Timothy Shane Hixson v. State of Tennessee ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville September 15, 2015
TIMOTHY SHANE HIXSON v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 2010-B-1676 Cheryl Blackburn, Judge
No. M2015-00065-CCA-R3-PC – Filed December 17, 2015
The Petitioner, Timothy Shane Hixson, appeals the Davidson County Criminal Court‟s
denial of his petition for post-conviction relief from his conviction of aggravated robbery
and resulting twenty-four-year sentence. On appeal, the Petitioner contends that he
received the ineffective assistance of trial counsel. Based upon the record and the
parties‟ briefs, we affirm the judgment of the post-conviction court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.
Elaine Heard, Nashville, Tennessee, for the appellant, Timothy Shane Hixson.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In its direct appeal opinion, this court summarized the evidence at trial as follows:
Shamal Harley, a student at Nashville Auto Diesel College, testified that on the night of
February 20, 2010, he was walking home from a party and encountered a Chevrolet
Avalanche with three people inside on the side of the road. State v. Timothy Shane
Hixson, No. M2012-02357-CCA-R3CD, 2013 WL 4082354, at *1 (Tenn. Crim. App. at
Nashville, Aug. 14, 2013). Harley spoke briefly with the driver. Id. Meanwhile, the
front-seat passenger got out of the vehicle. Id. After speaking with the driver, Harley
turned and was walking away when the front-seat passenger grabbed him from behind,
put a knife to his throat, and demanded his wallet. Harley reached up and touched the
knife and gave the wallet to him. Id. The robber returned to the vehicle, and the truck
left the area. Later that night, police officers found the Avalanche only one or two miles
from the scene of the robbery. Id.
A police officer drove Harley to the truck, and he recognized it as the one involved
in the crime. Id. He also recognized all three of the vehicle‟s occupants and identified
the Petitioner as the front-seat passenger. Id. at *1-2. Harley had reported seeing a
wheelchair in the vehicle, and the police noticed a wheelchair in the back seat. Id. at *2.
They also recovered Harley‟s wallet at the scene and found a knife and some loose credit
cards inside the truck. Id. at *1, 2. On cross-examination, Harley denied that he saw the
Petitioner walking with a cane during the robbery but acknowledged that he did not
actually see the Petitioner brandish a knife. Id. at *2. One of the officers who had found
the Avalanche testified that he asked the driver to step out of the vehicle and that the
driver claimed he needed the wheelchair due to a disability. Id. at *3. On cross-
examination, the officer acknowledged that he saw the Petitioner with a cane that night.
Id.
The Petitioner testified on his own behalf, stating as follows:
[He] drove to an area near the Nashville Auto Diesel
College and encountered Mr. Harley walking down the street.
The [Petitioner] asked Mr. Harley if “he know[s] where [the
Petitioner] can get any pills,” and, according to the
[Petitioner], Mr. Harley responded that his “buddy” had some
for $10 each. The [Petitioner] told Mr. Harley that he would
like to purchase three pills, and Mr. Harley explained that he
needed the $30 up front. When the [Petitioner] was hesitant
to give him the cash, Mr. Harley offered to let the [Petitioner]
hold his wallet until he returned with the pills. The
[Petitioner] acquiesced, giving Mr. Harley $30 and accepting
his wallet in return. Mr. Harley instructed the [Petitioner] to
“make the block a couple of times,” and Mr. Harley left.
The [Petitioner] testified that he drove around the area
for 15 to 20 minutes but that he began to worry that he would
be stopped by law enforcement officers because he was in an
area known for drug dealing. The [Petitioner] then decided to
drive to Granada, where he encountered Mr. Rogers, known
-2-
as “Wheelchair,” sitting in his new Chevrolet Avalanche. Mr.
Rogers offered to take the [Petitioner] for a ride in the
vehicle, and the [Petitioner] climbed into the front
passenger‟s seat. At that time, Ms. Pasquini exited her
residence on Granada and climbed into the backseat of the
vehicle, where she “pass[ed] out” due to intoxication.
At the [Petitioner‟s] request, Mr. Rogers drove to the
area of the Nashville Auto Diesel College, where the
[Petitioner] spotted Mr. Harley. The [Petitioner] exited the
vehicle with a buck knife “on his side,” but he testified that he
never pulled the knife on Mr. Harley. The [Petitioner] asked
Mr. Harley if he had the pills, and Mr. Harley asked if the
[Petitioner] had his wallet. The [Petitioner] held out the
wallet, and, according to the [Petitioner], Mr. Harley grabbed
the wallet and attempted to run away. The [Petitioner],
however, did not release the wallet, causing him to fall on top
of Mr. Harley. At that point, Ms. Pasquini exited the vehicle
and began yelling for Mr. Harley to stop. Mr. Harley got up
and ran off down the street, leaving his wallet with the
[Petitioner]. Ms. Pasquini helped the [Petitioner] back into
the vehicle. The trio returned to Granada, and Ms. Pasquini
went into her residence. The [Petitioner] and Mr. Rogers
remained in the vehicle, where the [Petitioner] examined the
contents of Mr. Harley‟s wallet. At that time, law
enforcement officers arrived, and the [Petitioner] was placed
under arrest a short time later.
On cross-examination, the [Petitioner] admitted that, in
the past 10 years, he had been thrice convicted of aggravated
burglary, as well as burglary, burglary of an automobile, theft
of property valued over $1000, and unauthorized use of a
motor vehicle.
Id. at *3-4.
The Petitioner appealed to this court, arguing, in pertinent part, that the evidence
was insufficient to support his conviction because he walked with a cane and, therefore,
was physically unable to commit the crime. Id. at *4. This court affirmed the conviction,
stating that
-3-
Mr. Harley positively identified the [Petitioner] as the
man who had robbed him. Although the [Petitioner] claims
that he was walking with the aid of a cane and could not have
robbed the victim in the way in which the victim claimed, the
jury heard the [Petitioner‟s] testimony and clearly rejected it,
as was their prerogative.
Id. at *5. Subsequently, the Petitioner filed a timely petition for post-conviction relief,
alleging that he received the ineffective assistance of trial counsel. The post-conviction
court appointed counsel, and counsel filed an amended petition, arguing that trial counsel
was ineffective because he failed to consult with the Petitioner, failed to call witnesses in
the Petitioner‟s defense, and failed to present evidence of the Petitioner‟s disability as a
defense to the crime.
At the evidentiary hearing, the Petitioner testified that trial counsel represented
him for almost two years but that they “never spent more than ten or fifteen minutes
together.” Counsel met with the petitioner about six times when the Petitioner went to
court, but counsel never met with him outside of court. The Petitioner said that counsel
never discussed any motions with him and that they “never went over [his] case really
other than five minutes here and five minutes there every time [he came] to Nashville.”
Counsel and the Petitioner were supposed to have a video conference the week before
trial, but it had to be canceled due to technical difficulties.
The Petitioner testified that at the time of the crime, he had a broken leg and could
not walk without a cane. The Petitioner had another lawyer send his medical records to
counsel before trial, but counsel “never even brought them to court.” On the night of the
Petitioner‟s arrest, a police officer took him to the hospital. The Petitioner identified his
medical records from the hospital visit, claiming that they showed he had a broken leg
and received pain injections.1 However, counsel did not use the records at trial. Counsel
also did not investigate whether video surveillance from Nashville Auto Diesel College
recorded the crime, which “would have exonerated [the Petitioner] right then and there,”
and never obtained any video that showed the Petitioner being helped into the justice
center and receiving crutches because he could not walk. At trial, counsel kept asking the
State‟s witnesses if they recalled seeing the Petitioner with a cane, and they said no.
The Petitioner testified that when the State presented the knife to the jury, he knew
the knife was not his. Counsel never had the knife tested for fingerprints and never hired
a private investigator. The Petitioner said that he never should have testified at trial but
acknowledged that counsel warned him about the consequences of testifying.
1
The medical records were not introduced into evidence.
-4-
On cross-examination, the Petitioner testified that he was “in the wrong” on the
night of the robbery for trying to buy drugs from Harley. He acknowledged that he had a
lengthy criminal history but said that he had always pled guilty because he was guilty. In
this case, though, he did not commit the crime. The Petitioner acknowledged that the
jury heard about his “medical situation” but said that he did not think the jurors listened
to the evidence in light of his criminal record. He acknowledged that the trial court held
a hearing before trial and determined that the State could ask him about some of his prior
convictions. The Petitioner also acknowledged that he knew he did not have to testify but
said that he thought he had no choice given that “nothing was even said in court” to
defend him.
Trial counsel testified for the State that he had been practicing law since 2005 and
was appointed to represent the Petitioner for the Petitioner‟s preliminary hearing. Counsel
requested and received discovery from the State and “mailed a couple of copies of it” to
the Petitioner. Counsel and the Petitioner also discussed the discovery materials and the
evidence against the Petitioner when they were in court. Counsel said he had no reason
to file a motion to suppress evidence because “[t]he showup was done correctly” and “the
true facts of this case were pretty tight.” Although counsel did not file a motion to
suppress, he filed seven motions in limine.
Trial counsel testified that he obtained and reviewed the Petitioner‟s medical
records. An attorney that had represented the Petitioner in a civil case also gave counsel
some records. Counsel had a medical professional, whom he described as “an
acquaintance of mine,” review the records, and counsel and the Petitioner “discussed the
issues” related to the Petitioner‟s physical condition. Counsel said he “determined that it
would not be in [the Petitioner‟s] best interest to proceed forward with trying to put on as
a medical defense.” Counsel knew that a police officer had taken the Petitioner to the
hospital on the night of his arrest and cross-examined the police officer about it.
However, the officer “did not recall” taking the Petitioner to the hospital. Counsel
advised the Petitioner not to testify, but the Petitioner decided to take the stand.
Subsequently, the trial court advised the Petitioner about his decision to testify during a
Momon hearing. Counsel said the Petitioner was on parole at the time of the crime, “so
anything he would get by law was going to run consecutive.”
On cross-examination, trial counsel testified that he did not hire a private
investigator for this case because his own investigation “was thorough enough” and
because the only witnesses he needed to interview were “the individuals that were there
at the scene that night.” The Petitioner asked counsel about obtaining video surveillance
from Nashville Auto Diesel College, but no video related to the crime existed. Counsel
did not think the Petitioner‟s medical condition supported his claim that he could not
have committed the offense because the medical records said the Petitioner was
-5-
“ambulatory,” could stand up, and could walk. Moreover, Mr. Harley had not alleged
that the Petitioner ran or fought. Counsel never met with the Petitioner outside of court.
Nevertheless, they “were totally able to discuss the evidence in this matter,” and counsel
“felt that we discussed it in the detail that was necessary for the case.” After the trial,
counsel attempted to have a video conference with the Petitioner, but there were technical
difficulties.
In a written order, the post-conviction court denied the petition for post-conviction
relief. The court accredited trial counsel‟s testimony that he and the Petitioner were able
to discuss the case adequately, that he obtained discovery and discussed it with the
Petitioner, and that no video surveillance of the crime was available. The court also
accredited counsel‟s testimony that he was aware of the Petitioner‟s disability, that he
obtained the Petitioner‟s medical records, and that he determined the records did not
support the Petitioner‟s claim that he could not have committed the crime.
II. Analysis
The Petitioner contends that he received the ineffective assistance of counsel
because trial counsel met with him only on his court dates and the meetings lasted only
ten to fifteen minutes; failed to have the knife allegedly used during the robbery tested for
fingerprints; failed to present any evidence of his physical disability to the jury; failed to
hire a private investigator; and failed to locate any crime scene surveillance video
“despite the fact that there were facilities with external cameras nearby.” The State
argues that the post-conviction court properly denied the petition. We agree with the
State.
To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
-6-
court‟s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s
conclusions of law purely de novo. Id.
When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Generally, [b]ecause a petitioner must establish
both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not
address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component. Goad, 938 S.W.2d at 370 (citing
Strickland, 466 U.S. at 697).
Here, the post-conviction court accredited counsel‟s testimony that counsel met
with the Petitioner, discussed the case with him, and did not need to hire a private
investigator. The Petitioner has failed to show how he was prejudiced by counsel‟s
meeting with him only during his court dates or counsel‟s failure to obtain an
investigator‟s services. The trial court also accredited counsel‟s testimony that the
Petitioner‟s medical records did not support his claim that he physically could not have
committed the crime and that surveillance video of the crime was not available. The
Petitioner has failed to include the medical records he identified from the night of his
arrest in the appellate record and has offered no evidence to support his claims that
fingerprint testing on the knife and surveillance video would have exonerated him. Thus,
the post-conviction court properly denied the petition for post-conviction relief.
III. Conclusion
Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.
_________________________________
NORMA MCGEE OGLE, JUDGE
-7-