IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 6, 2001 Session

ANTHONY RICHARDSON v. STATE 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 offirst-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 conviction relief, which the postconviction court subsequently denied. Petitioner challenges the denial of his petition, raising the

following issues: (1) whether the trial court’s comments during a witness’ testimony deprived him

of his sixth amendment right to a jury trial; (2) whether Petitioner was denied his sixth amendment

right to a jury trial when the trial court “forced” counsel to proceed to trial; (3) whether the

prosecutor’s biblical reference at trial constituted reversible error; and (4) whether there was a

conflict of interest when the same judge presided at both his trial and post-conviction hearing. After

a thorough review of the record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed. 

THOMAS T.WOODALL,J., delivered the opinion of the court, in which GARY R.WADE, P.J., and JOE

G. RILEY, J., joined.

Gerald Stanley Green, Memphis, Tennessee (on appeal) and John Finklea, Memphis, Tennessee (at

trial) for the appellant, Anthony Richardson.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Elaine Sanders, Assistant District Attorney

General, for the appellee, State of Tennessee.
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OPINION

I. Background

In the direct appeal of Petitioner’s conviction, this Court summarized the facts as follows:

On June 1, 1994, Terry Gilliard, the victim, was shot to death at the LeMoyne

Gardens Apartments in Memphis, Tennessee. The victim was shot by two separate

individuals, Appellant and Earline Jackson. The two shootings were apparently

unrelated. Appellant testified that earlier that day, he fought with victim, left the

scene, and retrieved a gun that he had hidden nearby. When he returned, he saw

something 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 also shot the victim additional times.

The medical examiner testified that shots from each weapon were fatal. Appellant

and Earline Jackson were charged with first degree murder.

 

On August 6, 1999, Petitioner filed a pro se petition for post conviction relief, raising

numerous claims including ineffective assistance of counsel and trial court error. Subsequently, the

post-conviction court appointed counsel 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 notice of appeal to

this Court. 

 

II. Post-Conviction Hearing

At the post-conviction hearing, the trial court heard testimony from Petitioner and

Petitioner’s trial counsel, Joseph Ozment. Petitioner testified that he filed the instant petition based

upon the ineffective assistance of counsel. Petitioner testified that trial counsel should have objected

to the entry of autopsy photographs at trial. Petitioner described the autopsy photographs of the

victim’s gunshot wounds as “gross.” In support of his claim, Petitioner testified that the trial court

was reluctant to present the photographs to the jury before lunch. Furthermore, Petitioner claimed

that the photographs were not relevant. Petitioner stated that before the photographs were 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 identified the victim in a separate

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 that in order to prove selfdefense, it was necessary to show that the victim, or someone close to the victim, was carrying 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 testified that, “I -- we ran to the left,
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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 comment 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 argument for self-defense. 

Petitioner further testified 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 “hundred percent”

because his wife was in the midst of a difficult pregnancy and his brother was hospitalized.

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 court might have been persuaded to continue the trial if counsel had explained his

family difficulties as the reason for the continuance. Petitioner admitted that trial counsel stated “he

was going to try to give his all,” and that counsel gave his all to a certain extent. On crossexamination, Petitioner admitted that he 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 written offer. Petitioner claimed that before the trial began, counsel presented him with

a potential twenty-year plea agreement. However, Petitioner claimed that when counsel presented

him with the agreement form, it was blank. Petitioner testified 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-year agreement if it was in writing. In addition, Petitioner

further stated that the trial court refused to accept the plea.

 

Petitioner further testified that the prosecutor’s reference to a scripture passage at trial was

undulyprejudicial. Petitioner, through his post-conviction counsel, acknowledged that thisissuewas

addressed by the appellate court. 

 

The State presented testimony from Petitioner’s trial counsel, Joseph Ozment. Counsel

testified that any objection to the entry of the autopsy photographs would have been “fruitless.”

Counsel testified that the photographs were “extremely mild” with “[n]othing grotesque about

them.” Counsel testified that based on his appellate experience, the autopsy photographs, which

depicted each fatal wound, were relevant to the State’s burden of proof. Counsel also testified that

autopsy photographs are usually admitted even though the medical examiner used demonstrative

evidence, such as a mannequin, for an illustration. Counsel further testified that he chose 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 proceed as scheduled.

Counsel acknowledged that the trial court provided adequate time and resources to prepare for trial.
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Counsel testified that on the day of trial, the trial was delayed for over an hour for plea negotiations,

which, although attempted, proved unsuccessful. Counsel stated that Petitioner refused to accept a

negotiated plea agreement. Counsel refuted Petitioner’s claims that he requested a continuance, or

that he was issued blank paperwork during plea negotiations. Finally, counsel acknowledged that

during Petitioner’s trial his brother was hospitalized and his wife was experiencing a difficult

pregnancy. However, counsel testified that although it might have been “more convenient” if the

trial date was postponed, his personal affairs did not affect his representation of Petitioner, his

performance at trial, or the trial’s outcome. 

At the conclusion of the evidentiary hearing, the post-conviction court denied Petitioner relief

in a written order. The post-conviction court found that Petitioner failed to prove the allegations 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 counsel. 

III. Analysis 

In order to obtain post-conviction relief a petitioner must allege that his conviction or

sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann.

§ 40-30-203 (1997). If granted an evidentiary hearing, Petitioner has the burden of proving 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 weight 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 (Tenn. Crim. App. 1990). Consequently, 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 allegations of fact

underlying his claim by clear and convincing 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 assistance, this Court must decide whether counsel's performance was within the range of

competence demanded of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). When reviewing a defense attorney's actions, this Court may not use "20-20"

hindsight to second-guess counsel's decisions regarding trial strategy and tactics. See Hellard 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 bears the

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 satisfy the second prong, the

petitioner must show that he was prejudiced by his counsel's unprofessional errors, such that there

is a reasonable probability that, but for counsel's errors, the result of the proceeding would have

differed. See Strickland, 468 U.S. at 694. Petitioner’s failure to prove either element, deficient

performance or prejudice, requires dismissal of his claim. See id. at 697. 
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A. Trial Court’s Comments

In his first issue, Petitioner argues that the trial court’s comments on a witness’ testimony,

in the jury’s presence, deprived 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 disagree. 

The comments at issue were made by the trial court during the cross-examination of Mr.

Flynn, the victim’s cousin. On direct examination, Mr. Flynn testified that he was walking with the

victim when Petitioner confronted them with a gun. Flynn testified to the following 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] was, you know, he was still

coming at us. Then I shot right back through -- it was a little opening

on the side of the wall. I ran back through there.”

On cross examination, defense counsel inquired: 

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 didn’t hear me say that.

Counsel: Oh, so you --

Court: Let me say this, Mr. Ozment. He said, “I shot back through this

way.” I took it to mean he ran that way. 

Counsel: Well, Your Honor, it sounded like --

 

Court: Well, you can ask him about that.

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 new basis or

ground for his contention 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 was ineffective because

counsel failed to object to the trial court’s comments. However, on appeal, Petitioner argues that
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the trial court’s comments deprived him of his constitutional right to a jury trial. U.S. Const. amend.

VI. 

Even if not waived, we find that the trial court’s comments were merely a corrective measure,

intended to clarify Mr. Flynn’s use of the word “shot.” The trial court’s comments did not violate

Petitioner’s sixth amendment right to a jury trial. Neither did trial counsel render ineffective

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 that his sixth amendment right to a jury trial was violated

when the trial court “forced” counsel to proceed to trial. U.S. Const. amend. VI. On appeal,

Petitioner appears to allege that he was deprived of his sixth amendment right to effective assistance

of counsel because counsel was “forced” to proceed to trial although counsel was not “one hundred

percent.” Id. 

Petitioner has failed to prove by clear and convincing evidence that counsel was forced to

proceed to trial, or that counsel was not “one hundred percent.” In its written order denying

Petitioner relief, the post-conviction court found that the trial had been continued for one month

because of trial counsel’s family problems. Furthermore, the post-conviction court noted that on the

day of trial, Petitioner’s trial counsel made the following declaration to the court: 

I’ve been down to visit Mr. Richardson several times. Nothing new has developed

in any of our conversations . . . The Court appointed an investigator on this. I have

had a good investigation. I’ve had good interviews with witnesses. This case is

ready. It couldn’t be more ready . . . And I would state that for the record. 

In addition, Petitioner’s trial counsel testified at the post-conviction hearing that his family

problems did not affect his representation of Petitioner or the trial’s outcome. Petitioner also

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 his sixth amendment

right to a jury 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

prosecutorial misconduct. Specifically, Petitioner claims that his conviction should be reversed

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 ruled on the merits after
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a full and fair hearing. Id. § 40-30-206(h). “A full and fair hearing has occurred where the petitioner

is afforded the opportunity to call witnesses and otherwise present evidence, regardless of whether

the petitioner actually introduced any evidence.” Id.

We find that this issue was “previously determined” on direct appeal where the court held

that the prosecutor’s conduct was harmless 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 could have affected the

verdict.” Petitioner is not entitled to relief on this issue. 

D. Conflict of Interest

Finally, Petitioner argues that permitting the same judge to preside at both his trial and postconviction proceeding presented a conflict of interest because it was “inappropriate for a judge to

hear a case alleging serious errors 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). Furthermore, Petitioner failed to present this claim at the hearing

or in his post-conviction petition. Likewise, no written motion to recuse appears in the record on

appeal. An issue raised for the first time on appeal is waived. See State v. Townes, 56 S.W.3d 30,

35 (Tenn. Crim. App. 2000).

Notwithstanding waiver, Petitioner would not be entitled to relief on this issue. Section 6

of Rule 28 of the Rules of the Supreme Court states, in part, “that the presiding judge shall assign

a judge to hear the case who may be the original hearing judge. Should the presiding judge fail to

assign a judge, and no judge is designated by the Chief Justice, the judge who presided at the original

trial shall hear the petition.” Therefore, we find that 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