Clarence Nesbit v. State of Tennessee - Dissenting

Citation: Not availableDocket: W2009-02101-CCA-R3-PD

Court: Court of Criminal Appeals of Tennessee; March 28, 2013; Tennessee; State Appellate Court

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Dissenting opinion by Judge Joseph M. Tipton in the case of Clarence Nesbit v. State of Tennessee highlights significant deficiencies in trial counsel’s performance that he believes prejudiced the Petitioner’s right to a fair trial and undermined the jury's verdict. While agreeing with the majority on certain deficiencies, Tipton disputes their assessment regarding counsel’s pretrial investigation and trial preparation. He argues that the length of time between indictment and trial (one year and seven months) does not justify the failure to conduct adequate investigations, especially since key witnesses were accessible in the area at the time of the incident and trial. 

Tipton specifically criticizes counsel for not interviewing Miriam Cannon, the victim’s sister, who had crucial information about the victim’s condition shortly before the shooting, which could have refuted allegations of torture. He contends that counsel’s lack of diligence in conveying a plea offer to the Petitioner, who had a low IQ and may have struggled to understand the offer, further exemplifies ineffective assistance. The dissent notes that counsel only discussed the plea offer briefly, just before it expired, and asserts that evidence indicated the Petitioner would likely have accepted the plea had it been presented adequately. Overall, Tipton believes these failures cast doubt on the reliability of the trial’s outcome.

The trial court upheld Annette Jones’s testimony regarding the Petitioner’s intent to accept an offer prior to the February 1994 ice storm. There was no evidence indicating that the defense counsel conducted an investigation beyond the State’s discovery materials prior to the trial. While counsel relied on the Petitioner for witness identification, this approach was insufficient given the apparent lack of communication between them. Legal investigator Ms. Glenn failed to canvass Pershing Park Apartments for witnesses or obtain tenant records, despite the opportunity to do so. She only interviewed individuals listed in the indictment. Counsel was unaware that Koete Brown, who was present at the victim's apartment prior to the shooting, could have provided information about the victim’s lack of fear towards the Petitioner. During post-conviction, investigator Ms. Geiser found witnesses Quinton and Kareem Curry, who observed the Petitioner and victim shortly before the incident. Although Quinton's testimony was discredited due to his intellectual disability, Kareem’s account suggesting a romantic dynamic between the Petitioner and victim was not discredited. Witness Bernice Nesbit corroborated that Quinton fired the gun, which aligned with other testimonies. The defense's failure to investigate and prepare witnesses for the guilt phase was highlighted, particularly by Ms. Benson’s inadequate interviews with the Petitioner’s family and church members. Despite the Petitioner’s mental capacity being relevant mainly for sentencing, it could have been presented during the trial given the defense's theory of mistake of fact. Dr. Auble’s testimony did not indicate diminished capacity but offered an alternative explanation for the Petitioner’s behavior, supporting the accidental shooting defense based on his borderline IQ and learning disabilities.

Counsel did not believe the Petitioner had mental disabilities, yet Dr. Auble testified that the Petitioner had an IQ of seventy-four and exhibited significant deficits recognizable to those interacting with him. Evidence related to the torture allegation included an unlit cigarette and an unused match found near the victim, who was right-handed. While counsel acknowledged that this suggested the victim might have been preparing to smoke, he feared it could negatively affect the jury's perception if they believed the victim did not smoke. There were witnesses available at trial who could have testified regarding the victim’s smoking habits, including Ms. Davis, the victim's best friend, and medical records supporting this. Counsel failed to investigate this evidence adequately, which was crucial for countering the State's torture claims, admitting that the information would have been beneficial. Additionally, there were indications that the victim wore ill-fitting shoes, which could have contradicted the torture allegations. No history of violence was associated with the Petitioner, and experts indicated that the form of torture alleged was unlikely given the Petitioner’s background. Furthermore, discrepancies in Fred Nesbit’s testimony regarding the gun's possession were noted, but the testimony also suggested that the Petitioner did not routinely carry a gun, which could challenge the premeditation aspect of the case. Counsel relied on Dr. Smith’s conclusions about the torture without seeking independent verification, accepting them as fact prior to trial despite knowing this was pivotal to the State’s argument for premeditation.

Co-counsel testified that there was no discussion about the necessity of an independent expert, and although counsel objected to the satanic worship allegation during the trial, he was aware of it beforehand and did not attempt to prevent its introduction. Expert opinions indicated that addressing the satanic worship allegation pretrial would have been appropriate. Counsel admitted that he was unprepared to counter the damaging testimony regarding satanic worship and that evidence of the Petitioner’s church attendance could have helped his defense. The Petitioner’s intake form indicated membership at Christ Baptist Church, but it is unclear if this was investigated.

Dr. Smith asserted the victim was tortured, while Dr. Hudson could not conclusively determine torture and provided alternative explanations for the victim's injuries, suggesting they might be consistent with burns from a curling iron, not an open flame. Counsel did not present any alternative explanations for the victim’s injuries. Discrepancies regarding statements made by the victim’s children were noted, particularly regarding an assertion that the Petitioner burned their mother, which lacked support in trial records. The trial court’s reliance on this statement was deemed improper.

Counsel's inadequate pretrial preparation raised doubts about the trial's reliability, leading to the conclusion that the Petitioner was denied a fair trial and a reasonable chance of acquittal or a lesser conviction. While the trial court recognized the need for a new sentencing hearing due to ineffective assistance, the evidence suggested more than mere residual doubt regarding the Petitioner’s guilt. It was determined that there is a reasonable probability that, had counsel performed adequately, the trial outcome could have differed. The Petitioner was denied his constitutional right to effective counsel, prompting a recommendation to reverse the trial court’s judgment, vacate the murder conviction, and remand for a new trial.