### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 9, 2003 Session
JEREMIAH A. LEAVY v. STATE OF TENNESSEE
Direct Appeal from the Tipton County Circuit Court No. 3275B Joseph H. Walker, Judge

No. W2001-03031-CCA-R3-PC - F iled January 8, 2004

A Tipton Coun

ty ju ry convicte d the Pe t itioner of first degree murder, fe lony murder, ag gravated
ro bb er y, and es pecial ly aggravate d kid nappi ng. The trial court merged the two murder convictions and imposed a

single life sente

nce with t

he possi bili ty of parole. O n direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the De fendant’s application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing , the post-conviction court dismissed the petition. T

he Petition

er filed a motion to

reconsider, which the trial court denied, and the Petitioner appealed. Finding no error, w e affirm the trial court’s dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OHN E VERE TT W IL LI AMS , J., joined.

Je an ni e K ae ss , J ac ks on , T en ne ss ee , f or th e a pp el la nt , J er em ia h A . Le av y.
Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; J. Ross Dy er, AssistantAttorney Gene ral; Eli zabeth T. Rice, District Attorney Ge neral; and Walt Freeland, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION I. Fact ual Backgro

und

Our Court summarized the unde r lying fa cts of the Petitioner’s case on direct appeal as follows:

On April 27, 1 997, at ap proximatel

y 11:00 a.m., juvenile

defenda nts Adams and Le avy, alon g with two adult co-defendants, entered the 71-year -old victim’s home. They

intended to steal a large amount of mon ey rumore d to be kept in the house. After fruitlessly r

ansacking the residence, they sat down to

watch ba sketball1 After hear ing the proof

on Jun e 3, 1997, the st ate fi led a n addi ti onal juven il e pet it ion charg ing de fenda nts with especially aggravated kidnapping, under the incorrect assumption that t

he Gra nd Ju ry cou ld indi ct de fen dants only on the offen ses f

or which they were tr ansfe rred. Al though we note the juve nil e cour t ju dge er red i n re- asse rti ng ju ris diction for purpos es of

the Jul y 3, 1997, tra nsf er he ari ng, see Tenn . Code Ann . § 37- 1-134(c ), a ny i ssu e in thi s re gard i s moot since the Gra nd Jury indicted , and the defend ants were con victed on all charg ed offenses.
-2- on television and await the victim’s return. Sometime shortly before

2:00 p.m., the victim returned from visiting his convalescent wife in a nursing home.

When the victim entered

the kitchen, the four y oung men ambushed him. The adults bound the victim’s hands andfeet with coat hangers and duct tape. Then, he
was placed in the bathtub, which the perpetrators pr ev io us ly filled with water and kerosene. Before

leaving , they

covere d the vict

im with var

ious blank

ets, drapes, and pieces of furniture. The victim died of asphy xia.

The juvenile and adult defendants took twenty dollars from the victim’s wallet, a microwave oven, and a kerosene space heater . They left in the victim’s car shor tly after 2:00 p.m. and spent the afternoon driving ar ound eating snacks purchased

withthe victim’s money. They abandoned the car in a muddy field after getting stuck and

hitchhike d back ho me sometim e betwe en 4:00 and 4:30 p.m.

Su bs eq ue nt ly, both juven ile defe ndants g ave stat

ements ad mitting th

eir involvement

in the crimes. Authorities took the juveniles into custody on April28, 1997. The juvenile court entered a detention order on May 1, 1997. On June 3, 1997, the juven

ile court condu cted t he fir st of t wo tra nsfer h earings and transferred the juveniles to circuit court on the charges of pre meditated fi rst degree murder, fe lony murder, and ag grava ted robbe ry . The juve

nile cour t ordere d that both juveniles be held without bond. At a second transfer hearing , conducted J uly 3, 1997, the juvenile court transferred the juveniles to circuit cour t on the c harge of especia lly aggravat ed kid nappi ng. 1 At the close of the second hearing, the juvenile
cour tagain refused to set a bond for de fendants. However, at their appear ance i n circuit court on July 18, 1997, the trial judge set $100,000 bonds for each.

Statev. Adams and Leavy , No . W1998-005 31-CCA-R3-CD, 1999 WL 1565193, at *1-2 (Tenn. Crim. App., at Jackson, Dec. 21, 1999), perm. app. denied (Tenn. July 31, 2000).

A Tipton County jury

convicted the Petitioner of first d egree murder, felony murder, aggravated

robbery, a

nd especially a

ggravated kidnapping

on March 17, 1998. The trial court merged the two murder convictions and imposed a single life sentence with the possibility of parole. This Courtaffirmed the conviction on direct appeal, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner filed a pro se post-conviction petition. The post- convicti on court a ppointed Je annie

Kaess to repres ent the Pe

titioner i n this postconviction matter. Kaess filed an amendment to the Petitioner’s original petition for post-conviction relief. In his petition, thePetitioner asserted that he should be granted post-conviction relief base d2 Police arrest ed four i ndivi duals f

or the mur der of the vict im. The Peti tioner

and co-def

endant, Kennet h Adams , were tried together. The other two defendants were tried sep arately. Police too k statements from all four d efendants.
-3- upon numerous theori es i nvolving ineffective assistance of counsel a t various stages of the representation. The trial court conducted a hearing on the amended petition. Aft er hearing the evidence, the trial court issued an order denying the petition for post-conviction relief. Kaess filed
a motion to reconsider the trial court’s order deny ing post-conv iction relief which the trial court denied. T

he Petition

er filed a timely notice of appeal.

The following evidence was presented a t the post-conviction hearing: The Petitioner’s trial counsel, Frank D eslaurie rs (“Coun sel”), te stified th at he ha d represented hundreds of criminal defenda nts from the time he was licensed to practice law in Tennessee in 1986 through the time of the Petitione r’s trial in 1997. Counsel, who was the State’s only witness in this post-conviction hearin g, stated that he was appointed by the trial court to

represent the Petitioner. He stated that he initiated plea bargain proceeding s, but the State refused to plea bargain. He explained that he was appointed about three months before the trial and that, during that time, he met with the Petitioner three or four

times. Counsel explained that he believed both the period of time and the number of times he met wit

h th e Petitione

r were a dequate to prepa re for th e trial. He also sta

ted that he felt there was no benefit to requesting a c ontinuance.

Counsel acknowl edged

that, at th

e time of the tri al, he kne w the Petit

ioner wa s mildly mentally retarded; however, he

stated tha

t the Petiti oner app eared t o underst and the se riousnes s of the charg es and expr

essed co ncern a

bout going to jail. Counsel testified that the Petitioner was similarto many of the other de fendants he represented and that he believed the Petitioner understood th e c ha rg es ag ai ns t h im an d t he po ss ib le co ns eq ue nc es if fo un d g ui lt y.
When asked about the statement the Petitioner gave to the police, Counsel explained that the Petitioner’s mother was present for the police questioning. He sta ted that he spoke withher about her recoll ectio n of th e ques tion ing, and she to ld him she d id not believe the statement was coerced. Counsel testified that he had no recollection of w hethe r the mother thought the Petitioner did not understandthe questions because of his mild mental retardation. Counselstated tha t, based o n his interactions with the Petitioner and re viewing the statement, Petitioner seemed to understand the questions and was able to answer them “with no problem.”

Counsel testified t hat, in pr eparing for tria l, he was able to lo ok at the St ate’s fi les and to perform discovery. He

also stated t hat prior

to the tria

l he and D avid Stock

ton, of the

Public Defender’s Office, spent a l ot of time working on the case. Stockton represented c o-defendant Kenneth Adams. Counsel stated that, when he examined th e stateme nt given by t he co-de fendant , the statemen

ts were inconsiste

nt. 2 He explain ed that the statements placed the individuals in the house, “but they

all denied they did any

thing . . . bad to the old man.” Counsel explained that the Petitioner’s statement

was help ful to his defe

nse beca use it assi gned bl ame to the other ind ividuals and minimized his in volvement. When asked why he did not try to suppress the Petitioner’s statemen t, Couns el exp lained that he initially filed a motion to suppress the statement, but later-4-

withdrew the motion f

or strate gic reasons. Counsel stated that he withdrew the motion because he “didn’t think it would be succ essful, a nd even mo

re import antly , [Co u nsel] decided the statement [the Petitioner] gave was about as good as [Counsel] could get from him on the witness stand, and [Counsel] didn’t want [the prosecutor] to cross-examine [the Petitioner].” Counsel testified that the evidence against the Petitioner was “at least strong” because police found a footprint in the victim’s kitc hen match ing the Petitioner’s shoe, and an eyewitness saw the Petitioner and the three codefendants walking out of a muddy field after abandoning the victim’s car

. Counsel explained thathe did not have the Petitio ner eva luated r egard ing his me ntal cap acity because the Petitioner had been evaluated two months before the murder . Counsel testified that he spoke with Dr. Lori Keith, who evaluated the Petitioner

prior to the murde

r, as well as infor

mally speaking with an outside doctor. Counsel stated that, when he spoke w ith the outside doctor, the doctor didnot think there was any benefit to having the Petitioner re-evaluated a nd that there was nothing the docto

r could do to help the defense. Counsel recounted that Dr. Keith’s diagnosis of the Petitioner was th at h e suffered from mild mental retardation and oppositional defiant disorde r which, to Coun sel’s under stand ing, meant the Petitioner

was “mea

n.” Counse

l also stat ed that, in addition to speaking with these two doctors, he spoke with the Petitioner’s principal and one of his teachers and examined the Petitioner’s school records. H e testified that the Petitioner’s school records showed that the Petitioner was involved in numerous fights. Counsel testified that, basedon these
convers ations, he did not w ant any of these people to testify at the tri al beca

use they “didn’t have

a whole lot good to say about his ability to fit in, in any social situation. . . .” Counsel testified that part of his tria

l strateg y w as to tell t

he jury that the Pe

titio ner was mildly retarde d and to have the Petitioner tried with

his co- defendant, Kenneth Adams. Counsel explained that he wanted the Petition er“to be the mildly retarded de fendant next to, hopefully, the rea lly bad guy , and the jury might cut [the Petitioner] a break because of that.”

Counsel admitted t

o copy ing Stock ton’s app ellate

brief “more or less,” having reviewe d the brief and the f acts of th e case. Co unsel st at ed th at he fe lt th e b ri ef ra is ed a g oo d i ss ue , n am el y a double jeo pardy proble

m, which was ultimately unsucce ssful. He also stated that he “batt[ed] arou n d
a number of [other] issues,” including actual transfer of the Petitioner from juve

nile court be cause of the mental retardation. Counsel testified that he determined that there we re no other seri ous issues. He stated tha

t, after examining the facts, he was deter mined that this was a bad case. Counsel explained that “[t]his was a case in which four young men sat in a house waiting for a 70- ye ar-old man, tied him up, gagged him, threw him in the bathtub, piled furniture on him, with water and kerosene.” Counsel testified that he did not think he could convince a jury that the Petitioner did n ot recog

nize the inh

erent da nger o f placin g a man w

rapped in a blanked into a ba thtu b fille d with wate r and ker osene and then piling furni ture on to p of him.

Counsel explained that, in hind sight , when ever he lost a case, he cou ld alw ays find t hings that he wished he had done differently , but that it did not mean the outcome would have changed.

When cross-examined, Counsel was asked about Stoc kton’s motion to withdraw from representing both the Petitioner and co-defendant Adams. Counsel stated that the motion submitted-5-

by Co-counsel citeda conflict of interest as the reason for the motion to withdraw from representing bothmen. Counsel agreed that Stockton had represente d the two defendants for approximately four months prior to th

e motion to

withdraw. Counsel stated that during that time, Stockton filed motions to dismiss the

indictmen

t on behalf of both Pe

titi oner and co-defendant Adams because they had been held without bond from the time of their arrests on April 28, 1997, until the date of the motions
on July 10, 1997, in violation of their Fifth Amendment and due proces s rights. The trial court denied th ese motion s.

Counsel explained that while reviewing the Petitioner’s Covingto n Middle School records he found fiv e instanc es of fig hting and approxima

tely 30 disciplinary

write-u ps. When as ked if

these behavioral problems could have been related to or caused by the Petitioner’s mild mental retardation, Counsel stated that he “took th at behavior to be part of [the Petitioner’s] oppositional defiant disorder, not his mental retardation.”

Counsel stated that he withdrew the motion to suppress the statement given by Petitioner on the morning of

the trial. Couns el testified that he spoke with Dr. Keith and that she told him the Petitioner read at a second or third gra de level. Counsel explained t hat after he r eviewed the Miranda warnings signed

by the Petitioner , he belie ved that t he Petition

er under stood his r

ights. Counsel testifie d that he t hought th e Petiti oner “u nderstood he didn’t have to say anything if he didn’twant to.” Counsel further testified that, while the Petitioner may not have u

nderstoo d certa

in abstract ideas, “he un derst ood t hat if he [t old] them s ometh ing . . . it may come bac k to hurt him.”

Counsel also expressed concern that one of the other three defendants might ha ve pled guilty and testified against the Petitioner.

Counsel explained that his main focus in his argum ent to the jury was to g et a negligent homicide conviction rather than felony murder. Counsel conceded that the victim was a very sy mpathetic

individual. Counsel testified that the reason he did not object to the portray al of t h e victim as an elderly

man who visited his wife at least twice a week in th

e nursing home was because he was afr

aid of jur y ba cklash to his objecting to innocuous questions. Counsel explained that if he objecte d to these

questions , he would

have be en forc ed to obje ct to every pe rsonal question, when much of the information came in during voir dire. Counsel stated that he did not

consi der fi ling a
mo ti on in li mi ne to pr ev en t t he ju ry f ro m h ea ri ng th is te st im on y.
Counsel testifie d that, while he wanted the jury to thinkof the Petitioner as mentally re tarded, he did not intend to s how that the Pet itioner did not understand what was going on. Counsel explained that he wa

nted to sho w that the

Petitioner

was a “f ollower, ” wit

h the hope

th at the jury would find him less responsible. Counsel stated that he did not think he could convince a jury that the Petitioner did not know a man could die from being wrapped in a blanke t and then buried in furniture in a bathtub full of water and kerosene . Instead, Counsel explained that he was trying to convince a jury

that the Pe

titioner w as not try

ing to kill the victim, rather he wanted to prevent the-6-

victim from calling the police. Counsel admitted to introducing evidence at the trial that the Petitioner had an IQ of 66 but failing to explain the significance of that evidence.

Counsel was qu estioned a bout the Petitioner’s pre-sentence report that stated that the Petitioner was on probation at the time of the incident. Counsel testified that he did not have a clear recollection of what was done to det ermi ne whether the Petitioner was on probation. The Petitioner’s post-con

viction a ttorney argue d that this w as a cle

rical er ror and t hat Petitio ner was not, in fact, on probation at the time of the incident. Counsel stated that he was “pretty sure” th at he did notcontact the Fayette County Court to determine whe ther the Petitioner was on probation. The post-conviction court recognized the argu ment raised that Counsel “didn’t investigate [the allegation of Petitioner being on probation] sufficie ntly by c ontactin g another cour t, and tha t what [Coun sel] interpreted

the records to be was perhaps incorrect.” The pre-sentence report stated that the Petitioner was on proba

tion; howe

ver, it mis takenly

listed co- defenda

nt Adams’ s case

number and record on the Petitioner’s report. Accordingly , while co-defendant Adams was on probation at the time of the

incident , the Petiti oner wa s not.
Counse l stated that in addition to the mistaken pre-sentence report, another r eason for th e sentences to run consecutively w as because thePetitioner was a “dangerous offender.” When asked if he presented any

evidence that the Petitioner was not a danger ous offender, Counsel explained that he did not remember, but that he probably put the Petitioner’s mother and possib ly a

nother f amily member o n the stan d to say that the Pe

titioner w as not dangerou s.
Counsel stated that he did not remember whether there wa s any mention of the Petitioner’s mental retardation in the appellate brief. He testified that while he used Co-counsel’s appellate brief, he did independent research concer ning appealable issues and reviewe d Co-couns el’s brief for
ac cu ra cy.
The Petitioner produced two witnesses at thehearing, Dr. Ann Phy fer and Co-counsel. Dr. Phyfer testifie d that she

was a psy cholog ist

at Timber Springs Adolescent Center with a backg round in clinical psy cholog y. T

he parti es stipula

ted that sh

e was an expert. Dr . Phy fer stat

ed that she did not meet w ith the P etit ioner unti l the n ight b efore t he pos t-con victi on hea ring. She stated that she tested the Petitioner using the Bender Gestalt, a neur ological screen

ing test to diagn ose org anic bra

in damage, Minnesota Mul tiphasic Personal ity Inventory test ( “MMPI”), and questions that test abstract thin king. Dr. Phy fer explained that the answers to the questions and some of the Petitioner’s questi ons to her about the various t ests led her to conclude tha t the Petiti oner “isa very concre te thinker. He has c onsistent p roblems w ith abstra

ct terms. ” Dr. Phy

fer stat ed that:
[The Petitioner] understands hope in concrete terms. He can hope for –hope that he’ll have pizza for supper or he can hope that he’ll ge t to play basketball tomorrow, butwhether

he is hopeful, he has difficulty with. And it was that kind of, that level of abs tract ion wh ere I woul d find him h aving t roubl e comp rehend ing.-7-

The doctor stated that another example of the Petitioner’s trouble with abstra ct terms w as his di fficult y in understanding the terms like “social,” “drive”when meaning ambition, and “human nature.” “[The Petitioner] understood specific activities, but it’s very hard for him to generalize and then recognize the term again in anothe r form. . . .” Dr. Phy

fer test ified tha t the Petiti oner’s r

esults of the Ben der Ges talt test

indicated that there was no sign of neurological damage. She stated that the Petitioner’s visual and motor perception was excellent. Dr. Phyfer e xplained that the Petitioner had part icular d ifficult y w ith double

negati ves.
Dr. Phyf er testif ied that her “dia

gnosis by exclusion” of the Petitioner was that he suffered from an adjustment disorder. She explained that the MMPI test did not indicate that thePetitioner
was antisocia

l, under- socializ ed or aggressive. She stated the Petitioner wa s someone who was “quite concer ned wi th th e impr essio n he is makin g, with being accept ed by his peers.” Furthermore, the doctor

test ified that the Petitioner did not score high on hostility or a nger toward any

one, but rather he had “high levels of empathy and understanding.” Dr. Phyfer g ave the following diagno sis:
[The Petitioner is] a person who’s concerned with being acce pted by his peers, who has some doubt s about whether ot her peop le are going to like him. And those are typical adolescent concerns. He didn’t show any patholog

y [on the tests]. There’s no mental illness and no antiso cial per sonality stuff on th

e tests.

Dr. Phyf er explain ed that the Petitione

r felt sad most of

the time. Sh

e stated that his sadness
came from his remorse and regret a t having caused the victim’s death. The doctor testified that the Petitioner thought about

the victim’s death “pretty much all the time ” unless h e was g iven an a

ctivity to take his mind off the death. She further tes tifi ed that the Petitioner had nightmares and night terrorswhen asl eep and

had flas hbacks d

uring th e day about the incident

. Wh en asked if

the Petitio ner was a dang erous of fender , Dr. Phy

fer stat ed that he wa s dangerous to the extent that he was led by dang erous people. She explained that, because he seeks approval from peers, if he fell under the influence of bad or dange rous peop le, he ma

y be suscepti ble to doing bad things again. Howeve r, Dr. Phyfer

testified that

the Petitioner was not a danger in the
sense of planning or instigating robberies. H aving examined the Petitioner’s sch ool recor ds, the doctor stated that, although the Petitioner had been in fights, he had never used weapons, and the idea of harming another person delibera tely “was a

bsolutely foreign to h im.” She also stated that the disciplinary problems indicated his desire to be accepted by his peers by being

the class clown. Dr. Phyf er explain ed that these disc iplinary

problems were the

result of his effortsto make pe ople like him. She al so speculated that he might suffer from an a

ttention de

ficit diso rder but , due to his depression, it was hard to be certain.

Dr. Phyfer testified that, while the Petitioner would reco gnize a k nife, gun, or even an instrumentthat causes b lunt trauma as potentially letha l, he would not see the blanket or tape as lethal weapons. She stated that, in his mind, the Petitioner was trying to kee p the victim from moving or calling the police, not try ing to kill him. Dr. Phyfer admitted that she di d not have en ough-8-

experience or intera

ction with

the Petitioner, but that, in her opinion, the Petitioner would not see a connection between covering someone with a blanket and his death.

Dr. Phyfer testified that the Petitioner would not under stand abstract terms in the Miranda rights waiver form

like “constitutional rights.” Furthermore, the doctor explained that conditional statements like, “If y

ou do answer questions, your answers can be used as evidence against y ou in court,” “If

you cannot a fford to hire a la wy er,” and “If y ou decide to answer

questions now without
a lawyer pres ent, you will still have the right to stop answering questions at any time until y

ou talk to a lawye

r,” were too abstrac t for t he Petitioner to understand. She stated that a conditional statement implies an alter

native, w hich the Pe

titioner w ould

have been unable to grasp. Dr. Phy fer also explained that the Petitioner would not understand the statement, “You need not answer any question,” because of

the sentence’s structure. Dr. Phyfer stated that “ [h]e would understand better, ‘You can answ er these

questionsif y ou want to , but if you don’t want to, y

ou don’t have to.’” Dr. Phyfer’sconclusion was that the Petitioner would not have understood the la ngu age or the significance

of his rights in a

legal context when the police read the Miranda r ights to the Petitioner. She stated that, in her opinion, the Petitioner could not have signed the waiver understanding what his righ ts were a nd volunta

rily waiving them.

On cross-e

xaminati on, Dr. Phyfer a dmitted that, other than being mildly re tarded, the Petitioner suffered from no mental disease or defect and that he knew the difference between rig ht and wrong. She also admitted that he told h er about his participation. She testified that the Petitioner went through the house looking for things to take a nd that he knew that this behavior was wrong. She further

testifie d that the

Petitioner

understo od that wa

ter coul d cause a

person to drown, alt hough she did not believe he understood why he was turning on the water. When shown a photograph of the bathtub and told to assume that under the blanket wasa man’s head, Dr. Phyf er testified that she believed the Petitioner would see this as “a very , very dang erous thing to do.”

Dr. Phyfer explained that, while the school may have diagnosed the Petitioner with an oppositional defiant

disorder , it was l ikely som ething more severe. She stated that oppositional defiant disorders are usually

amenable to behavioral programs whic h reinforce positive behavior and punish the undesirable behavior. She testified that, in her opinion, the Petitioner suffered from attention deficit hyper

activity disorder or a

n impulse control disorder.

Dr. Phyf er state d that, wh

ile the Petitioner had the physica l coordination to tie a

knot and to “hog- tie” an individual, he would need directions about how to do it. She explained that the Petitioner “wouldn’t

be able to think up and carry out that kind of [planned] behavior.” When shown
a photogr aph of the victim’s h ands, Dr . Ph yf er testif ied that sh

e did not th

ink the Pet

itioner c ould have bound the hands without someone else modeling the behavior.

On redire ct, Dr. Phy

fer expla ined that in gene ral term s, a blank

et would not be perceived as lethal if the Petitioner had seensomeone wrapped in a blanket with their head covered. She stated that the Petitioner

expressed concern about the victim calling the police, and tha twas why someone put the ch est-of- drawer s over the

bathtub. Dr. Phy

fer spe culated

that:-9-

[B]y the time he was that

far involved in the burglary , I don’t think [the Petitioner]
was listening

to what he called earlier his “best voice,”his “best mind,” and I don’t think he was th

inking f or himself

at all at t hat point, so that he – the capacity for judgment that he would have ordinarily had would ha ve been diminished even more by being the re, with

those people telling him what to do and rushing around and engaged in th ei r o wn go al -d ir ec te d a ct iv it y, which wa s n ot hi s g oa l- di re ct ed ac ti vi ty.
Stockton testified that he was appointed to repres ent both the Petitioner and co-defendant Adams in July

of 1997. H e testifi ed that, about four months later, he filed a motion to withdraw as counsel for

the Petitioner in early Nove mber of 1997. Stockton stated tha t, during that time, he did notspend a great deal of time working with either

the Petitioner or

co-defendant Adams and he had no recollection of meeting with either of them from July 10, 1997, through November 3, 1997.

Stockton explained he filed the motion to withdraw as counsel for the Petitioner when he received some discovery mate

rials that indicated that the State wa s se eking to enhance the punishmentfrom life sentenc es with the possibility of parole to life without parole sente nces. He stated that, at the sentencing phase, there would be a discrepancy

that could be material with regard to the degree of culpability of the Petitioner

and co-defendant Adams. Stockton further testified that he did not per

ceive th ere being a co nflict of

interest because the Petitio ner was mildly mentally retarded. Following this evidence, the trial court denied the Petitioner’s petition for post-conviction relief. The tria

l court fo und that:
[The] petitione

r has fa iled to est ablish the factua l alleg ations co ntained i n his p etition by c lear and convincing evidence. Tenn. Code Ann. § 40-30-210. The petitioner has not shown that (a) the services rendered by trial counsel we

re deficient and (b) the deficient performance w as prejudicial. The petitioner has not shown that the services rendered o r the a dvice given was below the rang e of competence demanded

of attorn ey s in crimin al case s. The pe titioner h as not shown that the re is
a reasonable probability

that, butfor cou nsel’s deficient performance, the re sult of the proc eeding

would hav e been d

iffere nt. II. Analysis

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentence is void

or voidable because of

the abridgment of a constitutional right. Tenn. Code Ann. § 40-30-203 (1997 ). The petitioner bears the burden of proving f actual allegations in the petition for post-conviction relief by

clear and convincing evidence . Tenn. Code Ann. § 40-30-2 10(f) (1997). A post-conviction court’s factual findings are subject to a de novo review by this Court; howeve r, we must accord these factual findings a presumption of correctness, which is overcome only when
a preponderance

of the evidence is contrary to the post-conviction court’s factual findings. Fields
v. State , 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject-10-

to a p ur el y de novo review b y th is Court, w ith no pre sumpti on of correctnes s. Id. at 457. The Tennessee Supreme Court has held that the issue of ineffective assistance of c ouns el is a mixed question o f law and

fact an d, as such , is subject to de novo review. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

The right of a criminally accused to representation is gua r anteed b y both the Sixth Amendment

to the United States Constitution and Article I, section 9, of the Tennessee Constitution. U.S. C ON ST . amend. VI.; Baxter v. Rose , 523 S.W.2d 9 30, 936 (T enn. 1975 ). This ri ght to representation includes theright to “reasonably

effective” assistance of counsel. Burns , 6 S.W.3d at 461. In reviewing

a claim of ineffective assistance of counsel, this Court must determine whether the advice given or services re ndered by the

attorney ar

e within the range of competence demanded of attorneys in criminal ca ses. Baxter , 523 S.W.2d at 936. To prevai l on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s r eprese ntation fe ll below an objective standardof re asonableness,” Strickland v. Washington , 466 U.S. 6 68, 688 (1 984), an d that this performance

preju d iced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudi ce, a petitioner mu st sh ow a r ea so na bl e p ro ba bi li ty that , but for counsel’s unreasonable error, the fact finder would have had reasonable doubt regarding the petitioner’s g uilt. Strickland , 466 U.S. at 695. This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694;
see also Harris v . State , 875 S.W.2d 662, 665 (Tenn. 1994).

W hen evalu ating a n inef fecti ve ass istan ce of co unsel claim , the r eview ing cou rt sho uld j udge the attorney’s pe

rformancewithin the

context of

the case as a whole, taking into account all relevant circumstances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 1 48, 149 (T enn. Crim. App. 1988). The reviewing cour t must eval uate the questionable conduct from the attorney ’s perspective at the time. Strickland , 466 U.S. a t 690; Cooper , 849 S.W.2d at 74 6; Hellard v. State , 629 S.W.2d 4, 9 ( Tenn. 198 2). I n doin g so, the reviewing court must be highly deferential and “should indulge a strong presumpt

ion that c ounsel’sconduct f alls with in the wi de range of
reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemedto have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

On app eal, the

Petitioner

argue s that the p ost-conv iction court erred by

finding that th e Petitio ner was not denied effective assistance of c ounsel. Specifically, the Petitioner mak es th e following argume nts:
1. He w as denied effective assistance of c ounsel because (1) his trial at torne y failedto move to r

emand the

case to Juv enile Cour

t sin ce the trial court lacked jurisdiction: the Defendant’s constitutional rights were violated in the transfer hearing; and (2) his trial attorney failed to demonstrate, on direct appeal, that the Juvenile Court should not have transferred the child’s case

.-11-

2. He was deni ed effective as sistance of counse l becaus e his trial attorney failed to move to dis qualify

Co-couns el, who had repr esented both co-d

efenda nts, but withdr

ew beca use of a c onflict of

interest

. 3. He was denied effective assistance of c ounsel because his trial attorney fa iled to adequa tely invest igate the case and failed to adequately develop his trial st ra te gy.
4. He was denied effective assistance of c ounsel at trial because his attor ney fa iled to object to three inaccurate jury instructions and failed to r aise th e errors on appea

l.

5. He was deni e d effec ti ve assistance of counsel in his sentencing hear ing because his trial attorney fa

iled to demonstrate that

his sentences should run concurrent, not consecutive.

6. He was denied an attorney to represent him on appeal; or in the alternative, he was de nied eff ective a ssistance

of counse

l on appea

l. We disag ree with these as sertions.

A. Transfer from Juvenile Court

The Petitioner alleges that Counsel was ineffectivefor fail ing to mov e to rema

nd the ca se to juvenile court, a nd for fa iling to r aisethis issue on appeal. The juvenile court has exclusive original jurisdiction over chi ldren alleged t o be delinquent. Tenn. Code Ann. § 37-1-103(a)(1) (1996). The juvenile court may tra

nsfer jurisdiction to a criminal court for trial as an adult upon petition, notice and a hearing. Tenn. Code Ann. § 37-1-134(a) (1996). Such a transfer “terminates the jurisdiction of the juvenile court over

the child with respect

to the delinquent acts alleged.” Tenn. Code Ann. § 37-1-134 (c). The

re is no interlocutory appe al from the judgment of the juvenile court if it transfers the child to a criminal court. Tenn. Code Ann. § 37-1-159(d) (1996).

1. Failure to File Motion to Rem and to Juvenile Court

Counsel was appointed for the Petitioner on November 3, 1997. The State filed a petition to remove the case from juvenile court and have it transferred to circuit court, and the juvenile c ourt transferred

the case after the transfer he aring held on June 3, 1997. At the time Counsel w as appointed, the Petitioner’s case was already transferred to the circuit court, and he ha d been indicted by a grand jury . Counsel d

id not have

any ground s under st

ate law to appeal the transfer at the time he was appointed. Tenn. Code Ann. § 37-1-159(d).

Counsel’s only avenue f

or relief was on appea

l, and this issue wasnot raise d on direct appeal

. The post- convicti on court f ound that:-12-

[W]hen the [Petitioner] was indicted the issues with regard to juvenile court were no longer viable. There was no legal basis pre sented a t the heari ng on the motion for post convicti on re lief for the remand to juvenile court. The Court of Criminal Appeals considered the issues raised with regar d to the actions of the juvenile court, and other actions are waived for not being presented. T.C.A. 40-30-206(g).

The State contends that the Petiti oner waived this issue by not a dequately brie

fing the issue. Tennessee Court of Criminal Ap p eals Rule 10(b) states that “[i]ssues which are not supported by argume nt, citation t

o authorities, or appropriate referenc es to the record will be treated as waived in this court.” See also Tenn. R. App. P. 27(a)(7).

The Petitioner’s brief alleges that Rickey W. Griggs, the public defender who re presented the P etitioner

and co-d efenda nt Adams a

t the tran sfer he aring, provided ineffe ctive as sista

nce o f counsel on several grounds including: repre s enting both individuals when there was a conflict of interest in repre senting

bothindividuals at the transfer hearing; failing to object to the admission of the co-def

endant’ s stateme

nt at the tr

ansfer hearing ; failing

to file a motion to se

ver; and failing to object to co-def endant’ s stateme

nt on hear say

ground s.
T he Petitioner fails to cite to any authority or references to the rec ord to support the s e allegations and the Petitioner failed to introduc e eviden

ce to bolster this claim at the post-conviction hearin g. The Petitioner’s argument is simply an assertion with no supporting evidence. Therefore , we conclude that the Defendant has wa ived this issue. 2. Challenge of Transfer from Juvenile Court on Direct Appeal

The Petitioner also alleges that Counsel was ineffective for failing to challenge the transfe r from juvenile court on d

irect ap peal. The Petitione

r asser ts that, ha d his statement been suppressed at the transfe

r heari ng, he w ould have

been suc cessful

in keepin g the ca se befor e the juve nile cour t. This allegation is based

on the Petitioner’s claim that the statement given to the police should have been suppressed on the grounds that the Petitioner’s statement was not voluntar ily and intelligently givendue to his mental retardation. Griggs made a n oral motion to suppress the statement at the time it was read by

Special Agent Bieber at the tra nsfer he aring. The motion was denied. After Agent Bie ber read the statement, Grigg s moved to suppress the statement. This motion wa s als o denied.

To pre vail on a claim of ineffective assistance of counse l, the Petitioner must show tha t Counsel’s “representat

ion fell b elow an objective standard of reasonablene ss,” and that t his perf orman ce prejudiced the defense, resulting in a f ailure to produce a reliable result. Strickland , 466 U.S. at 687-88 ; Coope r , 849 S.W.2d at 747. The post-conviction court found that: (1) the Petitioner failed to show that, but for Griggs’ unre asonable error, the juvenile court judge at the transfer hearing would hav e denied

the State ’s motion to

transfer the Petitioner ’s case from juve

nile court to the circuit court; (2) the Petitioner failed to prove that, had Grigg s moved to s uppress h is statemen t, he would h ave bee

n succes sful at ke eping th e case before the juvenile court; and (3) the-13-

Petitioner failed to show that

he would have prevailed had Counsel raised the issue conc erning the transfe r heari ng on ap

peal. The juvenile court transferred jurisdiction to the circuit criminal cour t after it provided the Petitioner with noti ce and a heari ng. Tenn. Code Ann. § 37-1-134(a) (1996). A t the hearing, the juvenile court judge stated that “a jury sho uld decide t he case . . . .” The judge ma

de this determination “based on the heinous nature of the crime, the fact that they are repeat offenders, [and] the fact tha

t appare ntly after th e incide nt occur red ther e was littl e or no re

mo rse. . . .” The ju dge stated that he did not believe that possib le reha bilitation through procedu res and s ervice s availa

ble through the juvenile court were appropr iate in a f irst-deg ree mur der cas e, which

conflic ts with the statute; however, the Petitioner has failed to show prejudice. The judg e cited to other factors weighing in favor of

transferring the case to the c ircuit court. The transfer terminated the jurisdiction of the juvenile court

over the Petitioner

withrespect to the delinquent acts alleged. Te nn. Code Ann. § 37-1-134 (c). Ac cording ly, because the juven ile cour t based itsdetermin ation to tr ansfer the case on multiple factors, none of those being related to the Petitioner’s statement, we conclude that the evidence does not pr

eponder ate ag ainst

the post-conviction court’s finding that Counse l’s failu re to move to remandthe c ase to juvenile court and his failure to raise this issue on appeal does not warrant post-conviction relief.

B. Failur

e to Move

to Disqualify

Co-counse

l because o

f Conflict of Int

erest
The Petitioner

allege s that Couns e l wa s ineffective for failing to move to disqualifyCocounsel because Co-counselinitially represented both the Petitioner a nd co-defendant Adams. Cocounsel w as appoin

ted to represent the Petitioner and co-defenda ntAdams on July 10, 1997. Cocounsel testified that he filed a motion to withdraw as counsel for the Petitioner on November 3, 1997, when he r

eceive d notice f

rom the Sta

te that it mi ght see

k life without possibi li ty of par ole. He explained

that he became co ncerne d that the re would be questi ons of cul

pability at the sentencing hearing and tha t h e could not continue repres enting b oth the Pet itioner a nd co-de fendant Adams. Co-counsel further testified that, between July 10, 1997, and November 3, 1997, he s pent little time witheither the Pe titioner or the co-defendant, and that, in fact, he ha d no recollection of meeting withthem during that time and had no notes in hi s files from that period. Co-counsel testified that he contin ued to re present the co-d efenda nt during the trial and throu ghout the

appealsprocess
. To satisfy the requ irement o f prejud

ice, the Petitioner

mu st show a reasona

ble pro bability that he was prejudiced by

Counsel’s failure to move to disqualify Co-counsel as counse l for co-defendant Adams. Strickland , 466 U.S. a t 695. This r

easonab le probability must be “sufficient to undermine confidencein the outcome.” Id. at 694; see also Harris , 875 S.W.2d at 665. Further, the Petitioner must show that but for Counsel’s unreaso nable error, the jury

would have reached a differ ent finding regarding the Petitioner’s guilt. Strickland , 466 U.S. at 687. The Petitioner has failed to show that he was pr ejudice d by

Co-couns el’s con

tinued re present ation of h is co-defendant

. The Petitioner cites to the circuit c ourt judg e’s state ment that “in a case

like this I probably should have appointed separate attorney s from the very beg inning” to support the assertion that Co--14-

counsel’s representation of co-defendant Adams was prejudicial to the Petitioner. However, Cocounsel testified at the post-conviction hearing that he did not initially foresee any conflict between the Petitioner and co-defendant Adams, which is contrary to the Petitioner’s assertion. He stated that he first thought there may be a conflict when

he “rec eived som

e discove ry materia ls from the

State that indicated that

in the event that the matter [went] to trial and the State was seeking to enhance the punishment from the level of a life sentence up to life without parole.

. . .” He testified that he thought there may be

a conflict of interest at the sentencing phase be cau se there might be a “materi a l” di screpancy

with regard to the degree of culpability re garding the Petitioner and codefendant Adams. The Petition er attem pts to un dermi ne Co- couns el’s t estim ony by citin g Wood
v. Georg ia , 450 U.S. 261 (1981), for the proposition that an attorney is unlikely to admit that

“he had continued improperly to act a s counsel.” Wood , 450 U.S. at 265, n.5. The Petitioner’s reliance on Wood is misplaced.

The attorney

in Wood was bein g paid b y a n intere sted third -party

to repre sent the individuals at trial and on appeal. The individuals in Wood were c harge d with sell ing inde cent mate

rial while working at an adult theater and bookstore. The owne r of the th eater h ad promis ed to pay any fines, legal fees, a

nd post any bonds nece ssary if they faced legal

troubles as a res ult of thei r employ ment. Th e Su preme Court recognized that the attorney might be unable to represent the best interests of the employees whose

legal fees wer

e being pa id by the employ er. There was a concer

n that what
was in the best interest of the defendants might not be in the best interest of the employ er, who was paying the legal fees. As a result of this potential conflict of interest, the attorney might be unwilling to admit he

acted imp

roperly . In th

e case b efore u s, Stockton’ s conflic t of inter est did not arise as
a result of the source of either the Petitioner’s or Adams’ leg al fees. Co-counsel is an employee of the State and

would not h ave th e same inherent conflict arising from the source of his salary and those he repr esents. F urthermo re, Co-c ounsel recognize d a potent ia l conflict of interest affecting the sentencing phase and requested to be removed as counsel prior to the trial and prior to any meeting s with either Petitio ner or c o-defe ndant.

Las tl y, the Pet itioner argues that Counsel should have moved to disqualify Co-counsel because of an ap pe ar an ce of

im pr op ri et y. The Petitioner fails to c ite to the r

ecord, a nd nothing

in the transcript indicates that the jury knew that Co-counsel represented both the P etitioner an d codefen dant Adams prior to th e trial. C o-counse

l testifie d at the po st-convi ction hea ring tha t his
concernabout the

conflic t of inter

est involv ed the Sta

te’s notif ication th at it

would seek a sentence of life without possibility of parole. However, the State did not seek this sentence, eliminating the potentia l conflic t of inter

est. The p ost-conviction court found that:
[Co-c ounse

l], counsel for a co-defendant Adams, re presented both [the Petitioner] and the co-defendant Adams at one p oin t. He was relieved and [Counsel] was appointed to represent [the Petitioner], upon motion being filed, and it appeared that the case would be tried. It i s alleg ed that [Cou nsel] shoul d have objected to [Cocounsel ] continuin g to rep resent c o-defe

ndant. Ho wever, [the Petitio ner] fail s to show how he is prejudiced by [Co-counse

l] continuin g to repres ent a co- defenda nt. Even if he had

objecte d, there

was little

likelihood

that [Co-c ounsel] would have-15-

been relieved abs ent a showi ng of ha rmful con flict. [The

Petitioner

] has faile d to demonstrate prejudice.

We agree with the po st-convi ction cou rt that the

Petitioner

fail ed to m eet his burden of proving that his tr

ial’s outc ome would

have be en diffe

rent had Co-couns el, who represented codefendant Adams, been disqualified, or that hewas prejudiced by Co-counsel representing thecodefenda nt. Absent the Petitioner’ s showing a harmful conflict, there is little likelihood that Cocounsel would have been relieved, and no evidenc e was pr esented at the pos t-conviction hear ing to support a showing a of harmful conflict. Accor dingly, we

conclude that the Petitioner failed to show how he was prejudiced by Counsel’sfailure

to file a m otion to disq

ualify Co-couns el. The Petitioner is not entitled to post-conviction relief on this issue.

C. Failure to Investigate and Adequately Develop Trial Strategy

The Petitioner

allege s that Couns e l fa iled to ad equatel y in vestiga te the ca se and fa

iled to adequa tely develop his tri al s trategy . The Petitioner argues that Counsel was ineffective when he withdrew the motion to suppress the Petitioner’s statement; when he failed to file a motion to sever the trials of the Petitioner

and co-defendant Adams; and by failing to adequately

investigate the case. The evidenc e shows th at Counsel develop ed a theo ry of the ca se and cons tructed his trial strat egy ac co rd in gl y. Counsel testified that the facts were “bad facts.” Counsel also testified that the victim
was a sy mpathetic victim, and the State

had forensic evidence of a footprint in the victim’s kitchen matching the Petitioner’s shoe and an ey ewitnesswho saw th

e Petitione

r and the three c o-defe

ndants walking out of

the muddy

field af ter aba ndoning the victim ’s car. Counsel explained th at, faced with these facts, he believed

the Petitioner’s only chanc e was to acknowledge his presence in the victim’s house but to port

ray him as a ment ally retard ed individ ual who wa s a

“follower,” with the hope that the jury would find the Petitioner less re sponsible.

Counsel testified that he initially filed a motion to suppress the Petitioner’s statement to the police but withdrew the motion prior to the trial. He explained that, rather than put the Petitioner
on the stand

and subje ct him to cross-examination by the district attorney , he thought it was better to allow the

somewha

t self-se rving st atement into evide

nce. Coun sel furth

er explain

ed that t he statement was somewhat beneficial to the Petitioner’s position that he had little involvement in the crimes. Last

ly, Counsel sta

ted that he did not believe the motion would have been successful because the mo ti on ha d p re vi ou sl y be en pr es en te d t o t he ju ve ni le co ur t u ns uc ce ss fu ll y, and bec ause the Petitioner’s mother was present at the time the statement was give n.
Counsel testified that he did not think a jury could be convinc ed that the Petitioner did not
reco gniz e the inherent danger of placing a man wrapped in a blanked into a bat htub fille d with

water and kerosene and the

n piling f urniture on to p of him . Rather than risk alienating the jury by present i ng this argument, Counsel decided the best strategy was to minimize the Petitioner’s involveme

nt. He stated that

the Petitioner’s statement to the police was the best method to present the Petitioner’s side of the story without subjecting him to cross-examination, and that the statement shifted the responsibility of what happe ned to the others involved.-16-

The Petitioner also alleges that Counsel wa s ineffe ctive be cause he failed to filea motion to
sever the trials of the Petitioner and co-defendant Ad ams . Counsel stated that he did not file a motion to sever the Petitioner ’s trial and co -d ef en da nt Ad am s’ s t ri al as pa rt of th e t ri al st ra te gy. Counsel explained that, because the strategy involved making the Petitioner look like a follower, he believedit was nec essary to have so meone sitt

ing next t

o the Petitioner at the trial. Counsel explained that, by not severing the trials, the Petitioner sat next to someone that the jury could have thought was a “really

bad guy .” He te stified th at the str ategy was to have the Petitioner presented
as a mentally reta

rded individual who followed some bad people and made a mistake, with the hope that the jury would “cut [the Petitioner] a break.”

We conclude that Counsel’s trial strategy of attempting to present the Pet itioner a s less culpable, withdrawing themotion tosuppressthe Petitio ner’s sta tement, a nd not filing a motio n to sever the trial s of the Pe

titioner a nd co-de fendant Adams, “ falls with

in the wide

range of reas onable professional assistance.” Burns , 6 S.W.3d at 462. Counsel a dmitted tha

t, in hindsight, he wished he had done some things differently and he may ha

ve changed his trial

strategy , but he did not know what he would have done differently. F urthermore, he was unconvinced any changes would have made an impact on the verdict. In the midst of a f irst-degree murder trial, C ounsel made a wellreasoned judgmen t call re garding how to p rese nt the Petit

io ner to the jury. We will not deem Counsel to hav e been i neffective merely because a different proce dure or strategy might have produced a different result. Williams , 599 S.W.2d at 279-80. Furthermore, the Petitioner has failed to prove tha

t Counsel’ s perfor

mance pr ejudic ed his defe nse, resulting in a failure to produce a reliable result. Strickland , 466 U.S. at 687; Cooper , 849 S.W.2d at 747. Accordingly , we conclude that the Petitioner is not entitled to post-conviction relief on this issue. D. Failure to Object to Inaccurate Jury Instructions or to R aise Errors on Appeal

The Petitioner

allege s that Couns el faile d to obje c t to the jury instruction on criminal
re sp on si bi li ty. Petitioner further alleges that Counsel was deficient f or failing to object to the trial court’s failure to instruct the jury on the natural and probable consequences rule . L astly, t he Petitioner alleges that Counsel was ineffective for failing to object

to the jury

instructi ons on fir stdegree murder and felony

murder. We conclude that none of these issues entitle t he Petitioner to relief. 1. Criminal Responsibility and Natural and Probable Consequences

The Petitioner

allege s that Couns el was ine ffectiv e for fa

iling to object to the trial court’s failure to instruct on the natural and probable consequences rule and how it relates to the criminal responsi bility of another. The Petitioner

relies on State v. Carson , 950 S.W.2d 951 (Tenn. 1997), and State v. Howard , 30 S.W.3d 271 (Tenn. 2000), for the proposition that Counsel was ineffective for failing to object to the jury instruction for the criminal conduct of the co-defenda nt. The Petitioner’s reliance on Howard is imprope

r becau se Howard

was not filed by the Te nnessee Supreme Court until July 6, 2000, a nd the case bef ore us was tried in March of 1998 and the-17-

Petitioner’s appeal was denied in December of 1999. Since Howard do es no t a pp ly r et ro ac ti ve ly, it is not applicable here.

Carson is distinguishable from the case before us. In Carson , the defendant, who planned the store ro

bbery , furnished gunsand inside informat ion to his co-defendants but waited in the car outside the store, and was convicted of agg ravated robbery , aggravated assa ult, and felony

reckle ss endangerment. Carson , 950 S.W.2d a t 952. The

Supreme C ourt conc luded tha t: [T]he defenda

nt was cr im i nally responsible for the acts of his co-defendants under Tenn. Code Ann. § 39-11-402(2) because . . . the common law rule (tha t a defendant who aids and abe

ts a co-d efenda nt in the c ommission of

a crimina

l act is lia ble not only for that c rime but a

lso for a ny other cr

ime committ

ed by the co-d efenda nt as a natural and probable consequence of the cr ime origi nally

aided and abette d) is applicable under the statute.

Id. The Court affirmed the conviction.

The “natural and probable consequence s” rule underlies the do ctr ine of criminal responsi bility and is bas ed on the d

etermina tion that a iders or abettor s should

be respo nsible

for the criminal harms the

y ha ve natur ally , probab ly

and foreseea

bly put into motion. Id. at 9 54- 55. In order for the State to impose criminal liability based on the natur al and pr obable consequences rule, the State must prove beyond a r easonable doubt and the jury must find: ( 1) the el ements of the crime
or crimes that accompanied the targe t crime; ( 2) that the

defenda nt was cr iminally responsible under Tenn. Code Ann. § 39-11-402; and (3) that theother crimes that were committed were natural and probable consequences of the targe t crime. Id. The Court found that Tennessee Code Annotated section 39-11-40 2(2), wh ich state s that one

may be crimin ally

responsi ble i f he or sh

e “solic its, directs, aids or a

ttempts to a

id anothe r person to commit [an] offense,” is derived from common law. The Court concluded th at, in accordance with the “natural and probable consequences rule” a pplied under Tennessee Code Annotated sections 39-11-401 and 402, “the e vidence was suff

icient to find that the defendant, having directed a nd aidedin the aggr

avated r obbery with the in

tent to pro mote or benefit from its commission, was criminally r esponsibl e for all of the of fenses c ommitted by

his co-defendants. . . .” Carson , 950 S.W.2d at 956.

This case is f

actually different from Carson . In th

is case, the fac ts show tha

t four ind ividuals acted in conce rt. Co-defendant

Adams an d [the Petiti oner], al ong with two adult co-defenda nts, entered the 71-y ear-ol d victim’shome with t he intent to steal a large amount of

money rumored to be kept in the

house. Un success fu l in finding the money, they sat down to watch basketball and waited for the victim’s return. When the victim returned home, the four co-defendants ambushed him in the kitchen. The adults bound the victim’s hands and feet with coat hangers a nd duct tape. Then, he was placed

in the bathtub, which the Petitioner had filled with water and kerosene. Before leavi ng, they cover

ed the victim with various blankets, drapes, and pieces of furniture . The victim died of asphyxia.-18-

The co-defendants took twenty dollars from

the victim’s wallet, a kerosene space heate r, and the victim’s car. They

sp ent the afternoon driving around in the victim’s car, e ating snacks purchased

with the victim’s money. They abandoned the car in a muddy field after getting stuck and hitchhiked back home. In Carson the defe ndant wa s waiting

in the car. In this case, the Petitioner was acti vely

involved with three

other defendant s in tying the victim and putting him in a bathtub filled with water and kerosene.

The Petitioner

maintainsthat dea

th is not a natu

ral and p robable consequence of the acts of the four defendants ty

ing and binding the victim, rather the Petitioner contends that the victim died becaus e of his age an d other health problems unrelated to being tied, bound, and plac ed in the bathtu b. The trial court determined that the death of the victim was a na tural an d probabl e consequence of the acts of the Petitioner and his co-de fendants.

While the Petitio ner arg

ued that h e did not intend the death of the victim, the trial court found that death was undoubtedly a natura l and probable cause of

wrappin g an eld

erly man in a bl anket, placing him in a bathtub filled with water and kero sene, and then pla cing fu rniture o n top of him

to prevent him from getting out of the bathtub. Even if the Peti tioner did not intend

to kill the victim, th e result w as a natural and probable result. On cross-e xamination, Dr. Phyfer admitted that the Petitioner told her about his participation in the robbery. She testified that the Petitioner knew what he was doing was wrong. She further testifi ed that the Petitioner understood that water could be dangerous and that the Petitioner would recognize wrapping a n individual in a blanket, placing him in a bathtub filled with wat er and ke rose ne, and then placing items on top of him to prevent the individual’s escape as “a very , very dange rous thing to do.” Th

e Petitione

r failed to meet his burden of proving his allegation by clear and convincing evidence of ineffective assistance of counsel for failing to object to the trial court’s failure to instruct on the natural and prob able

consequences rule. The Petitioner

admitted being present

and, at th e very least, fi lling the

bathtub w ith water , even if at the time he

did not know

why he was do ing it. Hi s admission was suff icient fo r a jury to find him responsi ble for the victim’s death. Ac cordingly , the Petitioner is not entitled to post-conviction relief on this issue. 2. First-Degree Murder and Felony Murder

The Petitioner alleges that Counsel was ineffective for f ailing to objec t to the jury in structions
on first-degree murder and f elony murder. The

Petitioner failed toraisethe issue of the jury instructions on first-degree murder and f elony murder in his petition for post-conviction relief or at the post-conviction hearing. I ssues not presented in the post-conviction petition may not be raised for the first time on appeal. Cone v. Sta te , 747 S. W.2d 353, 356 (Tenn. Crim. App. 1987). Ac co rd in gl y, the alleg ation of in effec tive assis tance of

counsel f

or faili ng to obj ect to the jury instruction on first-degree murder and f elony murder is wa

ived.
E. Failur

e to Dem onstrate Sentences Should Run Conc urrently-19-

The Petitioner alleges that Counsel was ineffective for f ailing to demonstrate that his sentences should

have run concurrently

rather than consecutively . We find this issue to be without merit. At the sentencing hearing, the tr ial court sentenced thePetitioner to serve his sentences for first -degr ee murder, felony murder, aggrava

ted robbery

and especially

aggravated kidnapping
consecu tively because it found that he was both on probation at the time he committed these crimes and that he was a dangerous offe nder.

At the post-conviction hearing, the Petitioner argued that there was a clerical error and he was not, in fact, on probation at the time of the incident. The pre-se nte nce report indicated that the Petitioner was on probation; however, it mistakenly listed co-defendant Adams’s case number a nd record in the Petitioner’s report. Accordingly , while co-defendant Adams was on probation at the time of the incident, the record lacks evidence that the Petitioner w as on probation at the time of the incident

. While the State is willing to concede that therewas a clerical error and that the Petitioner
was not on probation at the time of the incident, the Petitioner still mus t prove that the trial court erred when it found the Petitioner to be a dange rous offender.

Dr. Phyfer testified that the Petitioner wa s not a dangerous offender in the sense that he was
un lik ely to plan or

instiga te robbe ries. How ever, D r. Phy

fer test ified tha t the Petiti oner wa s a dangerous offender to the extent that he was led by dangerous people. S he explained that, b ecause he seeks approval from

peers, if he fell under

the influence of bad or danger ous people, he may be suscepti ble to doing b ad thing s again . She furt her te stified, that after reviewing the Petitioner’s school records, she conclude d that althoug h the Petitioner had been in fights, he had never used weapons , and the id

ea of de liberate ly harming another person “was absolutely foreign to him.” She explained that the Petitioner’s disciplinary problems wer e the result of his efforts to make people like him.

Dr. Phyfer testified that the Petitioner told her about his participation in the incide nt. Sh e stated that h e knew t he dif ferenc e betw een righ t and w rong, and that, while in his mind he was trying to keep the victim from calling the po lice and not trying to kill him, the Petitioner would see wrapping someone in a bl anke t and then placing the person in a bathtub filled with water a nd kerosene as “a very , very dang erous thing to do.”

Dr. Phyfer spec

ulated that, by the time the victim was plac ed in the bathtub and wrappe d in the blanket, the Petitioner was so far involved in the robbery , he was not listening to his “best voice,” and, in her opinion, the P etitioner was n ot thinking for himself at all. She explained that the Petitioner’s ordinar

y c apacity for judgment was l

ikely diminished

even mor e by being in the victim’s house with other people telling him what to do.

While Dr. Phyfer’ s testimonywas unavailable to the trial court at the time of the sente ncing, it is unclear that her testimony would have benefitted

the Petitioner’s position. Dr. Phyfer stated that the Petitioner, while notan obviou sly dange rous off ender, h ad the pot

ential to b e one if

he followed the wrong people. Furthermore, she stated that

the Petitioner admitted to being at the home of the-20-

victim, participating in the burglary , and understanding the difference between right and wrong. The trial cou rt held tha

t:
Petitioner allege s that [Couns e l] wa s ineffe ctive at s entencing by failing to object to consecutive sentencing, and failed to show that def end ant was no t a dangerous offender. The state did not pursue life without parole a t the tria l. Therefore, th

e only sentence for the murder conviction was life.
[Counsel] went over

the pre-sentence report with his client, and stipulated to its admission. Petiti oner n ow claims that there was an error in the repor t, which stated he was on probation at the time of the offense.

Petiti o ner received the presumptive sentence of 8 y ears for aggr

avated
ro bb er y, and the pr

esumptive

sentenc e of 15 y

ears fo r espec ially

aggrava ted kidnapping, concurrent, but consecutive to the life sente nce.
The Court used two factors under T.C.A. 40- 35-115 to

impose consecutive sente ncing. T heref

ore, even if in error about the factor that the offense was committed while on probation, the consecutive sentencing would still be imposed on the fact that the defendant is a dangerous offe nder whose behavior indicates little or
no regar d for huma

n life, a nd who com

mitted a c rimein which th

e risk to human life is high. Th

e Court fo

und that a

n extended

sentenc e was ne cessar

y to pr otect the public and that consecutive sentences reasonably relate to the severity

of the offenses that were committed.

The Court finds that petitioner has failed to satisfy his burden of showing that his counsel was deficient for failing to discover the error in

the pre- sentenc e repor

t, or that his fa

ilure to do

so prejudic ed the out

come of the sentencing. The petitioner is not entitled to post-conviction relief on this issue.

The trial cou

rt articulated itsfinding

that the Pe

titioner w as “ a dang erous of fender whose behavior indicates little or no regard for human

life, an d who comm

itted a cr ime in whic

h the risk to human life is hig

h.” The t estimony by Dr. Phy

fer doe s not contr

adict thisfinding. The Petitioner failedto meet his burden of proving his allegation by clear and co nv in ci ng ev id en ce . A cc or di ng ly, we conclude that the Petitioner is not entitled to post-conviction relief on this issue.

F. Denied Effective Assistance of Counsel on Appeal

The Petitioner alleges that Counsel provided ineffe ctive assistanc e of coun sel durin g his appeal. Petitioner bases this allegation on the fact that Counsel copied the co-defendant’s brief and,
as a res ult, faile d to raise

other issu es on app eal. The trial cou rt found t hat:-21- It is counsel’s responsibility to determine the issues to pre sent on appeal. State v. Matson , 729 S.W.2d 281 , 282 (T enn. Crim. App. 1986 ). This responsi bility addresses itself to the professional judgment and sound discretion of appella te counsel. Porterf

ield v. Sta te , 897 S.W.2d 672, 678 (Tenn. 1 995). The re is
no constitut io nal requ

irement t hat ever y c onceiva

ble issue be raise d on appe al. Campbell v. State , 904 S.W.2d 594, 597 (Tenn. 1995). The determination of which issues to raise is a tactical or strategic choice

. Id.

Petitioner has failed to show how copy ing the brief of co-counsel was prejudic ial. [Counsel] testified that he and [Co- counsel] worked together on the case, and collabor

ated on th e appea l. [Counsel] w as satisf

ied that th

e main i ssues were presented on appeal. This was a tactical choic e.
The Court finds that petitioner has failed to satisfy his burden of showing that his counsel w as defic ient for f ailing to brief additional issues, or that his failure to do
so prejudiced the outcome of the appeal. T he pe titioner i s not entitl ed to postconviction relief on this issue.

The Petitioner alleges that Counsel merely co pied the co-defendant’s brief, howeve r, Counsel testified at the post-conviction hearing that that was not the case. Counsel explained that while he copied the brief, he did do research. He explained:

I don’t mean I just copied [co-counsel’s brief] without reviewing anything a

nd doing the research. That’s not correct. I used hi s h ard copy, but I just didn’t blindly put thin gs in my brief. I

tho ught tha

t is sue on double jeopardy argument was a good issue, b ecause

if it was successful [the Petitioner] would walk. But, ye s, I did do research.

While the Petitioner alleges that Counsel failed to researc h issues fo

r appea l, Counsel t

estified to the contrary at the post-conviction hearing. He testifie d that he r

esearc hed possib le issues and that he endedup copying

the co-defendant’s brief after he reache d the conclusion that the double jeopardy issue “was really

the best appellate issue [the Petitioner] had. ” We conclude that the Petitioner has failed to show that C ounsel’srepres entation at the ap pellate l evel wa s deficie

nt.

Even if Counsel’s representation were deficient, however, the Petitioner has failed to show prejudice. To preva

il on a cla imof ineffective assistance of counsel, the Petitioner must show that “counsel’s representation fell below an objective standard of reasonableness,” Strickland , 466 U.S. at 688, and that this performance prejudiced the def ense, resulting in a failure to produce a reliab le result. Id. at 687 ; Cooper , 849 S.W.2d at 747. To satisfy the requirement of prejudice, the Petitioner must show a reasona ble proba bility that, had Counsel ra

ised cer tain issue s on appe al, the appe llate court would have granted a ne w trial o r the outc ome would have be en diffe

rent. Thi s reason able probabil ity must be “sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at-22-

694; see also Harris , 875 S .W.2d at 665. The Petitioner has failed to satisfy this burden. Accordingly , we conclude that the Petitioner is not entitled to post-conviction relief on this issue.
III. Conclusion
Thus, we conclude that the post-conviction court properly found tha

t the Petitioner failedto prove i neffe ctive as sistance of counse

l by clear a nd convincing ev

idence a nd that Counsel fully discharged

his duties as the Petitioner’s attorney . Accordingly , the judgment of the post-conviction court is AFFIRMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE