James Dominic Stevenson v. State of Tennessee

09/23/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 13, 2021

JAMES DOMINIC STEVENSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County

No. 16-CR-11 M. Wyatt Burk, Judge

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No. M2020-00134-CCA-R3-PC

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The Petitioner, James Dominic Stevenson, was convicted by a jury of attempted first

degree murder, three counts of aggravated assault, and reckless endangerment with a

deadly weapon after he shot his ex-girlfriend in her car in the presence of her child. His

aggravated assault convictions were merged into the attempted first degree murder

conviction, and he received an effective twenty-seven-year sentence. The Petitioner filed

for post-conviction relief, asserting that he received ineffective assistance from his trial

counsel, and his petition was denied after a hearing. On appeal, we affirm the denial of

post-conviction relief.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES

CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

John M. Schweri, Columbia, Tennessee, for the appellant, James Dominic Stevenson.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Robert J. Carter, District Attorney General; and William Bottoms and

Drew Wright, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

Trial

At trial, the State presented physical evidence, including bullet casings, broken

glass, blood spatter, and medical testimony that the victim, Ms. Dixie Matthews, had

been shot in the jaw. The victim testified the Petitioner shot her after she drove to a

parking lot to meet him, and she positively identified the Petitioner as the shooter, noting

that she had been romantically involved with him, that she was able to both see him

clearly and recognize his voice when he entered her vehicle, and that she was absolutely

certain he was the assailant. State v. James Dominic Stevenson, No. M2017-01514-CCA-

R3-CD, 2019 WL 1375349, at *2 (Tenn. Crim. App. Mar. 26, 2019), perm. app. denied

(Tenn. July 18, 2019). The defense tried to introduce reasonable doubt by arguing that

the evidence established that the victim and the Petitioner had never set a location to meet

by text, that the victim could not have communicated other than by text because her cell

phone was malfunctioning, and that therefore the Petitioner could not have been the

shooter.

The victim had been romantically involved with the Petitioner, but the relationship

soured, and the victim obtained a restraining order against the Petitioner in March 2015.

Id. at *1. However, they continued to see each other until around the end of August

2015. Id. Prior to the shooting, the Petitioner discovered through social media that the

victim had announced a pregnancy, and he contacted her on September 4, 2015. Id. The

appellate opinion on direct review gave the following summary of the communication

between the victim and the Petitioner:

The [Petitioner] contacted [the victim] again on the morning of

September 5 by text message, asking whether he was the father of [the

victim’s] unborn child. [The victim] testified that she communicated with

the [Petitioner] via telephone calls and by text messages on September 5.

A series of text messages from September 4 and 5 between [the

victim] and the [Petitioner] were exhibited to [the victim’s] testimony and

shown to the jury. [The victim] explained that during the time of those text

messages, she was in the process of moving from Lewisburg to

Lawrenceburg. During a text message conversation on September 5, [the

victim] stated that her “iPhone almost had it[;] it keeps blacking out and

[the] spe[a]ker quit working.” Later, in that same text message

conversation, the [Petitioner] asked whether he could “see [the victim’s

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toddler son]” that night, to which [the victim] responded, “Yea when we get

back to [L]ewisburg[.]” At approximately 9:55 p.m., [the victim] and the

[Petitioner] had the following conversation via text messages:

[The victim:] We coming into [L]ewisburg now[.]

[The Petitioner:] I’ll be ready[.]

[The victim:] K give us about 5 minutes[.]

[The Petitioner:] Ok[.]

[The victim] testified that she also had a telephone conversation with

the [Petitioner] during the same period that they were text messaging each

other, and the [Petitioner] told her that “he was over at his friend’s house”

and that she should meet him at the Marshall County Plaza (“the Plaza”)….

…

On cross-examination, [the victim] testified that the telephone she

had used to communicate with the defendant was an AT&T iPhone. She

agreed that everything she had stated in her text messages to the [Petitioner]

was true and accurate and that the text messages exhibited to the jury were

all of the messages sent between the [Petitioner] and her. She estimated

that she and the [Petitioner] had also communicated by telephone “about

three or four times” the night of September 5 and that the [Petitioner] had

initiated each of those calls.

Id. at *1-3.

When the victim arrived in the parking lot of the Plaza on September 5, 2015, the

Petitioner got into her car and hit her in the head with a hard object. Id. at *2. The victim

saw a gun in the Petitioner’s pocket, and she told him to get out of the vehicle. Id. The

Petitioner stepped out of the vehicle, and he proceeded to shoot the victim in the jaw. Id.

The victim attempted to drive off but stopped the car to retrieve her cell phone when it

fell on the car floor. Id. While the car was stopped, the Petitioner opened the passenger’s

side door, grabbed the cell phone, and ran into the bushes. Id. The Petitioner then fired a

second shot at the vehicle. Id.

The victim acknowledged at trial that she had been arrested for theft of a credit

card and was on probation at the time of trial. Id. at *1. The victim testified that she did

not perceive the text messages from the Petitioner as threatening. She also testified that

she had not been threatened by anyone else the night of the shooting. The State objected

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to any further questioning on the issue of third-party threats, and trial counsel did not

pursue further questioning.

Detective Santiago McKlean testified that he did not obtain the call log from the

victim’s cell phone but that he did subpoena the records from the service providers for

both the victim’s and Petitioner’s cell phones. “[H]e stated that he had no evidence of

telephone calls between the [Petitioner] and [the victim] other than [the victim’s]

statement to that effect.” Id. at *3. Trial counsel attempted to ask Detective McKlean

about the records from the service providers, in particular whether the times reflected on

the records were in Coordinated Universal Time (“UTC”) or Central Time, but the trial

court excluded the testimony, ruling that someone from the cell phone service provider

would have to testify in order to interpret the records. Trial counsel entered the records,

which indicated that the times were recorded in UTC, as an offer of proof.

The jury convicted the Petitioner of attempted first degree murder of the victim,

three counts of aggravated assault charged by alternative means, and reckless

endangerment of the victim’s son with a deadly weapon, and the trial court merged the

aggravated assault convictions into the attempted first-degree murder conviction. Id.

The Petitioner was sentenced to serve twenty-seven years in prison. Id. His application

for permission to appeal was denied by the Tennessee Supreme Court. State v. James

Dominic Stevenson, No. M2017-01514-CCA-R11-CD (Tenn. July 18, 2019) (order).

Post-Conviction

The Petitioner filed for post-conviction relief, raising twenty-one claims for relief,

including that trial counsel provided ineffective assistance by: (1) failing to procure DNA

testing of the victim’s cell phone; (2) failing to obtain the location service records for the

Petitioner’s cell phone or procure an expert to analyze them; (3) failing to interview the

victim; (4) failing to investigate threats received by the victim from a third party; and (5)

failing to develop a defense.

At the hearing, trial counsel testified that he visited the Petitioner three to five

times in jail and met with him on court dates. Trial counsel reviewed the discovery,

including the victim’s medical records, and he felt adequately prepared for trial. Trial

counsel testified that the State’s evidence was strong because the victim had clearly

suffered a gunshot wound and because she unequivocally identified the Petitioner, with

whom she had had a relationship, as the shooter. The Petitioner filed a bar complaint

against trial counsel, and trial counsel moved to withdraw prior to trial, but he felt that he

maintained a good relationship with the Petitioner during trial.

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Trial counsel did not request fingerprint or DNA analysis of the cell phone or the

cartridge casings. He testified that the victim’s phone had been left in the elements for a

period of time after the shooting and that he accordingly believed there was a low chance

of finding any DNA on it.

Trial counsel did not recall a search warrant for the Petitioner’s cell phone, but he

recalled that the proof introduced by the State was actually taken from the victim’s cell

phone. Trial counsel subpoenaed the records for the Petitioner’s cell phone from his cell

phone service carrier, but he did not specifically ask for the cell phone locator service

records. Trial counsel testified that he had asked the Petitioner about a possible alibi and

that the Petitioner had “directed [trial counsel] not to go down that path.” The Petitioner

never told trial counsel that he was out of the state at the time of the shooting.

Trial counsel testified that the records from the cell phone carrier were not

accurate for Central Time Zone because the records indicated time in UTC. Trial counsel

attempted to introduce proof regarding the correct times, but the State objected that such

proof required expert testimony. Because the court agreed with the State, trial counsel

made an offer of proof regarding the evidence.

Trial counsel acknowledged that he had not interviewed the victim prior to trial

but noted that he had reviewed the victim’s preliminary hearing testimony. He stated that

he prepared for trial with the victim’s audio recorded testimony and that this source

provided the information he needed for the cross-examination of the victim. He tried to

cross-examine the victim with inconsistencies between her preliminary and trial

testimony, but the State’s objections to his questions were sustained. He did not review

the preliminary hearing with the Petitioner or have it transcribed.

Trial counsel did not object to the introduction of the text messages from the

victim’s cell phone because he felt they supported the theory of the defense. The victim

testified at trial that she and the Petitioner had phone conversations prior to the shooting,

but the text messages reflected that the speaker on her cell phone was not functioning.

The text messages never specified a meeting place. Trial counsel asked the victim both if

everything contained in the texts was true and if her cell phone was the only phone she

used, and she answered in the affirmative to both questions. Trial counsel recalled that

Detective McKlean testified that there were no calls between the two cell phones on the

date of the offense. Trial counsel’s strategy was to cast reasonable doubt on the

Petitioner’s identity by arguing to the jury that the victim and Petitioner never agreed to a

meeting place either by text or by telephone and that the Petitioner, therefore, could not

have been the shooter. Trial counsel testified that he avoided further questioning the

victim about the broken speaker because he did not want to give the victim an

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opportunity to provide an explanation regarding how any meeting spot was

communicated.

The victim had made a claim around the time of trial that she was pregnant when

she was not. Trial counsel stated that it was not clear if this claim was an intentional

misrepresentation and that he did not attempt to introduce it at trial. He elaborated that

he did not want to impair the credibility of the defense with the jury by attacking a victim

who had clearly suffered a serious gunshot wound. Trial counsel did not recall any

contradictions in the victim’s testimony regarding how she got to the hospital in

Nashville.

The victim had stolen a credit card close in time to the shooting. Trial counsel

filed a motion to ensure that the evidence would be admissible. However, the State

introduced the conviction during its case-in-chief in order to minimize its impact. Trial

counsel testified that “a third party” had told the victim that the owner of the stolen credit

card was “going to come and get her.” He agreed that the victim had “brought up another

name of someone sending a threatening message” to her at the preliminary hearing. Trial

counsel did not attempt to interview the person who threatened the victim. He tried to

introduce the information during cross-examination, but he stated that the trial court

sustained an objection to the evidence.

The Petitioner testified that his first attorney quit private practice and that trial

counsel advised him to take a twenty-two-year plea offer when they first met. Trial

counsel met with the Petitioner three times in jail. The Petitioner complained to the

Board of Professional Responsibility about trial counsel and asked trial counsel to

withdraw because trial counsel was not communicating with him adequately. Trial

counsel did not review the preliminary hearing testimony with the Petitioner.

The Petitioner asked trial counsel about DNA proof, but trial counsel told him that

the DNA proof did not matter because the victim had identified the Petitioner. Trial

counsel did not obtain DNA testing or ballistics testing. The Petitioner acknowledged on

cross-examination that he had been in a relationship with the victim. Asked if it was

possible that his DNA had been deposited on the victim’s belongings through their

acquaintance and if finding such DNA would have been inculpatory, he stated he was

unsure.

The Petitioner stated that his first attorney had told him to produce his cell phone

so that they could try to use location services to pinpoint his location at the time of the

shooting. However, trial counsel never obtained location service records. The Petitioner

testified that trial counsel never mentioned the possibility of alibi proof until ten days

before trial. He stated he was out of the state on labor day weekend and first heard of the

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shooting when his mother told him he was accused of shooting “somebody.” The

Petitioner clarified that he was not out of the state but in Marshall County on the night of

the shooting.

According to the Petitioner, the victim’s testimony was inconsistent with her

preliminary hearing testimony in that she had testified that she was in an ambulance at

the preliminary hearing but stated at trial that she was moved via life flight. He stated

that he never spoke with the victim on the phone on September 4th or 5th. Instead, the

victim was released from jail and came to see him on September 3rd. The Petitioner

speculated that the “motive behind” the victim’s accusing him of shooting her was that

she was angry either that he had a date with another woman on the night of September

3rd or that he denied being the father of her unborn child.

The Petitioner testified that the woman whose credit card was stolen by the victim

threatened the victim about thirty to forty-five minutes prior to the shooting. Trial

counsel never investigated this threat.

The post-conviction court denied relief on all claims. Pertinent to the issues raised

on appeal, the post-conviction court found that the Petitioner had not established

prejudice regarding trial counsel’s failure to request DNA testing or location service

records because the Petitioner had not introduced any proof at the post-conviction hearing

regarding what trial counsel would have discovered. Furthermore, the Petitioner did not

provide any alibi and instructed trial counsel not to pursue an alibi defense. The post-

conviction court found that trial counsel was not deficient in failing to interview the

victim, failing to challenge her credibility, or failing to pursue the third-party threats

because trial counsel challenged the victim’s credibility on cross-examination. The court

denied each of the claims raised in the petition for failure to establish either deficiency or

prejudice. The Petitioner appeals.

ANALYSIS

The Petitioner asserts that counsel provided ineffective assistance when he: (1)

failed to procure DNA testing; (2) failed to obtain cell phone records and an expert to

interpret them; (3) failed to interview the victim; (4) failed to investigate threats received

by the victim from a third party; and (5) failed to investigate defenses or to retain “a

single expert.” We conclude that the Petitioner is not entitled to post-conviction relief.

Under the Post-Conviction Procedure Act, a petitioner is entitled to relief when

“the conviction or sentence is void or voidable because of the abridgment of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.”

T.C.A. § 40-30-103. The burden of proving allegations of fact by clear and convincing

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evidence falls to the petitioner seeking relief. T.C.A. § 40-30-110(f). The post-

conviction court’s findings of fact are binding on the appellate court unless the evidence

preponderates against them. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015).

Accordingly, the reviewing court defers to the post-conviction court’s findings regarding

the credibility of witnesses, the weight and value of witness testimony, and the resolution

of factual issues. Id. Questions of law and mixed questions of law and fact are reviewed

de novo. Id. Each element of a claim of ineffective assistance of counsel is a mixed

question of law and fact. Id.

Under the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution, the accused is guaranteed the right to effective assistance

of counsel. Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016). To prevail on a claim

that he was denied his constitutional right to effective assistance of counsel, a petitioner

must prove both that counsel’s performance was deficient and that the deficient

performance caused prejudice to the defense. Kendrick, 454 S.W.3d at 457 (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Deficiency requires showing that counsel’s errors were so serious “‘that counsel

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

Amendment.’” Nesbit v. State, 452 S.W.3d 779, 787 (Tenn. 2014) (quoting Strickland,

466 U.S. at 687). To demonstrate deficiency, the petitioner must show that counsel’s

performance fell below an objective standard of reasonableness under prevailing

professional norms. Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008). Courts must

make every effort “‘to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.’” Felts v. State, 354 S.W.3d 266, 277 (Tenn. 2011)

(quoting Strickland, 466 U.S. at 689). “‘[A] reviewing court must be highly deferential

and should indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Id. (quoting State v. Burns, 6 S.W.3d 453,

462 (Tenn. 1999)). In evaluating counsel’s performance, “‘[s]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.’” Kendrick, 454 S.W.3d at 458 (quoting Strickland, 466

U.S. at 690-91). The reviewing court must begin with the presumption “that counsel

provided adequate assistance and used reasonable professional judgment to make all

strategic and tactical significant decisions.” Davidson v. State, 453 S.W.3d 386, 393

(Tenn. 2014).

In determining prejudice, the post-conviction court must decide whether there is a

reasonable probability that, absent the errors, the result of the proceeding would have

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been different. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’” State v.

Honeycutt, 54 S.W.3d 762, 768 (Tenn. 2001) (quoting Strickland, 466 U.S. at 694). The

petitioner must show that the deficiency deprived him of a fair trial and called the

reliability of the outcome of the proceeding into question. Finch v. State, 226 S.W.3d

307, 316 (Tenn. 2007). A claim may be denied for failure to establish either deficiency

or prejudice, and the reviewing court need not address both components if a petitioner

has failed to establish one. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

A. DNA Testing

The Petitioner asserts that trial counsel should have obtained DNA testing of the

victim’s cell phone to show that he was not the shooter. Trial counsel testified that he did

not obtain testing because the cell phone had been exposed to the elements for a period of

time. The Petitioner acknowledged at the post-conviction hearing that he had been in a

relationship with the victim. The victim testified at trial that the two had continued to see

each other until close to the time of the shooting, and she positively identified the

Petitioner, with whom she was intimately acquainted, as the person who shot her. The

Petitioner has not adduced any evidence regarding what DNA testing would have shown

or what testimony an expert in DNA analysis would have given. We conclude that the

Petitioner has not established prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990).

B. Cell Phone Evidence and Experts

The Petitioner also asserts that trial counsel was deficient in failing to obtain

evidence regarding his cell phone location at the time of the shooting. The cell phone

records included in the record from trial contain a “Cell Location” column. The

Petitioner has not presented any testimony at the post-conviction hearing to demonstrate

what the cell phone location records would have shown, and accordingly, he has not

established prejudice. See id. We note that the Petitioner testified that he was in

Marshall County on the night of the shooting and that trial counsel testified at the post-

conviction hearing that he asked the Petitioner if he could provide alibi proof, and the

Petitioner instructed him “not to go down that path.”

The Petitioner also asserts on appeal that trial counsel was deficient in failing to

obtain an expert to clarify the time zone reflected in the cell service carrier records or in

failing to ask for judicial notice of the time zone change. These claims were not included

in the written post-conviction petition or decided by the post-conviction court, and they

are accordingly waived. See Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020)

(“Tennessee appellate courts may only consider issues that were not formally raised in

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the post-conviction petition if the issue was argued at the post-conviction hearing and

decided by the post-conviction court without objection.”). In any event, the Petitioner

presented no witnesses to establish what the expert testimony on time zones would have

been, see Black, 794 S.W.2d at 757, and he has articulated no way in which the time zone

evidence affected the verdict, see Berry v. State, 366 S.W.3d 160, 172 (Tenn. Crim. App.

2011).

C. Failure to Interview the Victim

The Petitioner also asserts that trial counsel provided ineffective assistance by not

interviewing the victim. Trial counsel testified that he did not interview the victim but

that he knew what her testimony would be from reviewing the preliminary hearing

testimony, that he was able to obtain the information he needed from her preliminary

hearing testimony, and that he used her prior testimony to impeach her. The Petitioner

does not articulate how an interview with the victim prior to trial would have affected the

outcome of the proceedings. See Berry, 366 S.W.3d at 172 (denying relief when the

petitioner failed to allege any fact that might constitute prejudice). We conclude that the

Petitioner has not established deficiency or prejudice.

D. Failure to Investigate Threats

The Petitioner also asserts that trial counsel performed deficiently by not

investigating the threats made against the victim shortly before the shooting. Trial

counsel testified that a third party told the victim that the owner of the stolen credit card

was “going to come and get her.” Trial counsel acknowledged that he did not attempt to

interview the person who threatened the victim. He testified that he tried to introduce the

information during cross-examination, but the trial judge sustained an objection to the

evidence. At the hearing, no evidence was introduced regarding the threat or what

counsel’s further investigation would have uncovered. See Black, 794 S.W.2d at 757.

Accordingly, the Petitioner has not shown prejudice.

E. Failure to Investigate Defenses or Retain Experts

The Petitioner generally claims that trial counsel failed to “investigate defenses”

or retain “a single expert.” Because the Petitioner has not articulated what specifically

trial counsel should have done in this regard, and because he has not presented the

testimony of any experts to allow an evaluation of prejudice, he has not established

deficiency or prejudice and is not entitled to relief. See id.

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CONCLUSION

Based on the foregoing analysis, the denial of post-conviction relief is affirmed.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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