             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                         JANUARY 1998 SESSION
                                                         July 9, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
BILLY JOE BOURFF                 )
                                 )          NO. 03C01-9705-CR-00189
      Appellant                  )
                                 )          CAMPBELL COUNTY
v.                               )
                                 )          HON. LEE ASBURY
STATE OF TENNESSEE               )
                                 )          (Post Conviction)
      Appellee                   )
                                 )


For the Appellant:                          For the Appellee:

Douglas A. Trant,                           John Knox Walkup
900 S. Gay Street                           Attorney General & Reporter
Suite 1502
Knoxville, TN. 37902                        Marvin E. Clements, Jr.
(on post conviction)                        Assistant Attorney General
                                            425 Fifth Avenue North
                                            2d Floor, Cordell Hull Building
                                            Nashville, TN. 37243-0493

                                            William Paul Phillips
                                            District Attorney General

                                            Michael O. Ripley
                                            Assistant District Attorney
                                            P.O. Box 323
                                            Jacksboro, TN. 37757




OPINION FILED:_____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                        OPINION

       The appellant, Billy Joe Bourff, appeals as of right the Campbell County

Criminal Court’s dismissal of his petition for post-conviction relief. We affirm the

judgment of the trial court.

       In 1991, the appellant was convicted by a jury of first degree murder and was

sentenced to life in prison. Appellant’s conviction and sentence were affirmed by this

Court on direct appeal. See State v. Billy Joe Bourff, No. 03C01-9305-CR-00162

(Tenn. Crim. App. at Knoxville, June 23, 1994), perm. app. denied (Tenn. May 8,

1995)(concurring in results only).

       The facts of appellant’s case were summarized in the direct appeal as follows:

               On July 17, 1990, the appellant, accompanied by his father-in-
       law, Neal Perry, and his brother-in-law, Charles Perry, went to Zen’s
       Tavern to shoot pool. Also present in the tavern was the victim, Leroy
       Baird. According to the state’s witnesses, the appellant arrived about
       10:15 p.m. and played pool with his companions. Mr. Baird was seated
       at the bar eating beef stew and cornbread. The appellant spilled Mr.
       Baird’s stew on the counter and Mr. Baird moved down a couple of
       stools. Witnesses testified that words were exchanged between the
       appellant and Mr. Baird, but that Mr. Baird apparently did not consider it
       a serious matter.
               The appellant immediately left the tavern and returned shortly with
       his pistol, which he was carrying behind his back. He swung the gun
       around in front of him, telling Zen Hicks, the owner of the tavern, that he
       wanted to show him something. In so doing he pointed the gun directly
       at Mr. Baird. At that time Mr. Hicks told the appellant to leave and he did
       so. About a minute later Mr. Baird got up and walked out the door of the
       tavern. At that time one shot was fired by the appellant into Mr. Baird’s
       chest. The bullet passed through the “conduction pathway” of the heart
       causing a condition the pathologist called “instant wipe-out” of the
       function of the human heart and Mr. Baird died immediately. According
       to the appellant’s proof, the appellant was feeding Mr. Baird the soup
       when he spilled some. Mr. Baird accused him of spilling the soup on
       purpose and words were exchanged between the appellant and the
       victim. The appellant and his witnesses said that Mr. Baird was pulling
       out a knife inside the tavern and that when he came outside, he was
       attacking the appellant with the knife. Therefore, the appellant shot him
       to keep from being cut. Although the appellant’s father-in-law and
       brother-in-law said they saw the knife inside the tavern, the appellant
       testified that he never saw the knife until [the victim] came out “cussing
       and raging.”
               An open pocket knife was found about one and one-half inches
       above the victim’s head. In addition, he had a pack of cigarettes in his
       hand and a cigarette between his fingers. The shot was fired from a



                                            2
       distance of less than forty-eight inches from the surface of the victim’s
       shirt.

See id. slip op. at 1.

       On February 8, 1996, the appellant filed a petition for post-conviction relief

alleging that the prosecution withheld exculpatory evidence at trial in violation of Brady

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that his trial

counsel was ineffective in failing to discover exculpatory evidence and in failing to

request a jury instruction on mutual combat. Appellant had the burden of proving

those allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-

210(f) (Supp. 1996).

       The trial court conducted an evidentiary hearing and dismissed appellant’s

petition upon finding that the information withheld by the prosecution was not material

under Brady and that appellant’s trial counsel provided effective and competent

assistance. We affirm the trial court’s findings.

                                             I.

       The appellant first contends that the prosecution withheld exculpatory evidence

at trial in violation of Brady v. Maryland. This issue is without merit.

       At the evidentiary hearing, the appellant introduced documents marked as

exhibits one through three to demonstrate a Brady violation. Exhibits one and two are

jail intake records of the victim, Leroy Baird, dated from 1983 until his death in 1990.

The records reflect that Mr. Baird was arrested fourteen (14) times for various criminal

offenses including eight charges of public drunkenness, six charges of driving on a

revoked license, five charges of driving under the influence of an intoxicant (D.U.I.),

two charges of resisting arrest, and two charges of possession of a controlled

substance. In six of the fourteen arrests, Mr. Baird was in possession of a knife.

       Exhibit three is a list of Mr. Baird’s convictions in the General Sessions Court of

Campbell County. The records show that Mr. Baird was convicted of D.U.I. and

driving without a license in 1988, and public drunkenness in four separate cases, with


                                             3
one case in 1989, also including a conviction of resisting arrest 1 and possession of

marijuana. Additionally, he was indicted on two subsequent charges of D.U.I. and

driving without a license; however, those charges were dismissed after his death in

1990.

         The appellant contends that he could have used that information, specifically

the records of public drunkenness and resisting arrest, to show that Mr. Baird had a

propensity to drink and become violent when intoxicated from alcohol. He argues that

the information would have supported his theory that Mr. Baird was the first aggressor

who attacked him with a knife.

         The appellant relies upon the landmark case of Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to assert that the State suppressed the

information in violation of due process. In Brady, the United States Supreme Court

held that the prosecution has a constitutional duty to furnish the defendant with any

exculpatory evidence concerning the defendant’s guilt or innocence and possible

punishment. See 373 U.S. at 86-87, 83 S.Ct. at 1196-97.

         To establish a violation under Brady, the defendant must prove by a

preponderance of the evidence that: (1) he requested the information (unless the

evidence is obviously exculpatory, in which case the State has a duty to release the

evidence whether requested or not); (2) the State suppressed the evidence at trial; (3)

the evidence was favorable to the defendant; and (4) the evidence was material. See

United State v. Bagley, 473 U.S. 667, 674-76, 105 S.Ct. 3375, 3379-80, 87 L.Ed.2d

481 (1985); State v. Edgin, 902 S.W.2d 387, 389-390 (Tenn. 1995).




         1
           The 1989 conviction for resisting arrest arose from an incident in which Mr. Baird was arrested
for public d runke nness . The co nviction rec ord indica tes that M r. Baird kic ked a p olice office r and ha d to
be forcib ly detained af ter the offic er cited him for public d runke nness .

                                                         4
         Evidence is material “if there is a reasonable probability2 that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566, 131 L.Ed.2d

490 (1995). Additionally, our state supreme court has held that when there has been

a general request or no request for Brady information, the undisclosed evidence is

material if it “creates a reasonable doubt that did not otherwise exist.” See State v.

Edgin, 902 S.W.2d 387, 389 (Tenn. 1995) (quoting United States v. Agurs, 427 U.S.

97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976)).

         In appellant’s case, his trial counsel filed a pre-trial request for any information

that might constitute Brady evidence. Although the State concedes that it never

disclosed the information in exhibits one through three, the State argues that the

evidence is not material under Brady. We agree.

         The record reflects that the appellant shot Mr. Baird at close range in the

parking lot of Zen’s Tavern. The appellant had returned to the tavern with his pistol

after an earlier altercation with Mr. Baird inside the bar. At trial, the appellant

presented evidence through eyewitness testimony that Mr. Baird attacked him with a

knife moments before the shooting. This Court reviewed that evidence in the direct

appeal and concluded that there was overwhelming proof from which a rationale trier

of fact could reject the theory of self-defense and convict the appellant of first degree

murder. See Bourff, slip op. at 2.

         The appellant, nevertheless, argues that the information in exhibits one, two,

and three would have strengthened his theory of self-defense. We find, however, that

even if the information were admissible to show Mr. Baird’s criminal history,

particularly his alcohol related offenses, it has little probative value as to appellant’s

guilt or innocence in the present case.

         2
          The exist enc e of a “reas ona ble pr oba bility” ce nters arou nd w heth er the cour t has conf idenc e in
the verdic t of the cas e desp ite non-dis closure of the evide nce. See Bagley, 473 U.S . at 678, 10 5 S.Ct.
at 3381. T he cou rt mus t view the su ppress ed evide nce co llectively in the con text of the e ntire reco rd to
determ ine wheth er the evide nce is m aterial. See State v. Edg in, 902 S.W.2d 387, 389 (Tenn. 1995)
(citing United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2402, 49 L .Ed.2d 342 (1976)).

                                                          5
        The jail intake reports reflect that Mr. Baird had been arrested multiple times for

alcohol related offenses. Although the records show that Mr. Baird possessed a knife

during six of his fourteen arrests, and that he was cited twice for resisting arrest, the

evidence carries little probative value when weighed against eyewitness testimony

from the scene of the shooting. Moreover, we note that Mr. Baird’s convictions in the

general sessions court are a matter of public record and were not in the exclusive

control of the State. Therefore, the State’s failure to disclose the conviction records

was not a Brady violation. See State v. Edgin, 902 S.W.2d at 389.

        In the context of the entire record, the information in exhibits one through three

would not have created a reasonable doubt concerning whether the appellant

committed first degree murder. We are confident that the verdict in this case is correct

and conclude that the information was not material within the meaning of Brady.

                                                     II.

        The appellant next contends that he received ineffective assistance of counsel

by his trial counsel’s failure to obtain exculpatory evidence and to request a jury

instruction on mutual combat. This issue is without merit.

        To prevail on a claim of ineffective assistance of counsel in this proceeding, the

appellant must show by clear and convincing evidence3 that the advice or services

provided by his counsel fell below the range of competence demanded of attorneys in

criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

Furthermore, he must demonstrate prejudice by proving that, but for counsel’s

incompetence, the result of his trial would have been different. See Strickland v.

Washington, 466 U.S. 668, 687-88, 692, 694, 104 S.Ct. 2052, 2064, 2067-68, 80

L.Ed. 674 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). 4



        3
            Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).

        4
         The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the
Tenn essee Cons titution. See State v. Melson, 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. denied, 493
U.S. 874 (1989).

                                                     6
         The appellant first argues that his trial counsel failed to discover alleged

exculpatory evidence. He contends that if the State did not suppress the information

in exhibits one through three, then his counsel was ineffective in failing to obtain it.

         Evidence at the post-conviction hearing consisted of appellant’s testimony and

the testimony of his trial counsel. Appellant’s counsel testified that he conducted a

pre-trial investigation which included interviews with the appellant, his family, and

officers at the Campbell County Sheriff’s Department. The record also reflects that

counsel made discovery motions before trial, including a request for any information

that might be exculpatory of the appellant. From that investigation, appellant’s

counsel stated that he learned about the victim’s frequent consumption of alcohol.

However, he testified that he did not know about the victim’s criminal history until after

trial.

         Based upon information obtained from the appellant and other eyewitnesses,

appellant’s counsel established a case on the theory of self-defense. Both the

appellant and his counsel testified that they pursued that defense in light of evidence

that the victim approached appellant with a knife before the shooting. The trial court

reviewed the testimony and found nothing in counsel’s investigations that rose to the

level of ineffective assistance. That decision is conclusive in this proceeding and will

not be overturned unless the evidence preponderates against the judgment. See

State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983), perm. app. denied

(Tenn. 1984). From our review of the record, we affirm the trial court’s finding and

conclude that appellant’s counsel conducted a thorough investigation of the case.

         The appellant also alleges that his counsel was deficient in failing to request a

jury instruction on mutual combat.5 The record reflects that appellant’s counsel never

discussed mutual combat nor requested a jury instruction on that defense at trial.


         5
          When a hom icide results from mutual combat or the excitement and heat of passion therefrom,
the crim inal offens e is volunta ry man slaughte r. See Hunt v. S tate, 303 S.W.2d 740, 742 (Tenn. 1957)
(citing 40 C .J.S. Homicide § 48(b), p.912). “There must be a mutual intention to fight, and, it has been
held, deadly or dangerous weapon s must be us ed.” See id.

                                                   7
However, the appellant admitted that the defense strategy from the beginning was to

pursue a theory of self-defense. Counsel testified that the self-defense theory was

based upon appellant’s version of the events preceding the shooting. The appellant

told his counsel that there was no mutual fight between himself and the victim, but

instead, the victim followed him outside the tavern and attacked him with a knife. The

appellant further stated that his only fight with the victim was the brief exchange of

words inside the bar.

       Counsel’s decision to pursue a theory of self-defense at trial must be reviewed

with deference and from the counsel’s perspective at that time. See Strickland, 466

U.S. at 689, 104 S.Ct. at 2065; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Every

effort is made to avoid judging counsel’s performance from hindsight; however, we

must ensure that the appellant was afforded reasonably effective and competent

assistance at trial. See Hellard, 629 S.W.2d at 9.

       In that respect, we acknowledge that appellant’s counsel investigated the case

and formulated a defense strategy based upon the facts and circumstances

surrounding the shooting. The appellant’s position from the first meeting with his

counsel was that he shot the victim only to protect himself from the alleged knife

attack. The record, including appellant’s own testimony, reflects that there was no

mutual fight between appellant and the victim at the time of the shooting.

       From our review, even if the evidence somehow warranted a jury charge on

mutual combat, defense counsel’s failure to request it does not rise to the level of

ineffective assistance. We conclude that the tactical decisions and services provided

by appellant’s counsel were well within the standard demanded of attorneys in criminal

cases. Appellant’s contention is without merit.

       Based upon the foregoing, the judgment of the trial court is affirmed.



                                                  ___________________________
                                                  WILLIAM M. BARKER, JUDGE


                                            8
CONCUR:


_________________________
JOSEPH M. TIPTON, JUDGE


_________________________
CURWOOD WITT, JUDGE




                            9
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE

                                JANUARY 1998 SESSION



BILLY JOE BOURFF                           )
                                           )              NO. 03C01-9705-CR-00189
       Appellant                           )
                                           )              Campbell County No. 8815
v.                                         )
                                           )              HON. LEE ASBURY
STATE OF TENNESSEE                         )
                                           )              (Post Conviction)
       Appellee                            )
                                           )              Affirmed
                                           )


                                       JUDGMENT

       Came the appellant, Billy Joe Bourff, by and through counsel, and also came

the attorney general on behalf of the State, and this case was heard on the record on

appeal from the Criminal Court of Campbell County; and in consideration thereof, this

Court is of the opinion that there is no error in the judgment of the trial court.

       In accordance with the opinion filed herein, it is, therefore, ordered and

adjudged that the judgment of the trial court is affirmed and the case is remanded to

the Criminal Court of Campbell County for the execution of the judgment of that court

and for the collection of the costs accrued below.

       Costs of appeal will paid into this Court by the appellant for which execution

shall issue if necessary.




                                           William M. Barker, Judge
                                           Joseph M. Tipton, Judge
                                           Curwood Witt, Judge
