        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs February 9, 2016 at Nashville

           REGGIE CARNELL JAMES v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Madison County
                      No. C-10-126    Donald H. Allen, Judge


               No. W2015-01640-CCA-R3-PC - Filed March 16, 2016



The petitioner, Reggie Carnell James, was convicted in 2007 of first degree murder and
tampering with evidence. He was sentenced to life with the possibility of parole for the
murder conviction and ten years for the tampering with evidence conviction, with the
sentences to be served consecutively. This court affirmed his convictions on direct
appeal. State v. Reggie Carnell James, No. W2007-00775-CCA-R3-CD, 2009 WL
636726, at *1 (Tenn. Crim. App. Mar. 10, 2009), perm. app. denied (Tenn. Aug. 17,
2009). In April 2010, he filed a petition for post-conviction relief, arguing that trial
counsel had been ineffective for not filing a motion to suppress a statement the petitioner
had made to police officers. Following a hearing on April 11, 2011, the post-conviction
court entered an order on January 31, 2012, denying the petition. The notice of appeal
for this decision was not filed until August 27, 2015. The State argues on appeal that the
notice of appeal was untimely and that, as a result, the appeal should be dismissed. We
conclude that the interest of justice does not require our waiving the late filing of the
notice of appeal and, therefore, dismiss the appeal.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Reggie Carnell James.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A.
Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                         FACTS

      In the opinion of this court affirming the judgments is set out the facts which
provided the bases for the petitioner‟s convictions:

              At trial, Roy Lee Clark testified that one evening in May 2005, he
      arrived at the defendant‟s house. After a while, Clark left the house and
      went to a gas station; upon his return, Clark saw that two other men, Roy
      Gardner and Raymond Thomas (the victim in this case), had arrived. Clark
      said that he, the defendant, Gardner, and the victim spent fifteen to twenty
      minutes using cocaine before going outside. Clark said that once outside,
      the victim spent “about thirty minutes” tilling in the defendant‟s flower bed
      before the four men went back inside to use more cocaine. During this
      time, Clark and the victim sat on a loveseat in the defendant‟s living room,
      with the defendant walking back and forth in front of them with a pistol in
      his hand. Clark said that none of the other three men had a weapon at the
      time of this incident. After a while, Clark heard a gunshot and then heard
      the victim “hollering” and asking the defendant why he had shot him.
      According to Clark, the defendant did not reply to the victim‟s question.
      Clark said that he did not see any blood during this incident. At some point
      after the shooting, the victim slumped over, with his knees on the floor and
      his upper body on the couch.

              Clark testified that after the shooting, he ran to the door in an
      attempt to leave and get help for the victim, who Clark said was still alive
      at this point, but that the defendant stood in the doorway and refused to let
      him take the victim to the hospital. The three men then went outside.
      According to Clark, the defendant said that “he had to finish what he had
      started,” and that he “wasn‟t gonna . . . let [the victim] live.” At that point,
      the defendant returned inside while Clark and Gardner remained outside.
      Clark then heard a gunshot, after which the defendant told the other two
      men to come inside. They did, and upon entering the living room Clark
      saw the victim with a gunshot wound “[b]etween his shoulder and his head,
      by his head.” Clark said that at this point, the defendant still had a pistol in
      his hand. Clark said that the evening after the shooting, he and Gardner
      were at Gardner‟s house when the defendant arrived. Clark asked the
      defendant about the victim, and the defendant replied that the victim “was
      still on the couch.”

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       Clark acknowledged that he was serving a sentence for aggravated
assault and that he had three prior convictions for theft of property and
convictions for evading arrest and attempted aggravated robbery. On cross-
examination, Clark said that because of his daily cocaine use, he was
unable to remember the exact date or day of the week on which this
incident occurred, although he did remember that the incident occurred in
the afternoon. He also said that he was unsure of the date, or even the
month, on which this trial was occurring. Clark admitted that he did not see
the defendant shoot the victim and that the defendant did not point a gun at
him or Gardner. Clark also admitted that he did not hear the defendant
threaten him during the incident. Clark said that Gardner later told him that
the defendant had threatened Clark‟s life, but he also admitted that Gardner
was a convicted felon. He denied that he, Gardner, and the victim entered
into a plot to rob the defendant. He said that when he, Gardner, and the
defendant went outside after the shooting, he and Gardner played basketball
to avoid arousing the suspicion of the neighbors, who were in the yard next
door.

        The substance of Roy Gardner‟s testimony matched much of that
provided by Clark. Gardner said that when the defendant shot the victim,
he was sitting on a chair next to the loveseat on which the victim and Clark
were sitting. Gardner saw the defendant pacing in front of the loveseat,
pistol in hand, before he saw the defendant shoot the victim “in his upper
body.” Gardner asked the defendant to take the victim to the hospital, but
the defendant refused. The men then went outside, with the defendant
telling Gardner that “if anything was said . . . we would be next.” After the
men went outside, the defendant told the other men that “he might as well
go in there and finish it,” at which point the defendant returned inside.
Gardner then heard a gunshot.

      After the shooting, Gardner and the defendant left in the victim‟s
pickup truck. After visiting a store, they returned to the defendant‟s house,
with Gardner dropping off the defendant and then driving away. Gardner
drove the victim‟s truck to a remote area about a mile from his house,
abandoned the truck, and ran home. Gardner said that he did not see the
defendant after this incident.

       Gardner acknowledged that he was in federal custody for a weapons
offense and that he had prior state convictions for criminal impersonation
and theft. On cross-examination, Gardner said that he could not remember
the exact date on which these events occurred, other than the shooting
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happened on a May afternoon. He recalled that he and the other men
“smoked a lot” that day. He recalled seeing blood on the loveseat, but he
was unsure whether the victim was alive or dead when they left the
defendant‟s house the first time. Unlike Clark, Gardner said that he did not
see anyone standing in the yard next door. He also had no independent
knowledge of what happened to the victim‟s truck after he abandoned it,
although he later learned that it was found burned.

       Regarding the police investigation, Deputy David Travis of the
Madison County Sheriff‟s Department testified that on May 26, 2005, he
discovered a burned-out vehicle in a field in a rural part of Madison
County. Deputy Travis said he was unable to find the vehicle‟s license
plate or its Vehicle Identification Number (VIN), but he did find a vanity
license plate which read “Popeye” on the ground in front of the vehicle.
Agent Jim Medlin with the Tennessee Highway Patrol (THP) said he
inspected the vehicle, which he described as a “Chevrolet or GMC truck,”
at an impound lot after it had been towed from the field. Agent Medlin was
able to find the vehicle‟s VIN, and after searching vehicle records, he
learned that the truck was a white 2001 Chevrolet Silverado registered to
the victim and his mother, Pat Thomas.

       Lieutenant Anthony Heavner with the Madison County Police
Department testified that he originally became involved in this case when
the victim‟s burned pickup truck was recovered in rural Madison County,
near the Haywood County line. Ultimately, the nature of the case turned
from a “burned vehicle” case to a missing person case. Through his
investigation, Lieutenant Heavner learned from the victim‟s wife that the
victim had been at his house on May 18, 2005, and he also learned that
when the victim‟s vehicle was recovered May 26, nobody had reported the
vehicle stolen. Lieutenant Heavner provided the victim‟s name and
identifying information for the National Crime Information Center (NCIC)
database, and he also notified the National Center for Missing and
Exploited Persons about the victim‟s disappearance. Lieutenant Heavner
said that as of the trial date, neither the NCIC nor the Center for Missing
and Exploited Persons received any information regarding the victim.

        Lieutenant Heavner said that he first investigated the defendant after
the victim‟s wife, who knew that the victim and the defendant “hung out”
and used drugs together, informed the police that the defendant had visited
her house. Thus, on June 3, 2005, Lieutenant Heavner visited the defendant
at his home in Jackson. The defendant told Lieutenant Heavner that he had
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not seen the victim. On July 1, Lieutenant Heavner returned to the
defendant‟s home after the sheriff‟s department received an anonymous call
in which the caller said that the victim‟s blood could be found in the
defendant‟s home. After Lieutenant Heavner informed the defendant of
this development, the defendant gave police permission to search his house.
The defendant told the officers that he was in the process of moving and
that there would be little furniture in the house. Once Lieutenant Heavner
entered the living room, he saw a spot in the carpet, a spot “larger than a
basketball,” that appeared to be stained. Lieutenant Heavner initially
believed the spot was blood, but when he looked at the spot more closely he
saw that the spot “looked like it was full of some type of soapy material.”
In fact, Lieutenant Heavner later found a bottle of Resolve brand carpet
cleaner in the house. He asked the defendant about the spot; the defendant
replied that his dogs “might have brought something into the house, some
type of animal or something.” Before leaving the defendant‟s house, the
lieutenant cut out the section of stained carpet, and the underlying carpet
pad, and he took a written statement from the defendant in which he denied
any knowledge of the victim‟s disappearance and said that he had taken the
couch to his aunt‟s house.

        Lieutenant Heavner sent the carpet taken from the victim‟s house to
the Tennessee Bureau of Investigation (TBI) for testing. He also sent DNA
samples from the victim‟s wife and children, as well as a sample taken from
the victim‟s razor, to the TBI lab. On August 1, 2005, he again spoke with
the defendant, this time in police custody. After being informed of and
waiving his Miranda rights, the defendant gave a written statement to
police. In the statement, the defendant said that the victim, whom he called
“Popeye,” came to his house along with Gardner and Clark. The defendant
said that he had been “smoking crack non-stop . . . and was high when they
came by” and did drugs with the other men before going to another part of
the house. The defendant claimed that while he was away from the other
men, he heard a gunshot. When he returned to the living room, he saw the
victim lying on the floor, with Gardner and Clark standing over him. The
defendant said that he did not see any blood at the time but recalled that the
victim came to rest on the section of carpet that Lieutenant Heavner
removed. The defendant said that Gardner and Clark then “put Popeye in
his truck and took him away. I don't know where they took him or if he
was dead at that point.” The defendant insisted that the two men did not
tell him what they did with the victim or his truck.



                                      5
       On September 1, after he had taken a statement from Gardner
implicating the defendant in the victim‟s death, Lieutenant Heavner again
interviewed the defendant. After waiving his Miranda rights, the defendant
gave a statement in which he admitted shooting the victim. In the
statement, the defendant claimed that he, the victim, Gardner, and Clark
were doing drugs at his house when he became suspicious about their
behavior and about the fact that they were carrying screwdrivers and
knives. He also claimed that he heard voices in his head because of his
drug use. At some point, the defendant “got paranoid” and became fearful
that the other men would “do bodily harm to me, kill and rob me because I
had drugs.” Thus, he shot the victim in the head. The defendant said that
he walked around for a while before shooting the victim again, this time in
the chest. He said that the victim slumped onto the couch, with the victim‟s
blood soaking through the couch so that a section of carpet underneath the
couch became blood-soaked. The defendant claimed that Gardner drove
away in the victim‟s truck and that he never saw the victim‟s truck again.
The defendant said that later, he wrapped the victim‟s body in a tarp,
wrapped a chain around the body, ran the chain through some concrete
blocks, drove to a bridge over the Forked Deer River in Westover, and
dumped the body into the river. The defendant also said that he threw the
gun he used to shoot the defendant, a .40 caliber Ruger 94, into the river.

       The defendant led police to a dump where he had left the couch on
which the victim was shot. Lieutenant Heavner said that areas on the
couch‟s seat cushions and arm appeared to be soaked with blood. He sent
fabric samples from the couch to the TBI lab for testing. The lieutenant
observed that the couch appeared to be weather-beaten. In his statement,
the defendant said that he “had to get rid of” the couch because it had blood
on it. The defendant also admitted cleaning the carpet with Resolve brand
carpet cleaner in an attempt to remove the blood stains.

       The day of his statement, the defendant led police to the bridge from
which he claimed to have dumped the body. Lieutenant Heavner said that
on September 1, 2005, the Forked Deer River “was about to overflow its
banks” and that the river‟s current was much swifter than usual because of
Hurricane Katrina, which made landfall along the Mississippi Gulf Coast
on August 29. Thus, neither the police nor the Madison County Fire
Department‟s rescue squad attempted to search the river that day. On
September 2, the fire department attempted to search the river using drag
lines, but the river‟s current made such a search impossible. The fire
department searched the river on September 6, and the police searched the
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river on September 9, but those searches produced nothing either time. The
police also conducted an aerial search, but that search also produced
nothing of evidentiary value.

       On cross-examination, Lieutenant Heavner said that while he was
certain that the victim‟s wife had reported that the victim had been in her
home on May 18 and that the victim's truck was found on May 26, he was
unsure of the exact date on which the victim was killed. He also said that
he did not recover any shell casings from the couch or the defendant‟s
home, nor did he see any bullet holes in the couch or in the wall or floor of
the defendant‟s home. He did note, however, that the couch had several
tears on it, which he attributed to the couch‟s being “outside in the
elements.” Lieutenant Heavner said that he only had the couch tested for
blood, not gunpowder residue, noting that in his law enforcement
experience he had never dealt with evidence of stipling on anything other
than the human body. Furthermore, he said that the fact that the couch had
been in the elements made it unclear whether there would be any
gunpowder residue on the couch.

        Sergeant Felicia Stacy with the Madison County Sheriff‟s
Department testified that she was present on September 9, 2005, when THP
divers searched the river near the spot where the defendant claimed to have
dumped the victim‟s body. She said that the divers found two concrete
blocks attached by a chain, with the manner in which the chain was run
through the blocks consistent with the defendant‟s description. However,
on cross-examination she admitted that the divers recovered no clothing
items and that there was nothing to conclude with any certainty that the
blocks and chain had been used to weigh down a body. Sergeant Stacy
testified that she investigated the victim‟s financial records and discovered
that the victim had not accessed any of his accounts since May 2005.

       TBI Agent Donna Nelson testified that she tested the sections of
carpet and couch fabric collected in connection with this case. She said that
while both the carpet and the couch fabric tested positive for human blood,
she was unable to obtain a DNA profile from either sample. She said that
the carpet‟s being cleaned with detergent and the couch‟s being left in the
elements could have caused the DNA present in the blood to degrade.

     Three members of the victim‟s family -- his widow, Candice
Thomas; his seven-year-old son, Dalton Thomas; and his mother, Pat
Thomas -- testified that they had not seen the victim since May 2005 and
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       that they loved him and missed him. Specifically, Candice Thomas
       testified that she last saw the defendant on May 14, 2005, although she said
       that her husband had been in the family home on May 18. She said she
       knew her husband had been in the home that day because some of her
       belongings had been disturbed. She said that she had monitored her
       financial records since May 2005 and that there was no indication that her
       husband had accessed the accounts during that time. She said she knew her
       husband had a drug problem and that he was occasionally away from the
       home, but he was never gone more than a week at a time. She said that she
       was not concerned about her husband‟s disappearance until his truck, which
       the victim considered his “pride an[d] joy,” was discovered burned. She
       said that her husband was known as “Popeye” and that he kept a vanity
       license plate which read “Popeye” on the front of his truck. The victim‟s
       widow said that the defendant had visited her house after the victim “went
       missing” but before his truck was discovered. She recalled that the
       defendant asked her “if [she] had heard anything,” to which she replied she
       had not.

              At the close of the State‟s proof, the parties stipulated that the victim
       had not been treated at any of eight major West Tennessee hospitals since
       his disappearance.

              The defendant‟s only witness, William Merriman, testified that on
       May 24, 2005, he saw the victim, whom he had known since at least 1975,
       at a gas station. Merriman said that the victim told him that the two men
       should take a vacation. Merriman did not recall where the victim wanted to
       go on vacation.

Id. at *1-6.

       The very lengthy petition for post-conviction relief sets out approximately thirty-
three claims of ineffective assistance of counsel, seven claims as to unconstitutional
sentencing laws and procedures, and a large number of claims as to various trial errors.
However, the only proof presented by the petitioner at the evidentiary hearing was the
testimony of his trial counsel regarding his decision not to file a motion to suppress a
statement made by the petitioner to police officers. Further, the petitioner‟s appellate
brief focused only upon this issue. Accordingly, we will consider only this claim in our
review of this matter.

       Trial counsel for the petitioner said that he had been appointed to the matter after
the return of the indictment. He said the petitioner had given several statements, two of
                                              8
them to Investigator Hefner, admitting he had shot the victim but claiming it was in self-
defense. Counsel did not file a motion to suppress any of the statements, although he and
the petitioner discussed doing so. Counsel did not see any point in doing so because, in
trial testimony, the petitioner “would have told the jury exactly the same thing that he
told [Investigator] Hefner and that is that he shot [the victim] because he was afraid that
he was fixing to be jumped on or he was afraid [the victim] was going to pull a knife on
him and rob him.” Additionally, the petitioner told counsel that the murder “occurred
while all these parties were together smoking crack.” Counsel and the petitioner agreed
they would proceed without filing a suppression motion because the statements “would
convey his message to the jury without exposing him to cross-examination.” Later,
counsel received a letter from the petitioner asking that a suppression motion be filed.
Counsel met with him again to explain the advantages of not doing so to allow his
statement to take the place of his testimony at trial. Counsel explained that the matter
was made “somewhat moot” by the fact that a jail recording had been made with the
petitioner talking with a woman “where he pretty much said the same thing that he told
Investigator Hefner and told me and, of course, he had no reasonable expectation of
privacy as far as that statement was concerned.” Accordingly, counsel advised the
petitioner against pursuing a motion to suppress, but the final decision was to be made by
the petitioner.

       Prior to the trial, counsel asked that a forensic evaluation be done of the petitioner,
and he was “found to be competent to stand trial and he was found not to be insane.”
Counsel recalled that the petitioner‟s drug use was “very extensive” and that the trial
court instructed the jury regarding voluntary intoxication. He said that he found the
petitioner to be “very personable, very bright” and described further:

       He understood the position he was in. He asked all the right questions. I
       didn‟t see anything to me to indicate that he was suffering from any mental
       impairment or deficit. Now, I‟m sure whenever he was at the height of his
       crack cocaine use, perhaps he was impaired. I can‟t say, but the jury heard
       ample proof of crack cocaine usage that night[.]

       Counsel said that he still considered it was sound strategy not to pursue a motion
to suppress, for it kept the petitioner “from being cross-examined and it kept the jury
from learning about his felony drug convictions.”

       On cross-examination, counsel said that he had practiced law for nearly thirty-five
years and had handled “[p]robably between 100 and 150” first degree murder cases.

       Following the evidentiary hearing, the post-conviction court entered a written
order denying the petition for post-conviction relief, finding that the petitioner had failed
                                              9
to establish that trial counsel had provided deficient performance or that such alleged
performance had prejudiced the petitioner and, more specifically, that counsel‟s decision
not to pursue a motion to suppress had not amounted to ineffective assistance of counsel
and that the petitioner had not established that there was a legal basis upon which the
motion would have been granted.

                                       ANALYSIS

        The State argues on appeal that this matter should be dismissed because the appeal
was untimely by over three and one-half years, the post-conviction court‟s order denying
relief entered on January 31, 2012, and the notice of appeal not being filed until August
27, 2015. Tennessee Rule of Appellate Procedure 4(a) provides that the notice of appeal
must be filed “within 30 days after the date of entry of the judgment appealed from[.]”
However, the rule further provides that “in all criminal cases the „notice of appeal‟
document is not jurisdictional and the filing of such document may be waived in the
interest of justice.” Id. As we will explain, we conclude that the interest of justice does
not require our waiving the untimeliness of the filing of the appeal notice, and we decline
to do so.

        Although the petitioner argues that trial counsel should have sought to suppress his
initial statement to investigators, he advances no reasons counsel could have argued for
doing so. Further, given the significant strength of the proof against the petitioner, as
outlined in the direct appeal of his convictions and of additional similar statements he had
made, also admitting the crime, we cannot conclude that the interest of justice compels
our waiving the untimeliness of this appeal. Accordingly, the appeal is dismissed.

                                     CONCLUSION

       Based upon the foregoing authorities and reasoning, the appeal is dismissed.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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