Jones v. State, No. M2007-00397-CCA-R3-PC (Tenn. Crim. App. 2/1/2008)
| Decision Date | 01 February 2008 |
| Docket Number | No. M2007-00397-CCA-R3-PC.,M2007-00397-CCA-R3-PC. |
| Parties | KENNETH J. JONES v. STATE OF TENNESSEE. |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Lewis County; No. 6614; Jeffrey S. Bivins, Judge.
Judgment of the Circuit Court Affirmed.
Grant C. Glassford, Franklin, Tennessee, for the Appellant, Kenneth J. Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and Jeffrey L. Long, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which Jerry L. Smith and Thomas T. Woodall, JJ., joined.
The Appellant, Kenneth J. Jones, was found guilty of aggravated kidnapping, evading arrest, and aggravated robbery, following a bench trial, and received an effective sentence of twelve years in confinement. The convictions of both Jones and his co-defendant were affirmed by this court on direct appeal. Jones subsequently filed a pro se petition for post-conviction relief alleging that he did not make a knowing and intelligent waiver of his right to a jury trial and that he received ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court determined that Jones knowingly and intelligently waived his right to trial by jury and that he had failed to carry his burden on his claims for ineffective assistance of counsel. On appeal, Jones argues that his waiver of the right to a jury trial was not entered knowingly and intelligently and that he received ineffective assistance of counsel based upon the following: (1) trial counsel failed to move to sever his case from that of his co-defendant; (2) trial counsel failed to move to suppress his statement to police; (3) trial counsel failed to interview State witnesses; (4) trial counsel failed to object to the State's notice of intent to seek enhanced punishment; and (5) trial counsel failed to file mitigating factors with the trial court prior to sentencing. After review, the judgment of the post-conviction court is affirmed.
The opinion of this court in the direct appeal set forth the facts in this case as follows:
On June 14, 2001, four teenagers, including the [A]ppellant[], escaped from New Hope Facility in Lewis County, Tennessee. That same day, Willadean Dobson, a sixty-nine-year-old employee of Keaton, Turner, and Spitzer law firm in Hohenwald, Tennessee, spent her lunch hour grocery shopping for her ninety-one-year-old mother. Her mother lived alone at 235 North Walnut Street in Hohenwald. When Mrs. Dobson finished her shopping, she traveled in her 1997 Cadillac to her mother's home to deliver the groceries. She entered through the front door, which was shut but unlocked. Her mother was at the beauty parlor getting a permanent when Mrs. Dobson dropped off the groceries. Mrs. Dobson took the groceries inside and set them down on a table. At that time, four individuals, "three blacks and one white," emerged from various rooms in her mother's house. Three of the individuals wore stockings over their heads, and one individual had a blue bandana around the lower half of his face. The individual with the blue bandana was also wearing a blue shirt with a white design on it.
The individuals yelled at Mrs. Dobson and forced her into a chair. They then began to duct tape her feet and her wrists together. She told the individuals that she did not have any money, so they carried her into a bedroom where they used twine and more duct tape to tie her wrists to the bedposts. After they added additional duct tape to her restraints, the "black boy in the blue shirt" stood near her holding a small hatchet. Mrs. Dobson described his actions as "being smart," hitting the hatchet against his hands in a threatening manner. The "white boy" had a hammer and was using it in the same threatening manner. The "white boy" asked if she could write them a check. The individuals then taped Mrs. Dobson's mouth shut with duct tape. The "white boy" with the hammer and the "black boy" with the hatchet appeared to be the leaders of the group.
The individuals left Mrs. Dobson in the bedroom tied to the bed while they went into the kitchen. After she heard them leave, she eventually managed to free herself from the bed and hop towards the telephone. While Mrs. Dobson was trying to get to the phone, she fell and broke her finger. She managed to get to the phone and call 911.
While at Mrs. Dobson's mother's house, the individuals took ten dollars from her mother's wallet, her purse, and her 1997 Cadillac. They also drank from a two-liter bottle of Coca Cola. As a result of being taped and tied up, Mrs. Dobson had bruises on her wrists. During the time she was being held captive, Mrs. Dobson was in fear for her life.
Dewayne Kilpatrick, the Lewis County Sheriff, was advised by dispatch of the situation, including information regarding the stolen Cadillac. He and Officer Kenny Prentice were able to follow the automobile for a period of time. After verifying that it was the stolen automobile, he activated his emergency equipment.
At that time, the vehicle fled at a high rate of speed, traveling over 100 miles per hour on several occasions and forcing several vehicles off the road. The suspects finally turned onto a dead end street. The individuals exited the vehicle and ran into the woods. The driver and front seat passenger were black males, while the back seat was occupied by a white male and a third black male. Sheriff Kilpatrick and Officer Prentice pursued the individuals on foot and were able to apprehend one of the suspects. The three remaining suspects were eventually apprehended and transported to Hohenwald City Hall. A blue bandana, blue shirt with white print, and stockings were recovered from the area around the vehicle.
Stefon Copeland, a sixteen-year old, was one of the individuals apprehended that day. He testified at trial that he, [the Appellant], and another individual planned to escape from the New Hope Facility. The three later included [co-defendant Nathaniel Lee Jackson] in the plans when he told them that his grandmother's house was located in Hohenwald. Mr. Copeland initially thought that the Walnut Street home belonged to . . . Jackson's grandmother, but realized differently when . . . Jackson kicked in the door. According to Mr. Copeland, while . . . Jackson was breaking-into the home, the three other individuals hid in a shed on the property. Once they gained access to the house, Mr. Copeland went to the kitchen to find something to drink while . . . Jackson rummaged through a closet where he found a suitcase containing a hatchet, duct tape, and twine. Mr. Copeland testified that . . Jackson was responsible for tying Mrs. Dobson up and that . . . Jackson and [the Appellant] moved Mrs. Dobson to another room. . . . Jones wore a bandana on his face while the three other individuals wore stockings over their heads. When the individuals left the home in the Cadillac, [the Appellant] and Mr. Copeland sat in the front seat, while . . . Jackson and another individual were in the back seat. According to Mr. Copeland, [the Appellant] was the driver of the stolen vehicle.
Upon his return to Hohenwald, Lieutenant Greg Wise investigated the scene and took a statement from Mrs. Dobson. He was able to determine that the back screen door had been pried open and the back door had been kicked in. He noticed a large muddy footprint on the white part of the wooden door. He recovered a tack hammer, twine, cane, Pepsi bottle, hatchet, and black shirt from the home on Walnut Street. Lieutenant Wise also took several photographs of Mrs. Dobson's broken finger and the bruises on her wrists.
Lieutenant Wise interviewed all four suspects. They were all read their Miranda rights and indicated their understanding of those rights. Both . . . Jackson and [the Appellant] signed waivers of their right to remain silent, but neither wished to speak with Lieutenant Wise. . . . Jackson and [the Appellant] later both gave statements to Lieutenant Wise.
State v. Nathaniel Lee Jackson & Kenneth J. Jones, No. M2002-02248-CCA-R3-CD (Tenn. Crim. App. at Nashville, June 7, 2004) (footnote omitted). The Appellant, who was age sixteen at the time of the offenses and age seventeen at the time of trial,1 executed a written waiver of his right to trial by jury. A bench trial was held, and the Appellant was convicted of aggravated kidnapping, aggravated robbery, and felony evading arrest. The trial court ordered that the sentences be served concurrently, resulting in an effective sentence of twelve years. This court affirmed the convictions and sentences on direct appeal. Id.
On May 31, 2005, the Appellant filed a pro se petition for post-conviction relief. He was appointed counsel, who subsequently filed an amended petition alleging that the Appellant's waiver of his right to trial by jury was not entered knowingly and intelligently and, further, asserting numerous claims related to ineffective assistance of trial counsel. The post-conviction court held a hearing on April 21, 2006. On December 28, 2006, the post-conviction court entered an order denying the petition for post-conviction relief. The Appellant timely appealed to this court.
In order to prevail on a post-conviction petition, the petitioner must establish that his conviction or sentence is void or voidable due to the abridgement of a constitutional right. T.C.A. § 40-30-103 (2003); Howell v. State, 151 S.W.3d 450, 460 (Tenn. 2004). In a post-conviction proceeding, the burden is on the petitioner to prove his allegations by clear and convincing evidence. T.C.A. § 40-30-110(f) (2003). Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Hodges v. S.C. Toof...
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