Smith v State
| Decision Date | 02 September 1999 |
| Docket Number | 9708-CR-00342 |
| Parties | MARISE E. SMITH, Appellant, VS. STATE OF TENNESSEE, Appellee. C.C.A. NO. 01C01-9708-IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Court of Criminal Appeals |
DAVIDSON COUNTY
(Post-Conviction Relief)
The petitioner, Marise E. Smith, appeals the order of the Davidson County Criminal Court denying his petition for post-conviction relief. The petitioner was convicted in 1993 of one (1) count of aggravated burglary, two (2) counts of attempted rape, one (1) count of aggravated rape and one (1) count of harassment. He received an effective sentence of thirty-nine (39) years, eleven (11) months and twenty-nine (29) days for the offenses. In 1996, the petitioner filed the present petition alleging numerous constitutional issues. After an evidentiary hearing, the trial court denied the petition. On appeal, the petitioner raises the following issues for our review:
(1) whether the trial court erred in failing to grant the petition due to the state's failure to respond to the allegations in the petition;
(2) whether the trial court erred in refusing to allow the petitioner to call an assistant district attorney as a witness at the post-conviction hearing;
(3) whether double jeopardy precludes the petitioner's convictions for two (2) counts of attempted rape and one (1) count of aggravated rape;
(4) whether the indictment in this case was fatally deficient for failing to allege the requisite mens rea;
(5) whether the petitioner was denied the effective assistance of trial and appellate counsel; and
(6) whether the reasonable doubt jury instruction at the petitioner's trial was unconstitutional.
After a thorough review of the record before this Court, we find no reversible error. Therefore, we affirm the judgment of the trial court.
JOHN KNOX WALKUP, Attorney General and Reporter, KIM R. HELPER, Assistant Attorney General, 425 Fifth Avenue North, Nashville, TN 37243-0493
VICTOR S. JOHNSON, District Attorney General, MARY HAUSMAN, Assistant District Attorney, Washington Square, Ste. 500, Nashville, TN 37201-1649
AFFIRMED
The petitioner was convicted in 1993 of one (1) count of aggravated burglary, two (2) counts of attempted rape, one (1) count of aggravated rape and one (1) count of harassment. This Court affirmed the petitioner's convictions on direct appeal. State v. Smith, 891 S.W.2d 922 (Tenn. Crim. App. 1994). The Tennessee Supreme Court denied permission to appeal on October 3, 1994. To place this case in perspective we will recite the facts at trial as set out by this Court on direct appeal.
During the early morning hours of April 9, 1992, the appellant entered the residence of the victim through a dining room window. He removed his pants in the hallway and entered the victim's bedroom. The victim was awakened when she heard the bedroom floor "creak." As she turned to look, she saw the figure of a person crouching next to her bed. The appellant immediately pinned the victim to the bed. He had a cord in his hand. The victim could not determine if the cord was made of rope or leather. The appellant attempted to penetrate the victim's vagina, but his reproductive organ was not sufficiently erect. After masturbating and obtaining an erection, he began to penetrate the victim's anus. The victim asked the appellant not to penetrate her anus. When she realized that she could not resist the appellant, and the appellant may kill her if she did not submit, the victim asked the appellant to penetrate her vagina. The appellant obliged the [victim] and engaged in vaginal intercourse with the victim.
The victim subsequently engaged the appellant in conversation. The appellant told the victim that he had a hard time finding girlfriends. He also told her that he had taken a course in love psychology. Later, the appellant exited the residence through the open dining room window.
A nurse practitioner examined the victim on the date in question. The findings of the nurse practitioner were consistent with vaginal penetration. A forensic analysis of the vaginal swabs prepared by the nurse practitioner and the victim's panties revealed the presence of sperm. In addition, the police found that the fingerprints lifted from the dining room window matched the appellant's fingerprints.
The appellant made several telephone calls to the victim's residence. The numbers were recorded on a caller identification device that the victim had installed. The appellant's voice was recorded on a tape contained in the victim's answering machine. The victim identified the voice as the person who had raped her. She stated the appellant had a Florida accent.
The telephone numbers recorded on the victim's caller identification device were listed to an automobile dealership in Franklin, Tennessee. The investigating officers took the answering machine tape to the automobile dealership where the general manager listened to the tape. The general manager identified the voice as that of the appellant, an employee of the dealership. The officers obtained a copy of the appellant's employment records. The records revealed that the appellant had resided in Florida and had taken courses in psychology.
The appellant testified that he had consensual vaginal intercourse with the victim after meeting her in a local bar. After leaving the victim's residence on the morning in question, he discovered that he had left his keys inside the [victim's] residence. When the victim did not answer the door, he went to the dining room window, stood on a gas meter, and tapped on the window. According to the appellant, the victim responded, opened the front door, and he obtained his keys. He could not explain why the victim claimed that she was raped. The appellant opined that the victim was angry because he would not spend the remainder of the night with her. He explained the telephone calls as an attempt to fulfill a promise to call the victim. When the victim did not answer the telephone, he continued to call in an effort to contact her.
The petitioner testified that his trial counsel was ineffective because counsel failed to object to various state witnesses' testimony and failed to investigate the crime scene thoroughly. He stated that the assistant district attorneys repeatedly committed prosecutorial misconduct by misstating the evidence in closing and rebuttal arguments. The petitioner also believed that the state committed prosecutorial misconduct when it issued a superseding indictment charging additional offenses after he refused to accept a plea bargain offered by the state. Petitioner questioned the legality of the attempt convictions and stated that trial counsel was ineffective for failing to challenge such convictions.
Paul Newman of the Public Defender's Office represented the petitioner at trial. He had worked for the Public Defender's officer for approximately eight (8) years at the time of the petitioner's trial. Newman testified that he met with the petitioner several times prior to trial, and he and his staff conducted "extensive pretrial preparation." As part of his investigation, he went to the crime scene and made photographs of the victim's home. Although he did not take pictures of the inside of the victim's home, he did not think it was important to take such photographs. He attempted to locate potential defense witnesses and interviewed all witnesses provided by the petitioner. He could not recall whether he interviewed all of the state's witnesses.
With regard to the petitioner's assertion that his convictions for attempted rape were barred by double jeopardy, Newman testified that he and appellate counsel, Jeffrey DeVasher, researched and discussed the issue. However, he believed that the double jeopardy claim was not a viable issue to raise at the trial level or on appeal.
Newman could not specifically recall any plea bargain discussions with the state in this case, but did not believe that the superseding indictment was the result of prosecutorial vindictiveness. In addition, Newman stated that he did not view the state's closing argument as prosecutorial misconduct and, therefore, did not object.
The petitioner attempted to call Assistant District Attorney Mary Hausman as a witness to testify regarding his claims of prosecutorial misconduct. However, the trial court refused to exclude Hausman from the courtroom under the rule of sequestration because she was representing the state in the post-conviction matter. The trial court then postponed Hausman's testimony until another attorney could be prepared to represent the state but subsequently made its ruling without Hausman's testimony.
The trial court found that trial counsel spent an "enormous amount of time on this case." The court found that Newman investigated the case and researched the issues thoroughly. The trial court noted that counsel "thought of every conceivable objection and issue that should've been taken up." Therefore, the trial court found that trial counsel met the competency standards required of criminal defense attorneys and denied the petitioner's claim of ineffective assistance of counsel. Furthermore, the trial court determined that the separate convictions for two (2) counts of attempted rape and one (1) count of aggravated rape did not violate the petitioner's double jeopardy rights, the reasonable doubt instruction charged to the jury was constitutional, and the indictments were not fatally deficient for failing to allege the requisite mens era. Accordingly, the trial court denied the petition for...
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