Reggie Carnell James v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 9, 2016 at Nashville

REGGIE CARNELL JAMES v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-10-126 Donald H. Allen, Judge

No. W2015-01640-CCA-R3-PC - Filed March 16, 2016

The petitioner, Reggie Carnell James, was convicted in 2007 of first degree murder and

tampering with evidence. He was sentenced to life with the possibility of parole for the

murder conviction and ten years for the tampering with evidence conviction, with the

sentences to be served consecutively. This court affirmed his convictions on direct

appeal. State v. Reggie Carnell James, No. W2007-00775-CCA-R3-CD, 2009 WL

636726, at *1 (Tenn. Crim. App. Mar. 10, 2009), perm. app. denied (Tenn. Aug. 17,

2009). In April 2010, he filed a petition for post-conviction relief, arguing that trial

counsel had been ineffective for not filing a motion to suppress a statement the petitioner

had made to police officers. Following a hearing on April 11, 2011, the post-conviction

court entered an order on January 31, 2012, denying the petition. The notice of appeal

for this decision was not filed until August 27, 2015. The State argues on appeal that the

notice of appeal was untimely and that, as a result, the appeal should be dismissed. We

conclude that the interest of justice does not require our waiving the late filing of the

notice of appeal and, therefore, dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Reggie Carnell James.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A.

Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

In the opinion of this court affirming the judgments is set out the facts which

provided the bases for the petitioner‟s convictions:

At trial, Roy Lee Clark testified that one evening in May 2005, he

arrived at the defendant‟s house. After a while, Clark left the house and

went to a gas station; upon his return, Clark saw that two other men, Roy

Gardner and Raymond Thomas (the victim in this case), had arrived. Clark

said that he, the defendant, Gardner, and the victim spent fifteen to twenty

minutes using cocaine before going outside. Clark said that once outside,

the victim spent “about thirty minutes” tilling in the defendant‟s flower bed

before the four men went back inside to use more cocaine. During this

time, Clark and the victim sat on a loveseat in the defendant‟s living room,

with the defendant walking back and forth in front of them with a pistol in

his hand. Clark said that none of the other three men had a weapon at the

time of this incident. After a while, Clark heard a gunshot and then heard

the victim “hollering” and asking the defendant why he had shot him.

According to Clark, the defendant did not reply to the victim‟s question.

Clark said that he did not see any blood during this incident. At some point

after the shooting, the victim slumped over, with his knees on the floor and

his upper body on the couch.

Clark testified that after the shooting, he ran to the door in an

attempt to leave and get help for the victim, who Clark said was still alive

at this point, but that the defendant stood in the doorway and refused to let

him take the victim to the hospital. The three men then went outside.

According to Clark, the defendant said that “he had to finish what he had

started,” and that he “wasn‟t gonna . . . let [the victim] live.” At that point,

the defendant returned inside while Clark and Gardner remained outside.

Clark then heard a gunshot, after which the defendant told the other two

men to come inside. They did, and upon entering the living room Clark

saw the victim with a gunshot wound “[b]etween his shoulder and his head,

by his head.” Clark said that at this point, the defendant still had a pistol in

his hand. Clark said that the evening after the shooting, he and Gardner

were at Gardner‟s house when the defendant arrived. Clark asked the

defendant about the victim, and the defendant replied that the victim “was

still on the couch.”

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Clark acknowledged that he was serving a sentence for aggravated

assault and that he had three prior convictions for theft of property and

convictions for evading arrest and attempted aggravated robbery. On cross-

examination, Clark said that because of his daily cocaine use, he was

unable to remember the exact date or day of the week on which this

incident occurred, although he did remember that the incident occurred in

the afternoon. He also said that he was unsure of the date, or even the

month, on which this trial was occurring. Clark admitted that he did not see

the defendant shoot the victim and that the defendant did not point a gun at

him or Gardner. Clark also admitted that he did not hear the defendant

threaten him during the incident. Clark said that Gardner later told him that

the defendant had threatened Clark‟s life, but he also admitted that Gardner

was a convicted felon. He denied that he, Gardner, and the victim entered

into a plot to rob the defendant. He said that when he, Gardner, and the

defendant went outside after the shooting, he and Gardner played basketball

to avoid arousing the suspicion of the neighbors, who were in the yard next

door.

The substance of Roy Gardner‟s testimony matched much of that

provided by Clark. Gardner said that when the defendant shot the victim,

he was sitting on a chair next to the loveseat on which the victim and Clark

were sitting. Gardner saw the defendant pacing in front of the loveseat,

pistol in hand, before he saw the defendant shoot the victim “in his upper

body.” Gardner asked the defendant to take the victim to the hospital, but

the defendant refused. The men then went outside, with the defendant

telling Gardner that “if anything was said . . . we would be next.” After the

men went outside, the defendant told the other men that “he might as well

go in there and finish it,” at which point the defendant returned inside.

Gardner then heard a gunshot.

After the shooting, Gardner and the defendant left in the victim‟s

pickup truck. After visiting a store, they returned to the defendant‟s house,

with Gardner dropping off the defendant and then driving away. Gardner

drove the victim‟s truck to a remote area about a mile from his house,

abandoned the truck, and ran home. Gardner said that he did not see the

defendant after this incident.

Gardner acknowledged that he was in federal custody for a weapons

offense and that he had prior state convictions for criminal impersonation

and theft. On cross-examination, Gardner said that he could not remember

the exact date on which these events occurred, other than the shooting

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happened on a May afternoon. He recalled that he and the other men

“smoked a lot” that day. He recalled seeing blood on the loveseat, but he

was unsure whether the victim was alive or dead when they left the

defendant‟s house the first time. Unlike Clark, Gardner said that he did not

see anyone standing in the yard next door. He also had no independent

knowledge of what happened to the victim‟s truck after he abandoned it,

although he later learned that it was found burned.

Regarding the police investigation, Deputy David Travis of the

Madison County Sheriff‟s Department testified that on May 26, 2005, he

discovered a burned-out vehicle in a field in a rural part of Madison

County. Deputy Travis said he was unable to find the vehicle‟s license

plate or its Vehicle Identification Number (VIN), but he did find a vanity

license plate which read “Popeye” on the ground in front of the vehicle.

Agent Jim Medlin with the Tennessee Highway Patrol (THP) said he

inspected the vehicle, which he described as a “Chevrolet or GMC truck,”

at an impound lot after it had been towed from the field. Agent Medlin was

able to find the vehicle‟s VIN, and after searching vehicle records, he

learned that the truck was a white 2001 Chevrolet Silverado registered to

the victim and his mother, Pat Thomas.

Lieutenant Anthony Heavner with the Madison County Police

Department testified that he originally became involved in this case when

the victim‟s burned pickup truck was recovered in rural Madison County,

near the Haywood County line. Ultimately, the nature of the case turned

from a “burned vehicle” case to a missing person case. Through his

investigation, Lieutenant Heavner learned from the victim‟s wife that the

victim had been at his house on May 18, 2005, and he also learned that

when the victim‟s vehicle was recovered May 26, nobody had reported the

vehicle stolen. Lieutenant Heavner provided the victim‟s name and

identifying information for the National Crime Information Center (NCIC)

database, and he also notified the National Center for Missing and

Exploited Persons about the victim‟s disappearance. Lieutenant Heavner

said that as of the trial date, neither the NCIC nor the Center for Missing

and Exploited Persons received any information regarding the victim.

Lieutenant Heavner said that he first investigated the defendant after

the victim‟s wife, who knew that the victim and the defendant “hung out”

and used drugs together, informed the police that the defendant had visited

her house. Thus, on June 3, 2005, Lieutenant Heavner visited the defendant

at his home in Jackson. The defendant told Lieutenant Heavner that he had

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not seen the victim. On July 1, Lieutenant Heavner returned to the

defendant‟s home after the sheriff‟s department received an anonymous call

in which the caller said that the victim‟s blood could be found in the

defendant‟s home. After Lieutenant Heavner informed the defendant of

this development, the defendant gave police permission to search his house.

The defendant told the officers that he was in the process of moving and

that there would be little furniture in the house. Once Lieutenant Heavner

entered the living room, he saw a spot in the carpet, a spot “larger than a

basketball,” that appeared to be stained. Lieutenant Heavner initially

believed the spot was blood, but when he looked at the spot more closely he

saw that the spot “looked like it was full of some type of soapy material.”

In fact, Lieutenant Heavner later found a bottle of Resolve brand carpet

cleaner in the house. He asked the defendant about the spot; the defendant

replied that his dogs “might have brought something into the house, some

type of animal or something.” Before leaving the defendant‟s house, the

lieutenant cut out the section of stained carpet, and the underlying carpet

pad, and he took a written statement from the defendant in which he denied

any knowledge of the victim‟s disappearance and said that he had taken the

couch to his aunt‟s house.

Lieutenant Heavner sent the carpet taken from the victim‟s house to

the Tennessee Bureau of Investigation (TBI) for testing. He also sent DNA

samples from the victim‟s wife and children, as well as a sample taken from

the victim‟s razor, to the TBI lab. On August 1, 2005, he again spoke with

the defendant, this time in police custody. After being informed of and

waiving his Miranda rights, the defendant gave a written statement to

police. In the statement, the defendant said that the victim, whom he called

“Popeye,” came to his house along with Gardner and Clark. The defendant

said that he had been “smoking crack non-stop . . . and was high when they

came by” and did drugs with the other men before going to another part of

the house. The defendant claimed that while he was away from the other

men, he heard a gunshot. When he returned to the living room, he saw the

victim lying on the floor, with Gardner and Clark standing over him. The

defendant said that he did not see any blood at the time but recalled that the

victim came to rest on the section of carpet that Lieutenant Heavner

removed. The defendant said that Gardner and Clark then “put Popeye in

his truck and took him away. I don't know where they took him or if he

was dead at that point.” The defendant insisted that the two men did not

tell him what they did with the victim or his truck.

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On September 1, after he had taken a statement from Gardner

implicating the defendant in the victim‟s death, Lieutenant Heavner again

interviewed the defendant. After waiving his Miranda rights, the defendant

gave a statement in which he admitted shooting the victim. In the

statement, the defendant claimed that he, the victim, Gardner, and Clark

were doing drugs at his house when he became suspicious about their

behavior and about the fact that they were carrying screwdrivers and

knives. He also claimed that he heard voices in his head because of his

drug use. At some point, the defendant “got paranoid” and became fearful

that the other men would “do bodily harm to me, kill and rob me because I

had drugs.” Thus, he shot the victim in the head. The defendant said that

he walked around for a while before shooting the victim again, this time in

the chest. He said that the victim slumped onto the couch, with the victim‟s

blood soaking through the couch so that a section of carpet underneath the

couch became blood-soaked. The defendant claimed that Gardner drove

away in the victim‟s truck and that he never saw the victim‟s truck again.

The defendant said that later, he wrapped the victim‟s body in a tarp,

wrapped a chain around the body, ran the chain through some concrete

blocks, drove to a bridge over the Forked Deer River in Westover, and

dumped the body into the river. The defendant also said that he threw the

gun he used to shoot the defendant, a .40 caliber Ruger 94, into the river.

The defendant led police to a dump where he had left the couch on

which the victim was shot. Lieutenant Heavner said that areas on the

couch‟s seat cushions and arm appeared to be soaked with blood. He sent

fabric samples from the couch to the TBI lab for testing. The lieutenant

observed that the couch appeared to be weather-beaten. In his statement,

the defendant said that he “had to get rid of” the couch because it had blood

on it. The defendant also admitted cleaning the carpet with Resolve brand

carpet cleaner in an attempt to remove the blood stains.

The day of his statement, the defendant led police to the bridge from

which he claimed to have dumped the body. Lieutenant Heavner said that

on September 1, 2005, the Forked Deer River “was about to overflow its

banks” and that the river‟s current was much swifter than usual because of

Hurricane Katrina, which made landfall along the Mississippi Gulf Coast

on August 29. Thus, neither the police nor the Madison County Fire

Department‟s rescue squad attempted to search the river that day. On

September 2, the fire department attempted to search the river using drag

lines, but the river‟s current made such a search impossible. The fire

department searched the river on September 6, and the police searched the

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river on September 9, but those searches produced nothing either time. The

police also conducted an aerial search, but that search also produced

nothing of evidentiary value.

On cross-examination, Lieutenant Heavner said that while he was

certain that the victim‟s wife had reported that the victim had been in her

home on May 18 and that the victim's truck was found on May 26, he was

unsure of the exact date on which the victim was killed. He also said that

he did not recover any shell casings from the couch or the defendant‟s

home, nor did he see any bullet holes in the couch or in the wall or floor of

the defendant‟s home. He did note, however, that the couch had several

tears on it, which he attributed to the couch‟s being “outside in the

elements.” Lieutenant Heavner said that he only had the couch tested for

blood, not gunpowder residue, noting that in his law enforcement

experience he had never dealt with evidence of stipling on anything other

than the human body. Furthermore, he said that the fact that the couch had

been in the elements made it unclear whether there would be any

gunpowder residue on the couch.

Sergeant Felicia Stacy with the Madison County Sheriff‟s

Department testified that she was present on September 9, 2005, when THP

divers searched the river near the spot where the defendant claimed to have

dumped the victim‟s body. She said that the divers found two concrete

blocks attached by a chain, with the manner in which the chain was run

through the blocks consistent with the defendant‟s description. However,

on cross-examination she admitted that the divers recovered no clothing

items and that there was nothing to conclude with any certainty that the

blocks and chain had been used to weigh down a body. Sergeant Stacy

testified that she investigated the victim‟s financial records and discovered

that the victim had not accessed any of his accounts since May 2005.

TBI Agent Donna Nelson testified that she tested the sections of

carpet and couch fabric collected in connection with this case. She said that

while both the carpet and the couch fabric tested positive for human blood,

she was unable to obtain a DNA profile from either sample. She said that

the carpet‟s being cleaned with detergent and the couch‟s being left in the

elements could have caused the DNA present in the blood to degrade.

Three members of the victim‟s family -- his widow, Candice

Thomas; his seven-year-old son, Dalton Thomas; and his mother, Pat

Thomas -- testified that they had not seen the victim since May 2005 and

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that they loved him and missed him. Specifically, Candice Thomas

testified that she last saw the defendant on May 14, 2005, although she said

that her husband had been in the family home on May 18. She said she

knew her husband had been in the home that day because some of her

belongings had been disturbed. She said that she had monitored her

financial records since May 2005 and that there was no indication that her

husband had accessed the accounts during that time. She said she knew her

husband had a drug problem and that he was occasionally away from the

home, but he was never gone more than a week at a time. She said that she

was not concerned about her husband‟s disappearance until his truck, which

the victim considered his “pride an[d] joy,” was discovered burned. She

said that her husband was known as “Popeye” and that he kept a vanity

license plate which read “Popeye” on the front of his truck. The victim‟s

widow said that the defendant had visited her house after the victim “went

missing” but before his truck was discovered. She recalled that the

defendant asked her “if [she] had heard anything,” to which she replied she

had not.

At the close of the State‟s proof, the parties stipulated that the victim

had not been treated at any of eight major West Tennessee hospitals since

his disappearance.

The defendant‟s only witness, William Merriman, testified that on

May 24, 2005, he saw the victim, whom he had known since at least 1975,

at a gas station. Merriman said that the victim told him that the two men

should take a vacation. Merriman did not recall where the victim wanted to

go on vacation.

Id. at *1-6.

The very lengthy petition for post-conviction relief sets out approximately thirty-

three claims of ineffective assistance of counsel, seven claims as to unconstitutional

sentencing laws and procedures, and a large number of claims as to various trial errors.

However, the only proof presented by the petitioner at the evidentiary hearing was the

testimony of his trial counsel regarding his decision not to file a motion to suppress a

statement made by the petitioner to police officers. Further, the petitioner‟s appellate

brief focused only upon this issue. Accordingly, we will consider only this claim in our

review of this matter.

Trial counsel for the petitioner said that he had been appointed to the matter after

the return of the indictment. He said the petitioner had given several statements, two of

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them to Investigator Hefner, admitting he had shot the victim but claiming it was in self-

defense. Counsel did not file a motion to suppress any of the statements, although he and

the petitioner discussed doing so. Counsel did not see any point in doing so because, in

trial testimony, the petitioner “would have told the jury exactly the same thing that he

told [Investigator] Hefner and that is that he shot [the victim] because he was afraid that

he was fixing to be jumped on or he was afraid [the victim] was going to pull a knife on

him and rob him.” Additionally, the petitioner told counsel that the murder “occurred

while all these parties were together smoking crack.” Counsel and the petitioner agreed

they would proceed without filing a suppression motion because the statements “would

convey his message to the jury without exposing him to cross-examination.” Later,

counsel received a letter from the petitioner asking that a suppression motion be filed.

Counsel met with him again to explain the advantages of not doing so to allow his

statement to take the place of his testimony at trial. Counsel explained that the matter

was made “somewhat moot” by the fact that a jail recording had been made with the

petitioner talking with a woman “where he pretty much said the same thing that he told

Investigator Hefner and told me and, of course, he had no reasonable expectation of

privacy as far as that statement was concerned.” Accordingly, counsel advised the

petitioner against pursuing a motion to suppress, but the final decision was to be made by

the petitioner.

Prior to the trial, counsel asked that a forensic evaluation be done of the petitioner,

and he was “found to be competent to stand trial and he was found not to be insane.”

Counsel recalled that the petitioner‟s drug use was “very extensive” and that the trial

court instructed the jury regarding voluntary intoxication. He said that he found the

petitioner to be “very personable, very bright” and described further:

He understood the position he was in. He asked all the right questions. I

didn‟t see anything to me to indicate that he was suffering from any mental

impairment or deficit. Now, I‟m sure whenever he was at the height of his

crack cocaine use, perhaps he was impaired. I can‟t say, but the jury heard

ample proof of crack cocaine usage that night[.]

Counsel said that he still considered it was sound strategy not to pursue a motion

to suppress, for it kept the petitioner “from being cross-examined and it kept the jury

from learning about his felony drug convictions.”

On cross-examination, counsel said that he had practiced law for nearly thirty-five

years and had handled “[p]robably between 100 and 150” first degree murder cases.

Following the evidentiary hearing, the post-conviction court entered a written

order denying the petition for post-conviction relief, finding that the petitioner had failed

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to establish that trial counsel had provided deficient performance or that such alleged

performance had prejudiced the petitioner and, more specifically, that counsel‟s decision

not to pursue a motion to suppress had not amounted to ineffective assistance of counsel

and that the petitioner had not established that there was a legal basis upon which the

motion would have been granted.

ANALYSIS

The State argues on appeal that this matter should be dismissed because the appeal

was untimely by over three and one-half years, the post-conviction court‟s order denying

relief entered on January 31, 2012, and the notice of appeal not being filed until August

27, 2015. Tennessee Rule of Appellate Procedure 4(a) provides that the notice of appeal

must be filed “within 30 days after the date of entry of the judgment appealed from[.]”

However, the rule further provides that “in all criminal cases the „notice of appeal‟

document is not jurisdictional and the filing of such document may be waived in the

interest of justice.” Id. As we will explain, we conclude that the interest of justice does

not require our waiving the untimeliness of the filing of the appeal notice, and we decline

to do so.

Although the petitioner argues that trial counsel should have sought to suppress his

initial statement to investigators, he advances no reasons counsel could have argued for

doing so. Further, given the significant strength of the proof against the petitioner, as

outlined in the direct appeal of his convictions and of additional similar statements he had

made, also admitting the crime, we cannot conclude that the interest of justice compels

our waiving the untimeliness of this appeal. Accordingly, the appeal is dismissed.

CONCLUSION

Based upon the foregoing authorities and reasoning, the appeal is dismissed.

_________________________________

ALAN E. GLENN, JUDGE

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