### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 4, 2003 Sessi on
CORW YN 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 - F iled December 10, 2003

The petitioner appeals the denial of post-conviction relief rela ting to his conviction for second degree murde r. He ar gues: ( 1) the trial court at his origi nal trial imp roperly instructe d the jury regarding the definition of “knowing”; (2) the prosecutor c ommitted misconduct du ri ng closing argument at the original trial; and (3) he did not receive the e ffective assistance of counsel at trial and on ap peal. We a

ffirm the judgmen t of the po st-convi ction cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID H. W ELLES and J OHN E VERE TT W IL LI AMS , JJ., joined. Edward Witt Chandler, Mountain Home, Arkansas, for the appellant, Corwy n E. Winfield.

Paul G. Summers, Attorney Gene ral and Reporter; Kathy D. Aslinge r, Assista nt Attorne

y General ; William L. Gibbons, District Attorney General; and Paul Hagerman, Assista nt District Attorney General, for the appellee, State of Te nnessee.
OPINION

A Shelby County

jury convicted the pe

t ition er of se cond deg

ree mur der for shooting his girlfriend as they wer

e driving in his car. His conviction was affirmed on appeal. See Sta te v. Co rw yn E. Winfield , No. W2000-00660-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 522 (Tenn. Crim. App. July 11, 2001, at Jackson). The petit

ioner sub sequentl

y sought post-conviction relief, which was denied. This appeal followed.
BACKGROUND According to our

opinion in the direct appeal, the following proof was pre sented during the petitione r’s original tria

l:

The defendant and the victim, Chijuana Bassett , both

in their early twe

nties at the time of the of

fense, h ad been

in a roma ntic, but a pparent ly v olatile, r

elationsh ip-2-

since their high school day s at Fairley High School in Memphis andtogether had a five-ye ar-old daughter. The relationship had lasted some nine year s. . . .

. . . The defendant gave two different explanations of th e shoot ing to investig ators. According to the first oral statement, . . . the victim called the defe ndant at h is home
on November 25, 1997, and said that she had gotten off wor k earl y by

giving an
excuse about having to pick up their daughter fr om school becaus e th e child was sick. She told the

defenda nt that she

wante d to come ove r to his house. The defendant was cooking something when he hea rd her drive u p and st op in front of his house. When she di d not immedi ately 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 def

endant sa id that he then dra gged the victim

from her car into his 1993, three-door, gre en Honda Civic and drove her to the emerge ncy room at Methodist Hospital-South.

After Se rg eants Shemwell and Loga n had told the defendant of information they had wh ich wa s inco nsis tent w ith t his v ersio n of th e shoo ting, the defendant then gave a second version. According to the def endant’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, s he 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 ca

r 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 . Subseque ntly , they left his house in hi s Honda Civic and were dr iving east on Shelby Drive w hen the victim mentioned something abou t th e defendant’s handgun. He took the gun out from underneath his seat and the following
occurr ed, acc ording t

o the def endant:

She said, “Y ou ain’t g onna do nu thin with it s o put it

up.” So, I said, “Wha

tever.”So at that ti me I had my right arm around her seat

and I was stea ring [sic ] the car with my

right knee and I had the g

un 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 l ooked at Chijuana and she was like coughing so I looked down and seen that she ha d been shot

under her left
arm near her breast so I

drove to Swinnea Road

and made a left, then I drove to Winches ter and m ade a left. About Wi n c hester a nd Airwa ys I calledVonrico from my c ellular phone (6 05-0947) and I

told him that I had accide

ntally shot my girl and I

didn’t know what to do . So, he told
me to take he

r to the hospital and I

told him that’s where I was hea ded and he said that he would meet me there. So I dr ove down Winchester

‘till I got to Graceland and made a left and dr ove down Gra

celand p ast the fi

rst-3- stop sign and I

threw the gun out

in a gutter on Graceland by some leaves
on the east curb. I continue d d own Graceland to Raines Road where I made a right [and] went

[down] Faronia where I made a left and drove to Methodist S outh Emer

gency Room.

. . . Thus, the defendant maintained that the shooting was acc idental. Although he chose notto 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 defe ndant claimed that the two were making plans to marry before Christmas. The defendant explained the pres ence of several long scra tches on the back of his neck in the following statemen

t, “When I

get my hair cut, the back of my

neck itches a lot

so I scratchit with m y n ails and I have a ra sh on both sides of my neck and the y itch a lot.”

Dr. O’B rian

Clea ry Smith, Shelb y C ounty Medic al Exa

miner , 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 victi m had bruised muscles
on the right and left

side of th e hy oid bone, the bone r ight unde rneath t he jaw, a s well
as bleeding behind the esophagus. Dr. Smith testified that such injuri es wer e co nsistent with a “blow to the throat or it could be a squeezing ty pe ac tion whic h would cause the tissues to be crushed underneath.” Dr. Smith also stated thatit was possible to dam age underlying

tissues without damaging the skin. The choking type injuries to the victim were descr ibe d by Dr. Smith as “contempora neous” with the gunshot wound, in

that the in juries to t he victim’ s neck co

uld 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.

T he gunshot wound suffered by the victim was classified by D r. 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 a nd the cloth up against the skin at the time the weapon was fired.” I t was a wound that would cause death in about seven to eight minutes without intervention. . . .

. . . The bullet taken from the victim’s body wa s identified by Tennesse e Bureau of Investigat ion Special Agent Steve Scott as a .22 caliber bullet. Acc ording to the defendant’s statemen

t, the victim was shot with a “.22 caliber revolver, 6-shot, black with pistol gr

ip handle s,” a we apon he c laimed to h ave thro wn from h is car. A thoro ugh search by

police of the area where the de fendant said he threw the weapon
was unsuccessful. Officer Robert Martin of the Memphis Police Department testified that on Augus t 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 def

endant. Special Agent Scott was unable to determine conclusi vely

that the b ullet take

n from t he victim’s body had been f ired from the weapon retrieved

from the d

efenda nt’s car trunk, but

neither was he a ble to exclude the weapon as the murder weapon. L aboratory results were inconclusive.

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

PROOF AT POST-CONVICTION HEARING

At the post-conviction he aring, th e petitioner’s trial counsel testified that he was prepare d for trial, wa s ready

to cross- examin e the sta te ’s witnes ses, and w as read y to present the defe nse theory that the shooting was acc idental. Trial counsel indi cated hi s trial strategy was formed based upon all the ev

idence a vailable 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 h ospital. He said he met with the petitioner on several occas ions prior to t rial, and they discusse d the state’s evidence, potential witnesses, and trial strategy . According to trial c ounsel, a “chara cter” d efense was not via

ble beca use of the petitione r’s prior inconsiste

nt stateme

nts.
Trial counsel testified he did not file a motion seeking evidence of gunpowder on the victim’s hands. He explained that wh ile th e presence of gunpowder on the victim’s hands would have corroborated

the petitioner’s statement that the v ictim gr

abbed the gun, it did not establish that the shooting was accidental. Further, he said that if a test revealed the absence of g unpowder, this would have conflicted wi t h the petitioner’s statement and would have been very detrimental. Thus, trial counsel s aw no re al benef it to a gu npowder residue test.
Trial counsel d

id 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 ar restedthe petitioner
on un relate d charges a few months befor e his trial. He testified the general sessions court suppressed the evidenc e due to an illegal search of the petitioner’s vehicle , and the charges were dismissed. At trial, he objected to the admissibility of evidence conc erning the weapon, but the trial court overruled his objection. At the post-conviction hearing, he opined the pistol was not “fat al” 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 injuri es to the victim’s thr oat. He indicated he spoke with Dr. Smith prior to trial, but Dr. Smith did not express these views about the injur ies to the victim’s throat. According to trial counsel, neither

the autop sy n or Dr. Smit h’s writte n report indicate d the vic tim’s th roat had been squeezed. He opinedit was “ou t of char acter”for Dr. S mith to testi fy to informa

tion not fo und in his writte n report

. Tri al counsel s a id that as part of his investigation, he also spoke with Dr. McMillan, who testified that he di d not belie ve the int ubation du

ring the eme rgency

room procedure caused the injuries. He said he di scussed t he victim’ s intubatio n with Dr. J. Pervis Milnor, a physician who had1 At tri al, Dr. Smith t esti fied t he vict im sus tain ed a “loose contact gunshot wound.” Trial counsel used the t erm “loosely applied” when cross- examining Dr. Smith.
-5- experience in trauma medicine, because “based on wha t I knew that there may

be some issue about it.” He said Dr. Milnor reviewed the autopsy repo rt 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 proximit

y of the wea pon to the victim when it was fired. 1 He said he had never heard that termbefore, but

it “clearly c onveyed” that the victim’s gunshot wound “was not a contact wound.” He testif

ied he did not objec t to Dr. Smith’ s use of the term be cause it was not inconsistent with their theory of defense; cross-examination about the meaning of the te rm might have elicited harmful information; and there was no basis for an objection.

The petitioner

presented the affidavit of trauma surg eon 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 injur

ies d urin g 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 couns el tes tifi ed he ad vised the pe titi oner o f his r ight t o test ify, but d id no t enco urage him to testify due to his p

rio r confl icti ng s tatements. The attorney stated he did not object to the prosecutor’s closing argument that the petitioner went on a “wild ri de around Whitehaven” after shooting the victim. He explained he believed her statements were a “reasonable infe rence 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 de fendant ’s alleg ed prior assault o f the vic tim.

The petitioner’s father, Tommy Winfield, testified that following Dr. Smith’s testimony at trial, the petitioner’s brother, a respiratory therapist, advised tri al co unsel that patients were freque ntly injured during intubation. Winfield stated trial counsel instructed them that the brother could not testif y be cause he

was rela ted to the petitione r. He als o said

that the petitioner took the most direct route to th e hosp ital follo wing t he sho otin g.
The record established the trial court gave the jury the

following instruction on the definition of “knowingly ” as it applied to the charged offe nse of second degree murde r: “Knowing

ly” means tha

t a person a cts knowin gly

with resp ect to the

conduct o

r to circumstances surrounding the conduct when the person is aware of the na ture of the conduct or that the circumstances exist. A person acts knowingly with respect to a resul tof the pe

rson’s c onduct wh

en the pe

rson is aw are tha

t the cond

uct i s reasona bly certain to cause the resu lt.2 Th is issue i s also discuss ed subsequently in t his opini on as it rel ates to the peti tioner’s claim of inef fective assistanc e of co unsel.
-6-

POST-CONVI CTION COUR T’S FINDINGS

The post-c onvicti on 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 spec ific allegations of deficiency of trial counsel was unfounded. Accordingly , the post-conviction court denied relief.
JURY INSTR

UCTION

The petitione

r first c ontends he

was entit led to post-convic tion relie f becau se the trial court failed to properly instruct the jury regarding the definition of “know ingly” a s it applied to the mens rea element of second degree mur d er. The sta te concedes the jury

instruction was in error, but contends the failure to raise the issue on direct appeal w aives the

issue for post-con viction pu rposes. We agree with the state. A “knowing killing of another” is second de gree m urd er. Tenn. Code Ann. § 39-13- 210(a)(1). The trial court should have instructed the jury tha t “know ing” re

fers onl y to the resu lt of the defendant’s conduct, the death of the victim, and erred

by including a s part of the definition the nature and circumstances surrounding the conduct. See Stat e v. Pa ge , 81 S.W.3d 781, 787-88 (Te n n. Crim. App. 2002). Regardless, the error was wa ived when it was not raised in the direct appeal of the petitioner’s conviction. See Tenn. Cod e Ann. § 40 -30-106( g). Fu rther, th e plain error doctrine has no application in post-conviction relief proc eeding s. State v. We st , 19 S.W.3d 753, 756-57 (Tenn. 2000). Accord ingly , the post- convicti on court d id not err in refus ing to grant relief based on the erroneous jury instruction. 2

PROSECUTOR’S CLOSING ARGUMENT
Next, the petitioner maintains the post-con viction c ourt err

ed in deny ing him r elief be cause the prosecution violated his right to due p rocess dur ing its c losing a rgumen t at his ori ginal tr

ial. More specifically, he

contends the state improperly relied upon the p

roof tha t he had pr

eviously 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 Corwy n E. Winfield , 2001 Ten

n. Crim. App. LEXI S 522, at **23-24. Post-conviction relief is not available for ground s that have been previous ly

determined. Tenn. Code Ann. § 40-30-106(h) (2003). To the extent the petitioner alleges further bases fo r prosec utorial mi sconduc t duri ng the original trial, those matters are w aived for failure to raise them on direct appeal. Id. § 40-30-1 06(g). This issue is without me

rit.-7- INEFF ECTIVE ASSISTA NCE OF C OUNSEL

Fi na ll y, the petitioner argue s his tri al counsel did not provide him with effective representation. In support of his argume nt, he cites numerous alleged erro rs on the part of trial counsel. Based on our thorough review of the record, we conc lude the p ost-conv iction co urt did

not err in fi nding the

petitione r failed to establi sh ineff

ective a ssistance

of counse

l.
A. Standard of Review

When a claim of ineffective assistanc e of coun sel is made under the Sixth Amendme

nt, the burden is upon the complaining party to show (1 ) that co unsel’s p erforma nce was deficie

nt, and (2) the deficiency

was prejudicial in terms of rendering a r ea sonable pr obability that the result of the trial was unreliable or the proceeding s fundamentally unfa ir. See Strickland v. Was hington , 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 se rvices be rendered within t he range o f competence demande d of attor ney s in crimin al case s. In reviewi ng coun sel’s co nduct, we assess perfo rmance b y eliminating the distorting effects of hindsight and evaluate the c onduct from counsel’s perspective at the time. Wiggins v. Smith , ___ U.S. ___, ___, 123 S. Ct. 2527, 2536, 156 L. Ed . 2d 471 (2 003); Nichols v. State , 90 S.W.3d 576, 587 (Tenn. 2002).

It is unnecessary

for a court to address deficiency and pre judice in an y 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 or der to es tablish pr

ejudice , the peti tioner mus t establis h a “‘re asonable probabil ity that, but for counsel’s unprofessional errors, the re sult of the proceeding would have been dif ferent . A reas onable pr

obability is a probabil ity s ufficie

nt to under

mine conf

idence i n the outcome.’” State v. Burns , 6 S.W.3d 453, 463 (Tenn . 1999 ) (quo ting 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 c lear and

convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). We review the post-conviction court ’s fact ual fi ndin gs underlying a claim of ineffective assistance of counsel under
a de novo standar

d with a pr

esumption

that those

finding s are correc t – unless the preponderance of the evidence establishes otherwise. Burn s , 6 S.W.3 d at 461. However, the post-conviction court’s conclusions of law – such as whether counsel’s performanc e was deficient or whether that deficiency

was prejudicial – are reviewed under a d e novo standard with no presumption of correctness. Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted)

. B. Tactic al Decisi ons
The petition er argue s trial counsel was ineffective for failing to disclose the incriminating information agains tthe petiti oner in his opening statement. Similarly, he c ontends trial counsel’s closing argument was weak; he failed to “zealous ly argue the differences of the substantive definitions of the crime

c harged”; he “failed to explain and eva luate the significance of false c laims by the prosecutor”; and he failed to argue passionately . The United S tates Su preme Cou rt has re cently addressed a habea s co rpus petitioner’s claim that his trial attorney was ineffective during closing-8-

argume nt. See Yarborough v. Gentry , U.S. , 124 S. Ct. 1, 157 L. Ed. 2 d 1 (2003). In tha t case, the Court s tated “[j]u dicial re view of a defense attorne y’ s summation

is . . . highly def

erential.” Id. at ___. The high court noted that although the rig ht to the effective assistance of counsel extends to clo sing a rguments, counsel “has wide latitude in deciding how to best represent a client, and deference to counsel’ s tactica

l decision s in his closing

present ation is pa rticular ly im portant b ecause of the broad range of leg

itimate defense strategy

at that stage.” Id . at ___.

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

rt of trial counsel’s trial st ra te gy, which wa s to show that the gun was fired accidenta lly. Deference is made for sound trial strat egy if the choices are informed and based upon adequate preparation. See Goad v. Sta te , 938 S.W.2d 363, 369 (Tenn. 19 96). The record established trial counsel’s strateg y decisions were informed ones base d on adeq uate preparation. The petitioner has failed to establish trial counsel was deficie nt. C. Misstating the Law

The petitione

r als o all eges trial counsel misquoted the applicable law during his closing argume nt. However, the only

citations to the record

refer to the prosecution’s closing argument that the petitione

r was g uilty

of secon d degr

ee murde r if he killed the vi ctim intentiona lly. This statement was accurate. See Tenn. Code Ann. § 39-11-301(a)(2) (stating the “know ing” mens rea is satisfied if the person acts “intentionally ”). The petitioner has failed to establish trial counsel’s perfor mance w as defic ient.
D. The Pistol

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

the admiss ibility of the pistol found in his car months aft er the offense be cause (1) it was irrelevant, and (2) it wa s illega lly se ized. The t rial rec ord esta blished tr ial couns el argued ag ainst the a dmissibility

of this evidence contendi ng the st ate coul d not esta

blis h 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
conc lude, after a review of the trial rec ord, that the seized .22 caliber weapon was re levant an d properl y admitted at trial. In addition, the petitioner did not establish at the post-conviction hearing that the pistol was illegally seized or othe rwise subject to suppression. The petitioner has faile d to establish trial cou nsel’s pe rforman ce was d eficien t or that he

suffer ed preju dice as a

result.
E. DNA Evidence

The petitioner claims trial counsel failed to obtain DNA e vidence t o establish his skin or cells were not found underneath the victim’s finge rnails. However, the pathologist’s testimony at trial established the victim’s “fingernails were clea n.” 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 c

ross-examine Sergeant Shemwell, who testified at

trial regarding the petitioner’s pr ior statements. He maintains trial counsel should have proven Sergeant Shemwell’s testimony was un truthful. Yet, the petitioner presented no evidence to establish the officer’s testimony was false. G. Not Interviewing and Not Using Witnesses

The petitioner

allege s trial counsel fa

iled to inte

rview ke y w itnesses a

nd faile d to interview and consid er defe

nse char acter w itnesses; however , he does not name t he potent ial witne sses h e claims trial counsel should have interviewed. The decision not to present character witnesses was
a tactical decision. Moreover, the only witnesses who testified at the post-conviction hearing were 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. Sta te , 936 S.W .2d 271, 273 (Tenn. Crim. App. 1996). Accordingly , the petitioner failed to establish trial counsel was ineffective in failing to inter view witnesses or present their tes timony

at trial. H. Failing

to Challen ge Expert

Testim ony
Th e petitione

r conten ds trial c ounsel sho uld have a

rgued Dr. Smith’ s expert te stimo n y regarding the victim’s throat injuries was not re li able scientific evidence. See Dauber t v. Merr ell Dow P harmac euticals , Inc ., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Si mi la rl y, he claims “loose contact” was not a scientific term. Our revie w of the record shows Dr. Smith’s testimony reg arding the victim’s throat injur y was based on

the autop sy a s well as h is interview with the emergenc y phy sici an who treated the victim. Further, during his testimony regarding the victim’s gunshot wound, he explained wha t he me ant by the term “loose contact wound.” There is nothing i n the rec ord indic ating D r. Smith’s t esti mony wa s inadmissible. The petitioner has not proven trial counsel was in ef fe ct iv e f or fa il in g t o o bj ec t t o D r. Sm it h’ s t es ti mo ny.
I. Examination of Dr. Smith

The petitioner a lso argue s trial counsel wa s ineffe ctive fo r failing to intervi ew Dr. Smith prior to trial and for failing to properly cross-examine him. However, the pro of at the he aring established trial counsel interviewed Dr. Smith prior to trial and even reviewed D r. Smith’s aut

opsy report with anoth

er phy sician. F

urther, the trial

record shows tria

l counse l extensive ly c

rossexamined Dr. Smith. The petitioner further maintains trial counsel should have cross-examined Dr. Smith regar

ding his salary a

nd the number of times he had testified for the state. This ty pe ofcrossexamination is a

matter of trial stra tegy , and the p etitioner

may not secon d-gue ss a

reasonably

based trial strategy

. Adkins v. St ate , 911 S.W.2d 334, 347 ( Tenn. Cri m. App. 199 4); Cooper v. State , 847 S.W.2d 521, 5 28 (Tenn . Crim. App . 1992). T his argument lac

ks merit.-10-

J. Failure to Obtain Expert

The pe titioner 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 choki ng. However, he s tipulated th e affidavit was not submitted to prove the truth of the matters asserted by D

r. Otten.

We fail to se e any

evidenti a r y value in the af fidavit if it was not submitted for its truth. Regar dless, we are unpersuaded that the pet itioner’ s p ost-tria

l discove ry of an expe

rt who would disagree with Dr. Smith’s opinions somehow translates into ineffective assistance of counsel. Dr. David McMillan also testifi ed a t trial that the medical procedures did not cause any trauma to the neck. In a

ddition, tr ial couns el confe

rred wit h Dr. J. Per

vis Milnor, a phy sician with experie nce in trauma medicine , prior to

trial. Dr. Milnor

advised trial counsel that the possibility of the medica l procedures causing the neck injuries was “remote.” Trial counsel wa s not deficient in failing to seek other expe

rt assista nce with r egard to the nec

k injuries

. K. Route to Hospital

The petitione

r claims trial counsel failed to challenge the state’s the ory that the petitioner did not travel a direct route to the hospital following the shooting . The post-conviction court determinedthe petiti oner’s p roof at th

e post-c onviction

hearin g actua

ll y established that the petitioner did not take the most direct route to the hospi tal. The p ost-conviction court further concluded

the proposed evidence would not have affe cted the out come o f the trial. The evidence does not pr

eponder ate ag ainst thes e finding s of the tr ial cour t.
L. The Smirk

At trial, a police officer testified he observed the petitioner arri ve at the hospital with the victim. According to the officer, the pe titioner had “a smirk type look on his fa ce.” Th e of

ficer stated the petitioner’s expression changed to a “scar ed look” when he saw him. In this appeal, the petitioner argues trialcounsel was ineffective for not presenting the testimony of a psy

chological expertto re

but th e off

icer ’s te stimo ny . We are s imply unable to conclude that trial c ounsel 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 a

lleged error because

he did not present any exper t proo f on th is is sue at the po st-co nvict ion h earing.

M. F ailur

e to T esti fy

The petitione

r argu es trial c ounsel imp roperly advised h

im about his right t o testify. He contends he would have made a good witness. The post-conviction court found, and the trial record reflec ts, that the petitioner chose not to testify after trial c ounsel voir-dired him regarding his rig ht to testify. Accord ing to trial couns el, he did n ot enc ourage the petitioner to testify due to his prior inconsistent stat ements. The petitioner did not testify at the post-conviction hea ring. We cannot-11-

conclude trial coun sel was ineffective for not encourag ing the petitioner to testify, nor does the evidence prepond

erate a gainst t he post-c onviction

court’s finding

that the p etitioner

decided not to testify after b eing ad

vised of h

is rights . The pet

it ioner ha s fail ed to establish trial counsel’s perfor mance w as defic ient.
N. Failur

e to Obje ct to Clo sing Argum ent
The petitioner maintains trial counsel was ineffe ctive fo r not obje cting to

the state’s closing argument regarding

the alleged prior

assault. As previo

usly discusse d, this cou

rt, on dir ect appe al, found the prosecution’s argument was proper

. See Cor wyn E. Winfield , 2001 Tenn. Crim. App. LEXI S 522, at ** 23-24. Th

is argu ment is with out merit. O. The “Knowing” Jury Instruction

Alth ough the petiti oner did n ot specif ically raise th e issu e in his init

ial brief , he arg ued in his reply brief and at oral argument that trial counse l was ineffective for

not raising the issue of the trial court’s erroneous jury charge on

the defi nition of “

knowing ” on appe al. It is arguable tha t he has waived the issue. See Tenn. R. A pp. P. 27(a

)(7). Re gardle ss, we elect to addr ess it.

The petiti oner’s case was tried in Februa ry 2000. Judgment was ente red March 17, 200 0

. Notice of appeal was filed March 23, 2000. The petitioner’ s brief was filed December 28, 2000. Oral arguments were heard Ma y 8, 2001. This court enter ed 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 ho lding tha t child ab use was not a result-of-conduct offense, the c ourt stated second degree murder was a result-of-conduct offense. Ducke r , 27 S.W.3d at 896. However, Ducker did not disc

uss jury charg es.
In the unreported opinion of State v . K eith T. Dupree , W1999-01019-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 65 (Tenn. Crim. App. Jan. 30, 2001, at Jackson), this court, facing an issue of first i mpression, he ld the tria l court e rred by failing to charg e the jur

y th at the de fendant

must have acted “knowingly ” with regard to the re sult 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 Stat e v. Pa ge , 81 S.W.3d 781 (Ten n. Crim. App. 2002), in which we held the trial court erred in instructing the jury that the

defendant

could be
co nvicted of second degree murder if he acted knowingly

with respect to his conduct and th e circumstances surrounding the offense

. Id. at 786. In Page , we stated
[I]t is now e stablished that a knowing second degre e murder is strictly a result-ofconduct offense . . . . Ajury

instruction that allows a jury to convict on sec ond degree-12-

murder based on ly u pon awar eness 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 analy sis 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 thi s 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 f ailing to do so. As we observed in Page , Ducker was not a second degree murde r case and did not discuss jury charg es. See Page , 81 S.W.3d at 788. Furthermore, the jury instruction in Dupree was distingu ishable from the jury char

ge in both Page and the instant case. See id. In addition, Dupree was decided after the petitioner’s brief was filed and s hortly before oral argument. Given this chronology of events, w e canno t conclud e trial c ounsel’s perfor

mance w as defic ient. P. Unsuppor

ted Alleg ations

The petitioner contends trial counsel failed to properly investigate or

prepare for trial, failed to properl y in terview the petiti oner, fa

iled to obta

in exculpa

tory evidenc e, faile d “to per

form his duti es,” and fail ed to obta in and ana

lyze the evide

nce. He claims tr ial couns el faile d to obtain scientif ic and forensic findings and failed to properly voir dire the jury. Fur

ther, he alleges trial counsel failed to object to the misconduct of the prosecutor. These argume nts are waived since

the defendant has failed

to make appropriate reference s to the record. Tenn. Ct. Crim. App. R. 10(b); Statev. 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 deny ing post-conviction relief. Accordingly , we affirm t he judg ment of the

post-con viction c ourt.

____________________________________

JOE G. RILEY, JUDGE