### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Se pte mb er

22, 200 9 S es sio n
WILLIAM AR THU R S HELTO N v. STA TE OF TEN NES SEE

Appeal from t he Criminal Court for Bradley County No. M- 07-469 Car roll L. Ross, Jud ge

No. E2009-00582-CC A-R3- PC - Filed De cem ber 28, 2009

The pe titioner, William Arthur Shelton, appea ls from the dismissal of his pe ti ti o nf o r p o s t- conviction relief

. In t his appea l, he contends that he was denied the e ffe ctive assistanc e of c ounsel at trial and
on app e a l. D isc e rn ing no e rr or , w e a ff ir m th e jud gme nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P. 3; Judgment of the C riminal Court Aff irme d

J A M ES C U RW O O D W I TT , J R ., J., delivere d the opinion of the court, in which R OBER T W. W EDEMEYER and D. K EL LY T HOMAS , J R ., JJ., joined.

Kenne th L. Miller, Cleveland, Te nnessee , for the a ppellant, William Arthur Shelton.
Robert E. Cooper, Jr ., Attorney Ge nera l and R eporte r; Matthew Brya nt Haskell, Assistant Attorney Gene ral; Steve Bebb, District Attorne y Gene ral; and W ay n e Carte r, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

In Oc tober 2004, a Bradley County Criminal Court jury convicted the petitioner of thr e e c ou nts of

fa lse im pri so nme nt, tw o c ou nts of va nd a lis m, andon e c ou nt o f p re me dit a te d f ir st degre e murde r. On dire ct appe al, this court af firmed the c onvictions and the eff ective sentenc e of lif eimp ri so nme nt, see State v . William Arthur Shelton , No . E 20 05 -02 01 4-C CA -R 3-CD (T e nn . Cr im. App., Knoxville, Nov. 9, 2006), and our supre me court denied permission t o appeal on March 12, 2007. The pe titioner’s convictions re late to his holding Charlene Hyatt, Brian H yatt, Jr., and Sher a Holt a gainst their will at the home of Melissa Proctor on October 20, 2003. The p ro o f a t trial established that the petitioner believed that his wife was ha ving an af fair w ith Mrs. Hyatt’s husband, Br ia n, a ndthat th e pe tit ion e r e xp re sse d h is i nte nti on to “ ‘h urt [ Br ia n Hy att ] real ba d’ ” or “ ‘m e ss [him] up.’” See id. , slip op. at 2. While he he ld Mrs. Hyatt and her children at Ms. Proctor’s home, the petitioner vandalize d two vehicles belonging to Bria n Hyatt and lef t a message with Mrs. Hyatt’s mother that Brian Hyatt should pick hi s wife and children up at Ms. Proctor’s re sidence

. See id. The petitioner told Ms. Proctor’s live-in boyfriend, Robert Holt, that he intended to kill Brian Hyatt. Mr.-2-

Holt and a ne ighbor wer e able to calm the petitioner so that he left Ms

. Proctor’s r esidenc e at 11:00 or 11:30 p.m. See id.

At app ro xim a te ly 6:2 0 a. m. the fo llo wi ng mornin g, the pe tit ion e r, his wi fe , a ndthe ir tw o c hil dr e n r e turne d to Ms. Pr oc tor ’s ho me , w he re the pe tit ion e r a waite d th e arriva l of Br ia n H yatt, who t he petiti oner believed would ride to work with Mr. Holt. See id. As he wa ited, the petitioner again thre atene d to kill B rian Hyatt. When Brian Hyatt had not a rrived by 8:30 a.m., the petitioner told Ms. P roctor, “ ‘We are going up on the hill.’” Id. The pe titioner then trave led to Brian Hyatt’s residenc e, whe re he “beat on the kitchen door and windows.” “ Brian [Hyatt] got out of bed, picked up a pair of bolt cutters, a nd started out of the bedroom.” Id. Brian Hyatt put the bolt cutters down at his wife’ s reque st and went una rmed to mee t the petitioner. See id.

When Bria n Hyatt aske d the petitioner w h y h ew a s th ere , the petitioner re plied, “‘Y ou know what I ’m doing here .” Id. , slip op. at 3. The petitioner then “hit Brian [Hyatt] on the side of his head with a ba seball bat then stabbe d him in the chest.” Id. Brian Hyatt later died as a result of his inj urie s.
Th e pe tit ioner’s w if e te sti fi e d th a t a lth ou gh sh e c ou ld n ot s e e wh e the r B ri a n H yatt
wa s a rm e d d uring the c on fr on ta tio n, the pe tit ion e r t oldhe r that Bria n H yatt h a d c ome a t hi m w ith a knife

. See id. The pe titioner did not testify.

On Novembe r 16, 2007, the pe titioner filed a timely petit io nf o r p o s t- c onviction relief alleging that he ha d been de nied the ef fec t i v e as s i s t ance of counse l, primarily beca use his trial counsel “ was laboring under a conflict of interest.” A n amende d petition for post-conviction re lief filed by post -c o n v i ct i o n counsel spec ified that trial counse l “fa iled to present pr oof of [ the petitioner’s] pr eviously diag n o s ed m ental illness in an ef fort to negate the ele ment of pre

meditation,” that trial counse l “fa iled to present significa nt pr oof of [the petitioner’s] intoxication thr ou gh bo th dru gs a nda lc oh ol at th e tim e of the kil lin gs [s ic ] in a n e ff ort to ne gate the app ro pria te
me nta l c apa c ity to f

orm pr e me dit a tio n, ” that tria l c ou ns e l “fail ed to ob je c t to the [t

ri a l c ou rt ’s ] char ge that intoxication did not apply to First Degree Murder and fai l ed t o raise this issue on
app e a l,” that tr ia l c ou ns e l “ faile d to ha ve [the pe tit ion e r] sig n a writt e n w a ive r o f c on fl ic t a s to his repr esentation of the alleged victim,” and that trial counsel “failed to properly prepa re the rec ord on [the pe titioner’s] appe al there by waiving cr ucial issues.”

At the Nove m b er6 , 2 0 0 8 ev i d en t i ar y h ea ri n g , t h e p et i t i o n er ’s m at er n al au n t , M arlene Boles, testified that she raised the petitioner af ter his mother pa ssed away when he was five year s old. She rec alled that the petitioner had difficulty proc essing his mother’s death, which had oc curr ed at the hands of

his stepfather

while he and his younger brothe r we re pr esent. She stated that her
m o t h er i n i t i ally gained c ustody of the two boys, and she and her mother took the petitioner to a psychiatrist. Acc ording Ms. Boles, the ps ychiatrist explaine d that the petitioner’s “ mind, when he
was e ight-year -old, had froze ; it was sti ll what it was at five. He c ould not face the fa ct and sa y that his mothe r w a s d e c e a se d. ” Ms. Bol e s r e c a lle d th a t th e pe tit ion e r c la ime d th a t hi s mo the r p la ye d w ith him . Sh e state d tha

t the pe tit ion e r h a d r e c e ive d s ome kin d o f m e nta l he a lthtr e a tme nt c on sis te ntl y sin c e 19 78 . Sh e te sti fi e d th a t sh e e xp la ine d th e pe tit ion e r’ s me nta l he a lthhis tory to tr ia l c ou ns e l.A p p a re n tly , t h e p e tit io n e r’ s firs t t ria l en d e d in a m istria l. 1

-3- Ms. Boles testified that although trial counsel subpoena ed her to trial, she was ne ver called a s a wi t n es s

. S he re called that as she sat outside the c ourtroom, she observed trial c ounsel sp e akin g w ithme mbe rs of Br ia n Hyatt’ s fa mil y on one oc c a sio n during the pe tit ion e r’ s se c on d tria l. 1 During cross-e xamination, Ms. Boles admitted that trial counsel spoke to the Hyatt family only after she told him that members of the f amily had threatened the pe titioner’s wife.
The pe titioner testified that trial counse l told him that trial counsel “ was re prese nting Brian Hyatt on a bur glary c harge , but that w ouldn’t be any pr oblem.” The petitioner stated that he “had a problem with” trial counsel’s having repr esente d Brian Hyatt and w ith what he dee med trial counsel’s f

riendly ra pport with Mr. Hyatt’s family. The petitioner re called that after his first trial ended in a

mistrial, he asked the trial court t o ap p o i n t d i ff ere nt counsel “be cause of . . . the way thi ng s [ we re ] u nf

old ing .” He a dd e d, “ So h e de nie d it . W he n h e di d, I d e c ide d righ t th e n th a t I
wa sn ’t go nn a te sti fy un til I g ot a

po st- c on vic tio n, be c aus e I f e lt that, .

. . to be pe rf

e c tly ho ne st, I f

e lt I wa s getting screw ed.” A ccor ding to the petitioner, when he brought his conce rns to the attention of the trial c ourt, the court told him that “if [he ] couldn’t hire an attorney right then, that [he] was keeping the attorney that [the trial court] ga ve [him].”

Th e pe tit ion e r t e sti fi e d th a t he su bmi tte d to a me nta l hea lth e va luatio n pri or to t ri a l. He state d that he neve r discussed his pre vious mental illness with t rial counse l. The petitioner state d that he informe d trial counsel that he had bee n drinking alcohol and smoking cr ack c ocaine on the night of the kidnapping. Despite this information, trial counsel failed to ca ll witnesses to support the petitioner’s c laim of voluntary intoxication. The pe titioner admitted, howeve r, that “[ a]in’t nobody knowed [ sic] that but me and A udrey Conner , an d we wa s in her house.” The pe titioner added that trial counsel failed to object when the trial judge instructed the jury that “[i] ntoxication does not apply to the first degr ee mur der c harge .”

Additionally, the petitioner testified that his c ounsel failed to pr eserve an e videntiary iss ue fo r a

pp e a l r e ga

rd ing the a dmi ssi on of a pr e tr ia l st a te me nt g ive n b y h is w if e to p oli c e . H e a lso
c lai med that

c ou ns e l f a ile d to ob

je c t to the pr os e c uto r’ s in fl a mmatory c los ing arg ume nt anda lso failed to r a is e th e is s u e o n ap p e a l. T h e p e ti ti o n e r c laim e d th a t th e p r o s e c u to r to ld th e ju r y , “[I ]f I
came to his house at s even o’clock in the m orning, beating on his doors and windows, that a stea k knife would be the least of my wor ries bec ause I would be looking down the barr el of a .12 ga uge shotgun, and he would separ ate me from my body with lethal forc e, and ha ve no re morse doing so.”

Trial counse l, District Publi c De fende r for Bradley County , t es t i fied that he began repr esenting the pe titioner following his appointment to t he ca se in gene ra l s es s ions court. Trial
c ou ns e l st a te d th a t a t th e tim e of Br ia n H yatt’ s d e a th, Mr. Hya tt “was un de r i nd ic tme nt .

. . in Bradley County for a

. . . theft[] that involved his father -in-law” and that the public de fende r’s off ice ha d b e e n a

pp oin te d to re pr e se nt h im. Ac c or din g to tr ial co un se l, a lth ou gh he ha d p re vio us ly
re pr e se nte d M r. Hy a tt o n a c ha rg e of fe lon y v a nd a lis m, h e “ ha d n ot p e rs on a lly sp ok e n to Mr . H yatt” about t he pending theft charge. Trial counse l rec alled that “the re w as an outstanding ca pias for [ Mr. Hy a tt’ s] arr e st at th e tim e that he wa s k ill e d. ” He tes ti fi e d th a t he inf orme d th e pe tit ion e r o f h is-4-

previous re prese ntation of Mr. Hyatt and of hi s office ’s appointm ent to Mr. Hyatt’s pe nding case

. Tria l c ou ns e l st a te d th a t a lth ou gh the pe tit ion e r appeared “v e ry su sp ic iou s o f the qu a lit y o f h is
re pr e se ntatio n b y th e Pub lic De fe nd e r, ” tr ia l c ou ns e l d id not be lie ve that a

c on fl ic t of

int e re sts existed bec ause “ [t]her e wa s no connec tion at all” be tween the two case s. Trial counse l testified that even thou g h h e wa s aware of the information fr om the outset of their re lationship, the petitioner raised no obje ction until the second day of t ri al

. C o u n s el re called that the petitioner filed a disciplinary complaint with the Board of Professional Responsibility regarding the a lleged conf lict and that the Boar d ruled “ that no conflict e xisted at the time this case w as tried.”

Trial counse l testified that he met with Ms. Boles and that she informed him that the pe ti t i o n e r “ h a d b e e n tr e a t e d f o r s o m e m e n t a l h e a l t h d i f f i c u l t i e s

. ” H e s t a t e d t h a t a s a r e s u l t o f thi s information, he a sked for a mental he alth evaluation for t he petiti oner. Trial counsel rec alled that the petitioner did not want to unde rgo the e valuation alone, so tria l counsel attende d the exa mination wi th the pe tit ione r. Tria l c ou ns e l st a te d th a t de sp ite the pe tit ion e r’ s h a vin g b e e n d ia gn os e d w ith post-traumatic stre ss disorder, trial c ounsel “neve r had any conce rns about his c ompetency to stand trial.” He explained, “ I knew from si tting in on the evaluation that a def ense of insanity could not be supported. I knew they c ou l d n o t s u pport a de fense of diminished capa city. I did not seek a n independe nt expert.” Trial c ounsel testified that he knew that the pe titioner had bee n drinking on the night of the kidnapping but said that he did not re call the p et i t i o ner’ s telling him that he had “ingested anything further” befor e re turning to Mr. Hyatt’s re sidence the following morning. Trial
c ou nsel st ate d tha t he didno t be lie ve that ne ith e r the pe tit ion e r’ s me nta l he a lthiss ue s n or his voluntary intoxication rose to the le vel of a defe nse to Mr. Hyatt’s homicide.

Trial counse l testified that he and the petit ioner made the decision together to pursue a theory of s elf-defe nse and that the petitioner’s de cision, made during tria l, not to testi fy “undermined that defe nse.” Trial co u n s el stated that he told the petitioner that it was “ve ry imp orta nt” that he te sti fy a ndthat be c aus e the State ha d n ot f ile d n ot ice of any c on vic tio ns wi th which it intende d to impea ch the defe ndant, “[t]he re was no rea son for him not to te sti fy

. ” T ri al
c ou ns e l r e c a lle d th a t he fo un d o ut o n th e se c on d d a y o f t rial th at the pe tit ion e r d id n ot i nte ndto testify. Trial counse l stated that the petitioner’s de cision forc ed the de fense to rely on the testimony of the petitioner’s wife. He testified that Ms. Shelton’s testimony wa s wea kened by her p re t rial statement to police, whic h he cha rac terize d as “good and bad” and “contr adictory in plac es.”

Tria l cou ns e l tes tif

ie d tha t, with the pe tit ion e r’ s dec isi on no t to te sti fy , th e de fe ns e lost any testimony regarding the pe titioner’s level of intoxication at t he ti me of Mr. Hyatt’s murde r. Counsel rec alled th at h e q u es t ioned Ms. Conner, with whom the petitioner c laimed to have be en drinking and using co ca i n e, about t he use of drugs and a lcohol but that Ms. Conner denied using either.

Trial counse l admitted that he made a m i s t ake by failing to ask that Ms. Shelton’s
e nti re state me nt b e ma de a n e xh ibi t to he r t e sti mon y. He e xp la ined t hat the pr os e c uto r c ro ssexamined Ms. Shelton with the most damaging portions of t h e s tatement and that the prosec utor
ma de tho se po rt ion s of

the state me nt an e xh ibi t. T ri a l c ou ns e l st a te d th a t he didno t si mil arl y a sk that the re st of the statement be made an exhibit to satisfy the rule of c ompleteness. He insisted, ho we ve r, that he ha d q ue sti on e d M s. She lto n a bo ut the su bs ta nc e of he r s ta te me nt. Ne ve rthe le ss,T h e re c o rd e sta b lish e s th a t, b a se d u p o n in fo rm a tio n p ro v id e d to th e p a r ti e s b y t h e c o u rt re p o rte r, p o st2

co n v i ct i o n co u n sel ab an d o n ed his at t em p t t o m ak e t h e t ri al t ranscri p t pa rt of t h e p o st -con v ict i o n record

. T h e co u rt
r epor t er a ppar ent l y be l i eve d t hat t he t r i al c our t t r ans cr i pt s di d not have t o be m ade a par t of t he r ec or d be ca us e “[ t ] he C ou r t of A pp eal s has t he ori gi nal

. ” D es pi t e t hat t hi s co urt , t he C ou r t of C r i m i nal A pp eal s , does m ai nt ai n t he ori gi nal copy of t he t r i al t r ans cr i pt as a p art of t he r ecor d fr om t he pet i t i on er ’ s di r ect appeal , t he t r ans cr i pt s ho ul d hav e been

m ade a par t of t he pos t

- convi ct i on re cor d i f , i n fa ct , t he pe t i t i oner i nt ende d t he pos t

- convi ct i on c our t t o r el y upon t he tra n sc rip t in re n d e rin g its d e c isio n

. T h is is e sp e c ia lly tru e in a c a se su c h a s th is, w h e re th e p o st-c o n v ic tio n ju d g e d id

n o t p re sid e o v e r t h e p e tit io n e r’ s tria l. B e c a u se p o st-c o n v ic tio n c o u n se l en d e a v o re d to d o ju st th a t an d b e c a u se th e p o stconvi ct i on c our t d i d , in fact , re l y upon t he t r ans cr i pt i n f or m ul at i ng i t s de ci s i on, w e w oul d f ee l c om f or t abl e t aki ng ju d ic ia l n o tice o f o u r o w n re c o rd s sh o u ld th e n e e d a rise

. S e e P h ill ip M u lli n s v . S ta te , No. M 20 08

- 00 33 2- CCA- R3- PC,

s l i p op

. a t 8 n. 1 ( Te nn

. Cr i m

. A pp

. , N a s hv i l l e , D e c

. 19 , 20 08 )

. A s t ha t po r t i on of t he t r a ns c r i pt c on t a i ni ng t he t r i al

c o u rt’s in stru c tio n s to th e ju ry w a s, in fa c t, in c lu d e d in th e re c o rd in th e c u rr e n t ap p e a l as a n e x h ib it to th e p o stconvi ct i on he ar i ng, r es or t t o j udi ci al not i ce i s not ne ce s s ar y. -5- he admitt e d th a t b e c au s e h e h a d f a il e d to e x h ib it

th e w h o le o f

th e s tate me n t t o M s

. Shelton’s te sti mon y, he faile d to pe rf e c t a ny iss ue re ga

rd ing the state me nt f

or re vie w o n a

pp e a l.

Du ri ng c ro ss- e xa min a tio n, tr ia l c ou ns e l aga in a dmi tte d h is m ist ake in f a ili ng to exhibit Ms. Shelton’s entire statement to he r testimony, but he stated that he c ould not say that “there
was a n y th in g in th e s tate me n t th a t w a s n ’ t ma d e p ar t o f th e r e c o r d th a t

. . . w o u ld h a v e alter ed the outcome of the case .” The bigger proble m, in trial counsel’s estimation, was the pe titioner’s ref usal to testify and “c orrobor ate pa rt of the things that his wife testified to.”

Trial counse l reiterated that although he wa s awa re of the petitioner ’ s p r e v io u s me n ta l health issues, he w as not “overly conce rned about mental i llness.” He state d that the petitioner ga ve a very detailed a ccount of the offe nses, leading c ounsel to believe that the petitio n er s u ff ered no pr ob le ms w ithhis me mory. Tria l c ou ns e l state d that the pe tit ion e r’ s e xc e lle nt r e c a ll o f the de ta ils belied an y cl ai m that he suff ere d from diminished capa city due to voluntary intoxication. Tria l counsel testified that the murder of Mr. Hyatt followed the false imprisonment at Ms. C o n n o r’s
re sid e nc e by app ro xim a te ly n ine ho ur s. Tria l c ou ns e l e xp la ine d th a t a lth ou gh the pe tit ion e r t oldhim that th e pe tit ion e r h a d u se d d ru gs a nda lc oh ol o n th e nig ht o f th e fal se imp ri so nme nt, a ft e r M s. Connor’s denial a nd the petitioner’s r efusa l to take the stand, trial c ounsel had n o wa y t o get any further proof of the petitioner’s a lleged intoxication into the rec ord.

Trial counse l admitted that although he d i d n ot believe ther e wa s a conf lict of interests re garding his p re v i o u s repr esentation of Mr. Hyatt, “it would have been be tter for [the petitioner’s] pe ace of mind if [trial counse l] would have brought that to the [c]ourt’s attention.” Trial counsel e xplained that he w as surprise d when the pe titioner raised the issue on the sec ond day of tria l beca use he “ thought we wer e sort of be yond that issue.”

After observing that he w anted to re ad the trial transcript be fore rende ring a de cision, the post-conviction judge took the pe tition under advisement. By writte norder detailing its findings 2 of fa ct and c onclusions of law, the court denied post-conviction relief. Regarding the pe titioner’s claim that trial counse l performed def iciently by failing to prese nt ev i d en ce o f t he petitioner’ s previously diagnosed me ntal illness, the post-c onviction court ac cre dited trial counsel’ s testimony
a ndc on c lud e d, “ Sin c e the re wa s n oth ing in the me nta l r e c or ds tha t cou ld ha ve su pp orte d a ny de fe ns e-6-

of ins a nity, a ndsince the re c or ds ind ic a te that he wa s a ble to a pp re c ia te the wr on gf

uln e ss o f h is actions, trial counse l co u l d n ot have be en inef fec tive . . . by failing to prese nt evidence of such matters at tria l.” As to the petitioner’ s claim that trial counsel should have prese nted more pr oof of the petitioner’s intoxication at the time of the murder , the post-convic t i on court de termined that “[t]rial counsel wa s not ineffe ctive . .

. by failing to prese nt evidence of alc ohol consumption when, in fac t, all evidence showed that the defendant was not consuming alcohol or ingesting drugs at the time of the homicide.” The post-c onviction co u rt also found that trial c ounsel had not per formed defic iently by failing to object to or cha llenge on ap p ea l the trial court’s instruction that

“ [i ]n tox ic a tio n d oe s n ot a pp ly t o th e fi rs t de gr e e mur de r c ha rg e ” be c aus e “ the re wa s n o e vid e nc e to support the giving of a jury instruction on intoxication pe rtaining to the homicide cha rge.” Finally, the post-conviction court concluded that “[w] h i l e having the pe titioner sign a written wa iver of conflict mi g h t h av e been a good idea in this case , failure to do so does not amount to ineffec tive assistance of counse l.”

Inthi s a pp e a l, the pe tit ion e r r e a sse rt s h is c la ims of ine ff e c tiv e a ssi stanc e of

c ou ns e l,
a lle gin g d e fi c ie nt p e rf

orma nc e by c ou ns e l’ s f

a ilur e to p re se nt p ro of

of the pe tit ion e r’ s p re vio us ly diagnosed menta l illness and his volunt ary intoxication, his fail u re t o object to the trial c ourt’s instruction rega

rding voluntary intoxication, his failure to have the petitioner si gn a written waiver of the a lleged conf

lict of inte re sts, and his failure to prope rly prese rve the issue of Ms. Shelton’s statement for

appea l. The State conte nds that the post-conviction court properly de nied re lief.

The post-conviction petitioner bear s the burden of proving his or her allegations by clea r and co n v i n ci n g evidenc e. T.C.A. § 40-30- 110(f) (2006). On a ppeal, the a

ppellate c ourt
acc ords to the post-conviction court’s findings of fac t the weight of a jury verdic t, and these findings
are conclusiv e o n ap p eal unless the evidence preponde rate s against them. He nle y v . S tat e , 960 S.W .2 d 572 , 5 78 -7 9 ( Te nn . 1 99 7) ; Ba te s v . S tat e , 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, the post-c onviction court’s c onclusions of law rec eive no defe renc e or pr esumption of
corr ectne ss on appea l. Fi e lds v . S tat e , 40 S.W.3d 450, 453 (Tenn. 2001)

.

To establish entitlement to post-conviction relief vi a a claim of ineffec tive assistance of counse l, the post-conviction petitioner must aff irmatively

establish first whethe r “the ad v i ce g iven, or the se rvices re n dere d by the attorne y , are within the rang e of c ompetence demande d of attorney s in criminal case s,” see Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975), and se cond that his co u n sel’s def

icient per formanc e “a ctually had an a dverse eff

ect on the de fense ,” Strickland v. W ashington , 46 6 U. S. 6 68 , 6 93 , 1 04 S. Ct . 2 05 2, 20 67 (1 98 4) . In o the r w or ds , th e pe tit ion e r “ mus t show that there is a rea sonable proba bility that, but for counse l’s unprofe ssional error s, the re sult of the proceeding would have be en diffe rent.” Id. a t 69 4, 10 4 S. Ct. a t 20 68 . Sh ou ld t he pe tit ion e r f

a il to establish either deficient perfor mance or prejudice, he is not entitled to relief. Id. a t 69 7, 10 4 S. Ct. a t 20 69 ; Go ad

v . S tate , 9 38 S.W. 2d

36 3, 37 0 ( Te nn

. 19 96 ). Ind e e d, “ [i]f it is e a sie r to d isp os e of an ine ffe ctiveness c laim on the g round of lac k of suffic ient prejudice , . . . that course should be followed.” Strickland , 466 U.S. at 697, 104 S. Ct . at 2069.

When review ing a cl ai m o f i neff ective a ssistance of c ounsel, we w ill not gra nt the petitioner the be nefit of hindsight, se cond-guess a r easona bly based tria l strateg y , or provide r elief-7-

on the basis of a

sound, but unsucce s s ful , tactica l decision made dur ing the course of the proce eding s. Adkins v . S

tate , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994) . Such defe renc e to the ta c tic a l de c isi on s of c ouns e l, ho we ve r, a pp lie s on ly if the c ho ic e s are ma de af ter a de qu a te prepa ration for the ca se. Coo

pe r v . S tate , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

. Cl a im s o f in e f f e c ti v e a s s is ta

n c e o f c o un s e l a

r e r e g ar d e d

a s mi xe d qu e s ti o n s o f

law and fa ct. Sta tev . H

on e y c utt , 54 S.W.3 d 7 62 , 7 66 -6 7 ( Te nn . 2 00 1) ; State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999) . When review i n g t h e appli cation of la w to the post-conviction cour t’s fac tual finding s, our re view is de novo, and the post-c onviction court’s c onclusions of law a re g iven no presumption of cor

rec tness. Fields , 4 0 S. W.3 d at 45 7- 58 ; see also State v. England , 19 S.W .3d 762, 766 (Tenn. 2000)

.
I. Pr oo f of Pe tit ion e r’ s M

e nta l I lln e ss
Th e pe tit ion e r c on te nd s th a t trial co un se l e rr e d b y f a ili ng to p re se nt p ro of

of his previously diag n osed mental illness to negate the eleme nt of preme ditation. The petitioner failed to present pr oof at the e videntiary he aring, howe ver, to e stabl i s h t h at he suff ere d from a me ntal illnes s that would, in fac t, have ne gated the me ns rea element of

first degre e murde r. The petitioner’s aunt testified that he suffe red from post-traumatic stress disorder following the death of hi s mother when he was a young child and that he ha d periodica lly been under the ca re of a physician for

mental illness. She did not testify, howeve r, t hat the petitioner w as under a doctor ’s
car e at the time of

the murder

of Mr. Hyatt. Further, trial counsel testified that he requested a mental he a lthe va luatio n b a se d o n M s. Bol e s’ s st a te me nts to h im re ga rd ing the pe tit ion e r’ s men ta l he a lth and th a t th e e v a lu a ti o n c o n f irme d h is b e li e f th a t th e p e ti ti o n e r ’ s c ap a c ity w a s n o t d im in is hed by mental illness and that he wa s competent to stand trial. The petitio n er p re s en t ed no proof at the evidentiary hearing to support his claim that he was suff ering fr om a mental disea se or de fec t at the time of the off

enses that would have dimini shed hi s capa city to form the nece ssary mens rea for the crimes. In consequence , he has failed to e stablish that trial counsel per formed de ficiently by fa iling to p re se nt p ro of

of his me nta l il lne ss at tria l.

II. Pe titioner’s Intoxication The pe titioner also claims that trial counsel was ineffec tive by failing to prese nt proof of the pe titioner’s voluntary intoxication at the time of the murder in e ffort to ne gate the e lement of pr e me dit a tio n. Ag a in, ho we ve r, the pe tit ion e r f a iled to presen t e vid e nc e that he wa s, in f a c t, intoxicated at the time of the m urder

. The petiti oner testified that he and Audrey Connor c onsumed alcohol and c rac k cocaine on the eve ning before the murder , but he admitted that this consumption prec eded the murder by se vera l hours. In his brief, the petitioner poi nts to his own testimony at the
e vid e nti ary he ari ng a s p ro of of his int ox ic a tio n, bu t th e pe tit ion e r had refu sed to te sti fy a t tria l. Further, Ms. Connor, with whom the petitioner c laimed to be using drugs and alcohol, denied using drugs with the petitioner. In c onsequenc e, there was no evidenc e of intoxication that trial counsel-8-

could ha v e p rese nted. Trial c ounsel will not be held responsible f or fa iling to present proof that simply didno t e xis t a t th e tim e of tr ia l.

III . Trial Court’s Instruction on Intoxication The pe titioner complains that trial counsel e rre d by failing to object to the trial court’s instruction that its i nstruction on voluntary i ntoxication did not apply t o the charge of first degre e murder. A s discussed above, howeve r, t here was sim ply no proof that the petit ioner wa s intoxicated at the time he killed Mr. Hyatt, and there was no proof th at t h e p et itioner’s ea

rlier intoxication
a ff e c te d h is m e nta l c apa c ity a t th e tim e of the mu rde r. Ac c or din gly , th e tr ia l c ou rt c or re c tly conclude d that an instruction on intoxication as to that offe nse wa s not warr anted. Ha rre ll v . S tat e , 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979) (holding that any ins t ru ct i on on voluntary intoxication is not warra nted unless there is “evidenc e that the intoxication deprived t he accuse d of the mental ca

pacity to form spe cifi c inte nt” and obse rving that “[t] he dete rminative question” is what was the de fendant’s “mental c apac ity”). Beca use the trial c ourt’s instructions wer e a correc t statement of the la w as a

pplied to the present case , trial counsel did not per form def iciently by failing to o bje c t to the ins truc tio n at tria l or c ha lle ng e it o n a

pp e a l.

IV . Co nfl ic t of

In te re sts

In his final cla im, the petitioner asserts that he was denied the e ffe ctive assistanc e of counsel at trial because trial counsel, who had previously repr esente d Mr. Hyatt in a c riminal case , was ope rating under

an ac tual conflict of inter ests. In addition, he claims that trial counsel’s f ailure to procure a written waiver of the c onflict entitles him to post -convic tion relief.
Prejudice w ill be presumed in ca ses wher e the pe titioner has established that his trial
c ou ns e l “ ‘a c tiv e ly r e pr e se nte d c on fl ic tin g in te re sts ’ andthat ‘a n ac tua l con fl ic t of inte re st a dv e rs e ly
a f f e c te d h is la w y e r ’ s p e r f

o r ma nce.’ ” S t r i ckland , 466 U.S. at 692, 104 S. Ct . at 2067 (quoting Cuyler v. Sullivan , 446 U.S. 335, 348, 350, 100 S. C t. 1708 (1980)). A s the Court expl ained,

[I ]t is difficult to meas u re t he pre cise e ffe ct on the def ense of

r e p r e s e nta ti o n c o r r u p te d b y conflictinginterests. Given the obligation of c ouns e l to avo id co nf

lic ts of int e re st an d the a

bil ity of tr ia l c ourt s to m ake e arl y

inq uir y in c e rt a in s itu a tio ns lik e ly to g ive ri se to
c on fl ic ts, it i s r e a so na

ble fo r t he c ri min a l jus tic e sy ste m to ma int a in
a fa ir ly ri g id r ule of pr e sume d p re

jud ic e fo r c on fl ic ts o f i nte re st.

Id. (citation omitted). “[A]n actual conflict of i n t er es t includes any circ umstances in which a n attorney cannot e x erc ise his or her inde pendent pr ofes s i o nal judg ment fre e of ‘ compromising interests and loyalties.’” Sta tev . W hite , 1 1 4 S

. W

. 3 d 4 6 9 , 4 7 6 (T en n

. 2 0 0 3 ) ( ci t i n g State v. Culbr e ath , 30 S. W

. 3 d 3 0 9 , 3 1 2 -13 (Tenn. 2000) (quotingTenn. R. Sup. Ct. 8, EC 5-1)) . “The proper focus is solely upon whether counsel’s conflict aff ecte d counsel’s a ctions.” Ne tte rs v . S tate , 957 S.W .2d 844, 848 (Tenn. Crim. App. 1997)

.-9- Ag ain, t he petiti oner failed to adduce any proof at the evidentiar y hear ing to support his claim that trial counsel was burdene d by an actua l c onflict of interests. Tria l counsel’s a ccr edited testimo n y e s ta

b li s h e d th a t h e h a d p r e v io u s ly r e p r e s e n te d M r

. H y a tt in a c r im in a l c a s e s o me y ear s befor e he w as killed by the petit ioner. Trial counsel also testified t hat hi s office had been appointed to repre sent Mr. Hyatt on a criminal char g e that was pending at the t ime of Mr. Hy att’s death but that neith er h e n o r any

other attorney

from his offic e had me t with Mr. Hy att reg ardingthe pending char g e. Tria l counsel insisted that he did not believe the re to be a conf lict of interests and that he
reve aled his pre vious repre sentation of Mr. Hyatt to the petitioner as soon as he was a ppointed to the petitioner’s c ase. Nothing sug g ests that trial counsel’s repr esentation of the petitioner wa s colored by hi s previous re prese ntation of Mr. Hyatt. To the contra ry , the re cord e stablishes that counsel zealously repr esente d the petitioner. B eca use the pe titioner has failed to establish that trial counsel was burde ned by

an ac tual conflict of inter ests that adver sely aff ecte d h i s re p re s entation of the petitioner, he is not entitled to relief on this iss ue.
Simi larly , we f

ail to see how tria l c ounsel’s failure to pr ocure a wr itten waiver of the perc eived c onflict adve rsely af fe ct ed the outcome of the trial. Althoug h it might have be en pref era ble to obtain a wr itten acknowle dg ment of t ri al counse l’s previous re prese ntation of Mr. Hy att, beca

use the previous repr esentation did not, in this instance , rise to the leve l of a c onflict of int e r e s ts , n o w r itte n w a iv e r o f th e c o n f li c t w a s n e c e s s ar

y

. A s s u c h , th e f

a il ur e to obtain a wr itten waiver under the se circ umstances did not re nder c ounsel’s assistance ineffe ctive.

Be cause the petitioner ha s failed to esta blish his claims by

clea r and c onvincing
e vid e nc e , w e a ff

ir m th e jud g me nt o f t

he po st- c onvic tio n c ourt

.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE