            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                          FEBRUARY 1997 SESSION
                                                          July 11, 1997

                                                     Cecil W. Crowson
THOMAS E. MONTOOTH,           *                     Appellate Court Clerk
                                   C.C.A. # 01C01-9604-CC-00126

             Appellant,       *    WHITE COUNTY

VS.                           *    Hon. Charles D. Haston, Judge

STATE OF TENNESSEE,           *    (Post-Conviction)

             Appellee.        *



For Appellant:                     For Appellee:

James H. Stutts                    Charles W. Burson
Dickson & Stutts                   Attorney General & Reporter
P.O. Box 111
Sweetwater, TN 37874               Lisa A. Naylor
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   William Edward Gibson
                                   District Attorney General

                                   Anthony J. Craighead
                                   Asst. District Attorney General
                                   145 South Jefferson Avenue
                                   Cookeville, TN 38501-3424



OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION



              The petitioner, Thomas E. Montooth, appeals the trial court's denial of

post-conviction relief. In this appeal of right, the petitioner complains that the trial

judge erred by denying a motion for recusal and by concluding that the petitioner

received the effective assistance of counsel.



              We find no error and affirm the judgment of the trial court.



              On December 14, 1987, the petitioner killed the victim, Charles Verble,

by shooting him three times. While the petitioner claimed that the shooting was in

defense of his son, the state had established that the defendant had pursued the

victim long after the conclusion of their altercation, obtained a gun, and expressed

his anger over a debt.



              On November 29, 1988, the petitioner was convicted of second degree

murder. The trial court imposed a thirty-year sentence. This court affirmed the

conviction. State v. Thomas E. Montooth, Sr., No. 89-235-III (Tenn. Crim. App., at

Nashville, Sept. 19, 1990). On January 8, 1991, the supreme court denied

application for permission to appeal. The petitioner filed this petition for post-

conviction relief in 1992. The petitioner sought the recusal of the trial judge, Charles

D. Haston; and, after an order was entered denying the request, the petitioner was

granted an interlocutory appeal by permission from the trial court. See Tenn. R.

App. P. 9. This court, however, declined interlocutory review and the supreme court

denied application for permission to review the issue.




                                             2
                                                       I

                 The petitioner claims that his post-conviction judge should have

granted the motion for recusal. His grounds are summarized as follows:

                 (1)     that the post-conviction judge, who had presided
                 at the trial of the petitioner, had previously recused
                 himself from hearing a civil claim based upon the same
                 facts at issue in the criminal case;

                 (2)     that the post-conviction judge had previously
                 expressed an opinion upon the performance of the
                 petitioner's trial counsel;

                 (3)    that the post-conviction judge had no jurisdiction
                 to entertain the petition under Tenn. Code Ann. § 40-30-
                 103(b) (Supp. 1993);

                 (4)  that the post-conviction judge had failed to
                 adequately address the merits of the petition; and

                 (5)    that the post-conviction judge had caused a delay
                 in the appeal by failing to properly preserve the record.

In response, the state contends that the trial court acted within its discretionary

authority by overruling the motion to recuse.



                 Judge Charles D. Haston1 presided at the criminal trial. The record

indicates that Judge Haston had been designated by our supreme court to hear the

case in the White County Criminal Court. Sometime after the conviction, Judge

Haston recused himself from participating in a wrongful death civil action against the

petitioner. In making this claim, the petitioner reasoned that if Judge Haston had

grounds to recuse himself in the civil case, he should also recuse himself in this

post-conviction matter.2




        1
         The Thirteenth Judicial District includes Clay, Cumberland, DeKalb, Overton, Pickett, and
Putnam Counties. Judge Haston is the Circuit Judge for District Thirty-One which includes Van Buren
and W arren Coun ties.

        2
         The initial po st-c onviction counsel found no basis to request re cusal, reporte d the petition er's
insistence to prosecute the claim, and was permitted to withdraw on February 12, 1993.

                                                      3
              Initially, our scope of review is limited. Whether to grant a motion to

recuse is discretionary with the trial judge. Caruthers v. State, 814 S.W.2d 64, 67

(Tenn. Crim. App. 1991). This court may reverse only when the trial judge has

clearly abused that discretionary authority. State v. Cash, 867 S.W.2d 741, 749

(Tenn. Crim. App. 1993). The trial judge should recuse himself "whenever his or her

'impartiality might reasonably be questioned.'" Alley v. State, 882 S.W.2d 810, 820

(Tenn. Crim. App. 1994) (quoting Code of Judicial Conduct, Canon 3(c)). Recusal is

appropriate "when a person of ordinary prudence in the judge's position ... would

find a reasonable basis for questioning the judge's impartiality." Id.



              Here, the post-conviction judge allowed the petitioner an opportunity to

present any factual basis for the recusal. The burden of persuasion, in our view,

was upon the petitioner. Any number of reasons may have existed for the recusal in

the civil case. This court may not assume, absent supporting cause, that the trial

judge should have been disqualified from the proceeding.



              At sentencing, the trial judge made the following observations

regarding the performance of trial counsel:

              [Attorney John H.] Turnbull has sent a first-class brief on
              the matter of sentencing, which I appreciate very much.
              He has done an excellent job in that regard.... [The
              petitioner] probably should have been convicted of first
              degree murder, except for the good work of his lawyers.



              Judges who make on the record findings of fact or general

observations about the course of a criminal trial are not disqualified from presiding

over a subsequent proceeding. See State v. Boggs, 932 S.W.2d 467, 472 (Tenn.

Crim. App. 1996). While the statements are clearly complimentary to trial counsel,

the trial judge made the observations, all of which were gratuitous, well before any


                                           4
claim of ineffective assistance of counsel had been presented. This court cannot

infer from those comments alone that the trial judge could not be impartial in a

subsequent post-conviction claim.



              The petitioner also insists that Judge Haston, the Circuit Judge of the

Thirty-First Judicial District, had no jurisdiction to hear the petition for post-conviction

relief. He cites Tenn. Code Ann. § 40-30-103(b) (1990) (repealed 1995) which, at

the time the petition was filed, provided as follows:

              (b)(1) If a petition filed pursuant to this chapter raises the
              issue of the competency of counsel representing the
              petitioner, at either the original trial proceeding or an
              appellate proceeding reviewing such original proceeding,
              such petition shall be heard and determined by the trial
              judge who presided at the trial in which the conviction
              occurred, or the appellate judges who reviewed such
              conviction, whichever is appropriate, if such trial or
              appellate judges are available. If such judge is
              unavailable, the chief justice of the Tennessee supreme
              court will designate an appropriate judge to hear the
              matter.
                (2) If such petition does not raise the issue of
              competency of counsel at the original trial or appellate
              proceeding, the chief justice shall designate and assign
              an appropriate judge to hear and determine such
              petition. Unless the provisions of subdivision (1) are
              applicable, the designated judge shall not be the same
              judge who presided at the trial in which the conviction
              occurred.

(Emphasis added). Before the evidentiary hearing, the statute was amended,

effective April 12, 1993:

              (b) At either the trial proceeding or an appellate
              proceeding reviewing the proceeding, the presiding judge
              of the appropriate court shall assign a judge to hear the
              petition. The issue of competency of counsel may be
              heard by a judge other than the original hearing judge. If
              a presiding judge is unable to assign a judge, the chief
              justice of the supreme court shall designate an
              appropriate judge to hear the matter.

Tenn. Code Ann. § 40-30-103(b) (Supp. 1993) (repealed 1995) (emphasis added).

The petition was filed in White County but, according to the petitioner, most of the


                                             5
post-conviction proceedings were held in Warren County in District Thirty-One

where Judge Haston generally presided. The petitioner argues that Judge Haston

had no connection with the White County Criminal Court and, especially after the

passage of the newer statute, no authority to proceed in this matter. See Id.



              In our view, the date of the filing of the petition controlled in this

situation. Judge Haston, who had presided at the trial of the case, should not have

disqualified himself later on the basis of the statutory amendment giving permission

to the presiding judge or the chief justice to authorize a replacement. The 1993

amendment has no effect on the petitioner's case.



              The petitioner also complains that the post-conviction judge failed to

address each of the issues individually, instead concluding that any claimed

deficiencies in the representation by trial counsel fell into the category of "trial

strategy." The petitioner argues that the trial judge failed to meet his responsibilities

as provided in Tenn. Code Ann. § 40-30-118 (repealed 1995):

              (b) Upon the final disposition of every petition, the court
              shall enter a final order, and except where proceedings
              for delayed appeal are allowed, shall set forth in the
              order or a written memorandum of the case all grounds
              presented and shall state the findings of fact and
              conclusions of law with regard to each such ground.

(Emphasis added). While the order denying relief could have been more detailed,

something appeals courts almost always encourage, the trial judge clearly ruled

upon the single constitutional issue raised in the petition. By concluding that trial

counsel had a legitimate strategy for any claims of deficiency in performance, the

trial court cited its reason for denying relief on the allegation of ineffective

assistance. Certainly this complaint does not support the demand for recusal.



              The petitioner also argues that there was a delay of over a year

                                             6
because of a defective tape recorder. The recorder was ultimately repaired so that

a transcript was made available. The petitioner assesses the blame to the judge

who, he argues, relegated his petition "to a secondary status." Stated simply, we

disagree. The duty is always on the appellant to establish an adequate record for

review. There is no indication the trial judge should have recused himself from

hearing the case.



                In our view, the issue has no merit.



                                                 II

                Next, the petitioner contends that his trial counsel3 was ineffective for

having failed to adequately present his defense theory. He argues that his

testimony and that of his son was inadequate to establish that the shooting was

necessary in order to protect his son. The petitioner's claims can be summarized as

follows:

                (1)  that trial counsel was unable to sufficiently
                document his preparation time.

                (2)     that trial counsel failed to produce proof of the
                relative sizes of the petitioner, his son, and the victim. In
                particular, the petitioner complains that his trial counsel
                failed to prove that he was smaller than the victim and
                that he suffered from a heart condition and a disability to
                one hand.

                (3)     that trial counsel failed to adequately respond to
                the false impression that the petitioner had as his motive
                for the crime the collection of a $140.00 debt.

                (4)     that trial counsel failed to prove the violent nature
                of the victim and threats that he had made to the
                petitioner or his son on the day of the shooting.

                (5)     that trial counsel was deficient for having failed to

        3
        Trial counsel, John A. Turnbull, withdrew as counsel by permission of the trial court on
January 23, 1989, shortly after the conviction. Substitute counsel, Stephen L. Rains, and James P.
Rom er (which included S. Thomas Burnette), filed the motion and amended m otion for new trial and
represented the petition er on dire ct a ppeal.

                                                 7
              call Edwin Atkinson as a defense witness. At the
              evidentiary hearing on this post-conviction petition,
              Atkinson testified that he saw the victim place his right
              hand in a pocket in which there was a knife and advance
              towards the petitioner's son just before the fatal shots
              were fired.



              The petitioner argues that his trial counsel, after announcing to the jury

in the opening argument, the defense of another theory, was ineffective for having

failed to utilize all of the available evidence in support of his claim. See State v.

Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991). The petitioner argues that

there is a reasonable probability that the verdict would have been voluntary

manslaughter rather than second degree murder had trial counsel performed his

duties in an effective manner.



              For the petitioner to establish that his counsel was ineffective, he must

show that the advice given or the services rendered were not within the range of

competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d

930 (Tenn. 1975). This requires a showing that the errors were so serious that the

defendant was, in essence, deprived of counsel within the meaning of the state and

federal constitutions. He must also establish that but for his counsel's deficient

performance, the results of his trial would have been different. Strickland v.

Washington, 466 U.S. 668 (1984); Best v. State, 708 S.W.2d 421 (Tenn. Crim. App.

1985).



              This court should not second-guess the legitimate tactical and

strategic choices of trial counsel unless those choices were uninformed because of

inadequate preparation. Hellard v. State, 629 S.W.2d 4 (Tenn. 1982). Trial counsel

may not be deemed to have been ineffective merely because a different procedure

or strategy might have produced a different result. Williams v. State, 599 S.W.2d

                                            8
276 (Tenn. Crim. App. 1980). The clear warning of Strickland is "to eliminate the

distorting effects of hindsight ... and to evaluate the conduct from counsel's

perspective at the time." 466 U.S. at 689.



              On appeal, the burden is always on the petitioner to show that the

evidence preponderates against the findings of the trial judge. Clenny v. State, 576

S.W.2d 12 (Tenn. Crim. App. 1978). Otherwise, the findings made in the trial court

are conclusive. Graves v. State, 512 S.W.2d 603 (Tenn. Crim. App. 1973). The trial

judge ruled as follows:

              Having considered said testimony and arguments of
              counsel, the record and all exhibits entered in the cause,
              the Court finds that all matters addressed strategy
              decisions of counsel, and petitioner has failed to show
              any ineffectiveness of counsel. All decisions of trial
              counsel were judgment decisions and the petitioner has
              failed to show that these decisions rose to the level of
              ineffectiveness.

              It is therefore ORDERED: that the petition for post-
              conviction relief is denied on all grounds.



              Trial counsel, who filed a number of pretrial motions, testified that he

met with the petitioner on numerous occasions before the trial and had several

discussions with the petitioner about the possible testimony. Trial counsel recalled

that he questioned potential witnesses, associated counsel to assist in preparations,

and did his best. Trial counsel, who had considerable experience in criminal

matters, has not been shown to have been deficient for failure to meet with the

petitioner. All of this testimony was implicitly accredited by the findings in the trial

court.



              Trial counsel testified that his strategy was to present "as clear and

simple" a defense as possible. Trial counsel acknowledged that he chose not to put


                                             9
on proof that the petitioner might have suffered a heart attack during the shooting for

that reason. The petitioner also claimed that at the time of the shooting, he was

outweighed by the victim by some seventy pounds. The only comment by the

petitioner as to any disability to his hand was that "these fingers are all muscles out

of my right leg."



              The petitioner had three character witnesses at his trial. He claimed

that he told his trial counsel of other incidents of violence on the part of the victim.

He claimed that the victim pulled his knife on a Vernon Crantz on one occasion,

attacked a Pokey Poston with a cue stick on another occasion, and was also

involved in altercations with a Claudell Honeycutt and a Hanky Robinson. The

petitioner claimed that he witnessed an altercation between the victim and a

dispatcher at the sheriff's department on the day prior to the shooting. Trial counsel

testified that he made no attempt to introduce evidence of the victim's propensity for

violence because the petitioner had acknowledged that he was unaware of that at

the time of the shooting. Trial counsel researched the issue and believed that the

evidence would be inadmissible at trial. He testified that he discussed this strategy

with the petitioner before trial and the petitioner consented to his focus on the

defense that the shooting was the result of the petitioner's effort to protect his son.

At the post-conviction hearing, Honeycutt testified that trial counsel had called him

prior to trial and asked about an altercation he had had with the victim. Thus some

investigation preceded the decision not to place emphasis on these collateral

events. Moreover, the petitioner has failed to establish that the evidence offered

would have been admissible at trial. The burden is always on the petitioner to show

that the evidence would have been admitted at the trial, if offered. This record

would require us to speculate on admissibility.




                                            10
              Trial counsel also claimed that he did everything he could to counter

the perception created by the state that the petitioner had shot the victim over a

$140.00 debt. The petitioner's testimony was somewhat conflicting; he ultimately

insisted that the victim "didn't owe him anything." In the context of the entire trial, we

cannot say that any deficiency in this record affected the results of the trial.



              Apparently, a woman allowed to sit with the prosecution table on

behalf of the victim during the trial was not actually a daughter to the victim. It is not,

however, unusual to have a relative of the victim's sit at the table for the state.

Again, we cannot infer from this alone that there was either deficiency in

performance by trial counsel or prejudice in result.



              Next, the petitioner complains that his trial counsel was ineffective for

failing to call Atkinson as a witness. Trial counsel explained that Atkinson, who had

been interviewed as a potential witness prior to trial, would have given testimony

inconsistent with that of the petitioner and his son. Trial counsel testified that to use

Atkinson as a witness would discredit their testimony; he released Atkinson from a

subpoena only after acquiring the consent of the petitioner. That clearly qualifies as

a strategy decision even if ultimately unsuccessful, based on adequate investigation.

That trial counsel, in hindsight, might have chosen a different course, if given the

opportunity, is not enough.



              Accordingly, the judgment is affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge

CONCUR:



                                            11
______________________________
David G. Hayes, Judge



_______________________________
Curwood Witt, Judge




                                  12
