Harris v. State
| Decision Date | 28 February 1996 |
| Citation | 947 S.W.2d 156 |
| Court | Tennessee Court of Criminal Appeals |
| Parties | Edward Leroy HARRIS, Appellant, v. STATE of Tennessee, Appellee. |
Paul J. Morrow and Brock Mehler, Nashville, for Appellant.
Charles W. Burson, Attorney General and Reporter, Christian S. Chevalier, Assistant Attorney General, Criminal Justice Division, Nashville, Al C. Schmutzer, Jr., District Attorney General, Richard Vance, Asst. District Attorney General, Sevierville, for Appellee.
The appellant, Edward Leroy Harris, alias "Tattoo Eddie," seeks post-conviction relief from his convictions of one count of armed robbery and two counts of premeditated first degree murder, entered by the Circuit Court of Sevier County in May, 1988, and the consequent imposition of one sentence of life imprisonment and two sentences of death by electrocution. The convictions and sentences were affirmed on appeal by the Tennessee Supreme Court. State v. Harris, 839 S.W.2d 54 (Tenn.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993).
On August 10, 1993, the appellant filed a petition for post-conviction relief. On November 29, 1993, the post-conviction court conducted a hearing on the merits of the appellant's petition. At the conclusion of the hearing, the post-conviction court denied the petition. A written judgment of dismissal was filed on December 6, 1993.
The appellant raises the following eight issues on appeal:
(1) Whether the appellant received the effective assistance of counsel at trial and on appeal;
(2) Whether the post-conviction court erred by denying the appellant's motion for an ex parte hearing and support services;
(3) Whether the post-conviction court abused its discretion in denying the appellant's motion to recuse;
(4) Whether the post-conviction court abused its discretion in denying the appellant's motion for a continuance;
(5) Whether the evidence presented at trial was sufficient to establish the elements of premeditation and deliberation and whether the instructions to the jury on premeditation and deliberation misled the jury;
(6) Whether the use of the felony murder aggravating circumstance violated the holding in State v. Middlebrooks;
(7) Whether the jury was prevented from considering lesser included offenses by the use of a sequential jury instruction; and
(8) Whether Tennessee's death penalty statute is constitutional.
After reviewing the record, we affirm the judgment of the post-conviction court.
The appellant was convicted of the September 13, 1986, murders of two employees of the Rocky Top Village Inn in Gatlinburg. Also charged in the murders were Kimberly Pelley, the appellant's girlfriend; Joseph DeModica, a Georgia state penitentiary acquaintance of the appellant; and transvestite, Rufus Doby, also known as Ashley Silvers. At trial, two key sources of evidence for the State were the testimony of the co-defendant, DeModica, which implicated the appellant in the murders, and a letter describing the murders, recovered in a phone booth near the police station in Maggie Valley, North Carolina.
At trial, Joseph DeModica testified that, on the day of the murders, he, Doby, Pelley, and the appellant drove to Gatlinburg. Following a visit to the Great Smoky Mountains National Park, the group drove to the Rocky Top Village Inn. DeModica observed the appellant, Pelley, and one of the victims, Melissa Hill, enter the motel room in which Hill's body was subsequently discovered. Pelley carried a knife in her hand. DeModica remained in the parking lot. He heard several screams. A security guard, Troy Valentine, arrived, but encountered the appellant, who had come out of the motel room. Valentine and the appellant began to fight. Pelley also came out of the motel room, took the guard's flashlight, and struck him over the head with it. The appellant and Pelley then dragged Valentine into the motel room. DeModica heard two gunshots. He testified that, when the appellant and Pelley again came out of the motel room, they looked as if someone had sprayed them with red paint.
The State presented evidence to corroborate various aspects of DeModica's testimony. For example, with respect to the knife that DeModica observed in Pelley's hand, an acquaintance testified that the appellant carried a lock-blade knife and a hunting knife with a serrated edge. Moreover, each victim suffered a deep neck wound from a serrated knife. Each victim had also been shot in the head. The massive amount of blood at the crime scene and the number of injuries inflicted upon each victim were consistent with DeModica's description of the appellant and Pelley following the murders. Finally, DeModica knew that Valentine had been clubbed with his flashlight. This information was not released to the media and would have been known only to the killers.
The Maggie Valley letter, which was found three days after the murders, also contained information which only the killers would have known. The State's document examiner excluded DeModica, Pelley, and Silvers as the writer of the letter. Expert testimony further established strong indications that the appellant wrote this letter. A former girlfriend of the appellant, Antonia Jones, identified the handwriting in the Maggie Valley letter as being that of the appellant.
Following his arrest, the appellant made a series of statements to Tennessee Bureau of Investigation agents and Georgia law enforcement officers. Initially, the appellant denied going to Gatlinburg. However, he subsequently stated that he and his companions had eaten in a restaurant in Pigeon Forge, and that, while he and Pelley were in Gatlinburg with DeModica and Silvers, he had purchased a chain for Pelley. He denied participating in the killings and implied that DeModica and Silvers were the murderers.
The appellant did not testify at the guilt phase of his trial. Essentially, his defense, as advanced through the appellant's statements to the police following his arrest, was a denial of any participation in the crime. However, reviewing the sufficiency of the evidence on direct appeal, the supreme court remarked that "the overwhelming evidence supported the verdict of the jury...." Harris, 839 S.W.2d at 76. Similarly, the post-conviction court observed,
At the penalty phase of the trial, the State introduced the appellant's prior convictions involving violence to the person and otherwise relied upon the proof introduced during the guilt phase. 1 Defense counsel initially indicated that they would offer no proof during the penalty phase. However, following a conference with the trial judge in chambers, the appellant testified on his own behalf. The appellant stated that he was 32 years old and grew up in North Carolina. He informed the jury that he had only completed the third grade in school and could neither read nor write. He admitted that his difficulties in school stemmed largely from a lack of motivation. The appellant further testified that, during his youth, his relationship with his parents was troubled, and that he left home at the age of 14. The appellant admitted that, when he was 18, he pled guilty to several offenses in Georgia and spent 10 years in the Georgia penitentiary. While at the penitentiary, the appellant became involved in the Golden Gloves boxing program and won several trophies. The appellant testified that he has two children by a prior marriage, whom he visited on occasion. In conclusion, he asked that the jury spare his life.
The jury imposed the punishment of death, finding that three aggravating circumstances, Tenn.Code Ann. § 39-2-203(i)(2), (5), and (7) (1982), 2 outweigh any mitigating circumstances.
When a claim of ineffective assistance of counsel is raised, the burden is upon the appellant to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). 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 defendant of a fair trial, a trial whose result is reliable." Id. The appellant must establish both deficient performance and prejudice in order to prevail. Id. A reviewing court need not consider the two prongs of Strickland in any particular order. Id. at 697, 104 S.Ct. at 2069. Moreover, if the appellant fails to establish one prong, a reviewing court need not consider the other. Id.
With respect to deficient performance, the proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. at 2065. In other words, the attorney's performance must be within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975); Wright v. State, No. 01C01-9105-CR-00149, 1994 WL 115955 (Tenn.Crim.App. at Nashville), perm. to appeal denied, (Tenn.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1129, 130 L.Ed.2d 1091 (1995). This court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We should defer to trial strategy or tactical choices if they are informed ones based upon adequate preparation. Wright, No. 01C01-9105-CR-00149 (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982)). Additionally, this court...
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