        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 1, 2013

                 FRANKLIN FITCH v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Shelby County
                    No. 02-07320     James M. Lammey, Jr., Judge


                  No. W2012-01465-CCA-R3-PC - Filed March 6, 2014


The petitioner, Franklin Fitch, was convicted of first degree murder and sentenced to life
imprisonment in the Tennessee Department of Correction. Subsequently, he filed a petition
for post-conviction relief, alleging that his trial counsel were ineffective. The post-conviction
court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment
of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J ERRY L. S MITH, J., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Franklin Fitch.

Robert E. Cooper, Jr., Attorney General and Reporter; DeShea Dulany Faughn, Assistant
Attorney General, Amy P. Weirich, District Attorney General; and Stacy McEndree,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                   I. Factual Background

      The petitioner was charged in the Shelby County Criminal Court with the first degree
premeditated murder of Angela Carroll. The proof adduced at trial revealed

              that the [petitioner] and the victim had been involved in a
              romantic relationship. Approximately one month before the
              offense, the victim moved out of their shared home. Although,
              according to the [petitioner], the victim continued to “see” him
              several times a week, she also became involved with another
              man. There is also indication that the victim had filed for an
              order of protection against the [petitioner]. On the day of the
              murder, the [petitioner] paid a friend to drive him to the victim’s
              place of employment. He asked employees of the nursing home
              where he could locate the victim, identifying himself as her
              boyfriend. Once he located the victim, he kneeled down, drew
              his gun and began shooting the unarmed victim. He pursued the
              wounded victim into a bathroom and, despite her cries for help,
              continued shooting and shouting, “you dirty bitch, you dirty
              whore, I told you I was going to get you.” The [petitioner]
              placed the weapon in his belt, walked out of the nursing home,
              and later walked into a fast food restaurant, declaring that he had
              just shot somebody.

State v. Franklin Fitch, No. W2004-02833-CCA-R3-DD, 2006 WL 3147057, at *15 (Tenn.
Crim. App. at Jackson, Nov. 2, 2006).

        At the sentencing hearing, the jury found two aggravating circumstances: (1) that the
petitioner had previously been convicted of a felony involving violence to the person,
Tennessee Code Annotated section 39-13-204(i)(2), and (2) that the petitioner knowingly
created a great risk of death to two or more persons other than the victim during the act of
murder, Tennessee Code Annotated section 39-13-204(i)(3). See Fitch, No. W2004-02833-
CCA-R3-DD, 2006 WL 3147057, at *23-30. Upon finding that the aggravating
circumstances outweighed any mitigating factors, the jury sentenced the petitioner to death.
Id. at *1. On appeal, this court affirmed the petitioner’s conviction but reversed his sentence
of death, concluding that the (i)(2) aggravating circumstance was erroneously applied. Id.
at *34. Therefore, this court remanded the case to the trial court for a new sentencing
hearing.

       On remand, the parties entered into an agreement whereby the petitioner would be
sentenced to life without the possibility of parole.

        Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his
trial counsel were ineffective. Specifically, the petitioner contended that counsel failed to
fully investigate the case and prepare for trial on the issue of “the short term and long term
effects of alcohol on the [petitioner’s] ability to form the proper intent or mens rea for the
offense of first degree murder.”

       At the post-conviction hearing, post-conviction counsel announced that the petitioner

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declined to testify. Upon questioning by the post-conviction court, the petitioner affirmed
that he did not want to testify at the hearing.

      The first witness was lead trial counsel, who was a member of the capital defender
team of the Shelby County Public Defender’s Office. Lead counsel was assisted by co-
counsel, who was also a member of the capital defender team, and by a defense investigator.

        Lead counsel said he met with the petitioner “very often.” He said that the petitioner’s
level of intoxication at the time of the murder and at the time his statement was given to
police was an issue at trial. Records obtained by counsel revealed that on August 7, 1998,
the petitioner went to the Memphis Mental Health Institute’s crisis management department
(MMHI) due to problems with alcohol. However, no complete evaluation was performed
because the petitioner stayed only one day. The defense team was unable to find any
documentation that the petitioner had received any type of treatment.

       Lead counsel stated that he never sought funding for an expert concerning the effect
of alcohol use on the petitioner’s ability to form intent, explaining, “We had no
documentation to suggest long-term intoxication other than the one document from
[MMHI].” Lead counsel did not think there was a “particularized need for an addiction
expert.”

        Lead counsel testified that the defense team spoke with the petitioner’s family and
friends to discern the petitioner’s history of alcohol use and abuse, specifically noting that
they spoke with Johnny Montgomery and Elvis Bowers. Lead counsel said that Montgomery
testified at trial that he had seen the petitioner on the day of the shooting, that the petitioner
was drinking beer, and that the petitioner “was not his usual self.” Counsel decided not to
have Bowers testify because during the investigative interview, Bowers stated that he “didn’t
know the [petitioner] to use alcohol, and he was surprised when he came to his house with
the beer that day.” Bowers recalled driving the petitioner to the nursing home, waiting for
twenty minutes, and then taking the petitioner home. He was unable to recall anything about
the shooting. Bowers said that during the trip, he never noticed that the petitioner had a gun,
that the petitioner came out of the nursing home with blood spatter on his pants or shoes, or
that the petitioner smelled of gunpowder after the shooting. Accordingly, counsel did not
think Bowers was a credible witness.

       Lead counsel denied that the petitioner was too intoxicated to give a statement.
Specifically, lead counsel observed that Officer Geronimo, who went to the fast food
restaurant to arrest the petitioner, said that he saw the petitioner with a beer and that the
petitioner had been drinking. Nevertheless, the officer did not “see any evidence of
impairment.” Lead counsel said that the petitioner was arrested and taken to jail but, based

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on the police department’s policy, he was not questioned until the next day because he had
been drinking alcohol.

       Lead counsel said that the defense team had the petitioner evaluated by the Midtown
Mental Health Center (Midtown) for competency and sanity. After a thirty-day evaluation,
the evaluation team prepared a report summarizing the results. According to the report, the
petitioner stated that he suffered from “‘[a]lcohol, cocaine, and cannabis abuse.’” The report
reflected that during the evaluation, the petitioner complained about hearing voices and that
he was prescribed Elavil to “‘stop[] the voices.’” The petitioner reported to the evaluation
team that he had received treatment in an alcohol and drug program and that he was referred
for an inpatient evaluation. The petitioner told the evaluation team that he drank “hard
liquor” and that he had consumed two or three six packs of beer a day since he was seventeen
to eighteen years old. The petitioner also stated that he used “a hundred dollars worth of
crack [cocaine] and ten dollars worth of marihuana” and that he had abused Valium; the
petitioner did not reveal the period of time during which he used the drugs. The evaluation
team concluded that the petitioner was malingering. Lead counsel said that the defense team
was unable to find documentation to support the petitioner’s claims.

       Lead counsel stated that when this court remanded the case for resentencing, the
petitioner agreed upon a sentence of life without parole rather than risk a death sentence.

       Co-counsel testified that she was the head of the capital defender team, that the State
provided open-file discovery, and that she reviewed all discovery materials. She said that
lead counsel made the decision to have the petitioner evaluated and that she agreed with the
decision. She said that the defense team would have sought an independent evaluation if
they believed “it might garner different results.” Additionally, the defense team would have
sought expert assistance regarding intoxication

              [i]f there had been more than just one incident of this
              happening; it might have given us some basis; but there was no
              indication of any history. We interviewed his family. It says
              sometimes he got drunk but that he had no history of mental
              illness, no history of drug abuse, no history of alcohol problems.
              Just every now and then, he got drunk. So, this was all we had
              to go on, plus the interviews of his family; so that didn’t really
              steer us into any direction to where we needed to seek outside
              help. I mean, there was no basis for anyone to evaluate him
              other than this . . . one-day crisis thing that he went to.

       Co-counsel acknowledged that the defense team put on proof about the petitioner’s

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intoxication on the day of the shooting but denied that counsel found any proof of a history
of alcohol abuse. She noted that although the evaluation report stated the petitioner had
abused alcohol, the defense team relied on information provided by the petitioner. Co-
counsel stated that she was aware the petitioner “had [a] low I.Q. or . . . bad grades” but that
he seemed to understand the proceedings. She occasionally thought the petitioner tried to
“fake” mental problems “to fool us to try and get some type of defense.” However, the
petitioner had no difficulty communicating with the defense team.

        At the conclusion of the hearing, the post-conviction court found that lead counsel’s
testimony was “very, very credible.” The court found that counsel was aware of Bowers’s
statement that the petitioner did not habitually drink alcohol. The court observed that “if
there’s no long-term usage, then, of course, the expert would be worthless. It could actually
work against him.” The court noted the difficulty of trying to second-guess the tactical
decisions made by counsel. The post-conviction court accredited counsels’ assertions that
there was no reason to call an expert on the effects of alcohol usage. The court found that
calling an expert on the effects of alcohol would have had no effect on the outcome of the
trial. The court found that the petitioner had failed to prove that counsel were deficient in
any respect. In fact, the court stated that “from all indications, they went above and beyond
and did their best to defend him.” Accordingly, the post-conviction court denied post-
conviction relief. On appeal, the petitioner contests this ruling.

                                         II. Analysis

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

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purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

                       [b]ecause 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 [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Further, in the context of a
guilty plea, “the petitioner must show ‘prejudice’ by demonstrating that, but for counsel’s
errors, he would not have pleaded guilty but would have insisted upon going to trial.” Hicks
v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S.
52, 59 (1985).

       On appeal, the petitioner asserts that

              trial counsel failed to fully investigate, prepare, develop[,] or
              present[] evidence related to the short term and long term effects
              of alcohol on the [petitioner’s] ability to form the proper intent
              or mens rea for the offense of first degree murder. This includes
              but is not limited to a failure to utilize expert assistance where
              required.

       Initially, we note that although the petitioner contends that trial counsel should have
called an expert on the effects of alcohol usage, the petitioner presented no such expert at the
post-conviction hearing. Generally, “[w]hen a petitioner contends that trial counsel failed
to discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,

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757 (Tenn. Crim. App. 1990). We may not speculate on what benefit an expert witness
might have offered to the petitioner’s case, nor may we guess as to what evidence further
investigation may have uncovered. Id. Accordingly, the petitioner has failed to demonstrate
prejudice in this regard.

       Further, as the post-conviction court found, trial counsel decided that there was no
reason to hire an expert on the effects of alcohol usage. On direct appeal, this court
addressed whether the petitioner’s alleged intoxication prevented him from having the ability
to form the intent to kill:

              The trial court admitted testimony regarding the [petitioner’s]
              alleged use of alcohol prior to and immediately preceding the
              offense and the court properly instructed the jury that voluntary
              intoxication could negate the [petitioner’s] culpable mental
              state.

                       Upon review, we conclude that the defense argument that
              the [petitioner] lacked the requisite mental state for premeditated
              murder is not persuasive. The only evidence of intoxication
              prior to the offense comes from the testimony of Johnny
              Montgomery. Johnny Montgomery, a lifelong acquaintance of
              the [petitioner], testified that he observed the [petitioner] around
              three o’clock on the afternoon of February 28, 2002, walking
              down the street with a “quart of malt liquor.” Montgomery
              stated that it was not usual for the [petitioner] to drink and that,
              on this date, the [petitioner] appeared “[r]eal drunk.” The state’s
              eyewitnesses at the scene of the shooting all testified that there
              was no indication that the [petitioner] was under the influence
              of an intoxicant. Rather, the eyewitnesses at the nursing home
              all testified that the [petitioner] appeared “calm” and that he was
              acting with a purpose. The witnesses who testified that the
              [petitioner] appeared to have been drinking had only observed
              the [petitioner] after the shooting occurred and they stated that
              he was only “slightly intoxicated” and not to the point that he
              did not know what he was doing. In addition, the [petitioner]
              confessed responsibility for the victim’s death to the police and
              did not admit to being under the influence of alcohol at the time.

State v. Franklin Fitch, No. W2004-02833-CCA-R3-DD, 2006 WL 3147057, at *16 (Tenn.
Crim. App. at Jackson, Nov. 2, 2006).

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       Moreover, counsel testified that there was no proof, other than the petitioner’s claims,
that he had a history of alcohol abuse. Counsel stated that the petitioner had been found to
be malingering, and co-counsel noted that the petitioner occasionally seemed to be trying to
“fake” mental or substance abuse problems in order to establish a defense. The trial court
accredited this testimony. Although counsel presented at trial proof regarding the petitioner’s
intoxication at the time of the shooting, the jury chose not to accredit the proof. The post-
conviction court found that counsel were not deficient. Nothing in the record preponderates
against this finding.

                                      III. Conclusion

      In sum, we conclude that the post-conviction court did not err in denying post-
conviction relief. Accordingly, the judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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