Travis Capshaw v. State of Tennessee ( 2019 )

08/07/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 5, 2019
TRAVIS CAPSHAW v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 13-01288 Chris Craft, Judge
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No. W2018-01371-CCA-R3-PC
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Petitioner, Travis Capshaw, appeals the denial of his post-conviction petition. Petitioner
argues that he was denied effective assistance of counsel when his trial counsel (1) failed
to adequately utilize mental health issues as a mitigating factor in Petitioner’s first degree
murder charge and (2) such failure caused trial counsel to erroneously advise Petitioner to
plead guilty. Following a review of the briefs of the parties and the record, we affirm the
judgment of the post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.
Eric J. Montierth, Memphis, Tennessee, for the appellant, Travis Capshaw.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Amy P. Weirich, District Attorney General; and Abby Wallace and Karen Cook,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Background Leading to Conviction
Petitioner was arrested on August 31, 2012, for the death of his wife, Ranita
Burke. Because he was indigent, Petitioner was appointed trial counsel from the Shelby
County Public Defender’s Capital Defense Team. On October 9, 2012, the trial court
issued an order for a mental evaluation, and Petitioner was found competent. On March
26, 2013, the Shelby County Grand Jury entered a true bill charging Petitioner with first
degree premeditated murder, and the State filed a notice of intent to seek the death
penalty.
On June 26, 2015, Petitioner pled guilty as charged, with a sentence of life
imprisonment without possibility of parole. Four months following his plea, Petitioner
filed an untimely motion to withdraw his guilty plea. The trial court denied his motion
because the judgment had already become final on July 26, 2015.
Guilty Plea Submission Hearing
The facts of the case as presented by the State and stipulated by the defense at the
guilty plea submission hearing are as follows:
[O]n August 20th of 2012, the victim Ranita Burke was at her place of
employment at 6207 Summer Avenue. When she was attempting to get
into her car, she was trying to either go to lunch or eat lunch in her car
when witnesses observed a man walk quickly up to her car and [attempt] to
get inside [her car] on her lunch break.
This witness observed the male push Ms. Burke back inside the car and
began stabbing her repeatedly. Witness in the matter came out of the
business after being alerted to [the stabbing] and actually saw [Petitioner],
and attempt[ed] to intervene when she saw that he was indeed stabbing Ms.
Burke with what she thought was a filet knife and she screamed for him to
stop. And before leaving, the individual pulled Ms. Burke out of the car
and slashed her throat with the knife and then ran from the scene.
That witness positively identified [Petitioner] from a photo spread.
[Petitioner] and Ms. Burke were married and these individuals had seen
[Petitioner] coming back and forth from her place of business during the
course of her employment there and their relationship.
The basis for the death penalty is, Your Honor, that we were seeking under
heinous, atrocious and cruel in that she died as a result of multiple stab
wounds to the head and neck. These stab wounds or seven of them
perforated her internal jugular vein, her right subclavian vein, and branches
of her left external carotid artery. There were also two wounds to the chest
which perforated her left lung. She had 16 wounds to the upper extremities
and another 44 to the back and buttocks, perforations of the right fourth rib,
right and left lungs.
At the hearing, Petitioner verified his signature on the plea acceptance document. The
trial court explained to Petitioner his rights, the degrees of homicide, their corresponding
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punishment, the elements of premeditated murder, and the sentencing procedure if he
were convicted as charged. Petitioner confirmed under oath that he understood the plea,
that his trial counsel and defense team had explained everything about his case to him,
and that he was entering his plea voluntarily and knowingly. The trial court specifically
addressed the preparation by Petitioner’s trial counsel:
THE COURT: Okay. Is there anything else about this plea
about what your attorneys explained to you,
what they’ve been doing for you, anything
about it you’re confused about, anything you
want me to explain for you?
PETITIONER: No, sir.
THE COURT: Okay. Now they’ve been coming in here and
basically your attorneys have been worrying me
to death. They were in here yesterday wanting
more money for investigation for this and for
experts and they’ve been doing a lot in your
case. Is there anything about your case that you
think they should have done that they haven’t
done or anything you’re confused about that
they haven’t explained to you?
PETITIONER: No, sir.
THE COURT: Okay. So you feel like they’ve done everything
they could do for you?
PETITIONER: Yes, sir.
THE COURT: Okay. And knowing all that they’ve explained
to you, the good things and the bad things about
going to trial and not going to trial, entering
pleas and not.
PETITIONER: Yes, sir.
THE COURT: Do you have any other questions?
PETITIONER: No, sir.
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THE COURT: Knowing all of this, do you still wish to enter
this plea of guilty and also to this sentence?
PETITIONER: Yes, sir.
THE COURT: Are you entering this plea freely and voluntarily
without any threats or pressures or promises?
PETITIONER: Yes, sir.
….
THE COURT: All right. [Petitioner,] would you stand, please,
sir. Upon your plea of guilty to murder in the
first degree, it’s the judgment of the Court
you’re found guilty of that offense, sentenced to
life without the possibility of release, plus the
cost of the cause for which let mittimus and
execution issue. Thank you, sir.
Post-Conviction Hearing
On January 5, 2016, Petitioner timely filed a post-conviction petition, and an
amended petition was filed by his appointed counsel on February 2, 2018. At the
evidentiary hearing on April 13, 2018, both Petitioner and his trial counsel were called as
witnesses. Trial counsel testified that he was an Assistant District Public Defender in the
Shelby County Public Defender’s Office and worked on the capital defense team. Trial
counsel had been working for the capital defense team for “close to ten years” when he
was appointed to Petitioner’s case. Trial counsel testified that he and the capital defense
team worked on Petitioner’s case from 2013 to 2016. Trial counsel explained that they
“cast a wide net in terms of record collection” during representation and would look
within that collection for anything that could be used in mitigation. Trial counsel
testified that the team was trying to learn about Petitioner, “his family, his upbringing and
the case” while at the same time looking into his social history. In Petitioner’s case
specifically, trial counsel testified that the defense team did not find much mitigation for
the defense.
Furthermore, trial counsel addressed the team’s investigation into Petitioner’s
mental health. Trial counsel explained that they had a forensic psychologist, Dr. James
Walker, evaluate Petitioner. Trial counsel recalled that Dr. Walker’s report identified
Petitioner as having some psychiatric issues and substance abuse problems and that those
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issues contributed to how he was making decisions at the time of the offense. The report
was introduced as an exhibit at the evidentiary hearing. The report specifically addressed
Petitioner’s impaired ability to act in a rational manner:
His genetic history and history of childhood abuse predisposed him to
act in a violent fashion. His high levels of barbiturates and alprazolam
at the time of the offense further eroded his ability to act in a rational
and knowing fashion. These factors created a “perfect storm,” causing
[Petitioner] to cascade into an irrational, senseless state of violence
and rage.
However, trial counsel testified that he did not feel that the report would have been strong
enough to negate the mens rea element of the first-degree murder charge. Trial counsel
explained that the fact that Petitioner waited for his wife outside of her work and the
manner in which he killed her would be much stronger proof to a jury than the report of
Petitioner’s mental health. Trial counsel added further that the eyewitness to the murder
would have testified to the victim’s death, and he believed that testimony would have
been more powerful to the jury than the testimony of an expert witness on the defense’s
behalf.
In addition, trial counsel testified that the team had genetic testing done on
Petitioner for the “warrior gene” that indicates when a person is predisposed to be
violent. However, trial counsel explained that using genetic testing to show a
predisposition to violence was a “double-edge sword” to a jury. He explained that while
a jury could find Petitioner was not at fault for his actions, a jury could also find that he
should receive capital punishment because of a predisposition to violence. Therefore, in
his opinion, the genetic testing was not compelling enough given the facts of Petitioner’s
case.
Moreover, trial counsel testified to the preparation of Petitioner’s case and his
suggestion that pleading guilty would prevent the Petitioner from facing the death
penalty. Trial counsel testified that he and the capital team spent a lot of time with
Petitioner and had agreed that Petitioner’s case would likely result in a sentence of death
if it went to sentencing. On cross-examination, trial counsel stated that his goal in the
representation was to give Petitioner the best advice that he could and to aid Petitioner in
making the best decisions. However, trial counsel acknowledged that the decision to go
to trial was ultimately Petitioner’s. In discussing plea options with Petitioner and other
clients, trial counsel testified that the team offers their opinions about the strengths and
weaknesses of each case, they discuss the housing situation in the Tennessee Department
of Correction should the defendant get the death penalty, and they discuss the various
options should the defendant receive anything less than the death penalty. In addition,
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the team discusses the post-conviction process and time frame for such process. Trial
counsel stated that a client is given time to think about the decision to accept a plea and
encouraged to talk to family members about it.
Further, trial counsel testified to the discussion about the potential of going to trial
with Petitioner, the possible outcomes, and the likelihood of facing the death penalty.
Trial counsel denied any threatening or intimidating nature in those discussions and
acknowledged that he and his team would have taken Petitioner’s case to trial had
Petitioner made that decision. Trial counsel stated that the discussions regarding plea
deals were in the context of saving Petitioner’s life from receiving the death penalty.
Specifically, he testified that he had a “responsibility to counsel” his clients and inform
them “realistically” what they were looking at with their case.
Petitioner also testified at the evidentiary hearing. Petitioner stated that he wanted
to take his case to trial because he believed there were facts to show the crime was not
intentional or premeditated. Petitioner stated that he tried to discuss this with his trial
counsel, but he was advised that his options were to plead guilty or he would get the
death penalty. Petitioner explained that it was “like [he] didn’t have a choice.” While
Petitioner acknowledged that his trial counsel believed taking the plea was the best option
to avoid the death penalty, he maintained that he had intended on going to trial the entire
time.
Additionally, Petitioner testified that his trial counsel “manipulated” his family
into pressuring Petitioner to plead guilty instead of going to trial. He explained that the
defense team told his family that if he were to go to death row that they would not be able
to visit him, and his family “begged [him] to plead [guilty].” Petitioner also testified that
he had reasons not to trust his defense team. He explained that his trial counsel and the
defense team were aware of the abusive history between Petitioner and his wife, and his
trial counsel did not explain to him why it would not be useful towards his defense.
On cross-examination, Petitioner conceded that the State had strong evidence
against him, including eyewitnesses and Petitioner’s statement to police. Further, he
agreed that his chances of a conviction were high had the case gone to trial. While
Petitioner took issue with his trial counsel’s decision not to use the psychologist’s report
regarding his mental health, he testified that he was aware that his trial counsel and
defense team had been investigating his mental health issues and potential defenses from
the beginning of the representation. Petitioner recalled that his defense team filed a
motion to suppress his statement to police and acknowledged that police were ready to
testify to his confession if the case were to be tried by a jury.
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Petitioner also offered testimony regarding his guilty plea. Petitioner recalled that
he signed the plea agreement, that he was advised of his rights, and that he confirmed that
he was entering a plea voluntarily and knowingly, without any threats, pressures, or
promises at the guilty plea submission hearing. However, Petitioner admitted that he lied
under oath regarding his statement that he was pleading guilty knowingly and voluntarily.
Following the evidentiary hearing, the post-conviction court denied Petitioner’s request
for relief on July 2, 2018, and Petitioner filed a timely notice of appeal to this Court on
July 26, 2018.
ANALYSIS
Petitioner argues that his trial counsel’s performance was ineffective for failing to
adequately utilize Petitioner’s mental health issues as a mitigating factor in his crime and
such failure caused his trial counsel to erroneously advise Petitioner to plead guilty. We
disagree.
To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A.§ 40-30-103; Howell v.
State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner bears the burden
of proving his or her allegations of fact by clear and convincing evidence. T.C.A § 40-
30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is clear
and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). In an
appeal of a court’s decision resolving a petition for post-conviction relief, the court’s
findings of fact “will not be disturbed unless the evidence contained in the record
preponderates against them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).
A petitioner has a right to “reasonably effective” assistance of counsel under both
the Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington,
466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. When a claim of ineffective
assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s
performance was deficient and (2) that the deficiency was prejudicial. Strickland, 466
U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). Failure to satisfy
either prong results in the denial of relief. Strickland at 697.
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
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under prevailing professional norms.” Good v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Furthermore, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e. a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. In the context of a
guilty plea, the petitioner must show a reasonable probability that were it not for the
deficiencies in counsel’s representation, he or she would not have pled guilty but would
instead have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).
In addition, in determining the voluntariness of a guilty plea, a trial court must
advise the defendant of the consequences of a guilty plea and determine whether the
defendant understands those consequences to ensure the plea is a “voluntary and
intelligent choice among the alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970); see also Boykin v. Alabama, 395 U.S. 238,
244 (1969). The trial court must address the defendant personally in open court, inform
the defendant of the consequences of the guilty plea, and determine whether the
defendant understands those consequences. See State v. Mackey, 553 S.W.2d 337, 341
(Tenn. 1977), superseded on other grounds by rule as state in State v. Wilson, 31 S.W.3d
189, 193 (Tenn. 2000); Tenn. R. Crim. P 11(c). The trial court looks to the following
factors in determining whether the defendant’s guilty pleas were knowing and voluntary:
the relative intelligence of the [petitioner]; the degree of his familiarity with
criminal proceedings; whether he was represented by competent counsel
and had the opportunity to confer with counsel about the options available
to him; the extent of advice from counsel and the court concerning the
charges against him; and the reasons for his decision to plead guilty,
including a desire to avoid a greater penalty that might result from a jury
trial.
Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993).
We begin our analysis with the post-conviction court’s findings. Following the
evidentiary hearing, the post-conviction court found that Petitioner was not entitled to
relief:
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In [Petitioner’s] case, this court can find no error or deficient performance
of counsel at all that might have changed the outcome of his trial had, had
he not entered a plea of guilty. His case had been thoroughly investigated
and prepared, the defense was ready with what mitigation it had, and
[Petitioner’s] attorneys felt, as this court felt at the time of the plea, that
there was a good chance that in one month the jury would have sentenced
[Petitioner] to death by lethal injection if he had chosen to go forward with
his trial. It was not only his attorneys’ desire, but also their duty, to warn
him of this possibility. They cannot be faulted for having done so after
having done everything else they could for [Petitioner].
First, Petitioner argues that his trial counsel failed to use his mental health issues
as a method to negate proof that he acted intentionally with premeditation and thus seek a
lesser degree of murder at trial. Petitioner argues that the night before he murdered his
wife, he had attempted suicide by overdosing on Xanax and that he was still under the
influence of Xanax at the time of the offense. In addition, trial counsel hired a forensic
psychologist to assess his mental health issues, and the report following that assessment
determined that Petitioner’s ability to premeditate was impaired. Therefore, Petitioner
asserts that this report should have been used to negate the essential element of
premeditation in his first degree murder case. Petitioner argues his trial counsel’s
decision not to pursue such evidence rendered his representation ineffective. The State
contends that Petitioner has failed to meet his burden of proving deficient performance
regarding his trial counsel’s judgment in decisions regarding the use of Dr. Walker’s
report, the available strategies possible at trial, and the advice for Petitioner to plead
guilty. Specifically, the State relies on the post-conviction court’s holding that
Petitioner’s mental state was unlikely to undermine or negate premeditation or the
intentional mens rea element. In addition, the State argues that Petitioner has failed to
show that the use of his mental state at the time of the killing or Dr. Walker’s report
would have convinced a jury to convict him of something less than first degree murder or
sentence him to anything less than death.
Petitioner has failed to prove by clear and convincing evidence his factual
allegations. The record indicates that Petitioner’s trial counsel and the four defense team
members were well versed in Petitioner’s case and the possible defenses if the decision to
go to trial had been made. Trial counsel had investigated Petitioner’s mental health
thoroughly, both through a forensic psychologist and genetic testing, to explore possible
mitigating factors that could be utilized in his defense. In addition, trial counsel filed a
motion to suppress Petitioner’s confession because his mental state was at issue at the
time of the offense. The disposition of the suppression motion is not in the record on
appeal. We surmise that it was either denied or not pursued in a hearing because of the
plea agreement. Furthermore, trial counsel and Petitioner discussed the possibilities of
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going to trial and plea agreements before Petitioner decided to plead guilty, and trial
counsel indicated that he was willing to go to trial and defend Petitioner with all of his
training and experience if Petitioner had made such decision. Trial counsel’s strategy to
advise Petitioner to plead guilty was only after trial counsel and the defense team had
processed the information from their investigation regarding Petitioner’s case and
compared it to the evidence presented by the State against him. This Court does not
second guess the tactical decisions and strategic choices made by trial counsel unless they
are uninformed from inadequate preparation. Hellard, 629 S.W.2d at 9. In the case at
hand, trial counsel made this decision after adequate preparation and thorough
investigation.
Petitioner has failed to show how trial counsel’s investigation and advice fell
below an objective standard of reasonableness. Moreover, Petitioner has not shown that
the use of his mental health issues would have convinced him to go to trial. The record
reflects that information regarding Petitioner’s mental health was available to him and
discussed with him by his trial counsel, and nevertheless, Petitioner made the decision to
plead guilty.
Petitioner argues that the testimony of Dr. Walker would have carried more weight
with the jury than his trial counsel predicted. However, Dr. Walker was not presented to
show the post-conviction court the impact his study would have made in terms of
negating the intentional mens rea of first degree murder or be mitigation evidence in a
sentencing hearing. Normally, “[w]hen a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.” Taylor v. State, 443 S.W.3d
80, 85 (Tenn. 2014) (quoting Black v. State, 794 S.W.2d 752 (Tenn. Crim. App. 1990)).
Even though the psychologist’s report was submitted into evidence at the hearing, Dr.
Walker’s conclusions were not subject to cross-examination by the State. The State did
not object to admission of the report. In its findings of fact in the order denying relief,
the post-conviction court noted that funds for travel and testimony expenses of Dr.
Walker to appear at the trial had been granted ex parte by the trial court. However,
Petitioner pled guilty about three weeks prior to his scheduled trial date of July 20, 2015.
Credibility determinations could not be made by the post-conviction court based solely
on Dr. Walker’s report. However, the post-conviction court in its findings of fact stated
that Dr. Walker’s conclusions, even if he had testified at a trial consistent with the report,
were a “stark contrast” to the credible facts establishing first degree murder. There is
nothing in the record to justify disregarding these findings of the post-conviction court,
which support its conclusion that trial counsel did not render deficient performance in his
representation. Furthermore, Dr. Walker’s report, without a stipulation by the parties that
its conclusions are true, fails to show that Petitioner suffered prejudice even if trial
counsel had rendered deficient performance.
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In his second assertion, Petitioner argues that trial counsel’s failure to utilize his
mental health issues caused trial counsel to advise Petitioner to erroneously plead guilty.
Moreover, Petitioner argues that he was pressured and coerced into pleading guilty
instead of pursuing a trial. Petitioner asserts that he was adamant from the beginning of
his case that he wanted to go to trial, but instead, he pled guilty after his defense team
pressured him through his family to avoid going to trial. The State responds that this
claim is without merit. We agree.
The post-conviction court concluded that Petitioner failed to prove by clear and
convincing evidence that he was coerced or pressured into pleading guilty. At the
evidentiary hearing, Petitioner failed to put on any proof of coercion or pressure by the
defense team or his trial counsel to show that his guilty plea was involuntary. Petitioner
asserted that trial counsel and his defense team told his family false statements regarding
visiting death row and those statements helped them pressure Petitioner to plead guilty.
However, other than his testimony, Petitioner failed to present any evidence or proof of
these claims. Trial counsel admitted that he and the defense team generally encourage
conversations with defendant’s families but denied any coercion or force influenced
Petitioner’s decision. Furthermore, Petitioner testified at his guilty plea submission
hearing that there was nothing else his trial counsel or defense team could have done or
could have explained to him and stated that he entered his plea freely and voluntarily
without any threats, pressures or promises. Even though Petitioner later retracted the
testimony at the evidentiary hearing that his plea was voluntary, he failed to present any
other evidence to support his assertion. Records indicate that Petitioner was given
opportunities to object to the plea on multiple occasions both alone with his trial counsel
and in front of the trial court, and Petitioner chose not to do so. The post-conviction
court found that Petitioner was well-informed when he made his plea, and Petitioner had
testified that he understood the terms and ramifications when questioned at the guilty plea
submission hearing. The post-conviction court made factual findings that Petitioner had
not presented credible evidence, thus finding that his testimony was not credible.
Petitioner is not entitled to relief.
CONCLUSION
We affirm the judgment of the post-conviction court.
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THOMAS T. WOODALL, JUDGE
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