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

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No. E2022-00125-CCA-R3-PC

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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, 2013 WL 4772997, 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. Id.

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. Id. 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

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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, 120 S.W.3d 828, 830 (Tenn.

2003). Post-conviction relief cases often present mixed questions of law and fact. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the post-

conviction court’s factual findings unless the evidence preponderates against such findings.

Kendrick v. State, 454 S.W.3d 450, 457 (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, 40 S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)); see

also Kendrick, 454 S.W.3d at 457. 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, 454 S.W.3d at 457.

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, 466 U.S. 668, 687 (1984);

see State v. Taylor, 968 S.W.2d 900, 905 (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

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U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

Accordingly, if we determine that either factor is not satisfied, there is no need to consider

the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v.

State, 126 S.W.3d 879, 886 (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, 466 U.S. at 689; see also Henley, 960

S.W.2d at 579. 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,

197 S.W.3d 782, 790 (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, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. 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, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. 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.” Id. (quoting Strickland, 466 U.S. at 694) (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, 2018 WL 1779382, at *20 (Tenn. Crim. App. Apr. 13, 2018),

(affirming denial of post-conviction relief where “both attorneys were disbarred after the

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[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, 2016 WL 3621528, 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, 947 S.W.2d 156, 163 (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. Id. 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, 523 S.W.2d at 936; Goad,

938 S.W.2d at 369. “Defense counsel must investigate all apparently substantial defenses

available to the defendant and must assert them in a proper and timely manner.” Baxter,

523 S.W.2d at 935 (quoting Beasley v. United States, 491 F.2d 687, 696 (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

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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.

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ROBERT L. HOLLOWAY, JR., JUDGE

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