### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Ja nua ry 9, 200 7 S es sio n

RIC KEY WILLIAM S v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. P -26607 Car olyn Wad e Blackett , Judge

No. W2006-00605-C CA-R 3-P C - F iled Jul y 24, 2007

The pe titioner, Rickey

Wil liams, a

ppeals the Shelby

County Criminal Court’s denial of his petition for post-c onviction relief f rom his c onviction f

or first deg ree preme ditated murder and re sulting life sentenc e. On a

ppeal, he contends that he rec eived the ineffe ctive assist ance of counsel and that the trial court g ave a

n err oneous jury

instruction on the definition of “knowing .” Up o n revie w of the

re c or d a nd the pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f t

he po st- c on vic tio n c ourt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion o f t he cour t, in which D AVI D G. H AYES and J.C. M C L IN , J J ., joined.

L arr y M. Sarg ent, Memphis, Tenne ssee, f or the a ppellant, Rickey

Wil liams.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l a n d R e p o r t e r ; Da vid H. F ind le y , A ssi sta

nt A tto rn e y

Ge ne ra l; Wil liam L

. Gi b b o n s , District Attorney Gene ral; and Stac y

McEndre e, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound
A jury convicted the petitioner of murde ring Alg erine Boug ard in he r apa rtment on or about Dec ember

1, 1 9 97. I n the petitioner’s dire ct appe al, this court g ave the following fac tual acc ount of the c ri me : The vic tim and the pe tit ion e r ha d b e e n invo lve d in a ro manti c re latio ns hip that be c a me

v er y v i o lent in the months leading up to the victim’s death. See State v. Ricke y Wil liams, No. W1999- 0 1 7 0 1 -C CA-R3-CD, 2001 Tenn. Crim. App. L EXI S 109, at *2 (J ackson, F eb. 15, 2001), perm. to appe al de n i ed
, (T en n . 2001). At trial, an e mploy ee of the victim’s apar

tment complex testified that in the summer of 1997, the petitioner forc ed his w ay into the c omplex and knocke d the victim unconscious by

hitti n g her w ith an object in a br own sac k. I d. at **2-3. Memphis Police Offic er Fr ank Wins ton te stified that on J une 30, 1997, he was dispatched to the victim’s apar tment-2-

and sawthat the victim was cut a nd bruised. S he tol d him the petit ioner had enter ed her apar tment throug h the sliding g lass door, had he ld a knife to her throat, and had be aten a nd rape d her. I d. De bo ra h Th we a tt, a ho sp ita l nurs e , te sti fi e d that sh e c are d f or the vic timin N ov e mbe r 1 99 7 w hil e the victim spent time in the hospital for an intestinal disorder. I d

. Towar d the end of November
, Thweatt heard the victim screaming in her hospital room. I d. at *4. Thweatt went int o the room and

saw the pe tit ion e r b e a tin g the vic timand de mand inghe r p ur se . I d. Th e pe tit ion e r t hr e a te ne d to kil l the victim and Thwe att and fle d with the purse, whic h contained t he victim’s apa rtment key s. I d. O nD e c e mb e r 1 , 1 9 9 7 , t h e v i c t i m w a s r e l e a s e d f r o m t h e h o s p i t a l
, an d

h e r d a u g h t e r , C a t i l l a

B r a d l e y, drove he r home. I d. The victim used an e x tra set of key s to g et into her a partment, a

nd Br adley

went to the petitioner’s pa

rent’s house to retrieve the victim’s purse. I d. at **4-5. Bra dley g ot the purse, but the victim’s apar

tment key s were not in it. I d. at *5. Sever al day s later, the victim’s body was discovere d in her ap artment. I d. A key to the front door ha d been br oken off in the lock, another set of key s was on the c ouch, and the sliding g lass door on the apar tment balcony

had bee n forc ed open. I d. Fing erpr ints recove red f rom the sliding g lass door and f rom a beer can found on top of a tra sh can in the kitchen matched the petitioner. I d. Acc ording to a patholog ist, the victim had been stabbed a nd strang led. I d. She had bruises a ll over her b o dy , and seme n was in her mouth and vag ina. I d.

This court af

firmed the pe titioner’s first deg ree preme ditated murder conviction. I d. at *13. Subsequently
, the petitioner filed a petition f or post-conviction relief

, claiming that he re ceive d the ineffe ctive assistanc e of tria l counsel, in pertinent pa rt, bec ause Catilla B radle y g ave une x pecte d and damag ing te stimony

during cross-e x amination; t ri al co u n s el fa i l edt o ch al l en ge t h e S t at e’ s fi n ger p ri nt expert; trial counsel fa iled to obje ct to O ffice r Wins ton’s testimony reg ardingthe victim’s excited utteranc es; trial counsel failed t o ask for a cur ative instruction when O ffice r Winston t estified that the victim looked like a rape victim; and trial counsel failed to se ek an indepe n d en t m ental evaluation for the petitioner. The petitioner also cla imed the trial cour t improperly

instructed the jury on “knowing .”

At the evi d en t i ary

hear ing, the petitioner testified that he curr ently was takingthe

me dic a tio ns El a vil , H a ldo l, C og e nti n, and Th or a zine , w hic h a ff

e c te d h is m e mor

y , but t hat he c ou ld

re me mbe r what ha

pp e ne d at hi s tr ia l. H e state d that he me t wi th h is atto rn e y on ly on e tim e pr ior

to trial and that the me eting lasted about thirty minutes. The petitioner told counsel a bout potential witnesses who had seen the victim arg uing w ith some women befor e the victim’s death. Howeve r, counsel did not talk with the petitioner about th e wi t nesses, did not show him any discovery

that

c ouns e l r e c e ive d fr om the State , ne ve r ta lke d with him a bo ut a the or

y of de fe ns e , n e ve r t a lke d w ith him about the S tate’s c ase or the cha rg es ag ainst him, and never talked with him about the State’s DN A o r f ing e rpr int e vid e nc e . T he pe tit ion e r t old c ouns e l th a t th e vic timha d f a lse ly a c c us e d h im of ra pe on June 30, 1997, beca use the pe titioner was g oing to lea ve the victim for another woma n. He a lso tol d c ouns e l th a t D e bo ra h T hw e a tt w a s ly

inga bo ut s e e ingthe pe tit ion e r b e a t th e vic tim

. Counsel told the petitioner he wa s g oing to hire an investi g ator for the ca se but neve r did. Counsel

never asked the petitioner about a ny phy sical conditions that would have pr evente d the petitioner fr om c lim bin g on to t

he vic tim ’s thi rd -f

loo r b a lc ony . T he pe tit ion e r s tate d th a t hi s k nees wo uld-3-

“swe ll up” with fluid sometimes, which aff ecte d his ability to climb, and that he tol d counsel a bout h i s m e d i c a l h i s t o r

y.
The pe titioner testified that he told counsel he neede d a mental eva luation beca use he w as upset, nervous, a

nd “just wasn’t fe elin g ri gh t .” The petitioner re ceive d a mental e valuation at Midtown Mental Hea lth, and the eva luation concluded he was c ompetent to stand trial. Howe ver, the doctor w ho evaluated him did not ask any questions about his mental health history and did not conduct a ny tests. The petitioner sa id he beg an takin g m en t al health medications in 1982, was diag nosed with schizophrenia in 1985 bec ause he was he aringvoices, a nd tried to commit suicide three o r fo u r t imes. He stated that he was dia g nosed with depre ssion in 1990 and spent time at Charter L akeside Hospital in 1994 and 1996. At the time of the victim’s death, the pe titioner was takin g on ly

on e me dic a tio n, Hal do l. Couns e l ne ve r a sk e d th e pe tit ion e r a bo ut h is m e nta l he a lth history and neve r discussed a

diminis hed ca

pacity defe nse with him.

On cr oss-examination, the petitioner testified that he a nd the victim we re marrie d in 1996,

and he a c kn ow le dg e d that ra

pe and a g g ra vate d a ssa

ult c ha rg e s w e re pe nd inga g a ins t hi m at th e tim e of the victim’s death. He stated that he was hear ing voices “off and on” in Dece mber 1997 but that he wa s n ot he ari ng vo ic e s at the tim e of the mur de r be c a us e he wa s ta

kin g his me dic a tio n. He sa id that voices did not tell him to ki ll the victim and t h at h e h ad n o t been hospitalized since January 1996. He sa id he told counsel he ha d spent time in a mental hospital and wa s tak i ng medication. He sa id t h at h e d i d n ot rea lly understand what was g oing on dur ing his trial a nd that he did not

re me mbe r t

he tr ia l c ourt

a sk inghim

if he kn e w w hat w a s g oin g on

. Th e pe tit ion e r sa id t hat he did not know if counsel c onducted a ny investigation in the case but that t h e d ef ense called two wi tne sse s, Hen ry P art e e and JohnDa nn e r, to t e sti fy

a bo ut s e e ingthe vic timarguin g wi th s ome women on the da

y of her death. H oweve r, Partee and Da nner te stified that they

did not know

any thi nga bo ut t he argume nt. Th e pe tit ion e r s tate d th a t at th e tim e of the vic tim ’s de a th, he wa s st ill living with the victim, which explained why h i s fing erpr ints were in he r apa rtment. Howe ver, he stated that he had not be en in the apar tment f or about one month at the time of the murder and that he wa s maintaining his innoce nce. O n red i re ct ex am ination, the petitioner testified he was using

coca ine and ha

ving ha llucinations in Dece mber 1997. He stated t h at al t h oug h he had be en living with the victim, he did not have ke y s to her apa rtment and sometimes would ente r the a partment by g oing thr oug h the balcony door.

The pe titioner’s trial attorne y testified as an adverse witness for the petitioner t hat he met the petitioner sometime in the 1980' s and repr esente d the petitioner in some “minor mat t er s ” b efore repr esenting the petitioner in this case. The petitioner neve r told trial counsel he was takingHaldol or had me ntal disorders, but counse l reque sted a menta l evaluation bec au s e t h at was his standar d proce dure in fir st deg ree murder case s. The e valuation conc luded the petitioner w as compe tent, and counsel discussed the results of the evaluation with the petitioner. N either the petitioner nor c ounsel

wa s su rp ri se d a bo ut the e va luatio n’ s re su lts
, and c ouns e l did no t re qu e st a se c on d e va luatio n b e c a

us e he saw n o in di cat io n the pe tit ion e r n e e de d o ne . T he pe tit ion e r c omm un ic a te d v e ry

we ll w ith counsel, wa s very

upbeat, a nd was intere sted in his case. Counsel was not awar e the pe titioner had suffe red f rom depre ssion, and the petitioner’s family never told counsel that the petitioner ha d any-4-

mental problems or was addicted to drug s. Counsel also was unaw are the petitioner ha d attempted

s u i c i d e o r h a d b e e nh o s p i t a l i z e d

p r e v i o u s l y.

Couns e l te sti fi e d th a t f

ing e rp ri nt e xpe rt

Jame s H ill te sti fi e d f

or the State a

bo ut f ing e rp ri nts

rec overe d from the victim’s a partment. Counsel did not c halleng e Hill’s e x p er t q u ali fications be c a us e Hi ll h a d te sti fi e d in

oth e r t ri a ls a nd wa s q ua lif ie d to te sti fy in t

his c a se . Co un se l a lso did

no t c ha lle ng e Hi ll’ s q

ua lif ic a tio ns be c a

us e he wa nte d to c ro ss- e xami ne Hi ll a bo ut u n i de nti fi e d p ri nts found on the victim’s sliding g lass door. C ounsel hired Investig ator Clark Chapma n to work on the pe tit ion e r’ s c a se , an d co un se l spok e wi th Par te e and Da

nn e r, wh o the pe tit ion e r cl a ime d c ou ld h e lp his case

. T h e petiti oner a lso claimed that a ma n named James Hende rson killed the victim, but counsel c ould not find Hender son. At first, counsel be lieved the State’s theory of the c ase, i.e ., that t h e p et i t ioner ha d enter ed the victim’s apa rtment by climbing up to her

third-floor ba lcony , was “fa rfe tched.” Howeve r, af

ter c ounsel visited the victim’s a partment, he rea liz ed the State’ s theory was plausible. Counsel neve r aske d the petit ioner if the petitioner had a ny phy sical limitations t hat would have pr evente d him from climbi ng onto the victim’s balcony , and the pe titioner could not g ive an alibi for the time around t h e victim’s death. The petitioner’ s post-conviction attorney showed trial counsel the petitioner’s medical and mental health re cords f rom the 1990' s. Counsel stated that he had never seen the rec ords befor e and acknow ledg ed that they showed the petitioner suffe red f rom arthritis, schizoaffe ctive disorder , depre ssion, and drugand alc ohol addiction.

Trial counsel testified that he did not inter view Catilla Br adley

befor e trial be cause she had ref used to g ive a statement. At trial, counsel cross-e x amined Br adley about whether th e v i ctim’s ke y s w e re in t

he vic tim ’s purs e wh e n B ra dle y pic ke d u p th e purs e fr om t

he pe tit ion e r’ s p arents

. Counsel knew that the petitioner’s pare nts w ere g oing to testify for the de fense that the key s were in the purse whe n they

g ave it to B radle y

. There fore
, counsel thought B radle y also would say

the key s were in the purse. How ever , Br adley testified that the key s were not in the purse and that the petitioner’s father told her the petitioner h ad taken the ke y s. Counsel acknowle dg ed he did not ob je c t to thi s h e ars ay

state me nt.

C o u n s el acknowledg ed that he did not g ive a c opy of discover

y materia ls to the petitioner but said he we nt over the State’ s ev i dence with him. C ounsel said that he met with the pe titioner at the jail “quite a

bit,” that the petitioner adama ntly maintained he was not in the victim’s apa rtment and did not kill the victim, and that the petitioner claimed J ames Hende rson killed the victim. Given the petitioner’s asser

tions, c ounsel did not consider using a diminis hed capa city defe nse. Counsel stated that in a jury -out hea ring , he objec ted to Offic er Winston’s testimony reg ardingthe victim’s statements to him on J une 30 as p ri o r b ad ac t evidence and hea rsay . Howeve r, the trial c ourt

overr uled the objec tion. During Offic er W inston’s testimony
, counsel also objected when Of fice r Wins ton testified that the victim looked like a ra pe victim. The trial c ourt sustained that objec tion, but counsel did not move for a mistrial or ask for a

curative instruction.

On cr oss-examination, trial counsel testified that at the time o f the evidentiar y hear ing, he ha d be e np r a c t i c i n g l aw i nT e n n e s s e e f o r a l m o s tt h i rt y
- e i g h ty e ar s an d h a d t a k e na b o u ttw e nty

mur de r c a se s to tr ia l. H e stat ed th at he me t w iththe pe tit ion e r i n ja il a bo ut t e n ti me s a

nd that hi s-5-

g oal was to find James Hende rson. Counsel stated that the trial c ourt instructed the j u ry on

“ knowi ng” fo r s e c on d d e g re e mur de r, no t f ir st d e g re e mur de r. Couns e l w a s su rp ri se d b y

Ca til la Br adley ’s answe r to his question about the key s in the purse and her statement that the petitioner’s fathe r told her the pe titioner took the key s. Howeve r, he did not objec t to her hea rsay testimony

“ sin c e I ’m

the on e wh o ask e d the qu e sti on .” Whe n th e tr ia l c ourt su sta ine d c ouns e l’ s o bje c tio n to Offic er Winston’s stating the vic tim looked like a rape victim, counsel did not ask for a curative instruction beca

use he did not wa

nt the j ury to hear for a second time that the vic tim had been r aped. Counsel did not believe fa iling to ask for a curative instruction a ffe cted the jury ’s verdic t. Counsel discussed the re sult of the petit ioner’s mental evaluation with the petit ioner, and the petitioner ne ver indicated he believed the result was wrong . The pe titioner never told counsel he wa s hear ing voic es or havingnightmar es, and c ounsel said he ha d no basis to ask for a second me ntal evaluation.

Assistant District Attorney Gene ral James Wax testified for the State that he prose cuted the petitioner’s c ase. The State had an ope n-discover y policy with the defe nse, and Wax met with t he petitioner’s trial attorney

about the ca se. The petitioner’s attorney filed motions, including a motion for a mental eva luation. Severa l jury -out hea ring s were h el d i n t h e ca se, and Wax believed trial

c ouns e l wa s a ze a lou s a dv oc a te fo r t he pe tit ion e r. On

c ro ss- e xami natio n, Wax te sti fi e d th a t he did not present DN A evidenc e duringthe trial bec ause he did not fe el t h e State nee ded it. He acknow ledg ed tha t ac co rd ing to DN A testing done on seme n rec overe d from the victim, the odds of the seme n coming from anothe r Afr ican- Americ an unre lated to t he petitioner w ere 1 in 2,400. He a lso acknowle dg ed that the r eport c oncluded the pe titioner was a match.

I n a wr itten order, th e p o s t -c o n viction court held that the pe titioner did not rece ive the ine ff e c tive a ssi sta

nc e of c ouns e l. R e g ard ingCa til la B ra dle y ’s surp ri se te sti mony , th e po stconviction cour

t held that the petitioner failed to de monstrate prejudice beca use the State’s the ory of the c a se wa s th a t the pe tit ion e r e nte re d th e vic tim ’s a pa rtme nt v ia

the ba lc ony

and , th e re fo re , d id not depend on the pe titioner’s having the key s. As t o counsel’s f ailure to c halleng e James Hill’s expert qualifications, the c ourt noted that counsel wanted to c ross-examine Hill about unidentified fing erpr ints found at the crime scene and held that c ounsel’s “tre atment of the e x pert fa lls withi n .

. . tr ia l strate g y .” As to co un se l’ s f a ilure to o bje c t to Of

fi c e r Wi ns ton ’s he ars ay

te sti mony , th e po stconviction cour

t noted that counsel had objected to the testimony and that the pe titioner had ra ised thi s is su e on dir e c t a

pp e a l. F ur

the rm or e , the po st- c on vic tio n c ourt no te d th a t c ouns e l te sti fi e d h e did not ask for a

curative instruction beca use he did not want the jury to rehe ar a

bout the victim’s rape

a lle g a tio n a

nd c on c lud e d th a t th is w a s a

le g iti mate tr ia l ta c tic . Re g ard ing c ouns e l’ s fa ilure to r e qu e st

a se c on d me nta l e xami natio n fo r the pe tit ion e r or qu e sti on him a bo ut his me nta l hi sto ry , th e po stconviction cour

t concluded that the petitioner neve r told counsel he ha d a mental pr oblem and that counsel ha d no rea son to request a nother e valuation. Fina lly , reg ardingthe petitioner’s claim that the trial cour

t improperly

instructed the jury

on the def

inition of “knowin g, ” t h e post-convic tion court a ccr edited counse l’s testimony that the trial cour

t ga ve the instruction a s part of the second deg ree murder instruc tion, not first de g ree murder. T he post-convic tion court denied the petition for po st- c on vic tio n r e lie f, and the pe tit ion e r a

pp e a ls.

II. Ana lys is-6-

To be succe ssful in a claim for post-conviction relief
, the petitioner must prove all fa ct u al alleg ations contained in his post-conviction petition by clea r and convincing evidenc e. See T enn. Code Ann. § 40-30-110( f). “‘Clea r and c onvincing evidenc e mea ns evidenc e in which ther e is no serious or substan t i al d o u b t about the cor rec tness of the c onclusions drawn f rom the evide nce.’ ” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodge s v. S.C. Toof & Co., 833 S.W .2d 896, 901 n.2 (Tenn. 1992)). I ssues reg arding the credibility of witnesses, the w eig ht and value to be acc orded their testimony
, and the fac tual questions r aised by the evidenc e adduc ed at tria l

are to be re solved by

the post-conviction cour

t as the trier

of fac t. See He nley

v. State, 960 S.W .2d 572, 579 (Tenn. 1997)

. There fore
, we aff ord the post-conviction court’s finding s of fac t the weig ht of a jury verdic t, with such finding s being conclusive on a ppeal a bsent a showingthat the evidenc e in the rec ord pre ponderates ag ainst those finding s. I d. at 578.

When a petitioner see ks post-conviction relief on the basis of inef

fec t i v e assistance of counsel, “ the petitioner be ars the bur den of pr oving both that c ounsel’s perf ormanc e was de ficient and that the de ficienc y

prejudice d the def

ense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (c iti ngStr ic kla

nd v. Was hin g ton , 4 66 U. S. 6 68 , 6 87 , 1 04 S. Ct. 205 2, 20 64 (1 98 4) ). To e sta bli sh d ef i ci en tp er fo rm an ce , t h e pe t i t i o n er m u s t s h o w t h at co u n s el ’s p er fo rm an ce wa s b el o w “ t h e r an ge of compe tence demande d of attorne y s in criminal case s.” B axter v. Rose, 523 S.W

. 2 d 930, 936 (T e nn . 1 97 5) . T o e sta

bli shpr e jud ic e , th e pe tit ion e r m

us t show that “th e re is a r e a so na ble pr ob a bil ity that, but fo r co un se l’ s unp ro fe ssi on a l er ro rs , the re su lt of

the pr oc e e din g wo uld

have be e n d if

fe re nt. A re asonable probability is a p ro b ability

sufficie nt to undermine conf idence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

[b] eca use a petitioner must establish both prong s of the test, a f ailure to p ro ve e ith e r d e fi c ie nc y or pr e jud ic e pr ov ide s a

su ff ic ie nt b a sis to deny relief on the ineff

ective assistance claim. Indeed, a court ne ed

no t a dd re ss the com po ne nts in a ny pa rt ic ula r o rd e r o r e ve n a dd

re ss both if the [petit i o n er ] m akes a n insufficient showingof one component.
Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On appea l, the petitioner first contends that he rec eived the ine ffe ctive assistanc e of c ounsel beca use trial counsel failed to inve stigate his me ntal health problems, which would have suppor ted

a dim ini sh e d c a

pa c ity argume nt. He c on te nd s th at a dimin ish e d ca pa c ity c la im w a s w arr ante d in thi s
case beca use fing erpr int evidence place d the petit ioner in the victim’s apa rtment around the time of her de ath and DN A ana ly sis on sperm found in the victim was consistent with the petitioner’ s DNA profile. How ever , counsel testified that the petit ioner adamantly denied be ing in the a partment or killing the victim. We note that the petitioner also maintained at the hea ring that he wa s not in the apar tment and did not kill the vi ctim. Given the petitioner’s denial of any participation in the crime,

we a g ree that counsel ha d no rea son to pursue diminished capa city

. Moreove r, counsel testified that neither the petitioner nor his f amily ever indicated the pe titioner had mental proble ms. The petitioner testified that he wa s taking his medication at t h e t i m e of the victim’s death and w as not hea ring-7-

vo ic e s, and the re su lts of the pe tit ion e r’ s men ta l eva luatio n sho we d he wa s com pe te nt to s tand

tr ia l. Th e pe tit ion e r h a s f

a ile d to sh owthat c ouns e l r e nd e re d d e fi c ie nt p e rf or manc e by fa ili ng to r e qu e st

a s e c o n d e v a l u a t i o no r

t h a th e w a s p r e

j u d i c e d b y an y d e f

i c i e n c y.

Ne xt, th e pe tit ion e r c on te nd s th a t tria l cou ns e l r e nd e re d d e fi c ie nt p e rf or manc e wh ile c ro ssexamining Catilla Br adley , resulting in Bra dley ’s s urprise testimony that the vi ctim’s key s wer e not in the victim’s purse and that the petit ioner’s father told her the petitioner had taken the key s. He also contends that c ounsel should have take n curative measure s for B radle y ’s hea rsay testimony about what the pe titioner’s fathe r told her. How ever , counsel testified that he aske d Br adley if the key s wer e in the purse beca use he believe d Br adley

was g oing to sa

y y es and that he base d his belief on the fa ct that t he petitioner’ s pare nts were g oing to testify that the key s were in the purse whe n they g a ve it to he r. Our r e vie w o f t he tr ia l tr ans c ri pt, wh ic h th e pe tit ion e r h a s in c lud e d in the a pp e llate

re c or d, c on fi rm s th a t th e pe tit ion e r’ s f a the r t e sti fi e d f

or the pe tit ion e r t

hat the vic tim ’s ke y s w e re in the purse w hen he g ave it to Br adley

. Moreove r, trial counsel testified that Br adley ref used to g ive a stateme nt before trial. We conc l u d e that the petitioner ha s failed to show c ounsel rende red defic ient perf

ormanc e while cross-e x amining Br adley

. Fur thermore
, as the trial court not ed
, t he pe tit ion e r’ s h a vin g the vic tim ’s ke y s wa s no t a c ru c ia l fa c t in thi s c a se

. Th e re fo re , th e pe tit ion e r a lso ha s f a ile d to sh owtha

t he wa s p re

jud ic e d b y

B ra dle y ’s te sti mony

or co un sel ’s fa ilure to r e qu e st a

curative instruction.

Reg ardingthe petitioner’s c laim that counsel wa s ineffe ctive for failing to c halleng e James Hi ll’ s e xp e rtqu a l i f

i c a t i o n s , c o u n s e l t e s t i f

i e d t h a th e w an t e d

H i l l t o t e s t i f

y i no r d e r f o r c o u n s e l to

c ro ss- e xami ne him

a bo ut u nid e nti fi e d p ri nts fo un d on the vic tim ’s sli din g g la ss do or . A s th e po stconviction cour

t properly conclude d, this was counsel’s tria l strateg y , and this court will not secondg uess that strateg y . See Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998).

The pe titioner contends that counse l was ineff ective for fa iling to object to Of fice r Winston’s hear say testimony

about what the vic tim tol d him on J une 30, 1997. Our review of the trial transc ript

re ve a ls that th e State a sse rt e d in a jur y -o ut he ari ng that Of

fi c e r Wi ns ton ’s te sti mony wa s a dmi ssi ble under Te nnessee Rule of Evidenc e 803(2) , the excited utter ance exception to the hear say rule. The defe nse ar g ued that the testimony was inadmiss ible under Tennessee Rule of Evidence 404(b) and was hig hly

pre j u d i ci al
, b u t the trial court r uled the testimony

was a dmissibl e. On a

ppeal, the petitioner contends that counsel should ha ve argued that the testimony did not fall under the e x cited ut tera nce e x ception only

beca use the victim made the damag ing statements to Offic er Winston twelve hour s after the alleg ed rape

. Howeve r, the leng th of time betwee n a startling event a nd the statement does not automatica lly prec lude the stateme nt’s being admissible as an e x cited uttera nce. See, e.g ., State v. Stout, 46 S .W

. 3 d 6 8 9 (Tenn. 2001) (holding that decla rant’s state ments made twelve hour s after

the event wer e admissible as e x cited uttera nces) . There fore , we c onclude that the petitioner has f

ailed to show that counse l rende red deficient perfor mance mere ly

by failing to argue that th e state me nts we re too re mot e in t ime fr om t he inc ide nt t o b e e xcit e d u tte ra nc e s.

As to the petitioner’s contention that counsel was ineffe ctive for failing to reque st a curative instruct io n w h e n O f

f ic e r Wi n s to n te s ti f

ie d th a t th e v ic ti m “ lo o k e d li k e s o me o n e w h o h a d beenT h e j u r y i n s t r u ct i on s on t h e el eme n t s of f i r s t de g r ee mu r der a n d a l l l es s er i n cl u ded o f f enses w er e n ot 1

t r an s cr i bed.

-8- rape d,” our r eview of

the trial transc ript reve als that counsel immediately objected a

nd that the trial court instructe d Offic er Wins ton not to g ive his opinion. At the evidentiar y hear ing, c ounsel testified that he did not reque st a cura tive instruction beca

use he did not w ant the jury to hear about the ra

pe
a lle g a tio n a g a in, wh ic h g oe s to counse l’ s tr ia l st ra te g y . In a

ny e ve nt, the pe tit ion e r h a s f a ile d to demonstrate pr ejudice.

As his last ine ffe ctive assistance of counsel argument, the petitioner contends that c ounsel “never fu l l y

investigated the ca se [and] never soug ht any expert testimony

to contradic t the

e vid e nc e .” We not e that the pe tit ion e r did no t ra ise thi s spe c if ic argume nt i n h is p e tit ion fo r p os tconviction re lief and that the post-conviction cour t d i d n o t addre ss it in t he orde r deny ing the petition. I n any event, the post-c onviction court obviously acc redited tria l counsel’s testimony over that of the pe tit ion e r. Couns e l te sti fi e d th a t he m e t w iththe pe tit ion e r a bo ut t e n ti me s b e fo re tr ia l, dis c us se d th e State ’s case wi th him , h ir e d a n inve sti g a tor , v isi te d th e c ri me sc e ne , ta lke d w ith defe nse witnesses, a

nd based the theory

of def ense on the petitioner’s a damant cla im that he did not kill th e v i ctim. The petitioner ha s failed to show that he rec eived the ine ffe ctive assistanc e of

c ouns e l.

Finally , the petitioner c ontends that the trial cour t improperly instructed the jury on all three conduct e lements when it def ined “knowing,” citing State v. Pag e, 81 S.W .3d 781 (Tenn. Crim. App. 2002). Initially , we note that the failure to raise this issue on direc t appea l results in a waive r of the issue in a post-conviction proc eeding. S ee B ronzo Gosnell, J r. v. State, No. E2004-02654-CCA-R3-PC, 2005 Tenn. Crim. App. L EXI S 897, at *14 (Knoxvi lle, Aug . 19, 2005), perm. to appe al denied, ( Tenn. 2 0 0 5 ). I n any event, c ounsel testified that the trial c ourt define d

“ kn ow ing ” duri ngthe jur

y ’s c ha rg e on the le sse r inc lud e d of fe ns e of se c on d de g re e mur de r, no t f ir st de g re e mur de r. Th e re fo re , the jur y ’s fi rs t deg re e mur de r ve rd ic t re nd e rs thi s cla im moo t. See State 1 v. Paul Graha

m Manning , No. M2002-00547-CCA-R3-CD, 2003 Te nn. Crim. App. L EXI S 117, at *23 (Na shville, Feb. 14, 2003)

. III. Conclusi on

Ba sed upon the re cord a

nd the parties’ briefs, we affirm t he judgment of the post-conviction

c ourt

.

___________________________________ NORMA McGEE OGL E, J UDGE