### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 26, 2002
STEVE MASON v. STATE OF TENN ESSEE
Post-Conviction Appeal from the Circuit Court for Maury County

No. 8516 Jim T. Hamilton, Judge

No. M2002-00414-CCA-R3-PC - Filed September 2, 2003

The petitioner, Steve Mason, brings the instant appeal of the post-conviction court’s de nial of his petition for relief. The petitioner stands convicted of first degree murder and attempted first degree murd er. In thi s appeal , he alle ges tha t he is enti

tled to pos t-conviction relie f on the ba sis that t

h e facts introduced at trial are insufficient to suppor t his co nvictions and because he received inef fective assistanc e of tria

l counsel

. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is

Affirme d.

J ERR Y L. S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES and N O RM A M C G EE O GLE , JJ., joined.
Hershell D. Koger, Pulaski, Tennessee, f or the appellant, Steve Mason.

Paul G. Summers, Attorney General & Reporter; David H. F indley, Assistant

Attorney Gene

ral; and Mike Bottoms, District Attorney Ge neral, for the appellee, State of Tennessee.
OPINION

Factua l Background

When this Court reviewed the petitioner’s direct appeal of his convictions and sentence, we summarize d the facts of his ca se as follows:

On August 4, 1994, Timothy McGill and Jesse Tate Jones were shot
numerous time s foll owing a crap game which took place on Broa dway Avenue in Mt. Pleasant

. McGill suffered three g unshot wou

nds and died from the se injuries. Jones, McGil l's stepfather, was shot twice. After surgery and hospitalization, he recovered fully and suffered n o per manent injuries. Jones and other eye witnesses identified-2-

appellant as the assailant. Several day s after the incident, appellant turned himself in to authorities in Lou

isville, K entucky and was r eturned to this State for prosecution.

The State’s proo f demons trated th at shootin g dice, or “cra ps” as it is commonly

called, was play ed regularly in and around the Broadway Avenue area

of Mt. Pleasant. The location is a “hig h crime a rea.” On the eve

ning of A ugust 3, 1994,
a game began at about 8:00 p.m. and c ontinued well into the morn ing h ours of August 4, concluding around 3:00 a.m. The victims were in control of the game, at least one of them a

cting a s “houseman” of th e game at all time s. The “h ouseman” is the person who supplies the dice and oversees the betting. Throug houtthe ev ening, the game ha

d vary ing numbe

rs of par ticipants , including

as many as twelve people at one point. Appellan

t arrive d on Broa

dway around 1 1:00 p.m. and remaine d until the game’s conclusion, but he only participated in the game for a short while. He left the area once around 2:00 a.m. and wasgone f or about 2 0 to 30 minut

es. Upon his return, those present at the game noticed that appellant ha d changed clothes. Prior

to leavi ng, appella

nt had bee

n dresse d in light-colore d clothing , primari ly a whit e T

shirtand white pants, When he retur ned, he w as dress ed in all b lack, inc luding hi s shoes, sho

rts, shirt and jack et.

The testimony of Jesse Tate Jones, the surviving victim, revea le d that appellant was pr esent as the game bega n to draw to a close. Anthony Webster, appellant’s roommate and friend, had just lost a sum of money and declined to play the game any

longer. Jones urged Webster to continue play ing. Webster responded that he mi gh t p la y a gain tom o rrow. Jones replied, “It may not be no tomorrow.” Appellant then jumped up from where he was sitting, pulled o ut a gun a nd said, “That’s what I say, wo n’t be no to morro w.” He t hen be ga n firing the weapon. Appellant first shot Jones in the

jaw, who f

ell facedown on the

street. Appellant

then turned the gunon McG ill and sho t him once in the uppe

r portion of his che st, just below the neck. He immediately whirled back toward Jones and shot him again in the back of the neck, as Jones lay facedown on the street. By

that time, McGill had fled
on foot and was runn

ing down the stree t. Jones wat

ched ap pellant chase af

ter McGi ll, firing the pistol. Two shots struck McGill, one in the lower back and one ne arthe upper ar m. The men

disappea red fro m Jones’ sig

ht.

By then, all the remaining participants had left the scene. Fortunately , Jones
was able to walk to his truck parked nearby and drive the short distance to the police station. He reported the incident and was then taken t o th e hospita

l for tre atment. Jones testified that

no argument or cross words were exchanged

prior to th e shoo ting. He also st ated tha t appella nt’s wea pon looke d like a .2 5 calibe r automa tic pistol.-3- Th e testimony

of Terr ence Willi ams and V incent Wils on, who we re both eyewitnesse s to the shoo ting, su bst antiated the events detailed by Jones. Wilson addedthat he lost approximately $160 to McGill that night. He also stated that he ha d played the gam e for four or five hours that night and there ha d been no arguments or fights. Anthon y Webs ter, appellant’s roommate, testified in similar fashion. However, he stated that

he and appellant did not arrive on Broadwa y until after 1:00
a.m. when they

both got off work. He

further explained that appellant lost $30 in the game and then borrow ed mon ey from him, which he also lost. It was then that appel lant left and went home. He returned wear ing the black clothing. Webs te r likew ise de nied t hat an y argument occurr ed pri or to t he sho otin g.

Appellant’s uncle by marr iage, Vernon Johnson, Sr., also testified for the State. He repo

rted tha t appella nt appea red on hisdoorstep in the early morning hours of August 4, 1994. Appellant was very nervous and had a silver .25 caliber automatic pistol in his hands. He procee ded to tell Johnson t hat he ha d shot McG

ill and Jones

. Appellant then asked Johnson to he

lp him leave town. Johnson first declined, but was afraid for his family’s safe

ty and offe

red to take appellant wherever he ne eded to go. Johnson then took a

ppellant to Columbi a and left him there. He said that en route, they made one

stop and appellant disposed of the gun at another person’ s home.

Lawenforcement officials who investigated the crime scene discovered McGill’s body on the sidewalk of B roadway Avenue in front of a funeral home, ap proximatel y 230 to 240 feet from the place where the shooting began. The body
was found facedown

on the pavement and the victim was dead when officials arrived. A pair of green shor ts, la ter i dent ifie d as M cGil l’s, w ere f

ound n ext to the body. The pockets contained cigarettes, a lighte r, and 32 cents in change. McGill’s flip flops
were also recovered near the sce ne of the initial shooting. Bullet casings were found several feet from where the shooting began and one spent casing was also foundon the porch of the funeral

home. These were identified as having been fired from a .25 caliber firear m and all were fired from the same wea pon. The medical examiner reported at trial that McGill died from loss of blood, primarily

as a res ult of the f

irst gunsho t woun d whic h pier ced hi s right lung.

Alth ough appellant did not deny shooting the victims, his trial tes timo ny described a somewhat different turn of events. He stated that on August 3, he worked fr om 3:30 p.m. until 1:00 a.m. at Shipper’s Paper Products along with An thon y Webster. After work, someone drove him and Webster to Broadway where he then walked to his house nearby. He changed from his work clothes and put on blac k shoes, white soc

ks, black shorts, bl ack jacket, black shirt and black tobogg an.-4-

Appellant was car rying the w eapon with him at thi s time. He then proceeded to the crap game.

After arriving at the gam e, he watched for a while and noticed tha t a lot of cheating was occurring, accomplished by either Jones or McGill “switching the dice.” He testified that

everyone was losing money

to them. He departed the game, went home andprocured his owndice. Appellant then returned to participate in the game using his own dice. However, Jones and McGill refused to use his dice and he walkedup the street to the corner. After about five minut

es, appellant returned to the game to convince Jones and McGill to gamble with his dice. This time they a greed. Appell ant sta ted that he began to win some money . As a result, he claimed that McGill got angry , started cursing him and made derog atory comments about appellant’s father. While McGill was “y apping,” appel lant n oticed Jones was reaching around behind his back, which made appellant think Jones had a gun. Jones also comme nted to the eff ect that i f McGill tr

ied any thing he would “wa

tch his back.”

Appellant

testifi ed th at McGill started coming towards him and he was scared. He stated that he pulled out his pistol and j uststarted shooting; he remembers firing five

shots. Appellant denied chasing McGill with the gun, say ing instead that all the shots were fired in one location. He then ran down the street and duckedinto an alleyway

because he was a fraid Jone s was go ing to ru n over him

with his truck. A

ppellant insist ed that he shot Jones first because he thought Jones was reaching for a g

un. He al so explaine d that McG ill was well-known as a drug dealer who always c arried a gun.

On cross-e

xamination, appella

nt stated t

hat he too

k th e pistol with h

im to work that day and car ried it in h is right f ront pock et. He de nied go ing home

to get the gun, alleging instead

that he had it with him throughout the game. He also professed that the gun belong ed to Webster. Furthermore, he declared that Webster, Wilson and Williams could not have heard the arg ument bet ween him a

nd McGill

because they
were down the street when it happened. He also e xpressed h

is belief that Webste

r did nottestify

truthfull y a bout t he evening’s events. Specifically , he repudiated Webster’ s testimony

that he bo

rrowed money from him.

Under continued cross-e

xamination, appella

nt was una

ble to explain why the bulletcasin gs were found in different area s. However, he claimed that he sh ot McGill
as he r an a way b eca use he w as s car ed a nd h e “j ust com men ced to sho ot in g.” In ad dition, appel lant i nsis ted th at Jo hnson was mi stake n abou t him havin g the gu n-5-

when he asked for help because he thre w the gun “to a certain person” a s he ran from Jones’ truck. The State concluded it s cross- examination by introducing appe llant’s previous convictions: four convictions for aggrava

ted robbery

and two for attempted ag gr av at ed ro bb er y.

The manager of the temporary employment ag ency for w hom ap pellant
wo rked also testified. She introduced copies of appellant’s time records which reflected that on August 3, 1994, app ellant wo rked fr om 3:30 p.m. until 1:00 a .m. Fi na ll y, appellant recalled Anthony Webster to the stand to provide evidence of the victim’s reputation for

violence . Webster

also opine d that app ellant co uldnot have taken the gun

to work with him that d ay , and that he must have bro ught it ba ck to the game w hen he c hange d clothes

.

The jury re

turne d verdicts finding appellant guilty of the first degree premeditated

murder o f Timothy

McGill an d the atte

mp ted first degree murder of Jesse Tate Jones. It also imposed a $50,000 fine on the attempted murder conviction. Imme diately

thereafter, a jury

sentencing hearing wa s held for the murder conviction. The State sought

life imprisonment of appellant without the pos si bi li ty of par ol e. It in troduc ed evidence of two aggr avating circumstances: (1) that appellant wa s previous ly

convicted of one or more felonies involving the use of violence and (2) that the murder was committed during an attempted robber y or attempted murder. See Tenn. Code Ann . § 39- 13-204(i)(2), (7) (Supp.1996). Appellant presented a substantia l amount of

evidenc e inmitigation through the testimony of teachers and relative s. Although the jury f ound that both

aggravating f

actors were supported by the proof, it

neverth eless se ntenced appella nt to life i n prison. At a later sentencing hearing on the attemptedmurderconvicti on, the tr ial cour t sentenc ed appellant to sixty ( 6 0) year s as a career offende r and ordered that sentence be ser ved
consecu tively to the life

sentenc e and ap

pellant’ s previou s unserved sentenc es.

Statev. Steve Mason , No. 01C01-9603-CC-00103, 1997 WL 311900, at *1-*4 (Tenn. Crim. App. at Nashville, June 6, 1997) (footnotes omitted). After reviewing the merits of the issues raised by th e petitione

r in his direct appeal, we affirmed the judgment of the trial court. See id. at *1. The petitioner now appeals the lower c ou rt’s denial of his petition requesting post-conviction relief, arguing that the pos t-conviction court erred when it found that the petitioner rec eived effective assistance of cou nsel and t hat the petitioner’s challenge to the sufficiency of the evidenc e lacked merit because the issuehad been previously determined on direct appeal. After reviewing the record,
we find that the petition e r has failed to prove that he is entitled to relief; therefore , we affirm the judgmen t of the po st-convi ction cou rt.-6- Post-Conviction Standard of Review

The post-con

victi on co urt’s findings of fact are conc lusive on appeal unless the evidence preponderates otherwise. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will

afford those fin dings of

fact the weight of a jury verdict , and this Court is bound by the court’s f

indings unless the evidence in the record preponderates against them. See Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997) ; Al le y v . State , 958 S.W.2d 138, 147 (Tenn. Crim .App. 1997). Th

is Court ma

y not reweig

h or re- evaluat

e the evi dence, nor substitute its inferences for those drawn by the post-conviction court. See State v. H oneycutt , 54 S.W.3d 762, 766 (Tenn. 2001). Ho wever, the post- convicti on court’ s conclus ions of la w are re viewed u nder a pu rely de novo standard with no presumption of correctness. Se e Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001).
Sufficiency of the Evidence

The petitioner alleges that the post-conviction court errone ously found that the issue of

the sufficiency

of the e vi dence introduced at his trial to support a finding of preme ditation and de liberation was an issue that had been previously adjudicated in this Court’s disposition of the petitioner’s direct a

ppeal. The petitioner relies on Stephen Mi chael B ell v. State , No. 01C01-9304- CR-00130, 1994 W L 406168 (T enn. Crim. App. at Na shville, A ug. 4, 19 94) in supp ort of his argument that this Court may review the sufficiency

of the evidence in a post-conviction appeal.

When discussing the viability of a sufficiency challeng e on post-conviction review in Bell , we cited our earlier opinion of John Way ne Slate v . State

in which p etitioner Sl ate appealed the sufficiency

of the evidence t

o support h

is convic tions. See John Way ne Slate v . State , No. 03C01- 9201-CR-00014, 199 4 W L 149 170 , at *10 -*1 1 (T enn . C rim . Ap p. a t Kn ox vi ll e, A pr. 27, 199 4). In Slate we de termined that sufficiency of the evidence could be a valid subject for post-c onvict io n review because it implicated due process concerns. See id. However, if the issue has been waived
or previously determined, it is not within the scope of our post-conviction review. See id. at *10- *11. Petitioner

Slatechallenged the sufficiency of the sta te’s evid ence, a nd we re ached th

e merits of Slate’s sufficiency

challen ge bec ause the

issue had not been a

ddresse d in Slate ’s direc t appeal

. Se e id. at *5. Conversely, in Bell we found

that petit ioner B ell’s suf

ficienc y challeng e was not a proper subject for post-conviction r eview because the issue had been addressed in Bell’s direct appeal. See Stephen Mi chael B ell , 1994 WL 406168, at *4. Similarly, in the instant ca se, this Court specific ally

addressed the suffici ency of the evidence to support a finding of premeditation and deliberation in our review of the petitioner’s direct appe al.

Premeditation and deliberation are determinations for the jury and may

be inferred from the manner

and circumstances of the killing. State v. B ordis , 905 S.W.2d 214, 222 (Tenn. Crim. App.1995), perm. to appeal denied

(Tenn. 1995) (citation omitted). The proo f at tria

l supporte d these e

lements.-7-

In ev al ua ti ng th e s uf

fi ci en cy of the ev id ence, we are compelled to consider the evidence in the light most favorable to the State. Jackson , 443 U.S. at 319. The State’s theory of the c ase, credited by the j ury ’s verdict, was that appellant formed the intent to kill whe

n he lost hi s money

to the vic tims, whic h he belie ved was a result of their cheating. This proof of motive is relevant to an infer ence of premeditation and deliberation. Bordis , 905 S.W.2d at 222 (quoting 2 W. LaFave and A. Sco tt, J r ., Substantive Criminal Law § 7.7 (1986)). The State’s theory was that appella nt decide d to murde

r the vic tims, went

to his home , chang ed clothe s to reduce the likelihood of detection, procured a firearm to ac complish the task, an d then returned to the game. Facts about what the appellant did b e fore the killing which show he was engage d in planning activity a lso support an inference o f premeditation and deliberation. Id. See also Brown , 836 S.W.2d at 541 (recognizing that procuring a weapon to commit the homicide is circum stantial evidence of premeditation and deliberation).

Alth ough no quantifiable time is necessary , it is apparent that appellant ha d ampl e time t o reflect upon the intent to kill. At least twenty minutes pa ssed after h e obtained the gun and before he executed the pla n. We also find that the killing was committed with a coo l purpose . Althoug h the appe

llant test ified tha t he and Mc Gill exchanged

heated words, none of the ey ewitness es testif

ied to such a dis agree

ment. Their testimony reflected

that appellant acted wholly without provocation. Moreover, appellant’s conduct did not correlate wi th his theory of self -defense, thus y

ielding credence to the State’s theory. While we ca nnot infer premeditation and deliberation from appellant’s concealment of the weapon after th e shooting, concealment does contradict the appellant’s theory

of self-defense by

illus trating fear of detection. West , 844 S.W.2d a

t 151. Simila

rly , appella

nt’s eff orts to leave

town to avoid law enforcement

officials is contrary

to atheory of self

-defense. The jury’s g

uilty verdict discreditedappellant’s theory and demon stra tes th e ampl e evid ence su pport ing a finding of premeditation and deliberation. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).

Steve Mason , 1997 WL 311900, at *7. Because we specifically a

ddressed the issue no w raisedin the petitione

r’s post- convicti on appea

l, the suf ficienc y of

the evide nce to sup port a finding that the petitioner acted with premeditation and deliberation, this issue has be en previ ously determined. A ccordin gly , we will n ot revisit this issue u

nless our finding was clea rly errone ous. See State v. D elk , 692 S.W.2d 4 31, 438 (T enn. Crim. App. 1997 ); Darnell Gentry v. State , N o. 02C01-9604-CC-00115, 1997 WL 195473, at *1 (Tenn. Crim. App. at Jackson, Apr. 23, 1997) (citi ng Delk

for same proposition).
Our finding is not clearly e rroneous and is supported by the record. The evidence, viewe d in the light most favorable to the state, establishes that the petitione r lost mone

y while gamblin g with the victims and then went home, cha

nged in to dark clothing, procured a wea pon, and returned to the game in order to shoot

the victims who were the proprietors of the gambling enterprise. We find

that-8-

these facts, which have been incorporated into our thorough review of the issue in our disposition of the petitioner’s direct appeal, amply support a finding that the petitioner acted withpremeditation and after deliber ation. Thu s, we will not disturb o ur findin g, and t

his issue isnot a cognizable c laim for post-conviction review.

Effectiveness of Assistance of Counsel

The petit ioner al so challe

nges the effec tiveness of the as sistance provided by h is trial counsel

. The petitioner alleges that his counsel’s pre-trial statements to the trial court reflect both an ina

bility to z ealously

represent him and a resulting inherent conf lict of interest. When a petitioner seeks post-conviction relief o n the basi s of inef fective assistanc e of coun sel, the petitioner bears the burden of showing that (a) the services rende red by trial c ounsel were deficient and (b) that the d eficien t performance

was prejudicial. See Powers v. State , 942 S.W.2d 551, 558 (Ten n. Crim. App. 1996). In order to demonstrate deficient performanc e, the petitioner must show that the services rendered
or the advice given was below “the ra ng e o f c om pe te nc e d em an de d o f a tt or ne ys in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate pr ejudice, the petitioner must show that

there is a r easonable probability that, but for counsel’s deficient performance , the result of the proceeding would have been d ifferent. See Strickland v. Washington , 466 U.S. 668, 694 (1984). “Becau se a petitioner mus t establis h both prongs of the test to pre

vail o n a claim o f ineffective assistance of counsel, failure to prove either de ficient performance

or resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley , 960 S.W.2d at 580.

As noted abo ve, this Cou rt will af ford the post-con viction c ourt’ s fac tual findings a presumption of cor

rectn ess, rendering them conclusive on appea l unless the record preponderates agains tthe court’s findings. See id. at 578. Howeve r, our sup reme court has “determined that issues of deficient performance by

counsel and possible prejudice to the defense are mixed questions of

law and fact . . . ; thus, [appellate] rev iew of [these issues] is de novo” with no presumption of correctness. Burns , 6 S.W.3d at 461.

In his argument of this issue, the petitioner cites a portion of the recor d in which his trial counsel requested

that she be allowed to withdraw from her representation of the petitioner, citing hi s u nwillingness to accept her legal a dvice as the basis for a dy sfunctional working relationship. The petitioner then argues that counsel’s comments r eflect h er inabi lity

to zealous ly r

eprese nt him and that her feelings towards hi m u lt im at el y re su lt ed in a c on fl ic t o f i nt er es t, na me ly a conflic t with her duty to the petitioner, i.e. “to act in [his] best interests.”

We first note that

while the petitioner

cites to a portion of the record reflecting his counsel’s p re-trial request to withdraw her representation, the petitioner doe s not allege how his cou nse l performed

deficiently or how , but for her deficient performance , the result of his trial would have been different. See Strickland , 466 U.S. a t 694; Baxter , 523 S.W.2d at 936. A ccordingly , the defendant has failed to meet the required burden for a grant of post-conviction

relief. See Henley , 960 S.W.2d at 580.-9-

Moreover, while the

petitione r alleg es that his counsel’ s r emarks indicate that she had a conflict of

interest with regard

to her representation of him, he has failed to prove that his counse l
was “actively r

epresenting divergent intere sts.” Cuyler v. Sullivan , 446 U .S. 335, 348 -50 (1980) (holding that an accused must establish that his or her counsel was “actively representing diverge

nt interests,” that the conflic t was act ual, not hy

pothetic al, and th at the co nflict of interest “adver sely affected his [or her

] lawyer’s pe

rforman ce” in or der to establish a constitutional depriva tion). While counsel announced that she would find a working relationship with the petitioner difficult based on his refusal to accept her leg al advice, nothing in the record demonstrates that counse l abandoned her duty to zealous ly

represent the petitioner during his trial. Without such a showing, the petitione r is not entitled to an assumption that he was prejudiced by his counsel’s representation. See id.
Thus, because thepetitioner has failed to demonstrate prejudice and because this case does not warr ant an assumption of prejudice, we find that the petitioner’s alleg ation that he re ceive d ineffe ctive as sistance

of counse

l lacks me

rit.

Conclusion

For the foregoing reasons, we find that none of the petition er’ s allegations merit relief. Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE