Kendrick v. Parris

• Citation: 989 F.3d 459
• Decision Date: 02 March 2021
• Docket Number: No. 19-6226,19-6226
• Parties: Edward Thomas KENDRICK, III, Petitioner-Appellant, v. Mike PARRIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

989 F.3d 459

Edward Thomas KENDRICK, III, Petitioner-Appellant,

v.Mike PARRIS, Warden, Respondent-Appellee.

No. 19-6226

United States Court of Appeals, Sixth Circuit.

Argued: January 26, 2021

Decided and Filed: March 2, 2021

ARGUED: Amanda Rauh-Bieri, MILLER, CANFIELD, PADDOCK, AND STONE, PLC, Grand Rapids, Michigan, for Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Amanda Rauh-Bieri, Paul D. Hudson, MILLER, CANFIELD, PADDOCK, AND STONE, PLC, Grand Rapids, Michigan, for Appellant. John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Joshua Counts Cumby, ADAMS AND REESE LLP, Nashville, Tennessee, for Amici Curiae.

Before: GUY, LARSEN, and MURPHY, Circuit Judges.

LARSEN, Circuit Judge.

One evening in 1994, Edward Kendrick III fatally shot his wife outside a Chattanooga gas station. At trial, he insisted that his rifle had malfunctioned and fired without Kendrick pulling the trigger. But the jury didn't buy his account. Instead, it convicted Kendrick of first-degree murder.

In his petition for state postconviction relief, Kendrick raised seventy-seven claims alleging either ineffective assistance of counsel (IAC) or prosecutorial misconduct. He succeeded in the Court of Criminal Appeals on two of his IAC claims, but the Tennessee Supreme Court reversed as to both. In doing so, it held that counsel's decision not to adduce the testimony of a firearms expert was not constitutionally deficient performance. Neither was counsel's failure to introduce favorable hearsay statements under the excited utterance exception.

Kendrick then sought federal habeas review. The district court denied his forty-eight-claim petition. We granted a certificate of appealability (COA) on the two IAC claims that the Tennessee Court of Criminal Appeals had initially found meritorious. Because the Tennessee Supreme Court did not unreasonably apply Supreme Court precedent in denying Kendrick relief, we now AFFIRM.

I.

Kendrick was holding his Remington Model 7400 hunting rifle at the time it fired a single bullet at point-blank range into his wife's chest. That much has never been disputed. Kendrick's intent, on the other hand, always has been. The State contended this was a cold-blooded execution. Kendrick insisted it was a freak accident.

A.

In the early months of 1994, Kendrick and his wife Lisa were in the process of pursuing what Kendrick described as an "amicable" divorce based on irreconcilable differences. They were still living together, along with their three-year-old son and four-year-old daughter. Lisa was working at a gas station in Chattanooga, Tennessee.

Lisa was on duty on the evening of March 6, 1994, and had been talking with her friend, Lennell Shepheard Jr., for over an hour. Just before 10:00 p.m., she received a page from her husband and returned his call. A little while later, Kendrick pulled into the parking lot with their two children sitting in the backseat of his car. Kendrick entered the gas station and told Lisa, "when she got a chance, to step outside, that he wanted to talk to her." Kendrick walked out first, and Lisa followed after she finished ringing up a customer. From where Shepheard was standing inside the station, "it looked like ... they were arguing" outside, but Shepheard couldn't hear anything or see clearly what was going on.

"After that [Shepheard] heard a boom." He did not know what it was at first, but upon opening the door, he saw Lisa lying on the ground with Kendrick "standing over her." The sound had been a gunshot, which two other witnesses heard as well. Charles Mowrer, who lived across the street, testified that he ran outside following the "extremely loud shot" and saw "a lady laying [sic] on the ground with a man looking over her." Timothy Benton, who was just pulling out of the gas station, "heard an explosion" too. Benton looked back and saw Kendrick holding a gun "pointed straight up in the air." "The right hand was on the pistol grip area around the trigger and the left hand was up near the stock."

Shepheard testified that Kendrick then stood over Lisa's body, while repeating "I told you so, I told you so," about six times. During trial, Kendrick denied making these statements. And Kendrick's counsel pointed out that the records from Shepheard's initial interview with police did not mention Kendrick saying "I told you so" at all. Nevertheless, it is undisputed that Kendrick did not "render any assistance" to Lisa or "call out for help" after shooting her. He made eye contact with Shepheard, fumbled for the passenger door "at least three times," and then "ran around the car, jumped in and left." During his flight, Kendrick threw the gun out of his vehicle onto the side of the road.

Meanwhile, Timothy Benton had turned his car around and had pulled back into the gas station to help. But when he saw Lisa lying on the ground and Shepheard about to call 911, he gave chase to Kendrick instead—"to make sure he didn't get away." Within minutes, Benton caught up with Kendrick and "followed him into the Chattanooga Airport."

At the airport, now about five minutes after the shooting, Kendrick dialed 911 himself. He immediately stated: "I want to turn myself in. ... My wife, I just shot my wife." Kendrick then revealed to the operator that he was at the airport and would wait with his kids for the police to arrive. After Kendrick was placed into a police vehicle and advised of his rights, he said "I hope this is only a dream." He made no suggestion to the officers that the shooting had been an accident.

An officer then spoke with Kendrick's four-year-old daughter, Endia, who "was very upset, was crying, [and] seemed to be very scared." At trial, a second officer also claimed that Endia was "hysterical" and "stated that she had told daddy not to shoot mommy but he did and she fell." Endia, for her part, testified that she "saw [Kendrick] shoot" her mother and that Lisa "was standing with her hands up" at the time. The positioning of Lisa's hands was supported by forensic evidence of stipple injuries on her forearms. Yet on cross-examination, Endia admitted that she "remember[ed] telling [Kendrick's counsel] that [she] didn't see [her] daddy shoot [her] mommy." And she agreed that Kendrick got the gun out of the front seat of the car "because [her] mommy wanted him to put the gun in the back of the car." Counsel also insinuated that Lisa's parents—with whom Endia was living at the time of trial—were attempting to manipulate Endia's story.

Later that evening, Officer Steve Miller of the Chattanooga Police Department retrieved Kendrick's gun, a Remington Model 7400, from the side of the road. He placed the rifle in his car to take back to the station. But around 1:45 a.m., as Miller "was gathering the evidence" out of the trunk of his car, he pointed the gun downward and "the weapon discharged," firing a bullet into his left foot. According to police incident reports, Miller told other officers that the gun had fired without Miller having touched the trigger; but Miller claimed not to remember the "exact position of [his] hand" when asked on the stand.

Kendrick's counsel challenged this lack-of-memory testimony with a vigorous cross-examination. Miller admitted that he had been a police officer for twenty-two years, that he had never accidentally discharged a firearm, and that it is "drilled into you at the police academy don't ever put your hand on the trigger unless you're going to shoot the gun." He also confirmed that he would "[n]ever" otherwise "knowingly" place his finger on the trigger of a loaded gun. And Miller conceded that he "presumed [the gun] was loaded" at the time. Counsel next pointed out that when Miller reenacted the incident for the jury, he hadn't "put [his] finger on the trigger." Miller insisted that he could not "say for sure in th[e] courtroom how [his] hand was that night," but counsel wouldn't let Miller off the hook so easily. Eventually, counsel's questioning caused Miller to admit that his reenactment for the jury—finger "not on the trigger"—was "to the best of [his] recollection how it happened[.]"

The State then called a firearms expert, Kelly Fite. Fite testified that he conducted a "drop test" on Kendrick's rifle and "abuse[d]" it to see if that affected the force needed to pull the trigger. It did not. He also "checked the rifle for what's called a slam fire" and "attempt[ed] to accidentally discharge this weapon with the safety," but "[t]he only way [he could] get this rifle to fire was by pulling the trigger." Fite thus declared that in his expert opinion, "[t]he only way that you can fire [Kendrick's] rifle without breaking it is by pulling the trigger."

After cross-examining Fite and attempting to cast doubt on the validity of his conclusion, Kendrick's counsel recalled Miller to the stand. Counsel showed Miller the police incident reports from the night he was shot, in which Miller purportedly told other officers that the gun had gone off without his finger on the trigger. Miller, however, could not recall making those statements. Counsel next tried to impeach Miller with the reports, but the trial court sustained the State's objection. So, counsel called to the stand Officer Glen Sims, one of the authors of the incident reports. He sought to impeach Miller that way, but the trial court again sustained the State's objection.

The defense called the rest of its witnesses, and then Kendrick took the stand in his own defense. He testified that he "loved [his] wife and [he] would have never taken [their] children to [his] wife and done anything like that." He also maintained that they were not arguing outside the gas station and that he only carried a loaded rifle in the car for protection, as he and Lisa often cleaned houses in an unsafe part of town. According to Kendrick, Lisa had instructed him to "go ahead and put [the gun] in the trunk of the car." So he took it out...