State of Tennessee v. Bobby Love ( 1996 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1993 SESSION
July 5, 1996
STATE OF TENNESSEE, ) No. 01C01-9306-CC-00190
) Cecil W. Crowson
Appellee, ) Appellate Court Clerk
Maury County
)
v. ) Hon. James L. Weatherford
)
BOBBY LOVE, ) (Aggravated Assault)
)
Appellant. )
For the Appellant: For the Appellee:
Jerry C. Colley Charles W. Burson
Attorney at Law Attorney General & Reporter
Post Office Box 1476
Columbia, Tennessee 38402-1476 John B. Nisbet, III
(Appeal Only) Assistant Attorney General
Criminal Justice Division
Gary Howell 450 James Robertson Parkway
Attorney at Law Nashville, Tennessee 37243-0493
710 North Main Street
Post Office Box 442 T. Michael Bottoms
Columbia, Tennessee 38402 District Attorney General
(Trial Only)
Robert C. Sanders
Kymberly Hattaway
Assistant District Attorneys General
Post Office Box 1619
Columbia, Tennessee 384021619
OPINION FILED: ______________________
REVERSED & REMANDED
C. Creed McGinley
Special Judge
OPINION
Appellant, Bobby Love, was convicted in Maury County Circuit Court of
the crime of aggravated assault, a Class C felony, by a jury. The trial court
found that appellant was a standard offender and imposed a Range I sentence
of confinement for six years in the Department of Correction and ordered
restitution to the victim.
Appellant presents two issues for review. He contends that:
1. The trial court erred in overruling his motion for new trial
based on the grounds of newly discovered evidence.
2. The trial court erred in overruling his motion for new trial
based on the grounds of ineffective assistance of counsel.
After a careful review of all records, we reject the appellant’s first issue
that he is entitled to a new trial on the grounds of newly discovered evidence.
However, this court holds that ineffective assistance of counsel denied
appellant his constitutional right to a fair trial. Appellant’s conviction must be
reversed and the case remanded for a new trial.
Facts
Bobby Love is charged with aggravated assault resulting from an
incident which occurred at Partner’s Lounge in Columbia, Tennessee, on June
19, 1989. The prosecuting witness, John Marks, claims that the defendant
approached him inside the bar and asked if he wanted to fight. Marks claims
that he had no reason to fight the defendant. He also claims that the
defendant then followed him outside to the parking lot and cut him with a knife.
Marks states that at this point he pulled a knife and the defendant returned to
the bar. Marks further states that several patrons of the bar came outside to
restrain him from reentering the bar with a hatchet. The police were called to
the scene to investigate the incident and the arrest of Bobby Love followed.
The defendant’s testimony contradicts that of John Marks. The
defendant, Bobby Love, testifies that Marks approached him inside the bar and
wanted to fight. He testifies that he left the bar and a fight ensued in the
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parking lot. The defendant alleges that Marks pulled a knife and attacked him
first. He claims that he pulled his knife in order to defend himself.
During the course of the trial, the state called three witnesses. These
included: John Marks, Officer Lonnie Lyles of the Columbia Police Department,
and Sgt. Jay Hooks of the Columbia Police Department. The defense called
three witnesses as well. These included: Steve Morton, a witness to the
altercation, Bobby Love, the defendant, and Officer Lonnie Lyles of the
Columbia Police Department. A jury in Maury County Circuit Court found
Bobby Love guilty of aggravated assault.
Discussion
A. Newly Found Evidence
One basis of appellant’s appeal is the existence of newly found
evidence. Appellant submits that after his conviction, his trial attorney
inadvertently found out about a new witness. This witness was an impartial
observer of the altercation who would corroborate the testimony of the
defendant. In order to warrant a new trial based upon newly discovered
evidence several requirements must be satisfied. In Jones v. State, 2 Tenn.
Crim. App. 160, 165, 452, S.W.2d 365, 367 (1970), the Court of Criminal
Appeals of Tennessee found:
An accused seeking a new trial on the ground of newly
discovered evidence must file an affidavit setting forth facts
showing that he and his counsel exercised reasonable diligence
and were not negligent in the search for evidence in preparation
for the trial of the case, that he and his counsel had no pre-trial
knowledge of the alleged newly discovered evidence, and it
must be supported by the affidavit of the new witness showing
the materiality of the testimony and that it had not been
communicated to the accused prior to the trial.
Furthermore, the Tennessee Supreme Court ruled in Clarke v. State, 218
Tenn. 259, 278, 402 S.W.2d 863 (1966), that evidence which was cumulative
or which attempted to impeach a witness did not entitle a defendant to a new
trial.
It is the job of this court to determine whether (A) the defendant and his
counsel exercised reasonable diligence and were not negligent in the search
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for evidence and (B) whether the new evidence is cumulative or attempts to
impeach a witness.
Reasonable diligence is defined as a fair, proper, and due degree of
care and activity, measured with reference to the particular circumstances.
BLACK’S LAW DICTIONARY 412 (5th ed. 1979). It is the opinion of this court
that reasonable diligence was not exercised. The defendant makes no
mention of his attempt to locate and question this new witness. Further, the
attorney for the defendant never attempted to locate other patrons of the bar
who might have witnessed the altercation. Therefore, we see no degree of
reasonable diligence.
This court finds that the newly discovered evidence in this case does not
warrant a new trial, due to the lack of due diligence by the defendant and
counsel.
B. Ineffective Assistance of Counsel
Appellant submits that the ineffectiveness of his trial counsel deprived
him of his constitutional right to a fair trial. In order to award a new trial on this
basis, it is the responsibility of the appellant to show that his attorney was
ineffective. The standards for ineffectiveness of counsel in Tennessee are set
forth in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). This standard requires
that the advice given or services rendered by the attorney be within the range
of competence demanded of attorneys in criminal cases. The United States
Supreme Court has further clarified the ineffective counsel issue in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
The Supreme Court, in this case, set forth a two-prong test for ineffective
counsel. First, the defendant must show that the counsel’s performance was
deficient. Second, the defendant must show that the deficient performance
prejudiced the defense. This includes showing that counsel’s deficient
performance deprived the defendant of a fair trial.
The trial court in this case found “that retained trial counsel was
competent, effective and exercised due diligence under the circumstances in
the preparation and conduct of the trial.” The findings of fact are conclusive on
appeal unless the evidence preponderates against the judgment. Butler v.
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State, 789 S.W. 2d, 898 (Tenn. 1990). A review of the record in this case
convinces this court that the proof preponderates against the finding by the trial
court that the defendant had effective assistance of counsel.
On the first issue this court finds that the defendant has proven that the
performance of his trial counsel was deficient. Secondly, it is the opinion of
this court that the deficiency of counsel prejudiced the defense. A number of
prejudicial deficiencies of defense counsel can be ascertained from the
records.
A. Absence of defendant at Preliminary Hearing - The
defendant asserts and defense counsel admits that the
defendant was not correctly notified of the date of his
preliminary hearing. Defense counsel further concedes that he
told his client the wrong day of the hearing, and he continued
with the hearing despite the absence of his client. While this in
itself is not conclusive, it is the first in a line of deficiencies.
B. Absence of an effective defense strategy - The affidavits of
the defendant, defense attorney, and Tommy Tucker, as well as
the record itself, indicate that defense counsel was deficient in
his preparation for the trial. The defendant alleges that he gave
his attorney the names and addresses or places of work of three
witnesses to the alleged assault. These witnesses were
impartial observers to the incident who could corroborate the
story of the defendant. Of these three witnesses, only one
appeared and testified at trial. The witness who did testify,
Steve Morton, was found by the defendant’s wife and brought to
court by her on the day of trial. Counsel for the defense did not
talk to any of these witnesses before trial, did not issue
subpoenas, and did not insure that the witnesses would be
present for trial. Tommy Tucker, one of the uncalled witnesses,
states in his affidavit that Bobby Love acted in self defense.
The trial attorney, in his testimony during the hearing for a new
trial was questioned about the uncalled witnesses. When asked
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whether the credibility of the testimony of these witnesses would
have been such that it could have changed the outcome of the
trial, the trial attorney answered: “From my experience, yes . . .It
would have given you the opportunity to argue to the jury that
these people don’t have a horse in the race, and that therefore
there’s no reason to doubt what they’re saying.”
It is the opinion of this court that the performance of defense counsel
was deficient and that this deficiency directly prejudiced the defense, as set
forth in Strickland v, Washington, supra. It is the opinion of this court that there
is a reasonable probability that, but for counsel’s deficient representation, the
verdict in this case would have been different. Therefore, counsel’s
ineffectiveness deprived the appellant of a fair trial.
Bobby Love’s conviction is reversed. The case is remanded to the trial
court for a new trial.
____________________________
C. Creed McGinley, Special Judge
CONCUR:
___________________________
John H. Peay, Judge
___________________________
Joseph M. Tipton, Judge
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