Wilcoxson v State, 9804-CR-00134

• Citation: 22 S.W.3d 289
• Decision Date: 18 October 1999
• Docket Number: 9804-CR-00134
• Parties: BOBBY R. WILCOXSON, Appellant, vs. STATE OF TENNESSEE, Appellee. C.C.A.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE MARCH 1999 SESSION OPINION FILED:
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

BOBBY R. WILCOXSON, Appellant vs STATE OF TENNESSEE, Appellee

C.C.A. No. 03C01-9804-CR-00134

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

MARCH 1999 SESSION

OPINION FILED: October 18, 1999

HAMILTON COUNTY

Hon. William H. Inman, Senior Judge

(Post-Conviction)

On November 1, 1986, the petitioner, Bobby R. Wilcoxson, was convicted in the Hamilton County Criminal Court of first degree murder and, on February 13, 1987, was sentenced to death by electrocution. On direct appeal, the Tennessee Supreme Court affirmed the petitioner's conviction and death sentence. State v. Wilcoxson, 772 S.W.2d 33 (Tenn. 1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1798 (1990). The petitioner's counsel then filed a petition for post-conviction relief on June 14, 1990, which petition was amended on February 7, 1992, and on March 31, 1997.¹Following the parties' presentation of proof, the post-conviction court noted that Sup. Ct. Rule 28, 5 (E)(2) was not in effect when the instant petition was filed and concluded that the petition was properly filed and, additionally, that the petitioner was not competent to withdraw his petition. The State does not contest this determination on appeal. Following an evidentiary hearing, the post-conviction court denied the petitioner relief from his conviction, but reversed the petitioner's death sentence, finding that the petitioner had received ineffective assistance of counsel during the penalty phase of his trial. The State now concedes that the petitioner is entitled to a new sentencing hearing.² However, the petitioner appeals the post-conviction court's denial of relief from his conviction.

On appeal, the petitioner presents the following issues for our review:³

1.Whether petitioner's trial counsel rendered ineffective assistance during the guilt/innocence phase of his trial in failing to adequately investigate the petitioner's competence to stand trial and the feasibility of an insanity defense or a claim of diminished capacity.

2.Whether petitioner's trial counsel were also ineffective during the guilt/innocence phase for the following reasons:

a. Failure to request and obtain adequate expert and investigative assistance;

b. Failure to investigate and present all available evidence supporting the petitioner's claim of innocence;

c. Failure to rebut the State's case;

d. Failure to object during voir dire to the exclusion of jurors opposed to capital punishment;

e. Failure to exclude those jurors whose views would prevent or substantially impair the performance of their duties;

f. Failure to adequately advise the petitioner concerning the option of testifying during his trial;

g. Failure to object to the trial court's instruction to the jury on reasonable doubt;

h. Failure to allege ineffective assistance of counsel in the motion for new trial and on direct appeal;

I. Counsel's withdrawal from the petitioner's case during direct appellate proceedings.

3. Whether the petitioner was denied his constitutional right to a speedy trial.

4. Whether the petitioner was denied his statutory right to be tried within one hundred and fifty (150) days following his arraignment.

5. Whether the trial court erroneously excluded jurors due to their opposition to capital punishment.

6. Whether the trial court erred by instructing the jury concerning the offense of accessory before the fact, despite the omission of this offense from the indictment.

7. Whether the trial court's instructions to the jury were inaccurate and confusing and thereby misled the jury.

8. Whether the trial court improperly denied the petitioner's pretrial and post trial motions, including the petitioner's motion for a speedy trial, motions for exclusion of evidence, and motion for new trial.

Following a thorough review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

For Appellant:

James E. Brenner, Clark Hill P.L.C., 500 Woodward Avenue, Suite 3500, Detroit, Michigan 48226-3435

William C. Carriger, Strang, Fletcher, Carriger, Walker, Hodge & Smith, 400 Krystal Building, One Union Square, Chattanooga, Tennessee 37402

For Appellee:

John Knox Walkup, Attorney General and Reporter, 425 Fifth Avenue North, Nashville, TN 37243-0493

Kenneth W. Rucker, Assistant Attorney General, Criminal Justice Division, 425 Fifth Avenue North, Nashville, TN 37243-0493

AFFIRMED

NORMA MCGEE OGLE, JUDGE

OPINION

I. Factual Background

A.Trial Proceedings

The petitioner's conviction resulted from the contractual killing of Robert Mosher in 1982. At the time of his death, Mr. Mosher lived in Signal Mountain, Tennessee, with his wife and daughter and was a chemical engineer with the DuPont Company. On October 23, 1982, his body was discovered in the garage of his home. A piece of plastic had been forced, possibly with a broom handle, eight to ten inches down Mr. Mosher's throat, causing trauma to his pharynx, larynx, and vocal chords and causing his death by suffocation. Mr. Mosher additionally suffered lacerations on his forehead, around his mouth, on his upper left arm, and on his back. Mr. Mosher's assailants ransacked his home, but apparently did not steal any property from the home.

Following Mr. Mosher's murder, police investigators were unable to locate any evidence concerning the identity of the perpetrator or perpetrators of the murder. In fact, Mr. Mosher's wife, Evelyn Mosher, refused to speak with the police following initial interviews. However, in 1985, Mr. James Lewis, a convicted murderer and thief on parole from a federal penitentiary, approached the police with information concerning Mr. Mosher's murder. Mr. Lewis believed that the United States Parole Commission would soon revoke his parole and offered his assistance in return for favorable recommendations to the Parole Commission. Also in 1985, pursuant to a search warrant obtained while investigating drug activities by Mrs. Mosher, the police acquired Mrs. Mosher's address book. The address book contained the telephone numbers of the petitioner and his brother, "Cole" or "Green Eyes."

On December 19, 1985, a Hamilton County Grand Jury indicted the petitioner for the premeditated first degree murder of Robert Mosher. The petitioner's trial commenced on October 28, 1986. The State's evidence revealed that, prior to Mr. Mosher's murder, the Moshers began to experience marital difficulties when Evelyn Mosher began using and selling drugs in their Signal Mountain home. The State's evidence further revealed that, in connection with her illicit drug trafficking, Mrs. Mosher met Mr. Lewis and, on several occasions, attempted to hire him to kill her husband. Mr. Lewis declined the offer.⁴

In early 1982, the petitioner was released on parole from the federal penitentiary in Leavenworth, Kansas. The petitioner was to serve his parole in the Chattanooga area of Tennessee and spoke with Mr. Lewis, who was a prior acquaintance. Mr. Lewis suggested that the petitioner contact Evelyn Mosher. However, he warned the petitioner that Mrs. Mosher might attempt to hire him to kill her husband. The petitioner responded, "I don't know about that, but if she hires me, she'll get the meanest son-of-a-bitch she's ever seen in her life."

The State argued at trial that Evelyn Mosher did, in fact, hire the petitioner and his brother, "Green Eyes," to murder her husband and also asked that her husband's death appear to be accidental in order to increase any insurance proceeds. The State also asserted that the Wilcoxsons accepted the contract to kill Mr. Mosher. Specifically, the State posited that, on October 23, 1982, the Wilcoxsons attempted to kill Mr. Mosher by pushing him from a ladder, later found leaning against the sink in the kitchen of the Mosher home. However, Mr. Mosher struggled, and the Wilcoxsons beat and suffocated him instead. They then ransacked Mr. Mosher's home in order to create the impression that Mr. Mosher had been attacked by burglars. As a result of her husband's murder, Mrs. Mosher received two hundred and nine thousand and two hundred and seventy dollars and eighty cents ($209,270.80) in insurance proceeds.

The State's key evidence at trial was a conversation between the petitioner, Mr. Lewis, and Eddie Cooper, an undercover police officer, which occurred on December 14, 1985, and was recorded by the police. During this conversation, Mr. Lewis sought to hire the petitioner to commit a murder in Atlanta, Georgia. While discussing payment arrangements for the proposed murder, the petitioner also discussed Mrs. Mosher's failure to pay him pursuant to a prior contract. When asked why he had agreed to "kill her old man" without demanding payment in advance, the petitioner replied, "Well, I - - it's a fluked up deal." He indicated that Mrs. Mosher had only paid "expenses coming in." The petitioner denied "bugging" Mrs. Mosher about the money. He stated, "I've asked her about it, but there's a difference between asking and bugging."

Mr. Lewis indicated to the petitioner that he felt responsible for the "fluked up deal" because he had introduced the petitioner to Mrs. Mosher. He offered to pay the petitioner an additional amount of money for the current contract in order to compensate him for the Mosher murder. During the conversation, the petitioner remarked, "Well, if you could just spare some cash on it, fine. Because I owe the other boy . . . . I'll pay the other boy his half of that one on Evelyn [Mosher] and I'll just forget mine."

The petitioner subsequently suggested that "the other boy" is his brother, "Green Eyes." Moreover, during the conversation, the petitioner recounted details of the Mosher murder to Mr. Lewis:

[Evelyn] said that it would be so and so and so and so, and when the man went down to hit him, the man stepped off the ladder, and you have to have the weight of his body falling to break his neck. . . . And then he put up a goddamn . . . struggle, and . . . he said that he...