Robert Anthony Fusco v. State of Tennessee
M2016-00825-CCA-R3-PC
Tenn. Crim. App.Dec 11, 2017Background
- Fusco and co-defendant plotted to abduct John Gilreath, hold Elke Gilreath hostage, and force John to open their jewelry store after hours; Fusco entered the Gilreaths' home armed and eventually shot Elke in the chest while taking her watch.
- Police arrested Fusco, found a .25 caliber pistol and a flip phone on him, and later showed him incriminating text messages from the phone; Fusco waived Miranda and made inculpatory statements after being shown the texts.
- A jury convicted Fusco of multiple offenses (including especially aggravated kidnapping, conspiracy, attempted aggravated robbery, aggravated burglary); the trial court imposed consecutive sentences producing an effective 65-year term; this court affirmed convictions and remanded to merge certain counts on direct appeal.
- Fusco filed a pro se post-conviction petition alleging ineffective assistance of trial counsel for failing to (inter alia) move to suppress his statement and phone data, enforce witness sequestration, raise double jeopardy challenges, object to sentencing enhancements, and challenge prosecutorial misconduct. He proceeded pro se at the post-conviction hearing.
- At the post-conviction hearing detectives and trial counsel testified about the phone search, Miranda warnings, and trial strategy; trial counsel explained he did not pursue suppression claims because prevailing law at the time did not clearly prohibit warrantless searches of cell phones. The post-conviction court denied relief.
Issues
| Issue | Fusco's Argument | State's Argument | Held |
|---|---|---|---|
| Motion to suppress statement (timing of Miranda) | Officers questioned Fusco before Miranda; counsel ineffective for not moving to suppress | Record shows Miranda administered before inculpatory statements; no pre-Miranda admissions; counsel reasonably declined to move | Denied — counsel not ineffective; transcript and detective testimony show Miranda warnings preceded incriminating statements |
| Admission of text messages (warrantless phone search) | Counsel ineffective for not filing suppression motion; Riley should apply | At time of 2009 trial, law permitted search-incident-to-arrest of phones; Riley decided in 2014; counsel not required to predict change | Denied — counsel not deficient given then-prevailing law; no prejudice shown |
| Sequestration (Rule 615) | Counsel failed to ensure sequestration and to have State reps testify first; testimony may have been conforming | Rule invoked; no evidence witnesses conformed testimony; no prejudice | Denied — although some State reps remained, no showing of altered testimony or prejudice |
| Sentencing enhancements / Blakely challenge | Counsel ineffective for not objecting to enhancements and untimely notice; prior convictions used without showing counsel representation | Sentencing scheme amended post-Blakely; enhancements permissible; direct appeal considered prior-conviction issues; Fusco offered no proof prior judgments invalid | Denied — no ineffective assistance or prejudice; issues reviewed on appeal |
| Double jeopardy (multiple counts/merger) | Counsel failed to challenge duplicative counts and merged convictions improperly | Some counts charged alternative theories; conspiracies merged on appeal; prosecutions and merger correct | Denied — merger and convictions proper; counsel not ineffective |
| Prosecutorial misconduct (closing argument, other comments) | Counsel failed to object or raise plain error to numerous improper prosecutorial acts | Prosecutorial comments were challenged on direct appeal; this court found no misconduct | Denied — no ineffective assistance shown |
Key Cases Cited
- Riley v. California, 134 S. Ct. 2473 (U.S. 2014) (warrant generally required to search cell phone data)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
- State v. Fusco, 404 S.W.3d 504 (Tenn. Crim. App. 2012) (direct-appeal opinion affirming convictions and ordering merger)