# FILED
March 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 RICKY J. SUMMERS, ) C.C.A. NO. 01C01-9708- CC-00323 ) Appe llant, ) ) ) FRANKLIN COUNTY VS. ) ) HON. J. CURTIS SMI TH, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF FRANKL IN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : RICKY SUMM ERS JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter MCRCF Wa rtburg, T N 378 87 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 J. MI CHAEL TAY LOR Distri ct Attorney General STEVEN M. B LOUNT Assistant Distri ct Attorney General 324 Dinah Shore Bo ulevard Win cheste r, TN 37 398
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Ricky J. Sum mers, app eals the trial court ’s order dismissinghis petition for post-convicti on relief. On August 23, 19 85, the Circu it Court for

Fra nkl in C ount

y f oundDef enda nt g uilty of first d egree pr

eme ditate d murder following a jury tr ial. This C ourt affirm ed his co nviction, State v. Ricky Summ ers , No. 85-328-II I, 1987 WL 16398 (Tenn . Crim. A pp., Nashvill e, Sept. 4, 1987), and the Tennessee Sup re me C ourt de nied p ermis sion to appe al. Defendant filed a timely petition for post-con viction re lie f on August 28, 1990, which was not heard by t he trialcourt unti l March 26, 1997. The trialcourt deni ed relief, a dec ision that D efenda nt now a ppeals
.
By adden dum to his origina l petiti on, Defendant argues fifteen assi gnme nts of error. These points may be classif ied as eit her errors by the trial court

or errors by tri al counsel. We find that the a lleged errors by the tri al court—the first nine—h ave been wa ive d in t his Co urt becaus e of Defendant’ s fail ure to bri ng them on di rect

appeal . Tenn . Co de An n. § 40-30-111, -112 (repeal ed and replace d by § 40 -30-206 (g)).

The last five assig nmen ts of error ch arge D efenda nt’s trial attorne ys with ineffective assistance of counsel. Speci fically, Defendant contends that

his tri al counsel performed below t he standard of competent criminal defens e attorneys by: (1) failing to sub poen a witne sses and e nsure their pre senc e in co urt for tria l, (2) faili ng to raisethe defense of intoxi cation , (3) fai ling to raise the i ssue of mental defect or to seek a comp etency h earing a s to Defe ndant’s c apability to-3-

form necessary element s of the of fense, (4)faili ng to object to unconsti tutional jury instruct ions, and ( 5) fail ing to move for judgment of

acquittal at

the close of the State ’s proof.

To be entitled to post-convi ction rel ief on thebasis of ineffective assistance of counsel, Defend ant must show that his counsel’ s representation was “deficient” and tha t “the deficien t perform ance p rejudiced the defen se.” Strickl and v. Washington , 466 U.S. 66 8, 6 87 (1984). Under the fir st prong,
coun sel’s performance is not defic ient when “t he ad vice giv en, or the se rvices rendered by the attorney, are within t he range of competence demanded of attorneys in criminal cases .” Baxter v. Rose , 523 S.W .2d 930, 936 (Tenn. 197 5). The second prong requir es Defendant to show a r easonable probabi lity that the result of the trial woul d have been dif ferent but for the def icient

representat ion. Strickl and , 466 U.S. a t 694. “A reaso nable proba bility is a probabil ity suf ficien t to underm ine confidence in the outcom e.” Id.

With respect to

rational izat ion of a ttorney condu ct in an ineffective assistance of

counsel case, the Strickl and Court ins tructed, Judicialscrutiny

of counsel’ s performance must be hi g hly defere ntial. It is a ll too tempting f or a defendant to second-guess coun sel’s assistance af ter convi ction or ad v e rse sen tence. . . . A fair assess ment of attorney perform ance requ ires that every effort be made to eliminate the di storting effe cts of hind sight, to reconstructthe circ umstances of counsel ’s chall enged conduct, and to evaluate the conduct f rom counsel’s per spective at

the time. Id. at 688.-4- I. FAI LING TO SUBPOENA WITNESSES Defendant first

alleges t hat he was “forced to trial with out ha ving his witnessespresen t” in violation of h is right to due process. Accor ding to th e record of the e videntia ry hea ring, D efend ant info rmed his trial c o unsel prio r to trialabout

seve ral wit nesse s who h e cla ims we re eyewit nesse s to t he cr ime. He testif ied that he requested the presence of those wi tnesses at t rial and t hat the witnesseswere present on onedate. H owev er, the tr ial app arently did no t begin
on that day and was instead res cheduled. Although su bpoena s were re-issued, they app arently we re never s erved, an d trial com menc ed as re -sched uled.

If a fforded a post-convict ion evident iary hear ing by the t rial cou rt, a petiti onermust do m ore than m ere ly pres ent evidence t ending to show in c ompetent representat ion and prej udice; t he petiti oner must prove factual allegati ons by a prep ondera nce of the evidenc e. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1974) (s uperse ded by § 40-30-2 10(f) (requir ing clear and convincingevidence)) . When an evidentiar y hearing i s held, f indingso f fact made by that court are conclusive and binding on this Court unless the evi dence preponder ates against th em. Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (cit ing Butler v. Sta te , 789 S.W .2d 898, 899 (Tenn. 199 0)).

As noted by this Cour

t in Black v. State , 794 S.W.2d 752 (Tenn. Cri m. App. 1990), [w]hen a petiti onercont ends th at trial coun sel failed to discover, interv iew, or pr esent witnesses in support of the defense, these witnesses shoul d be presented by the pe titi oner at the eviden tia ry hearing. As a general rul e, this is the onl y way the petiti onercan e stabli sh that . . . a known wi tness was not interv iewed, . . . or

. . . t he failu re to have aknown witness pr esent or call t he witness to the stand resulted i n the denialof criti cal-5- evide nce which inured to the prejud ice of the petitioner. It is e lemen tary that neither a tri al court no r an appell ate court can specu late or gues s on the q uestion o f . . . what a witnes s’s testimony

might have been if introduce d by defe nse co unsel. The sameis true re gardin g the fa ilure to c all a known witness. In short, if a petiti oner is abl e to establ ish that defense counsel was defi cient in th e investigati on of the facts or calling a known witness , th e petiti oneris not entitled to re lief fro m his convict ion on thi s ground unless he can produce a material witnesswho (a) could h ave been found by reasonable i nves tigati on and (b) would hav e testified favorabl y in support

of the defe nse if cal led. Id. at 757-58 (emphasi s added) (footnote omitted). Defendant fai led to pres ent at his evidenti ary heari ng the witn esse s he co ntend s sho uld ha ve testifie d at his trial, a nd he testifi ed that he cannot now recall the names of these wit nesse s . Unde r these circ umsta nces, this Court is c onstraine d to den y relief.

II . FAI LING TORAISE DEFENSE OF INTOX ICATI ON Defenda nt provides no ar gument on this i ssue in his brief. However , a portion of the pos t-conviction evidentiary hearing was de dicated to the subje ct, and the trial court

found as follows: It isappa ren t f rom t he t ri al t ran scr ipt and thetesti mo ny of co unsel at the hearing, a deliberate strategic decisi on was made at trialnot t o stre ss intoxi cation of the defendant . The defense was t hat the petiti onerdid not commit t he crime , not tha t he co uld not remember the events because of into xi cat ion or t hat

he c oul d not

form a culpa ble mental state because of intoxicati on. Given t he strategy of the d efense, ampli fying t he issue of i ntoxicat ion li kely coul d h av e been counter- pro ductive by damaging the credi bilit y of the defend ant. The tactics adopted at t rial shou ld notnow be secondguess ed by hin dsight. We agree . The c ourts o f this sta te have long “re cogn ized th at it is not ou r function to ‘second- guess’ tact ical and strategical choi ces pertaining to defense matters or measure a defense at torney’ s representat ion b y ‘20-20 hindsigh t’ when deciding the effectiveness o f trial counsel.” Coop er v. State , 849 S.W.2d 744, 746 (Tenn. 1993) (quoti ng Hellard v. S tate , 629 S.W.2d 4, 9 (Tenn. 19 82)).-6-

The record of the post-convi ction heari ng does not preponder ate against

the tri al court’s find ings.

III . FAI LURE TO RAIS E ISSUE OF MENTAL DEFECT OR TO SEEK CO MPETENCY HEARI NG Defendant again fai led to suppor t this contention in his brief; nevertheless
we wil l address t he argument as it is characterized in the transc ript of th e evidenti ary heari ng. On this i ssue, the t rial cour t found, Both [of Defendant ’s tri al counsel]testified at thehearing that petiti onercooperated with them full y in trial prepar ation and was comp etent. The trial transcript doe s not reflect any i n abilit y on petition er’s part to under stand questi ons or communicate. Apparen tly, petiti onerbases his need for a mental evalua tion on his claim he was addicted to drugs and alcohol for many months prior to the incident. Petitioner w as in jail from his arrest in M arc h unt il the trialin August. Even though no c redible testimony was presented at the hearing petiti onerwas abus ing substanc es before incarcerat ion to the extent he was incompetent during his j ail stay or at trial, he certain ly had am ple time to “dry out” during hi s incarcer ation. Defendant did not pre sent an y testimo ny, expert o r otherwise, at the postconvicti on hearing tending to prove by a preponderance of

the evidence that he was not mentally competent to stand trial . The typi cal statement by Defendant in suppo rt of this claim is as fo ll ows: “It ’s hard for me to talk and to keep things
on my m ind. If I’m telling yo u a jok e, I’l l getright in the m iddle of it and forget. Tha t’s the reason t here’s no way t hat I coul d commit a fir st degree murder. ” The post -convict ion transcript s upports the finding of the pos t-conviction court; therefore , this issue la cks m erit.-7- IV. FAILURE TO OBJECT TO JURY INSTRUCTI ONS Defendant argues that his trial cou nsel were ineffective for fail ing to object to those jury

instruct ions that , in thefirst part, he con tended were err or by the trial court. W e find n o ineffe ctive as sistan ce by D efend ant’s tria l coun sel.

A. Definiti

on of Malice Defendant argues that coun sel were ineffective for failing to object when the trial court

omitted a definit ion of “malice” f rom the jury instructions for fi rst degree murder. On page 1094 of t he j ur y charge, whi ch Defendant has appended to his resp onse b rief, we find, “F or you to find the defendant gui lty of murder in the first d egree as cha rged in the first coun t of the indictm ent, the S tate must have proven beyond a reasonable doubt . . . t hat the kill ing was malicious, thatis, t hat the defend ant was of the state ofmind to do the alleged wrongful act wit hout legal justificatio n or excu se.” In add ition, Defen dant co ncede s that t h e court defined “ma lice” in its instruction for second degree m urder. We therefore find no de ficiency or p rejudice.

B. Definitio n of Delib erate Defendant next arguesthat co unse l shou ld have o bjecte d to the allege dly incom plete definit ion of “del iberate” given by t he trialcou rt. According to Defen dant, the tri al court c harged only t hat deli berate m ean s “with a cool purpos e.” Defend ant doe s not, how ever, pres ent an a lternate de finition, state
reasons why the charged i nstructed was defici ent, or

provid e any la w hold ing this i nstruct ion erroneous. Thi s Court has prev iously hel d this def initi on to be sufficient. State v. Greg Baine , No. 03C01-9202-CR-00043, 1992 WL 151403, at *2 (Tenn. Cri m. App., Knoxvi lle, J uly 2, 1992)(“No specialrequest was made-8-

attempting t

o have the trial cou rtdef inetheterm 

### < coolness of purpo se,’ a nd we are unable to find any error with the trial court’s failure to do so.”)
C. Presumption of Malice In this argum ent, Defendantasserts t hat his counselshould have obj ected to two jury instruc tions th at alleg edly shi fted the bur den of proof by

creating a presum ption of m alice. The first challeng ed instruc tion read s, [I]f a deadly weapon is handled in a manner so as to make the ki lling a natural or

probable result ofsuch conduct, t hen there is raised an infer ence of malice suf ficien t to support

a convict ion for murder i n the seco nd de gree u nless it is rebutted by other facts and circumstances
. A deadly weapon i s any weapon or instrument which from the manner in which i t is used or attempted t o be used is li kel y t o produce death o r gr eat bodi ly har m. Because the jury

convicted Defendant of f irst degr ee murder, rat her than second degree murder, we fi nd no prejudice even if f ailure to object const ituted deficient perform ance o f counse l.

The next instructi on allegedly read as fol lows, [T]he use of a dead ly weapo n by a pa rty who as saults an other with intent t o commit murder in t he first degree raises

a presumption of malice, unless rebutted by other f acts and c ir cumstances to the contrary. We find thi s instruc

tion to be consti tutionalunder State v. Bolin , 678 S.W.2d 40 (Tenn. 1984). In Bolin , the s upreme court held that this i nstructi on did not
unco nstitutio nall y relieve th e State of its bu rden to prove beyon d a rea sona ble doubt each el e ment o f the offens e. Id. at 44. That cour t stated, “The words of the presumption, the immediat e conte xt in whic h they a ppea r, and th e over all context of the j ury inst ructions, remove this cas e from th e due process tr ap adjudicated in Sandstrom [v. Montana , 442 U.S. 510(1979 )], in our opinion.” Id.-9-

at 42. From a survey

of the j ury inst ructions provided by Defendantin thi s case, we similarly f ind that the inst ruction as given di d not offend due process.
Furthermore, we find that eve n if the instructions we re errone ous, th ey did
n ot have “‘subst

antial a nd injuri ous effect or infl uence in determining the j ury’ s verdict .’” Brecht v. Abrahamson , 507 U.S. 619, 637 ( 199 3) (quoti ng Kotteakos
v. United States , 328 U.S. 750, 776 (1946)). Therefore, Defendant’s t rial coun sel did not provi de ineffec tive assi stance by fai ling to object to the instruction s.

D. Reasonable Doubt Defe ndan t’s final jury i nstructi on argument complains t hat the “moral certainty” charg e given by the tr ial cou rt perm it ted the jury to find guilt on a quantum of evidence less than t he constit utionally required beyon d a rea sona ble doubt standa rd. He contends that he suffered ineffect ive assi stance of counsel by his attorn eys’ failure to object to th is instruction
.

The courts of this sta te have cons istently h eld this part icular jury i nstructi on to be constit utionally per mi ssible; hence, the failure to object is not ineffective assistance of couns el. See Carter v. State , 958 S.W.2d 620 (T enn. 19 97); State
v. Nicho ls , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 (Tenn . Crim. A pp. 199 5); Pettyjo hn v. Sta te , 885 S.W.2d 364, 365 (Tenn. Cri m. App. 19 94); State v. Hallock , 875 S.W .2 d 285, 294 (Tenn. Cri m. App. 1993); State v. Rodney Corley , No. 01C01-9608-CR-00336, 1997 WL 535315, at *2 (Tenn. Crim. App. , Nashvil le, Sept. 2, 1997), perm. to appeal denied (Tenn. 1998); Kenn eth Cu lp v. State , No. 02C01-9608-CC-00268, 1997 WL 414397, at *2-*3 (Tenn. Crim. A pp., Jack son, July 2 4, 1997 ); Terry Sha nnon Kim ery v. State ,-10-

No. 03C0 1-9512 -CC-0 0412, 1 997 W L 3114 3, at *4-*5 (T enn. C ri m. App ., Knoxville, Ja n. 28, 199 7), perm. to appeal denied (Tenn . 1997).

V. JUDGMENT OF ACQUITTAL Finally, De fenda nt argue s that his co unsel w ere ineffec tive for failing to
move for a judgm ent of acq uittal at the clo se of the S tate’s proo f. The po stconvicti on court fo und th at “[i]n ligh t of the e videnc e at trial, petiti oner suffer ed no prejudice”

by cou nsel’s action . In add ition, the court s tated, “T here w as am ple evidence to support a finding petitioner kill ed the victim in a mali cious, premed itated, and delibera te fashion.”

In order to conc lude that Def e ndant suffer ed ineffec

tive assi stance of counsel due to a failure by co unsel to mo ve for judgme nt of acquittal, this Court must find that

the evidence was not suff icient to sup port the jury’s ve rdict. T his
we decline to do, because theissue has been previous ly determ ined. See State v. Ricky Sum mers , No. 85-328-I II, 1987WL 16 398, at *4-*7 (Tenn . Crim. A pp., Nash ville, Sept. 4, 1 987). T his issue lacks m erit.

Because we conclude that none of Defendant’ s issues requi re reversalof his conviction, we affirm the judgment of the tri al court di smissing his peti tion for post-co nviction relief.

____________________________________ DAVID H. WELLES , JUD GE-11-

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, J UDGE