# FILED

July 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

BILLY JOE BOURFF ) ) NO. 03C01-9705-CR-00189 Appellant ) ) CAMPBELL CO UNTY v. ) ) HON. LEE ASBURY STATE OF TENNESSEE ) ) (Post Conviction) Appellee ) )

For the Appellant : For the Appellee : Douglas A. Trant, John Knox Walkup 900 S. Gay Street Attorney General & Repor ter Suite 1502 Knoxville, TN. 37902 Marvin E. Clements, Jr. (on post conviction) Assistant Attorney Gener al 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN. 37243-0493 William Paul Phillips District Attorney General Michael O. Ripley Assistan t District Attorney P.O. Box 323 Jacksboro, TN. 37757

OPINION FILED:_____________________ AFFIRMED WILLIAM M. BARKER, JUDGE2 OPINION The appellant, Billy Joe Bo urff, appeals as of right the Campbel l County Criminal Court’s dis missal of his petition for post-conviction relief. We affirm the judgment of the trial court. In 1991, the appellant was con victed by a jury

of first degree murder and w as sentenced to life in prison. Appellant’s conviction and sentence were affirmed by this Court on direct appeal. See State v . Billy Joe Bour

ff , No. 03C01-9305-CR-00162 (Tenn. Crim. App. at Knoxv ille, June 23, 1994), perm. app. denied (Tenn. May 8, 1995)(concurring in results only). The facts of appellant’s case were summarized in the direct app eal as follows: On July 17, 1990, the appellant, accompanied by his father- inlaw, Neal Perry, and his brother-in-law, Charles Perry, went to Zen’s Tavern to shoot pool. Also p resent in the tavern w as the victim, Leroy Baird. According to the state’s witnesses, the appellant arrived about 10:15 p.m. and played pool wi th his companions. Mr. Bai rd was seated at the bar eating beef stew and cornbread. The appellan t spilled Mr. Baird’s stew on the counter and Mr. Baird moved down a couple of stools. Witnesses testified that words were exchanged betw een the appellant and Mr. Baird, but that Mr. Baird apparently did not consider it a serious matter. The appellant immediately left the tavern and returned shortl y with his pistol, which he was carrying behind his back. He swung the gun around in front of him, telling Zen Hicks, the owner of the tavern, that he wanted to show him something. In so doing he pointed the gun directly at Mr. Baird. At that time Mr. Hicks told the appellant to leave and he did so. About a minute later Mr.Baird got up and walk ed out the door of the tavern. At that time one shot was fired by the appellant into Mr. Baird’s chest. The bullet passed through the “conduction path way” of the heart causing a condition the pathol ogist called “instant wipe-out” of the function of the human heart and Mr. Bair d died immediately. Accor ding to the appellant’s proof, the appell ant was feeding Mr. Bai rd the soup when he spilled some. Mr. Baird accused him of spilli ng the soup on purpose and words wer e exchanged between the appe llant and the victim. The appellant and hi s witnesses said that Mr. Baird was pull ing out a knife inside the tavern and that when he came outside, he was attacking the appellant with the knife. Therefore, the appellant shot him to keep from being cut. Althoug h the appellant’s father-in-l aw and brother-in-law sai d they saw the knife ins ide the tavern, the appellant testified that he never saw the knife until [the vict im] came out “cussing and raging.” An open pocket knife was found about one and one-half inches above the victim’s head. In addition, he had a pack of cigarettes in his hand and a cigarette betw een his fing ers. The shot was fired fr

om a3 distance of less than forty-eight inches from the surfa ce of the victim’s shirt. See id. slip op. at 1. On February 8, 1996, the appel lant filed a petition for post-c onviction relief allegi ng that the pros

ecution withhe ld excu lpatory

eviden ce at tr

ial in v iolati on of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.E d.2d 215 (1963), and that his tr ial counsel was ineffective i n failing to discover exculpatory evi dence and in failing to request a jury ins

truction on mutual combat. Appell ant had the burden of proving those allegations by c

lear and convincing e

vidence. See Tenn. Code Ann. § 40-30- 210(f) (Supp. 1996). The trial court conducted an evidentiary hearing and dismissed appellant’s petition upon finding that the i nformation withheld by the prosecution was not materi al under Brady

and that appellant’s trial counsel provided effective and competent assistance. We affirm the trial court’s findi ngs. I. The appellant first contends that the prosecu tion withheld exculpatory evidence at tria l in vi olation

of Brady v. Maryl and . This issue is without merit. At the evidentiary hear ing, the appellant introduc ed documents marked as exhibits one through thr ee to demonstrate a Brady violation. Exhibits one and two are jail intake records of the v ictim, Leroy Baird, dat

ed from 1983 until his death in 1990. The records reflect that Mr.Baird was arrested four teen (14) times for vario us criminal offenses including eight char ges of public drunkenness, si x charges of drivi ng on a revoked license, five charges of driving under the influence of an intoxicant (D.U.I.), two charges of resisting arrest, and two charges of possession of a contr olled substance. In six of the fourteen arrests, Mr. Baird w as in possession of a knife. Exhibit three is a li st of Mr. Baird’s conv ictions in the General Ses sions Court of Campbell County. The recor ds show that Mr. Bair

d was convicted of D.U .I. and driving without

a license in 1988, and public drunkenness in four separate cas es, with1 The 1989 convicti on for resi sting arr est arose fro m an incident i n which Mr. Bai rd was arrested for public d runke nness . The co nviction rec ord indica tes that M r. Baird kic ked a p olice office r and ha d to be forcib ly detained af ter the offic er cited him for public d runke nness

. 4 one case in 1989, also including a conviction of resisting arrest 1 and possession of marijuana. Additionally , he was indicted on tw o subsequent charges of D.U .I. and driving without a license; however, those charges were dismissed after his death in 1990. The appellant contends that he could have used that information, specifically the records of public drunkennes s and resisting arres

t, to show that Mr. Bai rd had a propensity to drink and become violent when intox icated from alcohol. He arg ues that the information would have s upported his theory that M r. Baird was the first aggressor who attacked him with a knife. The appel lant re lies upon the la ndmark c ase of Brady v. Maryl and , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),to assert that the State suppr essed the information in violation of due process. In Brady , the United States Supreme Court held that the prosecution has a c onstitutional duty to furni sh the defendant with any exculpatory evidence concerning the defendant’s guilt or innocence and possible punishment. See 373 U.S. at 86-87, 83 S.Ct. at 1196-97. To establish a violation under Brady , the def endant m ust prove b y a preponderance of the evidence that:(1) he requested the informati on (unless the evidence is obviousl

y exculpatory, i n which case the State has a duty to release the evidence whether req uested or not); (2) the State suppressed the evidence at trial; (3) the evidence was favor able to the defendant; and (4) the ev idence was material. See United State v. Bagley , 473 U.S. 667, 674-76, 105 S.Ct. 3375, 3379-80, 87 L.Ed.2d 481 (1985); State v. Edgin , 902 S.W.2d 387, 38 9-390 (Tenn. 1995).2 The exist enc e of a “reas ona ble pr oba bility” ce nters arou nd w heth er the cour t has conf idenc e in the verdic t of the cas e desp ite non-dis closure of the evide nce. See Bagley , 473 U.S . at 678, 10 5 S.Ct. at 3381. T he cou rt mus t view the su ppress ed evide nce co llectively in the con text of the e ntire reco rd to determ ine wheth er the evide nce is m aterial. See State v. Edg in , 902 S.W.2d 387, 389 (Tenn. 1 995) (citi ng United States v. Agurs , 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402, 49 L .Ed.2d 342 (1976)). 5 Evidence is material “ if there is a reasonable probabi lity 2 that, had the evidence been disclosed to the defense, the re sult of the proceeding woul d have been different.” See Kyles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Additionally , our state supreme court has held that when there has been a general request or no request for Brady information, the undisclosed evidence is material if it “creates a reasonable doubt that did not oth erwise exist.” See State v. Edgin , 902 S.W .2d 387, 389 (T enn. 1995) (quo ting United States v. Agurs , 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 3 42 (1976)). In appellant’s case, his tr ial counsel filed a pre-tr ial request for any information that might constitute Brady evidence. Although the S tate concedes that it never disclosed the information in ex hibits one through three, the State argues that the evidence is not material under Brady . We agree. The record reflects that the appel lant shot Mr. Baird at close range in the parking lot of Zen’s Tave rn. The appellant had returned to the tavern with his pistol after an earlier altercati on with Mr. Baird i nside the bar. At trial, the appellant presented evidence throug h eyewitness testimony that Mr. Baird attacked hi m with a knife moments before the shootin g. This Court reviewed that evidence in the direct appeal and concluded that there w as overwhelming pr

oof from which a rationale tri er of fact could reject the theory of self-defense and convict the appel lant of first degree murder. See Bourff , slip op. at 2. The appellant, nevertheless, argues that the information in exhibits one, two, and three would have str engthened his theory of self-d efense. We find, however, that even if th e inform ation were admissib le to show Mr . Baird’s c riminal h istory, particularly his alcohol related offenses, it has little probative value as to appellant’s guilt or innocence in the present case.3 Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).

4 The Strickl and standard has been appl ied to t he right to counsel under Articl e I, Secti on 9 of the Tenn essee Cons titution. See State v. Melson , 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. deni ed , 493 U.S. 874 (1989). 6 The jail intake reports r eflect that Mr. Baird had been ar rested multiple times for alcohol related offenses . Althou gh the r ecords show th at Mr. Baird pos sessed a knife during six of his fourteen arrests, and that he was cited twice for resi sting arrest, the evidence carries li

ttle probative value when weighed agai nst eyewitness testi mony from the scene of the shooting. Mor eover, we note that Mr. Baird’s convicti ons in the general se ssions co urt are a m atter of public rec ord and wer e not in th e exclusive control of the State. Therefore, the Stat e’s failure to disclose the conviction records was not a Brady

violation. See State v. Edgin , 902 S.W.2d at 389. In the context of the entire r ecord, the information in exhi bits one through three would not have created a reasonable doubt concerning whether the appellant committed first degree murder. W e are confident that the verdict in this case is correct and conclude tha

t the inf ormatio n was no

t materi al wit hin the m eaning of Brady

. II. The appellant next contends that he received ineffective ass istance of counsel by his trial counsel’s failure to obtain exculpatory evidence and to request a jury instruction on mutual combat. Thi s issue is without mer it. To prevail on a claim of ineffectiv e assistance of counsel in thi s proceeding, the appellant must show by clear and convincing evidence 3 that the advice or serv ices provided by his counsel fell below the range of competence demand ed of attorneys in criminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he must demonstrate prejudice by proving that, but fo r counsel’s incompetence, the result of his tr ial would have been different. See Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S .Ct. 2052, 2064, 2067-68, 80 L.Ed. 674 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985). 45 When a hom icide r esults fr om mutual combat or the excitement and heat of passi on therefrom, the crim inal offens e is volunta ry man slaughte r. See Hunt v. S tate , 303 S.W.2d 740, 742 (Tenn. 1 957) (citing 40 C .J.S. Homicide § 48(b), p. 912). “There must be a mutual intent ion to fi ght, and, it has been held, deadly or dangerous weapon s must be us ed.” See id. 7 The appellant first argues that his trial counsel failed to discover alleged exculpatory evi dence. He contends that if the State did not suppress the information in exhibits one throug h three, then his counsel w as ineffective in failing to obtain it. Evidence at the post-conv iction hearing consis

ted of appellant’s testimony and the testimony of his trial counsel. Appellant’s couns el testified that he conducted a pre-trial investi gation which include d interviews w

ith the appellant, his family , and officers at the Campbell County Sheriff’s Department. The record also reflects that counsel made discovery motions before trial, includ ing a request for any information that might be exculpatory of the appellant. From that investigation, appellant ’s counsel stated that he learned about the victim’s frequent consumption of alcohol. However, he testified that he did not know about the v ictim’s criminal his

tory until after trial. Based upon information obtained f rom the appellant and other eyewitnesses, appellant’s counsel establi shed a case on the theory of self-defense. Both the appellant and his counsel testified that they pursued th at defense in light of evidence that the victim approached appellant with a knife before th e shooting. The trial court reviewed the testimony and found nothing in counsel’s investigations that r ose to the level of ineffective assistance. That decision is conclusive in this proceeding and will not be overturned unless the evidence preponderates ag ainst the judgment. See State v. Buford , 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983), perm. app. denied (Tenn. 1984). From our rev iew of the record, we affirm the trial court’s finding and conclude that appellant’s couns el conducted a thorough inv estigation of the case. The appellant also alleges th at his counsel was defici ent in failing to request a jury instruction on mutual combat. 5 The record reflects that appell ant’s counsel never discussed mutual combat nor req uested a jury instruction on that defense at trial.8

However, the appellant admitted that the defense strategy from the beginning was to pursue a theory of self-defense. C ounsel testified that the self-defense theory was based upon appellant’s vers ion of the events preceding the shooting. The appellant told his counsel that there w as no mutual fight between hims elf and the victim, but instead, the victim follow ed him outside the tavern and at tacked him with a knife. The appellant further stated that his only fight with the

victim was the br

ief exchange of words inside the bar. Counsel’s decision to pur sue a theory of self-defense at tri al must be reviewed with deference and from the counsel ’s perspective at that time. See Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; Hellard v. State , 629 S.W.2d 4, 9 (Ten n. 1982). Every effort is made to avoid judg ing couns el’s perf ormance from hin dsight; h owever, we must ensure that the appellant w as afforded reasonably effective and c ompetent assistance at trial. See Hellard , 629 S.W.2d at 9. In that respect, we acknowledge that appellant’s counsel investigated the case and formulated a defense strategy b ased upon the facts and circumstances surrounding the shooting. The appellant’s position from th e first meeting with his counsel was tha t he shot the vic tim only to protect himse lf from th e alleg ed knife attack. The record, includi ng appellant’s own tes timony, reflects that there was no mutual fight between appellant and the victim at the time of the shooting. From our review, even if the evidence somehow warranted a jury charge on mutual combat, defense counsel’s failur e to request it does not r ise to the level of ineffective assistance. We conclude that the ta ctical decisions and ser vices provided by appellant’s counsel w ere well within

the standard demanded of attorneys i n criminal cases. Appellant’s contenti on is without merit. Based upon the foregoing, the ju dgment of the trial court is affirmed.

___________________________ WILLIAM M. BARKER, JUDGE9

CONCUR:

_________________________ JOSEPH M. TIPTON, JUDGE

_________________________ CURWOOD WITT, JUDGEIN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE JANUARY 1998 SESSION

BILLY JOE BOURFF ) ) NO. 03C01-9705-CR-00189 Appellant ) ) Campbell County No. 8815 v. ) ) HON. LEE ASBURY STATE OF TENNESSEE ) ) (Post Conviction) Appellee ) ) Affirmed )

JUDGMENT Came the appel lant, Billy Joe Bourff, by and thro ugh counsel , and also ca me the attorney general on be half of the State, and this case wa s heard on the record on appeal from the Criminal Court of Campbell County; and in con sideration thereof, this Court is of the opinion that ther e is no error in the judg ment of the trial court. In accordance with the opi nion filed herein, it is, therefore, ordered and adjudged that the judgment of the tr ial court is affirmed and the cas e is remanded to the Criminal Court of Campbell County for the execution of the jud gment of that court and for t he collec tion of t he costs a ccrued be low. Costs of appeal will pai d into this Court by th e appellant for which ex ecution shall issu e if nece ssary.

William M. Barker, Judge Joseph M. Tipto n, Judge Curwood Wi tt, Judge