IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 4, 2003 Session

JERRY NEAL CARPENTER v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 47388 Richard R. Baumgartner, Judge

No. E2001-01732-SC-R11-PC - Filed January 13, 2004

FRANK F. DROWOTA, III, C.J., concurring.

I fully agree with the majority’s conclusion that the petitioner, Jerry Neal Carpenter, has

failed to establish his claim of ineffective assistance of appellate counsel. I do not agree fully

with the majority’s analysis of this issue, however, and write separately to explain the basis of

my concurrence.

The majority opinion accurately sets out the law governing claims of ineffective

assistance of counsel. Courts evaluating such claims must determine: (1) whether counsel’s

performance was deficient; and (2) whether the defense was prejudiced by the alleged deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the post-conviction

petition in this case was filed prior to 1995, Carpenter must establish by a preponderance of the

evidence both deficient performance and prejudice, and his claim will not succeed if he fails to

establish either. See King v. State, 989 S.W.2d 319, 323 (Tenn. 1999). When evaluating claims

of ineffective assistance of counsel, appellate courts apply de novo review with a presumption of

correctness given the trial court’s findings of fact. Fields v. State, 40 S.W.3d 450, 457 (Tenn.

2001).

Applying these familiar standards, I conclude that Carpenter’s claim of ineffective

assistance of appellate counsel must fail because he has failed to establish deficient performance. 

The trial record clearly illustrates that the defense strategy was to obtain an acquittal of the

charges by raising reasonable doubt in the minds of the jurors. The prosecution was based

entirely upon circumstantial evidence. Carpenter’s trial counsel attempted to undermine the

prosecution’s case-in-chief by meticulously offering alternative innocent explanations for the

circumstantial evidence. For example, to counter Darrell Waddell’s testimony that, on the day of

the murder, Carpenter went to the basement after changing his clothes and that the furnace door

opened and closed while Carpenter was in the basement, defense counsel offered the testimony

of several witnesses, including Waddell, indicating that Carpenter routinely assisted his mother
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each afternoon by stoking the fire in the furnace prior to her arrival home from work. To counter

the prosecution’s evidence that a search of Carpenter’s furnace yielded several metal rivets and

fasteners similar to those used in the garment industry to make blue jeans, defense counsel called

Carpenter’s mother who testified that she routinely purchased boxes of used clothing and burned

in the furnace items of clothing she was unable to wear. To counter the testimony that

Carpenter’s clothing had appeared to be spotted with blood on the day of the murder, defense

counsel repeatedly pointed out that Carpenter had himself sustained an injury on the afternoon of

the murder and that several witnesses had seen the defendant bleeding from the injury. 

Defense counsel also spent a great deal of time during the trial cross-examining and

impeaching two of the prosecution’s most important witnesses: Darrell Waddell and Gregory

Dean Herrell. On cross-examination, these witnesses admitted that they had been friends for

many years, that they also had been drug addicts for many years, that they had purchased and

consumed LSD on the day of the murder, that they previously had stolen money to support their

drug habits, and that they previously had given many conflicting statements to the police about

this murder. To further cast suspicion on Waddell and Herrell, defense counsel called a witness

who testified that he had driven past Myrt’s near the time the prosecution alleged the murder had

been committed and that he had seen a truck parked by the store matching the description of the

truck driven by Waddell. This witness had not seen Carpenter or anyone else leaving Myrt’s on

foot. 

Against this factual background, defense counsel asked the trial court to instruct the jury

on lesser-included offenses, but counsel decided not to challenge the trial court’s refusal to do so

on appeal. As the majority points out, at the time of Carpenter’s appeal, this Court’s most

recently published opinion addressing an appellate challenge to a trial court’s refusal to provide

instructions on lesser-included offenses was State v. King, 718 S.W.2d 241 (Tenn. 1986). In

King, this Court stated:

The record shows that [the] defendant was indicted for both common law murder

and two counts of felony murder, and all counts were submitted to the jury for

decision. Anytime a court instructs a jury in a homicide case, he [sic] should

instruct all lesser included offenses and in most instances it is error not to do so. 

But where the evidence clearly shows that [the] defendant was guilty of the

greater offense, it is not error to fail to charge on a lesser included offense. State v.

Mellons, 557 S.W.2d 497 (Tenn. 1977); Johnson v. State, 531 S.W.2d 558, 559

(Tenn. 1975); State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981). In

this case the record of the guilt phase of the trial is devoid of any evidence which

would permit an inference of guilt of second-degree murder or the other lesser

included offenses. The State’s proof of premeditation and deliberation, and the

fact that the killing occurred during the commission of a felony, which includes

the defendant’s confessions to Childers and to the police, was uncontradicted. 

Consequently, we find no prejudicial error in the trial judge’s refusal to instruct

the jury on the elements of murder in the second degree.
Indeed, this rule was applied as recently as 1998. See State v. Vann, 976 S.W.2d 93, 100-01 (Tenn. 1998) 1

(“Reviewing the evidence in this record, we agree with the Court of Criminal Appeals that the trial court did not err in

failing to give a jury instruction on second degree murder and facilitation of a felony. The evidence in this record

establishes that the victim had been killed during the perpetration of a rape, or that the victim had died from an accidental

choking on popcorn, or that the victim had committed suicide. The record in this case is devoid of evidence to support

a jury charge on the offenses of second degree murder and facilitation of a felony. State v. Boyd, 797 S.W.2d 589, 593

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718 S.W.2d at 245 (emphasis added). 

As the majority correctly recognizes appellate counsel are not constitutionally required to

raise every conceivable issue on appeal. King v. State, 989 S.W.2d 319, 334 (Tenn. 1999);

Campbell v. State, 904 S.W.2d 594, 596-97 (Tenn. 1995). Indeed, this Court previously has

commented that “experienced advocates have long ‘emphasized the importance of winnowing

out weaker arguments on appeal and focusing on one central issue if possible, or at most a few

key issues.’” Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993) (quoting Jones v. Barnes, 463

U.S. 745, 751 (1983). Courts evaluating claims of ineffective assistance of appellate counsel

must afford considerable deference to counsel’s choices regarding issues for appeal and should

not second-guess or judge counsel’s choices in the distorting light of hindsight. Campbell, 904

S.W.2d at 597. 

Applying these standards to trial counsel’s decision to not appeal the trial court’s refusal

to instruct on lesser-included offenses, I have no hesitation in concluding that the choices made

by appellate counsel in this case were reasonable and within the range of competence of attorneys

in criminal cases. As previously stated, defense counsel’s aim at trial was to obtain an acquittal,

not to convince the jury that Carpenter was guilty only of a lesser-included offense, such as

second degree murder. Indeed, the jury heard no evidence indicating that Carpenter was guilty

only of second degree murder or of another lesser homicide. As defense counsel testified at the

hearing on the post-conviction petition: “I don’t think the proof, under any view of it, justified a

determination that it was not first degree murder, but was second degree murder.” In light of the

proof in the record, and this Court’s then-recent pronouncement in King, counsel decided not to

raise on appeal the trial court’s refusal to instruct on lesser-included offenses. This decision, in

my view, was reasonable.

The majority states that the language in King “apparently has been a source of

misunderstanding as to when lesser-included offense instructions must be given.” Whatever

misunderstanding this language may have engendered in more recent years, at the time of

Carpenter’s appeal – the time pertinent to the issues in this appeal – the law was clear and as

stated in King. In sum, King stood for the proposition that an appellate challenge to a trial

court’s refusal to instruct on lesser-included offenses was likely to be unsuccessful where the

evidence clearly showed that the defendant was guilty of the greater offense, and the record was

devoid of evidence that would permit an inference of guilt of second degree murder or another

lesser included offense. Furthermore, any recent misunderstanding of King related only to its 1
(Tenn.1990); State v. King, 718 S.W.2d 241, 245 (Tenn.1986). Therefore, failure to instruct the jury on these offenses

was not error.”)

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description of a trial court’s refusal to instruct as both “not error” and as “no prejudicial error.” 

However, appellate challenges to a trial court’s refusal to instruct are destined for failure under

either of these descriptions; therefore, attorneys winnowing out issues for appeal following King

likely did not spend a great deal of time parsing this language.

Assuming for a moment, for the sake of argument, that the majority is correct in its

assertion that the law was unclear at the time of Carpenter’s appeal, I am puzzled by the

majority’s statement that “[t]he confusion at the time of Carpenter’s appeal regarding when

lesser-included offense instructions were required weighs heavily in favor of concluding that

appellate counsel’s decision not to pursue the issue was reasonable.” (Emphasis added.) The

opposite, it seems to me, would be true. Indeed, this Court stated as much in Miller v. State 54

S.W.3d 743, 747 n.6 (Tenn. 2001) (Drowota, C.J., author):

Amicus Curiae, Tennessee Association of Criminal Defense

Lawyers, argues that waiver should not apply because the law

concerning deliberation was in a state of great disarray at the time

of Miller's trial, and as a result, diligent counsel could not have

recognized or asserted the issue. With all due respect, we must

disagree. Amicus Curiae's argument is based on two faulty

propositions. First, there is no indication in Brown that the law

actually was in a state of great disarray. The strongest words used

in the Brown decision were "blurred" and "muddled". 

Furthermore, a diligent attorney is more, not less, likely to raise an

issue relating to an area of the law that is in a state of great

disarray. Indeed, it seems more reasonable to conclude that diligent

counsel is less likely to raise an issue when he or she performs

research and discovers that the law in an area is well-settled and

uniformly applied. Amicus Curiae's arguments that waiver should

not be applied are unpersuasive.

(Emphasis added.) Indeed, this statement in Miller is reflected in Tennessee Rule of Appellate

Procedure 11, which lists among the “character of reasons” this Court considers when

determining whether to grant an application for permission to appeal “the need to secure

uniformity of decision.” Thus, while I do not agree that the law was unclear at the time of

Carpenter’s appeal, if confusion existed, as the majority asserts, such confusion would have

weighed heavily against, not in favor of, finding that appellate counsel’s decision not to pursue

the issue was reasonable. 

Conclusion
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As previously stated, in my view, at the time of Carpenter’s appeal the law was clear and

as stated in King. Given the proof in this record and the governing law, counsel’s decision not to

challenge on appeal the trial court’s failure to instruct on lesser-included offenses was reasonable

and not deficient. Thus, I concur in the majority’s conclusion that Carpenter has failed to

establish his claim of ineffective assistance of appellate counsel but disagree with the majority’s

analysis for the reasons herein explained.

__________________________________________

FRANK F. DROWOTA, III, CHIEF JUSTICE