IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

 April 12, 2011 Session

JOHN WILLIAMS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 01-08325-33 John T. Fowlkes, Jr., Judge

No. W2010-01013-CCA-R3-PC - Filed September 1, 2011

The Petitioner, John Williams, appeals the Shelby County Criminal Court’s denial of postconviction relief from his convictions for five counts of especially aggravated kidnapping

and three counts of aggravated robbery, with an effective sentence of 161 years. He contends

that the trial court violated his constitutional right to a public trial and that counsel rendered

ineffective assistance by failing to object to partial closure of the trial and failing to raise the

issue on direct appeal. Because the trial court’s order denying post-conviction relief is

incomplete, we reverse the judgment and remand the case to the trial court for findings of

fact and conclusions of law on the ineffective assistance of counsel claim.

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Case Remanded

JOSEPH M.TIPTON, P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and ROBERT W. WEDEMEYER, JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, John Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;

Amy P. Weirich, District Attorney General; and Alexia Fulgham, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The Petitioner was convicted of offenses he committed with five other individuals.

He and co-defendantJarvis Williams were tried together. On direct appeal of the Petitioner’s

and co-defendant Williams’s convictions, this court affirmed the trial court’sjudgments. See

State v. Jarvis Williams & John Williams, No. W2002-03010-CCA-R3-CD, Shelby County

(Tenn. Crim. App. Dec. 23, 2003), app. denied (Tenn. May 10, 2004).
This court’s summary of the facts in that appeal as they pertained to the Petitioner

included testimony from victims Kimberly Hancock, Divin Wright, Omar Coleman, Oliver

Wright, Tonyell Somerville, and Ms. Somerville’s son, who was seven years old at the time

of the offense. Id., slip op. at 1-5. According to their testimony, Ms. Hancock, Divin

Wright, Mr. Coleman, and two other individuals drove to Marion Vaughn’s house on the

night of January 11, 2001. Ms. Vaughn was Ms. Hancock’s friend, and Ms. Hancock wanted

to retrieve clothing she had left at the house. Ms. Hancock and Mr. Wright entered the house

while the others waited in the car. The Petitioner and co-defendant were in the house with

Ms. Vaughn, Torrez Talley, and Thaddeus Brown.

Ms. Hancock testified that when she went upstairs to gather her clothes, the Petitioner

followed her, yelled, “[S]omebody is fixing to die,” grabbed her by the neck, threw her down

the stairs, and forced her to sit on the couch. The co-defendant forced Divin Wright onto the

same couch. The Petitioner and co-defendant were both armed, and the Petitioner accused

Ms. Hancock of setting up a break-in of his home by Oliver Wright, Divin’s brother. The

Petitioner and co-defendant told both victims they would die that night.

Mr. Talley and Mr. Brown brought Mr. Coleman out of his car and into the house.

Javon Bryant arrived at the house, pointed two guns at Ms. Hancock, and told her that she

would help them find Oliver Wright. Mr. Bryant and the co-defendant forced Ms. Hancock

into a car and drove away. The co-defendant later called Oliver Wright, arranged a meeting,

and called the Petitioner to notify him. Mr. Brown drove the co-defendant’s car, a Dodge

Intrepid, to meet the co-defendant and Mr. Bryant. They forced Ms. Hancock to the Intrepid

at gunpoint and waited for Oliver Wright. When Oliver Wright arrived, his passengers

included Mr. Carpenter, Ms. Somerall, and her son. Two assailants surrounded the car, a

Dodge Neon, and forced Oliver Wright and Mr. Carpenter to get out and remove their

clothes.

The co-defendant forced Oliver Wright into the trunk of the Intrepid and closed the

trunk on his leg, breaking his leg. The assailants forced Mr. Carpenter into the trunk of the

Neon, with Ms. Somerville and her son still held at gunpoint in the Neon. Mr. Ezell drove

the Neon, and Mr. Bryant drove the Intrepid. They later pulled over, and the assailants

released Ms. Somerville and her son, allowing her to drive away in the Neon after they took

her identification and threatened to kill her and her son if she called the police. They put Mr.

Carpenter in the trunk of the Intrepid with Oliver Wright and told Ms. Hancock they would

kill both men. They drove Ms. Hancock to a location near her mother’s house, allowed her

to get out, and threatened to kill her and her daughter if she called the police. Ms. Hancock

testified that the assailants robbed her of $120 and that she later called the police. Ms.

Somerville also called the police.

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Divin Wright testified that after the co-defendant and Mr. Bryant left Ms. Vaughn’s

house with Ms. Hancock, the Petitioner pointed a pistol at him and took everything in his

pockets. He testified that he was stripped naked and beaten by Mr. Ezell. Mr. Coleman

testified that he was also stripped and that his checkbook was taken. The co-defendant and

other assailants later brought Oliver Wright and Mr. Carpenter into the house. According to

the victims who were in the house, the Petitioner and co-defendant beat Divin and Oliver

Wright with their fists and guns, forced Divin’s head into the smoldering fireplace, burned

Oliver Wright’s back with cigarettes, and poured bleach on Mr. Coleman, Mr. Carpenter, and

both Wright brothers. Mr. Coleman also testified that he was hit in the head when he tried

to escape and that the co-defendant ripped off Mr. Coleman’s pants and shook out the

pockets as both the co-defendant and the Petitioner asked, “Where’s my stuff?”

The armed Petitioner joined with other assailants to force Mr. Coleman and Mr.

Carpenter into the trunk of Mr. Coleman’s car, a Ford Focus. Oliver and Divin Wright were

forced into the trunk of the Intrepid. Oliver Wright testified that the assailants told him he

was going to die and that they drove the cars until they stopped at a place where he could

hear a train approaching. The police later arrived and released the victims from the car

trunks. The Petitioner testified that he “wasn’t involved in none of these incidents” and had

been “at home with [his] child and [the] baby’s momma.” See id., slip op. at 1-5.

The jury convicted the Petitioner of five counts of especially aggravated kidnapping

of victims Kimberly Hancock, Divin Wright, Oliver Wright, Omar Coleman, and Jerome

Carpenter and three counts of aggravated robbery of Divin Wright, Oliver Wright, and Omar

Coleman. The Petitioner filed a petition for post-conviction relief on March 15, 2005.

At the post-conviction hearing, Derrick Rucker testified that he was employed at an

auto body shop until he injured his back six weeks before the hearing. He said he and the

Petitioner were close friends and knew each other for more than fifteen years. He said that

he was present for the Petitioner’s trial on the morning of September 4, 2002, and that he

watched two or three people testify before the lunch recess. He said that he went to lunch

with two other friends and that when they returned, the bailiff told them they could not enter

the courtroom for a security purpose. He denied that any problems occurred that morning

or that the judge or bailiff spoke to him or his friends about their behavior or appearance.

He said there was nothing disruptive or improper about their behavior or appearance. He

said his purpose for going to court was to support his friend because the Petitioner’s aunt was

unable to attend the trial.

On examination by the court, Mr. Rucker testified that more than eight people were

involved in the trial and that multiple people were in the audience. He said the case was

“high profile” and covered extensively by television news. He remembered that the charges

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included violent crimes and thought the case involved attempted murder. He said that the

media tried to make it look like the case was related to gang activity but that he was not a

“gangster” and neither were his friends. He said he and his two friends were the only persons

kept out of the courtroom. He said his past convictions included burglary, possession of

marijuana, and some misdemeanors.

On further direct examination, Mr. Rucker testified that his felony drug conviction

was in 2004 and that he was last released from custody on July 7, 2008. He said he had no

problems with the law since then.

On cross-examination, Mr. Rucker agreed that the Petitioner’s charges were

“something similar” to especially aggravated kidnapping and aggravated robbery. He agreed

there were at least three victims whom he saw ready to testify and said he also thought a little

boy was a victim. He said that he and his friends asked why they could not return to the

courtroom and that the bailiff would tell them only that it was for a security reason. On

examination by the court, Mr. Rucker testified that he went through the security system at the

courthouse on the day of the trial.

Troy Hughlett testified that he had been employed for two years at a warehouse. He

said he and the Petitioner had been good friends for fifteen or twenty years. He said he was

in the courtroom on the morning of September 4, 2002, with Mr. Rucker and Mario

Wrenthrob. He said that the Petitioner’s family was not there that morning and that he

attended the trial to support the Petitioner. He said that while he and his friends were at the

trial, no one spoke to them about their behavior or appearance. He said that when the court

recessed, he and his friends went downstairs in the courthouse to eat lunch. He said that

when they tried to return to the courtroom, the bailiff stopped them and said they had been

barred. He said the bailiff did not explain the reason.

On cross-examination, Mr. Hughlett testified that the bailiff did not give him or his

friends an opportunity to ask why they had been barred from the courtroom. He agreed that

many people were in the courtroom and that it was a newsworthy case. He said he did not

remember the charges against the Petitioner or anything else about the case. He said he had

no felony convictions.

On examination by the court, Mr. Hughlett testified that he did not attempt to attend

the trial after that day. He said he and his friends heard one woman testify before the lunch

recess. He said he was not present for the jury selection. He said the Petitioner and the

Petitioner’s brother were on trial.

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Mario Wrenthrob testified that he had been employed at McDonald’s for about a year

and that he and the Petitioner had been friends for many years. He said he attended the first

day of the Petitioner’s trial to support the Petitioner and “to see what was really going on.”

He did not think the Petitioner’s family was able to attend. He said that neither the judge nor

the bailiff told him or his friends their clothing or behavior was inappropriate and that there

was nothing inappropriate about their clothing or behavior. He said that he left the

courtroom for the lunch recess with his friend and his cousin and that when they returned,

they were told they could not enter. He said the only reason given was a “security purpose.”

He said he knew of no one else who was not allowed to enter the courtroom.

On cross-examination, Mr. Wrenthrob testified that he asked the bailiff why they

could not reenter the courtroom but that the bailiff would only say it was for security reasons.

He said they left after they were barred. He did not remember news personnel at the trial or

whether the case was gang-related. He said he had been convicted of a misdemeanor

marijuana charge but not a felony.

On the court’s examination, Mr. Wrenthrob testified that when the bailiff told him and

his friends they could not enter the courtroom, the door had closed but they were about to

enter. He denied being asked to leave while court was in session.

The Petitioner’s counsel testified that he practiced primarily in criminal defense. He

said that Mr. Rucker looked “vaguely familiar” but that he had never seen Mr. Hughlett or

Mr. Wrenthrob.

At this point, the trial court noted for the record:

[H]is friends all left. And, one of them I believe Mr. Rucker

was trying to talk with Mr. Williams when he was leaving. The

officers had to tell him not to communicate with Mr. Williams.

His close friends are now gone.

Counsel testified that he vaguely remembered that someone was told to leave the

courtroom at the trial because of a security issue but that he did not remember specific

details. He said he reviewed his notes from the trial and did not find any mention of people

excluded from the trial. He said that it was a difficult trial and that he was occupied with the

job at hand. He remembered that a bailiff mentioned the exclusion of some individuals for

security reasons. He said, “It didn’t shock me to the point that I objected or to the point that

I took notes on it.” He said he would usually note anything that might need to be raised in

a motion for new trial or on appeal.

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Counsel testified that he thought he was told when he returned from the lunch recess

by either a bailiff or the judge about the exclusion of individuals. He did not know if the

Petitioner was told. He did not remember any discussion in court regarding whether the

individuals should be excluded. He said that if the trial court had explained that it was

considering the exclusion, he would have objected because his client needed support. When

asked why he did not raise an objection or raise the issue in the motion for new trial, he said

he did not remember. He said he reviewed the trial transcript and his notes but found no

mention of the individuals’ exclusion from the courtroom. He noted that it had been eight

years since the trial. He agreed it was a possibility that there was “nothing to remember”

about the issue.

Counsel testified that around the time of this trial and in the same courtroom, he was

involved in a murder trial during which an individual or two were asked to leave because of

their clothing. He said that as he tried to remember what happened in this trial, he began to

confuse the two. He said the courtroom audience for the Petitioner’s trial was divided into

prosecution and defense sides. He said that the case involved seven victims and that there

was a great deal of support on the prosecution’s side but very little on the Petitioner’s side.

He did not remember meeting the Petitioner’s parents and did not remember any of the

Petitioner’s family attending the trial.

On cross-examination, counsel testified that he had practiced criminal law for over

ten years and that he had represented defendants in ten to fifteen jury trials and about the

same number of bench trials. He said the Petitioner and his brother were both charged with

multiple counts of especially aggravated kidnapping and aggravated robbery. He agreed that

the District Attorney’s Office labeled the Petitioner’s case a “gang case” and that the trial

prosecutor was the gang crime prosecutor. He said the trial lasted at least five days. He said

four of the seven victims knew the Petitioner before the offenses occurred. He said he did

not remember if the Petitioner asked him to object when his friends were barred from the

courtroom. On redirect examination, counsel testified that he did not know whether the

Petitioner was aware of his friends’ exclusion from the courtroom during the trial.

On examination by the trial court, counsel testified that he was aware during the trial

that the Petitioner had friends there in support of him and that when the bailiff told him

individuals were excluded, he knew they were supporters of the Petitioner. He said he

reviewed the trial transcripts and found no mention of the individuals’ exclusion. He said

that he hoped he would have objected and asked for a hearing if the Petitioner told him that

his friends were excluded but that he did not recall whether the Petitioner said anything. He

said that the State’s witnesses were terrified and that the atmosphere was tense.

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The Petitioner testified that histrial began on September 4, 2002, and lasted four days.

He said that Mr. Rucker, Mr. Hughlett, and Mr. Wrenthrob were his good friends and that

he had known them for fifteen or twenty years. He said they had nothing to do with the

offenses in the case and were at the trial to support him. He said his family was not at the

trial because counsel told him the case would be continued. He said that he was surprised

that the trial started when it did. He said that his three friends were in the courtroom the first

morning of the trial but not after the lunch recess and that he learned of their exclusion when

he called home that night. He said his friends did not cause a disruption with their behavior

or appearance. He did not remember if the judge told him about the exclusion and said he

would have asked counsel to object if he had known.

On cross-examination, the Petitioner testified that to his knowledge, counsel did not

know about his friends’ exclusion. He denied that his friends caused a disruption when they

left the post-conviction hearing. He agreed that one friend said something to him before

leaving and said that the friend asked if he wanted some money on his books. He denied that

his friends were smiling and laughing and that one friend gave him a sign with his hands.

He said he did not see his friends do anything wrong at the post-conviction hearing or the

trial. He said that his family lived in Chattanooga and that they offered to attend the trial, but

that he told them he was okay and they did not need to attend.

On redirect examination, the Petitioner testified that he thought he said something to

counsel about his friends’ exclusion but that he was not sure. He said that although he asked

counsel to include the issue on appeal, counsel refused. He agreed that if his family lived in

Memphis, he would have asked them to attend, but he said that the six-hour drive from

Chattanooga was too much for them when he already had friends there to support him. On

recross-examination, the Petitioner testified that the State appointed counsel to represent him

on appeal.

On further redirect examination, the Petitioner testified that when his friend asked

during the post-conviction hearing if he wanted money on his books, it meant on his account

at the jail commissary. In response to a question from the court, the Petitioner agreed court

officers told his friends to stop talking to him during the post-conviction hearing and to leave

the courtroom. The trial court accepted a copy of the trial transcript as an exhibit and

requested that defense counsel mark the section containing the lunch recess at issue for the

court’s review.

The prosecutor testified that she vaguely remembered an incident during the first day

of the trial when the judge would not allow three young men to return to the courtroom after

the lunch recess. She said that she was assigned to the District Attorney’s Office gang unit

at the time of the trial and that her unit considered the Petitioner’s case to be gang-related.

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She said that there were seven victims and six defendants in the case and that there were

many people present in the courtroom during the trial. She said the victims were frightened

and easily intimidated. She said they told her that people in the courtroom were gesturing

and making faces at them or saying things. She told the trial court, and it ruled that none of

the victims had to “go through that”and excluded the three individuals. She said that one of

the victims recognized at least one of the excluded individuals and that the court officer

obtained the individuals’ names. She said her conversation with the judge was not on the

record but was held openly in court.

On examination by the court, the prosecutor testified that she received an excerpt of

the trial transcript provided by the Petitioner’s post-conviction counsel. She said that Ms.

Somerville was on the witness stand before and after the exclusion occurred and that Ms.

Somerville’s young son still had to testify. She said specific individuals were brought to her

attention and were excluded from the courtroom. She said that the trial court did not address

the excluded individuals because the court ruled to exclude them before they returned to the

courtroom and that after the ruling, the bailiff did not admit them. She agreed the incident

occurred during the second day of testimony and third day of the trial. She said testimony

that day began with Omar Coleman, who was followed by Ms. Somerville and her son. On

redirect examination, she testified that the jury was not in the courtroom when she brought

the witnesses’ concern to the trial court’s attention or when the court ruled to exclude the

individuals.

In a written order denying post-conviction relief, the trial court stated:

A review of the trial transcript shows that on September 5, 2002,

three individuals were, in fact, barred from the courtroom. The

trial court said the following:

“The court: All right. The three young men that

were seated on this side of the courtroom early

this morning. They’re not here now. They’re not

to be allowed back in the courtroom for the

duration of the trial. We can’t have the conduct

that is threatening in any manner or suggest

intimidation in any manner. And so if that

continues they’ll just be kicked out of the

courtroom. It’s as simple as that. Bring in the

jury, please.”

. . .

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Petitioner produced three witnesses who purported to be friends

of Petitioner. Each of the witnesses testified during the hearing

that they attended Petitioner’s trial during the morning hours,

but after lunch recess, they were denied access to the courtroom.

They indicated that there was no type of disturbance, but that

courtroom bailiffs kept them out of the courtroom for security

reasons.

. . .

Petitioner’s complaint about closing the courtroom to his

friends is denied for two reasons. First, and foremost, Petitioner

raised this complaint for the first time in his Petition for PostConviction Relief. No objection was made to the trial court at

the time the partial closure occurred. Petitioner testified that he

found out about the closure after the court had adjourned for the

day, but neglected to inform trial counsel the following day

when the trial continued. Thus, the trial court was never given

the opportunity to address this alleged complaint.

Secondly, although the trial court did not conduct a

formal jury out hearing, it is clear that a complaint was

communicated to the court, and three individuals were identified

and barred from the courtroom. The court articulated reasons on

the record for the partial closure. Some type of threat was

communicated to witnesses during the trial, and the court was

made aware of such and took steps to eliminate the threat. In

response, the court ordered the individuals responsible for the

threats to be excluded from the courtroom. This Court finds that

the actions taken by the trial court were reasonable under the

circumstances.

For the foregoing reasons, Petitioner’s complaints about partial

trial closure are without merit and are denied.

The burden in a post-conviction proceeding is on the petitioner to prove his

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010);

Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). A petitioner is required to provide

“allegations of fact explaining why each ground for relief was not previously presented in

any earlier proceeding.” T.C.A. § 40-30-104(e) (2010). On appeal, we are bound by the trial

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court’s findings of fact unless we conclude that the evidence in the record preponderates

against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction

relief may only be given if a conviction or sentence is void or voidable because of a violation

of a constitutional right. T.C.A. § 40-30-103 (2010).

I

The Petitioner contends that the trial court violated his constitutional right to a public

trial by closing the courtroom to his three friends without following the requirements for

partial closure set out in Waller v. Georgia, 467 U.S. 39, 46-47 (1984). The State contends

that the trial court correctly found that the Petitioner waived this issue for post-conviction

relief by failing to raise it on direct appeal. See T.C.A. § 40-30-106(g) (2010). We agree

with the State.

The right to a public trial is guaranteed by the Sixth Amendment to the United States

Constitution and article I, section 9 of the Tennessee Constitution. To avoid violating a

defendant’s right to a public trial, the trial court should hold a jury-out hearing before closing

or partially closing the trial, determine whether the party seeking to close the hearing has an

overriding interest that is likely to be prejudiced without the closure, confine the closure to

only that necessary to serve such an interest, consider alternatives, and make findings

adequate to support the closure. See Waller, 467 U.S. at 48; State v. Sams, 802 S.W.2d 635,

640 (Tenn. Crim. App. 1990). As the Petitioner notes, if the record shows a violation of the

right to a public trial, prejudice requiring reversal is implied. See State v. Tizard, 897

S.W.2d 732, 749 (Tenn. Crim. App. 1994); Sams, 802 S.W.2d at 641 (noting that to require

actual proof of prejudice “would seriously impair, if not actually destroy, the safeguards

provided by the public trial requirement”).

In this case, however, we conclude that the Petitioner waived his public trial claim by

failing to raise it in the trial of his case and on direct appeal. A constitutional claim for relief

that was not raised when it could have been raised in an earlier proceeding is waived for

post-conviction relief unless the constitutional right was not recognized at the time of the trial

or was not raised as a result of a State or federal action. See T.C.A. § 40-30-106(g). Neither

exception applies in this case, and the Petitioner is not entitled to relief on this issue.

II

The Petitioner contends that counsel rendered ineffective assistance by failing to

object to partial closure of the trial and failing to raise the issue on direct appeal. He argues

and the State concedes that the trial court, in both its written order denying post-conviction

relief and its ruling from the bench, failed to address whether the Petitioner received the

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ineffective assistance of counsel. We agree that the trial court failed to address this claim,

and we conclude that the trial court’s order denying post-conviction relief is incomplete.

The Post-Conviction Procedure Act mandates that the trial court enter an order or

written memorandum detailing all grounds presented by the Petitioner and its findings of fact

and conclusions of law with respect to each ground. See T.C.A. 40-30-111(b) (2006)

(amended 2009). The purpose of this requirement is to facilitate appellate review. See State

v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984); cf. State v. Higgins, 729 S.W.2d

288, 290-91 (holding that the trial court’s failure to state findings of fact and conclusions of

law regarding each issue of the defendant’s claim in its written order was harmless because

the court’s oral findings from the bench on each issue were included in the appellate record).

Although we held in Section I that the Petitioner waived any complaint of a constitutional

violation as a result of the trial court’s partial closure of the courtroom when he failed to raise

it in the conviction proceedings or direct appeal, it does not necessarily follow that he is not

entitled to relief on the basis of this constitutional claim of ineffective assistance of counsel.

We are unable to review the Petitioner’s claim of ineffective assistance of counsel because

the trial court did not rule on this issue. See T.C.A. § 40-30-111(b); Tenn. Sup. Ct. R. 28 §

9(A).

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is reversed, and the case is remanded to the trial court for findings of fact and

conclusions of law on the Petitioner’s ineffective assistance of counsel claim.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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