CAMILLE R. MCMULLEN, J.
The Petitioner, Reginold C. Steed,
In April 2015, the Davidson County Grand Jury indicted the Petitioner for attempted first degree murder, especially aggravated robbery, carjacking, aggravated assault, and employment of a firearm during the commission of or attempt to commit a dangerous felony.
The facts presented at trial were that the victim had met the Petitioner through a mutual friend and had spent time with the Petitioner on five or six occasions.
The victim later discovered that his vehicle was missing from the Firehouse Subs parking lot.
The victim initially told police that he did not know the shooter's name.
The victim made multiple statements to police, which were consistent with his trial testimony.
The Petitioner testified that he called the victim on February 18, 2015, for the purpose of purchasing one-quarter of a pound of marijuana from him.
At the conclusion of trial, the jury convicted the Petitioner of attempted voluntary manslaughter as a lesser included offense of attempted first degree murder, especially aggravated robbery, and aggravated assault but acquitted him of the carjacking and employment of a firearm offenses.
At his sentencing hearing, the Petitioner made an allocution, wherein he maintained his innocence and denied being the shooter.
On August 10, 2017, the Petitioner filed a timely pro se petition for post-conviction relief, alleging that post-trial counsel rendered ineffective assistance by failing to present evidence that the victim admitted he had "wrongfully accused the [Petitioner] of the offenses that he was convicted of on Dec[em]ber 3, 2015" and by failing "to declare a mistrial and ask the court to dismiss the charges with prejudice." Although the record indicates that the Petitioner filed other post-conviction petitions in late August 2017 and December 2017, these petitions are not included in the appellate record.
On October 17, 2017, the district attorney general appointed a special prosecutor in the Petitioner's post-conviction case after determining that "it would be in the interests of justice" to do so. On February 14, 2018, the State filed its response to the post-conviction petition, arguing that post-trial counsel was not ineffective in failing to present the victim's alleged recantation and that the State did not produce illegal evidence because there was no proof the victim's alleged recantation ever existed.
Prior to the post-conviction hearing, the Petitioner expressed a desire to represent himself. The morning of the February 20, 2018 hearing, the post-conviction court, at the Petitioner's request, relieved post-conviction counsel of the duty to represent the Petitioner, allowed the Petitioner to represent himself, and appointed post-conviction counsel as advisory counsel, or "elbow counsel," for the Petitioner after the Petitioner agreed to allow counsel to serve in this capacity.
During the February 20, 2018 post-conviction hearing, the Petitioner presented testimony from Officer Ruthie Marshall, post-trial counsel, and his father. He also testified in his own behalf.
Ruthie Marshall, an officer with the Tennessee Department of Correction, Probation, and Parole, testified that she completed the Petitioner's presentence investigation report. She stated that she did not interview the victim and instead sent the victim a letter informing him that there would be a sentencing hearing in this case and that he could complete a victim impact statement detailing any emotional, mental, or financial damages he sustained as a result of the Petitioner's crimes. Officer Marshall received the victim's impact statement on January 14, 2016. She then mailed a copy of this victim impact statement to the Petitioner's attorney and the district attorney general's office. In addition, she said a copy of the victim impact statement was placed in the district attorney general's file and was filed in the criminal court clerk's office. Officer Marshall asserted that if the victim had recanted his claim that the Petitioner was the perpetrator of these offenses, his recantation would have been included in the presentence report.
At the conclusion of Officer Marshall's direct examination, the Petitioner and the court had the following discussion:
During cross-examination, Officer Marshall identified the presentence investigation report in Case No. 2015-B-1337 that she signed and submitted to the court on December 21, 2015, and this document was admitted as Exhibit 1. She confirmed that Exhibit 1 was a fair and accurate depiction of the way the presentence report looked when she submitted it to the court. Officer Marshall then identified the victim impact statement addendum in Case No. 2015-B-1337 that was received from the victim on January 14, 2016, and this document was admitted as Exhibit 2. She confirmed that Exhibit 2 was a fair and accurate depiction of the way the victim impact statement looked when she received and submitted it to the court. Officer Marshall stated that the presentence report in Exhibit 1 and the victim impact statement in Exhibit 2 were the same documents that she had testified to during the direct examination conducted by the Petitioner.
Exhibit 2, the victim impact statement, included a printed form with the victim's handwritten responses. This form was signed by the victim and was not missing any pages. In it, the victim stated that he would be unable to enjoy the use of his right arm and had a permanent scar from the bullet wound because of the injuries inflicted by the Petitioner. The victim also outlined his medical expenses and attached medical records and receipts in support of these expenses. In one section of the victim impact statement, the victim wrote, "[The Petitioner] stole my car, drove it to Jackson, Tenn. Shot out the passenger window [and wind]shield. Window repairs were $300 [and] impound fee and for new keys was $200." Exhibit 2 did not contain a recantation of the victim's trial testimony.
Post-trial counsel, who represented the Petitioner in Case No. 2015-B-1337 during sentencing and on direct appeal, testified that he received a copy of the presentence investigation report and the victim impact statement in Case No. 2015-B-1337 and that these documents were admitted as exhibits during the Petitioner's sentencing hearing. He said that although the Petitioner claimed the victim had recanted his trial testimony that the Petitioner was the perpetrator, this recantation did not occur.
Post-trial counsel said the Petitioner told him that the victim had recanted his trial testimony and asked him several times "to get any statement wherein the victim changed his story in [the Petitioner's] favor." Upon receiving this information, post-trial counsel repeatedly asked the State for any statement in which the victim recanted his testimony; however, he never received anything. He also said the Petitioner asked the court for a statement wherein the victim recanted his trial testimony but never received such a statement. Post-trial counsel said he was "not aware that [any such statement] ever existed." He reiterated that he "never received a copy of any statement with the victim recanting his story."
During his direct examination of post-trial counsel, the Petitioner told the post-conviction court "he wasn't given a chance to . . . subpoena the victim," and the court responded: "Well, that wouldn't [have] happened at a post-conviction [hearing], sir. . . . [W]e are here on issues related to . . . the effectiveness of your attorney."
When the Petitioner resumed direct examination, post-trial counsel stated that he thought the State agreed to waive the Petitioner's sentencing hearing because it believed it was the "most efficient" way to handle the case and because it thought it was "making [the Petitioner] a fair offer." He said the State's offer was "along the lines of . . . the minimum that [the Petitioner] could have received at the sentencing hearing."
During cross-examination, post-trial counsel stated that although the Petitioner informed him several times that he believed the victim might have made a statement recanting his trial testimony, the Petitioner never provided him with a lead or a source for this alleged statement and told him only to ask the State and the trial court for it, which he did. Post-trial counsel asserted that he did everything that the Petitioner asked him to do with regard to trying to locate this alleged recantation.
Post-trial counsel said he told the Petitioner that he was unable to locate this alleged statement prior to his sentencing hearing. He also told the Petitioner that he could ask the trial court for this alleged statement, which the Petitioner did several times prior to sentencing.
After the conclusion of post-trial counsel's testimony, the Petitioner asserted that he "had never received a copy of or a deadline [for] filing an amended petition." The Petitioner also stated that he had "never received a copy of . . . the colorable claim order, nor the order scheduling the evidentiary hearing." The court replied, "There isn't, we don't do that with these."
Thereafter, the Petitioner testified in his own behalf. He asserted that the trial court admitted that a mistake had been made regarding the victim impact statement; however, the Petitioner later acknowledged that he could have misunderstood the trial court.
On cross-examination, when asked how he learned of the victim's alleged recantation, the Petitioner stated, "I just heard from . . . another source that [the victim] had recanted his testimony and I assumed that that is what had taken place, because . . . my sentencing hearing was . . . put on hold so many times and they tried to get me to waive my sentencing hearing and the State didn't want to go through with the sentencing hearing[.]" The Petitioner admitted that in the copy of the victim impact statement he received, the victim never recanted his trial testimony.
The Petitioner also admitted that he had never received a statement containing the victim's recantation. He reiterated that he had never received "a copy of the colorable claim or the order saying that an evidentiary hearing was scheduled for today," which made him unprepared to "adequately assess this case and . . . make [his] argument."
The Petitioner explained that he first learned of the victim's recantation when his father told him that he had seen a document at the clerk's office indicating the victim did not know who the perpetrator was and that the clerk's office refused to give him a copy of this document. The Petitioner admitted that he had no other evidence that the victim had recanted his testimony identifying him as the perpetrator.
The Petitioner's father, Reginald Steed, Sr.,
On cross-examination, Mr. Steed stated that the note he saw in the clerk's office, which included the victim's recantation of his trial testimony, differed from the victim impact statement admitted as Exhibit 2. He said the note he observed in the clerk's office was handwritten and contained Officer Marshall's signature but did not contain the victim's signature. Although Mr. Steed acknowledged that he was unaware that the Petitioner had several criminal matters pending at the time of his sentencing in this case, he believed that the note he had seen had a case number ending in "1337." Mr. Steed assumed that the note from the Petitioner's file was what was delaying the Petitioner's sentencing hearing.
On February 28, 2018, the post-conviction court entered an order denying post-conviction relief. In it, the court made the following findings of fact and conclusions of law regarding the Petitioner's claims:
Following entry of this order, the Petitioner filed a timely notice of appeal.
First, the Petitioner contends that post-trial counsel was ineffective in failing to present evidence that the victim had recanted his trial testimony identifying the Petitioner as the perpetrator. He claims that post-trial counsel discussed the matter with him and was aware that the Petitioner's father, Mr. Steed, had seen this recantation in the victim impact statement. He also asserts that there was no reason to doubt Mr. Steed's credibility regarding the existence of the recantation and that there was nothing in the record to indicate that Mr. Steed confused this case with another one of the Petitioner's cases. The State counters that the post-conviction court properly found that post-trial counsel was not ineffective. We agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her conviction or sentence is void or voidable because of an abridgement of a constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:
A post-conviction petitioner has the burden of proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1);
In order to prevail on an ineffective assistance of counsel claim, the petitioner must establish that (1) his lawyer's performance was deficient and (2) the deficient performance prejudiced the defense.
Although the Petitioner claims that post-trial counsel was deficient in failing to present evidence of the victim's recantation, the Petitioner never testified that he told counsel his father had seen the victim's recantation in the court file. In fact, post-trial counsel specifically testified that the Petitioner failed to give him any leads regarding where to find proof of the alleged recantation. He said that despite the absence of any leads, he repeatedly asked the State for proof that the victim had recanted his testimony, but he never received anything. In addition, although the Petitioner's father, Mr. Steed, testified that he just assumed counsel for both parties had seen the victim's recantation because it appeared on the first page of the victim impact statement, he never testified that he discussed this recantation with post-trial counsel. Given this proof, we agree with the State that the Petitioner failed to show that post-trial counsel was deficient in failing to present the alleged recantation.
We also agree with the State that the Petitioner failed to show he was prejudiced by post-trial counsel's performance given that there was no clear and convincing evidence that this recantation ever existed. The only proof supporting the Petitioner's claim is Mr. Steed's testimony that he saw a handwritten note signed by Officer Marshall indicating that the victim now claimed that he did not know who had perpetrated the crimes against him. However, Officer Marshall testified that she never interviewed the victim and that when she received the victim impact statement from the victim in this case, she forwarded it to the court, the district attorney general's office, and the Petitioner's attorney. A review of this victim impact statement shows that the victim clearly identified the Petitioner as the perpetrator and never recanted his trial testimony. Because the Petitioner has failed to establish that the victim's recantation ever existed, he cannot show that he was prejudiced by post-trial counsel's failure to present it as evidence. For all these reasons, the Petitioner has failed to establish that post-trial counsel provided ineffective assistance.
The Petitioner also contends that the post-conviction court failed to enter an order setting his evidentiary hearing, as required by Tennessee Code Annotated section 40-30-109. He asserts that because he never received notice of the date for his post-conviction hearing, he was denied the opportunity to prepare for the hearing in a meaningful fashion and denied the chance to file an amended post-conviction petition raising additional issues. The State responds that the Petitioner has failed to demonstrate that he did not receive notice of the hearing or that he suffered prejudice from the court's alleged failure to enter an order pursuant to Code section 40-30-109(a). Because the record shows that the Petitioner was informed of the hearing date, requested that he represent himself, and was prepared to present proof the day of the post-conviction hearing, he is not entitled to relief on this claim.
As relevant to this issue, Tennessee Code Annotated section 40-30-109(a) provides:
Here, the Petitioner appears to argue that his failure to receive notice of the post-conviction hearing constitutes a due process violation. Due process in the post-conviction setting demands that the Petitioner have "`the
Finally, the Petitioner presents a stand-alone claim that the trial court erred in failing to consider the victim's alleged recantation in the victim impact statement at his sentencing hearing.
All post-conviction claims that have been waived must be dismissed.
Lastly, we remand this case to the post-conviction court for entry of a corrected judgment in Count 2 in Case Number 2015-B-1337. The record in this case shows that the trial court merged Count 4 with Count 2, and the validity of this merger is not at issue in this case.
The judgment of the post-conviction court is affirmed. However, the case is remanded for entry of a corrected judgment form in Count 2, as specified in this opinion.
