Lamont Johnson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2016

LAMONT JOHNSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Gibson County

No. 8954 Clayburn Peeples, Judge

___________________________________

No. W2016-00090-CCA-R3-PC- Filed November 30, 2016

___________________________________

The petitioner, Lamont Johnson, appeals the denial of his post-conviction petition,

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

counsel at trial. After our review of the record, briefs, and applicable law, we affirm the

denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Anna Banks Cash, Jackson, Tennessee, for the appellant, Lamont Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler

Parham and Jason Scott, Assistant District Attorney Generals, for the appellee, State of

Tennessee.

OPINION

FACTS

In 2010, a Gibson County jury found the petitioner guilty of first degree murder in

the perpetration of aggravated child abuse for the death of his five-month-old daughter.

The petitioner was sentenced to life with the possibility of parole, and he appealed. On

direct appeal, this Court summarized the factual and procedural history of the petitioner‟s

case as follows:

On March 1, 2010, the [petitioner] was indicted on one count of first

degree felony murder in violation of Tennessee Code Annotated section 39-

13-202. The indictment alleged that the [petitioner] unlawfully killed the

five-month-old victim during the perpetration of aggravated child abuse.

The charges stemmed from activity that occurred on July 8, 2009.

At 12:33 p.m. on that date, the [petitioner] called 911 and reported

that the victim was not breathing. When EMTs arrived at the scene, they

observed the [petitioner] and a lifeless infant on the floor. The EMTs

immediately began CPR and transported the victim to the hospital. An

emergency room physician and the hospital‟s staff attempted pediatric

lifesaving procedures for approximately one hour before the victim was

declared dead.

The victim‟s autopsy revealed that she had died of multiple blunt

force injuries to her head, chest, and abdomen. Based on a timeline

provided by the [petitioner] and the victim‟s mother, investigators

concluded that only the [petitioner] and his son were at home with the

victim when the injuries occurred. When confronted with the autopsy

findings, the [petitioner] claimed to investigators that the victim had

stopped breathing after she had fallen off of a sofa. However, experts at the

[petitioner‟s] trial later opined that the victim‟s injuries were not consistent

with her having fallen off of a sofa and could not have been caused by the

administration of CPR. One expert opined that the victim‟s injuries-which

included retinal detachment, massive internal bleeding, a front-to-back

skull fracture, and multiple rib fractures-could only have been caused by

“extraordinarily violent” shaking that “would be very frightful to someone

who was watching it.”

At the [petitioner‟s] trial on December 12-13, 2011, the defense

predicted in its opening statement that the prosecution‟s witnesses would

not tell “the whole story” concerning the incident and stated its confidence

that after considering all of the evidence the jury would feel compelled to

return with a verdict of not guilty. At no point during that statement was

any reference made to the [petitioner‟s] eight-year-old son. However,

during the defense‟s cross-examination of the State‟s penultimate witness,

the victim‟s mother, defense counsel asked questions apparently intended to

cast suspicion upon the boy.

During her direct testimony, the victim‟s mother testified that she

and her children were living together and that the [petitioner] had been in

the process of moving in with them when the incident occurred. She also

gave testimony about the events that transpired at the hospital following the

-2-

incident, and she related her grief when she learned that her daughter had

died. She testified concerning the [petitioner‟s] behavior on the day of the

incident and on the following day, which involved fainting, drinking,

smiling, and laughing at various points. She described the couple‟s initial

interviews with the police after the victim‟s death was ruled a homicide.

She testified that prior to the police investigation, the [petitioner] had never

mentioned anything to her about the victim having fallen off of a sofa. She

testified that she first learned that the [petitioner] was making such a claim

from the investigating officers.

During the victim‟s mother‟s cross-examination, however, the

defense focused almost exclusively on the witness‟s feelings concerning the

[petitioner‟s] son. The victim‟s mother testified that the [petitioner‟s] son

lived nearby with his mother and that he would frequently come over to her

house to spend the night. The victim‟s mother acknowledged that she had

seen the [petitioner‟s] son hold the victim in the past. The victim‟s mother

admitted that she had asked one of the investigators if the [petitioner‟s] son

had been anywhere around the victim on the day of the incident. The

victim‟s mother also testified that the [petitioner‟s] son had been in lots of

trouble at school, had “all sorts of problems” with fighting and violence,

and that she was “[j]ust a little bit” concerned about the [petitioner‟s] son

being around her children.

After this testimony, the State‟s final witness, an investigating

officer, testified concerning the investigation generally and discussed a

statement given by the [petitioner] to police, in which he claimed to have

left the victim on a living room sofa while he made her a bottle and that she

fell on the floor, “crying loudly,” when he came back in. The witness

testified that the [petitioner] claimed to have noticed that the victim was

having difficulty breathing shortly afterward.

During cross-examination, defense counsel questioned the witness

concerning the degree to which the [petitioner‟s] son had been investigated

as a possible suspect. The witness replied that the [petitioner‟s] son had

undergone a “forensic interview.” The witness testified that the

[petitioner‟s] son had told them that he had been in the back bedroom

playing video games throughout the relevant time period and that he had

not seen anything that had transpired. Defense counsel asked the witness if

he had spoken to anyone at the [petitioner‟s] son‟s school concerning the

[petitioner‟s] son‟s reputation as a bully, and the witness replied, “No sir.”

-3-

At this point, the record reflects that a bench conference was held, but the

conference was not recorded.

Following this testimony, the State rested. Before the defense began

its case the following morning, the State made an oral “objection” in

response to the defense‟s apparent intent to offer character evidence

concerning the [petitioner‟s] son. The State argued that presenting such

evidence was “prohibited by the law and prohibited by the rules” if it was

offered for purposes of showing that the child acted in conformity with

some particular character trait on the day in question. The defense

responded that it intended to introduce the testimony of four of the

[petitioner‟s] son‟s teachers concerning the [petitioner‟s] son‟s “general

conduct,” as well as some of the [petitioner‟s] son‟s “specific acts,” such as

“threatening to kill students” and “saying he was going to harm students”

with various objects that he had brought to school. The defense claimed

that it was entitled to show to the jury that “this is perhaps an extraordinary

child” and that the proffered evidence fell under one of the exceptions to

the general prohibition against character evidence imposed by Tennessee

Rule of Evidence 404(b). The State argued that Rule 404(b) only applied to

defendants in a criminal case, not other witnesses, and consequently the

evidence was not admissible.

The trial court asked the defense if any proof had been presented that

the [petitioner‟s] son had committed the crime. The defense responded that

it only wanted to prove that the [petitioner‟s] son had the “opportunity and

capacity” to commit the crime. The trial court agreed that the [petitioner]

had “an absolute right to present any evidence that someone else committed

the crime,” but disagreed that the [petitioner] had the right to present

evidence that proved only that someone else was merely “capable of

committing the crime.” The trial court concluded by stating “I‟m going to

grant the State‟s motion.”

After the State‟s “motion” was granted, the [petitioner] was advised

of and waived his right to testify in his own defense pursuant to the

procedures established in Momon v. State, 18 S.W.3d 152, 162-63 (Tenn.

1999), and the defense rested without putting on any proof. During closing

arguments, the defense discussed the prosecution‟s failure to prove the

identity of the perpetrator and briefly mentioned the [petitioner‟s] son as a

possible alternative suspect. However, the defense primarily argued that

the prosecution had failed to “connect all the dots” and prove its case

beyond a reasonable doubt.

-4-

After being duly instructed, the jury retired to deliberate at 10:42

a.m. on December 13, 2011, and returned with a verdict finding the

[petitioner] guilty as charged at 11:37 a.m. that same day. The [petitioner]

was sentenced to life in prison. The [petitioner] filed a timely motion for

new trial and an amended motion. The trial court denied the motion. The

[petitioner] filed a timely notice of appeal.

With his amended motion for new trial, the [petitioner] filed four

affidavits from the [petitioner‟s] son‟s former school teachers discussing

the [petitioner‟s] son‟s behavior at school. These affidavits generally

describe the [petitioner‟s] son‟s adoption of the “gangster” lifestyle and

propensity toward sudden outbursts of violence, as well as his habit of

fighting, using profanity, and issuing death threats. One mentions an

incident in which the police had to be called to the [petitioner‟s] son‟s

school “to get [the [petitioner‟s] son] under control.” Another opines that

“[w]ithout a doubt, it is my opinion that [the [petitioner‟s] son] had the

capacity to hurt another child (or baby) seriously.” The teachers generally

claim that they would have testified in a manner consistent with their

affidavits had they been permitted to do so at the [petitioner‟s] trial.

State v. Lamont Johnson, No. W2012-01271-CCA-R3-CD, 2013 WL 2404057, at *1-3

(Tenn. Crim. App. May 30, 2013) (footnotes omitted). After its review, this Court upheld

the rulings of the trial court, noting the petitioner‟s “right to mount a defense” was not

violated by the trial court‟s exclusion of character evidence of the petitioner‟s son‟s

violent propensities. Id. at 6.

Subsequently, the petitioner filed a pro se petition for post-conviction relief. The

trial court appointed present counsel who filed a supplemental brief alleging nine

deficiencies in trial counsels‟ performance.1 Specifically, the petitioner contends trial

counsel: (1) failed to properly cross examine the State‟s expert witnesses, Dr. Miguel

Laboy and Dr. Lisa Piercey; (2) failed to object to references of “shaken baby

syndrome;” (3) failed to file a motion in limine regarding the petitioner‟s prior

convictions, thus affecting his decision not to testify; (4) failed to obtain a medical expert

for the defense; (5) failed to request a hearing on the defense motion for a speedy trial;

(6) failed to thoroughly investigate and question the victim‟s mother regarding prior

injuries to the victim, including allegedly dropping the victim prior to her death; (7)

failed to file a motion to suppress the petitioner‟s recorded statement; (8) failed to

1

The petitioner was represented by two attorneys at trial, the District Public Defender and an

assistant public defender.

-5-

produce a potential key defense witness, Latoya Love, the victim‟s mother‟s cousin; and

(9) failed to call the petitioner‟s son as a witness.

The petitioner testified at the post-conviction evidentiary hearing. He also

presented evidence from Dr. Laboy and trial counsel from the District Public Defender‟s

office. The post-conviction court summarized the evidence produced at the hearing, as

follows:

Dr. Miguel Laboy testified as to his finding of the autopsy in this

matter. He stated that the child died as a result of blunt force trauma. He

testified that there were no bruises on the child other than a healing

abrasion on the left forearm. He testified that the injuries could have

occurred up to two (2) hours prior to the death of the child. He testified

that he did not classify this as a “shaken baby syndrome” case, but that the

child died of blunt force trauma. Dr. Laboy testified that the child had

healing fractures of her ribs, as well as, “re-breaks.”

[The Public Defender] testified that they did not get an outside

opinion from a medical expert, but that he did do internet research and

possibly did speak to Dr. Lisa Piercey. He also testified that he spoke with

the [petitioner] in general about his right to testify and that [the public

defender‟s investigator] went to the jail to do a mock cross examination

with the [petitioner] to see whether the [petitioner] would get “tripped up”

during cross examination. [The Public Defender] then testified that it was

after this mock cross examination that they discussed that the [petitioner]

didn‟t want to testify after a fear that he would open the door to allow the

State to cross examine him on prior convictions of Domestic Assault.

During cross examination, [the Public Defender] testified that he was

allowed to put the [petitioner] on the stand prior to the close of their proof

and voir dire him about his desires to testify. The [petitioner] during this

examination stated on the record that he understood it was his right to

testify and that if he chose not to testify, the jury would be instructed not to

draw any inferences; that no one could prevent him from testifying and that

he had consulted his attorneys and had been advised of the advantages and

disadvantages of taking the stand. [The Public Defender] testified that he

was surprised by the answer of [the investigating officer] when asked on

cross examination if [the petitioner‟s son] was eliminated as a suspect

because he didn‟t consider conducting a forensic interview “eliminating”

the child as a suspect. However, on cross examination, [the Public

Defender] did testify that the [investigating officer] quoted the forensic

interview and he quoted the statement of [the petitioner‟s son] correctly.

-6-

[The assistant public defender] testified that [the public defender‟s

investigator] talked with most of the witnesses prior to trial at her direction.

She also testified that [the Public Defender] conducted the cross

examination of [the investigating officer].

Lamont Johnson, the [p]etitioner, then testified that [the assistant

public defender] had filed a Motion for a Speedy Trial on September 27,

2010, but that his trial wasn‟t until December 12, 2011. He also testified

that he felt that Brittany Short, the children‟s mother, was responsible for

the old injuries and that his lawyer failed to cross examine her. He testified

that he had not been around the children much, until three to four weeks

prior to the death of [the victim]. He also testified that Latoya Love said in

her statement that [the victim] was a happy baby. He contended that [the

victim] could not have been a happy baby because she could have had

broken ribs up to four weeks prior to her death. None of these witnesses:

Brittany Short, Latoya Love or [the petitioner‟s son] were presented to the

[c]ourt. The [p]etitioner then contended that the action of the prosecutor

during closing arguments by tearing the picture of the children apart was

inflammatory and that counsel should have objected.

After its thorough review of the evidence presented, the post-conviction court

denied relief to the petitioner finding he failed to prove ineffective assistance of trial

counsel by clear and convincing evidence. This appeal followed.

ANALYSIS

On appeal, the petitioner generally alleges he was unable to present a “complete

defense” based on three proffered deficiencies of trial counsel.2 First, the petitioner

asserts trial counsels‟ failure to present a medical expert in its defense was unreasonable.

He next argues trial counsel failed to properly cross-examine Dr. Laboy and Dr. Piercey.

Finally, the petitioner claims trial counsel failed to appropriately address an alleged

misstatement in the investigating officer‟s testimony. The State asserts the petitioner‟s

claims are meritless. After our review, we agree with the State.

The petitioner bears the burden of proving his post-conviction allegations by clear

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of fact

2

This Court will only address the issues briefed by the petitioner on appeal, all others are deemed

waived. See Tenn. R. App. P. 27(a)(4), (7); Harvey v. State, 749 S.W.2d 478, 479 (Tenn. Crim. App.

1987).

-7-

established at a post-conviction evidentiary hearing are conclusive on appeal unless the

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

1996). This Court will not reweigh or reevaluate evidence of purely factual issues. See

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial

court‟s application of the law to the facts 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 presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001). Thus, this Court reviews the petitioner‟s post-conviction allegations

de novo, affording a presumption of correctness only to the post-conviction court‟s

findings of fact. See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn.

1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show

both that counsels‟ performance was deficient and that counsels‟ deficient performance

prejudiced the outcome of the proceedings. 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 standard for determining ineffective assistance of counsel applied in federal cases is

also applied 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.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the

Strickland test must be satisfied. 466 U.S. at 687. Thus, courts are not required to even

“address both components of the inquiry if the defendant makes an insufficient showing

on one.” Strickland, 466 U.S. at 697; see also Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996) (stating that “a failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim”).

A petitioner proves a deficiency by showing “counsel‟s acts or omissions were so

serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the

Strickland test is satisfied when the petitioner shows there is a reasonable probability, or

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

-8-

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

Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel‟s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action „might be

considered sound trial strategy.‟” Strickland, 466 U.S. at 689 (quoting Michel v. State of

La., 350 U.S. 91, 101 (1955)).

Here, the thrust of the petitioner‟s appellate arguments are based on his theory that

absent the deficiencies of trial counsel, evidence could have been presented showing

someone else could have committed the crimes against the victim. His claims rest on his

suggestion that Dr. Laboy and Dr. Piercey presented conflicting testimony as to the time

it would take for the victim‟s injuries to manifest after the abuse.3 However, no evidence

exists in the record to support the petitioner‟s theory. Rather, the record makes clear the

victim suffered acute, blunt force trauma prior to her death, and the petitioner was the

only adult with the victim at the time she was injured. At trial, the petitioner attempted to

put forth the theory that his eight-year-old son, who was also in the house at the time of

the victim‟s injuries, could have injured the victim. However, as found by the post-

conviction court, “not even a smidgen” of evidence exists supporting the petitioner‟s

theory that his eight-year-old son was involved in injuring the victim. It is under this

framework that we now address the specific allegations presented on appeal.

The petitioner makes two allegations concerning the State‟s expert medical

witnesses and trial counsels‟ handling of the same. First, the petitioner argues trial

counsels‟ failure to obtain an independent medical expert was unreasonable. The

petitioner claims “[h]ad trial counsel sought an independent medical expert, that expert

easily could have described the important differences between the two physicians‟

testimony, particularly with regard to the possible timing of when the victim‟s symptoms

could have arisen following the injury.” The petitioner argues “[t]his, in turn, would

have allowed [p]etitioner to defend himself by raising the possibility that another person

caused the victim‟s injuries.” These claims are unsubstantiated in the record.

In order “[t]o succeed on a claim of ineffective assistance of counsel for failure to

call a witness at trial, a post-conviction petitioner should present that witness at the post-

conviction hearing.” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (citing Black,

794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). “As a general rule, this is the only way

the petitioner can establish that . . . the failure to have a known witness present or call the

The alleged discrepancy lies with Dr. Laboy‟s testimony that “it could be minutes to hours that

3

someone would begin to show changes of the healing process” after suffering abuse like the victim‟s,

while Dr. Piercey testified “in severe head trauma like [the victim‟s], the symptoms come on

immediately, within seconds.”

-9-

witness to the stand resulted in the denial of critical evidence which inured to the

prejudice of the petitioner.” Id. The petitioner has not met his burden. At the post-

conviction hearing, the petitioner failed to present any evidence to dispute the testimony

of either Dr. Laboy or Dr. Piercey. See id. In fact, no evidence emerged suggesting that

an expert witness even exists to dispute the evidence produced by the State at trial.

Rather, the evidence offered at the post-conviction hearing mirrors the medical

proof produced at trial. After Dr. Laboy testified at the hearing, the post-conviction court

stated:

In regards to the medical testimony, Dr. Laboy was today as clear

and unequivocal as he was on the day of trial. It may have been due to the

[c]ourt‟s lack of medical background, however, Dr. Laboy and Dr.

Piercey‟s testimony never appeared to be contradictory, but that they

complimented each other. . . . Also, the [c]ourt could not imagine an expert

anywhere that would or could have testified in this case that could have

overcome the medical proof presented by the State‟s witnesses.

Therefore, no evidence exists regarding the alleged time discrepancy in the testimony of

Dr. Laboy and Dr. Piercey as the petitioner failed to produce an expert to dispute the

State‟s medical proof. Accordingly, the petitioner‟s claim is not supported by clear and

convincing evidence and he cannot establish any resulting prejudice. See Strickland, 466

U.S. at 694; Pylant, 263 S.W.3d at 869. This argument is without merit.

The petitioner also claims trial counsel failed to properly cross-examine Dr. Laboy

and Dr. Piercy by not questioning the experts on the alleged discrepancy in their

testimony. However, as explained above, the evidence produced at the post-conviction

hearing established no discrepancies exist in the testimony of Dr. Laboy and Dr. Piercey.

After hearing testimony from trial counsel regarding their cross-examination strategy, the

post-conviction court explained, “[the Public Defender] did not ask many questions

during cross-examination, but he stopped when he should have stopped.” We agree. The

petitioner has failed to present clear and convincing evidence that trial counsels‟ cross

examination of the State‟s expert witnesses reached the level of ineffective assistance of

counsel as he failed to elicit evidence that a discrepancy in the experts‟ testimony even

exists. As a result, the petitioner cannot prove that he was prejudiced by trial counsels‟

alleged failure to properly cross examine Dr. Laboy or Dr. Piercey. See Tenn. Code Ann.

§ 40-30-110(f); Goad, 938 S.W.2d at 369. The petitioner is not entitled to any relief as to

this issue.

Regarding the petitioner‟s final allegation concerning trial counsel‟s failure to

“correct false testimony” of the investigating officer at trial, we also find this claim to be

meritless. The questioned testimony involves the investigating officer‟s statement

-10-

regarding the role the forensic interview of the petitioner‟s eight-year-old son played in

eliminating him as a suspect in the victim‟s death. The post-conviction court held:

The [c]ourt finds that [the investigating officer‟s] testimony was not

misleading or false. The [c]ourt is not even sure that he misstated the

forensic interview. The [c]ourt finds that there was not even a smidgen of

evidence that the 8 year old brother, [the petitioner‟s son], had anything to

do with the injuries that [the victim] sustained.

Again, the petitioner has failed to present evidence showing the investigating

officer‟s testimony was false or misleading. At trial, the State presented expert medical

testimony, testimony from the investigating officers, and testimony from the victim‟s

mother establishing its timeline and theory of the case. The State‟s proffered testimony

outlined that the victim suffered blunt force trauma prior to her death and that the

petitioner was the only adult with the victim prior to her death. No evidence exists

supporting the petitioner‟s theory that his eight-year-old son, or anyone else, could have

injured the victim. Accordingly, we conclude that the petitioner has not established that

trial counsel‟s failure to object to the alleged false testimony of the investigating officer

prejudiced him in any way. He is not entitled to relief as to this issue.

After our review, we conclude the record is absent any evidence supporting the

petitioner‟s claim that he was unable to present “a complete defense” at trial due to the

alleged deficiencies of trial counsel. Accordingly, the petitioner has failed to show by

clear and convincing evidence that counsels‟ performance prejudiced the outcome of the

proceedings. See Strickland, 466 U.S. at 687. The petitioner is not entitled to post-

conviction relief for 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

-11-