        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs February 1, 2005


                 WILBERT ROGERS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                            No. P-26410, W. Fred Axley, Judge



                  No. W2004-00654-CCA-R3-PC - Filed February 22, 2005



The petitioner, Wilbert Rogers, appeals the denial of post conviction relief, alleging ineffective
assistance of counsel by his trial attorney. The petitioner was originally convicted by jury of
second degree murder. After careful review, we affirm the denial of post-conviction relief.

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

JOE H. WALKER, III, SP .J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS , and ALAN E. GLENN JJ., joined.

Deborah A. Brandon, Tennessee, for the appellant, Wilbert Rogers.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General,
for the appellee, State of Tennessee.



                                           OPINION

        Appellant was convicted by a jury of second degree murder. On May 6, 1994, Appellant
stabbed the victim, James Bowdery, with a butcher knife. Approximately fifteen months passed
from the day the defendant stabbed Bowdery to the day Bowdery died from causes secondary to
a stab wound to the heart. The conviction was upheld on appeal by the Tennessee Supreme
Court, State v. Rogers, 992 S.W.2d 393 (Tenn. 1999), which abolished the common law rule that
the victim’s death must occur within a year and a day of the mortal wound. The conviction was
eventually affirmed by the United States Supreme Court on May 14, 2001. Rogers v. Tennessee,
532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001).



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         Appellant filed for post-conviction relief, alleging ineffective assistance of counsel, in
that trial counsel failed to object to the admissibility of photographic evidence; that trial counsel
did not request a continuance when defendant appeared for trial in a jail uniform; and that he did
not object when the trial went forward even though other courts were closed due to inclement
weather. After an evidentiary hearing, his petition was denied.

        The petitioner is required to prove the allegations contained in his petition by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f); Nichols v. State, 90 S.W.3d 576, 586
(Tenn. 2002). A trial court's factual findings shall not be disturbed unless the evidence in the
record preponderates against them. Determinations of whether counsel provided a defendant
constitutionally deficient assistance present mixed questions of law and fact. As such, our
review is de novo, and we accord the conclusions reached below no presumption of correctness.
Id.
        First, a defendant must prove that counsel was ineffective by showing errors made by
counsel that caused the assistance of counsel to fall below prevailing professional norms.
Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In
making this assessment, however, courts must be deferential to the tactical decisions of counsel
and must not base assessments on a lawyer's competence from the clear perspective of hindsight.
Id. at 689 .

        Second, upon establishing that counsel was deficient, the petitioner must establish a
reasonable probability that the outcome of the trial would have been different but for the
deficiencies of counsel. Strickland, 466 U.S. at 687, 694.


                                      Mug Shot Photo Spread

       Appellant alleges his trial attorney was deficient by failing to object to a mug shot photo
used by the police in a photo spread, which was introduced at trial.

        The state’s proof at trial established that Appellant was at the home of Lisa Sledge with
the victim, James Bowdery. During the night Appellant stabbed the victim with a knife, and left.
During the trial, Appellant’s mug shot was admitted as an exhibit when Ms. Sledge identified the
photograph as one she had picked out of a photo line-up shown to her by Memphis police.

        A photographic identification is admissible unless, based upon the totality of the
circumstances, "the confrontation conducted . . . was so unnecessarily suggestive and conducive
to irreparable mistaken identification that [the accused] was denied due process of law." Stovall
v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967).

       The photo used in the array shown to Ms. Sledge was a mug shot of the Appellant which
had been taken incident to a 1978 arrest. Appellant has failed to show that the state did not have
a need to introduce the photo spread. The mug shot was from a prior arrest, and did not
necessarily imply that the defendant had a prior record. As noted by the post-conviction court,
"the photograph, coupled with police identification marks, suggests, at the most, an arrest only.”

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       We find that trial counsel was not deficient for failing to object to the introduction of the
photo. Moreover, the Appellant has failed to show that he was prejudiced by trial counsel's
omission. Accordingly, the Appellant has failed to prove that he received ineffective assistance
of counsel by clear and convincing evidence.

                                      Clothing During Trial

        Appellant wore jail clothing during the trial. He testified at the post-conviction hearing
that he did not have “street clothes” because the officers “apparently had lost my clothes.”

       Appellant testified that he did not say anything to his trial attorney about his clothes. His
counsel did not object to Appellant wearing jail clothes during trial, and Appellant did not
mention it to his attorney or anyone else.

        An accused should not be forced to attend his trial attired in prison garb if the accused
requests permission to dress in civilian clothes. Carroll v. State, 532 S.W.2d 934 (Tenn. Crim.
App. 1975). However, Appellant has made no showing that he requested permission to dress in
civilian clothes. To the contrary, he testified he did not mention it to his trial attorney.

        A defendant may choose for tactical purposes to place his custodial status before the jury.
See, Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525 (1986). A
defendant, for example, may hope to appeal to the jury's sympathy through his prison attire.
Jurors are quite aware that the defendant appearing before them did not arrive there by choice or
happenstance. Id.

       We find that trial counsel was not deficient for failing to request a continuance so
Appellant could obtain civilian clothes. Moreover, the Appellant has failed to show that he was
prejudiced by trial counsel's omission. Accordingly, the Appellant has failed to prove that he
received ineffective assistance of counsel by clear and convincing evidence.


                              Inclement Weather During Trial

        Appellant contends his trial counsel was deficient by not objecting to the trial continuing
during inclement weather.

       Appellant testified at the post-conviction hearing that his trial began January 29 and
ended January 31. On the last day, the trial judge told the jury that the other courts in Memphis
were closed due to the weather. He told the jury that everyone for this trial was present, but they
were the only court working that day.

         Appellant contends that his girlfriend was turned away at the door to the courthouse on
January 31, and concludes that he was denied a right to a public trial. The girlfriend did not
testify. The post-conviction court found that the inclement weather did not result in a closure of
the trial to the public.

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       The Sixth Amendment to the United States Constitution provides that "in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend.
VI. Similarly, the Tennessee Constitution provides that "in all criminal prosecutions, the
accused hath the right to . . . a speedy public trial." Tenn. Const. art. I, § 9. The Tennessee
Supreme Court held that the First Amendment's free speech guarantees and the Sixth
Amendment's guarantee of public trials require a court to articulate an overriding interest in
closing a public trial and that the closure order be narrowly tailored so as to accommodate only
the overriding interest in restricting public attendance. See State v. James, 902 S.W.2d 911
(Tenn. 1995); State v. Drake, 701 S.W.2d 604 (Tenn. 1985).

         In this case, however, the judicial proceedings were not closed by the trial judge. Quite
the contrary, the trial judge had his court open, while other courts were apparently closed due to
weather. Appellant has failed to show that the weather-related closing of the other court-rooms
at the time of his trial resulted in a denial of a public trial as contemplated by Waller v. Georgia,
466 U.S. 39, 104 S. Ct. 2210, 81 L.Ed.2d 31 (1984). The trial judge noted on the record that his
court-room was open, and all participants were present.

       Appellant has not shown trial counsel to be deficient by not objecting to the trial
continuing during inclement weather.

        We have reviewed the record and find the evidence does not preponderate against the
factual findings of the post conviction court.

        The post-conviction court found that petitioner has failed to establish the factual
allegations contained in his petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-
110. Appellant did not establish that (a) the services rendered by trial counsel were deficient and
(b) the deficient performance was prejudicial. Appellant did not establish that the services
rendered or the advice given was below the range of competence demanded of attorneys in
criminal cases. Appellant did not establish that there is a reasonable probability that, but for
counsel's deficient performance, the result of the proceeding would have been different. We
therefore find no error in the denial of post conviction relief.

       The judgment of the post-conviction court is affirmed.

                                                      _______________________________
                                                      JOE H. WALKER, III, SP.J.




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