ALAN E. GLENN, Judge.
The Petitioner, James Allen Pollard, appeals the post-conviction court's dismissal of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel. After thorough review, we affirm the dismissal of the petition.
On February 12, 2009, the Petitioner was convicted of first-degree felony murder, first-degree premeditated murder, and especially aggravated robbery. The first-degree felony murder and first-degree premeditated convictions were later merged, and the Petitioner was sentenced to life imprisonment plus eighteen years.
General Housel testified that she met with defense counsel again on February 6, 2009, and she "brought the entire file for [defense counsel] to look through. [She] opened it, showed him everything" and gave defense counsel the opportunity to make copies of the file, which included the letter from Mr. Bowers and information regarding the rape allegation and investigation. General Housel testified she was "one hundred percent positive that [she] went into great detail with [defense counsel], all of the allegations that were made and the letter [Mr. Bowers] sent [her]."
General House[l] testified that she believed that Mr. Bowers "was going to get consideration for his testimony," but that she did not know what relief, if any, he received in federal court. She testified that she did not tell defense counsel that Mr. Bowers was eligible for a sentence reduction in exchange for his testimony "because [she didn't] know that that's true." She told defense counsel that all she could do for Mr. Bowers was "put in a good word" for him to Assistant United States Attorney Blanche Cook, who was assigned to Mr. Bowers' case. General Housel acknowledged that she sent an email to Ms. Cook following [the Petitioner]'s trial, advising Ms. Cook that Mr. Bowers "did a fabulous job" and General Housel wrote, "I know I can't help Mr. Bowers but if I could, I would certainly give him any consideration and break I could. He provided crucial testimony."
General Housel testified that she met with Mr. Bowers on November 30, 2007. Another Assistant District Attorney, Katie Miller, accompanied her to that meeting to discuss a case in which Mr. Bowers offered some information. Ms. Housel did not know of any other cases in which Mr. Bowers had provided assistance to the prosecution. Ms. Housel testified that Mr. Bowers "was not a possible witness until [she] found out that he had been cleared of the rape allegation."
Attorney Jack Seaman testified that he represented Mr. Bowers in federal court at a hearing on a "Rule 35" motion to reduce Mr. Bowers' sentence in 2008, prior to Mr. Bowers having testified at [the Petitioner]'s trial. Mr. Seaman explained that a Rule 35 motion is filed by the government in order to seek a reduction in a defendant's sentence based on assistance he provided to the government. In Mr. Bowers' case, the motion was denied. Mr. Seaman testified that he represented to the federal court that Mr. Bowers "provided information and assistance regarding at least five people that got convicted" and in one case in which the [the Petitioner] pled guilty, and that Mr. Bowers "provided assistance in the prosecution of a couple of people but he [was] not called as a trial witness." At the time of Mr. Bowers' resentencing hearing, Mr. Seaman did not believe that Mr. Bowers would be called as a witness in [the Petitioner]'s case "because of accusations he was involved in a gang rape."
On cross-examination, Mr. Seaman testified that he contacted General Housel "[m]ultiple times" to offer Mr. Bowers' assistance in [the Petitioner]'s case, and Ms. Housel advised that the State was not interested in Mr. Bowers' testimony "because the case was so strong." Mr. Seaman recalled a conversation with General Housel after Mr. Bowers was accused of rape in which General Housel advised Mr. Seaman that she was "absolutely" not going to call Mr. Bowers to testify. Mr. Seaman acknowledged that General Housel contacted him in January, 2009, to inquire about the rape allegation, and Mr. Seaman informed her that the rape allegation was false. General Housel then asked Mr. Seaman to find out whether Mr. Bowers would still testify, and Mr. Seaman was doubtful that Mr. Bowers would testify because he had already had his resentencing hearing. Mr. Seaman testified that Mr. Bowers did not benefit from his testimony in [the Petitioner]'s case. Mr. Seaman also testified that he did not inform General Housel about other cases in which Mr. Bowers provided assistance.
[The Petitioner's trial counsel] testified that he became aware of Anthony Bowers on January 30, 2009, when he received a fax from General Housel that listed four additional potential State's witnesses. [The Petitioner's trial counsel] testified that in a "subsequent conversation," General Housel disclosed that Mr. Bowers' testimony was regarding a "jailhouse confession" and that there had been "a rape case against Bowers but he was exonerated on that." General Housel stated that she was unsure whether Mr. Bowers would be called to testify. [The Petitioner's trial counsel] testified that if he had more time, he "would have done everything [he] could to have tried to follow up on this." [The Petitioner's trial counsel] acknowledged that General Housel had "been very open and very forthcoming, as she always is in every case" and that she had offered for [the Petitioner's trial counsel] to copy her file which was "probably eight to nine inches thick." He testified that General Housel told him that her file was "basically the same as [his]," and [the Petitioner's trial counsel] did not look through the file, although he did not think that General Housel "would have objected had [he] gone through it line by line, sheet by sheet."
[The Petitioner's trial counsel] testified that he was not made aware of the letter from Mr. Bowers to General Housel; however, on cross-examination, he acknowledged that General Housel told him that she had received a letter from Mr. Bowers and that he remembered General Housel "paraphrasing the contents of the letter." [The Petitioner's trial counsel] testified, "General Housel and I had spoken pretty regularly about Bowers, and—even to the fact that she didn't know whether he would testify[.]" [The Petitioner's trial counsel] testified that he listened to the audiotape of General Housel's interview with Mr. Bowers on the morning before Mr. Bowers testified. [The Petitioner's trial counsel] was aware of the allegations against Mr. Bowers and that "he had been cleared." However, [the Petitioner's trial counsel] was "not aware, or made aware, of the factual basis" for the allegation, and had he known, he would have cross-examined Mr. Bowers about it. [The Petitioner's trial counsel] testified, "I would have used anything I could have to have shown any possible motive on his behalf other than the goodness of his heart."
[The Petitioner's trial counsel] was not aware that Mr. Bowers had provided assistance in any prosecutions other than the one in which Assistant District Attorney Katie Miller also met with Mr. Bowers with General Housel present. [The Petitioner's trial counsel] testified that he "distinctly remembered" General Housel telling him that "there was nothing that [she] could do to help [Mr. Bowers]." [The Petitioner's trial counsel] testified, "General, in my opinion you told me—you disclosed everything that you knew." [The Petitioner's trial counsel] testified that he believed that "the most damning testimony" was that of the medical examiner and the firearms expert. He testified, "I would say these two coupled together were the things that we just weren't able to overcome."
Id. at *1-7.
The Petitioner filed a timely petition for post-conviction relief on December 2, 2014, in which he argued, as in this appeal, that he received ineffective assistance of counsel because trial counsel failed to effectively challenge the testimony of Anthony Bowers, failed to sufficiently litigate his motion to suppress, and failed to object to the testimony of Officer Wayne Kirby as a "blood splatter" expert. The post-conviction court conducted evidentiary hearings on the Petitioner's issues on August 3, November 9, and December 15, 2015.
At the August 3, 2015 evidentiary hearing, the Petitioner's trial counsel testified that he had been an attorney for forty-five years and had handled over a hundred criminal trials, both in state and federal court. Trial counsel testified that he was familiar with the federal electronic case filing system and further conceded that he did not look through the State's discovery "page by page" because he and the State had "basically, the same file[.]" He affirmed that he did not see an email from an Assistant United States Attorney referencing Mr. Bowers' testifying and seeking a reduction in his prison sentence, and he further stated that he was not made aware that Mr. Bowers would be testifying until the night before trial. He also affirmed that he was unaware that Mr. Bowers had previously provided information to the government against other defendants and that he had assaulted a fellow inmate. Trial counsel testified that if he had known about the circumstances surrounding Mr. Bowers' testimony, he would have used it to cross-examine him. However, trial counsel also explained that although he did not know about the specific circumstances surrounding Mr. Bowers, during cross-examination he asked Mr. Bowers about his drug use and criminal history and during closing argument he portrayed Mr. Bowers as "a snitch and a liar" and told the jury not to be surprised if Mr. Bowers and his attorney later "ask[ed] for a modification of his sentence" based on his testifying. When asked whether he believed the evidence against the Petitioner was overwhelming, even without Mr. Bowers' testimony, trial counsel responded that he "would certainly agree that there was a factual basis for the jury to find what they found."
Trial counsel also testified regarding his actions during the suppression hearing. When asked why he did not call the Petitioner to testify regarding whether officers had illegally seized him, trial counsel stated that the Petitioner had declined to testify, even after trial counsel explained that the issue was "something [the Petitioner] was going to have to substantiate." Further, trial counsel stated that even if the Petitioner had testified at the suppression hearing, he did not believe the Petitioner would have testified that there was "any show of force by the police that compelled him to come to the police station" because he had never mentioned a show of force to trial counsel. Trial counsel explained that he chose to rely on the videotape of the Petitioner's interview with police as substantive proof at the suppression hearing based on the Petitioner's unwillingness to testify. Trial counsel conceded that the Petitioner "changed his story" multiple times during his interview with police and even asserted that he had shot the victim twice in self-defense after the victim shot at him, though no other "bullet strikes or casings" were found at the victim's apartment. Trial counsel also conceded that "one of the big thing[s]" at the suppression hearing was that the Petitioner was both "allowed to leave during the interview to go down the hall" and to "leave after the interview."
Trial counsel was finally questioned about the "blood splatter" trial testimony of Officer Kirby. When asked why he did not object to Officer Kirby's testimony, trial counsel explained that:
Though trial counsel conceded that he had not read the specific cases mentioned by appellate counsel, he testified that he read "digests . . . on the issue of blood splatter" and "felt strategically it would be better not to [object]."
At the November 9, 2015 post-conviction hearing, attorney Kathleen Morris gave expert testimony, over the State's objection, regarding how "non-deficient" defense counsel should operate. Ms. Morris testified that a non-deficient attorney would look through discovery given by the State. She also stated that a non-deficient attorney would call his client to testify at a suppression hearing regarding whether his client was illegally seized by police. Ms. Morris testified that a non-deficient attorney would look through an inmate's file after being told he was going to testify against his client and stated that she was personally able to find Mr. Bowers' file and his previous efforts to obtain sentencing reductions. She finally testified that a non-deficient attorney would object to a police officer giving "blood splatter" testimony without first being qualified as a "blood splatter" expert and would move for a mistrial.
Mr. Bowers also testified at the November 9, 2015 hearing. He affirmed that he had previously received a reduction in his sentence length for his assistance in the State's prosecuting a drug dealer. He further affirmed that he had provided information against multiple other cellmates and had sought a sentence reduction in those cases. He also offered to provide information for federal cases in Kentucky and Florida and for three cases in Nashville, including the Petitioner's. Mr. Bowers conceded that prior to the Petitioner's trial, a federal judge denied a motion to reduce his sentence because of his assault of a fellow inmate and found Mr. Bowers to be "not credible on th[o]se issues." He testified that although he had been questioned about his motives by trial counsel, if he had been specifically asked about his desire for a sentencing reduction, he would have conceded that it was his motive in testifying against the Petitioner. Mr. Bowers also stated that the only time he had testified regarding the information he tried to provide was at the Petitioner's trial, and he verified that he had not been promised any sentence reduction by the State or federal government and that his testimony "didn't help [him,]" but affirmed that it was truthful.
At the December 15, 2015 post-conviction hearing, Detective Wiser testified that Ms. Hooten implicated the Petitioner in the murder of the victim after falsely accusing two other men. Based on Ms. Hooten's previous incorrect statements, Detective Wiser testified that he did not get an arrest warrant for the Petitioner, but rather decided first to interview him. Detective Wiser testified that he and Detective Windsor located the Petitioner in the parking lot of Ms. Hooten's apartment. Although he did not remember whether he put his hand on his gun, he stated that he had a gun on his hip "[a]s [officers] always do[,]" but that he "typically d[idn't]" keep his hand on his gun. He testified that the Petitioner agreed to "voluntarily com[e] down to the police station for an interview" and that they transported the Petitioner to the police station after frisking him for weapons, as was "standard procedure." He further explained that although he could not remember exactly why they transported the Petitioner to the police station, it was "not uncommon" for them to give rides to people who needed to go to the police station, "like a courtesy." Detective Wiser further affirmed that his interaction with the Petitioner was not hostile, but was a "civil conversation . . . [t]here w[eren't] any direct commands, or nothing [] like that."
The Petitioner also testified at the December 15, 2015 hearing. He testified that Detective Wiser "reached for his gun" when he and Detective Windsor approached the Petitioner in the parking lot of Ms. Hooten's apartment. He stated that the detectives would not allow him to go back to his apartment to tell "the kids" he was leaving, called for a police car, and "never gave [him] [the] choice" to walk away from them. The Petitioner further testified that he "never left custody" of the detectives after getting in the police car, though he affirmed he was not handcuffed. He stated that he relayed this information to trial counsel, and he responded, "Not that I recall" when asked whether trial counsel talked to him about testifying at the suppression hearing. On cross-examination, the Petitioner affirmed that trial counsel had "done his homework" and presented a recently-decided case at the suppression hearing that was similar to the Petitioner's. He further affirmed that trial counsel met with him "many, many times[,]" "showed [him] all the discovery in this case[,]" and "successfully was able to keep [the] pictures of [the] dead [victim] out[.]" He also testified that trial counsel "went over possible defenses" with him, and he chose not to testify at trial. The Petitioner also agreed that trial counsel had put on character witnesses on his behalf, made many objections, and "involved [him] in many discussions" regarding the trial.
At the close of the final evidentiary hearing, the post-conviction court entered a written order denying and dismissing the Petitioner's post-conviction petition, finding that he was not entitled to relief. The Petitioner now appeals.
The post-conviction petitioner bears the burden of proving his allegations by clear and convincing evidence.
The Petitioner argues that trial counsel was deficient for failing to investigate Mr. Bowers before he testified, insufficiently arguing during the motion to suppress hearing, and failing to object to Officer Kirby's "blood splatter" testimony. We initially note that the post-conviction court failed to specifically address the Petitioner's arguments regarding the motion to suppress and the failure to object to Officer Kirby's testimony. The post-conviction court only found that "trial counsel's failure to investigate Mr. Bowers prior to trial did not prejudice the defense of [the Petitioner]." The court did not specifically address any other arguments, and instead concluded that,
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.
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."
Courts need not approach the
The Petitioner argues that trial counsel was deficient in not investigating Mr. Bowers before he testified at trial. He further argues that trial counsel's cross-examination of Mr. Bowers "caused the defense more harm than would have no cross-examination at all." The Petitioner relies on
The Petitioner fails to recognize the important differences between
Finally, the Petitioner argues that the State's other evidence against him would not have been sufficient to sustain his conviction without Mr. Bowers' testimony, namely because the Petitioner's assertion that he acted in self-defense would not have been contradicted. However, as we have laid out, despite the Petitioner's claim to detectives that he shot the victim in self-defense after the victim first fired a shot at him, there is no evidence that anyone but the Petitioner fired a gun. Further, the medical examiner, Dr. Deering, testified that the first shot to the victim was made from between six inches and two feet away, while the second, fatal shot was made from only six inches away, demonstrating that the Petitioner moved closer to the victim after the first shot, just as he stated to detectives. Dr. Deering testified that it was possible the first shot knocked the victim unconscious. Thus, the only evidence supporting the Petitioner's claim of self-defense is his own assertion. We agree with the post-conviction court's conclusion that the Petitioner did not suffer prejudice as a result of trial counsel's failure to impeach Mr. Bowers.
The Petitioner also argues that trial counsel was ineffective in failing to present proof at the motion to suppress hearing that the Petitioner was seized by detectives. Although the Petitioner asserts that trial counsel never talked to him about testifying at the suppression hearing, trial counsel testified that he told the Petitioner that this was an issue that would have required the Petitioner's testimony in light of the other evidence, namely the video of the Petitioner's interview and subsequent confession and the testimony of detectives. Trial counsel testified that the Petitioner elected not to testify at the suppression hearing, and trial cousnel was thus forced to rely on the other available evidence to support the argument that the Petitioner's confession should have been suppressed. He further testified that the Petitioner never discussed with him that detectives had used force. Instead, trial counsel affirmed that the video of the Petitioner's interview showed that he was not handcuffed and was allowed to leave the room and walk down the hall during the interview.
Contrary to the Petitioner's testimony at the post-conviction evidentiary hearing that Detective Wiser approached him with his hand on his gun, Detective Wiser testified that he did not remember having his hand on his gun and would have only done so in a dangerous situation, and Detective Wiser affirmed that his interaction with the Petitioner had been civil, not threatening. Detective Wiser also testified that Detective Windsor had spoken to the Petitioner about voluntarily coming to the police station to be interviewed. He also affirmed that it was not unusual for them to provide transportation to the police station to witnesses or victims. Further, Detective Wiser stated, and the Petitioner conceded, that the Petitioner had not been handcuffed in the patrol car or during the interview. Instead, he had been allowed to leave the interview and walk down the hall by himself.
Except for the Petitioner's own assertions, there is nothing in the record to support a finding that he was seized by detectives. In fact, even without any strong evidence, trial counsel argued for suppression and presented a recently-decided case in support of the Petitioner. Although he was not able to keep the Petitioner's confession out, he was able to keep graphic photographs of the victim's bullet wounds out. Trial counsel testified that the Petitioner was unwilling to testify at the suppression hearing, despite his explanation of the necessity of doing so. Without the Petitioner's testimony, trial counsel lacked the evidence necessary to present proof that the Petitioner was seized. It is true that had the Petitioner's confession been suppressed, the State would have had a weaker case and, as Ms. Morris suggested, trial counsel would have been deficient if he unilaterally decided that the Petitioner would not testify at the suppression hearing. However, the post-conviction court accredited the testimony of trial counsel and the detectives over that of the Petitioner. The record suggests that trial counsel would have called the Petitioner to testify at the suppression hearing had he been willing, but even so, the testimony of the detectives and of trial counsel suggest that the Petitioner was not seized, regardless of whether or not he testified at the suppression hearing. Further, this court noted on direct appeal that the Petitioner had conceded that he voluntarily met with the detectives at the police station.
The Petitioner also contends that trial counsel was ineffective in failing to object to Officer Kirby's testimony regarding blood spatter, despite his not being qualified as an expert witness. As we have laid out, Officer Kirby testified that, based on his thirteen years of experience with the police department and his observations of blood spatter at the crime scene, he believed the victim was lying down on the ground when he was shot. On appeal, the Petitioner raised the issue of the trial court's admission of Officer Kirby's testimony. Because the Petitioner had not raised the issue in the trial court, this court utilized plain error analysis and found that no plain error existed.
The Petitioner argues that "trial counsel was unable to provide any strategic explanation for why he failed to object" to Officer Kirby's testimony and "admitted that he had not read" the specific cases the Petitioner referenced. Additionally, Ms. Morris testified that a non-deficient attorney would have objected to the testimony. However, trial counsel testified that he chose not to object to Officer Kirby's testimony in order to "draw as little attention as possible" to his testimony that the victim was on the ground when he was shot and stated that his strategy was to "lessen the impact" of Officer Kirby's testimony. He further testified that he had read "the digests" on blood spatter. Although the Petitioner seems to assume that trial counsel's objection would have kept Officer Kirby's testimony out completely, as this court noted on direct appeal, there is nothing in the record to support the conclusion that Officer Kirby undoubtedly would not have been qualified as an expert had trial counsel objected; in that scenario, the same testimony would have been introduced to the jury, except with the added impact of it coming from an expert witness. Moreover, the Petitioner offered no evidence of Officer Kirby's qualifications as an expert, or lack thereof, during the post-conviction evidentiary hearings.
The Petitioner further asserts that Officer Kirby's testimony was "the only direct evidence (other than the testimony of Mr. Bowers), which directly cast doubt on [the Petitioner]'s claim" that he shot the victim while they were struggling. However, the Petitioner's own version of events in his reply brief state that, during his interview with detectives, "[The Petitioner] demonstrated how [the victim] immediately fell to the ground following the first shot . . . and . . . [the Petitioner] fired a second shot into the left side of his head." Though the Petitioner questioned trial counsel as to why he would "let[] proof come out that [the victim] was effectively executed lying on the ground[,]" he fails to realize that his own version of events demonstrated such a scenario. The Petitioner again fails to establish that trial counsel's performance was deficient or that he suffered prejudice as a result of the alleged deficiency.
The Petitioner requests this court to consider the cumulative effect of the errors he has alleged above in deciding whether to grant him relief in this post-conviction appeal. Because we have found no single instance wherein trial counsel was deemed ineffective, there is no basis to conclude that any cumulative error resulted in an unfair trial.
Based on the foregoing authorities and reasoning, we affirm the dismissal of the petition.
