Steven D. King v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 9, 2002

STEVEN D. KING v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-19661 Arthur T. Bennett, Judge

No. W2001-01382-CCA-R3-PC - Filed December 30, 2002

The petitioner, Steven D. King, appeals the denial of his petition for post-conviction relief from his

convictions of felony murder, especially aggravated kidnapping, and especially aggravated robbery.

Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Addie M. Burks, Memphis, Tennessee, for the appellant, Steven D. King.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Alonda Horne Dwyer, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In 1995, the petitioner, was convicted by a jury in the Shelby County Criminal Court

of felony murder, especially aggravated kidnapping, and especially aggravated robbery. In our

opinion on direct appeal, this court set out the following facts underlying the convictions:

On June 8, 1992, at approximately 6:00 P.M., the Memphis Police

Department was notified of the disappearance of the 65-year-old

victim, Mary Cuches, who was last seen a few hours earlier driving

a blue 1984 Buick LaSabre. Within minutes, Officer Emmett Ward

found the car and four occupants at a shopping mall. The driver of the

vehicle sped away before eventually stopping in a church parking lot.

Two black male occupants fled, leaving two young females in the

backseat of the stolen vehicle.

Earlier that afternoon, between 3:30 and 4:00 P.M., sisters Nakisisa

and Tametrice Brown saw the [petitioner] and two of his companions

outside their apartment building; he explained that he was driving his

aunt's car. His companions, Tyrone James and Greg Jackson, left for

fifteen or twenty minutes and then returned for the [petitioner]. About

one and one-half hours later, the [petitioner] and James returned and

invited the sisters to join them at a McDonald's Restaurant. From

there, they went to the mall where they were discovered by the police.

At trial, Nakisisa Brown testified that she had seen the [petitioner]

hand Jackson a pistol before Jackson left with James; when he got

back, Jackson returned it to the [petitioner] who then took it to a

neighbor's house. Ms. Brown recalled that she thought the [petitioner]

was joking when he said “there was a dead woman in the back of the

trunk.”

When he learned the next morning from his mother that he was

wanted by police, the [petitioner], age seventeen, contacted

authorities. During an hour of questioning, he signed a statement

acknowledging that he, Jackson, and James saw the victim in the

Kroger parking lot, put her in the trunk, and stole her car. The

[petitioner] confessed that he shot the victim with a .22 caliber

revolver when, about thirty minutes after her abduction, the victim

banged noisily on the trunk of her car. The [petitioner] told officers

that Jones and Jackson disposed of the body “in the woods.”

The victim, found in a heavily wooded area, had been shot in the neck

and behind the right ear. A pathologist determined that either of the

wounds could have been fatal. There were bloodstains in the trunk of

her car.

The police located the pistol, serial number 44446; it contained six

live rounds and one spent round. Expert testimony established that

one of two bullets taken from the body was fired from this .22 pistol.

The other bullet had too much damage for an accurate assessment.

When called as a defense witness, James invoked his right to remain

silent. The [petitioner] did not testify.

State v. Steven D. King, No. 02C01-9509-CR-00280, 1997 Tenn. Crim. App. LEXIS 95, at **2-4

(Jackson, Feb. 4, 1997).

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The petitioner was sentenced to life in prison for the felony murder conviction,

twenty-five years incarceration for the especially aggravated kidnapping conviction, and twenty-three

years for the especially aggravated robbery conviction. The trial court ordered that the sentences for

the especially aggravated kidnapping conviction and the especially aggravated robbery conviction

were to be served concurrently, but consecutively to the sentence for the murder conviction. The

petitioner’s convictions were affirmed by this court on February 4, 1997. Id. The petitioner did not

file an application for permission to appeal to the supreme court.

On March 3, 1998, the petitioner filed a petition for post-conviction relief, alleging

ineffective assistance of counsel. In support of his claim, the petitioner alleged numerous grounds

for relief. On March 17, 1998, the post-conviction court entered an order dismissing the petition,

concluding that the petition was not timely filed. Subsequently, the petitioner filed a motion to

reopen his petition, asserting that his petition had been given to prison authorities for mailing on

January 28, 1998, and was therefore timely filed. The post-conviction court appointed counsel for

the petitioner and an evidentiary hearing was held on February 2, 2001.

The petitioner asserted in his petition that trial counsel had provided ineffective

assistance of counsel by, inter alia, presenting inarticulate and obtuse opening and closing

statements; failing to properly cross-examine witnesses; failing to disclose relevant evidence;

allowing false and misleading evidence to be presented to the jury; improperly investigating the case;

limiting the petitioner’s input on the proceedings; failing to object to the authenticity of evidence;

making incorrect and inflammatory statements to the jury; failing to interview and subpoena

witnesses; inadequately preparing and using pretrial discovery; and failing to impeach key witnesses.

The petitioner also alleged that trial counsel subjected petitioner to “coercion, threats, conjecture,

intimidation and manipulation.”

The petitioner testified at the post-conviction hearing that he provided counsel with

the names, addresses, and telephone numbers of witnesses who would testify at trial. The petitioner

also asked counsel to contact his mother, Barbara Jones, and his sister, Chakita Jones. According

to the petitioner, counsel promised to speak with them and also promised to subpoena witnesses.

On the day of trial, “[t]hey were sitting there, but they didn’t testify.” The petitioner also claimed

that counsel assured him that he had spoken with his family. However, when the petitioner spoke

with his family, “they haven’t heard from him.”

The petitioner asserted that counsel failed to visit him in jail, estimating that he saw

counsel only four or five times while he was in jail awaiting trial. He acknowledged that counsel

visited on the day before each court hearing. The petitioner also complained that he and counsel

“wasn’t getting along. We wasn’t communicating right. And the things that I was asking for him

to say to the witness . . . he weren’t saying them. The things I was asking him to do, he wasn’t

doing.” Specifically, the petitioner noted that he needed his mother to testify that when he was

arrested she was not notified. The petitioner was a minor at the time of his arrest. His sister would

also have testified regarding his mother’s lack of notice.

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The petitioner alleged that trial counsel prevented him from testifying at trial. He

complained that trial counsel told him he should not testify and he was not aware that he had a

choice. According to the petitioner, “[counsel] is the one that was calling the shots.” The petitioner

believed that his testimony would have been beneficial. The petitioner conceded that at trial he

advised the trial court that he did not want to testify and that he had not been threatened or

intimidated.

The petitioner further asserted that trial counsel made numerous errors during trial.

He contended that during opening and closing arguments, trial counsel allowed the District Attorney

“to say some things that was really missing, misconduct for a courtroom.” Specifically, the

petitioner objected to the District Attorney’s statement in his closing argument that “there is a

Stephen King that writes scary movies but this is the Steven King that make[s] them.” Moreover,

trial counsel failed to object to the statement. However, the petitioner was unable to relate other

specific concerns, explaining, “I never got a chance to see [a] transcript on the opening and closing

statement because [trial counsel] didn’t order them.”

Additionally, the petitioner maintained that trial counsel’s argument regarding the

murder weapon was ineffective. Prior to trial, the gun used to kill the victim was mistakenly

destroyed by the police department. Although the petitioner acknowledged that trial counsel raised

the issue in pretrial motions, the petitioner contended that counsel “could have argued that issue

better than what he done. Because what he was telling me before we went to court, every day before

we go to court was a different thing from what he was saying to the judge.”

Next, the petitioner alleged that trial counsel did not properly cross-examine

numerous witnesses. The petitioner recalled that during trial he took notes and passed his questions

or concerns to trial counsel. However, counsel failed to respond. Specifically, the petitioner noted

his concerns regarding trial counsel’s cross-examination of Narkeshia Brown.1 The petitioner related

that, “I needed him to ask her about like the statement that she made. I say, she seen me in a car or

seen me give someone a gun. And I asked him to ask her about the questions but he didn’t.” The

petitioner was also concerned with counsel’s cross-examination regarding the disappearance of the

murder weapon.

The petitioner further contended that trial counsel failed to disclose relevant evidence,

including the results of fingerprint and gunpowder residue tests. Additionally, he alleged that trial

counsel failed to prepare and properly use pretrial discovery. On cross-examination, the petitioner

conceded that trial counsel provided copies of discovery, a copy of his confession, and a copy of the

trial transcript.

Finally, the petitioner alleged that trial counsel subjected him to “coercion, threats,

conjecture, intimidation and manipulation.” However, the petitioner was unable to recall specific

1

The trial transcript reflects that the first name of this witness is “Nakisisa.” However, the record is clear that

Nakisisa and Narkeshia Bro wn are the sam e individual.

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details of such conduct. Describing how trial counsel’s actions were coercive or manipulative, the

petitioner testified, “Because he knew I didn’t – he knew that I didn’t understand what was going

on, but yet, still, he kept telling me everything was all right. He knew it wasn’t. He kept misleading

me, telling me what I should do.” The petitioner also complained that trial counsel was

unresponsive, “And then when I call him or try to talk to him, he’s saying hold on, like he didn’t

even want to talk to me, like he just constantly pushing me off.”

At the conclusion of the petitioner’s testimony, post-conviction counsel advised the

court that the petitioner had “indicat[ed]” to her that Beverly Reed and Chakita Jones were present

and willing to testify that they had attempted to call trial counsel to “inquire about the case.”

Additionally, Jones would testify that “she was aware when the [petitioner] was arrested. And that

they were not present or they were not called when the [petitioner’s] statement was taken and no

family members were notified with regard to the statement.” The post-conviction court noted that

the issue regarding the suppression of the petitioner’s statement had been addressed by the trial court

in pretrial motions and had also been addressed in the petitioner’s direct appeal; therefore, the issue

was moot.

Trial counsel testified that he had practiced law since 1980 and had represented

defendants in approximately thirty-five to fifty murder cases. He was appointed to represent the

petitioner in September 1993. He filed a motion to suppress the petitioner’s statement to police on

the basis that the petitioner, who was a minor at the time of his arrest, did not have a parent or

guardian present with him at the time he gave his statement at juvenile court. He recalled that there

was a “highly contested” and lengthy hearing on the motion. Trial counsel specifically recalled

speaking with the petitioner’s mother; however, he described their contact as sporadic. He was

aware that the petitioner’s mother was not present when the statement was given. Nonetheless, he

noted that the trial court determined that because of the petitioner’s lengthy juvenile record, the

petitioner was aware of his rights and the presence of a parent or guardian was unnecessary. The

issue was also addressed in the petitioner’s direct appeal.

Trial counsel testified that he advised the petitioner of his right to testify. He recalled

that the petitioner was asked on the record if he understood that he had a right to testify and that

“nobody can take that right away from him, not even myself.”

Trial counsel testified that the issue of the missing gun was raised at trial and on

appeal. He also reviewed the discovery materials with the petitioner and in response to a request

from the petitioner subpoenaed a co-defendant to testify at trial. He denied that the petitioner had

asked him to subpoena other witnesses.

On cross-examination, trial counsel estimated that he visited the petitioner

approximately ten to fifteen times while the petitioner was in custody. The petitioner never

expressed to him concerns about his representation or asked him to contact other witnesses. Trial

counsel recalled speaking with Chamika Brown who gave a statement to police implicating the

petitioner and two co-defendants. Trial counsel stated that he spoke with the petitioner’s mother and

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noted that she was present during part of the trial. He explained that the petitioner’s mother had no

relevant information regarding the robbery, kidnapping, or murder. Her testimony was only relevant

to the suppression issue which had been determined prior to trial.

Contrary to the petitioner’s assertion that trial counsel prevented him from testifying,

trial counsel asserted that the petitioner never indicated that he wanted to testify. Counsel stated that

he discussed the issue with the petitioner and the “ultimate decision” was the petitioner’s. Trial

counsel testified that the petitioner never expressed dissatisfaction with his representation.

II. Analysis

In a post-conviction proceeding, the petitioner bears the burden of proving the

grounds raised in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f)

(1997). “Evidence is clear and convincing when there is no serious or substantial doubt about the

correctness of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245

(Tenn. Crim. App. 1998). On appeal, a claim of ineffective assistance of counsel presents a mixed

question of law and fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

As such, the post-conviction court’s findings of fact are entitled to a presumption of correctness

unless the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn.

2001). The credibility of the witnesses and the weight and value to be afforded their testimony are

questions to be resolved by the post-conviction court and, on appeal, the burden is on the petitioner

to prove that the evidence preponderates against the post-conviction court’s findings. Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997). However, a post-conviction court’s conclusions of law,

such as whether counsel’s performance was deficient or whether that deficiency was prejudicial, are

subject to a purely de novo review with no presumption of correctness. Fields, 40 S.W.3d at 458.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient

and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To establish prejudice, the petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

[b]ecause a petitioner must establish both prongs of the test, a failure

to prove either deficiency or prejudice provides a sufficient basis to

deny relief on the ineffective assistance claim. Indeed, a court need

not address the components in any particular order or even address

both if the [petitioner] makes an insufficient showing of one

component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

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The petitioner contends that the post-conviction court erred in finding that he received

effective assistance of counsel. We disagree. The post-conviction court noted that the issues

regarding suppression of the petitioner’s statement and the absence of the murder weapon had been

addressed in the petitioner’s direct appeal and were moot. Our review of the petitioner’s direct

appeal confirms the findings of the post-conviction court. On appeal, this court addressed the issue

of the admission of the petitioner’s statement, specifically acknowledging that the petitioner’s

mother was not present when his statement was given. However, this court concluded that

considering the totality of the circumstances, the petitioner’s confession was the result of a knowing

and intelligent waiver of his constitutional rights.

With regard to the petitioner’s allegations that trial counsel failed to contact or

subpoena witnesses, the post-conviction court noted the testimony of trial counsel that he spoke with

the petitioner’s mother several times. Counsel explained that he chose not to have her testify

because she had no relevant evidence regarding the offenses and would not be helpful. Additionally,

counsel testified that the only witness petitioner asked him to subpoena was a co-defendant.

Although counsel subpoenaed the co-defendant, he asserted his Fifth Amendment privilege and

refused to testify.

As to the petitioner’s claim that counsel prevented him from testifying at trial, the

post-conviction court found that trial counsel advised the petitioner of the consequences of testifying

but left the ultimate decision to the petitioner. Moreover, counsel conducted a voir dire outside the

presence of the jury to determine if the petitioner was aware of his right to testify. The petitioner

assured the trial court that he did not want to testify.

Additionally, the post-conviction court concluded that although the petitioner claimed

that trial counsel’s opening and closing arguments were improper, the petitioner was unable to

support his claim. Likewise, the post-conviction court found that the petitioner’s claims that trial

counsel limited his input on trial proceedings and failed to disclose relevant evidence were

unfounded.

In addressing the petitioner’s claim that he was coerced, intimidated, threatened, and

manipulated by trial counsel, the post-conviction court noted that the petitioner admitted that counsel

had not made any threats against him. Additionally, the petitioner was unable to testify as to any

specific actions of counsel which would support his claim.

The post-conviction court chose to accredit the testimony of trial counsel, finding that

the petitioner failed to meet his burden of proving his claim by clear and convincing evidence and

that the petitioner’s allegations were without merit. The evidence does not preponderate against the

findings of the trial court. The petitioner has not shown that counsel was ineffective. Moreover, the

petitioner has failed to show that he was prejudiced by counsel’s actions.

III. Conclusion

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In summary, we conclude that the post-conviction court did not err in finding that the

petitioner received effective assistance of counsel. Accordingly, we affirm the judgment of the post-

conviction court.

___________________________________

NORMA McGEE OGLE, JUDGE

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