IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 4, 2003 Session

CORWYN E. WINFIELD v. STATE OF TENNESSEE 

Direct Appeal from the Criminal Court for Shelby County

No. P 26030 James C. Beasley, Jr., Judge

No. W2003-00889-CCA-R3-PC - Filed December 10, 2003

The petitioner appeals the denial of post-conviction relief relating to his conviction for second

degree murder. He argues: (1) the trial court at his original trial improperly instructed the jury

regarding the definition of “knowing”; (2) the prosecutor committed misconduct during closing

argument at the original trial; and (3) he did not receive the effective assistance of counsel at trial

and on appeal. We affirm the judgment of the post-conviction court.

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

JOE G.RILEY, J., delivered the opinion of the court, in which DAVID H.WELLES and JOHN EVERETT

WILLIAMS, JJ., joined.

Edward Witt Chandler, Mountain Home, Arkansas, for the appellant, Corwyn E. Winfield. 

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

A Shelby County jury convicted the petitioner of second degree murder for shooting his

girlfriend as they were driving in his car. His conviction was affirmed on appeal. See State v.

Corwyn E. Winfield, No. W2000-00660-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 522 (Tenn.

Crim. App. July 11, 2001, at Jackson). The petitioner subsequently sought post-conviction relief,

which was denied. This appeal followed.

BACKGROUND

According to our opinion in the direct appeal, the following proof was presented during the

petitioner’s original trial:

The defendant and the victim, Chijuana Bassett, both in their early twenties at

the time of the offense, had been in a romantic, but apparently volatile, relationship
-2-

since their high school days at Fairley High School in Memphis and together had a

five-year-old daughter. The relationship had lasted some nine years. . . . 

. . . 

The defendant gave two different explanations of the shooting to investigators.

According to the first oral statement, . . . the victim called the defendant at his home

on November 25, 1997, and said that she had gotten off work early by giving an

excuse about having to pick up their daughter from school because the child was

sick. She told the defendant that she wanted to come over to his house. The

defendant was cooking something when he heard her drive up and stop in front of

his house. When she did not immediately come to the door, he looked outside and

saw her slumped over in the car. He went to check on her and realized that she had

been shot. The defendant said that he then dragged the victim from her car into his

1993, three-door, green Honda Civic and drove her to the emergency room at

Methodist Hospital-South.

After Sergeants Shemwell and Logan had told the defendant of information

they had which was inconsistent with this version of the shooting, the defendant then

gave a second version. According to the defendant’s second version of events, what

actually happened was that the victim had paged him from the Circle K on Shelby

Drive at approximately 1:30 p.m. When he called her back, she told him she had

taken off work early. He told her to come on to the car wash where he was waiting

to have his car cleaned. They then drove in her car to a liquor store where he

purchased gin. They went back to get his car and then drove to his house where they

continued drinking. Subsequently, they left his house in his Honda Civic and were

driving east on Shelby Drive when the victim mentioned something about the

defendant’s handgun. He took the gun out from underneath his seat and the following

occurred, according to the defendant:

She said, “You ain’t gonna do nuthin with it so put it up.” So,

I said, “Whatever.” So at that time I had my right arm around her seat and

I was stearing [sic] the car with my right knee and I had the gun in my left

hand. At that point, I had cocked it. She reached over as I was uncocking

the gun and she grabbed my hand and the gun fired.

When the gun fired, I looked at Chijuana and she was like

coughing so I looked down and seen that she had been shot under her left

arm near her breast so I drove to Swinnea Road and made a left, then I

drove to Winchester and made a left. About Winchester and Airways I

called Vonrico from my cellular phone (605-0947) and I told him that I

had accidentally shot my girl and I didn’t know what to do. So, he told

me to take her to the hospital and I told him that’s where I was headed and

he said that he would meet me there. So I drove down Winchester ‘till I

got to Graceland and made a left and drove down Graceland past the first
-3-

stop sign and I threw the gun out in a gutter on Graceland by some leaves

on the east curb. I continued down Graceland to Raines Road where I

made a right [and] went [down] Faronia where I made a left and drove to

Methodist South Emergency Room.

. . .

Thus, the defendant maintained that the shooting was accidental. Although he

chose not to testify, in his statement read to the jury, the defendant denied that he and

the victim were fighting or arguing at the time of the shooting. In fact, the defendant

claimed that the two were making plans to marry before Christmas. The defendant

explained the presence of several long scratches on the back of his neck in the

following statement, “When I get my hair cut, the back of my neck itches a lot so I

scratch it with my nails and I have a rash on both sides of my neck and they itch a

lot.”

Dr. O’Brian Cleary Smith, Shelby County Medical Examiner, testified

concerning the victim’s injuries and the cause of death. He said that the victim was

five feet, four inches tall and weighed 218 pounds. The victim had bruised muscles

on the right and left side of the hyoid bone, the bone right underneath the jaw, as well

as bleeding behind the esophagus. Dr. Smith testified that such injuries were

consistent with a “blow to the throat or it could be a squeezing type action which

would cause the tissues to be crushed underneath.” Dr. Smith also stated that it was

possible to damage underlying tissues without damaging the skin. The choking type

injuries to the victim were described by Dr. Smith as “contemporaneous” with the

gunshot wound, in that the injuries to the victim’s neck could have occurred no more

than an hour prior to the gunshot wound. Dr. Smith testified further that the injuries

to the victim’s neck could not have been caused by the intubation of the victim during

the emergency room resuscitation procedures. 

The gunshot wound suffered by the victim was classified by Dr. Smith as a

“loose contact gunshot wound” or one where the muzzle of the weapon “would had

[sic] been pressed up against the cloth surface and the cloth up against the skin at the

time the weapon was fired.” It was a wound that would cause death in about seven

to eight minutes without intervention. . . . 

. . . 

The bullet taken from the victim’s body was identified by Tennessee Bureau of

Investigation Special Agent Steve Scott as a .22 caliber bullet. According to the

defendant’s statement, the victim was shot with a “.22 caliber revolver, 6-shot, black

with pistol grip handles,” a weapon he claimed to have thrown from his car. A

thorough search by police of the area where the defendant said he threw the weapon

was unsuccessful. Officer Robert Martin of the Memphis Police Department testified

that on August 19, 1998, some nine months after the shooting, he and his partner
-4-

recovered a .22 caliber revolver with pistol grip handles from the trunk of the green

Honda Civic owned by the defendant. Special Agent Scott was unable to determine

conclusively that the bullet taken from the victim’s body had been fired from the

weapon retrieved from the defendant’s car trunk, but neither was he able to exclude

the weapon as the murder weapon. Laboratory results were inconclusive.

Id. at **2-11 (footnotes omitted). 

PROOF AT POST-CONVICTION HEARING

At the post-conviction hearing, the petitioner’s trial counsel testified that he was prepared

for trial, was ready to cross-examine the state’s witnesses, and was ready to present the defense

theory that the shooting was accidental. Trial counsel indicated his trial strategy was formed based

upon all the evidence available to him at the time of trial. He stated he received discovery from the

state, met with state witnesses, and investigated the route the petitioner drove to the hospital. He

said he met with the petitioner on several occasions prior to trial, and they discussed the state’s

evidence, potential witnesses, and trial strategy. According to trial counsel, a “character” defense

was not viable because of the petitioner’s prior inconsistent statements.

Trial counsel testified he did not file a motion seeking evidence of gunpowder on the victim’s

hands. He explained that while the presence of gunpowder on the victim’s hands would have

corroborated the petitioner’s statement that the victim grabbed the gun, it did not establish that the

shooting was accidental. Further, he said that if a test revealed the absence of gunpowder, this would

have conflicted with the petitioner’s statement and would have been very detrimental. Thus, trial

counsel saw no real benefit to a gunpowder residue test.

Trial counsel did not file a pre-trial motion to suppress evidence of the pistol found in the

petitioner’s car. Trial counsel explained the gun was found when the police arrested the petitioner

on unrelated charges a few months before his trial. He testified the general sessions court

suppressed the evidence due to an illegal search of the petitioner’s vehicle, and the charges were

dismissed. At trial, he objected to the admissibility of evidence concerning the weapon, but the trial

court overruled his objection. At the post-conviction hearing, he opined the pistol was not “fatal”

to the petitioner’s case because there was no ballistics match between the pistol and the bullet that

killed the victim.

Trial counsel stated he was surprised by the testimony of the medical examiner, Dr. Smith,

regarding the injuries to the victim’s throat. He indicated he spoke with Dr. Smith prior to trial, but

Dr. Smith did not express these views about the injuries to the victim’s throat. According to trial

counsel, neither the autopsy nor Dr. Smith’s written report indicated the victim’s throat had been

squeezed. He opined it was “out of character” for Dr. Smith to testify to information not found in

his written report.

Trial counsel said that as part of his investigation, he also spoke with Dr. McMillan, who

testified that he did not believe the intubation during the emergency room procedure caused the

injuries. He said he discussed the victim’s intubation with Dr. J. Pervis Milnor, a physician who had
1

At trial, Dr. Smith testified the victim sustained a “loose contact gunshot wound.” Trial counsel used the term

“loosely applied” when cross-examining Dr. Smith.

-5-

experience in trauma medicine, because “based on what I knew that there may be some issue about

it.” He said Dr. Milnor reviewed the autopsy report and opined the possibility of the intubation

causing the throat injuries was “remote.”

Trial counsel stated he was also surprised by Dr. Smith’s use of the term “loosely applied”

regarding the proximity of the weapon to the victim when it was fired.1 He said he had never heard

that term before, but it “clearly conveyed” that the victim’s gunshot wound “was not a contact

wound.” He testified he did not object to Dr. Smith’s use of the term because it was not inconsistent

with their theory of defense; cross-examination about the meaning of the term might have elicited

harmful information; and there was no basis for an objection.

The petitioner presented the affidavit of trauma surgeon Dr. John Otten, who questioned Dr.

Smith’s conclusions about the injuries to the victim’s throat. Dr. Otten opined in the affidavit it was

possible to cause such injuries during an emergency intubation. At the hearing, the petitioner

stipulated that the affidavit would not be introduced as evidence of the truth of the matters asserted

by Dr. Otten.

Trial counsel testified he advised the petitioner of his right to testify, but did not encourage

him to testify due to his prior conflicting statements. The attorney stated he did not object to the

prosecutor’s closing argument that the petitioner went on a “wild ride around Whitehaven” after

shooting the victim. He explained he believed her statements were a “reasonable inference from the

proof ,” and raising an objection would call attention to her remarks. He said that the only issue he

raised on appeal involved the admissibility of evidence under Tennessee Rule of Evidence 404(b)

of the defendant’s alleged prior assault of the victim.

The petitioner’s father, Tommy Winfield, testified that following Dr. Smith’s testimony at

trial, the petitioner’s brother, a respiratory therapist, advised trial counsel that patients were

frequently injured during intubation. Winfield stated trial counsel instructed them that the brother

could not testify because he was related to the petitioner. He also said that the petitioner took the

most direct route to the hospital following the shooting.

The record established the trial court gave the jury the following instruction on the definition

of “knowingly” as it applied to the charged offense of second degree murder:

“Knowingly” means that a person acts knowingly with respect to the conduct or to

circumstances surrounding the conduct when the person is aware of the nature of the

conduct or that the circumstances exist. A person acts knowingly with respect to a

result of the person’s conduct when the person is aware that the conduct is

reasonably certain to cause the result.
2

This issue is also discussed subsequently in this opinion as it relates to the petitioner’s claim of ineffective

assistance of counsel.

-6-

POST-CONVICTION COURT’S FINDINGS

The post-conviction court issued extensive findings and addressed each of the thirty-four

grounds for post-conviction relief alleged by the petitioner. In summary, the post-conviction court

found: (1) the trial court’s instruction defining “knowingly” by using the entire statutory definition

was harmless and did not prejudice the petitioner; (2) there was no prosecutorial misconduct; and

(3) each of the more than thirty specific allegations of deficiency of trial counsel was unfounded.

Accordingly, the post-conviction court denied relief.

JURY INSTRUCTION

The petitioner first contends he was entitled to post-conviction relief because the trial court

failed to properly instruct the jury regarding the definition of “knowingly” as it applied to the mens

rea element of second degree murder. The state concedes the jury instruction was in error, but

contends the failure to raise the issue on direct appeal waives the issue for post-conviction purposes.

We agree with the state. 

 A “knowing killing of another” is second degree murder. Tenn. Code Ann. § 39-13-

210(a)(1). The trial court should have instructed the jury that “knowing” refers only to the result

of the defendant’s conduct, the death of the victim, and erred by including as part of the definition

the nature and circumstances surrounding the conduct. See State v. Page, 81 S.W.3d 781, 787-88

(Tenn. Crim. App. 2002). Regardless, the error was waived when it was not raised in the direct

appeal of the petitioner’s conviction. See Tenn. Code Ann. § 40-30-106(g). Further, the plain error

doctrine has no application in post-conviction relief proceedings. State v. West, 19 S.W.3d 753,

756-57 (Tenn. 2000). Accordingly, the post-conviction court did not err in refusing to grant relief

based on the erroneous jury instruction.2

PROSECUTOR’S CLOSING ARGUMENT

Next, the petitioner maintains the post-conviction court erred in denying him relief because

the prosecution violated his right to due process during its closing argument at his original trial.

More specifically, he contends the state improperly relied upon the proof that he had previously

assaulted the victim. This court addressed this issue in the direct appeal of the petitioner’s conviction

and found the prosecutor’s argument was not improper. See Corwyn E. Winfield, 2001 Tenn. Crim.

App. LEXIS 522, at **23-24. Post-conviction relief is not available for grounds that have been

previously determined. Tenn. Code Ann. § 40-30-106(h) (2003). To the extent the petitioner alleges

further bases for prosecutorial misconduct during the original trial, those matters are waived for

failure to raise them on direct appeal. Id. § 40-30-106(g). This issue is without merit.
-7-

INEFFECTIVE ASSISTANCE OF COUNSEL

Finally, the petitioner argues his trial counsel did not provide him with effective

representation. In support of his argument, he cites numerous alleged errors on the part of trial

counsel. Based on our thorough review of the record, we conclude the post-conviction court did not

err in finding the petitioner failed to establish ineffective assistance of counsel.

A. Standard of Review

When a claim of ineffective assistance of counsel is made under the Sixth Amendment, the

burden is upon the complaining party to show (1) that counsel’s performance was deficient, and (2)

the deficiency was prejudicial in terms of rendering a reasonable probability that the result of the

trial was unreliable or the proceedings fundamentally unfair. See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). In Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975), our supreme court required that the services be rendered within the range of

competence demanded of attorneys in criminal cases. In reviewing counsel’s conduct, we assess

performance by eliminating the distorting effects of hindsight and evaluate the conduct from

counsel’s perspective at the time. Wiggins v. Smith, ___ U.S. ___, ___, 123 S. Ct. 2527, 2536, 156

L. Ed. 2d 471 (2003); Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). 

It is unnecessary for a court to address deficiency and prejudice in any particular order, or

even to address both if the petitioner makes an insufficient showing on either. Strickland, 466 U.S.

at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a “‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland, 466 U.S. at 694,

104 S. Ct. at 2068) (citations omitted). 

The petitioner bears the burden of proving the factual allegations that would entitle petitioner

to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). We review the

post-conviction court’s factual findings underlying a claim of ineffective assistance of counsel under

a de novo standard with a presumption that those findings are correct – unless the preponderance

of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However, the post-conviction

court’s conclusions of law – such as whether counsel’s performance was deficient or whether that

deficiency was prejudicial – are reviewed under a de novo standard with no presumption of

correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted).

B. Tactical Decisions

The petitioner argues trial counsel was ineffective for failing to disclose the incriminating

information against the petitioner in his opening statement. Similarly, he contends trial counsel’s

closing argument was weak; he failed to “zealously argue the differences of the substantive definitions

of the crime charged”; he “failed to explain and evaluate the significance of false claims by the

prosecutor”; and he failed to argue passionately. The United States Supreme Court has recently

addressed a habeas corpus petitioner’s claim that his trial attorney was ineffective during closing
-8-

argument. See Yarborough v. Gentry, U.S. , 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). In that

case, the Court stated “[j]udicial review of a defense attorney’s summation is . . . highly deferential.”

Id. at ___. The high court noted that although the right to the effective assistance of counsel extends

to closing arguments, counsel “has wide latitude in deciding how to best represent a client, and

deference to counsel’s tactical decisions in his closing presentation is particularly important because

of the broad range of legitimate defense strategy at that stage.” Id. at ___.

We also observe trial counsel’s statements to the jury were clearly part of trial counsel’s trial

strategy, which was to show that the gun was fired accidentally. Deference is made for sound trial

strategy if the choices are informed and based upon adequate preparation. See Goad v. State, 938

S.W.2d 363, 369 (Tenn. 1996). The record established trial counsel’s strategy decisions were

informed ones based on adequate preparation. The petitioner has failed to establish trial counsel was

deficient.

C. Misstating the Law

The petitioner also alleges trial counsel misquoted the applicable law during his closing

argument. However, the only citations to the record refer to the prosecution’s closing argument that

the petitioner was guilty of second degree murder if he killed the victim intentionally. This

statement was accurate. See Tenn. Code Ann. § 39-11-301(a)(2) (stating the “knowing” mens rea

is satisfied if the person acts “intentionally”). The petitioner has failed to establish trial counsel’s

performance was deficient.

D. The Pistol

The petitioner contends trial counsel was ineffective in failing to object to the admissibility

of the pistol found in his car months after the offense because (1) it was irrelevant, and (2) it was

illegally seized. The trial record established trial counsel argued against the admissibility of this

evidence contending the state could not establish it was the murder weapon, but the trial court

allowed admittance. The petitioner also claims trial counsel erred in failing to appeal the issue. We

conclude, after a review of the trial record, that the seized .22 caliber weapon was relevant and

properly admitted at trial. In addition, the petitioner did not establish at the post-conviction hearing

that the pistol was illegally seized or otherwise subject to suppression. The petitioner has failed to

establish trial counsel’s performance was deficient or that he suffered prejudice as a result.

E. DNA Evidence

The petitioner claims trial counsel failed to obtain DNA evidence to establish his skin or

cells were not found underneath the victim’s fingernails. However, the pathologist’s testimony at

trial established the victim’s “fingernails were clean.” We discern no deficiency. Further, there was

no proof at the post-conviction hearing as to what DNA testing would have revealed.
-9-

F. Impeaching the Officer

The petitioner argues trial counsel failed to properly cross-examine Sergeant Shemwell, who

testified at trial regarding the petitioner’s prior statements. He maintains trial counsel should have

proven Sergeant Shemwell’s testimony was untruthful. Yet, the petitioner presented no evidence

to establish the officer’s testimony was false.

G. Not Interviewing and Not Using Witnesses

The petitioner alleges trial counsel failed to interview key witnesses and failed to interview

and consider defense character witnesses; however, he does not name the potential witnesses he

claims trial counsel should have interviewed. The decision not to present character witnesses was

a tactical decision. Moreover,the onlywitnesses who testified at the post-conviction hearingwere trial

counsel and the defendant’s father. “When a petitioner contends that trial counsel failed to discover,

interview, or present witnesses in support of his defense, these witnesses should be presented by the

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.

1990); see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). Accordingly, the

petitioner failed to establish trial counsel was ineffective in failing to interview witnesses or present

their testimony at trial.

H. Failing to Challenge Expert Testimony 

The petitioner contends trial counsel should have argued Dr. Smith’s expert testimony

regarding the victim’s throat injuries was not reliable scientific evidence. See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Similarly, he claims “loose contact” was not a scientific term. Our review of the record shows Dr.

Smith’s testimony regarding the victim’s throat injury was based on the autopsy as well as his

interview with the emergency physician who treated the victim. Further, during his testimony

regarding the victim’s gunshot wound, he explained what he meant by the term “loose contact

wound.” There is nothing in the record indicating Dr. Smith’s testimony was inadmissible. The

petitioner has not proven trial counsel was ineffective for failing to object to Dr. Smith’s testimony.

I. Examination of Dr. Smith

The petitioner also argues trial counsel was ineffective for failing to interview Dr. Smith

prior to trial and for failing to properly cross-examine him. However, the proof at the hearing

established trial counsel interviewed Dr. Smith prior to trial and even reviewed Dr. Smith’s autopsy

report with another physician. Further, the trial record shows trial counsel extensively crossexamined Dr. Smith. The petitioner further maintains trial counsel should have cross-examined Dr.

Smith regarding his salary and the number of times he had testified for the state. This type of crossexamination is a matter of trial strategy, and the petitioner may not second-guess a reasonably based

trial strategy. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Cooper v. State, 847

S.W.2d 521, 528 (Tenn. Crim. App. 1992). This argument lacks merit.
-10-

J. Failure to Obtain Expert

The petitioner argues trial counsel failed to obtain expert testimony to rebut Dr. Smith’s

opinion that the victim’s throat was injured by squeezing or by a blunt trauma. The petitioner has

failed to establish that he was prejudiced. He presented Dr. Otten’s affidavit indicating the throat

injuries could reasonably have been caused by the medical treatment and there was no evidence of

choking. However, he stipulated the affidavit was not submitted to prove the truth of the matters

asserted by Dr. Otten.

We fail to see any evidentiary value in the affidavit if it was not submitted for its truth.

Regardless, we are unpersuaded that the petitioner’s post-trial discovery of an expert who would

disagree with Dr. Smith’s opinions somehow translates into ineffective assistance of counsel. Dr.

David McMillan also testified at trial that the medical procedures did not cause any trauma to the

neck. In addition, trial counsel conferred with Dr. J. Pervis Milnor, a physician with experience in

trauma medicine, prior to trial. Dr. Milnor advised trial counsel that the possibility of the medical

procedures causing the neck injuries was “remote.” Trial counsel was not deficient in failing to seek

other expert assistance with regard to the neck injuries.

K. Route to Hospital

The petitioner claims trial counsel failed to challenge the state’s theory that the petitioner

did not travel a direct route to the hospital following the shooting. The post-conviction court

determined the petitioner’s proof at the post-conviction hearing actually established that the

petitioner did not take the most direct route to the hospital. The post-conviction court further

concluded the proposed evidence would not have affected the outcome of the trial. The evidence

does not preponderate against these findings of the trial court.

L. The Smirk

At trial, a police officer testified he observed the petitioner arrive at the hospital with the

victim. According to the officer, the petitioner had “a smirk type look on his face.” The officer

stated the petitioner’s expression changed to a “scared look” when he saw him. In this appeal, the

petitioner argues trial counsel was ineffective for not presenting the testimony of a psychological

expert to rebut the officer’s testimony. We are simply unable to conclude that trial counsel was

deficient for failing to secure expert testimony to explain facial expressions. Further, the petitioner

has failed to establish he was prejudiced by trial counsel’s alleged error because he did not present

any expert proof on this issue at the post-conviction hearing.

M. Failure to Testify

The petitioner argues trial counsel improperly advised him about his right to testify. He

contends he would have made a good witness. The post-conviction court found, and the trial record

reflects, that the petitioner chose not to testify after trial counsel voir-dired him regarding his right

to testify. According to trial counsel, he did not encourage the petitioner to testify due to his prior

inconsistent statements. The petitioner did not testify at the post-conviction hearing. We cannot
-11-

conclude trial counsel was ineffective for not encouraging the petitioner to testify, nor does the

evidence preponderate against the post-conviction court’s finding that the petitioner decided not to

testify after being advised of his rights. The petitioner has failed to establish trial counsel’s

performance was deficient.

N. Failure to Object to Closing Argument

The petitioner maintains trial counsel was ineffective for not objecting to the state’s closing

argument regarding the alleged prior assault. As previously discussed, this court, on direct appeal,

found the prosecution’s argument was proper. See Corwyn E. Winfield, 2001 Tenn. Crim. App.

LEXIS 522, at **23-24. This argument is without merit.

O. The “Knowing” Jury Instruction

Although the petitioner did not specifically raise the issue in his initial brief, he argued in

his reply brief and at oral argument that trial counsel was ineffective for not raising the issue of the

trial court’s erroneous jury charge on the definition of “knowing” on appeal. It is arguable that he

has waived the issue. See Tenn. R. App. P. 27(a)(7). Regardless, we elect to address it.

The petitioner’s case was tried in February 2000. Judgment was entered March 17, 2000.

Notice of appeal was filed March 23, 2000. The petitioner’s brief was filed December 28, 2000.

Oral arguments were heard May 8, 2001. This court entered its judgment and opinion affirming the

petitioner’s conviction on July 11, 2001.

On July 14, 2000, our state supreme court filed its opinion in State v. Ducker, 27 S.W.3d

889 (Tenn. 2000). In holding that child abuse was not a result-of-conduct offense, the court stated

second degree murder was a result-of-conduct offense. Ducker, 27 S.W.3d at 896. However,

Ducker did not discuss jury charges.

In the unreported opinion of State v. Keith T. Dupree, W1999-01019-CCA-R3-CD, 2001

Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 30, 2001, at Jackson), this court, facing an issue

of first impression, held the trial court erred by failing to charge the jury that the defendant must

have acted “knowingly” with regard to the result of his conduct to be found guilty of second degree

murder. Id. at **11-12.

On April 16, 2002, this court issued its opinion in State v. Page, 81 S.W.3d 781 (Tenn. Crim.

App. 2002), in which we held the trial court erred in instructing the jury that the defendant could be

convicted of second degree murder if he acted knowingly with respect to his conduct and the

circumstances surrounding the offense. Id. at 786. In Page, we stated

[I]t is now established that a knowing second degree murder is strictly a result-ofconduct offense . . . . A jury instruction that allows a jury to convict on second degree
-12-

murder based only upon awareness of the nature of the conduct or circumstances

surrounding the conduct improperly lessens the state’s burden of proof.

Id. at 788 (citation omitted). 

We begin our analysis of this question by noting that the Page opinion was filed more than

nine months after the petitioner’s appeal was concluded. Ducker was decided after the trial of this

case; thus, defense counsel could only raise this issue on appeal under the plain error doctrine. See

Tenn. R. App. P. 52(b). While it is arguable appellate counsel could have anticipated our holding

in Page based upon Ducker and Dupree, we do not find his performance was deficient for failing to

do so. As we observed in Page, Ducker was not a second degree murder case and did not discuss jury

charges. See Page, 81 S.W.3d at 788. Furthermore, the jury instruction in Dupree was distinguishable

from the jury charge in both Page and the instant case. See id. In addition, Dupree was decided

after the petitioner’s brief was filed and shortly before oral argument. Given this chronology of

events, we cannot conclude trial counsel’s performance was deficient.

P. Unsupported Allegations

The petitioner contends trial counsel failed to properly investigate or prepare for trial, failed

to properly interview the petitioner, failed to obtain exculpatory evidence, failed “to perform his

duties,” and failed to obtain and analyze the evidence. He claims trial counsel failed to obtain

scientific and forensic findings and failed to properly voir dire the jury. Further, he alleges trial

counsel failed to object to the misconduct of the prosecutor. These arguments are waived since the

defendant has failed to make appropriate references to the record. Tenn. Ct. Crim. App. R. 10(b);

State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997);see also Tenn. R. App. P. 27(a)(7)

and (g).

CONCLUSION

The post-conviction court did not err in denying post-conviction relief. Accordingly, we

affirm the judgment of the post-conviction court.

____________________________________

JOE G. RILEY, JUDGE