# FILED
October 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER SESSION, 1999

JOHNNY MOFFITT, * * No. 02C01-9904-CC-00142 Appellant, * * HENDERSON COUNTY vs. * * Hon. Julian P. Guinn, Judge STATE OF TENN ESSEE, * * (Post-Conviction) Appellee. *
For the Appellant : For the Appellee : Lloyd R. Tatum Paul G. Summers Tatum & Weinman Attorney General and Repor ter 124 E. Main Street P. O. Box 293 J. Ross Dyer Henderson, TN 38340 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 James G. (Jerry) Wo

odall District Attorney General Al Earls Asst. District Attor

ney General Lowell Thomas State Office Buildi ng Jackson, TN 38302-2825

OPINION FILED: REVERSED AND REMAND ED
David G. Hay

es, Judge1 The appellant was senten ced to life plus five years for fir st degree murd er and six years for shooti ng into an occup ied dwell ing.

2 See State v. Jo hnny Mo ffitt , No. 7 (T enn. Cr im. Ap p. at Jack son, De c. 5, 1990 ), perm . to appeal denie d , (Tenn. Mar. 4, 1991).

3 Specifical ly, the post-convicti on court di smissed the peti tion fi nding that the grounds ass erted by the appe llant h ad be en w aived beca use he fa iled to includ e the grou nds in a pr ior su it for a writ of

habeas corpus

in the Uni ted States Di strict Court for t he Western District of Tennessee, which was fi led on Apri l 11, 1991.Additi onally , the post-convict ion court determined that, if the petition was considered on its m erits, the appellant would not be entitled to rel ief.

4 The p revious p anel of this c ourt foun d that “the re cord es tablishes that the [ap pellant] was denied his constitu tionalright t o the effect ive assist ance of counsel by

counsel’s st

atement [that] an alibi defense had not been fairly raised by the evidence.” See Johnn y Moffitt v. State , No. 02C 01-960 9-CC -00304 (Tenn . Crim. A pp. at Jac kson , Sept. 23, 1 997), perm. to appeal denied , (Tenn. Sept. 14, 1998). 2 OPINION
This appeal presents the post-c onviction claim of ineffectiv e assistance of counsel. In 1989, a Henderson C ounty jury found the appell ant, Johnny Moffitt, guilty of first de gree murder and s hooting into a dwe lling. 1 His convictions an d sentences were affirmed by this court on direct appeal. 2 In 1993, the appellant filed the instant post-convic

tion petition alleging

that “the failure of the trial court to instruct on the defense of alibi constituted a de nial of federal and state due process and was the result of ineffective assistance of counse l.” The post-conviction court denied r elief. 3 On appeal, a panel of this court found trial counsel’s perf ormance deficient and remanded to the post-conv iction court for a determinati on of prejudice. 4 On remand, the post-convi ction court found no prejudice. This appeal presents the limited issue of whether the appellant was prejudiced by trial counsel’s deficient performance.

After review, we find prejudice. The appellant’s convictions and sentences are reversed and vacated and this case is remanded to the trial court for a new trial.

Factual Background5 Prior to trial , defense counselresponded to t he State’ s request to b e advised of the appellan t’s intention to u se the de fense o f alibi. Specifica lly, the appellant’s n otice, purs uant to Tenn. R. Crim. P. 12. 1, provi ded that t he defense would cal l Richard Baxt er in esta blishi ng an alibi defense. 3 The evidence presented by the State during the appellant’s trial was entirely circumstantial. See Johnny Moffitt v. State , No. 02C01-9609-CC-00304. During the State’s case-in-chief, the proof linking the appellant to the death of his ex-wife’s brother consisted of (1) the appellant’s previous threats to kill the victim; (2) a history of discord between the appellant and his former wife and her famil y; (3) two empty shell cas ings foun d on the a ppellan t’s prope rty were det ermined by experts t o have been fired from the same weapon as shel l casings found at the crime scene; (4) the testimony of the victim’ s neighbor, Ruth Rhodes, that she had observed a maroon vehicle at the victim’s residence on the date of the mur der and evidence that the appellant owned a maroon veh icle; and (5) the vic tim was killed as a r

esult of gunshot wo unds fired fro m a 9mm weapon and the appell ant owned a 9 mm weapon. See Johnny Moffitt v. State , No. 02C01-9609-CC-00304; State v. Johnny Moffitt , No. 7 (Tenn. Crim. App. at J ackson, Dec. 5, 1990), perm. to appeal denied , (Tenn. Mar. 4, 1991). Notw ithstanding this proof, the St ate also presented testimony which rev

ealed (1) Ruth Rhodes testi fied that she had known the appellant his entire life and that the man driving the mar oon car was not the appellant; and (2) exper t testimony revealed that the appellant’s 9mm weapon w as not the weapon that fired the twelve shell casings found at the crime scene. More importantly, as noted by this court in its ini

tial post-convictio n review relativ e to the issue of alibi: [a] state’s witness, Richard Baxter gave evidence which would support a defense of alibi .[ 5 ] Baxter testified that he w as with the [appellant] from 6:45 a.m. until ‘around lunchtime’ on the date of the murder. He claimed he went to the [appell ant’s] residence where he and the [appellant] ate breakfast, talked, and dran k alcoholic beverages before parting company at approx imately 1:00 p.m. Baxter subsequently had a confrontation with John Threadg ill, who was oper ating a backhoe. The backhoe was blocking the roadway. Threadgi ll and Baxter had a heated argument regarding the location of the backhoe. This argument led to a fight. Threadg ill estimated the confrontation and subsequent fi ght occurr ed between 1 :00 pm and 2:00 p.m. The medical examiner testified a s a prosecution witness . He opined6 Altho ugh we ne ed no t reac h this ma tter, w e ack now ledge conc ern o ver th e trial c ourt’s comments, “you are not t o consider an al ibi. ” The court’ s comments come perilously cl ose, if no t crossin g the line, to un constitution al com men ts upon the eviden ce. See Tenn. Const. art VI, § 9. Additiona lly, there is conc ern that the trial court’s co mm ents to the jury and its de termin ation not to provide a n instructio n on alibi unc onstitutiona lly abridged the appellant’s right to pres ent a defens e. Cf

. State v. Brian J. Hunter , No. 02C01-9708-CR-00309 ( Tenn. Crim. App. at

Jackson, Aug. 14, 1998) (Hayes, J., dissenting).

7 The proceedings i nvolved different j udges at the t rial a nd post-convi ction l evels. 4 the victim died between 11:00 a.m. and 1:00 p.m. He related the death could n ot have occurred after 1 :00 p.m. Johnny Moffitt v. State , No. 02C01-9609-CC-00304 ( emphasis added). The proof also revealed that the w ounds resulting in death w ere inflicted up to thirty minutes prior to the victim’s death. Additionally, M r. Rhodes testified that he hear d gunshots between 11:30 and 12:30 on the date of the homi cide. The proof established that the driving time from the appellant’s residence to the crime scene (the victim’s residence) is approximately thirteen to fourteen minutes.
At the conclusion of closing arguments, [t]he trial court was

prepared to instruct the j ury on the defense of alibi. The State of Tennessee objecte d to this instruction being included in the charge. The assistant district attorney general argued the defense of alibi had [not been presented by the appellant]. Defense counsel agreed the alibi defense had not [been present ed.] The trial court agreed with counsel. The court did not instruct the jury on the defense of alibi. Johnny Moffitt v. State , No. 02C01-9609-CC-00304. Specifically, the trial court instructed the jury Ladies and gentlemen, I made some mentio n of alibi. That is not being claimed as a defense in this case and you are not to con sider an alibi.[ 6 ] Upon remand, the post-convi ction court found that the appellant was not prejudiced by counsel’s deficient performance in acquiescing in the trial court’s decision not to instruct the jury on the defense of alibi. 7 In its findings, the court observed that only one out of a total of twenty-three witnesses testified in any manner that could be construed as establishing the defendant’s pr esence at any particular place at any

particular time. Indeed, th e court stated: [t]here was insigni

ficant evidence, if indeed any evidence, of the8 In post-conv icti on proceedings f iled prior to the enactment of the 1995 Post-Convict ion Proc edu re Ac t, the a ppe llant m ust p rove the a llegat ions cont ained in his p etition by a prepon deranc e of the ev idence. State v. Kerley , 820 S.W .2d 753, 7 55 (Te nn. Crim . App.), pe rm. to appeal deni ed , (Tenn .1991); Oliphan t v. State , 806 S.W .2d 215, 2 18 (Te nn. Crim . App.), pe rm. to appeal deni ed , (Tenn .1991). 5 defendant’s whereabouts at times and places vis-a-v is distances that would have allow

ed one to establish either hi s presence or absence at the scene. A charge on ali bi would have serv ed no purpose other than to point out the absence of such ev idence and to obfuscate the defense based upon the weakness of the Stat e’s circumstantial evidence. On appea l, we are bo und by the post-con viction co urt's fin dings of f acts unle ss we conclude that the evidence i n the record preponderates against those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to appeal denied , (Tenn.1990). The findings of the post -conviction court are directly opposed to this court’s findings that the pr oof sufficiently raised the is sue of alibi. Moreover,the lower court’s recitation of the proof is not supported by the record. Thus, w e are not bound by these findings.

Ineffective A

ssistance of Counsel The Sixth Amendment right to c ounsel requires not only that a person accused of a crime have the assistance of counsel f or his or her defense, but also that such assistance be effectiv e. Effective assistance is not flawless, perfect, or error free assistance, nor assistance which in hindsight is deemed ineff ective, but is, rather, competent representati on, that is, representation that is within the range of competence demanded of attorneys in cr iminal cases generally. In essence, effective assistance of counsel i s not equivalent to a su ccessful defense of the accused.

This court reviews

a claim of ineffective assistanc e of counsel under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn.1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (198 4). The appellant has the burden to prove, by a preponderanc e of the evidence, 8 that (1) the attorney's performance was6

deficient, and (2) the deficient perform ance resulted in prejudice to the defendant so as to deprive him of a fair tr ial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn.1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn.1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn.1990).
Again, a previous panel of this court has already determined that counsel’s acquiescence in the tri al court’s decision to w ithhold from the jury the i nstruction on the defense of alibi and counsel’s subsequen t failure to raise this issue on direct appeal amounted to deficient performance. In doing so, this court c oncluded that the evidence of State’s witness Richard Baxter “would support a defense of alibi.” See Johnny Moffitt v. State , No. 02C01-9609-CC-00304. The first prong of Strickland has been satisfied. Thus, the sole issue before this court is whether the post-conviction court

erred by finding that the appellant was not prejudi ced by counsel’s deficient performance.
The Prejudice Prong of Strickland The demonstration of prejudice to the de fense necessary for success on a claim of ineffective assistance of counsel requires a show ing that the deficient performance of counsel deprived the def endant of a fair trial, a trial whose result is reliable. See Tidwell v. State , 922 S.W.2d 497, 502 (Tenn. 1996) (citation omitted)

. The essence of the claim is that counsel’s unprof essional error rendered the result of the trial suspect or unrel iable. See Porterfield v. State , 897 S.W.2d 672, 677 (Tenn. 1995). Unreliabili ty or unfairness does not r esult if the ineffectiveness of counsel does not deprive th e defendant of any substantive or procedural right to which the law entitles him. Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993). In other words, absent some effect of counsel’s deficient performance upon the reliability of the trial process, the Six

th Amendment right to assistan ce of counsel is generally

not violated.7 We note that to focus on the mere outcome determination, w ithout attention to whether the result of the proceeding was fundamentally unfa ir or reliable, is misguided. See Lockhart v. Fretwell , 506 U.S. at 369, 113 S.Ct. at 842.Indeed, although the “premise of our adv ersary system of cri minal justice . . . promote[s ] the ultimate objective that the guilty be convi cted and the innocent go free,” the right to effective assistance of counsel i s not conditioned upon actual in nocence. Kimmelman v. Morris , 477 U.S. 365, 379-380, 106 S.Ct. 2574, 2585 (1986) (internal citations omitted). As st ated by the Supreme Court in Strickland v. Washington , “The purpose of the Sixth Amendment g uarantee of counsel is to ensure that a defendant has the assistance necessar y to justify relian ce on the outcome of the proceeding.” Strickland v. Washington , 466 U.S. at 691-692, 104 S.Ct.2052, 2066- 2067. Indeed, in order to succeed in showing that counsel’s deficient pe rformance resulted in prejudice, the defendant must sho w that the deficient performance actually had an advers e effect on the defense.
In making a determination of prej udice, the reviewi ng court presumes, that the jury acted accordi ng to the law. See generally Lockhart v. Fretwell , 506 U.S. at 370, 113 S.Ct. at 843. Additionally, an assessment of the likelihood of a result more favorab le to the d efenda nt must e xclude the possibili ty of arbi trarines s, whimsy, caprice, nullification and the like. Strickland v. Washington , 466 U.S. at 695, 104 S.Ct. at 2068. The assessment of prej udice should proceed on the pres umption that the decision maker is r easonably, conscientiousl y, and impartially applying the standards that govern th e decision. Id. at 695, 104 S.Ct. at 2068. It should not depend on the idiosyncraci es of the particular decisi on maker, such as unusual propensities toward har shness or leniency. Id. at 695, 104 S.Ct. at 2068. W e must also consider the totality of the evidence before the judge o r the jury as some of the factual findings will have been unaffected by the error s and factual findings that were affected will hav

e been affected in different ways. Id. at 695, 104 S.Ct. at 2069. So me errors will have had a pervasive effect on the inf erences t o be drawn8

from the evidence, altering the entire evidentiary

picture and some will

have had an isolated trivial effect. Id. at 695-696, 104 S.Ct. at 2069. M oreover, a verdict or conclusion only weak

ly supported by the r

ecord is more likely

to have been affected by errors than one with overwhelming record support. Id. at 696, 104 S.Ct. at 2069. Taking the unaffected findings as a g iven, and taking due acc ount of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely

have been different absent the error s. Id. at 696, 104 S.Ct. at 2069.
Thus, we turn to the determinative question of whether there is a reasonable probability that, absent trial counsel’s errors relating to the proof of alibi, the f act finder would have had a reasonable doubt respecting the appellan t’s guilt. Where the proof fairly raises the issue of alibi, and the proof is supp orted by credible evidence, the trial cour t is required to gi

ve the instruction of ali bi whether requested or not. Christian v. State , 555 S.W.2d 863, 864 (Tenn. 1977); Manning v. State , 500 S.W.2d 913 (Te nn. 1973). Indeed, the failure to so instruct the jury is reversible
error. Poe v. State , 370 S.W.2d 488, 490- 491 (Tenn. 1963). A previ ous panel of this court has already

determined that the proof in the rec ord fairly raised the issue of alibi. See Johnny Moffitt v. State , No. 02C01-9609-CC-00304. We agree that the issue was fairly r

aised by the proof and it w as for the jury to eval uate the credibility of the witnesses and decide this factual issue. In order to properly perform its duty of applying the law to

the facts, the jury must be i nstructed on the law appli cable to all factual issues raised by the proof, including the defense of alibi. Thus, the appellant was entitled to an instruction on alibi to aid the jury in prope rly evaluating the proof. Moreover, our supreme court has held that, w hen an alibi is supported by the proof, the instruction is fundamental to the defense and essential to a fair trial. Poe , 370 S.W.2d at 491.9 Although the defense did not introduce any proof of alibi and trial counsel did not specifically arg ue an “alibi defense,” the reco rd reflects that counsel’s closing argument focused upon the State’s fail ure to meet its burden of proof and the discrepancies in the time frame of the crimes. Specifically, defense counsel consistently reminded the jury that “the puzzle won’t fit,” “the time factor here won’t fit.” In doing so, counsel made references to the testim ony of Ruth Rhodes, Dr. Ramer, and, most importantly , Richard Baxter. It cannot be ignored that the appellant’s defense relied pri marily upon the “time factor,” or, in other words, an alibi defense. Again, by failing to pursue an instruction on this matter, trial counsel essentially nullified his closing argument.
Considering the proof before the jury in the context of the absent alibi instruction, we can r

each no other conclusion than findi ng that the appellant was prejudiced by counsel’s deficient performance. In the present case, the jury wa s precluded from considering the alibi evidence. W e cannot conclude that the result of the appellant’s trial w as reliable or that had an al ibi instruction been prov ided the outcome would not have been di fferent. Accordingly, the appellant’s conviction

must be reversed and a new trial ordered. This case is remanded to the trial court for proceedings consistent with this opinion.10 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________________ JOE G. RILEY, Judge

________________________________________ THOMAS T. W OODALL, Judge