Montez Davis v. State of Tennessee ( 2022 )

07/20/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 24, 2022 Session
MONTEZ DAVIS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 291262 Barry A. Steelman, Judge
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No. E2021-00874-CCA-R3-PC
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Petitioner, Montez Davis, was convicted of second degree murder, reckless
endangerment, and unlawful possession of a weapon by a Hamilton County jury. State v.
Montez Davis, No. E2011-02066-CCA-R3CD, 2012 WL 6213520, at *1 (Tenn. Crim.
App. Dec. 13, 2012), perm. app. denied (Tenn. Apr. 10, 2013). The post-conviction court
denied several of Petitioner’s claims but ultimately granted post-conviction relief and
vacated Petitioner’s second degree murder conviction. The State appealed and Petitioner
filed a cross-appeal. After a thorough review, we reverse the post-conviction court’s
grant of post-conviction relief and reinstate Petitioner’s second degree murder conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Neal Pinkston, District Attorney General; and P. Andrew Coyle,
Assistant District Attorney General, for the appellant, State of Tennessee.
Jonathan T. Turner (on appeal and at hearing), Chattanooga, Tennessee; and Ryan
Wheeler (at hearing), Chattanooga, Tennessee, for the appellee, Montez Davis.
OPINION
The Hamilton County Grand Jury indicted Petitioner for first degree murder,
reckless endangerment, and unlawful possession of a weapon after Petitioner fired at least
three bullets into a crowd of people at a gas station, killing one individual. Id. at *11.
On January 9, 2010, several individuals and cars were at a gas station after a high
school basketball game ended. Id. at *3. One witness testified that she saw “a group of
[10] to [15] males dressed in red and white clothing” at the gas station. Id. at *6. There
was a shooting at the gas station. Id. at *3. Jonathan Lawrence, the victim, was shot and
killed while pumping gas for a customer. Id. Shortly thereafter, another shooting
occurred nearby at Petitioner’s father’s house. Id. at *4.
Detective Adam Emery of the Chattanooga Police Department arrived at the gas
station. Id. He spoke with the store employees and viewed surveillance footage from the
gas station. Id. Detective Emery testified that the video showed a white SUV drive
across the parking lot. Id. Somebody moved toward the SUV and appeared to throw
something at the vehicle. The SUV then drove “out of camera view, . . . and then, you
know, 30 seconds or less, and then you see everybody scatter, so that’s basically the
video that I saw.” Id. The shooting itself was off-camera. Id.
Detective Emery interviewed witnesses at the gas station and “[t]hrough his
investigation, Detective Emery learned that [Petitioner] . . . was a potential suspect in the
shooting at [the gas station].” Id. Detective Emery located Petitioner and conducted an
interview. Id. During the interview, Petitioner initially stated that he pulled into the gas
station after seeing his sister’s car in the parking lot. Id. He said that “someone threw a
bottle that broke a small window on the passenger side of [his] SUV[,]” and he drove off
to his father’s house. Id. Petitioner said that the passenger in his vehicle then pointed a
gun outside the car window but that the passenger did not fire the gun. Id. Petitioner said
he “zoomed off” because he heard gunshots. Id. Eventually, Petitioner admitted that
“after someone hit the SUV with a bottle, he drove to the end of the parking lot, got out
of the vehicle, and began shooting with a Glock .40 that he fired three times into the air.”
Id. Petitioner told Detective Emery he did not know who threw the bottle. Id. Detective
Emery asked Petitioner where he aimed the gun, and Petitioner admitted that he fired the
gun “[l]ike, towards the store. Like towards Russell and them. Whoever was standing
out there.” Id. He explained that he was angry because the “Bloods” constantly picked
on him and he fired into the crowd because the passenger in his vehicle said “Russell”
threw the bottle. Id. Petitioner said he noticed his sister in the crowd. Id. Petitioner said
that when he shot into the crowd, he was firing at “Russell.” Id. Petitioner’s mother
testified that Petitioner’s education suffered because he “did not attend school often
because he was being [‘]harassed by these guys[’].” Id. at *6. Petitioner did not testify at
his May 2011 trial. Id.
A jury convicted Petitioner of second degree murder, reckless endangerment, and
unlawful possession of a weapon. Id. *1. Petitioner received an effective 21-year
sentence. Id. Petitioner filed a direct appeal and raised three issues, one being that the
evidence was insufficient to support his second degree murder conviction. Id. A panel of
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this Court affirmed Petitioner’s conviction, reasoning that the jury, “as was their right,”
convicted “[Petitioner] of second degree murder obviously rejecting [Petitioner]’s claim
that he acted recklessly and not knowingly.” Id. at *11. The supreme court denied
permission to appeal.
On March 31, 2014, Petitioner filed a timely petition for post-conviction relief. In
his petition, Petitioner raised eight claims of ineffective assistance of counsel. Through
appointed counsel, Petitioner filed an amended petition for post-conviction relief. The
State filed a response, denying Petitioner’s allegations. Nearly six years later, the post-
conviction court held a hearing on the petition for post-conviction relief.
Trial counsel recalled that he represented Petitioner sometime around 2010.
Petitioner’s mother retained trial counsel to represent Petitioner. Trial counsel testified
that he had adequate time to prepare for the trial. Trial counsel recalled that in preparing
Petitioner’s defense, he and his paralegal visited the gas station where the shooting
occurred and Petitioner’s father’s house nearby. Trial counsel reviewed the witnesses’
statements and talked to a few witnesses. Trial counsel admitted he was unable to talk to
some of the witnesses because “they didn’t want to talk to [him.]” Trial counsel testified
that he visited Petitioner in jail and frequently spoke with Petitioner’s mother.
Trial counsel testified that he sought a ballistics expert but it was too expensive.
Trial counsel researched the relevant legal arguments and motions and developed a
theory for Petitioner’s case. Trial counsel testified that he did not hire a private
investigator. Trial counsel explained that he did not hire a private investigator because
Petitioner confessed to the shooting at the gas station, changed his story “a couple times
within the confession,” and expressed remorse and regret. Based on Petitioner’s
confession, trial counsel did not believe an investigator or ballistics expert “would be
necessary to address . . . what [Petitioner] was accused of having done.” Trial counsel
testified that all of the witnesses’ statements placed Petitioner as the shooter at the scene.
Trial counsel testified that he attempted to contact one witness, Shamyra Smith,
who told the police that another individual had a gun at the gas station. Trial counsel
testified he was unable to reach Ms. Smith. Trial counsel explained that there was a gas
station surveillance video of the people at the gas station, and the video did not show
anyone firing a gun. Trial counsel recalled that Petitioner said someone threw a bottle at
his car, and a bottle was recovered near his car.
Trial counsel said he elicited testimony during the trial from Detective Emery
regarding Ms. Smith’s statement that at least one other individual had a gun in the gas
station parking lot. However, the trial court ruled that Ms. Smith’s statement was
inadmissible hearsay evidence.
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Post-conviction counsel again asked trial counsel about hiring a ballistics expert.
Trial counsel explained that he asked Petitioner if he had the funds to hire a ballistics
expert and Petitioner said no. Trial counsel admitted that at the time, he did not know of
the indigent defense fund or that he could have requested funding for expert services
from the fund. Trial counsel confirmed that he identified two potential ballistics experts;
however, their fees were too high. Trial counsel believed he contacted the
Administrative Office of the Courts to ask for funds and looked up various ways to “raise
the money or get the money,” but “came up empty.”
Post-conviction counsel asked trial counsel why he did not cross-examine the
agent from the Tennessee Bureau of Investigation (“TBI”) who prepared the ballistics
report regarding bullets recovered at the scene of the gas station shooting. Trial counsel
replied, “[Petitioner] gave a confession where he said he shot. [Petitioner] had a weapon
with him. . . . What we were doing was addressing the ‘knowing’ component of what the
law said[.]” He continued, “The ballistics [report] with respect to [the bullets] came back
to his weapon, the Glock, .40 caliber[.] The problem with that was, all the witnesses said
[Petitioner] was shooting. One witness who we couldn’t talk to said there was another
shot, there was another shooter.”
Post-conviction counsel reviewed the testimony of trial witnesses with trial
counsel. Trial counsel admitted that the witnesses at trial did not actually say they saw
Petitioner shoot his gun but maintained that in the police reports, the witnesses said
Petitioner was the shooter.
On cross-examination, trial counsel testified that he had practiced law for 16 years
at the time of Petitioner’s trial. He described himself as a “generalist,” but confirmed that
he had handled “criminal cases for awhile.” Trial counsel testified that based on
Petitioner’s confession, there was “no reason to hire a ballistics expert.” Trial counsel
believed it would confuse the jury and negate “some of the mental elements necessary to
prove him innocent, or at least not guilty of [first degree] murder.” Trial counsel said that
the strategy was to demonstrate that Petitioner’s “intentions were not premeditated.”
Trial counsel explained that in light of Petitioner’s confession, a ballistics expert would
not help a jury to determine whether Petitioner’s actions were premediated. Trial counsel
agreed that his strategy was successful. Trial counsel agreed that Ms. Smith’s testimony
would have been contrary to Petitioner’s confession because of his statement that he was
the only shooter.
Trial counsel testified regarding whether he should have presented proof of
Petitioner having been bullied, stating, “We went through that believing that the temporal
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relation between being bullied and the time of the shooting was too far apart to establish
that he was still concerned about being bullied.” Trial counsel explained:
We also believed that the bullying set the predicate for premeditation, and
that if he was motivated because he was bullied, the jury would definitely
conclude he absolutely did this with premeditation and aforethought and it
was planned out, regardless of how it looked and what his statement said.
So those were the two primary concerns.
Trial counsel said that he had “secondary concerns” regarding how to establish Petitioner
was actually bullied and “didn’t want to paint a picture that [Petitioner] had some
vendetta and was after someone.”
On redirect examination, trial counsel acknowledged that Petitioner said in his
statement he heard gunshots as he drove away from the gas station. However, trial
counsel maintained that Petitioner also said he saw no one else shoot a gun.
Shamyra Smith testified that she was at the gas station at the time of the shooting.
Ms. Smith said that she had “never” talked with trial counsel and did not believe he
reached out to her. Ms. Smith recalled seeing the deceased victim and “numerous” guys
with handguns shooting at each other. She stated that Petitioner was not one of the men
who was shooting. Ms. Smith said that a detective interviewed her at the gas station and
took her contact information. She stated that she never heard from the police afterwards.
On cross-examination, Ms. Smith testified that she was Petitioner’s family friend. Ms.
Smith said she was at the gas station with a friend and saw “two guys [with guns].” She
stated that she saw the men arguing and start shooting at each other. Ms. Smith claimed
that the victim was pumping gas in the vicinity of the shooting. Ms. Smith recalled that
the men wore red clothing. She said she heard “maybe six, seven shots.” She claimed
that she did not see Petitioner at the gas station. Ms. Smith admitted that she had
multiple theft of property and forgery convictions.
Petitioner presented Christopher Robinson as a ballistics expert. Mr. Robinson
testified that multiple firearms could have fired the bullets found at the gas station,
including the bullet that killed the victim. Mr. Robinson testified that the TBI agent who
prepared the ballistics report was not able to determine whether the bullets found at the
gas station were fired from the same gun. Mr. Robinson stated that the TBI agent’s
ballistics report was overall lacking. On cross-examination, Mr. Robinson admitted to
making various mistakes while working for the Georgia Bureau of Investigation (“GBI”),
including shooting himself in the hand while testing a weapon and submitting muzzle-to-
target findings prior to receiving an autopsy report. Mr. Robinson admitted that the GBI
sent a letter to all elected district attorneys in Georgia regarding Mr. Robinson’s work
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because of the “result of identifiable discrepancies in the reported results of a case[.]”
Mr. Robinson admitted that the Atlanta Police Department also fired him because of
“grave concerns about [his] unethical decisions regarding illegal purchases and reckless
disregard for following proper procedure and protocols.”
The post-conviction court entered a written order denying post-conviction relief
for several of Petitioner’s claims but granted post-conviction relief for trial counsel’s
failure to “strongly dispute intent with respect to the lesser, included offense of second[
]degree murder for fear of emphasizing evidence suggestive of premeditation.”
The post-conviction court found that Ms. Smith’s testimony was “consistent with
her prior statement that there were at least two shooters and not necessarily inconsistent
with inconclusive ballistics and the failure of other witnesses to see the shooter[s].” The
post-conviction court found that while trial counsel failed to call a ballistics expert, he did
attempt to procure a ballistics expert. Regarding Mr. Robinson’s testimony, the court
found that it supported a conclusion that the TBI agent’s ballistics report did not support
“a conclusion that the same gun” fired the bullets found at the gas station. The post-
conviction court found that despite this evidence questioning the shooter’s identity,
Detective Emery’s testimony regarding the gas station surveillance footage settled “the
question of the numbers of shooters.” The court stated that it was enough for trial
counsel to briefly raise the issue of identity without “belaboring” it and concluded that
trial counsel’s failure to call Ms. Smith or a ballistics expert did not prejudice Petitioner.
The post-conviction court found strong evidence that Petitioner was severely
bullied in school, that Petitioner “was still being bullied[,] and [that] the bullying had
become, if it was not before, violent[.]” The court took judicial notice of Petitioner’s
mother’s testimony regarding bullying evidence from Petitioner’s bond-reduction hearing
in August of 2010.1 The court found that the evidence from Petitioner’s bond-reduction
hearing was critical “because it show[ed] that even before throwing a bottle at
[P]etitioner’s vehicle at the scene, [the] bullies had been violent and undeterred by school
discipline.” The court stated that this additional context provided understanding as to
Petitioner’s “pre-encounter awareness of a violent threat.” The court summarized the
bullying evidence as:
(1) [Petitioner’s] own statement;
1
The post-conviction court took judicial notice of the “08/02/2010 bond-reduction hearing” and
quoted a portion of that hearing in its order granting post-conviction relief. However, a transcript of the
hearing was not included in the record on appeal. See Tenn. R. App. P. 24(b).
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(2) [Petitioner’s] mother’s account of trying to protect him from bullying at
school, resulting in his missing lessons and eventually withdrawing from
high school;
(3) other evidence of the presence of gang members at the scene;
(4) [Detective] Emery’s account of the surveillance video and other
evidence of a bottle shattering [Petitioner’s] window on his arrival at the
gas station, which he did nothing to provoke; and
(5) the subsequent shooting at [Petitioner’s] father’s house involving
multiple weapons other than his.
The court found strong evidence that Petitioner reacted “to immediate violent
provocation” rather than “initiat[ed] a violent encounter[,]” noting:
(1) [Detective] Emery’s account of the surveillance video and other
evidence of a bottle shattering his window on his arrival at the gas station,
which he did nothing to provoke;
(2) the necessity for [P]etitioner to retrieve the gun from his passenger
before he could use it;
(3) [P]etitioner’s statement to investigators.
The post-conviction court found Petitioner’s statements to Detective Emery, “I
wasn’t thinking,” and, “because they always, like, picking at me[,]” to be “some of the
most favorable evidence in support of a recklessness defense.” The post-conviction court
noted Detective Emery’s statement that he told Petitioner he, Detective Emery, even
knew Petitioner “did not mean to kill anyone.” The court found that trial counsel
underutilized the statement during cross-examination of Detective Emery. The post-
conviction court stated that there was no evidence of Petitioner seeking out the bullies to
“shoot or kill them.”
The post-conviction court reasoned, “the [c]ourt cannot exclude a reasonable
probability that, but for the strategic error in minimizing, for no valid reason, the issue of
recklessness, on which issue the provocation by a person other than the victim is relevant,
the outcome of trial would have been different.” The court concluded that trial counsel’s
representation, in this respect only, was deficient and prejudiced Petitioner. The court
entered an order vacating Petitioner’s second degree murder conviction. The State
appealed and Petitioner responded and included a cross appeal.
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Analysis
The State argues that the post-conviction court erred in concluding that Petitioner
received ineffective assistance of counsel and granting post-conviction relief. Petitioner
responds that the post-conviction court properly granted post-conviction relief. Petitioner
also raises two issues on cross-appeal regarding the post-conviction court’s denial of
post-conviction relief on his other ineffective assistance of counsel claims. The State
responds that the post-conviction court properly denied relief as to those issues.
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
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the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).
The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999).
Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).
Evidence of Bullying
The State argues that the post-conviction court erred in granting post-conviction
relief. Specifically, the State contends that the post-conviction court second-guessed trial
counsel’s strategic decision not to utilize evidence of Petitioner’s being bullied.
Petitioner responds that the post-conviction court properly granted post-conviction relief.
Petitioner maintains that trial counsel’s strategic decision was made after less than
complete investigation and therefore was unreasonable.
In evaluating an attorney’s performance, we “must be highly deferential and
should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S.
at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge
the reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. Moreover,
“[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account
of the variety of circumstances faced by defense counsel or the range of legitimate
decisions regarding how best to represent a criminal defendant.” Id. at 688-89.
However, “‘deference to matters of strategy and tactical choices applies only if the
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choices are informed ones based upon adequate preparation.’” House v. State, 44 S.W.3d
508, 515 (Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).
At the post-conviction hearing, trial counsel provided three reasons for not
utilizing the bullying evidence. First, trial counsel stated that the “temporal relation”
between the bullying and the shooting seemed too far removed to establish Petitioner’s
concern about the bullies. Second, trial counsel explained his apprehension that the
bullying evidence might help the State establish the element of premeditation and that
Petitioner planned out the shooting. Third, trial counsel had “secondary concerns” with
proving that the bullying actually happened and “didn’t want to paint a picture that
[Petitioner] had some vendetta and was after someone.”
The post-conviction court did not make a finding that trial counsel was
inadequately prepared for trial. Rather, the post-conviction court, with the benefit of
hindsight, concluded that trial counsel’s representation was unreasonable and ineffective
because he did not utilize the bullying evidence to argue reckless homicide.
At the time of trial, Petitioner was charged with first degree murder. It is clear
from the record that trial counsel’s focus was on procuring a conviction for a lesser
included offense, which proved successful. The post-conviction court provided an in-
depth review of Petitioner’s history of being bullied and how trial counsel might have
used the bullying evidence to convince a jury that Petitioner was acting recklessly. The
court specifically pointed out that there was no evidence that Petitioner sought out the
bullies to “shoot or kill them.” As explained by trial counsel, however, he considered
using the evidence of bullying and determined that the jury could find it to be evidence of
premeditation. Trial counsel’s detailed responses to the bullying line of questioning
during the post-conviction hearing indicate that his strategic decision to exclude the
bullying evidence was based on more than adequate preparation.
Based on our review, it is clear that the post-conviction court second-guessed trial
counsel’s successful strategy. Therefore, we conclude that trial counsel provided
effective assistance of counsel and reverse the judgment of the post-conviction court. We
reinstate Petitioner’s conviction of second degree murder and accompanying sentence.
Petitioner’s Cross-Appeal
Petitioner cross-appeals, arguing that trial counsel was ineffective for failing to
call Ms. Smith as an eyewitness and for failing to hire a ballistics expert at trial. The
State responds that the post-conviction court properly denied post-conviction relief on
those grounds.
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While Ms. Smith and Mr. Robinson’s testimonies provided evidence that
questioned the identity of the shooter, Detective Emery’s testimony regarding the gas
station surveillance video footage resolved “the question of the number of shooters.”
Detective Emery testified that in the video, somebody threw a bottle at Petitioner’s white
SUV, Petitioner drove away off-camera, and 30 seconds later everybody scattered at the
gas station. The post-conviction court concluded that trial counsel’s failure to call Ms.
Smith or to hire a ballistics expert did not prejudice Petitioner because the theory of the
case involved Petitioner’s intent, not his identity. We agree with the post-conviction
court that trial counsel’s representation did not prejudice Petitioner.
Conclusion
Based on the foregoing, we reverse the post-conviction court’s grant of post-
conviction relief and reinstate Petitioner’s conviction of second degree murder. All other
findings of the post-conviction court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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