The man sentenced to life in prison for the 2012 murder of Matthew McKnight was granted a new trial in the Tennessee Court of Criminal Appeals.
Antonio Dywon Toomes was transferred from federal prison to the Crockett County Sheriff’s Department on Thursday, January 21 after the court of appeals granted him a new trial in the murder of McKnight.
The body of McKnight was discovered by his mother on Thursday, October 18, 2012 in his home on Gum Flat Road, where he resided with his parents. According to court records listed as factual background, McKnight failed to meet with his father for prearranged lunch plans, sparking his mother to return home to check on him. When she arrived, she discovered her son deceased from a single gunshot wound to his right leg.
Doors to the home were open and the home was amiss with items strewn throughout. Jewelry and a .357 Magnum firearm were missing from the home.
Toomes was identified as a suspect and indicted on charges of felony murder in the perpetration of or attempt to perpetrate aggravated burglary, especially aggravated robbery and especially aggravated burglary. The state dropped the especially aggravated robbery charge on February 11, 2013.
In the February 2, 2016 trial against Toomes, where he represented himself without an attorney, evidence was presented that a palm print was lifted from the side of one of the doors above the deadbolt and a fingerprint was lifted from a jewelry box matching prints from Toomes.
Bullet fragments and live rounds to a .380 automatic firearm were recovered from the home and additional spent bullet from the living room was determined to have been fired from the gun stolen from the home. Officers later recovered the stolen gun during a traffic stop in Lauderdale County. At that time, officers were unable to connect the vehicle’s occupants to the homicide.
The background continues to reflect that while Special Agent Mark Reynolds of the Tennessee Bureau of Investigation (TBI) was at the scene on October 18, 2012, he received a call from Toomes. Agent Reynolds knew Toomes prior to the homicide. Toomes asked whether anyone had mentioned his name in connection with “this incident that happened in Crockett County.” At that point, the offenses had not been publicized to the media and Agent Reynolds stated that Toomes would only have known about the offenses if he was involved in their commission. Agent Reynolds met with Toomes, who denied any involvement in the offenses.
On January 29, 2013, TBI Special agent Cathy Ferguson and another agent interviewed Toomes. He waived his rights to council and agreed to speak with agent, denying any involvement. He became irate and ended the interview.
Following indictment, Toomes requested to speak with Agent Ferguson through the Crockett County deputies while he was incarcerated in the Crockett County Jail and represented by counsel. Although, Toomes was represented by counsel, he waived his rights to have an attorney present and agreed to speak with Agent Ferguson and an accompanying agent in a recorded interview.
During this interview, Toomes stated that he, Christopher Toomes and Casey Wright planned to break into houses and they chose the McKnights’ home because it did not appear as though anyone was home. McKnight arrived while they were still in the home and Wright shot the victim with a firearm that Toomes had taken from the bedroom. A week later with legal counsel present, Agent Ferguson presented a photograph to Toomes where he identified the car in which he and the other two men allegedly drove to the home.
The trial ended with Toomes being convicted of felony murder and especially aggravated burglary. He was sentenced to life imprisonment plus thirty years as a persistent offender.
Prior to the trial, Toomes had been represented while awaiting trial by Assistant District Public Defender Jamie Berkley, James Webb of the Law Office of Newman and Webb and J. Colin Morris.
The appeal filed by Toomes and new legal counsel, Michael R Working and Janet H. Goode, argued that the Circuit Court of Crockett County erred in ordering him to proceed pre se (represent himself) at trial on the day before trial, the court erred in denying his motion to suppress his statement to law enforcement and the prosecutors made improper comment during voir dire (preliminary examination of the jurors) and closing arguments.
The Court of Criminal Appeals did not find reason for appeal in Toomes allegations that the court erred in denying his motion to suppress his statement to law enforcement and the prosecutors made improper comment during voir dire and closing arguments. However, the Court of Criminal Appeals did find reason to grant Toomes a new trial in the allegations that the Circuit Court of Crockett County erred in ordering him to proceed by representing himself at trial on the day before trial.
The Court of Criminal Appeals sited many sources saying, the sixth amendment of the United States Constitution and article I, section 9 of the Tennessee Constitution guarantee a criminal defendant a right to counsel. The right to counsel is a constitutional safeguard “deemed necessary to insure fundamental human rights of life and liberty. The right to assistance of counsel does not include the right to appointment of counsel of choice, or to special rapport, confidence, or even a meaningful relationship with appointed counsel. The essential aim of the Sixth Amendment is to guarantee an effective advocate, not counsel preferred by the defendant. However, the wrongful deprivation of the right to counsel is structural error contaminating the proceeding to such a degree that reversal is mandated.
They continued stating, generally, the waiver of the right of counsel must be knowingly, intelligently, and voluntarily made. The trial court, Crockett County Circuit Court in this case, must advise the defendant of the dangers and disadvantages of self-representation and must determine that the defendant knows what he is doing and his choice is made with eyes open. While recognizing that the right to counsel is not a license to abuse the dignity of the court or to frustrate orderly proceedings, the Tennessee Supreme Court has concluded that the right to counsel can be implicitly waived or forfeited if a defendant manipulates, abuses, or utilizes the right to delay or disrupt a trial.
A trial court’s finding following a hearing that a defendant forfeited his right to counsel at trial is a mixed question of law and fact. The Court of Criminal Appeals reviews mixed questions of law and fact de novo (starting over or anew) with a presumption that the trial court’s findings of fact are correct.
Prior to trial, Toomes was represented by Assistant Public Defender Jamie Berkley at the onset of his indictment. In February 2014, Toomes filed a motion on his own requesting the circuit court remove Berkley as his counsel alleging that she failed to provide him with various evidence, failed to allow him to undergo a mental health evaluation and a polygraph, failed to meet with him to speak to the media, failed to provide documentation evidencing the circuit courts rulings on various motions and failed to file numerous motions. He also filed a complaint against her with the Tennessee Board of Professional Responsibility (TBPR). His motion was denied and he continued to request reports and the suppression of his statements to law enforcement on his own accord. This followed with allegations that he was not advised of his rights and did not waive his rights to counsel prior to giving these statements. He clamed the statements were obtained after the start of formal criminal proceedings and after he requested counsel and that his statements were coerced. On April 21, 2014, Berkley filed a motion to withdraw counsel after Toomes became uncooperative with her and reported her to TBPR multiple times.
Toomes was granted new counsel and was then represented by the law firm of Newman and Webb and was advised of the appointment in open court on May 15, 2014 with the trial being set for August 11, 2015.Additional motions were filed by James Webb including a motion for funds to retain a fingerprint expert and a motion requesting that Toomes recorded statements be transcribe by a court reporter. While being represented by Webb, Toomes filed twent-four motions on October 28, 2014 without cousel. Nearly a month later, the prosecution and Webb determined that Toones had filed approximately 30 motions on his own. During the November 25, 2014 hearing, Webb stated that his ability to represent Toomes had been compromised by motions filed directly by Toomes. The courts did not fully deny Webb’s request to withdraw but on March 16, 2015 Webb and Newman further advised the court that Toomes refused to cooperate with them and the court allowed them to withdraw counsel as well.
Toomes was appointed J. Colin Morris to represent him on April 7, 2015. Morris argued Toomes previously filed motions on his behalf and reset the trial for February 2, 2016. In December 2015, Morris filed a motion to withdraw as counsel after receiving a threatening voicemail where law enforcement was called to his residence and continued to survey the area regularly.
A new hearing was called on January 11, 2016 for Morris’ request to withdraw. At the conclusion of the proof, Toomes stated that he did not wish to proceed with trial without counsel and that he had not had the opportunity to hire another attorney to represent him. Crockett County Circuit Court found that Toomes had not waived his right to counsel in the classic sense but that he had implicitly waived his right to counsel advising him that he would lose his right to counsel if his misconduct and delay tactics continued. It was also notated that the court had explained the risks of self-representation to him. After hearing testimony at a forfeiture hearing, that the threatening calls made to Attorney Morris came from another inmate in the same prison where Toomes was imprisoned, Crockett County Circuit Court ordered that Tommes represent himself at the trial that would begin the following day, forfeiting his right to counsel.
The Court of Criminal Appeals findings state that the Crockett County Circuit Court did not distinguish between the implicit waiver of the right to counsel and the forfeiture of the right to counsel and appeared to use the terms interchangeably. With the two being separate concepts. An implicit waiver is made when the defendant’s misconduct continues after the trial court warns the defendant that the misconduct will result in the loss of the right to counsel. Forfeiture of the right to counsel may result regardless of the defendant’s intent to relinquish the right and irrespective of the defendant’s knowledge of the right.
The appeals court found that the circuit court erred in finding that Toomes implicitly waived his right to counsel. They stated that the circuit court warned Toomes that his continued misbehavior would result in the loss of his right to counsel and advised him of the dangers and disadvantages of self-representation. The circuit court provided the warnings during the January 11, 2016 hearing and the February 1 hearing such that he waived his right to counsel. The proof presented during the February hearing focused on Toomes conduct prior to the January hearing when he received the warning from trial counsel and the circuit court did not identify any misbehavior by Toomes following the January hearing in concluding that he must proceed without counsel at trial. The circuit courts finding particularly focused upon the threats to Morris, all of which were made prior to the January hearing.
The court of appeals further concluded that the circuit court erred in denying Morris’s motion to withdraw, requiring Morris to represent Toomes during the forfeiture hearing. In allowing the State to call Morris to testify as a witness against Toomes athe hearing while he was also ostensibly representing Toomes. A conflict of interest includes any circumstances in which an attorney cannot exercise his or her independent professional judgement free of compromising interests and loyalties. Morris received a detailed message threatening his life if he continued representing Toomes. The caller stated that he had been watching Morris’s home, offered details about his life and threatened to either kill him or have him killed if he continued representing Toomes. Morris took the threats seriously, called the police and had officers watching his home. Although the trial court in January denied Morris’s motion to withdraw because an investigation had not yet revealed Toomes involvement in the treats, Morris believed Toomes was involved and it was clear that Morris was unable to exercise his independent professional judgment free of his compromising interests.
They continue to state that once the State sought forfeiture of Toomes right to counsel based in part on the threats, an evidentiary hearing was required during which Morris was a necessary witness. Rule 3.7 of the Tennessee Rules of Professional conduct prohibits an attorney from acting as an advocate at a trial in which the attorney is likeyly to be a necessary witness unless the testimony relates to an uncontested issue, the testimony relates to the nature and value of legal services rendered in the case or disqualification of the lawyer would work substantial hardship on the client. None of the exceptions to the general rule prohibiting an attorney from acting as both an advocate and a necessary witness apply in this case. Accordingly, Morris had a conflict of interest that prohibited his continued representation of Toomes and the circuit court erred in denying Morris’s motion to withdraw.
Toomes was represented at the forfeiture hearing by counsel who had a clear conflict of interest. The State served a copy of its memorandum filed in the circuit court only on Morris and did not serve a copy on Toomes. The record reflects that as a result, Toomes was unaware of the purpose of the hearing and was operating up to the day before trial under the belief that Morris would be representing him at trial.
During the forfeiture hearing, Morris did not question either of Toomes prior attorneys in an effort to challenge the allegations that Toomes engaged in extremely serious misconduct. Although Morris was still representing Toomes, the circuit court allowed the State to call Morris as a witness in order to offer testimony that was adverse to Toomes interests. The circuit court gave Toomes the opportunity to cross-examine Morris. By doing so, the circuit court treated Toomes as proceeding as representing himself without first finding that Toomes forfeited his right to counsel. Once Morris’s testimony was completed, the circuit court resumed treatment of Morris as representing Toomes, while also allowing Toomes to question witnesses and offer argument. The circuit court placed Morris in the position of deciding whether to challenge and cross-examine the officers who were tasked with investigating the threats made on his own life.
The appeals court continued their finding saying, the evidentiary hearing was not conducted promptly as required by Homes, 302 S.W.3d AT 848. The record indicates that Morris informed the circuit court of the threats prior to filing a motion to withdraw in December 2015. However the circuit court waited several months, until the day before trial, to hold an evidentiary hearing to determine, in light of the threats, whether Toomes forfeited his right to counsel. The record includes no reasonable explanation for the delay. The circuit court did not consider the fact that the hearing occurred the day before trial or the significant disadvantage placed upon Toomes in forcing him to proceed at trial with less than one day’s notice when the circuit court scheduled the hearing or ruled that Toomes forfeited his right to counsel. Toomes was not given the opportunity to subpoena witnesses in order to present a defense and did not learn that his counsel failed to issue any subpoenas until the morning of the trial. When Toomes informed the circuit court that he intended to present an alibi defense, the State complained that no notice of an alibi defense had been filed. Toomes cannot be faulted for the failure to provide such notice when he only began representing himself on the prior day.
During voir dire, the preliminary examination of jurors, Toomes informed the prospective jurors that “they” had fired his counsel on the day before trial. When the State requested a curative instruction, the circuit court did not instruct the prospective jurors that such statements were not evidence and shot be disregarded, which is a standard instruction given whenever a prosecutor makes an improper statement to a jury. Rather, the trial court improperly instructed the prospective jurors that contrary to Toones claim, his counsel was not fired yesterday but was allowed to withdraw from representation due to what he believed and the Court believed was Toomes’s refusal to cooperate with him in preparing a defense in the case. Judges are prohibited from commenting on the credibility of witnesses or on the evidence in the case. The judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. Accordingly, trial judges must be very careful not to give the jury an impression as to his or her feelings or to make any statement which might reflect upon the weight or credibility of evidence or which might sway the jury. It is natural that jurors should be anxious to know the mid of the court and follow it. Therefore, a court cannot be too cautious in in his inquiries. Through its instruction, not only did the circuit court inform the prospective jurors that Toomes lied to them, but that Toomes was so uncooperative that he was required to represent himself at trial. The circuit court provided the jury with its personal impression of Toomes and essentially allowed the jury to consider inadmissible character evidence in determining Toomes guilt.
Given the calamity of errors that permeated the proceedings, we conclude that the trial court erred in the procedure it employed to find that Toomes forfeited his right to counsel and in requiring him to prceed representation of himself at trial. We not that this court has reversed and remanded for a new trial when the trial court failed to follow the proper procedure to establish forfeiture of the right to counsel. Because the proper procedure was not followed to establish a forfeiture of the right to counsel, we reverse the judgements of the trial court and remand for a new trial. Appellate counsel shall continue to represent Toomes in the circuit court. If Toomes engages in improper behavior in an effort to further delay the proceedings, the trial court shall promptly hold a hearing in accordance with Holmes to determine whether Toomes implicitly waived or forfeited his right to counsel. Even though we have reversed the judgments, we consider Toomes remaining claims in the event of further appellate review.
Toomes is set to be arraigned via videoconference in Crockett County Circuit Court on Friday, January 29.
