Hutchison v. State

• Decision Date: 26 March 2003
• Docket Number: No. E2001-02737-CCA-R3-PC.,E2001-02737-CCA-R3-PC.
• Citation: 118 S.W.3d 720
• Parties: Leonard HUTCHISON and James Harper v. STATE of Tennessee.
• Court: Tennessee Court of Criminal Appeals

118 S.W.3d 720

Leonard HUTCHISON and James Harper v. STATE of Tennessee.

No. E2001-02737-CCA-R3-PC.

Court of Criminal Appeals of Tennessee, at Knoxville.

November 26, 2002 Session.

March 26, 2003. No Permission to Appeal Applied for to the Supreme Court.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; and John A. Bobo, Jr., Attorney General Pro Tem., for the appellant, State of Tennessee.

Mark E. Stephens, District Public Defender (on appeal), and Robert C. Edwards, Assistant District Public Defender (on appeal and at trial), for the appellee, Leonard Hutchison.

J. Liddell Kirk, Knoxville, Tennessee, for the appellee, James Harper.

OPINION

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA McGEE OGLE, JJ., joined.

The post-conviction court granted each of the petitioners post-conviction relief on the grounds that the state had violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose an exculpatory FBI laboratory report and an exculpatory witness statement. In this appeal of right, the state contends (1) that Harper's petition is barred by the applicable statute of limitations; (2) that the trial court erred by permitting the petitioners to amend their petitions and allege new grounds after a remand from this court; (3) that the trial court erred by determining that the state suppressed the FBI laboratory reports and a witness statement; and (4) that Hutchison received the effective assistance of counsel at trial, an alternative ground for relief asserted by Hutchison. In response to the state's appeal, the petitioners assert that the trial court erred by excluding from evidence the affidavit of a juror which would demonstrate that the FBI lab reports would have created reasonable doubt. The judgment is affirmed.

In 1983, the petitioners were indicted for burglary of an automobile and felonious assault. By a separate indictment, Hutchison was also charged with possession of burglary tools. The petitioners were first tried for the offenses in December of 1984. Each presented an alibi defense. After an eight-day trial, the jury convicted Hutchison of possession of burglary tools. The remaining counts ended in a mistrial. The trial court ordered a Range II sentence of ten years for Hutchison, who was classified as a persistent offender. On direct appeal, this court affirmed the judgment. See State v. Leonard D. Hutchison, No. 1028, 1987 WL 14331 (Tenn.Crim.App., at Knoxville, July 23, 1987).

In the fall of 1985, the state retried the petitioners on the burglary and assault charges. The proof at trial was that in the early morning hours of September 2, 1982, the victim, James David Comer, was awakened by a tapping noise and proceeded to investigate. By shining a hunter's lantern into the parking lot of his apartment complex, he observed two men, later identified as the petitioners, in another tenant's vehicle. When the suspects fled on foot, the victim telephoned 911 and, without waiting for a response, ran to his car. While driving past the burglarized vehicle, the victim observed that the windows were fogged and that the "o" ring had been knocked off of the ignition switch. He then drove around the apartment complex looking for the suspects. Upon reentering the parking lot, the victim observed the same two men approaching from the opposite direction in "an old type racing car with red primer paint." After forcing the petitioners' car to the curb, the victim stepped out of his vehicle and informed the occupants that he had already telephoned the police. At that point, the driver, later identified as Hutchison, "gunned" the engine of his car, causing the victim to jump back and roll across the trunk of his own vehicle. During the confrontation, the victim, who was himself armed with a gun, was shot three times. Upon convictions of burglary and assault with the intent to commit second degree murder, the trial court ordered consecutive sentences for Hutchison of ten years for the burglary and fifteen years for the assault. It sentenced Harper to concurrent terms of five years for the burglary and three years for the assault. On direct appeal, this court affirmed each of the convictions. State v. Harper, 753 S.W.2d 360 (Tenn.Crim.App.1987).

Initially, on August 29, 1988, in case number 33993, Hutchison filed a petition for post-conviction relief as to his conviction for possession of burglary tools. The petition, which alleged ineffective assistance of trial counsel, was later amended to include a claim that the state had withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Later, on April 20, 1989, Hutchison filed a post-conviction petition seeking relief from his convictions for burglary and assault in case number 36742.¹ Almost four years later, on January 21, 1993, Harper filed for post-conviction relief in case number 50214. In early 1996, the post-conviction court granted relief, concluding that the state had violated the ruling in Brady by failing to timely notify the petitioners about an exculpatory witness from the FBI. After an appeal by the state, this court summarized the relevant facts as follows:

The convictions ..., however, are only the beginning of the story. At some point prior to the first trial, the defendants became aware that a person named Tommy McClanahan had information that might exculpate them. The record indicates that on February 6, 1984, Harper's attorney moved for a continuance in order to locate and interview McClanahan. McClanahan did not testify, but during Harper's testimony at the first trial, Harper blurted out that "Billy Hall" was the "shooter." At the post-conviction hearing, Hutchison testified that at some point, probably between the first and second trial, he was visited by two F.B.I. agents who told him that they had information indicating that Billy Hall and someone else had actually committed the burglary and the assault. Both defense counsel and the prosecutor testified that the defense had subpoenaed Billy Hall and that he was present throughout the second trial. The state paraded Hall before the jury at one point, but he was never placed on the stand. Hutchison's counsel at the second trial had Tommy McClanahan hidden in his office, and he intended to use McClanahan to impeach Hall's testimony. The plan fell apart, however, when McClanahan disappeared on the last day of the trial.

In October, 1985, while the defendants were awaiting sentencing [after their second trial], Richard O'Rear, a supervisor in the Knoxville F.B.I. office, visited Hutchison at Hutchison's request. As a result of this meeting, O'Rear met with Agent Clyde Merryman who had worked in an undercover investigation of East Tennessee auto theft rings in 1982. He told O'Rear that on September 2, 1982, he and Agent Joe Mann had, as part of their undercover activities, spoken with Paul Allen, who ran a "chop-shop" in Newport, and Tommy McClanahan, who also was involved in car theft activity. In separate conversations, McClanahan and Allen told them that Billy Hall admitted that he was the man who shot James David Comer. According to the agents, Hall brought his primer-covered 1968 Pontiac to Allen to be "chopped" because it might be identified. Hall allegedly pointed out a bullet hole in the car. Neither McClanahan nor Allen knew the true identity of the agents, and Merryman and Mann found their information to be highly credible. However, since they were operating deep undercover, they decided to call another agent, Rex Owenby, who had contacts within the Knoxville Police Department and give him the information. Contrary to F.B.I. procedure, no one made a written record of this information.

After meeting with Hutchison, O'Rear asked Merryman to interview McClanahan and Allen again. At the second interviews, both Allen and McClanahan knew that Merryman was an F.B.I. agent but both men told substantially the same story as they had in 1982. Merryman then memorialized the interviews on what are known in F.B.I. parlance as "302 forms." As a result of these interviews, O'Rear sent a letter to the Knox County District Attorney General on January 9, 1986 advising him that the F.B.I. had information that tended to exculpate Hutchison and Harper. He forwarded copies of the 302 forms a month later. Shortly after McClanahan passed a polygraph test on August 24, 1986, the district attorney's office notified Doug Trant, Hutchison's attorney, that the F.B.I. had information concerning the crime for which Hutchison and Harper had been convicted.

Based on the conversations he had with representatives of the district attorney general's office and the F.B.I., Trant filed a Motion to Reopen on Hutchison's behalf on August 26, 1987. The motion was withdrawn without prejudice and then refiled on March 2, 1989. Judge Randy Nichols denied the motion that same day because it contained no affidavits from the alleged witnesses. Meanwhile, Hutchison began writing letters to obtain the F.B.I. documents under the Freedom of Information Act, and he filed petitions for post-conviction relief in each of his convictions alleging both ineffective assistance of counsel and Brady violations. James Harper filed a petition for post-conviction relief on January 21, 1993, alleging only that the state had violated Brady. Ultimately, the petitions were consolidated before a single judge and an evidentiary hearing was held on Feb. 1 and 2, 1995. The post-conviction court took the case under advisement and granted the petitions on January 22, 1996. On February 12, 1996, the judge entered an amended Memorandum Opinion for record-keeping purposes.

Leonard D. Hutchison and James Harper v. State, No. 03C01-9606-CR-00232, slip op. at 4-7, 1997 WL 789923 (Tenn.Crim.App., at Knoxville, Dec. 23, 1997).

Upon reviewing the factual and...