### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Decem be r 2, 2 00 3

GABRI EL ANTO NIO CLARK v. ST ATE OF TE NNESSEE

Appeal f rom the Circ uit Court for Madison Cou nty No. C-03- 22 Roy B. Morgan, Judge

No. W2003-01017-C CA-R 3-P C - F iled March 24, 2004

Gabr iel Antonio Clark appea ls from the Madison County Circuit Court’s denial of his petition for post-conviction relief

. Be cause we ag ree with the lower court that the petitioner failed to prove his alleg ations by

clea r and c onvincing evidenc e, we aff irm.

Tenn. R. App . P . 3; Judgme nt of th e Circ uit Court is Aff irm ed.

J A M E S C U R W O O D W I T T , J R ., J
., delivere d t h e opinion of the court, in which A L A N E. G L E N N and R O B E R T W. W E D E M E Y E R , J J ., joined.

Be njamin C. May o, J ackson, Te nnessee , for the A ppellant, Gabr iel Antonio Clark.

Paul G. Summers, Attorney Gene ral & Reporter ; Br aden H, Bouc ek, Assistant Attorn ey Gene ral; J ames G. Woodall, District Attorney Gene ral; and Al Earls, Assistant District Attorney Gene ral, for the Appellee , State of Tenne ssee.

OP INION

The petitioner is prese nt l y s er v i n g a consec utive sentenc e of life plus 12 y ear s for convictions of felony murder and ag g ravated robber y

. See State v. Ga b r i el Antonio Clark
, No. W2000-02595-CCA-R3-CD (Tenn. Crim. App., J ackson, Sept. 7, 2001), perm. app. denied (Tenn. 2002). He filed a pro se post-conviction petit ion in which he alleg ed th at he had not rec eived the eff ective assistance of counsel in the conviction proce eding s and that he had not recei ved due proce ss beca

use the jury was not instructed with cer tain lesser inclu d ed o ff

enses. The petitioner there afte r obtained the assistance of co u n s el
, t hroug h whom he filed an amende d petition which detailed the petitioner’s constitutional complaints with reg ard to the unchar g ed lesser included offe nses.

The l o wer court conducte d a hear ing, at the beg inning of which the state soug ht dismiss al of the petition b ec au s e the petitioner had not set forth an alleg ation that the issues prese nted were not wa ived despite not having been r aised in ea rlier pr ocee dings. The petit ioner’scounsel answe red the state’s challe n ge b y charac terizing the lesser included offe nse issue as one

falling under the umbrella of ineffe ctive assist ance of counsel. The lower court denied the state’ s motion, and the matter proce eded to hear ing. At the close of the hear ing, t h e l o we r court denied relief

. The lower court’s order deny ing relief addre ssed the jur y i n s t ru ct i o n issue both as one of ineffe ctive assistanc e of counsel and as one of f ree -standing constitutional error. T he cour t found that the petit ioner failed t o car ry his burden of proof with respe ct t o the i neff ectivene ss claim and that any err or in the jury instructions g iv en was harmless. The petitioner then filed the prese nt appea l.

I n his appellate brief, the petit ioner does not pursue an ineffe ctive assistance of counsel claim. Rather, he raises fre e-standing constitutional claims with respe ct to the failure of the trial court to instruct the jury on cer tain lesser included offe nses. Howeve r, in his reply brief to this court, he ag ain raises the ineffe ctiveness issue. We will consider the jury instructions claim as both a fr ee- standing constitutional iss ue and a s an alleg ation of ineff ective a ssistance of c ounsel.

We consider first whether the state corr ectly posits that the defe ndant has waived the issue as one of fre e-s t an d i n g constitutional err or beca use the issue was not prese nted in the petitioner’s direc t appea l of his conviction. Subject to cer tain exceptions not pertinent in this case , t h e P o s t -Conviction Procedur e Act bars consideration of any claim t hat could have been, but was not, prese nted in an ear lier proce eding

. See Tenn. Code Ann. § 40-30-106( g ) (2003). The petitioner did not raise a jury instruction challeng e on direc t appea l. Thus, we conclude that the issue is waived

as one of fre e-standing constitutional err or. See State v. Townes
, 56 S.W .3d 30, 38 (Te n n

. C ri m

. App. 2000) (fa ilure to g ive lesser included offe nse instruction issue waived in post-convict i o n proce eding beca

use not raised in ear lier direc t appea l), overruled on other grounds by State v. Terry
, 118 S.W .3d 355, 358 (Tenn. 2003)

.

We then move on to the state’s argument that the issue, whether one of fre e-standing constitutional err o r o r i neff ective assistance of counsel, is waived beca use the trial transcr ipt containing the j ury instructions is not in the appella t e re cord. On t hat poi nt, we disagr ee with the position taken by t h e s t ate. Although the jury instructions are not in the appellate rec ord of this proce eding
, we are empower ed in this situation to take judicial notice of the appellate rec ord from the petitioner’s prior direc t appea l. See, e.g., Delbridge v. State
, 742 S.W .2d 266, 267 (Tenn. 1987).

Thus, we will consider the issue on its merits, having noticed the rec ord of the prior direc t appea l.

When a petiti oner challeng es t he ef fec tive assistance of counse l, he has the burden of establishing (1) defic ient repr esenta tion and (2) prej u d i ce resulti ng from that defic iency

. Strickland v. W

ashington
, 466 U.S. 668, 686, 1 0 4 S. Ct. 2052, 2064 (1984); Baxter v. Rose
, 523 S.W .2d 930, 936 (Tenn. 1975)

. Def icient repr esenta tion oc curs when counsel provides assistanc e that falls below the rang e of competenc e demande d of attorney s in criminal case s. Bankston v. State
, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the rea sonable likelihood that, but for defic ient repr esentation, the outcome of the proce eding s would have been dif fe rent. Ove rton v.

-2-State
, 874 S.W .2d 6, 1 1 (Tenn. 1994). Fa ilure of proof of either prong is fata l to an ineffe ctive

assistance of counsel claim. Strickland
, 466 U.S. at 6 9 7
, 1 0 4 S

. C t

. at 2069; Goad v. State
, 938 S.W .2d 363, 370 (Tenn. 1996). On revie w, there is a s t ro n g presumption of satisfac tory repr esentation. Barr v. State , 910 S.W .2d 462, 464 (Tenn. Crim. App. 1995)

.

We see no basis fo r d i s t u rbing the lower court’s ruling that the petitioner failed to

car ry his burden of proof on the ineffe ctiveness claim. At trial, the questions of the defe ndant’s g uilt of first deg ree felony murder and ag g ravated robber y wer e submitt ed to the jury

. For the first deg ree murder count, the trial court instructed the jury on the lesser included offe nses of fac ilitation of first deg ree murder, second deg ree murder, and fac ilitation of second deg ree murder. For the ag g ravated robber y count, the trial court instructed the jury on the lesser included o ff ense of fac ilitation of ag g rava ted robbery

. The petiti oner claims th at t he court should have included i nstructions on the lesser included homicide offe nses of rec kless homicide and criminally neg lige nt homicide and the lesser included robber

y offe nses of simple robber y and theft. He further posits that counsel’s failure
to object to the incomplete instructions g iven at trial and failure t o raise the issue on appea l amounted to ineff

ective a ssistance of c ounsel.

Wit h respe ct to the homic i d e count, any err or of the trial court in not g iving instructions on reckless homicide and criminally neg lige nt homicide must be char acte rized as harmless. See generally State v. W illiams
, 977 S.W .2d 101, 106 (Tenn. 1998). The jury was instructed on lesser included offe nses which fall in the hiera rchy b etwee n the char g ed offe nse of felony murder and the offe nses the petitioner claims should have been char g ed, and it returne d a verdic t of the cha

rg ed off ense. The j ury

havingreje cted the inter

vening char g ed off

enses in fa

vor of the g reatest offe nse char g ed, it is not logic al that the jury would have found the defe ndant g uilty of the still -lesser offe nses that wer e not ch ar ged

. S ee generally id. Thus, any err or must be
cate g orized as harmless bey ond rea sonable doubt. See State v. Al l en , 6 9 S

. W.3d 181, 191 (Tenn. 2002); State v. Ely
, 48 S.W .3d 710, 727 (Tenn. 2001); W illiams
, 977 S.W .2d at 106. I t follows, then, that any defic ient perf

ormanc e on trial counsel’s part in failing to reque st less er included offe nse instructions cannot be labeled prejudicia l in the sense require d to establish ineffe ctive assistance of counsel.

The rema ining issue concern s t he lesser included offe nse instructions for the ag g rava ted robbery char g e. On t his charg e, no off enses f ell betwee n the principa l offense and the offe nses the petitioner claims should have been char g ed. We conclude
, howeve r, that any err or was harmless bey ond a rea sonable doubt, and that the petitioner failed to establish pre j u d i ce as an element of

his ineffe ctive assistanc e of c ounsel claim.

The law confe rs a duty on the trial judge to instruc t the jury as to the law of a lesser included offe nse if he or she deter mines that: (1) rea sonable minds could acc ept the offe nse as lesser i n cl uded; and (2) the evidenc e is leg ally sufficie nt to support a conviction for the lesser inclu d ed offe nse. State v. Burns
, 6 S.W .3d 453, 469 (Tenn. 1999) ; see also State v. Langford
, 994 S.W .2d 126, 128 (Tenn. 1999). Bo t h of those prer equisites are met in this case

. See generally State v.

-3-Gabriel Antonio Clark
, slip op. at 1-5 (petitioner’ s direc t ap p ea l ). Thus, failure to g ive the

instruction was er

ror. See ge nerally Burns , 6 S.W .3d at 469.

That said, howeve r, we ar e n o t prepa red to find such err or would have been

reve rsible. Although the jury could have found the petitioner g uilty of one of the l es s er i n cl uded offe nses, no rea sonable jury would have done so g iven the fac ts of this case

. See State v. Locke
, 90 S.W .3d 663, 675 (Tenn. 2002). The defe ndant claimed he was an unfortuna t e victim of circ umstance in that he g ot into a car unawa re that the other occupa

nts planned to commit a robber y

. See Gabriel Antonio Clark
, slip op. at 2. Fa ctually
, there was no question whether a deadly wea pon

was used and whether the victim suffe red serious bodily injury
, those fac ts constituting the elements of ag g ravated robber

y which elevate the offe nse from that of simple robber y

. See Tenn. Code Ann. § 39-13-402 (2003); Gabriel Antonio Clark
, slip op. at 3 (evide nce established that victim died from multipl e g unshot wounds). Thus, the trial court’s lack of instruction on the lesser included offe nses of robber y and theft, even if err or, was harmless beyond a rea sonable doubt. See Locke
, 90 S.W .3d at 675. I n the absence of harmful error, we are unpersuade d that trial counsel’s perfor mance may be dee med ineff

ective.

For these rea sons, we aff

irm the judgme nt of the lower court denying post conviction relief

.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE

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