Curtis Stanton v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 7, 2016

CURTIS STANTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 0902061 Chris Craft, Judge

No. W2015-01479-CCA-R3-PC - Filed July 21, 2016

The petitioner, Curtis Stanton, appeals the denial of his petition for post-conviction relief,

arguing the post-conviction court erred in finding he received effective assistance of

counsel. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and

ROBERT W. WEDEMEYER, JJ., joined.

Andrew R.E. Plunk, Memphis, Tennessee, for the Defendant-Appellant, Curtis Stanton.

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

Attorney General; Amy P. Weirich, District Attorney General; and Christopher J. Lareau,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS

On March 27, 2013, the petitioner was convicted by a Shelby County Criminal

Court jury of first degree murder and sentenced to life imprisonment with the possibility

of parole. His conviction was affirmed by this Court on direct appeal, and our supreme

court denied his application for permission to appeal. State v. Curtis Stanton, No.

W2012-00568-CCA-R3-CD, 2013 WL 1229538, at *1 (Tenn. Crim. App. March 27,

2013). On direct appeal, this Court recited the following underlying facts:

At trial, Eddie Cowan, a friend of the victim, testified that he had

known the victim for approximately twenty years. He knew the [petitioner]

because of his relationship with the victim. Cowan believed they were still

dating in September 2008. Cowan said that one evening a couple of days

prior to the victim’s death, the [petitioner] came to Cowan’s apartment in

Wesley Forest, which was across from the victim’s apartment. The men sat

on the couch, and the [petitioner] told Cowan that he cared for the victim

and that “if he can’t have her, can’t nobody have her.” The [petitioner]

asked Cowan to walk with him to the victim’s apartment, but Cowan

refused. Cowan watched the [petitioner] walk across the walkway to the

victim’s apartment and knock on the door. No one answered the door, and

the [petitioner] left. Cowan noticed that the [petitioner] had a knife in his

back pocket.

Falanda Coley testified that she was the victim’s best friend. The

two women had agreed to meet at Club Lucille on the evening of

September 12, 2008. Coley arrived at the club around 8:30 p.m., and the

victim was already there. Afterward, Coley saw the [petitioner] enter the

club. He acted agitated and paced for a while before coming to the table

where Coley was sitting; the victim was in the restroom at the time. When

the victim returned to the table, the [petitioner] sat in a chair beside her and

tried to talk to her. The victim stared straight ahead and did not look at or

speak to the [petitioner]. Between 1:30 and 2:00 a.m., the victim stood and

told Coley that she was leaving and that she would see her the next day.

The [petitioner] left at the same time as the victim. Coley recalled that the

[petitioner] was wearing a green and white striped shirt, a green headband,

jean shorts, and green and white Nike tennis shoes.

On cross-examination, Coley said that the club was not very large

and that approximately forty people were there that night. She recalled that

the victim was drinking beer but that the [petitioner] did not drink any

alcohol.

Lee White, Coley’s husband, testified that on the night of September

12, 2008, he was working at Club Lucille as security and as a disk jockey.

White said that the victim and the [petitioner] had previously dated but

were not dating at that time. When White arrived at work, the victim was in

the club and appeared to be enjoying herself. However, after the [petitioner]

arrived, the victim acted as if she no longer wanted to be there. White saw

the [petitioner] try to engage the victim in conversation, but the victim sat

very still, looked straight ahead, and did not speak. White saw the victim

leave between 1:30 and 2:00 a.m., and the [petitioner] left at the same time.

However, they did not leave together. The victim told White that she would

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see him the following day. She got into her car and drove away, and the

victim followed her in his car. White said the [petitioner] was wearing a

green headband, a green shirt, blue jean shorts, and green and white tennis

shoes.

The victim’s son, Laterrance Tidwell, testified that the [petitioner]

was the victim’s ex-boyfriend and that they had dated approximately one

year. Tidwell said that on Friday, September 12, 2008, the victim took

Tidwell and his brother for a haircut. When they arrived at the barbershop,

the [petitioner] was there getting a haircut. The [petitioner] walked over to

Tidwell and asked where they were going after they left the barbershop.

Tidwell responded that they would probably go to Westwood to visit his

grandmother, Kira Tidwell.

Tidwell stated that when they left the barbershop, the victim and the

[petitioner] “ha[d] little words.” Tidwell was sitting in the car with the

windows rolled up and did not hear what was said. Afterward, they drove to

the victim’s mother’s house in Westwood. When they arrived, the

[petitioner]’s car was already there. Tidwell said that after they left

Westwood, they returned home.

Tidwell stated that at approximately 9:00 p.m., the victim left to go

to the club. She was wearing a “black muscle shirt” and plaid shorts, and

she was carrying a purse. Around midnight, the [petitioner] called three

times and asked if the victim had “made it in.” Tidwell responded no.

Tidwell said that after the third call, he went to sleep. The next morning, he

looked out the window and saw the victim’s car, but she was not inside the

apartment. Tidwell went outside and found the victim lying next to the

apartment. Her throat had been slit, and she was covered with blood.

Tidwell immediately called the police.

Cecilia May Fitch testified that shortly after 3:00 a.m. on the

morning of September 13, 2008, she telephoned the [petitioner] and asked

him to come to the Betty Boo Club so he could drive her home. The

[petitioner] arrived about ten or fifteen minutes later. Fitch lived

approximately fifteen minutes away from the club, and, during the drive,

the [petitioner] talked about the victim. Fitch said that she did not know

who the victim was. When they arrived at Fitch’s house, the [petitioner]

came in and stayed five or ten minutes. The following day, the [petitioner]

left a voice message for Fitch, asking her to tell anyone who contacted her

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that he had been with her all night.

Memphis Police Officer Essica Cage-Littlejohn testified that on

September 13, 2008, she reported to the Wesley Forest Apartments

following a missing person’s report. When she arrived, a teenage boy,

Tidwell, approached her and said that his mother was dead and was lying

behind the building. She removed Tidwell from the area and began

gathering information for her report.

On cross-examination, Officer Cage-Littlejohn said that she did not

see any indication that the body had been dragged. However, she explained

that she did not specifically look for drag marks.

Memphis Police Sergeant Vivian Murray testified that the

[petitioner] called the police to turn himself in and that officers brought him

to the police station. After he arrived, Sergeant Murray interviewed him.

Before the interview, she advised the [petitioner] of his Miranda rights, and

the [petitioner] signed a waiver of rights form with the name “Curtis

Greer.” She ensured that the [petitioner] could read by having him read the

waiver form aloud. Sergeant Murray said that the [petitioner] never said

that he did not want to talk or that he wanted an attorney. Sergeant Murray

noticed nothing unusual about the [petitioner]’s demeanor, noting that he

did not seem intoxicated or give an indication that he did not understand

anything. The [petitioner] never mentioned having any psychological

issues.

After the [petitioner] agreed to give the statement, he said that the

victim’s sister had introduced him to the victim. Although the victim was

married to Lataurus Peppers, the [petitioner] and the victim dated

intermittently for approximately two years. The [petitioner] said that he had

a good relationship with the victim’s three children. At the time of the

offense, the victim had ended their relationship because the [petitioner] was

unemployed and because his mother and the victim did not get along.

The [petitioner] said that between 11:00 a.m. and 12:00 p.m. on

Friday, September 12, 2008, he called the victim to ask if she was going to

Club Lucille’s that night. The victim said no. Around 8:00 p.m., the

[petitioner] called the victim’s house and asked her son where the victim

was. After the call, the [petitioner] assumed the victim was at the club. He

drove to the club, saw the victim’s white 2000 Mitsubishi Mirage in the

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parking lot, and returned home to change clothes. He put on blue shorts

with a brown deer and green designs on the back, a green t-shirt followed

by a white t-shirt with skulls on it, a green NBA headband, and green and

white Nike tennis shoes.

The [petitioner] said that he returned to the club at approximately

11:00 p.m. The victim was at the club and was wearing a plaid skirt, a black

shirt, and flip flops. The victim asked why the [petitioner] was there, and he

responded that it was “a free country.” The [petitioner] said that he thought

the victim “had a little attitude.” He asked the victim to dance, and she

refused. The [petitioner] said, “That’s when I first started hearing voices in

my head telling me to kill her. I guess it just stuck with me.” The

[petitioner] said that he sat and talked with the victim and Coley. At

approximately 1:15 a.m., the victim started feeling “a little drunk,” and she

and the [petitioner] walked out to the parking lot. The [petitioner] offered to

follow the victim home, but she refused. The [petitioner] said, “I trailed her

home anyway.”

The [petitioner] said that when they arrived at the victim’s residence,

he parked beside her car. He said that he habitually carried a kitchen steak

knife in the pocket of his car door and that he took the knife from the door

and put it in the front of his pants. When the victim got out of her car and

walked toward her residence, he followed her and asked her to talk with

him. She responded that she needed to use the restroom. The [petitioner]

said, “Then, the demons took possession, so I grabbed her with both hands

and drug her around behind the apartment.” He threw the victim on the

ground, straddled her, and stabbed her in the throat. The victim reached for

the knife, scratched the [petitioner]’s face, and tried to grab his headband.

The [petitioner] said that he stabbed the victim four or five times in the

face, chest, and stomach. When the victim stopped moving and appeared to

be dead, the [petitioner] grabbed her purse from the grass, got into his car,

and left.

The [petitioner] said that after he left, he went to the Wolf River on

Bellevue and Chelsea where he discarded the victim’s purse, his shirt, his

headband, and the knife. He went home, washed off the blood, and went to

Club Hughes on Firestone to pick up a girl named Cee Cee. He took Cee

Cee to her house and stayed for about fifteen minutes. The [petitioner] left,

got gas for his car, and went home. When he arrived, his mother told him

that the victim’s children had called at approximately 4:25 a.m. Around

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6:00 or 6:30 a.m., the [petitioner] called the victim’s children and asked if

the victim had gotten home. At approximately 7:00 a.m., Peppers called the

[petitioner] to say that the victim was dead. The [petitioner] asked what

happened, and Peppers responded, “[Y]ou know,” and hung up on the

[petitioner]. The [petitioner] repeatedly tried to call the victim’s house, but

each time, the person who answered the telephone hung up. Thereafter, the

[petitioner] decided to turn himself in to the police.

Sergeant Murray stated that she and the [petitioner] had conversed

for about five hours prior to the statement. During the conversation, the

[petitioner] initially denied any involvement in the victim’s death and tried

to establish that he was elsewhere. Sergeant Murray said that the first time

the [petitioner] mentioned demons or hearing voices was during the

statement.

On cross-examination, Sergeant Murray stated that the [petitioner]

had called police dispatch to turn himself in and that officers met him at his

location to bring him into the station. She said the interview with the

[petitioner] took place in the interview room at the homicide bureau. She

said it was a large room with no windows. The [petitioner] was not

handcuffed, but he was wearing a leg iron that was attached to the bench

where he was sitting. The [petitioner] did not ask for an attorney and was

pleasant, calm, and courteous during the interview. Sergeant Murray said

that the crime was committed in the early morning hours and that the

[petitioner] turned himself in around 3:00 p.m. the same day.

Lieutenant Bart Ragland testified that he and Sergeant Davison went

to a heavily wooded area around Levy Road near Interstate 240 and found

the victim’s brown purse, including some of its contents; a knife believed to

be the murder weapon; and a green NBA headband that matched the

description of the one the [petitioner] said he was wearing on the night of

September 12, 2008. Lieutenant Ragland said that white medical tape was

wrapped around the knife and that there were initials on the handle.

On cross-examination, Lieutenant Ragland acknowledged that he

went to the area because the [petitioner] told the police where the evidence

could be found. Lieutenant Ragland said that the purse was located at least

twenty or thirty yards from the road. He recalled the initials “TVL” being

on the knife.

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Memphis Police Officer James K. Smith testified that on September

13, 2008, Lieutenant Ragland called him to work as a crime scene officer at

Levy and Interstate 240. He said that he collected a purse, a green NBA

headband, and a knife with tape around the handle. Officer Smith said that

the area had thick vegetation, including green vines and weeds. He recalled

that the purse and the headband were found fairly close to each other and

that the knife was found several feet away.

Dr. Lisa Funte, a medical examiner with the Shelby County

Regional Forensics Center, testified that she performed an autopsy on the

victim. She said that the victim’s death was caused by multiple sharp force

injuries. Dr. Funte stated that the victim suffered ten stab wounds and a

minimum of thirty-five incised wounds. The wounds were on the victim’s

face, neck, shoulders, chest, arms, hands, and legs. Dr. Funte specifically

noted that the victim had been stabbed in her left cheek and her nose,

“breaking the bones of the nasal cavity and the face.” She said the wound

would have been quite painful. The victim had defensive wounds to her

hands and forearms. Dr. Funte noticed that the incised wounds on the upper

left chest had a pattern that was characteristic of wounds made with a

serrated blade. She also found multiple blunt force injuries and indications

of manual strangulation. Dr. Funte found two potentially fatal wounds.

Specifically, there was a stab wound to the left of the victim’s neck, which

cut the left carotid artery, caused profuse bleeding, and would have led to

the victim’s death within a few minutes. There was also a stab wound to the

right side of the victim’s chest, which penetrated the chest wall, diaphragm,

and liver. Dr. Funte noted that there was little hemorrhaging at the site of

the liver stab wound, which indicated a loss of blood pressure at the time

the wound was inflicted. Because of the lack of blood pressure at the time

the liver was stabbed, Dr. Funte opined that the carotid artery was stabbed

first.

After the State rested its case-in-chief, Dr. Joseph Charles Angelillo,

a clinical and forensic psychologist, testified as a defense witness. He said

that he met with the [petitioner] on five occasions in 2010, spending three

and a half hours interviewing and nine to ten hours testing him. Dr.

Angelillo saw no evidence that [petitioner] was malingering. As a result of

the tests, Dr. Angelillo determined that the [petitioner], who had an IQ of

65, suffered from “very significant anxiety” and that, under stress, the

anxiety would bring on confusion, lack of organization, and “border[ ] on if

not reach[ ] delusional thinking.” He also found the [petitioner] had

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symptoms of post-traumatic stress disorder (PTSD), but he could not say

that the PTSD preexisted the killing.

Dr. Angelillo said that at first, the [petitioner] did not understand

why he was being evaluated. During the evaluation process, the [petitioner]

was cooperative, friendly, and receptive. The [petitioner] gave his account

of the events in a coherent and calm manner. Dr. Angelillo estimated that

the [petitioner] functioned at a level between the first and fifth grades. He

said that the [petitioner]’s cognitive abilities did not affect his ability to tell

the truth or to lie. He stated that none of the [petitioner]’s mental or

psychological problems would make him behave impulsively. Dr. Angelillo

said, “[I]t doesn’t take much for him to go from a low point of stress and

controlled behavior to disorganized thinking and in fact at those times, he

may be much more prone to act without giving it much thought.”

Therefore, he opined that the [petitioner] was incapable of premeditating.

He said, however, that the [petitioner] was able to tell the difference

between right and wrong and knew that what he was doing was wrong

when he killed the victim.

On cross-examination, Dr. Angelillo conceded that the [petitioner]

had no history of mental health issues or treatment. The [petitioner] told Dr.

Angelillo that he heard voices on only one occasion, which was just prior to

killing the victim. The [petitioner] had held a number of different jobs and

attended high school until the eleventh grade.

Dr. Angelillo said that the [petitioner]’s PTSD could have been

triggered by killing the victim. He acknowledged that “even an elementary

school child can form a plan of action.” Dr. Angelillo concluded that the

[petitioner] felt rejected, angry, and helpless and that his actions toward the

victim were a result of his attempt to regain the relationship or to regain the

appearance of control. Dr. Angelillo acknowledged that in his report he

wrote, “[W]hat in my opinion appears to be the most important is the

purpose that appeared to be served, that is this purpose appeared to create

or at least solidify a previously thought of plan of action.”

On redirect examination, Dr. Angelillo said that the [petitioner] had

“symptoms that satisfied the diagnosis [of generalized anxiety disorder] on

a rule out basis. And I stress rule out.” He said that generalized anxiety

disorder alone would not necessarily render someone incapable of

premeditation but that, “along with other things,” the diagnosis led him to

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conclude that the [petitioner] was incapable of premeditation.

Dr. Angelillo acknowledged the [petitioner] said that a demon took

hold of him and that he heard voices telling him to kill the victim.

However, Dr. Angelillo said that he did not think the [petitioner] was

suffering from a hallucination or that the [petitioner] “literally [heard] a

voice saying do this.” Instead, the [petitioner] likely had a thought that

repeated itself until it may have become an obsession.

On recross examination, Dr. Angelillo said that the [petitioner] heard

a voice once but that “this group of thoughts was not just a one-time deal.”

He explained that the group of thoughts could have originated from the

[petitioner]’s idea that he could not live without the victim.

The jury convicted the [petitioner] of first degree premeditated

murder, and the trial court sentenced the [petitioner] to life imprisonment

with the possibility of parole. On appeal, the [petitioner] challenges the

sufficiency of the evidence sustaining his conviction.

Curtis Stanton, 2013 WL 1229538, at *1-6.

On January 28, 2014, the petitioner filed a pro se petition for post-conviction

relief. Following the appointment of counsel, two amended petitions were filed. In the

petitions, the petitioner raised, among other allegations, ineffective assistance of counsel

due to a deficient explanation as to the effect of testifying.

The post-conviction court conducted an evidentiary hearing on June 4, 2015. The

petitioner testified that prior to the start of trial, he and his attorney never discussed the

possibility that he would testify at trial. Before the trial ended, however, the petitioner’s

lawyer called him to the stand, and he was asked a series of questions about the

implications of testifying. The petitioner’s trial counsel also testified. He stated that prior

to trial, he and the petitioner discussed the possibility that he would testify at least four or

five times, and the petitioner decided he did not want to testify. Counsel for the petitioner

also argued that due to the petitioner’s intellectual issues, trial counsel should have

explained the petitioner’s right to testify in greater detail. The post-conviction court then

took the matter under advisement in order to review the Momon transcript.

On July 10, 2015, the post-conviction court entered a detailed order denying post-

conviction relief on the basis that the petitioner failed to meet either the deficiency or

prejudice prong of the Strickland test for ineffective assistance of counsel. In denying the

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petition, the post-conviction court resolved the conflicting testimony “by finding the trial

attorney credible and the petitioner untruthful.” With respect to the petitioner’s

contention that he may have testified had trial counsel explained his right to do so in

greater detail, the post-conviction court found it significant that the petitioner failed to

state what his testimony would have been had he testified, further noting that “[i]t would

be hard for this court to envision any testimony by the petitioner that would explain away

the facts produced at trial and negate premeditation.” This appeal followed.

ANALYSIS

On appeal, the petitioner argues that trial counsel provided ineffective assistance

by failing to adequately explain his right to testify. The post-conviction petitioner bears

the burden of proving his allegations by clear and convincing evidence. See Tenn. Code

Ann. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting,

the findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

Where appellate review involves purely factual issues, the appellate court should not

reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.

1997). However, review of a trial court’s application of the law to the facts of the case is

de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn.

1998). The issue of ineffective assistance of counsel, which presents mixed questions of

fact and law, is reviewed de novo, with a presumption of correctness given only to the

post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn.

2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of

counsel applied in federal cases also applies in Tennessee). The Strickland standard is a

two-prong test:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

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466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975)).

The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a

“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim”).

The post-conviction court found the petitioner did not prove either Strickland

prong by clear and convincing evidence. In denying the petition, the post-conviction

court first resolved the conflicting testimony by finding the trial attorney credible and the

petitioner untruthful and then elaborated:

[The petitioner’s] attorney did everything he could to keep from having the

petitioner convicted as charged, was fully aware of the petitioner’s low IQ

and took pains to explain everything to the petitioner numerous times,

including whether or not he wished to testify. It is significant to this court

that the petitioner did not give any offer of proof at the hearing on this

petition as to what his testimony might have been, and so no prejudice can

be shown. It would be hard for this court to envision any testimony by the

petitioner that would explain away the facts produced at trial and negate

premeditation … [t]his court finds that the petitioner has not proven either

Strickland prong. He has not shown that his attorney’s performance was

deficient and has put on no proof of prejudice.

We conclude the record supports the post-conviction court’s finding that the

petitioner failed to meet his burden of proving ineffective representation. During the post-

conviction hearing, trial counsel testified that he met with the petitioner multiple times

prior to trial to discuss the implications of testifying, and the petitioner did not wish to

testify. Further, during the Momon hearing, the petitioner testified that he understood his

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rights, and it was his decision not to testify. The petitioner has failed to show that trial

counsel was deficient in his representation.

The petitioner has also failed to show that trial counsel’s performance prejudiced

the outcome of the proceeding. The petitioner failed to offer any evidence as to what his

testimony would have been had he been called to testify. In the absence of such proof, the

petitioner cannot demonstrate prejudice. See Leach v. State, No. W2004-01702-CCA-R3-

PC, 2005 WL 1651654, at *8 (Tenn. Crim. App. July 14, 2005), perm. app. denied

(Tenn. Dec. 5, 2005) (finding a Momon violation but holding that the “details of [the

petitioner’s] potential testimony, however, are lacking” so he failed to demonstrate

prejudice). We conclude, therefore, that the petitioner is not entitled to post-conviction

relief on the basis of his claim of ineffective assistance of counsel.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the post-

conviction court is affirmed.

_________________________________

J. ROSS DYER, JUDGE

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