             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs September 27, 2000

                     MICHAEL V. BAILEY v. STATE OF TENNESSEE

               Post-Conviction Appeal from the Criminal Court for Sullivan County
                               No. C41,135   R. Jerry Beck, Judge



                                           No. E2000-00432-CCA-R3-PC
                                                 October 19, 2001


        A Sullivan County jury convicted the petitioner of one count of second degree murder
involving the death of his son. For this offense the petitioner received a sentence of twenty years as
a Range I, standard offender, and a $50,000 fine. He unsuccessfully brought a direct appeal
challenging both his conviction and sentence. Subsequently, he filed a pro se1 post-conviction
petition and was appointed counsel from the public defender’s office. Following an evidentiary
hearing, the trial court took this matter under advisement and later issued a detailed order dismissing
the petition. Thereafter, the petitioner requested that his appointed attorney withdraw from the case
and that he be allowed to bring his appeal pro se. The trial court granted this motion,2 and the
petitioner now brings this appeal raising three issues. More specifically, he asserts that (1) the jury
instructions, when viewed overall, effectively denied him “a fair trial and a reliable verdict;” (2) the
State engaged in misconduct and denied him a fair trial by withholding exculpatory material; and
(3) the prosecuting officer made the result of the petitioner’s trial unreliable because the officer
perjured himself. After reviewing these issues, we find that all have been waived and/or lack merit.
We, therefore, affirm the trial court’s denial of post-conviction relief.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Michael V. Bailey, Mountain City, Tennessee, Pro Se


         1
           While the petitioner’s direct appeal was pending, the Tenness ee Supre me Cou rt ordered his trial counsel to
cease practicing law. Subsequently, trial counsel and the petitioner ca me to be inc arcerated in the same p rison facility.
There trial counsel acted a s the petitioner’s “legal aide” in the formulation of the petitioner’s pro se petition.

         2
            The reco rd reveals tha t prior to granting this request, the trial court had the petitioner returned for a hearing
to “fully inform[] [him] of the poten tial difficulties facing a d efendant wh o seeks to re present him self” and to inquire into
his “knowled ge, educatio n and exp erience with the judicial system.”
Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Greeley Wells, District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney, for
appellee, State of Tennessee.


                                              OPINION


                                       Factual Background
       In deciding the petitioner’s case on direct appeal, this Court summarized the facts as follows:

               The defendant, a truck driver, fell from a flatbed trailer and injured his spine.
       The defendant subsequently underwent disc replacement surgery in 1992. He was
       prescribed a variety of drugs following surgery including Prozac, an anti-depressant,
       Orudus, a muscle relaxer and pain reliever, Zantac, a digestive aid, Darvocet, a pain
       reliever, and Valium, an anti-anxiety drug.
               On June 8, 1994, the defendant visited his doctor and refilled his
       prescriptions. He subsequently went to visit his mother who was ill. While visiting
       his mother, the defendant took each of the aforementioned drugs. When the
       defendant arrived home later that afternoon, he took an additional dose of Darvocet,
       Valium, and Zantac tablets. He also began drinking bourbon whiskey.
               Prior to the evening of June 8th, it was evident the defendant and his youngest
       son, Justin, the victim in this case, did not get along. The victim's step-sister testified
       the defendant did not like Justin, and the defendant had threatened to "blow his
       [Justin's] brains out" a few days before Justin was murdered. On other occasions, the
       defendant had threatened Justin, physically assaulted him, and destroyed Justin's
       stereo. Jason, the defendant's oldest son, told the jury his father had threatened Justin
       in the past. The defendant told Justin, "I brought you into this world, I can take you
       out of this world."
                On the evening in question, the defendant recounted to his sons, Jason and
       Justin, an incident which upset the defendant. The defendant and Justin encountered
       the defendant's father-in-law in a grocery store. The defendant and his father-in-law
       argued over fifty dollars the defendant and his wife owed to the father-in-law. Justin
       walked away from the argument. This angered the defendant because he wanted
       Justin to stand by his side and protect him because his physical condition would not
       permit him to defend himself. The defendant expressed anger as he recounted the
       incident. He asked Jason, his oldest son, if he would have stood by him during the
       argument.
                The defendant subsequently went to Jason's room to listen to music. He
       eventually displayed a pistol, cocked it, and pointed it at Jason. When Jason told the
       defendant to remove the pistol from his room, the defendant placed the pistol in his
       pocket. He told Jason "it's not for you." The defendant then sat in a bean bag chair.



                                                  -2-
               When Justin entered Jason's room, Jason and the defendant were listening to
        music. The defendant subsequently arose and pulled the pistol from his pocket. He
        pointed the pistol toward the floor. He then raised the pistol and pointed it at Justin's
        groin. A few seconds later the defendant pointed the pistol at Justin's head. Justin
        asked the defendant, "[A]re you going to shoot me, Dad?" Seconds later the
        defendant shot the victim in the eye. This gunshot wound resulted in the victim's
        death. The defendant went down a flight of stairs and exited the residence. He
        walked to a road behind his residence and threw the pistol on the ground.
               The defendant testified he and his sons had been playing with the gun. They
        were "cutting up" and "acting stupid." He did not remember a shot being fired. He
        only remembered standing in a road behind his residence and hearing his wife
        scream. His defense at trial was he did not commit a knowing killing because he was
        under the influences of medication and alcohol.

State v. Michael Bailey, No. 03-C-01-9601-CR-00028, 1997 WL 625278 at, *1-2 (Tenn. Crim. App.
at Knoxville, Oct. 10, 1997).
         Turning to the proof from the post-conviction hearing, much of the testimony revolved
around the taking of a blood sample at the hospital and the results of a blood alcohol content test.
According to Dr. Curtis Drumwright, an emergency physician on duty when the petitioner arrived
at Bristol Regional Medical Center, the petitioner came to the facility in police custody complaining
of abdominal pain. Referring to the medical record of this visit, Drumwright recounted that he had
ordered a blood sample taken at the request of the police. He acknowledged that he had not seen the
blood drawn but noted that the report reflected a blood alcohol content of .11. He went on to explain
that the petitioner had been “somewhat -- under the influence;” thus, a clinical need for this and other
tests had also existed.3 Furthermore, the doctor stated that he had not seen anyone give the blood
to a police officer nor had he seen the petitioner sign a consent form prior to the drawing of the
blood. In addition, Karen Proffitt, the medical records keeper for the hospital, testified that her office
had not directly provided these related records to the Sullivan County Sheriff’s Department or to the
district attorney’s office. Also, Lynn Musselwhite, the custodian of the hospital’s business records
stated that the hospital had not billed the sheriff’s department for the above-referenced ethyl alcohol
test. This along with the other services rendered had been billed to the petitioner.
         The defense then called the petitioner. While admitting that the jury instructions “could be
technically right,” the petitioner asserted that they were not sufficiently clear for a lay person to
understand. More specifically, he alleged that the instructions emphasized “alcohol’s not a defense”
to the point that the instruction overshadowed the potential for intoxication to negate a mental
element of an offense. Additionally, the petitioner contended that he had signed an “altered . . . DUI
consent form” concerning the taking of blood at the hospital. He also averred that Officer Ronnie
Bledsoe, who had taken him to the hospital, had carried out a round cardboard container. Based upon
his purportedly having worked at a hospital in the past, the petitioner claimed to know that the latter
had contained the blood sample, though he provided no further information indicating that this was


        3
           On cross-examination, Drumwright added that while he had been able to smell alcohol on the petitioner, he
had not ex perienced any difficulty in com municating w ith the petitioner.

                                                        -3-
the case. In fact, the petitioner at first claimed to have heard Bledsoe tell Detective Louie Eleas, the
prosecuting officer for the case, about the blood drawn, but later the petitioner admitted that he had
not heard anything specifically about the blood sample mentioned.
         Lastly, the petitioner called his trial attorney. At the time of the trial, this witness had
practiced law for three years and stated that he had tried forty jury trials in Tennessee prior to the
petitioner’s. He stated that he had prepared three jury instruction requests, but, presumably because
of fatigue, he had not followed through on them. When asked by the trial court if there were any
special requests, counsel testified that he said, “no.” Furthermore, when the trial court provided
counsel with the instructions to be given the jury, counsel voiced no objection to them. Nevertheless,
at the post-conviction hearing, he stated his opinion that the instruction given was incomprehensible
to the jurors. As a result counsel felt that he had provided ineffective assistance in not objecting to
the instruction at trial and in failing to raise the issue in the petitioner’s new trial motion.
         Concerning the test of the first vial of blood taken from the petitioner, counsel testified that
he had not seen the test results at the time of trial. According to this witness, the copy he had
received of the medical report through discovery had not included the initial page of the report. He
added that when he had taken a handwritten release form bearing the petitioner’s signature to the
hospital in an attempt to get a copy of the record, the hospital had refused to provide it under those
circumstances. Nevertheless, he acknowledged that the record had been sent to the trial court
pursuant to a subpoena and had become Exhibit 70 presented to the jurors. He also asserted that the
State had improperly withheld a modified DUI consent form signed at the hospital. Among other
claims, counsel further contended that the State had presented inaccurate testimony regarding
whether the petitioner had been “in custody” while at the hospital. Before completing his testimony,
this former attorney admitted that he stands convicted of two counts of theft over $60,000; one count
of theft over $10,000; one count of theft over $1,000; one count of theft over $500; and forgery.
After this witness the petitioner rested his case.
         The State then called Nancy Harr and Detective Louie Eleas. Harr had been one of the
prosecutors involved in preparing and conducting the petitioner’s trial. In this capacity she had
engaged in open file discovery with the petitioner’s trial counsel4 and provided him with copies of
“all discovery materials.” Other than her work product, Harr stated, “[I]f it was in my file [defense
counsel] had it.” She underscored that she had not seen the petitioner’s medical report until the trial
court provided her with a copy during trial. In addition, she claimed that she had not thought that
there had been another blood test, and she indicated her belief that Detective Eleas had testified
truthfully.
         Turning to Eleas, the detective asserted that he had not received any blood sample other than
the one taken from the petitioner at the jail. He added that he had neither requested nor had he
become aware of the hospital sample’s existence. Eleas went on to explain that when medical
personnel draw a blood sample for law enforcement, certain forms are completed as an aid to
establish the chain of custody; however, he noted that he had not heard of this procedure’s being
needed or done in this case. Furthermore, Eleas provided a different description of the containers
used to transport blood from that given by the petitioner. He also indicated that he had never seen


         4
           The petitioner’s trial counsel testified that he did not recall going to the district attorney’s office to look at the
file but acknowledged that H arr had provided him with “quite lengthy” documents.

                                                              -4-
a “DUI type release” document allegedly signed by the petitioner. Nevertheless, though he had
initially claimed that the petitioner had not been in custody while at the hospital, Eleas ultimately
admitted that the petitioner probably would not have been allowed to leave had the petitioner wished
to do so.
         The trial court heard this and other evidence before subsequently issuing a written order
denying the post-conviction petition. In so doing, the trial court made extensive findings of fact.


                               Post-Conviction Standard of Review

        In analyzing the issues raised, we first note that a petitioner bringing a post-conviction
petition bears the burden of proving the allegations asserted in the petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-210(f). Moreover, the trial court's findings of fact “are
conclusive on appeal unless the evidence preponderates against the judgment.” Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996); see also Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995).


                                      Post-Conviction Waiver

       We further observe that Tennessee Code Annotated Section 40-30-206(g) provides the
provisions governing waiver of post-conviction allegations. According to this statute:

       A ground for relief is waived if the petitioner personally or through an attorney failed
       to present it for determination in any proceeding before a court of competent
       jurisdiction in which the ground could have been presented unless: (1) The claim for
       relief is based upon a constitutional right not recognized as existing at the time of
       trial if either the federal or state constitution requires retroactive application of that
       right; or (2) The failure to present the ground was the result of state action in
       violation of the federal or state constitution.

Tenn. Code Ann. § 40-30-206(g)(1),(2).


                                   Jury Instruction Impropriety

         Turning to his first contention, the petitioner alleges that the jury instructions given by the
trial court “fail[ed] to adequately and fairly submit the issues and applicable law to the jury” thereby
unconstitutionally denying him a fair trial. More particularly, the petitioner claims that the jury
instructions taken as a whole bore the same flaw that formed the basis for the reversal in Phipps v.
State, 883 S.W.2d 138 (Tenn. Crim. App. 1994), rev’d on other grounds, 959 S.W.2d 538 (Tenn.
1997). The petitioner also raises an ineffective assistance of counsel claim related to this issue.
         At the outset we find that the direct challenge to the jury instructions has been waived by the
petitioner’s failure to raise it on direct appeal. See Tenn. Code Ann. § 40-30-206(g). The petitioner


                                                  -5-
neither alleges nor proves that either of the exceptions forestalling waiver apply in this situation.
Nevertheless, this court has since considered ineffective assistance of counsel claims connected with
jury instructions. See, e.g., Fred Edmond Dean v. State, No. E1998-00135-CCA-R3-PC, 2000 WL
337552, at *4-5 (Tenn. Crim. App. at Knoxville, Mar. 21, 2000) applic. granted (Tn 11/13/00). Thus,
we address this issue on the merits relative to ineffective assistance of counsel.


                      A. Ineffective Assistance of Counsel - Standard of Review

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance, the
petitioner must prove “that (a) the services rendered by trial counsel were deficient and (b) the
deficient performance was prejudicial.” Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996). To satisfy the deficient performance prong of this test, the petitioner 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). Furthermore, to demonstrate
the prejudice required, the petitioner “must show that there is a reasonable probability that, but for
counsel's” deficient performance, “the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984).
"Because a petitioner must establish both prongs of the test to prevail on a claim of ineffective
assistance of counsel, failure to prove either deficient performance or resulting prejudice provides
a sufficient basis to deny relief on the claim." Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
Indeed, “a court need not address the components in any particular order or even address both if the
[petitioner] makes an insufficient showing of one component." Id.


                        B. Failure to Challenge Alleged Jury Instruction Error

         As aforementioned, the petitioner acknowledges that the instructions given in his case may
have been “technically correct;” however, he claims that when considered as a whole, the charge did
not effectively set out the law in a manner understandable by lay jurors. According to the petitioner,
the trial court repeated that diminished capacity was not a defense without clarifying that it could be
used to negate a mental element of an offense leading to a conviction for a lesser crime. In addition,
the petitioner cites a similar deficiency regarding the voluntary intoxication charge.5
         Without question the accused in a criminal trial has a “right to a correct and complete charge
of the law” applicable to the case. Phipps, 883 S.W.2d at 142. At this petitioner’s trial, the court
charged the jurors that it was their “duty to carefully consider each instruction equally in light of and
in harmony with the others.” The trial court went on to explain that the jury must find every element
of an offense proven beyond a reasonable doubt in order to find the petitioner guilty. Among those


         5
           In all, the petitioner alleges approximately ten problems related to the instruction. Many of these overlap, and
most seem connected with the aforementioned contentions. With regard to the unrelated assertions, we note that the
petitioner essentially failed to provide supporting autho rity for his claims; thus, we find these waived under Rule 10(b)
of the Cou rt of Criminal A ppeals of T ennessee.

                                                           -6-
elements listed for second degree murder (the offense of which the petitioner was convicted) was
“that the killing was knowing.” The trial court defined “knowing” for the jury. Furthermore, the trial
court emphasized that “the State must prove beyond a reasonable doubt the required culpable mental
state of the defendant before he can be found guilty of any offense embraced in this indictment.”
Almost immediately thereafter the trial court admonished that the petitioner “can only be found
guilty of committing the offenses embraced in this indictment if he acted intentionally or knowing
[sic], with respect to each element of the offense . . . . Second degree murder requires that the act be
committed intentionally or knowingly.” After detailing the mental elements for the lesser included
offenses, the trial court stated: “Evidence as to a defendant’s diminished mental capacity may be
considered by you to show that he was incapable of forming the specific culpable mental state
required for any particular criminal offense. It is a question for the jury as to whether such evidence
exists and as to what weight it should be given.”
         The trial court next set out numerous definitions relative to voluntary and involuntary
intoxication. First the court explained that intoxication generally is “not a defense to prosecution
for an offense” but that involuntary intoxication is a defense “if as a result of the involuntary
intoxication, the person lacked substantial capacity either to appreciate the wrongfulness of the
person’s conduct or to conform that conduct to the requirements of the law allegedly violated.” After
making it clear that a finding of involuntary intoxication could lead to an acquittal, the trial court
charged the jury that “[i]ntoxication, whether voluntary or involuntary, is relevant to the issue of the
essential element of the defendant’s culpable mental state. ” Though the petitioner complains that
the trial court did not specifically define “culpable mental state,” the court did follow the latter
instruction with, “[i]n this case, the State must prove beyond a reasonable doubt the required
culpable mental state of the defendant which is if he acted intentionally or knowingly, with respect
to each element of the offense” in order to sustain a second degree murder conviction. In addition,
the trial court specifically stated: “If you find that the defendant was intoxicated to the extent that
he could not have possessed the required culpable mental state, then, he cannot be guilty of the
offense charged.” Finally, the trial court reiterated: “If you are not satisfied beyond a reasonable
doubt that the defendant possessed the culpable mental state, then you must find him not guilty.”
         Contrary to the petitioner’s view, we find that the above-outlined instruction fairly and
adequately apprized the jury of the law in an understandable manner. The situation presented here
is distinguishable from State v. Phipps and from State v. Hall, 958 S.W.2d 679 (Tenn. 1997)–cases
cited by the petitioner. In Phipps, the trial court particularly instructed the jury:

       The defendant contends that he was suffering from mental conditions known as post
       traumatic stress disorder [PTSD], and major depression at the time of the
       commission of the criminal offense giving rise to this case. I charge you that post
       traumatic stress disorder and major depression are not defenses to a criminal charge.
       Insanity may be a defense, however, the defendant makes no claim that he was insane
       at the time of the killing giving rise to this case.

Phipps, 883 S.W.2d at 142. The opinion makes no reference to instructions potentially tying PTSD
and the major depression to Phipps’ culpable mental state; however, in the instant case the link
between the petitioner’s alleged diminished capacity and/or intoxication and the culpable mental


                                                  -7-
state was articulated in the trial court’s instructions. Turning to Hall, we find it even less applicable
because therein the supreme court did not wrestle with this type of jury instruction issue, but rather
with the admissibility of expert testimony. Hall, 958 S.W.2d at 688-92. Thus, though diminished
capacity is discussed in connection with the trial court’s refusal to admit particular testimony, Hall
is inapplicable in this case.
        Based upon these findings and the record presented, we conclude that counsel did not provide
deficient performance in failing to raise this issue previously. As such, the petitioner’s ineffective
assistance of counsel claim lacks merit.


                                             Alleged Brady Violations

        The petitioner next contends that the State withheld from him exculpatory evidence
consisting of the first page of a medical report, a modified DUI consent form, and blood drawn at
the hospital on the night of the murder. Nevertheless, again the petitioner failed to raise these matters
on direct appeal and does not prove that either of the exceptions forestalling waiver apply in this
situation. See Tenn. Code Ann. § 40-30-206(g).6 We therefore conclude that he has waived these
contentions.
        Furthermore, we observe that even if the petitioner had not waived these concerns, he failed
to provide the requisite clear and convincing evidence supporting them. See Tenn. Code Ann. § 40-
30-210(f). In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963),
the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." Additionally, the Tennessee Supreme
Court has noted that to establish a due process violation under Brady, all four of the following
prerequisites must be met:

         1. The defendant must have requested the information (unless the evidence is
         obviously exculpatory, in which case the State is bound to release the information
         whether requested or not);
         2. The State must have suppressed the information;
         3. The information must have been favorable to the accused; and
         4. The information must have been material.

Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim. App. 1998).




         6
            In his amended petition filed December 10, 1999, the petitioner did raise an ineffective assistance claim related
to trial counsel’s failure to secure a copy of the medical report’s first page; however, he does not present any argument
in his brief to this Co urt concern ing this claim. H e has, thus, waive d the matter p ursuant to Ru le 10(b) of the Court of
Criminal Appeals of Tennessee.

                                                             -8-
        Looking to the second prerequisite alone,7 we find insufficient proof establishing that the
State ever had any of these items in its possession or that the State attempted to prevent the petitioner
from acquiring them. Concerning the medical report, the petitioner was aware that he had been to
the hospital; he had informed his attorney of that fact; the report was the petitioner’s own; the full
report was submitted to the jury at trial after defense counsel had subpoenaed the record to court;
the hospital’s medical records keeper testified that the report had been provided to the public
defender; this witness further stated that she saw no indication that the State had requested or been
provided these documents; and former Assistant District Attorney Harr related that she had first
encountered the records at trial. With respect to the alleged modified DUI consent form, the only
proof offered to support its existence was the petitioner’s testimony. Finally, regarding the blood
sample itself, proof was presented showing that a sample had been ordered and that the hospital had
tested it; however, there was no proof that this sample had at any point come under the State’s
control. Faced with these facts and for the aforementioned reasons, we conclude that this issue does
not entitle the petitioner to relief.


                                             Perjured Statements

        Lastly, the petitioner contends that Detective Louie Eleas lied under oath during the trial.
While a portion of his accusation is unclear, the petitioner seems to contend that Eleas testified
falsely about receiving the objects discussed in the previous issue. The petitioner also avers that the
detective lied about when the petitioner came into custody.
        Once more, we find that the petitioner has waived both of these matters by failing to
previously raise them or provide the court with proof of one of the exceptions to the post-conviction
waiver provisions. See Tenn. Code Ann § 40-30-206(g). Additionally, regarding the blood test items,
a review of the analysis in the previous issue reveals that the petitioner has failed to provide clear
and convincing evidence that these items were ever in the State’s possession before trial, much less
that Eleas perjured himself concerning the items. Finally, although Eleas’ trial testimony reveals that
he stated petitioner was not in custody during the hospital visit, and Eleas’ post-conviction testimony
reveals that petitioner was in custody, the discrepancy appears to result from Eleas’
misunderstanding concerning when an individual is legally “in custody,” rather than from perjury.
Thus, even if this issue were not waived, it lacks merit. See Tenn. Code Ann. § 40-30-210(f). The
petitioner is not entitled to relief on this issue as well.




                                                   Conclusion




         7
          Though this analysis focuses on the second factor, we believe that others may also very well be re levant to
precluding relief in this situation.

                                                         -9-
       For the foregoing reasons, we find that all of the petitioner’s allegations are waived and/or
do not merit relief. Accordingly, the judgment of the trial court is AFFIRMED.


                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




                                               -10-
