# FILED
April 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1997 SESSION

RICKY HARRIS, * C.C.A. # 03C01-9611-CR-00410

Appellant, * CARTER COU NTY VS. * Hon. R. Jerry Beck, Ju dge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee: Laura Rule Hendricks John Knox Walkup 606 W. Main Street Attorney General & Repor ter Suite 350 P.O. Box 84 Timothy F. Behan Knoxville, TN 37901-0084 Assistant Attorney Gener al (on appe al only) 450 James Robertson Parkwa y Nashville, TN 37243-0493 Margo Lamb Jack Carpenter Ken Baldwin Main Street Courthouse Assistant District A ttorney General Elizabethton, TN 37643 900 East Elk Avenue (at post-convictio n hearing) Elizabethton, TN 37643

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Ricky H arris, was convi cted of first degree murder and received a life sentence. This court affirmed the co nviction and the supreme court denied review. State v. Ricky Jerome Harris , No. 85 (Tenn. Crim. App., at Knoxville, Nov. 8, 1990), app. denied , (Tenn., Feb. 4, 1991). In 1992, the petitioner f iled this petition for post-convic

tion relief. In 1996, after sev eral evidentiary h earings, the trial court denied relief.

In this appeal of right, the pe titioner presents the follow ing issues for review: (I) whether the post-c onviction court erred

by ruling that any failure on the part of the state to provide exculpatory evidence to the petitioner in advance of trial did not warrant setting asi de the conviction; and (II) whether the post-conviction court err ed by finding that the petitioner received the effective assistance of counsel. After a careful review of all of the evidence, we affirm the judgment of the trial court.

A summary of the convictin g evidence, as taken from our opinion on direct appeal, is helpful. At about 7:50 A.M. on Septe mber 8, 1987, the petitioner's former wife, Laverne Gouge Harris, and her young

daughter, Laura Harris , left the residence they shared w ith the victim, Doll

y Gouge. The victim' s mother, Vena Odom, lived in an apartment bes ide Ms. Gouge. Between 8:00 and 8:30 A.M., the victim's sister, Helen Hopson, telephoned three ti mes to check on their mother. When there was no answer, Ms. Hops on and her husband drove to the r esidence. Ms. Gouge was not pres ent. Ms. Hopson smelled an odor which she described as reminding her of a hospital.

At approximately 9:45 A. M., Ms. Hopson notified Ms . Harris that the3 victim was missing. Ms. Harris drove to the residence and also noticed a "hospital" odor near the door. The petitioner arrived shortly thereafter.

Police officers, who were called to the scene, found the victim's glasses near the edge of the po rch and her lower dentur e in the trampled flower bed. A hair roller and a bl ue woman's shoe were al so found. When questioned, the petitioner told officers that he h ad been to the Gouge residence at 8:00 A.M. to get some personal belongings.When she did not answer the door, he left. H e claimed that he drove away, thought about returning again, but then drove away without seeing the v

ictim.
Three and one-half months later, parts of a skeleton were found near a cemetery in the adjoining Washington County. A robe was found matc hing that worn by the victim on the date of her disappearance. The upper dentu re and hair rollers like those w

orn by the victim w

ere at the scene. A blue shoe matc hing that found in the flower bed was al so recovered. The body had apparently been dismembered by animals. Nei ther the time of death nor the cause of death could be determined.

A witness testified that the petitioner had been in a park ed car watching the vic

tim's house through binocul ars sometime between 7:30 and 7:55 A.M. on the day of her disappear ance. Between 8:15 and 9:00 A.M. , a next-door neighbor, Joyce Hink

le, saw a light-c

olored automobile with Sher wood Chevrolet stickers on the window parked in front of the victim's residence. Ms. Hinkle heard the victim exclaim w

ith surprise and, soon ther eafter, she saw the petitioner walking quickly whil e clutching something i n his hands. "He went aro und to the front entrance of the victim's home, then came back around and seconds la ter he went4 back around the house completely out of her sight." Harris , slip op. at 6. She described the petitioner as wearing glove s and holding a bottle.
As the petitioner made a second trip around the victim's house, Ms. Hinkle passed by and they spoke. She saw the petiti oner drive away in the direction of Elizabethton, but minutes lat er saw the same car trav eling on a different route toward Roan Mountain. When the petitioner returned to the victim' s driveway, he was not wearing g loves and had changed clothes. He explained to Ms . Hinkle that he was getting some al bums from the residence.

Officer William Foster also observed the petitioner on the day of the victim's disappearance.He recalled that the petitioner went to his motel r oom and then to his place of employment at Sherwood Chevrolet, befo re driving to his attorney's office and then to a car wash.
Employees at Sherwood Ch evrolet recalled that on the date of the victim's disappearance, the petitioner did not arrive at work on time. One witness described the petitioner as flushed, excited, and swea ting when he did arri

ve. Another employee noticed very deep scratches on his forearms.

Charles Carr, who lived near where the body was found, recalled seeing a new gray

car with dealer's tags near his residence around 9:00 A.M. on the date of the victim's disappear ance. He had seen the car tw ice previously i n the months prior to the incident.

James Hodge also live d near the cemetery wher e the body was discovered. He saw

a gray car trav

eling the area between 8: 30 and 9:00 A.M. on5 the date the victim disappear ed. About ten minutes later, he s aw the same car again. He described it as a new gray Chevrolet with red pinstripes, dealer's tags, and new car stickers . He identified the petitioner as the driver. See Harris , slip op. at 2-14.

I

The petitioner initially contends that the state failed to disclose materia l, exc ulpator

y infor mation i n viol ation of Brady v. Maryl and , 373 U.S. 83 (1963). He alleges fiv

e separate Brady

violations: (a) suppression of evide nce that three eyewitne sses had seen the victim aliv

e at a time after the prosecution believed she had been murdered; (b) suppression of evide nce that there was a ques tion as to whether the body found in the cemetery was the victim's; (c) suppression of evi dence that a witness could refute Foster's testimony that the petitioner vacuumed the tr unk of his car the day the vi ctim disappeared; (d) suppression of evide nce that Foster was a co nvicted felon; and (e) suppression of evide nce that someone else had confessed to murdering the v ictim.

In the la ndmark c

ase of Brady v. Maryl and , the United States Supre me Court ruled that the prosecutor has a duty to furnish ex culpatory evidence to

the defendant. Exculpatory ev idence may pertain to the g uilt or innocence of the accused and/or the punishment w hich may be imposed if the accus ed is convicted of the crime. State v. Marshall , 845 S.W.2d 228 (Tenn. Crim. App. 1992).

Any "suppression by the prosecution of evidence favor able to an accused upon request vi olates due process where the evidence is material either to6 guilt or punishment, ir

respective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. This duty t o disclose extends to al l favorable information irrespective of whether the evidence is admiss ible. Branch v. State , 469 S.W.2d 533 (Tenn. Crim. App. 1969). And, while Brady does not require the state to investigate for the defendant, i t does burden the prosecution w ith the responsibility of disclosing statements of w itnesses favorable to the defense. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to information that the defense already possesses or is able to obt ain or to information not in the possession or cont rol of the prosecution. Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977).

Before this court may find a due process violation under Brady , the following elements must be e stablished: (1) the defendant must have req uested the information (unless the evidence is obviously exculpatory, in which case the State is bound to relea se the information whether requested or not); (2) the State must have suppr essed the information; (3) the information must have been favorable to the accused; and (4) the information must have been material. State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearin g).

In Edgin , our supreme court adopted the foll owing standard for materia lity: [T]here is constitutional error "if there is a reasonable

probability that, had the e vidence been disclosed to the defense, the result of the proceeding would have been different." ... [The] touchstone of materiality is a "reasonable probability" of a different result, and the adject ive is important. The question is not whether the defendant7 would more likely than not have received a different verdict with the ev

idence, but whether in it s absence he received a fair trial , understood as a trial res ulting in a verdict wort hy of conf idence. A "reason able prob ability" of a different result is accordin gly shown when the government's evidenti ary suppression "undermin es confidence in the outcome of the trial. " Edgin , 902 S.W .2d at 390 (quot ing Kyles v. Whitley , 115 S. Ct. 1555, 1566 (1995)).
(a) The petitioner's first Brady claim concerns a possibl e identification of the victim at the bank hours after the state alleged the peti tioner had killed her. The petitioner testified that w hen he filed a request under the F reedom of Information Act, he received two

slips of paper indicating the victim may have

been seen about noon on September 8, 1987, at the Citi zen's Bank.

Donna Vaughn testified at the ev identiary hearing th at on September 8, 1987, she was with her mother, Mary McQueen, and her aunt, Brenda Crow e, at the drive-through w

indow of Citizen's B

ank on Broad Street, at 11:00 or 11:30 A.M., when she saw a small, elderly lady sitting on the passenger's side in another car. "She was kind of trying to get our attention like something was wrong or she wasn't right, one of the other." The w oman had short, dark brown h air that was "rolled real neat." There were no rolle rs in her hair and she w as not slouchy in appearanc e. Although Ms. Vaughn could see the woman only from her shoulder up, she determined the woman was a small lady around sev enty years of age. M s. Vaughn observed the woman for fiv e to ten minutes and described her as "just moving around like she was tr

ying to get our attention and rolling her ey es."
Ms. Vaughn "constantly" watched the older woman an d asserted that she acted in a strange manner.Ms. Vaughn described her as petite or "slim faced."8 The woman was not wearing a robe. Her hair was lighter than what she saw in photographs of the victim. Further, the woman at the bank appeared smaller than the photographs of the victim indicated. After finishin g business at the bank, Ms. Vaughn had lunch with her relatives and then retur ned home at approximately 12: 00 noon. When they turned on the television s et, she saw a picture of a w oman who had been described as missing . Ms. Vaughn immediately believed her to be the woman she had seen at the bank. She recalled that "we all

looked at each other and said -- that looks li ke the lady that we had s aw." Ms. Vaughn remembered that her mother or aunt called the s heriff's department, but no one contacted her about the matter.
Mary McQueen, who was present at the bank with her daughter, testified that a bank book, whi ch was entered into ev idence, confirmed that a deposit was made on September 8, 1 987. Ms. McQueen recalle d seeing a woman with dark, short, curly hair sitting in the passenger seat of another vehicle. While she did not remember if the woman wore glasses, she remembered tha t she was a very neat person and had a medium rather than petite build. If the woman wore dentures, they would have been in her mouth. She did not have rollers in her hair and Ms. McQueen did not recal l if the woman wore a r obe.

Ms. McQueen stated that w hen the vehicle moved forward in the drivethrough lane, the woman pass enger turned around and trie d to get her attention. She recalled thinking "the little lady wasn't right" and acknowledged it was possible this incident at the bank coul d have occurred at a time di fferent than the date of the victim's disappearance.

Ms. McQueen confirmed that w hen she returned home and turned on9 the televi sion set, sh e saw a wo man on telev ision who appeared to be the same person as the one at the bank. Ms . McQueen stated, "If it was n't her, she [had] a twin."
Brenda Crowe, Ms. Vaughn's aunt, confirmed the incident. She also described the woman as hav ing short, curly hair with a very neat appearance and no rollers in her hair. Ms. Crowe did not remember if the woman wore glasses but did recall that she may hav e worn a cardigan sw

eater. She remembered the woman to be small or petite with hair a lighter color than that of the victim.
Former Supreme Court Justice Penny Wh ite, who was defense counsel at trial, testified that the district attorney did not have an open file polic y at that time. She recalled fili ng a Rule 16 motion for discov ery which include

d a request for any excul patory information. She stated that even after discover y was ordered, the district att

orney refused to allow her personal access to any of the records. Attorney White viewed the evidence of the three woman as clearly exculpatory: "If the jur

y believed the wi

tnesses, then Harris coul d not have done the killing." She confirmed s he did not receive any information in advance of trial indicating anyone had seen the victim.

James Bowman, co-counsel for the defendant, testified that even if the women did not see the victim on the date of her disappearance , he would have still used the ir testim ony.

Laverne Gouge, the vi ctim's daughter, liv ed with her mother on the day of the disappearance. She testified tha t her mother owned only one pair of glasses, was five feet six or

six and one-half inches tal l, and weighed one-hundr ed fifty to10 one-hundred sixty pounds . Ms. Gouge recalled that the police arrived the day of the disappearance around 11:00 A.M. No television cameras were present. She did not give the media a photo of her mother, although at some point, she did give the police a photograph.

Officer Shannon Morton testified that when he arrived at the victim's house at about 11 :30 A.M., other of ficers wer e there. He did not arrange a n ews broadcast for the noon day new s on September 8. "This was done late in the afternoon on the day of the 8th and ... the first ... news reports were broadcast on the 11:00 o'clock news." Officer Morton did not know of any press releases pri or to the noon hour on September 8. He cl aimed that even if he had a photogr aph of the victim at 11:30 A.M., it would have been impossi ble to have it ready for a noon hour television broadcast.

Officer Morton testified that medical records showed the victim weighed one-hundred forty -four pounds and was five feet s ix inches tall. The victim's sister des

cribed her as five-feet four i nches, weighing one- hundred forty pounds. He remembered that at the pr eliminary hearing, the victim's daughter stated that her mother had more than on e pair of glasses and admitted s he was uncertain whether her mother was wearing r

ollers in her hair on the morning of her disappearance. Officer Morton remembered the incident at the bank was the only reported possible sighting of the victim.

David Crockett, the D istrict Attorney, t estified that the report of the incident at the bank was "c learly a case of mistaken i dentity." He claimed it was an "obviously inaccur

ate piece of evidence that had no bear ing on the case."11 William Crumley, Sheriff of Carter County on the date the victim w as reported missing, testified that news releases w ere his responsibility. He claimed that he did not authorize any news releases prior to noon. Moreover, he asserted "it would have been vir

tually impossible becaus e from the time of the original ca ll to noon was a relativel

y short period of time." He did not recall any media being present and withheld his decision to contact news media until late that afternoon. He remembered that the first broadc ast that the victim w

as missing was on the 11:00 P.M. news.

The tria l court ma de the f ollowing f indings of fact and law: The information, if it could withstand investigation and critical evaluati on, would have been exc ulpatory. ... The information received by the Sheriff's Department was not turned ov er to the District Atto rney and, as a result, the information was not turned over to defense counsel. *** Under applicable Brady/Kyles standards, the state's theory that the peti tioner is not entitled to a new trial seems com pelling.

Physical Evidence The victim, Dolly G ouge, could only be consi dered a large woman. The testimony of the witnesses at the bank on September 8, 1987, indicates that the woman observed was a small

person. The physical evide nce located at the Dolly Gouge home indicates a struggl e as evidenced by the destruction of the flower bed. The testimony of the three witnesses indicates that the person they observ ed was neatly dressed with

her hair in place. The area of the yard near Doll y Gouge's home on September 8, 1987, revealed a sh oe, (one) dental plate and hair curler with hair in it, and a pair of g lasses belong to Dolly Gouge (v

ictim). ... When Mrs. Gouge's body was loca ted [12/23/87] near the Carr Cemetery some months after her disappearance, located nearby the body was her upper denture, hair rollers i n her hair, and the shoe matching the one in the flower bed. ... When Laverne Gouge Harris Craig [victim's daughter] left the home on the morning of September 8, 1987, Mrs. Gouge had on a col orful flowered robe, and this same robe was found at the C arr Cemetery . ...12 One of the three witnesses at the bank described the person as a little old lady going to churc h--another remembers glasses. Further, a reading of the record and Scott's opinion indicates overw helming evidence of the gui lt of the petitioner Harris. Also, although not as clear as the above, serious doubt exists as to whether the three witnesses could have observed a photo of Doll y Gouge on the televi sion at 12:00 noon on September 8, 1987. ... Conclusions of Law and Fact This Court is convinced beyond a reasonable doubt: (A) That, under the circumstances of the case and all the proof offered, this Court can see no probability of a different resul t had the information been revealed concerning the three witnesses; (B) That the absence of the three witnesses ... did not result in an unfair trial; (C) That the failure of the polic e to turn over the evidence did not result i n a verdict unworthy of confidence; (D) This Court is convinced beyond a reasonable doubt that the evidence ... w as not reliable when v

iewed under the full context of the other physical or oral pr

oof offered at trial; This evidence is so unrel iable that it falls within the category of worthless.

Under the standard set forth in Edgin , we initially conclude the evidence was reques

ted and that the state failed to rev eal it. The information was apparently contained in a pol ice investigativ e file but was never tur ned over to the District Attorney's office. The law, however, provides that "'suppression by police will be imputed to the pr osecution ....'" State v. Davis , 823 S.W.2d 217, 219 (Tenn. Crim. App. 1991 ) (quoting Cason v. State , 503 S.W.2d 206, 208 (Tenn. Crim. App. 1973)). Thus, the second Edgin factor has been satisfied. Finally, the evidence was exculpatory . If the jury believed that the witnesses at i ssue did see the victim a t the bank at noon on September 8, the theor y of the state, based entirely upon circumstantial evidenc

e, would have been disca rded. Furthermore, that the petitioner was talki ng to police at the same time the victim was seen at the bank13 would have been clearl y exculpatory.
The remaining question is whether the evidence is material. Evidence is not material unless it creates "'reasonable probabi lity' of a different result." Edgin , 902 S.W .2d at 390 (quot ing Kyles v. Whitley , 115 S. Ct. at 1566). That is, it is not material unless it "'undermi ned confidence in the outcome of the trial .'" Id. We conclude the evidence is n ot material and will a ttempt to explain why

.
When shown pictures of the victim as s he appeared at the time of her death, none of the three women wer e able to say that the vi ctim was, in fact, the woman they saw at the bank. Ms. Vaughn thought th e woman they saw at the bank had lighter-colored hair and appeared smaller than the pictures of the victim indicated. When Ms. McQueen was asked if she could determine whether the woman at the bank looked lik e the victim, she responded,"I don't know. All I k now is she [the lady at the bank ] just looked like the lad y that they showed on the TV that day, [that is] all I c

an really [say]." M s. Crowe testified that the woman she saw at the bank was smaller than the victim and that the hair color was lighte r.
The descriptions given by the woman at the bank contradict the undisputed evidence at trial relating to the appearance of the victim. The evidence established that the victim, when abducted, had rollers in her hair, was without part of her dentures, and was w earing a brightly

-colored robe. None of the thr ee women corroborated any of these detai ls. When the body was discover ed, authorities found hair rollers, the robe,and the single shoe that matched the one found in the flower bed. All of that corresponded w ith the trial testimony

.
The state proved at the evidentiary hearing that the victim's picture14 could not have been on the new s at noon on the date of her disappearanc e. Authorities arrived at the scene at approximately 11:00 A.M. on September 8. Sheriff Crumley testified that h e did not authorize a new s release before noon on the date at issue and that it w ould have "been virtuall y impossible because from the time of the original call to noon was a relativ ely short period of time" i n which to arrange the news for tel evision.

At the conclusion of the hearing , the trial court observ ed that it was unlikely that the women, who were uncertain of the date of the event at the ban k, had seen the victim's photog raph on television at noon on September 8. That the
women were uncertai n about t he date s erved to le ssen the value of t heir test imony. That is especially so in light of the fact that none of the women could positively identify the female individua l they saw at the bank as the victim.

Under the circumstances, any evidence favorable to the defense would have been somewhat helpful at trial. Yet the evidence offered by the state, while entirely c

ircumstantial, was nonetheless overwhelming . All of this leads us to the conclusion that the testimony of the three women was not s ufficiently material to warrant a new trial. Had they been more positive in their identification of the victim or if their description had more closely resembled the victim as she apparently appeared at the time of her disappearanc e, our conclusion may hav e been different.
To further explain our rati onale, it may be helpful to ex amine cases where courts have found a Brady violation requir

ing reversal. In State v. Marshall , 845 S.W.2d 228 (Te nn. Crim. App. 1992), the defendant was convicted of f irst degree murder and receiv ed a life sentence. His attor neys discovered that the state had suppressed several s tatements of witnesses indic ating that a Robert Thomas15 "Astro" Coats had actually committed the crime. For ex ample, one witness indica ted that he had heard Coats state that he had killed the victi m and then showed him the murder weapon. Coats' g irlfriend, who also cl aimed to have overheard C oats confess to the crime, reported that Coats had directed her to serve as his alibi witness. Other witnesses heard Coats discuss his participation in the crime. This court found that had the evidence been disclosed , there was a "reasonable probability that the res ults of the trial would h ave been different." Id. at 234. See also State v. Spurlock , 874 S.W.2d 602 (Te nn. Crim. App. 1993).

Another instructive c

ase is the United States Supr eme Court's opinion in Kyles v. Whitley , 115 S. Ct. 1555 (1995). In tha t capital case, the primary issue was one of identity. Id. at 1569. The state, which r elied primarily on th e testimony of several eyewitnesses who identified Kyles as the killer, withheld from the defense the pretrial statements of tw o of the witnesses. The Supreme C ourt ruled that if the defense had been allowed to use thos e statements, "the value of ... thos e [two] witnesses would hav

e been substantially reduc ed or destroyed." Id. at 1569. The state also suppressed pretr ial statements of an informant who w as nicknamed "Beanie." Many of Beanie's stat ements to the authorities indi cated that he was the killer or that he had plant ed evidence tending to incriminate Kyles. The Cour t found that this information, had it been d isclosed, would hav e substantially weak

ened the state's case and thus confidence i n the outcome of that trial could not be maintained. Id. at 1575.

In our view, the ev

idence withheld in this

case is not nearly as persuasive as in those r eported cases in which new trials have been ordered. The quality of the suppressed testimony is simply insufficient to undermine our confidence in the results of the tr ial. In short, the evi dence does not preponderate1 The re cord is un develop ed as to h ow the p etitioner acq uired pos sessio n of this do cum ent. 16 against the determination that a new trial is not w

arranted. See Edgin , 902 S.W.2d at 390-91.
(b)

The petitioner next argues that a Brady

violation occurred w

hen the state withheld evidenc

e that there was some ques tion as to whether the body found in the cemeter

y was tha

t of the victim. Accordi ng to a T.B.I.memorandum, 1 the first medical person summoned to the cemeter y originally believed that the skeletal remains had the appearance of being emba lmed. He originally thought the skull appeared to be that of a young w oman.

While the trial court observed that this evidence might q ualify as "arguably a cross-examination point," it rul ed that the preliminary thoughts of the physician would not have benefitted the defense. We agree with that assessment.

Again, the first three req uirements established by the ruling in Edgin have been shown: (1) the defendant requested the information; (2) the state failed to provide it; and (3) it could have been excu lpatory because it tends to suggest the body was not that of Doll y Gouge. In our vi ew, however, the ev idence is not material. The physician t estified that additional testi ng demonstrated that the body had not been embalmed. A closer ex amination of the skull indicated that the body was that of a woman at least in her fifties. That he may hav e, on first impression, speculated that the body, found near a cemetery, had been embalmed or w as that of a younger person, does not cast any real doubt on the substance o f his testimony. That evidence would have been only marginally relevant or useful in cross-examining D r. McCormick. Kyles v. Whitley , 115 S. Ct. at 1571.17 (c) The petitioner next contends the state committed a Brady violation by withholding from the defense evidence that a witness could refute state witness Foster's testimony that the petitioner had vacuumed the trunk of his car on the day the victim disappeared. A t trial, Foster testified that after he was assig ned to follow the petitioner, he observe d him take his car to a car wash and park near the v acuum cleaner. While the testimony suggested the pe titioner might have vacuumed his car, Foster conceded that he c ould not determine whether he had actually done so. Foster said that when he a sked others who wer

e present to confirm what the petitioner had done, they w ere unable to do so.

A T.B.I. memorandum, found sometime after the trial, however, provides as follows:"At first, Sgt. Foster thought Ricky Harr is vacuumed the trunk out. However, another individual, who was close by advised Sgt. Foster that Ricky Harris did not vacuum the vehicle." Thus, the memorandum c ould have been used to impeach Sgt. Foster's testimony that no one else saw anything about the petitioner while at the

carwash.
Nonetheless, this evidence does not meet the materiality test. W hile it might have called into question the inference that the petitioner had cleaned the interior of the car in an effort to destroy evidence of his crime, this is a minor poi nt that, from our assessment of the recor d, would have only marginally weake ned the state's case. Due to the strength of the other convicting evidence, our confiden ce in the verdict is not affected in the least due to the state's f ailure to preliminarily advise the defense on this point. Edgin , 902 S.W.2d at 391.18 (d) Next, the petitioner ar

gues a Brady

violation by the st

ate's suppression of evidence that Sgt. Foster had a felony record. Duri ng the 1960's, Foster w as apparently convicted of offenses in the state of Louisiana. He ultimately received a pardon. This fact was not discovered by either the state or the defense until sometime after petitioner's tr ial.

There is no Brady

violation. The duty to disclose evidence does not extend to information not in the p ossession or control of the pr osecution. Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977). Because the parties stipulated that the state did not have this information in its possession or cont rol until sometime after trial, there w as no error. Id.

(e) The petitioner's final claim bas ed upon the ruling in Brady is that the state suppressed evidence that someone else had confessed to the murder. After trial, the petitioner's

trial counsel receiv

ed a copy of a letter that prov ided in part: [District Attorney

General] David Croc

kett How can you liv

e with yourself the w

ay you do people in court? I wrot e you a letter before you ha d the trial on Ricky Ha rris but you must hav e throw[n] it away because you didn't want a hole in your plan. I told you in that letter that Ricky

Harris did not do any

murder. I was the one that di d it. ... I w anted to let y

ou know that

me and the other two family member s got by with it . You police people are so stupid. Bill
When trial counsel, after reading a copy of the letter, contacted the District Attorney,she was informed that he had forw arded her the letter as soon as he received it. He deni ed having received any correspondence before the tr ial. After hearing proof on the matter, the trial court determined "th at District Attorney19 Crockett was absolutel y truthful in his testi mony that he received no pr e-trial letter from 'Bill.'" This factual finding is binding on this court unless the evidence preponderates against it. Edgin , 902 S.W.2d at 389. It does not. Because the state did not have any i nformation about a confession before the tri al, the state cannot be held to a requirement of disclosure. Banks , S.W.2d at 90.

In Kyles v. Whitely , the Supreme Court ruled that one aspect of materiality is that th e "suppressed evidence [must] be considered collectiv ely, not item-by-item." 115 S. Ct.at 1567. We have reviewed the subst ance of each of the items not disclosed to the defense ( the possible sighting

of the victim and the relevant information contained in the T.B.I. me morandum). Our determination is that none of the items, standing al one, qualified as material. Our conclusion is the same after examining the coll ective evidence w ithheld by the state. In th e context of the entire record, the failur e on the part of the state to discl ose the evidence at issue does not affect our confidence in the v erdict. Even if the petiti oner had known of this evidence, it is our view that the outc ome of the trial would not hav e been different. Id. at 1566. In Edgin , the supreme court ruled that the petitioner must show a Brady

violation by a prepo nderance of the evidence. 902 S.W.2d at 389. The evidence does not preponderate against the trial cour t's ruling that the petitioner failed to carry this bur

den.
Our ruling on this i ssue is not designed to enco urage prosecutors to disregard their leg al and ethical responsibil ity to disclose ev idence that might be construed as exculpatory. The United State Supreme Court has commented extensively on the

duty to disclose ev

idence favorable to the defense. "[A] prosecutor anxious about tacking too close to the wind will disclose a favorable piece of eviden ce. ... This is as it sh ould be. Such di sclosu re wil l serv e to jus tify20 trust in the prosecutor as the 'representative ...of a sovereignty ...whose interest ... in a criminal prosecuti on is not that it shall w in a case but that justice be done.'" Kyles v. Whitley , 115 S. Ct. at 1568 (citati ons omitted).

II The petitioner also argues that his trial counsel w as ineffective for the following reasons:

(a) failure to object to venue when the body was found in Washington County and the petitioner w as tried in Carter County; (b) failure to request DNA testing when the remains of the victim were id entified only by artic les of clothing that were foun d near the body; (c) failure to request

special jury instr

uctions regarding identification; (d) failure to object to the introduction of testimony regarding a police dog's ability to smell hospital odors; and (e) failure to object to erroneous, confusing jury instructions.
When a petitioner seeks post-convicti on relief on the basis of ineffective assistance of counsel , he must first establish that the services rendered or the advice given was below "the range of competence demanded of atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, he is not entitled to relief. Recently, our suprem e court described the standard of review as follows:

Because a petitioner must establ ish both prongs of the test, a failure to prove either deficiency or prejudice provides a suffici ent basis to deny rel ief on th e ineff ective assistance claim. Indeed, a c ourt need not address the21 components in any particul ar order or even addres s both if the defendant makes an insufficient show ing of one component. Goad v. State , 938 S.W.2d 363, 37 0 (Tenn. 1996).

On claims of ineffective counsel, the petitioner is not entitled to the benefit of hindsight, may not sec ond-guess a reasonably based trial strategy , and cannot criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel, howev er, applies only if the choices are made after adequate pr eparation for the case. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). On appeal, an y findings of fact made by the trial court are concl usive and will not be disturbed unless the ev idence contained in the record preponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petition er to show that the evidence preponderates against those find ings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). This cour t may not reweigh or

reevaluate the evidenc e or substitute its inferences for those drawn by the post-conviction court. Ques tions concerning the credibility of witnesses and weight and value to be given their testimony are for resoluti on by the post-convic tion court. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
(a)

The petitioner's first arg ument is that trial counsel was ineffective for failing to object to venue . The body was found in Washington County but he was tried in Carter County . Counsel for the petitioner sought a change of venue based upon the substantial amount of pretri al publicity. The req uest was denied. The petitioner now argues

that his trial counsel s hould have also alleged, as an22 alternative ground, th at the crime was not committ ed in Carter County.
The trial judge concluded th at a motion for change of venue on that basis "would have been to no avail" because the cir cumstantial evidence sug gested that substantial parts of the cr ime were committed in Car ter County, thus establishing proper v

enue. The trial court also r uled that "if one or more elements of a crime are committed in one county and other elements in an other, the offense may be prosecuted in either county." We agree.

Article 1, Section 9 of the Tenness ee Constitution provides in part that in all criminal prosec

utions, the accused has the ri ght to a "speedy public t rial, by an impartial jury of the count y in which the cr

ime shall have been committed . ..." See Tenn. R. Crim. P. 18. The state has the burden of proof that the offense was committed in the county of the indi ctment. Harvey v. State , 376 S.W.2d 497 (Tenn. 1964). Venue may be shown by a preponderance of the evidence w hich may be either direct or cir

cumstantial or both. Hopper v. State , 326 S.W.2d 448 (Tenn. 1959). Rule 18(b) provides that "[i]f one or more elements of an offense are committed in one county and one or e more elements in another, the offense may be prosecuted in either county ." Tenn. R. Crim. P. 18; see State v. Knight , 616 S.W.2d 593 (Tenn. 1981); State v. Reed , 845 S.W.2d 234, 238 (Tenn. Crim. App. 1992).

There was, in fact, circu mstantial evidence that the v ictim was abducted in Carter County . There was also proof that th e petitioner had monitored the victim's home and aw aited an opportunity to acc ost her without being detected. These facts establish both premeditation and deliberation, critical elements for first degree murder.23 The petitioner also complains that his trial attorney s did not ensure an appropriate jury inst ruction on venue. The trial court charged the jury

as follows: Before you can find the defendant guilty of any offense, you must find that the State has proved each and every element of the offense beyond a reasonable doubt and further that the offense occurred before the commencement of the prosecution , and it occurred in Carter County, Tennessee, b y a preponderance of the evidence. See Tenn. Pattern Jury Instruction 2.04 (2d ed. 1988).

The pet itioner c omplain s that the following instruct ion shou ld have been provided: The burd en is upon the state to prove by a

preponderance of the evidence that this offense was committed in Carter County , Tennessee. Proof by a preponderance of the ev idence means that the greater weight of the evidence must be in support of the state's contention. Venue of the offense lies in the county w here the offense was commenced or consummated. If you fi nd that t he state has fail ed to prove by a preponderance of the evidence that this offense was commen ced or con summat ed in Cart er County, Tennes see, the n you must return a ve rdict of not guilty.
SeeTenn. Pattern Jury Instruc tion 2.05 (2d ed. 1988).

In our view, the ins

truction given, although brief, is an accurate stateme nt of the law on venue . The jury wa s charged that it ha d to find by a preponderance of the evidence that the crime was committed in Carter County and that, if it did not so conclude, it had to find the defendant not guilt y. See Tenn. Pattern Jury Instructi on 2.04 (2d ed. 1988).
(b) The pet itioner n ext compl ains that his trial a ttorneys we re ineff ective24 for failing to seek DNA tes ting to confirm the identity of the body. He argues that the body was identified only by the articles of cloth ing that were found nearby

.

The trial court m ade the follo wing finding: At the time of trial, DNA ev idence was in its legal development stage at best, and trial counsel could not be faulte d for fa iling to rec ognize tha t DNA might have offered some aid at trial.

*** Considering the overwhelming evidence concerning the identificati on of the victim, it could no t be stated that DNA would hav e rendered any aid to the defend ant's the ory. Original trial cou nsel was not ineffective und er due process standards or Sixth Amendment standards.
We agree. The petitioner was tried i n 1988. In 1990, this court rul ed that "[i]f a scientific devel opment with forensic applic ation is not generally

known to the Tennessee courts and attorney s who are involv

ed with the administrati on of criminal justice, then a defense attorney's unknowi ng failure to pursue such a development ... does not necessar ily render him ineffectiv e." State v. Overbay

, 806 S.W.2d 212, 215 (Tenn. Crim. App. 1990). In Overbay , the petitioner sought to challenge his 1987 convi ctions based on trial couns el's failure to seek DNA testing. In rejecting the claim the court made the following observation:

In People v. Castro , 545 N.Y.S.2d 985, 986 (1989) the reliability and forensi c application of DNA print identification was consi dered a "fascinating and novel issue." In 1988, it was noted to be "at the 'cutting edg e' of forensic science." People v. Wesley , 533 N.Y.S.2d 643 (1988). The first reported ap pellate opinion dealing substantively w

ith the issue of DNA testing appears to be Andrews v. State , 533 So. 2d 841 (Fla. Dist.Ct. App. 1988) which recogniz

ed that the issue was nov el. 533 So. 2d at 846, n.4. .... [T]his cour t [has] held that if a legal issue, although in exi stence, was not general ly known to the bench and bar when a particular case went to trial, then it could not be said that the attorney in that trial was ineffective for failing to rai se the issue.25 Overbay , 806 S.W.2d at 214-15 (parallel citations omitted).

Here the trial commenced tw o years before the opinion in Overbay was released. The use of DNA testing in the criminal

justice arena was not an established practice at that time. Id. While we acknowledge the petitioner's argument that DNA testing was available in 1988 through the FBI and was discussed in newspaper articles and law review journals, the recognized standard for the effective assistance of counsel do es not require that the attorney "read[] all cases and scientific journal s published across this n ation." Id. at 215. The test is whether the scientific pr ocedure at the time of the trial w as "generally know

n to the Tennessee courts and attorneys ." Id. Clearly, DNA testing was not gener ally known in Tennessee at the time of his tri al. Thus trial counsel cann ot be found deficient for failing to seek t esting.

Of greater importance is tha t the petitioner has not met the s econd requirement of the ruling in Strickland . The petitioner has failed to establish prejudice--that there is

a "reasonable probability " that but for counsel's deficient performance "the result of the proceedi ng would have been different. " Strickland , 466 U.S. at 694. In Davis v. State , 912 S.W.2d 689, 698 (Tenn. 1995), the petitioner argued his co unsel was ineffective for fail ing to seek additional ser ological testing. Our supreme cour t ruled that "since the petiti oner presented no evidence of what serol ogical tes

ting woul d have show

n and of how it would hav e benefitted hi m, he failed to demonstrate any prej udice." Id. at 698. The petitioner has offered no proof as to what DNA testi ng would have show n. This court cannot speculate about the issue; there must be a demonstr ation of prejudice.26 (c) The petitioner next argues that his counsel was i neffective for failing to request special jury

instructions regardi ng the identification issue.The following instruction was prov

ided: Identity. The State must prove beyond a reasonable doubt the defendant's identity as the person who committed the crime. If, after considering all of the evidence in this case, y ou the jury are not satis

fied beyond a reasonable doubt that the defendant is this person, then y ou must find him not guilty. See Tenn. Pattern Jury Instruction 37.17 (2d ed. 1988).

The petitioner contends that United States v. Telfaire , 469 F.2d 552 (D.C. Cir. 1972), is the "penultimate authority on eyewitness identification jury instructions." In Telfaire , the federal court recogni zed the difficulties associ ated with identification testimony and adopted a more comprehensive ins truction. Id. Until 1993, Tennessee courts consistentl y rejected the Telfaire instruction. See State v. Ward , 712 S.W.2d 485, 488 (Tenn. Crim. App. 1986); State v. Moore , 713 S.W.2d 670, 676 (Tenn. Crim. App. 1985); State v. Wooden , 658 S.W.2d 553, 557 (Tenn. Crim. App. 1983). In 1993, an opi nion filed in this court depar ted from the traditional rule and held that "in any c riminal case in whic h the issue of identity is raised by the evidence and is material to the defense the detailed identification instruction first devised in Telfaire ... must be given." State v. Dennis Lee Dy le and William Whitfield Ellis , No. 03C01-9209-CR-00332, slip op. at 10 (Tenn. Crim. A pp., at Knoxville, Nov . 16, 1993), rev'd , 899 S.W.2d 607 (Te nn. 1995). On appeal, however, our supreme c ourt ruled that while a more detailed instruction on identification testimony w as required, the Telfaire instruction impermissibly commented on the evidence. Instead, the court promulgated a new identity instruction which must

be given in all cas

es where identity i s a material issue and27 the instruction is req uested. Dyle , 899 S.W.2d at 612.

In our view, tri al counsel was not ineffectiv e for failing to request an instruction that would have been denied. Counsel w ould have had no obligatio n to anticipate that in 1995, a lmost eight years after

the trial i n question, the supreme court would depart from a lo ng line of cases holding s upplemental instructions on identity are not requi red. See Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). See also Larry J. Cawthon v. State , No. 02C01-9702-CR-00064 ( Tenn. Crim. App., at Jackson, Jul y 29, 1997) (holding c

ounsel was not ineffective for failing to request a special jur y instruction on ey

ewitness identification, when the case was tried prior to Dyle ).
(d)

The petitioner next argues that his trial counsel w as ineffective for failing to object to testimony by Officer J.D. Toth that his police dog had alerte d him to hospital-like odors at the victim's residence. The transcript of the trial, however, demonstrates that Officer Toth did not tes tify to that. In fact, the officer tes tified that the dog "gave no indication that there was a str ange odor." Harris , slip op. at 37. Because the dog was unable to track the scent of the vi ctim, Officer Toth concluded that she did not walk aw ay from the residence.

(e) The petitioner next argues his trial counsel w

as ineffective for failing to object to several of the jur y instructions. Fi rst, he complains about the follow ing instruction on reasonable doub t: Reasonable doubt is that doubt eng endered by an investigation of all the proof in the case, and an inabil ity after such investigati on, to let the mind rest easil y as to the certainty of guilt.Reasonable doubt does not mean a28 possible or imaginary doubt. Absolute certainty of guilt is not demanded by the law to co nvict of any criminal charge, but moral certai nty is required, and this certainty is required as to ev

ery proposition of proof req uisite to constitute the offense.
The petitioner argues this instruction violated the standards set forth in Victor v. Nebraska , 511 U.S. 1 (1994). In Victor , the United States Supreme Court ruled that a jury mig ht "understand [the instructi on containing the phrase 'mor al certainty'] to allow conviction on proof that does not meet the beyond a reasona ble doubt standard." 511 U.S. at 13. The Court ruled, however, that a reaso nable doubt instruction that contained the phrase "m oral certainty" might nonetheless comport with constituti onal guidelines if used in c onjunction with other phr ases that lend content to the phrase. Id. at 15.

In State v. Nichols , 877 S.W.2d 722, 734-35 (Tenn. 1994), our supreme court considered a challenge to a jury instruction which included the term "moral certainty" used in conjunction with a char ge that "[r]easonable doubt is that doubt en gendered by an invest igation o f all the proof in the case a nd an ina bility, after such investigati on, to let the mind rest easil y upon the certainty of y our verdict." Id. The court concluded that the instruction properly reflected "the evidentiary certainty require

d by the 'due process' cl ause of the federal constitution and the 'law of the land' provision in our state constitution." Id. In our view, Nichols controls in this instance. Thus, trial counsel cannot be found ineffective for fail ing to object to the instruction. See also State v. Bush , 942 S.W.2d 489, 520-21 (Tenn. 1997) (upholding the constituti onality of an instruction almost verbatim to the inst ruction given in petitioner's case), cert. denied , 118 S. Ct. 376 (1997); contra Rickman v. Dutton , 864 F.Supp. 686 (M.D. Tenn. 1994) , aff'd , 131 F.3d 1150 (6th Cir. 1997), cert. filed (Mar. 2, 1998).29 The petitioner also argues counsel was ineffective for failing to obje ct to the following instr

uction on malice: Malice is an intent to do a ny injury to another , a design formed in the mind to doing the mischief to another. Express malice is actual malice against the par ty slain, and exists w

here a person actually c ontemplates the injury or wrong he inflicts. Implied malice is malice not against the party slain, but malice in gener al, or that condition of mind which indicates a wicked, depraved and malignant spirit and heart regardless of soci al duty and fatally bent on mischief. ... In this event there is i mplied such a high degree of conscious and willful r

ecklessness as to amount to that malignity of heart consti tuting malice. Likewise if a deadly w

eapon is handled in a manner so as to make the killing a natural and probable result of such convicti on of murder in the first degree,but again this inference may be rebutted by either direc t or circumstantial evidenc

e, or by both regardl ess of whether the same be offered by the defendant or exi sts in the evidence of the State. A "deadly weapon" is any weapo n or instrument which from th e manner in which it is used or attempted to be used is lik ely to produce death, or cause gre at bodily i njury. *** You are reminded that the State a lways has the burden of proving ever

y element of the crime charg ed, beyond a reasonable doubt. A permiss ible inf erence m ay or may no t be drawn from an elemental fact from proo f by the State of a basic fact. However, all inferences permitted to be draw n may be rebutted. An inference does not place any burden of proof of any kind upon the defendant.

In Sandstrom v. Montana , 442 U.S. 510 (1979), the United States Supreme Court ruled that jur y instructions that r

elieve the prosecution of the burden of proving an essential e lement of the offense are unconstitutional. Here, the petitioner argues that the instructions give n at his trial impermiss ibly shifted the burden of proof on the element of malice.

In State v. Bolin , 678 S.W.2d 40, 43 (Tenn. 1984), the jury w as30 instructed that "the use of a deadly weapon ... raises a presumpt ion of malice unless rebutted by other facts and ci rcumstances to the contrary ...." After examining the particular instruction at issue and the full charge in its entirety, our supreme court upheld the conviction becaus e no "jury could have i nterpreted the ... instruct ion as mandatory or conclusiv e or as shifting to the defendant the burden of persuasion on the element of malice." Id. at 44. The court did, howev er, offer the following warning: In the w ake of Sandstrom , no state court of last resort can fail to recogn ize that it is prudent to warn trial judges that the word "pr esumption" should not be used, except in instructing

on the presumption of innocence. In its place juries may be instructed that a permissible inference may or may not be drawn of an elemental fact from proof by the State of a basic fact, bu t that such inference may be rebutted and the i nference places no burden of proof of any kind upon defendant. Id. at 44-45 (footnote omitted).

Here, the jury was not permitted to pr esume malice. The trial judge charged that the inference of malic e could be rebutted, that the jur y did not have to draw the inference, and that the inference imposed no burden of proof on the defendant. In consequence, counsel c ould not have been ineffective for failing to object to the instruction.

The petitioner also argues that his counsel was i neffective for failing to object to jury instr

uctions which inadequa tely explained premeditation and deliberation. In State v. B rown , 836 S.W.2d 530 (Te nn. 1992), decided four years after the trial of this case, our supreme court clarified the t erms, concluding that each of these elements was separ ate and distinct from the other.

In Overton v. State , however, our supr eme court discouraged use of31 failure to object to jury

instructions as a basis for ineffective assistance. 874 S.W.2d 6 (Tenn. 1994). In Overton , the trial judge charg ed the jury on the elements of aggravated rape as defined at the time of trial rather than as defined at the time of the offense. The petitioner argued his counsel was ineffective for failing to object to the incorrect jury i nstruction s. Our supr eme court rej ected the cl aim: Although this instructi on may well have co nstituted reversible error in this case [on direct appeal], we agree ... that it is not a cogni zable ground for relief i n a postconviction petition. R

elief may be granted on a postconviction petition onl

y when the sentence or c onviction is void or voidabl e because it contravenes a state or federal constitutional rig ht of the defendant. Moreover, to allow every error committed by the trial court to be recast in a post-conviction petition as an ineffective assistance of counsel allegation woul d be to subvert the limite d purposes of the post-conviction procedure. Id. at 11-12.
The reasoning in Overton has been applied to the questi on of whether counsel can be found ineffective for faili ng to object to instructi ons on deliberation and premeditation. In State v. Edwin E. Jes person , No. 03C01-9602-CC-00058 (Tenn. Crim. App., at Knoxv ille, Jan. 28, 1997), this court rejected the claim.
Moreover, the primary

issue in this case w

as one of identity. The theory of the state was that the petitioner watched the victim's house through a pair of binoculars, waited unti l everyone but the v ictim had left, and then subdued the victim with some type of chem ical. Thi s theory, f ully accred ited by the jury, presented a classic case of pr emeditated, deliberate first deg ree murder. The proof implied a plan or design o n the part of the petitioner and ther e was every indi cation that he acted with a cool, deliberate purpose. Thus, any failure to ob ject to the jury instructions on these elements of the crime, when the sing le issue was one of identity, could have had no impact on the trial.32 The petitioner also complains that counsel failed to object w hen the trial court provide

d instructions on the cause o f death, the meaning of a dangerous wound, the use of a deadly w eapon, and the absence of a material w itness. The petitioner argues that none of these instructions were supported b y the evidence and argues that they ser ved only to confuse the jur y.
Certainly, any ju ry charge should be g iven only when r aised by the evidence. These topics, how ever, had little beari ng on the results of this tr ial. That these instructions wer

e given would not unde rmine our confidence in the v erdict. Strickland , 466 U.S. at 686.

III

The petitioner filed a pro se br ief in support of his post-conv iction counsel's claims. If a pers on is represented by couns el, however, he has no right to proceed pro se. State v. Burkhart , 541 S.W.2d 365 (Tenn. 1976). In Burkhart , the court stated the rule as follows:

In all criminal prosecutions the accused has the rig ht to testify as a witness in his own behalf and to be represented by counsel. He does not have a constitut ional right under the State or Federal Constitution to participate In propria persona in his own defense and s imultaneously to be represented by participating counsel. He may conduct his own defense without benefit of counsel or with an attor ney present in the capacit y of 'elbow counsel.' The choice is his; he represents himself or he is represented--one or the other, but not both. Burkhart , 541 S.W.2d at 371. See also Kenneth Campbell v. State , No. 01C01- 9409-CR-00321, slip op. at 3 (Tenn. Crim. App., at Nashv ille, June 1, 1995) (applying the rule i n Burkhart to the post-conviction setting).33 In addition to the issues rai sed by his counsel, the petitioner contends that (1) the trial cour

t erred by failing to instruct the jury i n deliberating the issues and reporting its verdict; (2) the trial court erred by failing to properly instruct the jury on various issues; and ( 3) the petitioner's case should not be given harml ess error analysis.

These issues are waiv ed. In the post-convicti on context, a ground for relief is waived "i

f the petitioner knowingl y and understandingly

failed to present it for determination in any procee ding before a court of competent jur isdiction in which the ground could have been pres ented." Tenn. Code Ann. § 40-30-112(b) (1)(repealed 1995). Our supreme court has held that "the rebuttable presumpti on of waiver is not overcome by an alleg ation that the petitioner did n ot personally, knowingly, and understandingly fail to raise a ground for relie f." House v. State , 911 S.W.2d 705, 714 (Tenn. 1996). The court continued,"[w]aiver ... is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney." Id. Clearly, each clai m was available on di rect appeal.

The petitioner also argues that State v. B rown , 836 S.W.2d 530 (Tenn. 1992), should be applied retr oactively to his c

ase. In Brown , our supreme court ruled that because of potential juror confusion , trial courts should no longer instruct the jury that the premeditation required to sustain a first-degree murder conv iction can be "formed in an instant." Yet, this court has repeatedly held that Brown did not announce a new constitutional principle. Thus, retroac tive application is no

t permissible. See, e.g., Lofton v. State , 898 S.W.2d 246, 250 (Tenn. Crim. App. 1994). Thus, the issue is w ithout merit.34 The petitioner's final contention is that the state failed to prov e venue, a state constitutional prerequisite. As stated previously, however, there was ample evidence to establish v enue in Carter County. This issue is clearly without merit.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

_____________________________ Paul G. Summe rs, Judge

_____________________________ William M. Barker, Judge