William Paul Bogus v. State of Tennessee ( 2001 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 7, 2000 Session
WILLIAM PAUL BOGUS V. STATE OF TENNESSEE
Appeal from the Circuit Court for Dyer County
No. C93-448 & C93-449 J. Steven Stafford, Judge
No. W2000-00348-CCA-R3-PC - Filed January 31, 2001
The petitioner appeals from the Dyer County Circuit Court’s dismissal of his petition for post-
conviction relief. In 1994, the petitioner was tried and convicted of first degree murder in the
perpetration of a felony and aggravated burglary. His convictions were affirmed, after which he
timely filed a petition seeking post-conviction relief, claiming ineffective assistance of trial and
appellate counsel, juror misconduct because an alternate juror had lied during voir dire about not
knowing the petitioner, insufficient evidence to support the felony-murder conviction, and
suppression of exculpatory evidence. After an evidentiary hearing, the post-conviction court denied
relief. We affirm the post-conviction court’s denial of the petitioner’s request for post-conviction
relief.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
DAVID G. HAYES, JJ., joined.
Ralph I. Lawson, Dyersburg, Tennessee for the appellant, William Paul Bogus.
Michael E. Moore, Solicitor General; Kim R. Helper, Assistant Attorney General; C. Phillip Bivens,
District Attorney General; James Lanier, Assistant District Attorney General, for the appellee, State
of Tennessee.
OPINION
The petitioner, William Paul Bogus, appeals the Dyer County Circuit Court's
dismissal of his petition for post-conviction relief. The petition, as amended by appointed counsel,
alleged that the petitioner’s convictions for first degree murder in the perpetration of a felony and
aggravated burglary are infirm because he received ineffective assistance of trial and appellate
counsel, because an alternate juror had lied during voir dire about not knowing the petitioner,
because the evidence is insufficient to support the felony-murder conviction, and because the state
failed to disclose exculpatory evidence that a promise of “no prosecution” had been made to one of
its witnesses.1 The post-conviction court held that trial and appellate counsel rendered effective
assistance, that juror perjury had not been established, that the evidence was sufficient to support the
homicide conviction (as previously determined by this court), and that the state had not suppressed
exculpatory evidence; accordingly, the post-conviction court dismissed the petition. In this appeal,
the petitioner frames his statement of the issues as follows:
1. The petitioner was denied the effective assistance of counsel under
prevailing professional standards due to serious conflicts of interest
with both court-appointed trial counsel and appellate counsel under
facts of record in the Dyer County, Tennessee Circuit Court.
2. The petitioner was denied the effective assistance of counsel under
prevailing professional standards at the appellate level as the
appointed counsel at the trial and appellate counsel failed to counsel
with and represent petitioner at all stages of the proceedings before
the court which appointed the attorney and also upon any appeal from
the judgment of such court which imposes a prison sentence.
3. The petitioner was denied the effective assistance of counsel under
prevailing professional standards due to a deficient performance of
counsel at both trial and appellate level.
4. The trial court erred in not allowing the petitioner to represent
himself.
5. The trial court erred in allowing attorney, Lyman Ingram, to be the
designated party for the state and remain in the courtroom over the
petitioner’s call for the rule.
Because the evidence does not preponderate against the post-conviction court's findings and supports
the conclusion that trial and appellate counsel's assistance was effective, we affirm.
The petitioner's convictions resulted from separate criminal charges tried before
different Dyer County juries. This court's opinion affirming the convictions reflects that the
petitioner was charged and convicted for the 1993 reckless killing of his wife, Debra Johnson Bogus,
1
The petitioner’s pro se petition for po st-conviction re lief cited five grou nds for relief. No factual elaboration
was provided in support of the grounds. The petitioner claimed that his convictions were infirm because they were based
on evidence gained pursuant to an unlawful arrest, because they were based on action of a grand or petit jury that was
unconsitution ally selected and impaneled , because h e received ineffective assistanc e of counse l, because the re was newly
discovered evidence, and beca use of illegal evid ence. Othe r than his claim of ineffective assistance of counsel, we find
nothing in the record on appeal to indicate that the other four grounds were pursued in the proceedings below.
-2-
during the perpetration of a robbery. The petitioner’s wife was found dead in the bedroom of a
trailer that she and the petitioner shared. The wife had been strangled, and her tip money from
working at Shoney’s restaurant was missing. The apparent motive for the robbery was the
petitioner’s desire to purchase crack cocaine. See State v. William Paul Bogus, No. 02C01-9506-CC-
00169, slip op. at 2, 4 (Tenn. Crim. App., Jackson, Jan. 22, 1998).
The same morning of his wife’s murder, the petitioner forced his way inside the
residence of Pauline Cox and James Collins. The petitioner became agitated, assaulted some of the
occupants, and departed after E-911 was called. After the petitioner departed, Mr. Collins
discovered that his billfold, containing $60, was missing. See id., slip op. at 7, 14-15.
The petitioner received a sentence of life without the possibility of parole for the
murder of his wife and a Range II sentence of nine years for the aggravated burglary of the Cox-
Collins residence. See id., slip op. at 2. On a consolidated direct appeal, the petitioner challenged
the sufficiency of the convicting evidence, complained about the sentences imposed, and raised a
mistrial issue in the murder case concerning a juror who saw him being transported to the courthouse
in a Department of Correction vehicle. Finding no reversible error, this court affirmed the
petitioner’s convictions and sentences. The supreme court denied his application for permission to
appeal, and thereafter the petitioner timely filed a pro se petition for post-conviction relief, which
was later amended with the assistance of counsel.
The post-conviction court conducted an evidentiary hearing on January 20, 2000. The
petitioner offered the expert testimony of two attorneys with trial and appellate experience in
criminal cases. The former district public defender, Steve Davis, who handled the appeals of the
petitioner’s homicide and aggravated burglary convictions, had waived oral argument before this
court. Both of the petitioners’ expert attorney witnesses at the post-conviction hearing were of the
opinion that waiving appellate argument, particularly in a murder case, constitutes ineffective
assistance of counsel. Also, one of the expert attorneys testified that the failure to confer with a
client about the trial transcripts and about appellate briefing amounts to constitutionally deficient
representation. Neither expert attorney, however, had reviewed the evidence or the records from the
petitioner’s trials. Therefore, neither attorney could cite to any specific instances of trial error that
should have been included in the petitioner’s appellate briefs or orally argued before this court.
The complained-of alternate juror was subpoenaed by the petitioner and testified at
the post-conviction hearing. The alternate juror unequivocally denied knowing the petitioner, his
wife, or their children. The alternate juror lived near the residence that the petitioner and his wife
shared, but the alternate juror disclaimed ever telling any of the other jurors that she knew where the
petitioner lived.
The only other witnesses at the post-conviction hearing were the petitioner’s trial
attorney, Lyman Ingram, and the petitioner himself. Although a subpoena apparently had been
issued for the petitioner’s appellate attorney, Steve Davis, he had not been located. The petitioner
elected to proceed without the appellate attorney’s testimony.
-3-
From Mr. Ingram’s testimony, we discern that he was appointed to serve as elbow
counsel for the petitioner through sentencing and filing the notices of appeal. For unspecified
reasons, Mr. Ingram was fired by the district public defender, Steve Davis. After taking unused
vacation time, Mr. Ingram took an appointed job as Dyersburg city prosecutor until 1999 when he
was elected to a judicial position. As city prosecutor, Mr. Ingram was not a state employee, and he
was not affiliated with the Dyer County District Attorney General’s office.
Mr. Ingram was questioned primarily about three areas of his representation of the
petitioner. First, he recalled the petitioner telling him during voir dire that a potential juror knew the
petitioner. Mr. Ingram testified that he questioned the juror, but she denied knowing the petitioner.
Because the petitioner was running short on challenges and because Mr. Ingram had represented a
family related to the woman, he accepted her as a juror for the homicide trial.
Second, Mr. Ingram was asked about a stipulation that the trial court read to the jury
during the sentencing hearing after the petitioner was convicted of felony-murder. Mr. Ingram and
the state had stipulated that the murder was committed while the petitioner was under the influence
of extreme mental or emotional disturbance. The petitioner complained that the stipulation was
tantamount to an admission of guilt; Mr. Ingram disputed that characterization. He explained that
the jury had already found the petitioner guilty when the stipulation was offered. The purpose of the
stipulation was to establish a mitigating factor in an effort to reduce the sentence that the jury could
impose.
Third, Mr. Ingram testified that he did not pursue the theory that the petitioner could
not have robbed his wife because any money taken from her belonged as much to him as to his wife.
Mr. Ingram said that this theory is not legally supportable because it incorrectly assumes that
community property concepts apply in criminal cases.
When the petitioner testified, he recounted the following complaints. He knew the
alternate juror and knew the alternate juror’s husband. Trial counsel failed to subpoena her to testify
at the hearing on the petitioner’s new trial motions. Trial counsel, furthermore, did not adequately
consult with him about the charges and the trials. According to the petitioner, he could not reach
trial counsel by telephone, and trial counsel never talked to him about the new trial motions. After
the trials, when the petitioner tried to contact trial counsel, he was told by a secretary that Mr. Ingram
had been fired and that he had become an assistant district attorney.
The petitioner complained that he never knew that trial counsel was going to enter
into the stipulation at the sentencing hearing following his felony-murder conviction. The petitioner
said that he did not understand what was happening. Trial counsel, according to petitioner, also
refused to recall a state’s witness to elicit evidence that the witness had been paid to lie.
The petitioner’s last complaint about trial counsel was that he knew Mr. Ingram was
not “gonna play fair.” The petitioner wanted to represent himself, but he was not allowed to do so.
The petitioner testified that his distrust stemmed from being prosecuted and convicted many years
-4-
earlier by Mr. Ingram for multiple armed robberies. He added, “I just felt that Dyer County wasn’t
gonna give me a fair shake.”
The petitioner reserved his most severe criticisms for his appellate counsel, Steve
Davis. The petitioner testified that Mr. Davis never talked to him about the appeals and that he first
found out that Mr. Davis was handling his appeals when he received a copy of the appellate brief in
the mail. The petitioner said that Mr. Davis neglected to raise certain things in the appeals; in this
regard, the petitioner mentioned negative DNA test results from blood collected at the scene of his
wife’s murder; he also mentioned the issue about the alternate juror and about the trial court’s failure
to grant a mistrial based on the slow speed at which a tape recording had been played to the jury.
Moreover, the petitioner’s distrust about the quality of representation he received extended to Mr.
Davis. Mr. Davis, the petitioner believed, was not going to give him a “fair shake” because at some
earlier time, the petitioner had filed a post-conviction petition alleging that Mr. Davis provided
ineffective assistance of counsel to him in a drug prosecution.
Finally, as support for his claim of ineffective assistance of appellate counsel, the
petitioner repeatedly argued that this court had found that his cases were improperly filed because
the appellate records from the two separate prosecutions had been commingled. The waiver of oral
argument, the petitioner also believed, had defeated appellate consideration of his cases.
In announcing its ruling, the post-conviction court demonstrated a thorough
understanding of the procedural mechanics and the substantive legal principles that apply in the post-
conviction arena. It recognized that the burden is on the petitioner, in a post-conviction proceeding,
to prove his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997).
On appeal, the post-conviction court's findings of fact are given the weight of a jury verdict and are
conclusive unless the evidence preponderates against them. Clenny v. State, 576 S.W.2d 12, 14
(Tenn. Crim. App. 1978).
When a post-conviction petitioner seeks relief on the basis of ineffective assistance
of counsel, he must establish that the service rendered or the advice given was below "the range of
competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Also, he must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). There must be a
reasonable probability that, but for counsel's errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068; see Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App.
1985). Should the petitioner fail to establish either factor, he is not entitled to relief.
The scrutiny of counsel's performance must be "highly deferential," and the reviewing
court must refrain from concluding "that a particular act or omission of counsel was unreasonable"
merely because the strategy employed was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. "A fair assessment," the United States Supreme Court has said, entails making every effort
to "eliminate the distorting effects of hindsight" and evaluating the "conduct from counsel's
perspective at the time." Id., 104 S. Ct. at 2065. The court promulgated a "strong presumption that
-5-
counsel's conduct falls within the wide range of reasonable professional assistance." Id., 104 S. Ct.
at 2065. The court added:
[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigation unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments.
Id. at 690-691, 104 S. Ct. at 2066.
With respect to the prejudice prong of ineffective assistance of counsel, a showing that
"errors had some conceivable effect on the outcome of the proceeding" is insufficient. Id. at 693, 104
S. Ct. at 2067. Rather, the post-conviction 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." Id. at
694, 104 S. Ct. at 2068. In assessing the claim of prejudice, the "court should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted
according to law." Id., 104 S. Ct. at 2068. The reviewing court must consider the "totality of the
evidence before the judge or jury" and should take into account the relative strength or weakness of
the evidence supporting the verdict or conclusion. Id. at 695, 104 S. Ct. at 2069.
The post-conviction court made detailed findings on the petitioner’s claims. In
pertinent part, the post-conviction court found:
(1) The Tennessee Court of Criminal Appeals previously addressed
and determined whether the evidence was sufficient to support
petitioner’s convictions, and those issues will not be again addressed.
(2) Any commingling of pleadings, papers, and orders between the
petitioner’s separate cases and the record on appeal had no adverse
effect on the previous opinion of this court, which affirmed
petitioner’s convictions and sentences, and no ineffective assistance of
counsel has been shown on this basis.
-6-
(3) No prejudice has been shown to have resulted from the waiver of
oral argument by appellate counsel on direct appeal, and this claim
will not support a finding of ineffective assistance of counsel.
(4) The stipulation by trial counsel at the penalty phase of the murder
trial regarding the petitioner’s drug use and emotional condition was
a tactical decision calculated to mitigate the punishment that the jury
could impose, and trial counsel’s decision is not a basis for post-
conviction relief.
(5) The petitioners’ claim, even assuming it is true, that an alternate
juror at his murder trial knew the petitioner and his family does not
demonstrate ineffective assistance of counsel. The alternate juror was
released prior to the beginning of jury deliberations, and there is
absolutely no proof that this alternate juror had any discussions with
other jurors about the petitioner or his family members.
(6) Post-conviction relief is not warranted on the basis of a negative
DNA finding in the murder case. That evidence was presented to the
jury, and the jury weighed and considered the information in arriving
at its verdict.
(7) The issue whether it is legally possible for the petitioner to rob
property from his spouse should have been raised on direct appeal, and
it has been waived. Even viewing the merits of the claim, the offense
of robbery deals with the concept of possession. The evidence at trial
was sufficient for the jury to conclude that the petitioner took money
from his spouse, thereby committing robbery.
(8) The petitioner’s complaints about the credibility of witnesses who
testified against him the murder case were aired during the trial. These
complaints should have been raised, if at all, on direct appeal, and they
are not appropriate for post-conviction relief.
(9) Regarding the petitioner’s complaints that appellate counsel failed
to communicate with him about the appellate argument and about
filing the petitioner’s appellate brief, appellate counsel raised basically
the same issues contained in the petitioner’s motion for new trial. The
issues presented on appeal do not entitle petitioner to post-conviction
relief. Appellate counsel was entitled to and did exercise sound
discretion in selecting the issues to be presented on appeal. While it
would have been a better practice for appellate counsel to maintain
contact with the petitioner and to consult with petitioner before the
-7-
brief was filed, there is no proof that the petitioner suffered any
prejudice or that relevant issues were not raised on appeal.
(10) No basis exists for any claim that trial counsel rendered
ineffective assistance of counsel. There has been no proof that trial
counsel’s performance fell below the standard for attorneys litigating
criminal cases, nor has there been any proof that the petitioner suffered
any prejudice as a result of anything trial counsel did or did not do.
(11) The petitioner’s complaint that he did not receive a fair appellate
review cannot be remedied by the trial court. The trial court lacks
authority to grant the petitioner a new appeal.
We agree wholeheartedly with the post-conviction court’s findings. The evidence in
no way preponderates against these findings, and it is unnecessary for us to belabor each and every
detail. We add only four sets of comments.
First, despite the petitioner’s conjecture, he suffered no prejudice because the records
from his separate trials and prosecutions had been commingled on his earlier appeal. This court
thoroughly reviewed and independently considered the petitioner’s convictions and sentences. We
did point out previously that “[a] separate record on appeal should have been prepared for each
unconsolidated case being appealed.” William Paul Bogus, slip op. at 2 n.1. Nonetheless, we did not
dismiss the petitioner’s appeals or otherwise penalize him.
Second, the petitioner received an evidentiary hearing on his petition for post-
conviction relief, and we have carefully studied the record from that hearing. Quite simply, the
petitioner failed to demonstrate how his trial and appellate counsel rendered constitutionally deficient
representation. For instance, the petitioner presented two expert witnesses who opined that waiving
oral argument on appeal in a homicide case fell below the range of competence demanded of attorneys
in criminal cases. To prevail on his claim, however, the petitioner also needed to show that the
deficiencies actually had an adverse effect on his appeal; this he did not do, and evidently he never
asked his expert witnesses to review the records from his cases so they could evaluate how his appeal
might have been compromised. In addition, at the conclusion of the evidentiary hearing, the
petitioner’s post-conviction attorney made the statement that Mr. Ingram had done all that he could
do as elbow counsel at the trial level. Moreover, the petitioner did not request that the hearing be
continued so he could procure the presence and testimony of Steve Davis, the attorney who handled
his appeals. Under these circumstances, the post-conviction court simply had no basis for finding that
the petitioner received ineffective assistance of counsel.
Third, we are troubled by the conflict-of-interest specter that was raised during the
post-conviction evidentiary hearing. An accused’s right to the effective assistance of counsel includes
the right to an attorney “unfettered by a conflicting interest.” State v. Thompson, 768 S.W.2d 239,
245 (Tenn. 1989). The petitioner’s trial counsel, Mr. Ingram, testified that he had prosecuted and
-8-
convicted the petitioner many years earlier for multiple armed robberies. The petitioner testified that
he did not believe that Mr. Ingram was “gonna play fair” because of his prior prosecutorial role. The
petitioner further testified that he did not believe that he would receive a “fair shake” from appellate
counsel because the petitioner had accused that same counsel of rendering ineffective assistance of
counsel in some unspecified drug prosecution.
The law treats a claim of ineffective assistance of counsel differently when it is based
on conflict of interests. Prejudice is presumed when "the defendant demonstrates that counsel 'actively
represented conflicting interests' and that 'actual conflict of interest adversely affected his lawyer's
performance.'" Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (quoting Cuyler v. Sullivan, 446 U.S.
335, 350, 100 S. Ct. 1708, 1719 (1980)); see also Netters v. State, 957 S.W.2d 844, 847-48 (Tenn.
Crim. App. 1997). "Until a defendant has established that defense counsel 'actively represented
conflicting interests, the defendant has not established the constitutional predicate for his claim of
ineffective assistance.'" Kirby v. State, No. 03C01-9303-CR-00074, slip op. at 4 (Tenn. Crim. App.,
Knoxville, Sept. 28, 1994), perm. app. denied (Tenn. 1995).
In the present case, our concerns find no solid ground. As with other claims, we are
hamstrung by the lack of evidentiary detail from the post-conviction hearing. We do not know, and
the post-conviction court was never advised, about the nature of the petitioner’s previous ineffective
assistance of counsel complaint against Mr. Davis. None of the records relating to this complaint or
to any post-conviction litigation was ever introduced. When the petitioner testified, he did not relate
the factual basis for his complaint, nor did he ever divulge whether Mr. Davis was found to have
rendered deficient representation in the other prosecution.
As for the petitioner’s trial counsel, there has been no showing, for example, that he
harbored some animus against the petitioner having previously prosecuted him. Likewise, no evidence
was offered suggesting that Mr. Ingram used privileged information that he obtained as a former
prosecutor to the detriment of the petitioner. If anything, the evidence at the post-conviction hearing
was that Mr. Ingram capitalized on his familiarity with the petitioner’s prior armed robberies in an
effort to benefit the petitioner. That is, Mr. Ingram testified that he argued to the trial court at
sentencing that the petitioner’s armed robberies could be considered only one aggravating
circumstance because they all occurred during a twenty-four hour period.
Without more in the record before us, we cannot conclude that either of the petitioner’s
attorneys actively represented conflicting interests or that an actual conflict of interest adversely
affected his attorneys’ performance. There is, consequently, no presumed prejudice. The record,
moreover, fails to show actual prejudice, thereby defeating a Strickland claim of ineffective assistance.
In summary, ineffective assistance of counsel based upon the assertion of a conflict of interests has not
been shown.
Our last comment concerns the gallimaufry of accusations and arguments that the
petitioner has advanced in his briefs to the court. We have exerted considerable effort to decipher his
-9-
arguments, which are not divided into sections that correspond with his statement of the issues. Some
of the arguments, furthermore, are being raised for the first time on appeal.
The petitioner’s first appellate issue is that he was denied effective assistance because
of conflicts of interests with his counsel. We have already discussed this claim and the lack of
evidentiary support for it. More fundamentally, the petitioner did not raise this claim in his original
or amended petition for post-conviction relief. The alleged conflicts were briefly alluded to during the
post-conviction hearing, but the petitioner did not pursue the alleged conflicts either at the conclusion
of the hearing or after the post-conviction court rendered its findings. There are two fleeting references
in the argument portions of the petitioner’s briefs to alleged conflicts; no authority is cited. This issue,
we hold, has been waived, Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b), but even if not
waived, the petitioner has failed to carry the necessary burden to secure entitlement to relief.
The petitioner’s second appellate issue is that he was denied effective assistance
because there was a “gap” in his representation after trial counsel was fired by the district public
defender. According to the petitioner, Mr. Ingram was obligated to represent him both at the trial and
appellate stages, pursuant to the terms of the court appointment, and Mr. Davis ended up handling the
appeals although he was never appointed. The petitioner did not raise or litigate this issue before the
post-conviction court, and it is raised for the first time on appeal. Consequently, this issue has been
waived. E.g., Roger Clayton Davis v. State, No. 03C01-9902-CR-00076, slip op. at 5 (Tenn. Crim.
App., Knoxville, Jan. 14, 2000) ( petition based on ineffective assistance of counsel is a single ground
for relief; therefore all factual allegations must be presented in one claim). This issue, however, even
if properly before us, does not entitle the petitioner to any relief. See Bobby R. Wilcoxson v. State, No.
03C01-9804-CR-00134, slip op. at 56-57 (Tenn. Crim. App., Knoxville, Oct. 18, 1999) (counsel’s
withdrawal from case, during direct appellate proceedings, to accept employment with district attorney
general’s office did not constitute ineffective assistance of counsel).
The petitioner’s third appellate issue is a generic assertion that he was denied effective
assistance of trial and appellate counsel. The post-conviction court’s findings in this regard, which
are fully supported by the record, dispose of this issue. Furthermore, to the extent the petitioner has
tried in his briefs to raise other, novel factual claims of ineffective assistance of counsel, those claims
are waived. E.g., Roger Clayton Davis v. State, slip op. at 5.
In his fourth appellate issue, the petitioner complains that the trial court erred in not
allowing him to represent himself. In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), the
United States Supreme Court ruled that an accused in a criminal prosecution has a constitutional right
to represent himself and proceed pro se without the assistance of counsel. There are three essential
prerequisites, however, that must be present before the right to self-representation becomes absolute:
(1) the accused must timely assert the right to self-representation; (2) the accused's request must be
clear and unequivocal; and (3) the accused must knowingly and intelligently waive the right to the
assistance of counsel. See Faretta v. California, supra; State v. Northington, 667 S.W.2d 57 (Tenn.
1984).
-10-
As support for his claim, the petitioner cites to a handwritten docket sheet, introduced
as an exhibit at the post-conviction hearing, that contains the entry “Motion to be Allowed to
Represent Self.” In his briefs, the petitioner then asserts that there “appears to be no transcribed
hearing or reasons set forth for this denial in the record.” The record before us is totally inadequate
to review this claim, which as far as we can tell is being raised for the first time on this appeal.
In his final appellate issue, the petitioner maintains that the post-conviction court erred
in allowing Mr. Ingram, the petitioner’s former trial counsel, to remain in the courtroom during the
hearing although the petitioner had invoked the rule of sequestration. The petitioner cites no authority
for his position, and he argues only that he believes “this was improper and prejudicial” to him. This
issue has been waived by the petitioner’s failure to cite authority for his claim. Tenn. R. App. P.
27(a)(7); Tenn. R. Ct. Crim. App. 10(b).
Having exhaustively explored this case, we affirm the judgment of the post-conviction
court.
__________________________________________
JAMES CURWOOD WITT, JR., JUDGE
-11-