms. Felts and proceeded toward the living room. Mr. Miller picked up a baseball bat he had previously placed in the living room “just in case” and “surprised” Petitioner by striking him in the head as he walked through the living room door. Ms. Felts, who was behind Petitioner, testified that “the next thing [she] saw was [Mr. Miller], and he was hitting [Petitioner] over the head.” Ms. Felts recalled that Mr. Miller struck Petitioner “three times” in rapid succession. Petitioner was “stunned or dazed” and “fell to the ground.” Ms. Felts observed Mr. Miller preparing to strike Petitioner again, but then “they went out of [her] view.” She heard “scuffling noises” followed quickly by a gunshot. She recalled that “[Mr. Miller] was on top. He was standing up and [Petitioner] was down the last time I saw them.”

After the first bullet struck Mr. Miller in the chest, he attempted to swing the bat at Petitioner's knees, but collapsed. Petitioner fired the gun several times, hitting Mr. Miller four more times. When paramedics arrived, Mr. Miller was conscious, but he lapsed into a coma and remained comatose for three and a half weeks. Petitioner was also injured, with a bleeding and badly swollen laceration above his left eye and a contusion to his left knee.

A police detective investigating the incident testified that, near the curb of Ms. Felts' property, he recovered a 9–mm pistol containing three live rounds and one shell casing stuck between the slide, indicating the gun had jammed. Six more shells were recovered from inside the house. Just inside Ms. Felts' kitchen door, the officer found a set of keys, including a key to Ms. Felts' door and another to Petitioner's truck.

A police sergeant who interviewed Petitioner at the scene testified Petitioner said “he had had to shoot the man in the house,” explaining that “he had been staying there with his ex-wife, and the man had assaulted him with the baseball bat, and he had to shoot him.” Another prosecution witness testified on cross-examination that he had seen Petitioner after the confrontation “rolling around on the ground and screaming as if he were in pain.” According to this witness, Petitioner said “he went to his ex-wife's home and a man hit him with a baseball bat in the head and then he shot the man.” A police detective who interviewed Petitioner at the hospital after the incident testified Petitioner declined to make a formal statement, but said that “he wasn't a killer; he didn't mean to shoot [Mr. Miller]; he didn't want to shoot him; that [Mr. Miller] came at him with a bat.” Additionally, Ms. Felts testified that she did not believe Petitioner intended to shoot anyone when he came in the house, but rather wanted attention. Ms. Felts also said that Mr. Miller could have escaped through an unlocked door, rather than waiting for Petitioner to come inside.

The police detective who took Mr. Miller's statement five weeks after the incident testified that Mr. Miller admitted placing the bat in the living room “just in case,” but explained, “I was never going to go out after him with anything, but if he came in after me, I would be able to defend myself.” Mr. Miller also said he had hit Petitioner with the bat “just once,” a statement the police detective believed to be false based on Petitioner's injuries.

At trial, Mr. Miller testified that he had “surprised” Petitioner with a blow to the head from the bat and admitted he did not hold back when he swung the bat at Petitioner. Mr. Miller agreed he had struck Petitioner at least twice, once on the head and again on the leg, leaving a red mark on Petitioner's thigh and a bruise on his shin. A third swing of the bat knocked a hole in the wall of Ms. Felts' home. Mr. Miller also...