State of Tennessee v. Howard P. Fisher

01/04/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 21, 2018 Session
Remanded by the Supreme Court on September 13, 2018
STATE OF TENNESSEE v. HOWARD P. FISHER
Appeal from the Criminal Court for Davidson County
No. 2015-A-632 Monte Watkins, Judge
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No. M2017-00975-CCA-R3-CD
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Following a bench trial, the Defendant, Howard P. Fisher, was convicted of aggravated
assault and criminal trespass, for which he received a ten-year sentence and a $50 fine,
respectively. In his direct appeal, the Defendant argued (1) that the evidence was
insufficient to support his conviction of aggravated assault; (2) that the trial court erred in
granting the State a continuance for sentencing; and (3) that the trial court erred in
denying his ineffective assistance of counsel claim. Upon review, this court affirmed the
judgments of the trial court but declined to review the claim of ineffective assistance of
counsel finding that the Defendant “raised a general claim of ineffective assistance of
counsel in his motion for a new trial. His motion did not include any issues pertaining to
trial counsel’s performance or facts in support of his claim.” State v. Howard P. Fisher,
No. M2017-00975-CCA-R3-CD, 2018 WL 3060369, at *1, *5 (Tenn. Crim. App. June
20, 2018), perm. app. granted and case remanded, No. M2017-00975-SC-R11-CD (Tenn.
Sept. 13, 2018) (order). On September 13, 2018, the Tennessee Supreme Court granted
the Defendant’s application for permission to appeal and remanded the case to this court
to discuss the merits of the Defendant’s claim of ineffective assistance of counsel. State
v. Howard P. Fisher, No. M2017-00975-SC-R11-CD (Tenn. Sept. 13, 2018) (order).
Upon further review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
Manuel B. Russ, Nashville, Tennessee, for the Defendant, Howard P. Fisher.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn Funk, District Attorney General; and Deborah Housel, Assistant District
Attorney General, for the appellee, State of Tennessee.
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OPINION ON REMAND
Our previous opinion contained a detailed recitation of the facts, and for purposes
of the limited remand, we will summarize only the evidence that is relevant to whether
the Defendant was deprived of the effective assistance of counsel at trial. See Howard P.
Fisher, 2018 WL 3060369, at *1. This case concerns the January 19, 2015 assault of the
victim, William Derrick, at the Discount Mart in Nashville, Tennessee. The Defendant
was subsequently arrested and charged with aggravated assault and criminal trespass.
Following the August 2, 2016 bench trial, the Defendant was convicted as charged. On
December 1, 2016, the Defendant, through newly appointed counsel,1 filed a motion for a
new trial, in which he raised a claim of ineffective assistance of counsel. As alleged in
his motion, the Defendant claimed, “[he] received ineffective assistance of counsel prior
to and during his trial in violation of his 6th Amendment and Article 1 § 7 right to
assistance of counsel.” Included in the motion was the following language: “[The
Defendant] has been advised about the disadvantages of raising this particular issue in
this proceeding and wishes to proceed nonetheless.” On May 5, 2017, the trial court held
an evidentiary hearing, and the Defendant and trial counsel testified as follows.
The Defendant testified that he was alleging ineffective assistance of trial counsel
in his motion for a new trial. He said that the “first issue and reason is . . . that, before the
. . . bench hearing . . . I informed [trial counsel] that at no time did I want a bench trial.”
According to the Defendant, trial counsel told him that he needed to sign some
paperwork in order to pick a jury. The Defendant started to sign the papers but stopped.
Prior to the bench trial, trial counsel had represented the Defendant for about a year and a
half, and the case was set for jury trial on at least one occasion, if not more, but continued
for various reasons. The following exchange then occurred between the Defendant and
the trial court:
The Court: So you’re saying that you couldn’t have spoken up and said
no, I don’t want a bench trial, I want a jury –
Defendant: Well. Each and every time that I tried to –
....
The Court: You couldn’t have stood up and said no, I don’t want a bench
trial, I want a jury trial?
1
In appears from the record that original trial counsel filed a motion to withdraw at the
sentencing hearing. Following that hearing, the trial court granted the motion and appointed new counsel
to represent the Defendant in his motion for new trial and on appeal.
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Defendant: Well, see, that was understood from the start. And, you
know, Your Honor, you, yourself, you know I tried to speak
up numerous times in your court and you silenced me.
The Court: I silenced you about your constitutional right?
Defendant: Yes, sir. Yes, you did. I mean you can get the paperwork
and look. I did not sign anything to waive nothing.
Asked to describe the conversation during which trial counsel advocated for a
bench trial, the Defendant said, trial counsel “came and talked to me about a couple of
minutes and then, boom, next thing I know, we’re in the courtroom.” The Defendant
recalled that trial counsel was “rushing” him, and the Defendant kept asking, “when are
we going to start picking the jury.” Although trial counsel told the Defendant that he
might be able to get into court faster if he had a bench trial, the Defendant made it clear
to trial counsel that he did not want a bench trial. The Defendant further explained that at
the time of the instant offense he had been on parole, which had been revoked following
a parole hearing. The Defendant maintained that his parole status was not a factor in
choosing a jury trial over a bench trial.
The Defendant also said that his contact with trial counsel prior to trial “was very
minor.” He would speak to trial counsel on the telephone but never over video
conference or anything else. He said his conversations always felt “rushed.” The
Defendant would talk to trial counsel every time he would come to court but only for a
few minutes in the conference room. The Defendant also claimed that trial counsel never
provided discovery regarding his case except for a copy of the information trial counsel
had received from the State about prior arrests. The first time he saw the video recording
of the incident was at the bench trial. The Defendant testified that he was on parole for a
life sentence and that settling the case was not an option.
The Defendant stated that he wanted to testify at trial and discussed doing so with
trial counsel. He explained that he did not testify because trial counsel gave him
“erroneous information.” He said trial counsel brought him various forms to sign prior to
trial including the Waiver of Right to Testify form. The Defendant testified that he
mistakenly signed the form because trial counsel told him they were for “peremptory
choices.” The Defendant admitted that trial counsel asked him in front of the judge
during the Momon hearing if he wanted to testify, and he answered “no” on trial
counsel’s advice.
The Defendant claimed he expected to have a jury trial even as the State’s
witnesses were testifying. He asked trial counsel when they were going to start picking a
jury, and trial counsel said “just give ‘em (sic) time.” The last time the Defendant had a
jury trial was in 1985, so he was unaware of how the trial would work. The Defendant
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said that trial counsel never discussed trial procedure with him. According to the
Defendant, during the bench trial, he continued to inquire about the jury asking, “where’s
the jury,” but trial counsel said “we’ll get to it.” At the end of trial, the Defendant asked
why he did not have a jury, and trial counsel responded that he could no longer represent
him.
The Defendant said trial counsel “did not plan a defense, period.” The Defendant
then apparently offered other defenses including “sid[ing] with the arrest warrant”
because it was “void” and “invalid.” He said, if that failed, he would have “testified
exactly how everything happened;” that he did not “assault[] anybody, period;” and that
he was only “protesting.” Asked if there was anything else that he would like to tell the
judge regarding trial counsel’s representation, the Defendant said trial counsel “failed to
call my defense witnesses that I had requested.” The Defendant explained that he had
three witnesses, police officers Morton, Lee, and Baker, that could have verified that the
Defendant had been protesting while carrying a baseball bat, but he admitted that the
officers would not have been able to testify as to the events on the day of his arrest. He
agreed, however, that the victim had already testified that the Defendant had been known
to frequently carry a bat, so that fact was already in evidence. The Defendant also
admitted that trial counsel had subpoenaed Officer Lee, but he was dismissed without
consulting the Defendant. The Defendant said another witness, Ms. Greenlee, could have
verified his typical behavior with the bat. Again, the Defendant said trial counsel should
have argued that the arrest warrant was “bogus” because it was unsigned and not properly
stamped. The Defendant suggested that the arrest warrant would have “barred [him]
from being tried . . . they would have . . . had to rearrest me.”2 Nevertheless, the
Defendant agreed that he could have been indicted regardless of whether he was arrested.
On cross-examination, the Defendant again admitted that he had previously been
through a jury trial for another incident. At that trial, the Defendant was aware that jurors
came out and sat in the jury box. He conceded that in this case there was no jury in the
jury box. He explained that he had to “refamiliarize” himself with the process and
“wasn’t paying that attention.” The Defendant also reiterated that he told the trial judge
that he did not want to testify.
Trial counsel testified that almost one hundred percent of his work involved
criminal cases and that he had participated in around thirty jury trials prior to representing
the Defendant. In preparation for this trial, he reviewed discovery and provided the
Defendant with copies. Trial counsel further reviewed the video recording of the incident
“multiple times” with the Defendant, and he hired an Arabic translator to interpret dialog
in the video. Trial counsel discussed the case with the Defendant during a video
conference and every time they went to court, about half an hour each time. Trial counsel
2
According to his testimony, the Defendant filed a writ of error coram nobis addressing this
issue.
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was aware of the Defendant’s parole status at the time of representation. Asked how the
Defendant’s parole status affected his representation, trial counsel said, “Well. With the
life sentence, he was offered three [at] thirty, which is a Range 1, the lowest you can get
for the charge. He said he definitely didn’t want to take that, he didn’t want to take
anything . . . because it would be an automatic violation of the parole for life[.]” Trial
counsel’s defense strategy was that a baseball bat was not a deadly weapon per se, and if
it was not deadly per se, it had to be deadly in its use or intended use. Trial counsel
believed the video did not show the Defendant ever using or attempting to use the
baseball bat.
Trial counsel explained to the Defendant the process of the trial. On November
17, trial counsel had a video conference with the Defendant during which the Defendant
said, “the jury trial’s going to take too long” and he “want[ed] to go forward with a bench
trial because we could have a bench trial much quicker.” Trial counsel recalled the first
bench trial was set in June, six or seven months later. Trial counsel discussed the pros
and cons of a bench trial versus a jury trial with the Defendant briefly. He told the
Defendant that his case was essentially a “legal issue” and that “explaining this to a jury
could be detrimental, given the fact that he did have a baseball bat and that he always
carries a baseball bat[.]” According to trial counsel, the Defendant appeared
“confrontational” with people inside the market on the video. Trial counsel testified that
the Defendant “was ready to go forward with a bench trial[,] and he wanted it done as
quickly as possible.” Trial counsel said the Defendant never told him that he wanted a
jury trial. On the day of trial, the Defendant signed a Waiver of Right to Jury Trial form.
Asked if the Defendant ever inquired about the jury, trial counsel responded, “No. He
never asked that at all.”
Trial counsel said he discussed presenting evidence with the Defendant but said
the Defendant did not have any evidence other than testifying on his own behalf. Trial
counsel and the Defendant discussed several witnesses including Officers Baker and Liu,
whom the Defendant confused with Lee. Trial counsel subpoenaed both officers,
questioned them before trial, and ultimately dismissed them. Officer Baker “didn’t really
remember anything about it” and Officer Liu’s testimony would have been “detrimental
to the case” because he said the Defendant carried the bat “sometimes.” Trial counsel
explained all of this to the Defendant.
Trial counsel advised the Defendant against testifying because the Defendant was
“fairly eccentric,” the testimony would not “progress[] the case at all,” and the less
interaction the Defendant had with the judge the more beneficial it could be to the case.
When told that the Defendant felt “trapped” during the Momon hearing, trial counsel
said, “I just advised him that I didn’t think it was a good idea to testify, but that if he
wanted to, he could.” The Defendant said “ok” and followed trial counsel’s advice.
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During the bench trial, one of the State’s witnesses testified about prior
confrontations the Defendant had in the market. Trial counsel believed that the testimony
would have been grounds for a mistrial if heard in front of a jury; however, following a
bench conference, the trial court judge stated that he would not consider the evidence.
Trial counsel recalled discussing how the Defendant’s prior convictions would impact his
sentencing. He said it was “fairly clear . . . that he was a career or, you know, at least a
Range 3. But it didn’t really matter, because we were turning down Range 1 offers.”
Although trial counsel said the Defendant’s mental health was not an issue, he did
consider doing a mental health evaluation. Trial counsel ultimately did not have the
Defendant evaluated because it “seem[ed] that [the Defendant] understood the process.”
On cross-examination, trial counsel testified that he had been practicing law just
over nine years. He did not recall exactly how many times he met or discussed the case
with the Defendant, but it was “somewhere around six to eight [times], maybe more.” He
spoke to the Defendant a “few times” over the phone. Trial counsel did “exhaustive case
law research” on the Defendant’s case, which he argued in the motion for judgment of
acquittal. Trial counsel emphasized that it was the Defendant’s choice to have a bench
trial and the Defendant’s choice not to testify. He also stressed that he discussed the
possible defenses and witnesses with the Defendant prior to trial.
The Defendant was recalled as a witness. Defense counsel then presented him
with a copy of his signed Waiver of Right to Jury form and Waiver of Right to Testify
form. The Defendant said that his entire name was signed on the Waiver of Right to
Testify form because trial counsel “misled” him into signing. He “didn’t have [his]
glasses or [his] contacts, so [he] couldn’t really read,” and believed he was signing
something different. On the Waiver of Right to Jury form, the Defendant signed part of
his name and explained that he stopped signing
Because, like I had told you, it’s perjury. We had a controversy, because I
had told the man, informed the man that I was not going to waiver my right
to a jury trial and then, like I said, I thought that he put this paperwork in
front of me, I didn’t sign it. I started to but then I stopped. And that’s why
I trying, you know, get the Court, get the Court’s attention because I
thought that the Court was going to look at the form before you started the
bench trial. But you never did.
....
This was, this was a controversy. That’s they (sic) reason why I did not
waive my right to a jury trial.
Following the hearing, the trial court entered a written order on May 24, 2017,
denying relief and finding that the “[D]efendant has presented no claims of merit to
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substantiate relief for ineffective assistance of counsel.” The Defendant’s timely appeal
followed.
ANALYSIS
On remand, we are asked to address the merits of the Defendant’s ineffective
assistance of counsel claim. Although the Defendant failed to support this claim with
specific facts in his Motion for New Trial, see Tenn. Code Ann. §40-30-104(d), (e), we
are able to glean the following issues based upon the motion for new trial hearing
transcript, the order of the trial court, and the appellate briefs. See State v. Lester D.
Herron, No. 03C019109-CR-00284, 1992 WL 43273, at *4 (Tenn. Crim. App. Mar. 10,
1992) (even if an issue is not specially pled, a trial court may rule upon it if it is litigated
by the parties in a post-conviction hearing without objection). As far as we can tell, the
Defendant asserts that trial counsel was ineffective in (1) coercing the Defendant into a
bench trial; (2) misleading the Defendant into waiving his right to testify at trial; and (3)
failing to prepare a defense on the Defendant’s behalf. Additionally, based on the
testimony at the motion for new trial, the Defendant apparently argues that trial counsel
was ineffective in failing to provide the Defendant with pertinent discovery. He also
suggests for the first time on appeal that trial counsel was ineffective in failing to
adequately address the Defendant’s competency. We must deem the later two issues
waived because the Defendant failed to list the specific factual allegations supporting
these claims in his Motion for New Trial, the trial court did not rule on these issues, and
the State did not address them in its brief to this court. Id., see also Tenn. Ct. Crim. App.
R. 10(b). As to the remaining issues, we agree with the State, and conclude that the trial
court properly denied relief.
We review claims of ineffective assistance of counsel raised on direct appeal
under the same standard as those raised in post-conviction proceedings. State v. Burns, 6
S.W.3d 453, 461 n.5 (Tenn. 1999). Post-conviction relief is only warranted when a
petitioner establishes that his or her conviction or sentence is void or voidable because of
an abridgement of a constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee
Supreme Court has held:
A post-conviction court’s findings of fact are conclusive on appeal unless
the evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of
their testimony are matters for the trial court to resolve. The appellate
court’s review of a legal issue, or of a mixed question of law or fact such as
a claim of ineffective assistance of counsel, is de novo with no presumption
of correctness.
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Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).
Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger, 279 S.W.3d at 294 (internal citations omitted). In order
to prevail on an ineffective assistance of counsel claim, the petitioner must establish that
(1) his lawyer’s performance was deficient and (2) the deficient performance prejudiced
the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)). A petitioner
successfully demonstrates deficient performance when the petitioner establishes that his
attorney’s conduct fell “below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing
Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “‘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 370 (quoting Strickland, 466 U.S. at 694).
In denying relief on the Defendant’s ineffective assistance of counsel claim, the
trial court ruled as follows:
Specifically with regard to ineffective assistance of counsel, [trial counsel]
did an excellent job in representing [the Defendant] in this particular case.
He actually had a defense in what defense he could present in that he said
this was not an aggravated assault because [the Defendant] did not raise his
bat at someone and was not close enough to cause this person to fear from
being injured by [the Defendant]. The Court didn’t take that particular
view. And [trial counsel], the Court believes, did everything any lawyer
could do to represent [the Defendant] on this particular case. So I find that
his level of competence was high and that he did exactly what any lawyer
would do to represent a client.
Also, with regard to [the Defendant], I find his testimony not to be
credible. He specifically waived his right to testify, after being placed
under oath. He waived his right to a jury trial. And if he wanted a jury
trial, all he had to do is just simply stand up and say I want a jury trial.
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That’s all he had to do. And he’s been around the system long enough to
know that he could’ve done that.
So, I find that [trial counsel] did everything that he should’ve done
and could’ve done in representing him; and so I’m going to respectfully
deny his claim for ineffective assistance of counsel.
Upon our review, the record does not preponderate against the determination of
the trial court. As an initial matter, the trial court accredited the testimony of trial counsel
over the testimony of the Defendant as to each ground for relief. In regard to the
Defendant’s claim that trial counsel was ineffective because he coerced him into a bench
trial, the signed waiver of jury trial form belied this testimony. In addition, trial counsel
testified that the Defendant never told him he wanted a jury trial and sought a bench trial
to expedite the matter. As to the Defendant’s claim that he was misled when he signed a
form waiving his right to testify because he was confused during the Momon hearing, the
trial court found and the record reflects that “[the Defendant] specifically waived his right
to testify, after being placed under oath.” As his last ground for relief, the Defendant
argues that trial counsel was ineffective in failing to plan a defense and failing to call
various witnesses on his behalf. Although the Defendant testified that trial counsel failed
to provide a defense “period” and failed to call witnesses, trial counsel testified that he
conducted “exhaustive case law research” on the Defendant’s case. Trial counsel
mounted a legal defense which centered upon whether a baseball bat, as used in this case,
was a deadly weapon as required by law, and argued that the Defendant never raised the
bat at the victim. Trial counsel further explained that he did not call any defense
witnesses because, after discussing the case with two of the officers, their testimony
would not have been beneficial. In any event, the Defendant did not present any of the
purported witnesses during the hearing, see Black v. State, 749 S.W.2d 752, 757 (Tenn.
Crim. App. 1990), and had he done so, their testimony would have been cumulative to
the testimony of the victim, who conceded that the Defendant was often seen carrying a
baseball bat. Because the trial court found the Defendant’s testimony as to all issues
presented to be incredible, the Defendant has failed to establish by clear and convincing
evidence that trial counsel was ineffective. Accordingly, he is not entitled to relief.
CONCLUSION
Based upon the foregoing reasoning and analysis, we affirm the judgment of the
trial court.
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CAMILLE R. MCMULLEN, JUDGE
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