IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 1, 2013 

FRANKLIN FITCH v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 02-07320 James M. Lammey, Jr., Judge

No. W2012-01465-CCA-R3-PC - Filed March 6, 2014

The petitioner, Franklin Fitch, was convicted of first degree murder and sentenced to life

imprisonment in the Tennessee Department of Correction. Subsequently, he filed a petition

for post-conviction relief, alleging that histrial counsel were ineffective. The post-conviction

court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment

of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and JERRY L. SMITH, J., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Franklin Fitch.

Robert E. Cooper, Jr., Attorney General and Reporter; DeShea Dulany Faughn, Assistant

Attorney General, Amy P. Weirich, District Attorney General; and Stacy McEndree,

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

OPINION

I. Factual Background

The petitioner was charged in the Shelby County Criminal Court with the first degree

premeditated murder of Angela Carroll. The proof adduced at trial revealed

that the [petitioner] and the victim had been involved in a

romantic relationship. Approximately one month before the

offense, the victim moved out of their shared home. Although,

according to the [petitioner], the victim continued to “see” him
several times a week, she also became involved with another

man. There is also indication that the victim had filed for an

order of protection against the [petitioner]. On the day of the

murder, the [petitioner] paid a friend to drive him to the victim’s

place of employment. He asked employees of the nursing home

where he could locate the victim, identifying himself as her

boyfriend. Once he located the victim, he kneeled down, drew

his gun and began shooting the unarmed victim. He pursued the

wounded victim into a bathroom and, despite her cries for help,

continued shooting and shouting, “you dirty bitch, you dirty

whore, I told you I was going to get you.” The [petitioner]

placed the weapon in his belt, walked out of the nursing home,

and later walked into a fast food restaurant, declaring that he had

just shot somebody.

State v. Franklin Fitch, No. W2004-02833-CCA-R3-DD, 2006 WL 3147057, at *15 (Tenn.

Crim. App. at Jackson, Nov. 2, 2006).

At the sentencing hearing, the jury found two aggravating circumstances: (1) that the

petitioner had previously been convicted of a felony involving violence to the person,

Tennessee Code Annotated section 39-13-204(i)(2), and (2) that the petitioner knowingly

created a great risk of death to two or more persons other than the victim during the act of

murder, Tennessee Code Annotated section 39-13-204(i)(3). See Fitch, No. W2004-02833-

CCA-R3-DD, 2006 WL 3147057, at *23-30. Upon finding that the aggravating

circumstances outweighed any mitigating factors, the jury sentenced the petitioner to death.

Id. at *1. On appeal, this court affirmed the petitioner’s conviction but reversed his sentence

of death, concluding that the (i)(2) aggravating circumstance was erroneously applied. Id.

at *34. Therefore, this court remanded the case to the trial court for a new sentencing

hearing.

On remand, the parties entered into an agreement whereby the petitioner would be

sentenced to life without the possibility of parole.

Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his

trial counsel were ineffective. Specifically, the petitioner contended that counsel failed to

fully investigate the case and prepare for trial on the issue of “the short term and long term

effects of alcohol on the [petitioner’s] ability to form the proper intent or mens rea for the

offense of first degree murder.”

At the post-conviction hearing, post-conviction counsel announced that the petitioner

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declined to testify. Upon questioning by the post-conviction court, the petitioner affirmed

that he did not want to testify at the hearing.

The first witness was lead trial counsel, who was a member of the capital defender

team of the Shelby County Public Defender’s Office. Lead counsel was assisted by cocounsel, who was also a member of the capital defender team, and by a defense investigator.

Lead counselsaid he met with the petitioner “very often.” He said that the petitioner’s

level of intoxication at the time of the murder and at the time his statement was given to

police was an issue at trial. Records obtained by counsel revealed that on August 7, 1998,

the petitioner went to the Memphis Mental Health Institute’s crisis management department

(MMHI) due to problems with alcohol. However, no complete evaluation was performed

because the petitioner stayed only one day. The defense team was unable to find any

documentation that the petitioner had received any type of treatment.

Lead counsel stated that he never sought funding for an expert concerning the effect

of alcohol use on the petitioner’s ability to form intent, explaining, “We had no

documentation to suggest long-term intoxication other than the one document from

[MMHI].” Lead counsel did not think there was a “particularized need for an addiction

expert.”

Lead counsel testified that the defense team spoke with the petitioner’s family and

friends to discern the petitioner’s history of alcohol use and abuse, specifically noting that

they spoke with Johnny Montgomery and Elvis Bowers. Lead counselsaid that Montgomery

testified at trial that he had seen the petitioner on the day of the shooting, that the petitioner

was drinking beer, and that the petitioner “was not his usual self.” Counsel decided not to

have Bowers testify because during the investigative interview, Bowers stated that he “didn’t

know the [petitioner] to use alcohol, and he was surprised when he came to his house with

the beer that day.” Bowers recalled driving the petitioner to the nursing home, waiting for

twenty minutes, and then taking the petitioner home. He was unable to recall anything about

the shooting. Bowers said that during the trip, he never noticed that the petitioner had a gun,

that the petitioner came out of the nursing home with blood spatter on his pants or shoes, or

that the petitioner smelled of gunpowder after the shooting. Accordingly, counsel did not

think Bowers was a credible witness.

Lead counsel denied that the petitioner was too intoxicated to give a statement.

Specifically, lead counsel observed that Officer Geronimo, who went to the fast food

restaurant to arrest the petitioner, said that he saw the petitioner with a beer and that the

petitioner had been drinking. Nevertheless, the officer did not “see any evidence of

impairment.” Lead counsel said that the petitioner was arrested and taken to jail but, based

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on the police department’s policy, he was not questioned until the next day because he had

been drinking alcohol.

Lead counsel said that the defense team had the petitioner evaluated by the Midtown

Mental Health Center (Midtown) for competency and sanity. After a thirty-day evaluation,

the evaluation team prepared a report summarizing the results. According to the report, the

petitioner stated that he suffered from “‘[a]lcohol, cocaine, and cannabis abuse.’” The report

reflected that during the evaluation, the petitioner complained about hearing voices and that

he was prescribed Elavil to “‘stop[] the voices.’” The petitioner reported to the evaluation

team that he had received treatment in an alcohol and drug program and that he was referred

for an inpatient evaluation. The petitioner told the evaluation team that he drank “hard

liquor” and that he had consumed two or three six packs of beer a day since he was seventeen

to eighteen years old. The petitioner also stated that he used “a hundred dollars worth of

crack [cocaine] and ten dollars worth of marihuana” and that he had abused Valium; the

petitioner did not reveal the period of time during which he used the drugs. The evaluation

team concluded that the petitioner was malingering. Lead counsel said that the defense team

was unable to find documentation to support the petitioner’s claims.

Lead counsel stated that when this court remanded the case for resentencing, the

petitioner agreed upon a sentence of life without parole rather than risk a death sentence.

Co-counsel testified that she was the head of the capital defender team, that the State

provided open-file discovery, and that she reviewed all discovery materials. She said that

lead counsel made the decision to have the petitioner evaluated and that she agreed with the

decision. She said that the defense team would have sought an independent evaluation if

they believed “it might garner different results.” Additionally, the defense team would have

sought expert assistance regarding intoxication

[i]f there had been more than just one incident of this

happening; it might have given us some basis; but there was no

indication of any history. We interviewed his family. It says

sometimes he got drunk but that he had no history of mental

illness, no history of drug abuse, no history of alcohol problems.

Just every now and then, he got drunk. So, this was all we had

to go on, plus the interviews of his family; so that didn’t really

steer us into any direction to where we needed to seek outside

help. I mean, there was no basis for anyone to evaluate him

other than this . . . one-day crisis thing that he went to.

Co-counsel acknowledged that the defense team put on proof about the petitioner’s

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intoxication on the day of the shooting but denied that counsel found any proof of a history

of alcohol abuse. She noted that although the evaluation report stated the petitioner had

abused alcohol, the defense team relied on information provided by the petitioner. Cocounsel stated that she was aware the petitioner “had [a] low I.Q. or . . . bad grades” but that

he seemed to understand the proceedings. She occasionally thought the petitioner tried to

“fake” mental problems “to fool us to try and get some type of defense.” However, the

petitioner had no difficulty communicating with the defense team.

At the conclusion of the hearing, the post-conviction court found that lead counsel’s

testimony was “very, very credible.” The court found that counsel was aware of Bowers’s

statement that the petitioner did not habitually drink alcohol. The court observed that “if

there’s no long-term usage, then, of course, the expert would be worthless. It could actually

work against him.” The court noted the difficulty of trying to second-guess the tactical

decisions made by counsel. The post-conviction court accredited counsels’ assertions that

there was no reason to call an expert on the effects of alcohol usage. The court found that

calling an expert on the effects of alcohol would have had no effect on the outcome of the

trial. The court found that the petitioner had failed to prove that counsel were deficient in

any respect. In fact, the court stated that “from all indications, they went above and beyond

and did their best to defend him.” Accordingly, the post-conviction court denied postconviction relief. On appeal, the petitioner contests this ruling.

II. Analysis

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unlessthe evidence preponderates against those findings. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

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purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Further, in the context of a

guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s

errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks

v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.

52, 59 (1985).

On appeal, the petitioner asserts that

trial counsel failed to fully investigate, prepare, develop[,] or

present[] evidence related to the short term and long term effects

of alcohol on the [petitioner’s] ability to form the proper intent

or mens rea for the offense of first degree murder. This includes

but is not limited to a failure to utilize expert assistance where

required.

Initially, we note that although the petitioner contends that trial counsel should have

called an expert on the effects of alcohol usage, the petitioner presented no such expert at the

post-conviction hearing. Generally, “[w]hen a petitioner contends that trial counsel failed

to discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,

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757 (Tenn. Crim. App. 1990). We may not speculate on what benefit an expert witness

might have offered to the petitioner’s case, nor may we guess as to what evidence further

investigation may have uncovered. Id. Accordingly, the petitioner has failed to demonstrate

prejudice in this regard.

Further, as the post-conviction court found, trial counsel decided that there was no

reason to hire an expert on the effects of alcohol usage. On direct appeal, this court

addressed whether the petitioner’s alleged intoxication prevented him from having the ability

to form the intent to kill:

The trial court admitted testimony regarding the [petitioner’s]

alleged use of alcohol prior to and immediately preceding the

offense and the court properly instructed the jury that voluntary

intoxication could negate the [petitioner’s] culpable mental

state.

Upon review, we conclude that the defense argument that

the [petitioner] lacked the requisite mentalstate for premeditated

murder is not persuasive. The only evidence of intoxication

prior to the offense comes from the testimony of Johnny

Montgomery. Johnny Montgomery, a lifelong acquaintance of

the [petitioner], testified that he observed the [petitioner] around

three o’clock on the afternoon of February 28, 2002, walking

down the street with a “quart of malt liquor.” Montgomery

stated that it was not usual for the [petitioner] to drink and that,

on this date, the [petitioner] appeared “[r]eal drunk.” The state’s

eyewitnesses at the scene of the shooting all testified that there

was no indication that the [petitioner] was under the influence

of an intoxicant. Rather, the eyewitnesses at the nursing home

all testified that the [petitioner] appeared “calm” and that he was

acting with a purpose. The witnesses who testified that the

[petitioner] appeared to have been drinking had only observed

the [petitioner] after the shooting occurred and they stated that

he was only “slightly intoxicated” and not to the point that he

did not know what he was doing. In addition, the [petitioner]

confessed responsibility for the victim’s death to the police and

did not admit to being under the influence of alcohol at the time.

State v. Franklin Fitch, No. W2004-02833-CCA-R3-DD, 2006 WL 3147057, at *16 (Tenn.

Crim. App. at Jackson, Nov. 2, 2006).

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Moreover, counsel testified that there was no proof, other than the petitioner’s claims,

that he had a history of alcohol abuse. Counsel stated that the petitioner had been found to

be malingering, and co-counsel noted that the petitioner occasionally seemed to be trying to

“fake” mental or substance abuse problems in order to establish a defense. The trial court

accredited thistestimony. Although counsel presented at trial proof regarding the petitioner’s

intoxication at the time of the shooting, the jury chose not to accredit the proof. The postconviction court found that counsel were not deficient. Nothing in the record preponderates

against this finding.

III. Conclusion

In sum, we conclude that the post-conviction court did not err in denying postconviction relief. Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________

NORMA McGEE OGLE, JUDGE

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