### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs A

pril 25, 2001


### RICHARD LEE FRANKLIN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Cumberland County

No. 3354 Leon C. Burns, Jr., Judge

No. E2000- 01398-CCA- R3-PC May 30, 2001

In his original trial, the Petitioner, Richard Lee Franklin, was con vic ted of f irs t de gree mur der b y a Cumberland County jury for the death of David Kirkland. Due to procedural errors at Petitioner’s first trial, the trial court granted Petitioner’s motion for a new trial. Petitioner was retried and the jury convicted him of second degree murder. The trial court sentenced the Petitioner to

twenty-two yearsof incarceration. Stat e v. Ric hard Lee Fr anklin , No. 03C01 -9706-CR- 00219, 199 8 WL 458580, at *1, Cumberland County (Tenn. Crim. App., Knoxville, August 10, 1998), perm. to appeal denied (Tenn. 1999). Subsequently, Petitioner filed a petition for post-conviction relief which was denied. In this appeal as of right, he asserts that the post-conviction court erred in finding his trial counsel’s performance to be effective. Specifical ly, the app ellant contends that trial counsel was ineffective for (1) failing to investigate and present witnesses that would support a

defense of selfdefense; (2) for failing to discuss trial strategies and defenses with the Petitioner; and (3) for failing to request an instr

uction on self-de

fense. After re

view, we affirm

the judgment of th

e trial court. Tenn. R. App. P. 3 Appeal As Of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R W ADE , P.J., and J ERRY L. S MITH , J., joined. Allison M. Barker, Crossville, Tennessee, for the appellant, Richard Lee Fr anklin.

Paul G. Summers, Attorney General and Reporter; La

ura E. McMullen, A

ssistant Attorney

General; William E. G ibs on, Dis tri ct A tto rney G ene ral; Anthony J. Craighead, Assistant District Attorney General; and Ben Fann, Assistant District Attorney Genera l, for the appellee, State of Tennessee.2 OPINION In the direct appeal of Petitioner’s convictions, this Cou

rt summarized the f

acts as follows: During an evening in No

vember 1992, Dav

id Kirkland, the vic

tim, and his girlfriend, Michelle Burne tte, went to Bob’s

Bar in Cumb erland County. Once inside, they then began

playing pool against the

appellant and his wife. The bet was for a beer. When Michelle failed to cal l a pocket on her first shot, the appellant’s wife swore at her. As the game continued, the appellant’s wife continued to swear at the victim and his girlfriend unde r her breath. Af

ter losing the g

ame, the victim
an d his gir

lfriend went to the bar to buy beers for the appellant and his wife. The appellant 's wife approached them and said, “F--- you.” The victim then responded, “You can take those ‘f--- yous’ and stick them up your ass!” The appellant heard the victim’s comment and beg an to approach th

e victim and Michelle who were moving toward the front door. Larry Walker, a

friend of the victim’s, saw the appellant moving toward the victim with acue stick. Walker conf ronted the a ppellant a nd the two b egan fightin g. Willa rd Kennedy , the bartender, pulled Walker off the appellant. The appellant yelled at his wife to get his gun and then ran outside of the bar. The bartender locked the front do or. Th e appellant went to his vehicle, ripped open the glove compartment, and got his weapon.

I n the m eantime, the bar

tender broke up t

he fight and ord

ered every

one to leave the bar. As the bartender opened the front door, the appellant pushed his way inside and asked, “Where did the son of a bitch go?” The victim, who was beside the door, said, “Here I am.” The appellant reached ar ound Kennedy, lifted his gun, and shot the victim in the che st. The victi

m fe ll to the floor and w as dead within moments. According to the appellant’s testi mony, the victim started the verbal confrontation. The appellant testified that he went to get his gun because his wife
was being beaten. The appellant testified that the gun discharged accidentally when the victim struck

the appellant with a cue stick. He was vigorously cross-examined by the state . The jury a

ccredited the te

stimony of the

state’s witnesse

s.
State v. Franklin

, 1998 WL 458580, at *1.

POST-CONVICTION HEARING

The pos t-c onv ict ion cou rt c ond uct ed an evi den tia ry hearing, a fter which it found that the Petitioner w as no t denied the effective assistance of counsel at trial, and it denied the petition for3

post-conviction relief. The Petitioner, his counsel from both trials, and Sheri Trisdale testified at the post-conv iction hea ring.

Mike Raulston, Petitioner’s lead counsel at his second trial, testified that he was assisted by Larry Warner, counsel from Petitioner’s first trial. Raulston stated that he and Warner interviewed the witnesses from Cumberland County, but that he also had the benefit of the transcript from the first trial which contained much of the witnesses’ te

stimonies. He could

not recall how many times he had met with the Petitioner to discuss the case, but did recall discussing the trial stra tegy for the secondtrial with Petitioner. Raulston testified t hat prior to trial h

e had discussed wi

th the Petitioner the possibility of raising self-defense and “defense of others” as de fenses. Raulston im plied that, since the trial judge at Petitioner’s first trialhad declined to charge these defenses, he believed he would get the same rul

ing at the secon

d trial, and there

fore did not pursue

these defense th

eories. He explained that the trial court had based its prior ruling on a showing in the proof that the fighting inside the bar had stopped by the time the Petitioner had re-entered the bar. Counsel further testified that self-defense was also not possible, be cause the Petitioner’s testimony was that he had not seen the cue stick, with which he alleged the victim hit him.

Counsel stated that he a lso attem pted to pursue a “defense of corpus delicti,” as there was
an issue as to what caused the death of the victim -- the gunshot by the Defe ndant or the victim being struck on the head with a cue ball by someone else. He testified that he tried to show “cor pus delicti” through the testimony of Dr. Barnawe

ll, the medical exam

iner. Raulston stat

ed that, because Dr. Bar nawell was out of t own at the victim’s

death, no autopsy

was performed o

n the victim. However, the victim’s death certificate stated that the cause of death was a gunshot wound. Raulston stated that

Dr. Barnawell testified that he could not say to a rea

sonable degre

e of medical cer

tainty that the cause of dea

th was a gunshot wou

nd. Without an autopsy

, Dr. Barnawe

ll could not rule out the possibility that the victim’s death was caused by the blow to the

head with a cue ball. Counsel sta ted that he decided to proceed primarily with the defense of an a ccidental shooting, since th e Petitioner’s testimony wa s that the victim had

hit him in the face w

ith a cue stick, which

caused the gun in his hand to accidentally fire.

Raulston al so r ecalled talking with Sheri Trisdale the day that the second trial beg an. He decided not to call Trisdale as a witness, because the transcript of the first trial showed that she had made a statement that would be damaging to Petitioner’s case. Trisdale had stated, “Mr. Franklin’s going out to get his gun. He’s going to come back and

kill him.” Raulston sa

id that, while Trisd

ale could have testified to the fact that the victim, Kirkland, had been drinking, Kirkland’s drinking was notan issue. He also r

emembered Trisd

ale telli ng him t

hat the bartender was also drinking that night, buthe regarded this testimony as irrelevant to the theory of an accidental shooting. Raulston believed that Trisdale’s statement concerning the Petitioner going to get his gun and coming back to kill the victim , would be viewed more strongly by the jur y than any testimony

about the bartender’s drinking.

Raulston testified that he also tried to give suppor t t o a theory th

at the victim was the

first aggressor. The testimony of Larry Walker, a good fr

iend of the victim, was used to show that the4

victim liked tofight and that the two men would drink together two to three times a week. Counsel stated that Walker’s testimony allowed t he defense to con vey t he i dea o f se lf- defe nse to t he j ury. Counsel further testified that he did not recall checking the victim’s bac kgroun d for prior convictions,

buthe did inves tigate to find that the victim “drank and he ran around.” However, Raulston stated that he did not pursue the vic tim ’s b ackg rou nd h eavi ly, because he did not think the information would be admissible evidence. Counsel testified that he was not aware tha t the victim had been charg

ed with aggra

vated assault and

assault witha deadly weapon. Neither was counsel
aware that Donnie Maynard, a patron at the bar on the night

of this incident, ha

d been a witness to the prior assault with a deadly weapon charge broug ht against the victim. Counsel testified that the defense strategy was to take the emphasis off of the deceased as a victim and show the deceased as
one who invited this trouble by hitting the Petitioner in the face with a cue stick, thereby causing the gun in Petitioner’s hand to fire.

On cross-exa

mination, Raulston testified that the defense presented the testimony of a dentist , an ora l surgeon, the victim’s girlfriend and the Petitioner to show that the gun fired because the Petitioner was hit in the mouth. The dentist and oral surgeon testified to the severity of the tooth and jaw injury suf

fered by th

e Peti tioner, and that he would not be able to talk after the injury. The victim’s girlfriend testified to talking with the Petitioner outside the bar, before the Petitioner went back in with his gun. The Petitioner testified that “he was hit in the face, he saw stars, and the gun went off, and he didn’t know what happened.” Counsel stated that he made all possibl

e arguments on behalf of the De

fendant, and tha

t he made the deci

sion not to call cer

tain other witness

es because he believed their testimony would hurt, rather than help the Petitioner’s case. Larry Warner, Petitioner’s counsel from the first trial, testif

ied that he assiste

d Raulston with Petitioner’s seco nd t ria l. W arne r di d no t re cal l in ter vie win g any witnesses in preparation for the secondtrial. He stated th at he, Raulston and

Petitioner were i

n agreement

on the defense theory to be pursued in the second trial. He did not recall whether a background check had be en performed
on the victim, in either the first or second trial. He stated that the defense theory was to show a hybrid between the defense of def ense of others (i

n that Petitioner we

nt to get the gun

to protect his wife) and an accide ntal disch arge of the gun upon re-entering the bar and being hit in the face by the victim.

Sheri Trisdale testified that she was a witness at the Petitioner’s first trial. She stated that she was also subpoenaed

to testify at the second trial, but, upon arriving at court Raultson told her that she would not need

to testify, be

cause she had be

en a damaging

witness in th

e first t rial. Trisdale explained that, at the first trial, she testified that she thought she had heard the Petitioner say, “I’m going to get my gun.” She asserted that, on the evening of t

h e shooting, the victim had been drinking alcohol, along with the bartender. She testified that she witnessed the fight between the victim, his friends, the Petitioner and his wife. Trisdale te stified that the victim hit the Petitioner’s wife’s head against the pool table, and she helped defend Petitioner’s wife by shoving the victim and telling him to leave her alone. She stated that the Petitioner left the bar and went outside, and returned three to four minutes later. By the time the Petitioner returned, the victim had stopped hitting Petitioner’s wife. Trisdale heard the Petitioner state that he did not want any trouble,5

butthe victim

began to walk tow

ard the Petitioner

. Trisdale said that she did not see anything in the victim’s hand; howe

ver, moments later

she heard a shot.

The Petitioner testified that he met with Raulston three to four times prior to trial. Petitioner stated that he told Raulston his version of the story and what he remembered happening on the night of the shooting. The Petitioner asserted that his counsel only reviewed the transcript of the first trial, and did not interview key witnesses for the second trial. Petitioner testified that

his counsel did not preparehim for trial or discuss trial strategy and defense opti

ons with him. The Petitioner stated that until the first day of trial, he thought Trisdale would be testify ing for the defense and was surprised to hear that

she would not be ca

lled as a witness.

On cross-examination, Petitioner admitted that at the moment of the shooting, he was not defending his w

ife and that he had not asked the whereabouts

of his wife. Petitioner acknowledged that without the testimony of Trisdale he received
a lower conviction (second degree murder) at the secondtrial than at the f

irst trial, which w

as first degree murder.

At the conclusion of the hearing, the trial court delivered oral findings in which it dismissed the Petitioner’s petition for post-conviction relief. Thepost-conviction court found that counsel had thoroughly

investigated Petitioner’s case and devised sound trial strategies. The court statedthat the Petitioner had failed to show how he had been prejudice

d by counsel ’s failure to

raise self-def

ense or the d efense of other

s as defenses. The trial court also noted that the facts presented did not support those defenses, but did support counsel’s theory of an

accidental shooting. The court noted that Petitioner had fa

iled to produce al

l of the appropriate witnesses to support his allegations. The post-conviction cou rt c onc lud ed t hat Pet iti one r had been wel l re pres ent ed b y his c ounsel, and therefore had not met his burden of proof.
ANALYSIS

I. Standard of Review

The 1995 Post Conviction Procedure Act provides that a petitioner seeking post-conviction relief has the burden of

establishing his allegations by clear and convincing evide nce. Tenn. Code Ann. § 40-30-210(f) ( 1997). The trial c ourt’s findings of fact

in a post-conviction hearing are afforded the weight of a jury verdict, and may not be re-weighed or

re-evaluated by this Court. Black
v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus, a trial court’s findings are conclusive
on appeal unless the evidence in the record preponderates against those findings. State v. Burns , 6 S.W.3d 453, 461 (Tenn.1999). The court’s application of the law to the facts, however, is reviewed de novo, without any

presumption of cor

rectness. Id. A claim of ineffective assistance of counsel raisedon direct appeal is a mixed question of law and fact, and is also subject to a de novo review. Id. ; see Jehiel Fields v. Stat e , 40 S.W.3d 450, 458 (Tenn. 2001)6

II. Ineffec tive Assistance of Counsel

Indetermining whether counsel provided effective assistan ce, this Court must decide whethe r counsel’s perf orm ance was wit hin the rang e of c omp ete nce d ema nde d of att orn eys in criminal cases. Baxterv. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim that his counsel wa s ineffective, a

petitioner bears the burden of proving (1) his counsel’s performance was deficient and (2) he was prejudiced by his counsel’s deficient performance

. Strickland v. Washington , 466 U.S. 668, 687 (1984); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). To prove that his counsel’s performance

was deficient, the petitioner must show that “the advice given or the service rendered was not wit hin the range of competence demanded of attorneys in criminal cases. . .” Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). The petitioner must establish that trial counsel’s “acts or omissions w ere so serious as

to fall below an objective standard of rea sonableness under prevailing professional norms.” Goad v. State , 938 S.W.2d 363, 370 (T enn. 1996). Under

this secondprong, the petitioner must show th at the prejudice was such that ther

e is a reasonable probability

that, but for counsel’s errors, the result of the proceeding wo uld ha ve been differe

nt. Strickland , 466 U.S. at 694; Butler v. State , 789 S.W.2d 898, 900 (Tenn. 1990).

When reviewing a de

fense attorney

’s actions, this Cour

t may not use

“20-20” hindsight to second-guess

counsel's decisions regarding trial strategy and ta ctics. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at the time they were made in light of all the facts and circumstances. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d at 746. A. Failure to Investigate and Present Witnesses

The Petitioner maintains on appeal that his attorney failed to properly

investigate his case and callwitnesses. When a petitioner contends that trial counsel failed to discover, interview, or present
w itnesses in support of his def ense, these witne

sses should be pre

sented by the

petitioner at th e evidentiary

hearin g. Black , 794 S.W.2d at 757. Generally, this is the only way a petitioner can establish that (a) a material witness existed who could have been discovered but for counsel’s neglect in the investigation of the case; (b) a known witness was not interviewed; (c) the failure to discover or interview a wi

tness inured to his

prejudice; and (

d) the failure to h

ave a known witne

ss present or call the witness to

the stand resulte

d in the denial of c ritical evidence which inured to the prejudice of the appellant. Id.

The post-conviction court

determined that th

e decisions Petiti

oner’s counsel made concernin g witnesses and the investigation of the case were tactica l decisions that sho uld not be judged i

n hindsight. The court concluded that Petitioner had not shown that his counsel was ineffective in h is representationof Petitioner. The trial court noted t

hat counsel’s tria

l strategy proved effecti

ve in getting Petitioner a lesse

r conviction than h

e received in his

fir st trial. W e find that the evidence presented by Petitioner, including the testimony of Sheri Trisdale, does not preponderate against the trial court’s findings. Therefore, we conclude that the trial court did not err in determining that the Petitioner’s tria

l counsel was not in

effective for

failing to investi

gate and call c

ertain witnesses

.7

B. Failure to Discuss Trial Strategies

The Petiti oner ne xt asserts that his trial counsel was ineffective for failing to discuss trial strategies with him. The post-conviction court determine d that Petitioner’s

counsel had eff

ectively represented

him and that Petit

ioner had failed to meet his burden of proof. Petitioner’s counsel tes tif ied at the hearing that trial strategies were discussed with the Petitioner. The trial court accredited

the testimony of counsel and Petitioner has not shown that the proof pre ponde rates against the findings of the post-conviction court. C. Failure to Requ

est Instructi

on on Self-Defen

se
The Petitioner further contends that hereceived the ine ffective assista

nce of counsel be

cause his trial counsel failed to pursue a theory of self-defense. The post-c onviction court stated

But under the fa cts of th is case, at least the evidence of the case, the jury dec ided what the facts were, I

guess, but under the evidence in the case that was presented by the State’s witnesses and the Defense witnesses, sel f-defense would not have worked, and I don’t think you claim that. The only basis self -defense could hav

e made [sic

], “I saw him com ing, he s wun g at m e, an d I ra ise d my g u n because I was in fear.” There wasn’t any testimony of that at trial or here today. “He hit me,” was y our tes tim ony, contradicted by others, but, “He hit me, and I raised the gun in reflex, and it went off.” Nothing to support a self-defense.

The trial court further

stated that defense counsel “knew what defense he had, and what evidence he had to go with, and he made a decision in dete

rmining how to pre

sent the case tha

t was in the best interest of his client, Mr. Franklin.” The post-conviction court concluded that it would not secondguess counsel’s strategy by sug gesting that he should

have raised other defenses, like self-defense. Again, Petitioner has failed to show that the proof preponderates against the post-conviction court’s findings. Therefore, the Petitioner is not entitled to relief on this issue. For the foregoing reasons, the judgment of the post-conviction court is AFFI RMED.

___________________________________ THOMAS T. WOODALL, JUDGE