### IN THE S UP REME COURT OF TENNESS EE AT KNOXVI LLE Se pte m be r 4, 200 3 S es sio n JERR Y N EAL CA RP ENT ER v. ST ATE OF TEN NES SEE App e al b y P e r m iss ion fro m th e Co ur t o f Cr im ina l A ppe als

Crim inal Cou rt for Knox Coun ty No. 47388 Richard R. Baum gartner , Judge

No. E2001-01732-SC-R11- P C - F iled Janu ary 13, 2004

F RAN K F. D R OW OT A , III , C

. J

. , co n cu rr i n g. Ifully agree with the majority ’s conc lusion that the petitioner, J err y Nea l Carpenter , has fa ile d to e sta

bli shhis c la im o f i ne ff

e c tiv e a ssi sta

nc e of a pp e llate c ouns e l. I

do no t a g re e fu lly with the majority ’s ana ly sis of this is sue, howe ver, a nd write sepa

rate ly to expl ain the basis of my concur renc e. The majority

opinion accur ately

sets out the law g overningclaims of inef fec tive assistance of counse l. Courts evaluatingsuch cla ims mustdeter mine: (1) whe ther c ounsel’s perf ormanc e wa s deficie nt; and (2) whe ther the de fense was pre judiced by

the alleg ed def

icient perf ormanc e. Strickland v. Washing ton, 466 U.S. 668, 687 (1984). B eca use the post-c onviction petition in thi s case was filed prior to 1995, Carpente r must establish by a pre pondera

nce of the e vid e nc e bo th d e fi c ie nt p e rf or manc e and

pr e jud ic e , a nd his c la im w ill no t su c c e e d if he fa ils to e sta bli she ith e r. Se e Ki ngv. State , 9 89 S.W. 2d 31 9, 32 3 ( Te nn . 1 99 9) . Wh e n e va luatin gc la ims of ineff ective a ssistance of c ounsel, appe llate cour ts apply de novo re view with a pr esumption of corr ectne ss give n the trial cour t’s finding s of fa ct. Fie lds v. St ate, 40 S.W.3d 450, 457 (Tenn. 2001). Applying the se fa miliar standards, I

conclude that Carpente r’s c laim of ineff ective assistance of appe llate counse l must fail because he has f ailed to establish def

icient per formanc e. The trial r ecor d clea

rly illust rate s that the defe nse strate g y was to obtain an a cquittal of the char g es by

raisingrea sonable doubt in the minds of the jurors. The prosec ution was based entirely upon circ umstantial evidence . Carpente r’s trial c ounsel attempted to under mine the prosec ution’s case -in-chie f by meticulously

offe ringalternative innocent explanations for the circ umstantial evidence . For example, to counter Da

rre ll W addell’s testimony that, on the day

of the murder , Carpente r we nt to the basement a fter c hang ing his c lothes and that the fur nace door opened a nd closed while Car

penter was in the ba sement, def ense c ounsel offe red the testimony of seve ral witnesse s, including Wadde ll, indicating that Car penter routinely assisted his mother

### -2

-

eac h afte rnoon by

stoking the f

ire in the fur

nace prior to her

arr ival home from wor

k. To counter the prosec ution’s evidence that a sea rch of Carpente r’s fur

nace yielded seve ral meta l rivets and fastene rs similar to those used in the g arme nt industry to make blue jea

ns, defe nse counse l called Carpente r’s mother who testified that she routinely purcha sed boxes of used clothingand burne d in the furna ce items of c lothing she w as unable to wear . To counter the testimony

that Carp e nte r’ s c lot

hin gha d a

pp e are d to be sp ott e d w ithblo od on the da y of the mur de r, de fe ns e counsel repeate dly

pointed out that Carpenter had himself sustained a

n injury on the af ternoon of the murder

and that seve ral witnesse s had see n the def endant blee ding f

rom the injury

. Def ense c ounsel also spent a great deal of time duringthe trial cr oss-examining and impeachingtwo of the prose cution’s most important witnesses: Darr ell Waddell and Gre g ory Dea n Her rell. On c ross-examination, these witnesses a dmitted that they had bee n friends f

or many year s, that they

also had be en drugaddicts for many y ear s, that they

had purc hased a

nd c on sume d L SD o n th e da y of the mur de r, that th e y

pr e vio us ly

ha d s tol e n mo ne y

to s up po rt

the ir drughabits, and that they previously

had g iven many

conflictingstatements to the police a bout thi s murd e r. To fu

rt he r c a st s us pic ion

on Wad de ll a

nd He rr e ll, de fe ns e c ouns e l c a lle d a wi tne ss who testified that he ha d driven pa st My rt’s nea r the time the prose cution alleg ed the murde r had been c ommitt ed and that he had se en a tr uck par ked by the store matc hing the descr iption of the truck drive n by

Waddell. This witness had not seen Car penter or anyone else leavingMy rt’s on foot. Ag ainst this factual ba ckground, def ense c ounsel asked the trial court to instruct the jury on le sse r- inc lud e d o ff

e ns e s, but c ouns e l de c ide d n ot t o c ha lle ng e the tr ia l c ourt ’s re fu sa l to do so on a pp e a l. A s th e ma

jority po int s o ut, at th e tim e of Carp e nte r’ s a

pp e a l, t his Court ’s mos t rec ently published opinion addressingan appe llate cha lleng e to a tria l court’s re fusal to provide i n s tr u c t i o n s o nl e s s e r - i n c l u d e d o f f e n s e s w a s S t at e v . K i n g , 7 1 8 S

. W

. 2 d 2 4 1 ( T e nn . 1 9 8 6 )

. In King , this Court st ated: The re cord shows that [ the] defenda nt was indicted for

both common law murder and two counts of f

elony murder, a

nd all counts wer e submitted to the jury for de c isi on . Any

tim e a c ourt ins tr uc ts a jur y in a ho mic ide c a se , h e [sic ] sho uld instruct all lesser inc luded offe nses and in most instances it is error not to do so. But whe re the evidenc e cle arly shows that [t he] defenda nt was guilty

of the g reater off

ense, it is not error

to fail to char g e on a le sser include d offe nse. State v. Mellons, 557 S.W .2d 497 (Tenn. 1977) ; J ohnson v. State, 531 S.W .2d 558, 559 ( T e nn . 1 9 7 5 ) ; S t at e v . W r i g h t , 6 1 8 S

. W

. 2 d 3 1 0 , 3 1 5 ( T e nn . C r i m . Ap p . 1 9 8 1 )

. In this case the r ecor d of the guilt phase of the tria l is devoid of any evidenc e which would permit an infe renc e of guilt of second-de g ree murder or the other le sser included off

enses. The State’s proof of preme ditation and deliberation, and the fac t that the killing occ urre d duringthe commission of a fe lony , which includes the def endant’ s confe ssions to C hilders and to the police , was unc ontradicte d. Consequently , we f

ind no prejudicial e rror

in the trial judg e’s r efusa l to inst ruct the jury on the eleme nts of murder in the se cond degree .I n dee d, t h i s r u l e wa s ap pl i ed as r ec en t l y a s 1998. Se e St at e v . V an n , 976 S. W

. 2d 93, 100- 01 ( T en n . 1998) 1 (“R e v ie w ing the e v id e n c e in this r e c o rd , w e a g re e w ith the C o u rt o f C rim ina l A p p e a ls tha t t h e trial c o u rt d id no t er r in f ai l i ng t o gi ve a jur y i nst ruct i o n on seco nd de gree murd er and f aci l i t at i o n of a f

e l o ny . T he evi d ence i n t hi s reco rd es t abl i s hes t hat t he vi ct i m had been ki l l ed dur i ng t he perpet r at i on o f a r ape, o r t hat t he vi ct i m had di ed f r om an ac ci dent al cho ki ng on p o p co rn, or t hat t he vi ct i m had co m m i t t ed sui ci d e. T he reco rd i n t hi s case i s d evo i d of evi d ence t o s up p o rt a j u r y ch ar g e on t h e of

f en s es of s ec on d de g r ee mu r der a n d f ac i l i t at i on of

a f el on y . St at e v . B oy d, 797 S. W

. 2d 589, 593 

### -3

- 718 S.W .2d at 245 (e mphasis added)

. As the ma jority c or re c tly re c ognize s a

pp e llate c ouns e l are no t c on sti tut ion a lly re qu ir e d to raise e very

conce ivable issue on appe al. Kingv. State, 989 S.W .2d 319, 334 (Tenn. 1999) ; Campbell v. State, 904 S.W .2d 594, 596-97 (Te nn. 1995). Indeed, this Court previously has commented that “ experience d advoca tes have long ‘ emphasized the importance of winnowing out weake r ar guments on appea l and foc using on one centr al issue if possible, or at most a fe w key issues.’” Cooper

v. State, 849 S.W .2d 744, 747 (Tenn. 1993) (quotingJ ones v. B arne s, 463 U.S. 745, 751 (1983). Courts eva luating c laims of ineffe ctive assistanc e of a ppellate c ounsel mus t a ff or d c on sid e ra

ble de fe re nc e to c ouns e l’ s c ho ic e s r e g ard ingiss ue s f or a pp e a l and sh ou ld not second-guess or judg e counse l’s choice s in the distorting lig ht of hindsight. Campbell, 904 S.W .2d at 597. Applying the se standar ds to trial counsel’s de cision to not appeal the tria l court’s re fusal to instruct on lesser-inc luded offe nses, I have no he sitation in concluding that the choice s made b y a p p e l l at e c o un s e l i n

th i s c a s e w e r e r e a s o n a

b l e an d w i th i nth e r an g e o f

c o mp e t e n c e o f

att o r n e ys in c ri min a l c a se s. As pr e vio us ly state d, de fe ns e c ouns e l’ s a im at tr ia l w a s to ob ta in a n a c qu itt a l, not to convince the jur

y that Carpente r wa s guilty only of a le sser-inc luded offe nse, such a s se c on d d e g re e mur de r. Ind e e d, the jur y he ard no e vid e nc e ind ic atin gthat Ca rp e nte r w a s guil ty only of sec ond degree murder or of anothe r lesser

homicide. As def

ense c ounsel testified at the hearing on the post-conviction petition: “Idon’t think the proof, unde r any view of it, justified a deter mination that it was not first deg ree murder, but wa s second de g ree murder.” In light of the pr oo f i n th e re c or d, and

thi s Co ur t’ s th e n- re c e nt p ro no un c e me nt i n K ing , c ouns e l de c ide d n ot t o ra ise on a pp e a l th e tr ia l c ourt ’s re fu sa l to ins tr uc t on le sse r- inc lud e d o ff

e ns e s. Th is d e c isi on , in my view, wa s rea sonable. The majority

states that the languag e in King“appa rently has bee n a sourc e of misunderstandingas to when le sser-inc luded offe nse instructions must be g iven.” Whateve r misunderstandingthis langua g e may have e ng ender ed in more r ece nt y ear s, at the time of Carpente r’s a

ppeal – the time pe rtinent to the issues in this appeal – the lawwas c lear and as stated in King . In sum, King stood for the proposition that an appe llate cha lleng e to a tria l court’s r efusa l to inst ruct on lesse r-include d offe nses was likely to be unsucc essful whe re the evidenc e cle arly

showed that the de fenda

nt was guilty

of the greater off

ense, a nd the re cord w as devoid of e vidence that would permit an infe renc e of guilt of second degree murder or another le sse r i nc lud e d o ff

e ns e . F ur

the rm or e , a

ny re c e nt m isund e rs tand ingof Ki ngre late d o nly

to i ts 1( T enn . 19 90 ) ; St at e v . K i ng , 718 S

. W

. 2d 2 41 , 2 45 (T enn . 19 86 )

. T her ef ore, f ai l ur e t o i ns t r uct t he j ur y o n t hes e of f ens es was not er r or. ”) 

### -4

- description of a trial cour t’s ref usal to instruct as both “not er ror” and as “ no prejudicia l error .” Howeve r, appe llate cha lleng es to a trial c ourt’s re fusal to instruct ar e destined f or fa ilure under either of these de scriptions; theref ore, attorney s winnowingout issues for appe al followingKing likely did not spend a great deal of time pa rsingthis langua g e. As sumin gfo r a

mom e nt, fo r t

he sake of

argume nt, that th e ma

jority is c or re c t in its asser tion that the law was unc lear at the time of Car

penter ’s appe al, I

am puzz led by

the majority ’s statement that “ [t ]he confusion at the time of Car penter ’s appe al re g ardingwhen lesser- included off

ense instruc tions were r equire d weighs heavily in favor of

concludingthat appellate counsel’s de cision not to pursue the issue wa s rea sonable.” (Emphasis adde d.) The opposite, it seems to me, would be true. I ndeed, this Court stated as muc h in Mill er v. State 54 S.W .3d 743, 747 n.6 (Tenn. 2001) (Drow ota, C.J ., author):

Am ic us Cur ia e , T e nn e sse e As so c iatio n o f C ri min a l D e fe ns e L awyers, a

rgues that wa iver should not apply beca use the law c on c e rn ingde lib e ratio n w a s in a state of g re at di sa

rr ay at th e tim e of Miller' s trial, and as a

result, dilige nt counsel could not have re c ognize d o r a sse rt e d th e iss ue . With a ll d ue re sp e c t, w e mus t dis a g re e . Amic us Cur ia e ' s a rgume nt i s b a se d o n tw o f a ult y propositions. First, there is no indication in Brown that the law actua lly was in a state of great disarra y . The strong est words used in the Brown decision we re " blurred" and " muddled". F ur the rm or e , a

dil ig e nt atto rn e y

is more, not less, likely

to raise a n issue relating to an a

rea of the lawthat is in a state of great disarra y . Indeed, it see ms more re asonable to conclude that diligent c ouns e l is le ss l ike ly

to r a ise an is su e wh e n h e or sh e pe rf or ms rese arc h and discove rs that the law in a n are a is well-se ttled and un if or mly a pp lie d. Am ic us Cur ia e ' s a rgume nts that w a ive r s ho uld not be applied a

re unpe rsuasive. (E mph a sis a dd e d. ) I

nd e e d, thi s st ate me nt i n M ill e r i s r e fl e c te d in Te nn e sse e Rul e of

Ap pe llate Procedur e 11, which lists amongthe “c hara cter of re asons” this Court considers whe n deter mining whe ther to grant a n application for

permission to appea l “the nee d to secure uniformity

of dec ision.” Thus, while Ido not agree that the law wa s unclea r at the time of Carpente r’s a

ppeal, if c onfusion exis ted, as the ma jority asser ts, such confusion would have weighed hea

vily ag ainst, not in favor of, f inding that a

ppellate c ounsel’s dec ision not t o pursue the issue was r easona

ble.

Conclusion

### -5

-

As previously

stated, in my

view, at the time of

Carpente r’s a

ppeal the la

w was c lear

and a s st ate d in

Ki ng . G ive n th e pr oo f i n th is r e c or d a nd the g ov e rn inglaw, c ouns e l’ s d e c isi on no t to c ha lle ng e on

a pp e a l th e tr ia l c ourt ’s fa ilure to i ns tr uc t on le sse r- inc lud e d o ff

e ns e s w a s r e a so na

ble and no t de fi c ie nt. Thus , I

c on c ur in t he ma jority ’s c on c lus ion

that Ca rp e nte r h a s f

a ile d to establish his claim of ineff ective a ssistance of a

ppellate c ounsel but disag ree with the majority ’s analy sis for the re asons her ein explained.

__________________________________________ F RA NK F . D RO WOT A, I I I , CH I EF JUSTI CE