Sharpe v. Bell

• Decision Date: 07 January 2009
• Docket Number: No. 5:04-HC-886-BO.,5:04-HC-886-BO.
• Citation: 595 F.Supp.2d 636
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Montoyae Dontae SHARPE, Petitioner, v. Michael T.W. BELL, Superintendent of Pender Correctional Institution, Respondent.

595 F.Supp.2d 636

Montoyae Dontae SHARPE, Petitioner, v. Michael T.W. BELL, Superintendent of Pender Correctional Institution, Respondent.

No. 5:04-HC-886-BO.

United States District Court, E.D. North Carolina, Western Division.

January 7, 2009.

W. Gregory Duke, Greenville, NC, for Petitioner.

Clarence J. DelForge, III, N.C. Dept. of Justice, Raleigh, NC, for Respondent.

ORDER

TERRENCE WILLIAM BOYLE, District Judge.

This matter arises from Sharpe's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Sharpe was tried and convicted of the non-capital first-degree murder of George Radcliffe at the July 24, 1995 Criminal Session of the Superior Court of Pitt County. He was sentenced to life imprisonment. The court has previously entered an order resolving questions about the timeliness of the petition and procedural bars to the claims raised therein. Having found that petitioner's claim of ineffective assistance is properly before the court on the merits, the only matter now remaining is for the court to address and rule on the merits of that claim.¹ In an order entered on August 8, 2008, 571 F.Supp.2d 675 (E.D.N.C. 2008), the parties were directed to address the need for an evidentiary hearing to resolve the ineffective assistance of counsel claim. Both parties have filed briefs stating that an evidentiary hearing is not required, and the matter is now ripe for ruling.

The evidence presented by the State at trial tended to show that Mr. Radcliffe was shot shortly after 9 p.m. on February 11, 1994, while in the midst of trying to buy drugs. He was found slumped in the front of his pickup truck, and the evidence indicates he died from a single gunshot from a .45 caliber weapon. There is no physical evidence linking petitioner to the murder or the crime scene. The murder weapon was never recovered. One of the few pieces of physical evidence from the crime scene, a jacket found inside the victim's truck, does not belong to petitioner, but to a man named Marciana. The State's case at trial against petitioner rested on the testimony of two eyewitnesses: Charlene Johnson and Beatrice Stokes. Since the time of trial one of the witnesses, Charlene Johnson, has recanted her testimony incourt. There is information that the second eyewitness, Ms. Stokes, also recanted her testimony in writing before an investigator for the defense and two witnesses. However, the letter was not notarized and is not properly before the court.

At issue now before the court is petitioner's claim that he received ineffective assistance of counsel when his trial attorney, Cherry Stokes, failed to argue the correct hearsay exception and as a result, essential exculpatory evidence was excluded from trial.² Specifically, a witness, Tracy Highsmith, claimed that her boyfriend had admitted to her that he was responsible for killing the victim. Ms. Highsmith claimed that on the night of the murder, her boyfriend, Damien Smith, left their home shortly before 9:00 p.m. She said that when he returned home several hours later he told her that he had gone across town. He said had seen a white man sitting in a truck and the man wanted to "buy some." Damien said he robbed and shot the man, but did not know if he killed the man. The next day when Tracy and Damien learned the man had died, Damien said he had killed the man and he kept saying he would kill himself before going to jail for killing a white man. About 26 or 27 days later, Damien committed suicide. Trial Tr. at 340-343. Defense counsel argued for admission of Damien's hearsay statements under the dying declaration and state of mind exceptions to the rule against hearsay evidence.³ The trial court sustained the State's objections to the admission of the hearsay under these exceptions and the defense was not allowed to offer Ms. Highsmith's exculpatory testimony to the jury. Id. at 357.

Petitioner argues that trial counsel was ineffective for failing to argue that Damien's hearsay statements should have been admitted under the statement against penal interest exception or to satisfy petitioner's due process rights.

A. Facts at Trial

As noted above, the State did not present any physical evidence linking petitioner to the murder, the victim, a murder weapon, or the crime scene. The State's case rested on the testimony of two eyewitnesses: Charlene Johnson and Beatrice Stokes. As was brought out at trial, both witnesses had credibility issues. Ms. Johnson, who was only fourteen at the time the murder occurred, was a troubled school dropout who hung out on the streets and sometimes dealt drugs. Id. at 39. She received $500 for the information she gave to police. Id. at 50, 67. Further, as was elicited during a post-conviction hearing, Charlene did not want to testify at trial. She had to be threatened with jail time and picked up by the police to secure her testimony at trial. Dec. 11, 1997 MAR Tr. at 9-12, 129-130. The second witness, Ms. Stokes, admitted that she was a regular crack user at the time and was doing drugs when she witnessed the murder. Trial Tr. at 218, 226, 254. She also admitted to having several prior petty convictions. Id. at 238.

Charlene Johnson testified that after 9:00 p.m. on February 11, 1994, she was walking on 6th Street in Greenville, North Carolina, and saw petitioner and a man named Mark Joyner standing next to a pickup truck talking to a white man. She said the white man asked for a "twenty," but when he did not have enough money to pay, petitioner told him he had to have the money "straight up" and shoved the white man. Charlene said the white man cursed petitioner, and petitioner shot him. She said petitioner and Joyner lifted the white man into the pickup truck and drove the truck into a nearby field. Trial Tr. 40-45. Johnson did not talk about what she had witnessed to anyone until approximately two months after the murder. Id. at 72, 78.

Beatrice Stokes testified that on the night and time in question she was walking near 6th Street. Id. at 219. She said she saw Petitioner Sharpe, Mark Joyner, a man named Marciana, and two others standing near a truck. Id. at 220. She heard an argument, then a gunshot, and noticed petitioner was holding a gun. Id. at 221, 234. During her testimony she said she knew petitioner because she used to buy drugs from him. Id. at 217-18.

According to their testimony, although both women witnessed the crime and immediately went to Hannah's store after the shooting, they said they did not see one another on the night of the murder. Id. at 45-46, 76-77, 235, 241-42.

The state also presented the testimony of Alonzo Vines. Mr. Vines testified that on the night of the murder he was at home and he heard a noise that sounded like a shot. As he was calling the police, he looked out the window and he said that he could see two or three people standing beside a truck. Id. at 93-95. He said he could not see faces, he could see the pants of the people. He said the truck was in his garden, and the driver side door of the truck was open. Id. at 94.

The victim was found by the police slumped over in the front of his truck in Mr. Vines' yard. The police also found a jacket inside the truck which they identified as belonging to a man known as Marciana.⁴ Id. at 121-122. According to the police, when Marciana was questioned about the jacket he explained that he had dealt with the victim in the past and was trying to help the victim find some powder cocaine. Marciana told the police that he got out of the victim's truck to find the drugs and a marked police car drove by. The victim panicked and fled from the area with Marciana's coat still inside. Marciana said this had happened approximately two hours before the shooting. Id. at 124.

At trial, petitioner offered an alibi defense. His aunt, Patricia Ann Ward, and her neighbor, Patricia Hicks, testified that petitioner was with them from approximately 8:15 to 9:45, and 10:30 to 11:30 the night of the murder. Petitioner was first at Ms. Ward's house, where he ate, and then went next door to Ms. Hicks' house. He left Ms. Hicks' house at 9:45, but returned later with his girlfriend. The defense also put on two witnesses to attack the general reliability and credibility of Beatrice Stokes as a witness. Angela Sutton testified that Stokes could not be trusted and was not honest. Id. at 331. Tracy Highsmith testified that Ms. Stokes could not be trusted and said she told a lot of lies. Id. at 337. Ms. Highsmith acknowledged she had been convicted of forgery in 1992 and that in the past she had been fired by the victim's mother-in-law. Id. at 335, 362-63.

The defense attempted to introduce Ms. Highsmith's testimony about incriminating statements her boyfriend, Damien Smith, made to her after Mr. Radcliffe was murdered. On voir dire, Ms. Highsmith testified about Damien's statements admitting his responsibility and that he said he would die before going to jail for killing a white man. Id. at 340-45. Defense counsel argued for admission of Damien's hearsay statements under only the dying declaration and state of mind exceptions to the rule against hearsay evidence. The trial court sustained the State's objections to the admission of the hearsay under these exceptions and the defense was not allowed to offer Ms. Highsmith's exculpatory testimony to the jury. Id. at 357.

B. Factual Developments after Trial

Within a month or two after trial, in 1995, Charlene Johnson recanted her testimony. She saw a woman who had been a paralegal on the defense team, Kay Lambert, at a restaurant. She approached Ms. Lambert and started talking to her. During one conversation she told Ms. Lambert that she had lied when she testified at trial. She said she had not been a witness to the murder. Dec. 11, 1997 MAR Tr. at 59. She explained that Detective Best had given her and her family gifts and money. Id. Employees of the police department confirmed that Charlene and her family received some money and...