### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November

6, 2001 Se ssion
ANTHONY RICH

ARDSON v. STA TE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-21728 Chris Craft, Judge

No. W2000-01438-CCA-R3-PC - Filed February 7, 2002

Petitioner, Anthony Richardson, was convicted of first-degree murder in the Shelby County Criminal Court. This Court affirmed the conviction on direct appeal. See State v. Richardson , 995 S.W.2d 119 (Tenn. Crim. App. 1998). Petitioner filed a petition for post c onviction relief, which the

postconviction court s ubsequen tly denied. Petitioner challenges the denial of his petition, raising the following issues: (1) whether the trial court’s comments during a witness’ testimony d

eprived him of his sixth amendment right to a jury trial; (2) whether Petitioner was denied his sixth amendment rightto a jury trial when the trial court “forced” c ounsel to proceed to trial; (3) whether the prosecutor’s biblical reference at trial constituted reve rsible er ror; and (4) w

hether t here wa s a conflict of interest when the same judge presided at both his trial and post-conviction hearing. After a thoroug h review of the re cord, we

affirm t he judgme

nt of the tr

ial cour t. 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 OE G. R ILEY , J., joined.

Gerald Stanley G

reen, Me mphis, Tennessee (on appeal) and John Finklea, Memphis, Tennesse e (at trial) for the appellant, Anthony Richardson.

Paul G. Summers, Attorney General and Reporter; John H . Bledsoe , Assistan t Attorne y Gener al; William L. Gibbons, District Attorney General; and Elai ne Sanders , Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION

I. Background

In the dir ect appe al of Petit

ioner’s convicti on, this Cou rt summar

ized the facts a s follows:

O n June 1, 1994, Terry Gilliard, the victim, was shot to death at the Le Moyn e Gardens Apartme

nts inMemphis, Tennessee. The victim wa s shot by two separa te ind ividuals , Appellan

t and Ear line Jac kson. The

two shootin gs were

appare ntly unrelated. Appellan

t testifie d that ea

rlier tha t day, he f

ought wit h vict im, left the
sce ne, and retrieved a gun that he had hidden near by. When he returned, he saw
so met hing being passed between the victim and his friends. Afraid for his life, Appellant testified that he shot the victim in self-defense. After Appellant fled the scene, witnesses testified that Earline Jackson a

lso shot the

victim additiona l times. The medic al examin

er testif ied that sh ots from ea

ch weap on were

fatal. Appellant and Earline Jackson were char ged with first degree murder.

On August 6, 1999, Petitioner filed a pro se petition for post conviction relief , raisi ng numerous claims including ineffective assistance of counsel and trial court error. Subsequently, the post-conviction court ap

pointed c ounsel to

assist Petitioner. Appointed counsel filed a total of three amended petitions alleging specific instances of ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief to the Petitioner, entering its written findings of fact and conclusions of law on May 9, 2000. Subsequently, Petitioner filed a timely no tice of a

ppeal to this Court.

II. Post-Conviction Hearing

At the post-conviction hearing, the trial court heard t estimon y from Petitioner and Petitioner’s trial counsel, Joseph Ozment. Petitioner testified that he filed the instant

petition based upon the ineffective assistanc e of coun sel. Petiti oner tes tified tha t trial co unsel should have objected to the entry o f autopsy photographs at trial. Petitioner described the autopsy photographs of the victim’s gunshot wounds as “gross.” In suppor t of his cla

im, Petitioner testified that the trial court
was reluctant to present the photographs to the jury before lunch. Further more, Petitioner

claimed that the photographs were not relevant. Petitioner stated that before the photographs wer e admitted, the medical examiner testified extensively about the location of the victim’s gunshot wounds, using the prosecutor as a mannequin. Petitioner also testified that the photographs were not admitted for identification purposes because previously, the medical examiner ide ntified the victim in a separa te photograph. Petitioner claimed that the photographs were admitted solely to inflame the jury.

Petitioner further testified that trial counsel failed to object to the trial court’s comments on the testimony of a witness called by the defense. Petitioner testified tha t in orde r to prove selfdefense, it was necessary to show that the victim, or someone close to the victim, was carr ying a weapon. Petitioner testified that on direct examination, a witness named Mr. Flynn stated that he
was with the victim when Petitioner began shooting and Flynn testif ied that, “I -- we

ran to the left,-3-

and he [Petitioner] was, you know, he was still coming at us. Then I shot right back through -- it was
a little opening in the side of the wall. I ran back through there.” However, Petitioner testified that
on cross-examination Mr. Flynn recanted his statement that “I shot right back through.” In response, the trial court stated, “he [Mr. Flynn] said, ‘I shot back through this way.’ I took it to mean he ran that way.’” Petitioner claimed that the trial court’s statement was an improper comm ent on the evidence. Petitioner testified that Mr. Flynn’s testimony supported his theory of self-defense, and that absent the court’s comments, he might have had a stronger ar gument for self-defense.

Petitioner further test if ied that trial counsel should have continued the trial to a later date. Petitioner claimed that a few days before trial, counsel admitted that he was not a “hun dred per cent” because his wife was in the midst of a difficult pregnancy and his brothe r was h ospitalized. Petitioner stated that

he asked counsel to continue the trial. Petitioner admitted that counsel made
one attempt to continue the trial, but claims that he should have tried again. Furthermore, Petitioner testified that

the cour t might have

been pe rsuaded to continu e the tria

l if couns el had ex

plained h is family difficulties as the reason for the continuance. Petitioner admitted that trial c ounsel stated “he
was going to try to give his all,” and that counsel gave his all to a cert ain ex tent. On crossexamination, Petitioner admitted thathe did not believe that trial counsel was deficient because he was not ready.

Petitioner further testified

that he wanted to negotiate a plea agreement, but counsel failed to present a writtenoffer. Petitioner claimed that before the trial beg an, coun sel pres ented him with
a potential twenty-year plea agreement. Howe ver, Petitioner claimed that when counsel presented him with the agreement form, it was blank. Pet itioner te stif

ied that counsel told him to sign the blank agreement, and then, he

would try to negotiate a twenty-year plea bargain. Petitioner testified that he would have accepted the twenty-yea r agreement if it was in writing. In addition, Petitioner further stated that the trial court refused to acc ept the plea.

Petitioner further testified that the prosecutor’s reference to a scripture passage at trial was unduly prejudici al. Petitioner, through his post-conviction counsel, acknowledged that this issue wa s addressed by the appellate court.

The State presented testimo ny from Petitioner’s trial counsel, Joseph Ozment. Counsel testified that any o

bjection to the ent

ry of the autopsy ph otograph s would ha ve been “fruitl es s.” Coun sel testi fied that the photographs were “extremely mild” with “[n] othing grotesque about them. ” Counsel testified that based on his appellate experience, the autopsy photogra phs , whic h depicted each fatal wound, were rele vant to the State’s burden o f proof. Counsel a lso testified that autopsy photographs are usually admitted even though the medical examiner use d dem onstrative evidence, such as a mannequin, for an illustration. Counsel further testified t hat he chos e not to object to the trial court’s comments on Mr. Flynn’s testimony because the court’s interpretation was fair. Furthermore, counsel testified that he addressed this issue through cross-examination, and probably argued it during closing arguments.

Counsel also testified that on the day of trial, he was prepared to procee d as s cheduled. Counsel acknowledged that the trial court provided adequate time and resources to pre pare for tria

l.-4-

Counsel testified that on the day of trial, the trial was delayed for over an hour for plea negotiat ions, which, although attempted, proved unsuccessful. Counsel stated that Petitioner

refuse d to acce

pt a negotiated plea agreement. Counsel refuted Petitioner’s claims that he re quested a continuance, or that he wa s issued bl ank pape rwork du ring plea negotiat ions. Finally, counsel acknowledged that during Petitioner ’s trial h is broth er was hospitaliz ed and his wife wa s experi encing a difficul t pregnancy. However, counsel testified that although it might have been “more convenient” if the trial date was po stpon ed, his pe rsonal a ffairs d id not aff ect his re present ation of Pe

titioner, his performance at trial, or the trial’s outcome.

At the conclusion of the evidentiary hearing , the post-conviction court den ied Petitioner relief in a written o rder. Th e post-c onviction

court fo und that Pe

titioner f ailed to prove the allegati ons in his petition by clear and convincing evidence. The trial court further determined that Petitioner had not established a valid claim of ineffective assistance of c ounsel.

III. Analysis

In order to obtain post-conviction relief a petition er must allege that his conviction or sentence is void

or voidab le because of an abridgement of a c onstitutional right. Tenn. Code Ann. § 40-30-203 (1997). If granted an eviden tiary hearing, Petitioner

has the bu

rden of p roving his allegations by clear and convincing evidence. Id. § 40-30-210(f). Findings of fact and conclusions of law made by the post-conviction court are afforded the we ight of a jury verdict, and may not be reweighed

or re-evaluated

by this Court. See Tidwell v. State , 922 S.W.2d 497, 500 (Tenn. 1996); Black v. State , 794 S.W.2d 752 , 755 (Te nn. Crim. A

pp. 1990) . Conseque

ntly, this Court is bound by those findings unless the evidence contained in the record preponderates otherwise. See State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999).

A defendant alleging ineffective assistance of counsel must prove the al legations of fact underlying his claim by clear and co nvincin g evidence. Tenn. Code Ann. § 40-30-210(f) (1997) ; Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). In order to determine whether counsel provided effective assistanc e, this Cour t must decide whether counsel's performanc e was within the range of competence demanded o f attorne ys in criminal cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). W

hen revi ewing a d

efense attorne y's actio ns, th is Cour t may not use "20-20" hindsight to second-guess counsel's decisions regarding trial strategy and tac tics. See Hella

rd v. State , 629 S.W.2d 4, 9 (Tenn. 1982).

To succeed on a claim that his trial counsel was ineffective at trial, a petitioner be ars th e burden of showing that his counsel made errors so serious that he was not functioning as counsel as guaranteed

by the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a failure to produce a reliable result. See Strickland v. Washington , 466 U.S. 668, 687 (1984); Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993). To sati sfy the second prong, the petitioner must show that he was prejudiced by his counsel's unprofessional errors, such that there is a reaso nable pr

obability t

hat, but f or counse l's e rrors, the result of the proceeding would have differed. See Strick land , 468 U.S. at 694. Petitioner’s failure to prove either element, deficient performance or prejudice, re quires dismissal of his claim. See id . at 697.-5-

A. Trial Cour

t’s Commen

ts In his first issue, Petitioner argues that the trial court’s comments on a witness’ testimony, in the jury’s presenc e, depri ved him of his sixth amendment right to a jury trial by “invading the fact finding role and province of the jury.” U.S. Const. amend. VI. We disagr ee.
The comments at issue were made by the trial court during the cross-e xamination of Mr. Flynn, the victim’s cousin. On direct examination, Mr. Flynn testified that he was walking with the victim whe

n Petitione

r confr onted the m with a gun . Flynn test

ified to th e followi ng events : Mr. Flynn: . . . and he [Petitioner] shot.
Counsel: What did you do [in response] ?
Mr. Flynn: I -- we ran to the left, and he [Petitioner] wa s, you know, he was still

coming at us. Then I shot right b ack through -- it was a little opening on the side of the wall. I ran back through there.”
On cross examina

tion, def ense cou nsel inqui red:
Counsel: Mr. Flynn, did I hear you correctly, did you say that you shot? Mr. Flynn: What?
Counsel: Did

I hear that you said you shot back or you shot something of that nature? Mr. Flynn: No, you did n’t hear me say tha

t.
Counsel: Oh, so you --
Court: Let me say this, M r. Ozment. He said, “I shot back through th i s way.” I took it to mean he ran that way.
Counsel: Well, Your Honor, it sounded like --
Court: Well, you

can ask h im about tha

t. Mr. Flynn: Well, I ran through there.
Court: He did use the word “shot.”
Petitioner has waived this issue by altering theories on appeal. A party may not litigate an issue in the trial court

on one ground, abandon that ground post-hearing, and assert a ne w basis or ground for his c ontention

in this Court. See State v. Dooley , 29 S.W.3d 542, 549 ( Tenn. Crim. App. 2000). In the petition and at the hearing, Petitioner alleged that trial counsel w as ineff

ective b ecause counsel failed to object to the trial court’s comments. However, on appeal, Petitioner argues that-6-

the trial cou

rt’s comm

ents deprive d him of his c onstitution al right to a jury tri al. U.S. Co nst. amend. VI.

Even if not wai ved, we f ind that the

trial cou rt’s comm ents were merely a corrective measure, intended to clarify Mr. Flynn’s use of the word “shot.” The trial court’s comments d id not viola

te Petitioner’s sixth amen dment righ t to a jury trial. Neither did trial counsel render ineffe ctive assistance at trial by not objecting to the trial court’s comments. Petitioner is not entitled to relief on this issue.

B. Forced to proceed with trial Additionally, Petitioner

argues t h at hi s sixth amendment right to a jury trial was violated wh en the trial

court “f orced” counsel t

o procee d to trial. U.S. Const. amend. V I. On app eal, Petitioner appears to allege that he was deprived of his sixth amendment right to effective assistance of counsel b ecause

counsel w as “for

ced” to p roceed to trial although counsel was not “one hundred percent.” Id.

Petitioner has failed to prove by clear and convi ncing evi dence th at counse l was for ced to proceed to trial, or th at counsel was not “one hundred percent.” In its written order denying Peti tioner relief, the post-conviction court found that the trial had been continued f or one mont h because of trial counsel’s family problems. Furthermore, the post-conviction court noted that on the day of tr ial, Petiti oner’s t

rial counsel made

the follow ing decla

ration to t he court :
I’ve been dow n to visit

Mr. Richa

rdson sev eral time s. Nothing new has developed in any of our conversations . . . The Court appointed an investigator on this. I have had a good inv estigatio n. I’ve h ad good in terview s with witne sses. This case is ready. It couldn’t be more ready . . . And I w ould state that for the record.

In addition, Petitioner’s trial counsel t estified at the pos t-convic tion hear ing that his family problems did not affect his repr ese ntation of Petitioner

or the tri al’s outc ome. Petiti oner als o testified that

trial counsel gave his all “to a certain extent,” and was not deficient in his performance because he was not ready. Petitioner has failed to show that he was denied h is si xth amendment rightto ajury trial or effective assistance of counsel. Petitioner is not entitled to relief on this issue.

C. Prosecutorial Misconduct

In his next issue, Petitioner claims that he is entitled to post-conviction relief because of p rosecutorial misconduct. Specifically, Petitioner claims that his conviction should be revers e d because the prosecutor erred by reading and commenting from the Bible when he “knew that his trial tactic . . . was under scrutiny by the appellate courts of this State.”

A petitioner

in a post-conviction proceeding is not entitled to relief based upon claims that have been waived or previously determined. Tenn. Code Ann. § 40-30-206(f ) (1997). A claim for relief is "previously determined" when a court of competent jurisdiction has ruledon the merits after-7-

a full and f air hearing. Id. § 40-30-206(h). “A full and fair hearing has occurred where the petitioner is afford ed the opp ortunity to

call witn esses an d otherw ise present evidence, regardless of whether the petitioner actually introduced any evidence.” Id.

We find that this issue was “previously determined” on direct appeal whe re the court

held that the prose cutor’s conduct w as harmle ss error. See State v. Richardson , 995 S.W.2d 119, 125-28 (Tenn. Crim. App. 1998). Additionally, we agree with the post-conviction court’s finding that “no additional prejudice has been shown at the hearing on this petition which cou ld have affected the verdict.” Petitioner is not entitled to relief on this issue.

D. Conflict o f Intere st Finally, Petitioner

argues t hat perm itting the s ame judge

to presid e at both his trial and postconviction procee ding pres ented a c onflict o f interest because it was “in appropr

iate for a judge to hear a case a lleging se rious er rors in a trial over which he presided.” Petitioner’s claim can be rephrased as an allegation of error because the trial judge failed to recuse himself.

Petitioner has waived this issue on appeal by failing to support his argument with authority. Tenn. Ct. Crim. App. R. 10(b). Fur thermor e, Petitioner failed to present this claim at the hearing
or in his post-conviction petition. Likewise, no wri tten motion to recuse appears in the record on appeal. An issue raised for the first time on appeal is waived. See Statev. Townes , 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000). Notwithstanding waiver, Petiti oner would not be entitled to relief on this issue. Section 6 of Rule 28 of the Rule s of the Sup reme Cour

t states, i n part, “ that the p residing judge sha

ll assign a judge to hear the case who may be the original hea ring judge. Should the p

residing judge fa il to assign a judge, a

nd no judge

is designated by the Chief Justice, the judge who presided at the original trial shall hea

r the pet ition.” Th

erefor e, we fin d th at the judge did nothing improper by presiding at Petitioner’s post-conviction hearing.
CONCLUSION We affirm the judgment of the trial court.

___________________________________ THOMAS T. WOODALL, JUDGE