         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 13, 2005

                  ANTONIO GIBSON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. P-27203   James C. Beasley, Jr., Judge



                   No. W2004-02508-CCA-R3-PC - Filed October 19, 2005


The petitioner, Antonio Gibson, appeals the denial of his petition for post-conviction relief. The
single issue presented for review is whether the petitioner was denied the effective assistance of
counsel at trial. The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

C. Anne Tipton, Memphis, Tennessee, for the appellant, Antonio Gibson.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; and
Dennis Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On May 24, 2000, the petitioner was convicted of second degree murder. The trial court
imposed a twenty-three-year sentence. This court affirmed on direct appeal. Antonio Gibson v.
State, No. W2000-03002-CCA-R3-CD (Tenn. Crim. App., at Jackson, Oct. 19, 2001). Application
for permission to appeal to our supreme court was denied on April 8, 2002.

        Our opinion on direct appeal contains a summary of the facts that led to the conviction. On
September 29, 1998, Charles "Jaybird" Bougard, reportedly a drug dealer, was shot to death on the
back porch of his Memphis residence. The victim's death was caused by a single gunshot wound to
the chest. The petitioner, who admitted firing the fatal shot, claimed self-defense as the result of a
quarrel over a debt from a drug transaction. At the time of his death, the victim was armed with a
black, .380 caliber weapon and he had $1700 in his pocket. No empty shells from the victim's
weapon were found at the crime scene. Witnesses identified the petitioner and confirmed that only
one shot was fired.
         On March 12, 2003, the petitioner filed a pro se petition for post-conviction relief alleging,
among other things, that he was denied the effective assistance of counsel at trial. After the
appointment of counsel, the petition was amended to allege that his trial counsel was ineffective for
having failed to object to the jury's review of exhibits out of the presence of the trial court prior to
commencement of formal deliberations; for having failed to request a mistrial when the jury began
its deliberations prematurely; for having failed to make objections to gestures and signals made by
members of the victim's family and courtroom spectators to a state witness; and for having failed to
properly impeach a state witness who had been convicted in juvenile court for shoplifting, a crime
involving dishonesty.

         At the evidentiary hearing, the petitioner, who was represented at trial by Attorney Leslie
Ballin and on appeal by Attorney Robert Brooks, testified that he was originally charged with first
degree murder, felony murder, and robbery. He confirmed that he had sufficient opportunity to
discuss the facts of the case with his trial counsel in preparation for trial and that his trial counsel had
contacted all potential witnesses except for a Reverend Turner, who the petitioner had suggested as
a character witness. The petitioner acknowledged that his trial counsel had timely supplied him with
the state's discovery packets. He stated that he initially chose not to testify but that he had changed
his mind when the jurors were allowed to review exhibits during a recess. According to the
petitioner, he saw one juror "shaking her head" when the jury returned to the courtroom, as if the jury
had already deliberated. He remembered explaining to his lawyer, "I didn't want to testify because
my prior record could be used against me" but explaining further that because he felt the jury had
already decided on his guilt, he had to testify "regardless of [the jury] considering my prior record."
The petitioner testified that he believed that the jurors treated his testimony as irrelevant because they
had already made their decision. He also complained that spectators during the trial had
communicated answers to a key state witness, David Boxley,1 during his testimony and that although
his trial counsel had raised the issue in a motion for a new trial, he failed to call three individuals
who had witnessed the event.

        The petitioner contended that his trial counsel failed to object or request precautionary
instructions when the jury was allowed to "prematurely deliberate" as they reviewed the exhibits
outside of the courtroom. He claimed that his trial counsel should have asked the judge to instruct
the jury to disregard the opening statement by the prosecution, which made reference to charges of
robbery and felony murder, on both of which the court had entered judgments of acquittal at the close
of proof by the time the jury was charged to consider its verdict. The petitioner acknowledged that
he had a prior criminal record which included convictions for assault, vandalism, facilitation to
commit a robbery, and breaking into a car.

       Ebony Graham, the petitioner's sister, testified that she attended the trial. She stated that
when David Boxley, the young eyewitness to the shooting, testified that there were people in the
audience "[m]aking head gestures" indicating to the witness "to say yes or no" in response to
questions. According to Ms. Graham, Boxley "never answered until he saw them move their head


        1
            Boxley was fifteen years of age at the time of the trial.

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in a certain way." Ms. Graham was not called as a witness at the hearing on the motion for a new
trial.

        Christie Plain, the petitioner's first cousin, and Tunya Robinson, his fiancee, testified to
essentially the same thing as Ebony Graham. Ms. Plain recalled that a court officer approached the
individuals who were making gestures, apparently warning them against doing so, and the behavior
stopped. Ms. Robinson added that she saw a member of the victim's family make a slashing motion
across the neck, suggesting an end to Boxley's answer. She claimed to have heard the officer instruct
the individuals to quit making hand gestures. Neither of the two witnesses were called to testify at
the hearing on the motion for a new trial.

        Attorney Ballin, who represented the petitioner at trial, testified that he did not notice any
interaction between Boxley and any of the individuals in the audience while Boxley was on the
stand. He stated that had he done so, he would have utilized that information during his cross-
examination in an effort to discredit Boxley. He conceded that Boxley, an eyewitness to the
shooting, was an important witness for the state. He stated that he had been practicing law for over
twenty-five years and knew that Officer Vanessa Thomas supervised "a pretty tight courtroom,"
never allowing any irregularities to "go on very long." Trial counsel recalled that at the hearing on
the motion for a new trial, he called Officer Thomas as a witness instead of the three individuals
suggested by the petitioner because she had no interest in the outcome of the case and had credibility
with the trial judge. He explained that he did not call the additional witnesses because of the
cumulative nature of their testimony.

         Trial counsel also recalled that five exhibits, all relating to the crime scene, were introduced
at trial and passed to the jury to review during a recess. It was his opinion that the procedure was
not erroneous. According to trial counsel, he saw nothing that caused him concern when the jury
returned to the courtroom after reviewing the crime scene exhibits. Trial counsel recalled that he had
prepared the petitioner to testify, which he thought was pivotal with a self-defense claim.

       Robert Brooks, who was retained as counsel for the petitioner on appeal, testified that he
reviewed the several grounds raised in the motion for a new trial and presented only one on direct
appeal. That is, whether the trial court erred in its instructions to the jury on the definition of
passion, the defining element between second degree murder and voluntary manslaughter.

        At the conclusion of the evidentiary hearing, the post-conviction court determined that during
the recess, the jury was permitted to look at a crime scene sketch, an envelope containing a bullet
casing, two crime scene photographs of the same bullet, an envelope containing a wallet, and an
envelope that contained cash. After reviewing the trial transcript, the post-conviction court
determined that the trial court had admonished the jury not to discuss the case during the recesses
or breaks and, while there were no admonitions against discussing the exhibits during the particular
recess in question, that there was nothing by the nature of the exhibits, nothing in the trial record,
and no proof offered at the evidentiary hearing suggesting that the jury had prematurely deliberated
or prematurely formed an opinion as to the guilt of the petitioner. The post-conviction court pointed


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out that at the time the exhibits were reviewed, Boxley, the primary witness for the state, had not yet
testified. It held that because the petitioner would not have been entitled to relief, there was no
indication of prejudice by virtue of trial counsel's failure to lodge an objection or seek a mistrial.

        The post-conviction court further concluded that whatever impropriety occurred on the part
of the victim's family or other spectators within the courtroom was detected by the court officer, who
"got on to these individuals and from that point forward stood between them and the witness." The
court reviewed the transcript of Boxley's testimony at trial, concluded that trial counsel had
conducted an effective cross-examination, specifically questioning him about "some prior
communication [with] . . . the victim's family." The post-conviction court specifically accredited the
veracity of trial counsel to the extent "that he wasn't aware that something was going on in the
courtroom." Regarding the effect of the "courtroom antics of the victim's family," on Mr. Boxley's
testimony, the court concluded the following:

       Everybody seems to agree that Mr. Boxley's testimony didn't change, that [it] . . . was
       the same as what they anticipated. . . . And so . . . I don't know what we can say these
       people influenced or how they influenced or what it is about this testimony that was
       changed. . . . But it's apparent to the court that there's nothing that's been presented
       . . . that says Mr. Boxley's testimony was tainted by these people in the back of the
       courtroom.

In consequence, the post-conviction court concluded that despite any deficiencies on the part of trial
counsel by his failure to make objections, seek a mistrial, or present the ground on a motion for a
new trial, the petitioner had failed to establish any prejudice. It was also the opinion of the post-
conviction court that the testimony of the three witnesses, Ebony Graham, Christie Plain, and Tunya
Robinson, would not have made a difference had they been called as witnesses in a motion for
mistrial or in a motion for a new trial.

        In this appeal, the petitioner presents only two claims. He first argues that his trial counsel
was ineffective for having failed to either move for a mistrial or request special instructions when
the jury was allowed to review the exhibits during a recess. He also contends that trial counsel was
ineffective for having failed to either request curative instructions, move for a mistrial, or seek a
motion for new trial based upon improper communications between spectators at the trial and the
witness, Boxley.

        Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the post-conviction court are conclusive and will not
be disturbed unless the evidence contained in the record preponderates against them. Brooks v.
State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that
the evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.


                                                  -4-
App. 1978). The credibility of the witnesses and the weight and value to be afforded their testimony
are questions to be resolved by the post-conviction court. Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997).

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services 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). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

               Because a petitioner must establish both prongs of the test, a failure to prove
       either deficiency or prejudice provides a sufficient basis to deny relief on the
       ineffective assistance claim. Indeed, a court need not address the components in any
       particular order or even address both if the defendant makes an insufficient showing
       of one component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

        The petitioner initially argues that counsel was ineffective for having failed to either object,
ask for curative instructions, or move for a mistrial when the trial court declared a recess and allowed
the jury to review five exhibits that had just been introduced into evidence by the state. While the
petitioner acknowledges that the trial court had previously admonished the jury against premature
deliberations, he suggests that because there was no such admonishment during this particular recess,
trial counsel should have interceded in an appropriate way, and that his failure to do so resulted in
premature jury deliberations.



                                                  -5-
        Prior to July 1, 1995, exhibits were not permitted in the jury room during deliberations in a
criminal case. Whether to do so in civil cases was left to the discretion of the trial judge. Fletcher
v. Coffee County Farmers Co op., 618 S.W.2d 490, 495 (Tenn. Ct. App. 1981). In 1995, Rule 30.1
of the Tennessee Rules of Criminal Procedure was adopted. The rule provides as follows:

        Upon retiring to consider its verdict, the jury shall take to the jury room all exhibits
        and writings which have been received in evidence, except depositions, for their
        examination during deliberations, unless the court for good cause, determines that an
        exhibit should not be taken to the jury room.

Tenn. R. Crim. P. 30.1 (1995)

       The Comments to the 1995 rule provide that the change in the law brought Tennessee in line
with practically all other jurisdictions and that while the rule is mandatory, there is an exception
when a particular exhibit might be considered a threat to the health and safety of the jurors. Id.

        In this case, the trial court explained its decision to provide the jury with the exhibits prior
to the recess:

        [T]he jury's got a lot to look at in those envelopes down there, and I don't like to sit
        here and watch them look at things.
        . . . So ladies and gentlemen of the jury, I'm going to let you take those exhibits back
        in the jury room. Be comfortable and take your time and look at them. When you
        get through, we'll just bring you back, okay? . . .

Then, addressing counsel, the trial court explained, "They're going to get them all at the end of the
lawsuit anyway."

        Initially, the petitioner failed to cite any authority suggesting that it was error for the trial
court to have allowed the jury to review the exhibits during a recess. The failure to cite authority in
support of an issue may constitute a waiver. Tenn. R. App. P. 27(a)(7). Further, the petitioner has
asked this court to infer that the jury prematurely deliberated the issue of guilt as they reviewed the
contents of the exhibits outside of the courtroom. There is, however, no evidence that the jury did
so. In fact, Attorney Brooks, called as a witness for the petitioner, confirmed that the trial record
contained no indication that the jury had any discussions about the contents of the exhibits or how
they related to the guilt or innocence of the petitioner at any time before formal deliberations began.
Any speculation on the part of the petitioner as to the body language of a particular juror would be
an inadequate basis for the court to determine that the jury had engaged in "premature deliberations."
In our view, there has been no showing of any deficiency in the performance of trial counsel and no
showing of prejudice in result.

        Next, the petitioner argues that trial counsel should have either objected, sought curative
instructions, or asked for a mistrial when there were improper communications between spectators


                                                  -6-
at the trial and a state witness, David Boxley. The post-conviction court, of course, found that there
was some improper conduct on the part of spectators but also concluded that the proof at the
evidentiary hearing did not establish that the trial testimony of the witness was affected in any way.
The post-conviction court reviewed the trial transcript, complimented the effectiveness of trial
counsel's cross-examination of Boxley, and specifically accredited the truthfulness of trial counsel's
testimony at the evidentiary hearing. Moreover, none of the three witnesses were able to testify as
to how the content of Boxley's testimony had been altered by the actions of the spectators. Their
only claim was that Boxley appeared to hesitate before answering some of the questions submitted
by the state.

        Coaching of a witness by a courtroom spectator, of course, is highly improper. That the court
officer took action accredits the petitioner's claim of impropriety but it also suggests that the
misconduct was detected and then terminated. In a post-conviction proceeding, the burden is on the
petitioner to establish by clear and convincing evidence that trial counsel was deficient for having
failed to take remedial action and that the deficiency adversely affected the results of his trial. For
there to have been prejudice, the petitioner must have demonstrated that Boxley's testimony was
influenced by the conduct of the spectator in a manner harmful to the defense. That is a question of
fact. The post-conviction court, after a meticulous review of the record of the trial and seeing and
hearing the witnesses first hand at the evidentiary hearing, rejected the petitioner's claim. In our
view, the evidence does not preponderate against that finding.

       Accordingly, the judgment is affirmed.




                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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