         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 26, 2002

                     STEVE MASON v. STATE OF TENNESSEE

              Post-Conviction Appeal from the Circuit Court for Maury County
                            No. 8516    Jim T. Hamilton, Judge



                   No. M2002-00414-CCA-R3-PC - Filed September 2, 2003


The petitioner, Steve Mason, brings the instant appeal of the post-conviction court’s denial of his
petition for relief. The petitioner stands convicted of first degree murder and attempted first degree
murder. In this appeal, he alleges that he is entitled to post-conviction relief on the basis that the
facts introduced at trial are insufficient to support his convictions and because he received ineffective
assistance of trial counsel.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
MCGEE OGLE , JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Steve Mason.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION


                                        Factual Background

     When this Court reviewed the petitioner’s direct appeal of his convictions and sentence, we
summarized the facts of his case as follows:

                On August 4, 1994, Timothy McGill and Jesse Tate Jones were shot
        numerous times following a crap game which took place on Broadway Avenue in Mt.
        Pleasant. McGill suffered three gunshot wounds and died from these injuries. Jones,
        McGill's stepfather, was shot twice. After surgery and hospitalization, he recovered
        fully and suffered no permanent injuries. Jones and other eyewitnesses identified
appellant as the assailant. Several days after the incident, appellant turned himself in
to authorities in Louisville, Kentucky and was returned to this State for prosecution.


         The State’s proof demonstrated that shooting dice, or “craps” as it is
commonly called, was played regularly in and around the Broadway Avenue area of
Mt. Pleasant. The location is a “high crime area.” On the evening of August 3, 1994,
a game began at about 8:00 p.m. and continued well into the morning hours of
August 4, concluding around 3:00 a.m. The victims were in control of the game, at
least one of them acting as “houseman” of the game at all times. The “houseman” is
the person who supplies the dice and oversees the betting. Throughout the evening,
the game had varying numbers of participants, including as many as twelve people
at one point. Appellant arrived on Broadway around 11:00 p.m. and remained until
the game’s conclusion, but he only participated in the game for a short while. He left
the area once around 2:00 a.m. and was gone for about 20 to 30 minutes. Upon his
return, those present at the game noticed that appellant had changed clothes. Prior to
leaving, appellant had been dressed in light-colored clothing, primarily a white T-
shirt and white pants, When he returned, he was dressed in all black, including his
shoes, shorts, shirt and jacket.


        The testimony of Jesse Tate Jones, the surviving victim, revealed that
appellant was present as the game began to draw to a close. Anthony Webster,
appellant’s roommate and friend, had just lost a sum of money and declined to play
the game any longer. Jones urged Webster to continue playing. Webster responded
that he might play again tomorrow. Jones replied, “It may not be no tomorrow.”
Appellant then jumped up from where he was sitting, pulled out a gun and said,
“That’s what I say, won’t be no tomorrow.” He then began firing the weapon.
Appellant first shot Jones in the jaw, who fell facedown on the street. Appellant then
turned the gun on McGill and shot him once in the upper portion of his chest, just
below the neck. He immediately whirled back toward Jones and shot him again in the
back of the neck, as Jones lay facedown on the street. By that time, McGill had fled
on foot and was running down the street. Jones watched appellant chase after McGill,
firing the pistol. Two shots struck McGill, one in the lower back and one near the
upper arm. The men disappeared from Jones’ sight.


        By then, all the remaining participants had left the scene. Fortunately, Jones
was able to walk to his truck parked nearby and drive the short distance to the police
station. He reported the incident and was then taken to the hospital for treatment.
Jones testified that no argument or cross words were exchanged prior to the shooting.
He also stated that appellant’s weapon looked like a .25 caliber automatic pistol.



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        The testimony of Terrence Williams and Vincent Wilson, who were both
eyewitnesses to the shooting, substantiated the events detailed by Jones. Wilson
added that he lost approximately $160 to McGill that night. He also stated that he had
played the game for four or five hours that night and there had been no arguments or
fights. Anthony Webster, appellant’s roommate, testified in similar fashion.
However, he stated that he and appellant did not arrive on Broadway until after 1:00
a.m. when they both got off work. He further explained that appellant lost $30 in the
game and then borrowed money from him, which he also lost. It was then that
appellant left and went home. He returned wearing the black clothing. Webster
likewise denied that any argument occurred prior to the shooting.


         Appellant’s uncle by marriage, Vernon Johnson, Sr., also testified for the
State. He reported that appellant appeared on his doorstep in the early morning hours
of August 4, 1994. Appellant was very nervous and had a silver .25 caliber automatic
pistol in his hands. He proceeded to tell Johnson that he had shot McGill and Jones.
Appellant then asked Johnson to help him leave town. Johnson first declined, but was
afraid for his family’s safety and offered to take appellant wherever he needed to go.
Johnson then took appellant to Columbia and left him there. He said that en route,
they made one stop and appellant disposed of the gun at another person’s home.


        Law enforcement officials who investigated the crime scene discovered
McGill’s body on the sidewalk of Broadway Avenue in front of a funeral home,
approximately 230 to 240 feet from the place where the shooting began. The body
was found facedown on the pavement and the victim was dead when officials arrived.
A pair of green shorts, later identified as McGill’s, were found next to the body. The
pockets contained cigarettes, a lighter, and 32 cents in change. McGill’s flip flops
were also recovered near the scene of the initial shooting. Bullet casings were found
several feet from where the shooting began and one spent casing was also found on
the porch of the funeral home. These were identified as having been fired from a .25
caliber firearm and all were fired from the same weapon. The medical examiner
reported at trial that McGill died from loss of blood, primarily as a result of the first
gunshot wound which pierced his right lung.


       Although appellant did not deny shooting the victims, his trial testimony
described a somewhat different turn of events. He stated that on August 3, he worked
from 3:30 p.m. until 1:00 a.m. at Shipper’s Paper Products along with Anthony
Webster. After work, someone drove him and Webster to Broadway where he then
walked to his house nearby. He changed from his work clothes and put on black
shoes, white socks, black shorts, black jacket, black shirt and black toboggan.



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Appellant was carrying the weapon with him at this time. He then proceeded to the
crap game.


        After arriving at the game, he watched for a while and noticed that a lot of
cheating was occurring, accomplished by either Jones or McGill “switching the
dice.” He testified that everyone was losing money to them. He departed the game,
went home and procured his own dice. Appellant then returned to participate in the
game using his own dice. However, Jones and McGill refused to use his dice and he
walked up the street to the corner. After about five minutes, appellant returned to the
game to convince Jones and McGill to gamble with his dice. This time they agreed.
Appellant stated that he began to win some money. As a result, he claimed that
McGill got angry, started cursing him and made derogatory comments about
appellant’s father. While McGill was “yapping,” appellant noticed Jones was
reaching around behind his back, which made appellant think Jones had a gun. Jones
also commented to the effect that if McGill tried anything he would “watch his
back.”


        Appellant testified that McGill started coming towards him and he was
scared. He stated that he pulled out his pistol and just started shooting; he
remembers firing five shots. Appellant denied chasing McGill with the gun, saying
instead that all the shots were fired in one location. He then ran down the street and
ducked into an alleyway because he was afraid Jones was going to run over him with
his truck. Appellant insisted that he shot Jones first because he thought Jones was
reaching for a gun. He also explained that McGill was well-known as a drug dealer
who always carried a gun.


         On cross-examination, appellant stated that he took the pistol with him to
work that day and carried it in his right front pocket. He denied going home to get the
gun, alleging instead that he had it with him throughout the game. He also professed
that the gun belonged to Webster. Furthermore, he declared that Webster, Wilson and
Williams could not have heard the argument between him and McGill because they
were down the street when it happened. He also expressed his belief that Webster did
not testify truthfully about the evening’s events. Specifically, he repudiated
Webster’s testimony that he borrowed money from him.


        Under continued cross-examination, appellant was unable to explain why the
bullet casings were found in different areas. However, he claimed that he shot McGill
as he ran away because he was scared and he “just commenced to shooting.” In
addition, appellant insisted that Johnson was mistaken about him having the gun


                                         -4-
       when he asked for help because he threw the gun “to a certain person” as he ran from
       Jones’ truck. The State concluded its cross- examination by introducing appellant’s
       previous convictions: four convictions for aggravated robbery and two for attempted
       aggravated robbery.


               The manager of the temporary employment agency for whom appellant
       worked also testified. She introduced copies of appellant’s time records which
       reflected that on August 3, 1994, appellant worked from 3:30 p.m. until 1:00 a.m.
       Finally, appellant recalled Anthony Webster to the stand to provide evidence of the
       victim’s reputation for violence. Webster also opined that appellant could not have
       taken the gun to work with him that day, and that he must have brought it back to the
       game when he changed clothes.


               The jury returned verdicts finding appellant guilty of the first degree
       premeditated murder of Timothy McGill and the attempted first degree murder of
       Jesse Tate Jones. It also imposed a $50,000 fine on the attempted murder conviction.
       Immediately thereafter, a jury sentencing hearing was held for the murder conviction.
       The State sought life imprisonment of appellant without the possibility of parole. It
       introduced evidence of two aggravating circumstances: (1) that appellant was
       previously convicted of one or more felonies involving the use of violence and (2)
       that the murder was committed during an attempted robbery or attempted murder.
       See Tenn. Code Ann. § 39- 13-204(i)(2), (7) (Supp.1996). Appellant presented a
       substantial amount of evidence in mitigation through the testimony of teachers and
       relatives. Although the jury found that both aggravating factors were supported by
       the proof, it nevertheless sentenced appellant to life in prison. At a later sentencing
       hearing on the attempted murder conviction, the trial court sentenced appellant to
       sixty (60) years as a career offender and ordered that sentence be served
       consecutively to the life sentence and appellant’s previous unserved sentences.


State v. Steve Mason, No. 01C01-9603-CC-00103, 1997 WL 311900, at *1-*4 (Tenn. Crim. App.
at Nashville, June 6, 1997) (footnotes omitted). After reviewing the merits of the issues raised by
the petitioner in his direct appeal, we affirmed the judgment of the trial court. See id. at *1. The
petitioner now appeals the lower court’s denial of his petition requesting post-conviction relief,
arguing that the post-conviction court erred when it found that the petitioner received effective
assistance of counsel and that the petitioner’s challenge to the sufficiency of the evidence lacked
merit because the issue had been previously determined on direct appeal. After reviewing the record,
we find that the petitioner has failed to prove that he is entitled to relief; therefore, we affirm the
judgment of the post-conviction court.




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                              Post-Conviction Standard of Review

        The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issue raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the court’s findings unless the evidence in the record preponderates against them. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn.
Crim .App. 1997). This Court may not reweigh or re-evaluate the evidence, nor substitute its
inferences for those drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766
(Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001).

                                    Sufficiency of the Evidence

        The petitioner alleges that the post-conviction court erroneously found that the issue of the
sufficiency of the evidence introduced at his trial to support a finding of premeditation and
deliberation was an issue that had been previously adjudicated in this Court’s disposition of the
petitioner’s direct appeal. The petitioner relies on Stephen Michael Bell v. State, No. 01C01-9304-
CR-00130, 1994 WL 406168 (Tenn. Crim. App. at Nashville, Aug. 4, 1994) in support of his
argument that this Court may review the sufficiency of the evidence in a post-conviction appeal.

        When discussing the viability of a sufficiency challenge on post-conviction review in Bell,
we cited our earlier opinion of John Wayne Slate v. State in which petitioner Slate appealed the
sufficiency of the evidence to support his convictions. See John Wayne Slate v. State, No. 03C01-
9201-CR-00014, 1994 WL 149170, at *10-*11 (Tenn. Crim. App. at Knoxville, Apr. 27, 1994). In
Slate we determined that sufficiency of the evidence could be a valid subject for post-conviction
review because it implicated due process concerns. See id. However, if the issue has been waived
or previously determined, it is not within the scope of our post-conviction review. See id. at *10-
*11. Petitioner Slate challenged the sufficiency of the state’s evidence, and we reached the merits
of Slate’s sufficiency challenge because the issue had not been addressed in Slate’s direct appeal.
See id. at *5. Conversely, in Bell we found that petitioner Bell’s sufficiency challenge was not a
proper subject for post-conviction review because the issue had been addressed in Bell’s direct
appeal. See Stephen Michael Bell, 1994 WL 406168, at *4. Similarly, in the instant case, this Court
specifically addressed the sufficiency of the evidence to support a finding of premeditation and
deliberation in our review of the petitioner’s direct appeal.

       Premeditation and deliberation are determinations for the jury and may be inferred
       from the manner and circumstances of the killing. State v. Bordis, 905 S.W.2d 214,
       222 (Tenn. Crim. App.1995), perm. to appeal denied (Tenn. 1995) (citation omitted).
       The proof at trial supported these elements.




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       In evaluating the sufficiency of the evidence, we are compelled to consider the
       evidence in the light most favorable to the State. Jackson, 443 U.S. at 319. The
       State’s theory of the case, credited by the jury’s verdict, was that appellant formed
       the intent to kill when he lost his money to the victims, which he believed was a
       result of their cheating. This proof of motive is relevant to an inference of
       premeditation and deliberation. Bordis, 905 S.W.2d at 222 (quoting 2 W. LaFave
       and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986)). The State’s theory was
       that appellant decided to murder the victims, went to his home, changed clothes to
       reduce the likelihood of detection, procured a firearm to accomplish the task, and
       then returned to the game. Facts about what the appellant did before the killing
       which show he was engaged in planning activity also support an inference of
       premeditation and deliberation. Id. See also Brown, 836 S.W.2d at 541 (recognizing
       that procuring a weapon to commit the homicide is circumstantial evidence of
       premeditation and deliberation).

       Although no quantifiable time is necessary, it is apparent that appellant had ample
       time to reflect upon the intent to kill. At least twenty minutes passed after he
       obtained the gun and before he executed the plan. We also find that the killing was
       committed with a cool purpose. Although the appellant testified that he and McGill
       exchanged heated words, none of the eyewitnesses testified to such a disagreement.
       Their testimony reflected that appellant acted wholly without provocation. Moreover,
       appellant’s conduct did not correlate with his theory of self-defense, thus yielding
       credence to the State’s theory. While we cannot infer premeditation and deliberation
       from appellant’s concealment of the weapon after the shooting, concealment does
       contradict the appellant’s theory of self-defense by illustrating fear of detection.
       West, 844 S.W.2d at 151. Similarly, appellant’s efforts to leave town to avoid law
       enforcement officials is contrary to a theory of self-defense. The jury’s guilty verdict
       discredited appellant’s theory and demonstrates the ample evidence supporting a
       finding of premeditation and deliberation. State v. Grace, 493 S.W.2d 474, 476
       (Tenn. 1973).

        Steve Mason, 1997 WL 311900, at *7. Because we specifically addressed the issue now
raised in the petitioner’s post-conviction appeal, the sufficiency of the evidence to support a finding
that the petitioner acted with premeditation and deliberation, this issue has been previously
determined. Accordingly, we will not revisit this issue unless our finding was clearly erroneous.
See State v. Delk, 692 S.W.2d 431, 438 (Tenn. Crim. App. 1997); Darnell Gentry v. State, No.
02C01-9604-CC-00115, 1997 WL 195473, at *1 (Tenn. Crim. App. at Jackson, Apr. 23, 1997)
(citing Delk for same proposition).

         Our finding is not clearly erroneous and is supported by the record. The evidence, viewed
in the light most favorable to the state, establishes that the petitioner lost money while gambling with
the victims and then went home, changed into dark clothing, procured a weapon, and returned to the
game in order to shoot the victims who were the proprietors of the gambling enterprise. We find that


                                                  -7-
these facts, which have been incorporated into our thorough review of the issue in our disposition
of the petitioner’s direct appeal, amply support a finding that the petitioner acted with premeditation
and after deliberation. Thus, we will not disturb our finding, and this issue is not a cognizable claim
for post-conviction review.

                               Effectiveness of Assistance of Counsel

        The petitioner also challenges the effectiveness of the assistance provided by his trial counsel.
The petitioner alleges that his counsel’s pre-trial statements to the trial court reflect both an inability
to zealously represent him and a resulting inherent conflict of interest. When a petitioner seeks
post-conviction relief on the basis of ineffective assistance of counsel, the petitioner bears the burden
of showing that (a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996).
In order to demonstrate deficient performance, the petitioner must show 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). In order to demonstrate prejudice, the petitioner
must show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
694 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       In his argument of this issue, the petitioner cites a portion of the record in which his trial
counsel requested that she be allowed to withdraw from her representation of the petitioner, citing
his unwillingness to accept her legal advice as the basis for a dysfunctional working relationship.
The petitioner then argues that counsel’s comments reflect her inability to zealously represent him
and that her feelings towards him ultimately resulted in a conflict of interest, namely a conflict with
her duty to the petitioner, i.e. “to act in [his] best interests.”

        We first note that while the petitioner cites to a portion of the record reflecting his counsel’s
pre-trial request to withdraw her representation, the petitioner does not allege how his counsel
performed deficiently or how, but for her deficient performance, the result of his trial would have
been different. See Strickland, 466 U.S. at 694; Baxter, 523 S.W.2d at 936. Accordingly, the
defendant has failed to meet the required burden for a grant of post-conviction relief. See Henley,
960 S.W.2d at 580.



                                                   -8-
        Moreover, while the petitioner alleges that his counsel’s remarks indicate that she had a
conflict of interest with regard to her representation of him, he has failed to prove that his counsel
was “actively representing divergent interests.” Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980)
(holding that an accused must establish that his or her counsel was “actively representing divergent
interests,” that the conflict was actual, not hypothetical, and that the conflict of interest “adversely
affected his [or her] lawyer’s performance” in order to establish a constitutional deprivation). While
counsel announced that she would find a working relationship with the petitioner difficult based on
his refusal to accept her legal advice, nothing in the record demonstrates that counsel abandoned her
duty to zealously represent the petitioner during his trial. Without such a showing, the petitioner is
not entitled to an assumption that he was prejudiced by his counsel’s representation. See id.

        Thus, because the petitioner has failed to demonstrate prejudice and because this case does
not warrant an assumption of prejudice, we find that the petitioner’s allegation that he received
ineffective assistance of counsel lacks merit.

                                             Conclusion

      For the foregoing reasons, we find that none of the petitioner’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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