             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                             March 6, 2001 Session

                JAMES BYRON TRANSOU v. STATE OF TENNESSEE

                      Direct Appeal from the Circuit Court for Madison County
                              No. C99-296 Joe C. Morris, Chancellor



                          No. W2000-01060-CCA-R3-PC - Filed May 25, 2001



The petitioner, James Byron Transou, appeals the trial court's denial of his petition for post-
conviction relief. The issues presented for review are (1) whether the petitioner was denied his
constitutional right to self-representation; (2) whether the denial of a motion for continuance is a
basis for relief; (3) whether the election on the charge made by the state is a basis for relief; and (4)
whether the petitioner was denied the effective assistance of counsel.1 The judgment is affirmed.

                      Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

Rolf G. S. Hazlehurst, Jackson, Tennessee (on appeal), and Ramsdale O'DeNeal, Jackson, Tennessee
(at trial), for the appellant, James Byron Transou.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and Al
Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                        OPINION

       On May 20, 1996, the petitioner was convicted of attempted first degree murder and
aggravated assault. The trial court imposed concurrent, Range II sentences of 35 years and eight
years. On direct appeal, this court affirmed the conviction for attempted first degree murder and
reversed and dismissed the conviction for aggravated assault. State v. James Byron Transou, No.



         1
          The petitioner listed as an issue for re view whethe r the post-c onviction court had erred by denying a
continuance of the hearing. Because the petitioner did not brief the issue, mad e no citations to the record , and failed to
present argument o r reference a ny authority for his p osition, the issue h as been wa ived. See gene rally State v. Auco in,
756 S.W .2d 705 (Tenn. C rim. App. 1 988).
02C01-9703-CC-00125 (Tenn. Crim. App., at Jackson, Apr. 21, 1998). On December 14, 1998, our
supreme court denied application for permission to appeal.

         The convictions were based upon an August 18, 1995, shooting. The victim, Terrance
Woods, had been dating Tammy Curry, a former girlfriend of the petitioner, with whom the
petitioner had a five-year-old son. The proof at trial established that the petitioner encountered the
victim at a car wash, pulled alongside the victim's automobile when the victim tried to drive away,
and fired three or four shots through the passenger's side window. One bullet struck a tire on the
victim's automobile. The other three grazed the passenger's side door. While uninjured by any of
the shots, the victim lost control of his car and spun into a vacant lot. Vanessa Robertson witnessed
the shooting. She saw the petitioner, whom she identified as the driver of the vehicle, fire several
shots towards the victim's car. She stated that the petitioner was accompanied by his brother, Keith
Transou, who was in the passenger's seat. There were two other witnesses to the shooting. One
stated that the petitioner was in the vehicle from which the shots were fired but was unable to say
which of the two occupants fired the shots. The other witness heard the gunshots, saw the victim's
car spin out of control, and saw another car speed away. There was also evidence provided at trial
that the petitioner owned a .38 revolver. Police recovered three .38 caliber bullet casings at the scene
of the shooting.

         The petitioner claimed self-defense. While acknowledging that he was in possession of a .38
pistol, he claimed that the victim, who was also armed, was the aggressor. Petitioner, who had a
significant prior criminal record which included convictions of robbery, aggravated assault, and
forgery, insisted that his brother, Keith Transou, had fired the shots out of fear of the victim. Keith
Transou, however, denied having fired any of the shots and, alleging that the victim was following
the Transous in his vehicle, testified that the petitioner had attempted to shoot the victim.

        In his petition for post-conviction relief, as amended, the petitioner alleged, among other
things, that the state had failed to properly elect between the two charges in the indictment, that he
had not been allowed to properly proceed pro se, and that he had been denied the effective assistance
of counsel at trial and on appeal.

       The record establishes that the petitioner's trial was set for May 20, 1996. A little over a
month earlier, the petitioner forwarded a letter to the trial judge, asking that his trial counsel2 be
removed from the case. Shortly thereafter, the petitioner notified his trial counsel, Pamela Drewery,
who had been appointed on December 5, 1995, the date of the arraignment, of his desire to proceed
"pro persona with my next attorney." About one week before the trial, the trial court apparently
conducted a hearing wherein the petitioner, after being warned of the dangers of self-representation,
was nevertheless permitted to proceed pro se. While the trial court made reference to the proceeding



         2
         Pamela Drewery represented the petitioner from the time of his arraignm ent until the conc lusion of his trial.
Daniel Taylor represented the petitioner at the motion for new trial, the sentencing hearing, and on direct appeal. M s.
Drewery is a lternately referred to as trial couns el. Mr. T aylor is alternately re ferred to as a ppellate co unsel.

                                                          -2-
just prior to the trial, there is no transcript of that hearing in the record. The petitioner denied any
such hearing took place.

        On the day of trial, the petitioner filed a motion for continuance on the grounds that he was
"not comp[e]tent to pro[c]eed pro se." On the morning of the trial, the petitioner, who had
previously demanded a speedy trial, was denied his request for a continuance. The trial court
directed Ms. Drewery, who had continued to monitor the progress of the case, to re-assume her
responsibilities as counsel. Trial counsel acknowledged that she had represented the petitioner
continuously from December 5 until less than two weeks before the trial. While the record
establishes that trial counsel had the assistance of an investigator and was fully aware of the proof
that the state intended to put forth, she described the petitioner as generally uncooperative in the trial
preparations. She assured the court that even though she had treated the petitioner with "courtesy
and respect" throughout her term of employment, the petitioner would not discuss the case with her.

         At the evidentiary hearing, the petitioner testified that sometime after trial counsel had been
appointed, "the attorney/client communication broke down." The petitioner acknowledged that prior
to trial he recognized that he had the option to seek another attorney or to proceed pro se. The
petitioner contended that at one point his trial counsel sought permission to withdraw. His
recollection was that the trial judge denied the request, even though he had stated a preference to
proceed pro se.3 He asserted that he was forced to go to trial without having the benefit of
investigation and without having formulated a theory of defense. The petitioner conceded that his
trial counsel provided him with copies of the indictment, the names of the witnesses, and the reports
of the police. He complained that counsel was ineffective for having failed to prepare any defense
and contended that his trial counsel never had the opportunity to talk with his witnesses, Jarvis Pate
and his brother, Keith Transou, before trial.

        On cross-examination, the petitioner denied that he had filed a motion for continuance
containing an admission that he was not competent to proceed pro se. He testified that the motion
was "not [his] handwriting." The petitioner acknowledged that on the morning of trial the trial court
re-appointed Ms. Drewery to represent him. He was unable to explain, however, why he failed to
protest the re-appointment of trial counsel by re-asserting his right of self-representation. After
reviewing the transcript, he conceded that "it's nowhere in this record where I corrected his . . .
understanding that I wanted to be represented."

       The petitioner testified that on the day before the trial, he did not know whether he would be
represented by Ms. Drewery. He explained that, "I didn't know if they were going to let me represent
myself or appoint me another attorney. But if I couldn't get another attorney, I would rather have
proceeded pro se."

        Ms. Drewery was called as a witness at the evidentiary hearing by the petitioner. She recalled
that the petitioner had been belligerent and had stated that he did not want her as his attorney. She


        3
            Judge Fr anklin Mu rchison pre sided at the trial.

                                                                 -3-
stated that despite her conflict with the petitioner, she was aware that she would be expected to be
ready for trial. It was her opinion that the trial court believed that the petitioner had asked for her
withdrawal and had requested self-representation in an effort to delay the trial.

        Appellate counsel, Daniel Taylor, also called as a witness for the petitioner, testified that he
had been assigned the case after Ms. Drewery left the public defender's office. He recalled that in
the defendant's motion for new trial, he had challenged the sufficiency of the evidence, alleged jury
impropriety, and claimed error due to the denial of the motion for continuance. He stated that the
motion was amended to include the allegation that there could not be dual convictions under the
evidence presented at the trial. He acknowledged the incongruity of the petitioner's request for a
continuance and his previous demand for a speedy trial.

        At the conclusion of the evidentiary hearing, the trial court ruled that prior to trial, the
petitioner had withdrawn his request to proceed pro se. The trial court also concluded that the
petitioner had failed to establish that he had been denied the effective assistance of counsel.

                                                   I

        In this appeal, the petitioner first asserts that he was denied his constitutional right to self-
representation and, as a result, was forced into a trial with the assistance of a lawyer "with whom he
was dissatisfied, and with whom he would not cooperate." In a related claim, the petitioner contends
that he is entitled to relief because the trial court abused its discretion by denying his request for a
continuance.

        Every person has a constitutional right to represent himself. U.S. Const. amend. VI; Tenn.
Const. art. I, § 9; Faretta v. California, 422 U.S. 806, 818-820 (1975). In State v. Herrod, this court
ruled that the exercise of the right of self-representation is based upon three conditions:

       (1)      The defendant must timely assert his right to self-representation;

       (2)      the exercise of the right must be clear and unequivocal; and

       (3)      the defendant must knowingly and intelligently waive his right to assistance
                of counsel.

754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988). A defendant need not have legal training or
experience in order to competently and intelligently elect self-representation. Faretta, 422 U.S. at
835; see generally Smith v. State, 987 S.W.2d 871 (Tenn. Crim. App. 1998).

        When an accused desires to proceed pro se, the trial judge must conduct an intensive inquiry
as to his ability to represent himself. State v. Northington, 667 S.W.2d 57, 61 (Tenn. 1984). The
waiver of the right to counsel must be knowingly and intelligently made. Tenn. R. Crim. P. 44(a);
State v. Armes, 673 S.W.2d 174, 177 (Tenn. Crim. App. 1984).


                                                  -4-
        The burden is on a post-conviction petitioner to establish his factual allegations by clear and
convincing evidence. Tenn. Code Ann. § 40-30-210(f). In this appeal, the burden is on the
petitioner to show that the evidence preponderates against the trial court's findings that he had
withdrawn his claim for self-representation. See Brimmer v. State, 29 S.W.3d 497, 508 (Tenn. Crim.
App. 1998).

        In our view, the record supports the trial court's finding that the petitioner waived the right
to represent himself. There is evidence to support the trial court's conclusion that the petitioner made
a written acknowledgment of his incompetence to proceed. That the petitioner did not reassert his
right to self-representation, even as Ms. Drewery was being re-established as his counsel, supports
the findings made upon the conclusion of the evidentiary hearing.

       Before the replacement or substitution of appointed counsel, there must be a showing of good
cause for doing so, which may include a conflict of interest or a complete breakdown of
communication. United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). A defendant may not,
however, manipulate his counsel in order to delay or disrupt a trial. United States v. Fowler, 605
F.2d 181, 183 (5th Cir. 1979). Most importantly, perhaps, a defendant does not have the right to
appointed counsel of his choice. See Morris v. Slappy, 461 U.S. 1 (1983); State v. Timothy M.
Reynolds, No. M1998-00059-CCA-R3-CD (Tenn. Crim. App., at Nashville, Jan. 7, 2000).

        Here, the record establishes that when the petitioner appeared in court on the trial date, he
acknowledged his inability to represent himself and, faced with a choice of self-representation or
proceeding to trial with his previously appointed counsel, chose to proceed with the assistance of his
previous counsel. At the evidentiary hearing, the petitioner second-guessed his decision, testifying
that he would have preferred self-representation had he known he would not be appointed another
attorney. Ironically, the record of the evidentiary hearing establishes that the petitioner placed his
post-conviction counsel in a similar position to that of his trial counsel just before the hearing began.
When the case was called, post-conviction counsel stated as follows:

        I have talked with him, had an opportunity to talk with him, on a couple of occasions
        . . . . He has . . . informed me that there are some issues and some other things that
        he has some concerns about. In the light of that, he is . . . asking for a continuance
        . . . . [I]n terms of what he told me, I probably wouldn't feel too comfortable going
        ahead [with representing him] at this time.

               I do feel I'm somewhat prepared to represent him with respect to those issues,
        but obviously I want him to feel comfortable, in that it is his day in court and he
        wants to make sure he maximizes any and all defenses in the case law that might be
        available to him. And he just informed me of that.

        Post-conviction counsel stated that the petitioner had "not been comfortable with [him] and
probably hasn't been comfortable with anybody. . . . I don't know if he's playing a game with the
court or not." After reviewing this record, it is difficult to avoid the inference that the petitioner not


                                                   -5-
only wanted the appointed counsel of his choosing but also one who could prevail over the interests
of the state. Absent the latter as an alternative, he would then elect to proceed pro se. In this
instance, the petitioner failed at the time of trial to make a clear and unequivocal assertion of his
right to self-representation. In fact, the record demonstrates he opted to withdraw his request and
continue with his previous counsel rather than proceed pro se. The record demonstrates that any lack
of communication between the petitioner and his trial counsel prior to the commencement of trial
was the fault of the petitioner. Trial counsel afford opportunities for communication to the petitioner
and the petitioner, by all appearances, failed to take full advantage thereof.

                                                   II

        As to the denial of his motion for a continuance, the petitioner asserts that he met with Ms.
Drewery only three times prior to trial and never discussed his case with her on any of those
occasions. While acknowledging that it may have been "because [his] behavior was like it was," the
petitioner explained that "she told [him his] chances for defense," and that it "seemed like she didn't
want to put on [a] defense." While conceding that the petitioner would not fully discuss the case
with her, Ms. Drewery, whose term of representation had extended for a period of six months, did
express a willingness to serve as counsel, did have the services of an investigator in trial preparation,
and did have the benefit of knowing the proof the state intended to offer at trial.

        Typically, the decision of whether to grant a continuance rests within the discretion of the
trial court. State v. Seals, 735 S.W.2d 849, 853 (Tenn. Crim. App. 1987). The grant or refusal of
a continuance rarely implicates a constitutional right. It is only when the proceeding is
fundamentally unfair as the result of the denial of a continuance that a proper collateral attack is
warranted. Conner v. Bowen, 842 F.2d 279, 283 (11th Cir. 1988). In State v. Covington, 845 S.W.2d
784, 787 (Tenn. Crim. App. 1992), this court ruled that a continuance should generally be granted
when the accused would not otherwise be "afforded his constitutional right to the effective assistance
of counsel."

        It is our view that the trial court did not abuse its discretion by denying the motion for a
continuance. Whether the petitioner would be entitled to a new trial, under these circumstances,
would depend upon whether he was denied the effective assistance of counsel. As indicated in the
last section of this opinion, it is our view that he was not denied that right.

                                                   III

        Next, the petitioner contends that the state should have been required to make an election on
the charge to be submitted to the jury. Any failure to elect should have been presented either as an
issue on direct appeal or as part of a claim that his trial or appellate counsel was ineffective. Yet the
petitioner actually prevailed on this issue on direct appeal in that one of the two convictions was set
aside. As indicated, this court determined that the evidence was sufficient to support the conviction
for attempted first degree murder. While the evidence was also sufficient to support a conviction
of aggravated assault, the state conceded in the direct appeal that the latter conviction should be


                                                  -6-
reversed and dismissed under the principles established in State v. Denton, 938 S.W.2d 373, 381
(Tenn. 1996). State v. James Byron Transou, slip op. at 7-8.

         In our view, the issue, while couched in different terms, has been previously determined. See
Tenn. Code Ann. § 40-30-206(h); House v. State, 911 S.W.2d 705, 710 (Tenn. 1995). The claim
is not, therefore, a basis for post-conviction relief.

                                                    IV

        As his final issue, the petitioner argues that his counsel was ineffective for having failed to
argue that dual convictions for attempted first degree murder and aggravated assault violated due
process and double jeopardy principles. The petitioner also asserts that his counsel was ineffective
for having inadequately investigated the case, failing to file any meaningful pretrial motions, and
failing to develop a close working relationship with him.

        There is a constitutional right to the effective assistance of counsel at all critical stages of a
criminal prosecution. Tenn. Const. art. 1, § 9; Powell v. Alabama, 287 U.S. 45, 57 (1932). In order
for the petitioner to be granted relief on grounds of ineffective counsel, he must establish that the
advice given or the services rendered were not within the range of competence demanded of
attorneys in criminal cases and that, but for his counsel's deficient performance, the result of his trial
would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Baxter v. Rose, 523
S.W.2d 930 (Tenn. 1975).

        The petitioner must prove his factual allegations by clear and convincing evidence. Tenn.
Code Ann. § 40-30-210(f). The claim of ineffective assistance of counsel is a mixed question of law
and fact and subject to de novo review; however, a trial court's findings of fact, while reviewed de
novo, include a presumption of correctness unless the preponderance of the evidence is otherwise.
Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). An appellate court may neither reweigh the
evidence nor substitute its own inferences for those drawn by the trial court. Henley v. State, 960
S.W.2d 572, 578-9 (Tenn. 1997). Conclusions of law are reviewed under a de novo standard.
Fields, 40 S.W.3d at 457.

        Initially, only one of the petitioner's convictions was allowed to stand. As indicated, on direct
appeal, this court set aside the aggravated assault conviction as violative of double jeopardy
principles. The petitioner has not, therefore, been prejudiced by any failure on the part of his counsel
to raise the issue during the course of the trial.

        Furthermore, trial counsel testified that the petitioner, who testified on his own behalf at trial,
was able to put on all of the proof he desired. The petitioner's brother, whom he blamed for the
shooting and wanted as a witness, identified the petitioner as the gunman who fired the shots at the
victim. The record also supports the trial court's conclusion that trial counsel's investigators had
interviewed the witnesses and that trial counsel was fully aware of the proof the state intended to
produce against the petitioner.


                                                   -7-
        More importantly, the petitioner failed to point out how he was prejudiced by any
deficiencies in the representation of his trial counsel, including her alleged failure to adequately
communicate in advance of the trial. The petitioner was unable to produce any witnesses at the post-
conviction hearing that may have provided beneficial testimony. Other than the double jeopardy
claim, the petitioner failed to point to any pretrial motions that may have been helpful to the defense.
Under these circumstances, this court cannot conclude that the petitioner was denied the effective
assistance of counsel at trial.

        It is also our conclusion that the petitioner was not denied the effective assistance of counsel
on appeal. The petitioner's only complaints are that appellate counsel failed to present his claim that
he had been denied the right of self-representation and that his counsel otherwise made no inquiries
about the pretrial and trial stages of the proceeding.

        Because the petitioner withdrew his request for self-representation just prior to trial, it is our
view that the petitioner was not prejudiced by the failure of his appellate counsel to present the issue
for our review. Moreover, the petitioner has not established how he might have been prejudiced by
any failure on the part of his appellate counsel to further investigate the proceedings which took
place prior to the verdict.

        Accordingly, the judgment is affirmed.



                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




                                                   -8-
