Mario Bowles v. State of Tennessee ( 2021 )

10/04/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs at Knoxville April 27, 2021
MARIO BOWLES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 14-00579 J. Robert Carter, Jr., Judge
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No. W2020-00070-CCA-R3-PC
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The pro se Petitioner, Mario Bowles, appeals the denial of his petition for post-conviction
relief, claiming that he was denied the effective assistance of counsel, that the post-
conviction court judge was prejudiced against him, that the State engaged in prosecutorial
misconduct, and that the trial and post-conviction courts lacked jurisdiction over the case.
Based upon our review of the record and the parties’ briefs, we affirm the judgment of the
post-conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which TIMOTHY L. EASTER
and J. ROSS DYER, JJ., joined.
Mario Bowles, pro se, Nashville, Tennessee.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In February 2014, the Shelby County Grand Jury indicted the Petitioner for two
counts of aggravated rape based on alternative theories and one count of aggravated
kidnapping. The Petitioner went to trial in December 2015, and the jury convicted him as
charged. After merging the aggravated rape convictions, the trial court sentenced him to
an effective term of twenty-three years at one hundred percent in the Tennessee Department
of Correction and ordered that he serve the sentence consecutive to a sentence in an
unrelated case. The Petitioner’s convictions were affirmed by this court on direct appeal.
State v. Mario Bowles, No. 2016-00496-CCA-R3-CD, 2017 WL 3492100, at *1 (Tenn.
Crim. App. at Jackson, Aug. 15, 2017), no perm. app. filed.
The Petitioner’s convictions resulted from his raping and confining a case manager
from Southeast Mental Health Center in Memphis. On October 2, 2013, the victim went
to the home of the Petitioner, who was one of her clients, to meet with him as part of her
job duties. Id. The Petitioner admitted the victim into his home, locked the door behind
her, held a knife to her neck, and ordered her to walk into a bedroom, where he forced her
to disrobe and raped her. Id. During the rape, the victim struggled with the Petitioner for
the knife and was cut on her hand and thigh. Id. After the rape, the Petitioner forced the
victim to wash herself repeatedly and to pray with him. Id. He eventually allowed the
victim to leave, and the victim called the police from her vehicle as she was driving away
from the scene. Id. at *2. The Petitioner fled to the State of New York but was returned
to Shelby County on September 9, 2014, after he was picked up in New York and waived
extradition to Shelby County. Id.The Petitioner filed a timely pro se petition for post-conviction relief in which he
raised a claim of ineffective assistance of counsel. After retaining post-conviction counsel,
the Petitioner filed an amended petition in which he alleged that trial counsel was
ineffective for failing to maintain adequate communication with him, for failing to
withdraw from representation upon their complete breakdown in communication, for
failing to investigate properly or convey to the jury the state of the Petitioner’s mental
health, and for failing to fully explain to the Petitioner the risk of going to trial.
Before the evidentiary hearing, the Petitioner’s retained counsel accepted
employment with the district attorney’s office and was allowed to withdraw from
representation. The Petitioner was eventually appointed new post-conviction counsel after
the court first gave him several opportunities to retain counsel of his own choosing. The
Petitioner, however, was unhappy with appointed counsel, refused to work with him, and
filed a complaint with the Board of Professional Responsibility against counsel.
At the beginning of the evidentiary hearing, the Petitioner again expressed his
dissatisfaction with appointed counsel and repeatedly demanded that the post-conviction
court appoint new counsel. The post-conviction court denied the request, finding that the
Petitioner had not cooperated with any of his attorneys, that he would not cooperate with a
new attorney, and that he was attempting to obstruct the proceedings. Ultimately, despite
the post-conviction court’s warnings about the dangers of representing himself, the
Petitioner waived counsel and chose to proceed pro se, with his former post-conviction
counsel appointed to serve as elbow counsel.
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The Petitioner’s examination of trial counsel was long and arduous due to the
Petitioner’s repeated attempts to argue with both trial counsel and the post-conviction court
and his attempts to introduce into evidence documents that trial counsel did not recognize,
including a document purporting to show that the Petitioner was arrested for rape on
August 18, 2011, and released “without charge.” Trial counsel, a public defender who had
been licensed since 1991, recalled that when he first met with the Petitioner, the Petitioner
informed him that his entire case already had been dismissed. Trial counsel later learned
that the Petitioner had been taken to general sessions court after his arrest but that an
indictment had been returned before the Petitioner’s arrest. As a result, the general sessions
case was dismissed. Trial counsel requested that the criminal court send the case back to
general sessions court for a preliminary hearing, but the criminal court denied the request.
When trial counsel spoke with the Petitioner about the situation, the Petitioner became very
angry, insisting that the case had been dismissed in its entirety. From that point forward,
trial counsel found that communicating with the Petitioner was extremely difficult.
Trial counsel testified that he provided the Petitioner with discovery on multiple
occasions, beginning over a year before trial. Trial counsel explained that he provided the
Petitioner with multiple copies of discovery out of an abundance of caution because the
Petitioner either refused to meet with him or refused to speak with him during the multiple
times he went to the jail to talk with the Petitioner. Trial counsel acknowledged that the
Petitioner asked him on a number of occasions why the Petitioner was in jail. The
Petitioner also yelled at him on numerous occasions.
Trial counsel testified that with the assistance of an investigator, he investigated the
case to the extent possible despite the Petitioner’s refusal to cooperate. Trial counsel was
not aware of any exculpatory evidence, but he unsuccessfully attempted to subpoena the
Petitioner’s mother. Trial counsel acknowledged that he did not present any defense proof.
He pointed out, however, that he attempted to impeach each of the State’s witnesses, and
he expressed his belief that he represented the Petitioner to the best of his abilities under
difficult circumstances. He knew before trial that the Petitioner had filed both a motion to
have him relieved of representation and a complaint against him with the Board of
Professional Responsibility.
Trial counsel testified that he requested the standard mental health evaluation for
the Petitioner and that he sought additional funds in an attempt to obtain a second
independent evaluation. When asked whether he ever provided the Petitioner with
documentation to show that the Petitioner was legally in jail, trial counsel recalled that the
Petitioner had been extremely upset and confused about his having been indicted before he
was even arrested. Trial counsel could not recall if he ever showed the Petitioner
documents from the arraignment.
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At that point in the hearing, the post-conviction court interjected to recite the
procedural history of the case.1 The post-conviction court noted that before the Petitioner
was arrested on the original general sessions warrant, the grand jury returned an indictment
and another warrant was issued. The Petitioner was arrested and taken to general sessions
court, where the original warrant and charges were dismissed because an indictment had
been returned. The Petitioner acknowledged to the post-conviction court that he thought
the dismissal of the case in general sessions court barred his prosecution in criminal court.
Trial counsel testified that he attempted several times to explain the process to the
Petitioner. He indicated that the Petitioner remained intransigent and argumentative,
testifying that the Petitioner kept going “round and round” with him on the subject.
On cross-examination, trial counsel acknowledged that the case was not factually
complicated but that the Petitioner made the case difficult by refusing to cooperate. He
agreed that he sent letters to the Petitioner in an attempt to keep the Petitioner informed
about the case after the Petitioner stopped talking with him. Trial counsel said the
Petitioner never provided him with any information useful to the defense but instead fixated
on the belief that the Petitioner had been wrongly indicted and tried in criminal court
because the charges had been dismissed in general sessions court. Trial counsel attempted
to subpoena the Petitioner’s mother as a witness, but she informed him that she was unable
to come to the trial.
Trial counsel testified that he sought the assistance of Debbie Nichols, a mental
health professional, in an attempt to better communicate with the Petitioner. However, the
Petitioner was not responsive when Ms. Nichols accompanied trial counsel on a visit to the
Petitioner. Trial counsel agreed that he advised the trial court about the breakdown in
communication with the Petitioner and that he attempted to have the Petitioner undergo a
second mental health examination by a different physician who he thought might have
better success communicating with the Petitioner. Trial counsel testified that he would
have investigated any witnesses the Petitioner suggested but that the Petitioner did not
provide him with any names. Trial counsel heard nothing in the prosecutor’s closing
argument that required objection.
At the conclusion of the first day of the evidentiary hearing, the Petitioner became
very angry because the post-conviction court prevented him from questioning trial counsel
about new topics on redirect-examination. The Petitioner accused the post-conviction court
of having a personal interest in the case, complained that the court was being unfair in its
rulings, and submitted a “Petition for Recusal of Judge,” which he apparently had prepared
before the hearing. The Petitioner alleged in the petition that the judge demonstrably
favored the prosecution because the judge had, among other things, signed the capias,
failed to dismiss the indictment, ruled that the State was not required to file a response to
1
The post-conviction court also presided over the Petitioner’s trial.
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the amended petition for post-conviction relief, denied the Petitioner’s motions to remove
trial and post-conviction counsel, and ruled unfairly against the Petitioner throughout the
proceedings.
The next day, the post-conviction court entered an order denying the petition for
recusal. The court stated that it had no bias against the Petitioner and found that the
Petitioner, who equated unfavorable rulings as bias against him, had filed the motion for
the purpose of delaying the hearing.
The hearing continued with the Petitioner’s rambling testimony about his offenses
in 2011 and 2013. He reiterated his many complaints about trial counsel and repeatedly
expressed his belief that his indictment and trial were invalid because the charges had been
dismissed in general sessions court. The Petitioner complained that trial counsel failed to
investigate the case, failed to listen to him, and failed to file necessary motions, which had
necessitated the Petitioner’s filing of pro se motions. The Petitioner claimed that trial
counsel failed to investigate or introduce the lack of DNA evidence linking the Petitioner
to the crimes, failed to discredit the victim’s account of having been raped and kidnapped,
failed to challenge the Petitioner’s mother’s consent to search her home, failed to file a
motion for summary judgment, failed to ensure that the Petitioner received a fair and
complete competency evaluation, and failed to contest the testimony of the medical expert
at the competency hearing that the Petitioner was on several different drugs and engaged
in drug-seeking behavior. The Petitioner said he informed trial counsel that he never
received a competency evaluation and that he had been forced to leave the mental
institution early after he was unfairly labeled as disruptive. The Petitioner said that he told
trial counsel to investigate the grievance he had filed with the facility but that trial counsel
failed to do so.
Upon being questioned by the post-conviction court, the Petitioner denied that he
refused to meet with trial counsel, stating that he met with trial counsel every time counsel
came to the jail. All trial counsel did, though, was interrogate the Petitioner about the facts
of the case, which the Petitioner did not like. The Petitioner thought trial counsel should
have investigated the validity of the indictment instead.
On cross-examination, the Petitioner denied that he had refused to get on the bus to
attend a previous court setting for the post-conviction case. He also denied that he had
stopped communicating with his trial counsel, with his post-conviction counsel, and with
a physician at the Midtown Mental Health Institute.
Subsequently, the post-conviction court entered an order denying the petition for
post-conviction relief on the basis that the Petitioner failed to show that trial counsel was
deficient in his performance under the difficult circumstances in which counsel was forced
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to defend the case. The court found that the Petitioner had an obsessive belief that the
“non-merits dismissal” of the charges in general sessions court precluded his trial for the
offenses and that he refused to cooperate with counsel because counsel did not agree with
his erroneous position. The court further found that the Petitioner also was erroneously
convinced that his release after his arrest in an earlier unrelated case was in some way
dispositive of the 2013 rape and kidnapping case. Finally, the court observed that the
Petitioner had a history of refusing to cooperate in his own defense when faced with facts
with which he did not agree.
The post-conviction court appointed the Petitioner’s post-conviction counsel to
represent the Petitioner on appeal. The Petitioner subsequently filed a motion in this court
requesting the removal of post-conviction counsel. Following remand to the post-
conviction court for a hearing to determine if the Petitioner knowingly waived his right to
counsel on appeal, post-conviction counsel was relieved from representation. The
Petitioner was allowed to proceed with the appeal pro se.
II. Analysis
As best as we can understand his arguments, the Petitioner contends as follows on
appeal: he was denied the effective assistance of counsel due to counsel’s failure to
communicate with him effectively and to investigate his case adequately, especially the
invalidity of the indictment; the State engaged in prosecutorial misconduct by, among other
things, not reading the indictment at the arraignment and misleading the jury during closing
arguments about its duty to find him guilty beyond a reasonable doubt; the judge who
presided over the trial and the post-conviction hearing should have granted the Petitioner’s
motions to recuse because the judge’s actions demonstrated his personal interest in the case
and his prejudice against the Petitioner; and the trial and post-conviction courts lacked
jurisdiction because the case was fully dismissed in general sessions court and/or the
indictment was related to a different, earlier case in which the Petitioner had been released
without charge. The State responds that the Petitioner failed to prove his allegations of
ineffective assistance of counsel and waived his other claims due to his failure to raise them
in the appropriate time and manner and due to his failure to provide an adequate record for
review.
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
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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 unless the 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 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. Further,
[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).
The record in this case fully supports the post-conviction court’s findings of fact
and conclusions of law. The Petitioner’s testimony, examination of trial counsel, and
argument at the evidentiary hearing made it clear that the Petitioner was convinced that his
indictment and prosecution were invalid because (1) the charges were nolle prosequied in
general sessions court and (2) the indictment was somehow related to his 2011 arrest rather
than the events of 2013. Although the Petitioner disagreed that he stopped meeting with
trial counsel, he indicated that he was dissatisfied and uncooperative with counsel because
of counsel’s focus on the details of the alleged crimes rather than the validity of the
indictment. The Petitioner also testified that he felt compelled to take over his own defense
by researching the law and filing his own pro se motions.
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Trial counsel’s testimony, which was implicitly accredited by the post-conviction
court, established that the Petitioner stopped communicating in any meaningful way with
trial counsel, either yelling at counsel when they met or refusing to meet with him at all.
According to trial counsel, the Petitioner did not provide any useful information for his
defense and instead remained fixated on the idea that his indictment was invalid despite
counsel’s repeated efforts to explain the process to him. In trial counsel’s efforts to
maintain communication, he not only sent letters to the Petitioner and provided multiple
copies of discovery to the Petitioner but also enlisted the assistance of a mental health
professional in hopes that she would be able to facilitate a better rapport with the Petitioner.
Given what was obviously a difficult client, trial counsel made the best effort he could to
mount an effective defense. We, therefore, conclude that the Petitioner failed to meet his
burden of demonstrating that he was denied the effective assistance of counsel.
We further conclude that the Petitioner’s additional claims, which relate to
prosecutorial misconduct, bias of the judge at trial, and lack of jurisdiction, are waived. As
the State points out, these claims could and should have been raised earlier. See Tenn. R.
App. P. 36(a). The Petitioner did not raise these various claims in his direct appeal or in
his original or amended petitions for post-conviction relief and addressed them only
tangentially during the evidentiary hearing as part of his argument that trial counsel
provided ineffective assistance. Although the Petitioner refers several times to his
“Extraordinary Amended Petition for Post-Conviction Relief,” no such document is in the
record. Moreover, the document was presumably filed pro se while the Petitioner was
represented by counsel and, as such, was properly not considered by the post-conviction
court. See State v. Davis, 141 S.W.3d 600, 615-16, n.12 (Tenn. 2004).
We also find no merit in the Petitioner’s contention that the judge erred by not
disqualifying himself from the post-conviction proceedings. “A judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably be
questioned.” Tenn. Sup. Ct. R.10, R.J.C. 2.11(A). Whether the judge erred by denying the
motion to recuse himself is a question of law, which we review de novo. Cook v. State,
606 S.W.3d 247, 253 (Tenn. 2020) (citing Tenn. Sup. Ct. R. 10B, § 2.01).
There was nothing in the proceedings from which the judge’s impartiality
reasonably could be questioned. It was patently clear throughout the evidentiary hearing
that the Petitioner was simply unhappy and angry at the judge’s attempts to have the
Petitioner comply with at least some of the Rules of Evidence, to stop badgering and
arguing with trial counsel, and to move on to another topic after repetitive questioning on
the same subject. We note that the post-conviction court was courteous to the Petitioner
throughout the hearing and allowed him far more latitude than would be afforded a licensed
attorney.
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III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.
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NORMA MCGEE OGLE, JUDGE
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