William E. Blake, Jr. v. State of Tennessee

                                                                                             12/27/2022
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 20, 2022

             WILLIAM E. BLAKE, JR. v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                No. 103710 Bob R. McGee and Kyle A. Hixson, Judges
                       ___________________________________

                             No. E2022-00125-CCA-R3-PC
                        ___________________________________


William E. Blake, Jr., Petitioner, claims that he is entitled to post-conviction relief because
he received ineffective assistance of counsel and because the jurors in his trial were not
impartial and were influenced by their fear of the victim’s family. Following a hearing on
the merits, the trial court dismissed the Petition. Discerning no error, we affirm.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TOM GREENHOLTZ, JJ., joined.

Bailey M. Harned, Knoxville, Tennessee, for the appellant, William E. Blake, Jr.

Jonathan Skrmetti, Attorney General and Reporter; Jonathan H. Wardle, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                  Procedural Background

       We glean from the record in the direct appeal that the Knox County Grand Jury
indicted Petitioner for first degree murder in Count 1, aggravated assault in Count 2,
possession of a handgun after having been convicted of a felony drug offense in Count 3,
and possession of a handgun after having been convicted of a felony involving the use of
a deadly weapon in Count 4. State v. William E. Blake, Jr., No. E2012-02268-CCA-R3-
CD, 

, at *1 (Tenn. Crim. App. Sept. 6, 2013), perm. app. denied (Dec.
10, 2013). On June 24, 2009, a Knox County jury convicted Petitioner of second degree
murder, aggravated assault, and possession of a handgun after having been previously
convicted of a felony drug offense. The trial court sentenced Petitioner as a Range II
offender to thirty-five years at 100% service in Count 1, six years at 35% service in Count
2, and four years at 35% service in Count 3. Count 2 and Count 3 were ordered to be
served concurrently with one another, but consecutively to Count 1, for a total effective
sentence of forty-one years to be served in the Tennessee Department of Correction. 

At trial, Petitioner was represented by trial counsel and co-counsel. Co-counsel was
appointed thirty-nine days before trial to assist trial counsel. Co-counsel handled the direct
appeal. 

 Trial counsel and co-counsel jointly will be referred to as “Counsel.”

      The following summary of the evidence is quoted from this court’s direct appeal
opinion:

               The offenses at issue occurred as the result of an argument that
       developed during a card game hosted by [Petitioner] at a friend’s home.
       After a verbal altercation with one of the guests, [Petitioner] left the premises.
       [Petitioner] returned shortly, and the shooting victim, Nicholas Gillis, who
       lived in the home, approached [Petitioner] about the previous argument.
       [Petitioner] ultimately shot the victim three times, once in the lower leg, once
       in the arm, and once in the face. [Petitioner] testified that he was acting in
       self-defense and did not shoot directly at the victim. On his way out of the
       home, [Petitioner] brandished his weapon at another guest.

       ....

       In this case, the testimony of all the eye[]witnesses, including [Petitioner],
       established that [Petitioner] shot the victim with a gun. Multiple witnesses,
       including [Petitioner], also testified that [Petitioner] pointed a gun at Mr.
       Porter. The evidence of guilt was overwhelming.

Id. at *9, 13.

                            Petition for Post-Conviction Relief

       On June 5, 2014, Petitioner filed a pro se Petition for Post-Conviction Relief (the
Petition), claiming that the trial court illegally enhanced his sentence, that there was
insufficient evidence to convict him of second degree murder, and that a conviction for
both second degree murder and assault violated double jeopardy. On July 1, 2014, then
Criminal Court Judge Bob R. McGee, who had presided over the jury trial and sentencing,
appointed post-conviction counsel for Petitioner and set an evidentiary hearing for October
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22, 2014. The State filed its answer on July 11, 2014. The next document in the record on
appeal is Judge McGee’s April 27, 2018 order addressing Petitioner’s “Motion for
Determination of the Status of the Motion to Remove [Post-Conviction] Counsel of Record
and Appointment of New [Post-Conviction] Counsel.” Petitioner’s motion is not in the
record. The order noted that the post-conviction hearing was set for May 16, 2018, and
that the court would address the appointment of new post-conviction counsel at that time.
The appellate record does not include any order from a May 16, 2018 hearing.

        On May 24, 2021, Criminal Court Judge Kyle A. Hixson entered an order setting
the case for hearing on September 16, 2021. The order noted that no amended petition had
been filed and provided “that [post-conviction] counsel for [P]etitioner SHALL, no later
than August 6, 2021, file an amended petition or a written notice that no amendment will
be filed.” (Emphasis in original). On August 6, 2021, post-conviction counsel filed an
amended petition, claiming that Counsel were ineffective by failing to (1) file a motion to
continue his trial which resulted in Counsel’s not being adequately prepared for trial; (2)
renew the motion for mistrial after the trial court’s “attempt at a curative instruction”
concerning an “outburst” by a member of the victim’s family during trial; (3) include the
mistrial issue in his motion for new trial; (4) raise the sufficiency of the evidence to support
aggravated assault in the motion for new trial; and (5) raise in the motion for new trial the
trial court’s denial of Petitioner’s attempt to introduce evidence of the victim’s character
following testimony by a State’s witness that the victim was a “good man.” Petitioner also
claimed that trial counsel, who was disbarred in 2014, engaged in conduct involving
dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration
of justice. Finally, Petitioner claimed he was denied an impartial jury because the jurors
were afraid of the victim’s family.

                                  Post-Conviction Hearing

       Petitioner did not present any witness testimony at the post-conviction hearing,
relying instead on two exhibits: (1) a docket report from trial counsel’s Chapter 7
bankruptcy proceeding filed on April 9, 2009, and closed on March 20, 2010; and (2) a
copy of the Board of Professional Responsibility’s “Findings of Fact, Conclusions of
Law[,] and Judgment,” filed September 11, 2014, disbarring trial counsel for submitting
false billing statements to the Administrative Office of the Courts regarding work
performed on appointed criminal cases in 2009 and 2010 and for lying about his gross
income in his bankruptcy petition. Petitioner claimed that he was unable to locate trial
counsel for his post-conviction hearing.

      The State called co-counsel, who testified that he had practiced primarily criminal
defense law for approximately thirteen years and had tried twenty-five to thirty jury cases
when he was appointed on May 14, 2009, to assist trial counsel with Petitioner’s case. Co-
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counsel said that Petitioner had already “gone through two other attorneys” before trial
counsel was appointed and that Petitioner’s case was set for trial when he was appointed.

        Co-counsel said that the trial court expected both him and trial counsel to represent
Petitioner at the trial. Co-counsel and trial counsel met with Petitioner’s prior attorney and
discussed the case “at length” with him. Petitioner’s prior attorney gave them “everything
that he had,” including the information that his investigator had uncovered. The
investigator continued to work with Counsel until trial. Counsel received all of the
discovery and met “a number of times” with Petitioner about the case. Co-counsel testified
that he and trial counsel prioritized the case and put in “the time that we needed” to prepare
for trial. Co-counsel stated that he and trial counsel “were ready” for the trial, which began
on June 22, 2009.

       Co-counsel was asked about an “outburst” by a member of the victim’s family on
the second day of trial when the State showed images of the victim’s body at the crime
scene. Co-counsel said he remembered someone saying, “Look what you did, Boo Boo.”
He explained that “Boo Boo” was a nickname by which Petitioner was known. Co-counsel
thought the outburst was directed solely at Petitioner, and he did not perceive it to be a
threat to anyone but rather an emotional reaction by a family member upon seeing a
“picture of a loved one’s body” at the crime scene. Although co-counsel raised an objection
following the outburst, he did not “think there was a strong argument for a mistrial.” He
said the trial court instructed the individual who made the outburst to leave the courtroom
and gave a curative instruction.

        On cross-examination, co-counsel was asked about concerns expressed by jurors for
their safety after the outburst. He said the trial court assured the jury that they did not need
to be concerned about their safety because the courtroom had “pretty good security,” extra
officers outside, and metal detectors immediately outside the courtroom. Co-counsel said
he thought the trial court “did as much or more than he needed to in terms of addressing
any concern that the jury had for their safety.” Co-counsel said he did not have any reason
to suspect that the jury was not impartial.

       Co-counsel testified that he did not see anything objectionable about one of the
victim’s friends referring to the victim at trial as “a good man.” Co-counsel said he
attempted to use the “good man” comment to bolster his attempt to introduce proof of the
victim’s criminal history, but the trial court did not allow that proof. Co-counsel did not
think the “good man” comment was specific testimony about the victim’s character, and
he did not believe the issue merited being raised on appeal.

    Co-counsel testified that he was aware of the disciplinary proceedings against trial
counsel but understood the disciplinary case had to do with fee claims in other cases and
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with trial counsel’s failure to communicate with the Board. Co-counsel said that, to the
best of his knowledge, the disciplinary proceedings had nothing to do with Petitioner’s case
and that he did not know of anything in trial counsel’s representation of Petitioner that
would have necessitated Board involvement. Co-counsel also stated that he did not think
any of the things going on in trial counsel’s life impacted Petitioner’s case. Co-counsel
said that trial counsel had a good relationship with Petitioner, was focused on the work,
spent a lot of time working on the case, and was helpful to Co-counsel in trying the case.

                            Post-Conviction Court’s Order

       On January 4, 2022, the post-conviction court entered a thorough written order
setting forth its findings of fact and conclusions of law concerning the issues raised in the
Petition and Amended Petition and argued at the hearing.

        The post-conviction court accredited co-counsel’s testimony that Counsel had
sufficient time to prepare for trial. The court found that Petitioner “failed to provide any
proof that there was a need for Counsel to file a motion to continue his case” and failed to
show that “he was prejudiced by the lack of a continuance of his trial.”

        The post-conviction court found that, “[g]iven the brief nature of the outburst and
the remedial measures taken by the trial court, there was simply no manifest necessity for
a mistrial.” The court again accredited co-counsel’s testimony and found that the trial court
“handled the situation appropriately and gave proper instructions to the jury” and that
“there was no reason to renew the motion for a mistrial” or raise the issue in the motion for
new trial or on appeal. The court found that Petitioner had failed to show that trial counsel
or co-counsel acted deficiently in its handling of the motion for mistrial or by deciding not
to further pursue the motion for mistrial after it was denied by the trial court. The post-
conviction court further found Petitioner failed to show that the “brief outburst by a
member of the victim’s family prejudiced [P]etitioner in the eyes of the jury” and that the
trial court “remedied the situation with an appropriate instruction.”

       The post-conviction court found that Petitioner “challenged the sufficiency of the
aggravated assault conviction on appeal, albeit unsuccessfully” and that Petitioner “was
not prejudiced by [C]ounsel’s failure to include this issue in the motion for new trial.”

        The post-conviction court noted that the witness who described the victim as a
“good man” was a closer friend of Petitioner than he was the victim and described
Petitioner as being “funny” and “good people.” The court also noted that co-counsel
attempted to question the witness about “violent incidents from the victim’s past” but that
the trial court “correctly rebuffed this attempt.” The court found that Counsel was not

                                            -5-
deficient by deciding not to raise this issue in the motion for new trial and that Petitioner
failed to show any prejudice.

       The post-conviction court again accredited co-counsel’s testimony that trial counsel
“was focused on [P]etitioner’s defense and that he performed adequately at trial.” The
court found that Petitioner “failed to make a showing that [trial counsel]’s ethical issues
had any bearing on his work as [P]etitioner’s lawyer.” The court also found that Petitioner
“failed to show that he was prejudiced by [trial counsel]’s unrelated ethical issues.”

       The post-conviction court dismissed the Petition, and Petitioner timely appealed.

                                           Analysis

        On appeal, Petitioner claims the performance of Counsel was deficient: (1) due to
trial counsel’s ongoing personal and professional issues; (2) by failing to file a motion to
continue so as to allow co-counsel adequate time to prepare for trial; (3) and by failing to
take appropriate action in the face of the stated concerns by jurors for their safety. The
State argues that the post-conviction court properly dismissed the Petition. We agree with
the State.

       To prevail on a petition for post-conviction relief, a petitioner must prove all factual
allegations by clear and convincing evidence. Jaco v. State, 

 (Tenn.
2003). Post-conviction relief cases often present mixed questions of law and fact. See
Fields v. State, 

 (Tenn. 2001). Appellate courts are bound by the post-
conviction court’s factual findings unless the evidence preponderates against such findings.
Kendrick v. State, 

 (Tenn. 2015). Additionally, “questions concerning
the credibility of the witnesses, the weight and value to be given their testimony, and the
factual issues raised by the evidence are to be resolved by the [post-conviction court].”
Fields, 

 (citing Henley v. State, 

 (Tenn. 1997)); see
also Kendrick, 

. The trial court’s conclusions of law and application of
the law to factual findings are reviewed de novo with no presumption of correctness.
Kendrick, 

.

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, a
petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 

 (1984);
see State v. Taylor, 

 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee cases).
Both factors must be proven for the court to grant post-conviction relief. Strickland, 466
                                             -6-
U.S. at 687; Henley, 

; Goad v. State, 

 (Tenn. 1996).
Accordingly, if we determine that either factor is not satisfied, there is no need to consider
the other factor. Finch v. State, 

 (Tenn. 2007) (citing Carpenter v.
State, 

 (Tenn. 2004)). Additionally, review of counsel’s performance
“requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 

; see also Henley, 

. We will not second-guess a reasonable trial strategy, and we will not grant
relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State,

 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 

 (citing Baxter v. Rose, 

 (Tenn. 1975)); see also Goad, 

. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 

 (citing Strickland, 

); see
also Baxter, 

.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 

. Therefore, under the second prong of
the Strickland analysis, 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.” 

 (quoting Strickland, 

) (internal quotation marks omitted).

        Petitioner relied on two exhibits, a copy of trial counsel’s Chapter 7 bankruptcy
petition and the order of the Board of Professional Responsibility disbarring trial counsel,
in support of his claim that trial counsel’s performance was deficient due to “ongoing issues
in his personal and professional life that were co-occurring with his representation” of
Petitioner. Petitioner presented no proof to show how trial counsel’s bankruptcy or
disbarment had anything to do with the manner in which trial counsel represented
Petitioner. The post-conviction court accredited co-counsel’s testimony “that [trial
counsel] was focused on [P]etitioner’s defense and that he performed adequately at trial.”
The record fully supports the post-conviction court’s findings that Petitioner “failed to
make a showing that [trial counsel]’s ethical issues had any bearing on his work as
[P]etitioner’s lawyer” and that Petitioner “likewise failed to show that he was prejudiced
by [trial counsel]’s unrelated ethical issues.” See Gevon C. Patton v. State, No. E2017-
00886-CCA-R3-PC, 

, at *20 (Tenn. Crim. App. Apr. 13, 2018),
(affirming denial of post-conviction relief where “both attorneys were disbarred after the
                                             -7-
[p]etitioner’s trial,” but the petitioner presented no evidence “at the post-conviction hearing
showing that either attorney’s disbarment was related to the attorneys’ conduct and
performance" in the petitioner’s case), perm. app. denied (Tenn. Sept. 13, 2018); Trinidad
Martinez Flores v. State, No. M2015-01504-CCA-R3-PC, 

, at *15
(Tenn. Crim. App. June 29, 2016) (affirming denial of post-conviction relief where the
petitioner “failed to show a connection between [c]ounsel’s subsequent disbarment and the
[p]etitioner’s claims of ineffective assistance of counsel”), perm. app. denied (Tenn. Oct.
19, 2016). Petitioner has failed to prove that Counsel’s performance was in some way
deficient as a result of trial counsel’s personal and professional problems. Petitioner is not
entitled to relief on this claim.

        Petitioner claims that because co-counsel was appointed only thirty-nine days
before trial, he did not have adequate time to prepare, and as a result, Petitioner was
deprived of the level of competence required of an adequately prepared defense counsel.
Petitioner argues that Counsel should have sought a continuance so that they could have
been better prepared for trial. A petitioner is entitled to adequate preparation by counsel
so that counsel can make informed decisions concerning “trial strategy” and make “tactical
choices” during the trial. Harris v. State, 

 (Tenn. Crim. App. 1996)
(stating that this court defers to trial strategy and tactical choices based upon adequate
preparation). Adequate preparation does not mean perfect preparation. 

 To be effective,
the representation of counsel, including preparation for trial, must be within the range of
competence demanded of attorneys in criminal cases. Baxter, 

; Goad,

. “Defense counsel must investigate all apparently substantial defenses
available to the defendant and must assert them in a proper and timely manner.” Baxter,

 (quoting Beasley v. United States, 

 (6th Cir. 1974)).
Co-counsel testified that he met with Petitioner’s prior attorney and discussed the case “at
length” with him and that Petitioner’s prior attorney gave him “everything that he had,”
including the information that the investigator had uncovered. Co-counsel received all of
the discovery and met “a number of times” with Petitioner about the case. Co-counsel
testified that he and trial counsel put in “the time that we needed” to prepare for trial and
that, by the trial date, they “were ready for trial” and a continuance was not necessary. The
record fully supports the post-conviction court’s finding that Petitioner “failed to provide
any proof that there was a need for [C]ounsel to file a motion to continue his case.”
Petitioner has failed to show that Counsel were deficient in their preparation for trial.
Petitioner is not entitled to relief on this claim.

       Petitioner claims that Counsel were deficient because they “failed to recognize and
take appropriate action in the face of the stated concerns by the jurors for their safety.” Co-
counsel testified that the comment, “Look what you did, Boo Boo,” was directed solely at
Petitioner. Co-counsel did not perceive the outburst to be a threat to anyone but rather an
emotional reaction by a family member upon seeing a “picture of a loved one’s body” at
                                             -8-
the crime scene. The post-conviction court found that Petitioner failed to show that the
“brief outburst by a member of the victim’s family prejudiced [P]etitioner in the eyes of
the jury.” Co-counsel opined that the trial court “did as much or more than he needed to
in terms of addressing any concern that the jury had for their safety,” and the post-
conviction court found that the trial court “remedied the situation with an appropriate
instruction.” The record supports the post-conviction court’s finding. Petitioner also failed
to provide any proof to show how the alleged “inaction and lack of concern” for the jury’s
safety by Counsel resulted in Petitioner’s being denied an impartial jury. Petitioner is not
entitled to relief on this claim.

                                        Conclusion

       We affirm the post-conviction court’s dismissal of the Petition.




                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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