IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2013

TOMMIE L. HILL, JR. v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-12-47 Roy B. Morgan, Jr., Judge

No. W2012-01472-CCA-R3-PC - Filed April 17, 2013

The petitioner, Tommie L. Hill, Jr., appeals the denial of his petition for post-conviction

relief, arguing that he was denied the effective assistance of counsel at trial. Following our

review, we affirm the judgment of the post-conviction court denying the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS

and CAMILLE R. MCMULLEN, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Tommie L. Hill, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

From what we have gleaned from the sparse record on appeal, the petitioner was

indicted by the Madison County Grand Jury for reckless endangerment, evading arrest, and

two counts of aggravated assault based on his having fled in a vehicle from the police,

reaching speeds of 85 to 100 miles per hour on a Jackson city street, and having then driven

his vehicle toward two police officers, one of whom apparently shot the petitioner to avoid

being struck by the vehicle. A hospital security camera apparently captured the petitioner’s

high-speed flight down a city street, but not the actions that formed the basis for the

aggravated assault counts of the indictment. The petitioner subsequently pled guilty to the

evading arrest and reckless endangerment counts and was tried and convicted by a jury of the
aggravated assault counts. He was represented by counsel at his arraignment but elected to

proceed pro se at trial, with the trial court assigning his original trial counsel to act as his

elbow counsel at trial and sentencing. He filed his direct appeal of the convictions pro se,

and on May 25, 2011, this court entered an order dismissing the appeal based on the

petitioner’s failure to file an appellate brief in the case.

On February 23, 2012, the petitioner filed a pro se petition for post-conviction relief

in which he raised a number of claims, including ineffective assistance of counsel. Postconviction counsel was appointed, and an evidentiary hearing was held on July 9, 2012. At

the beginning of the hearing, post-conviction counsel informed the court that he had issued

subpoenas for videotape surveillance footage from an Exxon station and a Walgreens store

that were in the vicinity of where the alleged assaults took place. He said he had received

a response from the manager of the Walgreens stating that he did not have any of the

surveillance videotape from the old building, which had been razed since the date of the

petitioner’s offenses. As for the Exxon surveillance tape, post-conviction counselstated that

he had had two subpoenas issued and served on the station, but no one had ever responded.

He said he had informed the petitioner of the situation and offered to petition the court to

continue the hearing and to issue a show cause order for the petitioner to obtain the tape, but

the petitioner had instead asked that they proceed without it. Upon questioning by the postconviction court, the petitioner affirmed that it was his wish to proceed with the evidentiary

hearing rather than have the case continued and that he understood he was waiving any claim

regarding the lack of the surveillance tape by his decision.

The petitioner testified that trial counsel represented him throughout the course of his

reckless endangerment and evading arrest cases, in which he entered guilty pleas because he

was guilty of the offenses. He said he became unhappy with her representation in the

aggravated assault cases because he was not guilty of those offenses, but counsel kept trying

to get him to “cop a plea” rather than investigating the facts as he asked her to do. The

petitioner explained that counsel made no response and did nothing when he asked her to try

to obtain any available surveillance tape of the alleged assault scene. The petitioner testified

that since he had made that request of counsel, he had learned that she could have gotten

surveillance footage from the Walgreens store and the Exxon station, as well as possibly

from the police cars involved in the incident. The petitioner acknowledged that he had not

seen any surveillance footage of the scene. He insisted, however, that the surveillance tapes

from those businesses and/or the police vehicles would have shown what really happened

that day, which was that he did not try to escape until after the police officer shot him and

that the officer was standing to the side of his vehicle, instead of in front, when he drove off.

The petitioner also complained that counsel made no attempt to obtain the ballistics

report of the incident, which, according to the petitioner, would have shown that the police

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officer fired his gun at the petitioner while the officer was standing to the side of the

petitioner’s vehicle.

The petitioner testified that he proceeded pro se after the court allowed his counsel

to withdraw from representation. The post-conviction court, which had also presided over

the trial, then clarified for the record that the petitioner had requested that he be allowed to

proceed pro se and that the court had allowed him to do so after having a discussion with him

about how much assistance he might need at trial. The petitioner acknowledged that trial

counsel was assigned as elbow counsel to assist him in obtaining discovery materials and to

advise him on courtroom procedure. He complained that counsel, in addition to not helping

him obtain the essential evidence already mentioned, failed to advise him to object to the

State’s introduction of the hospital surveillance videotape and the two guns that the police

discovered in his possession after his arrest. The petitioner stated that neither the hospital

surveillance tape, which showed a location different from the scene of the alleged assault,

nor the fact that he had a gun in his pocket and another gun in his glove compartment was

relevant to his aggravated assault charges and that their introduction prejudiced the jury

against him.

The petitioner further complained that he was prejudiced by the fact that counsel made

it clear to the jury that there was animosity between them by sitting at the far end of the table

in the courtroom instead of beside him. He also claimed that he was prejudiced by the

prosecutor’s misstatement of the evidence in his closing argument to the jury. Finally, he

testified that he was ineffective in his own representation because he did not really know or

understand the law. As an example, he said that he made the mistake in closing argument

of saying that any black man who tried to run over the police would be shot. In hindsight,

he feared that that statement had made the jury believe he was a racist.

The post-conviction court denied the petition at the conclusion of the hearing, issuing

oral findings of fact and conclusions of law, which it followed by a written order entered on

July 10, 2012. Among other things, the court found that the advice given by counsel was

“well within requirements of the law for elbow counsel”; that whether any videotape from

the businesses ever existed, or, if so, whether it captured the aggravated assault scene, was

purely speculative; and that the petitioner waived any objection to the State’s introduction

of evidence or the prosecutor’s closing argument by not making a contemporaneous objection

at trial or raising the issues in a motion for new trial or on appeal.

This appeal followed.

ANALYSIS

The post-conviction petitioner bearsthe burden of proving factual allegations by clear

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and convincing evidence. Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing

is held in the post-conviction setting, the findings of fact made by the court are conclusive

on appeal unless the evidence preponderates against them. See Wiley v. State, 183 S.W.3d

317, 325 (Tenn. 2006). When reviewing factual issues, the appellate court will not reweigh

the evidence and will instead defer to the trial court’s findings as to the credibility of

witnesses or the weight of their testimony. Id. However, review of a trial court’s application

of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff

v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,

which presents mixed questions of fact and law, is reviewed de novo, with a presumption of

correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 40

S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The petitioner contends on appeal that his elbow counsel was deficient in her

representation, thereby prejudicing the outcome of his case, because she did not help him

obtain “exculpatory” surveillance videotape from the Walgreens store and Exxon station,

failed to advise him to object to the State’s introduction of the hospital surveillance tape and

the guns, and neglected to advise him to introduce the ballistics report to show that the police

officer’s gunshots were fired from the passenger side of his vehicle. We respectfully

disagree. “Elbow counsel” is “an attorney who functions in a purely advisory role, without

actively participating in the trial. A pro se defendant who is permitted such counsel may

consult counsel for guidance and advice, but otherwise handles the defense of the case on his

or her own.” State v. Small, 988 S.W.2d 671, 672 n.1 (Tenn. 1999). As the post-conviction

court noted in its order, the petitioner has not met his burden of showing that any surveillance

tape even existed, much less that it was exculpatory in nature. The petitioner also failed to

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show the existence of any ballistics report or that, if it existed, it would have supported his

claim that the police officer’s bullets were fired from the side of his vehicle rather than the

front. He has not, therefore, met his burden of showing that elbow counsel was deficient in

her representation or that he was prejudiced as a result.

The petitioner also contends that he was ineffective in his own representation because

of his unfamiliarity with the law. However, “when a defendant forfeits or waives the right

to counsel, regardless of whether the waiver is explicit or implicit, he or she also forfeits or

waives the right to effective assistance of counsel.” State v. Carruthers, 35 S.W.3d 516, 551

(Tenn. 2000); see also Small, 988 S.W.2d at 673 (“One who knowingly and intelligently

waives the right to counsel cannot later allege the deprivation of effective assistance of

counsel.”); State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995) (“The Defendant

waived his sixth amendment right to counsel when he chose to represent himself. He cannot

now argue that he was deprived of effective assistance of counsel.”). We, therefore,

conclude that the post-conviction court properly denied the petition for post-conviction relief.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the postconviction court denying the petition for post-conviction relief.

_________________________________

ALAN E. GLENN, JUDGE

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