FILED

March 30, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

RICKY J. SUMMERS, ) C.C.A. NO. 01C01-9708-CC-00323

)

Appellant, )

)

) FRANKLIN COUNTY

VS. )

) HON. J. CURTIS SMITH,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF FRANKLIN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

RICKY SUMMERS JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

MCRCF

Wartburg, TN 37887 CLINTON J. MORGAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

J. MICHAEL TAYLOR

District Attorney General

STEVEN M. BLOUNT

Assistant District Attorney General

324 Dinah Shore Boulevard

Winchester, TN 37398

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Ricky J. Summers, appeals the trial court’s order

dismissing his petition for post-conviction relief. On August 23, 1985, the Circuit

Court for Franklin County found Defendant guilty of first degree premeditated

murder following a jury trial. This Court affirmed his conviction, State v. Ricky

Summ ers, No. 85-328-III, 1987 WL 16398 (Tenn. Crim. App., Nashville, Sept. 4,

1987), and the Tennessee Supreme Court denied permission to appeal.

Defendant filed a timely petition for post-conviction relief on August 28, 1990,

which was not heard by the trial court until March 26, 1997. The trial court denied

relief, a decision that Defendant now appeals. 

By addendum to his original petition, Defendant argues fifteen assignments

of error. These points may be classified as either errors by the trial court or

errors by trial counsel. We find that the alleged errors by the trial court—the first

nine—have been waived in this Court because of Defendant’s failure to bring

them on direct appeal. Tenn. Code Ann. § 40-30-111, -112 (repealed and

replaced by § 40-30-206(g)). 

The last five assignments of error charge Defendant’s trial attorneys with

ineffective assistance of counsel. Specifically, Defendant contends that his trial

counsel performed below the standard of competent criminal defense attorneys

by: (1) failing to subpoena witnesses and ensure their presence in court for trial,

(2) failing to raise the defense of intoxication, (3) failing to raise the issue of

mental defect or to seek a competency hearing as to Defendant’s capability to
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form necessary elements of the offense, (4) failing to object to unconstitutional

jury instructions, and (5) failing to move for judgment of acquittal at the close of

the State’s proof. 

To be entitled to post-conviction relief on the basis of ineffective assistance

of counsel, Defendant must show that his counsel’s representation was

“deficient” and that “the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong,

counsel’s performance is not deficient when “the advice given, or the services

rendered by the attorney, are within the range of competence demanded of

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

The second prong requires Defendant to show a reasonable probability that the

result of the trial would have been different but for the deficient representation.

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. 

With respect to rationalization of attorney conduct in an ineffective

assistance of counsel case, the Strickland Court instructed, 

Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence. . . . A

fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.

Id. at 688. 
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I. FAILING TO SUBPOENA WITNESSES 

Defendant first alleges that he was “forced to trial without having his

witnesses present” in violation of his right to due process. According to the

record of the evidentiary hearing, Defendant informed his trial counsel prior to

trial about several witnesses who he claims were eyewitnesses to the crime. He

testified that he requested the presence of those witnesses at trial and that the

witnesses were present on one date. However, the trial apparently did not begin

on that day and was instead rescheduled. Although subpoenas were re-issued,

they apparently were never served, and trial commenced as re-scheduled. 

If afforded a post-conviction evidentiary hearing by the trial court, a

petitioner must do m ore than merely present evidence tending to show

incompetent representation and prejudice; the petitioner must prove factual

allegations by a preponderance of the evidence. Clenny v. State, 576 S.W.2d 12,

14 (Tenn. Crim. App. 1974) (superseded by § 40-30-210(f) (requiring clear and

convincing evidence)). When an evidentiary hearing is held, findings of fact

made by that court are conclusive and binding on this Court unless the evidence

preponderates against them. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993) (citing Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990)).

As noted by this Court in Black v. State, 794 S.W.2d 752 (Tenn. Crim. App.

1990), 

[w]hen a petitioner contends that trial counsel failed to

discover, interview, or present witnesses in support of the defense,

these witnesses should be presented by the petitioner at the

evidentiary hearing. As a general rule, this is the only way the

petitioner can establish that . . . a known witness was not

interviewed, . . . or . . . the failure to have a known witness present

or call the witness to the stand resulted in the denial of critical
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evidence which inured to the prejudice of the petitioner. It is

elementary that neither a trial court nor an appellate court can

speculate or guess on the question of . . . what a witness’s

testimony might have been if introduced by defense counsel. The

same is true regarding the failure to call a known witness. In short,

if a petitioner is able to establish that defense counsel was deficient

in the investigation of the facts or calling a known witness, the

petitioner is not entitled to relief from his conviction on this ground

unless he can produce a material witness who (a) could have been

found by reasonable investigation and (b) would have testified

favorably in support of the defense if called.

Id. at 757-58 (emphasis added) (footnote omitted). Defendant failed to present

at his evidentiary hearing the witnesses he contends should have testified at his

trial, and he testified that he cannot now recall the names of these witnesses.

Under these circumstances, this Court is constrained to deny relief.

II. FAILING TO RAISE DEFENSE OF INTOXICATION

Defendant provides no argument on this issue in his brief. However, a

portion of the post-conviction evidentiary hearing was dedicated to the subject,

and the trial court found as follows:

It is apparent from the trial transcript and the testimony of counsel

at the hearing, a deliberate strategic decision was made at trial not

to stress intoxication of the defendant. The defense was that the

petitioner did not commit the crime, not that he could not remember

the events because of intoxication or that he could not form a

culpable mental state because of intoxication. Given the strategy of

the defense, amplifying the issue of intoxication likely could have

been counter-productive by damaging the credibility of the

defendant. The tactics adopted at trial should not now be secondguessed by hindsight.

We agree. The courts of this state have long “recognized that it is not our

function to ‘second-guess’ tactical and strategical choices pertaining to defense

matters or measure a defense attorney’s representation by ‘20-20 hindsight’

when deciding the effectiveness of trial counsel.” Cooper v. State, 849 S.W.2d

744, 746 (Tenn. 1993) (quoting Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).
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The record of the post-conviction hearing does not preponderate against the trial

court’s findings. 

III. FAILURE TO RAISE ISSUE OF MENTAL DEFECT

OR TO SEEK COMPETENCY HEARING 

Defendant again failed to support this contention in his brief; nevertheless

we will address the argument as it is characterized in the transcript of the

evidentiary hearing. On this issue, the trial court found,

Both [of Defendant’s trial counsel] testified at the hearing that

petitioner cooperated with them fully in trial preparation and was

competent. The trial transcript does not reflect any inability on

petitioner’s part to understand questions or communicate.

Apparently, petitioner bases his need for a mental evaluation on his

claim he was addicted to drugs and alcohol for many months prior

to the incident. Petitioner was in jail from his arrest in March until

the trial in August. Even though no credible testimony was

presented at the hearing petitioner was abusing substances before

incarceration to the extent he was incompetent during his jail stay or

at trial, he certainly had ample time to “dry out” during his

incarceration. 

Defendant did not present any testimony, expert or otherwise, at the postconviction hearing tending to prove by a preponderance of the evidence that he

was not mentally competent to stand trial. The typical statement by Defendant

in support of this claim is as follows: “It’s hard for me to talk and to keep things

on my mind. If I’m telling you a joke, I’ll get right in the middle of it and forget.

That’s the reason there’s no way that I could commit a first degree murder.” The

post-conviction transcript supports the finding of the post-conviction court;

therefore, this issue lacks merit.
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IV. FAILURE TO OBJECT TO JURY INSTRUCTIONS

Defendant argues that his trial counsel were ineffective for failing to object

to those jury instructions that, in the first part, he contended were error by the trial

court. W e find no ineffective assistance by Defendant’s trial counsel.

A. Definition of Malice

Defendant argues that counsel were ineffective for failing to object when

the trial court omitted a definition of “malice” from the jury instructions for first

degree murder. On page 1094 of the jury charge, which Defendant has

appended to his response brief, we find, “For you to find the defendant guilty of

murder in the first degree as charged in the first count of the indictm ent, the State

must have proven beyond a reasonable doubt . . . that the killing was malicious,

that is, that the defendant was of the state of mind to do the alleged wrongful act

without legal justification or excuse.” In addition, Defendant concedes that the

court defined “malice” in its instruction for second degree murder. We therefore

find no deficiency or prejudice. 

B. Definition of Deliberate

Defendant next argues that counsel should have objected to the allegedly

incomplete definition of “deliberate” given by the trial court. According to

Defendant, the trial court charged only that deliberate means “with a cool

purpose.” Defendant does not, however, present an alternate definition, state

reasons why the charged instructed was deficient, or provide any law holding this

instruction erroneous. This Court has previously held this definition to be

sufficient. State v. Greg Baine, No. 03C01-9202-CR-00043, 1992 WL 151403,

at *2 (Tenn. Crim. App., Knoxville, July 2, 1992) (“No special request was made
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attempting to have the trial court define the term <coolness of purpose,’ and we

are unable to find any error with the trial court’s failure to do so.”)

C. Presumption of Malice

In this argum ent, Defendant asserts that his counsel should have objected

to two jury instructions that allegedly shifted the burden of proof by creating a

presum ption of malice. The first challenged instruction reads, 

[I]f a deadly weapon is handled in a manner so as to make the killing

a natural or probable result of such conduct, then there is raised an

inference of malice sufficient to support a conviction for murder in

the second degree unless it is rebutted by other facts and

circumstances. A deadly weapon is any weapon or instrument

which from the manner in which it is used or attempted to be used

is likely to produce death or great bodily harm.

Because the jury convicted Defendant of first degree murder, rather than second

degree murder, we find no prejudice even if failure to object constituted deficient

performance of counsel. 

The next instruction allegedly read as follows,

[T]he use of a deadly weapon by a party who assaults another with

intent to commit murder in the first degree raises a presumption of

malice, unless rebutted by other facts and circumstances to the

contrary.

We find this instruction to be constitutional under State v. Bolin, 678 S.W.2d 40

(Tenn. 1984). In Bolin, the supreme court held that this instruction did not

unconstitutionally relieve the State of its burden to prove beyond a reasonable

doubt each element of the offense. Id. at 44. That court stated, “The words of

the presumption, the immediate context in which they appear, and the overall

context of the jury instructions, remove this case from the due process trap

adjudicated in Sandstrom [v. Montana, 442 U.S. 510 (1979)], in our opinion.” Id.
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at 42. From a survey of the jury instructions provided by Defendant in this case,

we similarly find that the instruction as given did not offend due process.

Furthermore, we find that even if the instructions were erroneous, they did

not have “‘substantial and injurious effect or influence in determining the jury’s

verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). Therefore, Defendant’s trial counsel

did not provide ineffective assistance by failing to object to the instructions. 

D. Reasonable Doubt

Defendant’s final jury instruction argument complains that the “moral

certainty” charge given by the trial court permitted the jury to find guilt on a

quantum of evidence less than the constitutionally required beyond a reasonable

doubt standard. He contends that he suffered ineffective assistance of counsel

by his attorneys’ failure to object to this instruction. 

The courts of this state have consistently held this particular jury instruction

to be constitutionally permissible; hence, the failure to object is not ineffective

assistance of counsel. See Carter v. State, 958 S.W.2d 620 (Tenn. 1997); State

v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263,

266 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn.

Crim. App. 1994); State v. Hallock, 875 S.W .2d 285, 294 (Tenn. Crim. App.

1993); State v. Rodney Corley, No. 01C01-9608-CR-00336, 1997 WL 535315,

at *2 (Tenn. Crim. App., Nashville, Sept. 2, 1997), perm. to appeal denied (Tenn.

1998); Kenneth Culp v. State, No. 02C01-9608-CC-00268, 1997 WL 414397, at

*2-*3 (Tenn. Crim. App., Jackson, July 24, 1997); Terry Shannon Kimery v. State,
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No. 03C01-9512-CC-00412, 1997 W L 31143, at *4-*5 (Tenn. Crim. App.,

Knoxville, Jan. 28, 1997), perm. to appeal denied (Tenn. 1997). 

V. JUDGMENT OF ACQUITTAL

Finally, Defendant argues that his counsel were ineffective for failing to

move for a judgm ent of acquittal at the close of the State’s proof. The postconviction court found that “[i]n light of the evidence at trial, petitioner suffered no

prejudice” by counsel’s action. In addition, the court stated, “There was ample

evidence to support a finding petitioner killed the victim in a malicious,

premeditated, and deliberate fashion.” 

In order to conclude that Defendant suffered ineffective assistance of

counsel due to a failure by counsel to move for judgment of acquittal, this Court

must find that the evidence was not sufficient to support the jury’s verdict. This

we decline to do, because the issue has been previously determined. See State

v. Ricky Summers, No. 85-328-III, 1987 WL 16398, at *4-*7 (Tenn. Crim. App.,

Nashville, Sept. 4, 1987). This issue lacks merit.

Because we conclude that none of Defendant’s issues require reversal of

his conviction, we affirm the judgment of the trial court dismissing his petition for

post-conviction relief.

 

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE