Davarius Smith v. State of Tennessee, W2016-00345-CCA-R3-PC

Background

Davarius Smith was convicted after a jury trial of two counts of attempted second-degree murder, reckless endangerment, and use of a firearm; effective sentence 18 years. Convictions affirmed on direct appeal.
At the shooting at Rice Park (July 10, 2011) multiple witnesses had limited memory; some made pretrial identifications that were later recanted at trial. No gun was recovered at the scene.
Investigators recovered nine 9mm shell casings at the park and two 9mm casings from a white Pontiac G6 owned by Ashley Foxworth; the G6 had visible bullet damage. The TBI later tested casings and found the G6 casings matched the park casings.
Defense counsel did not receive Investigator Ruff’s evidence log or notice of the G6 casings before trial; trial counsel learned of a TBI submission request shortly before trial but the TBI results were not available at trial. The casings themselves were not admitted at trial.
Post-conviction petition alleged (1) Brady violation for nondisclosure of the casings; (2) ineffective assistance of trial and appellate counsel concerning the casings; (3) ineffective assistance for failure to move to suppress a pretrial photographic identification of Smith by Demetrice Jones; and (4) ineffective assistance of appellate counsel for not challenging a prosecutor comment and for failing to include jury instructions in the record. The post-conviction court denied relief; this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
State withheld exculpatory evidence (shell casings) under Brady	Shell casings in Pontiac were exculpatory and nondisclosure violated due process	Casings were not exculpatory; TBI matched casings from Pontiac to park (inculpatory); mere discovery error not Brady	Denied — not a Brady violation because casings were inculpatory (matched park casings) and nondisclosure was not constitutional error
Ineffective assistance (trial) re: failure to inspect/learn of casings or seek mistrial	Counsel should have inspected evidence, discovered casings pretrial, requested mistrial; prejudice to plea/trial strategy	Counsel reasonably relied on client’s consistent claim of innocence; casings not admitted and no forensic link at trial; asking mistrial could worsen position	Denied — counsel’s decisions were reasonable strategic choices and petitioner failed to show prejudice
Ineffective assistance (trial) for not moving to suppress Jones’s pretrial ID	Jones was shown only a single photo of Smith; identification procedure was unreliable and should be suppressed	Jones identified Smith by name in a prior written statement before being shown the photo; ID evidence was recanted at trial so no prejudice	Denied — no deficient performance or prejudice; prior statement preceded photo; recantation undermines prejudice
Ineffective assistance (appellate) re: prosecutor comment and jury instruction	Appellate counsel failed to challenge a comment implying no self-defense and failed to include jury instructions in record	Comment, in context, was not an improper comment on silence; appellate counsel raised other misconduct; missing jury charge not shown so prejudice not established	Denied — prosecutor’s comment not reversible; failure to include instructions not shown to be prejudicial; tactical appellate choices reasonable

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (constitutional duty to disclose exculpatory/impeaching evidence)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test: deficiency and prejudice)
Dellinger v. State, 279 S.W.3d 282 (Tenn. 2009) (post-conviction burden and standards)
State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) (Brady material test under Tennessee law)
State v. Jackson, 444 S.W.3d 554 (Tenn. 2014) (prosecutorial comment on defendant’s silence)
Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004) (merit required for appellate-omission ineffective-assistance claims)
State v. Melson, 772 S.W.2d 417 (Tenn. 1989) (Strickland applied under Tennessee Constitution)