Stephenson v. State

JONATHAN WESLEY STEPHENSON v. STATE OF TENNESSEE

No. E2012-01339-CCA-R3-PD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

August 21, 2013 Session

Filed January 13, 2014

Circuit Court for Cocke County

No. 30,366-I Ben

W. Hooper, II, Judge

A Cocke County jury convicted petitioner, Jonathan Wesley Stephenson, of first degree premeditated murder and conspiracy to commit first degree murder. The jury imposed the death penalty for the murder conviction, and the trial court sentenced petitioner to twenty-five years for the conspiracy conviction. After several appeals, remands, and collateral proceedings, petitioner's resulting sentence was the death penalty for the murder conviction and a sixty-year sentence for the conspiracy conviction. Petitioner then sought postconviction relief. Following an evidentiary hearing, the post-conviction court denied relief. Petitioner now appeals the denial of relief, alleging multiple claims of ineffective assistance of counsel. Following our review of the record, we discern no error and affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and ALAN E. GLENN, J., joined.

Daniel E. Kirsch and Avram Frey, Office of the Post-Conviction Defender, Nashville, Tennessee, for the petitioner, Jonathan Wesley Stephenson.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; James B. Dunn, District Attorney General; and William Brownlow Marsh, Assistant District Attorney General, for the respondent, State of Tennessee.

OPINION

I. Procedural History

Petitioner was convicted of the 1989 first degree premeditated murder of his wife and conspiracy to commit first degree murder. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). He hired his co-defendant, Ralph Thompson, Jr., to help him kill the victim. Id. at 535-36. Petitioner had been unsuccessful in two previous attempts to solicit assistance from other people. Id. at 535. Petitioner received the death penalty for the murder conviction and a twenty-five-year sentence for the conspiracy conviction. Id. at 534. The jury found the existence of one aggravating circumstance: "[T]he defendant . . . employed another to commit the murder for remuneration or the promise of remuneration." Id. (quoting Tenn. Code Ann. § 39-13-204(i)(4)) (hereinafter referred to as the "murder for hire" aggravator). His co-defendant was also convicted separately of the same crimes, but the jury sentenced him to life in prison instead of death for the murder conviction, and he received a twenty-two-year sentence for conspiracy. See State v. Ralph Thompson, Jr., No. 03C01-9201-CR-00006, 1992 WL 322404 (Tenn. Crim. App. Nov. 10, 1992), perm. app. denied (Tenn. Mar. 29, 1993) (issues related to convictions only), appeal after remand, No. 03C01-9306-CR-00177, 1994 WL 263177 (Tenn. Crim. App. June 15, 1994), perm. app. denied (Tenn. Aug. 28, 1995) (resentencing hearing).

In the first direct appeal in this case, the supreme court affirmed petitioner's convictions but remanded the matter for resentencing on both convictions because the jury was incorrectly instructed on the burden of proof regarding the aggravating circumstance and because the jury was provided an outdated verdict form. Stephenson, 878 S.W.2d at 57-58. Following remand, the parties agreed to a sentence of life without parole for the murder conviction and a consecutive sixty-year sentence for the conspiracy conviction.

Petitioner filed his first petition for post-conviction relief in 1995, challenging the plea negotiations following remand. He voluntarily withdrew that petition. In 1998, he filed his first habeas corpus petition in which he challenged the legality of his life without parole sentence. Stephenson v. Carlton, 28 S.W.3d 910 (2000). On appeal, the supreme court concluded that the sentence was, in fact, illegal because at the time of the crime in this case, life without parole was not an available penalty for first degree murder. Id. at 912. However, the court specifically noted that its ruling did not affect the sixty-year sentence for the conspiracy conviction, which petitioner did not challenge in his habeas corpus petition and which the court concluded was not void or illegal. Id. at 912 n.3.

Thereafter, the trial court held a new sentencing hearing on the first degree murder conviction. During this second remand, the State again filed a notice of intent to seek thedeath penalty. The sentencing jury found that the same "murder for hire" aggravating circumstance outweighed the mitigating evidence and sentenced petitioner to death. State v. Stephenson, 195 S.W.3d 574, 585 (2006). The supreme court affirmed the death sentence on appeal. Id. at 581. The court again noted that petitioner waived any challenge to his sixty-year sentence for the conspiracy conviction. Id. at 596 n.16.

Petitioner has also filed three petitions for writ of habeas corpus since the second remand for resentencing. He voluntarily dismissed the first petition, filed in June 2004. See Jonathan W. Stephenson v. Ricky Bell, Warden, No. M2011-01562-CCA-R3-HC, 2012 WL 2356586, at *2 (Tenn. Crim. App. June 20, 2012), perm. app. denied (Tenn. Nov. 28, 2012). He filed the second petition in June 2010. Id. In that petition, he challenged the trial court's actions in the initial remand after the first direct appeal. As noted above, the State agreed to a sentence of life without parole for the murder conviction and a sixty-year sentence for the conspiracy conviction. However, at the time of the plea submission, in addition to accepting those sentences, the trial court also accepted petitioner's guilty pleas to both indicted offenses. Id. at *1. The judgment sheet filed by the trial court in 1994 reflected that petitioner was not only "found guilty" after a jury trial but that he also "pled guilty" to the offenses. Id. According to petitioner's habeas corpus argument, his guilty pleas in 1994 voided the original jury convictions rendered in 1990. Id. at *4. Thus, he claimed that when the supreme court remanded the case for resentencing in 2000, he should have been permitted to withdraw his guilty pleas and either enter into a new plea agreement or proceed to a new trial. Id. The habeas court denied relief. This court held that the trial court lacked jurisdiction in 1994 to accept petitioner's guilty pleas to the offenses because it was limited on remand to conducting a new sentencing hearing. Id. This court further noted that the supreme court had already affirmed the 1990 jury convictions; thus, the convictions for first degree murder and conspiracy to commit first degree murder stemmed from the original jury trial, not the resentencing hearing in 1994. Id. at *4-5. Accordingly, the trial court's jurisdiction at resentencing was limited to determining the appropriate sentence for petitioner's valid 1990 convictions by a jury. Id. at *5.

In his third petition for habeas corpus relief, petitioner challenged the validity of his sixty-year sentence for conspiracy. The habeas corpus court dismissed his petition, and this court affirmed the court's ruling. See Jonathan Stephenson v. Ronald Colson, Warden, No. M2013-00720-CCA-R3-H, 2013 WL 6705997 (Tenn. Crim. App. Dec. 19, 2013). Petitioner timely filed his second petition for post-conviction relief in October 2006. The instant appeal stems from the post-conviction court's May 31, 2012 order denying relief on that petition. In this appeal, petitioner argues that he received ineffective assistance of counsel in the following areas: (1) failure to advocate for specific performance of the plea agreement; (2) failure to argue against the applicability of the sole aggravating circumstance; (3) failure to contest the admission of his statement of law enforcement officers; (4) failure to advance anargument with regard to the State's pursuit of inconsistent theories in his trial and his co-defendant's trial; (5) failure to present sufficient mitigating evidence at his resentencing hearing; (6) failure to object to allegedly improper victim impact evidence; (7) failure to contest various jurors during voir dire; and (8) failure to adequately challenge Tennessee's death penalty statute.

II. Facts

A. Facts from Trial (Resentencing)

The facts of this case were summarized by the supreme court in its 2006 opinion:

At the resentencing hearing, the State presented proof showing that in December 1989, the defendant was married to Mrs. Stephenson and had a four-year-old son and an eight-month-old son. The defendant worked as a tractor-trailer driver in Morristown, Tennessee. In March 1989, the defendant met Julia Ann Webb ("Webb") at a bar in Knoxville, Tennessee, and the two became romantically involved. The defendant told Webb that his wife had been killed in a traffic accident five years earlier and that afterwards he had an affair with his wife's sister, "Kathy." He also told Webb that he had a child with each woman.

In 1989, on numerous occasions, the defendant asked Glen Franklin Brewer ("Brewer"), a co-worker, to kill the wife of a friend. However, the description of the residence of the proposed victim matched the defendant's own home. On one occasion the defendant offered Brewer a boat, a motor, and a pickup truck in return for the requested killing. On another occasion the defendant offered Brewer $3,000.00 in return for the killing, and on yet another occasion, the defendant offered Brewer $5,000.00 from life insurance proceeds. The defendant complained to Brewer that his wife was receiving expensive psychiatric treatment and medication and that he feared he would "lose everything he had worked for" if he divorced her. In the fall of 1989, the defendant offered another man, Steven Michael Litz ("Litz"), who was a friend of Thompson, $5,000.00 to kill the defendant's wife because, the defendant said, she was

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