# FILED
October 3, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1997 SESSION

OLEN EDDIE HUTCHISON, ) ) Appellant, ) No. 03C01-9601-CC-00033 ) ) Campbell County v. ) ) Honorable J. Curwood Witt, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Christopher Van Riper Charles W. Burson 300 Market Street, Suite 200 Attorney General of Tennessee Clinton, TN 37716-0506 and John P. Cauley Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 William Paul Phillips District Attorney General P.O. Box 10 Huntsville, TN 37756-00010 and Michael O. Ripley Assistant District A

ttorney General P.O. Box 323 Jacksboro, TN 37757-0323

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Olen Eddie Hutc hison, appeals as of right from t he Campbell County Criminal Court’s denial of post-conviction relief. He was convicted in 1991 for the first degree murder of Hugh Huddleston and receiv ed the death penalty. He was also convic

ted of conspiracy to take a l ife and solicitation to commit fir st degree murder for which he recei ved a total sentence of twent y-two years. The convictions and sentences were affirmed on direc t appeal. State v. Hutchison , 898 S.W.2d 161 (Tenn. 1994), cert

. denied , U.S. , 116 S. Ct. 137 (1995). We affirm the denial of postconvic tion re lief.
The petitioner filed this post-conviction petition on M ay 4, 1995. An evidentiary hearing

was held on September 27, 1995, and the trial court made its determi nations . The pet itioner contend s that th e trial

court e rred in

denyin g him re lief, generally claiming as follows:

(1) The petitioner received the ineffective assi stance of counsel as guaranteed by the Six th an d F ourteenth Amendments to the United States Cons titution. (2) The petitioner was denied t he due process of law as guaranteed by the Fifth and Fourteenth Amendment s to the Unite d States Constitution by prosecu torial miscondu ct through the introduction of inadmissable ev idence an d a rguments thereon concerning the petiti oner ’s participation in il legal activities for whi ch he had not been charged. (3) The trial court er red in failing to enter a w ritten order or memorandum on all grounds presented in the petition and in fa iling to state findings of fact and conclusi ons of law with regard to each ground as required by T.C.A. § 40-30-118(b). (4) The trial court erred in refusing to grant thepetitioner funds to retain expert services. (5) The trial court erred in fai ling to grant the petitioner a continuance. (6) The trial court err

ed in failing to

order the state to

prepare and file transcripts of the arguments of counsel during the guilt and sentencing phases of the petitioner’s trial.3 (7) The trial court erre d by failin g to find t hat the c umulati ve effect of the errors at trial an d on appeal violated the petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Cons titution. In response, the state contends t hat the petitioner receiv ed the effective assistance of counsel, that the issue concer ning the admissibility

of evidence of illegal act ivity was previously determin ed, that the trial court’s failure to enter a written memorandum of law does not warrant a rev

ersal of the trial court’ s dismissal of the petition, t hat the petitioner did not demonstrate a need for expert servic es which would w

arrant courtordered funding, that the trial court did not abuse its discretion in den ying a third continuance, that the state had in fact filed the record and transcr ipt of the direct appeal of the case, and that the errors di d not cumulatively pr event the petitioner from receiving a fair and impartial trial.

The supreme court’s direct appeal opinion provides the fo llowing synopsis of the evidence presented at the petitioner’s trial:

The record establishes that t he victim in this case, Hugh Huddleston, died by drowning while on a fishing trip at Norris Lake in Campbell County. The State’s evi dence showed that defendant Hutchison and several other men had conspired to kill Huddleston in order to collect almo st $8 00,000 in lif e insurance proceeds and other benefits. Huddleston, a bachelor in his mid-forties, had what w as described by witnesses as a fat her -son relationship wi th Hutchison’s co-defendant, Chip Gaylor. In 1984, Huddleston made Gaylor, then 19, t he sole beneficiary of his w ill, under which 95% of the estate would not pass to Gaylor

immediately but would be held in trust for distribution to him at the ag es of 25 and 30. Huddleston also made Gay lor the beneficiary of an insurance policy and other of his empl oyment benef its, all of which amounted to over $289, 000 in value. The chief prosecution witness was Ric ha rd Miller, one of the conspirators and an acquaintance of the defendant and of Gaylor and Huddleston. He told how , during the year before Huddleston’s death, he, the defendant, and Gaylor, then 26, were sitting a r ound talking when the defendant ment ioned “how much money he could make if he took insurance o ut on somebody

and then had them killed.” Gaylor remarked that he would pay the defendant $100,000 to kill someone but that his4 “i nsuranc e policy” was not good until he was 30. The defendant responded that that was too long to wait. About a week later, the

defendant asked Gaylor to h ave Huddleston sign some “insurance paper s” under the pretense of a tax w rite-o

ff . Ac cording to Miller, Huddleston would do almost anything Gaylor asked. Huddles ton signed thepapers, and t hat evening Miller and Gaylor returned them to t h e defendant, who indicated that he would get back in touch with them. Shortly aft erwar d, the defendant had Gaylor get Huddleston’s signature on a promissor y note rep rese nting a fictitious debt of $25,000 to defendan t. Th e insurance policy was to be security for th e alleged debt. At Gaylor’s prompt ing, Huddleston signed the note in Mille r’s pr esence, and Gaylor witnessed his signature. Two o ther men, M.C. Curnutt (an insurance agent and an alleged co-conspira tor) a nd Charles Boruff, also signed as witnesses after the note’ s execution. The defendant also infor med Gayl or that a nurse would be coming to perform a physical ex amination on Huddleston. The examination was performed, and an insur ance policy was issued on Huddleston’s life with $250,000 coverage -- $500,000 in the event of accidental deat h. The defendant was the sole beneficiary of

this policy and furnishe d the money with which the premiums wer e paid. Once the “pape r wo rk” ha d been done, the defendant offered Gaylor $10,000 to kill Huddleston. Gaylor decl ine d because he had an obvious motive. When Miller also refused to kill Huddleston, the defendant s aid he would g et s omeone else. The defendant then spoke with Phil Varn adore, one of his “men,” who

agreed to “get his boys to do it” for $25,000 to $50 ,000. After initially dis cussing killing Huddleston on a hunting trip, the defenda nt and Varnado re decide d to drown him during a fishing tri p, since H u ddleston cou ld not swi m. Wilbur Hatmaker was des ignated to be the killer. Hatmaker and Miller scouted out loc at ions for the drowning on Norris Lake, and eventually a su i table spot was located. H atmaker instructed Miller to h a ve Huddleston there by 8:00 p.m. the next evening. Gay l or arranged a fishing tri p with Huddleston for that day, but o nly Mil ler showed up. The two men went to Norris Lake and ren ted a pontoon boat. Sometime aft er dark, Hatmaker

and Jo hn Rollyson appeared in a separate boat. A cting on the pre tense th ey were frie nds of Mil ler, the t wo joined Huddleston and Miller i n fishing from the pontoon boat. According to plan, Miller left to g et bait in another boat he had broughton the trip. Rollys on testified that after Miller left, Hatmaker

pushed the victim into the water and wiped th e boat with a rag. Hatmaker

had promised Rollyson $12 ,500 for the killing, to be paid in 90 days. (The insurance polic y provid ed forpayment in 90 days). When Miller r e turned to the boat, Huddleston was gone, as were Hatmaker and Rollyson. Miller reported Huddleston’s disappearance and his body was discovered later t hat day in 15 fee

t of wa ter. There were no obvious signs of violence on the body, but thepathologist later5 noted a deep bruise in the victim’s scalp behind his right ear, which was apparently cause d by a blunt object -- p

ossibly from striking his head on the boat, or being struck by a boat

paddle or a fist. The defendant and Gaylor f iled claims to collect the insurance. When the company refused to pay because of the district attorney’s in v estigation into the cir cumstances of the victim’s death, Gaylor sued the insurance company in federal court, claiming that Hutchiso n was responsible for Huddleston’s death and should not be awarded the insurance proceeds. Hutchison then filed a cros s- claim in the federal suit. While the defendant was incarcerate d o n these charge s, he wrote several letters to Miller and Varnadore communicating with them about the case and tac itly urging them to keep quiet. These letters w ere produced at trial. The defendant’s cell mate, Keith Wilson, who had forwarded some of defendant’s letters to Mill er, testified that the defendant had told him that the others involved “kn ew be tter than to say anything” and that “[i]f the y did , they wou ld end up the s ame way as the other guy.” The de fenda nt had remarked that he had the money to get something done from jail and “all he had to do [was] make a phone call.” He also s aid that “as long as everybody kept their mouth shut, then they w ould be found not-guilty, they couldn’t prove nothing. ” The defendant ma intained that the $25,000 loan and subsequent

use of the insurance policy as collateral had been a legitimate business deal between Huddleston and the defendant, who had loaned mone y to the victim in t he past. The defendant, who testified, maintained h is innocence of any involvement in Huddles ton’s death. Hutchison , 898 S.W.2d at 164-66 (footnote omitted).

POST-CONVICTION EVIDENTIARY HEARING At the post-conviction e videntiary hearing , the petitioner testified that he met with his attorneys only six times before trial. He stated that his counsel failed to call a witness who w

as present when the loan w as made by the petitioner to t he victim and a witness who w

as present when the promiss ory note was sig ned by a state witness

. He claimed these witness es would have discount ed the state’s claim that the pet itioner did not lend the victim money and that the victim sig ned the promissory note at t he petitioner’s home. He also stated that counsel had failed to ca ll three character witnesses provided by the petitioner during the penalty phase of the trial . However, the6

petitioner admitted that these witnesses were merely business associates and he did not know wha t they would say.

The petitioner next cited c ounsel’s failure to inves tigate his physical condition and health even thoug h the petitioner had sustained nu merous injuries due to automobile and work accidents. He testified that he had be en given the drug Talwin while he was incar

cerated and stated that the drug had prevented him from interact ing effectively with his

attorneys. He then testi fied that counsel had not included i ssues concerning prosecutori al misconduct and a constructi ve amendment to the indictment which he had requested be included in his appeal. He also complained that his counse l had referred to his business of l oaning money as “loan shar king” numerous times during the trial.

On cross-examination, t he petitioner admitted that his testimony concerning the number of times he met with counsel was purely from mem ory. He stated that the strategy of his lawyers had been that no murder had been committed and that the petitioner had not par ticipated in any conspir acy. Though he complained about the effects of the drug giv en him while he was i ncarcerated, the petitioner admitte d that th roughout all the ac cidents h e had pre viously des cribed, h e had alwa ys been able to conduct his affairs in a normal manner. Counsel for the s tate then asked the petitioner a series of questions concerning a series of dates he ha d met with his counsel, and the petitioner stated that he could no t remember specific dates.

On redirect examination, the petitioner described a s peech disorder of stuttering that he had ex perienced in his childhood, but he stated that he had never undergone any psychol ogical or neurologi cal testing for the disor der. He again testified that counsel had failed to call an important witness w ho would have testified c oncerning7

the loan made to the victim. The petitioner claimed that te stimony concerning his involvement with drug trafficking and other illegal activit ies was untrue.

One of the petitioner’s trial attorneys was call ed as a witness. He st ated that he had been practicing law since 1979, but that the petitioner’s case was the f irst capital case in whic

h he had been involved that went to trial. He tes tified that he had met with the petitioner on numerous occasions before trial . He said that he had been a candidate for public defender at the ti me and that he “did what I thoug ht I was supposed to do,” but in retros pect “I don’t think I knew what I was doing. ” He stated that he should have request ed the services of a sentenci ng consultant and a psychiatrist before tri al, but he acknowledged t hat he had not been made aware of the petitioner’s speech disor der or history of wor

k and automobile accidents. He testified that he became aware sometime dur ing the trial that the peti tioner had been taking medication.
When questioned concerning trial prep aration, counsel stated that he had studied manuals on capital case defense and jury selection a nd that he had been involved in a very limited capacity in the representation of a capital defendant bef ore this case but that the case had been settled. He testified that an investigator had been hired in the petitioner’s case and that someone other than himse lf had spoken to the person whom the petitioner claimed was present at the loan transaction. He rec alled that some people the petitioner r equested be called as wi tnesses were not called

.
When questioned concerning whether he would object to testimony concerning purported il legal activities in which the petitioner

was involved, c

ounsel stated, “Whatever the record says. I can only tell y ou that it would be -- i

t would be as natural for me to object to that as it would be to appear for c ourt.” He admitted that he8

believed evidence of other bad acts of the petitioner had been “very damning to his case.”

On cros

s-exam ination , counse l testified that he did no

t know i f a sentencing consultant or a psychiatrist would have changed the verdict in the case. He also testified that the petition er had seemed to understand the tri al proceedings and that counsel had never had an i ndication that the petitioner suffered from any type of physical, mental, or emoti onal disability. Co unsel stated that he and co-couns el had developed the strategy that the petitioner had not commit ted the crime and had not been involved in a conspiracy of any kind. He testified that the issues that they had felt had the best likelihood of succeed ing on appeal had been chosen and that the appellate brief had been in exc ess of one hundred pages.
The trial court then considered the petitioner’s motion con cerning expert services, noting th at the motion had been received only that day, and the moti on was overruled. The court als o overruled the petitioner ’s motion for a continuance. Presenting no evidence, the state then moved to dismiss the petitioner’s petition.

The trial court concluded that evidence concerning un charged illegal activity of the petiti oner had been objected to and ruled upon numerous times both pretrial and during tr

ial. It recalled hav

ing found that part of the conspirac y charged had involved the illeg al sale of drugs and also st ated that this issue had also been determined by the Tennessee Supreme C ourt. In concluding that the petitioner had received the effective assi stance of counsel, the trial c ourt stated that counsel “had never missed a be at” and that cou nsel was in “the high ra nge” of compet ence. Though it did not make specific determi nations regarding the pe titioner’s other issues , the trial court stated that all other claims had been previousl y decided and properly appealed.1 For post-conviction cases filed after May 10, 1995, the standard of pro of required of petitioners is clear an d convin cing evide nce. See T.C.A. § 40-30-210(f). 9 In reviewing the trial court’s determinations, we are guided by certain rules. Th e burden was on the p etitione r at the he aring to pr ove his cas e by a preponderance of the evidence. 1 On appea l, the tria l court’s f indings ar e conclus ive unless the evidence of recor d preponderates against its determinations. Turner v. State , 698 S.W.2d 90, 91 (Tenn. 1985). The burden now res ts upon the petitioner to illustrate how the r

ecord preponderates against the judgment. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

I. EFFECTIVE A

SSISTANCE OF C

OUNSEL The petitioner contends that his trial attorneys w ere ineffective for failing to object to or limit the introduction of inadmissible evidence conce rning the petitioner’s participation in illegal activities for w hich he had not been charged, for fail ing to object to
erroneous reas onable doubt instructions, f or lacking the exper ience and knowle dge necessary for representati on in death penalty cases, for failing to consult wi th the petitioner at crucial s

tages of the proceedings, for fail ing to request exper t and investigative services, and for failing to question prospective jurors adequately regarding their abi lity to consider a l ife sentence in light of the appli cable aggravating and miti gating circ umstanc es. W e hold th at the pe titioner received t he effe ctive assistance of counsel.

Under the Sixth Amendment, w hen a claim of ineffective assist ance of counsel is made, the burden is upon the petitioner to sho w (1) that counsel’s performance was deficient and (2) that the deficiency render ed a reasonable probability that the result of the trial w as unreliable or the procee dings fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), the Tennessee Supreme Cour t decided that attorneys should be hel d to the general standard of w hether services render

ed10

were within the r

ange of competence demanded of attorneys i n criminal cases. Further, the court stated th at the range of competence was t o be measured by the duties and criteria set for th in Beasley v. United St ates , 491 F.2d 687 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197 (D.C. Cir . 1973), cert

. denied , 444 U.S. 944 (1979). Also, in rev iewing counsel’s c

onduct, a “fair assessment of attorn ey performance requires that ev ery effort be made to eliminate the di storting effects of hindsight, to reconstruc t the circumstances of counsel’ s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (Counsel’s conduct will not be measured by “20-20 hindsight.”).

A. The petitioner asserts that c ounsel failed to file, or to obtai n rulings on, pretrial motions to limit the state’s presentation of ev idence concerning uncharg ed illegal conduct of the petit ioner and failed to object to it s admission at trial. H e cites instances where the state was allowed to make r eference to or elicit testi mony concerning the uncharged illegal activit y of the petitioner. How ever, we conclude that counsel did, in fact, object to evidence concerning pr ior bad acts of the petitioner. In most, if not all of the instances, the petitioner’s counsel a ttempted to object to harmful testimony, even thoug h the trial court had concl uded that all evidence prov ed to be in furtherance of a conspiracy , such as illegal dru g activity, w as admissible.
Generally, the petitioner ’s complaints about the state’ s use of illegal conduct evidence relates to the following trial events. In its opening statement, the state referred to the petitioner ’s relationship to the code fendant as “a man with whom he was associated in the s elling of drugs.” Stat

e witness Keith Mil ler referred to the petitioner’s m oney as “drug mone y.” State witness Rick Mil ler testified co ncerning a personal computer owned by the victim which h ad been sold by the codefendant to the11

petitioner, and Miller detailed his involv ement with the petitioner i n illegal drug acti vity. State witness Bobby Jo e Higgs identified check stubs which had been confis cated from the defendant’s home, and later testimony described the checks as pay ments for drugs. State witness Philli p Varnadore also testified conc erning illegal dr

ug activity of the petitioner. In closing

argument, the state referred t o the petitioner as a “drug lord” and “ringleader” and theorized that figures from a notebook conf iscated from the petitioner’s home were actually cal culations of returns the petit ioner could “make on his dr ug investments.”

First, we note that defense c ounsel’s actions to block or limit use of prior bad act evidence began pret rial. At a February 1990 motion hearing, counsel for codefendant Gaylor moved that any evidence that would be brought bef ore the jury under Rules 608 or 609, Tenn. R. Evid., be provided to the defendant ten days prior to trial. The trial court set a date requiring the state’s response, and w hen the state failed to file the information, counsel for the co defendant and counsel for the de fendant jointly filed a motion to suppress any evidence that would be brought in under these rul es. The court ruled that if the state g ave adequate notice tw o weeks before the trial dat e of January 7, 1991, the evid ence would be admissible.

In March 1990, counsel for the pet itioner filed a pretrial motion requesting that the state provide the pet itioner notice of its intent to introduce any eviden ce of prior crimes, wrongs, or acts pursuant to Rule 404(b), Tenn. R. Evid., that were allegedly committed by the petitioner. The state responded that it intended to introduce evidence that the defendant and his codefendants wer e involved in a conspi racy involvi ng the illegal sale of control led substances, as well as insurance fraud. At that ti me, the state intended to use the evidence as proof of a common scheme or plan, proof of motiv e, proof of intent, and rebuttal of accident in this case.2 The record refl ects that evidenti ary object ions by t he codefendant were a lso att ributabl e to the petitioner. 12

In September 1990, the petitioner filed a m otion requesting that the court order the state to provide the defendant with written notice of any impeach ing conduct of the petitioner prior to tr ial pursuant to Rule 608(b) (3), Tenn. R. Evid. In O ctober 1990, the petitioner request ed a ruling before trial that, among other things, pr ohibited the state “from referring to t he accused’s prior or oth er criminal behavior or implying that the same exists unless and until it is properly introduced into evidence.” Each of these pretrial motions was apparently intended to limi t introduction of uncharged i llegal activities.
As for the instances cited by the petitioner where the state elicited uncharged illegal act

s, before Rick Miller

’s testimony, codefendant Gay lor’s counsel moved that Miller not be allowed to make any refer ence to the uncharged illeg al activities of either of the codefendants unle ss he had specific knowledge of such conduct. 2 The court ruled that it w ould stop the witness if he were asked a question about something of which he had n o personal knowledge, b ut again concluded that any evidence that would supp ort the theory of a conspir acy would be admissib le.
The petitioner’s counsel did not object to Miller’s testimony before it was heard, but at a subsequent jur y-out hearing, counsel

objected to the witness’ testimony concerning a discussion between the codefendant and the defendant, claiming that it was being introduced as co-conspirator hearsay before it had been determined that a conspiracy existe

d. The objection was ove rruled on grounds that a tr ial court may allow co-conspirator hearsay to be introduced before it makes a determination that a conspiracy exists

if the hearsay is evi dence of the conspiracy and is corroborated at a later time.13 The petitioner’s counsel als o moved to supress certai n evidence admitted through witness Bobby Joe Higgs, a detective with the Anderson County Sheriff’s Department. He testified that he had gone to the pe titioner’s home with a search warrant and had confiscated numer ous check stubs and a notebook w hich contained insurance papers. These stubs were later identified by witness and co-conspi rator Phillip Varnadore as pay ments for drugs. Before trial , however, counsel for the petitioner had filed a motion to suppress all evidence seized from the petitioner’s residence due to a violat ion of the petitioner’s Fourt h Amendment rights under the United State’s Constituti on. The motion was overr uled.

Before Varnadore testified, defe nse counsel objected to certain letters written by the petit ioner to Varnadore on the basis that they had only been pr ovided to defense counsel the weekend before the trial. The letters w ere incriminating as t hey discussed certain money pa id to individuals for dr ugs. The objection was o verruled, and the l etters wer e admitt ed and re ad to the jury.

On numerous occasions during opening and closing ar gument, the state referred to the conspiracy of all the codefendants and their inv olvement in illegal drug activity in further

ance of the conspiracy. How ever, given that th e court had already concluded that evidence of acts in furtherance of the conspiracy was admissible, any objection to the argument would have been fruitless.

The petitioner next claims that trial counsel was ineffective for eliciting evidence of the petitioner’s illegal activities. He refers to the cro ss-examination of state witness Ricky Miller wherein c ounsel purportedly eli cited testimony that the peti tioner had loaned the witness money for a boat but that there had been an ag reement that after the witness had the boat for awhile, “it was

to be burned and [the witness would] collect the insurance on the boat.” However, the record reveals that t he testimony of14

Miller concerning the proposed insurance scam was not elicited by counsel. Rather, this testimony appeared to be a surprise to counsel as s hown by his next q uestion to Miller, “You just want to add that to your testimony today.” Counsel was apparently attempting to impeach Mill er’s testimony by s howing that he owed th e petitioner money when this comment was made by the witness.
The petitioner also faults counsel for eliciting testimony

from the petitioner concerning two revocations of a security clearance the petitioner had experienced while previously employ

ed. However, testi mony concerning the secur ity clearance was actually elicited to show that the petitioner ha d maintained a “Q” clearance for nine years and six months w hile employed by Mart in-Marietta. The petitioner explained that a “Q” clearance means that a person has an “unblemished reco rd, no drugs, no felonies, pretty much an upri ght person.” He admitted t hat his clearance had been revoked twice for an ar son charge and a football board, but stated that after an investigation, he w

as found not guilty of the char ges and his clearance w as reinstated.
Counsel also questioned the petitioner about illegal drug activity in an apparent effort to rebut all prior testimony of the state’s w itnesses concerning il legal drug activi ty. The pe titioner emphati cally deni ed any par ticipati on in illeg al drug act ivity, but the state used this testimony to argue that the petitioner had “opened the door” to cross-examination on thi s subject.

The petitioner also claims that counsel was ineffective for f ailing to object to the cross-examination of the petitioner. This is not supporte d by the record. Before cross-examination, the s tate argued that it should be able to cross-examine the petitioner concerning pend ing charges of fraudulent cr edit card use, the possessi on of illegal drugs, and r

eceiving and conceali ng stolen property. The state argued that the prior bad acts should be admis sible to impeach the petitioner and that evidence of drug15

activity should be a llowed because the petiti oner had earlier denied any illegal drug activity. The state t hen argued that part of its cas e was that the codefendants conspired and associated in p art because of the drug transac tions between them. Counsel for the petitioner obj ected to this cross-ex amination based upon the fact that the alleged conduct concerni ng the credit card and sto len property occurred after the offense on trial occurred. Couns el also objected to the preju dicial effect of any testimony concerning drug activity. The court overruled counsel’s objections and held that cross-examination concerning these activities was admissible. Thus, the record reflects that counsel did objec t.
Last, the petitioner claims that counsel was ineffective fo r failing to object to inadmissible evidence and improper argument made during the sentencing phase of the trial, primarily

dealing with the stat

e’s claim of the petitioner’s illegal drug acti

vity. The complaint about evidence rel ates to the state relying in the sentencing phase on the evidence presented at the g uilt phase of the trial, w hich included the evidence of illegal drug acti

vity. This evi dence is also at the root of the ar guments about which the petitioner now complains.

During argument, in r

esponse to the petitioner’s ar gument that he had no history of prior cri minal activity, the prosecutor stated that the r ecord was “chock full of criminal activity.” In response to the petitioner’s argument that he was a skilled worker, the prosecutor commented that because the petitioner was a sk illed worker, it was not necessary for him to sell drugs to make a livi ng. The prosecutor also r eferred to the petitioner as the ringl eader in the conspiracy to sell drugs and commit mur der for hire. He stated that it had been Rick Miller’s testimony that the insurance proceeds that were the goal of the crime woul d be used by the petitioner t o invest in more drugs . The petitioner asserts that this last remark was a misstatement of the evidence and that all3 In perti nent part, T.C.A. § 39-2- 203(c) (1982) ( now codifi ed at T.C.A. § 39 -13-204(c) ( 1990 and Supp. 1996)), states: “ In the sentencing proceedi ng, evidence may be presented as to any matter t hat the court deems relevant to the puni shment and may include, but not be l imited to, the nature and circumstances of t he crime; the def endant’s char

acter, backgrou nd history , and physi cal condit ion; any evidence tend ing to est ablish or

rebut the a ggravati ng circumstances enumerated i n subsection ( i); and any eviden ce tend ing to esta blish or reb ut any m itigating facto rs . . . .” 16 of the remarks were not prope r subjects for considerati on by the jury pursuant to T.C.A. § 39-2-203(c) (1982). 3

As a starting point, w

e note that trial counsel w as not questioned at the evidentiary hearing about the closing arguments in the sentencing phase. The record contains no indication of the ci rcumstances or counsel’s thinking at the time of the argument that would shed any light on the lack of object ions. With the burden being upon the petitioner to prove his claims, we w

ill not presume deficient perfor mance by counsel from such lack of evid ence. Rather, it would only be the most egreg ious error from which we could conc lude that no competent lawy er would forego objecti on that would allow us to c

onclude that failure to object w as not a legitimate tactic

. See , e.g. , State v. Ogle , 666 S.W.2d 58, 60-61 (Tenn. 1984).

In Cozzolino v. St

ate , 584 S.W. 2d 765 (Ten n. 1979), over the defendant’s objections, the state introdu ced in the sentencing phase ev idence of statements by the defendant in which he admitted commit ting a number of armed robberies during the interval between the mur der for which he was o n trial and his arrest. In holding that the admission of the statements was error, our supreme court dealt with T.C.A. § 39- 2404(c), a provision almost identical to T.C.A. § 39-2-203(c) (1982):

On its face section (c) would seem to permit the introduction of evidence “relevant to th e p unishment” in addition to that “tending to estab li sh or rebut the aggravating circumstances” or “tending to e sta blish or rebut any miti gating factors.” However, this interpretation is one that we cannot accept. When the statute is considered as a whole, it is cl ear

that the only issues that the jury may properly consider in reachin g a decision on the sentence to be imposed are w hether the State has established oneor more of the aggravati ng circumstances beyond a reasonable doubt and, if so, whether any mitigating factors have been shown th at wo uld outweigh those aggravating

circumstances. Any ev idence that does not go to17 the proof of one or the other of those issues is irrelevant to the jury’s deliberation. We can not bel ieve that the legislature intended that irrel evant evid ence be p laced be fore the jury, fraught as such a procedure would be with the ‘substantial risk that [the death penalty] would be inflicted in an arbit rar y and capricious manner,’ Gregg v. Georgia , 428 U.S. 153, 188, 96 S. Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), i.e., on the basis of factors other than those deemed by the legisl ature to be proper pre dicates for the sentencing determinati on. We think tha t a better interpretation of T.C.A. § 39-2404 (c), and o ne mo re in keeping with both the sense of the enti re statute an d the mandat e of the United Supreme Court, see , e.g. , Gregg v. Georgia , supra ; Lockett v. Ohio , 438 U.S. 586, 98 S. Ct. 2945, 57 L.Ed.2d 973 (1978), is that evidence is r el evant to the punishment, and thus admissible, only if it is relevant to an aggravati n g circumstance, or to a miti gating factor raised by the defendant. Cozzolino , 584 S.W.2d at 767-68.

In the present case, the petitioner relied upon T.C.A. § 39 -13-204(j)(1), that “the defendant has no signific ant history of prior cr

iminal activity,”

as a mitigating circumstance. The prosecutor ’s comment that the record w as “chock full of criminal activity” was relevant to rebut the use of this mitigator.

The petitioner offered as a nonstatutory mitigator that he was

a skilled worker and could “be c ounted upon to do a good job for the Tenness ee Department of Correction.” The prosecut or’s response that it w

as not necessary for the peti tioner to sell drugs because he w as a skilled worker

does not actually rebut t his mitigator. However, even if we were to conclude tha t the response was improper, we cannot conclude that counsel’s failure to object to it was deficient perf ormance that materially prejudiced the petitioner, g iven the substantial ev idence of illegal drug activity that w as already before the jury

.

The petitioner also faults counsel for fa iling to object to the state’s argument that he was using the insurance proceeds from the murde r for hire to invest in drugs, referring to Rick Miller’s testimony. The petitioner states that Miller did not so testify and he argues that it was prosecutorial misconduct to argue this unproven claim18

of criminal intent, particul arly as a reason for impos ing the death penalty. F irst, although the record reflects that evidence of reinves tment of the insurance proceeds was not introduced throug h Rick Miller, it does contain evidence of handw ritten notations on insurance forms w hich, according to the st ate, were calculations

of money that could be made if the petitioner reinvested the insurance proceeds in drug activ ity. In this sense, although Miller was not the source, there remained an evidentiary basis for the state’s argument.

What is less clear is whether the state’s position about the petitioner’s drug dealings, specific

ally about investing

insurance proceeds into the illegal drug busines s, was impr operly argu ed in the context o f reason s to impos e the dea th penal ty, as opposed to rebuttal to the petitioner’s claim of a lack of cr iminal history. In th e state’s closing arg ument, the prosecutor presented an item by item rebuttal to the petitioner’s and codefendant’s cl aimed points in mitigation.

However, this re buttal argument was follow ed by the state’s concludi ng remarks, which incl uded the fol lowing:

Mr. Hutchison, he who puts to gether a murder

forhire, is a particularly evil f orce. He is one with a wicked and depraved heart who would end a life for money. From the evidence in this case, it is clear that it was gr eed, greed on the part of both [the codefendant] and Hu tchison. Greed for money; money to p arty, money to pamper girlfrie nds that they swapped around, mon ey to invest in drugs that could be distributed in larger quantiti es, to more customers, destroy more yo ung people, but making you as the ringleader of this an even greater return

on your investment. You remember Rick Miller ’s testimony

that not only did Mr. Hutchis on in tend to collect this five hundred thousand dollars from the death of Hugh Huddleston, but he intended to increase that even more by investing it in drugs. And indeed, at the v ery time t hat the money would’v e come in, he was engaged in cocaine trafficki ng.19

The defendant contends that this argument was an attempt by the state to get the jury to impose the death penalty becaus e of the drug trafficking, not any statutorily requi red aggravating ci rcumstances.

We tend to agree that the reference to the petition er’s intent to invest the crime proceeds into more dru gs that would “destr oy more young people” has the potential to focus the jury unduly on concerns about the pe titioner’s drug deali ngs. However, in rev

iewing the complete cl osing remarks, we bel ieve that the major thrust of the state’s comments focused consider ation on the petitioner’s financial motives for the murder. Obviously, the nature and circumstances surrounding the murder, particularly the financial reasons that motivated it, were relevant to the aggravating circumstance regarding murder for r

emuneration that was presente d to the jury. In this sense, to the extent that the evidence s upported a conclusion that a major reason for the killing was to have funds to invest in drug trafficking, the pros ecutor’s argument was proper. Otherwise, we beli eve that the “offending” referenc e was not sufficiently s ignificant that the failure to object was deficient performance th at prejudiced the petitioner.

In sum, from our review of the trial record, we conclude that counsel did, in fact, make a diligent effort to ex clude from the evidence testimony concerning uncharged illegal act

s despite the fact that most, if not al l, the evidence had been deemed admissib le. Couns el’s perf ormance did not co nstitute the inef fective assistance of counsel.

B.

The petitioner next contends t hat counsel was ineffectiv e for not objecting to the reasonable doubt jury instruction at both the gu ilt and penalty phase of the tr ial. The instruction given during the guilt phase reads as follows:

Reasonable doubt is that do ubt engendered by an investigation of all the proof in the case and an in ability after20 such inve stigation, to let the mind rest easily as to th e certainty o f gui lt. Reasonable doubt does not mean a ca ptious, possible, or imaginary doubt. Absolute certain ty o f guilt is not de manded by the law to conv ict of any criminal charge, but moral certain ty is required and this certainty is required as to every proposition of proof requisite to constitute the offense. A similar instruction was given at the penal ty phase: The burden of proof is upon the State to pr ove any statutory aggravat ing circumstance or circu mstances beyond a reasonable doubt and to a moral certainty . Reasonable doubt is that doubt engendered by an investigation

of all the proof in the case and an i nability, after such inv estigation, to let the mind rest easily upon the cer tainty of your

verdict. Reasonable doubt does no t m ean a dou bt that m ay arise fr om possi bility. Absolute certainty is no t deman ded by the law, but moral certainty is requir ed and th is certainty is required as to every proposition of proof requisit e to constitute the verdi ct. The petitioner asserts that counsel should have objected to these instructions because the linking of the phrase “reasonable doubt” to “moral certainty” is unconstitution al, citing Rickman v. Dutton , 864 F. Supp. 686 (M.D. Tenn. 1994) , in support of his claim.

On numerous occasions, Tennessee co urts have held that the ident ical or similar instructions were consistent wi th constitutional princi ples. See , e.g. , State v. Nichols , 877 S.W.2d 722, 734 (Tenn.1994); Pettyjohn v. State , 885 S.W.2d 364, 365 (Tenn. Crim. App. 1994). We do not believe t hat counsel’s failure to objec t constituted deficient performance.

C.

The petitioner claims that tr ial counsel lacked the ex perience and knowledge necessary

for effective representation in a death penalty case and failed to investigate and present evidence to demonstrate aspec ts of his character, backg round, and mental state. Howeve r, other than referring t o his other claims about the ineffectiveness of counsel, the petitioner does not demonstrate that c ounsel was inexperienced and unknowing and that this inexpe rience prejudiced him.21 At the post-conviction h earing, only one of the petitioner’s trial counsel testified. He stated that he had been practicing law for twelve years at the time of this trial and that he had previously worked on another capital case that had settled bef ore trial. When questioned about the petitioner ’s background, counsel s tated that he had not been aware of the petitioner ’s stuttering problem nor any head injuries res ulting from automobile accidents. He ack nowledged that he had know n that the petitioner had been placed on pain medication dur ing the pendency of the case, but he denied having any indicat ion that the petitioner w as not comprehending what w as being said to him.
Counsel also stated that one of the witnesses the petitione r wanted to call, Mike Bell, had been interviewed by co-counsel for approximately three hours. He acknowledged that Bell had not been called as a wit ness and that he had no recollection as to wh

y the witness had not been called. As for other witnesses who would have vouched for the petitioner’s character, counsel testified that during the penalty phase of the trial, he had put on numerous character w itnesses who testified concerning the petitioner ’s background.
When a petitioner conte nds that counsel failed to present witnesses in support of his defense, these wit nesses should be presented by the petitioner at the evidentiary hearing . By presenting them, th e petitioner can establish that the failure to have a known witnes

s testify resulted in the

denial of evidence material to the petitioner. See State v. Black , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

However, in this case, the petitioner did not pr esent Mr. Bell or any

other witness that he would have his trial counsel introduce on his behalf. Under these circumstances, the trial court had insufficient evidence to de termine either if the failure to call a witness w

as deficient performance by tri al counsel or if such failure constituted22

material prejudice to the pet itioner’s cause. Accor dingly, the petitioner

has failed to show that the trial couns el’s claimed failures amounted t o the ineffective assistance of counsel.

D.

The petitioner claims that couns el was ineffective in fail ing to consult with the petitioner throughout the proceedings. The petitioner testified that he met with counsel only six t imes before trial. Howev er, the fee claims of counsel rev eal that one attorney met with the pet itioner twenty ti mes and the other attorney met w ith him seven times. Numerous telephone call s were also made to the petitioner.

The petitioner asserts that he could not eff ectively interact with his attorneys because he was given pain medication ev ery four hours whil e he was incarcerated. Howev

er, the petitioner admitted that he had been able to provide counsel with a witness list and specific detai ls concerning his re lationship with the coconspirators and the alleg ed loan transaction between him and the victim. The tri al record reflects that the jury was provided with a detailed explanation of the petitioner’s version of the events. U ndeniably, this record could not have been created i f counsel had not consulted extensiv ely with the petiti oner. Counsel’s performance w as not deficient in this regard.

The petitioner also claims th at counsel failed to discuss w ith him the issues that would be rai sed on appeal. However , counsel testified that he and cocounsel had met with the petitioner to discuss the appeal and that they had talked in a general manner. He stated th at they had used the motion for a new trial as a backdrop for the issues. The trial court obviously accredited the testimony of trial counsel.23 As for specific issues to be r aised on appeal, counsel stated t hat he and co-counsel had chosen only the issues that they felt had the best chance of succeeding. He also stated that their brief had been in excess of one hundred pages. We also note that the petitioner fails to identi fy in his brief any subst antive issue that should have been raised but w as not.
An advocate is not requi red to raise every issue contained in the motion for a new trial or req uested by the accused. Jones v. Barnes , 463 U.S. 745, 750-51, 103 S. Ct. 3308, 3312 (1983); State v. Swanson , 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984). The determination of which issues to presen t on appeal is “a matter which addresses itself to the professi onal judgment and sound discre tion of the appellate counsel.” Cooper v. State , 849 S.W.2d 744, 74 7 (Tenn. 1993). Counsel’s performance was not deficient in selec ting appropriate issues for appeal.

E. The petitioner argues that counsel was ineffective for f ailing to secure expert services. Although trial counsel testified that in retrospect, he would have used the services of a sentencin g consultant and a psychi atrist, he acknowledg ed that he presented several wi

tnesses who testified about th e petitioner’s backgro und. He stated that he did not know if the use of experts would have changed the verdict in this case.

The record reveals that an investigator wa s employed by counsel and that between counsel and the investigator, more than one hundred an d eighty-eight hours were spent in investigation. At the sentencing phase of the trial, seven witnesses were extensively questioned concerning the petitioner’s background and character. Thus, many of the par

ticulars a bout the peti tioner’s ba ckground an d character that he clai ms would have been shown by expert testimony were in fact proven by other witnesses.24 We recognize that background and char acter are considered rel evant to a capital sentencing determi nation “because of the belief, long held by this society , that defendants who commit criminal acts that are attributable t o a disadvantaged background, or to emotional a nd mental problems, may be less culpable than defendants who have no such excuse.” Californ ia v. Brown , 479 U.S. 538, 545, 107 S. Ct. 837, 841 (1987) (O’Connor, J., concurring). Also, we recogniz e that mental condition experts can be i mportant to aid jurors to make sensible and educated determinations about an accused’s mental condition that is rel evant to the issues on trial. See Ake v. Okl ahoma , 470 U.S. 68, 80-81, 105 S. Ct. 1087, 1094-95 (1985 ). However, this does not mean that counsel will be performing deficiently, per se , by electing to use lay instead of expert witnesses. We will not fault the atto rneys’ reliance in this case upon lay witnesses to show the petitioner’s background, positive qualities, and rehabilitation attempts. A ccording to counsel, the petitioner had never indi cated that he suffered from any type of physical, ment al or emotional disability that would have warranted the services of a psychiatrist. Also, the investigation of the petitioner’s background by counsel and the investigator w

as shown to be extensiv e.

F. Last, the petitioner claims counsel was ineffective for failing to question prospective jurors adequately about their abi lity to consider a l ife sentence if an aggravating ci rcumstance was found. How ever, trial counsel was not questioned at the evidentiary hearing

about voir dire. And th e petitioner gives no explanation as to how counsel could have more effectively questioned the jurors.

The tria l record re veals that the jury voir dire was exte nsive. Pro spective jurors were quest ioned repeatedly by the t rial court, the state, cou nsel, and counsel for the codefendant regarding their ability to consider life or death if the defendants were found guilty of murder. They were also asked if they would be able to follow the law.25

We see no evident indication that the jury was less than fair or i mpartial or that counsel’s jury selection activities constituted deficient performance. T here is no merit to this issue.

II. EVIDENCE CONCERN ING UNCHAR GED ILLEGAL A CTIVITIES The petitioner claims that he w as denied due process of law by the misconduct of the state in its i ntroduction of inadmissible ev idence and improper arguments concerning the petitioner’s participat ion in illegal activ ities for which he had not been charged. Specificall y, he asserts that testi mony was elicited from w itnesses concerning the petitioner’s illegal drug activity and concealment of stolen property. He also contests the state’s ar guments made at both phases of the tria l in which the prosecutor repeatedly referred to illegal drug activity of the petitioner.

As we have previ ously acknowledged , the trial court ruled that the state could question the petitione r and other named co-conspirat ors in this case concern ing the drug relationship betw een them. We agree that the testimony concern ing illegal drug activity w

ould be admissible because the c onspiracy to commit murder was linked to the prior relationshi p among the co-conspirators based upon their involv ement in the drug business. Therefore, the s tate’s introduction of evi dence and related argument concerning this activity was not improper.

III. TRIAL COURT’S FAILURE TO MA KE WRITTEN FINDINGS OF FACT The petitioner argues that the trial court erred in fai ling to enter a wri tten order or memorandum on all gr ounds presented in the petition for post-conviction rel ief. The state concedes that the trial court should have address ed each claim made by the petitioner, but it does not ag ree that the failure to do so w arrants reversal of the trial court’s judgment.26 Pursuant to T.C.A. § 40-30-118(b), the trial court must set fo rth all grounds presented and state findings of fact and conclusions of law with regard to each ground. However, even if a trial court fail s to comply with thi s duty, a reversal is not warranted if the record r eflects the reasons for the trial court’s actions. State v. Swanson , 680 S.W.2d at 489. In Swanson , this court stated that the pr imary intent of the statute was “to facilitate appellate review of the lower court’s proceedings . . . .” Id. If the record contains the reas ons for the trial court’s action “sufficient to effectuate meaningful appellate review ,” then we may consider the issues, even though t here has not been full compliance with T.C.A. § 40-30-118(b). Id. Such a record exists in this case and a remand for further findings is unnecessary.

IV. FUNDS TO RETA

IN EXPERT SERVICES The petitioner claims that the trial court erred in refusing to grant him funds to retain expert serv ices. The petitioner req uested authorization for the foll owing investigative and expert services:

1. Marjorie Fargo, S enior Trial Consultant and P resident of JuryServices - fund s in the amount of $3,000 for jury investigation. 2. Frank H. Einstein, Ph.D ., sent encin g consultant and mitigation specialist - funds in the amount of $9,000 to conduct an analysis of

the proof submitted at

the penalty phase of the trial. 3. C harles T. Kenny, Kenny and A ssociates - funds in the amou nt of $2,000 to compile census data and per for m a statical analysis to resolv e any issues concerning the composition of the jury panel and ultimate venire. 4. Dr. Peter Young, cl inical psychologi st - funds in the amount of $6,000 to evaluate the petitioner to determin e his level of psychologicalfunctioning and ability at the time of the offense. The trial court reserv

ed ruling on the petitioner ’s motion pending his pres entation of proof. In its written or

der entered September 27, 1995, the cou rt concluded that the petitioner’s proof did not est ablish that the requested ex pert services we re required to prove a constitutional i nfringement, that the servi ces could only assist in searching for4 As noted by t he parties, the post-conv icti on court’s ruling in thi s case preceded the Tennessee Supreme Court’s decisi on in Owens

. 27 possible constitutional i nfringements, and that the petitio ner had failed to demonstrate a need for the requested serv ices.

In Owens v. State , 908 S.W.2d 923 (Tenn. 1995), the Tennessee Supreme Court ruled that the ex parte provisions of T.C.A. § 40-14-207(b), which provides for the authoriz ation of expert servic

es, are to apply in post-conviction capital cases. 908 S.W.2d at 928. 4 The court held that to obtain an ex parte hearing, a capital post-conviction petiti oner must submit a writt en motion to the trial court alleging why state-funded services are necessary to ensure due pr ocess is afforded under the particular facts and circumstances of the case. Id. The motion must also include the following: “(a) the

name of the proposed expert or se rvice; (b) how, when and where the examination is to be conducte d or the services are

to be performed; (c) the cost of the evaluation and report ther eof; and (d) the cost of any other necessary servic es, such as court appearances.” Id. ; see also Tennessee Supreme Court Rule 13 § (2)(B)(10).

However, the court cautioned that its applicati on of T.C.A. § 40-14-207(b) to post-conviction capi

tal cases “should not be int erpreted as a ‘blank check’ requiring trial judges to hold ex parte hearings and authorize funds in every case.” Owens , 908 S.W.2d at 928. In order to receive state funding of expert services, the petitioner must demonstrate that the “services are necessary to ensure the protection of the petitioner’s constitutional rights.” Id. As the court explained, “a petitioner must demonstrate by specific factual proof that the serv ices of an expert or an inv estigator are necessary to establish a ground for post-conviction relief, and that the petitioner is unable to establish that ground for post-conviction relief by any other available evidence.” Id.

The discretion to grant a r equest for expert serv

ices rests with the trial court and its decision w ill not be reversed on appeal unless there is a cl ear showing of28

an abuse of that discretion. State v. Cazes , 875 S.W.2d 253, 261 (Tenn. 1994). In the written motion submitted by the petitioner, he failed to spec ify by factual proof that the services of an expert or investigator w ere necessary to establi sh a ground for postconviction relief and that he was unable to establish such ground by other available evidence. We conclude that the trial cou rt acted within its discretion in denying the requested services.

V. DENIAL OF A CONTINUA NCE The petitione r contends t hat the tria l court err ed in denyi ng him a continuance. The record rev eals that counsel for the petiti oner was appointed on May 11, 1995. The record indicates t hat the evidentiary hear ing was origina lly scheduled for September 14, 1995, but a continuance w as granted. The petitioner r equested a second continuance on September 8, 1995, and renewed the request o n September 27, the date of the hearing.

The petitioner argued to the trial court that additional time was neede d in order to receive a res ponse concerning the open rec ords request made concerni ng files pertaining to this case, a decision rendered on his Petition for Writ of Certiorari pending in the United States Supreme Cou rt concerning jury instructions in this c

ase, and a decisi on pendi ng in th e Tenness ee Supre me Court

in the ma

tters o f Owens v. State and House v. State

concerning the avail ability of expert ser vices. He further av

erred that additional time was needed for investigation. The trial court denied the req uest, concluding that the continuanc e was neither appropria te nor required.
The decision whether to g rant a continuance rests w ithin the discretion of the trial court. State v. Morgan , 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). The denial of a continuance will not be disturbed “unless it appears upon the face of the record that the trial jud ge abused his discretion and prejudice enured to the accu sed as29

a direct result of the trial judge’s ruling.” State v. Dykes , 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990).

In May 1995, the petitioner , with the assistance of c ounsel from the Capital Case Resource Center, filed a pro se petition for post-convic tion relief. Counsel was immediately appointe d to represent the petitioner . Amendments to the petition were filed, and the evidentiary hearing was held on September 27, 1995. Thus, counsel had access to the rec ords in this case for a subs tantial time.
Moreover, the petitioner has failed to show that he has been prejudiced in any manner. It is undispute d that a continuance may be gr anted for the purpose of securing the presence of ident ifiable witnesses if the w itnesses’ testimony is

material and admissible. Howev er, in this case, the petit ioner sought a continuance to await the decisions of other courts and t o gather information whic h, at the time of the motion, was largely unknown and of speculative value. We conclude that the trial court acted within its discretion by deny

ing the motion for a continuance.

VI. TRANS CRI PT O F THE ARGUM ENT S OF COU NSE L AT TR IAL The petitioner asserts that the trial court erred in failing to order the state to prepare and file transcri pts of the arguments of counsel duri ng the guilt and sentencing phases of the petitioner’s trial. However, the state asserts that the record does not suppo rt this cl aim.

In anticipation of this proceeding, the state filed a cop y of the record as it existed on direct appeal. At a September 8, 1995, motion heari ng, counsel for the petitioner moved that he be al lowed to supplement the recor d with tapes of the opening and closing arguments of the s tate at both the guilt and penalty phases of the trial. The trial court offered to provi de copies of the tape but stated that the clerk’s office might30

not be able to get the tapes tr anscribed in time. Counsel for the petitioner then offered to have the tapes transcri bed, admitting that after list ening to them, he might not w ant them transcribed. Ultimatel y, the transcripts w

ere entered into evidence atthe postconviction hearin g.

The petitioner complains that the transcription burden w as wrongly plac

ed upon him instead of the state. We essentially agree with him in that the district attorney general is obligated to file records or transcripts that are material to the issues raised in a post-conviction petit ion. See T.C.A. § 40-30-114(b). How ever, the petitioner appeared to have accepted the burden, and in any event, he ha s shown no harm to his case arising from what occurred.

VII. CUMULATIVE ERRORS The petit ioner as

serts t hat the cumulative effect of all er rors of a constitutional dimension at trial and on appeal warrant him relief. However, because we have concluded that no individual constituti onal error exists, there is no improper cumulative impact upon the peti tioner. This issue is w

ithout merit.
In consideration of the foregoing and the records of the petitioner’s original trial, di rect appeal and post-convi ction proceeding, we conclude that the trial court’s determinations in this case were corr ect. The judgment is affirmed.

_____________________________ Joseph M. Tipto n, Judge31

CONCUR:

__________________________ Gary R. Wad e, Judge

___________________________ William M. Barker, Judge