        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  April 23, 2014 Session

               REGINALD FOWLER v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                     No. 99048     Mary Beth Leibowitz, Judge


                   No. E2013-01554-CCA-R3-PC - Filed July 9, 2014


Petitioner, Reginald Fowler, was convicted of aggravated arson following a bench trial, and
he was sentenced to twenty years in the Tennessee Department of Correction. Following an
unsuccessful direct appeal, he filed the instant petition for post-conviction relief raising the
following issues: (1) whether he was denied a fair trial due to the alleged impairment of the
trial judge; (2) whether ineffective assistance of trial counsel rendered his waiver of a jury
trial involuntary; and (3) whether trial counsel’s assistance was ineffective by failing to
present the testimony of a pharmacologist at trial. After an evidentiary hearing, the post-
conviction court denied relief. Following our review, we affirm the judgment of the post-
conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

Michael R. Tabler (on appeal); and John E. Eldridge (at post-conviction hearing), Knoxville,
Tennessee, for the appellant, Reginald Fowler.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and TaKisha Fitzgerald and
Leland Price, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                              I. Facts and Procedural History

                                     A. Facts from Trial

        A lengthy recitation of the facts from petitioner’s bench trial is contained in this
court’s opinion denying his direct appeal. See State v. Reginald Fowler, No. E2009-00293-
CCA-R3-CD, 2010 WL 3774413, at *1-16 (Tenn. Crim. App. Sept. 29, 2010), perm. app.
denied (Tenn. Mar. 9, 2011). In sum, after arguing with his live-in girlfriend about his drug
use, petitioner checked in to an extended-stay hotel in Knoxville for the purpose of smoking
crack cocaine without interruption. At some point, a fire began in petitioner’s hotel room.
Hotel employees noted that a dresser had been pushed in front of the door to block entry into
the room, the smoke detector had been disabled and concealed, and the fire extinguisher had
been removed and placed in the adjacent laundry room. The State’s expert witness opined
that the fire had been intentionally set and originally noted four points of origin. Petitioner
testified that the fire was accidental and presented an expert witness to support his
contention. Nonetheless, the trial court credited the State’s proof, found petitioner guilty of
aggravated arson, and sentenced him to twenty years in the Tennessee Department of
Correction.

                             B. Facts from Evidentiary Hearing

      Petitioner, through counsel, filed a petition for post-conviction relief on March 2,
2012, and an amendment thereto on March 9, 2012. The post-conviction court held an
evidentiary hearing on June 3, 2013. The court heard testimony from petitioner, a
pharmacologist, and trial counsel.

       At the evidentiary hearing, petitioner presented the testimony of Dr. Glen Farr, a
professor of pharmacy and pharmacology at the University of Tennessee. He explained that
crack cocaine was made by using baking soda to separate the cocaine base, thereby creating
a more flammable, smokeable, and potent drug. Cocaine in general is classified as a central
nervous system stimulant. Crack cocaine is rapidly absorbed, and the user can feel the
effects of the drug within seconds or minutes. The effects last for approximately one hour,
after which the user succumbs to a depressed state and often uses more cocaine to continue
the “high.” Dr. Farr stated that symptoms of chronic use include confusion, anxiety, cocaine
psychosis (user does not think clearly, almost psychotic), paranoia, and feelings of
invincibility.




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         Post-conviction counsel posited a hypothetical based on petitioner’s version of the
events leading to his arrest and conviction for aggravated arson. Based on those facts, Dr.
Farr opined that petitioner’s act of pushing the dresser against the door indicated paranoia.
Dr. Farr stated that petitioner demonstrated confusion in his mistaken belief that he had
extinguished the fire when he had not done so. He further testified that petitioner’s effort to
conceal the fire by removing the smoke detector showed irrational thinking on his part.
Witnesses’ reports that petitioner appeared “nervous” and “jittery” were also consistent with
cocaine use. In sum, Dr. Farr concluded that it was “unlikely that [petitioner] would have
had the state of mind to intentionally set a fire.” He said that petitioner had “a good thing .
. . the room . . . isolation. . . . I would not think that a cocaine addict would want to mess that
up by setting a fire.”

        On cross-examination, Dr. Farr acknowledged that cocaine use would not have
factored in to his opinion if petitioner had been doing other things to cause the fire, like
cooking noodles or smoking in bed, as indicated in three prior statements. The State clarified
that the witnesses reported that petitioner looked “upset” rather than nervous or jittery, and
Dr. Farr agreed that an “upset” person could retaliate against those who had caused him
angst. Dr. Farr also conceded that a fire with four points of origin was more likely
intentional than accidental. He stated that an addict could, through “rote memory,” perform
certain tasks such as driving to his drug dealer’s house, driving to the liquor store, making
purchases, and smoking crack cocaine by use of pure grain alcohol to ignite it. Finally, Dr.
Farr admitted that he had not viewed the crime scene photographs or met with petitioner; his
opinion was based solely on the facts as relayed by petitioner through his post-conviction
counsel.

         Upon questioning by the court, Dr. Farr also acknowledged that he did not read the
trial transcript. He stated that the effects of any drug are “very individualized” and that the
degree to which a user experienced effects was relative to how long, at what level, and by
what method he had used. He concluded by stating that petitioner’s actions were “consistent
with someone under the effects of chronic cocaine use.”

       Petitioner testified next and offered his recitation of the facts underlying his
conviction, which was consistent with his testimony at trial. He stated that he was faced with
the decision of whether to waive his right to a trial by jury three minutes before the trial
began. Petitioner said that trial counsel had represented him for over a year but had never
broached the subject of waiving a jury before then. When trial counsel addressed it,
petitioner told him that he would not agree to waive a jury trial if his ex-girlfriend, Sheryle
Gusby, would be a witness. He believed that the trial judge, Richard Baumgartner, was “kind
of fond of [Ms. Gusby]” based on his having “joked with her” and “made light” with her
during a previous bond hearing. Trial counsel looked in the courtroom and did not see Ms.

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Gusby. Upon this information, petitioner agreed to waive his right to a jury trial. However,
after he signed the form and engaged in the colloquy with the trial court, Ms. Gusby entered
the courtroom from a back room. Petitioner changed his mind and sought to have his case
tried before a jury, but trial counsel advised him that he could not revoke his waiver.

        Petitioner testified that he knew that the trial judge was the judge who presided over
the drug court program, and he thought that the trial judge would have additional insight with
regard to chronic cocaine usage. Petitioner noted that during the trial, he referenced the trial
court being the “drug judge,” which prompted the trial court to stand up and ask, “Are you
trying to say that I sell drugs?” Trial counsel then explained petitioner’s reference.

       Petitioner recalled that the trial court “nodded off” during the arson investigator’s
testimony. When petitioner called it to the attention of trial counsel, counsel told him to
“shut up” so he could hear the testimony. Petitioner stated that trial counsel “gave [him] a
kind of look like, ‘[T]here’s no way in the world I’m going to tell the Judge that he [was]
asleep.’” Petitioner stated that the trial court fell asleep three times during his two-day trial.
However, he recognized, “I know if I say it, there is no way that I’m going to win.”

        Petitioner explained that he told different versions of the facts because he was not
going to admit that he was a cocaine addict. He could not tell his then-girlfriend, Ms. Gusby,
the truth, even though “she knew in her heart what had happened.” Petitioner noted that the
trial court concluded that petitioner had set the fire intentionally because he was mad that Ms.
Gusby had “put [him] out of her house.”

       The State called trial counsel to testify. He had practiced law since 1980 and had been
an assistant district public defender since 1998. He became acquainted with the trial judge
when they were both in private practice and served as co-counsel on a large federal case.

       Trial counsel recalled that he was assigned to the trial judge’s courtroom in 2007.
Trial counsel noticed that in 2007 and 2008, the trial judge began to withdraw. The judge
was not as “social” or “engaging” as he had been. In early 2008, the trial judge became
impatient and often appeared to be “lost in the proceedings.” On one occasion, trial counsel
was an observer in the courtroom when the trial judge began to lower his head toward the
desk. His head continued to lower until it was one to two inches above the desk, at which
time the trial judge sat up and called a recess. According to trial counsel, the defense bar
speculated about whether the trial judge had a drinking problem or was suffering the effects
of medication for diverticulitis. Trial counsel noted that in July and August 2008, the trial
judge “took a break,” and when he returned, he was more engaged and focused than before.
Approximately six to eight weeks following the trial judge’s return, he heard petitioner’s
case.

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       Trial counsel testified that at a hearing regarding petitioner’s bond, the trial judge
commented that “‘the jury’s going to like . . . Mr. Fowler.’” He noted an “engagement”
between petitioner and the trial court and said that their “quipping” with each other was
“entertaining.” Trial counsel characterized petitioner as a “smart man” who was “very
pleasant to talk to” and who had a “really good sense of humor.”

         When asked whether he should have called a pharmacologist to testify at petitioner’s
trial, trial counsel stated, “I think it was effective. I wish I had done it. But no, it’s not
something I considered doing.” However, he stated that Dr. Farr’s testimony would have
been “of greater value” if the case had been tried before a jury.

        Trial counsel recalled that on the day of trial, there was a shortage of jurors. The idea
of waiving the right to a trial by jury was mentioned, and trial counsel found the idea
“appealing” because of the “engagement” between petitioner and the trial judge. He also
believed that the trial judge, as the drug court judge, would recognize that the oddities in
petitioner’s story were “not that aberrant” compared to other drug addicts. Trial counsel
stated that he and petitioner conversed about the possibility for approximately one hour,
rather than for just three minutes, as petitioner alleged. He also clarified that the discussion
focused more on the trial judge’s “good disposition” toward petitioner than Ms. Gusby’s
rapport with the trial judge. In fact, trial counsel opined that the trial judge viewed Ms.
Gusby as “a very angry woman” who was “bitter” about petitioner’s drug use and the
disappearance of many of her belongings to support his drug habit. Ms. Gusby also operated
a home-based colon cleansing business by which he thought the trial judge was “put off.”
The trial judge engaged in “off-color” joking in that regard at times.

       With regard to the trial judge’s demeanor during trial, trial counsel testified that one
specific time, he objected to testimony, and the trial judge was “lost” and could not recall
what had been said. They had to repeat the testimony for his benefit. The trial judge was
also “oppositional” to trial counsel’s cross-examining the State’s expert witness by use of a
learned treatise. However, he characterized the trial judge’s reaction to petitioner’s calling
him the “drug judge” as “quipping” during a “light moment” because the trial judge “knew
full-well what he was referring to.”

        At trial, upon cross-examination by trial counsel, the State’s expert witness changed
his testimony to reflect two points of origin of the fire rather than the original four points he
identified. However, trial counsel stated that the trial court kept referring to four or five
points, as if he had somehow missed the testimony. Trial counsel was “amazed” and
“flabbergasted” that the trial judge did not “get it.” He “did not understand why [the trial
judge] ignored the physical evidence.”



                                               -5-
        Trial counsel stated that he believed that the trial judge had been “engaged in opiate
abuse for a long time” and “that sustained intellectual analysis [was] not possible.” He
agreed that “operating in hindsight” and knowing what the trial judge had been through, he
believed that the demeanor he observed at trial was the result of drug use. He acknowledged
that although the trial judge’s medical records indicated that he was not using prescription
medications during petitioner’s trial, he nonetheless could have obtained the medications
through other means. Finally, contrary to petitioner’s testimony, trial counsel indicated that
he had not witnessed the trial judge “nod off,” although his attention was not always focused
on him.

       Upon this evidence, the post-conviction court denied relief. This appeal follows.

                                        II. Analysis

       Petitioner presents three issues for our review: (1) whether he was denied a fair trial
due to the alleged impairment of the trial judge; (2) whether ineffective assistance of trial
counsel rendered his waiver of a jury trial involuntary; and (3) whether trial counsel’s
assistance was ineffective by failing to present the testimony of a pharmacologist at trial.

                                  A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of

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petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

                             B. Alleged Impairment of the Trial Judge

        Petitioner alleges that the trial judge was impaired during his trial and sentencing
hearing. In support of this contention, petitioner claims that the trial judge became upset
when he referred to the trial judge as “the drug judge” and that the trial judge “nodded off”
three times during his bench trial. The State counters that petitioner failed to carry his burden
of proof on this issue. We agree with the State.1

        Former Judge Richard Baumgartner presided over petitioner’s trial and sentencing
hearing. On March 10, 2011, before petitioner filed his petition for post-conviction relief,
former Judge Baumgartner resigned after pleading guilty to one count of official misconduct.
In connection with another of former Judge Baumgartner’s cases, the Tennessee Supreme
Court entered an order addressing the effect of the trial judge’s misconduct. See Order, State
v. Letalvis Cobbins, No. E2012-00448-SC-R10-DD (Tenn. May 24, 2012). The court held
that a trial judge’s misconduct outside the courtroom does not constitute structural error
“when there is no showing or indication in the record that the trial judge’s misconduct
affected the trial proceedings.” Id. Order at 3. In that case, the court noted that appellant and
his co-defendants failed to offer any proof that the original trial judge’s misconduct outside
the courtroom affected the integrity of their trials and that no such proof existed in the record.
Id. Order at 4.

        In denying relief on this claim, the post-conviction court made four observations: (1)
“the incident most emphasized” by petitioner, his reference to the trial judge as “the drug
judge,” was refuted by trial counsel’s testimony that it was merely “banter”; (2) petitioner’s
assertion that the trial judge “nodded off” during the proceedings was refuted by trial
counsel’s testimony that he did not observe any such instance; (3) although the records
indicated that the trial judge abused alcohol and prescription medications prior to petitioner’s
trial, none of the reports “support a conclusion that [the trial judge] was impaired during the
November 2008 trial or the January 2009 sentencing hearing”; and (4) trial counsel’s
argument that the trial judge was impaired, as evidenced by the judge’s failure to
comprehend the expert testimony, was “refuted by the trial judge’s thoroughly logical
explanation of his reasoning in finding the petitioner guilty.”


        1
           The State also maintains that this claim is waived because petitioner could have raised it on direct
appeal. While the petitioner could have alleged on direct appeal that the trial judge fell asleep or reacted
unreasonably to a comment, no proof of the trial judge’s misconduct was available at that time. Thus,
petitioner could not have fully developed this issue on direct appeal.

                                                     -7-
       We agree with the post-conviction court. Petitioner has presented no credible
evidence that the trial judge was impaired during the proceedings or that his misconduct
outside of the courtroom affected his ability to preside over petitioner’s trial and sentencing
hearing. Petitioner is not entitled to relief on this claim of error.

                            C. Waiver of Right to a Trial by Jury

       In his initial brief, petitioner alleged that he did not knowingly, intelligently, and
voluntarily waive his right to a trial by jury because he relied upon trial counsel’s incorrect
“assurances” that Ms. Gusby would not testify at trial. The State argues that this issue is
waived because petitioner could have raised it on direct appeal but failed to do so. We agree
with the State.

       Tennessee Code Annotated section 40-30-106(g) provides:

       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.

In this case, neither of the exceptions to waiver applies. Petitioner, through counsel, could
have addressed the waiver of his jury trial on direct appeal, but he failed to do so. This issue,
framed as a freestanding claim, is waived for our review.

        However, in his reply brief, petitioner clarified that although his initial argument on
this point was “succinct,” he did not intend to raise a freestanding claim and that he relied
upon a claim of ineffective assistance of counsel to raise this issue for our review. We note
that petitioner failed to cite any legal authority whatsoever in support of this claim in either
his initial brief or his reply brief. Appellate briefs shall contain “the contentions of the
appellant with respect to the issues presented, . . . including the reasons why the contentions
require appellate relief, with citations to the authorities and appropriate references to the
record . . . relied on; and . . . for each issue, a concise statement of the applicable standard
of review.” Tenn. R. App. P. 27(a)(7). In light of his failure to properly present this issue
for our review, we conclude that he has waived appellate review of this issue. See Tenn. Ct.

                                               -8-
Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.”); see also
Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011).

           D. Failure to Present a Pharmacologist as an Expert Witness at Trial

       Petitioner claims that his trial counsel performed ineffectively by failing to present an
expert to testify at trial about the effects of crack cocaine use on an individual. The State
argued to this court that such testimony would have been inadmissible at trial.

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).



                                              -9-
         To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

       In denying relief on this claim, the post-conviction court noted, “The impact of the
testimony of Dr. Farr is weakened by several things. First, Dr. Farr had never met or
interviewed the petitioner.” The court continued,

              Secondly, one reason petitioner and trial counsel wanted [the trial
       judge] to hear the case was because [the trial judge] was administrator over the
       drug court and knew of the effects of cocaine. In fact, in his decision, the trial
       judge acknowledged [petitioner’s] chronic use and cocaine use on the date of
       the crime and then said[,] “[H]is conduct is not going to be necessarily rational
       conduct[,]” and so[,] “[Y]ou can’t attribute his actions on that day necessarily
       to logical thinking or to conduct that someone who is not smoking crack
       cocaine, or under the influence of cocaine[,] might do.”

              The above observation is simply consistent with Dr. Farr’s testimony.
       The trial judge already knew what Farr could have told him. Furthermore, it
       is common sense, and was argued to the judge that [petitioner’s] guilty conduct
       might not be because he committed arson but because he didn’t want his
       cocaine use discovered. No expert is needed for that observation.

Accordingly, the post-conviction court found that trial counsel’s representation “was well
within appropriate professional standards” and “was not ineffective assistance of counsel.”
(emphasis in original).

        The evidence does not preponderate against the post-conviction court’s findings in
this regard. The trial judge presided over the drug court program and was well-versed in
matters concerning drug addicts, drug-induced behaviors, and effects of chronic cocaine use.
The trial judge’s statements when he delivered his ruling indicate that he considered
petitioner’s explanations and equated petitioner’s actions with irrational and illogical
thinking. As trial counsel opined, perhaps an expert would have been more germane at a jury
trial. However, failure to call such an expert at petitioner’s trial did not amount to ineffective
assistance. Petitioner is not entitled to relief on this claim.

                                              -10-
                                    CONCLUSION

       Based on our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the post-conviction court.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




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