# FILED
July 11, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE FEBRUARY

1997 SESSION
THOMAS E. MONTOOTH, * C.C.A. # 01C0 1-9604-CC- 00126

Appellant, * W HITE COU NTY VS. * Hon. Cha rles D. Hast on, Jud ge STATE OF TENNESSEE, * (Post-Conv iction)

Appellee. *
For Appellant : For Appellee: James H. Stutts Charles W. Burson Dickson & St utts Attorney Gen eral & Repor ter P.O. Box 111 Sweetwater, TN 37874 Lisa A. Naylor Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 William Edward Gibson Distric t Attorney General Anthony J. C raighead Asst. Dist rict Attor ney General 145 South Jefferson Avenue Cookevil le, TN 38501-3424

OPINION FILE D:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION
The petitioner, Thomas E. Montooth, appeal s the trial court's deni al of post-convi ction reli ef. In this appeal of right, the p etitioner compl ains that the tr ial judge erre d by denyi ng a motion for recusal and by concluding that the petiti oner received the effective assi stance of counsel.

We f ind no error

and affirm the judgment of the trial court.
On December 14, 19 87, the petitioner killed the victim, C harles Verbl e, by shooting him three times. W hile the petitioner claimed tha t the shooting was in defense of his son, the state had establi shed that the defendant had pursued the victim l ong after the conc lusion of their altercation, obtained a gun, and express ed his anger over a debt.

On November 29, 1988, the petiti oner was convicted of second degree murder. The tri al court impos ed a thirty-year se ntence. This cour t affirmed the convicti on. State v. Thomas E. Montoo th, Sr. , No. 89-235-I II (Tenn. Cri m. App., at Nashvil le, Sept. 19, 1990) . On January 8, 1991, the supreme court denied application for permission to appeal. The petiti oner filed this petition for postconvicti on relief in 1992. The petitioner sought the re cusal of the tri al judge, C harles D. Haston; and, after an order w as entered deny ing the req uest, the petiti oner was granted an in terlocutory appeal by per mission from the tr ial court. See Tenn. R. App. P. 9. This court, however, declined interlocut ory review and the supreme court denied applicati on for permissi on to revi ew the iss ue.1 The Thirt eenth Judi cial Dist ri ct i ncludes Clay , Cumberland, DeKalb, Overton, Picket t, and Putnam Counties. Judge Haston i s the Ci rcui t Judge f or Dist ri ct Thi rty -One which i ncludes Van Buren and W arre n C oun ties.

2 T he initial po st-c on victio n c ou ns el fo un d n o b as is to r eq ue st re cu sa l, rep orte d th e p etition er's insi stence t o prosecut e the cl aim, and was per mitted to wi thdr aw on February 12, 1993

. 3 I The peti tion er cla ims t hat h is po st-co nvict ion ju dge sh ould have granted the motion fo r recusal. His grounds are summarized as follows:

(1) that the post-conviction judge, w ho had presided at the trial of the petitioner, had previous ly recus ed himsel f from hea ring a civ il cl aim bas ed upon the sam e facts at issue i n the criminal case; (2) that the post-conviction judge had previously expressed a n opinion upon the p erformance of the petitioner's

trial couns el; (3) that the post-conviction judge had no j urisdicti on to entertain the petition under Tenn. Code Ann. § 40- 30- 103(b) (Supp. 1993); (4) that the post-conviction judge had failed to adequately

address the mer its of the petiti on; and (5) that the post-conviction judge had caus ed a delay in the appeal by

failing to pr

operly preserve the record. In response, the state con tends that the trial court acted within its discretionary authority by over ruling th e motion to recus e.

Judge Charl es D. Haston 1 presided at the criminal trial. The record indicates that

Judge Hasto n had been desig nated by our supreme court t o hear the case in th e W hite Cou nty Crimina l Court. So metim e afte r the con viction, Ju dge Haston recuse d himself from parti cipating i n a wrong ful death civi l action ag ainst the petitioner. In making thi s claim, the petitioner reasoned that if Judg e Haston had grounds to recuse himself in the civil case, he should also recuse himself in this post-conviction matter. 24 Initially , our scope of rev iew is limited. Whether to grant a motion to recuse is di scretionary

with the trial judg e. Caruthers v . State , 814 S.W.2d 64, 67 (Tenn. Crim. Ap p. 1991). This court may reverse onl y when t he trial ju dge has clearly abused that disc retionary authority

. State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim. Ap p. 1993). The tri al judge sho uld recuse hi mself "whenever his or he r 'impartiali ty might reasonably be questioned.' " Alley v . State , 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994 ) (quoting Code of Judicial Conduct, Canon 3(c)). Recusal is appropriate "when a person of ordinary prudence in the judge's position ... would find a reasonable bas is for questi oning the judg e's impartial ity." Id.

Here, the post- convicti on judge all owed the peti tioner an opport unity to pres ent a ny fa ctua l bas is fo r the recu sal. The b urde n of pers uasi on, i n our view, was upon the petitioner. Any number of reasons may have existed for the recusal in the civi l case. This court may not assume, absent sup porting cau se, that the tr ial judge should have been disq ualified from the pro ceeding.

At sentencing , the trial judge made the foll owing ob servation s regarding the performance of trial counsel:

[Attorney J ohn H.] Turnbull has sent a first-class br ief on the matter of sentenci ng, whi ch I appreciat e very much. He has done an excellent job i n that regar d.... [The petitioner] probably should have been convicted of first degree murder , except for t he good wor k of his law yers.
Judges w ho make on the recor d findings of fact or

general observati ons about the cour se of a criminal trial arenot disqual ified from presidi ng over a subs equent proceedi ng. See State v. B oggs , 932 S.W.2d 467, 472 (Tenn. Crim. App. 1996). W hile the statements are clea rly complimentary to trial counsel, the trial j udge made the obser vations, al l of which were gratui tous, well before any5 claim of ineffective assistance of counsel had been presented. This cour t cannot infer from those comments alone that the tr ial judge could not be impar tial in a subsequent post -convic tion claim.
The petitioner al so insists that Judge H aston, the Cir cuit Judge of the Thirty-F irst Judic ial Distr ict, had no jur isdiction t o hear the petiti on for post-conv iction relief. He c ites Tenn. Code Ann. § 40-30-103(b) (1990) (repealed 1995) w hich, at the time the petit ion was fil ed, provide d as follows :

(b)(1) I f a petition filed pur suant to this c hapter raises the issue of the competenc y of counsel r

epresenting the petitioner, at

either the or iginal tr ial proceedi ng or an appell ate pro ceedin g reviewing such original pr oceedi ng, such petition shall be heard and determined by the trial judge wh o presided at t he trial in which theconvicti on occurred , or the appellate judges who reviewed such convicti on, whichev

er is appropr iate, if such tr ial or appellate judges are available. If such jud ge is unava ilabl e, the c hief ju sticeof the Ten nesseesupre me court wi ll desig nate an appropri ate judge to hea r the matter. (2) If suc h petition does not raise the i ssue of competency of couns el at the ori ginal tri al or appellate procee ding, the chief ju stice sha ll designa te and a ssign an appropriate judge to hear an d determine such petition. Unless the provisions of subdivision (1) are appli cable, the des ignat ed judg e shal l not b e the s ame judge wh o presided at t he trial in which theconvicti on occurred. (Emphasis added) . Before the ev identiary hearing, t he statute was amended, effective April 12, 1993:

(b) At eit her the trial proceeding or an appellate procee ding reviewing t he proce eding, th e presid ing judge of the appropriate court shall as sign a judg e to hear the petition. The issue of competency of counsel may b e heard b y a judge oth er than the origin al hearin g judge . If a presidingjudge is unable to assig n a judge, the chief justice of the s upreme court shal l designate an appropriate j udge to hear th e matter. Tenn. Code Ann. § 4 0-30-103(b) (Supp. 1993) (repea led 1995) (emphasis adde d). The petition was filed in White County but , accordingto the petition er, most of the6 post-convi ction proceedi ngs were held in Warren County i n Distric t Thirty- One where Judg e Haston gener ally presided. The petiti oner argues that Judge Haston had no connection w ith the White County Cr iminal Court and, especiall y after the passage of the newer statute, no au thority t o proceed in thi s matter. See Id.

In our view, the date of the filing of th e petition controlled in this situ atio n. Ju dge Ha ston , who h ad pr esid ed at the t rial o f th e cas e, sh ould not h ave disqualified himself later o n the basis of the statutory amendment givi ng permissi on to the presidi ng judge or the chief justi ce to authoriz e a replacement. The 1993 amendment has no effect on the peti tioner's cas e.

The petitioner al so complains th at the post-conv iction judg e failed to address each of the i ssues indiv idually, instead concl uding that any claimed deficiencies i n the representation by tr ial counsel fell into the cat egory of "tr ial strategy ." The petitioner argues that the trial j udge failed to meet his responsi bilities as provided in Tenn. Code Ann. § 40-30-118 (repealed 199 5):

(b) Upon the final disposition of every petition, the court shall en ter a fin al order, and excep t where pro ceedin gs for delayed appeal are allowed, shall set forth in the order or a w ritten memorandum of the case all g rounds presented and shal l state the findi ngs of fact and conclusions of law w ith regar d to each such g round

. (Emphasis added) . While the order denyi ng relief cou ld have been more detailed, something appeal s courts al most alway s encourage, the trial j udge clearl y ruled upon the singl e constitution al issue ra ised in the peti tion. By concluding th at trial counsel had a le gitimate st rategy for any clai ms of deficiency in performance, the trial cour t cite d its r easo n fo r den ying re lief on th e alle gatio n of inef fec tive assistance. Certainly

this complai nt does not suppor t the demand for recus al.
The petitioner al so argues t hat there was a delay of over a year3 Trial counsel , John A. Turnbull , wi thdr ew as counsel by pe rmission of t he tr ial court on January 2 3, 1 989, shor tl y a ft er t he conv ict io n. Subst it ute counsel , St ephen L . Rai ns, and James P. Rom er (whi ch incl uded S. Thomas Burnett e), fi led t he motion and a mended m oti on for n ew tri al and re pr es en ted the pe tition er on dire ct a pp ea l. 7 because of a defective tape recorder . The recorder was ulti mately repai red so that a transc ript was ma de availa ble. Th e petiti oner ass esses th e blame to the ju dge who, h e argu es, re legat ed hi s pet itio n "to a sec ond ary sta tus. " Sta ted s impl y, we disagree. The duty is al ways o n the appellant to establish an adequate recor d for review . There is no i ndication the tr ial judge should have r ecused himself from hearing the case.

In our vi ew, the is sue has no merit

.

II Next, the petitioner cont ends that his tr ial counsel 3 was ineffectiv e for having failed to adequately present his def ense theory. He argues that his testimony and that of his son was inadequate to establish th at the shootingwas necessary

in order to protect his s on. The petitioner's claims can be summariz ed as follows: (1) that trial counsel was unable to suff iciently

document his prepa ration time. (2) that trial counsel failed to pr oduce proof of the relative sizes of thepetitioner, his son, and the victim. In particular , the petitioner complains that his trial counsel failed to prove that he was smaller than the victi m and that he suffered from a heart condition and a disability to one hand. (3) that trial counsel failed to ade quately respond to the f alse impr essi on th at th e pet itio ner h ad as his m otive for the crime the collection of a $140.00 debt. (4) that trial counsel failed to prove the violent nature of the victi m and threats that he had made to the petitioner or

his son on the day of the shooti ng. (5) that trial counsel was deficient for hav ing failed to8 call Edw in Atkinson as

a defense witne ss. At the evidentiar

y hearingon this post- convicti on petition, Atkinson testi fied that he saw the victi m place his r ight hand in a pocket in which there was a knife and ad vance towards t he petitioner' s son just beforethe fatal shots were fired.
The petitioner argues that his trial coun sel, after announcin g to the jury in the opening argument, the d efense of another theory , was ineffecti ve for havi ng failed to utili ze all of the available evidence i n support of his c laim. See Stat e v. Zimmerman , 823 S.W.2d 220 (Tenn. Crim. App. 199 1). The petitio ner argues that there is a reasonable probability that the verdict would have been voluntary manslaughter rather than seco nd degree murder had trial counsel pe rformed his duties in an effectiv

e manner.
For the petitioner to establish tha t his counsel was ineffective, he must show that th e advice g iven or t he services rendered were not wi thin the rang e of competence demanded of attorn eys in cr iminal cases. Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). This requir es a showi ng that the er rors were so seri ous that the defendant was, i n essence, depri ved of counsel w ithin the meaningof the state and federal constitut ions. He must also establi sh that but for his counsel's defic ient performance, the res ults of his tr ial woul d have been different. Stric klan d v. Washington , 466 U.S. 668 ( 1984); Best v. Stat e , 708 S.W.2d 421 (Tenn. Crim. App. 1985).

This court shoul d not second-g uess the leg itimate tacti cal and strategic choices of tri al counsel unl ess those choi ces were uninformed because of inadequate prep aration. Hellard v . State , 629 S.W.2d 4 (Tenn. 1982). Trial counsel may not be deemed to ha ve been ineffective merely becau se a different proce dure or strateg y might h ave produced a different result. Williams v. State , 599 S.W.2d9 276 (Tenn. Cri m. Ap p. 19 80). The c lear war ningof Strickland is "to elimi nate the distorting effects of hindsight ... and to evaluate the cond uct from counsel's perspective at the time." 466 U.S. at 689.

On appeal, the bur

den is always on the pet itioner to s how that the evidence preponderates agai nst the findings of the trial j udge. Clenny v . State , 576 S.W .2d 12 (Tenn. Crim. App. 1 978). Otherwise, the findings made in th e trial court are conclusi ve. Graves v . State , 512 S.W.2d 603 (Tenn. Crim. App. 197 3). The trial judge ruled as follows:

Having considered s aid testimony and arguments of counsel, the record and all exhibits entered in the cause, the Cou rt find s that al l matte rs addre ssed stra tegy decisions of couns el, and petiti oner has failed to show any ineffectiveness of counsel. All decisi ons of trial counsel we re judgment dec isions and the petitioner has failed to show

that these deci sions rose t o the level of ineffectiveness. It is therefore ORDERED: that the petitio n for postconvicti on relief is de nied on all g rounds.

Trial counsel , who filed a number of pretrial motions, testi fied that he met with the petitioner on n umerous occasi ons before the tri al and had several discussions

with the petitioner about the possible testimony. Trial counsel recalled that he questioned pote ntial witnesses, associated counsel to assist in prep arations, and did his best . Trial couns el, who had considerable experience in criminal matters, has not been shown to have been defici ent for failure to meet with the petitioner. All of this testimony was implicit ly accredited by the findings in t he trial court.

Trial counsel testified that hi s strategy was to present "as clear and simple" a defense as p ossible. Tri al counsel ack nowledged that he chose not t o put10 on proof that the peti tioner might have suffered a hear

t attack duri ng the shootin g for that reason. The pet itioner als o claimed that at the time of the shooti ng, he was outweigh ed by the v ictim by some seventy pounds. The only

comment by the petitioner as

to any dis ability to his hand was that "these fing ers are all muscles out of my right

leg."
The petitioner had three characte r witnes ses at his tr ial. He cl aimed that he told his

trial couns el of other inci dents of viole nce on the part of the victim. He claimed that

the victi m pulled his k nife on a Vernon Cr antz on one occasion, attacked a Pokey Poston with a cue stick on anoth er occasion, and was also involved in altercations wi th a Claudell Honeycutt and a Hanky Robinson. The petitioner cl aimed that he w itnessed an alt ercation between the vict im and a dispatcher at the sheriff's depar tment on the day prior to the shooting. Tr ial counsel testified that he made no attempt to intr oduce evidence of the victi m's propensity for violence b ecause the petiti oner had acknow ledged that he w as unaware of that at the time of the shooti ng. Trial counsel resear ched the issue a nd believed that the evidence would be in admiss ible at tr ial. He tes tified that he discusse d this stra tegy with the pet itioner before t rial and the petitioner cons ented to his focus o n the defense that the shooti ng was t he result of the pet itioner's effort to protect hi s son. At the post-conviction hearing, Honeycutt testif ied that trial counsel had called him prior to tri al and asked a bout an altercatio n he had had w ith th e vic tim. Th us some investig ation preceded th e decision not to place emphasis on these coll ateral events. M oreover, t he petitioner h as failed to establ ish that the ev idence offered would have been admissibl e at trial. The burden is al ways o n the petitioner to show that the evidence would have been adm itted at the trial, if off ered. This record would req uire us to sp eculate on admiss ibility

.11 Trial counsel also claimed that he did everythinghe could to count er the perception created by the stat e that the petitioner had shot the victim over a $140.00 debt. T he petitioner's testimony was somewhat conf licting; he ultimately insis ted t hat t he vic tim " didn 't owe him a nythi ng." In th e con text o f th e ent ire tr ial, we cannot say t hat any defici ency in thi s record affected the results of the tr ial.

Apparently, a woman all owed to si t with theprosecution t able on behalf of the vict im during t he trial was not actuall y a daughter to the vic

tim. It is n ot, however , unusual to have a relative of the victi m's sit at thetable for the stat e. Again, we cannot infer from this alo ne that there was either deficiency in performance by t rial counsel or prejudice in result.

Next, the petitioner compl ains that his trial couns el was i neffective for failing to call Atkinso n as a wit ness. Trial counsel expl ained that Atki nson, who had been interv iewed as a potential w itness prio r to trial , would have given testimony inconsistent with that of the pe titioner and his son. Trial counsel testif ied that to use Atkin son as a wi tness woul d disc redit their testi mony; he rel eased A tkins on from a subpoena only after acquir ing the cons ent of the petitioner . That clearl y quali fies as a strategy

decision even if ultimately unsuccessful, bas ed on adequate inv estigation. That trial couns el, in hindsi ght, might have chosen a different course, i f given the opportunity , is not enoug h.

Accordingl y, the judg ment is affirmed.

__________________________________ Gary R. W ade, Ju dge CONCUR:12 ______________________________ David G. Haye s, Judge

_______________________________ Curwood Witt, Judge