Crossville Chronicle, Crossville, TN

March 29, 2013

Pocket DNA conviction under appeal

Bruff opts to defend self in series of hearings

By Michael R. Moser
Editor

CROSSVILLE — For a case that has bounced around the court system since 2008, the end of testimony and arguments came to a less than dramatic halt. Demanding his right to represent himself, Howard G. Bruff, convicted of the March 2004 murder of Kevin Hixson, simply said last Friday, "I can't even think anymore ... your honor, I'm done."

The life of the appeal included months of delays, two long days of testimony and a heated and lively exchange between Bruff and his lawyer during the trial, Tom Beesley, who said from the witness stand, "One reason you are where you are is because you think you know more than anyone else." Beesley added that he believed Bruff has a "narcisstic personality."

Bruff became the first person in Tennessee convicted on DNA evidence taken from inside the pocket of a victim. A Cumberland County jury convicted him of first-degree murder, felony murder and especially aggravated robbery after deliberating three hours.

The jury also assessed a $50,000 fine for the robbery conviction, and trial judge Lillie Ann Sells merged the two murder convictions into one, handing down a life sentence. In Tennessee, with good time figured in, that equates to about 51 years in prison.

Bruff was convicted of shooting Kevin Shawn Hixson, 32, Lancer Dr., Lake Tansi, once in the back off the head as the victim leaned over a television while working on a satellite system, and then once again in the head "execution style," evidence during trial showed.

Investigators believed robbery was the motive, and asked the TBI forensics lab in Nashville to test the victim's jean pockets for DNA. The DNA found inside the pocket could only be matched to Bruff, the forensic scientist testified at trial.

Also introduced during the trial was testimony that Bruff had told his mother that Hixson had been shot in the back of the head before investigators released that information to the news media.

The defendant insisted on representing himself, against the repeated advice of Judge Leon Burns, and at first rejected any assistance from an attorney, opting to put his one chance at getting his conviction based on ineffective counsel thrown out.

He complained that court appointed attorney Kevin Bryant would not ask all the questions he wanted asked, so he invoked his constitutional right to represent himself, contrary to President Abraham Lincoln's famous quote about acting as one's own attorney.

Bruff, with assistance of an inmate in the Tennessee prison system, filed a voluminous petition for a new trial based on a claim that his trial lawyer was ineffective, blaming Beesley for his conviction.

The filing listed 18 original arguments backing that claim — some repetitive — and additional briefs added other claims. The first motion for new trial was filed in May of 2008. It was not until last year that court appearances to hear arguments on the motions began.

Filings and state responses followed, setting the stage for testimony and oral arguments in court which began on July 27. It was at that time that Bruff announced he no longer wanted Bryant to represent him.

"You only get one bite of the apple," Judge Leon Burns told Bruff, while advising him to reconsider his decision to act as his own attorney.

Bruff rejected the judge's advice, stating the questions he wanted asked "are important to my case ... this is my only shot at proving what I have to prove in my case."

Bryant had advised Bruff some of the 19 witnesses he had called, and questions he wanted asked, had no value on proving whether Beesley had been ineffective.

Bruff's biggest complaint was that Beesley never acted as an investigator and questioned potential witnesses, that he did not pursue alternate theories on who could have committed the murder, and that he did not properly challenge the DNA evidence used against him.

Beesley countered that the state provided him a private investigator who did interview witnesses and potential witnesses, and that it was not his job to do the investigator's work.

Several witnesses were called on July 27, but Bruff's intent seemed focused more on a claim that one man had boasted he had killed Hixson, and that another man had a motive and had threatened Hixson shortly before his death.

James Phillips was called by Bruff as a witness, but denied he had ever said he had killed Hixson. "I never killed nobody," Phillips testified. "That kid was one of my friends."

The other, Mike Stone, testified that he did call Hixson shortly before Hixson's death and told him he had learned Hixson had sold drugs to his then girlfriend, and that if he thought he was going to get paid, "he was out of luck." Stone said he did use profanity during the phone call because he was angry over the discovery, but that he had never threatened him.

Stone testified last Friday that he learned of Hixson's death while reading the Chronicle on a Sunday morning. He said he called Sheriff Butch Burgess to report making the phone call, and was referred to TBI Special Agent Tommy Calahan to whom he gave a statement.

Bruff chastised Beesley for not pursuing the two men as possible suspects in the case, but Beesley countered that Phillips has always denied making the statement and that the only witness saying he made the statement, was a person with a substantial criminal record.

As for not calling Stone as a witness during the trial, Beesley testified that he had read the TBI interview and saw no reason to pursue that angle. There was no advantage to Bruff's defense of pursuing that theory, Beesley testified.

Bruff attacked the state forensic scientist for only using one cotton swab to seek DNA trace evidence from all four pockets. The scientist should have used four swabs — one for each pocket, Bruff argued.

On this issue, Burns questioned out loud whether it really mattered what pocket the DNA came from. The issue was, Bruff's DNA was found in a pocket of a dead man's jeans, proving he was there.

While the state's theory was that Bruff's DNA was left behind when he reached into Hixson's pocket to steal money after the slaying, Bruff claimed he reached into Hixson's pocket on another occasion to retrieve an item because Hixson could not.

Another issue raised by Bruff was his complaint that Deputy District Attorney General Gary McKenzie made "voluminous misstatements of facts" during closing arguments, without Beesley objecting.

Last Friday McKenzie told Burns there existed "no evidence of any irregularities" and that it didn't really matter how many swabs were used to take DNA samples. What mattered was that Bruff's DNA was the only DNA found.

"He got a great defense and the Court of Appeals stated as much," McKenzie argued.

When it came time for Bruff to close, he took a few minutes to enter court records and other documents into the record, or make them part of his case for a new trial, but then abruptly ended the day.

Burns announced he would take the case under advisement and at some point issue a written, and/or oral, ruling on the motions. He said he was undecided as to whether he would do so in open court, or in a filing.

The case is expected to be appealed to the Tennessee Court of Criminal Appeals for review.