             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                     Assigned on Briefs June 2, 2004

                     MABLE LONGMIRE v. STATE OF TENNESSEE

                          Appeal from the Criminal Court for Shelby County
                               No. P-25895    Joseph B. Dailey, Judge



                          No. W2003-01566-CCA-R3-PC - Filed July 20, 2004


The Defendant, Mable Longmire, was convicted by a jury of first degree premeditated murder. Her
conviction was affirmed on direct appeal. See State v. Mabel1 J. Longmire, No. W1999-00216-
CCA-R3-CD, 2001 WL 128561 (Tenn. Crim. App., Feb. 15, 2001, Jackson). The Defendant
subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. After an
evidentiary hearing, the trial court denied relief and this appeal followed. We affirm the judgment
of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT W.
WEDEMEYER, JJ., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Mable Longmire.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                      OPINION

       The Defendant learned that her husband was having an affair with the victim. She went to
New Orleans to visit a friend and contemplate her situation. While in New Orleans, she went on a
drinking binge. After several days, she drove home to Memphis, stopping at a cousin’s home on the
way. The Defendant took a pistol from her cousin’s house before leaving. Eventually, the
Defendant drove to the victim’s house and waited for the victim to return. A confrontation ensued
during which the Defendant shot the victim. The State’s proof at trial established that, after shooting



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           The Defendant’s first name in her petition for post-conviction relief is spelled “M able.” It is spelled “Mabel”
in the style of the opinion disposing of her direct appeal from her conviction.
the victim initially, the Defendant walked away. The victim cried out for help, and the Defendant
returned to the victim’s location. The Defendant then shot the victim several more times, killing her.

        The Defendant defended on the basis that she lacked the requisite mental capacity to form
the mens rea required for premeditated murder. She introduced proof at trial that, prior to the
shooting, she had been diagnosed with depression and had been prescribed medication. She stopped
taking the medication at the time of her trip to New Orleans. A psychologist evaluated the
Defendant after the shooting and determined that she suffered from a severe and recurrent major
depressive disorder. The psychologist testified that this type of disorder affected the Defendant’s
judgment and caused her thinking to be unclear. The psychologist testified that, since the Defendant
had not been taking her medications at the time of the shooting, her abilities relating to judgment and
mental function could have been significantly affected. She also testified, however, that in her
opinion, the Defendant was able to appreciate the nature and wrongfulness of her behavior.

        The jury rejected the Defendant’s claim of “diminished capacity” and convicted her of first
degree premeditated murder. On direct appeal, this Court determined that the evidence was
sufficient to support the Defendant’s conviction. See State v. Mabel J. Longmire, No. W1999-
00216-CCA-R3-CD, 2001 WL 128561 (Tenn. Crim. App., Feb. 15, 2001, Jackson).

        The Defendant now contends that her lawyers were ineffective during their representation
of her prior to and at trial. Specifically, she claims in this appeal that her lawyers failed to properly
investigate the facts of her case, failed to seek a continuance upon a defense witness’s failure to
appear, and failed to adequately present the defense of diminished capacity.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review, this Court will not re-
weigh or re-evaluate the evidence below; all questions concerning the credibility of witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State,
960 S.W.2d 572, 578-79 (Tenn. 1997). The trial judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d
at 578.

         Both the Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
Both the United States Supreme Court and the Tennessee Supreme Court have recognized that the
right to such representation includes the right to “reasonably effective” assistance, that is, within the
range of competence demanded of attorneys in criminal cases. See Strickland v. Washington, 466
U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523 S.W.2d at 936.



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        A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is comprised of
two components: deficient performance by the defendant’s lawyer, and actual prejudice to the
defense caused by the deficient performance. See id. at 687; Burns, 6 S.W.3d at 461. The defendant
bears the burden of establishing both of these components by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461. The defendant’s failure to prove either
deficiency or prejudice is a sufficient basis upon which to deny relief on an ineffective assistance of
counsel claim. See Burns, 6 S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

       In evaluating a lawyer’s performance, the reviewing court uses an objective standard of
“reasonableness.” See Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing court
must be highly deferential to counsel’s choices “and should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should not use the benefit of
hindsight to second-guess trial strategy or to criticize counsel’s tactics, see Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be judged in light of all the facts and
circumstances as of the time they were made, see Strickland, 466 U.S. at 690; Hicks v. State, 983
S.W.2d 240, 246 (Tenn. Crim. App. 1998).

        A trial court’s determination of an ineffective assistance of counsel claim presents a mixed
question of law and fact on appeal. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). This
Court reviews the trial court’s findings of fact with regard to the effectiveness of counsel under a de
novo standard, accompanied with a presumption that those findings are correct unless the
preponderance of the evidence is otherwise. See id. “However, a trial court’s conclusions of law--
such as whether counsel’s performance was deficient or whether that deficiency was prejudicial--are
reviewed under a purely de novo standard, with no presumption of correctness given to the trial
court’s conclusions.” Id.

        The Defendant testified on her own behalf at the post-conviction hearing; she called no other
witnesses. She stated that the first time she met with her lawyer, Mr. Michael Johnson, he told her
that she was facing a sentence of twenty-five years to life, prior to his even discussing the facts of
the case with her. She felt that this was a form of “scare tactics” on her lawyer’s part. She gave him
the name of one witness, her girlfriend in New Orleans. This woman did not appear at trial. Ms.
Longmire testified that this woman would have been able to testify about Ms. Longmire’s state of
mind immediately prior to the killing. Ms. Longmire remembered meeting with the psychologist
while she was in jail. Ms. Longmire testified that her lawyers should have pursued a theory of self-
defense because the victim slapped her before Ms. Longmire shot her.

        Ms. Garlan Erguden, one of the Defendant’s lawyers, testified on behalf of the State. She
explained that neither she nor Mr. Johnson had previously presented a “diminished capacity”
defense, and so they both researched the issue and both discussed the theory with the psychologist.
She testified that the psychologist gave them several textbooks and met with them several times “to


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make sure [they] understood, thoroughly, how to handle one of these diminished-capacity defenses
and what to anticipate, in the way of response, from the attorney general’s office.” Ms. Erguden also
assisted Mr. Johnson in meeting and conferring with Ms. Longmire.

        Ms. Erguden testified that, given the State’s proof and Ms. Longmire’s history of mental
health problems, she and Mr. Johnson determined that they had a strong diminished-capacity
defense, and that it was the “only reasonable defense” in light of the State’s eyewitness proof of the
circumstances of the shooting. They called two expert witnesses on the Defendant’s behalf. They
obtained jury instructions on diminished capacity. They also subpoenaed the Defendant’s friend in
New Orleans, but the woman failed to appear at trial. This witness had previously demonstrated a
reluctance to testify on behalf of the Defendant and, given the strength of the expert testimony, Ms.
Erguden and Mr. Johnson determined that trying to force her to testify would not be beneficial to the
Defendant’s case. Prior to trial, they had also spoken to the Defendant’s husband and teenage son,
but determined that neither of those persons would be helpful to the Defendant’s case.

         Mr. Michael Johnson also testified, and stated flatly that he did not tell the Defendant at their
initial meeting that she was facing a sentence of twenty-five years to life in prison. Mr. Johnson also
echoed Ms. Erguden’s testimony about the missing witness: that she was not crucial and her absence
from the trial did not have a pivotal effect on the Defendant’s case. Mr. Johnson described his initial
meeting with the Defendant and stated that he “had her evaluated almost immediately.” He
determined that their only defense was diminished capacity, that self-defense would not work. He
felt that their proof of diminished capacity was very strong.

         Mr. Johnson testified that the Defendant was “an excellent client.” He believed that the
jury’s verdict was “an unjust result.” He stated, “I really wanted to win this case for my client.
. . . I guess I’m bothered by it most because there’s nothing I would have done differently.”

        The trial court ruled that “the assistance provided by Mr. Johnson and Ms. Erguden was
outstanding in every regard. They rendered thorough, conscientious, and professional representation
to the defendant in this case.” Accordingly, the trial court dismissed the Defendant’s petition for
post-conviction relief.

        We find no error in the trial court’s ruling. The record supports the trial court’s conclusion
that the Defendant received the effective assistance of counsel. We affirm the judgment of the trial
court.



                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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