### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y 2, 200 6

MITC HELL BOWER S v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -24463 Car olyn Wad e Blackett , Judge

No. W2005-01051-C CA-R 3-P C - F iled Novem ber 7, 2006

The pe titioner, Mitchell Bowe rs, was c onvicted of f irst d egr ee m u rder

and sente nced to life imprisonment in 1997. He appea ls the denial of his post-conviction petit ioner in which he asserted that tr ia l c ou ns e l w a s in e ff e c tiv e in: (1 ) fa ili ng to a dv ise him that he wa s n ot r e qu ir e d to te sti fy in his ow n b e ha lf

a t tr ia l, a nd(2 ) f

a ili ng to d isc los e that c ou ns e l ha d p re vio us ly re pr e se nte d th e vic tim

. Up on re vie w, we c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate a g a ins t th e fi nd ing s o f the po stc on vic tio n c ou rt ; th e re fo re , w e a ff ir m.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OHN E VE R E TT W I L L I AMS , J
., delivere d the opi nion of t he court, in which T H O M A S T. W O O D A LL and J.C. M C L IN , J J ., joined.

Rob e rt B . G a ia , M e mph is, Te nn e sse e , f or the app e lla nt, Mit c he ll B ow e rs

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vid H. F ind le y , Ass ist a nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; an d Gail Vermaas, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Fa cts and Proce dural History

The pe titioner was convic ted of fir st deg ree murder in 1997. This c ourt rela ted the proof of g uilt in S tate v. B ower s, No W1999-01868-CCA-MR3-CD, 1999 Cri m App L EXI S 1294 (Tenn. Crim. App. Dec. 27, 1999) . The pe titioner filed a pe tition for post-conviction relief on J anuary

16, 2001. Counsel was appointed, a nd a hea ring was c onducted o n t h e p eti tioner’s c laims. The trial court de nied the petition by order enter ed Mar ch 18, 2005, and this appe al followed.

During the po s t -c o n viction hear ing, the petitioner testified that his trial counse l had previously

rep re sented him on other c harg es. He said that he did not g et a c opy of his indictment-2-

and that it was never rea d or shown to him. He further testified that his counsel neve r discussed the fa c ts o f the c a se wi th h im n or didhe te ll h im the y

we re g oin g to t

ri a l. H e sa id tha t tr ia l c ou ns e l to ld h i m t h a tt h e S t a t e w a s o f f e r i n g a p l e a t o v o l u n t ar y m a n s l a u g h t e r w i t h t h r e e t o s i x ye ar s a tt h i r t yperc ent as a

Class E felony . He sa id that this wa s offe red beca use it wa s his f

irst f elony and he had been in no major

trouble. He told counsel that he wa nted to acc ept the State’s of fer and that he kne w nothing a bout a trial until the day

it beg an. He claimed that he was not aw are of a suppr ession motion and did not re member be ing pr esent for the suppression ar g ument. He sa id that counsel slept while the trial wa s g oing on. H e also said c ounsel did not a sk any “main” questions of him during his te sti mon y

. He re c a lle d tha t the tr ia l las te d fr om thr e e to fo ur ho ur s and a lun c h bre a k. He sa id that counsel called only his e x -mother- in-law and himself as witnesses in his de fense . He c laimed that he knew nothing of

his right a g ainst self-incrimination.

He sa id that after

his conviction, he conta cted c ou n s e l re g arding his papers but ne ver r ece ived them. He also said counsel tol d him to have someone from the public def ender ’s offic e to g et the paper s for him. He sa id counsel came t o visit him on May 5, 1998, and tol d him he felt g uiltyfor

no t pro pe rl y re pr e se nti ng him be c a us e he wa s usin g dr ug s a nddr inking du ri ng the tim e of his tr ia l. He sa id tha t th is v isi t w a s th e la st c on ta c t he ha d w ith c ou ns e l.

On cr oss-examination, he testified that counsel had repr esente d him during his divorce a nd

on oth e r mis de me a no r c ha rg e s. He sa id he wa s no t dis app oin te d wh e n c ou ns e l w a s a pp oin te d to him beca use he ha d been pleased with his repr esenta tion in the past. He reca lled that counsel onlymade four objec tions during the tr ial and said t h at he did not t alk to him about testify ing. H e acknow ledg ed that he voluntarily went t o the police a nd g ave a statement on the morning of the murder. D uring redire ct, he sa id that counsel only slept throug h part of the trial.

Next, the petitioner’s sister, Ella L eake , testified that counse l told the family that there was

a n o ff e r of thr e e to six y e ars a ndthat th e re wo uldbe no tr ia l. S he sa id tha t c ou ns e l to ld h e r this in his office and at the c ourthouse. She also said she knew counsel visited the apartment above he rs

a t a tim e wh e n th e oc c up a nts so ld drug s. On c ro ss- e xami na tio n, sh e sa id tha t c ou ns e l to ld the fa mil y the S tate would offe r t hree to six y ear s. She also said that she had no pe rsonal knowledg e of c ounsel

abu sin g dr

ug s o r a lc oh ol.

Op he lia P a y n e , a n o t h e r s i s t e r o f t h e p e t i t i o n e r , t e s t i f i e d t h a t c o u n s e l t o l d t h e f a m i l y no t to worry beca use t he petiti oner would rece ive an of fer of three to six y ear s and that there would be no
tr ia l. S he sa id the re wa s no he dg ing in c ou ns e l’ s wo rd s. She te sti fi e d that be c a us e sh e op e rate s a homeless shelter f

or women w ith d rug and alc ohol addiction and seve re me ntal illness, she has

re c e ive d tr a ini ng thr ou g h th e She lby Cou nty Cor re c tional Dep art me nt o n h ow to d e te rm ine if someone is under

the influenc e. She testified that she was tra ined to judge a person’s appe ara nce including d il a te d e y e s , s lu g g is h s p e e c h
, a n d e rr a ti c b e h a v io r

. Sh e s a ids h e h a d f iv e to s ix y ear s experience but the post-conviction court did not qualify h er as an ex pert. She said that she asked counsel a bout the six -y ear

offe r at co u rt and that he told her they would “just see what happens.” She sa id o n th e se c on d d a y of tr ia l, c ou ns e l see me d “d ist a nc e (s ic )” a ndsh e sa w h im n oda c ou ple-3-

tim e s li ke he wa s f

a ll in g as lee p. S he b e lie ve d h e mig ht h a ve fa lle n a sle e p f ou r t ime s. On c ro sse xami natio n, sh e sa id sh e re c e ive d he r tr a ini ng thr e e y e ars a g o, wh ic h wa s a ft e r the pe tit ion e r’ s tria l.

Next, trial counsel testified t h at he could not off er a n explanation for why the witnesses

wo uldsa y

wh a t the y sa id. He sa id he did no t us e dr ug s a nd he wo uld no t ha ve sle pt du ri ng a tr ia l. He sa id that he knew the petitioner a nd the victim because they patronized a c lub that he owned. H e did not reca ll the suppression hearing or whether the petitioner was prese nt during the hearing. H e said that he did not tell the family about a plea

offe r bec ause the re ne ver w as an of fe r from the prosec ution. He said it was not t he policy of the district attorne y ’s offic e to make of fer s on char g es

o f f i r s td e g r e e m u r d e r

. H e c o u l d n o tr e c a l l a d v i s i n g t h e p e t i t i o n e r t h a th e d i d n o th a v e t o t e s t i f y.

On cr oss-examinati o n he said that he had bee n prac ticing la w for twe nty -five to twe nty -seve n y ear s and that this wa s the first murder trial that he lost. He sa id the petitioner wa s a g ood man who made some mistakes a nd he fe lt bad for him and wished him we ll. He sa id no plea off er w as eve r

ma de a ndhis on ly

e xpla na tio n f

or the ir re c oll e c tio n o f thr e e to s ix y e ars was his dis c us sio ns wi th the m r e g ard ing the po ssi ble ra ng e s o f p un ish me nt. He sa id th at he be lie ve s it is “ a lw a y s b a d” to allow a de fenda nt to testify . He r eca lled that the petitioner insisted that he c all the forme r in-laws beca use the pe titioner believed tha t they would testify on his be half. They did not. Counsel sa id that he neve r smoked cra ck, never fell aslee p, was ha ndicappe d only by the fa cts, and rig ht or wrong , he likes to win.

Du ri ng re dir e c t, h e te sti fi e d th a t th e vic tim wa s c ho ke d w ith a

ro pe

. He sa id tha t se lf

-d e fe ns e is alway s an option in a murder c ase. H e said that he called the ex-mother-in-law at the petitioner’s insistence. He called he r without speaking to her pre viouslybeca use the pe titioner reque sted that she testify . He a lso said he should have f urther pur sued the potential c onflict issue.

The State’s only

witness was J. R obert Carter, Jr., the lead prose cutor during the trial. He testified that there was no p l ea of fer of involuntary

manslaug hter. He said that counsel’ s actions

wer e g ood during the trial and tha t he wo rk ed t o s h o w a lesser char g e to the jury

on his client’s behalf . He ne ver fe l t t h at co unsel was inattentive or impaired. He said that it was his duty as an offic e r o f th e c o u r t to n o ti f y th e c o u r t if h e f

e lt a n a tt o r n e y w a s imp a ir e d

. T h e p e ti tioner did not

cross-e x amine the witness, a nd the Stat e rested its proof. The court took the matter under advisement to issue written f indings in the futur e.

By wr i t t en o rd er en t er ed M ar ch 1 8
, 2 0 0 5
, t h e po s t -c o n v i ct i o n co u rt i s s u ed wr i t t en fi n d i n gs deny ing the petition for post-conviction re lief. The post-c onviction court found that the pe titioner failed to prove his alleg ations of fa ct by cl ea r an d convincing evidenc e to sustain any relief . The court spec ifically

found that ea ch of the petitioner’s c laims of ineffe ctive assistanc e of c ounsel wer e without merit. The court determined tha t the petitioner did not car ry his burden of proof by

showing that a ple a of fe r e xiste d o r tha t c ou ns e l di d n ot i nf or m hi m of

his ri g ht n ot t o te sti fy . T he po stconviction court addre ssed the i s sue of a potential conflict of inter est due to counse l’s prior repr esenta tion of the victim. Howeve r, the post-c onvicti o n court de nied re lief bec ause it wa s not raised in the pe tition and the petitioner “failed to proff er an articula te ar g ument able to be pr oved by-4-

c le ar an d co nv inc ing e vid e nc e .” Th e tr ia l c ou rt de nie d r e lie f o n o the r g ro un ds tha t are no t r a ise d in this appeal.

An a ly sis

On appe al, the pe t i tioner conte nds that the post-conviction court erre d in deny ing r elief based on: (1) ineffe ctive assistanc e of c o u n s el
, an d (2) f ailure of counsel to disclose his prior repr esenta tion of the victim. The post-conviction jud ge’ s finding s of fa ct on post-conviction hearings ar e conclusive on appe al unless the evide nce pr eponder ates other wise. State v. B urns, 6 S.W .3d 453, 461 (Tenn.1999) . Those finding s of fa ct ar e af forde d the weig ht of a jury verdic t, and thi s c ou rt is b ou ndby

tho se fi nd ing s u nle ss the e vid e nc e in the re c or d pre po nd e rate s ag a ins t th os e finding s. Henley

v. State, 960 S.W .2d 572, 578 (Tenn.1997) ; Alley v. State, 958 S.W .2d 138, 147 (T e nn . Crim. Ap p. 19 97 ). Th is co urt ma y no t r e we ig h o r r e e va luate the e vid e nc e no r s ub sti tut e its infere nces f

or those dra wn by

the post-conviction court. State v. Honey cutt, 54 S.W .3d 762, 766 (T e nn .2 00 1) . H ow e ve r, the po st- c on vic tio n c ou rt ’s c on c lus ion s o f l a w a rere vie we d u nd e r a

pu re ly de novo standa

rd with no presumption of co rre ctness. F ields v. State, 40 S.W .3d 450, 458 (Tenn.2001)

.

This court re views a claim of ineffe ctive assistance of counsel under the standards of Ba x ter v. Rose, 523 S.W .2d 930 (Tenn.1975) , and Strickland v. Washing ton, 466 U.S.668, 104 S. C t. 2052 (1984). The petitioner has the bur den to pr ove that the attorney ’s perf ormanc e was de ficient a nd that the de fi c ie nt p e rf

or ma nc e re su lte d in pr e

jud ic e to the de fe nd a nt s o a s to de pr ive him of a fa ir tr ia l. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W .2d 363, 369 (Tenn.1996) ; Butler v. State, 789 S.W .2d 898, 899 (Tenn.1990) . Th e fa i l u re t o prove e ither def iciency or prejudice justifies denial of re lief; there fore , the c o u rt need not a ddress the c omponents in any pa rt ic ula r o rd e r o r e ve n a dd re ss b oth if on e is in su ff

ic ie nt. Go a d, 93 8 S. W.2 d a t 37 0. I n o rd e r t o establish prejudice , the petitioner must establish a “r easona bl e p ro b ab i litythat, but for counse l’s

un pr of e ssi on a l e rr or s, the re su lt o f the pr oc e e din g wo uldha ve be e n d if fe re nt. A r e a so na

ble pr ob abil ity

is a pr ob abil ity

su ff ic ie nt t o u nd e rm ine c on fi de nc e in the ou tc ome .” Str ic kla nd , 4 66 U. S. at 694, 104 S. Ct. at 2068.

The test in Tenne ssee to dete rmine if counse l provided ef fec tive assistance is whether his or he r p e rf or ma nc e wa s w ith in the ra ng e of c omp e te nc e de ma nd e d o f attor ne y s in c ri min a l c a se s. Ba x ter, 523 S.W.2d at 936. The petitioner must overc ome the pre sumption t hat counse l’s conduct falls within the wide ra ng e of a cce ptable prof essional assistance . Strickland, 466 U.S. at 689, 104 S. Ct

. at 2065; State v. Honey cutt, 54 S.W .3d 762, 769 (Tenn.2001) . There fore , in order to pr ove

a defic iency
, a petitioner must show “that counsel’s acts or omissions wer e so serious as to f all below an objec tive standard of

rea sonablene ss under prevailing profe ssional norms.” Goa d, 938 S.W .2d at 369 (c iting Strickland, 466 U.S. at 6 8 8
, 1 0 4 S

. C t . at 2065). I n revie wing counsel’s c onduct, a

“ fa ir a sse ssm e nt .

. . re qu ir e s th a t e ve ry e ff ort be ma de to el imi na te the dis tortin g e ff e c ts o f h ind sig ht,
to rec onstruct the cir cumstance s of counse l’s challeng ed conduc t, and to eva luate the c onduct from counsel’s pe rspec tive at the time.” Nic hols v. St ate, 90 S.W.3d 576, 587 (Tenn.2002) ( ci t ing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fa ct that a particula r strateg y or tactic f

ailed-5-

or hurt the de fense does not, standing alone, e stablish unreasona ble re pre s entation. Howe ver, defe renc e to matters of

str ateg y and tac tical choice s applies only if the choic es ar e informe d ones based on adequate prepa

ration. Henley v. State, 960 S.W .2d 572, 579 (Tenn.1997) ; H ellard v. State, 629 S.W .2d 4, 9 (Tenn.1982)

.

Her e, the pe titioner arg ues that he w as denie d eff ective assistance of counsel a nd claims that he wa s ne ve r a dv ise d of his c on sti tut ion a l ri g hts c on c e rn ing se lf -i nc ri min a tio n. Ho we ve r, he fa ils to present an y p ro o f other than his own testimony to support this arg ument. The post-c onviction

c ou rt he ld tha t th e pe tit ion e r did no t pro ve by c le ar an d co nv inc ing e vid e nc e that cou ns e l f a ile d to inf or m hi m of

his ri g ht n ot t o te st if

y

. I t re lie d o n c ou ns e l’ s te sti mon y that it wa s h is p ra c tic e to inform def

endants of this rig ht despite t he fact t hat he had no independe nt rec ollection of informing the petitioner of hi s ri gh t not to testify . The pe titioner has pre sented only his own testimonyas proof. The trial court a ccr edited the testimony of counsel, a finding of fac t w hich is conclusive on appea l because the fa cts do not preponde rate otherwise. See Henley , 960 S.W .2d at 579.

Next, the petitioner arg ues that counsel was ineffe ctive for repr esenting the petitioner a fter previously

repr esenting the victim. H e maintains that counsel “we nt thr oug h the motions of counsel without pay ing attention to the de tails of eff ective counsel on his client’s beha lf.” How ever , he does

no t pr e se nt a ny pr oo f or a uth or ity to su pp ort his c la im of ine ff e c tiv e a ssi sta nc e

. Th e tr ia l c ou rt he ld that the petitioner fa iled to “proff er a n articula te ar g ument able to be pr oved by clea r and c onvincing evidenc e.” We c onclude that the e vidence does not preponde rate agai n st the findings of the trial

c ou rt , a ndwe a ff

ir m.

Th is c ou rt

ha s lo ng fo llo we d the po sit ion that in e ff e c tiv e a ssi sta nc e of

c ou ns e l ma y

re su lt i f

c ou ns e l’ s p e rf

or ma nc e is af

fe c te d by a c on fl ic t of inte re sts

. Str ic kla nd , 466 U. S. a t 69 2, 10 4 S. Ct. at 2067. Prejudice is presumed i f t h e d ef en d ant i s able to demonstra te that an a ctual conf lict of interest adve rsely

aff ecte d the per formanc e of his attorne y . I d., Netter s v. State, 957 S.W .2d 844, 847 (Tenn. Crim. App. 1997) . For the petit ioner to preva il based on a conflict of i ntere st, the conflict must be actua l and sig nificant, not irrel ev an t o r “merely hypothetical.” H owar d Clifton Kirby v. S tate, No. 03C01-9303- CR-00074, 1994 Tenn. Crim. App. LEXI S 625, at *4 (Tenn. Crim. App., Knoxvi lle, Sept. 28, 1994), perm. a pp. denied ( Tenn.1995).

Her e, no proof ha s been pr esente d to demonstrate that a n actua l and sig nificant c onflict of interest existed. The petitioner testified at the post-conviction hea ring that, initially , he hire d counsel befor e he w as eve ntually

appointed to him. Furthe r, the pe t i t i o n er s t ated that he was plea sed that counsel wa s ap p o in te d to h im b e c a u s e h e h a d b e e n p le a s e d w ith h is p r io r r e p r e s e n tati o n

. The p e ti ti o n e r h a s faile d to s h o w th a t a n y c o n f li c t a d v e r s e ly

a f f e c te d h is c o u n s e l’ s p e r f

o r ma n c e

. We

a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

.-6- Conclusion

F or the fo re g oin g re a so ns a ndthe reco rd as a wh ole , w e a ff

ir m th e jud g me nt o f the po stc on vic tio n c ou rt

.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE