### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE January 4, 2001 S ession
JEHIEL FIELDS v. STATE OF TENNESSEE
Appeal by Perm

ission from the Cour

t of Criminal Appeal

s Criminal Court for Bradley County No. 98-069 Hon. R. Steven Bebb, Judge

No. E1999-00915-SC-R11-PC - Filed February 20, 2001

The sole issue in this appeal is whether our decision in State v. Burns , 6 S.W.3d 453 (Tenn. 1999), changed the standard by

which appellate

courts revie

w de nials of post-conviction relief based on allegations of ineffective

assistance of co

unsel. The Court of Crimina l Appeals in this ca

se affirmed the denial of the appellant’s post-conviction petition, although it expressed concern that this Court inadvertently

changed the standard of appellate review in Burns to require a de novo review of a trial court’s factual finding

s regarding c

laims of ineffectiveassistance of counsel. While we reaffirm that such claims are mixed questions of law and fact subject to de novo review, w e emphasi ze that Burns didnot change the s

tandard of revie

w in this context. Consis tent with the Ru

les of A ppellate Procedure, our language in Burns meant only that a trial court’s findings of fact be reviewed de novo , witha presumption that those fi nding s are correct u nless the prepond

erance of the e

vidence is otherwise. A trial court’s conclusions of law are also reviewed under a de novo standard, a lthough the trial court’s leg

al conclusions ar

e accorded no de

ference or pre

sumption of corre

ctness on appeal

. Because the Court of Crimina

l Appeals corre

ctly applied the appropriate standard of review in this case, the judgment of that court is affirmed, and the appellant’s petition for po st-convict ion relief is dismissed.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Criminal Appeals Affirmed; Petition for Post-Conviction Relief Dismissed

W ILLI AM M. B ARKER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOTA , III, A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.
James F. Loga

n, Jr., Cleveland, Te

nnessee, for the

appellant, Jehiel F

ields.

Paul G. Summers, Attorne y General and Reporter; Mic

hael E. Moore, Soli

citor General; E

lizabeth B. Marney, Assistant Attorney Gener al, Nashville, Tennessee, for the appellee, State of Tennessee.1 As Wa re’s testimony d uring the app ellant’s prelimina ry examinatio n demon strates, the State o riginally

considered charging Ware as an accessory t o Ms. Rouser’s murder. Ware lat er testified, howev er, that he plea ded guilty to two counts of possession of crack cocaine with the intent to sell and that he rece ived two six-

year sentence s, which were suspendedafter six months. The inference drawn by appellant’s counsel was t hat Ware agreed to a lesser charge in exchange for his testimony a gainst the defen dant.
-2- OPINION

BACKGROUND

The facts original

ly giving riseto this case occurred on October 22, 1994, when the app ellant, Mr. Jehiel Fields, shot and killed Ms. Odessa Rouser. Earlier that afternoon, Ms. Rouser approached the appellant and off

ered to trade a marijuana cigarette and ten dollars for a rock of crack cocaine. The appellant agreed, but upon later d iscovering that the cigarette had been laced with PCP, he became angry and confronted Ms. Rouser at her house. During this confrontat ion, t he appellant apparently

assaulted Ms. Rouser , and in resp onse, she s tabbed him with a knit ting needle . Although the appellant left Ms.

Rouser’s house af

ter his stabbing, heattended a party later that evenin

g at a nearby house in the same neighborhood. Sometime during this party, the appellant returned to Ms. Rouser’s house, kicked open her front door, and shot her three times with a Raven .25 caliber semiautomatic pistol.
During his trial in September of the following year, the State p resented testimon y from Trav

is Ware, an acquaintance of the defendant, who testified that he accompanied the appellant from the party to Ms. Rouser’s house and saw the appellant

kick open her door. Ware also testified that he heard three gunshots and saw Ms. Rouser’s husband attempting to pull the appellant back

inside the ho use as the a ppellant tried to leave through a window. Apart from also introducing physic al evidence that the appellant had been in Ms. Rouser’s house, the State introduced the testimony of
a neighbor who ide

ntified the defe

ndant as the perso

n she saw running from Ms . Rouser’s house after she heard

several shots fired. The State also called a police officer who testified that he saw the defendant earlier that evening wearing a hat similar to one found lying

near Ms. Rou ser ’s b ody.

The appellant

defended on the b

asis that he was no

t the person respo

nsible for Ms. Rouser’s death, but that Travis Ware was the actual perpetrator of the crime. The appellant’s counsel argued that Ware’s testimony identifying the appellant as the perpetrator was not credible given his previous criminal convictio ns, his in consisten t statemen ts to the po lice, and hi s acceptance of a lesser ch arge in a plea with the State. 1 The appellant also argued that Ware was the responsible party because he
was able to lead the po

lice to other evid

ence, including

the murder weap

on, that was later

used to convict the appellant.Despite possessing some evidence that the appellant was angry and not acting rationally that evening, the appellant’s counsel did not pursue any other defenses, such as one based upon diminished capacity.

On September 6, 1995,

the jury fou

nd the appella

nt gui lty of first degree murder and especially aggravated

burglary , and the court se

ntenced the appe

llant t o serve an effective life sentence in the Department of Correction. On appeal, the Court of Criminal Appeals affirmed the2 Counsel also stated that a de fense based on a theory o f self defense was, in his opinio n, a poor stra tegy. Counsel was of this belief because the evidence indicated that the appellant was the aggressor at the ti me of the shooting, and bec ause the app ellant’s stabbing “took plac e the previo us time when [th e appellan t] was in the hom e.”
-3- appellee’s conviction and sentence for first degree murder, although the court reduced the conviction for especially aggravated burg lary to aggravated burgla

ry. The appellant did

not file an application with this Court requesting permission to appeal.
On March 6, 1998, the appellant filed a pro se petition for post-co nviction r elief, alle ging, among other things, that trial counsel rendered ineffective assistance by not presenting the defenses of diminished capacity or self defense. According to the appe llant, the State’s case

as to the identity of the perpetrator was very strong, and as such, c ounsel should have pursued other defenses. The trial court appointed counsel for the appellant and held a hearing on the petition on March 25, 1999, at which the appellant and his original trial counsel testified.

Trial counsel testified that he had discussed the possi

bility of a dim

inished capacity

defense withthe appellant

before his trial, but

he decided against pursuing this defense because he had no physical evidence of drug intoxication, and, most importantl y, because

the defense was inconsistent with the appellant’s repeated assertions that he didnot commit the crime. According to counsel’s tes tim ony,

Mr. Fields said that

he didn’ t shoot this woman, and so I approached it from the standpointthat Mr. Fields d idn’t sh oot this woman, that there were a lot of other people with [the] opportunity to have done this, that there were a lot of other people in the area, there was other proof that could at least cast suspicion on Travis Ware, if n ot maybe one other person. . . . [S]o there was at least the ability to p oint th e finger at one or two other

people, and that’s the way we approached it. . . . [H]e said, “I didn’t do this, Ididn’t do this shooting.” We approached it from the standpoint of he didn’t d o this, he d idn’t do th e shooting.

While counsel further

stated that “Mr. F

ie lds has neve r to this date said th at he did this shooting,” he admitted on re-direct examination, “I mean my impression was that he just didn’t do it, and I’m not exa

ctly sure wh

at he said at different time

s, but . . . that’s ce

rtainly poss

ible[that he said he didn’t know what happened], that’s certainly possible.” 2 During his owndirect examination, the appellant denied

ever having tol

d his attorney anything other tha n he simply did not know what happened the night of the murder. Moreover, hespecifically denied telling hi

s attorney t

hat he did notcommit

t he crime or t hat his att orney discuss ed with him the possib ility of prese nting a diminished capacity defense.

After hearing the ev

idence, the tria

l court ruled fro

m the bench deny

ing relief to the

appellant. The court stated that “what we have here in my opinion is like Monday morning quarter backing of
a trial strategy. I feel like base d on the circumstances and having heard th

e trial that [trial c

ounsel] made decisions, after consulting with his client, that all went to trial strategy.” The appe l lan t-4-

appealed to the Court of Crimin

al Appeals,which affirmed the trial court’s denial of post-conviction relief. After review ing t he t estimony and the record, the intermediate court expressed its concern that our decision in State v. Burns , 6 S.W.3d 453 (Tenn. 1999), inadvertently changed the standard for reviewing de nials of in effective as sistance o f counsel cl aims by requiri ng a de novo review of th e tri al court’s factual findings. Nevertheless, the court concluded that any such change in the standardof review did not a ffect its analy

sis, as “both

standards y

ield the same resu

lt in this case.” The intermediate

court then affir

med the dismissal of

the appellant’s p

etition by sta

ting that
[t]he petitioner presented some evidence at the eviden tiary hea ring that might arguably support his contention of

intoxication at the time of the off ense, specifica

lly M r. Ware’s preliminary hearing testimony and the trial attorney’s testimon y regarding people he interviewed who had seen the pet itioner on the night of the offense. However, Mr. War e was not present

to explainin greater det ail his preliminary

hear ing t est imo ny, nor did the petitioner present any of the witnesses hi

s trial attorney interviewed

to explain in what man

ner and to what degree the petitioner
was acting angry or irrational. In the a bsence of more compelling evidence, the petiti onerhas simply fa

iled to prove by

clear and convi

ncing evidence

that his attorney’sfailure to pursue intoxication or diminished capacity as defenses resulted in prejudice.

The appellant then requested permission to appe

al to this Court,

which we grant

ed on the sole issue of determining the proper standard of appe

llate review, af

ter our decision i

n State v. Burns , for denials of post-conviction claims alleging ineffective assistance of counsel . For the reasons given herein, we hold that the standard of appellate review traditionally applied to these post-conviction appea ls was not changed by our decision in Burns , al tho ugh w e ta ke t his opp ort uni ty to furthe r clarify the reasoning of that decision. We also affirm the judgment of th

e Court of Criminal Appeals, which, despite its concern as to the proper scope of its review, correctly app lied the appropriate standard in this case.

STANDARD OF AP

PELLATE REVIEW Recently in State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999), this Court stated that “[w]e have determinedthat the issues of deficie nt performance

by counsel a

nd possible prejudi

ce to the defense
are mixed questions of law and fact, as is the propriety of charging lesser-included offenses; thus,
our review of this ca

se is de novo.” This statement has been the source of some concern among several panels of the Court of Cri minal Appeal s, and in its opinion in this case, the inte

rmediate court reiterated its belief that we may have changed the standard of r eview traditionally

applicable to post-conviction claims involving allegations of ineffective assistance of

counsel. Although we disagree, respectfully, that any substantive chang

e in the standard o

f appellate

review in this regard
can or sh ould be properly inferred by our statements in Burns , we acknowl edge that our language in this regard could be clarified.3 See also Tenn. Code Ann. § 40-30-216 (1998) ; Tenn. R. App. P. 1 advisory commission comments (stating that the Rules ap ply “in all proceeding s, whet her denomin

ated as appeals or

otherwise, in both civil and criminal cases”).

4 Admittedly, Rule 13(d) speaks only of the review of fac tual findings in civil cases, and a s we have p reviously recogni zed, po st-conviction p roceedin gs can be d eemed to be “criminal” proceed ings for some purpose s and “civil” proceedings for others.For example, in State v. Scal es , 767 S.W.2d 157, 158 (Tenn.1989), we hel d that pos

t-convi ction proceedings were “criminal” in nature when the issue involved Rule of Appellate Procedure 4. However, in Watkins

v. State , 903 S.W.2d 302, 305 (Tenn. 1995), we held that “[f]or the procedural purposes relevant to [tolling the statute of limit ations under t

he 1986 act], a post-conviction pet ition shoul

d be considered civi

l in natur e.” The question in t

his case, h

owever, is not

as fundamental as

whether po st-conviction p roceedin gs are essentially civil or criminal in nature. Rather, the question of re view is really one of practicality. When an appellate court r eviews factual findings in a po st-conviction p roceedin g, i t is not r eviewi ng a determ ination of guilt as c ontempla ted by Rule 13(e). Rather, a trial court’ s factual findings in the post-conviction context are more closely analogous to those findings made by judges in o ther civil dispute s. As such, Ru le 13(d) se ems to be th e most app ropriate provision wit hin the Rules of Appe llate Proce dure for rev iewing the trial co urt’s factual findings in the post-con viction conte xt.
-5- The standard of appe

llate review app

lied to ineffecti

ve assistance cl

aim s has a lways been that
a trial court’s findin gs of fact are entitled to substantial deference on appeal unless the evidence preponderates against those findings. See Henl ey v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996). Under this standard, appellate courts do not reweigh or re-evaluate the evidence or substitute their own inferences for those dr aw n by the trial court. Henley , 960 S.W.2d at 579. Furtherm ore, quest ions concerning the credibility of the witnesses, the weight and value to be given their testimony, a n d the factual issues raised by the evidence are to be resolved by the trial judge. Id.
Although the decisions of th e appellate cour

ts in this s tat e have y

et to expre

ssly re cognize the fact, this standard for reviewing the factual findings of

a trial court has always been in accordance with the requirem

ents of the Tennessee

Rules of Appellate

Procedure. While previous cases have notaddressed the standard of review in post-co

nviction cases spe

cifically i n terms of the Rules,

it is clear that (1) the Rules of Appellate Procedure govern appea

ls inpost-conviction cases, see Tenn. R. Sup. Ct. 28, § 10(A) (“An appeal fr om the dismissal or de

nial of a post-con

viction petition sha

ll be in accordance

with the Tennessee Rules of Appellate Procedure.”) 3 ; and (2) that appellate court

s are not at liberty

to apply stan

dards that are in

consistent with thos

e found in the Rules

of Appellate Procedure. See Tenn. Code Ann. §§ 1 6-3-402, -406; see also Tenn. R. App. P. 1 ad viso ry commission comments (“B y the terms of the sta tute, after the r

ules have taken e

ffect, all laws in conflict therewith are of no further force and effect.”).

C onsistentwith our statement in Burns , Rule of Appellate Procedure 13(d) requires a de novo review of a trial court’ s factual finding s. In conducti

ng this de n ovo review , however, appe llate courts are to accord th

ose factual find

ings a presumptio

n of correctnes s , which is o vercome only when the prepo nderance of the evidence is contr

ary to the tr

ial court’s findin

gs of fact. 4 Th i s standardis identica l to that previously recognized in Henley and in other cases, which required deference to the trial court’s findings of fact “unless the evidence in the record prepond

erates agains

t those findings.” Henley , 960 S.W.2d at 578. When we stated in Burns that the standard of review in cases involving claims of ineffective assistance of counsel were to be reviewed under a de novo5 This is not t o say, however,

that an appellate court could nev er review the fa cts in the recor d under a purely de novo review without according any deferen ce to the trial co urt. As we stated in Ganzev oort v. Russ ell , 949 S.W.2d 293, 296 (Tenn. 1997), “[w]hen t he trial j udge has fail

ed to make specifi

c findings

of fact , this Court will review the record [on its own] to determine th e prepo nderance of the eviden ce. See also Realty Shop, I nc. v.RR W estminste

r Holding, Inc. , 7 S.W.3d 581, 596(Tenn. Ct.App. 1999) (“[I] f the t rial j udge has not

made a speci

fic f inding of fact on

a particular matter, we revi ew the record to determine where the preponderance of the evidence lies without employing a presumption of correctness.”). Outside of this context, tho ugh, appe llate courts ma y review a trial co urt’s factual findings a ccording to a purely de novo stan dard on ly in very limited circ umstances. See Binette , 33 S.W .3d at 217 (reviewing find ings of fa ct at a suppressi

on hearing und er a purely de novo standard when th e only evidence

considered by the trial cour t was that

of

a videotap e); Landers v.Fireman’ s Fund Ins . Co. , 775 S.W

. 2d 355, 356 (T enn. 198 9) (reviewin g findings of fact in workers’ compensation cases under a purely de novo review when “[ a]ll of t he medical proof was t aken by deposition

or was documentary, so that all impressi ons of weight and cred ibility must be dra wn from th

e content

s there of, and not from the appearanceof witnesses on oral testimony at trial”). Because none of these special circum stances are typ ically present in a claim of ineffective assistance of co unsel, this Cou rt could rare ly, if ever, condu ct a purely de novo review of a trial court’s fac tual findings in this co ntext.
-6- standard, we meant

only that re

view was de novo according to the standards set forth in the Rules of A ppe lla te P roce dur e. C lea rly, this Court could not have disregarded the Rules so as to conduct review under a different and inconsistent standard. See Tenn. R. Sup. Ct. 1 (“The Tennessee Rules of Appellate Procedure, which became effective on July 1, 1979, shall govern all matters on appeal be fore this Court. All rules of this Court in conflict with or modified by the Tennessee Rules of A ppellate Procedure are hereby superseded and modifie d by the Tennessee Rules of Appellat e Procedure.”).
Although our

discussion in Burns of the standard of review could have been perhaps more elucidative, this Court certainly intended no departure from the standard as fo llowed in all of our previously

issued decisions. Wh

ile we did not sp

eci fic all y state in Burns that the trial court’s findings of fact

are entitled to a presumption of correctness, we did not expressly omit the presumption as would have been expected or as we h av e done in other cases. See, e.g. , State v. Binette , 33 S.W.3d 215, 217 (Tenn. 2000) (“Accordingly, we hold that when a t rial court’ s findings of fact at a suppression hearing are based on evidence that does not involve issues of credibility, a reviewing court must examine the record de novo without a presumption of correctness.”). 5 As such,
our language in Burns should not be read as eliminating the presumption of correctness accorded a trial court’s factual findings as required by the Rules of Appellate Proc edure.

In reviewing the a

pplication of law t

o those factual findings to determine whether counsel’s performance

was deficient or whether the def endantwas prejudiced b

y that defic

iency, app

ellate courts should conduct a pure ly de n ovo review, according the trial court’s conclusions of law no deference or presumption of c

orrectn ess. This standard has been universally applied to issues involving only questions of law, see State v. Englan d , 1 9 S.W.3d 762, 766 (Tenn. 2000) (“The application of the law to the facts found by the trial court, however, is a question of law which this Court reviews de n

ovo.”); Statev. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997); Hawks v. City of W estmor eland , 960 S.W.2d 10, 15 (Tenn. 1997) (“We review questions of law de novo with no6 For example, the i ntermediate cour

t correctly

stated earl

ier in it s opinion that

the burden of provi

ng prejudice from counsel’s def

iciency was

only “a reas onable probabilit y that t he result of

the trial was unreliab le or the proceedings fundamen tally unfair.” From our ow n review of

the record, we find that the trial cour

t’s impli cit fin dings of fact

—that the appellant consistent ly denied committ

ing the murder an

d that tri al counsel discussed a dim inished capacity defense with the appellant

—are supported by the weight of the evidence . Based on these facts, we conclude that counsel’s performance in choosing t he identit

y defense was n

ot deficient

as a ma tter of

law, an d we agree wi

th the Cou

rt of Criminal A ppeals that the appellant failed to show a rea sonable probab ility that an alternative d efense wou ld have led to a different res ult at trial.
-7- presump tion of correctness.”), and no change from this familiar standard was intended by our language in Burns

. Acco rdi ngly, to clarify our language in State v. Burns , we reaffirm our statement that a trial court’s conclusion as to whether a petitioner has been denied the effective assistance of co

unsel is an issue that pres

ents a mixed question of law andfact on appeal. We also reaffirm that this issue is one that is reviewe d undera de novo standard of revi ew, consistent wit

h the standards se

t forth in the Rules of Appell

ateProcedure. As su

ch, a trial court

’s findings of fact

underlying a claim of ineffectiveassistance of counsel are reviewed on appeal under a de novo standard, accompanied wit h
a presumpti on that tho se findings are correct unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Henley v. Sta te , 960 S.W.2d 572, 578 (Tenn.1997). However, a trial court’s conclusions of law —such as whether counsel’s performance was deficient or whether that deficiency

was prejudicial—

are reviewed u

nder a purely de novo standard, with no presumption of correctness

give n to the tri al c our t’s con clu sio ns. Fin all y, we emphasize that our decision in Burns , withits implicit relianc

e on th e Rules of Appellate Procedure, signaled no departure from the trad itional standar ds of review gov erning post-co

nviction claims of i

neffective ass

istance of counse

l.

In reviewing the opinion of the Court of Cri minal Appeals, we find that theintermediate court applied the corr

ect standard of r

eview in this

c ase. The interme

diate court gav

e appropriate deferenc e to the factual findings of the trial court, and it made its own determinations as to the application of the law to those facts. The appellant does correct ly note, however, that the intermediate

court improperly stated that the “petitioner must show both deficiency and prejudice by clear and convi

ncing evidence

,” instead of more

accurately

statin g that the petitioner has “the burden of proving the allegations of fact by clear a

nd convinc ing evidence.” See Tenn. Code Ann. § 40-30-210(f). Nevertheless, this error by the Court of Criminal Appeals appear

s to be only
one of imprecision in the use of its language, as it is clear from its opinion that the court applied the correct lega

l standard and pro

perly conc

luded that the appe

llant’s claim was w

ithout merit. 6

Acco rdi ngly, we affirm the jud gment of the Cour

t of Criminal A

ppeals a nd dismiss the appellant’s petition for post-convict ion relief. Costs

of this appeal sha

ll be assessed to th

e appellant, Jehiel Fields, for which execution shall issue if necessary.-8- ____________________________________ WILLI AM M. BARKER, JUSTI CE