Moore v. State
| Decision Date | 16 March 2016 |
| Docket Number | No. W2013-00674-SC-R11-PC.,W2013-00674-SC-R11-PC. |
| Citation | 485 S.W.3d 411 |
| Parties | Rashe Moore v. State of Tennessee |
| Court | Tennessee Supreme Court |
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Rachel E. Willis, Senior Counsel, Criminal Justice Division; Amy P. Weirich, District Attorney General; David Zak, Assistant District Attorney General; and Charles Summers, Assistant District Attorney General, for the appellant, State of Tennessee.
Charles S. Mitchell, Memphis, Tennessee, for the appellee, Rashe Moore.
OPINION
In this post-conviction case, we clarify the appropriate prejudice analysis for ineffective assistance of counsel claims arising from the failure to properly request jury instructions on lesser-included offenses where, as here, the jury was given no option to convict of any lesser-included offense. The jury convicted the petitioner as charged of one count of aggravated burglary and multiple counts of aggravated rape, especially aggravated kidnapping, and aggravated robbery in connection with a home invasion. On direct appeal, the Court of Criminal Appeals affirmed the convictions and declined to address the trial court's failure to instruct the jury on lesser-included offenses because the petitioner's trial counsel did not request the instructions in writing as required by statute. Thereafter, the post-conviction court denied relief. On appeal, a majority of the Court of Criminal Appeals granted a new trial on the especially aggravated kidnapping charges based on ineffective assistance of counsel. We hold that the Court of Criminal Appeals erred in concluding that the petitioner was prejudiced by his trial counsel's failure to request a jury instruction on aggravated kidnapping as a lesser-included offense of especially aggravated kidnapping. We conclude that no reasonable probability exists that a properly instructed jury would have convicted the petitioner of any of his asserted lesser-included offenses instead of the charged offenses. Because the petitioner suffered no prejudice, he did not receive ineffective assistance of counsel as to any of his convictions. We reverse the Court of Criminal Appeals' judgment granting a new trial on the especially aggravated kidnapping charges and reinstate the post-conviction court's judgment denying relief on these convictions. We further hold that the Court of Criminal Appeals properly affirmed the denial of post-conviction relief on the petitioner's other convictions.
On the evening of July 21, 1999, Albert Smith was at his house in Memphis, Tennessee, with his friend Deana T. and his eight-year-old son. An older man, later identified as Genore Dancy,1 forced his way into the house. A younger man, later identified as the petitioner, Rashe Moore, entered the house a few minutes later. Both Mr. Moore and Mr. Dancy were armed with handguns during the home invasion that lasted approximately two hours. They took personal items from Mr. Smith and Deana T. at gunpoint. While Mr. Dancy continued to hold the victims at gunpoint, Mr. Moore ransacked the house.
A short time later, Mr. Smith's roommate arrived at the house with Shauntel K. and Latoya K. They were forced inside at gunpoint. Mr. Moore and Mr. Dancy took various items of personal property from the six victims and then made them strip down to their underwear and lie on the floor of the den.
Mr. Dancy ordered Latoya K. into another room while Mr. Moore held the other victims at gunpoint. Mr. Dancy forced his penis into Latoya K.'s mouth at gunpoint. Mr. Dancy and Latoya K. then returned to the den. Mr. Moore ordered Shauntel K. into another room while Mr. Dancy held the other victims at gunpoint. Mr. Moore forced his penis into Shauntel K.'s mouth at gunpoint. When a pager sounded, Mr. Dancy shot it. Mr. Moore and Shauntel K. then returned to the den. Mr. Moore and Mr. Dancy ordered the six victims into the kitchen, covered them with a sheet as they were lying on the floor, and bound their hands and feet with duct tape. Mr. Dancy then ordered Deana T. into another room, where he forced his penis into her vagina.
While the victims were lying on the kitchen floor, a friend of Mr. Smith's roommate arrived at the house and was ordered inside at gunpoint. Mr. Moore and Mr. Dancy pulled the man's shirt over his head, took his keys and money, pulled his pants down to his ankles, bound his hands, and put him under the sheet with the other six victims.
Additional intruders entered the house. Four or five intruders took Deana T. from the kitchen with a pillowcase on her head. One intruder forced his penis into her mouth, and then another intruder repeated this act. The intruders removed the duct tape from her ankles and then vaginally raped her. When Mr. Moore, Mr. Dancy, and the other intruders left, they took with them the victims' personal property and various items from Mr. Smith's house.
Deana T., Mr. Smith, and Shauntel K. identified Mr. Moore in a photo lineup. At the trial in February 2002, four victims—Deana T., Mr. Smith, Shauntel K., and Latoya K.—identified Mr. Moore as the younger man who, armed with a handgun, entered the house, took valuable items from the victims, bound seven victims and forced them to lie under a sheet on the kitchen floor, raped Shauntel K. at gunpoint, and held a gun on the victims while Mr. Dancy raped Latoya K. and Deana T. and while other intruders then raped Deana T. Mr. Smith and Deana T. testified that Mr. Moore appeared to be a willing participant in the events of July 21, 1999.
Mr. Moore presented an alibi defense. He testified that he was at a club with his girlfriend on the evening of July 21, 1999, and was not involved in the home invasion. He did not deny that any of the events occurred, just that he was not present.
At the close of proof, the trial court announced its decision not to instruct on any lesser-included offenses because Mr. Moore did not contest that the offenses occurred but denied his involvement, testifying that he was elsewhere at the time of the home invasion. Mr. Moore's attorney then orally requested the trial court to instruct the jury on facilitation as a lesser-included offense for the aggravated rapes of Latoya K. and Deana T. The trial court denied the request, explaining that no factual basis supported a jury instruction for facilitation, or any other lesser-included offense, based on the evidence. The trial court stated, "I think it's an all or nothing defense that has been presented." The jury convicted Mr. Moore as charged of six counts (later merged into three counts) of aggravated rape, five counts of aggravated robbery, seven counts of especially aggravated kidnapping, and one count of aggravated burglary. Mr. Moore received an effective sentence of ninety-nine years.
The Court of Criminal Appeals affirmed the judgment of the trial court. State v. Moore, No. W2002–01195–CCA–R3–CD, 2003 WL 22888881, at *11 (Tenn.Crim.App. Dec. 3, 2003). Mr. Moore argued, among other things, that the trial court erred in failing to instruct the jury on the applicable lesser-included offenses, including facilitation for the aggravated rape charges regarding Latoya K. and Deana T. and false imprisonment for the especially aggravated kidnapping charges. Id. at *8. The Court of Criminal Appeals held that Mr. Moore waived this issue by failing to make a written request for jury instructions on the lesser-included offenses. Id. The Court of Criminal Appeals pointed to a 2002 statutory amendment providing that, unless a defendant makes a written request for lesser-included offense instructions, a trial judge's failure to instruct the jury on lesser-included offenses cannot be presented as a ground for relief on appeal. Id. (citing Tenn.Code Ann. § 40–18–110(c) (Supp.2002)). The Court of Criminal Appeals did not review the issue for plain error. See State v. Page, 184 S.W.3d 223, 230 (Tenn.2006) (). We denied Mr. Moore's application for permission to appeal.
Thereafter, Mr. Moore filed a petition for post-conviction relief. The post-conviction evidentiary hearing focused on his allegation that trial counsel was ineffective for failing to properly request jury instructions on lesser-included offenses.
Trial counsel testified that Mr. Moore consistently maintained that he was at a club with his girlfriend on July 21, 1999, and not at Mr. Smith's house. Mr. Moore claimed at trial that the victims had misidentified him. When the case was tried, trial counsel was not aware of the amendment to Tennessee Code Annotated section 40–18–110, requiring requests for jury instructions on lesser-included offenses to be in writing. See Tenn.Code Ann. § 40–18–110(a) (Supp.2002). The amendment requiring written requests went into effect on January 1, 2002. See Act of May 24, 2001, ch. 338, §§ 1–2, 2001 Tenn. Pub. Acts 708, 709 (codified as amended at Tenn.Code Ann. § 40–18–110 (2012)). The trial began just over a month later on February 11, 2002. The prior version of the statute had placed a duty on trial judges to instruct on all lesser-included offenses supported by the evidence, whether or not requested by the defendant. See Page, 184 S.W.3d at 229 (citing Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 228 (1962) ).
Trial counsel doubted that the outcome at trial would have been different had the trial judge instructed the jury on any lesser-included offenses. Trial counsel testified that "in reality the jury was going to believe [Mr. Moore] was there and participated in these things, or they weren't." In...
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